By Tjaart de Beer
As of 1 June 2020, South Africa has been under lockdown due to the COVID-19 Corona virus for 67 days. During this period there has been varying degrees of lockdown enforced and announced by the South African government. These degrees are translated in terms of different alert levels as per the determination by government.
In accordance with the Disaster Management Act 57 of 2002 (“the Act”) regulations applicable to the relevant alert levels are issued by the Depart of Co-operative Governance and Traditional Affairs. An Alert Level 3 has been announced to be effective from 1 June 2020 until such time as the president announces a different level to be applicable.
In terms of the regulations gazetted on 28 May 20201, regulation 36 under Chapter 4 – Alert Level 3 as a schedule to the Act will form the point of discussion in this article. Regulation 36 (1) reads as follows:
36. (1) Subject to subregulation (2), a person may not be evicted from his or her land or home during the period of Alert Level 3 period.
Subregulation (2) determines that if an eviction is warranted; therefore, granted by a competent court subject to the provisions of the Extension of Security of Tenure Act, 19972 and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998,3 an order of eviction may be stayed until the last day of the Alert Level 3 period.
However, this subregulation does determine that the court may decide that the stay and suspension of such an eviction order may be not just and equitable towards the landlord or in whose favour the order has been granted. Thus, the court may grant an eviction during this period of Alert Level 3 Lockdown based on the issued summons/application before it, providing that the intricate and sensitive procedure has been executed in strict compliance with the prerequisites.4
It is reiterated that the overall procedure to effectively evict unlawful occupants is a sensitive one. This is due to the human rights affected by the procedure. Rights such as, inter alia, equality,5 human dignity,6 privacy7 and ultimately, housing.8 Also, the procedure needs to be strictly followed in terms of the aforementioned acts of parliament to be in a position to have an opportunity of success. It is also worth mentioning that this procedure does take time due to the required timelines to adhere to.
If you are a landlord or representative of same or a lessee and need assistance in a matter of eviction, it will be best to contact us for any assistance you may require.
1 No. 43364 vol. 659 Government Gazette dated 28 May 2020.
2 Act No. 62 of 1997.
3 Act No. 19 of 1998.
4 Klos T “Step-by-step guide to residential housing eviction proceedings in the magistrate’s court” 2016 (July) De Rebus 26 – 27.
5 Section 9 of the Constitution of the Republic of South Africa, 1996 (hereinafter referred to as “the Constitution”).
6 Section 10 of the Constitution.
7 Section 14 of the Constitution.
8 Section 26 of the Constitution.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.