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[2017] ZAGPPHC 516
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Ebrahim NO and Others v Mohamed and Others (40478/2016) [2017] ZAGPPHC 516 (17 March 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
17/3/2017
CASE
NO: 40478/2016
Not
reportable
Not
of interest to other judges
17
March 2017
In
the matter between:
SHABBIR
EBRAHIM
N.O
1ST
APPLICANT
(Identity
number: […]
IMRAN
EBRAHIM
N.O
2ND
APPLICANT
(Identity
number: […]
SHEREEN
AHMED EBRAHIM
N.O
3RD
APPLICANT
(Identity
number: […]
And
ABDULHAMI
D EBRAHIM MOHAMED
1ST
RESPONDENT
KHATIJA
DAWOOD
MAHOMED
2ND
RESPONDENT
THE
OCCUPIERS
3RD
RESPONDENT
CITY
OF TSHWANE METROPOLITAN MUNICIPALITY
4TH
RESPONDENT
JUDGMENT
MOKOENA
A.J
INTRODUCTION
1.
This is an application in terms of Section 4 of the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Ac t
19 of 1998
( "the PIE Act") . In this application, the Applicants
seeks an order for the eviction of the Respondents
from 1he premises
described as ERF[…], GAUTENG, also known as […] Avenue
CLAUDllS GAUTENG ("the property")
. The matter came before
me as an opposed motion.
2.
The Applicants are the trustees of Shabbir Ebrahim Family Trust (
"the Trust") which acquired the property at an auction
on
11 February 201 6. They purchased the property at a sale in execution
of a default judgment granted against the Respondents
by this Court
on 13 of April 201 5 in favour of ABSA bank. The property was
subsequently transferred into the names of the trust
on 31 March 201
6.
3.
The Respondents oppose the application on the basis that they have
launched an application for the rescission of the default
judgment.
The application was instituted during March 2016.
4.
They contend that the pending rescission of judgment application has
the effect of staying these proceedings or, that these proceedings
must be stayed pending the finalisation of their rescission of
judgment application.
5.
During argument, Mr. Snyman for the Respondents confirmed that the
Applicants Notice in terms of Section 4(2) was duly served
on the
Respondents. However Mr Snyman made a submission that this
application was not in compliance with the provisions of Section
4 of
the PIE Act in that when 1he eviction application was
"postponed"
(own emphasis) on 19 August 201 6 to an unspecified date, the
Applicants were required to obtain authorisation to serve another
Section 4(2) Notice which they never did.
6.
This defence was raised for the first time during argument. It was
raised neither in the opposing papers of the Respondents nor
in the
Heads of Argument. What is only said in the Opposing Affidavit is
simply that the Applicants:- "
(have) not complied with
the procedure
as
laid down by the Court and in
any event it is premature"
.
In the Heads of
Argument, Mr. Snyman dealt with this defence of non-compliance with
the PIE;\ct as follows
" it is denied that the applicants
complied with the prescripts of the practice manual in respect of the
set-down and notice
in terms of the provisions of the Prevention of
Illegal Evictions of Occupiers of Land Act, Act of 1998 ( "PIE"
)
.
No substantive facts were placed before this Court
both in the Opposing Affidavit and the Heads of Argument to support
such contentions.
7.
I then directed that both Mr. Snyman and
Ms Pretorius for the A pplicants
that they
may file their Supplementary Heads of Argument and that Mr. Snyman
must deal in detail with the defence of non compliance
with
Section 4(2) PIE Act in the Supplementary Heads of Argument. Both
Counsel submitted their Supplementary Heads of Argument.
Mr Snyman on
21 February 2017 and Ms Pretorius on 23 of February 2017.
8.
On the papers before me and the Heads of Arguments together with the
Supplementary Heads of Argument, two issues arise for determination.
Firstly whether the pending rescission of the default judgment
application stays these proceedings and secondly, whether the
Applicants
were required to obtain authorisation of this Court to
serve another Section 4( 2) Notice and whether the Notice had to be
served
at least ·1 4 days prior to the date of the hearing of
the eviction application.
Does
the pending rescission of judgement application suspend these
proceedings
9.
Mr. Snyman made a submission that in terms of the repealed Rule 49
(11) of the Uniform Rules of Court, a pending recession of
judgment
application suspend the execution of on Order of Court. In his
submissions he relied on the matters of
Khoza
AO v
Body
Corporate of Ella Court (unreported)
Case No. 22463 /2007 and
Antonette Labuschagne
v
ABSA Bank Ltd
Case
No. 12349
/20 12 .
