Evictions and adjusted lockdown levels | Advice for tenants and landlords

As South Africa gets to grips with the third wave, we're all on high alert for changes to lockdown levels. Here's what is permitted under the current adjusted level 3 restrictions.

What is permitted under adjusted Alert Level 3

With COVID-19 cases again on the increase, the government announced a return to Level 2 on 31 May. Fortunately for the hospitality industry and the liquor industry, the alcohol ban was not reintroduced, but this week, with new infections still rising and a "third wave" officially underway, government rapidly moved the country back to Alert Level 3. Curfew has been brought forward to 10pm, and hospitality outlets, which are still allowed to serve alcohol, must close by 9pm. Off-sales are restricted to Monday-Thursday, 10am to 6pm. But the rules regarding Alert Level 3 evictions are basically the same as they have been throughout Alert Levels 1-3.

Evictions under Alert Level 3 - applications allowed but cannot be enforced

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, but it will be suspended or "stayed" "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.

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.

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 under 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.