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[2018] ZAECMHC 45
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Ndabankulu v Ndabankulu and Another (CA&R33/2018) [2018] ZAECMHC 45 (17 August 2018)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, MTHATHA
CASE
NO:
CA&R33/2018
Date
heard
:
15
August 2018
Date
delivered
:
17
August 2018
In
the matter between:
VELISO
FAGAN
NDABANKULU
Appellant
and
NKOSIYABO
NDABANKULU
First
Respondent
INGQUZA
HILL LOCAL
MUNICIPALITY
Second
Respondent
JUDGMENT
LOWE,
J
BACKGROUND
[1]
In this
matter Appellant applied of an order evicting first respondent from
Site […] FLAGSTAFF with ancillary relief and
costs against
First Respondent.
[2]
It was
clear and indeed common cause that the provisions of The Prevention
of Illegal Eviction from and Unlawful Occupation of Land
Act 19 of
1998 (“PIE”) was applicable.
[3]
The
Magistrate in due course dismissed the application with costs finding
that the Applicant had failed to demonstrate
locus
standi
to evict as either owner or person in charge as envisaged in PIE and
secondly had failed to comply with the procedural provisions
of s 4
of PIE. He also dismissed a rule
nisi
that
had been issued in the matter without costs.
[4]
Appellant
appeals against the Magistrate’s orders to this Court.
[5]
Mr Hobbs
for Appellant correctly
submitted that there were only two issues for determination being
locus standi and the PIE procedural issues.
[6]
First
respondent agreed but argued that Appellant failed on both issues.
THE
FACTS
[7]
In summary
the Appellant contended that Site […] had been registered in
his father’s name in terms of Proclamation
26 of 1936 and that
upon his death had been allocated to him as the only surviving male
heir. In point of fact he makes no
reference to the
Proclamation but in the context of the papers and annexures this must
be understood to be his intention.
As appears below, apart from
a registration document in terms of the Proclamation to his father in
1974 he produces only a letter
from the Veternary District Office
purporting to record him as owner dependent on the original
allocation to his father.
His relevant allegations and
annexures appear below:
“
7.
At all material times I
am the only surviving son and child of the late Sityu Mdedelwa and
Masikanisweni Jane Ndabankulu (my late
parents). By virtue of
being the only biological son and the only surviving son, I am in law
the only heir to inherit my
parents common homestead namely
Site
No. […]
at
Mangquzu
Location, Sipaqeni Administrative Area, Flagstaff
better known or commonly referred to as
Wesa.
8.
My late parents died
interstate leaving behind myself and my late sister Nozimatsha Ndayi
(Born Ndabankulu).
9.
The property or Site No.
[...] aforesaid is my late father’s property and was registered
in his own name. My parents
had died living no other male issue
except me and in terms of the customary law I am the only heir to my
late parents homestead
as a result the Site No. [...] was transferred
to me after my parent’s demise. I annex hereto a letter from
the Department
of Rural Development And Agrarian Reform and the
Permission to occupy the land marked annexure “
VFN
2 & VFN 3”
respectively.
10.
I together with my late
parents aforesaid had been staying in the aforesaid property and we
developed it to be what it is today
without any assistance from
anyone.”
[8]
VFN 2
reads
as follows:
“
Province of the
EASTERN CAPE
DEPARTMENT OF RURAL
DEVELOPMENT AND AGRARIAN REFORM.
3
RD
Floor Office No 37.
Tel:
047
5027741 Fax: 047 5319059
P/Bag x5002, Mthatha
5099.
_________________________________
This is the
confirmation to the information of residential site
According to our
records Mr Veliso F. Ndabankulu appears as the owner of Site No
[...], at Mangquzu, Sipageni Administrative Area
at Flagstaff service
center at NGQUZA HILL Local Municipality in O.R. Tambo District
It also appears that the site was officially
Allotted/demarcated on
02-03-1971 from father P.T.O attached
(Signed)
25/01/2016
SIGNATURE
DATED
(Stamped)
RURAL DEPARTMENT AND
AGRARIAN REFORM
2016-01-26
VETERNARY DISTRICT
OFFICE
(OR TAMBO DISTRICT)
P.O. BOX 501
FLAGSTAFF,4810”
[9]
The
Respondent disputes this and states as follows:
“
6.
Ad paragraphs 7, 8, 9,
10, 11, 12, 13, & 14
6.1 I categorically deny
that in accordance with the customary law of Amampondo and culture,
applicant is the heir to inherit the
homestead of his parents.