10.
Those two decisions ore distinguishable in that they were decided on
the basis of the repealed Rule 49 (11) , whereas in
casu
a
determination of that question has to be made with reference to
Section 18 of the Superior Courts Act. The Section reads as follows:-
" 18( 1) Subject to
subsections (2) and (3),
and
unless the Court under
exceptional circumstances orders otherwise, the
operation and execution
of
a
decision which is the
subject of an application for leave to appeal
or
of an appeal,
is suspended pending the decision of the application
or
appeal"
.
11.
In her submissions Mr Pretorius referred me to the matter of
Erstwhile Tenants of Williston Court and Another v Lewray
Investments (Pty) Ltd and Another 20 16(6) SA
466
( GJ) ,
in
particular paras 18 to 20 of the judgment where Meyer J said the
following:-
[18] " the provisions of
Section I8 of the Superior Courts Act must be interpreted in
accordance with the established principles
of interpretation (
See
Natal Joint Municipal Pension Fund v Endumeni
Municipality
20 1
2 (4) SA 593
(SCA) par 18; Bothrno-Batho Transport (Edms) Bpk v
Bothma & Seun Transport (Edms) Bpk 20 1
4 (2) SA 494
(SCA) par J
2). Contextually read, I am of the view that had it been the
intention of the legislature for the operation and execution
of a
decision which is the subject of an application for rescission also
to be automatically suspended, then such decision would
have been
expressly included in Section 18( 1 ] . The legislature would have
expressed its intention to include such decision in
clear and
unambiguous language"
[19] "the contrary
interpretation would result in the absurdity that the filing of any
unmeritorious application for rescission
could f oil the operation
and execution of a decision which is the subject of such application
...But a person against whom the
decision which is the subject of an
application for rescission was given can always approach a court
under Rule 45A to suspend
its execution pending the finalisation of
an application for rescission. I see no reason in principle or in
logic why an applicant
for rescission should be placed in a better
position that an applicant for leave to appeal or an appellant as for
as the operation
and execution of court orders is concerned. The
glaring absurdities that could result in hardship to the part y in
whose favour
a decision that forms the subject of an application for
rescission was given could never have been contemplated by the
Legislature"
.
[20] The Superior Courts Act
commenced on 23 August 20 13. Its section 18 only provides for the
automatic suspension of the operation
and execution of a decision
pending an application for leave to appeal. No other provision of the
Superior Courts Act provides
for the automatic suspension of the
operation and execution of a decision which is the subject of an
application to rescind, correct,
review or vary an order of court.
There is also no thing which indicates an intention on the part of
the legislature to broaden
the automatic suspension of the operation
and execution of decisions beyond those included in section 18. A
court can always be
approached under rule 45A to suspend the
operation and execution of orders not included in section 18. Bu t
their operation and
execution are not automatically suspended" .
12.
Rule 45A of the Uniform Rules provides as follows:-
"The Court may suspend the
execution of any order for such period as it may deem fit" .
13.
At B 1-330 Erasmus, Superior Court Practice, the author says the
following:-
"As a general rule the Court
will grant a stay of execution where real and substantial justice
requires such a stay or, put
it otherwise, where injustice will
otherwise be done" .
14.
I agree with the submissions made by Ms Pretorius that reading the
provisions of Section 18(1) of the Superior Court Act together
with
Rule 45A of the Uniform Rules, there is no basis in law for the
automatic suspension of the operation and execution of a Court
Order
which is the subject of an application for rescission. To say a mere
filing of a rescission of judgment application automatically
suspends
the execution or operation of the order or decision of this Court
will indeed be absurd and will render the provisions
of Rule 45A of
the Uniform Rules nugatory.
15.
It follows therefore that the Respondents ' pending rescission of a
default judgement application does not suspend or stay these
proceedings in the absence of an order granted in terms of Rule 45A
of the Uniform Rules.
Were
the Applicants required to obtain authorisation from this Court to
serve "another" Section 4 (2) Notice and to serve
it 4
prior to the hearing of this application
16.
The Applicants were authorised by this Court on 07 July 201 6, to
serve both the Section 4(2) Notice together with the eviction
application on the Respondents. The contents of the Notice fully
complied with the requirements set out in Section 4(5) of PIE
Ac t by
stating:-
20.1.
That the
eviction proceedings against the Respondents are instituted by the
Applicants:
20.2.
The Court where
the eviction application will be heard;
20.3.
The date and
time of the hearing of the application;
20.4.
The grounds
relied upon by the Applicants in bringing the eviction application;
and
20.5.
