The legality of evictions during the lockdown
Author: Kabelo Komana – Candidate attorney
*Article supervised by Hopewell Sathekge – Director
As part of the government’s plan to combat the spread of the Covid-19 pandemic, evictions have been suspended across the country for the duration of the lockdown.
The regulations on the temporary suspension of evictions published in the Government Gazette on 26 March 2020, when the national lockdown commenced, state that “all evictions and the execution of attachment orders, both movable and immovable, including the removal of movable assets and sales in execution is suspended with immediate effect for the duration of the lockdown”.
The suspension not only covers evictions that fall in the lockdown period, but also eviction orders that were obtained before the lockdown commenced. Equally so, if a lease expired within the initial three-week lockdown period, the tenant may not be evicted nor can a new tenant move in because all movements during this period are restricted.
In extending the lockdown, the government published an amendment to the regulations on 16 April which prohibits evictions from any place of residence in terms of Regulation 11CA, which states that “no person may be evicted from their place of residence, regardless of whether it is a formal or informal residence or a farm dwelling, for the duration of the lockdown”.
All evictions, whether of defaulting tenants or unlawful occupiers of land, are governed by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No 19 of 1998 (“the PIE Act”), unless the Extension of Security of Tenure Act 62 of 1997 (“ESTA”) applies.
In terms of Section 11 of ESTA, the court will order the eviction of a person who was an occupier after 4 February 1997, if the consent provided to reside on the land was for a fixed, determinable date and such consent has lapsed.
The PIE Act makes provision for when a landlord wishes to evict a person using his/her property for residential purposes. Section 4(1) of the PIE Act states that a person may be evicted from a property if he/she is an unlawful occupier. An unlawful occupier, in terms of the PIE Act, is a person who stays on a property without the consent of the landlord; or stays on a property without having any right in law to do so; or is not considered to be an occupier in terms of any other law.
The directives and regulations issued by the Minister of Justice, placing restrictions on evictions, are consistent with the call from the United Nations Special Rapporteur on the right to housing, for a ban on all evictions during Covid-19 lockdowns and quarantine worldwide. Similarly, section 12 of the PIE Act also makes provision for the Minister to make regulations which are necessary or desirable in order to achieve the objectives of the act.
Despite these directives and regulations put in place, we have witnessed the South Gauteng High Court in Johannesburg last week ruling that the Johannesburg Metro Police Department broke the law when they removed alleged illegal occupants from a building on 6 April, whereas the Durban High Court ruled in favour of the City of eThekwini which evicted people who illegally occupied a city-owned property on the first day of the lockdown on 27 March. On 16 April, the “Red Ants” demolished shacks and formal structures in Lawley, Johannesburg in what they termed as the prevention of illegal invasion of buildings in contravention of the lockdown regulations.
Currently no one can approach the court to evict illegal occupants or tenants who are defaulting on rental payments, because the courts are not operating ordinarily and only matters considered to be urgent – such as the removal of children, domestic violence matters or bails – will be heard during this time. Therefore, if a person has been living in an informal structure and without any alternative accommodation, their removal from that home will amount to an unlawful eviction and a violation of the lockdown regulations.
The government in its approach to combat the spread of Covid-19 has appealed to the public to stay at home and adhere to the lockdown regulations. The eviction of any person during this period may render them destitute and without a home, which may also threaten the health and wellbeing of those individuals as well as their constitutional rights to access to justice and adequate housing. The inability to hear eviction matters by our courts means that affected parties will have no right of recourse in law and that any evictions carried out may pose a threat to our justice system due to the constitutional rights violations that may occur as a result of lack of provisions made for access to alternative accommodation. Furthermore, any unlawful interruption of the lockdown due to the eviction of an individual may pose a threat to the overall objectives of the government in combating the spread of Covid-19.
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