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lockdown Archives | Page 2 of 5 | Eviction Lawyers South Africa

Jan 14
1

Evictions under the “adjusted” Alert Level 3 rules

By | COVID 19, Eviction news, Evictions, Lease Agreement, Rent

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.

Commercial ubuntu

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 info@sdlaw.co.za.

Further reading:

Aug 29
0

No evictions or demolitions without a court order, judges rule

By | Eviction law case summaries, Eviction news, Eviction orders, Evictions

Reprinted from BizCommunity, by James Stent – 2020-08-27

The City of Cape Town’s Anti-Land Invasion Unit (ALIU) will not be allowed to evict people or demolish their structures, whether occupied or unoccupied, without a court order while the country remains in a state of national disaster.
Bulelani Qolani, who was evicted from his shack in July. The Western Cape High Court on Tuesday ruled that the City of Cape Town must have a court order to evict someone or demolish a home during the state of national disaster. Archive photo: James Stent / GroundUp

Bulelani Qolani, who was evicted from his shack in July. The Western Cape High Court on Tuesday ruled that the City of Cape Town must have a court order to evict someone or demolish a home during the state of national disaster. Archive photo: James Stent / GroundUp

Judges Shehnaz Meer and Rosheni Allie in the Western Cape High Court on Tuesday afternoon granted an interim relief stating that the City must have a court order to evict anyone or demolish a home.

The case was brought by the SA Human Rights Commission following a string of demolitions and evictions by the City of Cape Town in recently-occupied informal settlements. The removal of Bulelani Qolani from his shack by City officers while naked was widely covered in the media. Other respondents listed in the case included the Ministers of Human Settlements, Cooperative Governance and Traditional Affairs, and Police, and SAPS national commissioner.

Judges Meer and Allie also ordered that in cases where a court order is obtained for an eviction or demolition, the City must execute the order in a lawful and respectful manner that “upholds the dignity of the evicted persons”. They said the City is “expressly prohibited from using excessive force” and may not destroy or confiscate material belonging to those evicted.

The court has given the City a week to return “all building material and personal possessions” taken by the ALIU since 1 May and ordered that it pay R2,000 to the parties cited by the Economic Freedom Fighters in its submissions to the court.

The City was further interdicted from “considering, adjudicating and awarding” bids and tenders related to demolition services for the ALIU.

The court also instructed SAPS members present at a court-sanctioned demolition or eviction to ensure that the actions are being lawfully executed and to “protect the dignity of the persons evicted”.

Costs of the application will be shouldered by the City of Cape Town, except for the costs of the hearing of 25 July.

Mayor Dan Plato has said he has instructed the City’s lawyers to appeal the decision. He said that the judgment sets a dangerous precedent for all landowners. “If left unchallenged, the interdict would make it almost impossible for landowners to protect their property from unlawful occupation and to prevent people from establishing homes, albeit unlawfully, on the property of others. The knock-on effect of the large-scale orchestrated land invasions we have seen is simply devastating for Cape Town, its communities, residents in general and the City.”

In October, hearings will be held to determine whether or not the municipality has the authority to execute demolitions or evictions without a court order after the end of the state of national disaster.

This article was originally published on GroundUp.

Some links added by SD Law.
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 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.

Further reading:

Aug 27
0

High court declares the City of Cape Town’s lockdown evictions illegal

By | Eviction law case summaries, Eviction news, Evictions

Reprinted from the Mail & Guardian, by Lester Kiewit – 2020-08-25

Cape Town lockdown evictions
The South African Human Rights Commission and housing activists brought — and won — an application to halt lockdown demolitions of what the City of Cape Town said were unoccupied dwellings

The Western Cape high court has found the City of Cape Town had acted illegally in launching evictions and demolitions on what it called “unoccupied dwellings” during the lockdown period.

The case, brought by the South African Human Rights Commission (SAHRC) and civic group Housing Assembly, was laid  after the city and its law enforcement evicted a naked man, Bulelani Qolani, from his shack at the Ethembeni informal settlement in Khayelitsha in July.

During that time South Africa was in level three of national lockdown to mitigate the spread of the coronavirus.

Under lockdown regulations, no evictions can take place. But the city argued the regulations did not preclude dwellings that were not occupied.

In its case, the applicants cited examples in Hangberg, Ocean View, and Khayelitsha, where law enforcement and the city’s anti-land-invasion unit (ALIU) had evicted people and torn  down their homes during the coronavirus outbreak. This, they said, exposed people to the virus.

‘Forced removals’

In the judgment, high court Judge Yasmin Meer, with Judge Rosheni Allie concurring, likened the eviction of Qolani as “reminiscent of apartheid-era brutal forced removals”. She said that law-enforcement officers determined, without a court order, that homes on occupied land should be demolished.

In the judgment in the application in two parts, Meer ruled that the city and the ALIU were interdicted from demolishing or evicting anybody from any shack, hut, tent or dwelling for the duration of the national state of disaster, except when a court order is obtained.

The order reads that, if court permission is granted for any eviction, law enforcement or any contractor appointed by the city should undertake to execute the eviction in a manner that upholds the dignity of the evicted people. They are also prohibited from using excessive force or from confiscating the personal belongings of individuals.

The South African Police Service has also been ordered to ensure that, if they are present, all national laws are obeyed in conformity with the Constitution.

Further down in the judgment, the court was scathing of the City in how it decided whether a dwelling was unoccupied.

“The applicants contend that the City’s position that the ALIU is entitled to demolish structures it has determined unoccupied solely by sight … City officials, in their own discretion, decide whether a structure is occupied and no provision is made for a person affected by the decision to have recourse to a court before the structure is destroyed … Occupiers are deprived of their possession of the structures by City officials who sit in judgment of their own cause.

“The City has in my view not provided a substantial response to the charge of the applicants … that the ALIU determines which dwellings are unoccupied and singled out for demolition in an arbitrary, capricious, and unfettered manner,” Meer’s ruling reads.

Homelessness, poverty and desperation

The ruling sided with the SAHRC and Housing Assembly’s contention that current ongoing land occupation is being driven by homelessness, poverty and desperation.

This is in contrast to the City claiming on several occasions that land occupations are being driven by political characters.

“It is the poorest of the poor, the downtrodden, and unemployed who seek refuge in informal settlements and erect structures to provide shelter,” the judgement reads.

“This is especially so during catastrophic times we are forced to endure while the coronavirus pandemic rages,” it adds.

The court has also declared that although confiscated possessions of evicted people must be returned to them, compensation for the loss of personal possessions should also be paid to individuals who have suffered.

“Compensation for loss of personal possessions in the sum of R2 000 per person would be fair in all circumstances. A list of names of affected persons must be provided to the City.”

The court ruling could have far-reaching consequences throughout the country as municipalities worry about ever-increasing lockdown homelessness and land occupations.

National response

The national department of human settlements, which was a respondent in the case, said it had supported the SAHRC’s efforts to prevent the city from evicting people.

“The department’s views are aligned with the council and with section 26 of the Constitution, [the] Disaster Management Act and lockdown regulations. Arbitrary evictions are illegal: a court order must be sought and must be given effect. Without a court order, after people have lived in a space for over 48 hours, then evictions are illegal. This requires vigilance on [the part of] municipalities but, most importantly, a proper plan for urbanisation and the urban poor,” said department spokesperson Yonela Diko.

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Are you affected by this or other eviction issues?

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.

Further reading: