Theart and Another v Minnaar NO, Senekal v Winskor 174 (Pty) Ltd (483/08, 007/09) [2009] ZASCA 173; [2010] 2 All SA 275 (SCA) ; 2010 (3) SA 327 (SCA) 2010 (3) SA 327 (SCA) ; 2010 (3) SA 327 (SCA) (3 December 2009)

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[2009] ZASCA 173
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Theart and Another v Minnaar NO, Senekal v Winskor 174 (Pty) Ltd (483/08, 007/09) [2009] ZASCA 173; [2010] 2 All SA 275 (SCA) ; 2010 (3) SA 327 (SCA) 2010 (3) SA 327 (SCA) ; 2010 (3) SA 327 (SCA) (3 December 2009)

THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 483/08
J T THEART First Appellant
COPPERSUN (PTY) LTD Second Appellant
and
DEON MINNAAR N.O Respondent
and
Case No: 007/09
ANSIE SENEKAL Appellant
and
WINSKOR 174 (PTY) LTD Respondent
Neutral citation:
Theart v
Deon Minnaar NO
(483/08)
and
Senekal v Winskor
174 (Pty) Ltd
(007/09)
[2009] ZASCA 173
(3 December 2009)
Coram:
MPATI P, BRAND,
SNYDERS, MALAN et BOSIELO JJA
Heard:
5 November 2009
Delivered:
3 December 2009
Summary:
Interpretation – s
4(2) of the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of 1998 – procedure
to be followed in
magistrates' court.
______________________________________________________________
ORDER
On appeal from:
Cape High
Court
(sitting as a
court of appeal).
In
Theart v Deon N.O
(appeal No 483/08):
On appeal from High Court, Cape Town (R B Cleaver and D
H Zondi JJ sitting as court of appeal from the magistrates’ court).
1 The appeal is dismissed with costs.
2 The order of the court a quo is amended to read as
follows:
‘
(a) The appeal is dismissed with costs.
(b) The order of the court a quo is amended to read as
follows:
“
(i) The application is granted with costs.
(ii) The first respondent and others occupying through
him are ordered to vacate the premises at 65 Van der Stel Street,
Stellenbosch
within one month.
(iii) Failing compliance with the order in (ii) the
sheriff is authorised to evict the first respondent and others
occupying through
him from the said property together with their
belongings and to hand over vacant possession to the applicant.”’
3 The one month period referred to in (b)(ii) shall be
calculated from the date of this judgment.
In
Senekal v Winskor 174 (Pty)
Ltd
(appeal No 007/09):
On appeal from High Court, Cape Town (Veldhuizen J and E
T Steyn AJ sitting as a court of appeal from the magistrates’
court).
1 The appeal is dismissed with costs.
2 The order of the court a quo is amended to read as
follows:
‘(a) The appeal is dismissed with costs.
(b) The order of the court a quo is amended to read as
follows:
“
(i) The application is granted with costs.
(ii) The respondent and all others occupying through her
are ordered to vacate the premises at erf 16274, being 1
Hawthornedene
Road, George, within fourteen days.
(iii) Failing compliance with the order in (ii) the
sheriff is authorised to evict the respondent and others occupying
through her
from the said property together with their belongings and
to hand over vacant possession to the applicant.”’
3 The period of fourteen days referred to in (b)(ii)
shall be calculated from the date of this judgment.
JUDGMENT
BOSIELO JA
(Mpati P,
Brand, Snyders and Malan JJA concurring):
[1] The two appeals before us raise the issue of the
proper interpretation and application of s 4(2) of the Prevention of
Illegal
Eviction from and Unlawful Occupation of Land Act 19 of 1998
(PIE) in the magistrates' courts. As the two appeals raise similar

