The Eviction Process – Commercial Tenants
To provide some insight into the South African eviction procedure, the process followed by SSLR Inc. in commercial eviction matters is briefly outlined below.
The process must begin with the lease agreement being correctly cancelled. Even if a signed, written agreement has not been put in place, the lease agreement must still be cancelled for reasons of law. This ensures that in the eyes of the court, the property is clearly being occupied illegally and that the right of the occupant to remain on the premises has been terminated.
It is important to note that if the lease is for a fixed period and involves any one party who is a natural person, in accordance with Section 14 of the Consumer Protection Act, the agreement can only be legally cancelled after a notice has been delivered to the occupant, allowing for 20 business days to remedy the breach of the lease agreement.
2. Application for Eviction
As soon as the tenant is deemed to be in illegal occupation and the right to occupy the premises has been terminated, we can proceed with an eviction application. The application will include a claim for the ejectment of the tenant from the premises, and may also include, depending on the circumstances of the case, a monetary judgment for the arrear rental owing by the tenant, in addition to damages suffered by the landlord as a result of early cancellation of the lease agreement.
The application will be issued at Court to obtain a case number and a hearing to be set for a date in 4 to 6 weeks. The application will then be served by the Sheriff of the Court on the tenant at the premises.
Frequently Asked Questions (FAQs)
What is the duration of a typical eviction?
Duration of different eviction applications may vary as time periods are dependent on several factors. For instance:
The Court approached – If the application is being issued out of the High Court, the application will take approximately 4 to 6 weeks if the matter is unopposed. We take into consideration a number of factors when choosing a Court, such as the location of the property and foreseeable difficulties in obtaining judgment due to circumstances surrounding the matter. Approaching the High Court does not incur additional cost as we take charge of all our appearances ourselves.
Unopposed or Opposed applications – Tenants are entitled to oppose the matter for whatever reason, even if the opposition is unfounded. If opposed, we can expect the matter to be finalised in the High Court in about 6 to 8 months, depending when the Court is in recess.
Final Eviction Order
Once a final eviction order is granted, a Court order can be issued within 10 court days, allowing for court orders to be typed. We can then issue warrants of execution at Court, which we subsequently deliver to the Sheriff to be executed.
The Sheriff of the Court is the only person that can legally execute the eviction.
What happens if the tenant disregards the eviction order and refuses to vacate?
If the occupant does not vacate the premises by the date given in the Eviction order, the Sheriff is instructed to remove occupants from the premises, using whatever means at their disposal.
Is recovery of arrears rental and damages included in the eviction process?
It is not part of, but done alongside the eviction process. In the likely event that you wish to institute legal action against the occupant for recovery of arrears rentals and/or damages suffered; a separate summons is issued. This prevents the eviction from being delayed and can be instituted at any time before, during or after the eviction order has been granted. In the Magistrate’s Court, a Rent Interdict Summons can be issued, allowing the sheriff to provisionally attach certain goods, while also providing an indication of their value.
The effect of a sale on a management mandate agreement Is the purchaser of a property with a tenant in the premises duty-bound to perform in terms of the former landlord’s obligations towards the lease agreement, or in terms of a mandate in the case of a management mandate agreement? The lease agreement remains in […]
Obtaining court dates from the High Courts in Lockdown Level 1 As much as we, as legal practitioners, have got used to attending to court virtually and working with the new online court system, called CaseLines; the legal profession is still experiencing extreme difficulties. The latest court directives allow us to issue new proceedings at […]
Does Section 4(5)(c) of the Rental Housing Act contradict the principle of huur gaat voor koop? The legal principle of huur gaat voor koop was established within Roman Dutch Law and has, since the adoption of Roman Dutch Law as the foundation of the South African legal system, been one of the cornerstone principles governing property […]
Why were these regulations declared unconstitutional by the High Court? What does this mean? On 2 June 2020 the High Court handed down a judgement in the matter of De Beer v COTGA. News of this judgement spread in the media and on social media like wildfire, with headings like “Lockdown Regulations Unconstitutional”; as much […]
LEVEL 4 REGULATIONS ON EVICTIONS The Alert Level 4 Regulations were released to the public explaining exactly what Level 4 will entail for the South African public. One of the regulations, specifically Regulation 19, deals with the prohibition of evictions and has a big effect on our property industry. The Regulation reads as follows: A […]
No regulations of any kind have been implemented to authorise tenants to refrain from paying rent. The global pandemic brought about by the COVID-19 virus has thrust South Africa into one of the most unfamiliar and uncertain times in our history, the likes of which never before experienced. Government has, in response to the virus, […]