In amplification,
according to the customary laws and the culture of Amampondo the
person entitled to inherit the homestead of the
grandparents is their
grandson which is myself in the circumstances.
6.2 I further dispute
categorically that site [...] was transferred to the applicant in his
own version applicant correctly states
that site [...] is registered
in my grandfather’s name as shown in annexure “VFN3”.
6.3 Further I am advised
that annexure “VFN2” constitutes inadmissible hearsay
evidence, a legal argument shall be presented
in court in this
regard.
6.4 I wish to place it on
record that when applicant left for a new site for his new wife he
organized a family meeting where he
announced to all members of
Ndabankulu family that is now leaving and is leaving me as the head
of the homestead in site no. [...]
and I took full control of the
homestead which by customary laws of Amampondo belongs to me.”
[10]
Applicant
in reply attached an affidavit by Gcininkosi Zilwa which states
inter
alia
as
follows:
“
3.
I am an adult male
employed by the
Department of Rural Development and Agrarian
Reform, Eastern Cape
as an Agricultural technician with office at
Room 41, Third Floor, Botha Sigcau Building, Mthatha.
4.
I depose to this
affidavit to explain the reason why the permit to occupy (PTO) the
Residential Allotment or
Site No. [...] Mangquzu Location,
Flagstaff
could not be issued to the site owner
Mr. Veliso
Fagan Ndabankulu (ID No: 421210 5497 082)
by our office
which is the custodian of all the files and information concerning
the Rural Areas for the then former Transkei.
.....7.
The issue of allocation
of site and/or issuing of permits is now the prerogative of the
Department of Land Affairs and not the Department
Rural Development
and Agrarian Reform, which is my Department.
8.
Although we had been
issuing the permit to occupy residential allotment in the past years,
due to disputes over the land along the
coast which disputes
culminated to various court cases, it was resolved that the
Department of Rural Development and Agrarian Reform
which our
department
should only service the land
and
not allocate
sites and should not issue the permits to occupy the land
instead if anyone needs a permit, we should write him or her a
letter confirming that indeed he or she is the owner according to
the
records at our disposal.
9.
As a result we are no
longer issuing permits to occupy land as that now is the prerogative
of the Department of Land Affairs.
...
11.
In a nutshell the letter
issued to Mr. Ndabankulu dated the
25
January 2016
suffices
to confirm that indeed Mr. Veliso Fagan Ndabankulu is the owner of
Site
[...]
at
Mangquzu
Location, Flagstaff
according
to the records with us.”
[11]
In summary Appellant fails entirely to set out any proper basis for
concluding that in terms of the Proclamation (Section 9(2)(a))
as
appears below, Site [...] was registered in his name, nor does he
suggest when, how, by whom or where he became owner of or
registered
holder of the allotment (Site [...]), in any way at all. In
short, it is upon the above facts which are placed
in issue, that
Appellant’s
locus standi
must stand or fall. It
almost goes without saying that the supporting Affidavit of Zilwa
annexed in reply takes the matter
no further, this being the word of
a technician in an alternative department, who does no more than
confirm the letter adverted
to above, and which fails to set out any
purported allocation to Appellant in terms of the Proclamation.
THE
LAW
[11]
The
relevant Proclamation provides:
“
PROCLAMATION NO
– 26 OF 1936
LOCATION REGULATIONS:
UNSURVEYED
DISTRICTS:
TRANSKEI TERRITORIES
....
2.(1) Each magistrate
shall keep a register in a form approved by the Minister in which
shall be entered particulars of all permissions
granted under the
provisions of section four, and of all transfers, cancellations, and
temporary arrangements for the use of allotments.
(2) All entries shall be
signed by the magistrate.
(3) A duplicate of each
entry of permission signed by the magistrate shall be issued free of
charge to the allottee.
Permission to Occupy
Homestead and Arable Allotments
4.(1) Subject to the
provisions of the Transkei Agricultural Development Act, 1966 (Act
No. 10 of 1966), of any soil conservation
scheme in force under that
Act and of section 19 of these regulations, the magistrate may grant
permission –
(i) to any person to
remain in occupation of such homestead and arable allotments as were
in his lawful but unregistered occupation
immediately prior to the
commencement of the Transkei Land Amendment Act, 1968;
(ii) to any person
domiciled in the district, who has been duly authorized thereto by
the tribal authority, to occupy in a residential
area for domestic
purposes or in an arable area for agricultural purposes, a homestead
allotment or an arable allotment, as the
case may be;
(iii) to any missionary
society duly authorized thereto by the tribal authority, to hold a
homestead allotment in a residential
area or an arable allotment in
an arable area for occupation by any full-time minister of religion,
preacher or evangelist in its
employ.
