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[2019] ZAGPPHC 258
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Rauch v Pixie Dust Trading 134 (Pty) Ltd (52901/2018) [2019] ZAGPPHC 258 (11 June 2019)
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
CASE NUMBER: 52901/2018
11/6/2019
ELSA
RAUCH
Applicant
and
PIXIE
DUST TRADING 134 (PTY) LTD
Respondent
In
Re:
Eviction Application between:
PIXIE
DUST TRADING 134 (PTY) LTD
Applicant
and
ELSA
RAUCH
First Respondent
THE
CITY OF TSHWANE MUNICIPALITY
Second Respondent
RUDI
RAUCH
Third Respondent
TONI
RAUCH
Fourth Respondent
JUDGMENT
SM
MARITZ, AJ
Introduction
[1]
The
Applicant seeks an order in terms of Rule 30(1) of the Uniform Rules
of Court that the Respondent's irregular step in respect
of its
Notice of Motion to the eviction application by setting the eviction
application down for 12 September 2018 and directing
the Applicant to
file an Answering Affidavit by 4 September 2018 be set aside. The
Applicant, in the application in terms of Rule
30(1), is the First
Respondent in an application for eviction instituted by the
Respondent. I will henceforth refer to the parties
respectively as in
the application in terms of Rule 30(1), the Applicant, being Elsa
Rauch (" Rauch or Applicant"), and
the Respondent, being
Pixie Dust Trading 134 (Pty) Ltd ("Pixie Dust or Respondent").
The matter came before me for adjudication
on 29 April 2019 and the
judgment was then reserved.
Relief
sought
[2]
The
Applicant seeks the following relief in her Notice of Motion, dated
28 August 2018, in support of her application in terms of
Rule 30:
1.
That the Applicant's (Respondent in this
application) irregular step in respect of the Notice of Motion by
setting the main application
down for 12 September 2018 and directing
the First Respondent (Applicant in this application) to file an
Answering Affidavit in
the main application by 4 September 2018, be
set aside, which irregular step is detailed in the
[4]
The
Respondent seeks the eviction of the Applicant from the property
based thereon that it is the registered owner of the property.
The
property allegedly previously belonged to the Applicant's ex-husband
prior to divorce of which she obtained partial ownership
of the
property as she was awarded a third of the estate of her ex-husband
at the time in subsequence of the divorce action. She
was supposed to
purchase the property outright, but for various reasons it could not
be effected. The Director of the Respondent,
Mr Derick Knoll, who the
Applicant alleges always had displayed romantic feelings towards her,
offered to purchase the property
on her behalf from her ex-husband,
until such time that she was able to purchase the property from him
personally or from his company,
being the Respondent. It is further
stated in the Applicant's Founding and Replying Affidavits that she
has been in control and
occupation of the property since at least
1994, therefore for the preceding 24 years. In paragraph 7.4.3 of the
Applicant's Replying
Affidavit she stated that she has been residing
in the property since 1994 where she,
inter
alia,
raised her two children, which
are cited as the Third and Fourth Respondents in the eviction
application and who is currently not
residing with her anymore.
During July 2015 the Respondent's then attorney of record wrote two
letters of demand to the Applicant
demanding that she entered into a
written agreement of lease, failure to do so will result in eviction
proceedings being instituted
against her. Copies of these letters are
attached to the Applicant's Founding Affidavit, marked as Annexures
"11"and
"12 ", respectively. The Applicant has
refused to entered into a lease agreement with the Respondent and
this resulted
in the current eviction application instituted against
her.
[5]
Although
a copy of the eviction application is attached to the Applicant's
Founding Affidavit, marked as Annexure "15",
it is not
before me for adjudication.
[6]
There
is no contention that the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act, 19 of 1998, is not applicable
("the
PIE Act").
[7]
The chronological sequence of events,
which led to this application are briefly as follows:
•
The
eviction application was issued on 26 July 2018 and served per
Sheriff on the Applicant on 6 August 2018.
•
The
eviction application was enrolled on the unopposed motion roll for
hearing on 12 September 2018. The date of the hearing was
determined
by the Respondent in his Notice of Motion to which the eviction
application is attached.
