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[2001] ZASCA 87
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Cape Killarney Property Investments (Pty) Ltd v Mahamba and Others (495/99) [2001] ZASCA 87; [2001] 4 All SA 479 (A); 2001 (4) SA 1222 (SCA) (10 September 2001)
REPORTABLE
IN THE SUPREME COURT OF
APPEAL
OF
SOUTH AFRICA
Case No:495/99
In
the matter between:
CAPE KILLARNEY PROPERTY
INVESTMENTS
(PROPRIETARY)
LIMITED
Appellant
AND
FUSILE
MAHAMBA AND SECOND TO FIVE-HUNDRED
AND
FORTY-THIRD
Respondents
CORAM:
Vivier ADCJ, Howie JA and
Brand AJA
HEARD:
28 August 2001
DELIVERED:
10 September 2001
Procedural
requirements of s 4 of the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998
J U D G M E N T
BRAND AJA
BRAND AJA
[1]
Appellant company is the owner of an immovable
property known as Doornbach Farm ("the property") situated
within the municipal
area of Blaauwberg on the outskirts of
Cape Town. Although the property is zoned "industrial"
it cannot
at present be used for any such purpose since it has become
the site of an informal settlement. The settlement
consists
of 542 dwellings. First to 542nd respondents
("respondents") together with their families are the
occupants of these
dwellings. In the Court
a
quo
the Blaauwberg Municipality was
cited as the 543rd respondent. No relief was however sought or
granted against it and it is
therefore not a party on appeal.
[2]
Appellant's case is that respondents are occupying
the property without its consent and that they are therefore
"unlawful occupiers"
as contemplated by the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998
('the Act").
Consequently appellant proceeded
to set in motion what it claimed to be the legal machinery provided
for in s 4 of the Act
for the eviction of respondents and their
families from the property.
[3]
Its first step was to seek and obtain an order
("the original order") from Foxcroft J in the Cape of
Good Hope Provincial
Division on 22 June 1999 without notice and in
the absence of respondents. To the particular terms of
the order I shall
presently return. In the main, however,
it consisted, firstly, of a rule
nisi
directing respondents to show cause on 28 July 1999 why an order for
their eviction from the property should not be granted and,
secondly,
of directions for service of the order upon respondents.
[4]
Respondents did not directly respond to the rule
nisi
.
Instead, on 27 July 1999, Ms Doris Tshofuti ("Tshofuti"),
an owner of one of the dwellings on the property,
but not a named
respondent, launched a substantive application on behalf of all the
respondents in terms of rule 6 (12)(c) of the
Uniform Rules of
Court. This rule provides that " a person against
whom an order was granted in his absence in
an urgent application may
by notice set down the matter for reconsideration of the order".
Accordingly, the relief
sought by Tshofuti on behalf of respondents
was that the original order be reconsidered and set aside.
[5]
Tshofuti explained that although she was
authorised by some of the respondents to bring the rule 6 (12)(c)
application on their
behalf, she was unable to obtain such authority
from every one of the respondents. She contended,
however, that she
was entitled to approach the court also on behalf
of those respondents from whom she could not obtain specific
authority by virtue
of the provisions of section 38 of the
Constitution Act 108 of 1996. Neither in the Court
a
quo
nor in this Court was Ms Tshofuti's
locus standi
raised by appellant as an issue of contention.
Consequently her
locus standi
to act on behalf of first to 542nd respondents must at this
stage be accepted.
[6]
The matter was postponed on various occasions.
Eventually it came before Hlophe DJP. He decided that
respondents'
rule 6 (12)(c) application should succeed and ordered
that the rule
nisi
issued
under the original order be discharged with costs, including the
wasted costs occasioned by the various postponements.
Although the order by Hlophe DJP in its strict terms refers to the
discharge of the rule the obvious intention was, in my view,
to grant
the relief sought in the rule 6 (12)(c) application, namely to set
the original order aside. Appellant appeals
to this Court
with the leave of the Court
a quo,
against its judgment which has since been reported under the
reference
Cape Killarney Property
Investment (Propriety) Ltd v Mahamba and others
2000 (2) SA 67
(C)
[7]
In this Court respondents raised the preliminary
point that the decision of the Court
a
quo,
to set the original order aside,
was not appealable in that it did not constitute "a judgment or
order" as contemplated
by s 20 of the Supreme Court Act 59 of
1959. Without deciding the point
in
limine
I prefer to consider the matter
on the assumption of appealability.
