Clearing up the confusion on evictions

May 1st, 2019

By Mohammed Moolla

There has recently been turmoil and confusion on how to proceed with eviction applications in respect of residential properties.

The judgment of McNeil and Another v Aspeling and Others (WCC) (unreported case no A85/18, 28-6-2018) (Davis AJ) handed down by the Western Cape Division of the High Court on 28 June 2018, the eviction procedure to be followed by the magistrate’s court in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) was confirmed.

Following the amendment of r 55 of the Magistrates’ Court Rules, the application procedure in the magistrate’s court is in all material respects identical to that in the High Court. Rule 55(1) now provides that every application shall be brought by notice of motion supported by an affidavit and addressed to the party or parties against whom relief is claimed and to the registrar or clerk of the court. The notice of motion must be in a form, similar to Form 1A, which is equivalent of the long form notice of motion used in the High Court. The notice of motion must set a day not less than five days after service on the respondent by which notice of opposition is required to be given and must stipulate a day on which the application will be heard in the absence of any notice of opposition.

Except in the case of urgent applications – where a different procedure may be adopted on proper motivation – service of the (long form) notice of motion and founding affidavit in terms of s 4(3) of PIE should ordinarily precede the ex parte application to court for authorisation and directions in regard to service of a s 4(2) notice, which will then be served subsequently at a stage when the hearing date has been determined. Thus, service will be effected twice, initially when the notice of motion and affidavit is served in accordance with the rules, and subsequently when the s 4(2) notice is served, which contains the hearing date.

The grounds for the proposed eviction must also be set out in the s 4(2) notice. The mere stating that the grounds are set out in the affidavit attached does not constitute proper compliance with s 4(5)(c) of PIE. The grounds of the proposed eviction need to be expressly stated in the s 4(2) notice for the notice to be effective. ‘The recipient should not be left to trawl through an affidavit in order to try and ascertain what grounds are relied on for eviction.’

Section 4(1) to (5) of PIE lays down peremptory requirements for obtaining of an eviction order. In terms of the s 4(1) proceedings may only be instituted by the owner of the property. In terms of s 4(2) at least 14 days before the date of the hearing, effective notice must be given in writing to the unlawful occupier and municipality having jurisdiction. In terms of s 4(3) the procedure for serving and filing papers is as prescribed by the rules of court. In terms of s 4(4) the court has to be satisfied that service cannot be conveniently or expeditiously effected to grant service in another manner. In terms of s 4(5) the notice of proceedings as contemplated in subs (2) must –

‘(a) state that proceedings are being instituted in terms of subsection 4(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.’

In the case of Cape Killarney Property Investments (Pty) Ltd v Mahamba and Others 2001 (4) SA 1222 (SCA) the court interpreted s 4 of PIE and set out the correct procedure to be followed in eviction applications.

First, it was held that the notice of eviction proceedings contemplated in s 4(2) of PIE must be authorised by an order of court in addition to the notice of proceedings in terms of the rules of court as contemplated in s 4(3) of PIE, namely the notice of motion.

Secondly, it was held that since the date of hearing of an application in the High Court is usually only determined after all the papers have been served, and seeing that the s 4(2) notice must indicate the date on which the application will be heard, that has the consequence that an application for authorisation to serve a s 4(2) notice can only be made after all the papers have been filed, that is after the notice of motion and affidavits have been served in accordance with the rules of court as contemplated in s 4(3).

The fundamental principle laid down in the Cape Killarney case was that the notice in terms of s 4(2) of PIE must inform the recipient of the date on which the eviction proceedings will be heard.

The step-by-step procedure is as follows:

  • Every application in terms of PIE is brought in terms of r 55 of the Magistrates’ Court Rules. It is brought on notice of motion supported by an affidavit as to the facts on which the applicant relies on relief. In terms of the notice the respondent is given five days to oppose the application. The respondent is also requested – if they wish to oppose the matter – to appoint an address where there are three or more attorneys practising independently of one another within 15 km of the clerk of the court.
  • Once the application papers are signed, the clerk of the court is approached to issue a case number and supply a date for when the main application will be heard. When requesting the date, the applicant must take into account how long it will take the Sheriff to serve this document, as well as the procedural rule of s 4(2) of PIE, which requires at least 14 days before the date of the hearing.
  • The application papers are then taken to the Sheriff for service.
  • On receipt of the return of service, the applicant drafts the application in terms of s 4(2). The grounds for the proposed eviction must be set out briefly in the
    s 4(2) notice. As stated earlier, the mere stating that they are fully set out in the supporting affidavit does not constitute proper compliance with s 4(5) of PIE. The grounds need to be effectively stated in the s 4(2) notice.
  • Once the application has been signed, the applicant approaches the magistrate at court with the ex parte papers, including proof of service by the Sheriff. The court will then be requested to consider the contents of the notice and suggested manner of service and to endorse its approval or disapproval thereof of the application.
  • Once the ex parte application is granted, the s 4(2) notice may be served on the respondents and the municipality having jurisdiction.
  • The service must take place in accordance with the directions of the court and at least 14 days before the hearing takes place. The 14-day period refers to ordinary days and not court days.
  • On the return date the court will hear evidence as to the equity provisions as set out in s 4(6) with regard to elderly persons, and households headed by women and/or children.
  • The court must then, in the light of all the facts placed before it, make an order as to what is just and equitable to grant an order for eviction considering the provisions of subss 4(6), 4(7), 4(8) and 4(9) of PIE.
  • Frequently, applicants are faced with the difficulty of effecting service. In that case the applicant will have to bring an application in terms of r 10(1)(b) read with r 55(4)(b). Rule 10(1)(b) provides that:

‘If service of process or document whereby proceedings are instituted cannot be effected in any manner prescribed in rule 9 … the person desiring to obtain leave to effect service may apply for such leave to a presiding officer, who may consider such application in chambers.’

The person desiring to obtain leave in the circumstances contemplated in r 10(1)(b) shall make an application to court setting forth concisely the nature and extent of their claim, the grounds on which it is based, on which the court has jurisdiction to entertain the claim, and also the manner of service which the court is asked to authorise. If the applicant is requesting for service other than personal service, the applicant should also set forth the last known whereabouts of the person and the inquiries made to ascertain their whereabouts. The court may make an order as to the manner of service it deems fit and shall further order time within which the notice of intention to defend is given or any other step is to be taken by the person to be served.

Rule 55(4)(b) makes provision for ‘[a]pplications to the court for authority to institute proceedings or directions as to procedure or service of documents [which] may be made ex parte where the giving of a notice of such application is not appropriate or not necessary.’

Mohammed Moolla BProc (UKZN) is a senior magistrate at the Wynberg Magistrate’s Court in Cape Town.

This article was first published in De Rebus in 2019 (May) DR 11.