questions of law it is convenient to deal with both at the same time.
[2] It would be convenient to set out the provisions of
s 4 of PIE which are relevant to this matter:
'
4 Eviction
of unlawful occupiers
(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 the 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.'
[3] The facts in both matters are fairly straightforward
and can be conveniently summarised as follows: In
Theart
the appellants occupied the respondent's premises on the strength of
an option to buy the premises. It is common cause that the
appellants
defaulted in their payment in terms of the option. As a result the
option expired. The respondent gave the appellants
due notice of the
expiry of the option and demanded that they vacate his premises. On
24 October 2004 the respondent caused to
be issued a notice in terms
of s 4(2) of PIE. In addition the magistrate authorised the procedure
for the service thereof. On the
same day the respondent had a notice
of motion issued in terms of rule 55 of the magistrates' courts rules
which informed the appellants
that an application for their eviction
from the respondent's premises would be heard in the magistrates'
court, Stellenbosch on
29 November 2007. The notice of motion
informed the appellants, amongst other things, of
the respondent's intention to evict them from
his premises; the grounds for such eviction; the date and place for
the hearing; their
right to defend the matter and seek legal
representation; their right to adduce relevant facts before a court
to enable it to decide
whether the eviction would be justified and
their constitutional right to adequate housing in terms of s 26(3) of
the Constitution.
The s 4(2) notice and the notice of motion were
served by the sheriff on the appellants on 26 October 2007 as
authorised by the
order of the magistrate's court. The appellants
responded to these two notices by filing a notice of intention to
oppose and an
answering affidavit. In addition, the appellants were
duly represented by an attorney when the matter was heard in court on
6 December
2007 and when the magistrate granted an order for the
eviction of the appellants. The appellants' appeal to the Cape
Provincial
Division (per Cleaver J, with Zondi J concurring) was
unsuccessful. This appeal is with the leave of the court below.
[4] In
Senekal
the respondent had no agreement of lease with the appellant who was
the new owner of the property. The respondent sought an eviction

order against the appellant on the grounds that she had no right to
occupy the property and that she was accordingly an unlawful

occupier. The application for the eviction order was couched in the
form of a notice of motion in terms of rule 55. No dedicated
s 4(2)
notice was issued. Yet the notice of motion contained the information
as prescribed by both ss 4(2) and (5). On 10 July
2007 the magistrate
made an order authorising service of the notice in terms of s 4 of
PIE. This notice of motion was served on
the appellant and the
municipality concerned
on
11 July 2007. In the notice of motion the appellant was advised to
appear before the magistrates' court on 14 August 2007 if
she
intended to oppose the matter.
[5] The appellant in
Senekal
filed an affidavit opposing the order sought,
alleging that she was entitled to occupy the property as part of her
employment benefits
with her previous employer. She was represented
by an attorney. The matter was heard on 10 October 2007 and, having
listened to
both sides, the magistrate granted an order evicting the
appellant from the premises. The appellant's appeal to the Cape
Provincial
Division was dismissed by Veldhuizen, J with E T Steyn AJ
concurring. The appellant now appeals to this court with the leave of