•
The
Applicant served her Notice of Removal of Cause of Complaint in terms
of Rule 30(1) on the Respondent's attorney of record on
13 August
2018. The relevant part of the Notice of Removal of the Cause of
Complaint reads as follows:
"1.
The Applicant (Respondent in this application) intends to bring this
application on the 12
th
day of September 2018, which
application was issued on the 26
th
day of July 2018 and
served on the 1st Respondent (Applicant if this application), by way
of the Sheriff, on the 6th day of August
2018.
2.
Accordingly to the application,
the 1st Respondent (Applicant in this application) may serve its
notice of intention to oppose on
or before the 14
th
day of August 2018 and thereafter serve its answering affidavit on or
before the 4th day of September 2018.
3.
After the process above, the
applicant (Respondent in this application) must apply to the court on
an Ex parte basis, after litis
contestation, in order to receive
authorisation to serve a Section 4(2) notice in terms of the PIE Act.
In terms of Section 4(2)
of the PIE Act, such effective notice must
be served on the alleged unlawful occupier at least 14 (fourteen)
days before the hearing
of the proceedings.
4.
The 1
st
Respondent (Applicant in this application) has not been allowed
adequate time to oppose this matter, and may still oppose this
matter, if the respondent (Applicant in this application) so wishes,
on or before the 14
th
August 2018 where after the respondent (Applicant is this
application) may deliver its answering affidavit in accordance with
the Rules of Court.
5.
The Applicant may only approach
the Honourable Court on an Ex parte basis after expiry of the time
for opposition, or after the
Respondent (Applicant in this
application) has duly answered within the time allowed for delivery
of such answering affidavit.
6.
Accordingly, the Applicant
(Respondent in this application) has not complied with the Rules of
Court by having the matter enrolled
for the 12
th
day of September 2018, and the non-compliance thereof constitutes an
irregular step.
7.
Further, the Applicant
(Respondent in this application) has not complied with Section 4(2)
of the PIE Act, as the service of
a
notice in terms of Section 4(2) must
be made at least 14 (fourteen) days before hearing and as directed by
the Court after an Ex
parte application. As such, the Applicant
(Respondent in this application) has not adhered to Section 4(2) of
the PIE Act, nor
according to the Rules of Court, as the s1t
Respondent (Applicant in this application) may still oppose this
matter, thereafter
deliver an answering affidavit. Only after last
mentioned may the Applicant serve
a
Section 4(2) notice, after
authorisation was received on an Ex parte basis, with at least 14
(fourteen) days remaining before hearing
of the matter."
•
The
Applicant served a Notice of Intention to Oppose the eviction
application on 14 August 2018, in order to prevent the Respondent
from obtaining judgment against her in the eviction application on an
unopposed basis as well as to protect and safeguard her interests
in
the eviction application. It was contended on behalf of the Applicant
that the Notice of Intention to Oppose served on 14 August
2018, was
only a provisional Notice of Intention to Oppose.
•
The
relevant part of the Respondent's Notice of Motion Eviction
Application is as follows:
"TAKE NOTICE THAT
the
abovementioned Applicant,
PIXIE
DUST TRADING 134 (PTY) LTD,
intends
to make application on
12
SEPTEMBER 2018
alternatively
as soon thereafter as counsel for the Applicant may be heard in this
court, for an order in the following terms:
1.
The First Respondent and any
person occupying through the First Respondent, the property known as
PORTION 12 OF ERF 3051 FAERIE
GLEN EXTENSTION 11,
situated
at 4 Grassridge, Valley Farm Villas, Cliffendale Avenue, Faerie Glen,
is hereby directed and ordered to vacate the property
(“eviction”).
2.
The eviction as set out above,
shall take place within thirty (30) calendar days after the granting
of this order.
3.
…
4.
…
5.
…
6. …
FURTHER TAKE NOTICE THAT...
FURTHER TAKE NOTICE THAT...
FURTHER TAKE NOTICE THAT
if
you intend opposing this application, you are required to:
(a)
Notify the Applicant's
(Respondent in this application) attorney in writing on or before the
expiry of the 5
th
day after service of this application on you;
(b)
within 15 days after such notice
has been delivered, deliver your answering affidavit, it any; and..."
