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[2016] ZAWCHC 168
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Hardisty and Another v Noor and Others (6885/16) [2016] ZAWCHC 168 (24 October 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO: 6885/16
In
the matter between:
GARY
NIGEL HARDISTY
First Applicant
JENNIFER
JANINE DOROTHY
HARDISTY
Second Applicant
and
AQEELAH
NOOR
First Respondent
THE
CITY OF CAPE TOWN
MUNICIPALITY
Second Defendant
MARWANN
NOOR
Third Respondent
Judgment
:
Magona, AJ
Coram
:
Magona, AJ
For
the Applicant
Attorney
Mr Eddie Roux
For
the Respondent
Attorney
Mr Gavin Langenhoven
Heard
on
06 September 2016
Judgment
delivered on
24
October 2016
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO: 6885/16
In
the matter between:
GARY
NIGEL HARDISTY
First Applicant
JENNIFER
JANINE DOROTHY
HARDISTY
Second Applicant
and
AQEELAH
NOOR
First Respondent
THE
CITY OF CAPE TOWN
MUNICIPALITY
Second Defendant
MARWANN
NOOR
Third Respondent
Heard: 06
September 2016
Delivered:
24 October 2016
JUDGMENT
MAGONA,
AJ:
INTRODUCTION
[1]
This is an application for Summary Judgment against the First and
Third Respondents (the Respondents ). The Summary judgment
effectively seeks an order of jectment, evicting the Respondent and
every other person occupying the property situated at 46 Woodley
Road, Plumstead, Cape Town. (the Property) in terms of section 4 (1)
of the Prevention of Illegal Eviction and Unlawful Occupation
of Land
Act 19 of 1998 ( the PIE Act ) .
[2]
This summary judgment application arises out of an action to which a
claim for both damages and ejectment was sought.Before
me however is
only the Applicants merely seeking the ejectment order described
above.
The
appearances were as follows: Mr Roux appearared for the Applicants,
and Mr Langenhoven for the Respondents.
FACTUAL
BACKGROUND
[3]
On 26 April 2016 the Applicant issued summons for the payment of
damages and an ejectment order.The summons were served on the
Third
Respondent personally who received them on behalf of the First
Respondent.
[4]
On 13 May 2016, the First Respondent filed a notice of intention to
defend. On 25 May 2016, the Applicant filed a notice for
a Summary
Judgment Application set to be heard on 24 June 2016.
[5]
On 01 June 2016, under the same case number the Applicant filed An ex
parte application seeking an order in terms of Section
4 (2) of the
PIE Act ( the S4(2) order) with a date of hearing set for 3 June
2016. The S4(2) order Order was granted on
3 June 2016.
[6]
On 07 June 2016, the S4 (2) order together with the
ex parte
notice in terms of Section 4 (2) was served on the First Respondent
personally notifying her of the date of hearing as 24 June
2016. Part
of the terms of the Section 4(2) order where clause 4 and 5 provides
as follows:
“
4. That the
Defendants be informed that an action precodure has been brought in
terms of Section 4(1) of Act 19 of 1998, to evict
the 1
st
Defendant, and /or any other person occupying The property, form the
same; (sic)
5. That the
Defendants be informed that the date in which said proceeding will be
heard will be on the
24
th
day of June 2016
, or as soon thereafter
as council may be heard, at the High Court of South Africa, Western
Cape Division, Cape Town-
Court No.16
High Court Building , 35 Keerom Street,Cape Town;” (sic)
[7]
It was brought to my attention by the parties that the Third
Respondent was later on added to the proceedings by agreement between
them.
[8]
I turn to look at the various averments made for and against the
application before me.
The
Applicants’ Contentions are
:
[9]
As stated before the Applicants seek an ejectment order based on
their acquired ownership right to the property.
[10]
Mr Roux, argued that they are the lawful owners of the property
having purchased it at a sale in execution in November 2015.
The
Respondents and any other occupiers as stated above are illegal
occupiers of the property; that they occupy the property without
any
form of consent from the Applicants.
That
there is no bona fide defence to the relief sought.
[11]
Further that the Applicants have complied with the provisions of the
PIE Act and that the Respondents have no valid defence
to the summary
judgment sought.
