Summary of Judgment

1. Introduction

The proceedings were an application for the rescission of an eviction order previously granted by the High Court. The applicant, Nomthandazo Makhunzi, sought to have the eviction order granted on 15 November 2018 set aside after it had been made in her absence and later executed.

The first, second, and third respondents, Raymond Hlazo N.O., Sizakele Chiliza, and William Mazibuko, were the successful applicants in the original eviction proceedings and opposed rescission. A fourth respondent, Daniel Mfanimpela Mkhaliphi, described as a subsequent purchaser of the property, was cited but abided the decision of the court.

Procedurally, the eviction order was granted on 15 November 2018 and executed on 9 December 2019. Although the applicant was evicted on that day, she soon re-occupied the property through community intervention and remained in occupation thereafter. The rescission proceedings were launched on 25 April 2022. The rescission application was heard on 11 May 2023, with judgment delivered on 15 May 2023.

The dispute concerned the validity and rescindability of an eviction order granted under the statutory framework governing evictions, particularly the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE), and the procedural mechanisms for rescission under Uniform Rule 42(1)(a) and the common law. Central to the dispute were issues of notice, the applicant’s alleged default, and whether the eviction court conducted the mandatory PIE enquiries before granting an eviction order.

2. Material Facts

It was common cause that an eviction order was granted against the applicant on 15 November 2018 and that the order was executed on 9 December 2019, when the applicant was physically evicted. It was also not in dispute that shortly after the eviction the applicant re-occupied the property with community assistance and remained in occupation.

The applicant was not present in court when the eviction order was granted on 15 November 2018. In the rescission proceedings, the respondents contended that the applicant had been in wilful default, alternatively that she had elected not to participate in the proceedings on the day the eviction order was granted.

A material factual dispute concerned whether the applicant had received specific and unequivocal notice that she had to attend court on 15 November 2018, and in particular whether there had been compliance with the statutory notice mechanism contemplated by section 4(2) of PIE, which is directed at ensuring effective written notice before eviction from a home. The court considered the papers and was unable to identify clear evidence demonstrating that the applicant had been given unequivocal notice to attend court on that date.

The respondents relied on two main factual contentions to establish knowledge of the hearing date. First, they submitted that the applicant would have known of the hearing date because she had previously attended court on 8 August 2018 and was allegedly informed then of the later hearing date. The applicant denied being in court on that occasion, and the court found that the papers did not clearly establish that she was informed (or at least appreciated) that an eviction order might be granted on 15 November 2018 and that she should attend to place her personal circumstances before the court.

Second, the respondents contended that the third respondent had personally served a notice of set down on the applicant on 12 November 2018, supported by an affidavit in the court file. The court found that it was unclear what notice of set down had in fact been served and, importantly, whether it indicated that the applicant was required to attend court on 15 November 2018. The court also noted concern that a litigant with a direct interest in the eviction proceedings (the third respondent) was said to have served the notice, rather than the sheriff, and further observed that the returns of service in the file did not demonstrate personal service of the section 4(2) PIE notice on the applicant. The court additionally noted that the only section 4(2) notice it was directed to did not contain a date on which the applicant was required to be in court.

A further important fact for the outcome was the delay between the applicant learning of the eviction order (which the court treated as being on 9 December 2019, when she was evicted) and the launching of the rescission application on 25 April 2022, a period of approximately two and a half years. The applicant’s explanation was that she did not know what steps to take, that an initial attorney did not provide real assistance, and that she only became aware she could seek rescission when assisted by her present pro bono representatives, the Seri Law Clinic, whereafter she acted promptly.

3. Legal Issues

The court was required to determine whether the eviction order granted on 15 November 2018 should be rescinded either under Uniform Rule 42(1)(a) or under the common law.

Under Rule 42(1)(a), the central question was whether the eviction order had been “erroneously sought or erroneously granted” in the applicant’s absence. This required an evaluative assessment of whether the procedural and statutory prerequisites for a valid eviction order were satisfied on the available record, including whether the eviction court was properly placed to grant an order under PIE and whether the applicant’s absence could properly be treated as a basis for granting the order.

Under the common law, the court had to decide whether the applicant showed good cause for rescission. This included whether the applicant gave a reasonable explanation for her default (including whether she was in wilful default) and whether she disclosed a bona fide defence that prima facie carried some prospects of success.

