Hi. I sent a Letter of demand to my tena...

Asked by Nikki G on 03-04-2023 17:14:45
Question posted in the Landlord Tenant Law category relating to Gauteng

Hi. I sent a Letter of demand to my tenant for defaulting on a signed acknowledgement of debt which was signed for the arrear rentals that she owes me. The tenant has responded within the 5 day time  period giving an excuse of being unable to pay for various reasons. The amount owing is R26 000. I require the assistance of an attorney to approach the magistrates court to issue a summons. Are you able to assist? Also confirm that this is the correct process to follow and costs involved. Thank you.

Message from the Lawyer

Posted by Att. Patrick on 03-04-2023 20:50:12

Hi there and thank you very much for the follow-up question.

There are in fact three processes that you can follow which will result in your dispute being dealt with.

The first is to issue a summons at the small claims court. The only issue is that the monetary jurisdiction for the small claims court is limited to R20k, so the biggest judgment that you can get there is R20k. However, it is a very simple process that you run yourself (lawyers are not allowed there!) and the commissioner who hears your case is very clever and deals with the dispute quickly. 

The second is to issue a summons at the magistrates court where the jurisdiction is much, much higher. This is probably where you should be issuing your summons, however the process is slightly more complicated and I always advise people to hire a private lawyer to represent them. You could (after issuing the summons) apply for summary judgment, which is a much quicker process than running a whole trial. 

In am unfortunately not based in Joburg, so I can't represent you directly. There are loads of websites such as www.southafricanlawyer.co.za where you can find a private lawyer to represent you.

The third is to declare a dispute at the Housing Rental Tribunal in Joburg and have a commissioner there listen to your dispute and make a judgment. If you don't want to go the court route, I would definitely recommend the Housing Rental Tribunal. 

The tribunal recommends that parties (either the tenant or the landlord) should first try and resolve such matters directly with their landlords, failing this they can approach the tribunal. Each province has its own tribunal and offers services to both tenants and landlords free of charge.

Step 1 is that the complaining party must complete the complaint form (available on their website) and submit it to the tribunal. The completed forms together with the documents in support of the complaint may be lodged with the Tribunal in person, by post, by fax or by e-mail. A copy will also be sent to the other party. 

The tribunal resolves matters informally between the landlord and the tenant. If that doesn’t work, then the matter is referred to mediation. In most cases no further action is required. Parties sign a resolution agreement and the case is closed. When deadlocks occur tribunals have the power to issue binding rulings.

If the parties fail to resolve their issue, then the matter is referred to a full sitting of the tribunal. The tribunal consists of five members. They hear the matter and hand down a ruling, which is considered equal to a ruling of the magistrate’s court. Failure to comply with a tribunal ruling can result in criminal prosecution.

The contact details are as follows: Gauteng – 011 630 5035 or https://www.gauteng.gov.za/Services/GetServices?serviceId=CPM-001403&taxonomyItemId=CPM-001007&isFromDepartment=true 

The only reason that I'm a little bit weary about the Tribunal route, is that your dispute pertains to a signed acknowledgement of debt, even though the underlying dispute pertains to rental.

The Tribunal might then say that you're in the wrong place because your "non-payment of rental" dispute has been resolved in the acknowledgement of debt, and now your dispute pertains to enforcement of the terms of the AOD, which should be resolved in court. 

This is unfortunately something that I can't answer ... but I would take my chances with the Tribunal before issuing a summons at the court.

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