Is my landlord allowed to evict me and my family during the National Lockdown if we cannot pay our rent? What are my legal rights considering COVID-19?

We are today experiencing day 99 of the South Africa national lockdown. Many people are out of work, and unable to pay their rent, mortgage bonds and so on. COVID-19 came with it a lot of challenges and drastically affected everyone’s lives. During this period, Our Lawyer received many queries regarding the eviction of people from their homes during the national lockdown. As people cannot pay their rent or monthly mortgage bond repayments, eviction is on many people’s minds.

Commercial Rent Defaulters during the National Lockdown

This article does not deal with the eviction from commercial property. For example, it would not apply to you if you are a business owner and cannot afford to pay your commercial rent. Here reference can be made to gyms, fitness centres, nightclubs, and those other businesses specifically prohibited from operating during the lockdown. As well as those businesses which are struggling to survive during the lockdown. In such a case, the current lockdown regulations won’t be of much use. You and your business would be left at the mercy of the court. Nonetheless, we are sure the courts would be sympathetic depending on your specific situation.

The default of mortgage bond payment – Do the Regulations assist?

If you are unable to pay your bond, the bank must first take you to court and ultimately be able to declare your property executable. Once this is done, then the property would be sold at a public auction. If you decided not to leave after the sale, then the new owner would have to consider eviction proceedings. At that point would this article apply to you. Now moving on.

Evictions at the start of the lockdown – What was the law then?

At the start of the lockdown, evictions where prohibited. However, now in alert level 3, things are the same, but not quite. Have a look at this article posted at the start of the lockdown, “Occupants and tenants may not be evicted from their homes during the National Lockdown. This is so even if you are in arrears with your rent or bond, or the lease has been terminated.”

Latest eviction regulations in South Africa – Has things changed?

In terms of the current Disaster Management Act Regulations, eviction orders are to be stayed and suspended until the last day of the alert level 3 period. This only relates to your home or land. The court dealing with the eviction matter may order that the eviction not be stayed and suspended if it decides that it is not just and equitable to do so until the last day of the Alert Level 3 period. However, if the court determines it isn’t just and equitable to suspend the eviction order, it may order that the eviction takes place during level 3. The regulation reads as follows:
  1. (1) Subject to subregulation (2), a person may not be evicted from his or her land or home during the period of Alert Level 3 period.
(2) A competent court may grant an order for the eviction of a person from his or her land or home in terms of the provisions of the Extension of Security of Tenure Act, 1997 (Act No. 62 of 1997) and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998 (Act No, 19 of 1998): Provided that an order of eviction may be stayed and suspended until the last day Of the Alert Level 3 period, unless a court decides that it is not just and equitable to stay and suspend the order until the last day of the Alert Level 3 period

Let us summaries: What does this mean to the ordinary tenant when it comes to evictions during the lockdown?

In short, your landlord, or owner of the property may approach the court to have you evicted from your home. However, should the court determine that you are an unlawful occupier of the land or premises, it would grant an eviction order, but make an order that it remains suspended until the end of alert level 3 unless the court decides that it would be just and equitable to order otherwise. Nothing, however, prevents the Minister from extending the eviction prohibition in alert level two or one when the time arrives. We will, however, have to wait and see. Read on to learn more about how evictions work. Evictions from your home must be lawful For an eviction to be lawful, the person evicting you must obtain a court order. Without a court order, the sheriff of the Court cannot remove you from your home. You can, therefore, refuse to vacate your home. During the lockdown, the sheriff of the court cannot remove you, even if he or she comes with a court order. Constitutional provisions regarding evicting people from their homes Section 25 of our Constitution states the following: “25(1) No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.” Furthermore, section, section 26 (3) of our Constitution states: “No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.” Prevention of Illegal Eviction from Unlawful Occupation of Land Act of 19 of 1998 Therefore, for someone to be evicted, an application must be made to the court. The law applicable is the Prevention of Illegal Eviction from Unlawful Occupation of Land Act of 19 of 1998. It came into effect on 5 June 1998. In it, it lays down the procedure for the eviction of unlawful occupiers. In short, the owner or person in charge of the premises must follow the processes in the Prevention of Illegal Eviction from Unlawful Occupation of Land Act. It entails giving you notice to appear in court to say your say. The court would then decide whether or not you should be evicted after hearing both sides of the story. We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well. Should you require business advice or services, feel free to click on these links: Business SA | Private Legal | Envirolaws  
Posted on by Telelaw

Is my landlord allowed to evict me and my family during the National Lockdown if we cannot pay our rent? What are my legal rights considering COVID-19?

We are today experiencing day 99 of the South Africa national lockdown. Many people are out of work, and unable to pay their rent, mortgage bonds and so on. COVID-19 came with it a lot of challenges and drastically affected everyone’s lives. During this period, Our Lawyer received many queries regarding the eviction of people from their homes during the national lockdown. As people cannot pay their rent or monthly mortgage bond repayments, eviction is on many people’s minds.

