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You assisted me in November with an ex parte motion advice…

Good day, You assisted me...
Good day, You assisted me in November with an ex parte motion advice when I locked out my tenant out of a commercial property for 3 days. The Sheriff came and took the keys and gave them back from me to give back to the tenant. . The civil case is on Wednesday 17 Jan and you suggested that I lawyer up. I contacted a lawyer who had sent him a registered letter telling him to vacate the premises in February of 2017 after I had terminated the lease in 2016 and he refused to go.You may recall that I locked him out for storing logs on common property and selling it as firewood which caused the complex to lose fire insurance.My lawyer contacted his lawyer and they agreed that the tenant would move out of the Unit at the end of December 2017, which he did.
My lawyer told my that I don't need to put in an answering affidavit because he vacated and the case was about this.So now the tenant will be claiming for loss of business and court costs.
(This surprised me because the Notice of Motion drawn up by his attorney states that the "Applicant pays the costs of this application on the scale between attorney and client.")
My lawyer will not be attending court and said I should send him proof of non payment of rent, the electricity bill and details of the damage to the Unit etc. This will be discussed with between attorneys. He said I can lodge a claim at a later stage if needs be.I have not gone to court before and it's concerning me that I will be going there empty handed without putting in an answering affidavit or submitting any claims. I guess this is normal between attorneys but it is really troubling me as the tenant said all his rent is up to date.
Can you offer me some advice please that will make me feel better on the day?
What documents should I take to court?
If I need to submit banking statements -should I redact the figures and only show the deposits or should I send in the full statement?
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Answered in 1 day by:
1/14/2018
CaseLaw
CaseLaw, Attorney
Category: South Africa Law
Satisfied Customers: 1,691
Experience: BCom; LLB; Masters in Law
Verified

Hi there and thank you for your question,

I am a practicing attorney based in South Africa and I will try to assist you with your legal question but please feel free to ask as many follow up questions in order to clarify your initial question. If you have a new question, you must please open a new thread.

If you are talking about an eviction application, then you are the applicant, and since the tenant has already left there is no need to proceed with the application. Your attorney should simply withdraw the application.

If you are talking about an application that the tenant has brought (as the applicant) in terms whereof he is claiming money from you because of lost business (or whatever), you need to oppose the application and to do so you must file an affidavit setting out your defence!

Your defence might be that the tenant moved out of the premises and that you promised that you wouldn't sue him further and that that was in "full and final settlement" of all claims. That would mean that he couldn't sue you now for lost business.

It's a little hard to give you proper advice because I don't know what the court case is about exactly.

If my answer hasn't provided you with enough clarity regarding your initial question, please send me a REPLY with follow up questions so that I can continue to assist you in this same thread for as long as you need. Let me know if you need more advice - don't just rate my answer as "bad".

If my are HAPPY with my answer then please click one of the STAR ratings or the SMILEY FACES to rate my answer!

Good luck and best regards,

CaseLaw

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Customer reply replied 4 months ago
Thanks, ***** ***** what is confusing me as to what will happen to me in Court on Wednesday. The tenant is the applicant and is claiming money from me for lost of business by locking him out for 3 days and court costs lawyers fees etc.
.
My lawyer said I do not need to submit an opposing affidavit ( although I would have preferred to have done so)
The tenant did not pay rent which I can prove- and he also removed the office roof/ceiling when he left and caused other damages..
I would like this all to be sorted out in civil court on Wednesday. But my lawyer said I will need to open another case against him for the back rent and damages after this case is over.
What is your take on this please?
.

Perhaps the question is WHY does your lawyer say that you don't need to file an opposing affidavit? If the answer is that the application is simply going to be postponed to the "opposed motion roll" and that you will then file an opposing affidavit, then he is right. Simply filing a notice to oppose is enough. BUT, if the application is going to be heard on Wednesday, your opposing affidavit sets out your defence.

So really, you need to find out the facts.

You can always file a counter-application for your damages. Then a court will hear both applications AT THE SAME TIME. Otherwise, if you wait till your tenant's application is finished before you launch your own, then your claim might prescribe!

So, perhaps get the facts from your lawyer. Find out the reasons WHY he says what he is saying.

