Three appeal judges in the Western Cape provincial division have laid down guidelines on how eviction orders, in domestic violence matters, should be dealt with. Photo: Brian Turner via Flickr (CC BY 2.0)
A magistrate ruled that a husband accused of abuse by his wife must leave the family home.
The Western Cape High Court overturned the magistrate’s ruling.
When evicting an alleged abuser in a case of domestic violence an informed assessment must be made and basic fairness applied, the judges ruled in the appeal.
The judges laid down guidelines that magistrates need to consider.
Three appeal judges in the Western Cape High Court have laid down guidelines on how eviction orders, in domestic violence matters, should be dealt with.
An online petition, created after the ruling by Judges Owen Rogers, Robert Henney and Acting Judge Bernard Martin, assumed that they laid down in law that domestic violence abusers cannot be evicted from their homes if they cannot afford to live elsewhere.
But the judges did not take it that far. What they said was that a magistrate’s court dealing with eviction orders in terms of the Domestic Violence Act, must first make an “informed assessment”. And in the appeal matter before them, this had not happened.
“The court should elicit information about the potential prejudice, the person’s ability, including financial resources, to obtain alternative accommodation and access to children.
“An eviction impacts on a person’s right to adequate housing and right to property in terms of the Constitution.
“The procedure in this case fell short of the requirements of basic fairness. Such an (eviction) order may be justified, but the magistrate did not make an informed assessment.
“There was also no inquiry into the effect, if any, the interim interdict had had on the husband’s behaviour up to that point,” Judge Rogers said, writing for the court.
The appeal has had a rocky path. It was first set down in December last year before Judge Rogers and another acting judge who disagreed on the outcome. It was postponed several times for different reasons and the court then asked the Cape Bar Council to appoint an advocate to represent the wife.
Judges Henney and Acting Judge Martin were then added to the panel to ensure that there would be a majority judgment in the event of judicial disagreement.
The wife, in her application for a protection order last year, said the family home was hers and had been bought by her father. However, because they were married in community of property, they both owned it in equal shares.
She alleged her husband was emotionally and verbally abusing her. She obtained an interim interdict ex parte (without notice to the other side) with a return date. While at that time, she also asked for an eviction order, this was not granted.
The husband then also brought a domestic violence application against her and one of their sons. The magistrate hearing the matter decided to consolidate both applications and ordered the husband to leave the house within a week. She said, “Even though you are married in community of property, it is clear to me from the evidence that this is not your house. You met her. She had a house. You stayed with her.”
The magistrate said the issue of the home ownership could be finally resolved during their divorce.
Judge Rogers said it appeared that the couple had not initiated divorce proceedings although they did not love each other and slept in separate rooms.
Turning to procedural fairness, Judge Rogers said on the day the matter was heard the husband had been unrepresented and would have been taken by surprise when the magistrate, midway through hearing his application, caused his wife’s application to be placed on the court roll.
It was possible that he may also not have known at that stage that she was seeking his eviction, because he would only have been served with the interim order, which would not have warned him of that.
“An order interdicting someone from committing acts of domestic violence effectively prevents them from doing that which is unlawful. By contrast, an eviction order prevents them from doing what would otherwise be lawful,” the judge said.
The judges referred the issue of the eviction order back to the magistrate directing that the parties be given a fair opportunity to present evidence and make submissions.
“Given the lapse of time, it would be appropriate for the court to also find out what has been happening in the home since June 2019 (when the interim protection order was granted).”
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The power of social media is immense. So much more than a mere communication tool, it’s a cornerstone of citizen journalism and can be one of the most effective ways in which ordinary people can tell important stories as they happen. What’s more, content posted on social media can be the grounds for legal action and meaningful change, as a case concerning lockdown rights recently heard at the Western Cape High Court clearly showed.
The naked man
On 1 July 2020, a video of a naked man being dragged out of his shack in an informal settlement in Khayelitsha went viral on social media. The man concerned, Bulelani Qolani, was removed from his home by City of Cape Town officials who were members of the Anti-Land Invasion Unit (ALIU). They destroyed his home shortly afterwards.
The ALIU is a specialised unit tasked with deciding which structures should be demolished on land they claim has been invaded. This work is conducted without a court order and typically refers to homes in informal settlements, which means that it usually affects some of South Africa’s most vulnerable people.
The video caused an outcry. It reminded people of the brutal forced removals that took place during apartheid, and demands for the judicial oversight of evictions and demolitions during the national state of disaster were heard. The South African Human Rights Commission (SAHRC), a state institution that is mandated to promote respect for human rights, stepped forward in response.
Together with the Housing Assembly and Bulelani Qolani, the SAHRC brought a case against the City of Cape Town as well as the Minister of Human Settlements, the Minister of Co-operative Governance and Traditional Affairs, the National Commissioner of the South African Police, the Minister of Police and the Western Cape Provincial Commissioner of the SAPS.
Lockdown rights infringed – not an isolated incident
The incident that occurred in Khayelitsha on 1 July wasn’t the only one of its kind. In fact, there were several others that took place during alert levels 3 and 4, despite that fact that evictions were meant to be suspended until the last day of the alert level period.
Some of the demolitions and evictions that occurred were as follows:
On 9 to 11 April 2020 in Empolweni Informal Settlement in Makhaza, Khayelitsha, the ALIU demolished structures on land owned by the City. Urgent relief was given by the Western Cape High Court to a number of residents whose structures were demolished. On 17 April, the court granted an interim order, ordering the City to return building materials confiscated from Empolweni and authorising residents to re-erect and occupy structures there for as long as the lockdown continues.