.......
(3) The permission to
occupy allotments under paragraph (iii) of subsection (1) shall be
liable to cancellation and the allotment
shall revert to commonage –
(i) if the post in
respect of which the allotment is held is abolished or remains vacant
without good cause shown to the magistrate,
for any period in excess
of one year;
(ii) if the allotment is
used without the prior approval of the magistrate, for a period
exceeding three months by any person other
than the incumbent of the
post;
(iii) if the rental shall
be in arrear for more than two years.
....
Transfer of Allotments
7.(1) Subject to the
approval of the magistrate any [person] my transfer any allotment in
his lawful occupation to any other [person]
domiciled in the
district. If the allotment to be transferred has already been
registered, transfer shall be effected by
entry in the land register
opposite the entry of allotment to the transferor and by endorsement
on the duplicate thereof and if
no such registration has taken place,
permission to occupy shall be issued to the transferee.
(2) In considering any
such application the magistrate shall have regard to the conditions
prescribed in paragraph (ii) of subsection
(2) of section
four
.
Expropriation of
Allotment
8.(1) ....
9.(1) ….
(2)(a) Upon the death of
an allotment holder his right to occupy such allotment shall
ipso
facto
be cancelled and, subject to the provisions of the Transkei
Agricultural Development Act, 1966 and of any soil conservation
scheme
in force under that Act, such allotment shall become available
for re-allotment to a widow or other member, including any other
female member, of the previous holder’s family selected for the
purpose by the tribal authority.
(b) In the absence of any
such re-allotment, the allotment shall revert to commonage.
(3) An allotment holder
temporarily absenting himself from an administrative area may with
the permission of the magistrate leave
his allotment in charge of
some person for a period not exceeding two years, which may be
extended for a further period not exceeding
two years. If
an allotment holder absents himself for more than one year without
such permission or if, upon expiration
of the authorized term, the
allotment holder shall not have returned to the administrative area,
he shall be deemed to have removed
therefrom.
(4) In the cases provided
for in paragraphs (c) to (j) inclusive of subsection (1),
cancellation shall not take place until the
allotment holder shall
have been warned by notice at his last known place of residence in
the district to appear before the magistrate
to show cause why the
cancellation should not take place.
(5) Cancellation and
reversion to commonage unless otherwise provided for in these
regulations shall take effect from the date of
entry of the same in
the land register.”
[12]
The
Prevention of Illegal Eviction From and Unlawful Occupation of Land
Act 19 of 1998
, provides:
“
To provide for
the prohibition of unlawful eviction; to provide for procedures for
the eviction of unlawful occupiers; and to repeal
the Prevention of
Illegal Squatting Act, 1951, and other obsolete laws; and to provide
for matters incidental thereto.
…
1 Definitions
In this Act, unless the
context indicates otherwise—
‘
building or
structure’
includes
any hut, shack, tent or similar structure or any other form of
temporary or permanent dwelling or shelter;
‘
consent’
means the express or
tacit consent, whether in writing or otherwise, of the owner or
person in charge to the occupation by the occupier
of the land in
question;
‘
court’
means any division of the
High Court or the magistrate’s court in whose area of
jurisdiction the land in question is situated;
‘
evict’
means to deprive a person
of occupation of a building or structure, or the land on which such
building or structure is erected,
against his or her will, and
‘
eviction’
has a
corresponding meaning;
‘
land’
includes a portion of
land;
‘
Minister’
means the Minister
designated by the State President;
‘
municipality’
means a municipality in
terms of section 10 of the Local Government Transition Act, 1993 (Act
209 of 1993);
‘
organ of state’
means an organ of state
as defined in section 239 of the Constitution of the Republic of
South Africa, 1996 (Act 108 of 1996);
‘
owner’
means the registered
owner of land, including an organ of state;
‘
person in
charge’
means
a person who has or at the relevant time had legal authority to give
permission to a person to enter or reside upon the land
in question;
‘
unlawful
occupier’
means
a person who occupies land without the express or tacit consent of
the owner or person in charge, or without any other right
in law to
occupy such land, ….
