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south africa Archives | Eviction Lawyers South Africa

Lockdown Level 3: This is what you can & cannot do

By | COVID 19, Evictions

Minister of Cooperative Governance and Traditional Affairs Nkosazana Dlamini-Zuma on Thursday released the regulations governing lockdown Level 3, which gets under way on 1 June

She said the entire country will move to Level 3, regardless of whether it is a Covid-19 hotspot. She added, though, that additional restrictions may apply for districts with a high level of infections.

Level 3 regulations permit the sale of liquor between Monday and Thursday, from 09:00 and 17:00, but tobacco sales remain prohibited.

Dlamini-Zuma said, as the economy reopens, practising hygiene measures, such as hand washing and maintaining a safe social distance, will be “most important” to fight Covid-19 – in absence of a cure or vaccine.

Here’s everything you will be allowed to do, and what you won’t, when Level 3 commences on 1 June:

You will be allowed to buy liquor

Trade and Industry Minister Ebrahim Patel said alcohol consumption will be allowed from Mondays to Thursdays between 09:00 and 17:00. Liquor deliveries through e-commerce will be allowed, but no on-site consumption of alcohol at outlets will be allowed.

You must always wear a cloth mask

Dlamini-Zuma said anyone who enters a work, public space or public transport must wear a cloth face mask or homemade item that covers the nose and mouth. Anyone who exercises outside also has to wear a cloth mask the entire time, she said.

You may NOT have social gatherings, or visit friends or family

Dlamini-Zuma said all gatherings remain prohibited, unless they are a church gathering, or an agricultural auction.

People will still be encouraged to stay at home, and will not be allowed to visit friends or family.

You may NOT travel across provincial boundaries, unless you have permission

Dlamini-Zuma said experiences in the Western Cape, Eastern Cape and Limpopo showed that interprovincial travel contributed to community transmissions, which is why it remains prohibited.

She said movement will be limited across provinces, metropolitan areas, districts and hotspots, except for people travelling to start work, moving to new residences, or to care for an immediate family member. People travelling will, however, require relevant permits.

She said pupils, students or teachers, who have to return to school, will be allowed to travel between provinces.

Dlamini-Zuma said movement between districts and localities will be permitted in areas that are not Covid-19 hotspots, This, however, will only be to travel to work, or to buy or obtain available goods, services and medical attention.

You may travel for funerals

Dlamini-Zuma said interprovincial travel for funerals will be allowed as long as they are close family members.

Those permitted to travel for funerals

  • Legal spouses or partners of the deceased
  • Children or grandchildren of the deceased, whether biological, adopted or stepchildren
  • Children-in-law of the deceased
  • Parents of the deceased, whether biological, adopted or step-parents
  • Siblings, whether biological, adopted or step-brothers or sisters of the deceased
  • And/or grandparents of the deceased.

Dlamini-Zuma said station commanders of all police stations are charged with the duty to keep meticulous records with regard to funerals and the number of attendees.

Domestic workers may return to work

Dlamini-Zuma said domestic workers will be allowed to return to work under Level 3.

You will be allowed to exercise for longer hours

Dlamini-Zuma said people will be allowed to exercise between 06:00 and 18:00 as long as it is not done in organised groups. People will have to adhere to health protocols and social distancing measures during this time.

She said public training, fitness and recreation facilities remain closed, except those conducting non-contact sports matches, without spectators.

Minister in the Presidency Jackson Mthembu said further clarity around whether beaches will be reopened, or surfing permitted, will be addressed by the Arts and Culture Minister at a later stage.

Workplace gatherings will be allowed

Workplace gatherings for work purposes will be permitted under strict conditions and the observance of health, hygiene and social distancing protocols, Dlamini-Zuma said.

She said employers have to ensure the 1,5 metres distance is maintained among employees, and that a limit on the number of people in the workplace be applied.

You may NOT go to bars, cinemas or restaurants

Dlamini-Zuma said restaurants, shebeens, taverns, night clubs, bars, cinemas, theatres, fêtes, bazaars; casinos and similar places remain closed.

You may go to hotels under strict conditions

Dlamini-Zuma said hotels, lodges, bed and breakfasts, timeshare facilities, resorts and guest houses remain closed, except those accommodating confined tourists, people lodging for work purposes, and persons in quarantine or isolation.

