About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2015
>>
[2015] ZAFSHC 69
|
|
Khauhelo v Mosupa and Another (A252/2014) [2015] ZAFSHC 69 (19 March 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(FREE STATE DIVISION,
BLOEMFONTEIN)
Appeal no. A252/2014
DATE: 19 MARCH 2015
In the matter between:
NTSEBO MAMSIE
KHAUHELO
..........................................................................................
Appellant
And
RAMOTSOKOANE JERRY
MOSUPA
.....................................................................
First
Respondent
MALUTI-A-PHOFUNG LOCAL
MUNICIPALITY
......................................................................................................
Second
Respondent
CORAM: JORDAAN J et S J REINDERS
(AJ)
HEARD ON: 9 MARCH 2015
DELIVERED ON: 19 MARCH 2015
S J REINDERS (AJ)
[1] The appellant (first respondent in
the Court a quo) was evicted by the Magistrate Phuthaditjhaba on the
14th August 2014 at
the behest of the first respondent (applicant in
the Court a quo).
[2] In the Notice of Motion the second
respondent was cited as “illegal occupants” and the
Maluti-A-Phofung Municipality,
was the third respondent.
[3] Not satisfied with the order made
by the Magistrate, the appellant on appeal before us contends that
the Magistrate should have
dismissed the application for inter alia,
the following reasons:
3.1 The Notice of Motion did not comply
with Rule 55(1)(e)(iii) of the Magistrate’s Court rules in
that, according to the
said rule, an applicant should set forth a day
in its Notice of Motion, not less than five (5) days after service of
the application
on the respondent which requires of the respondent to
notify the applicant whether the application would be opposed and
furthermore,
a date should be stated not less than ten (10) days
after the lapse of the five (5) day period when the application will
be heard.
The appellant points out that no such dates were set out
in the Notice of Motion.
3.2 The respondent should have used
Form “1A” of the Magistrate’s Court rule whilst
there was no request for condonation
for the use of the wrong form.
3.3 The appellant has minor children
and cannot obtain alternative accommodation.
3.4 Although no specific agreement
existed between the appellant and the respondent regarding the
appellant’s occupation of
the premises, only one notice to
“terminate” the said agreement were sent to the appellant
more than two (2) years
prior to the launching of the application.
3.5 It was not just and equitable to
evict the appellant particularly since she has been occupying the
premises for more than six
(6) months and the fact that she was a
woman heading the household.
3.6 That there were not proper
compliance with the provisions of Act 19 of 1998.
[4] Subject to what is stated
hereinlater I am not of the view that there are much merit in any of
the grounds complained of save
for the last-mentioned ground.
Suffice to say that on the papers as it stood, I agree prima facie
with the submissions made on
behalf of the respondent that:
4.1 The ownership of the said property
(on the papers) is beyond reproach.
4.2 The appellant was legally assisted
in the application and I do not find anything on the papers
indicating that the appellant
did not have the full opportunity of
placing a version before Court.
4.3 The appellant in conducting her
defence has not been prejudiced at all.
4.4 Having taken all the factors into
consideration, and where no valid defence has been raised, the Court
must in terms of Section
4(8) of the act grant an eviction order and
in terms of Section 4(8)(a) of the act, determine a just and
equitable date on which
the unlawful occupier or occupiers must
vacate the premises.
City Of Johannesburg v Changing Tides
74 (Pty) Ltd
2012 (6) SA 294
(SCA) at 304.
[5] It is common cause that the
provisions of the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of
1998 (“PIE”) is applicable
herein. Section 4 of PIE reads as follows:
“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 a person in charge
of land for the eviction of an unlawful occupier.
(2) That at least fourteen (14) days
before the hearing of the proceedings contemplated in sub-section
(1), the Court must serve
written and effective notice of the
proceedings on the unlawful occupier and the Municipality having
jurisdiction.
(3) …
(4) …
(5) The notice of proceedings
contemplated in sub-section (2) must –
(a) state that 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
(d) state that the unlawful occupier is
entitled to appear before the Court and defend the case and, where
necessary, has a right
to apply for legal aid.”
[6] “It is clear from the
authorities that even where the formalities required by statute are
peremptory it is not every deviation
therefrom that is fatal and the
question is whether in spite of the defects, the object of the
statutory provision has been achieved.
Unlawful Occupiers, School Site v City
Of Johannesburg
2005 (4) SA 199
at 209 par. G – H.”
[7] In Senekal v Winskor
2010 (3) SA
327
(SCA) the distinction between the procedures for applications for
evictions in the High Court and the Magistrate’s Court are
described as follows:
“Unlike the procedure prescribed
by Rule 6 of the Uniform rules, Rule 55(1) of the Magistrate’s
Court 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, respondent will be fully informed of the
nature of the application, the order sought, and the date, time and
Court 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 fourteen (14) days before
an
order for eviction could potentially be granted.”
