Real Estate Investor Magazine South Africa September 2015 | Page 28

LEGAL

Can a Body Corporate Authorise

Tenant Evictions

The Legal process of tenant evictions
BY MARLON SHEVELEW

C

an a Body Corporate evict a tenant or force
an owner to evict his tenant? The answer
to this question is that the Body Corporate
cannot order an owner to give a tenant notice to leave
the premises. In fact, the Body Corporate can take
absolutely no action against the owner, unless the
tenant has breached a rule of the Body Corporate.
To determine whether a breach has occurred one
would need to take a look at the Management and
Conduct rules. The trustees simply being unhappy
with the tenant is insufficient to amount to a breach
of the rules. If a breach has occurred then the landlord
is responsible for any consequences, including paying
any associated penalties, but is not given the right to
evict the tenant, as evident from the judgment of the
High Court in Body Corporate, Shaftesbury Sectional
Title Scheme v Rippert’s Estate and Others 2003 5
SA 1 (C).
In this case the court was called upon to decide
whether it was entitled to issue an ejectment order
against persons who continually contravened the
conduct rules of the scheme, in this case, drug-dealing
and prostitution. The Body Corporate sought a final
interdict against the respondents and, in the event of
non-compliance, an order for temporary ejectment
until compliance with the interdict.
Having found that the security register at the
entrance of the building confirmed a constant flow
of visitors who corroborated the admission of one of
the respondents that they were “escorts”, the court
pointed to the pressing social need in South Africa for

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SEPTEMBER 2015 SA Real Estate Investor

sectional title owners and bodies corporate to enforce
compliance with the conduct rules.
If necessary, owners and/or occupiers should be
deprived of their right to reside in circumstances where
there was a constant and deliberate contravention of
conduct rules including the non-payment of levies.
The court concluded that there was no South African
authority to authorise the granting of ejectment orders
in the present circumstances. The judge stated further
that the Body Corporate had in any event not provided
a legal basis in the conduct rules for an order of eviction.
Although the ap