Occupiers of 2[...] O[...] D[...] B[...] Street v Emikon Auctioneering Service and Import and Export (Pty) Ltd and Another (A2023/105517) [2024] ZAGPJHC 1254 (2 December 2024)

82 Reportability
Land and Property Law

Brief Summary

Eviction — Rescission of eviction order — Appeal against dismissal of rescission application — Appellants, unlawful occupiers of property, contended that eviction order was granted in their absence and without proper service — Court a quo found inordinate delay in seeking rescission and upheld eviction — Appellants argued that they were unaware of proceedings until eviction occurred — Court found that service was not properly effected as required by Rule 4 of the Uniform Rules — Holding that the judgment was erroneously sought and granted in absence of the appellants, thus warranting rescission under Rule 42(1)(a).

Comprehensive Summary

Case Note


The Occupiers of 2[…] O[…] D[…] B[…] Street, F[…] T[…], Johannesburg v Emikon Auctioneering Service and Import and Export (Pty) Ltd and City of Johannesburg Metropolitan Municipality

GJ Appeal Case No.: A2023/105517

GJ Case No.: 12423/2021

Date: 29 November 2024


Reportability


This case is reportable due to its implications for the principles of proper service in eviction proceedings and the rights of unlawful occupiers under the Prevention of Illegal Eviction and Unlawful Occupation of Land Act (PIE). The judgment restates the importance of ensuring that all parties are properly notified of legal proceedings affecting their rights, particularly in cases involving vulnerable populations.


Cases Cited



  • National Sorghum Breweries v International Liquor Distributors 2001 (2) SA 233 (SCA)

  • City of Johannesburg v Charging Tides 74 (Pty) Ltd and others 2012 (6) SA 294 (SCA)

  • City of Johannesburg v Blue Moonlight Properties 2012 (2) SA 104 (CC)

  • De Wet v Western Bank Ltd 1979 (2) SA 1031 (A)

  • Chetty v Law Society, Transvaal 1985 (2) SA 756 (A)

  • Naidoo and Another v Matlala NO and Others 2012 (1) 143 (GNP)

  • Moshoeshoe and Another v Firstrand Bank Ltd and Others [2018] 2 ALL SA 236 (GJ)


Legislation Cited



  • Prevention of Illegal Eviction and Unlawful Occupation of Land Act No 19 of 1998 (PIE)

  • Uniform Rules of Court


Rules of Court Cited



  • Uniform Rule 4

  • Uniform Rule 42


HEADNOTE


Summary


The appellants, unlawful occupiers of a property, appealed against the dismissal of their rescission application concerning an eviction order granted in their absence. The court found that the eviction application was not properly served, restating the principles of proper service and the responsibilities of the Municipality in eviction matters. The court ultimately held that the appellants made a sufficient case for rescission under Rule 42(1)(a).


Key Issues


The key legal issues addressed included the validity of service of the eviction application, the awareness of the appellants regarding the eviction proceedings, and the applicability of the doctrine of res judicata in the context of the rescission application.


Held


The court held that the eviction order was erroneously granted due to improper service and that the appellants had not been aware of the proceedings. The appeal was upheld, and the eviction order was rescinded.


THE FACTS


The appellants occupied a property in Johannesburg, housing approximately 45 individuals across 17 family units. The first respondent, the property owner, sought an eviction order, which was granted in their absence. The appellants claimed they were unaware of the proceedings and had not been properly served with the eviction application. After their eviction in June 2023, they sought to rescind the eviction order, arguing that the service was invalid and that they had a bona fide defense.


THE ISSUES


The court had to decide whether the eviction order was valid given the alleged improper service, whether the appellants had been aware of the proceedings, and whether the doctrine of res judicata applied to bar the rescission application.


ANALYSIS


The court analyzed the service of the eviction application, determining that it did not comply with the requirements of the Uniform Rules of Court. The court found that the appellants had not been properly notified of the proceedings, which led to the erroneous granting of the eviction order. The court also addressed the issue of delay, concluding that the appellants acted promptly once they became aware of the eviction.


REMEDY


The court upheld the appeal, rescinded the eviction order, and ordered the first respondent to pay the costs of the rescission application. Additionally, the court directed that the judgment be brought to the attention of the City of Johannesburg Metropolitan Municipality to address its inaction in eviction matters.