•
The
15 days referred to in the abovementioned Notice of Motion expired on
4 September 2018, by which date the Applicant (Respondent
in eviction
application) should have filed her Answering Affidavit.
•
On
15 August 2018 the Respondent's attorney of record wrote a letter
(Annexure "13" attached to the Applicant's Founding
Affidavit) to the Applicant's attorney of record, the relevant part
thereof is as follows:
"1.
….
2.
We note the contents of your
client's notice in terms of Rule 30(1) served on our offices on 13
August 2018 as well as your client's
Notice of her Intention to
Oppose the Eviction Application, served on our offices on 14 August
2018.
3.
We hereby reiterate our
undertaking in terms of paragraph 10.8 of our client's Founding
Affidavit that section 4(2) of the PIE Act
will be complied with
prior to seeking an order for your client's eviction.
4.
In light of your client's Notice
of Intention to Oppose and in line with the SCA judgment in Cape
Killarney
2001 (4) SA 1222
, naturally our client will only be able to
pursue an ex-parte section 4(2) Application once the High Court's
Registrar has allocated
a date for hearing on the opposed roll. To
this end, we confirm that your client's Answering Affidavit is due
on/or before 4 September
2018.
5.
With regard to your client's
Notice in terms of Rule 30(1), we place the following on record:
•
Our
client has complied with the Uniform Rules of Court, and your
client's view to the contrary, is fundamentally misconceived.
•
Your
client's procedural benefit in terms of section 4(2) of PIE has
always been and remains intact.
•
Over
and above the aforementioned, your client has not pointed to any
prejudice nor can any possible prejudice be gleaned from the
allegations made in the Rule 30(1) notice.
6.
In the circumstances, we invite
you to withdraw your client's Rule 30(1) notice and tender the wasted
costs occasioned by the flawed
notice on/or before close of business
on Friday 17 August 2018, failing which, we hereby inform of our
client's intention to oppose
any Application in terms of Rule 30(1).
To this end we inform that our client will seek an appropriate
attorney and client scale
costs order should your client persist with
her unfounded complaint in terms of Rule 30(1)."
•
On
20 August 2018 the Applicant's (First Respondent in eviction
application) attorney of record replied in a letter (Annexure "14"
attached to the Applicant's Founding Affidavit) to the abovementioned
letter of the Respondent’s attorney of record. The
relevant
part thereof is as follows:
"…
We fundamentally differ from
you regarding the process that you have adopted. We are not going to
accept your invitation to withdraw
the
Rule
30(1) notice served on your offices on the 13
th
of August 2018... When the ten days referred to in the Court Rules
have expired, we will proceed with an application in terms of
Rule
30(1). Obviously, the service and filing of an opposing affidavit
will be held in abeyance until such time as the Court has
ruled on
our Rule 30(1) application.
…
"
•
On
28 August 2018 the Applicant served her application in terms of Rule
30 on the Respondent's attorney of record.
•
On
28 August 2018 the Respondent's attorney of record served a Notice of
Intention to Oppose the Applicant's application in terms
of Rule 30.
•
On
18 September 2018 the Respondent served its Answering Affidavit in
terms of the Rule 30 application on the Applicant's attorney
of
record.
•
The
Applicant served her Replying Affidavit in terms of the Rule 30
application on the Respondent's attorney of record on 3 October
2018.
Legal
framework in respect of Rule 30
[8]
Rule 30 of the Uniform Rules of Court
reads as follows:
(1)
A party to a cause in which an irregular
step has been taken by any other party may apply to court to set it
aside.
(2)
An application in terms of subrule (1)
shall be on notice to all parties specifying particulars of the
irregularity or impropriety
alleged, and may be made only if-
1.
(a)
the applicant has not himself taken
a further step in the cause with knowledge of the irregularity;
2.
(b)
the applicant has, within ten days
of becoming aware of the step, by written notice afforded his
opponent an opportunity of removing
the cause of complaint within ten
days;
3.
(c)
the application is delivered within
15 days after the expiry of the second period mentioned in paragraph
(b)
of
subrule (2).
