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[2018] ZAWCHC 185
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McNeil and Another v Aspeling and Others (A85/18) [2018] ZAWCHC 185 (28 June 2018)
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REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
APPEAL
case no: A85/18
Magistrates’
Court Case No 1966/17
In
the matter between:
MARIET
MCNEIL
First Appellant
JEAN-MARI
MCNEIL
Second Appellant
and
ANTHONY
ASPELING
First Respondent
MORNE
DENNIS
ASPELING
Second Respondent
ALL
THOSE RESIDING WITH OR UNDER
THE
FIRST AND SECOND
APPELLANTS
Third Respondent
STELLENBOSCH
MUNICIPALITY
Fourth Respondent
JUDGMENT
DELIVERED ON 28 JUNE 2018
DAVIS,
AJ
1.
This appeal concerns the procedure to be followed in the Magistrates’
Court in applications for eviction in terms of the Prevention of
Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998
(‘PIE’).
2.
On 17 August 2017 the Paarl Magistrate granted a default judgment
against the appellants (‘the McNeils’) in terms whereof
he ordered that they be evicted from the property situated
at Erf
[…], Maasdorp, La Motte, Franschhoek (‘the eviction
order’). The McNeils then brought an application
for the
rescission of the eviction order, which was dismissed. This appeal
lies against the dismissal of the rescission application.
3.
The main issue is whether or not the first and second respondents,
who were the applicants in the eviction application (‘the
Aspelings’), complied with the Magistrates’ Courts
Rules
of Court (‘the Rules’) and with the peremptory procedures
laid down in section 4 of PIE. A further issue is whether
the McNeils
have disclosed a
bona fide
defence to the eviction
application.
4.
The rescission application is founded on Rule 49(1) of the Rules,
which empowers a court to rescind a default judgment “
upon
good cause shown, or if it is satisfied that there is good reason to
do so”
, read with s 36(1) of the Magistrates’ Court
Act 32 of 1944 (‘the Act’), which reads as follows in
relevant part:
‘
The court may,
upon the application of any person affected thereby, … , –
(a)
rescind or vary any judgment granted by it in the absence of
the person against whom that judgment was granted;
(b)
rescind or vary any judgment granted by it which was void ab
origine or was obtained by fraud or by mistake common to the
parties;…’
5.
For purposes of this judgment it is necessary to quote the relevant
parts of the notice of motion in the eviction application:
‘
PART A
PLEASE TAKE NOTICE
THAT the afore stated Applicants intend to make application to the
above Honourable Court on
04
Julie 2017
[1]
at 09h00, or as soon thereafter as the matter may be heard for an
order in the following terms:
1.
That
the Applicants be authorized and directed in terms of section 4(2) of
the Prevention of Illegal Eviction and Unlawful Occupation
of Land
Act 19 of 1998: to serve this notice of motion, the founding
affidavit, this order, any further affidavits or documents,
as well
as any further order which this Court may make in terms of Part A and
Part B to this notice of motion (the process) on
the First and Second
Respondent, all persons living with or under them (hereafter
“Respondents”), in the following
manner:
1.1.
The Sheriff of this Honourable Court or his deputy is
authorized and directed to serve this process in terms of this
application
personally on First to Third Respondents, and on any and
all persons whom he may find on the property, described as Erf […],
Maasdorp, La Motte, Stellenbosch District, Western Cape (hereafter
“the property”) and who appear to be over the age
of 16
years; and
1.2.
If
no such persons are present on the property by affixing such
documents on the front gate / entrance to the property; and
1.3.
That
the cost of this application shall be cost[s] in the main application
(Part B) hereof;
1.4.
That
such further and/or alternative relief that this Honourable Court may
deem just be granted to the Applicants.
2.
…
…
PART B
THIS DOCUMENT GIVES
YOU NOTICE THAT the above named Applicants, the persons in charge of
the property ERF […], MAASDORP,
LA MOTTE, STELLENBOSCH
DISTRICT, WESTERN CAPE, the property, hereby applies
[sic]
to
the Magistrates’ Court of Paarl for an Order as follows:
1.