You may go to places of worship, such as churches and mosques

Dlamini-Zuma said religious counselling has been declared an essential service, and religious gatherings, such as church services, will be permitted as long as there are fewer than 50 people attending.

She said places of worship will have to maintain a 1,5 metre social distance between congregants, masks have to be worn at all times, and hands have to be washed.

She said places of worship must screen all participants attending, and must be regularly sanitised.

Dlamini-Zuma encouraged those above 60 not to attend worship services as they are at high-risk.

You may fly under strict conditions, and international travel remains limited

Dlamini-Zuma said limited domestic air travel will be permitted to allow employees to travel. She said a date for the reopening of domestic air travel will be made by the Minister of Transport.

Dlamini-Zuma said the country’s international ports remain closed, unless for the transportation of fuel cargo and goods, and for humanitarian operations, repatriations, evacuations, medical emergencies, and movements for diplomatic and international organisations.

You will be allowed to collect your food and go to a drive-through

Patel said the sale of hot food will again be permitted, but this will be for pick-up only. It means that people will also be allowed to collect food at fast food outlets, and that drive-throughs will reopen.

You may NOT be evicted

Dlamini-Zuma said because the country “cannot afford” any more of the vulnerable on the streets, evictions of tenants remain prohibited.

She did, however, add that, because rental income is also an important livelihood stream for some, a competent court may grant an eviction order, provided it is just and equitable.

You may NOT buy cigarettes

Dlamini-Zuma said the sale of tobacco, tobacco products, e-cigarettes and related products remain prohibited, except when it is destined for the export market.

You will likely be allowed to return to work

Patel said most sectors of the economy will reopen under Level 3, with a limited number of industries remaining closed as they pose a risk to the spread of Covid-19.

You may buy almost anything

Patel said all retail sales will reopen, including for household appliances and clothing sales, unless indicated – such as tobacco sales.

Source: All4Women (emphasis by SD Law*)
SD Law is a law firm of Cape Town and Johannesburg attorneys. If you need any help interpreting the laws of lockdown please contact us on 086 099 5146 or sdippenaar@sdlaw.co.za.
Arial view of Marikana settlement in Cape Town.

Marikana settlement – Landmark judgement appealed

By | Evictions

Marikana settlement near Cape Town International Airport.

 

A landmark judgement in the Western Cape at the end of August this year dismissed an application to evict occupants from the so-called Marikana settlement near the Cape Town International Airport and ordered the City of Cape Town to negotiate a purchase price to buy the land or expropriate the land instead. Copper Moon Trading, the owner of Erf 149, Phillipi, has now appealed to have these rulings overturned.

 

It is asking for the State to either purchase the property at its market-related value, as determined by an arbitrator, or pay Copper Moon damages to the same value. Alternatively, Copper Moon is seeking to have the occupiers evicted and for these costs to be borne by the State.

 

Marikana settlement

 

The City of Cape Town has applied for leave to appeal.

Simon Dippenaar & Associates with the assistance of Adv Ralph Kujawa, acting pro bono on behalf of the approximately 10 000 unlawful occupants of Erf 149, part of the Marikana settlement, has called on the Court to refuse the appeal with costs. A costs order in favour of indigent litigants is not unprecedented and has been supported in previous judgements to encourage attorneys to take on more pro bono work. It also sends a strong message to applicants that they could have costs awarded against them even if their opponents are not incurring legal costs.

 

“The State has not provided alternative housing plans and the eviction of so many people would create a humanitarian disaster. This is unacceptable in a constitutional democracy such as ours where, in terms of the Constitution, the Government is required to protect the property rights of its citizens and to provide housing. Eviction is not only unrealistic, it is unthinkable,” says Simon Dippenaar. “We have to strike a balance between the constitutional rights of the property owners and the occupiers.”

 

Dippenaar and Kujawa, who officially went on record at the Constitutional Court at the end of October, are championing the human right to housing and protection for the most vulnerable in society, including the Marikana residents.

 

The case forces government to face up to the plight of the homeless and highlights the extreme poverty and desperation of many South Africans. An estimated 60 000 people have been living on the 40-hectare Marikana land since 2013. They have nowhere else to go.

 

 

About Simon Dippenaar & Associates

Simon Dippenaar has a BBusSc LLB degree and Professional Diploma in Legal Practice from the University of Cape Town, and is an admitted attorney of the High Court of South Africa. He is the founder and director of private legal practice, Simon Dippenaar & Associates, with offices in Cape Town and Gauteng representing South African and international clients.

