Section 4(2) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act – why calendar days and not court days

November 1st, 2022
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It is trite that in order to evict unlawful occupiers from property used for residential purposes, the procedure as contemplated in the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the PIE Act) must be followed.

Section 4(2) of the PIE Act requires that the property owner (or the person in charge of the property at the relevant time) seek the authorisation of a notice (a so-called ‘s 4(2) notice’) advising the occupiers of the date on which the eviction will be heard by the court. In most courts, the courts also require that additional aspects be included in the s 4(2) notice (which is recommended) such as, that the occupiers –

  • may be present at and participate in the hearing of the eviction matter;
  • may obtain and make use of legal representation;
  • are warned that the court may grant an eviction order even if the occupiers do not appear; and
  • are requested to bring their respective circumstances to the attention of the court.

The PIE Act also requires that the s 4(2) notice be served ‘at least 14 days before the hearing’. This requirement is pre-emptory, and non-compliance is fatal as the PIE Act does not provide for condonation in the event of short service, which the courts are very mindful of.

Given the drastic effect of non-compliance with timeous service, the courts have required strict adherence with s 4(2) of the PIE Act and this has raised an interesting question: Must service take place at least 14 ‘calendar days’ before the hearing, or must service take place at least 14 ‘court days’ before the hearing?

Considering the above question, it would be prudent to consider what are ‘calendar’ days and what are ‘court’ days. In brief: A ‘calendar day’ is any day of the week as it would appear on a calendar, inclusive of officially declared public holidays, Saturdays and Sundays; and, a ‘court day’ is any day of the week as it would appear on a calendar, exclusive of officially declared public holidays, Saturdays and Sundays.

The above only goes so far as to answer the question and hence we must turn to the Interpretation Act 33 of 1957, and in particular s 4, which provides the method as to how time periods (such as the 14-day time period) are to be calculated and which reads as follows:

‘When any particular number of days is prescribed for the doing of any act, or for any other purpose, the same shall be reckoned exclusively of the first and inclusively of the last day, unless the last day happens to fall on a Sunday or on any public holiday, in which case the time shall be reckoned exclusively of the first day and exclusively also of every such Sunday or public holiday.’

On the basis of s 4 of the Interpretation Act, the time period in s 4(2) of the PIE Act should be calculated as follows:

  • Exclusive of the first day.
  • Inclusive of the last day.
  • Inclusive of the days between the first day and the last day unless the last day falls on an officially declared public holiday or Sunday, in which case the last day shall be that day after the said officially declared public holiday or Sunday.

The above method of calculation does not exclude any officially declared public holiday, Saturday or Sunday from the calculation of the time period and hence it can be concluded that the reference in s 4(2) of the PIE Act to ‘days’ does not mean ‘court days’ as this would have the effect of excluding any officially declared public holiday, Saturday or Sunday from the calculation. Accordingly, it would appear that ‘calendar days’ was intended.

The foregoing is supported by the Nedcor Bank Ltd v Master of the High Court and Others [2002] 2 All SA 281 (A) case in which the Appellant Division (as it then was) was called on to consider the Insolvency Act 24 of 1936, regarding the calculation of time periods in statue – more specifically s 40(2) of the Insolvency Act.

In the Nedcor case the court concluded that regard must be had to s 4 of the Interpretation Act and hence the court proceeded to calculate the time period of ten days in s 40(2) of the Insolvency Act as read with s 4 of the Interpretation Act.

The conclusion is clear, the time period in s 4(2) of the PIE Act is to be calculated with regard to s 4 of the Interpretation Act and hence ‘calendar days’ would be used instead of ‘court days’.

 

Bruce Andre Barkhuizen LLB (UJ) is a legal practitioner and notary at Bruno Simão Attorneys in Johannesburg. This article was written in Mr Barkhuizen’s private capacity.

This article was first published in De Rebus in 2022 (Nov) DR 5.

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