Litigation in South African Property Law: Navigating Commercial and Residential Disputes

by Sisanda Linda

 

In South Africa, legal disputes fall under two broad categories: criminal law and civil law.

This article explores civil litigation within the context of property law, which primarily deals with legal matters arising from contractual relationships as outlined in statutes like the Companies Act and the Consumer Protection Act, among others.

Civil litigation can be initiated in two ways: action proceedings or application proceedings.

  • Action Proceedings: This involves issuing a summons and is typically used when there are factual disputes requiring evidence to be presented and examined before a judge.
  • Application Proceedings: This method uses a notice of motion supported by affidavits. The judge considers only the affidavits and supporting documents, making it an efficient process when facts aren’t disputed or when parties have agreed on the facts, such as confirming a debt through a certificate of balance.

 

Here’s where things get spicy: commercial and residential property disputes are worlds apart.

Commercial Property Disputes often involve disputes centered around contractual obligations defined in terms agreed upon by the landlord and tenant. Resolution usually relies on the dispute resolution clauses within the contract.

However, various statutes and standard contracts, like, Joint Building Contracts Committee (JBCC), New Engineering Contract (NEC3), General Conditions of Contract for Construction (GCC), and Housing Consumer Protection Act amongst others will need to be also considered in consideration of the dispute resolution.

  1. Provide a structured framework for addressing conflicts.
  2. Residential Property Disputes Residential property disputes require a more nuanced approach. Beyond contractual terms, the South African Constitution, particularly Section 26 (the right to adequate housing), plays a significant role. This provision has stirred controversy, particularly from the landlord’s perspective, as it can override commercial terms and obligations. Thus, human rights considerations must be examined alongside traditional contractual analysis.

 

It’s easy to think of property disputes as a game of chess, but strategic delays can backfire. Tenants and bondholders should tread carefully, as delaying payments may only lead to bigger debts and possibly covering the other party’s legal costs too. The best advice? Settle those debts quickly or vacate the property before things get ugly.

Whether you’re dealing with commercial or residential property disputes, understanding both contractual and constitutional provisions is essential. By choosing the right litigation process and following the legal frameworks, you’ll be better equipped to manage and resolve property disputes without getting lost in the legal maze.

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