What to Do When a Commercial Tenant Is Not Paying Rent in South Africa

A landlord whose commercial tenant is not paying rent in South Africa cannot remove the tenant by changing the locks, cutting services, or any other form of self-help — a court order is required under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the “PIE Act”) before a Sheriff may carry out eviction, regardless of what the lease itself says. The usual route runs: written demand for unpaid rent, cancellation of the lease in writing once a contractual breach clause is triggered, institution of a combined summons or application in the Magistrate’s Court (for claims within its jurisdictional ceiling) or the High Court (for higher-value claims), a PIE-compliant application for the eviction order, and a damages claim for arrears, interest and costs once possession is restored. Most uncontested commercial evictions reach order and execution within two to four months from demand; contested matters routinely run six months to a year, and the leading reason applications fall away is defective notice or missing PIE-required annexures.

Step 1 — Confirm What the Lease Actually Says Before You Do Anything

Before any demand is drafted, pull the signed lease and read it as a contract. The lease controls the breach list, the cure period, the cancellation mechanic, and the attorney’s-and-collection-charges clause — every later step depends on getting this right.

• Breach clauses. Identify which events of default are listed. Non-payment is usually first, but check whether the trigger is “non-payment of any instalment,” “non-payment of three consecutive months,” or another threshold.
• Cure period. Most SA commercial leases give the tenant 5 to 7 business days from written notice to pay before the landlord may cancel; some give 30 days for material breach. The relevant period is the one stated in your lease, not a default.
• Cancellation clause. It should require cancellation to be in writing and signed by the landlord (or its attorney). Verbal cancellation is unenforceable.
• Escalation clauses. Note interest on arrears (typically 2% per month or prime plus a margin), collection charges, attorney-and-client costs, and any escalation to a stated dispute resolution forum. Arbitration clauses occasionally appear and must be navigated or struck out.
• Venue clause. Some leases nominate a specific court. This is usually enforceable but not always — and a PIE eviction still has to be heard in the Magistrate’s Court for the district where the property is located.

Burger Huyser Attorneys’ commercial-law practice routinely reviews leases at the start of a non-payment file, because the breach list and cure period in a typical SA commercial lease are not always obvious to a self-represented landlord.

Step 2 — Send a Written Demand and Keep the Proof

The demand letter is the foundation of the whole file. Most defended evictions succeed or fail on whether the original demand was correctly drafted and properly served.

The letter must:

• Identify the property and the lease (with the signed lease attached);
• Itemise the arrears month by month with contractual interest running;
• State the contractual cure period (5 / 7 / 30 business days, as the lease provides);
• Require payment into a nominated account;
• Reserve the landlord’s right to cancel;
• Warn that on expiry of the cure period the landlord will cancel and claim damages.

Service must be capable of proof — registered post, recorded delivery, or hand delivery with a witness is the minimum. Email alone is risky unless the lease expressly permits electronic service. Send one copy to the tenant’s chosen domicilium address as recorded in the lease, and a duplicate to the physical premises if occupied by a manager; record the date, time and method of service. Do not skip the demand even where the lease appears to allow “instant cancellation” — courts still look for a fair opportunity to be heard under PIE, and a documented demand is the cleanest evidence.

Step 3 — Cancel the Lease in Writing Once the Cure Period Lapses

If payment has not been received by the close of the cure period, cancel the lease in writing — using the form required by the lease, typically a signed letter from the landlord or its attorney.

Tip on language: Cancellation must be unequivocal. Courts read cancellation letters strictly, so the wording should state that the lease is cancelled with effect from a specific date and that the tenant is now an unlawful occupier in terms of the PIE Act. Hedge words (“we may cancel,” “we reserve the right”) do not count as cancellation.

Serve the cancellation on the tenant at the same domicilium address and at the premises; record proof of service in the same way as the demand. After cancellation, the landlord’s claim crystallises into (a) arrears up to the cancellation date, (b) contractual damages for the unexpired term, subject to a duty to mitigate by re-letting, (c) interest and costs, and (d) possession.

Step 4 — Choose the Right Court (Magistrate’s Court vs High Court)

The choice is driven by value and by where the property sits — not by preference.

Factor	Magistrate’s Court	High Court
Claim value (money)	Up to the Magistrate’s Court jurisdictional ceiling (currently R200 000 for actions sounding in money). Above that, the action must run in the High Court.	Above the Magistrate’s ceiling, or for specialised relief (interdicts, declaratory orders, winding-up allegations against a corporate tenant).
PIE eviction application	Default PIE forum — the Magistrate’s Court for the district where the property is located.	Not the default; the PIE eviction still runs in the Magistrate’s Court even where the damages claim runs in the High Court.
Gauteng venue	Regional Magistrate’s Court for the district where the property is located (for example, the Magistrate’s Court for Roodepoort or Randburg).	South Gauteng High Court (Johannesburg) for the Johannesburg / Soweto / Roodepoort / Randburg / Sandton / Bedfordview / Alberton / Midrand magisterial districts; Gauteng Division (Pretoria seat) for Centurion, Pretoria and the northern corridor.