…
.
2 Application of Act
This Act applies in
respect of all land throughout the Republic.
…
.
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.
…
.
7 Mediation
(1)
If the municipality in whose area of jurisdiction the land in
question is situated is not the owner of the land the municipality
may, on the conditions that it may determine, appoint one or more
persons with expertise in dispute resolution to facilitate meetings
of interested parties and to attempt to mediate and settle any
dispute in terms of this Act: Provided that the parties may at any
time, by agreement, appoint another person to facilitate meetings or
mediate a dispute, on the conditions that the municipality
may
determine.
…
.
9 Jurisdiction of
magistrate’s court
Notwithstanding any
provision of any other law, a magistrate’s court has
jurisdiction to issue any order or instruction or
to impose any
penalty authorised by the provisions of this Act.”
[13]
Erasmus
Superior
Court Practice,
Eviction
under PIE
[1]
sets out the purpose and effect of PIE relevant to this matter as
follows:
“
The Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998
(‘PIE’), which came into operation
on 5 June 1998,
provides for procedures for the eviction of unlawful occupiers of
land.
[2]
In
Ndlovu
v Ngcobo; Bekker and Bosch v Jika
[3]
the Supreme Court of Appeal, in a majority judgment, held that PIE
disposed of certain common-law rights relating to eviction.
The
majority judgment can be summarized as follows:
(a)
PIE has
its roots,
inter
alia
,
in s 26(3) of the Constitution of the Republic of South Africa, 1996.
(b)
The
definition of an unlawful occupier in s 1 of PIE relates to a person
who
occupies
land without the express or tacit consent of the owner or person in
charge of such land. In its ordinary meaning the definition
of
an unlawful occupier means that PIE applies to all unlawful
occupiers, irrespective of whether their occupation of such land
was
previously lawful.
(c)
PIE
does not protect buildings and structures that do not perform the
function of a form of dwelling of shelter for humans (eg commercial
properties) or that are occupied by juristic persons.
(d)
The
effect of PIE is not to expropriate private property. What PIE
does is to delay or suspend the exercise of a landowner’s
full
proprietary rights until a determination has been made whether it is
just and equitable to evict the unlawful occupier and
under what
conditions.
(e)
PIE
invests in the courts the right and duty to make the order which, in
the circumstances of the case, would be just and equitable,
and it
prescribes some circumstances that have to be taken into account in
determining the terms of the eviction. In other
words, the
court, in determining whether or not to grant an order or in
determining the date on which the property has to be vacated,
has to
exercise a discretion as to what is just and equitable. The
discretion is one in the wide, and not the narrow sense.
Consequently, the court does not have a free hand to do whatever it
wishes.
(f)
Provided
the procedural requirements laid down in PIE have been met, a
landowner is entitled to approach the court on the basis
of ownership
and the occupier’s unlawful occupation. In this regard
the occupier bears an evidential onus (‘weerleggingslas’).
A draft Bill to amend
certain definitions and to qualify the application of PIE was
published under GN2276 of 27 August 2003.
In s 1 of PIE the word
‘court’ is defined as ‘any division of the High
Court or the magistrate’s court in
whose area of jurisdiction
the land in question is situated’.
Section 4(1) of PIE
provides that, notwithstanding anything to the contrary contained in
any law or the common law, the provisions
of that section apply to
proceedings by an owner or person in charge of land for the eviction
of an unlawful occupier. The
word ‘proceedings’
may, of course, bear different meanings in different statutory
provisions. It is submitted
that in the context of PIE it
includes action as well as application proceedings.
If the defendant is an
unlawful occupier of land, as defined in PIE, written and effective
notice of the proceedings must be served
on both the unlawful
occupier and the municipality having jurisdiction at least fourteen
days before the hearing of the proceedings
for the eviction of the
defendant. The purpose of this requirement is to provide
protection to occupants by alerting them
to the threat to their
occupation and the basis thereof; alerting them to the
provisions of and the protections and defences
afforded to them by
PIE; advising them of their rights to legal representation;
and informing them of the date and
place of the hearing and ‘to
afford the respondents in an application under PIE an additional
opportunity, apart from the
opportunity they have already had under
the Rules of Court, to put all the circumstances they allege to be
relevant before the
court. In addition, the period of notice
provided for permits the municipality and the occupants concerned to
investigate
the availability of alternative accommodation or land and
to explore the possibility of mediation in terms of s 7 of PIE.
