How to execute eviction orders during the national state of disaster by Piet Badenhorst, Koos Geyser and Cheri Petersen

The execution of eviction orders have been prohibited during the national state of disaster (“NSOD“), declared under the Disaster Management Act No. 57 of 2002 and in place since 23 March 2020.

For the duration of the NSOD, at all the alert levels declared from time to time, the Regulations have prohibited the execution of eviction orders, unless a court is of the opinion that it is not just or equitable to suspend or stay the eviction order until after the lapse or termination of the NSOD (or in the initial alert levels, until the lapse of a particular alert level).

Under the Regulations the courts must have regard, in addition to any other relevant consideration, to:

1. 1. 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;
   2. any restrictions on movement or other relevant restrictions in place at the relevant time in terms of these Regulations;
   3. the impact of the disaster on the parties;
   4. 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;
   5. whether any affected person has been prejudiced in their ability to access legal services as a result of the disaster;
   6. whether affected persons will have immediate access to an alternative place of residence and basic services;
   7. whether adequate measures are in place to protect the health of any person in the process of a relocation;
   8. whether any occupier is causing harm to others or there is a threat to life; and

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.

These Regulations apply not only to property owners who obtain eviction orders during the NSOD, but also to those who had obtained eviction orders before the NSOD came into effect, with execution dates falling within the NSOD.

In both these instances the effect of the stay of execution has been that owners have been deprived of property rights for an indeterminate period of time, as long as the NSOD persists.

The case histories of two of our clients faced with this unfortunate scenario are as follows.

Client X obtained an eviction order in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”) during the early stages of the NSOD, and the Court ordered a stay of the execution of the eviction order until after the lapse or termination of the NSOD.

Client Y obtained an eviction order in terms of the Extension of Security of Tenure Act, Act. 62 of 1997 (“ESTA”) before the NSOD (which order was confirmed on review by the Land Claims Court), but the date of execution of the eviction order fell within the NSOD.

In both cases we successfully brought applications for the execution of the eviction orders to go ahead during the NSOD, arguing that it would not be just and equitable to suspend or stay the execution of the eviction orders until after the lapse or termination of the NSOD. In both cases the arguments were based on the particular set of facts; and two recent judgments of the Western Cape High Court could be relied on:

• Shevel v Alson Development Sea Point (Pty) Ltd and another [2021] JOL 49448 (WCC) (“Shevel”); and
• Nelson and Another v Samuels and Others (2350/2020) [2021] ZAWCHC 58 (29 March 2021 (“Nelson”).

In these judgments the Court took into account that when the limitation on evictions was first introduced (with an initial NSOD alert level 5) the movement of persons outside of their places of residence was severely restricted. It was then more difficult for persons to go out and seek alternative accommodation, and well-nigh impossible to move one’s belongings. In the Shevel and Nelson judgments the Court noted that the country had moved away from those initial restrictions, allowing house-hunting and moving house in practically the same way as before the initial declaration of the NSOD. The Court in Shevel and Nelson found that on the particular set of facts of each of these cases it would not be just and equitable to suspend the execution of the eviction orders until after the lapse or termination of the NSOD.

Should you have any questions regarding evictions under the national state of disaster or the application to execute upon an eviction order during the national state of disaster, please contact us at 021 808 5600.