Served with a protection order
Unpacking the process
BY SIMON DIPPENAAR
M ost landlords and tenants enjoy harmonious relationships and hopefully yours is no different . However , occasionally , relations break down and one or other party invokes the law . Sometimes legal action is legitimate ; sometimes it is malicious , and sometimes it is just a desperate measure . If you are a landlord and have been served with a protection order by your tenant , what does this mean and what should you do about it ?
Why a tenant might take action against a landlord
It ’ s important to understand how two parties might arrive at a legal impasse , such as the serving of a protection order , and thus how to avoid it in future .
The Protection from Harassment Act 2010 affords victims of harassment the right to seek remedy for such behaviour , and this includes enacting a protection order against the perceived harasser .
While some of these instances might be unintentional on the landlord ’ s part , it is important to uphold the conditions of the lease . In this way , it is possible to avoid the accidental appearance of harassment .
On the other hand , the landlord may have a legitimate reason for evicting the tenant or not renewing the lease . The tenant may have no alternative accommodation available and may instead claim harassment , take out a protection order against the landlord , and attempt to secure occupancy in this manner . It is important to consider that the tenant may be acting out of desperation and try to resolve the matter without proceeding to trial . Let ’ s look at the process .
Interim protection order
Where a complaint of harassment is laid , the complainant is entitled to immediate protection , but this does not mean it is final and permanent . The provisions of the Protection from Harassment Act closely mirror those of the Domestic Violence Act 116 of 1998 , which were structured to ensure a victim of domestic violence could seek urgent shelter from the threat of an abuser .
Seek legal advice
At this stage the landlord should read the document very carefully . Is it an interim protection order or just an enquiry by the magistrate ? In either case , and definitely in the case of a temporary order , the best course of action is to seek legal advice . It may be tempting to phone the tenant directly , especially if there is a history of an amicable relationship , but this is an unwise move .
Only a lawyer is in a position to ascertain whether the grievance is legitimate or not . The attorney may contact the complainant or their representative to attempt to reach a peaceful resolution out of court , but this is not a step that should be taken by the respondent directly .
If an amicable settlement cannot be reached between the two parties ‘ offline ’, the attorney will prepare a notice of intention to oppose the order and draft the corresponding affidavit . Landlord and tenant will go to court on the return date and hopefully settle the matter there and then . In the majority of cases this is the end of the process . Occasionally , where relations between the two are particularly acrimonious , the magistrate will set a trial date .
Costs
While most accusations of harassment involve misunderstanding or desperation , in rare instances there is an element of malicious intent . In such cases it may be possible for the respondent to recover costs on the basis of an illegitimate action . However , where the case is unfounded it is usually resolved without going to trial and incurring court costs .
Prevention is better than cure
Resorting to legal measures is unpleasant for all involved . The Rental Housing Tribunal in your area can provide advice and support to tenants and landlords alike .
Rental Housing Tribunals were established to resolve disputes and the services , which are free of charge , are available to all parties in the rental housing sector , including property agents .
The tribunals deal with issues such as non-payment of rent , unacceptable living conditions , intimidation , lack of maintenance , illegal lock-out and many other complaints that might lead to a charge of harassment .
Simon Dippenaar is an attorney at Simon Dippenaar & Associates , Cape Town
SOURCES evictionlawyerssouthafrica . co . za , sdlaw . co . za
26 OCTOBER 2017 SA Real Estate Investor Magazine