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COVID-19 Archives | Eviction Lawyers South Africa

Mandatory vaccinations in your complex?

By | COVID 19, Vaccination

‘No, your townhouse or residential estate agents cannot force you to get vaccinated’, law expert weighs in on mandatory vaccinations

Reprinted from iol.co.za, by Se-Anne Rall  – 2021-11-16

Durban – Despite a large number of organisations enforcing mandatory vaccinations for staff, management at townhouse complexes or residential estates cannot force residents or visitors to issue proof of vaccination to use facilities.

According to specialist community schemes attorney and BBM Law director, Marina Constas, if organisations and some restaurants are saying that staff and patrons must produce proof of vaccination in order to work in the office or dine in the establishment, it may seem reasonable, sensible and even necessary for bodies corporate and homeowners association members to expect the same from the residents and visitors to community housing schemes like sectional title complexes, apartment blocks, residential estates and retirement villages.

“However, I believe they would be overreaching and unlikely to succeed in implementing a vaccine mandate,” she said.

Mandatory Covid-19 vaccines for staff members have been announced by numerous organisations around the world – from Facebook and Ford to the Walt Disney Company and Walmart. In South Africa, Discovery and Sanlam, among others, have announced their plans to mandate Covid vaccination for employees with effect from specified dates.

“In my view, a vaccine mandate for residents or a blanket refusal to have non-vaccinated visitors in the building would be unreasonable. However, ensuring that legally required safety measures such as face masks, hand sanitising and limited numbers at gatherings are enforced is not just reasonable, but is an obligation for trustees, bodies corporate and homeowners associations,” Constas said.

Constas explains that common property is owned by all members of the body corporate, which is all the owners in the complex. “Every owner has an undivided share of the complex’s common property and cannot be prevented from using it.

She explained that currently, no definitive decision has been made by the High Court in South Africa regarding vaccine mandates.

Constas said while companies are exercising their right to mandate vaccines for their staff, the fact of the matter is that we do not yet have specific laws or court decisions on mandatory vaccines in relation to the fight against Covid-19.

“Without a relevant law such as a public health order or a valid by-law, there would be no legal basis for sectional title trustees or homeowners association directors to mandate vaccination among residents in their community scheme or for visitors,” she said.

Constas said that they could consider adding this to the complex rules but could be challenged on the basis that rules must be reasonable and not discriminatory. She added that if health issues or religious beliefs are valid reasons not to have the Covid vaccine, then it is possible that a blanket mandatory vaccination rule could be construed as discriminatory in some cases.

“There are also issues around the protection of personal information to be considered. With the enactment of the Protection of Personal Information Act, every community housing scheme must have a POPI policy. It must specify the type of personal information that the complex collects and holds, as well as how the complex collects and stores the personal information of residents and visitors. Could this be expanded to include the personal medical information of residents and visitors, like their vaccination status? Right now, there is no legal basis for this,” Constas said.

She said trustees seeking to implement vaccine mandates could consider the Sectional Titles Schemes Management Act’s stipulation that every sectional title body corporate must act in the best interests of the body corporate and for the benefit of the owners of units in the scheme.

“Section 7 of the Act delegates this responsibility to trustees, who may argue that a vaccine mandate is in everyone’s best interests and benefits the owners of units. Since the Act does not specify what these ‘best interests’ are, it could be open to interpretation. This is a very complex issue. The trustees and directors of community housing schemes have a vital role to play in ending this pandemic and must ensure that they comply with regulations and meet their obligations,” she said.

Constas said they had an obligation to take all reasonable steps to ensure that a resident does not contravene the law, and this includes the Covid-19 restrictions and regulations.

“However, the community scheme cannot exceed its powers and make different or conflicting rules or directives contrary to the national legislation, which is the Disaster Management Act 57 of 2002 and Regulations, as well as the Community Schemes Ombud’s Directives,” she concluded.


Simon Dippenaar & Associates, Inc. is a Cape Town law firm of specialist eviction lawyers, now operating in Johannesburg and Durban, helping both landlords and tenants with rental property issues. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you need advice on the eviction process or if you need help with any aspect of a lease or landlord-tenant relations.

