A recent High Court judgment answered the question of whether eviction proceedings under PIE can be brought about by way of action proceedings.
The judgment, handed down on 27 June 2024, in DNN Technologies (Pty) Ltd (DNN) v Nobantu Mdwara (defendant) considered mero motu whether eviction proceedings under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) may be brought by way of an action (the main issue).
DNN instituted action proceedings, by way of summons, for an order inter alia evicting the defendant from the residential property (the property) they owned. The eviction was sought on the basis that the defendant was in unlawful occupation of the property and therefore falls to be evicted in terms of PIE.
The defendant filed a plea setting out its defence to DNN’s eviction claim. Thereafter, DNN applied for summary judgment on the basis that the defendant’s plea does not raise any issue for trial and/or a proper defence to DNN’s eviction claim.
DNN then brought an interlocutory ex parte application in terms of section 4(2) of PIE (the ex parte application) for an order authorising the content and the manner of service of a section 4(2) notice in terms of PIE (the section 4(2) notice) on the defendant (the unlawful occupier) and the municipality (the municipality) having jurisdiction over the property from which the defendant is sought to be evicted by the plaintiff.
The section 4(2) notice must be served on the defendant and the municipality by no later than 14 days before the eviction hearing. Section 4(5) of PIE stipulates that the section 4(2) notice should set out inter alia the date on which the eviction hearing will occur and the grounds for the eviction. It is thus designed to ensure that unlawful occupiers are aware of the main eviction hearing date and the grounds for the eviction.
In the ex parte application, the Judge surprisingly raised the main issue when she was not required to deal with the merits and/or technical points relating to the main eviction claim which was not before her. She was only required to consider the ex parte application and authorise the content and manner of service of the section 4(2) notice on the defendant and the municipality.
It would appear that when raising the main issue, the Judge was concerned that action proceedings do not afford the court sufficient means to consider inquisitorially (as it is obliged to do) all of the relevant circumstances, bearing in mind that PIE has, as its foundational value, the principle that deprivation of property may not be arbitrary and that special consideration should be given to the rights of the elderly, children, disabled persons and households headed by women (the mandatory features).
DNN contended inter alia that whilst prescribing certain mandatory features of the procedure to be adopted in evictions from residences, PIE does not say that the eviction process cannot be brought by way of action proceedings. It argued further that, provided these mandatory features are sufficiently addressed and pleaded when issuing summons to institute action proceedings, the institution of eviction proceedings by way of an action is permissible in terms of PIE.
However, the court held inter alia that (i) the only procedure which allows the court access to evidence when it considers eviction proceedings is an application and (ii) if the eviction is sought by way of action, regardless of how full the pleadings are with reference to the relevant circumstances, the allegations do not constitute evidence on which a court can exercise its discretion. It further held that if the court is to conduct the inquisitorial process required, it must thus, within reason, be the applicant for relief who provides the facts’ necessary to allow for the exercise of the discretion and that this can only be done by way of affidavit. The court thus concluded inter alia that one cannot institute eviction proceedings in terms of PIE by way of action and summary judgment proceedings. It was on that basis that the ex parte application was surprisingly dismissed with costs.
Judgment analysis
First, can landowners use action as opposed to application proceedings for eviction orders in terms of PIE? Section 4(1) of PIE provides that “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.”
PIE does not define "proceedings". The scope and ambit of the “proceedings” concerned does not exclude action proceedings. Generally, litigants may prefer action or application proceedings, depending on the circumstances of each case and whether a bona fide material dispute of facts which cannot be resolved in an application exist or are anticipated. If landowners were barred (as the Judge held) from using action proceedings for evictions in terms of PIE, they would be unable to resolve such disputes without oral evidence available in action proceedings, resulting in manifest prejudice. That leaves landowners in an invidious position of being stuck between a rock and a hard place, where there is a material dispute of fact incapable of resolution on paper. In that case, (i) landowners cannot institute eviction proceedings by way of an application due to dispute of fact, and (ii) they also cannot institute eviction proceedings by way of an action because the Judge has held that action proceedings for evictions are precluded in terms of PIE. That could not have been the intention of the legislature.
In any event, the court in Nduna v ABSA Bank Ltd and others [2004] 3 All SA 364 (C) held that "proceedings" should be broadly interpreted to include both application and action proceedings.
Second, are eviction orders under PIE covered by rule 32 of the Uniform Rules of Court (applicable to action proceedings only), which provides for summary judgment for an ejectment/eviction? There is no indication, suggestion or authority that summary judgment applies exclusively to commercial evictions, and not to residential evictions in terms of PIE. Therefore, the second question can also be answered affirmatively.
Last, are there any other considerations of law or provisions of the Practice Manual that preclude landowners from seeking summary judgment in evictions under PIE? Section 4 of PIE includes safeguards to protect unlawful occupiers, particularly vulnerable groups like the elderly, children, disabled persons and women-headed households. Courts have an obligation to consider whether it is just and equitable to grant an eviction and the availability of alternative accommodation. In application proceedings, an unlawful occupier can present their case through an answering affidavit. In summary judgment proceedings (which are available in action proceedings only), unlawful occupiers would have filed a plea setting out their defence and thereafter have an opportunity to file an affidavit resisting summary judgment setting out their defence in more detail and the relevant factors to be considered by the court. Thus, if anything, unlawful occupiers enjoy more protection in summary judgment proceedings because they have an opportunity to file a plea and an affidavit resisting summary judgment where they can set out their defence in detail and address the mandatory features referred to above, and the applicant does not have the benefit of filing a replying affidavit.
Therefore, contrary to the Judge’s finding, PIE permits land or property owners to pursue eviction orders through action proceedings. Such evictions are covered by summary judgments in terms of rule 32 of the High Court rules. Sufficient safeguards and processes are in place to ensure that the rights of unlawful occupiers are protected in action and summary judgment proceedings.
This judgment falls to be overturned.
