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{{Short description|South African legal case}}
{{Short description|South African legal case}}
{{Italic title}}
⚫
'''''Theart and Another v Minnaar NO; Senekal v Winskor 174 (Pty) Ltd'''''<ref>2010 (3) SA 327 (SCA).</ref><ref>Case Nos 483/08 and 007/09.</ref> 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 November 5, 2009, with judgment handed down on December 3. [[Lex Mpati|Mpati P]], [[Fritz Brand|Brand JA]], Snyders JA, Malan JA and Bosielo JA presided. 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. These were appeals from two decisions in the High Court, Cape Town. 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.
{{Use dmy dates|date=January 2024}}
{{Infobox court case
| court = [[Supreme Court of Appeal (South Africa)|Supreme Court of Appeal]]
| date decided = {{start date|2009|12|3|df=y}}
| image =
| imagesize =
| imagelink =
| imagealt =
| caption =
| full name = Theart and Another v Minnaar NO; Senekal v Winskor 174 (Pty) Ltd
| citations = {{cite SAFLII |court=ZASCA |year=2009 |num=173}}; 2010 (2) All SA 275 (SCA); 2010 (3) SA 327 (SCA)
| appealed from = ''Theart and Another v Minnaar NO'' {{cite SAFLII |court=ZAWCHC |year=2008 |num=43}}; 2009 (3) SA 503 (C) in the [[High Court of South Africa]], [[Cape Provincial Division]]<br />
''Senekal v Winskor 174 (Pty) Ltd'' (appeal no. 007/09) in the High Court of South Africa, Cape Provincial Division
| opinions =
| judges = [[Lex Mpati|Mpati P]], [[Fritz Brand|Brand JA]], [[Suretta Snyders|Snyders JA]], [[Frans Malan|Malan JA]] and [[Ronnie Bosielo|Bosielo JA]]
| number of judges = 5
| decision by = Bosielo JA (unanimous)
| keywords = {{hlist | Eviction procedure | [[magistrate's court (South Africa)|magistrates' courts]] | section 4 of the [[Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998]] | section 26(3) of the [[Constitution of South Africa|Constitution]] }}
| italic title = yes
| docket = 483/08; 007/09
| subsequent actions =
}}
'''''Theart and Another v Minnaar NO; Senekal v Winskor 174 (Pty) Ltd''''' is an important case in [[South African property law]] and [[Civil procedure in South Africa|civil procedure]], as well as in the area of [[Legal interpretation in South Africa|legal interpretation]]. It was heard in the [[Supreme Court of Appeal (South Africa)|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, 1998|Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998]] (PIE) in the [[Magistrate's court (South Africa)|magistrates' courts]].


In two cases of unlawful occupation of land, and actions for statutory eviction from such land, the notice requirements of the Magistrates' Courts came under scrutiny. The Magistrates' Courts Rules compel a procedure differing from that in the High Court. Bosielo JA, however, found that, as long as the notice achieves the general purpose contemplated by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act<ref>Act 19 of 1998.</ref><ref>s 4.</ref> (PIE) and the Magistrates' Courts Rules,<ref>Rule 55.</ref> the fact that the notice does not strictly comply with such provisions is not necessarily fatal; in other words, two notices in two separate documents were not required.
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,<ref>Rule 55.</ref> 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.


== Facts ==
== Facts ==
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]]''.<ref>2001 (4) SA 1222 (SCA).</ref>
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]]''.<ref>2001 (4) SA 1222 (SCA).</ref>


The procedure in the Magistrates' Courts is different from that in the High Court, because of the difference in the provisions of Rule 55 of the Magistrates' Courts Rules, on the one hand, from those of Rule 6 of the Uniform Rules of the High Court, on the other.
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' Court, two notices contained in two separate documents are not required. One will suffice as long as
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 Magistrates' Court with jurisdiction, as envisaged by section 4(2) of PIE, pursuant to a preceding ''ex parte'' application;
# 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 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).
# 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 ==
== Judgment ==
When considering the order to be granted in terms the procedure above, held Bosielo JA (Mpati P, Brand JA, Snyders JA and Malan JA concurring), 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.
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 [[Chapter Two of the Constitution of South Africa#Housing|section 26(3)]] of the [[Constitution of South Africa|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.<ref>Para 15.</ref>
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.<ref>Para 15.</ref>


== See also ==
== Counsel ==
⚫
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.
* [[Legal interpretation in South Africa]]
* [[South African civil procedure]]
* [[South African property law]]


== References ==
== References ==
Line 30: Line 51:


=== Cases ===
=== Cases ===
* ''[[Cape Killarney Property Investments (Pty) Ltd v Mahamba and Others]]'' 2001 (4) SA 1222 (SCA).
* ''[[Cape Killarney Property Investments (Pty) Ltd v Mahamba and Others]]'' 2001 (4) [[South African Law Reports|SA]] 1222 (SCA).
* ''[[Moela v Shoniwe]]'' 2005 (4) SA 357 (SCA).
* ''[[Moela v Shoniwe]]'' 2005 (4) SA 357 (SCA).
* ''[[Theart and Another v Minnaar NO]]'' 2009 (3) SA 503 (C).
* ''[[Theart and Another v Minnaar NO]]'' 2009 (3) SA 503 (C).

Latest revision as of 07:36, 21 January 2024

Theart v Minnaar
CourtSupreme Court of Appeal
Full case name Theart and Another v Minnaar NO; Senekal v Winskor 174 (Pty) Ltd
Decided3 December 2009 (2009-12-03)
Docket nos.483/08; 007/09
Citations[2009] ZASCA 173; 2010 (2) All SA 275 (SCA); 2010 (3) SA 327 (SCA)
Case history
Appealed fromTheart 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
Court membership
Judges sittingMpati P, Brand JA, Snyders JA, Malan JA and Bosielo JA
Case opinions
Decision byBosielo JA (unanimous)
Keywords

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.

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.

Facts

[edit]

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:

  1. 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;
  2. 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
  3. 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

[edit]

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]

Counsel

[edit]

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.

References

[edit]

Books

[edit]
  • Juta's Statutes of South Africa 2008/9 vol 6.

Cases

[edit]

Statutes, etc.

[edit]
  • Magistrates' Courts Rules.
  • Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998.

Notes

[edit]
  1. ^ Rule 55.
  2. ^ 2001 (4) SA 1222 (SCA).
  3. ^ Para 15.
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