Article was written by Blake Liam Hamilton and Wade O’Connor, Candidate Attorney’s, checked and released by Chantelle Gladwin-Wood.
9 July 2021
Introduction
This article discusses whether a landlord may evict a residential tenant under the various adjusted alert levels, more specifically, Adjusted Alert Level 1, up to and including, Adjusted Alert Level 5 (the “Adjusted Alert Levels”).
There has been a great deal of ambiguity and misunderstanding around the Regulations to The Disaster Management Act (hereinafter referred to as the “Regulations”) governing evictions, and the writers of this article seek to provide clarity in relation to the above.
Evictions under the Adjusted Alert Levels
With regards to evictions under the above Adjusted Alert Levels, the Regulations apply almost indistinguishably, regardless of the level that we find ourselves in. The Disaster Management Act, 2002: Amendment of Regulations issued in terms of Section 27(2), reads as follows:
“A person may not be evicted from his or her land or home or have his or her place of residence demolished for the duration of the national state of disaster, unless a competent court has granted an order authorising the eviction or demolition.” (our emphasis)
Thereafter, it states, as follows:
“A competent court may suspend or stay an order for eviction or demolition contemplated in subregulation (1) until after the lapse or termination of the national state of disaster unless the court is of the opinion that it is not just or equitable to suspend or stay the order having regard, in addition to any other relevant consideration, to-“ (our emphasis)
Analysis of the Regulations
The Regulations states that evictions may occur under the Adjusted Alert Levels, provided that a competent court has granted an order for same after specifically considering whether it is just and equitable during the state of national disaster. If a court order is not furnished by a competent court, then the eviction of a tenant shall not be permissible. Failing to acquire same shall be construed as an illegal eviction and a tenant shall have recourse to the appropriate legal mechanisms.
Furthermore, as per the court has the autonomous authority to “suspend or stay” an order for eviction or demolition. In amplification of the aforesaid, a court may halt the eviction of a tenant, “until after the lapse or termination of the national state of disaster”. As from 27 June 2021, this may be until the last day of Alert Level 5 or if the President had to proclaim the termination of the national state of disaster, whichever may come first.
However, as previously stated herein, the court has liberty as to whether it would want to stay or suspend the eviction order, as it may not be “just or equitable” to suspend or stay same, taking into account numerous factors, including, but is not limited to, the tenants right to have a place of residence in order to protect their own wellbeing, access to alternative residence, the tenants behaviour, and the steps taken to make alternative arrangements for settlement of rent, so as to prevent the need for relocation of the tenant.
Conclusion
The Regulations, in light of our national state of disaster, are clear and decisive. Although obtaining an eviction order can be quite cumbersome and costly, the Regulations have not altered the status quo.
Value
This article serves to shed some light on the fairness of Section 27 (2) of the Disaster Management Act and the Regulations thereto (as amended).
DISCLAIMER:
The information contained herein is a summary and overview of relevant legislation and regulations. Due to time and space limitations, details affecting the businessperson may not have been covered. The reader is advised to consult an attorney for specific advice, information, and guidance on new and existing legislation and regulations. This article should not be treated as a substitute for advice. Professional advice must therefore be sought in relation to any aspect referred to in this article. While every care has been taken in the compilation of this article, no responsibility of any nature whatsoever shall be accepted for any inaccuracies, errors or omissions herein.
