During the series of seminars on Evictions, the CPA and Community Schemes this year, various questions were raised regarding a number of problem areas. Due to time constraints and uncertainty on various levels (as well as my own!) a number of matters remained unresolved or need to be dealt with in more detail. I seek hereby to deal with those issues. Should your particular concern not be addressed here, please feel free to send an e-mail to email@example.com and we will try to assist.
The seminars countrywide have once again shown one simple fact – an urgent need for practice directives for all Courts in Pie applications, especially Magistrate’s Courts, either by way of Legislative intervention, regulations or guidelines by the Department of Justice. There is an unprecedented variation in practice between jurisdictions and provinces that is intolerable. Delegates were advised to take magistrates on appeal in the extreme cases, however, in most cases the costs involved is a stumbling block. This disparity and confusion must be dealt with urgently. Magistrates also need to be trained regarding the stare decisis rule.
The issues are dealt with according to the topics below.
Joinder of municipalities in Pie applications
Various delegates, especially during the Durban seminar, raised this issue and complained that Magistrates apply conflicting and often confusing rules of practice. This situation is unbearable because, not only does it create uncertainty, but it frustrates the efficient operation of the judicial system. The following are some of the diverse requirements that are allegedly required by some Magistrates:
– The municipality must be joined in every Pie application;
– The municipality must render a report;
– The municipality must mediate;
– The municipality must provide alternative housing to respondents
– A summons is peremptory – see below.
It is quite surprising that so many magistrates are not aware of the decided case law, and especially the judgments of the Supreme Court of Appeal and the Constitutional Court on these issues which they are bound to follow. The practice in some High Courts were also complained about, although to a lesser extent.
The current legal position emanating from the case law is as follows :
The Constitutional Court and the SCA have stated on numerous occasions that joiner of a municipality is not per se required in every case. See Occupiers of Mooiplaats v Golden Thread Ltd and Others 2012 (2) SA 337 (CC); Occupiers of Erf 101 Shorts Retreat Pietermaritzburg v Daisy Dear Investments,  4 All SA 410 (SCA), City of Johannesburg v Changing Tides 74 (Pty) Ltd 2012 (6) SA 294 (SCA) at par 38. The SCA has given detailed guidelines. The SCA stated it as follows in Changing Tides, supra : (paragraph 38)
“Whenever the circumstances alleged by an applicant for an eviction order raise the possibility that the grant of that order may trigger constitutional obligations on the part of a local authority to provide emergency accommodation, the local authority will be a necessary party to the litigation and must be joined. Where the applicant is doubtful about the position it would be a wise precaution for it to join the local authority. That does not mean that the local authority will need to become embroiled in every case in which an eviction order under PIE is sought. The question in the first instance is always whether the circumstances of the particular case are such as may (not must) trigger the local authority’s constitutional obligations in regard to the provision of housing or emergency accommodation.”
In Drakenstein Municipality v Hendricks2010 (3) SA 248 (WCC) a full bench of the WCC held that joinder of the municipality, nor a report or mediation is required as a rule in terms of PIE. The need for joinder only arises where the municipality has a direct interest in the proceedings by reason of its duty to report to the court or to appoint a mediator. The Court held that it would be costly and unreasonable to expect a municipality to investigate and report on matters in a case where such information was irrelevant, and the court would require the municipality to provide information when it is necessary for a proper determination of the case. Also, a municipality has a discretion in terms of section 7(1) of PIE to appoint a mediator and where the disputes are capable of determination by a court of law the municipality cannot be compelled to appoint a mediator.
The above position was recently confirmed by the Constitutional Court (with reference to the above case law) in Occupiers of Erven 87 and 88 Berea v De Wet NO and another (Poor Flat Dwellers Association as Amicus Curiae)  JOL 38039 (CC) :
It follows that where there is a risk that homelessness may result, the availability of alternative accommodation becomes a relevant circumstance that must be taken into account. A court will not be able to decide the justice and equity of an eviction without hearing from the local authority upon which a duty to provide temporary emergency accommodation may rest. In such an instance the local authority is a necessary party to the proceedings. Accordingly, where there is a risk of homelessness, the local authority must be joined.
Thus, the principles regarding joinder of municipalities in PIE proceedings emanating from the case law to date, can be summarised as follows:
- If the unlawful occupation has been for less than six months, section 4(6) applies and the municipality is not involved; however, if the eviction of large numbers of poor and homeless occupiers (which may impact on society as a whole) is at stake, the municipality is an interested party and should be joined in pursuance of “all relevant circumstances”. Mediation in terms of section 7 may also be considered.
- If section 4(6) applies and the matter is one of normal tenancy or involves affluent occupiers, joinder of the municipality is normally not required. In the latter instance, if section 4(7) applies, joinder of the municipality is advisable.
- If section 4(7) applies and if large numbers of occupiers in the category of the poor are involved whose relocation would render the municipality an interested party, its joinder is necessary and a report by it is a prerequisite. The Court may also consider the availability of alternative land and an orderly eviction and/or relocation procedure. Mediation in terms of section 7 may also be considered. See 1 below.
- If section 6 applies, the municipality and/or the provincial government should be joined, depending on whether either of them or both have a substantial interest in the matter.
1 (Note that the Court is not required to actually relocate evicted occupiers – in exceptional circumstances the Court may prescribe an orderly relocation procedure, but in most cases the Court only establishes, on information provided by the parties, the availability of alternative land to which occupiers can be relocated: see s 4(7) and for an example of a prescribed orderly relocation programme, see Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and Others 2010 (3) SA 454 (CC), 2009 (9) BCLR 847 (CC); note that the order in the latter case was subsequently discharged in Residents of Joe Slovo Community, Western Cape v Thubelisha Homes & Others  JOL 26970 (CC).)
