Theart and Another v Minnaar NO; Senekal v Winskor 174 (Pty) Ltd
Decided
3 December 2009 (2009-12-03)
Docket nos.
483/08; 007/09
Citation(s)
[2009] ZASCA 173; 2010 (2) All SA 275 (SCA); 2010 (3) SA 327 (SCA)
Case history
Appealed from
Theart and Another v Minnaar NO [2008] ZAWCHC 43; 2009 (3) SA 503 (C) in the High Court of South Africa, Cape Provincial Division Senekal v Winskor 174 (Pty) Ltd (appeal no. 007/09) in the High Court of South Africa, Cape Provincial Division
In two cases of unlawful occupation of land and actions for statutory eviction from such land, both appealed from the Cape Town High Court, the notice requirements of the Magistrates' Courts came under scrutiny. The Magistrates' Courts Rules compel a procedure differing from that in the High Court of South Africa. However, in a judgment written by Judge of Appeal Ronnie Bosielo, the Supreme Court found that, as long as the notice achieves the general purpose contemplated by the PIE and the Magistrates' Courts Rules,[1] the fact that the notice does not strictly comply with such provisions is not necessarily fatal; thus two notices in two separate documents are not required.
In the High Court, eviction procedure under PIE is determined by section 4 of that legislation, as well as by the Uniform Rules of the High Court. The combined effect of these statutory provisions is explained in Cape Killarney Property Investments v Mahamba.[2]
The procedure in the magistrates' courts is different from that in the High Court, because the provisions of Rule 55 of the Magistrates' Courts Rules differ from those of Rule 6 of the Uniform Rules of the High Court.
In the magistrates' courts, two notices contained in two separate documents are not required. One will suffice as long as:
the content of the document and the manner of service are approved by the magistrate's court with jurisdiction, as envisaged by section 4(2) of PIE, pursuant to a preceding ex parte application;
the contents of the document comply with the provisions of section 4(5) of PIE, with Rule 55 of the Magistrates' Courts Rules and the court order under (1); and
the document is served on the respondent and the municipality concerned in accordance with section 4(2) of PIE, the Magistrates' Courts Rules pertaining to service and the court order under (1).
Judgmentedit
In the Supreme Court, Judge of Appeal Bosielo handed down judgment on behalf of a unanimous bench (Judge President Lex Mpati and Judges of Appeal Fritz Brand, Suretta Snyders and Frans Malan concurring). Bosielo held that when considering the order to be granted in terms the procedure above, 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 section 26(3) of the Constitution.
The fact that the notice served on the respondent is in some respect deficient of section 4(2) or Rule 55 (as it was in both cases here) 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.[3]
Counseledit
Counsel for the appellants was BC Wharton; CHJ Maree appeared for the respondent in case No. 483/08 and M. Verster for the respondent in case No. 007/09. The appellants' attorneys were RP Totos, Cape Town, and Symington & De Kok, Bloemfontein. The respondent's attorneys in case No. 483/08 were Van der Spuy & Vennote, Cape Town, and Phatshoane Henney Ing, Bloemfontein. The respondent's attorneys in case No. 007/09 were JC Van der Berg Attorneys, George, and Hill, McHardy & Herbst Ing, Bloemfontein.
Referencesedit
Booksedit
Juta's Statutes of South Africa 2008/9 vol 6.
Casesedit
Cape Killarney Property Investments (Pty) Ltd v Mahamba and Others 2001 (4) SA 1222 (SCA).
Moela v Shoniwe 2005 (4) SA 357 (SCA).
Theart and Another v Minnaar NO 2009 (3) SA 503 (C).
Unlawful Occupiers, School Site v City of Johannesburg 2005 (4) SA 199 (SCA).
Statutes, etc.edit
Magistrates' Courts Rules.
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998.