On 15 May 2020 in Ocean View, Kommetjie, evictions and demolitions took place on land that is privately owned by the Ocean View Development Trust. The City denied that evictions were conducted at the time, and said that ALIU had acted within its mandate to demolish illegally erected structures provided that they were unoccupied.
On 29 June 2020 in Hangberg, Hout Bay, the SAHRC received a complaint alleging that City officials had demolished a structure. The Western Cape High Court declared the City’s conduct unlawful and unconstitutional and emphasised that home demolitions could not be carried out without a court order during alert levels 3 and 4.
On 13 July 2020 in Zwelethu, Mfuleni, structures on land owned by the Western Cape Nature Conservation Board in Mfuleni, which joins city-owned land, were demolished. Many of the area’s residents are desperately poor and unemployed and have been the subject of at least seven evictions carried out without a court order.
“Bleeding and in pain”
Of course, there was also the incident that received the most attention – the one that took place in Khayelitsha on 1 July. The official court papers refer to the affidavit that Bulelani Qolani gave, in which he states that while the law enforcement officers were approaching, he went inside his home and prepared to bathe:
“He stood outside his dwelling naked and asked to be allowed to finish his bath. The law enforcement officers sprayed his neighbour with pepper spray and forcibly gained entry into Mr Qolani’s dwelling, carrying batons and guns. On entering his structure, they were already pushing up the roof to tear it apart.
“He asked to be shown an eviction order and told them it was illegal to evict during the lockdown period. They ignored his requests, he said, handled him physically and violently, pepper sprayed him and forcefully removed him from his house, whilst still naked and in full view of residents. As Mr Qolani tried to re-enter his house, he states they shoved him to the ground and one official knelt on his back while another held him down to stop him moving.
“Eventually, after quite a struggle, Mr Qolani got back into his house and sat on his bed, his head bleeding and in pain. Whilst he was still inside, he states, the demolition was completed.”
A precedent-setting judgment
On 20 and 21 August 2020, the case between the SAHRC as the first applicant and the City of Cape Town as the first respondent was heard at the Western Cape High Court. And on 25 August 2020, judgment was delivered.
In their judgment, Judges Shehnaz Meer and Rosheni Allie declared that the City of Cape Town ALIU will not be allowed to evict people or demolish occupied or unoccupied structures without a court order while the country remains in a state of national disaster. This landmark ruling is binding in the Western Cape and may set a precedent for other provincial courts too.
What’s more, if any evictions or demolitions are conducted with a court order in place, these must be conducted “in a manner that is lawful and respects and upholds the dignity of the evicted persons”. City officials are expressly prohibited from using force, the judges decreed, and from destroying or confiscating any material on the property concerned.
SAPS members will now have to be present during evictions and demolitions to ensure they are done lawfully, in line with South Africa’s Constitution and “in accordance with the SAPS’ constitutional duty to protect the dignity of the persons evicted”. In addition, the City was interdicted and restrained from considering, adjudicating and awarding any bids or tenders received in response to a tender specifically focused on the demolition of illegal formal and informal structures in Cape Town.
The court ordered the City to return all building material and personal possessions taken by the ALIU since 1 May, and to pay R2,000 to the people identified by the Economic Freedom Fighters.
But there’s more to come. In October, additional hearings will be held to determine whether demolitions or evictions can take place without a court order once the state of national disaster has ended. It’s likely that an important conversation has begun.
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.”
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.
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.
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 firstname.lastname@example.org. 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.
We thought this article was worth sharing. Nine weeks ago, we said, “we’re all in this together”. As the lockdown has unfolded, it has become clear that nothing could be further from the truth. This article highlights the plight of some Western Cape residents.
‘As police, we meet people who have the virus, we’re at risk’
Sergeant Leon Fortuin, Zeekoevlei – Ocean View SAPS
Police and other law enforcement personnel, along with healthcare workers, are at high risk of exposure to Covid-19 on the frontline of the battle against this virus.
Standing outside “die blokke”, council flats in Ocean View in Cape Town’s deep south, Sergeant Leon Fortuin reflects on the “new normal” while giving Department of Health workers a hand and talking to residents about recent crimes in the area, including the theft of a bicycle at gunpoint that morning, as well as yet another shooting the day before.
“After seven weeks of lockdown, it is interesting to see how the three different communities that fall under Ocean View station have reacted to the restrictions. When we encountered some community members in Kommetjie, they were just worried about when they could go surfing again… they just wanted to be on the beach,” said Fortuin.
“In Ocean View, residents just wanted to know when they could buy cigarettes and alcohol again. And Masi… oh man, it’s like there has hardly ever been a lockdown there. The people are just up and down the roads all the time, so we’ve had to issue them a lot of fines, and that caused some conflict because they wanted to know why must they be confined to their homes. From their point of view, they live in a shack and you cannot have social distancing when three or four people are confined to such a small place.
“The real risk from a SAPS perspective, though, is seeing the number of Covid-19 (cases) rapidly increasing in Cape Town, and people, in general, being affected by the coronavirus. We’ve been working with the department of health, going through Ocean View and Masiphumelele, and assisting with the screening of residents.
“We’re trying to test as many as possible. Not many have gone for tests, but there have been some, and we are seeing more and more positive cases. Obviously, because we are meeting people who have the virus, we’re also at risk of exposure. I myself have gone for a test two weeks ago and it came back negative, so that’s good. No one at this station has contracted it yet, but two weeks ago a member of ours came into contact with someone who had tested positive for the virus, so we had to temporarily close the station for a few days so a specialised company could come in and spray the station,” said Fortuin.