The proceedings in the Magistrate’s Court : is a summons required? Does there have to be two “notices”?
In the matter of Theart and Another v Minnaar NO; Senekal v Winskor 174 (Pty) Ltd, the SCA held that, in the Magistrate’s Court, the notice of motion and section 4(2) notice in terms of PIE may be combined and served simultaneously. In Occupiers of Ompad Farm v Green Horizon Farm (Pty) Ltd (unreported) AR468/2013 (KZD) the held that Theart no longer applies due to the subsequent amendment of the rules of the Magistrate’s Court. The court’s view in Ompad is based on the fact that the new Rule 55(1) of the Magistrate’s Court Rules is now substantially the same as its counterpart in the High Court Rules. The KZN High Court therefore ruled that Theart no longer applies and that 2 notices are required. This is, with respect, incorrect. Theart was based, not only on the difference between the rules of the two courts, but the fact mainly that in the Magistrate’s Court the unopposed date in the Notice of Motion is the date of the hearing and the fact that Pie does not per se require 2 notices. Whilst the High Court’s rules are the same, the Applicant is, due to the directives, required to apply for an unopposed date in the High Court. The Respondent may or may not know this date by reading the notice of motion – whatever the case may be, in most cases the Registrar determines the unopposed date in the High Court. That is not the case in the Magistrate’s Court. In any event, if the unopposed date is not the date in the notice of motion, then an ex parte application is required and a further notice needs to be served.
The ratio of the decision in Theart is that section 4(2) of PIE does not require two separate notices (a section 4(2) notice and a separate substantive notice of motion). The SCA held in Theart that the essence of section 4(2) is to ensure that the respondent has been given effective notice of the date and time of the hearing and, if a court is satisfied that this has been achieved, there has been substantial compliance with section 4(2). It is submitted that the amendment of the Magistrate’s Court rules has therefore not affected the ratio of the decision in Theart in respect of unopposed proceedings in the Magistrate’s Court. If the matter becomes opposed, a further ex parte application in compliance with section 4(2) is necessary and a further notice with the date of the opposed hearing must be served, unless the parties are represented and section 4(2) is considered to have been substantially complied with – this implies that two ex parte applications may be necessary if the combined notice of motion was used and the matter becomes opposed. See Moela v Shoniwe 2005 (4) SA 357 (SCA) at 362F–H.
Thus, the principles are as follows :
– Section 4(2) was designed to ensure that respondents get additional notice of the day of the hearing
– If a respondent has been served personally with the substantive application and an order incorporating the section 4(2) notice, there has been compliance, provided the date of the hearing in the notice is the actual date – otherwise a further ex parte application is necessary
– Section 4(2) does not compel two notices or two separate services – see Theart
– The section 4(2) order is always obtained ex parte – i.e. without notice – this applies in both the Magistrates’ and High Courts.
The summons issue & Pie
A summons is not required. The word “proceedings” in Pie include motion proceedings. Therefore, the Pie Act overrides the Magistrates’ Court Act regarding jurisdiction. A final order for eviction can be made on application in the Magistrate’s Court without the necessity to issue a summons. Obviously, action proceedings are not excluded – as is required in cases of foreseeable factual disputes. It is alleged that many Magistrates insist on a summons being issued. Some require a “trial” and others have varied strange requirements. In some cases the matter is dealt with in terms of the application and the summons remains in the court file – as a memento!
Magistrates are duty-bound to follow the judgments in Pedro and Others v Greater George Transitional Council 2001 (2) SA 131 (C); Nduna v Absa Bank and Others 2004 (4) SA 453 (C) at 457C and the SCA in Theart, supra. In Theart the SCA dealt expressly with Pie motion procedure in the Magistrate’s Court and this process mode was taken for granted by the Court.
Esta – the agreement to vacate
A question arose regarding the legality of agreements with occupiers regarding waiver of their rights. This aspect is dealt with in section 25 of Esta :
- Legal status of agreements.—(1) The waiver by an occupier of his or her rights in terms of this Act shall be void, unless it is permitted by this Act or incorporated in an order of a court.
(2) A court shall have regard to, but not be bound by, any agreement in so far as that agreement seeks to limit any of the rights of an occupier in terms of this Act.
(3) Notwithstanding the provisions of subsections (1) and (2), if an occupier vacates the land concerned freely and willingly, while being aware of his or her rights in terms of this Act, he or she shall not be entitled to institute proceedings for restoration in terms of section 14.
See also section 10 that deals with a category of occupier that was or is an employee and has voluntarily vacated the land.
The CPA – fixed term agreements
The question was raised whether the month-to-month lease that operates after the fixed term (24 months) has expired must be cancelled by giving of 20 business days notice. The 20 days notice in section 1492)(b)(ii) deals with demand for rectification of breach to the tenant(consumer) by a landlord (supplier) and not with the normal cancellation on expiry of the lease. A month-to-month lease in common law requires a calendar month’s notice of cancellation and that is therefore what is required – one calendar month’s notice to terminate the subsequent month-to-month lease. There may be another interpretation in light of the problematic wording of section 14(2)(d) that seems to reserve the right of cancellation to the tenant (consumer) only, but that interpretation would border on the absurd and should not be taken to have been the Legislature’s intention.