An order that the First Respondent and Second Respondent, all
who live with or under them (“the Third Respondent”), be
evicted in terms of the Prevention of Illegal Eviction and Unlawful
Occupation of Land Act 19 of 1998;
2.
Determining a just and equitable date on which the Respondents
must vacate the property;
3.
Determining a date on which the Sheriff of this court may
evict the Respondents if the Respondents have not vacated the
property
before such date;
4.
In the event of the Respondents failing or refusing to vacate
the property within the time as ordered by this Honourable Court in
terms of prayers 2 and 3 above, the Sheriff of this Honourable Court
or his appointed deputy be authorized and directed to remove
from the
property all persons occupying the property and their property, and
to take such steps as may be necessary to prevent
the re-occupation
of the property;
5.
The First and Second Respondent be liable for the costs of
this application;
6.
In the event of the Sheriff of this Honourable Court or his
deputy being required to carry out the order contained in prayer 4,
such Respondent shall be liable for the costs of such removal;
7.
That the South African Police Services is instructed and
authorized to assist the Sheriff of this Honourable Court, or his
Deputy,
to carry out the order as per prayer 4 herein above;
8.
That such further and/or alternative relief as this Honourable
Court may deem just be granted to the Applicants.
TAKE FURTHER NOTICE
that this application is brought in terms of the Prevention of
Illegal Eviction and Occupation of Land Act 19
of 1998. The grounds
for the proposed eviction are set out in the various affidavits
attached to this Application.
…
TAKE FURTHER NOTICE
THAT the First Respondent and Second Respondent, all those living
with or under them, have the right to oppose
this application and
have a right to legal representation or to apply for legal aid, is
Respondents so qualify.
…
TAKE NOTICE THAT if
you intend opposing this application, you are required:
a)
To
notify the Applicant’s attorneys at the address as specified
herein above and below the Clerk of the Civil Court, Paarl,
in
writing of your intention to oppose part B on or before
17
August 2017
;
[2]
and
b)
Within 10 days after you have so given notice of your
intention to oppose the application, to serve and file your answering
affidavit,
if any; and
c)
To appoint in such notification an address as provided in the
Rules of the Magistrates’ Court, at which you will accept
notice
and service of all documents and process in these proceedings.
TAKE FURTHER NOTICE
THAT if no such notice of intention to oppose is given, the
application will be made on
17
August
,
[3]
2017 at
09h00, and you will not receive any further notice.
Dated at …Paarl
… on this …30
th
… day of …June
… 2017.’
6.
It is immediately apparent that the notice of motion was
contradictory
in that it conveyed that a notice of intention to
oppose could be filed at any time on 17 August 2017, while
simultaneously stating
that if no notice of intention to oppose was
delivered, the application for eviction would be made at 09h00 on 17
August 2017.
7.
It is
common cause that as at 09h00 on 17 August 2017 the McNeils had not
yet served and filed a notice of intention to oppose the
eviction
application. At 12h58 on 17 August 2017 the McNeils’ attorney
emailed a notice of opposition to the Aspelings’
attorney under
cover of a letter stating that the notice would be filed at court
shortly. However, by that time the eviction order
had already been
granted earlier that morning at 09h32.
[4]
8.
In his reasons for dismissing the rescission application, the
Magistrate stated that because the eviction application had been
properly served but there was no notice of opposition on the court
file, and the Aspelings’ attorney had also received nothing
from the appellants, he was satisfied that this was an unopposed
matter and he proceeded to give judgment by default.
9.
The Magistrate was of the view that there could be ‘
no
confusion as to the procedure to be followed if the application for
eviction was to be opposed’.
He accordingly found the
appellants to be in wilful default on 17 August 2017.
10.
The Magistrate was further of the view that the McNeils do not have a
defence
to the eviction application because he discounted the
challenges raised by the McNeils’ based on the Aspelings’
lack
of
locus standi
and their non-compliance with the
provisions of PIE.
11.
For reasons which will become clear, I consider that the Magistrate
misdirected
himself in failing to appreciate:
11.1. first, that the
Aspeling’s notice of motion in the eviction application was
irregular;
11.2. second, that the
correct procedure in terms PIE, as interpreted in the decision of
Cape Killarney Property Investments (Pty) Ltd v Mahamba and Others
2001 (4) SA 1222
(SCA)
(“Cape Killarney”)
, had
not been followed; and
11.3. third, that the
McNeils’ challenge to the
locus standi
of the Aspelings
to seek eviction in terms of section 4(1) of PIE raised a triable
issue and constituted a
bona fide
defence to the eviction
application.