The PIE Act itself is jurisdiction-agnostic — the application for the eviction order is usually brought as part of the same action — but the forum for the eviction part of the relief is the Magistrate’s Court for the district where the property is located, even where the damages claim proceeds in the High Court. This is a common mistake in self-filed matters. For Gauteng commercial properties, Alberton and the southern Gauteng area fall within the South Gauteng High Court’s catchment for High Court work, while Centurion, Pretoria and the northern corridor fall within the Pretoria seat; Burger Huyser Attorneys files commercial-eviction work across both High Court seats and the regional Magistrate’s Courts from its Linden head office and Gauteng branches.

Step 5 — Issue Summons and the PIE Application Together

The combined summons (Magistrate’s Court) or simple summons (High Court) is issued once the cancellation has been served and the cure period has expired without payment. The particulars of claim should plead the lease, the breach, the demand, the cure period, the cancellation, the arrears, the damages for the unexpired term, contractual interest, and attorney-and-client costs.

The PIE Act requires more than a normal summons for the eviction side. The application for eviction must be supported by an affidavit that addresses the section 4 considerations (the “just and equitable” enquiry), including:

• The availability of alternative accommodation;
• The history of the tenancy;
• The reason for the cancellation;
• Any undue hardship to the occupier.

The PIE affidavit must annex the lease, the demand, the cancellation, and proof of service. Missing annexures are the single most common reason eviction applications are postponed or dismissed. Most SA commercial evictions run as a combined action in the Magistrate’s Court where the claim value allows, with a parallel or included PIE application.

Step 6 — Litigate the Eviction to Order

Expect the tenant to file a notice of intention to defend or a notice to oppose. Once filed, the matter is contested and the eviction cannot proceed by default.

The defended matter will be set down for hearing. The court will hear evidence on the PIE section 4 factors, including any defence the tenant raises (rent paid in cash without proof, business closure, force majeure, partial payment under a side-letter, breach by the landlord). Courts retain a discretion to refuse eviction even where contractual breach is proved; PIE section 4(7) sets out the considerations, and the leading commercial factor is whether the eviction would be “just and equitable” in all the circumstances. Be prepared to lead evidence on the landlord’s mitigation efforts (was the property marketed for re-letting?), the seriousness of the breach, the tenant’s payment history, and any conduct by the tenant that aggravates the breach.

Step 7 — Obtain the Warrant and Have the Sheriff Evict

Once order is granted, extract the court order and apply for a warrant of execution. The warrant is issued to the Sheriff of the court for the district where the property is located — not to the landlord, and not to a private eviction company.

Item	Detail
Lead time from warrant to eviction	Typically 7 to 14 days from warrant to execution, longer if the matter is opposed at the warrant stage.
Sheriff’s deposit	The Sheriff’s fee plus the cost of the removal team; recoverable as costs from the tenant on taxation.
Who must attend	The landlord’s attorney should be present or on call; the tenant’s goods are inventoried and stored by the Sheriff for the statutory period, and the landlord recovers possession.

Step 8 — Recover the Money Side: Damages, Interest, and Costs

Eviction restores possession; the damages claim for arrears, accelerated damages for the unexpired term (subject to mitigation), contractual interest, and attorney-and-client costs runs separately and is usually pursued in the same action. The duty to mitigate is real — the landlord must show that it took reasonable steps to re-let, including listing the property, advertising, and screening new tenants. Failure to mitigate reduces the damages recoverable for the unexpired term to the difference between the old rent and the new rent actually received, plus a vacancy allowance. Settlements are common at this stage; a properly drafted settlement agreement, made an order of court, is the cleanest way to close out arrears, interest, and costs without further litigation. Burger Huyser Attorneys’ general-litigation practice runs these files to settlement or to taxed costs order across the same Gauteng footprint.

What Commonly Goes Wrong (and How to Avoid It)

Recent commercial-eviction case law keeps flagging the same failure modes. Treat the list below as a pre-issue checklist:

Failure mode	What it looks like	How to avoid / cure it
Defective demand	Letter does not specify the cure period, does not itemise arrears, or is sent to the wrong address.	Re-issue the demand with proper particulars; costs two to four weeks of lost time.
Wrong forum	Eviction application filed in the High Court when the Magistrate’s Court has jurisdiction (or vice versa).	Cured by transfer, but adds delay and costs; thread the rule on PIE forum from Step 4.
Missing PIE annexures	The lease, the demand, the cancellation, or proof of service not annexed to the founding affidavit.	Always annex every founding document to the PIE affidavit; postpone or dismissal is the typical cost.
No mitigation evidence	Landlord cannot prove it tried to re-let.	Keep a contemporaneous record of listings, viewings, and tenant screening; damages for the unexpired term are reduced on taxation without it.
Verbal cancellation	Cancellation letter unsigned, or cancellation by oral communication only.	Issue a signed written cancellation in the form required by the lease; verbal cancellation is treated as no cancellation.
Self-help eviction	Changing the locks, cutting electricity, removing doors, threatening the tenant.	Do not do it. Section 3 of the PIE Act exposes the landlord to criminal liability and a tenant damages claim; wait for the warrant and the Sheriff.

