Cape Killarney Property Investments (Proprietary) Limited v Mahamba and Others

Appellant, Cape Killarney Property Investments (Pty) Ltd, owned Doornbach Farm, an immovable property zoned 'industrial' within the Blaauwberg municipal area on the outskirts of Cape Town. The property had become the site of an informal settlement consisting of 542 dwellings occupied by the respondents (first to 542nd respondents) and their families. Appellant contended that the respondents were occupying the property without consent and were therefore 'unlawful occupiers' as contemplated by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 ('the Act'). Some respondents had been living on the property for up to 18 years. Appellant obtained an ex parte order (the 'original order') from Foxcroft J on 22 June 1999, which included a rule nisi directing respondents to show cause on 28 July 1999 why they should not be evicted, and directions for service. Ms Doris Tshofuti, an owner of one of the dwellings (though not a named respondent), launched an application on 27 July 1999 on behalf of all respondents in terms of rule 6(12)(c) seeking reconsideration and setting aside of the original order. Hlophe DJP set aside the original order and ordered appellant to pay costs, including wasted costs from various postponements. Appellant appealed with leave.

• Whether the original order obtained ex parte was competent in light of the procedural requirements of section 4 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998
• The correct interpretation of section 4 of the Act, particularly regarding notice requirements
• Whether the notice required by section 4(2) of the Act is in addition to or in substitution of the notice of motion required by court rules
• Whether deviations from the usual court rules regarding service and time periods were permissible in the absence of urgency
• Whether the decision to set aside the original order was appealable
• Whether the costs order including wasted costs of postponements was appropriate

The appeal was dismissed with costs.

The binding legal principles established are: (1) Section 4 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 contains peremptory procedural requirements for eviction proceedings against unlawful occupiers. (2) An eviction order, even in the form of a rule nisi, constitutes substantive relief and cannot be obtained ex parte under the Act, as this would contravene the peremptory requirements of section 4(1)-(5). (3) The notice required by section 4(2) of the Act (to be authorized and directed by court order, served at least 14 days before the hearing, and containing the information specified in section 4(5)) is required in addition to the ordinary notice of motion required by court rule 6, not in substitution thereof. Any interpretation rendering sections 4(3) and 4(4) meaningless cannot be sustained. (4) The purpose of section 4(2), rooted in the constitutional right in section 26(3) of the Constitution, is to afford respondents in eviction proceedings a better opportunity than they would have under ordinary rules to put all relevant circumstances before the court. (5) Deviations from ordinary court rules regarding service and time periods for filing papers are not permissible in eviction proceedings under the Act in the absence of a proper case of urgency under section 5 of the Act or rule 6(12).

The Court assumed, without deciding, that the decision to set aside the original order was appealable, despite respondents raising the preliminary point that it did not constitute 'a judgment or order' as contemplated by section 20 of the Supreme Court Act 59 of 1959. The Court preferred to consider the matter on the assumption of appealability. The Court also noted, though did not need to decide, that there were further reasons advanced by the Court a quo for setting aside the original order beyond those discussed in the judgment. Regarding Ms Tshofuti's locus standi to act on behalf of respondents by virtue of section 38 of the Constitution, the Court noted this was not raised as an issue by appellant and therefore had to be accepted, though the Court did not make any binding pronouncement on the point.

This case is significant in South African law as it provides authoritative interpretation of the procedural requirements of section 4 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE Act). It establishes that: (1) the notice required by section 4(2) is in addition to, not in substitution of, the ordinary court rules regarding notice of motion; (2) eviction orders, even in the form of a rule nisi, cannot be obtained ex parte under the Act; (3) the Act's procedural requirements are peremptory and designed to afford unlawful occupiers better opportunities than ordinary litigants to present their case, consistent with the constitutional right not to be evicted without a court order made after consideration of all relevant circumstances (section 26(3) of the Constitution); and (4) deviations from ordinary court rules are not permissible absent a proper case of urgency. The case reinforces the constitutional underpinnings of eviction law and the protection afforded to vulnerable occupiers, particularly those in informal settlements.