The Gauteng Local Division of the High Court, in the matter of DNN Technologies (Pty) Ltd v Mdwara [2024 (6) SA 467 (GJ)], held that eviction proceedings in terms of the Pie Act may only be brought on motion. The court held that the action procedure was not competent in Pie proceedings because the Pie Act required that a court consider all the relevant circumstances in eviction proceedings and such circumstances can only be dealt with effectively in motion proceedings.
The long established practice however is that in the context of PIE in the Magistrates’ Court as well as the High Court, “proceedings” includes action as well as motion proceedings.[1]
In DNN Technologies the court dealt with a summary judgment application and held that, not only could summary judgment not be granted in Pie proceedings, but the action procedure itself was inappropriate in Pie proceedings because the court was dutybound to consider “relevant circumstances” in Pie evictions in terms of section 4 of the Pie Act and could not do so in motion proceedings. The court stated that “The only procedure which allows the court access to evidence when it considers an application for eviction is the application procedure” (at 471G-I).
It is submitted that the decision is questionable. The action procedure makes provision for viva voce evidence and therefore motion proceedings is not the only procedure that allows the court access to evidence.
In action proceedings the court would comply with the provisions of Pie if it referred a default judgment to viva voce evidence as is the case with damages and various other claims. The court’s further ratio, in terms whereof the disqualification of the action procedure was based on the problems that would be encountered in a summary judgment application, is also problematic. Insofar as summary judgment does not cater for the consideration of relevant circumstances, the summary judgment could merely be dismissed and the matter could proceed to trial. During a trial or application for default judgment, the court can consider relevant circumstances impacting the eviction in terms of Pie by way of viva voce evidence.
The court’s decision also does not take into account those instances where there may be foreseeable factual disputes. In the event of a material dispute of fact, Rule 55(1)(k) may be applied in motion proceedings in the Magistrates’ Court. The basic rule when facts are disputed, is that the court must accept those facts asserted by the applicant that remain undenied by the respondent, along with the facts as alleged by the respondent.[2] In PIE applications, disputed facts should be dealt with as in other applications, however, viva voce evidence may be necessary to comply with the provisions of Pie relating to relevant circumstances. It is submitted that in the case of a foreseeable material dispute of fact in Pie proceedings, the action procedure should be permitted by the courts. [3]
[1] Jones & Buckle vol 2 Act 131; Nduna v Absa Bank and others 2004 (4) SA 453 (C) at 457C ; D Esterhuizen v JJ Esterhuizen (unreported, WLD case no A3044/06 dated 26 March 2007; See also Tarica; Krautkrämer R, PIE evictions in the Magistrates’ Court (cited hereafter as Krautkrämer) De Rebus July 2003.
[2] Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A). See also Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) at 242H–243A, [2008] JOL 21386 (CC), 2008 (5) BCLR 475 (CC).
[3] Jones & Buckle vol 2 55-12B–55-14B; Adbro Investment Co Ltd v Minister of the Interior 1956 (3) SA 345 (A).
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