“A normal Covid-19 day for us now, over and above our normal duties, includes our special briefing in the morning, then meeting and assisting the health department between 08:30 and 12:30 with door-to-door screenings, assisting people with permits… there are so many people wanting to cross provincial boundaries to the Eastern Cape for funerals. We have to do more roadblocks to check permits, and we need to search more premises. We confiscate a lot of cigarettes from spaza shops, which comes with a R1,000 fine.
“We’ve also had to assist law enforcement from the City of Cape Town and the Sheriff from Simons Town with evictions from flats where residents have not paid their rent for some years. I believe there was an instruction from government to ask landlords to please bear with their tenants during this difficult time, and to not evict people from their homes. I also have a place I am renting out and tenants couldn’t pay me, but ja… it’s one of those things and I understood their concerns and challenges, so I told them, it’s fine for now – we’re all going through hard times and they must just pay me what they can, when they can. It’s tough doing this kind of work, because as a person you really do feel compassion for people.”
‘I saw two trucks coming up through Ocean View, law enforcement vehicles, and I just knew’
Ocean View resident Bernie Rossouw stands in defiance outside her informal home which she shares with her three children and pets after she was evicted unlawfully by The City of Cape Town during Covid-19 lockdown level 4. (Photo: Alan van Gysen)
Above Ocean View lies a piece of undeveloped land on which numerous shacks have been erected over the past 16 years. The land was donated to the people of Ocean View for housing development by way of a trust, but after years of inactivity and no public participation on further plans for the land, the City of Cape Town arrived to evict people on 15 May. Among them were Bernie Rossouw and her three children.
“I have been living here since January after my third eviction left me homeless, but people have been occupying this land for years. The development trust covers 15.4 hectares of land and originally there were some plots available for R800 in Beverly Hills and R300 in Atlantic Heights, but those are all gone and Ocean View is as overcrowded as ever. People are living like sardines in a tin,” said Rossouw.
“The trustees are supposed to be the custodians of the land, but now they are trying to sell the land for R8-million to a private investor who apparently will subdivide the remaining land into properties to be sold for R1-million each. Who can afford that here in Ocean View? This land is supposed to be for low-cost housing. After hearing this, I occupied the land. I was born and raised in Ocean View. I fail to understand how this land is for sale and why our evictions are happening.
“A 78-year-old man and his wife live just down from me. Luckily they were home, so law enforcement couldn’t destroy their home and remove them. But the rest of us weren’t so lucky. If you aren’t occupying your home, they can tear it down and remove what they can. I saw two trucks coming up through Ocean View, law enforcement vehicles, and I just knew.
“I’ve experienced this too many times. I went down to them, tried to get a name or something, but they wouldn’t tell me anything. They didn’t have badges, I couldn’t see who they were because of their Covid-19 masks, and they had no form of documentation. They just told me to get out of the way and please leave the mountain because I was obstructing their duties. After that I stood at my door with my two-year-old in my arms and watched as they proceeded to take crowbars to our belongings and any unoccupied structure.
“My family is so traumatised. I stay here with my three youngest children. My eldest daughter ran away after my first eviction. That was brutal. Law enforcement held her down and pepper-sprayed her. I was at work and she was here alone. She is so traumatised that she won’t come back here. I don’t have anywhere else to go. Where must I go? I’m born and bred in Ocean View.
“If this land was just developed, I would buy an erf. I’m the chairperson of the Ocean View Backyard Dwellers and I can tell you that Ocean View has too many backyard dwellers… way too many. It’s just not on. I’m not leaving this place. I don’t have anywhere else to go. I’ve been on the City of Cape Town’s database for housing for about 16 years now – on the system, including the trust – but they have failed me and my children.
“Look at how I am living with my kids. My roof leaks. When it rains, I can’t sleep on my bed with my two-year old… this is me! The City is taking no ownership for what they are doing and not doing. I’m a South African citizen and we have a right to housing.
“It’s all the more difficult with Covid-19. There is no water here. How can I wash my hands? There are mornings when I can’t even brush my teeth or clean my daughter’s potty because I don’t have water. There are bigger struggles and issues in my life than worrying about catching Covid-19, to be honest. I am a single mother with no help. I work at a call centre in town.
“With Covid-19, I haven’t been able to work because schools and creches are closed, and I have nowhere to send my children. I don’t have parents – they died – so what do I do? I just want to live. I just want to provide a roof over my children’s heads, and a safe environment for them to grow up.”
‘All the guys on the boats are tested before going to sea’
Charter Skipper Grant Scholtz helps unload yellow-fin tuna after three days at sea with commercial fisherman in Hout Bay to earn some income after his tourism-based business dried up under Covid-19 Lockdown. (Photo: Alan van Gysen)
Grant Scholtz, 58, Newlands – charter boat skipper turned commercial fisherman
After three days and nights at sea, the tired and dishevelled crew of the Albatross make quick work of offloading their catch on the unusually quiet dock in Hout Bay harbour. The tuna are heavy, and it takes the collective effort of Grant Scholtz and five other crew to move, weigh and pack the fish into cold storage to be transported. This isn’t Scholtz’s regular work. Like many others around South Africa, he has had to get creative and find new ways to earn an income, and also help others where he can during the lockdown.