(3)
If at the hearing of such application
the court is of opinion that the proceeding or step is irregular or
improper, it may set it
aside in whole or in part, either as against
all the parties or as against some of them, and grant leave to amend
or make any such
order as to it deems fit.
(4)
Until a party has complied with any
order of court made against him in terms of this rule, he shall not
take any further step in
the cause, save to apply for an extension of
time within which to comply with such order.
(5)
…
[9]
It is important to state that an application in terms of Rule 30 will
be granted only
where the irregular step would cause prejudice to the
Applicant seeking to set it aside. See :
Trans-African Insurance
Co
Ltd v Maluleka
1956 (2) SA 273
(A) at 276F-H; SA
Metropolitan Lewensversekeringmaatskappy Bpk v Louw NO
1981 (4) SA
329
(0) at 333D-F; De Klerk v De Klerk
1986 (4) SA 424
(W) at
426F-427B; Consani Engineering (Pty) Ltd v Anton Steinecker
Maschinenfabriek GmbH
1991 (1) SA 823
(T) at 824G-H and Sasol
Industries (Pty) Ltd tla Electrical Repair Engineering )Pty) Ltd t/a
LH Marthinusen
1992 (1) SA 466
(W) at 469G.
The prejudice that is
referred to is prejudice which will be experienced in the further
conduct of the case if the irregular step
is not set aside. There is
no prejudice if the further conduct of the case is not affected by
the irregular step and the irregular
step can simply be ignored.
Argument
[10] Mr
Duvenhage on behalf of the Respondent raised 2 points
in
limine
in
argument as well as in the Respondent's Answering Affidavit in
respect of the Applicant's application in terms of Rule 30. Although
I will briefly state the points
in
limine
I do not
intend to rule on them separately, but will deal with the application
in its totality.
[11]
The first point
in
limine
raised by the Respondent is
that the Applicant has failed to allege or showcase any procedural
prejudice. He contended that there
must have been a litigious step by
an opposing litigant which can be considered 'irregular' either in
terms of the rules of court
or otherwise and the 'irregular step'
must have caused, or will cause, actual procedural prejudice for the
complaining litigant,
if required to continue with the litigation.
[12]
The crux of Mr Duvenhage's argument was
that the Applicant has failed to even mention the word 'prejudice' in
her Founding Affidavit
and further that the Applicant has failed to
showcase any procedural prejudice, particularly considering the
following:
(a)
The timing of a litigant in pursuing an
Ex-parte
section
4(2) application, depends entirely, on whether an unlawful occupier
gives notice of her intention to oppose the eviction
application or
not;
(b)
It is common cause that the Applicant
filed a Notice of Intention to Oppose the main eviction application
on 14 August 2018;
(c)
The effect of the Applicant's Notice of
Intention to Oppose is that the Respondent can now only launch and
pursue an
Ex parte
application,
once the court's registrar has allocated a date for the hearing of
this matter on the opposed motion roll and as a
result thereof the
matter should be ripe for hearing and all pleading (Founding,
Answering and Replying Affidavits plus heads of
argument) should be
filed.
[13]
In
paragraphs 13 and 14 of Mr Duvenhage's heads of argument he stated
that, had the Applicant not been represented by attorneys
of record
and had she not filed a Notice of Intention to Oppose the main
eviction application, then and only in that event, the
Respondent
would have theoretically been precluded from seeking an eviction
order in terms of its Notice of Motion on 12 September
2018.
Furthermore, Mr Duvenhage conceded that had the matter been
unopposed, the Respondent would have had to postponed the eviction
application on 12 September 2018 to a further date, in order to make
provision for enough time to launch, authorise and serve a
section
4(2) notice on the Applicant.
[14]
Mr Duvenhage further stated in paragraph
16 of in his heads of argument and in argument he conceded that the
only error the Respondent
made, is that its Notice of Motion, should
have indicated a date for hearing on the unopposed motion roll,
further along in advance,
to allow the Respondent time to approach
this court on an
Ex parte
basis
after having served its main eviction application and after the
applicant, theoretically, not having delivered a Notice of
Intention
to Oppose. I agree with this contention.
