South Africa Law

Get your South African law questions answered by Experts

Ask a Lawyer,
Get an Answer ASAP!

This answer was rated:

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?
Show More
Show Less
Ask Your Own South Africa Law Question
Answered in 1 day by:
1/14/2018
CaseLaw
CaseLaw, Attorney
Category: South Africa Law
Satisfied Customers: 1,712
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

Ask Your Own South Africa Law Question
Customer reply replied 7 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.

Ask Your Own South Africa Law Question
Customer reply replied 7 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
Category: South Africa Law
Satisfied Customers: 1,712
Experience: BCom; LLB; Masters in Law
Verified
CaseLaw and 87 other South Africa Law Specialists are ready to help you
Ask your own question now
Customer reply replied 7 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...
Ask Your Own South Africa Law Question
Customer reply replied 7 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.
Ask Your Own South Africa Law Question
Was this answer helpful?

How JustAnswer works

step-image
Describe your issueThe assistant will guide you
step-image
Chat 1:1 with a lawyerLicensed Experts are available 24/7
step-image
100% satisfaction guaranteeGet all the answers you need
Ask CaseLaw Your Own Question
CaseLaw
CaseLaw
CaseLaw, Attorney
Category: South Africa Law
Satisfied Customers: 1,712
1,712 Satisfied Customers
Experience: BCom; LLB; Masters in Law

CaseLaw is online now

A new question is answered every 9 seconds

How JustAnswer works:

  • Ask an ExpertExperts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional AnswerVia email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction GuaranteeRate the answer you receive.

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises!

Gary B.Edmond, OK

My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, KS

PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent.

Three H.Houston, TX

Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!!

ElaineAtlanta, GA

It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem.

TonyApopka, FL

Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help.

Mary C.Freshfield, Liverpool, UK

< Previous | Next >

Meet the Experts:

PHINEAS MOTAUNG

PHINEAS MOTAUNG

Attorney

113 satisfied customers

BACHELOR OF LAWS

Emil

Emil

Attorney

33 satisfied customers

BCom Law LLB, 3 years post article experience as attorney

LCP

LCP

Attorney

21 satisfied customers

BCom (Stell) LLB LLM

Freddie Lombard

Freddie Lombard

Attorney

2,811 satisfied customers

Practicing attorney and conveyancer with 16 years post article experience.

Shaie Zindel

Shaie Zindel

Attorney

1,249 satisfied customers

All areas of commercial and contract Law - specialist in property advice.

