LANDLORDS, TENANTS AND THE DREADFUL EVICTION PROCEDURES

Have you, as a Landlord, ever been the victim of a tenant refusing to vacate your premises at the end of a lease agreement or at the date of termination thereof as a result of the default of a tenant?

This is a situation wherein no Landlord wants to be in since it will result in a lot of headaches and unnecessary legal costs in an attempt to have the unlawful occupant of the premises correctly evicted according to the Provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998.

The Pie Act, as it is commonly known, can be a very tricky and daunting act if it is not properly complied with during the eviction proceedings. Although you do not want to incur any further costs pertaining to the dispute, it is of the outmost importance that you ensure that the correct proceedings are followed in order to avoid further complications.

Lease Agreement

In order to avoid unnecessary complications during the litigation process regarding the validity of your Lease Agreement, it is important to consult your attorney prior to entering a Lease Agreement with a prospective tenant in order to ensure that the Lease Agreement contain the necessary provisions to protect all parties involved and also stipulate the relevant procedures in the event of the non-compliance of the Lease Agreement.

Notice to Evict

Should a situation arise where a tenant defaults in terms of his/her obligations as set out in the Lease Agreement, one would need to carefully consider the provisions of the default clauses in the Lease Agreement in order to ensure that the correct procedures are followed before terminating the agreement. The aforementioned would also apply where a Landlord gives notice to a tenant of his/her intention not to renew the Lease Agreement upon the lapse thereof.

For example, let’s assume that there is a proper default in terms of the Lease Agreement or the period of the Lease Agreement has lapsed and you now request your tenant to vacate the premises in order for a new tenant to occupy same but they then refuse to comply with your request, then, in terms of the Act, a Notice to Evict should be delivered to the tenant at its domicile address as set out in the Lease Agreement.

Said notice must include the confirmation of termination of the lease agreement as well as information regarding the reason for the termination, also stating that the tenant is now unlawfully occupying the premises as a result of the termination of the agreement for whatsoever applicable reason. The notice will then also grant the occupier a reasonable period, normally 30 calendar days, to vacate the premises, failing which further legal proceedings will be instituted against him/her.

Should the tenant fail to vacate the premises on the stipulated date, the application for the eviction of the unlawful occupiers will now need to be brought against them in terms of Section 4(1) of the Act, to be heard and decided in the applicable Court.

Application for Eviction

Your attorney will now proceed to draft the necessary Application for Eviction as well as a affidavit for the owner of the Leased Premises to sign in the presence of a Commissioner of Oaths stating that he/she is the registered owner of the property and also provide the proof of ownership thereof. You will also need to state how the relationship with the tenant arose, in this circumstance as a result of a Lease Agreement and also clearly indicate what the reason for the termination of the Lease Agreement is and why the tenant has failed to vacate the premises despite demand to do so.

The Notice to Evict which was delivered to the tenant will also be attached to the affidavit as confirmation of the cancellation of the Lease Agreement.

Once the application and the affidavit in support thereof is finalised, same will be issued at Court and served by the Sheriff on the tenant. The Notice of the application will also include a date on which the tenants should appear before the relevant court in order to defend or consent to their eviction of the premises. The tenants will also have the opportunity to consult an attorney who will assist them with the furtherance of the matter.

According to the Act, a further notice, referred to as the Section 4(2) Notice and Order to Evict, which should be signed by a Magistrate or Judge, must be served by Sheriff on the Tenants at least 14 days before the hearing of the Eviction proceedings. The Section 4(2) proceedings is referred to as the ex parte proceedings and your attorney will need to approach the Court in the interim but before the 14 days period to obtain said Ex Parte order from a Magistrate or Judge, depending on in which Court the application will be heard.

Upon hearing of the eviction proceedings, whether opposed or unopposed, the relevant Magistrate or Judge will peruse the merits of the case and then make an order for the eviction of the tenants, should he/she be of the opinion that it is in the interests of justice to do so. It is important to note that an order to evict will not be granted if the tenants have no alternative accommodation. In this event, the local Municipality will be afforded the opportunity to provide the tenants with the necessary accommodation.

Once the tenants have been evicted from the premises you can then also proceed to institute the necessary legal proceedings to recover any outstanding rent and/or damages you have incurred as a result of the tenant’s unlawful occupation of your property. these proceedings may be brought at any time, before, during or after the eviction proceedings.

To conclude, it is thus evident, whilst taking the above into account, that it is very important for you as a Landlord to ensure that your Lease Agreement is in order and that your attorney provide you with the necessary assistance in the event that you are caught up in a situation where you have a tenant who refuses to vacate your rental property.

Defamation vs Freedom of Expression – Where do we draw the line?

With regard to Antony Louis Mostert & three others v Simon John Nash & seven others

Introduction:

In today’s society there is a plethora of ways that people can make their voices heard, be it through media, social media, blogs, articles or the good old grapevine. But have you ever stopped and wondered how free freedom of expression really is? It’s perhaps a thought that should have crossed the mind of the First Respondent in this matter.

Dispute:

The dispute herein relates to very unsavory remarks about the First Applicant which were made by the First Respondent.

An application was brought by the First Applicant, Antony Louis Mostert, in his personal capacity and in his capacity as curator and liquidator of the Third and Fourth Applicants respectfully, both being pension funds. Such application was brought to seek an order to prohibit the Respondents from disseminating, directly or indirectly false and defamatory allegations about the First Applicant and certain other relief. The Application was brought on the basis of urgency, as publication of further defamatory allegations were anticipated.

The First Respondent alleges that the abovementioned order would severely violate his Constitutional right to freedom of expression on two grounds, firstly that it would limit his right to impart information and ideas unjustifiably and, secondly, it unjustifiably limits the public’s right to receive such information.

The defamatory allegations made by the First Respondent were made on more than one occasion and continued on the website www.pensionscam.co.za. Such allegations were made after the First Applicant’s appointment as curator and consisted of accusations of fraud, corruption and further went on to attack the character of the First Applicant. It must be noted that the aforesaid allegations were not supported by any facts.

Right to dignity and freedom of expression:

The court had to take into account the following factors in determining the dispute:

  1. Has the First Respondent undermined the right of the First Applicant to the safeguard of his dignity and reputation or fama which personality right is protected by the law of defamation;
  2. Does freedom of expression exonerate the First Respondent from all liability for his untruthful statements about the First Applicant; and
  3. Is the order sought justified?

Human dignity and freedom of expression are rights afforded to South Africans and are protected by the Constitution. The right to human dignity is protected by Section 10 of the Constitution and includes inherent dignity and the right to have their dignity respected and protected. On the other hand, the right to freedom of expression is protected by Section 16 of the Constitution and any limitations are subject to the requirements of Section 36.

The Court stated that freedom of expression does not trump the right to dignity and further referred to what was stated by the Constitutional Court in S v Mamabolo with regard to the relationship between the rights to dignity and freedom of expression, namely:

“With us, the right to freedom of expression cannot be said automatically to trump the right to human dignity. The right to dignity is at least as worthy of protection as the right to freedom of expression. How these two rights are to be balanced, in principle and in any particular set of circumstances, is not a question that can or should be addressed here. What is clear though and must be stated, is that freedom of expression does not enjoy superior status in our law. ”

Defamation Requirements:

The elements of defamation consist of:

  1. The wrongful; and
  2. Intentional;
  3. Publication of;
  4. A defamatory statement.

The Court stated that “the law of defamation is designed to protect the reputation of people, in doing so, it limits the right to freedom of expression. Such limitation can be consistent with the Constitution only if it can be said that ‘an appropriate balance is struck between the protection of freedom of expression on the one hand, and the value of human dignity on the other‘.”

The court further went on to state:

“It follows in my view, that in defamation cases the truth of what is said and the public interest are relevant factors. Also relevant are the context in which the statements were made, their reasonableness, the tone used, the identity of the person who made the statements and the identity of the victim. These criteria are useful, in my view, when determining whether freedom of expression justifies the violations of a person’s right to dignity.”

Order:

The Court disregarded the First Respondent’s defence that such statements were fair comment and in the public interest and came to the conclusion that the defamatory statements were not supported by any evidence and were “outrageously defamatory”.

The Court made the following order:

  1. The First to Third Respondents are interdicted from disseminating, directly or indirectly, false and defamatory allegations pertaining to the First and Second Applicants as well as their associates;
  2. The Respondents are directed to cause the website http://pensionscam.co.za or any other website established by them which refer to the First Applicant or his associates to be closed down within 24 hours, failing which the Sheriff shall be authorised to do so;
  3. The First and Fourth Respondents are ordered to obtain leave of the Court prior to instituting further proceedings against the Applicants;
  4. The costs of this application shall be borne by the First to Third Respondents jointly and severally.

Conclusion:

Simply put, defamation is not something to be taken lightly. Our Constitution affords South Africans an array of Rights that should not, and will not, be used to defend wrongful behavior.

By
Lauren Padayachee
lauren@dyason.co.za