Further reading:

Lockdown evictions – how have other countries responded?

By | Eviction news, Evictions

Is there anything South Africa can learn from rules governing eviction in other countries?

As the COVID-19 pandemic tightened its grip on the world’s economy, many tenants, both residential and commercial, found themselves unable to keep up with rent payments, through no fault of their own, due to loss of income. Workers in low-paid jobs and industries were sent home, with furlough in richer countries, empty-handed elsewhere. Unable to trade due to lockdowns, small businesses with little in the way of reserves found themselves shutting up shop. Fortunately, most governments responded with relief measures. Some, including the UK, paid workers in badly affected industries such as hospitality 80% of their normal wage. Here in South Africa we had TERS (Temporary Employer/Employee Relief Scheme), although it has come under criticism.

Tenant protection from lockdown evictions

The protection of tenants from eviction was the most popular measure. Since mid-March 2020, many countries have suspended or banned evictions. In South Africa, evictions have not been allowed since the national state of disaster was announced at the end of March. When we reached Alert Level 1, evictions were once again permitted, but this was rescinded when we returned to Alert Level 3. A landlord may still apply for an eviction order, but it cannot be executed until the state of disaster is lifted.

This amnesty is primarily designed to protect tenants who fall into rent arrears as a result of the pandemic, though it also serves to ensure people have somewhere safe to spend the lockdown. An eviction may still be effected in extraordinary circumstances, for example if a tenant is causing harm to others or if the landlord has taken reasonable steps in good faith to make alternative arrangements for the evictees.  

Eviction bans

Other countries instituting eviction bans included Argentina, Australia, Canada, Colombia, Cyprus, El Salvador, France, Germany, Ireland, Italy, Luxembourg, Mexico, the Netherlands, New Zealand, Portugal, Spain, the United Arab Emirates, the UK and the USA. Most regulations referred to private residential property. However, in Germany and Portugal, tenants of residential and commercial properties were protected as well. France focused its protection on small and medium-sized companies.

France

In France, with her reputation for strong social support (and high social costs to employers), it is always illegal to evict people from their homes from November 1st to March 31st for any reason, to avoid literally putting people out in the cold. This winter reprieve was extended to July. The mayor of Paris further extended it until October 31st in the social housing sector. It is not clear if other municipalities followed suit, but the amnesty is in full force now, in the northern hemisphere winter.

Australia

On the first of April, Prime Minister Scott Morrison announced a nationwide moratorium on evictions for six months. When that expired, several states, including South Australia and Victoria, extended emergency relief for struggling residential and commercial tenants until the end of March 2021.

United Kingdom

The UK has devolved governments, so the rules vary between the four nations. In England and Wales, evictions were banned until 9th January. Given that England is back in nearly full lockdown due to the crushing second wave of COVID-19, housing charities say it makes a mockery of Boris Johnson’s “stay at home” message to lift the ban now. However, the minimum notice period for evicting a tenant is six months (doubled from three), due to remain in place until March 31st. In Wales, the notice period is also six months (other than for anti-social behaviour). In Northern Ireland, landlords must give at least 12 weeks’ notice to quit before applying for an eviction order.

And in Scotland, the temporary ban on eviction orders has been extended until the end of March, except for cases of anti-social behaviour and domestic violence. A six-month notice period is also in effect.

USA

In the United States, mortgage foreclosures were paused early in the pandemic. An eviction moratorium was also in place through late July 2020 that applied to federally funded rental units (generally occupied by the poorest in society). In September, the Centers for Disease Control and Prevention issued a nationwide moratorium on evictions that extended the protection to the majority of tenants in rented accommodation across the country.

Newly elected President Joe Biden has proposed an extension to the national moratorium until September 30th, and has earmarked funds for legal assistance to households facing eviction. Various states and cities have introduced their own measures. Back in March New York State, for example, enacted comprehensive emergency eviction and mortgage foreclosure moratoriums to protect renters and homeowners unable to pay rent or make mortgage payments. It recently signed into law the Emergency Eviction and Foreclosure Prevention Act of 2020, which protects residential tenants with COVID-19-related hardships, and homeowners and small landlords facing similar difficulties.

