Theart and Another v Minnaar NO (A99/2008) [2008] ZAWCHC 43; 2009 (3) SA 503 (C) (7 August 2008)

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[2008] ZAWCHC 43
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Theart and Another v Minnaar NO (A99/2008) [2008] ZAWCHC 43; 2009 (3) SA 503 (C) (7 August 2008)

“
REPORTABLE”
IN THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE NO: A 99/2008
In the matter between:
J T
THEART
1
st
Appellant
COPPERSUN (PTY) LTD
2
nd
Appellant
v
DEON MINNAAR N.O.
Respondent
Coram
: Cleaver
et
Zondi JJ
Counsel for the appellants : Adv B Wharton
Attorneys for the appellants : R P Totos Attorneys (Mr R P
Totos)
Counsel for respondent : Adv C H J Maree
Attorneys for respondent : Van der Spuy & Partners
(Western Cape) (Mr G Stofberg)
Date of Hearing : 1 August 2008
Date of Judgment : 7 August 2008
IN THE
HIGH COURT OF SOUTH AFRICA REPORTABLE
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)
CASE NO: A 99/2008
In the matter between:
J T
THEART
1
st
Appellant
COPPERSUN (PTY) LTD
2
nd
Appellant
v
DEON MINNAAR N.O.
Respondent
JUDGMENT GIVEN THIS THURSDAY, 7 AUGUST 2008
­­­­­­­­­­
CLEAVER
J:
[1] The issue in this matter, which is an appeal against a decision
given by the magistrate at Stellenbosch, is the interpretation
to be
given to section 4 of the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998 (“PIE”).
[2] The
relevant portions of the section read 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 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 ss (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 ss (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 ss (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 ss (2) must –
(a) state that proceedings are being instituted in terms of ss (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.”
[3] Relying on certain remarks by
Brand
AJA, as he then was,
in
Cape Killarney Property Investments (Pty) Ltd v Mahamba
1
counsel for the appellants contended that the appellants were
entitled to receive two notices, namely a notice in terms of section
4(2) of PIE and a notice in terms of Rule 55 of the Magistrates’
Court Act, in proceedings for the appellants’ ejectment which
had
been brought by way of motion. Counsel relied particularly on the
statement
“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 requirements of s 4(3)
meaningless.”
2
[4]
In
Cape Killarney
Brand
AJA explained that
in High Court proceedings brought by way of application, the date for
the hearing of the matter would be determined
only after all the
papers on both sides had been served and he accordingly concluded
that it was at that stage that a section 4(2)
notice could be
authorised and directed by the court. As pointed out by counsel for
the respondent however, these remarks relate
to the peculiar
situation in an opposed High Court application; and further that the
Rules of the magistrates’ courts do not permit
of a similar
procedure. In an unreported judgment delivered by a full bench in
this division on 19 March 2008
3
,
Oosthuizen
AJ expressed the view that the
dictum
of
Brand
AJA should not be regarded as imposing a requirement of
substantive law in all eviction proceedings, nor should such
dictum
be applied to such proceedings other than those initiated by way of
notice of motion in the High Court. This must be so, for there
is no
provision in the Rules of the Magistrates’ Courts by which a
similar result could be achieved in the magistrates’ court.
[5] As I
read section 4 of PIE, it simply requires a written notice containing
the information listed in section 4(5) to be served
on the unlawful
occupier of the premises at least 14 days before the hearing of an
application for his eviction. As explained by
the learned judge in
Cape Killarney
, for the notice to comply with the provisions
of section 4(2), it must be authorised and directed by an order of
the court concerned
4
.
[6] It was
also made clear in
Cape Killarney
that the authorisation of
the notice by the court may be effected
ex parte.
[7] The
method adopted by the respondent in order to have its notice in terms
of section 4(2) authorised is somewhat unusual. On
24 October 2007
he applied to the magistrate Stellenbosch
ex parte
by means of
a notice entitled
“KENNISGEWING IN TERME VAN ARTIKEL 4(2) VAN
DIE WET OP VOORKOMING VAN ONWETTIGE UITSETTING EN ONREGMATIGE
BESETTING VAN GROND 19
VAN 1998”
for the following order:
“
1. Die
Eerste Respondent, asook alle okkupeerders wat onder hom onregmatige
okkupasie uitoefen, in kennis gestel word in terme van
die bepalings
van Art 4(2) van die Wet op Voorkoming van Onwettige Uitsetting en
Onregmatige Besetting van Grond, 19 van 1998 van
die aansoek om ʼn
Uitsettingsbevel soos uiteengesit in die meegaande Kennisgewing van
Mosie
.
