EVICTIONS UNDER ALERT LEVEL 2 OF THE LOCKDOWN

Since the outbreak of the coronavirus and the introduction of the Disaster Management Act, 57 of 2002 (“the DMA”), execution of evictions has been prohibited. The prohibition started during Alert Level 5 and carried through to Alert Level 3 of the lockdown.

Under Alert Level 3 of the lockdown, Regulation 36 of the DMA provides that a person may not be evicted from his/her land or home. This Regulation allows a competent court to grant an order for eviction, however, to suspend execution of such order until the last day of Alert Level 3. The courts have a discretion to order execution of the eviction if it is just and equitable.

The suspension of execution of eviction orders until the last day of Alert Level 3 gave the public the impression that evictions would be permissible under Alert Level 2, with this being supported by the fact that under Alert Level 2, many restrictions on social and economic activities have been lifted.

On 15 August 2020, the President announced the country would move to Alert Level 2 effectively at midnight on 18 August 2020.

Insofar as evictions are concerned under Alert Level 2, Regulation 53(1) and (2) of the DMA provide that:

(1)          “A person may not be evicted from his or her land or home or place of residence for the duration of the national state of disaster unless a competent court has granted an order authorising for eviction or demolition.

(2)          A competent court may suspend or stay an order for eviction or demolition, contemplated in subregulation (1), 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.”

In short, execution of eviction orders remains prohibited for the remainder of the national state of disaster, unless the court decides otherwise.

Regulation 53(2) further provides that if the court is of the opinion that it is not just and equitable to suspend or stay the order until after the lapse of the national state of disaster, in addition to other relevant considerations, it must also take into account the following:

  • the need, in the public interest for all persons to have access to a place of residence and basic services to protect their health and the health of others and to avoid unnecessary movements and gatherings with other persons;
  • Any restrictions on movement or other relevant restrictions in place at the relevant time in terms of these Regulations;
  • The impact of the disaster on the parties;
  • The prejudice to any party in the delay in executing the order and whether such prejudice outweighs that of the person who will be subject to the order;
  • Whether any affected person has been prejudiced in his/her ability to access legal services as a result of the disaster;
  • Whether affected persons will have immediate access to an alternative place of residence and basic services;
  • Whether adequate measures are in place to protect the health of any person in the process of relocation;
  • Whether any occupier is causing harm to others or there is a threat to life; and
  • Whether a party applying for such an order has taken reasonable steps in good faith to make alternative arrangements with all affected persons including, but not limited to, a payment arrangement that would preclude the need for any relocation during the national state of disaster.

Even though evictions remain prohibited under Alert Level 2, the Regulations include guidelines which the court must take into consideration before making an order on suspending the execution of an eviction order. These guidelines provide for greater room for the court to grant the execution of eviction orders unlike the position in Alert Level 5 to Alert Level 3. The guidelines set to balance the rights of the occupier and that of the owner.

Author: Zilungile Stimela

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