The
Respondents’ Contentions are
[12]
The Respondent raised points in limine that these should be looked at
first before the actual defence raised against the summary
judgment
application can be considered for the dismissal of the application:
12.1
Mr Langenhoven argued that, firstly, the Applicants cannot seek an
eviction order by way of action proceedings,
they therefore
approached this court improperly;
12.2 That, secondly
,for Summary Judgment applications an applicant is not allowed to
adduce further evidence is support of the
application, that the
Applicants have done exactly that;
[13]
As to the summary Judgment sought, he argued that Rule 32
prerequisites were not strictly followed by the Applicants, but if
the court finds againt these,
13.1 that the
Respondent have a valid defence against the Applicants application
which renders for leave to be granted or the application
be
dismissed.This defence I can succinctly put entails the Applicant
bringing a rescission application against the default judgment
that
led to an execution order ot also be granted where the house was
eventually sold in execution and bought by the Respondents.Further
that they would attack the sale in execution which was not properly
conducted.The details of these I will deal with where necessary
further in this judgment.
[14]
Mr Langenhoven further argued that the Applicant failed to comply
with the provisions of Section 4(1) and 4(2) of the PIE Act,
prior to
the action proceedings; That the S4(2) order obtained was never
served on the First Respondnet therefore including him
in the
proceedings as a party. That therefore the application was premature
in that there was non-compliance with section 4(1)
of the PIE Act.
THE
ISSUES
[15]
Whether the Applicants are entitled to the Order sought?
[16]
Whether can eviction proceedings be instituted by way of action
procedure?
LEGAL
PRINCIPLES
Action
or motion proceedings
[17
] In
Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 1555
(T) at 1161
, gives a general position as to when
a party can use motion proceedings as opposed to action proceedings.
“
Two types of proceedings may be
mentioned, as falling outside the scope of this enquiry. (1)
There are certain types of proceedings
(e.g. in connection with
insolvency) in which my statute motion proceedings are especially
authorized or directed: in these the
matter must be decided upon
affidavit and Rule 9 may permit viva voce evidence to be led in order
to counteract anybalance of probability
appearing from affidavits.
(2) There are on the other hand certain classes of case (the
instances given by Dowling,
J are matrimonial causes and illiquid
claims for damages) in which motion proceedings are not permissible
at all. But between
these two extremes there is an area in
which (as I see the position) according to recognized practice a
choice between motion proceedings
and trial action is given according
to whether there is or is not an absence of a real dispute between
the parties on any material
question of fact.”
Summary
Judgment applications
[18]
Rule 32(1) of the Uniform Rules of the High Court of South Africa
provides as follows:
“
(1)
Where the defendant has delivered notice of intention to defend, the
plaintiff may apply to court for summary judgment on each
of such
claims in the summons as is only-
(a)
on a liquid document;
(b)
for a liquidated amount in money;
(c)
for delivery of specified
movable property; or
(d)
for ejectment;
together
with any claim for interest and costs.”
[19]
Rule 32 (4) provides as follows:
“
(4) No evidence may be adduced
by the Plaintiff otherwise than by the affidavit referred to in
subrule (2), nor may either party
cross-examine any person who gives
evidence viva voce or on affidavit: Provided that the court may put
to any person who gives
oral evidence such questions as it considers
may elucidate the matter.”
[20]
Section 26(3) of the Constitution
[1]
provides as follows:
“
No one may
be evicted from their home or have their home demolished , without an
order of court made after considering all the relevant
circumstances…
The
Prevention of Illegal Eviction and Unlawful Occupation Act (PIE Act)
provides as
follows
:
[21]
Section 1 of the PIE Act defines the word “owner”
to mean a “registered owner of land, including
an organ of
state;”
[22]
The words “unlawful occupier” are defined to mean “a
person who occupies land without the express or tacit
consent of the
owner or person in charge or without any other right in law to occupy
such land”….
Section
S.4
(1)
Notwithstanding
anything to the contrary contained in any law or the common law, the
provisions of this section apply to proceedings
by an owner or person
in charge of land for the eviction of an unlawful occupier.
S.4
(2)
At least 14 days
before the hearing of the proceedings contemplated in
subsection
(1)
,
the court must serve written and effective notice of the proceedings
on the unlawful occupier and the municipality having jurisdiction.
S.4 (5)
(5) The
notice of proceedings contemplated in
subsection
(2)
must—
(a)
state that proceedings are being instituted in terms of
subsection
(1)
for an order for the eviction of the unlawful occupier;
(b)
indicate on what date and at what time the court will hear the
proceedings;
(c)
set out the grounds for the proposed eviction; and
(d)
state that the unlawful occupier is entitled to appear before the
court and defend the case
and, where necessary, has the right to
apply for legal aid.
S.4 (7)
If an unlawful
occupier has occupied the land in question for more than six months
at the time when the proceedings are initiated,
a court may grant an
order for eviction if it is of the opinion that it is just and
equitable to do so, after considering all the
relevant circumstances,
including, except where the land is sold in a sale of execution
pursuant to a mortgage, whether land has
been made available or can
reasonably be made available by a municipality or other organ of
state or another land owner for the
relocation of the unlawful
occupier, and including the rights and needs of the elderly,
children, disabled persons and households
headed by women.