12.
I deal below with each of these issues.
Irregular
Notice of Motion
13.
The notice of motion in the eviction application was a hybrid
combining the
short form notice of motion for the relief sought in
Part A and the long form notice of motion in respect of the relief
sought
in Part B.
14.
Rule 55(1)(f) regulates the situation where a respondent fails to
deliver notice
of intention to oppose an application. It states that:
“
If the
respondent does not,
on or before the day mentioned for
that purpose
in a notice of motion, notify the applicant
of his intention to oppose, the applicant may place the matter on the
roll for hearing
by giving the registrar or clerk of the
court notice of set down 5 days before the day upon which the
application is to be heard
.”
[Emphasis added]
15.
Part B of
the notice of motion deviates materially from the provisions of Rule
55(1)(f) in that it stipulates that notice of intention
to oppose
must be given in writing
on
or before 17 August 2017
,
[5]
but then goes on to say that if no notice of opposition is given, the
application will be made
at
09h00 on 17 August 2017
.
16.
It was irregular for Part B of the notice of motion to stipulate that
the application
would be made to court on an unopposed basis at 09h00
on 17 August 2017 when the McNeils were rightfully entitled, in terms
of
Rule 55(1)(f) as well as the wording paragraph a) of the notice of
motion, to deliver their notice of opposition at any time until
the
court closed on 17 August 2017.
17.
It was also irregular to stipulate in the notice of motion that an
application
for default judgment would be made on the same day as the
date on which the time for delivering a notice of opposition expired.
Rule 55(1)(f) clearly envisages that if no notice of opposition is
timeously delivered, the applicant may place the matter on the
roll
for hearing by giving the registrar or clerk of the court 5 days’
notice of set down before the day upon which the application
is to be
heard.
18.
The reason for the requirement in Rule 55(1)(f) that the applicant
give the
court five days’ notice of set down of an application
for default judgment is not difficult to fathom. It caters for the
practical reality that notices of opposition may be delivered a few
days late for reasons beyond a litigant’s or his attorney’s
control. Rule 55(1)(f) allows a sensible five-day margin for error
and ensures that an application for default judgment can only
be made
at a time when it is reasonable to infer that the litigant is
actually in default, as opposed to being the victim of some
or other
unforeseen logistical difficulty.
19.
By virtue of the provisions of Rule 55(1)(f) the Magistrate was not
entitled
to grant default judgment on the same day as the period for
delivery of a notice of opposition expired. In the circumstances he
acted irregularly when he granted default judgment against the
McNeils on 17 August 2017.
20.
In my view the eviction order was not legally competent because it
was granted
on the strength of an irregular notice of motion and
contrary to the requirements of Rule 55(1)(f). It is therefore void
ab origine
as contemplated in section 36 (1)(b) of the Act,
and is consequently liable to be rescinded on this ground alone.
21.
Furthermore, I consider that the Magistrate erred in concluding that
the McNeils
were in wilful default of appearance on 17 August 2017.
Part B of the notice of motion was not at all clear as to exactly
when
the notice of opposition had to be filed. To my mind the
McNeils’ explanation that they thought they had done what was
expected
of them by serving a notice of intention to oppose on 17
August 2017, and that they would then have a further 10 days within
which
to deliver answering papers, makes perfect sense. Part B of the
notice of motion was ambiguous and confusing and in the circumstances
the inference of wilful default was unwarranted.
Non-compliance
with PIE
22.
Sections 4(1) to (5) of PIE lay down peremptory procedural
requirements for
the obtaining of an eviction order. Sections 4(1) to
(5) read as follows:
‘
(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.
(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.
(3)
Subject to the provisions of subsection (2), the procedure for the
serving of notices and filing of
papers is as prescribed by the rules
of the court in question.
