Under normal circumstances, a court may grant an eviction order to a landlord or landowner where a tenant is occupying property or land illegally. The unlawful occupation of property or land by a tenant or an unlawful occupier may be due to several reasons which include, but are not limited to, defaulting on payment of rent, lapsing of a lease (contractual) agreement, breach of any provision of the lease agreement, illegal occupation or building of houses or squatter camps (“shacks”) on land belonging to another, without the owner’s permission.
Eviction laws apply to both residential tenants (individuals) and commercial tenants (businesses). The eviction of tenants is governed by either the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No 19 of 1998 (“the PIE Act”), or the Extension of Security of Tenure Act 62 of 1997 (“ESTA”). Section 4(1) of the PIE Act provides that a person may be evicted from a property if he/she is an unlawful occupier. Section 11 of ESTA states that the court will grant an eviction order of a person who was an occupier after 4 February 1997, where the consent to reside on the land was for a fixed and determinable time, and that time has lapsed. The landlord or landowner must follow the necessary steps guided by these Acts in order to evict a tenant lawfully. Consequently, a landlord or landowner may not evict a tenant without an eviction order granted by the court.
However, we are currently not operating under normal circumstances, as the Corona Virus (Covid-19) global pandemic has threatened the economic stability of many countries around the world. As part of precautionary steps issued by the World Health Organization (WHO) and implemented by governments of affected countries, many countries have implemented national lockdowns and regulations in order to flatten the curve of infections. South Africa is one of the countries which have implemented a national lockdown which is regulated under section 27 of the Disaster Management Act 57 of 2002. According to the regulations implemented by the government, citizens and residents are required by law to minimise movement and contact with each other in order to minimise the spread of the virus. Movement is only permitted where it is essential. Furthermore, this requires individuals to stay indoors. Certain, non-essential, economic activities have also temporarily come to a halt. These restrictions, though necessary, have had an adverse financial effect on many individuals and businesses worldwide.
If all individuals are required to stay indoors, what does this mean for eviction orders obtained before the commencement of the national lockdown, or those whose lease has expired during the subsistence of the national lockdown?
As part of the plan to combat the spread of the Covid-19 virus, the government has suspended evictions across the country for the duration of the lockdown. On 26 March 2020, the regulations on the temporary suspension of evictions were published on the Government Gazette. The regulations provide that: all evictions and execution of attachment orders, both movable and immovable, including the removal of movable assets and sales in execution is suspended with immediate effect for the duration of the lockdown.
This suspension only covers the initial period of the lockdown (21 days and any extension thereof). An amendment to the regulations was published on 16 April 2020. The amendments include eviction orders that were granted by the courts before the commencement of the lockdown. Furthermore, if a tenant’s lease has expired during the lockdown, they may not be evicted until the national lockdown has been lifted. A new tenant is also restricted from moving into their new property during this period. These regulations on the restrictions of evictions during the lockdown period are congruous with the Special Rapporteur on adequate housing during the Covid-19 worldwide lockdowns and quarantines, published by the United Nations. Similarly, section 12 of the PIE Act allows the Minister to implement regulations which are necessary or desirable in order to achieve the objectives of the Act.
Currently, no one can approach the court for eviction orders as the courts are not classified as essential. According to the national lockdown regulations, the court can only hear urgent matters, such as protection/harassment orders, domestic violence matters or bail. The amendment to the lockdown regulations on evictions states that: no person may be evicted from their place of residence, regardless of whether it is a formal or informal residence or a farm dwelling, for the duration of the lockdown.
Therefore, if a person has been living in a formal or informal structure and without any alternative accommodation, their removal from that property will amount to an unlawful eviction and a violation of the lockdown regulations. The eviction of any person during this period may render them destitute and without an alternative place to live and unable to adhere to the lockdown regulations of quarantine or social distancing. It may also pose a threat to the health and wellbeing of those individuals as well as violate their constitutional rights to access to justice and adequate housing. The fact that courts are unable to hear eviction matters means that affected parties will have no right of recourse in law. Thus, any evictions carried out may be menacing to our justice system due to the violation of the section 26 constitutional right to adequate housing, which may occur as a result of no provision of alternative accommodation. Furthermore, any contravention of the lockdown regulations by the eviction of an individual may pose a threat to the overall objectives of the government in combating the spread of Covid-19.
The Property Industry group has undertaken to give concessions to retail tenants in the form of rent relief packages for businesses affected by the national lockdown. This initiative will primarily focus on businesses falling under the category of Small, Medium and Micro-sized Enterprises (SMMEs). The concession will mean that these tenants will not be evicted for the next two months. As conditions to qualify for this concession, the business has to have been in good standing (rent paid up to date) by the end of February 2020 and must also undertake not to retrench staff.
Author: Samukelisiwe Mbuthuma (LLB (UKZN), LLM Candidate (UKZN))