the court below.
[6] I pause to observe that the appellants in both
appeals did not dispute the merits of their respective cases. They
confined themselves
to an attack on the procedures which had been
adopted by the respondents. In
Theart
the objection was that although two notices had been issued
separately they were served simultaneously. In
Senekal,
on the other hand, the objection was that
there was only one hybrid notice issued, which embodied the
information required by s
4. Both appellants contended that the
failure to have two notices served separately on them infringed their
rights to procedural
and substantive justice expressly provided for
in s 4(2), read with s 4(5) of PIE. They contended that a proper
interpretation
of s 4(2) required that two separate notices be issued
and served on them separately. Their principal submission was that
this
procedure was intended to give them an additional opportunity
apart from that ordinarily accorded them by the rules of the
magistrates'
courts to consider their positions and put all relevant
facts before the court for its consideration. Reliance was placed on
Cape Killarney Property Investments (Pty) Ltd
v Mahamba and Others
2001 (4) SA 1222
(SCA)
for this contention.
[7] It is useful to quote the relevant part of the
judgment in
Cape Killarney
paras
11 and 12 where Brand AJA stated the following:
'[11] Section 4(1) makes it
clear that the provisions of the subsection that follow are
peremptory. It also defines the "proceedings"
to which the
section applies, namely proceedings for the eviction of an unlawful
occupier. Section 4(2) requires notice of such
proceedings to be
effected on the unlawful occupier and the municipality having
jurisdiction at least 14 days before the hearing
of those
proceedings. Section 4(2) further provides that this notice must be
effective notice; that it must contain the information
stipulated in
ss (5) and that it must be served by the court. The term "court"
is defined in s 1 of the Act, as the "High
Court or the
magistrates' courts". Although s 4(2) could have been more
clearly worded, it is obvious in my view that the
Legislature did not
intend physical service of the notice by the court in the person of a
Judge or magistrate. On the other hand,
mere issue of the notice by
the Registrar or clerk of the court would not suffice. What is
intended, I believe, is that the contents
and the manner of service
of the notice contemplated in ss (2) must be authorised and directed
by an order of the court concerned.
[12] Section 4(3) provides that
notice of the proceedings must be served in accordance with the rules
of the court in question.
Accordingly, for purposes of an application
in the High Court, such as the one under consideration, s 4(3)
requires that a notice
of motion as prescribed by Rule 6 be served on
the alleged unlawful occupier in the manner prescribed by Rule 4 of
the Rules of
Court. It is clear, in my view, that this notice in
terms of the Rules of Court is required in addition to the s 4(2)
notice. Any
other construction will render the requirement of s 4(3)
meaningless.
And in para 15 he said:
'Section 4
does not indicate how the court's directions regarding the s 4
notice
are to be obtained. The common-sense approach to the section appears
to dictate, however, that the applicant can approach the court
for
such directions by way of an ex parte application.'
[8] It is clear to me that the appellants failed to
appreciate the fine but crucial distinction between the procedures
for applications
in the high court in contrast to the magistrate's
court. Rule 55(1) of the magistrates' courts rules reads as follows:
‘
Except where otherwise
provided, an application to the court for an order affecting any
other person shall be on notice, in which
shall be stated shortly the
terms of the order applied for and the time when the application will
be made to the court. Delivery
of such notice shall be effected in
the case where the State is the respondent, not less than 20 days and
in other cases not less
than 10 days before the date of hearing.'
[9] Unlike the procedure prescribed by rule 6 of the
uniform rules, rule 55(1) of the magistrates' courts rules does not
create
a procedure whereby an application in opposed matters has to
be set down by way of a notice after all the papers have been filed

as in the high court. On the contrary, in terms of rule 55(1), upon
the issue of the application, such application must state the
terms
of the order sought and the date and time when the application will
be heard. The result is that on being served with the
application, a
respondent will be fully informed of the nature of the application,
the order sought, the date, time and court when
and where the
application will be heard.
Section
4(2) in itself does not require an additional notice. All it requires
is that written and effective notice of the proceedings be
served on
the unlawful occupier and the municipality 14 days before an order
for eviction could potentially be granted. It follows
logically that
Cape Killarney
is no
authority for the proposition that s 4(2) requires two separate
notices to be served on a respondent in the magistrates' courts.
[10] Reverting to the facts of the two cases on appeal,
it is not in dispute that, although the notices were not contained in
separate
and distinct documents and not served separately, the
appellants were served with notices duly authorised by the respective
magistrates
that, read together, complied with ss 4(2) and (5).
[11] It is important not to lose sight of the central
role played by the courts during the issuing of the notice
contemplated in
s 4. Before a court authorises a s 4(2) notice, the
notice must contain all the essential information prescribed by s
4(5). This
is consonant with one of the primary ideals of PIE as
reflected in its preamble, which is to regulate the eviction of
unlawful
occupiers from land in a fair manner and, quite importantly,
to ensure that no one is evicted from their home or have their home

demolished without an order of court made after considering all the
relevant circumstances as contemplated by s 4(8).
[12] In the present appeals both applications were
properly served by the sheriff on the two appellants in a manner
approved by
the court concerned. Both appellants understood what the
applications were all about and duly instructed legal representatives
to represent them. In opposing the applications both appellants filed
affidavits setting out their defences to the applications.