Commercial Rent Defaulters during the National Lockdown

This article does not deal with the eviction from commercial property. For example, it would not apply to you if you are a business owner and cannot afford to pay your commercial rent. Here reference can be made to gyms, fitness centres, nightclubs, and those other businesses specifically prohibited from operating during the lockdown. As well as those businesses which are struggling to survive during the lockdown. In such a case, the current lockdown regulations won’t be of much use. You and your business would be left at the mercy of the court. Nonetheless, we are sure the courts would be sympathetic depending on your specific situation.

The default of mortgage bond payment – Do the Regulations assist?

If you are unable to pay your bond, the bank must first take you to court and ultimately be able to declare your property executable. Once this is done, then the property would be sold at a public auction. If you decided not to leave after the sale, then the new owner would have to consider eviction proceedings. At that point would this article apply to you. Now moving on.

Evictions at the start of the lockdown – What was the law then?

At the start of the lockdown, evictions where prohibited. However, now in alert level 3, things are the same, but not quite. Have a look at this article posted at the start of the lockdown, “Occupants and tenants may not be evicted from their homes during the National Lockdown. This is so even if you are in arrears with your rent or bond, or the lease has been terminated.”

Latest eviction regulations in South Africa – Has things changed?

In terms of the current Disaster Management Act Regulations, eviction orders are to be stayed and suspended until the last day of the alert level 3 period. This only relates to your home or land. The court dealing with the eviction matter may order that the eviction not be stayed and suspended if it decides that it is not just and equitable to do so until the last day of the Alert Level 3 period. However, if the court determines it isn’t just and equitable to suspend the eviction order, it may order that the eviction takes place during level 3.

The regulation reads as follows:

  1. (1) Subject to subregulation (2), a person may not be evicted from his or her land or home during the period of Alert Level 3 period.

(2) A competent court may grant an order for the eviction of a person from his or her land or home in terms of the provisions of the Extension of Security of Tenure Act, 1997 (Act No. 62 of 1997) and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998 (Act No, 19 of 1998): Provided that an order of eviction may be stayed and suspended until the last day Of the Alert Level 3 period, unless a court decides that it is not just and equitable to stay and suspend the order until the last day of the Alert Level 3 period

Let us summaries: What does this mean to the ordinary tenant when it comes to evictions during the lockdown?

In short, your landlord, or owner of the property may approach the court to have you evicted from your home. However, should the court determine that you are an unlawful occupier of the land or premises, it would grant an eviction order, but make an order that it remains suspended until the end of alert level 3 unless the court decides that it would be just and equitable to order otherwise.

Nothing, however, prevents the Minister from extending the eviction prohibition in alert level two or one when the time arrives. We will, however, have to wait and see. Read on to learn more about how evictions work.

Evictions from your home must be lawful

For an eviction to be lawful, the person evicting you must obtain a court order. Without a court order, the sheriff of the Court cannot remove you from your home. You can, therefore, refuse to vacate your home. During the lockdown, the sheriff of the court cannot remove you, even if he or she comes with a court order.

Constitutional provisions regarding evicting people from their homes

Section 25 of our Constitution states the following:

“25(1) No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.”

Furthermore, section, section 26 (3) of our Constitution states:

“No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.”

Prevention of Illegal Eviction from Unlawful Occupation of Land Act of 19 of 1998

Therefore, for someone to be evicted, an application must be made to the court. The law applicable is the Prevention of Illegal Eviction from Unlawful Occupation of Land Act of 19 of 1998. It came into effect on 5 June 1998. In it, it lays down the procedure for the eviction of unlawful occupiers.

In short, the owner or person in charge of the premises must follow the processes in the Prevention of Illegal Eviction from Unlawful Occupation of Land Act. It entails giving you notice to appear in court to say your say. The court would then decide whether or not you should be evicted after hearing both sides of the story.

We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well.

Should you require business advice or services, feel free to click on these links:

Business SA | Private Legal | Envirolaws

 

