Evictions in Alert Level 2

What is the state of play regarding evictions?

Hurrah! We made it to Alert Level 2! The drinkers and smokers will be particularly happy, but so will the gym-goers, those with family in another province, everyone who wants to see their friends, and…landlords. Landlords? Not so fast. There is some relaxation of the rules governing the stay of evictions, but humanity and decency are still called for. We look at the Alert Level 2 regulations as they apply to rental housing and eviction.

Can you evict a tenant?

Under Alert Level 3, eviction orders could be applied for and processed but not executed. Whether or not they can be executed now depends on the wording of the order. Some eviction orders were granted in Alert Level 3 with a stay of execution “until the end of Alert Level 3”. These may be executed. But if the wording was such that the order was “stayed until the regulations permit”, it may be necessary to appear in court to enforce the order.

Any eviction granted now, under Alert Level 2, may not be executed until after the national state of disaster has lapsed or has been terminated. The only exception to this is where the court decides it is not just and equitable to suspend the order. This rule extends to the eviction of occupants from and demolition of shacks, following a spate of land invasions and shack demolitions by the City of Cape Town.

Cooperative Governance Minister Nkosazana Dlamini Zuma said, “A person may not be evicted from his or her land or home or have his or her place of residence demolished for the duration of the national state of disaster unless a competent court has granted an order authorising the eviction or demolition.”

Rental arrears

South Africans have suffered considerable economic hardship as a result of the national state of disaster and lockdown, which started in March. Many people have been without income, or on a reduced income, for four months, through no fault of their own. The relief offered by the government assistance scheme, TERS, was subsistence at best. It may have enabled families to put food on the table, but not to pay their rent. Therefore many tenants are now owe rent arrears. Hopefully they are getting back to work under Level 2, but it may take some time to accrue enough income to clear their debts.

Provided the tenant has engaged the landlord in good faith to make arrangements to “cater for the exigences of the disaster”, the courts are very unlikely to grant an eviction order purely on the basis of non-payment of rent.

Furthermore, the regulations have declared unfair the imposition of penalties for late payment where the default had been caused by the lockdown or the state of disaster. At most, landlords may charge interest on late payments.

Ubuntu

The regulations also forbid “any other conduct prejudicing the ongoing occupancy of a place of residence, prejudicing the health of any person or prejudicing the ability of any person to comply with the applicable restrictions on movement that is unreasonable or oppressive having regard to the prevailing circumstances.”

We previously recommended that landlords and tenants alike exercise “commercial ubuntu”, that is, compassion and empathy in the current difficult and unprecedented circumstances. We have urged all parties to keep the lines of communication open and make use of alternative dispute resolution methods, before resorting to the courts. The government’s advice also encourages fairness and equity in dealing with the humanitarian challenges caused the national state of disaster.

Seek advice from a rental housing expert

If, despite the stipulations of the regulations, you have queries or issues regarding tenants or any aspect of rental housing law, or are worried about your current situation, contact Simon on 086 099 5146 or email simon@sdlaw.co.za. We can provide a consultation over the phone or online if preferred. These are stressful times. Don’t let worries about tenant issues add to your anxiety. We can help.

Further reading:

• Life: Working, pivoting and surviving under lockdown in SA

• Rental tenants believe they can only pay rent after a 10% reduction

• 260 lockdown ‘land invasions’ and counting for City of Cape Town

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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