Sam Kadish Moela v Tichaona Abel Shoniwe

The respondent, as owner of a residential property (Erf 105 Elspark), instituted action against the appellant for his eviction on the basis that the appellant was in unlawful occupation without consent. The appellant and his extended family occupied the property as their home. After the appellant entered appearance to defend, the respondent applied for summary judgment seeking eviction. The appellant opposed the application, disputing ownership, raising the needs of vulnerable occupants, and alleging non-compliance with section 4(2) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE), particularly the failure to properly serve notice on the municipality. The High Court granted summary judgment, finding no bona fide defence and holding that service requirements were met.

The appeal was upheld with costs. The order of the High Court granting summary judgment was set aside and replaced with an order dismissing the application for summary judgment, with costs to be costs in the cause.

The case reinforces the peremptory nature of section 4(2) of PIE and underscores the essential role of municipalities in eviction proceedings. It confirms that eviction orders, including those sought by way of summary judgment, cannot be granted without proper court-authorised notice to both unlawful occupiers and municipalities, thereby strengthening procedural protections against unlawful evictions.