On the 15th of August 2020, the entire country moved to Alert Level 2 of the National Lockdown. This has been welcomed by all South Africans, mainly due to the ban on the sale of alcohol and cigarettes being lifted, however, another notable amendment is the relaxation of the stringent lockdown restrictions on residential evictions.
An occupier may not be evicted from his/her place of residence nor can his/her place of residence be demolished without an order granted by a competent court authorising the eviction or demolition.
During Alert Level 3 of the National Lockdown, landlords have been able to bring an application before the courts for the eviction of illegal occupants, or the demolition of illegal structures. The courts were able to hear these applications and grant an order for eviction and/or demolition, provided that the order was suspended and could not be executed until the last day of the Alert Level 3 period, unless a court was of the opinion that it was not just and equitable to suspend the order.
In terms of the most recently updated Regulation 53 of The Disaster Management Act published on the 17th August 2020, the courts have been empowered to grant an order, authorising an eviction and/or demolition, which can be executed during the National State of Disaster period.
The courts may however suspend an order for eviction or demolition until after the lapse or termination of the National State of Disaster, unless the court is of the opinion that the suspension of the eviction or demolition order is not just or equitable, after having taken into account various new pandemic specific factors – namely: –
“(a) the need, in the public interest for all persons to have access to a place of residence and basic services to protect their health and the health of others and to avoid unnecessary movement and gathering with other persons;
(b) any restrictions on movement or other relevant restrictions in place at the relevant time in terms of these regulations;
(c) the impact of the disaster on the parties;
(d) the prejudice to any party of a delay in executing the order and whether such prejudice outweighs the prejudice of the person who will be subject to the order;
(e) whether any affected person has been prejudiced in his or her ability to access legal services as a result of the disaster;
(f) whether affected persons will have immediate access to an alternative place of residence and basic services;
(g) whether adequate measures are in place to protect the health of any person in the process of a relocation;
(h) whether any occupier is causing harm to others or there is a threat to life; and
(i) whether the party applying for such an order has taken reasonable steps in good faith, to make alternative arrangements with all affected persons, including, but not limited to, payment arrangements that would preclude the need for any relocation during the national state of disaster.”
The courts are now also empowered to, “…where appropriate and in addition to any other report that is required by law, request a report from the responsible member of the executive regarding the availability of any emergency accommodation or quarantine or isolation facilities pursuant to these regulations.”
This discretion can foreseeably result in extended delays in the granting of an eviction or demolition order.
As the nation moves toward recovery of the socio-economic impacts of the Covid-19 pandemic, we can anticipate that the courts are going to show sympathy to occupiers who have been negatively affected, economically, by the Covid-19 pandemic and this will no doubt result in further delays in obtaining an order for eviction or demolition. A balance will have to be struck between the interests of the landlord and the interests of the occupier.
We therefore suggest that if you are unable to reach a satisfactory agreement with your tenant, that you start taking legal steps sooner rather than later.
Should you require any legal assistance regarding the above, please contact Ayesha Arend at ASasman@dacct.co.za or Talya Gasparre at TGasparre@dacct.co.za.