S.4 (8)
If the court is
satisfied that all the requirements of this section have been
complied with and that no valid defence has been raised
by the
unlawful occupier, it must grant an order for the eviction of the
unlawful occupier, and determine—
(a)
a just and equitable date on which the unlawful occupier must vacate
the land under the
circumstances; and
(b)
the date on which an eviction order may be carried out if the
unlawful occupier has not
vacated the land on the date contemplated
in
paragraph
(a)
.”
ANALYSIS
[23]
Points in Limine
[24]
Mr Langenhoven raised issues in limine which I will deal with before
tackling the main issues if I find it necessary to do.
The
first of these points is:
Non-
compliance with Rule 32
[25]
That the filing of the eviction application papers amounted to
“inclusion of any other facts” which are not contained
in
the summons which logically constitutes adducing further evidence a
conduct prohibited by Rule 32(4).
[26]
That the eviction applicaton ought not have been brought by way of
action proceedings that therefore the application is improper
before
me; I will first deal with these issues in turn.
Rule
32 and adducing of further evidence
[27]
The summons were served on 26 April 2016 to the Respondents for a
claim sounding in money at first and an ejectment order,
subsequent
to the filing by the Respondents of their notice of intention to
defend on 13 May 2016, the Applicant filed the notice
of the
Application for summary judgment together with the necessary
affidavit verifying the cause of action and the claim and stating
that in his opinion there is no bona fide defence defence to the
action and the notice to defend has been delivered solely for
the
purpose of delay.
In my view up to this point Appicant
had complied with Rule 32(1) and 32(2).
[28]
As stated before, Rule 32 (4) provides as follows:
“
(4)
No evidence may be
adduced by the Plaintiff otherwise than by the affidavit referred
to in subrule (2), nor may either party cross-examine any person who
gives evidence viva voce or on affidavit: Provided that the
court may
put to any person who gives oral evidence such questions as it
considers may elucidate the matter.” (my emphasis)
[29]
It has been held that with summary Judgment applications it is an
absolute prohibition to adduce further evidence in support
of the
application; a plaintiff must stand or fall by his/her verifying
affidavit.
[2]
[30]
In
casu,
the Applicants moved for a Section 4(2) eviction
application under the same case number as that of the action to which
this summary
judgment application is based.
[31]
The papers of the section 4(2) notice and subsequent order granted on
03 June 2016 have been filed and form part of the summary
judgment
application.In my view this was “further evidence in support of
the application” which is specifically prohibited
by Rule
32(4).
[32]
Mr Langenhoven’s argument that this shows that it was an
improper use of the summary judgment procedure to obtain an
eviction
order. I agree.
[33]
The rule was clearly designed to prevent a plaintiff’s claim,
based upon certain causes of action, from being delayed
by what
amounts to an abuse of the process of the court.
I
would also think that the converse should be acceptable to state that
Subrule (4) is a safey measure however placed to prevent
certain
causes of action to be diverted improperly to Rule 32 applications,
to what amounts to be an abuse of the process of the
court.
[34]
I further add that the ejectment sought in this matter before me is
not one by way of common law where the test is less stringent.It
is
by way of the PIE Act which came about when the Constitution and land
reform legislation placed severe restrictions on the common
Law right
to evict occupiers.
Proof
of compliance with the requirements or the restrictions set by the
legislature means an applicant must show or adduce evidence
to a
court to prove such compliance.Summary Judgment applications
therefore would not be proper, as no other affidavit can be filed
in
support of summary judgment application as prohibited by Rule 32(4)
described above.
[35]
Further, in my view since the evicition herein relates to an
immovable property used for dwelling purposes. It would not be
proper
for these kind of private or residential evictions to be moved by way
of Summary Judgment application as they are not mere
commercial
property
[3]
.
[36]
In closing on this point, even if I were to ignore the Section 4(2)
papers in
toto
, which I cannot, this would leave me with an
application brought before me for the ejectment of individuals out of
a residential
property without compliance with the PIE Act as the
common law does not apply in such instances.The application would
still be
improper.
There
is a greater need to make sure that where the PIE Act applies summary
judgment application is not the proper process to evict
individuals
out of a residential property.
[37]
In all, it is my view that this Summary Judgment application is
invalid as the procedure does not pass the requirements of
Rule 32
for the order sought. The application therefore stands to be
dismissed.
[38]
I now tend to deal with the secondpoint in
limine
.
Whether
Action or Application Proceedings?
[39]
As a starting point even though the case I am to look at below deals
with the Magistrates’ court jurisdiction and proceedings
on PIE
Act related matters that were brought by way of an application
procedure: It bears to be mentioned that the Magistrates’Court
is a creature of statute and it
already
has the jurisdiction to make ejectment orders by way of
action
proceedings
[4]
.
