Article: Evictions in the time of lockdown!
By S Mnisi 010 592 2321
In most instances failing to pay full rental on time constitutes breach of lease warranting landlords to cancel the lease agreement and claim for arrear rentals and a possibly damages. However, in these unprecedented times the conclusion cannot be an ordinary one. 1
During level 5 there was a complete suspension on all evictions “regardless of whether it is a formal or informal residence or a farm dwelling” that has now changed. 2
Under Level 4 Regulations an eviction order may be granted during this time since courts have returned to work, however it must be noted that eviction orders must be suspended during lockdown level 4. 3
Courts may order an immediate eviction only in exceptional circumstances, except where a court makes a decision that it is not just and equitable to stay and suspend the order until the last day of level 4. 4
According to section 26 of the Constitution “No one may be evicted from their home or have their home demolished without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.” 5
Therefore, a tenant may not be evicted without a court order even if the tenant is in breach of the rental agreement. 6
The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) which administers law in respect of residential evictions, permits the court a very wide discretion to determine the timing of an eviction depending on the circumstances of each case. 7
The court may show mercy to tenants who are being evicted because of lockdown by giving them more time to move on the condition that the tenant was not being unreasonable and trying to take advantage of the situation. 8
The eviction notices can only be enforced during level 3, hence landlords “have to demonstrate ubuntu that they didn’t profit while the tenants lost all of their income due to the crisis and couldn’t afford to feed their families.” 9
Under the Level 4 Regulations the deeds office will be open and eviction consultations will be permitted under certain conditions. 10
Where a force majeure clause is included in a lease agreements the parties may have to define if Covid-19 falls within its meaning and if so, how. 11
This clause excuse “the parties from performing their obligations when a force majeure event occurs and for the duration of the event”. 12
Eviction steps:
The eviction process begins when the tenant breaches the lease agreement and follows these steps: 13
1. Landlord serves notice to the tenant to rectify the breach.
2. If the breach is not rectified, the landlord can terminate the lease contract.
3. Landlord gives notice to the offending tenant of the intention to evict the tenant through the courts.
4. Landlord applies to court to have a “tenant eviction order” issued to the tenant.
5. The court issues the “Tenant eviction order” to the tenant and the municipality that has jurisdiction in the area 14 days before the court hearing.
6. Court hearing occurs where the tenant needs to prove a valid defence.
7. If there is a valid defence, then a trial date is set. If there is no valid defence, a “warrant of eviction” is issued to the sheriff giving authorisation for the sheriff to remove the tenant’s possessions from the premises.
8. A trial begins or the court sheriff removes the tenant’s possessions from the premises
Commercial Evictions:
A number of businesses are currently struggling financially during the nationwide lockdown which has created difficulties for businesses to pay rent. 14
In South Africa commercial evictions are governed by common law and are conducted either through the High Court or the Magistrates Court. The case is brought by way of action or application proceedings in the High Court and by way of action proceedings in the Magistrate’s Court. 15
Consequently, commercial property tenants do not enjoy the protection of PIE or ESTA. 16
However, the landlord must still follow the correct eviction process due process, in which they must first cancel the lease. This can be done on expiry of the lease or on the occasion of a material breach of the terms of the agreement, example non-payment of rent. 17
In certain instances tenants according to section 14 of the Consumer Protection Act 68 of 2008 may have extended time to remedy any breach of the agreement, and may even have the right to terminate a fixed term lease if the tenant fails to rectify the breach within 20 business days. 18
“The recourse for a landlord who owns a commercial, as opposed to a residential, property, is that the former is required to bring an application to court and the latter, in addition to the application, must comply with the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act.” 19
The Level 4 Regulations have been amended, in which they now permit “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.” 20
These are unprecedented times, hence tenants who are significantly affected financially by this pandemic need to communicate with their landlords in which other measures such as reduction in rent or payment “holiday” or a moratorium may be reached.
Footnotes
- Mokwena N “Evictions during the coronavirus lockdown, the grey areas” 2020.
- Grobler R “Is it legal to evict anyone during lockdown? No, say legal expert” 2020.
- Coetzer L “Can I move? Alert Level 4 rules for tenants and landlords” 2020.
- Mavundza B “You won’t be allowed to move house on May 1 – and ‘police permits’ are fake news” 2020.
- Section 26 of the Constitution of the Republic of South Africa, 1996.
- Writer S “What happens if you can’t pay rent during lockdown?” 2020.
- Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998.
- Mavundza B “You won’t be allowed to move house on May 1 – and ‘police permits’ are fake news” 2020.
- Mavundza B “You won’t be allowed to move house on May 1 – and ‘police permits’ are fake news” 2020.
- Coetzer L “Can I move? Alert Level 4 rules for tenants and landlords” 2020.
- Mokwena N “Evictions during the coronavirus lockdown, the grey areas” 2020.
- Bloch G “Covid-19: Evictions during and after lockdown” 2020.
- Le Roux W “Commercial Evictions” 2017.
- Bloch G “Covid-19: Evictions during and after lockdown” 2020.
- Dippenaar S “Commercial evictions: how a landlord can evict a tenant” 2019.
- Le Roux W “Commercial Evictions” 2017.
- Dippenaar S “Commercial evictions: how a landlord can evict a tenant” 2019.
- Section 14 of the Consumer Protection Act 68 of 2008.
- Bloch G “Covid-19: Evictions during and after lockdown” 2020.
- Government Gazette 7 May 2020 Vol. 659 No. 43293.
Disclaimer: this Article does not constitute, nor should be construed as, the giving legal advice, and it is recommended that one of our attorneys are contacted 010 592 2321
