The National State of Disaster and subsequent lockdown, has been a difficult time for property owners in South Africa.  During level 5, property owners were not entitled in terms of the Regulation to evict tenants from their properties, irrespective of their failure to pay rental. 
As the levels of lockdown adjusted from May 2020, the Regulations pertaining to evictions were adjusted to make eviction of unlawful tenants and or occupiers possible but only under specific circumstances and having regard to factors such as alternative accommodation, prejudice and the impact of the National State of Disaster on the parties. Most property owners were relieved, until they realized or were advised that although they are entitled to start eviction proceedings in terms of the Prevention of Illegal Eviction from and Unlawful Occupation from Land Act, Act  19 of 1998 (hereinafter the PIE Act) and obtain an eviction Order, physical eviction of their tenants is not possible, unless the Court grants an Order without suspending same until termination of the State of National Disaster. The current adjusted Level 3 gazetted Regulations, Regulation 37 provide as follows: 
Eviction and demolition of places of residence

37. (1) 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.

(2) A competent court may suspend or stay an order for eviction or demolition contemplated in sub regulation (1) until after the lapse or termination of the national state of disaster, unless the court is of the opinion that it is not just or equitable to suspend or stay the order having regard, in addition to any other relevant consideration, to-

(a) the need, in the public interest for all persons to have access to a place of  residence and basic services to protect their health and the health of others and to avoid unnecessary movement and gathering with other persons;

(b) any restrictions on movement or other relevant restrictions in place at the relevant time in terms of these Regulations;

(c) the impact of the disaster on the parties; 

(d) the prejudice to any party of a delay in executing the order and whether such prejudice outweighs the prejudice of the persons who will be subject to the order;       

(e) whether any affected person has been prejudiced in their ability to access legal services as a result of the disaster;

(f) whether affected persons will have immediate access to an alternative place of residence and basic services;

(g) whether adequate measures are in place to protect the health of any person in the process of a relocation;

(h) whether any occupier is causing harm to others or there is a threat to life and;

(i) whether the party applying for such an order has taken reasonable steps in good faith, to make alternative arrangements with all affected persons, including but not limited to payment arrangements that would preclude the need for any relocation during the national state of disaster.

(3) A court hearing an application to authorise an eviction or demolition may, where appropriate and in addition to any other report that is required by law, request a report from the responsible member of the executive regarding the availability of emergency accommodation or quarantine or isolation facilities pursuant to these Regulations.

Property owners may thus proceed with an application in terms of the PIE Act but the Court Order obtained may provide that the physical eviction of the tenant or occupier, is suspended until after the lapse or termination of the National State of Disaster. Practically the tenant will remain in occupation of the rental property until  termination of the National State of Disaster or an amendment to the Regulations, pertaining to evictions, provides otherwise. There is thus no legal remedy available for property owners to physically evict the tenants until such time, unless the Court hearing the matter orders immediate eviction. Although the tenant or occupier will remain liable for the rental amount and monthly expenses such as water and electricity consumption for the duration of their occupation, property owners will have to proceed with legal action against them to obtain judgment for the arrears. Execution steps will have to be taken to attempt recovery of the arrears and there are no guarantees of success.
Unlawful occupiers that occupy property without prior consent from owners, may be physically evicted once an eviction Order is obtained. The requirements of the PIE Act must however still be met and the Court must still consider the factors in the current Adjusted Level 3 Regulations, listed above. 
In the meantime, property owners must continue to pay their monthly expenses in relation to the rental property, amongst others bond repayments, municipal accounts and insurance, without receiving rental.  For most property owners a three-month payment holiday is not an option, because their bond repayment period can be increased by two years, if they do.  
There is no indication when Government will declare termination of the National State of Disaster, more so due to the recent daily increase in COVID-19 infections.  What will property owners do and how long will they be able to absorb the expenses under these circumstances?

Sue-Mari Swanepoel
January 2021