 

Simon’s dedication, diplomacy and compassionate approach extend from Family Law to each of his fields of expertise and have earned him a reputation for cracking cases where his competitors have failed. His associates are appointed for their skills specific to their areas of practice.

 

Simon is committed to serving his community and the less fortunate, increasing access to justice by making legal expertise available to deserving cases. He is on record in one of South Africa’s biggest mass eviction cases in Marikana, representing, pro bono, the unlawful occupiers and their constitutional right to adequate housing.

 

Learn more about Simon Dippenaar

Lease Agreement Template South Africa

Lease Agreement Template – Free Download

By | Lease Agreement | No Comments

Lease Agreement Template Free Download

You have rented out your property but now, for whatever reason, you wish to return and take up occupancy. Are you within your rights as the property owner to remove the tenant, and what do you do if they refuse to vacate?

 

What to do if you want to move back into your property while your tenant still has occupancy

There are two issues to consider. Firstly, your tenant is the current lawful inhabitant and you want to serve a notice to quit, so that you can resume occupancy. The process for this is straightforward. Secondly, what if the tenant refuses to leave, despite due legal process of eviction having been followed? This is a different and more complicated scenario. Let’s look at each in turn.

 

Lawful eviction

To some extent, your rights as landlord depend on what is in the lease agreement. (We’ve written before about the importance of having a written lease. See Tips for a happier tenancy and The Consumer Protection Act and rental agreements.) Under PIE, your tenant is protected against illegal eviction. The Consumer Protection Act (CPA) provides a further layer of protection. In terms of the CPA a tenant is protected for the full term of the lease if there is no material breach on their part. The landlord can cancel the lease if there is a material breach of contract by giving 20 business days’ notice of the breach; but the landlord must give the tenant the opportunity to remedy the breach. Provided they do so, you don’t have the right to evict the tenant and move back in until the end of the contract.

However, when drawing up the lease, it is permissible to include a clause allowing the landlord to cancel the lease, with two months’ notice, if the landlord elects to sell the property or move back in. If the tenant agrees to this clause and signs the contract, then there does not need to be a material breach for the landlord to give notice of eviction, nor is the landlord in breach of any aspect of the tenant’s rights. Without this clause, the tenant is protected upon the sale of the property and the sale can have no impact on the tenant’s right to hold the lease until it expires.

So if you are drawing up a lease agreement for a new tenant and you think you may wish to sell the property in future or resume occupancy for your own purposes, it’s probably wise to include a clause of this nature. But what if you have existing tenants and you have legally given them notice to quit the property, within the terms of the lease and the CPA (perhaps there has been an unremedied breach), and they won’t budge? This is a different situation altogether. What can you do?

 

Unlawful occupancy

At this stage the tenant becomes an unlawful occupier. If you have cancelled the lease lawfully you are entitled to move back into your property, even if the unlawful occupier remains on the premises – effectively cohabiting (whether you would want to do this or not is a different matter). The situation can deteriorate and may result in unpleasant consequences for the landlord, even if there is no misconduct. A tenant with nowhere else to go may behave in a desperate manner, even laying charges of theft, harassment or intimidation against the landlord. Or they may insist the landlord find them alternative accommodation. However, it is not the landlord’s responsibility to re-house the tenant, and this has been tested in the courts.

In Blue Moonlight Properties v Occupiers of Saratoga Avenue, the court found that the property owners’ rights, under the Constitution, should be balanced with those of the occupiers, and ruled that the landowners’ right to equality would be infringed if the state were to burden them with providing alternative accommodation without compensation.

This ruling notwithstanding, if you are in this trying situation, it is not enough to know you are in the right, legally. You may need professional help to reclaim your property. You certainly don’t want to find yourself defending an unsubstantiated accusation of harassment, nor do you want to be share your home indefinitely with someone you didn’t invite.

 

We can help with evictions and your lease agreement

SD Law & Associates are experts in property law and we have vast experience of helping landlords and tenants alike reach satisfactory resolution on a wide range of property disputes, including evictions. Let us help you today with your eviction dispute and lease agreement. Contact Simon on 087 550 2740 or email sdippenaar@sdlaw.co.za.

 

Lease Agreement – Free Download

Lease Agreement Template – Click here (Right click to save PDF)

 

Recommended reading

Original article taken from SDLaw.co.za