On 16 April 2020, the South African government promulgated certain amendments to the lockdown regulations ("the amended Regulations"). In terms of the amended Regulations, no person may be evicted from his or her place of residence for the duration of the lockdown.
The current nationwide lockdown is expected to end on 30 April 2020 at 23h59, however, it cannot be discounted that the lockdown may be extended or that the prohibition on evictions may be extended post lockdown.
In the face of the global financial turmoil coupled with the prohibition on residential evictions, we foresee that there will be a substantial increase in tenants defaulting on their rental payments.
Apart from the current prohibition on residential evictions, a landlord seeking to evict a tenant based on a tenant's failure to pay rent, must first place a tenant on notice to remedy his or her breach (i.e. to pay the arrear rental) before he or she can commence with an eviction process. This notice is pivotal to any eviction application and if given incorrectly, will render an application for eviction fatally defective. Notwithstanding the terms of the lease agreement, the notice must comply with specific legislative prescripts. In most instances, a tenant must be given 7 days' notice to remedy his or her breach, however, in certain circumstances a tenant must be afforded at least 20 business days to remedy his or her breach.
The amended Regulations do not prohibit a landlord from giving notice to a defaulting tenant. It furthermore does not prohibit a landlord from commencing with eviction proceedings – it only prohibits the physical eviction of a tenant.
Landlords are advised to take immediate action against tenants who fail to pay their monthly rental. In our experience, the eviction process (if not contested) takes approximately 3 to 4 months. It is also our experience that during the eviction process, a tenant simply refuses to pay any rental.
Due to the fact that evictions are a cumbersome process (now more than ever), we propose that landlords should consider issuing an automatic rent interdict summons in instances where a tenant is in arrears with his or her rental. An automatic rent interdict summons will secure a landlord's hypothec for payment of arrear rent in that the tenant will be interdicted to remove any of his or her moveable assets from the leased premises until such time that a court otherwise directs. In this manner, a landlord will enjoy security over other creditors.
PSN can assist landlords in the following respects:
- Preparing the required notices of default.
- Preparing, issuing and arranging for the service of an automatic rent interdict summons.
- Obtaining an eviction order.
For more information, please contact Nico Herbst on 083 630 5937 or firstname.lastname@example.org.