By Liad Hadar – Director
This article first appeared in Asset Magazine’s March 2026 edition

For many landlords involved in commercial property disputes, obtaining a court order for eviction feels like the final chapter of a difficult legal journey. In reality, however, the process does not always end when judgment is granted.

As attorneys acting predominantly for commercial landlords and property owners, we regularly obtain eviction orders after tenants have materially breached their leases and those leases have been lawfully cancelled. At that stage, the legal position is usually clear, the former tenant is no longer a lawful occupier of the premises.

Yet despite the clarity of the legal position, litigation can enter another phase – the appeal process.

As infuriating as they are for landlords, appeals are a legitimate and important feature of our legal system. They provide bona fide parties with an opportunity to challenge decisions where they believe a court has erred in law or fact. However, in commercial eviction matters, appeals are often used less as genuine legal remedies and more as strategic delay mechanisms.

Understanding this reality, and managing it effectively, is an essential part of modern property litigation.

The Commercial Reality – Lawful Cancellation and Unlawful Occupation

In the majority of commercial eviction matters we handle, the facts follow a familiar pattern.

A tenant breaches the lease agreement, often through persistent non-payment of rental or other material obligations. The landlord issues the required notices and ultimately cancels the lease in accordance with the agreement. Once cancellation occurs, the tenant’s right of occupation falls away.

At that point, the former tenant is simply an unlawful occupier of commercial premises.

The landlord then approaches the court for an eviction order,and where the facts and law support the cancellation (which they usually do), the court grants the order.

However, it is not uncommon for the respondent to then seek leave to appeal against the order.

Understanding the Appeal Process

When a court grants an eviction order, the unsuccessful party has the right to apply for leave to appeal. This is a request for permission to take the matter to a higher court or court of appeal.

The court that granted the order must first consider whether there are reasonable prospects that another court would come to a different conclusion.

If leave is granted, the appeal proceeds to the higher court. If leave is refused, the respondent may petition the appellate court directly for permission to appeal.

During this process, the execution of the eviction order is generally suspended, meaning the tenant remains in occupation pending the outcome of the appeal. This is where the problem starts and the most important part, for our clients’ purposes, is where it ends.

It is also when the frustrations are ramped up, particularly where the legal basis for eviction is strong and the tenant is clearly in unlawful occupation. In other words, the tenant is now simply abusing the court process.

When Appeals Become Delay Tactics

While appeals serve an important constitutional function, they can be used tactically and in bad faith.

In commercial eviction matters, respondents sometimes pursue appeals with little realistic prospect of success simply to extend their occupation of the premises. Every procedural step – filing the application for leave, waiting for a hearing, petitioning higher courts, can add months to the timeline.

For landlords, time is not a neutral factor.

Every month of delayed enforcement can mean:

• Lost rental income
• Operational disruption
• Difficulty re-letting the premises
• Ongoing legal costs

In commercial property disputes, timing is often as important as the strength of the legal case itself.

Why Timing Matters

Experienced litigation attorneys understand that commercial eviction litigation is not simply about winning the legal argument. It is also about managing the pace of the process.

At Hadar Incorporated, we approach litigation with the understanding that momentum matters.

This means ensuring that applications are thoroughly prepared from the outset so that courts can confidently grant eviction orders and refuse leave to appeal. A well-structured case significantly reduces the likelihood of a successful appeal.

But even where leave to appeal is granted, the litigation strategy does not stop there.

Circumventing Delay Through Section 18(3)

One of the most powerful tools available in South African litigation is Section 18(3) of the Superior Courts Act.

This provision allows a successful litigant to apply for execution of a court order pending the outcome of an appeal, in exceptional circumstances.

In practical terms, this means that even though an appeal has been noted and the execution (eviction) suspended, the landlord may still proceed with enforcement of the eviction order if the court grants a Section 18(3) order.

To succeed in such an application, the applicant must primarily demonstrate:

• Exceptional circumstances; and
• That they will suffer irreparable harm if execution is suspended, while the respondent will not suffer irreparable harm if execution proceeds.

In commercial eviction matters, these requirements are often met where a tenant continues to occupy premises unlawfully while delaying the inevitable through procedural manoeuvres.

When granted, a Section 18(3) order effectively neutralises the delay advantage that an appeal might otherwise create. In other words, the successful landlord can have the tenant evicted even though the appeal will still be heard in due course and pending the outcome of that appeal.

Staying Ahead of the Process

Strategic litigation is about anticipating the next move before it happens.

At Hadar Incorporated, we focus on preparing cases thoroughly from the outset and drafting eviction applications that withstand appellate scrutiny.

To ensure that we remain ahead of the curve, we double down on our response rate, advancing appeal proceedings without unnecessary and avoidable delays.

Where appropriate, pursuing Section 18(3) relief to enforce orders immediately

This proactive approach allows landlords to remain in control of the litigation process rather than reacting to delay tactics.

The Bigger Picture

Commercial property disputes often involve significant financial interests and landlords are entitled to enforce their contractual rights when tenants breach their obligations.

Legitimate appeals remain an important safeguard within our legal system, but they should not become tools for indefinite delay where the legal position is clear.

Courts increasingly recognise this balance and are prepared to ensure that litigation does not become a mechanism for prolonging unlawful occupation of commercial premises.

Conclusion

In commercial eviction litigation, obtaining an order from the court is an important victory – but it is not always the final step.

The appeal process can introduce new challenges, particularly where respondents attempt to use procedural mechanisms to delay enforcement.

For landlords, success in these matters depends not only on the strength of the legal case but also on strategy, preparation, timing and perhaps most importantly, the hustle culture.

By moving matters forward decisively and using tools such as Section 18(3) where appropriate, landlords can ensure that court orders translate into real-world outcomes without months of infuriating delays.

In property litigation, the objective is not simply to win the judgment. It is to secure the result.