The notice requirement applies even to proceedings leading to the
grant of a rule
nisi
against occupants.
....
If the defendant has been
in occupation of the land for less than six months, the court may
grant an order for eviction if it is
of the opinion that it is just
and equitable to do so, after considering all the relevant
circumstances, including the rights and
needs of the elderly,
children, disabled persons and households headed by women. In
addition to these requirements the court
is required to consider
whether land has been made available or can reasonably be made
available by a municipality or other organ
of state or another
landowner for the relocation of the defendant, if the latter has been
in unlawful occupation for longer than
six months. The period
of occupation is calculated from the date that the occupation becomes
unlawful.
....
If the requirement of s 4
of PIE are satisfied and no valid defence to an eviction order
has been raised, the court ‘must’,
in terms of s 4(8),
grant an eviction order. When granting such an order the court
must, in terms of s 4(8)
(a)
of PIE, determine a just and
equitable date on which the unlawful occupier or occupiers must
vacate the premises. The court
is empowered, in terms of s
4(12) of PIE, to attach reasonable conditions to an eviction order.
The date that the court determines
must be one that is just and
equitable to all parties.
....
... The order that it
grants as a result of those two discrete enquiries is a single
order. Accordingly it cannot be granted
until both enquiries
have been undertaken and the conclusion reached that the grant of
eviction order, effective from a specified
date, is just and
equitable. Nor can the enquiry be concluded until the court is
satisfied that it is in possession of all
the information necessary
to make both findings based on justice and equity.”
[14]
In this
matter procedurally the application was launched by way of the usual
Notice of Application and Supporting Affidavit, which
failed in
almost all respects to comply with the provisions of Section 4(2) –
(5) of PIE, although being served on Appellant
and the Municipality,
Second Respondent, by the Sheriff.
[15]
Some seven
months later a Notice in terms of Section 4 of PIE was prepared and
delivered to Appellant’s Attorneys and purportedly
the
Municipality (Second Respondent) but in respect of the Municipality
was “
received”
by an unknown person whose capacity to receive lawful process for the
Municipality was not demonstrated – most certainly
not being
service in terms of the Rules or PIE by the Sheriff.
[16]
The notice
itself in point of fact as to its content complied with Section 4(5)
of PIE. It failed however to have been authorised
by the Court, and
neither the Notice of Application nor the Section 4 Notice thus
complied with Section 4(2) of PIE. In the
circumstances
relevant to procedure, the process was deficient in the context of
the authorities unless substantial compliance
could nevertheless be
shown to have been achieved.
[17]
In this
regard and relevant to the above enquiry in
Moela
v Shoniwe
[4]
the
following was stated:
“
[7]
This Court held in
Cape
Killarney Property Investments (Pty) Ltd v Mahamba
2001
(4) SA 1222
(SCA)
that these provisions are peremptory (paras [11] and [17]). In
respect of the notice required by s 4(2) it held that
it must be
effective notice; that it must contain the information stipulated in
ss (5); and that it must be served ‘by
the court’.
The latter requirement it interpreted to mean that the contents and
the manner of service of the notice must
be authorized and directed
by an order of the court (para [11]).
[8]
In the as yet unreported judgment of this court in
The
Unlawful Occupiers of the School Site v The City of Johannesburg
(case No 36/2006), referring to the fact that the requirements of
s 4(2) were peremptory, Brand JA said (para [22]):
‘
Nevertheless,
it is clear from the authorities that even where the formalities
required by statute are peremptory it is not every
deviation from the
literal prescription that is fatal. Even in that event, the question
remains whether, in spite of the defects,
the object of the statutory
provision had been achieved (see for example
Nkisimane
and Others v Santam Insurance Co Ltd
1978
(2) SA 430
(A)
at 433H-434B;
Weenen
Transitional Local Council v Van Dyk
2002
(4) SA 653
(SCA)
para [13]).’
[9]
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 authorized 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.
Whether it would, need not be decided by us as there is no basis upon
which it can be found that the municipality
had been notified of the
proceedings at all or that the municipality had any knowledge of the
proceedings.
[10]
The respondent’s summons containing his particulars of claim
had not been served on the municipality. The notice of application
for summary judgment was addressed to the Registrar of the Court
a
quo
, to
the appellant’s attorneys and to ‘the Germiston
Municipality having jurisdiction’ next to which someone
indicated by a signature that he had received a copy of the document.
