Can 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 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 application for a final interdict followed by an ejectment order in the case of non-compliance failed, the court granted a prohibitory interdict compelling the respondents to abide by the conduct rules. In the event of non-compliance the applicant was granted leave to apply for an order holding the respondents in contempt of court and authorising warrants of arrest.
In short, before a Body Corporate has the power to evict an unruly occupant, the Act or the Annexure 8 or 9 rules of the scheme must grant it such power. Until such time the only options open to the Body Corporate are to apply for an interdict or to recover fines from the offender if a suitable management or conduct rule is in place.