LEGAL PRINCIPLES


The judgment established that proper service is crucial in eviction proceedings and that a judgment granted in the absence of a party due to improper service can be rescinded under Rule 42(1)(a). The court emphasized the need for municipalities to engage actively in eviction processes to ensure equitable outcomes for unlawful occupiers.

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG

GJ APPEAL CASE NO.: A2023/105517
GJ CASE NO.: 12423/2021







In the matter between:

THE OCCUPIERS OF 2[…] O[…] D[…] B[…] STREET,
F[…] T[…], JOHANNESBURG Appellants

and

EMIKON AUCTIONEERING SERVICE
AND IMPORT AND EXPORT (PTY) LTD First Respondent

CITY OF JOHANNESBURG METROPOLITAN
MUNICIPALITY Second Respondent

Delivery: This judgment was handed down electronically by uploading judgment
on the electronic platform, by circulation to the parties’ legal representatives by e -
mail and release to SAFLII. The date and time for hand-down is deemed to be 10h00
on 29 NOVEMBER 2024.
(1) REPORTABLE: YES
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED: YES
_2December2024 _________________________
DATE SIGNATURE
2


Summary: Appeal against dismissal of rescission application – order granted in
absence of appellants - eviction application not properly served - principles pertaining
to proper service restated – inaction of Municipality deprecated – proper case for
rescission under Rule 42(1)(a) made out .


JUDGMENT


FARBER AJ (MUDAU AND DIPPENAAR JJ CONCURRING)

Introduction

[1] The appellants are the unlawful occupiers of an immovable property situate at
2[…] O[…] D[…] B[…] Street, F […] Township, Johannesburg (“the property”). The
property houses approximately 45 people, comprising 17 independent family units.
One such unit is housed in a room of a residential dwelling e rected on the property.
The remaining units are housed on separately constructed makeshift shacks.

[2] The first respondent is the registered owner of the property . It sought and
obtained an order from Senyatsi J on 19 July 2021 evicting the appellants from it.
This order was granted in the absence of the appellants who, when it came to their
knowledge, took a number of steps to redress the situation in which they then found
themselves. One such step was an application for the rescission of the judgment for
their eviction. This was opposed by the first respondent and ultimately dismissed by
the order and judgment of Makume J (“the court a quo”) on 11 and 18 July 2023
respectively. However, and with its leave, the appellants now appeal against the
whole of that judgment and order.

The facts

3

[3] The first respondent purchased the property on 3 March 2020 and on
2 October 2020 it was registered in its name. Mr Emmanuel Oradiegwu, a director of
the first respondent endeavoured to contact the appellants in order to address their
continued occupation of the property, seemingly with little success.

[4] On 11 February 2021 the first respondent ’s attorney Mr K Bam addressed a
letter to the appellants demanding that they vacate the property within 30 days,
failing which the first respondent would institute proceedings for their eviction from it .
Although the letter was sent by registered post there is no evidence on record which
suggests that the appellants received it. They certainly did not vacate the property as
demanded of them.

[5] Not unexpectedly , the first respondent on 15 March 2021 instituted motion
proceedings against the appellant s for their eviction from the property and for relief
ancillary thereto. It is alleged by the first respondent that service of the notice of
motion, the founding affidavit and the annexures thereto was e ffected on the
appellants. As to how that supposedly happened, the deputy sheriff recorded the
following in his return of service:-
“THIS IS TO CERTIFY THAT ON THE 21ST MAY 221 (sic) AT 10H57
AT 2 […] O[…] D[…] B[…] STRET (sic) F […] A COPY OF THE
ANNEXED NOTICE OF MOTION, FOUNDING AFFIDAVIT AND
ANNEXURE THERETO WAS DULY SERV ED UPON MRS SUE
MUKOKA OCCUPIER A RESPONSIBLE PERSON APPARENTLY
NOT LESS THAN SIXTEEN YEARS OF AGE WHO ACCEPTED THE
DOCUMENT ON BEHALF OF THE FIRST RESPONDENT AND
UNLAWFUL OCCUPIERS OCCUPYING 2 […] O[…] D[…] B[…]
STREET F […] JOHANNESBURG (AND ALL THOSE OCCUPYING
UNDER THE FIRST RESPONDENT ) AFTER THE DOCUMENT HAD
BEEN SHOWN AND THE NATURE AND CONTENTS THEREOF
EXPLAINED TO THE SAID MRS SUE MUKOKA”

