By Lebogang Raborife-Nchabeleng
The Magistrates’ Courts Rules do not compel a procedure differing from the High Court in eviction proceedings.
Theart and Another v Minnaar NO; Senekal v Winskor 174 (Pty) Ltd 2010 (3) SA 327 (SCA) was decided on 3 December 2009 before the amended Magistrates’ Court r 55 came into effect on 15 October 2015. Rule 55 is now aligned to High Court Uniform r 6. In his ruling in para 15 Bosielo JA stated as follows:
‘In order to avoid any possible confusion, I find it appropriate to encapsulate what I believe to be the import of what we have decided in this case:
- With regard to evictions under [Prevention of Illegal Eviction from Unlawful Occupation of Land Act 19 of 1998 (PIE)] the procedure in the high court is determined by s 4 of PIE and the Uniform Rules of the High Court. The combined effect of these statutory provisions has been explained by this court in Cape Killarney Property Investments (Pty) Ltd v Mahamba [and Others] 2001 (4) [SA] 1222 (SCA) ([2001] 4 All SA 479). As far as proceedings in the High Court are concerned, nothing I have said in this case must be understood to detract from that explanation.’
This was said in reference to the following para 12 in the Cape Killarney matter: ‘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 requirement of s 4(3) meaningless.’
Section 4(2) of PIE provides as follows: ‘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.’ The procedure regarding when to obtain directions of service of s 4(2) notice in the magistrate’s court is not as explained in this article but as appears in the Cape Killarney matter and is summarised as follows:
- Notice of motion and summons are issued and served as prescribed in the rules. In the Cape Killarney matter at para 14 it states: ‘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 be determined only 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’ (my italics).
- Once the period within which to enter a notice to oppose in application proceedings, or within which to enter the notice to defend has expired, and the respondent or defendant has not filed same, applicant or plaintiff approaches court ex parte for the s 4(2) PIE directions. The return date of the rule nisi will be the date of hearing of the matter on the motion court date for the unopposed roll.
I am of the opinion that it will be pre-mature to authorise s 4(2) notices before the notice of motion or summons have been served and the dies within which to respond has not expired as by that date, it is not yet known if the matter will take the opposed or unopposed route. To be on the safe side and to avoid unnecessary delays, one must when calculating the time period when the matter will be heard if unopposed in Form1A, calculate it taking into consideration the time periods in the rules, estimated period of service by sheriff of the initial proceedings, time it will take for a hearing date to be allocated, the first hearing (ex parte application), service by Sheriff of the order and the 14 day period, which must lapse before the date of hearing (second hearing).
If the application is opposed, a request will be made to be allocated a date of hearing (r 55(1)(j)). In action proceedings, once pleadings have closed, a request can be made to be allocated a trial date. In both instances, the date allocated will make provision for the s 4(2) ex parte application, sufficient time for service and the 14 day period to lapse.
Sight must not be lost of the purpose of the s 4(2) notice especially in unopposed matters. Although, in most instances, founding affidavits will contain factors by the applicant, which the court must take into account to arrive at a just and equitable decision, whether or not to grant an eviction order, the directions by court on service of s 4(2) ensure that the hearing is brought to the attention of the other party and all other stakeholders that may assist in it arriving at that decision. This cannot be achieved by notice of set down where the rules provide for other methods of service besides personal service.
Practitioners complain that insisting on service of both the document initiating proceedings and s 4(2) notices separately is costly and time consuming especially in unopposed matters where the date of hearing can be determined as suggested above. There is, in my opinion, merit to the argument but PIE is legislation that was enacted to give effect to s 26(3) of the Constitution. The resultant consequences of granting an eviction order can lead to homelessness or interference with the property rights of the property owner if the order is granted and suspended or refused. As stated in para 20 of the Cape Killarney matter: ‘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.’
Mogoeng CJ published ‘Norms and standards for the performance of judicial functions’ on 28 February 2014 (GN 147 GG37390/28-2-2014) whose objective is to –
- enhance access to quality justice for all;
- affirm the dignity of all users of the court system; and
- ensure effective and expeditious adjudication and resolution of all disputes through the courts.
Attorneys must ensure that all the procedural aspects set out in the rules are adhered to, to avoid unnecessary delays in finalisation of matters.
Lebogang Roborife-Nchabeleng BProc (NWU) is a magistrate in Morebeng.
This article was first published in De Rebus in 2017 (Jan/Feb) DR 24.