2. Dat
die meegaande Kennisgewing van Mosie, tesame met beëdigde verklaring
en Aanhangsels daarby, asook die bevel wat hiermee versoek
word, deur
die Balju van hierdie Agbare Hof op die volgende wyse beteken sal
word:
Deur ʼn kopie hiervan op Eerste Respondent persoonlik te beteken;
Dat die Balju, addisioneel tot gemelde betekening, ʼn kopie van
die dokumente op die voordeur van die struktuur wat geaffekteer word
deur hierdie aansoek, vas te heg;
Deur ʼn kopie hiervan per geregistreerde pos op die
geregistreerde kantoor van Tweede Respondent te beteken;
Deur ʼn kopie op die Stellenbosch Munisipaliteit te beteken;
Dat die dokumente wat beteken word in terme van hierdie bevel in
Afrikaans sal wees en in geen ander amptelike landstaal van die
Republiek van Suid-Afrika nie.”
Attached to the application was a notice of motion addressed to the
appellants, together with a supporting founding affidavit and
annexures, recording that application was to be made on 29 November
2007 to the magistrate Stellenbosch in terms of section 4(1)
of PIE
for the ejectment of the appellants from the premises of the
respondent, said to be unlawfully occupied by the appellants.
The
founding affidavit set out the grounds upon which the eviction of the
appellants was sought and contained all the information
required by
section 4(5) of PIE. It may be mentioned that the directions for
service which were sought in terms of para 2 of the
ex parte
application were all incorporated in the notice of motion.
[8] The magistrate regarded the
ex parte
application to him as
one in terms of PIE for he endorsed the court file as follows:
Vir Appl: B. van Heerden
B. van
Heerden:
Vra dat hof aansoek toestaan soos op stukke dit is ʼn aansoek
i.t.v. art. 4(2) van PIE.
Na aanhoor van prok. vir applikant en die deurlees v.d. stukke
word die aansoek toegestaan soos versoek.
Keerdatum
29.11.07”
(The reference to a return date is somewhat confusing for no return
date, in the sense of the return date of a provisional order,
was
involved. The date recorded was of course the date on which the
application was to be heard.)
The notice
of motion for 29 November 2007 and supporting papers were served on
the appellants and the municipality on 26 October 2007
i.e. more than
14 days before the hearing on 29 November.
[9] At the hearing on 29 November the sole point in issue was one
taken
in limine
on behalf of the appellants, namely that they
were entitled to receive and the respondent was obliged to deliver
two notices of eviction,
one in terms of the procedure prescribed by
Rule 55 of the Magistrates’ Court Rules and the other in terms of
section 4(2) of PIE.
Since only one notice was received, it was
contended that the application should be dismissed. I should add
that as the appellants
failed to answer the allegations on which the
respondent based the application for eviction, those allegations must
be deemed to
have been admitted.
[10] The
magistrate dismissed the point taken
in limine
holding that
since Rule 55 of the Magistrates’ Court Rules provided for a
minimum of ten days notice to
be given to a respondent and
since PIE requires 14 days notice to be given to an unlawful
occupier, there was no reason why the two
notices could not be
combined. After having regard to the provisions of section 4(7) of
PIE and considering the relevant circumstances,
and having regard to
the fact that the first appellant
recorded in his answering
affidavit that the property in question was one of his homes, the
magistrate
granted an eviction order. The appellants now
appeal to this court against this ruling.
[11] No
doubt the matter would have been clearer had the order authorising
the notice to the appellants been incorporated and served
with the
papers – in fact the
ex parte
notice indicated that this was
to be done – but the first question to be answered is a simple one
namely, was the notice contained
in the application which the
appellants received, notice authorised and directed by an order of
court? If this question is answered
in the affirmative, the second
question is whether it was permissible for the notice to be combined
with or incorporated in the notice
of motion served in terms of Rule
55.
[12] The
magistrate who granted the
ex parte
order, who incidentally
was also the magistrate who granted the eviction order, was satisfied
that the notice contained in the application
which the applicants
were to receive was duly authorised and directed by him as his note
clearly indicates.
[13] In
considering the case for the appellants, one should of necessity have
regard to the objective sought to be achieved by PIE.
In this
connection I agree with and endorse the following view expressed by
Oosthuizen
AJ in the
Thiam
5
case:
“
The
purpose of the PIE Act is to ensure that occupiers of property are
not deprived of property except in terms of generally applicable
laws, and after a court has considered all relevant circumstances.
The PIE Act is not aimed at creating unnecessary and purposeless
procedural obstacles to the eviction of occupiers. As long as proper
notice of intention to seek an eviction has been served on
occupiers,
and they have been given a fair and adequate opportunity of drawing
all relevant circumstances to the attention of the
court seized of
the matter, the rights enshrined in Section 26(3) of the Bill of
Rights and protected by the PIE Act have been respected.”