“I normally run fishing charters out of Hout Bay. Corporate and individual clients. Heading 40-50 nautical miles out to sea is very expensive, but we have clients who come six or seven times a year when the fish are here. This is actually one of the best times of year. This is when we usually have the big tuna competitions. Once lockdown happened, the bookings just dried up completely. Come the end of winter, I’m sure you’ll see many boats for sale. To survive and feed our families, some of the charter guys have found work on the commercial fishing boats,” said Scholtz.
“Due to the confined space, contracting the coronavirus is a risk, but all the guys on the boats are tested before going to sea. There was actually a suspected case just the other day. Someone was showing symptoms and the NSRI had to be dispatched to bring the vessel in, and everyone was quarantined. Fortunately, the tests came back negative, but it was good seeing people take it seriously and that there is a protocol in place.
“The fish we’re catching at the moment are yellowfin and longfin tuna. Longfin especially, as it can be frozen for canning. The yellowfin we don’t catch too much of, as the sushi market has dried up both locally with the closure of restaurants, and internationally for export because they can’t fly it out. With the lockdown restrictions in place, buyers have had to shift their business to local home deliveries just to stay alive and keep their staff supported. But it’s a completely different service and product. These businesses were set up for volume. Instead, they have had to change their model, train their staff to process and cut smaller quantities without waste, and move smaller boxes on the road. At the end of the day, guys are fishing and selling just to keep the wheels turning for everyone involved, from crew to staff.
“All the tuna caught out of Hout Bay is rod and reel or bamboo poles. No nets. When we find a shoal we take a couple of fish, not the entire shoal. This is sustainable fishing. If everyone was fishing with rod and reel, fish stocks globally would be healthier. Interestingly, our tuna industry is controlled by a global quota system, and not by any one government. We fall under the Atlantic Tuna Agreement. So they control and divide quotas up.
“It’s hard being out at sea for days on end. I come home now and I sleep for 24 hours. I’m not used to spending days out on the ocean. These ous who fish every single day are hard. A lot of the families who live in the local community work on, or are involved with, the commercial fishing boats. Some are skippers themselves and many are crew members. But not everyone can get on boats and, with the factories being closed due to lockdown, residents need to do something… so they catch fish off-the-books to feed their families. What else can they do? They’re caught between a rock and a hard place. I know what I would be doing if my back was against the wall like this,” said Scholtz.
‘I don’t think we will die from the virus, but we might die of hunger’
Hangberg resident Angelo Joseph talks community aid and subsistence fishing during the crisis of Covid-19. (Photo: Alan van Gysen)
Angelo Joseph, 43, Hangberg, Hout Bay – community elder and construction worker turned subsistence fisherman
Water laps against the concrete dolosse skirting Hout Bay harbour, where Angelo Joseph sits and describes life under lockdown. The 43-year-old father of two was born and raised in the fishing village of Hangberg, which creeps up the mountain slope behind him. He can trace his family lineage across generations of fishermen and families who have lived off this same stretch of sea.
“At the moment people are struggling. There is no work and there is no income to buy food and basics. Those that aren’t getting food parcels have to turn to the sea. That’s what they have been doing for generations. It’s all they know. They know how to take a line, go to the water, catch a fish and feed their family. We have been doing this more than ever since the lockdown,” said Joseph.
“Some people have boats to go out to sea and catch, but those who don’t walk over the mountain and catch from the shore. I believe a minister gave permission for fishing on Wednesdays, but what if a Wednesday is wild and stormy? Do we go fishing and run the risk of being lost to the sea? Look at this T-shirt I am wearing… six people gone! Three from Hangberg and three from Mountain Pleasant in the Overberg. They were my bras! Their boat took on water, the pontoons didn’t want to inflate, and their batteries were stuffed. Another boat came to help but… people panic. Everyone jumped onto that boat and both boats went down near the 12 Apostles. So, we can’t just fish on one specific day. Fortunately, no one has been monitoring this side. When it’s a lekker day everyone wants to catch fish, and there are kids down there swimming and divers in the water. The guys are catching Hotties (Hottentot), crayfish, perlemoen… whatever they can get to feed their families for the day. They can’t sell it because no one is coming out to buy fish.
“But the big-time poachers, they’re playing Russian roulette. The moment they step onto those boats they know the chances of coming back from the sea at night or in bad weather are slim. And they can be caught by the authorities. I see the cops chasing them all the time. In the last month, more than 200 people got arrested and their boats confiscated. Or the sea claims you like my bras here. It’s a ticking time bomb. When you run with heavy guys like that, it’s not a matter of if, but when.
“Some of these boat owners got three boats. I was doing some work the other day and I heard this oke moaning about where they can store 10 tons of fish because the industry is closed. That’s just one boat in one night! And there are 15 boats going out sometimes! It’s hectic. Now, put that into monetary figures… it’s millions. Why can’t that boat owner buy some food and give it to the more vulnerable people? None of them is doing that, so I don’t feel fuck-all for them. But I do feel for the fishermen who step onto those boats to try and make some money to feed their family.
“I don’t think we will die from the virus. We might die of hunger. We have to do what we can and what we know. We have to catch fish, whether it is legal or not,” he said.
‘The alcohol ban has had a critical knock-on effect in South Africa’
Winemaker and local businesswoman Trizanne Barnard checks on her 2020 vintage curently maturing shortly after the stringent restrictions on the wine industy were relaxed enough to allow export only under under Covid-19 Lockdown laws. (Photo: Alan van Gysen)
Trizanne Barnard, 41, Kommetjie – winemaker and local business owner
South Africa is famous for its wine, and the industry has long been a major contributor to the economy. According to SAWIS (SA Wine Industry Information and Systems), the industry brought in R36-billion last year and supports no fewer than 300,000 jobs. Trizanne Barnard is an award-winning winemaker, local businesswoman and mother of two. She spoke about the challenges facing her industry under the lockdown.
