THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
CASE NO
: 54/04
In the matter between :
SAM KADISH MOELA Appellant
and
TICHAONA ABEL SHONIWE Respondent
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Before: STREICHER, NAVSA, CONRADIE, CLOETE JJA & MAYA AJA
Heard: 18 MARCH 2005
Delivered: 31 MARCH 2005
Summary: Act 19 of 1998 (PIE) – appeal against summary judgment evicting
unlawful occupier – no compliance with the provisions of s 4(2) –
object of s 4(2) not achieved – summary judgment set aside
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J U D G M E N T
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STREICHER JA
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STREICHER JA:
[1] The appellant appeals against an order granted by the Johannesburg
High Court (‘the court a quo’) at the suit of the respondent, evicting him
from a residential property.
[2] The respondent as the plaintiff instituted action against the appellant
as the defendant. In his particulars of claim the respondent alleges that he is
the owner of Erf 105 Elspark (‘the pr operty’); that the appellant is in
occupation of the property; that such occupation is without his consent and
thus unlawful; and that he is unable to sell the property (presumably as a
result of the appellant’s unlawful o ccupation thereof). When the appellant
entered appearance to defend th e respondent applied for summary
judgment. The notice of applicat ion for summary judgment reads inter alia
as follows:
‘FURTHER TAKE NOTICE THAT:-
1. This notice is being served upon both th e Defendant and the municipality having
jurisdiction 14 (fourteen) days prior to the hearing of the proceedings as
contemplated by the provisions of Section 4(2) of the Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act 19 of 1998.
2. These proceedings are being instituted for an order for the eviction of the
Defendant.
3. The Plaintiff will seek that the above Honourable Court hear this application on
the date and time reflected above.
4. That the grounds for the proposed evicti on of the Defendant are those set out in
the summons.’
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[3] In his affidavit resisting summar y judgment the appellant denies that
the respondent is the owner of the pr operty but admits that he and his
family are in occupation thereof. He states that his wife, his three minor
children, his 75 year old mother, hi s 23 year old daughter and her six
month old baby reside with him on th e property. According to him he and
his family have no other ‘suitable’ alternative accommodation and ‘the
rights and needs of [his] elderly moth er and the minor children residing in
[his] home would be unduly affected by an order of eviction’. No
particularity is furnished. These pr otestations of the appellant sound
somewhat hollow in the light of a statement by him that he is willing to pay
rental for his occupation of the property and also to purchase the property.
[4] The appellant raised the following additional defence:
‘I state that the Plaintiff/Applicant’s failure to comply with Section 4(2) of the
Prevention of Illegal Eviction from an Unlawful Occupation of Land Act, in that the
Plaintiff/Applicant has failed to ensure that the court served written and effective notice
of the proceedings on the Unlawful Occupier and the Municipality at least fourteen days
before the sale, precludes the Applicant from securing the relief prayed for.’
[5] The court a quo held that the latter submission was without
foundation as there was proof of servi ce on both the appellant and the
municipality. It did, however, find that the appellant had failed to disclose a
bona fide defence, and it accordingly granted summary judgment.
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[6] It is common cause between the parties that the provisions of The
Prevention of Illegal Ev iction from and Unlawful Occupation of Land Act
19 of 1998 (‘PIE’) are applicable. Section 4 of PIE provides as follows:
‘4 (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
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(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.’
[7] This court held in Cape Killarney Property In vestments (Pty) Ltd v
Mahamba 2001 (4) SA 1222 (SCA) that th ese provisions are peremptory
(paras 11 and 17). In respect of the notice required by s 4(2) it held that it
must be effective notice; that it must contain the information stipulated in
ss (5); and that it must be served ‘b y the court’. The latter requirement it
interpreted to mean that the contents and the manner of service of the
notice must be authorized and directed by an order of the court (para 11).
[8] In the as yet unreported judgment of this court in The Unlawful
Occupiers of the School Site v The City of Johannesburg (case no 36/2006),
referring to the fact that the requi rements of s 4(2) were peremptory,
Brand JA said (para 22):
‘Nevertheless, it is clear from the aut horities 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 had been achieved (see eg Nkisimane and others v
Santam Insurance Co Ltd 1978 (2) SA 430 (A) 433H-434B; Weenen Transitional Local
Council v Van Dyk 2002 (4) SA 653 (SCA) para 13).’
[9] Here the contents and manner of service of the notice had not been
authorized and directed by an order of court. However, the object of s 4(2)
is clearly to ensure that the unlawf ul occupier and municipality are fully
aware of the proceedings and that the unlawful occ upier is aware of his
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rights referred to in s 4(5)(d). It may we ll be that that object, in appropriate
circumstances, may be achieved notwithstanding the fact that service of the
notice required by s 4(2) had not been authorized by the court. That may
for example be the case if at the hearing it is clear that written and effective
notice of the proceedings containing th e information required in terms of
s 4(5) had in fact been served on th e unlawful occupier and municipality,
14 days before the hearing. Whether it would, need not be decided by us as
there is no basis upon which it can be found that the municipality had been
notified of the proceedings at all or that the municipality had any
knowledge of the proceedings.
[10] The respondent’s summons contai ning his particular s of claim had
not been served on the municipality. The notice of application for summary
judgment was addressed to the registrar of the court a quo , to the
appellant’s attorneys and to ‘ THE GERMISTON MUNICIPALITY
HAVING JURISDICTION’ next to which someone indicated by a
signature that he had received a copy of the document. It is not known who
the person is, what his relationship with the municipa lity is, where he
received a copy of the document and wh ether he had authority to receive
documents on behalf of the Germ iston Municipality. The court a quo
therefore erred in finding that th ere was proof of service on the
municipality.
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[10] There has been no compliance whatsoever with the provisions of
s 4(2) in so far as the municipality is concerned; it is not known whether
the municipality had any knowledge of the proceedings; and there can,
therefore, be no question of the object of the section, in so far as it requires
service of the notice on a municipality , having been achie ved. It follows
that the court a quo should have dismissed th e application for summary
judgment.
[11] In the circumstances it is not necessary to deal with the other
defences raised by the appellant. The following order is made:
1 The appeal is upheld with costs.
2 The order by the court a quo is set aside and replaced with the
following order:
‘1 The application for summary judgment is dismissed.
2 The costs of the application for summary judgment will be
costs in the cause.’
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P E STREICHER
JUDGE OF APPEAL
NAVSA JA)
CONRADIE JA)
CLOETE JA) CONCUR
MAYA AJA)