Evictions during the national lockdown
WHILE the amended lockdown regulations in alert level 4 allowed a landlord to approach the court to apply for an eviction order, it could not be executed then. Granting an order to have a tenant evicted meant the possibility of rendering the occupant homeless. At the same time, the landlord had to endure hardship without any rental income to survive or without being able to take personal occupation.
There were different views in South Africa and abroad, and speculation mounted about possible legal grounds to prevent evictions. One view was that tenants, particularly commercial tenants, could invoke the “force majeure” clause in the lease as a defence. This would allow the party unable to perform his or her or its obligations to have such an obligation suspended or removed.
“Force majeure” refers to extraordinary events beyond the parties’ control and the courts will examine such a clause and what is listed thereunder stringently.
It was further contended that in the absence of a “force majeure” clause, a party could refer to the common law doctrine of “supervening impossibility of performance”.
A party would rely on this principle if unable to fulfil one’s obligation due to an unforeseen or unforeseeable and unavoidable event.
A party would not be able to perform due to “an act of God” – natural disasters such as earthquakes, tornadoes, floods and pandemics) and an unavoidable, fortuitous or unexpected situation. In both cases, a party could not have avoided it, in spite of reasonable foresight or exercising reasonable care.
The lease contract ends due to doctrine of “supervening impossibility of performance”, since the party or parties are unable to perform their obligations. An example would be the case of a tenant unable to take occupation at the time the lockdown regulations at alert level 5 was implemented. The lease is also terminated when the landlord was unable to give vacant occupation to the new tenant because her existing tenant was unable to move out.
It would appear that a “force majeure” clause and the common law doctrine of “supervening impossibility of performance” would not provide grounds to residential tenants who fail to pay their rentals and meet other obligations.
Ultimately, it was to the courts’ judgments that speculations had to be deferred to and now in alert level 1, eviction orders are being granted. Courts will grant an eviction order even if the occupant is not a tenant. An owner may have an occupant who is not a tenant, occupying the property without paying rental. A person could have the right to occupy without becoming an owner and without paying any rental, having the legal right of free residence in someone else’s property registered against the title deeds (habitatio). When a person enjoys the right to occupy free of charge but not registered against the title deeds, it is known as precarium. This right is a concession granted upon a request. This right can be terminated on the giving of reasonable notice (Jordaan v Koekemoer and Another [2010] ZAECGHC 46).