“When we entered lockdown it was extremely unclear within our industry what the laws and restrictions actually were, which was very concerning with 30% of our grapes still hanging. We were in the midst of harvest when lockdown was announced. At first, it appeared we weren’t allowed to finish the harvest due to the gathering of large picking teams. Fortunately we have two big bodies – Vinpro (a non-profit company which represents 2,500 South African wine producers, cellars and industry stakeholders) and Salba (South Africa Liquor Brand Association), who lobbied and got government to permit finishing the harvest,” said Barnard.
“The big thing for us, though, was that the on-trade and off-trade sales were banned, and in the beginning, exporting too. The wine industry employs 300,000 people and contributes 2% of South Africa’s GDP, so it’s quite a lot… and we don’t know how many jobs this could affect across the country. Vinpro continued to lobby government to allow exports as it made absolutely no sense to ban this in the first place. Government lifted the ban for one week in Level 5 which helped a lot, but then they closed things down again. Fortunately, once Level 4 came into effect, we were able to start exporting properly again, but as you know, local sales are still prohibited.
“This has such a critical knock-on effect in South Africa because the wine industry is completely intertwined with tourism, from restaurants to wine tourism, vineyard visits to wineries etc. There are just so many jobs affected. Fortunately for me personally, I haven’t been as hard hit as some because I export a lot of my wine, but there are others who rely solely on local trade, and they and their staff have been floored. It’s really sad to see how many wine farms are in distress and how many could be up for sale in the months to come.
“Regardless of what work we do, I think we all have to think a lot more creatively these days. I have had to rethink my e-commerce, how I communicate with my clients and even how to do my wine tastings virtually. It does have its upsides though, as we’re all connecting a lot more as a family. It is still a very concerning time though, and I worry a lot about the people around me. Friends and family, and those around in our communities… I wonder constantly if they are doing okay.”
‘There is no other way I can make money… all we can do is pray and wait’
Tavern owner Andre Manuel stands outside his locked premises in Masiphumelele, Cape Town, during Covid-19 Lockdown restriction rules. (Photo: Alan van Gysen)
Andre Manuel, 39, Masiphumelele – tavern owner
Standing outside Happy Place tavern in a side street off the bustling main road of Masiphumelele, a few kilometres from Kommetjie and Ocean View, Andre Manuel helps his mother-in-law prepare the braai for the day – one of the only means of income for his family at present, while he talks about life as a local business owner, father and husband during this crisis.
“It’s difficult… it’s very difficult. And not just with business, but at home also. As a man you cannot just stay at home, and this is sometimes affecting our relationships with our wives also, you know. They are expecting that as husbands we will go out and come home with something – provide for the family. Now we’re not able to provide for anyone,” said Manuel.
“Other industries have been given a chance to open, but we don’t have this chance yet. We don’t even know when we will be able to open. Because we are in the Western Cape, we don’t know if we will be on Level 3 or stay on Level 4 and when we can trade… we just don’t know. And this is not only affecting me, it is also affecting my workers. I employ four people who work to provide for four other families. I’ve been able to help them with one month’s salary without work, but I cannot do it again. I just don’t have the money. And some of those people have been evicted because they could not pay rent… It’s terrible.
“Normally, when it’s not Covid-19 times, my licenced tavern is open 11:00 to 23:00. Not everyone who comes to the tavern comes to drink. Some come to enjoy sports on TV or to play pool. We receive many different types of people. You see, inside Masi, we are many different nations and peoples. Some, they want PSL soccer, but some, they want overseas matches. Some people don’t want to watch football at home alone. So they come here. Some buy cooldrinks. Some buy liquor. We try and cater for all our different people here.
“Right now, I am looking after seven people in my own family, including my in-laws who are old. I am financially responsible for seven. It’s embarrassing to admit, but my wife and her mother are having to help make us some money by selling braai meat on the street here – pork and chicken and things like that. But it’s not enough to keep us going, really. For you as a man, you are supposed to be a leader, to be strong. To back down and admit you cannot do your job is very painful. It hurts. I’m not able to do anything. My wife has to buy the electricity, and we don’t know when the water bill will come or if we can pay it. It’s a really big problem.
“Right now, there is no other way I can make money. It is difficult to travel, you cannot work on building sites, and you cannot find other work. And the police, they know I am a tavern owner so they drive past here many times a day. The bakkie that I use is well known by the police and people around here. I can do nothing. I cannot transport anything because I have been searched many times. They think maybe I am carrying liquor. I tried once to help an old lady who was sick to get to the hospital, and they stopped me and said I am not an ambulance and I cannot be doing this. So, there is no other way I can make money. Right now all we can do is pray and wait.” DM
How are you coping?
We know that many of our clients have been affected by the issues raised in this article. Because the impact of COVID-19 and the measures to contain it impact every sector and community in our country, there are few who haven’t experienced some consequences. If you have been wrongfully evicted, have suffered violence at the hands of a partner, or are a tavern owner concerned about your liquor licence or needing assistance as a small business, contact Simon on 086 099 5146 or email email@example.com today. We now offer online consultations. We’ll call you back to schedule a meeting at a time that suits you, on the platform of your choosing.