[6] On 25 May 2021 the first respondent issued the notice required of it in terms
of section 4(2) of The Prevention of Illegal Eviction and Unlawful Occupation
of Land Act No 19 of 1998 (PIE). This notice, inter alia, recorded that the first
4

respondent intended to make application to the High Court in Johannesburg
on 19 July 2021 for the eviction of the appellants from the property. The
forms and contents of the notice were in terms of section 4(2) of PIE
authorised by the High Court, which, inter alia, directed that it be served “ON
ALL UNLAWFUL OCCUPIERS OCCUPYING 2 […] O[…] B[…] STREET,
F[…], JOHANNESBURG (And all those occupying under the F irst
Respondent) (the First Respondent) being adult persons whose full and
further particulars are to the Applicant unknown, by the Sheriff within whose
area of jur isdiction the property situation 2[ …] O[…] B[…] STREET, F […]
JOHANNESBURG in terms of Rule 4 of the Uniform Rules of the above
Honourable Court;”

[7] On 21 June 2021 the deputy sheriff sought to serve the notice on the
appellants. As to what he actually did appears more fully from his return of service
which reads as follows:-
“THIS IS TO CERIFY THAT ON THE 21ST JUNE 2021 AT 09H 58 AT 2[ …]
O[…] D[…] B[…] STREET F[…] A COPY OF THE ANNEXED DRAFT ORDER
MARKED “X” DATED 7TH JUNE 2 021 AND NOTICE IN TERMS OF
SECTION 4(2) OF THE PREVENTION OF ILLEGAL EVICTION FROM AND
UNLAWFUL OCCUPATION OF LAND ACT 19 OF 1998 WAS DULY
SERVED UPON MRS FIKILE MBATHA OCCUPIER A RESPONSIBLE
PERSON APPARENTLY NOT LESS THAN SIXTEEN YEARS OF AGE WHO
ACCEPTED THE DOCUMENT ON BEHALF OF THE FIRST RESPONDENT
ALL UNLAWFUL OCCUPIERS OCCUPYING 2 […] O[…] D[…] B[…] STREET
F[…] (AND ALL THOSE OCCUPYING UNDER THE FIRST RESPONDENT)
AFTER THE DOCUMENT HAD BEEN SHOWN AND THE NATURE AND
CONTENTS THEREOF EXPLAINED TO THE SAID FIKILE MBATHA”

[8] On 7 July 2021 the first respondent issued the notice of set -down reflecting
that the matter would be heard on 19 July 2021. The notice was addressed to the
Registrar. It was not served on the appellants.

5

[9] The matter was heard in the absence of the appellants on 19 July 2021, on
which occasion Senyatsi J in the unopposed motion court granted an order evicting
them and all persons claiming occupation through and under them from the pr operty.
This order is said to have been served on 16 August 2021. The deputy sheriff’s
return in this regard records the following:-
“THIS IS TO CERIFY THAT ON THE 16TH AUGUST 2021 AT 11H18 AT 20
OP DE BERGEN STREET FAIRVIEW BEING THE CHOSEN DOM ICILIUM
CITANDI ET EXECUTANDI OF THE FIRST RESPONDENT A COPY OF THE
ANNEXED FILING SHEET: COURT ORDER MARKED “X” DATED 19 TH
JULY 2021 WAS DULY SERVED UPON MR NELSON LUWALURA
OCCUPIER A RESPONSIBLE PERSON APPARENTLY NOT LESS THEN 16
YEARS OF AGE WHO ACCEPTED THE DOCUMENT ON BEHALF OF THE
FIRST RESPONDENT ALL UNLAWFUL OCCUPIERS OCCUPYING 2 […]
O[…] D[…] B[…] STREET F […] JOHANNESBURG (AND ALL THOSE
OCCUPYING UNDER THE FIRST RESPONDENT) AFTER THE
DOCUMENT HAD BEEN SHOWN AND THE NATURE AND CONTENTS
THEREOF EXPLAINED TO THE SAID MR NELSON LUWALURA”

[10] A writ of execution was issued on 25 January 2022 and more than one and a
half years later on 7 June 2023 the appellants were pursuant to it evicted from the
property by members of the South African Police Services and “ other persons
clothed in red overalls, the red ants …”. They were accompanied by the sheriff . The
appellants were on that occasion furnished with the order of court authorising their
eviction from the property.

