By Nicole Rens, Candidate Attorney and Anja Van Wijk, Senior Associate
Introduction
With level 4 lockdown regulations currently in full force and level 3 lockdown coming up, and with so many laws/regulations being changed sporadically, there are still several unanswered questions regarding the extent of the moratorium in respect of eviction proceedings at present and the different regulations and court procedures to follow in obtaining and executing eviction orders.
This article will not only look at the procedures that are available regarding evictions during level 4 lockdown, and the relevant court processes to follow as they currently stand but also, the writers will look at how lockdown is affecting current evictions and how the consequences of the COVID-19 pandemic and the subsequent lockdown may impact future evictions to come. Undoubtedly, the COVID-19 pandemic will have far reaching consequences on all people’s financial situations and in this article, we will look at the possible ways in which the courts will address these financial implications on the tenants and the landlords in the future with reference to evictions.
The Current Regulations in regard to Evictions
The latest court directives have now confirmed that the moratorium over eviction proceedings has been relaxed to a certain extent. Section 19 of the latest Regulations issued in terms of section 27(2) of the Disaster Management Act 2002 (“the Level 4 Regulations”) provides that “a competent court may grant an order for the eviction of any person from land or a home in terms of the provisions of the Extension of Security of Tenure Act 62 of 1997 and the Prevention of Illegal Eviction from any Unlawful Occupation of Land Act 19 of 1998:[1] Provided that any order of eviction shall be stayed and suspended until the last day of Alert Level 4, unless a court decides that it is not just and equitable to stay and suspend the order until the last day of the Alert 4 period”.
In essence, the above means that residential eviction processes can continue without further delays, however, the court has the discretion to decide, depending on the facts of the case, whether the execution of the eviction order once granted ought to be pended until after the level 4 lockdown period expires.
Our opinion is that unless there are extraordinary circumstances which allow for the execution of the eviction being done during level 4 lockdown, like, for example, fraud on the part of the occupant, the court will usually determine that the eviction only be allowed to be executed after level 4 lockdown is relaxed to level 3 lockdown.
The Eviction Process under Lockdown
Firstly, before bringing any eviction application, the landlord must ensure that any agreement providing a right to the occupant to occupy the property has been properly cancelled and as such, the right extinguished. In order to ensure compliance, we suggest that an attorney be consulted to ensure that the basis of the eviction is legally sound, and to ensure that the eviction process is properly followed. In this regard, it is important to note that the ordinary processes when sending, for example, a letter of demand, must be complied with, prescribed by the Rental Housing Act 50 of 1999 (“the RHA”) and, in certain circumstances, the Consumer Protection Act 68 of 2008 (“the CPA”).
Issuing and Serving Eviction Applications under Lockdown
Once an occupant’s right to reside on the property has been properly cancelled, the landlord would be entitled to proceed with the eviction application. However, due to limited physical access to courts and depending on which court your eviction matter is being heard in, there are new service and issuing processes that need to be followed in bringing the eviction application before the court for adjudication.
It is important to check the specific directives of the court that your matter is being heard in. Usually, the court that has jurisdiction over the area where the property is located will be the court that will hear the matter. Matters can be heard by the relevant Magistrate’s Court or relevant High Court.
The High Courts in Gauteng are currently using the online platform called “Caselines” to keep record of what has been filed and issued in court. The courts are also allowing attorneys to issue and file documents via email to the relevant court’s email addresses provided by each such court, instead of physically sending someone to court to issue and file the applications. These email addresses can be found in the COVID-19 Practice Directives of the relevant court. However, because of the backlog of matters from the previous months and probably because of lack of knowledge of the online system by new users, the process is somewhat slow.
In terms of Magistrate’s court, there is seemingly no Caselines or similar online platform to be used, however, they are trying to catch up and require some time to find their feet. In an attempt to keep up with the High Court, most Magistrates Courts are currently also accepting pleadings sent via email.
After issuing an application in court, an eviction application must preferably be served personally on the unlawful occupier, or on a person that is above the age of 16 years, who resides at the property. The relevant sheriff has to serve the application in the applicable way as explained above.
Personal service is important as the court has to be satisfied that the application has been brought to the occupant’s attention properly. The latest High Court directive states that, in certain circumstances, service of legal documents can now be done electronically, as long at the service complies with section 23 of the Electronic Communications Act 36 of 2005 (“ECTA”), which deals with dispatch and receipt of a data message. However, especially with evictions, which are more strictly adjudicated by the court, we foresee that if personal service on the occupant is not possible, the landlord in the eviction application needs to request the court’s permission to serve the application by other means i.e. by email or WhatsApp. This is done by means of an application for substituted service.