[8]
In view of the issues raised by the appeal, a
citation of the full terms of the rather lengthy original order as
well as the relevant
provisions of section 4 of the Act seems to be
unavoidable. The original order reads as follows:
"1.
A rule
nisi
is issued calling upon the first to
542nd respondents to show cause on 28 July 1999 at 10h00, ...
why an order should not
be made in the following terms:
1.1
An order for the eviction of the first to 542nd respondents from
the applicant's farm
being Doornbach Farm, Potsdam Road, Killarney,
Western Cape.
1.2
An order determining the date by which the said respondents must
vacate the said farm.
1.3
An order determining the date on which the eviction order in
Paragraph 1.1 above may be
carried out.
1.4
An order for the demolition and removal of the buildings and
structures erected by the first
to 542nd respondents on the said
farm.
1.5
...
1.6
An order that the first to the 542nd respondents pay the applicant's
costs of suit.
2.
The first to the 542nd respondents are hereby informed that:
2.1
Applicant's application is being instituted in terms of section 4(1)
of the Prevention of
Illegal Eviction from and Unlawful Occupation of
Land Act 19 of 1998;
2.2
The application is brought on the alleged grounds that the first to
the 542nd respondents
unlawfully occupy Doornbach Farm in that
neither permission nor consent for their occupation has allegedly
been given to any one
or more of them;
2.3
The first to the 542nd respondents are entitled to appear before
the above Honourable
Court on 28 July 1999 at 10h00 to defend these
proceedings and that they have the right to apply for legal aid.
3.
Service be effected by delivering a copy of this order to each of the
respondents
in person, or failing such personal service, by
delivering and leaving a copy of the said order at the structures set
out in the
first column of Annexure "SYR2" of the
applicant's founding affidavit on or before 30 June 1999.
4.
Those respondents who intend to defend applicant's application are
directed to deliver
a notice of their intention to do so by serving a
copy thereof at the offices of applicant's attorneys ... and filing
the original
thereof at the office of the Registrar of the Honourable
Court ... on or before 14 July 1999.
5.
Applicant is ordered to make copies of the notice of motion,
supporting affidavits
and annexures available on or before 21 July
1999 to those Respondents who by 14 July 1999 have given notice of
their intention
to defend in terms of paragraph 4 above."
[9]
S
ection 4 of the Act, where relevant
for present purposes, provides:
"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 subsection (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 subsection (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 subsection (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 subsection (2) must
(a)
state that proceedings are being instituted in terms of subsection
(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."
[10]
Appellant's justification of the original order is
largely based on its interpretation of section 4. Before
I deal with
the interpretation contended for by appellant, however,
let me state my own understanding of the section.
[11]
Section 4(1) makes it clear that the provisions of
the sub-section that follow are peremptory. It also
defines the "proceedings"
to which the section applies,
namely proceedings for the eviction of an unlawful occupier.
Section 4(2) requires notice
of such proceedings to be effected on
the unlawful occupier and the municipality having jurisdiction, at
least 14 days before the
hearing of those proceedings.
Section 4(2) further provides that this notice must be effective
notice; that it must
contain the information stipulated in ss (5) and
that it must be served by the court. The term, "court"
is
defined in section 1 of the Act as the "High Court or the
magistrates' court". Although s 4(2) could have
been
more clearly worded, it is obvious in my view that the legislature
did not intend physical service of the notice by the court
in the
person of a judge or magistrate. On the other hand, mere
issue of the notice by the registrar or clerk of the
court would not
suffice. What is intended, I believe, is that the
contents and the manner of service of the notice
contemplated in ss
(2) must be authorised and directed by an order of the court
concerned.
[13]
Section 4(3) provides that notice of the
proceedings must be served in accordance with the rules of the court
in question.
Accordingly, for purposes of an application
in the High Court, such as the one under consideration, s 4(3)
requires that a notice
of motion as prescribed by rule 6 be served on
the alleged unlawful occupier in the manner prescribed by rule 4 of
the rules of
court. 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 section 4(3) meaningless.
[14]
The fact that the s 4(2) notice is intended as an
additional notice of forthcoming eviction proceedings under the Act
is also borne
out by s 4(4). The latter subsection
provides for the possibility of substituted service where the court
can be satisfied
that for reasons of convenience or expedience, the
notice of motion cannot be serviced in the manner prescribed by rule
4.
However, even in this event, s 4(2) must still be
complied with since s 4(4) is expressly made subject to the
provisions of ss
4(2).
[15]
Section 4(5)(b) requires the s 4(2) notice to
indicate the date upon which the court will hear the eviction
proceedings.