[11] The appellants on that day reported what had happened to the attorneys who
had represented them in pr ior related litigation. They immediately went to the
property, apparently to attempt to restore the appellants’ prior occupation of it. This
was to no avail. The appellants nonetheless again took occupation of the property.
A number of procedures were thereafter instituted to preserve the appellants ’
continued occupation of the property. This included an urgent application launched
on 8 June 2023 for an order restoring them to occupation of the property. The matter
was struck from the roll for want of urgency. The appellants were not daunted for on
10 June 2023 they launched a further urgent application to stay the writ of execution
6

and to restore their occupation of the property pending the determination of an
application to rescind the judgment evicti ng them from it . Shepstone AJ on 12 June
2023, dismissed the application on the basis that the appellants had not sought to set
aside the writ of execution which had underpinned their ejectment and consequently
what they now sought was not within his competence to grant. The writ had by then
already been executed. The appellants thereafter instituted an urgent application for
the rescission and the setting aside of the eviction order of 19 July 2021, alternatively
for the variation of that order by staying the eviction pending the finalisation of a
process designed to secure temporary alternative accommodation for them . The
matter was opposed, and was ultimately heard by the court a quo wh ich on 11 July
2023 dismissed it with costs. The court a quo furnished reasons for so doing on
18 July 2023.
The appellants then lodged an application for leave to appeal . Shortly thereafter the
appellants launched an urgent application seeking a suspension of the eviction order
pending the determination of their application for leave to appeal or the determination
of any subsequent applications for leave to appeal . The first respondent on that
occasion furnished an undertaking that it would not attempt to e vict the appellants
from the property until the rescission application had been finally determined.

[12] As I have already indicated leave to appeal to this court was granted by t he
court a quo on 4 October 2023.

The issues

[13] The appellants in the court a quo contended that the application for their
eviction and the notice in terms of Section 4(2) was not served on them and that they
were quite unaware of the institution of the proceedings and its enrolment for hearing
on 19 July 2021. They further contended that had they been aware of the
proceedings they would have been opposed. They in this regard assert that the
eviction sought by the first respondent , if granted, would render them homeless and
that their personal circumstances were such that their eviction from the property
would not be equitable as required under PIE, unless some satisfactory arrangement
was made in relation to the grant to them of alternative accommodation. The
appellants consist of approximately 45 persons, comprising 17 households of which
7

16 are women, 16 are men and 13 are children. The children attend nearby schools
and the residents perform their informal jobs in the vicinity.

[14] The thrust of the appellants ’ case for the recission of the impugned judgment
was founded on the contention that it had been erroneously sought and granted in
their absence and thus fell to be set aside under the provisions of Rule 42(1)( a) of
the Uniform Rules of Court, alternatively under the common law. It was contended
that the service which was effected by the Sheriff was not effected on persons who
were occupying the property, but on other unknown individuals. It was further argued
that the issue was not res iudicata and the appellants were entitled to rescission of
the judgment. In the alternative it was argued that the eviction order should be varied
to link the order to the provision of emergency temporary accommodation by the
Municipality.

[15] The rescission application was strenuously opposed. The first respondent
contended that proper service of the application for eviction and the notice in terms of
Section 4(2) of PIE had been effected but despite that the appellants had taken no
steps to defend their position, which failure endured for a period of almost two years
from 21 June 2021 to 7 June 2023. This failure, so it was urged, represented an
absolute bar to the relief sought.

[16] The first respondent moreover contended that given the judgment of
Shepstone AJ the appellants were on the basis of the doctrine of r es judicata
precluded from assailing their eviction from the property.

[17] The first respondent did not deliver heads of argument and its attorneys of
record withdrew prior to the hearing of the appeal. Notwithstanding that the notice of
set down was served on the first respondent, it did not remedy its default or give any
indication that it persisted with opposing the appeal.

The Judgment of the court a quo

[18] The court a quo non-suited the appellants on several grounds.

8

[19] Firstly, it found that the appellants had been aware of the order for their
eviction since 2021 and there had been inordinate delay on their part in instituting the
application for its rescission. This, so it was found, constituted a bar to the relief
sought by the appellants.