[14] Counsel for the appellants submitted that what should have
happened was that once the magistrate had approved the notice in
terms of s 4(2), an approved notice should have been served on the
appellants together with a notice of motion. Respondent’s counsel
questioned why for practical purposes this was necessary. He pointed
out that this would have entailed the messenger of the court
serving
a pack of papers on the appellants which would have contained an
approved notice as well as a notice of motion which would
have
contained exactly the same information as that which appeared in the
approved notice. Accordingly he submitted that there was
no reason
why two notices could not in effect be combined in the notice of
motion.
[15] In my view the notice which the appellants received complied in
all respects with the provisions of section 4(5) of PIE and
I am also
satisfied that such notice, preceded as it was by the
ex parte
application in which the form of the notice to be given was put
before the court, was notice duly authorised by the court. In my
view there is no reason why the two notices which the respondent is
required to give could not be combined in one notice.
[16] Support
for this view is to be found in a recent judgment of the Full Court
of this division, handed down on 23 July 2008
6
.
In that matter, the only defence put up by the respondent in the
court
a quo
was that although two notices (i.e. a notice in
terms of s 4(2) and a notice in terms of Rule 55) had been served on
the respondent,
the order for eviction ought not to have been granted
as the s 4(2) notice had been defective. The submission was that
since
Cape Killarney
required two notices to be given, the
eviction order should not have been granted as only one effective
notice had been given. The
magistrate and this court on appeal
rejected that argument and held that read together, the two notices
complied with the requirements
of s 4 of PIE. Veldhuizen J, who
delivered the judgment, pointed out that there is nothing in PIE
which prohibits a notice of motion
from containing the ‘notice of
the proceedings’ and directions for its service in combination with
the main application for the
unlawful occupiers’ ejectment. He
also pointed out that the SCA did not decide in
Cape Killarney
that the notice in terms of s 4(2) could not be contained in the
notice of motion issued in terms of Rule 6 of the Uniform Rules of
Court.
[17] Finally,
there is also another reason why the view adopted by the magistrate
may be supported and that is that there is authority
for the
proposition that even where the formalities required by statute are
peremptory, one must consider whether the object of the
statutory
provision has been achieved where such formalities are not complied
with. In this connection the following extracts from
the judgment in
Unlawful Occupiers, School Site v Johannesburg
7
are instructive.
“
As
the appellant also correctly pointed out, it was held in Cape
Killarney Property (at 1227E-F) that the requirements of s 4(2) must
be regarded as peremptory. 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 has been
achieved (see eg 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) in para [13])”
8
“
[24]
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 the circumstances the s 4(2)
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 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).”
9
[18] In the present case we are dealing with an appellant who
occupies the premises in question pursuant to an agreement which
allowed
him to occupy the property with the option to purchase it for
a purchase consideration of R3.1 million and with payment for the
option
being effected in monthly instalments, pending the exercising
of the option. Although the option agreement was concluded with the
first appellant in his capacity as representative of the second
appellant, it is clear from the papers that the property is being
occupied by the first appellant who contended that he and his family
are entitled to the protection of PIE. The application for
eviction
was brought on the grounds of the appellants’ failure to pay an
instalment on due date. In the
School Site
case, the court
explained that the purpose of s 4(2) was to afford the respondents in
an application under PIE an additional opportunity,
apart from the
opportunity they had under the Rules of Court, to put all the
circumstances they alleged to be relevant before the
court
10
.
The appellants, who were at all times represented by an attorney and
knew full well what case they had to meet, chose not to place
any
circumstances which they alleged to be relevant before the court and
contented themselves with the submission that their procedural
rights
had not been observed. If indeed such rights were not observed, and
I make no such finding, I am of the view that the application
papers
served on the appellants substantially complied with the requirements
of s 4(2) and s 4(5) of PIE. In the magistrate’s
judgment handed
down on 6 December 2007, he allowed the appellants time until 16
January 2008 before the eviction order was to be
enforced. In my
view, it is not necessary to extend this period further.
[18] In the circumstances the following order is made:
1. The appeal is dismissed with costs.
2. The
decision of the magistrate is confirmed.
3. The first appellant and all others holding title through him are
ordered to vacate the premises at 65 Van der Stel Street,
Stellenbosch
within three (3) days from the date of this order.
___________________
R
B CLEAVER
ZONDI J
I agree.
___________________
D
H ZONDI
1
2001
(4) SA 1222
at 1227A-D
2
At
p1227J (para [12])
3
O
D Thiam v Magee Investments CC t/a Magee Property Investment
,
case no A516/2007
4
At
1227H
5
O
D Thiam v Magee Investments CC t/a Magee Property Investment
,
case no A516/2007
6
Ansie
Senekal v Winskor 174 (Pty) Ltd
,
case no A722/2007
7
2005
(4) SA 199
(SCA)
8
A
t
209G
9
At
p 210D
10
At
para [23]