Adjusted Alert Level 1 – the state of play regarding evictions

What is permitted under the new, “adjusted” Alert Level 1

It’s hard to keep up. The regulations for each Alert Level seem to vary each time a level is announced. Adjusted Level 3 was not the same as Level 3 first time round, and the same appears to hold true for Adjusted Level 1. So what exactly is permitted, especially with regard to rental housing and evictions?

Evictions under Alert Level 1

The situation regarding evictions and demolitions has not changed very much throughout the national state of disaster. The priority has always been to protect vulnerable tenants, particularly those whose economic circumstances have caused them to fall behind in rental payments as a direct consequence of the lockdown. The rules have eased from the outright ban of Level 5 and, since Level 4, landlords have been permitted to apply for an eviction order, but it would be suspended or “stayed” until the termination of the national state of disaster. 

In the last period of Alert Level 1, some evictions did take place, and they may still go ahead this time round, as per adjusted Alert Level 3. In the words of the government gazette, the eviction can go ahead if a competent court is of the opinion that… “it is not just or equitable to suspend or stay the order having regard, in addition to any other relevant consideration, to-”. There follows a list of considerations, including, among others: 

• The need for everyone to have a place of residence and services to protect their health and access to an alternative place of residence
• The occupier’s behaviour, e.g. if they are causing harm to others
• The steps the landlord has taken to make alternative arrangements of payment of rent to preclude the need for relocation
• Other considerations as described in the gazette

Rental housing 

The national state of disaster supports and strengthens the provisions of the Rental Housing Act 1999. The state of disaster acknowledges that the interests of both the landlord and tenant must be considered on a just and equitable basis. The following conduct is deemed unfair practice:

• The termination of services in circumstances where:

• the landlord has failed to provide reasonable notice and an opportunity to make representations
• the landlord has failed, reasonably and in good faith, to make the necessary arrangements including to reach an agreement regarding alternative payment arrangements, where applicable
• no provision has been made for the ongoing provision of basic services during the national state of disaster

• Imposition of a penalty for the late payment of rental where the default is caused by the disaster 
• Failure of either party (landlord or tenant) to engage reasonably with the other to “cater for the exigencies of the disaster”
• Any other conduct that prejudices the ongoing occupancy or the health of any person or the ability to comply with the applicable restrictions on movement 

Other rule changes

Under adjusted Alert Level 1, the hours of the curfew have been reduced to four hours per day: midnight till 4.00 am. To allow staff and patrons to return to their homes in time for the curfew, bars and restaurants and all non-essential establishments must close by 11.00 pm. Furthermore, alcohol sales for off-site consumption have returned to normal licensing hours, i.e. bottle stores may open at weekends. We anticipate a potential increase in alcohol-related incidents as a result of the relaxation. We hope we will not see an escalation in cases of driving under the influence (DUI), but it is a possibility. 

Gatherings may take place and are limited to 100 people indoors and 250 people outdoors. Masks must be worn and all COVID-19 protocols followed. Hotels and guest houses, etc. are allowed to operate at full capacity, provided guests maintain adequate distance from each other in the public areas.

For a full list of regulations, see sacoronavirus.co.za

For further information

SD Law is a law firm in Cape Town and Johannesburg with specialist eviction lawyers. If you are seeking an eviction, we can advise you on how to construct your case to meet the court’s requirements. Contact Cape Town attorney Simon Dippenaar on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Simon Dippenaar

https://www.sdlaw.co.za

Cape Town attorney Simon Dippenaar has a BBusSc LLB degree and Professional Diploma in Legal Practice from the University of Cape Town, and is an admitted attorney of the High Court of South Africa. He is the founder and director of private legal practice, Simon Dippenaar & Associates, with offices in Cape Town and Gauteng representing South African and international clients.

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