Significantly both appellants were represented by legal
representatives when their applications were heard. There is no doubt
that the object of s 4(2) to give the occupiers sufficient and
effective notice of the intended eviction was achieved.
Notwithstanding
this the appellants contend that both applications
should have been dismissed on the simple basis that there was no
additional
notice served on them.
However,
counsel for the appellants (the same counsel appeared for the
appellants in both cases) was unable to point to any section
in PIE
which requires an additional notice. For the reasons I have given, I
find this argument untenable. But there is an additional
reason why
neither appeal could succeed even if the provisions of s 4 of
PIE and/or the rules of the magistrates' court had
not been strictly
complied with. The considerations underlying this additional reason
appear from the dicta that follow.
In
Moela v Shoniwe
2005
(4) SA 357
(SCA) para 9, Streicher JA said:
'Here the contents and manner of
service of the notice had not been authorised and directed by an
order of court. However, the object
of s 4(2) is clearly to ensure
that the unlawful occupier and municipality are fully aware of the
proceedings and that the unlawful
occupier is aware of his rights
referred to in s 4(5)(d). It may well be that that object, in
appropriate circumstances, may be
achieved notwithstanding the fact
that service of the notice required by s 4(2) had not been authorised
by the court. That may,
for example, be the case if at the hearing it
is clear that written and effective notice of the proceedings
containing the information
required in terms of s 4(5) had in fact
been served on the unlawful occupier and municipality 14 days before
the hearing. . . .'
And in
Unlawful Occupiers, School
Site v City of Johannesburg
2005 (4) SA 199
(SCA) para 24 where Brand JA stated:
'The question whether in a
particular case a deficient s 4(2) notice achieved its purpose,
cannot be considered in the abstract.
The answer must depend on what
the respondents already knew. The appellant's contention to the
contrary cannot be sustained. It
would lead to results which are
untenable. Take the example of a s 4(2) notice which failed to comply
with s 4(5)(d)
in
that it did not inform the respondents that they were entitled to
defend a case or of their right to legal aid. What would be
the
position if all this were clearly spelt out in the application
papers? Or if on the day of the hearing the respondents appeared
with
their legal aid attorney? Could it be suggested that in these
circumstances the s 4(2) [notice] should still be regarded as
fatally
defective? I think not. In this case, both the municipality's cause
of action and the facts upon which it relied appeared
from the
founding papers. The appellants accepted that this is so. If not, it
would constitute a separate defence. When the respondents
received
the s 4(2) notice they therefore already knew what case they had to
meet. In these circumstances it must, in my view,
be held that,
despite its stated defects, the s 4(2) notice served upon the
respondents had substantially complied with the requirements
of s
4(5).'
[13] During argument, counsel for the appellants was
unable to indicate any prejudice suffered by the appellants due to
the failure
by the respondents to serve separate notices on separate
occasions on them. This is so because the applications served on the
appellants
complied substantially with s 4(2) and, quite importantly,
contained all the necessary information prescribed by s 4(5). There
is no doubt that both appellants were fully apprised of the cases
against them. To put the matter beyond doubt, both appellants
were
legally represented when the matters were heard in court. To my mind
there can be no better proof of effective service of
the written
notice as demanded by s 4(2) than in the present two matters. If they
had intended to place any matter before the respective
courts for
consideration the appellants had the opportunity to do so. Instead
they elected to rely on technical defences rather
than dealing with
the merits of their cases.
[14] Viewed against the main purpose of PIE, the real
issue is not so much whether or not there are two separate notices.
The real
and proper enquiry should be whether there has been
effective notice of the proceedings on the occupier in the sense that
a court
is satisfied that the occupier has been fully informed of the
impending eviction, the grounds therefor, the date and place of
hearing
and the right to appear in court and be represented. This is
exactly what happened in the two appeals. Accordingly I am satisfied

