The national state of disaster in South Africa has seen regulations published by line ministries, to provide standards and guidance on how business and human interaction will occur under Alert Level 1 prevailing till 15 November 2020.
The compass around which the regulations were promulgated revolves around the promotion of social distancing in all aspects where possible.
This is a clear admission that COVID-19 will be around for a while and must be forestalled as far as possible. The aforementioned necessitated the need for the gazetting of regulations with regards to housing and evictions as they go to the core of social distancing protocols.
Social distancing requires that people stay within their residential confines and only travel when it is critical e.g to buy food, medication, attend hospital, on-site work.
Within the government’s published regulations in terms of the Disaster Management Act: Regulations - Alert level 1, provisions were made to discourage demolitions of residences and further cushioned tenant rights against evictions during this time.
The most important of these regulations with regards to demolitions and evictions are summarised below.
Firstly, in terms of Regulation 70 (1), it remains that evictions must only happen as per court order, nothing has changed with regards to this.
The duty of the court to use discretion in such cases remains but has been supported in light of the prevailing national state of disaster.
As per Regulation 70 (2), secondly, the court has been empowered to suspend the execution of any demolition or eviction court order during the currency of the national state of disaster, until such time the court is satisfied the result of such execution will not be grievous in its consequences.
The court will have discretion in this instance too in so far as prejudice to any party of a delay in executing the order and whether such prejudice outweighs the prejudice of the persons who will be subject to the order.
The law still recognises that unlawful occupation is just that, unlawful, and the courts frown upon it but that due to policy and circumstantial considerations, usual consequences will be suspended in order to forestall a bigger crisis.
The law is there to protect, and such realisation is achieved sometimes even by suspending the operation of the very same law.
Thirdly, the Court is empowered by the regulations to have discretion that extends to requesting a report by the responsible member of the executive, providing an analysis on whether there is alternative accommodation that effect to or in line with quarantine protocols. This is as per Regulation 70(3).
In terms of Rental housing, the Housing Tribunals are empowered to determine fair procedures that promote urgent hearings and also to avail relief where the law has been unlawfully taken into private hands.
The regulations in 71(2) also consider as unfair, situations where services are terminated without reasonable notice given and an opportunity to provide adequate representations, resulting in the landlord failing in good faith to have an accommodating and enabling parameter to arrive at an arrangement with the tenant for alternative payment of arrears, to secure an ongoing provision of services.
These regulations are not only premised on promoting social distancing and accommodating a new “normal”, but also wary of the economic setback the pandemic has caused on the income of most households.
Landlords in particular are advised to get legal advice on the decisions they wish to take as such decisions will be measured against the gazetted regulations. This means equally that tenants have more recourse with regards to available relief.
Our attorneys provide expert, legal advice regarding tenants’ rights and evictions in South Africa during Lockdown Alert Level 1 and beyond.
With unprecedented circumstances brought on by the pandemic, it is crucial that landlords and tenants seek professional, legal guidance regarding their rights and responsibilities. Contact us for more information.
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