[20] Secondly, it held that the appellants’ content ion that the papers in the eviction
proceedings, and the notice in terms of Section 4(2) of PIE had not been served on
them constituted “a fallacy meant to mislead the court .” It in this regard stated the
following in paragraph [15]:-
“The persons whom the processes were served identified themselves to the
Sheriff and even confirmed that the lived on the premises. If the people did not
live there why did they accept service? It does not make sense. It would have
been very easy for all the three persons to tell the sheriff that they do not live
there and then walk away. The mere fact that they actually gave their names
to a person they do not know gives credence to the fact that indeed they lived
there.”

[21] It went on to say the following in paragraph [17]:-
“… . In my view it will be f oolhardy to expect such an owner to serve on each
and every illegal occupier. Service on the occupiers was sufficient. The
Applicants knew about this matter as early as 2021 and decided to ignore it .
They can now (not) be heard to cry foul that they did not know.”

[22] Thirdly, it held that as the appellants had since 2013 known that they had no
title to remain on the property it was not open to them to now claim that the eviction
which had been decreed at the instance of the first respondent was “in any manner
faulty”.

[23] Fourthly, it referred to the judgment of Shepstone AJ and held “that the writ of
execution cannot be deal t separately from the application for rescission the one
compliments the other .” It went on to find the following in paragraph 16 of its
judgment:-
“There is also in my view a point taken by the Respondent that the matter is
res judicata because Shepstone AJ has already made a ruling on the facts
9

even though that matter was about stay o f execution. I have already indicated
about that the two are interlinked. The facts in the stay application are the
same as in this application. This is a typi cal case of the application of the
English Rule of ‘ once and for all.’ The facts relied upon in the stay application
are the same in this application. In the result the point that this application is
res ju dicata has a semblance of success and cannot be i gnored. The two
applications must be compared in their entirety.”
An appraisal of the facts determined by the court a quo

[24] Regrettably, the seminal factual finding which led to the dismissal of
appellants’ application for the rescission of the judgment was misplaced.

[25] It is incorrect to suggest (as the court a quo did) that the appellants had been
aware of the judgment for their eviction from the property . Their constant ref rain
under oath was that they only became aware of the judgment on 7 June 2023 when
they were evicted from the property. This evidence was not gainsaid and it is by no
means clear why the court a quo rejected it. As will presently emerge , service of the
papers in the eviction application and of the notice in terms of Section 4(2) of PIE
was not proper ly effected and did not draw the attention of the appellants that legal
steps had been taken to secure their eviction from the property. The notice of set -
down was moreover not served on them. It thus follows that the finding of the court a
quo that the appellants had inordinately delayed in instituting the application for the
rescission of the judgment sanctioning their eviction from the property cannot be
sustained. On the contrary , the appellants took a number of procedural steps to
redress the unenviable situation in which they found themselves . They did so with
great promptitude.

[26] The question of delay simply does not enter the equation.
10


The defence of the res judicata

[27] The issues which Shepstone AJ had to determine in relation to the appellants’
application to stay the writ of execution and to restore them to the property were not
the same issues which arose for determination in the rescission application.

[28] Shepstone AJ was not required to determine whether the judgment for the
appellants’ eviction had been properly sought and properly granted within the
meaning of Uniform Rule of Court 4(1)(a). He was moreover not required to
determine whether under common law the appellants had made out a case for the
rescission of that judgment. Shepstone AJ’s sole concern related to the question
whether, in light of the fact that steps had not been taken to set aside the writ , the
appellants had made out a case for the stay of the eviction and the interim
restoration of occupation of the property to them.

[29] The issues in both applications were disparate. It is trite that in those
circumstances the doctrine of res judicata can have no application.
1

The regulation of service

[30] The service of process is governed by Uniform Rule of Court 4 , the relevant
provision of which read as follows:-
“ 4(1)(a) Service of any process of the court directed to the sheriff and subject
to the provisions of paragraph ( aA) any document initiating application
proceedings shall be effected by the sheriff in one or other of the following
manners.
(i) by delivering a copy thereof to the said person personally : Provided
that where such person is a minor or a person under legal disability, service

1 National Sorghum Breweries v International Liquor Distributor s 2001(2) SA 233 (SCA) at
para [9]
11

shall be effected upon the guardian, tutor, cur ator or the like of such minor or
person under disability.
(ii) by leaving a copy thereof at the place of residence or business of the
said person, guardian, tutor, curator or the like with the person apparently in
charge of the premises at the time of delivery, being a person apparently not
less than sixteen years of age. For the purposes of this paragraph when a
building other than an hotel , boarding- house, hostel or similar residential
building is occupied by more than one person or family, ‘residence’ or ‘place of
business’ means that portion of the building occupied by the person upon
whom service is to be effected;
(iii) …
(iv) …”.

