Misconception of Evictions

Misconception of Evictions during Level 4 Lockdown.

by Marius Koch 26 July 2021

There is a common misconception that Landlords may not evict tenants who are not paying rent during the National State of Disaster.

In terms of Regulation 22 of the latest lockdown restrictions, no person may be evicted from their land or home or have their 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. The regulation further states that a competent court may suspend or stay such an order until after the lapse or termination of the national state of disaster unless it is of the opinion that it is not just and equitable to do so.

1. Therefore, it is important to note that evictions are still taking place daily during the lockdown period. The orders may however be suspended until such a time, that, in the court’s view, is just and equitable. The court must consider the following when determining if it is just and equitable to make an order of eviction or whether to suspend such an order:

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:

2. Any restrictions on movement or other relevant restrictions in place at the relevant time in terms of these Regulations;
the impact of the disaster on the parties;
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:
whether any affected person has been prejudiced in their ability to access legal services as a result of the disaster;
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;
whether any occupier is causing harm to others or there is a threat to life; and
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.

It is very important that a landlord follow the process correctly in order to avoid any unnecessary delay. If a tenant is in breach of the lease agreement or the lease agreement has come to an end a landlord must take the following steps:

1. Serve a notice to vacate on the tenant in breach, giving them a period in which to rectify the breach. This period is usually set out in the terms of the lease. If there is no written lease and the Consumer Protection Act applies, then a period of at least 20 business days must be afforded to the unlawful occupiers
2. If the breach is not rectified within the specified period, then the landlord may cancel the lease agreement
3. A notice to vacate should be sent by registered mail affording the tenant an opportunity to seek alternative accommodation before eviction proceedings are instituted
4. Should the tenants refuse to vacate after receiving such a notice, they will be considered unlawful occupiers and you should approach an eviction specialist to proceed with the eviction.

For further information or if you wish to proceed with the eviction process, contact BSM Attorneys a law firm in Brackenfell, Cape Town at 021 981 7230 or by email at marius@bsmattorneys.co.za.

[1]Regulation 22(1) & (2) of Government Gazette 44772 of 27 June 2021 as amended https://www.gov.za/sites/default/files/gcis_document/202106/44772rg11299gon565.pdf .

[2] See above n1 at regulation 22(2)(a)-(i).

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