Court Rules that Evictions Can Take Place Despite Lockdown Level 1

The relationship between landlord and tenant and the process of eviction can be complex and burdensome, as we all know. Add to that the declaration by the President on 15 March 2020 of a national state of disaster, brought on by a global pandemic, and things have gotten even more challenging. 

During these unprecedented times, the courts have still been able to hear and grant eviction orders. However, whilst we have been under lockdown "a competent court may suspend or stay an order for eviction ... 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..."

What this means is that a court has the discretion to grant an eviction order, but to suspend it until lockdown is uplifted in its entirety. i.e. Until the end of level 1! And as we all know, this could mean another 10 years for all we know.

Our recent matter:

Miltons Matsemela Inc. Attorneys dealt with a matter last year where the Magistrate court granted an eviction. The court however ordered that the eviction order be stayed until the end of alert level 1. As it could not be predetermined when this date would arise, and after nearly a year from the date on which the order was stayed, Miltons Matsemela Inc. approached the court a few weeks ago, for a variation of the eviction order on the following grounds:

1. That the eviction order was ambiguous; and/or
2. It could not be regarded as just and equitable to further stay or suspend the eviction order.

This tenant has not paid rent since March 2021!

Ambiguity of the eviction order 

In interpreting any court order in the face of ambiguity, a sensible interpretation is preferred to one which undermines the purpose of the document or order. Although it was clear from the order that the court intended that the eviction order be stayed until the end of Lockdown Level 1, it was unclear from the wording of the court order, whether or not the tenants would be required to vacate the property as soon as lockdown level 1 was lifted, and on what date exactly the sheriff would be authorised to evict them.  

Considerations of Justice and Equity:

While PIE (Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998) is aimed at protecting tenants' unfair treatment at the hands of their landlords, it is not intended to unduly prejudice the owners of properties' entitlement to the use and enjoyment of their property either. The courts are therefore tasked with having to strike a balance between the rights and interests of the landlord and the tenant. 

The court in Port Elizabeth Municipality v Various Occupiers[1] confirmed that in matters brought under PIE, the court is obliged to balance the opposing interests of the landowner, who has a real right inherent in ownership, and the rights of people in need of accommodation. Thus, the term 'just and equitable' is a relevant aspect to consider in respect of all parties to eviction proceedings and not just in regard to the interests of those individuals illegally occupying the property. 

The intention of PIE is not to expropriate private property. The purpose thereof is instead to delay or suspend the exercise of the owner's entitlement to the property until such a time that the court has made a determination as to whether an eviction would be just and equitable in the circumstances of the case. 

In our matter, we contended that allowing the Respondents to live in the property, which was owned by the Applicant, against their will and without paying rent, had the effect of expropriating the Applicant's private property beyond what is constitutionally permissible and beyond what can be said to be just and equitable. 

The eviction order, as it stood, had the effect of imposing a positive obligation on the landowner to provide free housing to the illegal occupiers of the land. This was not, in our opinion, a display of balancing of what is just and equitable for both parties, and it was submitted to the court that further staying the order would amount to an unjustifiable limitation on the landowners rights in their property. 

The court agreed and the tenants are now ordered to leave at the end of January 2022.