inciteadvisor

inciteadvisor

Commercial Lawyer

814 satisfied customers

B.Com LLB Registered Corporate lawywer

Christiaan K

Christiaan K

226 satisfied customers

Attorney & Director at Lombard Kotze Incorporated

< Previous | Next >

Related South Africa Law Questions
My husband was recently arrested for intimidation. The plain
Good day, my husband was recently arrested for intimidation. The plain clothes officers came to my home at 07h30 on a Sunday morning, informing him that a case of intimidation was opened up against hi… read more
CaseLaw
CaseLaw
Attorney
Master's Degree
1,712 satisfied customers
My tenant in a commercial unit has been a big problem for
My tenant in a commercial unit has been a big problem for the Body Corp. I needed to evict him but he has placed an ex parte motion to have the keys returned and will need a lawyer, What might a lawye… read more
CaseLaw
CaseLaw
Attorney
Master's Degree
1,712 satisfied customers
I signed a lease agreement without taking or given a copy
I signed a lease agreement without taking or given a copy and it was discovered that it has to be amended especially the amount of rent is reduced by verbal so has to be enshrined in a written form in… read more
Barendb
Barendb
Master's Degree
777 satisfied customers
Tenant of property in Vanderbijlpark gave one month's
Tenant of property in Vanderbijlpark gave one month's notice. Rental agent could not place new tenant by time that previous tenant left. When rental agency intended to show prospective tenant the unit… read more
CaseLaw
CaseLaw
Attorney
Master's Degree
1,712 satisfied customers
I am a landlord. I have given notice to my tenant who will
I am a landlord. I have given notice to my tenant who will not vacate. The water consumption is excessive. The tenant will not allow me to access the unit so that i can affect repairs so that i can li… read more
Freddie Lombard
Freddie Lombard
Attorney
Bachelor's Degree
2,811 satisfied customers
I was accused of intimidation when I asked the tenant
Hi I was accused of intimidation when I asked the tenant when he will be vacating my property. He reported me to the police. The police said his statement is unclear even when they called him, his sta… read more
Freddie Lombard
Freddie Lombard
Attorney
Bachelor's Degree
2,811 satisfied customers
Freddie. Kindly explain to me what constitutes a charge
Hello Freddie. Kindly explain to me what constitutes a charge of attempted murder and how false witness can determine the outcome of the verdict.… read more
Freddie Lombard
Freddie Lombard
Attorney
Bachelor's Degree
2,811 satisfied customers
Good evening I have just purchased a property in Pretoria
Good evening I have just purchased a property in Pretoria and it is registered on my name, the renter will not move out, even after lawyer letters being delivered to him. I have disconnected the elect… read more
JOHANN
JOHANN
Master's Degree
3,396 satisfied customers
In the process of evicting a tenant from our property. The
In the process of evicting a tenant from our property. The Rules of Court makes provision for 3 affidavits, the applicant's founding one, the respondent's answering and applicant replying, as per our … read more
JW Fourie
JW Fourie
Attorney
Bachelor\u0027s Degree
6,698 satisfied customers
hello, please can I have a senior attorney assist me, a few
hello, please can I have a senior attorney assist me, a few of my friends had success with this website but not me, I had to request a refund 2 months ago, it is for the same matter and I am trying to… read more
Shaie Zindel
Shaie Zindel
Attorney
B.A. (RAU); BProc (RAU)
1,249 satisfied customers
I have a tenant in a commercial property who is operating under
I have a tenant in a commercial property who is operating under a verbal lease agreement. The tenant has confirmed in writing the date on which this verbal lease will cease. On expiry of this verbal l… read more
Shaie Zindel
Shaie Zindel
Attorney
B.A. (RAU); BProc (RAU)
1,249 satisfied customers
My wife and I own a small cc. About 3 years ago we rented
My wife and I own a small cc. About 3 years ago we rented offices in Cape Town in the name of the cc, but we also stood personal surety for a 3 year lease. After about 6 months the business was going … read more
CaseLaw
CaseLaw
Attorney
Master's Degree
1,712 satisfied customers
Hi ,joshco housing department allocated me a bigger unit
Hi , joshco housing department allocated me a bigger unit , i signed a lease with them , paid the deposit and moved in , 1 month later they call me to say the previous owner has a court order against … read more
JOHANN
JOHANN
Master's Degree
3,396 satisfied customers
I have a tenant who has not paid rent for more than 2 months,
I have a tenant who has not paid rent for more than 2 months, his contract ended 31 Dec, and he was supposed to have vacated, he is still there and won't move out, and I am a pensioner and can't affor… read more
Mike Otis
Mike Otis
Master's Degree
1,508 satisfied customers
My name is XXXXX XXXXX i live in Roodepoort. I am the majority
My name is XXXXX XXXXX i live in Roodepoort. I am the majority member of a Close Corporation (for the sake of convenience referred to as DESS). The other member of the Corporation and i had a fall out… read more
JOHANN
JOHANN
Master's Degree
3,396 satisfied customers
Hi I would appreciate your assistance. have a tenant who
Hi I would appreciate your assistance. have a tenant who stays in my cottage on my property. H e has unfortunately "lost it" over the last 3 weeks. We have always had a good understanding and his rent… read more
CaseLaw
CaseLaw
Attorney
Master's Degree
1,712 satisfied customers
The tenant was 1 month in arrears with his rent. He does not
The tenant was 1 month in arrears with his rent. He does not have a signed rental agreement as the agreement lapsed at the end of January. In February he signed an acceptance of termination of the ren… read more
JW Fourie
JW Fourie
Attorney
Bachelor\u0027s Degree
6,698 satisfied customers
hello, i rented out my property through just letting agency,
hello, i rented out my property through just letting agency, the tenant vacated the unit in october 2009 without giving one full calender month notice and paying the rent for that month. on top of tha… read more
JP
JP
Bachelor
590 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x