The question is if my boss has a business tenant and he has defaulted in his rental for a 3 month period and his lease has expired in the end of December and has not been renewed and the said tenant has been given an eviction notice in December but refuses to vacate premises what can we do and are we within our rights to take legal action?

Hi there and thank you for your question,

If it is a business tenant (and by that, I mean that the person is NOT living there; rather, that this person has rented the premises in order to trade from the premises) then you will need to apply to Court for an eviction order. 

You've already send the tenant an eviction notice, so that's good. You've explained to him that he needs to move out. The basis of this is that he didn't pay his rental, and that the lease has expired. 

In my opinion, and based on what you've said, the tenant won't have any defence to a Court application. There shouldn't be any dispute, especially since his lease has expired. 

So, you'd need to apply to Court (by way of an application -- possibly an urgent application) for an eviction order. The eviction order will then be given to the Sheriff of the Court, and the Sheriff will then go to the premises and physically remove the tenant. 

You are unfortunately not allowed to take the law into your own hands and remove the tenant yourself. That would be illegal, and the tenant could actually get a Court order forcing you to give him possession back! Simply becuase you didn't follow the correct Corut procedure. 

Since this is a business rental, I would suggest that you use an attorney to assist you in drafting the application. I can't refer you to a specific lawyer, but I can direct you to www.southafricanlawyer.co.za, where you can find a list of qualified lawyers in your area who will be able to assist you further!  Click here also --> Find a Law Firm in your area

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Att. Patrick

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The Court application will need to be supported by an affidavit in which the full background of the matter is set out. Like a story of how this tenant became a tenant; a copy of the lease; what happened since then; why the tenant breached the lease; when the lease expired; what communication you had with the tenant; why the tenant won't move out; what notification did you give the tenant; how are you suffering as a result.

The lawyer will however be able to assist you with all of this, but it's good to get all of this together now in a story format to assist the lawyer in drafting!