Evictions and adjusted lockdown levels | Advice for tenants and landlords

As South Africa continues to roll out its vaccination plan, the country has been moved to Alert Level 2. Here's what is permitted under the current adjusted Level 2 restrictions.

What is permitted under adjusted Alert Level 2

With COVID-19 cases no longer spiking as was the case during the third wave, the government has announced a change to Adjusted Alert Level 2, in place from 13 September 2021.

It calls for physical distancing and restrictions on leisure and social activities to prevent a resurgence of the virus. It will include:

• Curfew from 11pm to 4am
• Public places like restaurants need to close by 10pm
• Maximum of 250 people can attend indoor gatherings and maximum of 500 people can attend outdoor gatherings
• Offsite sale of alcohol permitted from Monday to Friday 

For a full list of regulations, see sacoronavirus.co.za

Evictions under Alert Level 2 - applications allowed and can be enforced 

The rules regarding Alert Level 2 evictions does mean eviction applications can be enforced. 

However, as before, the aim is to protect vulnerable tenants. In the words of the regulations, “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.”

Landlords may apply for an eviction order. If the landlord does need to evict a tenant, they must have regard for:

• The need for everyone to have a place of residence and services to protect their health and the health of others and to avoid unnecessary movement and gathering with other persons.
• The impact of the disaster on the parties.
• Whether affected persons will have immediate access to an alternative place of residence and basic services.
• Whether adequate measures are in place to protect the health of any person in the process of a relocation.
• The occupier’s behaviour, e.g. if they are causing harm to others.
• The steps the landlord has taken to make alternative arrangements of payment of rent to preclude the need for relocation.
• Other considerations as described in the gazette. 

Eviction and demolition of places of residence

54. (1) 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.

(2) A competent court may suspend or stay an order for eviction or demolition contemplated in subregulation (1) until after the lapse or termination of the national state of disaster unless the court is of the opinion that it is not just or equitable to suspend or stay the order having regard, in addition to any other relevant consideration, to-

(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 persons who will be subject to the order;

(e) whether any affected person has been prejudiced in their 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.

(3) A court hearing an application to authorise an eviction or demolition may, 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 emergency accommodation or quarantine or isolation facilities pursuant to these Regulations.

READ: Tenant Rights | Cancelling your fixed-term lease when you've been retrenched

Rental housing

The national state of disaster its documentation stresses the importance of fair practice, strengthening the provisions of the Rental Housing Act 1999.

The following conduct is deemed unfair practice:

• The termination of services in circumstances where:
  - the landlord has failed to provide reasonable notice and an opportunity to make representations
  - the landlord has failed, reasonably and in good faith, to make the necessary arrangements including to reach an agreement regarding alternative payment arrangements, where applicable
  - no provision has been made for the ongoing provision of basic services during the national state of disaster
• Imposition of a penalty for the late payment of rental where the default is caused by the disaster.
• Failure of either party (landlord or tenant) to engage reasonably with the other to “cater for the exigencies of the disaster”
• Any other conduct that prejudices the ongoing occupancy or the health of any person or the ability to comply with the applicable restrictions on movement

The Eviction Process

Although the eviction order may be stayed until after the national state of disaster lapses, you may apply to the court for an eviction order.

If a tenant is in breach of the lease agreement, you must follow these steps. You must not physically remove the tenant or their possessions, change the locks, or disconnect water or electricity. Doing so is a criminal offence and you could find yourself in court…for the wrong reason!

The process is as follows:

• Serve notice to the tenant of the breach, giving them a defined period of time to rectify the breach. This will be determined by the terms of the lease, or if not specified it will be 20 working days, in accordance with the Consumer Protection Act (CPA).
• If the breach is not rectified, you can terminate the lease contract.
• You then give notice to your tenant of your intention to evict them through the courts.
• You apply to court to have a “tenant eviction order” issued to the tenant.
• The court issues the “tenant eviction order” to the tenant and the municipality whose jurisdiction the property is in, 14 days before the court hearing.
• The court hearing takes place. The tenant is entitled to offer a valid defence.
• If there is a valid defence, a trial date is set. If there is no valid defence, a “warrant of eviction” is issued to the sheriff.
• his authorises the sheriff to remove the tenant’s possessions from the premises.
• A trial begins or the court sheriff removes the tenant’s possessions from the premises.

Note that only a sheriff may remove the tenant’s possessions. Even if you succeed in securing an eviction order, you do not have the authority to remove their belongings yourself.

Legal advice is strongly recommended

While you can notify your tenant of your intention to cancel the lease without seeking legal advice, it’s a good idea to work with an eviction attorney from the beginning of the process. If the breach is not remedied and you pursue the matter through the courts, it will be reassuring to know that you have followed due process every step of the way. You don’t want your case to be thrown out on a technicality you have overlooked. Rental housing legislation is complex and, particularly in the current situation, rapidly changing. You need to be sure you are in compliance with the law and, more importantly, your tenants are treated fairly, especially in the context of COVID-19.

For further information

SD Law is a law firm in Cape Town and Johannesburg with specialist eviction lawyers. If you are seeking an eviction, we will make sure you meet the court’s requirements. Contact Cape Town attorney Simon Dippenaar on 086 099 5146 or email sdippenaar@sdlaw.co.za. 

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*This article has been updated on 13 August.