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Customer reply replied 4 months ago
I had a second meeting with my lawyer last Friday who basically told me what you have written about opposed motions and counter applications etc. but he never suggested doing this prior to the case being heard tomorrow morning. As mentioned, its going to be very uncomfortable for me to go to court empty handed as I am not good explaining myself. So yesterday I put all the bank accounts together proving almost 5 months of unpaid rent in 36 months and my loss of fire insurance cover and drew up my own simple affidavit (signed at the police station) which I submitted to the Court yesterday in the hope the judge will ask me questions on this. I am grateful for your advice and would like to keep this chain open until after the case tomorrow- just in case I need to ask you a final question on where I could go on from there. Many thanks
Hi there,
That's fine, well done. I'm not sure why your attorney didn't offer to help with your simple affidavit.
You can keep this line of questions open, but maybe you could rate my answers and assistance to date?
Good luck!
CaseLaw
CaseLaw, Attorney
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Experience: BCom; LLB; Masters in Law
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Customer reply replied 4 months ago
Good day, I also followed your earlier advice and emailed my lawyer on Monday asking if the tenant will consider a deal in "full and final settlement" of all claims with each of us paying our own lawyers. On Tuesday afternoon I was sent the following response from his lawyer,
"A bit “eleventh hour” but what I will do is adjourn the matter tomorrow, until Wednesday, 14th February, 2018, with the interim rule nisi to be extended to that date.
As regards ***** ***** order, this was not asked for as part of the interim rule ( but will be, as part of the final order).
This will give me time to be able to take instructions on your client’s “all in” settlement proposal and I will revert thereafter."I don't understand his legal talk but gather his lawyer will get back to us once he has spoken to his client.
I received a separate email from my lawyer on Tuesday to say they will have the matter removed from the role and prepare a summons against the tenant.
I wrote back saying I do not wish to go this route. I would rather go to court on the 18th Feb and let the judge decide and I will pay what I have to. The tenant had lied in his affidavit about never receiving any registered letters or notice of breaches of his lease or termination thereof which I can prove. So I hope the judge will take everything into consideration including his storage of logs.
I trust I have done the right thing, but now will have to wait another month.
A rule nisi means that they have some sort of interim order against you already. On the return date the judge will decide whether to make the order final, or discharge it.
I don't know which lawyer you're currently using, and I haven't seen your pleadings, but it sounds as if you are only giving me 1/3rd of the information. You might want to take your papers to another lawyer for a second opinion...
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Customer reply replied 4 months ago
Thanks you for your excellent advice. I would just like to clarify the matter please. The judgement they placed against me is an ex parte motion when I changed the locks after giving my tenant another 30 days notice to vacate the premises. His lease had already been terminated in Dec 2016 but he told me he was not going anywhere. The problems really began when he started operating a second business of selling firewood outside my Unit and in July his stored log pile was deemed a fire hazard by the Insurance company assessor who had carried out a site inspection. My tenant refused to remove the logs when I asked him to. I then contacted the Municipality Fire and Safety for help. They issued a notice on the 4th August ordering him to remove the logs immediately but he did not comply with their notice either. As a result the entire building lost fire insurance cover.
I contacted a Company specialising in evictions and was advised that my lease entitled me to change the locks after giving suitable notice which was done by registered letter. I did not know that this advice was incorrect. When we changed the locks at the end of October and the woodpile was still there.
His Affidavit states that he had never been given proper notice to vacate. He received no notification by registered mail to vacate. He had no idea of what breaches he was supposed to have committed. His rent was up to date etc. So I went to my original lawyer who sent him a registered in letter at the beginning of February 2017 to notify that his lease had been terminated. When they presented this proof to the tenants lawyer, he decided to move out which he did on the 3rd of Jan 2018.
Part of the ex parte included costs for loss of business for the days I had locked him out before the sheriff collected the keys from me and gave them back to the tenant.
The sheriff's ORDER said the Applicant is to pay the costs for the application which was what my lawyer was questioning..
He owes approx four months of unpaid rent, electricity and the damage to the Unit included the removal of the internal office roof. So based on what you had said in the first I asked my lawyer if we could come to a deal and call it quits between us.(you saw his lawyers response.) But if the tenant and his lawyer don't agree to this, I would prefer the judge to make the decision and fine me for locking him out. I just hope he will take the unpaid rent and damages to the factory into consideration as well as the fact that the tenants lease had been terminated a year earlier.
I just don't want my lawyer to open another case and sue the tenant for unpaid rent and damages as this could well be a bottomless money pit.
So once again I must thank you for all your advice.
It's a pleasure.
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