In High Court proceedings by way of
application this date of hearing will only be determined after all
the papers on both sides
have been served. It follows, in
my view, that it is only at that stage that the s 4(2) notice can be
authorised and
directed by the court. From the judgment
of the learned Judge
a quo
(76 I-J) it appears that according to his understanding of s 4(2) the
notice contemplated by that section is to precede service
of the
notice of motion in terms of the rules and that in fact the minimum
period of 14 days stipulated in the section is
to elapse before
the eviction proceedings can be instituted. As appears
from what I have already said, this interpretation
cannot be
supported .
[16]
Section 4 does not indicate how the
court's directions regarding the s 4 (2) notice is to be obtained.
A common
sense approach to the section appears to dictate, however,
that the applicant can approach the court for such directions by way
of an
ex parte
application.
[17]
This immediately brings me to the
contention on behalf of appellant that the original order was
intended to be no more than a ruling
on procedure and that its only
object was to satisfy the provisions of s 4(2) of the Act.
Consequently, so it
was contended, there was no reason why the
original order could not be sought and granted on an
ex
parte
basis. I do not agree
with these contentions. The order that was sought and
granted included a rule
nisi
directing respondents to show cause why they should not be evicted
from the property. I agree with the view of the
Court
a
quo
(at 74 G-H) that the rule
nisi
cannot be described as a ruling on procedure only. It
constituted substantive relief. More particularly,
what
was sought and granted included an eviction order in the form of a
rule
nisi
.
[18]
It follows that in the light of the peremptory
procedural requirements of s 4(1)-(5) the original order could not
have been obtained
on an
ex parte
basis. The Court
a
quo
was therefore correct in finding
that for this reason alone the original order was incompetent and had
to be set aside.
[19]
In the opinion of the Court
a
quo
(at 77 C-F) there was another
reason why the original order could not stand, namely that paragraphs
3, 4 and 5 thereof authorised
a further deviation from the provision
of s 4. I find myself in agreement with this
consideration as well.
[20]
Applicant did not contend that its case
was one of urgency. It could hardly do so in view of the
fact that some of the
respondents had been living on the property for
up to 18 years. It therefore did not rely on the
provisions of s 5
of the Act nor did it make out a case of urgency
under court rule 6(12). Nevertheless it sought and
obtained an order
to deviate, for example, from rule 6(5) in that
respondents were required first to give notice of their intention to
oppose before
they were to be provided with applicant's notice of
motion and the annexures thereto. Moreover, according to
the timetable
set by the original order, respondents were obliged to
file their answering papers within six calendar days of their receipt
of
appellant's papers, as opposed to the aggregate of twenty court
days required by rule 6.
[21]
In this Court appellant's argument in
defence of paragraphs 3, 4 and 5 of the original order was that on a
proper interpretation
of s 4 of the Act, the notice contemplated by s
4(2) is intended as a substitute for and not in addition to the
notice required
by court rule 6. I believe that there are
at least two reasons why this interpretation cannot be sustained.
First, the reason that I have already alluded to, namely that it will
render the provisions of s 4(3) and s 4(4) meaningless.
Secondly, the acceptance of this construction will afford respondents
in eviction proceedings under the Act less notice and substantially
less time to put their case before the court than is the case with
respondents in ordinary motion proceedings. It can
be
accepted with confidence that this was not what the legislature
intended. The Act has its roots,
inter
alia
, in s 26(3) of the Constitution
whereby "no one may be evicted from their home without an order
of court made after consideration
of all the relevant
circumstances". Accordingly the purpose of s 4(2) is
clearly to afford the respondents in
eviction proceedings a better
opportunity than they would have under the rules to put all the
circumstances that they allege to
be relevant before the court.
[22]
It follows that in my view the original order was
rightly set aside. In these circumstances it is not
necessary to deal
with the further reasons for its decision advanced
by the Court
a quo
.
[23]
This brings me to appellant's final objection on
appeal, namely, that the Court
a quo
erred in ordering appellant to pay the
wasted costs occasioned by all the postponements of the matter,
including three postponements
requested by respondents. I
do not believe, however, that the costs order made was
unreasonable. Respondents
did not really seek an
indulgence when they requested postponements on those three
occasions. What they were in effect
seeking was an
adequate opportunity to consider their position regarding the
eviction application, which opportunity they had effectively
been
denied by the terms and time constraints of the original order.
[23]
For these reasons the appeal is dismissed with
costs.
FDJ BRAND
ACTING JUDGE OF APPEAL
CONCURRED
:
Vivier ADCJ
Howie JA