At 331 par. G – I.
[8] In casu, the Notice of Motion
(titled “Notice of Prevention of Illegal Eviction from and an
(sic) Unlawful Occupation
of Land Act 19 of 1998”) was issued
on the 18th September 2013. In the said notice, it was stated that
the applicant would
apply on the 15th October 2013 at 09H00 inter
alia, for an order evicting the respondent. On the 15th October
2013, the Magistrate
made an order which reads as follows:
“1. The Respondents are hereby
given a written notice of these proceedings against her as stipulated
in Section 4(5) read
with Section 4(2) of the Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act 19 of 1998,
(hereinafter referred
to as “the Act”).
2. The local Municipality
Maluti-A-Phofung is hereby given a written notice of these
proceedings against the Respondents as stipulated
in Section 4(5)
read with Section 4(2) of the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act no. 19 of
1998, (hereinafter referred
to as “the Act”).
3. The Respondents must appear before
the Honourable Court on the 12th/11/2013 at 09 am and electing from
their constitutional right
to conduct their own cases, alternatively
to get their own attorney of their choice whom they will pay and if
they cannot afford
to pay the attorney, that they have the right to
apply for legal aid.
4. That the Sheriff for the
Phuthaditjhaba district be authorized to serve the said notice and
annexures thereto, on the Respondents
in the following manner:
4.1 That the Sheriff for the
Phuthaditjhaba district hand over, the copy of the notice and
annexures thereto, to the Respondents
immediately after having read
the content thereof to them in Respondents’ presence,
alternatively, serve same by means of
affixing on the Respondents.
5. That manner of service aforesaid be
deemed to be effective service of the notice as envisaged in Section
4(4) of the Act.
6. Service on the Respondents and local
Municipality must be effected on or before the 31st October 2013.”
[9] The above order bears a Court stamp
dated the 15th October 2013. In the Magistrate’s reasons for
judgment he states that
this order was granted on the 15th October
2013.
[10] Although the order stated that
same should be served before or on the 31st October 2013, it had been
served according to the
return of service on both the first
respondent as well as the Municipality on the 1st of November 2013.
[11] I am not of the view that there
was compliance with the act and that the purpose of the said act has
been achieved. Nowhere
in the said notice, is the date stated
whereon the proceedings would be heard as contemplated in Sections
4(2) and 4(5)(b). Although
the order stated that the respondents
must appear before the Court on the 12th November 2013, same was only
to indicate whether
they would make use of their right to conduct
their own cases, alternatively to get an attorney and/or to apply for
legal aid.
Nowhere is a date of the hearing indicated. Accordingly,
the Municipality would never have known when this application was to
proceed. No effective notice was therefore given to them. This is
apart from the fact that notice had not been given less than
fourteen
(14) days.
[12] It does not suffice to say the
Municipality in any event would not have appeared or filed a report.
That kind of approach
would result in no service and/or knowledge of
such applications to the Municipality who play an important role in
applications
like this for example to report to Court on the
availability of accommodation or consequences of eviction –
Absa Bank Ltd
v Murray And Another 2004 (2) 15 CPD at 30 C – F.
Blue Moontlight Properties v Occupiers
Of Saratoga Ave
[2008] ZAGPHC 275
;
2009 (1) SA 470
WLD at 480 G.
[13] Where the Municipality is not the
owner of the land in question it may in terms of Section 7(1) of PIE
appoint a facilitator
to attempt to mediate the dispute. The
Municipality has a legal interest in applications for eviction in
terms of PIE. In Cashbuild
(Sa) (Pty) Ltd v Scott and Others
2007
(1) SA 332
TPD at 340 the following was stated:
“This is not a mandate it
receives from an applicant – it is what parliament entrusts the
Municipality with, viz to
see to it that the Constitutional
provisions are not rendered superfluous.”
[14] In the circumstances I am not of
the view that the provisions of the act has been complied with at all
or that the object of
the statutory provision to wit effective and
proper notice to the Municipality had been achieved.
[15] The Magistrate in the
circumstances should not have granted the order. The Magistrate
should have found that there was no
proper compliance with the
provisions of the act and could not in the absence thereof have
granted an order of eviction.
[16] In my view the Magistrate should
merely have removed the application from the roll.
[17] Accordingly the appeal succeeds
and I make the following orders:
17.1 The appeal succeeds with costs.
17.2 The order of the Court a quo is
set aside and replaced with the following:
17.2.1 The application is removed from
the roll.
17.2.2 Applicant to pay the costs.
S. J. REINDERS (AJ)
I agree.
A. F. JORDAAN, J
On behalf of the appellant: Adv J.S.
Rautenbach
Instructed by: McIntyre & van
der Post
BLOEMFONTEIN
On behalf of the respondent: Adv
E.M. Grewar
Instructed by: Uys Qwelane Theron
van Niekerk Inc
BLOEMFONTEIN