In practice…

What the law says and what happens on the ground are often two different matters. Despite our national ban on evictions, there was a series of high-profile lockdown evictions and shack demolitions by local authorities in the early days of the lockdown, particularly in Cape Town. Some of them were in response to illegal land invasions, but those invasions in their turn were often the result of the government’s failure to provide shelter to homeless communities

In Durban, several families, including pensioners, were evicted from a high-rise building. Loss of income meant tenants could only pay half or a portion of their rent. Despite a plan to repay the arrears and a meeting between landlord and ward councillor, the landlord removed tenants from 21 flats, defying the ban on evictions.

No ban can prevent landlords from taking matters into their own hands, as the Durban incident shows. There is a need for legal representation of tenants to ensure their rights are protected and landlords are held to account. The law can only be enforced if breaches are notified to the relevant authorities. Tenants often feel powerless to do this themselves.

We have good laws…

We just need to enforce them. Our official response to the social crisis caused by the pandemic, at least in terms of rental housing, is on a par with our global counterparts. The data is not available to show how we measure up in practice. It’s fair to assume that unscrupulous landlords exist everywhere, and how much they may have got away with will depend on the scrutiny of the housing sector exercised in their respective jurisdictions. 

We support our social justice organisations and other champions of vulnerable and marginalised individuals and communities in calling for all landlords to abide by the regulations and exercise commercial ubuntu in dealing with tenants struggling with rental payments.

Contact Cape Town eviction attorney today

Whether you are tenant or landlord, if you have questions or concerns about lockdown evictions, any aspect of the Alert Level 3 rules or your individual situation, contact SD Law for a confidential discussion. SD Law is a Cape Town law firm of specialist eviction attorneys and 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 info@sdlaw.co.za.

Further reading:

Lockdown rights enforced for residents of informal settlements in Cape Town

By | COVID 19, Eviction law case summaries, Eviction news, Evictions

The power of social media is immense. So much more than a mere communication tool, it’s a cornerstone of citizen journalism and can be one of the most effective ways in which ordinary people can tell important stories as they happen. What’s more, content posted on social media can be the grounds for legal action and meaningful change, as a case concerning lockdown rights recently heard at the Western Cape High Court clearly showed.

The naked man

On 1 July 2020, a video of a naked man being dragged out of his shack in an informal settlement in Khayelitsha went viral on social media. The man concerned, Bulelani Qolani, was removed from his home by City of Cape Town officials who were members of the Anti-Land Invasion Unit (ALIU). They destroyed his home shortly afterwards.

The ALIU is a specialised unit tasked with deciding which structures should be demolished on land they claim has been invaded. This work is conducted without a court order and typically refers to homes in informal settlements, which means that it usually affects some of South Africa’s most vulnerable people.

The video caused an outcry. It reminded people of the brutal forced removals that took place during apartheid, and demands for the judicial oversight of evictions and demolitions during the national state of disaster were heard. The South African Human Rights Commission (SAHRC), a state institution that is mandated to promote respect for human rights, stepped forward in response.

Together with the Housing Assembly and Bulelani Qolani, the SAHRC brought a case against the City of Cape Town as well as the Minister of Human Settlements, the Minister of Co-operative Governance and Traditional Affairs, the National Commissioner of the South African Police, the Minister of Police and the Western Cape Provincial Commissioner of the SAPS.

Lockdown rights infringed – not an isolated incident

The incident that occurred in Khayelitsha on 1 July wasn’t the only one of its kind. In fact, there were several others that took place during alert levels 3 and 4, despite that fact that evictions were meant to be suspended until the last day of the alert level period.

