REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 2024-084568
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISE S
25 June 2025
DATE
In the matter between:
GEORGE TROSKIE DE LANGE
and
JOHANNES HENDRIK BENADE
LEE-ANN VERA BENADE
CITY OF TSHWANE METROPOLITAN MUNICIPALITY Applicant
First Respondent
Second Respondent
Third Respondent
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties/their legal
representatives by e-mail and by uploading it to the electronic file of this matter on
Caselines. The date for hand-down is deemed to be 25 June 2025.
JUDGMENT
1
2
KUBUSHI, J
[1] This is an ex parte application in terms of section 4(2) of the Prevention of Illegal
Evictions from and the Unlawful Occupation of Land Act,1 whereby the Applicant
sought authorisation for the service of the Section 4(2) Notice on the First and Second
Respondents (“the Respondents”). The matter served before me in the unopposed
motion court of 17 March 2025. The application was opposed, the Respondents
having filed the notice to oppose on 12 March 2025. The Respondents had not filed
an answering affidavit b ut maintained that their entitled to argue the matter from the
bar since the ground of opposition was on a point of law.
[2] The issue that was to be decided was whether the section 4(2) application
complied with the provisions of section 4(5)(c) and if so, whether such non -compliance
rendered the application defective.
[3] The present application is an interlocutory application in an application for
eviction of the Respondents from a property alleged to be that of the Applicant. ("the
eviction application"). The eviction application was opposed, and the pleadings were
closed. Heads of Argument had been filed, and the Registrar had allocated the
opposed hearing date for 5 May 2025. As this is an ex parte application, it was not
served on the Respondents. The Respondents were said to have come to know about
the application on 12 March 2025. A letter was written by the Respondents’ attorneys
to the Applicants’ attorneys informing them that the application was defective and that
the Applicant start the application de novo . The Applicant’s counsel submitted that the
said letter was responded to, but the response appear ed not to be uploaded onto
Caselines, as such, the contents thereof w ere not taken into consideration for
purposes of this judgment.
[4] In terms of section 4(2) 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. The section is to be read with sub -section (5) which provides for
requirements that the notice of proceedings contemplated in sub -section (2) should
compl y with.
1 Act 9 of 1998.
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[5] The contention by the Applicant’s counsel was that there was no basis or merit
for the Respondents to oppose an ex parte application where an order is sought to get
the sanction from the court to inform the Respondents of the day on which the eviction
application was to be heard. Counsel argued that any defence which the Respondents
might have to the eviction , must be raised on that date. There was no merit for the
Respondents to convert the section 4(2) application, that was an ex parte application ,
into an opposed application , counsel argued .
[6] The gravamen of the Respondents’ complaint was that the Applicant’s ex parte
application in terms of section 4(2) was defective. Counsel argued that the
Respondents’ opposition was not premised on the procedural aspect as argued by the
Applicants’ counsel, but on the substance of the application. Counsel conceded that,
procedurally there was nothing wrong with the application, what was at issue was the
substance of the application.
[7] The contention by the Respondents’ counsel was that the section 4(2)
application d id not comply with the provisions of section 4(5)(c) which requires the
Applicant to set out the grounds upon which the eviction is sought. The non -
compliance according to the Respondents’ counsel was that the cause of action set
out in the section 4(2) founding affidavit was materially different from the cause of
action on which the eviction application was premised.
[8] The Respondents’ counsel argued that the ground for eviction in the section
4(2) application must concur with th e ground for eviction in the eviction application. If
they are different, a new cause of action is introduced which is contrary to the
provisions of section 4(5)(c). The submission was that the Applicant was prohibited in
law and in fact to introduce a new cause of action in the ex parte founding affidavit.
[9] Section 4(5)(c) provides that the notice of proceedings contemplated in
subsection (2) must set out the grounds for the proposed eviction. It is worth noting
that the word “must” is used in the said subsection which gives a connotation that
compliance is peremptory. It means that the sub -section must be complied with and
that failure to comply might render the application defective.