Related Post

13 Relocation with my minor child to India, Mumbai (Consent and Refusal) – Advocate Muhammad Abduroaf The world is becoming a much smaller place, and technology plays a huge role. People are moving across the world for employment, love and happiness, something that was not the norm a few decades ago. There is no reason why you should remain in South Africa if you can find a better life for yourself and your family overseas. Moving overseas may provide you with the quality of life you want or the possibility of experiencing things you always wanted. The same applies to your child or children relocating with you. Relocation of your minor child to Mumbai, India If you are single and do not have any minor children, then moving around the world would not be too complicated. All you need to do is ensure that you have the necessary travel documentation and travel ticket (and spending money), and off you go. However, if you want to travel with your minor children (for example, ages seven or eight) or relocate to another country, things may not be that simple. Firstly, if there is another parent, and he or she has parental responsibilities and rights, then his or her consent is required. For example, let us say you live in Benoni or Empangeni, South Africa, and you want to relocate to Mumbai, India, you would require the other parent’s consent to leave South Africa with your minor child. This can cause challenges, especially if the staying parent (in South Africa) does not agree to the relocation. What about Passport Consent to travel or relocate to Mumbai, India? The same applies when it comes to your minor child applying for a South African passport to relocate to India, or any country. Both parents who have parental responsibilities and rights of guardianship will have to consent to the minor child’s passport application as well. In this regard, both parents have to be at the Department of Home Affairs (or the relevant bank that also assists with passport application) when making the Application with the minor child. This can be challenging if you have a disinterested parent who does not want to cooperate with the passport application. As you will see later, legal action would need to be taken. What are the steps to follow when I want to relocate to Mumbai, India with my minor child? There is there another parent. To simplify the process for relocation, the first step would be to receive the other parent’s consent in principle for the relocation and that he or she will co-operate in this regard. Once that has been resolved, the parent relocating would need to make the appointment for the minor child’s passport application as well as the application for the relevant VISA. Each country has different requirements; however, seeing that it is a relocation, you need to apply for the correct VISA. For that, you need the Passport. Once the visa and travel arrangements have been finalised, the parent remaining behind will sign a parental consent letter for the international travel. That letter can be found on the Department of Home Affairs website. Basically, the parent remaining behind would state that he or she gives consent for the minor child to leave the Republic of South Africa and travel and/or relocate to Mumbai, India. What can I do if the other parent does not want to consent to the minor child’s relocation to Mumbai, India? If the parent remaining in South Africa does not want to consent to the minor child’s passport application and/or his or her relocation to Mumbai, India, then you would need to approach the Court. The Court, as upper guardian of the minor child, may order that the parent’s consent for the passport application and relocation be dispensed with. What this entails is submitting Court documents explaining why you want to relocate to Mumbai, India. The other parent would also have an opportunity to give reasons why he or she objects. At the end of the process, the Court would determine what is in the minor child’s best interests. If it is in the minor child’s best interests to relocate to Mumbai, India, the Court would make it possible despite the issue of consent or refusal. What is the first step I should take if the other parent does not want to consent to the minor child’s passport application and/or relocation to Mumbai, India? If the other parent does not want to consent to the passport application and/or the relocation of the minor child to Mumbai, India – in that case, we suggest you approach an attorney or advocate (trust account) to assist you with the legal process. He or she would then contact the other parent explaining the reasons for the relocation and request the necessary consent. If the parent remaining in South Africa does still not agree to the passport application and/or to the relocation to Mumbai, India, then the attorney or advocate will proceed to take the matter to court. The legal route can be expensive. However, it is necessary to make the relocation of the minor child possible. You may also attend to the legal process yourself. Getting legal assistance or help with your relocation application to Mumbai, India If you require legal assistance or representation with relocating to Mumbai, India due to the other parent not cooperating or providing consent, then feel free to contact us for assistance. The Firm Advocate, Muhammad Abduroaf, deals with these types of matters.

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Domestic Violence Questions and Answers

We introduced this Domestic Violence Questions and Answers page for you to post questions you may have on the topic. For example, if you want to know whether you should proceed with an application for a protection order, pose a question with some background facts. At the same time, should you be able to assist others who posted questions below, requiring some advice on Domestic Violence, please proceed and reply to their comments. In that manner, we would all be able to assist each other and increase our online knowledge base. Therefore, although we are a legal consultancy, specialising in family law, you may have problems or experiences that we have not encountered. Let us share our knowledge of Domestic Violence.
There are various other family law resources on this website that you may find useful. For example, there is a downloadable child maintenance calculator. The resources may assist you with whatever questions you have, or information you require on Domestic Violence. Therefore, after posting your question, or any time after, have a look at the useful resources and information on our website. Some of these resources are listed hereafter.
Articles and Q&A
 There is a range of legal articles on this website dealing with various family law issues. Some of these articles are straight forward, outlining the legal position on a family law-related topic. For example, how to apply for child maintenance, or how to get divorced.  Other articles are written in the form of answering a specific legal question. For example, do I pay maintenance if I am unemployed, or what do I do if I want to leave the country with my child, and the other parent does not want to provide consent? Those articles are in blog format. This means that you are welcome to comment or pose questions to increase our knowledge base. The clear idea behind our website is that we want to make family law legal information more accessible and available to the public.
Downloadable resources
 We created some downloadable resources for free on this website. They are: 1 Free Basic Will Tool Kit 2. Free Shariah Will Template 3. Free Divorce Starter Tool Kit 4. Free Child Maintenance Calculator 5. Free DIY Urgent Child Contact Toolkit Feel free to download these useful resources. Click on the links above, and complete the online purchase process. The purchase price is R 0. Thereafter, a downloadable link would be emailed to you. Once you received the email, download it as soon as possible as the link would expire after two months. We hope that we assisted you with any queries you had on Domestic Violence. If not, feel free to arrange a consultation with us.
Sharing is Caring
 If you find any of our articles and posts interesting, or possibly useful to others, please like and share it on Social Media by clicking on the icons below. Should you require any other legal services and advice, not related to family law, visit Private Legal.         
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