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

What are child custody disputes? Read some questions and answer from mother and father.

Child custody disputes are one aspect of family law that keeps both lawyers and the courts busy. Although child custody disputes may seem simple in the eyes of the outside observer, it is not always so for the parties involved.  Parents care much more for their children than they do for worldly things.  Therefore, should they experience problems concerning their children, it often causes a lot of anxiety and stress. Below are some questions mothers and fathers usually pose online when it comes to child custody disputes. Feel free to pose your questions below.

What are the rights of an unmarried father to his children?

Fathers of children born out of wedlock do not automatically have rights towards their children. For you to form part of such a child’s life you need to fulfil the requirements of section 21 of the Children’s Act, which in short states:
  • At the time of the child’s birth, you are living with the mother in a permanent life-partnership; and
  • You contribute or have attempted in good faith to contribute to the child’s upbringing for a reasonable period;
  • You contribute or have attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.

May an unmarried father be the primary caregiver of a child born out of wedlock?

Many fathers would have been married to the mother. Others would have meaningfully partaken in the child’s life from birth. Therefore, there should generally be no difference between a child born from a marriage and a child born outside of marriage when it comes to fathers’ rights.  To take the statement further, it is possible for a father of a child born out of wedlock to be the primary caregiver of the child, where the mother is only entitled to see the child at certain times and circumstances, or not at all.

How hard is it for a father to get custody or primary care over a child?

If the mother has primary care over a minor child,  and the father has parental rights and responsibilities over such a child,  he can obtain custody or primary care over the child.  What the law looks at is what is in the child’s best interest should such a request be made.  If it is indeed in the child’s best interest for the father to have custody over the minor child,  then, under those circumstances, the court would make such an order.

How can a father get full custody of his kids?

If the mother has full custody over the minor child, a father would have to prove that such a situation is not in the minor child’s best interests.  Therefore, he would have to make a case for the minor children to be in his primary care or that he should have full custody over the child.

Does the court make use of child care experts when deciding who should have custody?

For a court to determine whether or not to change the primary caregiver of the minor child,  the court may require assistance from other parties.  For example, a social worker,  psychologist,  or the office of the family advocate.  This is not a legal requirement. However, a court would be guided by other experts especially so if the primary care of the minor child is to change.

Does the dad ever get custody?

Fathers often get custody over minor children. In other words, the child would primarily reside with the father. You could say he would have primary care over the minor child. This can be done by the parents agreeing to the father having custody or primary care.  The other way is if the father approaches the court and the court determines that it is in the child’s best interest if the father has custody over the child or primary care.

What can be used against you in a custody battle?

The ultimate decider on the outcome of a child custody battle would be what is in the child’s best interest.  Therefore, various factors have to be considered in determining what is in the child’s best interest.  If a party can prove that a child is being unreasonably neglected while in the other party’s care,  then that would be information that can be used against the other party.  One such factor would be the abuse of alcohol,  drugs,  and abusing and neglecting the child.

How often do fathers get full custody?

Fathers often get full custody in child care matters.  The law does not have a preference over whether or not a father should have custody or whether or not a mother should have custody over a minor child.  What the law is concerned with,  is what is best for the minor child.  Many fathers can better care for a minor child than the mother.  In such a case the court would grant full custody to the father.

Why do mothers have more rights than fathers?

In most cases, it is the mother who takes primary care over a child after birth.  This is so as a child needs the care of a mother from birth. A mother would usually breastfeed a child and the father would be the one who takes on other responsibilities. This role of the mother as the primary caregiver for the child usually continues until the child can look after his or her self.  This role of caring for the child works well if both the father and mother and children live in the same household.

What happens when parents separate in child custody matters?

When parents separate or do not live together, the issue arises as to where the child should live.  In most cases, the parties would agree that the child should reside with the mother.  When they do not agree on this issue the matter usually makes its way to the court.  This is when the court will have to determine what is best for the minor child. If the court determines that the minor child would best be cared for by the mother, then the court would make such an order.  However, if the court determines that even though the mother cared for the minor children since their birth and now unable to do so, the court would have to determine what is best for the child. If the father should care for the minor child,  then, under those circumstances, the court would order that the primary care of the minor children be awarded to the father.

What do judges look for in child custody cases?

It would be difficult to give a general overview of what judges look for in child custody cases. This is so as each family is different and the facts surrounding a custody case would be different.  However, the court is guided by the best interest of the child principle.  The court would have to consider the age of the child, his or her needs, as well as the capability of either parent properly caring for the minor child.  In many cases, the issues that the court will have to look at will be simple, but this is not always the case.

Why is it so hard for fathers to get custody?

Generally, fathers are not the primary caregivers of minor children. If a father was the primary caregiver of a minor child since his or her birth, and should a dispute arise sometime later, then under the circumstances, the father’s case would be much easier. However, because mothers are generally the primary caregivers of minor children and they looked after the children for quite some time and has gained a lot of experience and knowledge into how to care for a specific child, it would be easier for the mother, under those circumstances, to convince the court that the child would be best cared for should he or she remain in her care.