Some of the demolitions and evictions that occurred were as follows:

  • On 9 to 11 April 2020 in Empolweni Informal Settlement in Makhaza, Khayelitsha, the ALIU demolished structures on land owned by the City. Urgent relief was given by the Western Cape High Court to a number of residents whose structures were demolished. On 17 April, the court granted an interim order, ordering the City to return building materials confiscated from Empolweni and authorising residents to re-erect and occupy structures there for as long as the lockdown continues.
  • On 15 May 2020 in Ocean View, Kommetjie, evictions and demolitions took place on land that is privately owned by the Ocean View Development Trust. The City denied that evictions were conducted at the time, and said that ALIU had acted within its mandate to demolish illegally erected structures provided that they were unoccupied.
  • On 29 June 2020 in Hangberg, Hout Bay, the SAHRC received a complaint alleging that City officials had demolished a structure. The Western Cape High Court declared the City’s conduct unlawful and unconstitutional and emphasised that home demolitions could not be carried out without a court order during alert levels 3 and 4.
  • On 13 July 2020 in Zwelethu, Mfuleni, structures on land owned by the Western Cape Nature Conservation Board in Mfuleni, which joins city-owned land, were demolished. Many of the area’s residents are desperately poor and unemployed and have been the subject of at least seven evictions carried out without a court order.

“Bleeding and in pain”

Of course, there was also the incident that received the most attention – the one that took place in Khayelitsha on 1 July. The official court papers refer to the affidavit that Bulelani Qolani gave, in which he states that while the law enforcement officers were approaching, he went inside his home and prepared to bathe: 

“He stood outside his dwelling naked and asked to be allowed to finish his bath. The law enforcement officers sprayed his neighbour with pepper spray and forcibly gained entry into Mr Qolani’s dwelling, carrying batons and guns. On entering his structure, they were already pushing up the roof to tear it apart. 

“He asked to be shown an eviction order and told them it was illegal to evict during the lockdown period. They ignored his requests, he said, handled him physically and violently, pepper sprayed him and forcefully removed him from his house, whilst still naked and in full view of residents. As Mr Qolani tried to re-enter his house, he states they shoved him to the ground and one official knelt on his back while another held him down to stop him moving.

“Eventually, after quite a struggle, Mr Qolani got back into his house and sat on his bed, his head bleeding and in pain. Whilst he was still inside, he states, the demolition was completed.”

A precedent-setting judgment

On 20 and 21 August 2020, the case between the SAHRC as the first applicant and the City of Cape Town as the first respondent was heard at the Western Cape High Court. And on 25 August 2020, judgment was delivered.

In their judgment, Judges Shehnaz Meer and Rosheni Allie declared that the City of Cape Town ALIU will not be allowed to evict people or demolish occupied or unoccupied structures without a court order while the country remains in a state of national disaster. This landmark ruling is binding in the Western Cape and may set a precedent for other provincial courts too.

What’s more, if any evictions or demolitions are conducted with a court order in place, these must be conducted “in a manner that is lawful and respects and upholds the dignity of the evicted persons”. City officials are expressly prohibited from using force, the judges decreed, and from destroying or confiscating any material on the property concerned.

SAPS members will now have to be present during evictions and demolitions to ensure they are done lawfully, in line with South Africa’s Constitution and “in accordance with the SAPS’ constitutional duty to protect the dignity of the persons evicted”. In addition, the City was interdicted and restrained from considering, adjudicating and awarding any bids or tenders received in response to a tender specifically focused on the demolition of illegal formal and informal structures in Cape Town.

The court ordered the City to return all building material and personal possessions taken by the ALIU since 1 May, and to pay R2,000 to the people identified by the Economic Freedom Fighters.

But there’s more to come. In October, additional hearings will be held to determine whether demolitions or evictions can take place without a court order once the state of national disaster has ended. It’s likely that an important conversation has begun.

Contact us

Simon Dippenaar & Associates, Inc. is a firm of specialist eviction lawyers, based in Cape Town and now operating in Johannesburg and Durban, helping both landlords and tenants with the eviction process. Contact one of our eviction attorneys on 086 099 5146 or sdippenaar@sdlaw.co.za if you need advice on the eviction process or if you are facing unlawful eviction.

Reprinted from sdlaw.co.za

Further reading: