What is permitted under Level 3 rules?
There’s a strong sense of déjà vu in the country at the moment. If it weren’t for the weather, you might think it was July all over again. Despite high compliance with mask wearing and other COVID-19 prevention measures, we’re in the middle of a devastating second wave, partly due to a variant of the virus that does not appear to cause more severe illness but is considerably more contagious. So the government has had to rewind the Disaster Management Act back to Alert Level 3 (adjusted). Sale of alcohol is banned once again, and beaches and other public spaces are closed. What are the implications for landlords and tenants? Are evictions still permitted, as they were under Alert Level 1?
Alert Level 3 evictions – protection from eviction
Although the Level 3 regulations have been adjusted, certain core conditions remain. According to Section 37 (1) of the Disaster Management Act regulations for Alert Level 3, “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
However, the protection from eviction only extends to the execution of the eviction order. A landlord may still make application to the court for an eviction, which may be suspended or “stayed” until after the national state of disaster is lifted, or such time as the rules allow.
Furthermore, the court may allow an eviction if it is of the opinion that it is not just or equitable to suspend or stay the order. This might occur if, for example, an occupier is causing harm to others or there is a threat to life, or if the party applying for the order has taken reasonable steps in good faith to make alternative arrangements with all affected persons.
However, the regulations go to some lengths to stress the importance of fair practice by landlords…what we have called “commercial ubuntu”. The Act considers it unfair practice for a landlord to terminate services without:
- Providing the tenant with reasonable notice and an opportunity to make representations
- Making the necessary arrangements to reach an agreement regarding alternative payment arrangements, where applicable
- Making arrangements for the ongoing provision of basic services
- Waiving any penalties for the late payment of rental where the default is caused by the disaster, regardless of what form the penalty takes (e.g. a landlord cannot disguise it as an “administrative charge”)
- Engaging reasonably and in good faith to make arrangements to cater for the extenuating circumstances of the disaster
This last point applies to both landlords and tenants. Government has called on all parties to engage with one another and keep the lines of communication open. This is the basis of commercial ubuntu.
Both parties may be impacted by the lockdown in its various guises. Tenants may have suffered loss of income and find it hard to pay rent. But landlords too may have bond payments to make that are affected by non-payment of rent. The rights and circumstances of all parties are equally important.
Landlords, tenants, lawyers and agents alike must all exercise social responsibility and compassion in the enforcement of lease conditions.
Don’t ignore problems
If your current situation is giving you cause for concern, don’t wait until the national disaster is over to take action. However bleak things may seem, there is always something that can be done. Talking to someone is the first step. If you don’t feel you can talk to the other party, talk to your lawyer or agent. At SD Law, we’ve been helping landlords and tenants negotiate leases and all manner of rental property matters for nearly 10 years. We can draw on our past experience to help you resolve your current issue. The sooner you take the first steps, the easier it is to find a solution.
Contact us today
Whether you are tenant or landlord, if you have questions or concerns about your existing lease agreement or the Alert Level 3 rules, contact Cape Town law firm SD Law for a confidential discussion. We will explain your rights and responsibilities and help you act with commercial ubuntu. Contact Simon now on 086 099 5146 or email him on firstname.lastname@example.org.