GUIDELINES ON PROCEDURE: EVICTIONS IN TERMS OF PIE-ACT
1. In terms of Rule Rule 55(1) (d), the application should be on the Long Form,
Form 1A of Annexure 1.
2. The date that has to be “set forth”, in terms of Rule 55(1)(e)(iii), should fall
on a Friday, being the assigned day for Unopposed Motions, in the
Vanderbijlpark Civil Court.
3. The date to oppose will be not less than 5 days after service of the notice on
the Long Form. – See Rule 55(1) (e) (iii).
4. The “Friday-date” needs not to be confirmed with the Clerk of the Court. Any
Friday may be elected. This date should be at least two calendar months in
advance to make provision for the ex parte application and service of the
notice in terms of Sec 4 of PIE. Furthermore, ensure that the court will be in
session on that Friday. (See Website for dates.)
5. (a ) The enrolment should be done on a separate notice, in terms of Rule
55(1)(f). The notice on the Long Form is not a notice to enrol.
(b) The Clerk of the Court has no discretion to condone short notice of
enrolment.
(c) The word “may” in Rule 55(1) (f), vests a discretion in the applicant to
decide whether he/she wants to proceed with the application. The applicant
may, for a variety of reasons, choose not to proceed with the application.
The word “may” does not give an applicant a discretion to choose whether
he wants to give the clerk of the court 5 days notice to enrol, if the applicant
so which to proceed with the application. There must be strict compliance
with the provisions of R55(1)(f).
UNOPPOSED APPLICATIONS:
6. Follow the steps in paragraphs 1 to 5.
7. If the respondent does not on or before 5 days after service of the notice on
the Long Form notify the applicant in writing of his intention to oppose, the
applicant may proceed to bring the ex-parte application, to obtain directions
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regarding serving and hearing date, as envisaged in section 4 (2) of the PIEAct.
8. This ex-parte application should be enrolled for Motion Court on a Friday.
There is no reason to hear this matter on an urgent basis or in chambers.
9. The short form should be used for the ex parte-application.
(a) Rule 55(3)(b) provides that the notice in every application brought ex
parte shall be similar to Form 1 of Annexure 1, the short form.
(b) The prescribed form, Form 1, contains the sentence: “Kindly place the
matter on the roll accordingly.”
(c) The abovementioned sentence must be included in the notice as the
short form is an enrolment in itself.
10. See Rule 55(1) (d) read with Rule 55(1) (f). There must be a notice of
enrolment. See paragraph 5 above.
11. The applicant, provided that there was no notice to oppose, and/or no
answering affidavit may request the court to allocate the same “Friday date”
for hearing of the Pie-application, as was inserted in the initial application in
terms of Rule 55(1)(e)(iii)
OPPOSED APPLICATIONS
12. Follow steps 1 – 4.
13. If the respondent proceeds in terms of rule 55(1)(g)(i), by giving notice in
writing of his/her intention to oppose, the procedure as set out in Rule
55(1)(g), and (h) have
to be followed and the time limits have to be
exhausted.
14. Only once the replying affidavit was delivered, or once applicant elected not
to reply, the applicant may approach the court with the ex-parte application
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for directions regarding serving and hearing date, as envisaged in section 4
(2) of the PIE-Act.
15. The next step is as set out in paragraph 7, that is: The ex-parte application
should be enrolled on the short form.
16. As the applicant will be aware that there is an opposition, he/she should
request the court to set a Thursday as a hearing date, as Thursdays are
allocated for opposed motions in Vanderbijlpark.
17. The applicant should also ensure that the forth coming Thursday-date should
be at least 14 days in future (in order to comply with the 14-days provision in
terms of PIE). Time for service should also be allowed.
THE EX-PARTE APPLICATION
18. This application is in terms of Section 4(2) and 4(5) of the PIE-act.
19. The court in Cape Killarney Property SCA 2001 (4) SA 1222 explains the ratio
why an ex-parte application is the logical way to proceed with in order to
comply with the provisions of Pie.
SCENARIO’S: OPPOSED PIE- APPLICATIONS
20. Once a notice to oppose was delivered, even if no answering/opposing
affidavits are forth coming, the matter should be canalized to the opposed
roll. See Rule 55(1) (j)(i) and Rule 55 (1) (j)(iv).
21. There is a possibility that the respondent will fail to respond to the Rule 55
notice, but will appear in court on a Friday, as a result of the PIE-notice. The
court will make the necessary directions, bearing in mind the provisions of
Rule 1(1), Rule 1(2), Rule 1(3) and Section 4 (1) of the PIE-Act.
22. A pre-trial in terms of Rule 1(3) and section 54(1) of the Magistrate’s Court
Act
may be held
in order to dispose of the application in the most
expeditious and least costly manner.
23. In the event where there is a real dispute of facts which can not be
determined on the documents, the court may proceed in terms of Rule
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55(1)(k)(i), or 55 (1)(k)(ii). If the court proceeds in terms of rule 55 (1)(k)Iii),
the matter will be referred to the trial roll.
C. REYNEKE
* Author: C. Reyneke, Magistrate, Vanderbijlpark. Revised: 9 June 2016.