All and sundry are acutely aware of the current heightened state of apprehension brought about by the rapid spread of Covid 19 and the real threat posed thereby. Government’s response, which has largely been aimed at preventing the further spread of the virus, has in most part taken the form of Regulations issued in terms of the Disaster Management Act 57 2002. These Regulations have primarily been aimed at restricting the movement of people and then determining the so-called “openness” of the economy, such determined by the severity of countrywide infections at any given juncture.

Eviction applications are an aspect of the Civil Litigation which have not been left unaffected during these times, specific Regulations then having been Gazetted in regards thereto. The relevant Regulations will not be discussed in detail, suffice it to say that they do vary dependant on what lockdown level the country finds itself in. The more restrictive lockdown levels do by their very nature make the granting of an eviction order impossible and / or impractical given the limited movement of persons.

It is however pertinent to note is that there seems to be a misconception among certain tenants and private landlords that irrespective of what lockdown level the country finds itself in, there exists a blanket ban not only on the launching of eviction applications but also the granting of an order upon a successful application.

At present this is simply not the case, applications perfectly capable of being launched. It is writers’ opinion that the waters become muddled to the prejudice of the landlord when it comes to the actual granting of an order by a Court upon successful application.

Current regulations state that Courts may stay or suspend the execution of any order granted unless it is of the opinion that it would not be just and equitable to do so, this after due consideration of several factors listed. These factors, in writers’ view, are primarily aimed at preventing the execution of orders where such would have the effect of endangering the health and safety of the current tenants and public at large or where the specific lockdown level in place makes the granting of the order without stay impossible due to restrictions placed on the movements of people.

There is a propensity which has developed in certain Court Districts to couple the granting of an eviction order to inordinately lengthy periods of stay without due consideration of all the factors prevalent, particularly the prejudice which will be suffered by the landlord by the extended stay of any order granted.

Irrespective of what might at present seem like the deck being stacked against landlords, certain Districts have now begun taking a more pragmatic approach when considering the factors in determine whether it would be just and equitable to grant an order for eviction without stay, these Courts then reverting to the pre-Covid era timeframes of roughly one to two months between granting of the order and date by which tenants must vacate the premises.

Even so, evictions have and always will be an aspect of the law which are fraught with procedural nuances, particularly with regards to specific mandatory requirements as to formal cancellation of lease agreement, form of application and then service thereof.

Our office has garnished a wealth of experience in all eviction types, be that standard commercial, residential in terms of the Prevention of Illegal Evictions form and Unlawful Occupation of Land Act or rural in terms of the Extension of Security of Tenure Act and is thus well placed to advise clients who have to date not considered action against tenants or occupiers given the somewhat distorted view generally held about evictions during Covid.

At no stage are we presenting the opinion or view that evictions without an extended period of stay are easy to come by in the new Covid era, but with insight into the current practices being employed by certain Courts, options are potentially available to landlords who have to date been unduly forced into a wait and see approach.

A lack of action now knowing that applications and orders are a possibility during the State of Disaster will do nothing but further exasperate accumulated losses caused by errant tenants. Seek advice now to determine a viable way forward.

Article by Gavin Jordaan (Associate) B.Comm; LLB
For more information, contact or 044 601 9900.


Nothing contained in this publication is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This publication is intended for educational and informational purposes only.


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