(4)
Subject to the provisions of subsection (2), if a court is satisfied
that service cannot conveniently
or expeditiously be effected in the
manner provided in the rules of court, service must be effected in
the manner directed by the
court: Provided that the court must
consider the rights of the unlawful occupier to receive adequate
notice and to defend the case.
(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.’
23.
In
Cape Killarney (supra)
the Supreme Court of Appeal
interpreted s 4 of PIE and set out the correct procedure to be
followed in eviction applications in
the High Court. Two aspects of
that judgment are important for present purposes.
23.1. First, it was held
that the notice of eviction proceedings contemplated in s 4(2) of
PIE, which must be authorised and directed
by an order of court, is
in addition to
the notice of proceedings in terms of the rules
of court as contemplated in section 4(3) of PIE, i.e., the notice of
motion.
23.2. Second, it was held
that since the date of hearing of an application in the High Court is
usually only determined after all
the papers have been served, and
since the section 4(2) notice must indicate the date on which the
application will be heard, that
has the consequence that an
application for authorisation to serve a section 4(2) notice can only
be made
after all papers have been filed
, i.e., after the
notice of motion and affidavits have been served in accordance with
the rules of court as contemplated in section
4(3).
24.
Cape Killarney
dealt with eviction proceedings in the High
Court and was based on the provisions of Rule 6 of the Uniform Rules
of Court (‘the
Uniform Rules’). The fundamental principle
laid down in
Cape Killarney
was that the notice in terms of s
4(2) of PIE must inform the recipient of the date on which the
eviction proceedings will be heard.
The hearing date is determined
with reference to the provisions of the Uniform Rules and also the
particular practice of the division.
25.
Prior to the amendment of Rule 55 of the Magistrates’ Court
Rules the
procedure for applications differed from that in the High
Court. In its pre-amended form, Rule 55(1) allowed for a notice of
motion
in the Magistrates’ Court to stipulate the date on which
the application would be made. On account of that crucial difference
it was held in
Theart and Another v Minnaar NO; Senekal v Winskor
174 (Pty) Ltd
2010 (3) SA 327
(SCA) that the procedural
requirements laid down in
Cape Killarney
did not apply in the
Magistrates’ Court. More particularly, it was held that two
separate notices contained in two separate
documents were not
required to comply with ss 4(2) and (3) of PIE, and it was
permissible to use a single notice / document provided
that the
contents of the document and the manner of service were approved by
the Magistrate in a prior
ex parte
application, and provided
also that the contents of the document complied with section 4(5) of
PIE (see
Theart (supra)
para [15]).
26.
Following the amendment of Rule 55 of the Magistrates’ Court
Rules, the
application procedure in the Magistrates’ Court is
in all material respects identical to that in the High Court. Rule
55(1)
now provides that every application shall be brought on notice
of motion supported by an affidavit and addressed to the party or
parties against whom relief is claimed, and to the registrar or clerk
of the court. The notice of motion must be in a form similar
to form
1A, which is the equivalent of the long form notice of motion used in
the High Court. The notice of motion must set a day,
not less than
five days after service on the respondent, by which notice of
opposition is required to be given, and must stipulate
a day on which
the application will be heard in the absence of any notice of
opposition.
27.
Given that application procedure in the Magistrates’ Court is
now the
same as that in the High Court, the basis for the decision in
Theart
has fallen away, and the case can no longer be regarded
as good law. The court in
Theart
was at pains to point out
that nothing said in that judgment detracted from the exposition of
the law in
Cape Killarney.
It must therefore be accepted that
the procedure laid down in
Cape Killarney
also governs
eviction applications in terms of PIE brought in the Magistrates’
Court (see
Occupiers of Ompad Farm v Green Horizon Farm (Pty) Ltd
and Others
[Unreported appeal judgment in case no AR468/2013
KZD).
28.
Therefore, save in the case for urgent applications where a different
procedure
may be adopted on proper motivation, service of the (long
form) notice of motion and founding affidavit in terms of s 4(3) of
PIE
should ordinarily precede the
ex parte
application to
court for authorisation and directions in regard to service of a s
4(2) notice, which will then be served subsequently
at a stage when
the hearing date has been determined. Thus service will be effected
twice; initially when the notice of motion
and affidavits are served
in accordance with the Rules, and subsequently when the s 4(2) notice
is served, which contains the hearing
date.