The Respondents
are entitled to appear in Court with their legal representatives or
to approach the Legal Aid Board for legal assistance.
17.
The Respondents were each personally served with both the eviction
application and the Section 4( 2) Notice on 21 July 2016.
18.
When the Applicants obtained authorisation from this Court
( on
07
July 20 16)
to serve both the Section 4(2) Notice together
with the eviction application, they had not yet served the eviction
application on
the Respondents. As indicated above, these were served
on 21 July 2016. No further processes in the eviction proceedings
were served
after 21 July 2016.
19.
The Section 4( 2) Notice together with the eviction application
served on the Respondents specifically stated that in the event
that
the Respondents failed to file their Notice to oppose the
application, the eviction application will be heard on 19 August
201
6. This means that when the Applicants obtained authorisation f or
service of the Section 4(2) Notice and the eviction application,
they
had already secured a date for 19 August 2016 on an unopposed motion
roll.
20.
On 25 July 201 6, the Respondents reacted to the Section 4(2) Notice
and filed their notice to oppose the eviction application.
They
subsequently filed their Opposing Affidavit on 1 7 of August 201 6.
As a result of the eviction application having become
opposed, the
Applicants removed their eviction application from an unopposed
motion roll of 1 9 of August 201 6 and placed it on
the opposed
motion roll of 13 February 201 7 in compliance with the Practicing
Directives of this Division. A notice of Set-down
was served on the
Respondents attorneys on 22 November 201 6.
21.
Nothing was said during argument that the Applicants were required to
have served the eviction application first and thereafter
to obtain
authorisation from this Court to serve both the eviction application
and the Section 4(2) Notice.
22.
Mr Snyman’s submission was that when the Applicants application
was
"postponed"
on 19 of August 201 6 to an
unspecified date, the Applicants were required to obtain another
authorisation from this Court to serve
again a Section 4(2) Notice.
In his submissions he referred me to Chapter 15: 10 of the Practice
Manual of this Court and to the
matter of Cape Killarney Property
Investments (Pty) Ltd v Mahamba and Others
2001 (4) All SA 479(A).
23.
Before I deal with the provisions of Chapter 1 5: 10 of the Practice
Manual and the referred case law, I must mention that Ms
Pretorius
handed a Court Order indicating that on 19 August 201 6 the eviction
application was
"removed"
from an unopposed motion
roll and not
"postponed"
as submitted by Mr Snyman.
24.
Reverting to the Chapter in the Practice Manual and the referred case
law, Chapter 15:10 of the Practice Manual states the following:-
"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 allow not Jess than five days from date of service of the
application f or delivery of a notice of intention
to oppose; and
1.3
The notice of
motion must give a date when the application will be heard in the
absence of a notice of intention to oppose.
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.
When determining a date f or 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.
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. The local, provincial or national
authorities that may be affected by an eviction order must be clearly
identified".
25.
Chapter 15:10 of the Practice Manual must be interpreted by reference
to the purpose of Section 4( 2) Notice. In the matter
of
Unlawful
Occupiers of the School Site
v
City
of
Johannesburg
2005 (2) All SA 108
(SCA) p 1 16 at
para
23
Brand JA
describe the purpose of the Section 4(2) Notice as follows:-
"The purpose of Section 4(2)
is 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 [" see
Cape
Killarney Property Investments at 1229E-F]
".
26.
In the Cape Killarney matter Supra, Brand A JA at p483 (paras 12-13)
said the following:-
"Section 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 to me that this Notice (" the notice of
motion"] in terms of
rules of Court is required "
in
addition
" (own emphasis) to the Section 4( 2) notice.
Any other construction will render the requirements of Section 4 (3)
meaningless.
The fact that the Section 4(2)
Notice is intended
as
an additional notice
(own
emphasis]
of
the forthcoming eviction proceedings under the
Act is also borne out by Section 4(4)
".
27.
Mr Snyman quite correctly submitted that what Brand AJA said in the
Cape Killarney matter is that
"apart
from
the service
of
the eviction application prescribed by the rules of Court,
an additional notice be
served
upon the Respondent at least
Fourteen( 14) days before the date upon which the application is to
be heard" .
28.
I however, disagree with him when he said the Learned Judge was
referring to service of another section 4(2) Notice when he
said an
additional notice had to be served with the forthcoming eviction
proceedings. Brand AJA was referring to a Section 4(2)
Notice as an
addition notice to the notice of motion prescribed by Rule 6 of the
Uniform Rules, and not another Section 4( 2) Notice.
29.
