It is trite that in order to evict unlawful occupiers from property used for residential purposes, the procedure as contemplated in the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998, (the “PIE Act”) must be followed.
Section 4(2) of the PIE Act requires that the property owner (or the person in charge of the property at the relevant time) seek the authorization of a notice (a so-called “section 4(2) notice”) advising the occupiers of the date on which the eviction will be heard by the court. In most courts, the courts also require that additional aspects be included in the section 4(2) notice (which is recommended) such as: that the occupiers may be present at and participate in the hearing of the eviction matter; that the occupiers may obtain and make use of legal representation; that the occupiers are warned that the court may grant an eviction order even if the occupiers do not appear; and, that the occupiers are requested to bring their respective circumstances to the attention of the court.
The PIE Act also requires that the section 4(2) notice be served “At least 14 days before the hearing …”. This requirement is pre-emptory, and non-compliance is fatal as the PIE Act does not provide for condonation in the event of short service – which the courts are very mindful of.
Given the drastic effect of non-compliance with timeous service, the courts have required strict adherence with section 4(2) of the PIE Act and this has raised an interesting question: must service take place at least 14 “calendar days” before the hearing, or must service take place at least 14 “court days” before the hearing?
In light of the above question, it would be prudent to consider what are “calendar” days and what are “court” days. In brief: a “calendar day” is any day of the week as it would appear on a calendar, inclusive of officially declared public holidays, Saturdays and Sundays; and, a “court day” is any day of the week as it would appear on a calendar, exclusive of officially declared public holidays, Saturdays and Sundays.
The above only goes so far as to answer the question and hence we must turn to the Interpretation Act, 33 of 1957, and in particular section 4 of the Interpretation Act, which provides the method as to how time periods (such as the 14-day time period) are to be calculated and which reads as follows:
“When any particular number of days is prescribed for the doing of any act, or for any other purpose, the same shall be reckoned exclusively of the first and inclusively of the last day, unless the last day happens to fall on a Sunday or on any public holiday, in which case the time shall be reckoned exclusively of the first day and exclusively also of every such Sunday or public holiday.”
On the basis of section 4 of the Interpretation Act, the time period in section 4(2) of the PIE Act should be calculated as follows:
- Exclusive of the first day.
- Inclusive of the last day.
- Inclusive of the days between the first day and the last day unless the last day falls on an officially declared public holiday or Sunday, in which case the last day shall be that day after the said officially declared public holiday or Sunday.
The above method of calculation does not exclude any officially declared public holiday, Saturday or Sunday from the calculation of the time period and hence it can be concluded that the reference in section 4(2) of the PIE Act to “days” does not mean “court days” as this would have the effect of excluding any officially declared public holiday, Saturday or Sunday from the calculation. Accordingly, it would appear that “calendar days” was intended.
The aforegoing is supported by the Nedcor Bank Ltd v Master of the High Court and others [2001] JOL 9155 (A) case (the “Nedcor Judgment”), in which the Appellant Division (as it then was) was called on to consider the Insolvency Act, 24 of 1956, regarding the calculation of time periods in statue – more specifically section 40(2) of the Insolvency Act, 24 of 1956.
In the Nedcor case the court concluded that regard must be had to section 4 of the Interpretation Act and hence the court proceeded to calculate the time period of ten days in section 40(2) of the Insolvency Act as read with section 4 of the Interpretation Act. The conclusion is clear, the time period in section 4(2) of the PIE Act is to be calculated with regard to section 4 of the Interpretation Act and hence “calendar days” would be used instead of “court days”.
This article was first published in De Rebus in 2022 (Nov) DR 5.
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