(my emphasis)
[40]
Mr Langenhoven argued that Mr Roux had misconstrued the Nduna
[5]
judgment, that in that case Hlophe JP does not expressly accept that
the Magistrates’ court has the jurisdiction to hear
eviction
applications by way of summons, instead he pronounces that
residential evictions are more appropriately brought by way
of
application. I do not agree , in my understanding of the judgment
Hlope JP dealt with the issue of jurisdiction in the following
manner
:
On the issue brought before him
that the Magistrate had no authority to order an eviction order
brought by way of motion as it is
ususally brought by way of
action/summons only
.
[6]
Following the principle applied
in
Pedro and others v
Greater George Transitional Council
2001 (2) SA 131
(C)
where
the full bench dealt with Section 4 eviction appeal proceedings
initiated by way of motion as opposed to action procedure,
that court
assumed that the Magistrate
did
have the necessary jurisdiction to entertain eviction proceedings
initiated on motion
[7]
.
My emphasis
Hlophe JP also assumed that both
action and application proceedings can be utilized in ejectment
applications brought under PIE
Act. At the bottom of paragraph [8] he
pronounces :
Hlophe JP:
“…
I am more than
convinced that this Court was correct in assuming in the
Pedro
case that the magistrate’s court has jurisdiction to entertain
applications for ejectment brought under the PIE Act on motion
proceedings.”
[41]
In my view therefore there was no need for Hlope JP to pronounce that
the Magistrates’ Court had the power to hear ejectment
or
eviction matters by way of a summons procedure, as is a power granted
to that Court by statute already.
[42]
The judgment itself is authority to the fact that ejectment orders
can also be moved for by way of application procedure.
I would add
that if it is a residential property one must make sure they apply
with the provisions
[8]
of the PIE Act .
The
Nduna judgment also assisted in the interpretation of the word
“proceedings” which I need not repeat here
[9]
, that it should not be given a narrow meaning limiting it to only
applications , but a wide one to include actions or vice versa.
[43]
Mr Roux had also argued this point, that the word “proceedings”
in terms of Section 4(1) of the Act should be given
a wide meaning to
include that eviction proceedings can be brought by way of action
proceedings. I agree.
[44]
To clarify however when it comes to the application like the one
before me , I do not agree with Mr Roux’s approach
of
instituting the PIE Act eviction proceedings by way of summons and
then divert them to a summary judgment application. I had
already
given my reasons above as to why I disagree.
[45]
Returning to the Nduna principle, in my view Mr Langenhoven’s
interpretation of Hlope JP’s finding is misconstrued.
As I
understand it the proper approach is this, that one can obtain an
ejectment or eviction order in terms of PIE Act by way of
either
action or application proceedings, provided the requirements of the
Act are met.
[46]
Having made the above findings I am of the view that it would serve
no purpose to deal with the further issues raised relating
to the
rest of the application as the summary judgment application which is
the main application is found to be invalid.
[47]
In closing, I will not make any comments on whether the eviction
proceedings would have been successful or not if proper
procedure was followed that will perhaps be an issue to be decided by
another court.
[48]
I now turn to look at the issue of costs.
Costs
[49]
In matters of this nature the Rule is clear that the court may make
an order as to costs as to it may seem just
[10]
,
this is a wide discretion
[11]
.
[50]
The Applicants brought these proceedings improperly and the
Respondents incurred costs in the circumstances. In the
applciation of my discretion it would be fair that an order as to
costs be borne by the Applicants.
[51]
In the circumstances I make the following Order:
The Application for Summary
Judgment is dismissed with costs.
_____________
MAGONA, AJ
[1]
The
Republic of South Africa Constitution, Act 108 of 1996
[2]
Rossouw v
First Rand Bank Ltd
2010 (6) SA 439
(SCA) at 451 A-B
[3]
Ndlovu v
Ngcobo; Bekker and Bosch v Jika 2003(1) SA 113 (SCA
[4]
Section
29(1)(b) of the Magistrates’ Court Act 32 of 1944, with PIE
Act conferring that court jurisdiction when it relates
to PIE Act
eviction proceedings
[5]
Nduna v
Absa Bank Ltd & Others[2004] JOL 12733 (C); dealing with the
jurisdiction of the Magistrates’ Court in eviction
applications.
[6]
Paragraph 6 of that judgment
[7]
paragraph 7
of that judgment
[8]
The PIE Act
Preamble, SS 9,4(1), and 5
[9]
Paragraph
10 of that judgment
[10]
Rule 32(9)
[11]
Tredoux v
Kellerman
2010 (1) SA 160
AT 165 E