He does not need to actively do this per se, but needs to passively observe this, by appointing a legal advisor and representative who can apply the laws designed to respect these concerns.
What does then mean for the landlord?
He needs to appoint a specialist eviction attorney who can apply the eviction laws in the most efficient way possible, to accelerate the inevitable outcome of getting his property back by order of court. This way time, energy and stress can be best saved.
How long does an eviction take?
In general, it can take 6 weeks to 3 months, if all goes perfectly. Longer, if there are delays in the process, by role players along the way like the court, or sheriff, and if documents go missing.
What if the tenant opposed the process?
Then the hearing date will be pushed out by a month or two (depending on the individual court queue).
What can be done to curb the delays by the tenant opposing the process?
A legal strategist needs to be appointed to proactively manage the opposed process in a way to encourage timeous settlement of the matter out of court.
How does he do this?
There are leverage points in the litigation process/procedure that can be used to a litigators advantage; there is also a cost benefit analysis that can be put to the tenant – if they can be persuaded that they can save themselves a legal cost order by not opposing the eviction, then the matter can be settled in a shorter time by agreement, savings costs.
Who can we contact to get help with legal advice, strategy and representation with the eviction equation?
You can contact us at SD Law, as we are a law firm, operating nationally, offering landlords and tenants legal advice, and representation with the eviction process.
For example, where there is a lease, one must send a certain type of notice, and give certain time lines to expire, before taking any next steps in the process.
To learn more about the type of notice, and time lines, that may be appropriate for your case, please contact us.
Once the letters have been sent, to the legal service address (that is important), and you have proof of this, once the time periods of expired, one can then start to prepare the court application.
The court application requires an affidavit to make out a case as to why a judge should make an order for the occupier’s forced removed from the property.
This is a technical document best left to an eviction lawyer to draft.
The court application will involve a number of court appearances, and it may be opposed, but often is not.
On average, an eviction court process, can take 6 weeks to 3 months; longer if there are issues with the papers, the role players not performing in the process, and if it is opposed.
In the end, an owner of property, needs to consult with an experienced specialist eviction lawyer, to successfully navigate the pre court and court processes.
Any mistake in the process, can cause delays, and increase costs.
If you are a landlord, or property owner, needing help with evicting a tenant or occupier, Contact Simon Dippenaar & Associates Inc. (aka SDLaw) today for help with the eviction processes on 086 099 5146 or by email: firstname.lastname@example.org. We will contact you back same day, with advice on the first best steps to take to resolve the issues practically and cost effectively.
As lockdown restrictions ease, what does it mean for the rental market?
Lockdown level 4 – are evictions allowed? The easing of the rigorous lockdown rules that governed us for five weeks was met with rejoicing by most South Africans, particularly those with dogs and athletes who were missing their daily runs/cycle rides. More business categories are now deemed “essential” and some people have been able to return to work, albeit under very strict conditions. Most normal daily activities remain prohibited or restricted, but new rules were announced on 7 May, in Government Gazette 43293, allowing the movement of persons and goods under certain conditions. This includes moving house.
Let’s look at what you – whether you are tenant or landlord – can and can’t do under level 4.
Moving house during lockdown level 4
As of 7 May, up until 7 June, you may move to a new property, provided the lease was signed before or during the lockdown period or the transfer of the property was completed before the lockdown. This includes movement across provincial borders. Furthermore, you may use public transport to effect the relocation, following all other directives that apply (e.g. wearing of masks). The precise wording of the directive is as follows:
2. The purpose of these Directions is to facilitate the movement of persons and goods within and across provincial, metropolitan or district boundaries during the period of Alert level 4. (a) The movement of persons and goods, where –
(i) new lease agreements were entered into before or during the lockdown period: or (ii) the transfer of immovable property occurred before the lockdown period, requires a change in place of residence. including the transport of goods to a new place of residence, within the Republic.
(b) The circumstances in subparagraph (a) require the once -off movement of persons who are relocating to their new place of residence, as permitted in terms of regulation 16(5): and (c) The transport of goods within the Republic is permitted in terms of regulation 22(1)(f).
You must have a permit during lockdown level 4
If you qualify under these directions, you must secure a permit from your local police station, indicating the household members who are relocating. To obtain the permit, you must present your lease agreement or transfer documents, as detailed below. You must travel with all relevant documents in your possession.
3. (a) A person who needs to travel to his or her new place of residence and to transport goods, which are limited to household furniture and effects, as required by the circumstances in paragraph 2 of these Directions, is permitted to do so between the period 7 May 2020 to 7 June 2020.
UPDATE 15 May!! The cut-off date of 7 June has now been removed.
(b) A person referred to in subparagraph (a) must
(i) obtain a permit to travel across provincial, metropolitan or district boundaries from the station commander of a police station or a person designated by him or her The permit must correspond to Form 1 to these Directions; This gazette is also available free online at www.gpwonline.co.za 4 No. 43293 GOVERNMENT GAZETTE, 7 MAY 2020 (ii) indicate the persons who are part of the household who will be required to move; and (iii) have in his or her possession the relevant lease agreement indicating the date of expiry of the old lease and the date of commencement of the new lease, or the transfer documents attesting to the change in place of residence or change of ownership of property.
Rent during lockdown level 4
If the lease has expired, and the tenant is unable to relocate immediately, they must continue to pay rent, and the lease agreement becomes a month-to-month lease. However, if a tenant is having difficulty paying rent (whether the lease has expired or is ongoing), due to loss of income, TPN Credit Bureau has created a rental recovery pack, containing all the documents needed to negotiate a payment holiday and repayment plan with a landlord. Landlords placed in difficulty with bond payments due to loss of rental income should contact their lenders. Almost all South African banks have relief packages in place to help beleaguered borrowers.