An additional issue concerned the significance of the applicant’s delay in launching rescission proceedings and whether, in the context of eviction litigation affecting section 26 housing rights, that delay should prevent rescission notwithstanding the merits.

These issues involved a mixture of fact (what notice was given and what the applicant knew), application of law to fact (whether the notice and the court process met PIE and rescission standards), and evaluative judgment (how the delay and explanation should be weighed in the constitutional and eviction context).

4. Court’s Reasoning

The court first addressed whether the applicant’s failure to appear on 15 November 2018 constituted wilful default or an election to absent herself. Given the statutory purpose of section 4(2) of PIE—to ensure, as far as reasonably possible, that effective written notice of eviction proceedings is given before a person is evicted from a home—the court treated the existence of clear notice to attend court as a central consideration.

After examining the papers, and after inviting counsel to identify evidence of a specific and unequivocal notice requiring the applicant’s attendance on 15 November 2018, the court concluded that no such unequivocal written and effective notice could be located in the court file. The respondents’ submission that the applicant must have known of the date because she attended court on 8 August 2018 was rejected as insufficiently supported on the papers, particularly given the applicant’s denial and the lack of cogent proof that she was informed (or appreciated) that the matter could result in an eviction order on 15 November 2018 and that she should attend to place her circumstances before the court.

The court also considered the asserted service by the third respondent of a notice of set down on 12 November 2018. The court reasoned that the evidence did not clearly establish what was served and whether it contained the necessary information about attendance on 15 November 2018. The court further regarded it as problematic that service of such an important notice was said to have been effected by an interested litigant rather than by the sheriff, and it found no cogent proof of proper service of the prescribed and court-authorised PIE section 4(2) notice, noting that the returns of service did not demonstrate personal service and that the section 4(2) notice referred to lacked a court date. On this basis, the court held it could not find that the applicant knew she had to be in court on 15 November 2018 and thus could not find wilful default or deliberate election to be absent.

Turning to whether the applicant disclosed a bona fide defence with prospects, the court focused on the statutory structure of PIE. It held that there was no evidence that the eviction court had engaged in the obligatory enquiry under section 4(7) of PIE, which requires consideration of all relevant factors to determine whether an eviction order would be just and equitable, and the further obligatory enquiry under section 4(8) of PIE to determine the date for vacating and when eviction would be carried out if the occupier failed to vacate. The court emphasised that a court must act proactively in eviction matters to ensure it is appraised of all relevant information required to make a just and equitable decision.

The court considered that the eviction court had later furnished reasons (after a request for reasons). Those reasons, in the rescission court’s view, did not reflect that the necessary PIE enquiries were conducted; instead, they indicated that the eviction court was prepared to grant relief upon reading the applicant’s papers and in the absence of an answering affidavit. No evidence was presented of what enquiry the eviction court conducted on the day of the order, and the reasons did not state that such an enquiry occurred. The rescission court accepted that, for purposes of rescission under the common law, it was not necessary for the applicant to prove affirmatively that the statutory enquiries were not conducted; it was sufficient that there was an insufficiency of evidence showing that the obligatory enquiry was conducted, and that this gap constituted a bona fide defence with prospects of success.

On Rule 42(1)(a), the court reasoned that there was substantial force in the applicant’s contention that the eviction order was erroneously granted in her absence where (i) there was no evidence that the eviction court considered all relevant factors as required by PIE, and (ii) it did not appear that the eviction court was aware of the respondents’ failure to provide adequate notice to the applicant that she was to appear in court that day. The court concluded that rescission was justified whether approached under Rule 42(1)(a) or under the common law.

The court then confronted the applicant’s lengthy delay from December 2019 to April 2022. It characterised the applicant’s explanation as terse but took account of the eviction context and constitutional implications. It referred to authority emphasising that eviction litigation implicates not only the occupiers’ section 26 rights but also broader societal considerations requiring courts to engage actively and interrogatively rather than adopting the ordinary adversarial approach. The court also accepted there was some merit in the respondents’ submission that, because the applicant was quickly restored to occupation through community intervention, she may have believed the eviction issue was resolved until criminal proceedings arose; while the court stated that her conduct in retaking occupation after execution of a court order could not be countenanced, it nevertheless considered this belief to provide some explanation for the delay.

