Courts must brace for tsunami of rental disputes as lockdown squeezes tenants
The Organisation of Civic Rights team, faced by a huge volume of tenancy queries, continues to provide advice to tenants during the lockdown period. One of the tenants, a self-employed single mother whose livelihood has been severely disrupted, received a letter from her landlord’s attorney. Should she fail to vacate, the attorney indicated she would be charged a daily rate.
The tenant is contractually bound and therefore liable for the rentals as per her lease contract. Unless her landlord agrees to any proposal she can offer, the landlord may proceed to cancel her lease, which he did. Her lease was lawfully cancelled when she failed to pay the outstanding amount after she was given seven days’ notice to remedy the breach.
As for charging her a daily rate and consequently an exorbitant rental for failing to move out, this is not lawful since she pays rental monthly and not daily. However, once the lease is properly cancelled, the landlord can claim a higher rental as damages but the rental housing tribunal or the court can decide if the landlord is justified.
If the tenant lodges a complaint with the provincial rental housing tribunal, then the tribunal must first determine whether the notice cancelling her lease does not constitute an unfair practice. In addition, the tribunal must decide if the amount claimed is justified.
Only after the tribunal has made a decision, can the landlord start the eviction proceedings. Should the landlord pursue the intended eviction, the process can be lengthy if the tenant decides to defend it.
The amended lockdown regulations in level 4 allows a landlord to approach the court to apply for an eviction order. Once granted, it can only be executed after level 4. It is not possible for courts to merely grant an eviction order since a lengthy process is involved.
Can the tenant rely on the Covid-19 pandemic to justify her failure to pay rental? There are several legal experts in South Africa and abroad who have argued they might be a possibility for commercial tenants to rely on a force majeure clause in the lease as a defence. This would allow the party who is unable to perform his or her or its obligations to have such an obligation suspended or removed. In the absence of a force majeure clause, a party can refer to the common law doctrine of “supervening impossibility of performance”.
A party would rely on this principle if unable to fulfil their obligation due to an unforeseen, unavoidable event. A party would not be able to perform due to “an act of God”. The lease contract ends due to doctrine of “supervening impossibility of performance” since the party or parties are unable to perform their obligations.
It would appear that a force majeure clause and the common law doctrine of supervening impossibility of performance would not provide grounds for residential tenants who fail to pay their rentals and meet other obligations.
Dr Sayed Iqbal Mohamed, is chairperson, Organisation of Civic Rights and deputy chairperson of the KZN Rental Housing Tribunal. He writes in his personal capacity.