Depending on the factual use of the property, commercial evictions are typically governed by the common law and the Consumer Protection Act, 68 of 2008, (if applicable). This has the benefit of removing the hurdles put in place in respect of residential evictions and farm evictions.
Again, we have divided the eviction process into phases and to control legal costs.
Phase One of a Commercial Eviction
As with all evictions, the commercial tenant must be unlawful occupation of the property and as such the first step is to place the occupant on terms (Eg: demand payment of rent) and terminate all rights to occupy the property upon the failure to comply with the demand.
After the lease agreement has been terminated, we would demand that the occupant vacate the property within a reasonable time period.
Phase Two of a Commercial Eviction
After the occupant has been turned into an unlawful occupant, we would:
- Prepare the eviction application papers – this normally contains: a history of the matter which has resulted in an eviction being sought; the facts justifying the eviction; certain documents supporting the eviction; and, addressing certain eviction formalities.
- Executing the eviction application papers.
- Having the Sheriff serve (deliver) the eviction application papers on the unlawful occupant.
- Complying with the court rules (especially the eviction court rules).
After the Sheriff has served the eviction court papers, the occupant will be allowed to oppose the eviction and as such the time periods for the opposition to be entered need to end before proceeding to the next phase of the eviction.
Phase Three of a Commercial Eviction
After the time for opposition has ended, we would proceed to argue the matter and obtain an eviction court order.
Once the eviction court order has been granted, the eviction court order would be served on the occupant to allow the occupant a final opportunity to leave before the Sheriff and the South African Police Services become involved.
Phase Four of a Commercial Eviction
If the occupant does not leave the property, a warrant of eviction is prepared and issued by the court and the Sheriff is given instructions to serve the warrant of eviction and to evict the occupants (using reasonable force if necessary) and the South African Police Services can also become involved to ensure that there is no criminality during the eviction.