THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA
JUDGMENT

Case No:   483/08

J T THEART

First Appellant
COPPERSUN (PTY) LTD

Second Appellant

and

DEON MINNAAR N.O

Respondent

and

Case No:   007/09

ANSIE SENEKAL

Appellant

and

WINSKOR 174 (PTY) LTD

Respondent

Neutral citation:
Theart v Deon Minnaar NO (483/08) and Senekal v
Winskor 174 (Pty) Ltd (007/09) [2009] ZASCA 173 (3
December 2009)

Coram:
MPATI P, BRAND, SNYDERS, MALAN et BOSIELO JJA

Heard:
5 November 2009

Delivered:
3 December 2009

Summary:
Interpretation – s 4(2) of the Prevention of Illegal Eviction from
and Unlawful Occupation of Land Act 19 of 1998 – procedure to be followed in
magistrates' court.

______________________________________________________________

ORDER

On appeal from:
Cape High Court (sitting as a court of appeal).
In Theart v Deon N.O (appeal No 483/08):
On appeal from High Court, Cape Town (R B Cleaver and D H Zondi JJ sitting
as court of appeal from the magistrates’ court).
The appeal is dismissed with costs.
The order of the court a quo is amended to read as follows:
‘(a)
The appeal is dismissed with costs.
(b)
The order of the court a quo is amended to read as follows:
“(i)
The application is granted with costs.
(ii)
The first respondent and others occupying through him
are ordered to vacate the premises at 65 Van der Stel Street,
Stellenbosch within one month.
(iii)
Failing compliance with the order in (ii) the sheriff is
authorised to evict the first respondent and others occupying
through him from the said property together with their
belongings and to hand over vacant possession to the
applicant.”’
The one month period referred to in (b)(ii) shall be calculated from the
date of this judgment.
In Senekal v Winskor 174 (Pty) Ltd (appeal No 007/09):
On appeal from High Court, Cape Town (Veldhuizen J and E T Steyn AJ
sitting as a court of appeal from the magistrates’ court).
The appeal is dismissed with costs.
The order of the court a quo is amended to read as follows:

‘(a)
The appeal is dismissed with costs.

(b)
The order of the court a quo is amended to read as follows:
“(i)
The application is granted with costs.
(ii)
The respondent and all others occupying through her are
ordered to vacate the premises at erf 16274, being 1
Hawthornedene Road, George, within fourteen days.

(iii)
Failing compliance with the order in (ii) the sheriff is
authorised to evict the respondent and others occupying through
her from the said property together with their belongings and to
hand over vacant possession to the applicant.”’
The period of fourteen days referred to in (b)(ii) shall be calculated from
the date of this judgment.

JUDGMENT

BOSIELO JA (Mpati P, Brand, Snyders and Malan JJA concurring):

[1] The two appeals before us raise the issue of the proper interpretation
and application of s 4(2) of the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998 (PIE) in the magistrates' courts.
As the two appeals raise similar questions of law it is convenient to deal with
both at the same time.

[2] It would be convenient to set out the provisions of s 4 of PIE which are
relevant to this matter:
'4
Eviction 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 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
(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.'

[3] The facts in both matters are fairly straightforward and can be
conveniently summarised as follows: In Theart the appellants occupied the
respondent's premises on the strength of an option to buy the premises. It is
common cause that the appellants defaulted in their payment in terms of the
option. As a result the option expired. The respondent gave the appellants
due notice of the expiry of the option and demanded that they vacate his
premises. On 24 October 2004 the respondent caused to be issued a notice
in terms of s 4(2) of PIE. In addition the magistrate authorised the procedure
for the service thereof. On the same day the respondent had a notice of
motion issued in terms of rule 55 of the magistrates' courts rules which
informed the appellants that an application for their eviction from the
respondent's premises would be heard in the magistrates' court, Stellenbosch
on 29 November 2007. The notice of motion informed the appellants, amongst
other things, of the respondent's intention to evict them from his premises; the
grounds for such eviction; the date and place for the hearing; their right to
defend the matter and seek legal representation; their right to adduce relevant
facts before a court to enable it to decide whether the eviction would be
justified and their constitutional right to adequate housing in terms of s 26(3)
of the Constitution. The s 4(2) notice and the notice of motion were served by
the sheriff on the appellants on 26 October 2007 as authorised by the order of
the magistrate's court. The appellants responded to these two notices by filing
a notice of intention to oppose and an answering affidavit. In addition, the
appellants were duly represented by an attorney when the matter was heard
in court on 6 December 2007 and when the magistrate granted an order for
the eviction of the appellants. The appellants' appeal to the Cape Provincial
Division (per Cleaver J, with Zondi J concurring) was unsuccessful. This
appeal is with the leave of the court below.

[4] In Senekal the respondent had no agreement of lease with the
appellant who was the new owner of the property. The respondent sought an
eviction order against the appellant on the grounds that she had no right to
occupy the property and that she was accordingly an unlawful occupier. The
application for the eviction order was couched in the form of a notice of motion
in terms of rule 55. No dedicated s 4(2) notice was issued. Yet the notice of
motion contained the information as prescribed by both ss 4(2) and (5). On 10
July 2007 the magistrate made an order authorising service of the notice in
terms of s 4 of PIE. This notice of motion was served on the appellant and the
municipality concerned on 11 July 2007. In the notice of motion the appellant
was advised to appear before the magistrates' court on 14 August 2007 if she
intended to oppose the matter.

[5] The appellant in Senekal filed an affidavit opposing the order sought,
alleging that she was entitled to occupy the property as part of her
employment benefits with her previous employer. She was represented by an
attorney. The matter was heard on 10 October 2007 and, having listened to
both sides, the magistrate granted an order evicting the appellant from the
premises. The appellant's appeal to the Cape Provincial Division was
dismissed by Veldhuizen, J with E T Steyn AJ concurring. The appellant now
appeals to this court with the leave of the court below.

[6] I pause to observe that the appellants in both appeals did not dispute
the merits of their respective cases. They confined themselves to an attack on
the procedures which had been adopted by the respondents. In Theart the
objection was that although two notices had been issued separately they were
served simultaneously. In Senekal, on the other hand, the objection was that
there was only one hybrid notice issued, which embodied the information
required by s 4. Both appellants contended that the failure to have two notices
served separately on them infringed their rights to procedural and substantive
justice expressly provided for in s 4(2), read with s 4(5) of PIE. They
contended that a proper interpretation of s 4(2) required that two separate
notices be issued and served on them separately. Their principal submission
was that this procedure was intended to give them an additional opportunity

apart from that ordinarily accorded them by the rules of the magistrates' courts
to consider their positions and put all relevant facts before the court for its
consideration. Reliance was placed on Cape Killarney Property Investments
(Pty) Ltd v Mahamba and Others 2001 (4) SA 1222 (SCA) for this contention.

[7] It is useful to quote the relevant part of the judgment in Cape Killarney
paras 11 and 12 where Brand AJA stated the following:
'[11]
Section 4(1) makes it clear that the provisions of the subsection that follow
are peremptory. It also defines the "proceedings" to which the section applies,
namely proceedings for the eviction of an unlawful occupier. Section 4(2) requires
notice of such proceedings to be effected on the unlawful occupier and the
municipality having jurisdiction at least 14 days before the hearing of those
proceedings. Section 4(2) further provides that this notice must be effective notice;
that it must contain the information stipulated in ss (5) and that it must be served by
the court. The term "court" is defined in s 1 of the Act, as the "High Court or the
magistrates' courts". Although s 4(2) could have been more clearly worded, it is
obvious in my view that the Legislature did not intend physical service of the notice
by the court in the person of a Judge or magistrate. On the other hand, mere issue of
the notice by the Registrar or clerk of the court would not suffice. What is intended, I
believe, is that the contents and the manner of service of the notice contemplated in
ss (2) must be authorised and directed by an order of the court concerned.
[12] 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.
And in para 15 he said:
'Section 4 does not indicate how the court's directions regarding the s 4 notice are to
be obtained. The common-sense approach to the section appears to dictate,
however, that the applicant can approach the court for such directions by way of an
ex parte application.'

[8] It is clear to me that the appellants failed to appreciate the fine but
crucial distinction between the procedures for applications in the high court in

contrast to the magistrate's court. Rule 55(1) of the magistrates' courts rules
reads as follows:
‘Except where otherwise provided, an application to the court for an order affecting
any other person shall be on notice, in which shall be stated shortly the terms of the
order applied for and the time when the application will be made to the court. Delivery
of such notice shall be effected in the case where the State is the respondent, not
less than 20 days and in other cases not less than 10 days before the date of
hearing.'

[9] Unlike the procedure prescribed by rule 6 of the uniform rules, rule
55(1) of the magistrates' courts rules does not create a procedure whereby an
application in opposed matters has to be set down by way of a notice after all
the papers have been filed as in the high court. On the contrary, in terms of
rule 55(1), upon the issue of the application, such application must state the
terms of the order sought and the date and time when the application will be
heard. The result is that on being served with the application, a respondent
will be fully informed of the nature of the application, the order sought, the
date, time and court when and where the application will be heard. Section
4(2) in itself does not require an additional notice. All it requires is that written
and effective notice of the proceedings be served on the unlawful occupier
and the municipality 14 days before an order for eviction could potentially be
granted. It follows logically that Cape Killarney is no authority for the
proposition that s 4(2) requires two separate notices to be served on a
respondent in the magistrates' courts.

[10] Reverting to the facts of the two cases on appeal, it is not in dispute
that, although the notices were not contained in separate and distinct
documents and not served separately, the appellants were served with
notices duly authorised by the respective magistrates that, read together,
complied with ss 4(2) and (5).

[11] It is important not to lose sight of the central role played by the courts
during the issuing of the notice contemplated in s 4. Before a court authorises
a s 4(2) notice, the notice must contain all the essential information prescribed

by s 4(5). This is consonant with one of the primary ideals of PIE as reflected
in its preamble, which is to regulate the eviction of unlawful occupiers from
land in a fair manner and, quite importantly, to ensure that no one is evicted
from their home or have their home demolished without an order of court
made after considering all the relevant circumstances as contemplated by s
4(8).

[12] In the present appeals both applications were properly served by the
sheriff on the two appellants in a manner approved by the court concerned.
Both appellants understood what the applications were all about and duly
instructed legal representatives to represent them. In opposing the
applications both appellants filed affidavits setting out their defences to the
applications. Significantly both appellants were represented by legal
representatives when their applications were heard. There is no doubt that the
object of s 4(2) to give the occupiers sufficient and effective notice of the
intended eviction was achieved. Notwithstanding this the appellants contend
that both applications should have been dismissed on the simple basis that
there was no additional notice served on them. However, counsel for the
appellants (the same counsel appeared for the appellants in both cases) was
unable to point to any section in PIE which requires an additional notice. For
the reasons I have given, I find this argument untenable. But there is an
additional reason why neither appeal could succeed even if the provisions of
s 4 of PIE and/or the rules of the magistrates' court had not been strictly
complied with. The considerations underlying this additional reason appear
from the dicta that follow. In Moela v Shoniwe 2005 (4) SA 357 (SCA) para 9,
Streicher JA said:
'Here the contents and manner of service of the notice had not been authorised and
directed by an order of court. However, the object of s 4(2) is clearly to ensure that
the unlawful occupier and municipality are fully aware of the proceedings and that the
unlawful occupier is aware of his rights referred to in s 4(5)(d). It may well 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 authorised 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 the information required in terms of s 4(5) had in

fact been served on the unlawful occupier and municipality 14 days before the
hearing. . . .'
And in Unlawful Occupiers, School Site v City of Johannesburg 2005 (4) SA
199 (SCA) para 24 where Brand JA stated:
'The question whether in a particular case a deficient s 4(2) notice achieved its
purpose, cannot be considered in the abstract. The answer must depend on what the
respondents already knew. The appellant's contention to the contrary cannot be
sustained. It would lead to results which are untenable. Take the example of a s 4(2)
notice which failed to comply with s 4(5)(d) in that it did not inform the respondents
that they were entitled to defend a case or of their right to legal aid. What would be
the position if all this were clearly spelt out in the application papers? Or if on the day
of the hearing the respondents appeared with their legal aid attorney? Could it be
suggested that in these circumstances the s 4(2) [notice] should still be regarded as
fatally defective? I think not. In this case, both the municipality's cause of action and
the facts upon which it relied appeared from the founding papers. The appellants
accepted that this is so. If not, it would constitute a separate defence. When the
respondents received the s 4(2) notice they therefore already knew what case they
had to meet. In these circumstances it must, in my view, be held that, despite its
stated defects, the s 4(2) notice served upon the respondents had substantially
complied with the requirements of s 4(5).'

[13] During argument, counsel for the appellants was unable to indicate any
prejudice suffered by the appellants due to the failure by the respondents to
serve separate notices on separate occasions on them. This is so because
the applications served on the appellants complied substantially with s 4(2)
and, quite importantly, contained all the necessary information prescribed by s
4(5). There is no doubt that both appellants were fully apprised of the cases
against them. To put the matter beyond doubt, both appellants were legally
represented when the matters were heard in court. To my mind there can be
no better proof of effective service of the written notice as demanded by s 4(2)
than in the present two matters. If they had intended to place any matter
before the respective courts for consideration the appellants had the
opportunity to do so. Instead they elected to rely on technical defences rather
than dealing with the merits of their cases.

