Under the lockdown provisions (contemplated by the Disaster Management Act) “A person may not be evicted from his or her land or home or have his or her place of residence demolished for the duration of the national state of disaster unless a competent court has granted an order authorising the eviction or demolition.”
Landlords may apply for an eviction order, considering:
- The
need for everyone to have a place of residence and services to protect
their health and the health of others and to avoid unnecessary movement
and gathering with other persons.
- The
impact of the disaster on the parties.
- 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 a relocation.
- The
occupier’s behaviour, e.g., if they are causing harm to others.
- The
steps the landlord has taken to make alternative arrangements of payment
of rent to preclude the need for relocation.
- Other
considerations as described in the gazette.
In Grobler v Phillips
and Others (446/20) [2021] ZASCA 100 (14 July 2021) the Supreme Court of Appeal
(SCA) set aside an order evicting an 84-year-old widow and her disabled son on
the basis that such eviction was not just and equitable.
In good faith, Grobler purchased a property at a public auction. He knew that the widow and her son had lived on the property since 1947 and that the previous owners had granted her a lifelong right of occupation of this property.
Grobler gave them notice to vacate the property. When she failed to do so, he launched an application in the Magistrates’ Court for their eviction in terms of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998. The court had to balance the rights of an 84-year-old widow and her disabled son against the rights of the owner to an eviction order. The magistrate granted an order for eviction.
The widow successfully appealed to the High Court, that set aside the eviction order, inter alia, considering the age of the first respondent and the fact that she was living with her disabled son, an eviction order was not just and equitable.
Grobler appealed to the SCA and lost. Amongst other reasons, the Court
found that the Constitution provides protection against arbitrary evictions and
for evictions to only be granted when it was just and equitable to do so.
Therefore, considering all the facts before it, the court was of the opinion
that it was not just and equitable to grant an eviction and made the order to
dismiss the appeal against the High Court decision.
Conclusion
In conclusion, although legislation provides for clearly set out requirements
for the eviction of an unlawful occupant, it has to be just and equitable to do
so.