It is not known who the person is, what his relationship with
the
municipality is, where he received a copy of the document and whether
he had authority to receive documents on behalf of the
Germiston
Municipality. The Court
a
quo
therefore erred in finding that there was proof of service on the
municipality.
[11]
There has been no compliance whatsoever with the provisions of s 4(2)
insofar as the municipality is concerned; it is
not known whether the
municipality had any knowledge of the proceedings; and there can,
therefore, be no question of the object
of the section, insofar as it
requires service of the notice on a municipality, having been
achieved. It follows that the Court
a
quo
should have dismissed the application for summary judgment.”
[18]
In
Theart
v Deon Minnaar NO
(483/08)
and
Senekal
v Winskor 174 (Pty) Ltd
(007/09)
[5]
the following was stated:
“
[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.
....
[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).'
....
[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”.
[19]
Against the
above, the two issues for determination must be decided as more fully
set out below.
LOCUS
STANDI/STANDING TO EVICT
[20]
Against the
facts and legal position as elucidated above, and on application,
Appellant has entirely failed on his own allegations,
let alone those
of First Respondent, to demonstrate that he is the owner let alone
person in charge of Site [...]. It is
unnecessary to traverse
First Respondent’s allegation that he was given the property at
a family ceremony, there being no
concession that the Proclamation
vested ownership or an entitlement to utilize Site [...]. In
the circumstances it seems
to me that the Magistrate was perfectly
correct in his conclusion in this regard albeit that I have reached
the same conclusion
by way of a different route. I conclude on
the allegations and the Proclamation that Appellant has failed to
demonstrate
standing to evict either as a matter of common law and/or
PIE.
THE
PROCEDURAL REQUIREMENTS OF PIE
[21]
It follows
also from what I have set out above, that Appellant failed to comply
with the necessary procedural requirements of PIE,
considering both
the Notice of Application and the Section 4(2) Notice aforesaid.
Whilst the Section 4(2) Notice set out
the necessary content as per
Section 4(5) of PIE, it was not authorised by the Court nor was it
served or shown to be served upon
the Municipality in a manner
required simply being received by someone indicating by signature
receipt of the document, it not
being known who the person is, what
his relationship with the Municipality is, where he received a copy
of the document and whether
he had authority to receive the document
on behalf of the Municipality, or even in fact that he worked for the
Municipality or
that the document was in fact received at the
Municipality.
[22]
In the
result again, the application was thoroughly deficient there being no
substantial compliance even indulgently viewed, the
application being
fatally flawed as it came before the Magistrate.
CONCLUSION
[23]
In the
result, and inasmuch Appellant has failed on both legs, the only
order that could have been made would be to dismiss the
application.
The Magistrate in this regard made the correct order both in respect
of the application and the Rule
nisi,
although again approaching the matter differently than I have done.
There is no room accordingly for the submission made
by
Mr
Hobbs
,
that the Magistrate should have postponed the application affording
the Applicant an opportunity of curing the procedural difficulties.
[24]
In the
result, the appeal is dismissed with costs.
_________________________
M.J.
LOWE
JUDGE
OF THE HIGH COURT
MLOMZALE,
AJ
I
agree.
_________________________
N
MLOMZALE
JUDGE
OF THE HIGH COURT (ACTING)
Obo
the Appellant
:
Adv Hobbs
Instructed
by
:
Linyana & Somacala Inc, Flagstaff
C/o
Manitshana Tshozi Attorneys, Mthatha
Obo
First Respondent
:
Mr Msindo
Instructed
by
:
Messrs V V Msindo & Associates, Mthatha
[1]
Second Edition, Volume 2, D9-1 to
D9-9.
[2]
PIE has to be interpreted, and its
governing concepts of justice and equity have to be applied, within
a defined and carefully
calibrated constitutional matrix. The
starting and ending point of the analysis of PIE must be to affirm
the values of
human dignity, equality and freedom
(Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005
(1) SA 217
(CC) at 225A-229G). See also
Machele
v Mailula
2010 (2) SA 257
(CC) at 262A-B.
[3]
2003 (1) SA 113
(SCA). See
further 2003 (March)
De
Rebus
14-17, 18-20 and
22-24; 2003 (July)
De
Rebus
44; 2004 (July)
De
Rebus
57-60 and 2016
(October)
De Rebus
24-26.
[4]
2005 (4) SA 357
(SCA) at 362C-363A
[5]
[2009] ZASCA 173
(3 December 2009)