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Theart and Another v Minnaar NO Senekal v Winskor 174 Pty Ltd is an important case in South African property law and civil procedure as well as in the area of legal interpretation It was heard in the Supreme Court of Appeal on 5 November 2009 with judgment handed down on 3 December The central issue was the proper interpretation and application of section 4 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 PIE in the magistrates courts Theart v MinnaarCourtSupreme Court of AppealFull case nameTheart and Another v Minnaar NO Senekal v Winskor 174 Pty LtdDecided3 December 2009 2009 12 03 Docket nos 483 08 007 09Citation s 2009 ZASCA 173 2010 2 All SA 275 SCA 2010 3 SA 327 SCA Case historyAppealed fromTheart and Another v Minnaar NO 2008 ZAWCHC 43 2009 3 SA 503 C in the High Court of South Africa Cape Provincial DivisionSenekal v Winskor 174 Pty Ltd appeal no 007 09 in the High Court of South Africa Cape Provincial DivisionCourt membershipJudges sittingMpati P Brand JA Snyders JA Malan JA and Bosielo JACase opinionsDecision byBosielo JA unanimous KeywordsEviction proceduremagistrates courtssection 4 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 1998section 26 3 of the ConstitutionIn two cases of unlawful occupation of land and actions for statutory eviction from such land both appealed from the Cape Town High Court the notice requirements of the Magistrates Courts came under scrutiny The Magistrates Courts Rules compel a procedure differing from that in the High Court of South Africa However in a judgment written by Judge of Appeal Ronnie Bosielo the Supreme Court found that as long as the notice achieves the general purpose contemplated by the PIE and the Magistrates Courts Rules 1 the fact that the notice does not strictly comply with such provisions is not necessarily fatal thus two notices in two separate documents are not required Contents 1 Facts 2 Judgment 3 Counsel 4 References 4 1 Books 4 2 Cases 4 3 Statutes etc 5 NotesFacts editIn the High Court eviction procedure under PIE is determined by section 4 of that legislation as well as by the Uniform Rules of the High Court The combined effect of these statutory provisions is explained in Cape Killarney Property Investments v Mahamba 2 The procedure in the magistrates courts is different from that in the High Court because the provisions of Rule 55 of the Magistrates Courts Rules differ from those of Rule 6 of the Uniform Rules of the High Court In the magistrates courts two notices contained in two separate documents are not required One will suffice as long as the content of the document and the manner of service are approved by the magistrate s court with jurisdiction as envisaged by section 4 2 of PIE pursuant to a preceding ex parte application the contents of the document comply with the provisions of section 4 5 of PIE with Rule 55 of the Magistrates Courts Rules and the court order under 1 and the document is served on the respondent and the municipality concerned in accordance with section 4 2 of PIE the Magistrates Courts Rules pertaining to service and the court order under 1 Judgment editIn the Supreme Court Judge of Appeal Bosielo handed down judgment on behalf of a unanimous bench Judge President Lex Mpati and Judges of Appeal Fritz Brand Suretta Snyders and Frans Malan concurring Bosielo held that when considering the order to be granted in terms the procedure above 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 section 26 3 of the Constitution The fact that the notice served on the respondent is in some respect deficient of section 4 2 or Rule 55 as it was in both cases here 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 3 Counsel editCounsel for the appellants was BC Wharton CHJ Maree appeared for the respondent in case No 483 08 and M Verster for the respondent in case No 007 09 The appellants attorneys were RP Totos Cape Town and Symington amp De Kok Bloemfontein The respondent s attorneys in case No 483 08 were Van der Spuy amp Vennote Cape Town and Phatshoane Henney Ing Bloemfontein The respondent s attorneys in case No 007 09 were JC Van der Berg Attorneys George and Hill McHardy amp Herbst Ing Bloemfontein References editBooks edit Juta s Statutes of South Africa 2008 9 vol 6 Cases edit Cape Killarney Property Investments Pty Ltd v Mahamba and Others 2001 4 SA 1222 SCA Moela v Shoniwe 2005 4 SA 357 SCA Theart and Another v Minnaar NO 2009 3 SA 503 C Unlawful Occupiers School Site v City of Johannesburg 2005 4 SA 199 SCA Statutes etc edit Magistrates Courts Rules Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 Notes edit Rule 55 2001 4 SA 1222 SCA Para 15 Retrieved from https en wikipedia org w index php title Theart v Minnaar amp oldid 1197619112, wikipedia, wiki, book, books, library,