[31] It is manifest that the deputy sheriff chose to effect service of the notice of
motion and founding affidavit in the eviction application and the notice in terms of
section 4(2) of PIE pursuant to Rule 4(1)(a)(ii). Such recourse was in my judgment ill-
conceived. As I have previously stated the property was the home of approximately
45 persons comprising 17 independent family units. One such unit occupied a room
in the dwelling s ituate on the property. The remaining 16 units occupied makeshift
shacks which had been erected on it.

[32] It is in this regard clear that the persons upon whom service was effected in
each instance were not in charge of the separate dwellings located on the property .
On this ground alone reliance on Rule 4(1)(a)(ii) must fail . The suggestion that the
persons upon whom service was effected had been authori sed to accept service on
behalf of the appellants is no substitute for what the rule in express terms enjoins .
Moreover, the suggested authority of those persons has been placed in sharp
dispute by the appellants. They have on oath stated that the persons in question are
not known to them and certainly did not have their authority to accept service on their
behalf. This has not been gainsaid by the first respondent and there is no basis upon
which that body of evidence falls to be rejected. It is thus clear that service of the
three documents in question did not accord with the requirements of Rule 4(1)(a)(ii)
12

or for that matter any of the other R ules regulating the manner in which service is to
be effected.2

[33] The appellants have been consistent in their contention that they were
unaware of the issue of process in the eviction proceedings, the notice in terms of
section 4(2) of PIE and the date on which those proceedings had been enrolled for
hearing. Equally, they were unaware that an order for their eviction was granted on
19 July 2021. There is on the papers no reason to doubt their word on the matter . It
should in this regard be remembered that once they had on 7 June 2023 become
aware of the facts the appellants zealously sought to safeguard their position. I have
little doubt that they would have done the same had they been aware that the first
respondent had instituted proceedings for their eviction from the property and that
the matter was to be dealt with in court on 19 July 2021. This represents a cogent
factor indicating that the appellants’ lack of knowledge was not contrived ( as
suggested by the court a quo) but real.

Uniform Rule of Court 42

[34] Under Uniform Rule of Court 42(1) (a) Court m ay mero motu or upon the
application of any party a ffected rescind or va ry an order or judgment erroneously
sought or erroneously granted in the absence of any party affected thereby . It is well
established that in the absence of proper notice to the absent party a judgment will
be erroneously sought and erroneously granted.
3 I have little doubt that had the court
a quo been aware of the defective service it would have declined to enter judgment
against the appellants authorising their eviction from the property. It accordingly
seems to me that the judgment under scrutiny was erroneously sought and
erroneously granted within the meaning of Rule 42(1)(a).


2 On the importance of service generally see Mntambo and others v Changing Tides 74 (Pty) Ltd
(08/39225) [2009] ZAGPJHC 17 (4 May 2009) at para [4].
3 Harms: Civil Procedure in the Superior Courts B -303; HMT Projects (Pty) Ltd v Van der Heever NO
and other [2023] ZAGP PPHG 3 at para [20].
13

[35] For the application for Rule 42(1)(a) i t is not necessary for an applicant who
seeks relief thereunder to show the existence of a bona fide defence to the action. 4
The Rule is not peremptory and this holds the implication that if it appears that the
applicant for relief does not have a good defence rescission need not follow
mechanically despite the fact that the judgment was erroneously sought and
erroneously granted.

[36] This having been said I have little doubt that the appellants do have a bona
fide defence.5 Under the provisions of section 4(7) of PIE a court needs to determine
whether the eviction sought is just and equitable in all the circumstances. The
appellants make out the case that the eviction will render them homeless . This factor
alone will compel a court to make enquiries relating to the availability of alternative
accommodation and the suitability thereof . The facts advanced by the appellants
prima facie suggest that the order of the court a quo did not bring about a fair and
equitable result as foreshadowed in section 4(7) of PIE, at least in the terms in which
it was made.