Virtual Hearings of Eviction Applications
In an attempt to reduce the amount of people physically accessing the High Court, virtual hearing dates have been allocated for some matters (at present, only matters that have been uploaded to Caselines in the High Courts in Gauteng.)
As for Magistrates Courts, section 4.2 of the latest Randburg Regional Court directive states that in order to apply for a hearing date, an application form must be completed and emailed to the relevant Assistant Registrar, and parties must advise whether they request a hearing in the ordinary course, or via video conference. Platforms like Zoom and MS Teams are currently the most used platforms for electronic hearings, depending on the court.
The application of the principles of “Justness and Equitability” and Ubuntu in Eviction Applications
It is the opinion of the writer that since the implementation of the Prevention of Illegal Eviction from and Unlawful Occupation Act 19 of 1998 (“PIE”), the consideration of the occupant’s rights by the Court, as opposed to the rights of the landlord, has largely been unbalanced.
In terms of PIE, the principle of “justness and equitability” must be considered by a Judge or Magistrate in considering all eviction applications. We foresee that in the future, these principles will be applied even more extensively to pending and future eviction applications than they have in the past.
It could be that, in pending and future eviction applications, the landlord may have to prove that these principles were complied with to a larger extent prior to, and during, the eviction proceedings, and such actions may include, for example, that the unlawful tenant was given sufficient time to make arrangements for alternative accommodation, the personal circumstances of the occupants be taken into account (i.e. whether the tenant has a livelihood in order to afford alternative accommodation) and that the landlord did not act in a mala fide manner during the eviction process.
The Courts may very well have a duty to implement the concept of ubuntu when considering eviction applications. Ubuntu is an underlying principle of our Constitution and is meant to ensure that the spirit, purport and objects of the Constitution are upheld. The purpose of ubuntu is to promote humanity and compassion to a person’s current situation, even if such party has breached the applicable agreement.
The famous case of S v Makwanyane 1995 (3) SA 391 is where the principle of ubuntu made its mark, when the court stated that this principle “suggests a change in mental attitude from vengeance to an appreciation of the need for understanding, from retaliation to reparation and from victimisation to ubuntu”.
In the case of Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC), the concept on ubuntu was considered alongside the principles of justness and equitability, specific to evictions. The court stated that a balance must be reached between the interests of both the tenant and the landlord and in doing so, the underlying principles or justness and equitability and ubuntu are considered.
The relevant personal factors of an occupant, such as retrenchments/loss of jobs, inability to work due to the COVID-19 lockdown, infringement of their right to housing, children, disabled or the elderly living on the property and women-headed households have to be considered by the court in order to ensure that the order granted is just and equitable, and takes into consideration the “human factors” as to why the occupant is residing at the property unlawfully. [2]
On the other hand, the personal factors of the landlord, such as loss of income, infringement of property rights and infringement of their right to ownership need to be weighed up and compared to the occupant’s rights and a balance needs to be struck.
Granting of Eviction Orders
In our experience and in ordinary eviction cases, the courts usually would provide the unlawful occupant with 1 (one) month to vacate the landlord’s property upon granting of the eviction order.
However, during this pandemic and while the country recuperates from the economic backlash for years thereafter, it is predicted that the courts will grant the occupant more time in which to vacate the property. For pending evictions, we expect that the courts will order the sheriff to execute the eviction of the unlawful tenant only once level 4 lockdown has been completed, and will provide the unlawful occupant 1 (one) month after the end of level 4 lockdown in order to ensure that enough time has been provided to the occupant to obtain alternative accommodation.
Due to the probable strict application of the principles explained above and the practical obstacles in issuing (and serving) the applications with some of the courts, it is expected that eviction proceedings will be delayed substantially. In this regard, it is our opinion that, not only practically speaking but also from a humanitarian aspect, entering into negotiations with an unlawful occupant should be the first step for a landlord, before attempting to litigate the issues.
Conclusion
Currently, eviction applications can continue in the ordinary course, but it is the execution of any eviction order that is granted that is stayed. Landlords must, however, expect delays.
The courts are attempting to do everything they can to ensure that access to courts can commence, however, also limiting same simultaneously in order to prevent further spread of COVID-19. At least, the use of email, online platforms like Caselines and video conferencing is a great step forward for the court system into the electronically dominant age and should continue to be utilised in this way.
Considering the possible strict approach of the principles of justness and equitability and ubuntu, and considering the practical delays of running eviction applications, it might be more efficient for a landlord to first try to negotiate terms with an unlawful occupant.
