Alert Level 1 evictions granted as long as they are just and equitable

By Eviction Lawyers South Africa

A recent case from the swartland shows fair consideration for all parties in an eviction

In the early stages of the National State of Disaster brought on by COVID-19, evictions were not allowed. It would have been politically contentious and downright unfair for people to be evicted from their homes just when we were all required to stay at home. As hard lockdown gave way to gradually lessening restrictions, the status of eviction orders also changed. For a while eviction orders could be granted but not executed, unless a tenant posed a danger to the landlord or the property. Now, as we near the ninth month of the State of Disaster, there is light at the end of the tunnel for property owners. Alert Level 1 evictions are being granted. In this article we look at the factors that constitute a reasonable eviction case.

Case by case

We have reviewed recent cases that have resulted in successful Alert Level 1 evictions, and have gained an understanding as to what the courts consider to be fair (or ‘just and equitable’ in law). Furthermore, there are time parameters that must be met before the court will order the Sheriff to physically evict the tenant.

Philander v Makiet

While  PIE (Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998) and other rental housing legislation protects tenants against impetuous and unfair treatment by landlords, owners also have the right to the use and enjoyment of their property. As such, they must be allowed to evict a tenant who is illegally occupying premises. In an effort to ensure both parties’ rights are respected, confusion has arisen as to what the courts will allow. Several cases have been heard that have helped the courts to define just and equitable eviction proceedings during this unprecedented time.

The case of Philander v Makiet was a significant watershed, decided by three judges in the Western Cape High Court. Although they arrived at the same conclusion, two of the judges expressed quite different reasons for their opinions. The judgment clearly explains the factors they considered in granting the Alert Level 1 eviction order, and what conditions must be present generally in the current environment.

In determining justness and equality, the court stressed that all relevant circumstances should be considered. What exactly are those circumstances? The judgment states: “Among those circumstances the availability of alternative land and the rights and needs of people falling into specific vulnerable groups are singled out for consideration.” In this case the tenant was a 19-year-old male with no dependants, whose grandparents and sister lived not far away.

The time frame also matters

The availability of alternative accommodation is a key consideration. The time frame given for the tenant to vacate the premises is also important. And it must be reasonable not only for the tenant but also for the property owner: “…what date would be just and equitable upon which the eviction order should take effect. Once again, the date that it determines must be one that is just and equitable to all parties.”

In Philander v Makiet, the tenant was originally given notice to vacate the property, fully within the terms of PIE and the Consumer Protection Act, more than 18 months previously. There was ample time to find suitable alternative accommodation. As there was no cooperation on the part of the tenant, and considering a wide array of circumstances, the court awarded eviction from the premises, to be vacated by 31 October. This was more than a month from the date of the eviction order.

Secure a successful eviction

This case demonstrates that the courts will grant an eviction order under Alert Level 1, allowing tenants a reasonable time frame to find alternative accommodation and vacate the property. If you are a landlord seeking eviction, you must make sure you can prove that your eviction is just and equitable. The illegal occupancy of the premises is not the only factor the court will look at. A judge will want to be satisfied that the tenant has access to alternative accommodation. Courts need to know that tenants will not be left destitute and without shelter.

You can facilitate this process by requiring your tenant to provide an address for potential alternative accommodation in the lease agreement. This will ensure they have a viable option, should you need to terminate the lease, and the court will be assured of the tenant’s security if you have to apply for an eviction order under Alert Level 1.

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