[37] In the result I am persuaded that the appellants have, as required by Rule
42(1)(a), made good and sufficient cause for the rescission of the assailed judgment .
It is consequently not necessary to consider the position under common law in any
detail. I need merely record that the common law remedy which the appellants relied
upon in the alternative is in my view wide enough to warrant the rescission of the
judgment. All that need be demonstrated for relief on that basis is the existence of
both a reasonable and acceptable explanation for the default and a bone fide
defence.
6 That is dispositive of the appeal and it is not necessary to consider the
other issues raised in any detail.

Incidental matters

4 Harms: Civil Procedure in the Superior Courts B-303.
5City of Johannesburg v Charging tides 74 (Pty) Ltd and others 2012(6) SA 294 (SCA) at para [20] ,
City of Johannesburg v Blue Moonlight Properties 2012(2) SA 104 (CC).
6 See De Wet v Western Bank Ltd 1979(2) SA 1031(A) at 1042; Chetty v Law Society, Transvaal 1985
(2) SA 756 (A) at 764, Naidoo and Another v Matlala NO and Others 2012 (1) 143 (GNP) and
Moshoeshoe and Another v Firstrand Bank Ltd and Others [2018] 2 ALL SA 236 (GJ).

14


[38] As I have indicated there has not been proper service of the processes which I
have identified. It is clear that Rule 42 is not sufficiently wide in its terms to allow for
an efficacious service on the very many illegal occupiers of a single property which
has several separate dwellings occupied by different family units located on it. In this
type of case practi tioners need to give serious attention to Rule 4(2) or section 4(4)
of PIE which makes provision for substituted service where it is not possible to effect
service in one of the manners prescribed in Rule 4(1) . Provisions for the use of loud
hailers by the deputy sheriff to inform occupiers of the process in question, the
frequency of that use and the time of day when it should be resorted to need to be
considered. It may also be necessary to affix the process in question to boards
erected at prominent places on the property . The affixing of the process to the door
of each of the dwellings situate on the property , postulating that each dwelling is
capable of being to identified, represents an available option. The list is not
exhaustive and no doubt there are other methods outside the provisions of Rule 4(1)
to ensure that service is efficacious.

[39] The City of Johannesburg Metropolitan Municipality (the City) was cited as the
second respondent in the eviction proceedings . It did not enter the fray and did not
make available to the Court a quo information which would enable it to assess
whether the eviction of the appellants and the terms under which it was to occur were
in all the circumstances equitable. This is to be deprecated. The owners of
immovable properties and the unlawful occupiers thereof have competing interests .
The owners of properties would wish to exploit their rights of ownership to them to
the best possible advantage. The unlawful occupiers enjoy the right to housing and
by definition their occupation occurs against the will of the respective owners thereof.
The tension created in consequence of these competing rights is manifest and the
City has an important and fundamental role to play in ensuring that such tension is
contained and satisfactorily resolved. It needs to report to the c ourt on a variety of
matters so as to ensure that any eviction is in the circumstances equitable.

[40] It seems to me to be only proper that this judgment is to be drawn to the
attention of the City’s manager . Hopefully, this will put to an end the inaction of the
City of the kind which occurred in this case.
15


[41] In the result an order in the following terms will issue:-
A. The appeal is upheld.
B. The order of the court a quo is set aside and is to be substituted with
the following order:-
“1. The judgment of Senyatsi J evicting the applicants from the immovable
property situate at 2[ …] O[…] D[…] B[…] S[…], F […] Township,
Johannesburg is rescinded.
2. The first respondent is to pay the costs of the application for rescission.”
C. The Registrar is directed to furnish the manager of the City of
Johannesburg Metropolitan Municipality with a copy of this judgment and to
direct his attention to paragraph [39] thereof.
D. There will be no order for costs.

G FARBER
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG

APPEARANCES

FOR APPELLANT: ADV LWAZI MTSHIYO
INSTRUCTED BY: SERI LAW CLINIC
Office No. 601, Nzunza House
88 Jorissen Street
Braamfontein
Johannesburg
2017
Tel: (011) 356 5860
E-mail nkosinathi@seri-sa.org
muano@seri-sa.org
Ref: NK SITHOLE

For the Respondents: No Appearance