What about evictions during lockdown level 4?
Here’s where there has been some movement. The moratorium on evictions introduced at the beginning of the lockdown (level 5, although we didn’t know that term then) remains. No one can be evicted from their home under level 4. However, an application for an eviction order may be brought before the courts, which are now able to hear cases and grant eviction orders. Sheriff services have resumed. The deeds office is open and consultations related to evictions will take place.
Therefore, an attorney is permitted to prepare an order for eviction, which may be granted during level 4. However, the order is suspended and cannot be executed until the last day of level 4. At this point we do not know when that is. It is also important to pay close attention to the official information that accompanies the announcement of level 3. Although we currently understand that evictions will be lawful under level 3, we’ve seen already that the final regulations may vary considerably from the draft or anticipated rules.
Be like a boy scout – be prepared
If you are a landlord with outstanding tenant issues, and you were intending to commence or had already commenced eviction proceedings prior to 27 March, now would be a good time to consult with a good eviction attorney and prepare your case. You will not be able to complete the process until such time as evictions are again permitted, but you will beat the rush that is sure to ensue when the ban is lifted. We anticipate the courts will be busier than usual, as many matters have been put on hold, so you could wait a while to have your case heard. If the grounds for eviction are non-payment of rent (prior to lockdown, not caused by it), then you will delay even further the time when you can legally replace your non-paying tenant with a paying one.
Don’t be in a hurry to evict good tenants
If your tenant has previously been fully compliant with the lease agreement and has always paid rent on time, but has defaulted on rent payments due to the lockdown, we urge you to take a more sympathetic stance. Allow the tenant time to negotiate a plan with you. You may even consider waiving a month’s rent, as many landlords have voluntarily done. As recession bites, rental yields will be subdued, even if demand for properties is present. If it takes a month or two to find a new tenant, that is lost income, and you may even find you have to drop the rent to attract tenants. Better to accept an equivalent loss of income from a good tenant than to expose yourself to the unknown.
The advice of an eviction lawyer is essential – for landlords and tenants alike
SD Law & Associates are specialists in rental housing and eviction law. If you are a landlord and need help navigating these uncharted waters, we can provide expert assistance.
If you are a tenant and are worried about your current situation, we will look into your case and advise you of your rights and your best course of action.
Contact Simon on 086 099 5146 email email@example.com.
The overall eviction costs depends on the facts, and the attorney’s approach.
An experienced and ethical attorney, should first try to negotiate a successful eviction through pre-court mediation.
This can be done if the attorney can persuade the tenant to leave voluntarily.
An experienced eviction lawyer needs to highlight to the tenant, the costs of not leaving, versus the benefits of exiting voluntarily.
A skilled negotiator can settle most legal matters out of court.
In our experience, one should first try and spend 2 billable hours on mediation, before going to court.
So that no time is wasted during this phase, an eviction attorney should, at the same time, draft and send the pre-court legal notifications i.e. eviction notices aka letters of demand.
This will ensure that any mediation strategy is done in parallel with the technical pre-court legal steps.
One should realistically budget around R2000 x 2 hours for this approach.
However, some tenants or occupiers, may be totally unreasonable, or desperate with no where else to go.
In these extreme cases, the formal court process must be pursued, and negotiations continue in parallel. After all, in these cases, government needs to get involved to provide alternative accommodation.
Any general eviction takes at least 2 to 3 months, costing upwards of R15 000 excl VAT and expenses.
This is if the tenant/occupier does not oppose the process, or interfere with its progression in any way.
Often a tenant will wait till the final court date to appear and ask for a chance to get a lawyer and oppose it.
While this is against the court rules, courts allow the postponement, because of the important constitutional rights at play i.e. a tenant’s right to legal representation and adequate housing.
To best prevent a tenant from delaying the process, and causing a landlord further losses, it is highly advisable to appoint an eviction specialist right from the beginning.
Like any operation, if one tries to do it oneself, there are pros and cons; except, in the context of evictions, mistakes can cause long delays.
An opposed eviction can cost upwards of R50 000.
The best advice is to appoint, from the start, an experienced eviction lawyer, who is also a skilled negotiator and strategist.
At SD Law, we offer clients help with the eviction process, and strive to achieve the most practical and cost effective outcome, by being strategic.
Contact Simon at firstname.lastname@example.org, if you want to know more about how we can help you successfully navigate your eviction issue.
Elsewhere in the world legislation is ensuring tenants don’t lose their homes due to COVID 19.
As if we didn’t have enough to worry about. COVID 19 is making everyone anxious for their health. Although the vast majority of patients recover, in South Africa we have a very vulnerable population and a weak health system, so widespread infection will wreak havoc in families and communities. Furthermore, those who have recovered describe the illness as extremely unpleasant, leaving them very weak for a considerable time. It’s to be avoided at all costs, hence the severe restrictions we are all living under and the lockdown that we are about to begin.
Beyond the literal threat the virus presents to health, up and down the country businesses have been closing, particularly in hospitality, and now all activities but essential services must cease while we all stay indoors for three weeks. If employers can’t afford to pay wages, employees will be sent home with no income. How, then, are they meant to pay their bills, including rent?