[15]
Mr de Beer on behalf of the Applicant
contended that by determining the date for the hearing of the
eviction application as 12 September
2018 and enrolling the matter on
the unopposed motion roll, the Respondent, as a consequence of the
process adopted by it, was
obliged to comply with section 4(2) of the
PIE Act prior to the hearing on 12 September 2018. Furthermore, by
directing the Applicant
to file her Answering Affidavit within 15
days from the date of delivering her Notice of Intention to Oppose,
as stated by the
Respondent in its Notice of Motion in the eviction
application, on 4 September 2018, which could not have been effected
prior to
compliance with section 4(2) of the PIE Act, which should
have been done at least 14 days prior to 12 September 2018, would be
severally prejudicial to the Applicant as she will have less notice
and substantially less time to put her case before court than
is the
case with Respondents in ordinary motion proceedings and that will
render the provisions of section 4(3) and section 4(4)
of the PIE Act
meaningless. He further stated that the provisions of section 4(2) of
the PIE Act is peremptory and that the notice
in terms of section
4(2) of the PIE Act is in addition to and not a substitute for the
notice required by Court Rule 6. It appears
from the Applicant's
Notice of Removal of Complaint that it is the case of the Applicant
that the Respondent's irregularity pertains
to the fact that the
Respondent did not allow sufficient time prior to 12 September 2018
for the filing of the affidavits and to
comply with the section 4(2)
notice.
[16]
Mr de Beer further contended that the
Applicant will be severely prejudiced if the Respondent is successful
in its eviction application
despite following due process. He pointed
out that the Applicant has been residing in the said property since
1994, approximately
24 years, that it is her primary dwelling, that
she is the head of her household and that she has raised her two
children there.
[17]
I agree with Mr de Beer that the
Applicant will be severely prejudiced if it is found that the
Respondent is successful in its eviction
application despite
following due process, but I do not agree that there was an
'irregular step' which caused actual procedural
prejudice for the
Applicant, if required to continue with the litigation, as will be
set out hereinunder.
[18]
I do not think it is necessary to rule
on this point separately. I will deal with the application in its
totality.
[19]
Mr Duvenhage raised a second point in
limine that Rule 30 is not the correct procedure to follow if
non-compliance with a statutory
provision is alleged. It is trite
that Rule 30 is not intended to serve as a basis for an objection to
procedural irregularities
in respect of legislation. The correct
procedure is either to object by delivering a special plea or to
raise a point in limine.
[20]
Mr Duvenhage pointed out that the crux
of the Applicant's application is set out in paragraph 13.7 of her
Founding Affidavit where
it is stated as follows:
"13.
7
This
interlocutory application is specifically based on Section 4, read
with subsection (2) of Act 19 of 1998, the legislation referred
to as
"the PIE Act" (with reference to the Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act),
which the
Applicant has erroneously interpreted."
[21]
Mr
de Beer argued that the basis of the Applicant's complaint is against
the irregular procedure followed by the Respondent to direct
the
Applicant to comply with the time periods stipulated in its Notice of
Motion in the eviction application to deliver an Answering
Affidavit
on 4 September 2018, which cannot be effected prior to compliance
with section 4(2) of the PIE Act. As I understand Mr
de Beer correct
the objection is not against the non-compliance with the provisions
of section 4(2) of the PIE Act, but rather
against the fact that the
Respondent demanded delivery of an Answering affidavit in compliance
with the time periods as stipulated
in its Notice of Motion to the
eviction application. It was further the case of Mr de Beer on behalf
of the Applicant that the
time periods for filing an Answering
Affidavit will only commence once there was compliance with section
4(2) of the PIE Act and
as such any request prior to that to deliver
an Answering Affidavit in terms of the time periods stipulated in the
Notice of Motion
to the eviction application is premature and
constitutes an irregular step. The basis of the Applicant's complaint
is further evident
from the relief sought in her Notice of Motion in
the application in terms of Rule 30.
[22]
Although I agree with Mr Duvenhage that
Rule 30 is not the correct procedure to follow if non-compliance with
a statutory provision
is alleged, I am not going to rule on this
issue separately, as I was requested by both parties to interpret the
provisions of
section 4(2) of the PIE Act with specific reference to
the Practice Manual of this division of the High Court and as such I
will
deal with the matter in its totality.
