Durban - THE ANXIETY among tenants and landlords continue regarding evictions.
Tenants fear not being able to secure alternative accommodation or becoming homeless. Landlords, desperate to recover rental arrears, having terminated leases, are not sure how to proceed with evictions.
The Disaster Management Act regulations at alert level 3 during the lockdown came into effect yesterday. Section 36 provide hope for landlords to secure evictions within a short period, and panic among tenants for not being able to defend themselves.
“Prohibition on evictions: 36. (1) Subject to sub-regulation (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.”
Under section 48(2), a landlord who commits an offence is, on conviction, liable to a fine or to imprisonment for up to six months, or to a fine and imprisonment.
Does it mean a landlord is able to get an ejectment order within June and have the sheriff remove a tenant as soon as alert level 3 is lifted?
The Constitution has changed a “simple” procedure to evict an occupier or tenant, through its socio-economic rights provisions. Later, the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act 19 of 1998 (PIE), that replaced the Slums Act, changed eviction procedures. The courts extended PIE to urban tenements by “radicalised” requirements relating to evictions.
The introduction of PIE and the Rental Housing Act 50 of 1999 (RHA) changed the common-law position for owners/landlords whose right to be restored to possession was based on proving ownership to have the eviction order granted (Graham versus Ridley 1931 TPD 476) or, in the instance of a valid termination that was challenged, the occupier had the onus to prove an unlawful termination (Chetty versus Naidoo 1974 (3) SA 13 (A)).
PIE regulates residential evictions with the exception of holiday homes (Barnet v Minister of Land Affairs 2007 (6) SA 313 (SCA)). Occupation for occasional visits based on mere convenience does not constitute a home (Beck v Scholz [1953] 1 QB 570 (CA) 575-6). Shelters for overnight accommodation and “lodgings” would fall within the definition of habitable dwelling or home. Judge Lopez ordered the eThekwini Municipality to provide “temporary emergency accommodation in a location as near as feasibly possible to the area where such property is situated” to the occupiers of Durban Beach Shelter should they fail to vacate (in Morning Tide Investments 227 (Pty) Limited versus Durban Beach Shelter & Ethekwini Municipality (case no. 9409/2010, KwaZulu-Natal High Court May 3, 2011).
PIE brought about changes whereby court orders and judgments grant evictions that are just and equitable, after considering all the relevant circumstances and the rights and needs of the elderly, children, disabled persons and households headed by women.
PIE requires a landlord to establish and disclose the circumstances of the tenant. The summons or application must have a separate part to it in where the disclosure is made and served on the tenant. The court has to grant the application before the landlord can proceed with the main summons or application. PIE and the main application must also be served on the municipality where the tenant resides. Courts have expanded the conditions so that the constitutional obligations of finding alternate accommodation is placed on the government (local authority or municipality) when a municipality acts against a private landlord.
Courts have also granted structural interdicts, whereby the application by a private landlord is adjourned when destitute tenants are involved. The municipality has to provide a plan to the court within a specific period, detailing how it will make resources available to house the poor tenants.
The jurisprudential demands on the government have ensured authorities are the points of service delivery. They are required toprovide suitable alternative accommodation,engage meaningfully with occupants facing evictions, present courts with relocation plans.
As the court challenges to evictions are growing, so are the courts’ responses to the changing dynamics of a society in transformation. In Port Elizabeth Municipality versus Various Occupiers 2005 (1) SA 217 (CC) at 237, Sachs J expresses the concerns for the poor: “Thus, PIE expressly requires the court to infuse elements of grace and compassion into the formal structures of the law. It is called upon to balance competing interests in a principled way and to promote the constitutional vision of a caring society based on good neighbourliness and shared concern. The Constitution and PIE confirm that we are not islands unto ourselves.”
* Tenants in need of advice during the lockdown can WhatsApp Pretty Gumede at 071 346 5595 or Loshni Naidoo at 071 444 5671, or email [email protected], and Dr Mohamed at [email protected].
Dr Sayed Iqbal Mohamed is the chairperson of the Organisation of Civic Rights & deputy chairperson of the KZN Rental Housing Tribunal. He writes in his personal capacity.