As the National State of Disaster ends, several regulations around evicting tenants from a rental property fall away. Cilna Steyn investigates
The National State of Disaster, in particular the lockdown regulations, had a profound impact on the rental industry. Some of these regulations pertained specifically to rental housing. These included the prohibition of charging a late-payment penalty if the reason for the late payment resulted from the impact of the COVID-19 pandemic on the tenant.
The regulations granted the Rental Housing Tribunal the authority to hear spoliation (the wrongful deprivation of another’s right of possession) applications on an urgent basis. The Tribunal could make appropriate orders when an unfair practice is created in terms of the Rental Housing Act where either landlord or tenant did not comply with the provisions of the lockdown regulations as it pertains to rental housing.
In terms of evictions, the lockdown regulations echoed the provisions of Section 26 of the Constitution in that no eviction may be granted or executed without judicial oversight and the consideration of the personal circumstances of the illegal occupants.
Even though these provisions where not foreign to our law, it placed the new and refreshed emphasis on the provisions of Section 26 of the Constitution.
Many eviction orders that were granted prior to 16 March 2020 could not have been executed without the variation of those specific orders as a result of the lockdown regulations.
The lockdown regulations dealing with evictions afforded an illegal occupant an extra layer of protection over and above the rights already protected in terms of the Constitution.
These extra protection measures in respect of evictions included the court’s ability to stay an order for eviction or demolition until the lapse or termination of the National State of Disaster; meaning that the only evictions which could be executed were those that the courts specifically ordered during the State of Disaster.
Very few evictions were stayed until the end of the National State of Disaster. In most instances, the court considered the personal circumstances of the illegal occupants and allowed execution of the eviction orders at a time that was just and equitable.
The courts had to consider the restriction of movement; the impact of the disaster on the parties; the prejudice to either one of the parties in delaying the execution of the eviction order; the prejudice either party would suffer because of the inability to obtain legal services as a result of the disaster; whether adequate measures would be in place to protect the health of any of the parties affected by the relocation; whether either one of the illegal occupants are causing harm to others or whether a threat to life exists; and whether the party applying for the eviction took all the reasonable steps to, in good faith, come to alternative arrangements that might avoid the necessity of an eviction order.
The National State of Disaster was uplifted by a notice published by the minister of co-operative government, Nkosazana Dlamini Zuma, together with the cabinet on 4 April 2022. As of midnight, on 5 April 2022, there were only a handful of regulations that outlived the end of the National State of Disaster. None of these regulations pertain to evictions or rental housing. Thus, we are back where we were prior to 15 March 2020 in these aspects.
The Rental Housing Act allows the Department of Human Settlement to promulgate regulations of the Rental Housing Act applicable to each individual province. The lockdown regulations with regards to rental housing and evictions had national application and brought a sense of uniformity and stability, nationally.
We are currently no longer labouring under those regulations; and accordingly certain things that were not permitted under the National State of Disaster will no longer be seen to be illegal.
Many tenants enjoyed the benefit of these prohibitions and will accordingly no longer have the protection of these regulations. The Rental Housing Act and the regulations promulgated in terms of this Act remains unaffected by this upliftment of the National State of Disaster and will remain in force and enforceable.
As of 1 May 2020, evictions continued as close to normal in as far as it pertained to evictions granted by court. This position remains exactly the same as it was prior to the State of Disaster and for all practical purposes for any time after 1 May 2020.
There was a false and dangerous misinterpretation of the lockdown regulations that created the false impression that tenants were allowed to withhold rent or pay reduced rent, and that illegal occupants could not be evicted during the National State of Disaster. The result of this was sadly that many landlords suffered serious financial strain.
The upliftment of the National State of Disaster should not have a disastrous impact on the property industry, quite to the contrary, it will most likely boost investor confidence.
It will allow the landlords who previously believed that they had no recourse against non- paying tenants or a tenant in breach of his lease agreement to act in accordance with the law to protect their investment and ensure a favourable return on investment.