Burger Huyser Attorneys’ litigation team has run defended commercial evictions across the South Gauteng High Court and the Gauteng Division (Pretoria seat) for years, and these six failure modes are the ones most often cited in postponement orders and leave-to-appeal judgments in our own case files.

Comparison Table: Routes to Recovery

Route	When it fits	Speed	Cost relative to claim	Recoverable
Letter of demand + payment	First missed month, recoverable tenant	Days	Low	Arrears only
Demand + cancellation + re-let (without eviction)	Tenant voluntarily vacates after cancellation	1–2 months	Low	Arrears + costs; accelerated damages only if pursued
Cancellation + Magistrate’s Court combined action	Claims within Magistrate’s ceiling, PIE-compliant	2–4 months uncontested; 6–12 months defended	Moderate	Possession + arrears + damages + costs
Cancellation + High Court action	Claims above ceiling, complex relief	4–8 months uncontested; 9–18 months defended	Higher	Possession + arrears + damages + costs
Settlement agreement made court order	Any stage, any forum	Days to weeks	Variable	Negotiable; usually full arrears + costs, reduced damages

Frequently Asked Questions

Can a landlord change the locks or cut electricity to force a commercial tenant out in South Africa?

No. Section 3 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 makes any self-help eviction a criminal offence and exposes the landlord to a damages claim by the tenant. A court order is required before any eviction is carried out, regardless of what the lease says.

How long does a commercial eviction take from first missed rent to the Sheriff’s eviction?

Uncontested commercial evictions typically take two to four months from written demand to execution; defended matters usually run six months to a year, depending on court rolls and the tenant’s conduct of the defence. Postponements, supplementary affidavits, and section 4 PIE disputes are the main drivers of delay.

Do I have to give the tenant a chance to pay before cancelling the lease?

Yes, unless the lease expressly allows cancellation without notice for non-payment. Most SA commercial leases give the tenant a 5 to 7 business-day cure period (sometimes 30 days); the demand letter must specify the period and the consequences of non-payment, and the cure period must expire before cancellation is issued.

Can I claim for the full remaining lease term if the tenant stops paying?

Not automatically. The landlord has a duty to mitigate by re-letting the property; the recoverable damages for the unexpired term are reduced by any rent actually received from a replacement tenant, and the landlord must show it took reasonable steps to re-let (advertising, viewings, screening). Vacancy periods and rental differences are taken into account.

Which court hears the eviction — the Magistrate’s Court or the High Court?

The Magistrate’s Court for the district where the property is located is the default PIE forum for eviction, regardless of the value of the damages claim. If the damages claim exceeds the Magistrate’s jurisdictional ceiling (currently R200 000), the damages claim may be pursued in the High Court while the eviction application runs in the Magistrate’s Court — they are usually heard together or in sequence.

Can the tenant stop the eviction by paying the arrears part-way through?

Once the lease has been cancelled in writing, payment of arrears does not automatically revive the lease — revival requires a fresh agreement signed by both parties. However, the court will consider any subsequent payment as part of the section 4 PIE enquiry on whether eviction is “just and equitable,” and a tenant who cures promptly is in a stronger position than one who does not.

What does it cost to evict a commercial tenant in South Africa?

Attorney-and-client costs scale with complexity: an uncontested combined summons in the Magistrate’s Court typically runs from the low five figures upward; a defended High Court matter runs materially higher and is harder to estimate without a file review. The Sheriff’s deposit on execution is set by the Sheriff’s tariff and is recoverable as costs. Burger Huyser Attorneys quotes per-file after the initial lease and demand review at the Linden head office.

If you are a Gauteng landlord dealing with a commercial tenant who has stopped paying rent, Burger Huyser Attorneys’ litigation team can review the lease, draft the demand and cancellation, and run the combined Magistrate’s Court action and PIE application to order and execution. Initial consultations are booked at the branch nearest the property — Linden head office (011 888 0246), Centurion (012 644 4990), Sandton (011 253 3080), Bedfordview (011 201 7190), Alberton (011 439 3990), or Roodepoort (011 668 0030). The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”) and fields commercial-eviction work across its Gauteng footprint.