IN THE HIGH COURT OF SOUTH AFRICA DURBAN AND …

1 IN THE HIGH COURT OF SOUTH AFRICADURBAN AND COAST local division reportable CASE NO:6725/2005In the matter between:KANESCHO REALTORS (PTY) LIMITED APPLICANTandMTHEMBENI SIMON MUZI MAPHUMULO FIRST RESPONDENTNKOSINGIPHILE RUTH MAPHUMULO SECOND RESPONDENTALL OTHER PERSONS OCCUPYING THEIMMOVABLE PEROPTY SITUATE ATERF 899, KWA MASHU M TOWNSHIP THIRD RESPONDENTSCASE NO: 7455/05In the matter between:SELVAN CHETTY APPLICANTDOROTHY CHETTY SECOND APPLICANTandTHAVANESEN THAVER FIRST RESPONDENTETHEKWINI MUNICIPALITY SECOND RESPONDENT CASE NO: 7540/2005In the matter between: FISHER STREET INVESTMENTS (PTY) LIMITED APPLICANTandJAMUPILI KABINAKANWA RESPONDENT CASE NO: 7691/2005In the matter between: SHAMSHA INVESTMENTS (PTY) LIMITEDAPPLICANTandZAFRULLA KHAN RESPONDENTJUDGMENTKRUGER J:2[1] The Applicants seek an order for the eviction of the Respondents.

2 The Application has been brought in terms of the Prevention of Illegal Evictions from and Unlawful Occupation of Land Act 19 of 1998 ( PIE ). On the 2nd June 2005 the application was adjourned to the 20th June 2005 and Mr Kissoon Singh SC was appointed as Amicus Curiae to make submissions with regard to the procedural aspects of such applications as well as to the form that the order should take in an endeavour to establish a practice which I believe ought to be followed in such applications. [2] Mr Kissoon Singh s submissions have been duly received and noted and I am indeed grateful for his input in the matter.[3] The provisions of PIE were formulated to provide for the prohibition of unlawful eviction and to provide for procedures for the eviction of unlawful occupiers who reside on land which is not deemed to be agricultural land.

3 It is also not applicable in respect of commercial premises. (Ndlovu v Ngcobo; Bekker and another v Jika 2003(1) SA 113 (SCA) @ pg 124 [20]).3[4] The provisions of PIE which are of particular relevance to this matter are the following: 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 )At least 14 days before the hearing of the proceedings contemplated in sub section (1), the COURT must serve written and effective notice of the proceedings on the unlawful occupier and the Municipality having )Subject to the provisions of sub section (2), the procedure for the serving of notices and filing of papers is as prescribed by the rules of the COURT in )

4 The notice of proceedings contemplated in sub section (2) must (a)state that proceedings are being instituted in terms of sub section (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 4before the COURT and defend the case and, where necessary, has the right to apply for legal aid. [5] The provisions of Section 4 of PIE are peremptory. (See Cape Killarney Property Investments (Pty) Ltd v Mahamba and others 2001(4) SA 1222 (SCA) at [11] and [17]; Sam Kadish Moela v Tichaona Abel Shoniwe Case No.)

5 54/2004 (SCA) (unreported) at [7]).[6] It has also been held by the Supreme COURT of Appeal that the 14 day notice period provided for in Section 4(2) of PIE must be given in addition to the normal notice given to a Respondent in terms of Rule 6 of the Uniform Rules of COURT . It accordingly follows that where persons are to be evicted from their residences they are to be afforded a greater opportunity in preparing their defences or formulating their submissions. (Cape Killarney, (supra), at [12] and [20]).[7] There is a misconception that the provisions of PIE, as interpreted 5by the Courts, will result in undue delay. Accordingly, a practice appears to be developing whereby the Applicants attempt to truncate proceedings by obtaining orders of the COURT which are inappropriate and are contrary to the provisions of PIE as well as the decision of the Supreme COURT of Appeal.

6 It is also often confusing to Respondents. This practice is in the form of the Applicants seeking a First Order Prayed and a Second Order Prayed in terms of which they attempt to comply with the provisions of PIE.[8] The orders requested in the present applications are a typical example of the procedure and practice which appears to be developing. Although lengthy, it is accordingly necessary to cite the full terms of the orders requested by the Applicants. The original order reads as follows: KINDLY TAKE NOTICE THAT application will be made, on behalf of the abovenamed Applicant, to the above Honourable COURT , on the day of 2005 at 09h30 am (sic) or so soon thereafter as the matter may be heard, for an Order in the following terms:6 FIRST ORDER Sheriff or his Deputy is directed forthwith to:(a)serve a copy of these application papers together with a copy of this Order upon such of the Respondents who may be present upon the property having the address.

7 (hereinafter referred to as the property ) at the time of such service;(b)serve notices in the form of annexures A and B to this order upon such of the Respondents as may be present at the property at the time of such service;(c)read annexures A and B to such of the Respondents present upon the property at the time of service, in .. languages respectively, or cause the said notices to be read to such Respondents in the said languages;(d)serve a copy of these papers and the notices in the form of annexures A and B hereto together with a copy of this Order upon the eThekwini Council at its Legal Services division , Shell House, corner of Smith and Aliwal Streets, DURBAN .

8 And(e)return the original papers, Order and notices to the Registrar with your Return of what you have done in terms of paragraph 1 hereof shall be effected not less than FOURTEEN (14) calendar days prior to the date of the hearing of the application for the Second Order ORDER PRAYEDTAKE NOTICE THAT application will be made on behalf of the abovenamed Applicant to the above Honourable COURT on theday of 2005 or so soon thereafter as the matter may be heard, for an Order in the following the Respondents and all other persons occupying the property through them be and are hereby directed to vacate the property situated at.

9 And to deliver possession thereof to the Applicant within THIRTY (30) calendar days of the date of service of this the event of the Respondents failing to comply with the provisions of paragraph 1 above, the Sheriff or his Deputy is authorized and directed forthwith to evict the Respondents and all or any other persons occupying the property through them from the said property; Respondents who oppose this application are directed to pay the costs incurred as a result of such application. [9] The order that has been requested is clearly incorrect and does not accord with the provisions of PIE, the interpretation of the provisions of PIE by the Supreme COURT of Appeal as well as the Uniform Rules of COURT .

10 In its original form, the order did not make provision for the Respondents to notify their intention to oppose the 8proceedings within a specified time period nor did it inform them of the right to file affidavits thereafter as provided for in Rule 6(5)(b) of the Uniform Rules of COURT .[10] Where an application for ejectment in terms of PIE is made, following the First Schedule, Form 2(a) Notice of Motion (the long form of Notice of Motion) three situations present themselves, viz ;a)The application may be undefended;b)The application may be defended up to a point, that is to say, a Notice of Intention to Oppose may be delivered but the Respondent may thereafter fail to deliver any answering affidavits (or indeed take any other steps to pursue such defence); and c)The application may be defended to the full.