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[2009] ZAGPJHC 17
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Mntambo and Others v Changing Tides 74 (Pty) Ltd (08/39225) [2009] ZAGPJHC 17 (4 May 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(SOUTH
GAUTENG DIVISION JOHANNESBURG)
CASE
NO: 08/39225
REPORTABLE:
YES/NO
OF INTEREST TO OTHER
JUDGES: YES/NO
REVISED
In
the matter between:
MNTAMBO
FLORA
First Applicant
OCCUPIERS
OF 50 DAVIES STREET,
DOORNFONTEIN,
JOHANNESBURG
Additional Applicants
and
CHANGING
TIDES 74 (PTY) LTD
Respondent
JUDGMENT
MATOJANE.AJ
:
INTRODUCTION
[1]
This is an application to rescind an eviction order granted to the
respondent by this
court on the 22 April 2008 in terms of the
Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act 19 of 1998 (PIE)
against them.
[2]
The basis for the application, as I understand it, is that:
4.1
Firstly, applicants were not in wilful default
4.2
Secondly, application was erroneously sought or erroneously granted,
because a necessary party to the proceedings
was not joined and the
Court was not furnished with the requisite information to determine
whether the eviction was just and equitable,
and
4.2
Lastly, applicants had a bona fide defence.
[3]
The applicants raised several defences including non-service of the
proceedings on
them, if I deal with and dispense with the matter on
that defence then, I need not deal with any other issues. The matter
was not
referred to oral evidence in terms of Rule 6(5)(g) of this
Court. The central issue is whether there is good cause shown by the
applicants for rescission.
8.
Regarding "good
cause" the SCA, in Silber v Ozen Wholesalers (Pty) Ltd 1954
(2)
SA (A) at 352 said that "good cause" includes, but is not
limited to the existence of a substantial defence. Erasmus
at
B203-204 states that:
"It has been held
that the requirement of 'good cause' cannot be held to be satisfied
unless, there is evidence not only of
the existence of a substantial
defence but, in addition, of the presently held desire on the part of
the applicant for relief,
actually to raise the defence concerned in
the event of the judgment being rescinded. The requirement that the
applicant for rescission
must show the existence of a substantial
defence does not mean that he or she must show a probability of
success: it suffices if
he or she shows a prima facie case, or the
existence of an issue which is fit for trial. The applicant need not
deal fully with
the merits of the case, but the grounds of defence
must be set forth with sufficient detail to enable the court to
conclude that
there is a bona fide defence, and that the application
is not made merely for the purpose of harassing the respondent."
MATERIAL
FACTS
[2]
The respondent, as applicant, applied for and was granted two (2)
court orders, on
17 March 2008 and 3 April 2008 respectively. In
terms of those orders, the respondent was authorised and directed by
this Court
to serve its Notice of Motion, Affidavit and Section 4(2)
Notice on the applicants. The relevant portions of the orders are
identical
and read as follows:
"1.2
that the Sheriff of the court be authorised and directed to affix a
copy ... to the door of each and every
room, partition or structure
within the property that appears to be occupied, alternatively, slide
copies ... under the door of
such room, partition or structure;
1.3
that the Sheriff of the court assign a number to each room, partition
or structure within the property that
appears to be occupied..."
The
Sheriff served the Notice of Motion and Affidavits on 17 March 2008,
and the Section 4(2) Notice on 3 April 2008. The relevant
portions of
the returns of service are identical and read as follows:
"... at 48 and 50
Davies Street, Doomfontein, Johannesburg ... 40 (forty) copies ...
was served in the following manner
1.
by affixing copies to all entrances to the property
2.
by affixing copies to the door of each and every room within
the property that appeared to be occupied, alternatively by sliding
copies thereof under door of such room
3.
copies thereof served upon Mr Mavuso caretaker
4.
there are ±150 occupied rooms within ± 380
occupiers ..."
[3]
The applicants deny receipt of either the Notice of Motion on the
Section 4(2) Notice.
On 22 April 2008 the respondent obtained the
order to evict the applicants from the property. The applicants did
not oppose the
order nor were they present in the court. The
applicant said that had they been properly served and notified, they
would have opposed
the granting of the order. The respondent
contended that there was proper service in terms of the order.
LEGAL
PRINCIPLES
[4]
It is trite law that the contents of a return of service are prima
facie proof of
the truth of its contents. However, in this case,
there are facts before this Court indicating that the returns of
service were
clearly inadequate or incorrect. The PIE Act (19 of
1998) prohibits unlawful eviction and provides lawful procedures for
the eviction
of unlawful occupiers. Section 4 provides 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 an
owner 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
...
4
Subject to the provisions of subsection (2) if a court is
satisfied that service cannot be effected in terms of the rules,
service
must be effected in the manner directed by the court.
5.
The notice of proceedings contemplated in subsection (2)
must...
(d)
state that the unlawful occupier is entitled to appear before the
court and defend the case ..."
Whilst
not every deviation from a literal prescription is fatal, the manner
in which the Sheriff served the process, in this case
before me, is
fatally flawed and deviates substantially from the manner of service
authorised and directed by this Court. The number
of copies referred
to in the returns was too few to effect service as required by the
court order. The returns of service indicate
that there were
approximately 380 occupiers and 150 occupied rooms at the property,
and that 40 copies of each order were affixed
to, or slid under the
door of each room. No numbers were assigned to each room, partition
or structure within the property that
appears to be occupied.
Clearly, the applicants were prejudiced and cannot be said to have
been in wilful default. The object of
section 4(2) is to ensure that
the unlawful occupies, such as the applicants, are aware of their
rights referred to in section
4(5)(d). The Constitution also provides
in section 26(3) that -
"No one may be
evicted from their home ... without an Order of Court made after
considering all the relevant circumstances.
No legislation may permit
arbitrary evictions"
In
the matter before this Court, the applicants have occupied the
property prior to the respondent's acquisition of ownership thereof
and for more than six (6) months. The court which granted the order
on 22 April 2008 did not consider all the relevant circumstances
including whether land can reasonably be made available by the
municipality for the relocation of the applicants which include
minor
children and women and elderly persons. The shelter that the
municipality is lawfully obliged to provide need not necessarily
be
located within the inner city. The applicants are clearly poor and
desperate.
I
am of the view that the applicants have shown sufficient cause for
rescission of the court order.
[5]
In the result I order the following -
1.
The order of court dated 22 April 2008 is rescinded.
2.
Costs be costs in the course.
MATOJANE
ACTING
JUDGE OF THE HIGH COURT