Service of a Section 4(2) Notice is a peremptory requirement of a PIE
Act, and it was intended to inform the Respondents about
the
forthcoming eviction proceedings; the bases of the eviction
application and also inviting the Respondents to raise any defence
they might have to the eviction application. They reacted by filing
their Notice to Oppose and their Opposing Affidavit. Furthermore
their Counsel appeared in Court on the 131h February 201 7, to
present their defence. Under those circumstances, the Section 4(2)
notice had achieved its purpose of informing the Respondents of the
basis upon which the eviction order is sought.
30.
Mr Snyman has not referred me to any authority or rule that requires
the Applicants to serve another Section 4( 2) Notice in
the event
their eviction application is removed from an unopposed motion roll,
after it has become opposed, and placed on an oppose
motion roll in
terms of the practice directives of this division.
31.
I therefore see no reason why the Applicants are required to serve
another Section 4 (2) if the initial notice served on the
Respondents
on 21 July 201 6 had achieved its legislative purpose of informing
the Respondents of the forthcoming eviction application
and the basis
for that the application. They were also served with a Notice of
Set-down informing them of the date and time of
the hearing of the
eviction application, more than 14 days as prescribed by the PIE Act.
Court's
discretion in granting an order of eviction
32.
This Court is enjoined by the provisions of PIE Act to grant an order
for eviction if it is
just
and
equitable
to do so.
33.
I have considered the fact that the Respondents did not place any
facts before this Court that there are any children, the elderly,
or
disabled persons who are in occupation of the property. It is also
not their defence that they have no alternative accommodation.
34.
During argument I asked Mr Snyman as to who is paying for the
property tax on the property, and his answer was that the trust
as
the owners is required by law to pay that property tax despite the
trust and or the beneficiaries to the trust not enjoying
the use and
the fruits of the property. I further asked him as to who is paying
for the services that the Respondents are consuming.
He was evasive
in this regard. He was not helpful to this Court. His response was
that the Respondents are not provided with municipal
statements of
account. I found that answer not satisfactory in that the Respondents
as the consumers of municipal services they
have a duty in terms of
Section 5 (2) (b) of the Municipal Systems Act 32 of 2000 to pay
promptly f or those services. That duty
carries with it an obligation
on the Respondents to enquire either from the municipality or from
the Applicants the amount owing
for the services they have consumed.
35.
I further raised it with him that when the trust bought the property,
it paid the arrear rates and taxes to the amount of R28
513.85 which
amount is made up of the municipal services consumed by the
Respondents. That was not disputed.
36.
Based on these facts, I am of the view that the continuous occupation
of the property by the Respondents is seriously prejudicing
the trust
financially and it may not recover those expenses from the
Respondents, given their financial position as indicated in
their
Opposing Affidavit.
CONCLUSION
37.
For these reasons, the Applicants have satisfied all the requirements
of Section 4 of PIE and that no valid defence has been
raised by the
Respondents.
38.
In the premises I grant the following order:-
(1) The application for eviction
succeeds.
(2) That the First, Second and
Third Respondents and all those who occupy the premises better known
as
ERF 1344 CLAUDIUS EXT 1, GAUTENG, ALSO KNOWN AS 282 2N°
AVENUE, CLAUDIUS, GAUTENG
by virtue of the First, Second and
Third Respondents ' occupancy thereof, including the First, Second
and Third Respondents ' servants
and employees, if any, be and are
hereby evicted from that property; within (20) twenty days from the
date of service of this order.
(3) In the event of the First,
Second and Third Respondents and all those who occupy the property
under and by virtue of the
First, Second and Third Respondents '
occupancy thereof, including the servants and employees, if any, fail
and/or refuse to vacate
the property within the period as stated in
2, that the Sheriff of the above Honourable Court and/or its deputy
be and is hereby
authorised to forthwith enter upon that property and
to evict the First, Second and Third Respondents and all those who
occupy
the property under and by virtue of their occupancy thereof.
(4)
Costs of this application to be paid by the First and Second
Respondents jointly and severally the one paying the other
to be
absolved.
Attorney
for the Applicants
:
VEZI
& DE BEER INC.
Ref
.:MR/ MAT38570
Tel:
012-361 5640
Attorneys
for the Respondents
:
NADIA
EBRAHIM PEERA ATIOR NEYS
Ref.:
NADIA/
Tel.:
082 444 8856
Counsel
for the Applicants:
Adv.
L.A. Pretorius
Tel.:
082 634 4885
Counsel
for the Respondents:
Adv.
M Snyman
Tel.:
082 571 2797