[23]
Mr Duvenhage on behalf of the Respondent
referred to
Cape Killarney Property
Investments (Pty) Ltd v Mahamba and Others
2001 (4) SA 1222
(SCA)
("Cape Killarney judgment"),
and more specifically paragraph [14] thereof, as authority to direct
the Applicant to file
her Answering Affidavit on 4 September 2014,
and as authority that only once all the papers on both sides have
been served, the
Respondent should comply with the provisions of
section 4(2) of the PIE Act. I will address this point hereinunder.
Legal
Framework in respect of section 4 of the PIE Act and the Practice
Manual
[24] In the Cape
Killarney judgment the Supreme Court of Appeal prescribed the
procedure to be followed
by an Applicant in proceedings for the
eviction of unlawful occupiers.
[25] The
provisions of section 4 of the PIE Act are peremptory. (See
Cape
Killarney Property Investments (Ply) Ltd v Mahamba and Others
2001
(4) SA 1222
SCA at [11J and [17]; Sam Kadish Moela v Tichaona Abel
Shoniwe- case number 54/2004 (SCA) (unreported) at [71].
[26] The Supreme Court
of Appeal in the Cape Killarney judgment held that the 14-day notice
period provided
for in section 4(2) of the PIE Act must be given in
addition to the normal notice given to a Respondent in terms of Rule
6 of the
Uniform Rules of Court. If that was not the case it will
render sections 4(3) and 4(4) of the PIE Act meaningless. It
accordingly
follows that where a person is to be evicted from his/her
residence he/she is afforded a greater opportunity in preparing
his/her
defence(s) or formulating his/her submissions than he/she
would have under the Rules to put all the circumstances that he/she
alleges
to be relevant before the court.
(Cape
Killamey judgment at [12] and [201].
Furthermore,
given that the PIE Act has its roots in,
inter
alia,
section 26(3) of the
Constitution of the Republic of South Africa, 108 of 1996, the
purpose of section 4(2) clearly is to afford
respondents in eviction
proceedings under the PIE Act a better opportunity than they would
otherwise have had under the Rules of
the court concerned to put all
the circumstances they allege to be relevant before the Court.
(Cape
Killamey judgment at [20]).
[27]
In paragraph [14] of the
Cape
Killamey
judgment the Honourable Mr
Justice Brand AJA held as follows:
"[14] Section 4(5)(b)
requires the s 4(2) notice to indicate the date upon which the court
will hear the eviction
proceedings
.
In High Court proceedings by way of application this date of hearing
will be determined only after all the papers on both sides
have been
served. It follows. in my view. that it is only at that stage that
the s 4(2) notice can be authorised and directed by
the Court
.
From the judgment of the learned Judge a quo (at 7611-J) it appears
that according to his understanding of s 4(2) the notice contemplated
by that section is to precede service of the notice of motion in
terms of the Rules and that in fact the minimum period of 14 days
stipulated in the section is to elapse before the eviction
proceedings can be instituted. As appears from what I have already
said, this interpretation cannot be supported."
[Own
emphasis]
[28]
The provisions of section 4 of the PIE
Act, which are of particular relevance to this matter are the
following:
"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 any 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 the proceedings are being
instituted in terms of sub-section (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 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."
[29]
The Chapter 15 of the Practice Manual
reads as follows:
"15.10
EVICTION WHERE THE
PREVENTION OF ILLEGAL EVICTION FROM AND UNLAWFUL
OCCUPATION OF LAND ACT 19 OF 1998
APPLIES
1.
The application for eviction must
be a separate application. The procedure to be adopted (except in
urgent applications) is as follows:
1.1
The notice of motion must follow
Form 2(a).
1.2
The notice of motion must give a
date when the application will be heard in the absence of a notice of
intention to oppose.
2.
After the eviction application
has been served and no notice of intention to oppose has been
delivered, or if a notice of intention
to oppose has been delivered
at
a
stage
when
a
date
for the hearing of the application has been determined, the applicant
may bring an ex parte interlocutory application authorising
a
section 4(2)
notice and for
directions on service.
3.