29.
In this case the procedure adopted by the Aspelings did not accord
with the
provisions of PIE as interpreted in
Cape Killarney
because:
29.1. First, the
appellants were not notified of the date on which the eviction
application would be heard if the matter was opposed.
The
ex parte
application in regard to service of a s 4(2) notice was brought
before all the papers in the application had been delivered and
therefore could not, and did not, state a date when the eviction
application would be heard in the event of opposition thereto.
As a
result the notice served on the appellants did not comply with the
requirements of section 4(5)(b) of PIE which stipulates
that the
section 4(2) notice must indicate on what date and time the eviction
proceedings will be heard.
29.2. Second, the
appellants only received one notification of the eviction proceedings
instead of two.
30.
Furthermore, the grounds for the proposed eviction are not set out in
Part B
of the notice of motion. Instead it is merely stated that,
‘
The grounds for the proposed eviction are set out in the
affidavits attached to this application.’
This does not
constitute proper compliance with s 4(5)(c) of PIE, which requires
that the grounds for the proposed eviction be
set out in the s 4(2)
notice. The grounds for the proposed eviction need to be expressly
stated in the s 4(2) if the notice is
to be effective. The recipient
should not be left to trawl through an affidavit in order to try and
ascertain what grounds are
relied on for eviction.
31.
For these reasons I consider that the procedure followed by the
Aspelings did
not comply with the peremptory requirements of s 4 of
PIE. As a result the eviction order was legally incompetent and, as
such,
void
ab origine
and liable to be rescinded on this
ground.
A
bona fide
defence
32.
It follows from what I have said in the preceding section that there
is merit
in the McNeils’ challenge to the procedure adopted by
the Aspelings in the eviction application. This issue alone
constitutes
a
bona fide
defence to the eviction application.
33.
Furthermore, the Mc Neils have raised a triable issue in regard to
the
locus standi
of the Aspelings to seek their eviction from
the property. It is by no means clear from the papers that the
Aspelings are ‘
persons in charge’
of the property
for purposes of section 4(1) of PIE. This is an issue which requires
proper ventilation, very likely by way of
oral evidence or trial.
34.
Therefore the Magistrate erred, in my view, in holding that the
McNeils do not
have a defence to the eviction application.
Conclusion
35.
The McNeils have furnished a satisfactory explanation for their
default of appearance
in the light of the irregularity and ambiguity
of the notice of motion regarding the time for delivery of a notice
of intention
to oppose. Because of the defects in the notice of
motion, they were deprived of an opportunity to present their case.
That if
unfair, and manifestly contrary to the spirit and intention
of PIE. The McNeils have shown that they have a genuine,
bona fide
defence to the eviction application which they wish to prosecute.
Justice demands that they be heard.
36.
In these circumstances I consider that good cause or reason has been
shown for
the rescission of the eviction order.
37.
It follows that in my view the appeal must succeed.
38.
I would therefore make the following order:
1.
The appeal is upheld, with costs.
2.
The judgment and order handed down by the Magistrate on 11 December
2017 under
case number 1966/2017 dismissing the application for the
rescission of the default judgment granted under the same case number
on 17 August 2017, is set aside and replaced with the following
order:
i.The default
judgment and eviction order granted on 17 August 2017 under case
number 1966/2017 is rescinded.
ii.
The
first and second respondents (i.e. the applicants in the eviction
application) are ordered to pay the costs of the rescission
application.
D M DAVIS
Acting Judge of the High
Court
I agree and it is so
ordered.
R C A HENNEY
Judge of the High Court
Counsel
for Appellants : Adv.
Mirshaenne W Muller
Counsel
for Respondents : Adv. Marais van der Merwe
[1]
The
Notice of Motion contained a blank space in which the date of 4 July
2017 was inserted by hand.
[2]
The
Notice of Motion contained a blank space in which the date of 17
August 2017 was inserted by hand.
[3]
The
Notice of Motion contained a blank space in which the date of 17
August was inserted by hand.
[4]
The
time appears from the Magistrates’ reasons for the dismissal
of the rescission application.
[5]
No
particular time is specified by which the notice of intention to
oppose must be filed.