Evictions Under Lockdown

Evictions Under Lockdown

Peter SA Hendricks
05 June 2020

Introduction

Since the Lockdown started in South Africa many people lost their sources of income.  As such, many were unable to pay their rent. This has also been hard on landlords, who relied on rental payments. For example, we see retirees that bought property to supplement their meagre pension. Another example is the landlords who opted to rent out their property because they were unable to keep up with their monthly bond payments. Both landlord and tenant were all placed in a very precarious situation because of the lockdown.

Many tenants were proactive in communicating their situation to their landlords. Some landlords were reasonable as a result. However there were unfortunately some landlord-tenant relationships that were already strained before lockdown occurred. These landlords now frustratingly ask “Can I evict a tenant, during this time, where our landlord-tenant relationship has materially broken down?” With this article we explore this question.

The Prohibition against Evictions under Lockdown

Our constitution prohibits the eviction of persons from their homes without a court order. Such evictions are generally called arbitrary evictions. However, with the lockdown regulation amendments published on 16 April 2020 in Government Gazette No. 43232 (in terms of section 27(2) of the Disaster Management Act No. 57 of 2002), all evictions have been prohibited. See regulation 11CA. This prohibition has developed further when the initial lockdown regulations were replaced on 29 April 2020 in Government Gazette No. 43258, which introduced Alert Level 4 (“AL4”).  Regulation 19 thereof contains the provisions dealing with this prohibition. It was replaced with the transition to Alert Level 3 (“AL3”) by publication of regulations on 28 May in Government Gazette No 43364. Regulation 36 of the latter amendment provides that:

“(1) Subject to sub-regulation (2) a person may not be evicted from his or her land or home during the period of Alert Level 3...

(2) A Competent court may grant an order for the eviction of a person from his or her land or home in terms of the provisions of Extension of Security of Tenure… (Act 62 of 1997) and the Prevention of Illegal Eviction from and the Unlawful Occupation of Land…(Act 19 of 1998): Provided that an order of eviction may be stayed  and suspended until the last day of the Alert Level 3 period , unless a court decides that it is  not just and equitable to stay and suspend the order until the last day of the Alert Level 3 period.”

This means that, the court has a discretion to order that an eviction could be executed before the end of “AL3”. However, the court can only exercise this discretion if the evidence of the case show that it would not be just and equitable to stay or suspend the court’s eviction order until the last day of “AL3”. That in turn means that, where landlords can show in evidence that it is fair, given the factors and interests involved, to order the execution of the eviction (without having to wait till the last day of “AL3”) the court in its discretion may proceed to do so.

Issues to Take Into Account

The regulations published on 28 May 2020 introduces a differentiated application of the Alert levels. It does so by inserting regulation 2 which provides that, “The Alert Level determined to apply at a national level applies to all provinces, metropolitan areas and districts, unless a different alert level is otherwise determined.” South Africa therefore face a situation where a particular area is declared a hotspot and such area could therefore be subject to a higher alert level then the rest of the country. An Alert level higher then “AL4” may exclude the courts discretion to order that an eviction order is  executed prior  to the end of that lockdown period.

In addition, it has to be pointed out that the regulations were challenged in The Gauteng High Court, in the case De Beer and Others Vs The Minister of COGTA (Case No. 21542/2020). Without going into an analysis of the constitutional issues, it only needs to be stated plainly that the court held that:

• Saving lives is a supreme constitutional imperative;
• The hard locked down regulations were rational at that time;
• The lockdown regulations are a limitation on people’s constitutional rights;
• The steps taken to attain lockdown objectives ( to save lives) has to be rational and must be related only to attaining these objectives;
• The court applied the rationality test and found many of the regulations under “AL4” and “AL3” not to measure up with this test

Insofar as evictions are concerned the court held that it was one of the provisions that actually passed the test and that it is rationally connected to the objectives to save lives. That means that the prohibition of eviction provisions got the courts approval. At the time of this being written government announced that it would appeal the decision. Although it is anticipated that the regulations insofar as evictions are concerned will remain unchanged, one should still keep an eye out.

Conclusion

It needs to be understood that the prohibition against eviction is aimed at protecting the vulnerable against covid19. It is not meant to protect the unscrupulous tenant who could pay their rent but choose not to.

That being said, South Africa finds itself subject to “AL3” and in some areas subject to “AL4”  In these circumstances it is possible to:

1. cancel a lease agreement on justifiable grounds following proper procedures;
2. bring a court application for an eviction order.
3. Obtain an eviction order.

Whether or not a court will make the eviction order executable before lockdown has ended, will depend on whether the evidence supports the fact that it would be just and equitable not to stay or suspend the eviction order.