When determining a date for the
hearing of an eviction application, sufficient time must be allowed
for bringing the ex parte application,
for serving the
section 4(2)
notice and for the 14 day notice period to expire.
4.
If the eviction application is
postponed in open court on a day of which notice in terms of
section
4(2)
was duly given, and if the postponement is to a specific date,
it will not be necessary to serve another
section 4(2)
notice in
respect of the latter date.
5.
The local, provincial or national
authorities that may be affected by an eviction order must be clearly
identified."
[30] The
relevant part of Chapter 13 of the Practice Manual read as follows:
"13.9
ENROLMENT
1.
Unopposed motions
2.
Opposed motions
2.1
A
party to an opposed motion may apply to the registrar to allocate a
date for the hearing of that application in terms of rule
6(5)(f) of
the Uniform Rules of Court
only.
if, in addition:
(a)
The papers have been indexed and
paginated; and
(b)
The heads of argument have been
served and filed."
Conclusion
[31] The
Respondent issued a Notice of Motion in the eviction application,
which complied with Form 2(a).
In the Notice of Motion a period of
not less than five days from the date of service of the eviction
application was allowed to
deliver a Notice of Intention to Oppose.
The Respondent has determined a date for the hearing of the eviction
application in the
absence of the filing of a Notice of Intention to
Oppose. The date determined for the hearing was 12 September 2018.
The Respondent
duly complied with paragraphs 1.1, 1.2 and 1.3 of
Chapter 15 of the Practice Manual. The Applicant has served a Notice
of Intention
to Oppose on 14 August 2018.
[32]
The paragraph 2 of the Practice Manual
reads as follows:
''After the eviction
application has been served and no notice of intention to oppose has
been delivered
or
if a notice of intention to oppose has been delivered at
a
stage when
a
date for the
hearing of the application has been determined, the applicant may
bring an ex parte interlocutory application authorizing
a
section 4(2)
notice and for directions on service."
[33]
In this application a date for the
hearing has been determined, being 12 September 2018, in the absence
of a Notice of Intention
to Oppose been delivered. The Applicant has
served a Notice of Intention to Oppose on 14 August 2018. The date
determined for the
hearing in the Notice of Motion to the eviction
application, being 12 September 2018, is only relevant, if the
eviction application
has not been opposed. Only in the event that no
Notice of Intention to Oppose was delivered, the Respondent should
have been obliged
to comply with the section 4(2) notice at least 14
days prior to 12 September 2018.
[34] It is
important to note that the Practice Manual does not specifically
state that all the papers should
be served once a Notice of Intention
to Oppose has been delivered. It only states :
"if a notice
of intention to oppose has been delivered at
a
stage when
a
date for the hearing of the application
[38]
It follows that once the application is
ripe for hearing and a date for the hearing on the opposed motion
roll has been determined,
sufficient time must be allowed for
bringing the
Ex parte
application,
for serving the section 4(2) notice and for the 14 day notice period
to expire. As such the notice in terms of section
4(2) is in addition
to the notice required by Court Rule 6 and in compliance with
sections 4(2), 4(3) and 4(4) of the PIE Act.
[39]
I found that the Respondent complied
with the directives of the Practice Manual as well as with what is
stated in the Cape Killarney
judgment and the procedure adopted by
the Respondent does not constitute an irregular step.
[40]
As a result, the Applicant's application
should be dismissed.
Costs
[41]
Upon
consideration of the circumstances and facts of this interlocutory
application I exercise my discretion in respect of costs
and make an
order as set out below.
Order
[42]
An order is made in the following terms:
1.
The
Application is dismissed;
2.
The
Applicant (First Respondent in the eviction application) is ordered
to deliver her Answering Affidavit within 15 (fifteen) days
from date
of this order; and
3.
The
Applicant (First Respondent in the eviction application) is ordered
to pay the costs of this application on a party and party
scale.
BY
ORDER
SM
MARITZ AJ
ACTING
JUDGE OF THE HIGH COURT
Appearances:
Counsel
for Applicant:
Adv J de Beer
Applicant's Instructing Attorney:
Couzyn Hertzog &
Horak Inc.
Counsel for Respondent:
Adv A Duvenhage
Respondent's
Instructing Attorney:
Natalie Visagie Inc.