Balancing these factors, the court held that the serious deficiencies in how the eviction order was obtained and the strength of the applicant’s merits—particularly the probable absence of the mandatory PIE enquiry—outweighed the deficiencies in the applicant’s explanation for the delay, especially in light of her invocation of constitutional housing rights.

On costs, the court held that although the applicant was to some extent seeking an indulgence, the appropriate order was that the costs of the rescission application should be costs in the main eviction proceedings, reflecting the nature of the dispute and the court’s overall assessment.

Finally, the court limited the rescission to the order as against the applicant, because only the applicant (as the second respondent in the main eviction application) sought rescission and another party in the main application was not before the court in the rescission proceedings.

5. Outcome and Relief

The court granted an order rescinding and setting aside the eviction order granted on 15 November 2018, but only as against the applicant.

The court directed the applicant to deliver her answering affidavit in the main eviction application within 20 days of the rescission order.

The court ordered that the costs of the rescission application would be costs in the main application.

Cases Cited

Zuma v Secretary of the Judicial Commission of Enquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State and Others [2021] ZACC 28.

Grant v Plumbers (Pty) Limited 1949 (2) SA 470 (O).

Colyn v Tiger Food Industries Limited t/a Meadow Feed Mills (Cape) 2003 (6) SA 1 (SCA).

Gundwana v Steko Development and Others 2011 (3) SA 608 (CC).

Occupiers of Erven 87 and 88 Berea v De Wet N.O. and Another 2017 (5) SA 346 (CC).

Madulammoho Housing Corporation NPC v Nephawe and Another [2023] ZAGPJHC 7 (10 January 2023).

Shulana Court, 11 Hendon Road, Yeoville, Johannesburg v Steele [2010] 4 All SA 54 (SCA).

Port Elizabeth Municipality v Various Occupiers [2004] ZACC 7; 2005 (1) SA 217 (CC).

Vacation Import (Pty) Limited v Bumina and Others; Vacation Import (Pty) Limited v Ngaleka and Others [2023] ZAWCHC 44 (3 March 2023).

Sehube and Another v City of Johannesburg Metropolitan Municipality and Others [2021] ZAGPJHC 535 (13 October 2021).

Legislation Cited

Constitution of the Republic of South Africa, 1996, section 26.

Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, sections 4(2), 4(7), and 4(8).

Rules of Court Cited

Uniform Rules of Court, Rule 42(1)(a).

Held

The court held that it could not find that the applicant had been given clear and effective notice to attend court on 15 November 2018, and therefore could not find that she was in wilful default or had elected to absent herself when the eviction order was granted.

The court further held that there was insufficient evidence that the eviction court conducted the mandatory enquiries required by PIE before granting an eviction order, and that this deficiency constituted a bona fide defence with prospects of success for purposes of common-law rescission. The same deficiencies, coupled with the inadequate notice position, supported the conclusion that the order was erroneously granted in the applicant’s absence for purposes of Rule 42(1)(a).

Despite the substantial delay in bringing the rescission application, the court held that the seriousness of the deficiencies in obtaining the eviction order and the constitutional context of eviction litigation outweighed the shortcomings in the applicant’s explanation for the delay.

LEGAL PRINCIPLES

In eviction matters under PIE, compliance with section 4(2) is directed at ensuring, as far as reasonably possible, written and effective notice of the proceedings before a person is evicted from their home. The adequacy and clarity of notice to an occupier is material to whether an absence from court can properly be treated as default.

Before granting an eviction order under PIE, a court must conduct the obligatory enquiry under section 4(7) to consider all relevant circumstances and determine whether eviction would be just and equitable, and must also conduct the further enquiry under section 4(8) relating to the date for vacating and implementation of eviction if the occupier does not vacate. The court is required to act proactively to ensure it is properly appraised of relevant information needed to make a just and equitable decision.

For rescission under the common law, the applicant must show good cause, which includes a reasonable explanation for default and a bona fide defence that prima facie carries some prospects of success. In the eviction context, the constitutional and societal implications of section 26 may inform how the court weighs delay and procedural shortcomings, and may justify allowing a matter to be properly ventilated where substantial deficiencies appear in the manner in which an eviction order was obtained.

Rescission under Uniform Rule 42(1)(a) may be granted where an order was erroneously sought or erroneously granted in the absence of a party, including where material procedural or statutory prerequisites for granting the order were not satisfied on the record placed before the court.