About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2011
>>
[2011] ZAGPPHC 95
|
|
Ramaila Bellegings (Edms) Bpk v Zervick and Another (9647/2007, 9648/2007, 5014/2007, 5015/07) [2011] ZAGPPHC 95 (19 May 2011)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL
PROVINCIAL DIVISION)
CASE
NO: 9647/2007
DATE:19/05/2011
In
the matters between:
RAMAILA
BELLEGINGS (EDMS)
BPK
...................................................................
APPLICANT
And
JENNY
ZERVICK
.....................................................................................
FIRST RESPONDENT
FRANCIOIS
DU
PREEZ
....................................................................
SECOND
RESPONDENT
And
CASE
NO: 9648/2007
In
the matter between:
RAMAILA
BELLEGINGS (EDMS)
BPK
.................................................................
APPLICANT
And
JENNY
ZERVICK
...................................................................................
FIRST RESPONDENT
FRANCIOIS
DU
PREEZ
..................................................................
SECOND
RESPONDENT
AND
CASE
NO: 5014/2007
In
the matter between:
RAMAILA
BELLEGINGS (EDMS)
BPK
....................................................................
APPLICANT
And
FRANCIOIS
DU
PREEZ
.........................................................................
FIRST RESPONDENT
AND
In
the matter between:
CASE
No:5015/07
RAMAILA BELLEGINGS (EDMS)
BPK
....................................................................
APPLICANT
AND
JENNY
ZERVICK
....................................................................................
FIRST
RESPONDENT
FRANCIOIS
DU
PREEZ
.....................................................................
SECOND
RESPONDENT
JUDGMENT
MAVUNDLA.
J.,
[1]
The applicant in matters 9647/2007 and 9648/2007 seeks the same
relief against the respondents, their eviction from two immovable
properties adjacent to each other known as the remaining portion of
Erf 1221 and Remainder of Erf 1222, Bendor, Extension 11,
Registration Division LS, Limpopo situated at 13 and 15 Horak Street
Polokwane.
[2]
Under case number 9647/2007, the applicant seeks the eviction of Ms
Jenny Zervick from the property known as the remaining portion
of Erf
1222 Bendor, Extension 11, Registration Division LS, Limpopo also
known as 15 Horak Street, Polokwane. It would seem that
Ms Zervick
resides at 14 Horak Street, Polokwane. The second respondent, resides
at 15 Horak Street Bendor Valley Pookwane.
[3]
Under case number 5015/07 is sought leave of the Court to have the
relevant notice in terms of s4(2) of PIE Act served upon
the first
respondent's attorney Mr. Corrie Nel at 31 Mark Street Polokwane, on
Respondent Ms Jenny Zervick who resides at 14 Bendor
Valley
Polokwane, as well as on the City Council of Polokwane by the
Sheriff.
[4]
Under case number 9648/2007 the applicant seeks the eviction within a
month of the order, of Mr. Francois Du Preez from the
property known
as the remaining portion of Erf 1222 Bendor, Extension 11,
Registration Division LS, Limpopo also known as 15 Horak
Street
Polokwane.
[5]
Under case number 5014/07 leave of the Court is sought to have the
relevant notice in terms of s4(2) of PIE Act served upon
the
respondent's attorney Mr. Corrie Nel at 31 Mark Street Polokwane, on
Respondent, Mr. Francois Du Preez, who resides at 15 Bendor
Valley
Polokwane as well as the City Council of Polokwane by the Sheriff
[6]
In the Cape Killarney v Mahamba
1
the Supreme Court of Appeal held that the provisions of s4(2) are
peremptory. Section 4(2) requires service of the notice of such
proceedings days before the hearing of those proceedings. In the
matter of Wormald and Others v Kambule
2
Maya AJA held that "PIE therefore requires a party seeking to
evict another from land to prove not only that he or she owns
such
land and that the other party occupies it unlawfully, but also that
he or she has complied with the procedural provisions
3
and that on consideration of all relevant circumstances (and,
according to the Brisley case, to qualify as relevant the
circumstances
must be legally relevant), an eviction order is 'just
and equitable'."
[7]
In respect of the matters under cases number 9647/2007 and 9648/2007,
the relevant notices of motion were duly served on the
respondent by
the sheriff. However, it does not seem that these two matters were
preceded by section 4(2) notices that were duly
served on the
respondents 14 days before commencement of the eviction proceedings.
The commencement of eviction proceedings referred
to in section 4(2)
are those very proceedings in terms of which the leave of the court
to effect service is sought.
[8]
In all these matters, it is being alleged that the respondents are in
unlawful occupation of the relevant properties. That being
the
position, PIE is applicable and must be complied with. The starting
point is to first seek the leave of the court in terms
of section
4(2), after such notice has been served at least 14 days before the
hearing of that application. I have, however, not
been placed of
proof of service in respect of the matters under case numbers
51014/07 and 51015/07. It seems to me that section
4(2) has not been
complied with. It is for the applicant to satisfy the court that it
has complied therewith the provisions of
section 4(2), which it has
not done.
[9]
In the result, in all these matters, I find, that section 4(2) has
not been complied with and they therefore stand to be dismissed
with
costs. I deem it not necessary to traverse the rest of the other
issues raised for and against the granting the eviction sought.
[10]
In the result the applications under case numbers: 9647/2007;
9648/2007; 5014/07 and /5015/07 are all and individually dismissed
with costs.
N.M.
MAVUNDLA
JUDGE
OFTHE HIGH COURT
DATE
OF JUDGMENT : 19/05/2011
APPLICANT'S
ATT : STRYDOM & BREEDENKAMP INC
APPLICANT'S
ADV : MR. MA BADENHORST SC
RSPONDENT'S
ATT : STATE ATTORNEY
RESPONDENT'S
ADV : MR. HANNES KLOPPER
1
2001
(4)SA
1222(SCA)at 1227E-8D paragraphs [11]-[14],
2
2006
(3) SA 562
(SCA) at 568 F-G
3
My
underlining