that effective notice was given to the appellants. To hold otherwise
would promote slavish adherence to form above substance.
[15] In order to avoid any possible confusion, I find it
appropriate to encapsulate what I believe to be the import of what we
have
decided in this case:
A. With regard to evictions under PIE
the procedure in the high court is determined by s 4 of PIE and
the uniform rules of
the high court. The combined effect of these
statutory provisions has been explained by this court in
Cape
Killarney Property Investments (Pty) Ltd v Mahamba
2001 (4) 1222 (SCA). As far as proceedings in the high court are
concerned, nothing I have said in this case must be understood
to
detract from that explanation.
B. The procedure in the magistrates’ courts is
different from the high court because of the difference in the
provisions of magistrates’
courts rule 55, on the one hand, and
rule 6 of the uniform rules of the high court, on the other.
C. In the magistrates’ court two notices contained in
two separate documents are not required. One document will suffice as
long
as:
(1) the content of the document and the manner of
service is approved by the magistrates’ court having jurisdiction,
as envisaged
by s 4(2) of PIE, pursuant to a preceding
ex
parte
application.
(2) the contents of the document comply with the
provisions of s 4(5) of PIE, with rule 55 of the magistrates’
courts rules and
the court order under (1).
(3) the document is served on the respondent and the
municipality concerned in accordance with s 4(2) of PIE, the
magistrates’
courts rules pertaining to service and the court order
under (1).
D. When considering the order to be granted under C the
court is obliged to ensure that the notice will be 'effective' in the
circumstances
of the case having regard to the intent and import of
PIE and s 26(3) of the Constitution.
E. The fact that the notice served on the respondent is
in some respect deficient of s 4(2) or rule 55 will not necessarily
be fatal
if the notice achieved the purpose contemplated by these
statutory provisions. Whether that purpose had been achieved cannot
be
considered in the abstract, but will depend on the facts of each
case.
[16] In the result, the following orders are made:
In
Theart v Deon N.O
(appeal No 483/08):
On appeal from High Court, Cape Town (R B Cleaver and D
H Zondi JJ sitting as court of appeal from the magistrates’ court).
1 The appeal is dismissed with costs.
2 The order of the court a quo is amended to read as
follows:
‘
(a) The appeal is dismissed with costs.
(b) The order of the court a quo is amended to read as
follows:
“
(i) The application is granted with costs.
(ii) The first respondent and others occupying through
him are ordered to vacate the premises at 65 Van der Stel Street,
Stellenbosch
within one month.
(iii) Failing compliance with the order in (ii) the
sheriff is authorised to evict the first respondent and others
occupying through
him from the said property together with their
belongings and to hand over vacant possession to the applicant.”’
3 The one month period referred to in (b)(ii) shall be
calculated from the date of this judgment.
In
Senekal v Winskor 174 (Pty)
Ltd
(appeal No 007/09):
On appeal from High Court, Cape Town (Veldhuizen J and E
T Steyn AJ sitting as a court of appeal from the magistrates’
court).
1 The appeal is dismissed with costs.
2 The order of the court a quo is amended to read as
follows:
‘(a) The appeal is dismissed with costs.
(b) The order of the court a quo is amended to read as
follows:
“
(i) The application is granted with costs.
(ii) The respondent and all others occupying through her
are ordered to vacate the premises at erf 16274, being 1
Hawthornedene
Road, George, within fourteen days.
(iii) Failing compliance with the order in (ii) the
sheriff is authorised to evict the respondent and others occupying
through her
from the said property together with their belongings and
to hand over vacant possession to the applicant.”’
3 The period of fourteen days referred to in (b)(ii)
shall be calculated from the date of this judgment.
………………
..
L O BOSIELO
JUDGE OF APPEAL
APPEARANCES:
FOR APPELLANT CASE 483/08: B C
Wharton
Instructed by
R P Totos Attorney, Cape
Town
Symington & De Kock,
Bloemfontein
FOR APPELLANT CASE 007/09: B C
Wharton
Instructed by
R P Totos Attorney, Cape
Town
Symington & De Kock,
Bloemfontein
FOR RESPONDENT CASE 483/08: M
Verster
Instructed by
Van der Spuy & Vennote, Cape
Town
Phatshoane Henney Ing,
Bloemfontein
FOR RESPONDENT CASE 007/09: C J
H Maree
Instructed by
J
C Van der Berg Attorneys, George
Hill, McHardy & Herbst,
Bloemfontein