What makes a mother unfit in the eyes of the court?

A mother would be seen as being unfit if she neglects the child. For example, she abuses alcohol and does not feed the child or clean the child. Furthermore, she would not care for the child reasonably. The child would be allowed to miss school, or not do homework etc. Objectively speaking, and considering everything, the child is being neglected.

How can a woman lose custody of her child?

She can lose a child if she proves that she cannot take care of a child. The child is being neglected in her care and being abused in the process.

Why do mothers automatically receive custody?

As mothers give birth to a child and usually care for them from their birth, it is easy to demonstrate that they can care better for the child than the father. This is not always factually the case and a father can prove that he can care for the child much better than the mother and obtain custody over the child.   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

IN   THE   HIGH   COURT OF SOUTH   AFRICA (WESTERN CAPE DIVISION, CAPE TOWN) CASE NO:                                /2024 In the matter between: KONRAD JOSEPH SCHÜLER                                                                                      (Applicant) Identity number: 590504 5229 08 0 and VANESSA GAIL SCHÜLER                                                                                         (Respondent) Identity number: 600904 0208 08 9   NOTICE OF MOTION   TAKE NOTICE that the Applicant intends to make an Application to the above Honourable Court for an Order in the following terms:
  1. The Applicant’s non-compliance with the requirements of forms, service, manner of service and time periods provided in the Uniform Rules of this Honorable Court be condoned insofar as necessary;
  2. Prior to any proceeds of the sale of portion 19,346, Koppersfontein, Western Cape (the property), being paid to the Respondent:
    • the Transferring Attorneys shall retain the sum equal to the outstanding debt of the former joint estate of the parties referred to in clause 3.1.3 of the Consent Paper (the debt), which was made an Order of the Regional Court for the Regional Division of the Western Cape, held in Cape Town, on 24 October 2023, under case number 165/2023 (the divorce Order) and utilise it to settle the debt;
    • The Transferring Attorneys shall retain an amount equal to the sum of all payments made by the Applicant and/or debited from his Standard Bank Account calculated from 01 November 2023, which was used to pay the Respondent’s half of the debt, and reimburse the Applicant therewith on behalf of the Respondent;
  3. The motor vehicle referred to in clause 4.1.2 of the Divorce Order, being a 2011 Hyundai Ix35 2.0 Gls/Executive, with registration number CAA 412805, shall be retained by the Applicant as his sole and exclusive property for which right the Applicant shall forthwith pay the Respondent the sum of R 3 661 (three thousand six hundred and sixty-one rand); and
  4. Costs of this Application; and
  5. Further and/or alternative relief.
  TAKE NOTICE FURTHER that the Applicant has appointed the firm ADVOCATE MUHAMMAD ABDUROAF, with its details as stated below as his/her Legal Practitioner of record and address at which he/she shall accept notice and service of all process in these proceedings. KINDLY TAKE NOTICE FURTHER that if you intend opposing the Application, you are required to:
  • inform the Applicant’s Legal Practitioner within 10 (ten) days of receipt hereof of your intention to do so; and
  • fifteen days after you have so given notice of your intention to oppose the Application, to file your answering affidavit, if any; and further;
  • that you are required to appoint in such notification an address referred to in rule 6 (5) (b) at which you will accept notice and service of all documents in these proceedings.
KINDLY BE ADVISED FURTHER, that if no such notice of intention to oppose is given, the Application will be made on a date and time to be provided by the Registrar of this Honourable Court. TAKE NOTICE FURTHER that the Founding Affidavit of KONRAD JOSEPH SCHÜLER will be used in support of this Application. TAKE NOTICE FURTHER that the Applicant consent to service of any process in these proceedings via email using the email address [email protected].    DATED AT CAPE TOWN ON THIS      DAY OF JANUARY 2024.   _______________________________ Per: Adv. M Abduroaf (Legal Practitioner of the Applicant) Trust Account Advocate – An advocate as contemplated in section 34(2)(b) of the Legal Practice Act, 28 of 2014 (the Act) Chambers.: The Pinnacle | Suite 702, 7th Floor Corner Strand, Burg & Castle Streets | Cape Town, 8001 Tel.: +2721 111 0090 Email.: [email protected] (Email Service) High Court Box 115 Ref.: M22081/Schüler   To:           THE HONOURABLE REGISTRAR OF THE WESTERN CAPE HIGH COURT HIGH COURT CAPE TOWN     And to:    VANESSA GAIL SCHÜLER      (Respondent) Ruby Estate, Gems 5 Unit 4, Burgundy Estate CAPE TOWN ________________________O0O___________________      

Posted on by Telelaw

Do you require a video legal advice consultation?

Click here and schedule one today!