[10] It was common cause between the parties that the cause of action on which the
eviction application was premised was that of breach of a lease agreement. The
Applicant alleged in the founding affidavit to the eviction application that there was a
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lease agreement concluded by the parties and the Respondents failed to pay rental
and, as such , breached the terms of the said agreement. As a result of such breach,
the Applicant cancelled the lease agreement. This is basically what was pleaded in
the founding affidavit to the eviction application. The ground that is pleaded in the
section 4(2) a pplication is that the lease agreement has come to an end by effluxion
of time.
[11] On the face of the two applications it is clear that these are two different grounds
or causes of action set out for the eviction. However, the Applicant’s counsel denied
that the cause of action in the section 4(2) application was a new cause of action. He
argued that the cause of action had to be changed because, as he put it, life happened,
as the lease agreement had, at the time of instituting the section 4(2) application,
lapsed due to effluxion of time.
[12] According to the Respondent, the cause of action raised in the section 4(2)
application made its first appearance in the papers in the replying affidavit. The
alleged new cause of action was said to be a subject of a legal argument in the eviction
application and was raised as a point in limine in the heads of argument. As such, the
Respondent’s counsel argued that the Applicant want ed to have a tactical advantage
by raising a new cause of action for the first time in the reply. This , according to
counsel, was litigation by ambush. Counsel submitted that t he Respondents ha d to
oppose the section 4(2) application on this fact, otherwise, the Applicant would during
argument in the eviction application, argue that the Respondents acquiesced to the
new cause of action.
[13] I have to conclude without deciding the point , that, the ground for the eviction
set out in the section 4(2) application is materially different from the ground for the
eviction set out in the eviction application. On that basis, there is no compliance with
the requirements of section 4(5)(c). I have alrea dy indicated that compliance with the
provisions of sub -section 4(5)(c) is imperative. Non -compliance in this regard, is a
substantial non -compliance which cannot be condoned by the court, because s trict
compliance is required by the provisions of section 4(5)(c).
[14] I must also add, in passing, that because the section 4(2) application was
instituted ex parte , as is the norm, it should comply with all the requirements of an ex
parte application. Counsel for the Applicant gave an explanation orally in court why it
5
was that the cause of action appeared to be different to that disclosed in the eviction
application. This explanation should have formed part of the evidence in the founding
affidavit of the section 4(2) application.
[15] Counsel for the Respondents in his argument referred, correctly, to the decision
in Schlesinger v Schlesinger ,2 a judgment which is mostly referred to as the locus
classicus when it comes to ex parte applications. The court in that judgment held that
in ex parte applications all material facts must be disclosed which might influence a
court in coming to a decision.
[16] My conclusion is that the application should in essence be dismissed . However,
dismissing the application at this stage seems to be a harsh step to take for the
Applicant. Notification of the Respondents is a condition precedent to the hearing of
the eviction application, and I am reluctant to shut the door on the Applican t at this
stage. Striking the application from the roll to allow the Applicant to institute same de
novo , seems more appropriate under the circumstances.
[17] This judgment is delivered terribly late. The matter was heard in March 2025,
and the judgment ought to have been delivered before the hearing of the eviction
application, which was on 5 May 2025. I have to apologise profusely for such lateness ,
which was occasioned by circumstances beyond my control. I have , during the better
part of th at period , been afflicted by illness.
[18] On the issue of costs, the R espondent s’ counsel argued that the Applicant
should be held accountable for the Respondents unnecessary costs, including costs
of counsel on Scale B . In the exercise of my discretion, it is my view that costs in this
application should follow the successful parties. The Respondents are entitled’, as the
successful parties, to their costs.
[19] In the premises I make the following order
1. The application is struck from the roll.
2. The Applicant is ordered to pay the costs of the application which costs shall
include the costs of counsel on scale B.
2 1979(4) SA 342 (W).
APPEARANCES:
For the Applicant:
Instructed by:
For the First & Second Respondents
Instructed by:
Date of the hearing:
Date of judgment:
6 JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Adv CJC NEL
Assenmacher Brandt attorneys
Tel: 0117061312
Adv Scheepers
Sasson attorneys inc.
Tel: 010 020 6275
17 March 2025
25 June 2025