[14] Viewed against the main purpose of PIE, the real issue is not so much
whether or not there are two separate notices. The real and proper enquiry
should be whether there has been effective notice of the proceedings on the
occupier in the sense that a court is satisfied that the occupier has been fully
informed of the impending eviction, the grounds therefor, the date and place
of hearing and the right to appear in court and be represented. This is exactly
what happened in the two appeals. Accordingly I am satisfied that effective
notice was given to the appellants. To hold otherwise would promote slavish
adherence to form above substance.

[15] 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:
A. With regard to evictions under 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 2001 (4) 1222
(SCA). 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.
B.
The procedure in the magistrates’ courts is different from the high court
because of the difference in the provisions of magistrates’ courts rule 55, on
the one hand, and rule 6 of the uniform rules of the high court, on the other.
C.
In the magistrates’ court two notices contained in two separate
documents are not required. One document will suffice as long as:
(1)
the content of the document and the manner of service is approved by
the magistrates’ court having jurisdiction, as envisaged by s 4(2) of PIE,
pursuant to a preceding ex parte application.
(2)
the contents of the document comply with the provisions of s 4(5) of
PIE, with rule 55 of the magistrates’ courts rules and the court order under (1).
(3)
the document is served on the respondent and the municipality
concerned in accordance with s 4(2) of PIE, the magistrates’ courts rules
pertaining to service and the court order under (1).
D.
When considering the order to be granted under C the court is obliged
to ensure that the notice will be 'effective' in the circumstances of the case

having regard to the intent and import of PIE and s 26(3) of the Constitution.
E.
The fact that the notice served on the respondent is in some respect
deficient of s 4(2) or rule 55 will not necessarily be fatal if the notice achieved
the purpose contemplated by these statutory provisions. Whether that
purpose had been achieved cannot be considered in the abstract, but will
depend on the facts of each case.

[16] In the result, the following orders are made:
In Theart v Deon N.O (appeal No 483/08):
On appeal from High Court, Cape Town (R B Cleaver and D H Zondi JJ sitting
as court of appeal from the magistrates’ court).
The appeal is dismissed with costs.
The order of the court a quo is amended to read as follows:
‘(a)
The appeal is dismissed with costs.
(b)
The order of the court a quo is amended to read as follows:
“(i)
The application is granted with costs.
(ii)
The first respondent and others occupying through him
are ordered to vacate the premises at 65 Van der Stel Street,
Stellenbosch within one month.
(iii)
Failing compliance with the order in (ii) the sheriff is
authorised to evict the first respondent and others occupying
through him from the said property together with their
belongings and to hand over vacant possession to the
applicant.”’
The one month period referred to in (b)(ii) shall be calculated from the
date of this judgment.
In Senekal v Winskor 174 (Pty) Ltd (appeal No 007/09):
On appeal from High Court, Cape Town (Veldhuizen J and E T Steyn AJ
sitting as a court of appeal from the magistrates’ court).
The appeal is dismissed with costs.
The order of the court a quo is amended to read as follows:

‘(a)
The appeal is dismissed with costs.

(b)
The order of the court a quo is amended to read as follows:
“(i)
The application is granted with costs.

(ii)
The respondent and all others occupying through her are
ordered to vacate the premises at erf 16274, being 1
Hawthornedene Road, George, within fourteen days.
(iii)
Failing compliance with the order in (ii) the sheriff is
authorised to evict the respondent and others occupying through
her from the said property together with their belongings and to
hand over vacant possession to the applicant.”’
The period of fourteen days referred to in (b)(ii) shall be calculated from
the date of this judgment.

………………..
L O BOSIELO
JUDGE OF APPEAL

APPEARANCES:

FOR APPELLANT CASE 483/08:
B C Wharton

Instructed by

R P Totos Attorney, Cape Town

Symington & De Kock, Bloemfontein

FOR APPELLANT CASE 007/09:
B C Wharton

Instructed by

R P Totos Attorney, Cape Town

Symington & De Kock, Bloemfontein

FOR RESPONDENT CASE 483/08:
C H J Maree

Instructed by
Van der Spuy & Vennote, Cape Town
Phatshoane Henney Ing, Bloemfontein

FOR RESPONDENT CASE 007/09:
M Verster

Instructed by

J C Van der Berg Attorneys, George
Hill, McHardy & Herbst, Bloemfontein