Some lenience on loan re-payments
As of 23 March, all the major banks have announced some provision for hardship caused by COVID 19. Standard Bank has announced a three-month payment holiday for small businesses with a turnover of less than R20 million, and for full-time students with student loans, to start on 1 April and run until 30 June. For other loans, including mortgage bonds, customers are urged to contact the bank. The other major banks are also assessing the situation and either inviting customers to contact them individually or waiting to see if they need to take more radical steps.
What about tenants?
Homeowners with bonds can hopefully expect some mercy, but what about tenants with rent to pay? In places where the pandemic has a tighter grip, legislative measures have been put in place to protect renters. Around the world, cities in the US and countries including Spain have temporarily halted evictions in response to the COVID 19 pandemic.
In England and Wales, the Housing Secretary has said, “Emergency legislation will be taken forward as an urgent priority so that landlords will not be able to start proceedings to evict tenants for at least a three-month period.” Up in Scotland, similar action is proposed. The Housing Minister said, “No landlord should evict a tenant because they have suffered financial hardship due to coronavirus and we are actively considering how best this can be addressed.”
A spokesperson for a tenants’ association said: “Up and down Scotland, tenants are facing not just a major health crisis, but the prospect of destitution and homelessness too. As their workplaces begin to shut their doors, it is hard to see how tenants who are already struggling to make ends meet will be able to pay their rent. It is unconscionable that anyone should even have to worry about being evicted from their home at this time.”
The situation here in South Africa is similar, and arguably will be worse, given our levels of poverty and disadvantage. At SD Law we support the 31 NGOswho have come together to appeal to President Cyril Ramaphosa, his Cabinet and Chief Justice Mogoeng Mogoeng to follow in the footsteps of our international counterparts and forbid evictions during the current crisis. After all, in a lockdown, it makes no sense at all to put people out on the streets.
Stop the “ejectment” if not the eviction
We understand that there may be situations where the eviction is not only legitimate, but long overdue. Perhaps a tenant has significant arrears with rent or has damaged the property. We’re not advocating for the entire eviction process to be overturned in these circumstances. A fair and just procedure can be resumed in due course, when life returns to normal. But this is not the time to execute a warrant of ejectment, i.e. to put the tenant out.
Look after good tenants
We would also urge landlords to exercise leniency in the case of good tenants who suddenly cannot pay their rent because they have lost their jobs or income due to COVID 19. If a tenant has a history of timely payments and full compliance with the terms of the lease, they should be treated compassionately and a repayment plan worked out when the crisis is past.
From a purely commercial perspective, even if the appeal to our shared humanity is in vain, evicting a good tenant because they can’t pay their rent is unlikely to result in replacement income. No one is looking to move right now. And a property could sit empty far longer than the time it takes for the existing tenant to recover. Good tenants are worth looking after.
Update 27 March:
In the government gazette released last night (26/3/2020), all evictions and execution of attachment orders, both movable and immovable, including the removal of movable assets and sales in execution are suspended with immediate effect for the duration of the lockdown.
Update 26 March:
As we head into a lockdown that will straddle two months, you may be wondering what will happen if a lease expires during the three-week period? In short, no movement is allowed. A tenant cannot be forced to leave a rented property even if another tenant is lined up to move in. The incoming tenant also won’t be able to vacate their current premises. The extraordinary measures in place (see the government gazette for full list of restrictions) take precedence over other contracts in place, such as leases. Technically, landlords and tenants can pick up where they left off as soon as the lockdown is over, but in reality it may be easier for everyone simply to extend the lease by one month and push the moving-out or moving-in date back to 1 May. Everyone in the country is in the same situation.
Rent should still be paid for any occupancy beyond the lease expiry. If the tenant is in financial difficulties, then a payment plan should be negotiated.
We’ve mentioned a “pause” on evictions to protect tenants who may be financially compromised as a result of COVID 19. But what about evictions that were already scheduled before this crisis emerged? Although the gazette does not mention eviction specifically, it is fair to assume that no movement means no movement. In effect, normal life is put on hold – paused – for three weeks. it will resume on 17 April.
Cape Town – Social housing giant Communicare has dismissed claims that a Rondebosch tenant was unlawfully evicted.
Karabo Makgoane, who lived at the Welverdiend complex, claimed that she was unlawfully evicted by Communicare because the organisation was supposed to give her alternative accommodation.
“I have been living in the Welverdiend flat since 2017. I was retrenched and told the landlord, but he said that under no circumstances would they help me. I was then paying half of my rent until October 2018. I got served a court letter, and my first court appearance was in 2019. I did not have a legal representative.
“On May 2, I was evicted by a magistrate, who said I could leave on November 30 because of my circumstances. I was expecting Communicare to get back to me regarding alternative accommodation, as was requested by the magistrate.
“On November 30 nobody had said anything to me. I stayed because I was expecting Communicare to tell me about alternative accommodation arrangements,” said Makgoane.
Communicare spokesperson Michelle Matthee said the company had tried to accommodate her when she fell into arrears.
“The tenant has considerable arrears, well over R100 000, arising from non-payment of rental. The tenant also did not uphold previous payment agreements. After the court heard the matter, the eviction order was issued on May 21. As is reflected in the court order, Communicare was not instructed to find alternative accommodation for Ms Makgoane.
“The issue with Ms Makgoane began 18 months ago. We eventually had no other option but to hand the issue over to the courts. After a lengthy court process, on February 18, the sheriff of the court carried out an eviction of Ms Makgoane, as ordered by the court,” said Matthee.
Reprinted from the Cape Times – 2020-02-21. Emphasis/links by SD Law.
If you are not sure if your eviction is fair, we can help