Activists in South Africa have approached the courts to fight for a moratorium on evictions during lockdown, saying throwing tenants out for non-payment of rent is unconstitutional and not a solution.

#NoEvictions is a campaign started by activist Nanandi-Simone Albers. It’s a response to the rent payment and eviction crisis sweeping through the country under the current lockdown restrictions. 

Under Level 5 and 4 of the lockdown, evictions were prohibited. Previously, the disaster management regulations inferred that tenants could be evicted once we reached Level 3. The latest amendment to the regulations has extended the prohibition to the end of Level 3.  

The regulations state: “A competent court may grant an order for the eviction of any person from his or her land or home in terms of the provisions of the Extension of Security of Tenure Act 62 of 1997 and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998: Provided that an order of eviction may be stayed and suspended until the last day of the Alert Level 3 period, unless a court decides that it is not just and equitable to stay and suspend the order until the last day of the Alert Level 3 period.” 

So a landlord (or municipality) can be granted an eviction order during lockdown, but the tenant cannot be removed until Level 2 is reached or if a court rules that the eviction may take place during Level 3. 

Albers says this is a disaster waiting to happen.

“Even when we go to Level 2, there are a vast number of people who still cannot go out there and earn an income, but they’re still expected to fulfil their obligations.” 

Job losses and income cuts have rendered a slew of tenants unable to afford their rent. But landlords are still demanding payment, in many cases with little consideration for the extraordinary circumstances that led to their tenants’ inability to pay. 

The papers list President Cyril Ramaphosa, Minister of Cogta Nkosazana Dlamini Zuma, and Minister of Police Bheki Cele as three of the 11 respondents. 

Despite the suspension on evictions, some people have been illegally kicked out of their homes or face harassment and intimidation from landlords by means of ‘constructive evictions’ through the cutting off of water and electricity. 

Albers expressed her disappointment that the government hadn’t come to the table to offer protection to tenants who’ve been paralysed by the Covid-19 regulations.

Now, the fight is being taken to court. 

This week, non-profit organisation Lawyers for Black People, filed papers at the South Gauteng High Court to seek a moratorium on evictions for the duration of the lockdown. 

“This application will help arrest any person who tries to evict someone unlawfully, and relieve the court of having to deal with spoliation applications on a daily basis,” said Zuko Madikane, the founder of Lawyers for Black People. 

If the order is granted, it will set a legal precedent for the entire country, says Madikane. 

“It is becoming an out of hand situation. People’s lives are in danger on a daily basis. They are facing eviction at any time, which will make them vulnerable to Covid-19.” 

The papers list President Cyril Ramaphosa, Minister of Cogta Nkosazana Dlamini Zuma, and Minister of Police Bheki Cele as three of the 11 respondents. 

Albers highlighted that Covid-19 created an “unprecedented” circumstance and “normal law” could not be applied to an “abnormal situation”. 

The law and lease agreements basically make no provision for a disaster of this nature, therefore the landlord is privileged and the tenant disadvantaged, Albers affirmed. 

Anele Mbenyane, who deals with civil litigation and property law, explained to Daily Maverick that the legal issue boils down to the unfairness in how lease agreements are often drafted and signed. 

“The lease agreement between the landlord and the tenant is not regulated enough,” said Mbenyane. “The landlord will draft the contract in their favour, and the tenant, without knowing the implications, will sign the lease agreement and now the court of law cannot intervene and will have to carry out what has been agreed upon.” 

Mbenyane added that tenants aren’t automatically disempowered by a lease agreement – they have room to question the contents of the contract – but often choose not to as they may be desperate for accommodation or aren’t given enough time to seek legal advice before signing. 

Mbenyane said that he also believes evictions should be suspended under all lockdown levels. 

Addressing the issue of illegal evictions, Mbenyane said an eviction can only take place with an official court order. 

“People must be evicted by the sheriff. If it is not the sheriff, then a court of law must have given the right to the person that is evicting.” 

Despite these provisions, illegal evictions are still taking place. 

Nicole Yeo, from Cape Town, was kicked out of her apartment at 10pm one night in mid-May. 

“We had the police come into the house and they just removed all our things and dumped them on the street,” said Yeo.  

The landlord had been granted an eviction order before lockdown began. However, due to the regulations, it should not have been executed. 

Yeo rushed to the courts and for a week fought to get a spoliation order to be allowed back into the property. It was granted on Tuesday. 

“We’d been on the street for a week,” said Yeo, “I also lost my dog… my dog was dumped on the street and my cats are also all missing.” 

She claims that when the police contacted her landlord regarding the eviction, he initially said he was unaware of it and later said the tenants had “left willingly”. 

“It’s just been a battle up and down to court, and also spending money I don’t have.”

Monica Kruger from Paarl told Daily Maverick she was given a 30-day notice to move out of her apartment. 

“I never had a contract that I signed,” explained Kruger, adding that her landlord had demanded she return his furnishings from the apartment, such as the fridge and couch. 

Reducing rental fees, making arrangements for tenants to cover their arrears when they return to work, and using deposits to cover costs in the interim are some of the suggestions she offered. 

Kruger lost her job as a waitress when lockdown began. Without an income, except UIF, she struggled to keep up with payments. 

Up until the lockdown, she says she’d consistently paid her rent on time. 

“I said he can use my deposit as rent, but he still said he wanted the full rent.”

Kruger claims her landlord used other bullying tactics. 

“He didn’t give me electricity for a while,” she said, “I have to buy electricity from him and he charges electricity at a more expensive rate than if I had to buy it from the shop or a banking app.” 

Rent payment was also done under dubious circumstances, with her landlord demanding payment in cash. 

Albers acknowledged that landlords are also suffering losses, but eviction is not the blanket solution to the rental crisis. 

“The landlord has a right, but the landlord must find himself in the same boat as the tenant.”

Reducing rental fees, making arrangements for tenants to cover their arrears when they return to work, and using deposits to cover costs in the interim are some of the suggestions she offered. 

“Where landlords don’t want to use deposits or don’t want to offer discounts or want to defer a month, those landlords shouldn’t be allowed to apply for eviction.” 

According to Mbenyane, landlords should request a payment holiday from their bank on bond payments, but said some banks seem unwilling to assist. 

Michelle Dickens, the managing director of TPN Credit Bureau, explained that the decision to use the rental deposit to cover fees is suitable to tenants who “acknowledge liability”. 

“Where the tenant defaults on the repayment of the reinstatement of the deposit, the landlord will be in a position to easily take further legal action.”

The company has created a Rental Recovery Pack for landlords and property managers to use free of charge.

Dickens says the number of tenants who have kept up with their rent payments has dropped since lockdown began. 

“81.52% of tenants were in good standing just prior to lockdown in 2020 Q1,” Dickens told Daily Maverick. 

“Preliminary data shows that for the month of April, 75.87% of tenants were in good standing, which is 5.65% less than the preceding quarter.”

For May, Dickens says the number dropped significantly to 63.75%. 

“Most tenants have a proven track record of willingness and ability to pay – the impact of the lockdown has meant that many tenants who remained willing to pay, just did not have the income.” 

The #NoEvictions Facebook page is just under a month old and serves as a platform for tenants to share their stories and seek advice or support regarding rental issues. 

… “illegal evictions have taken place often with “terrifying and abusive actions ranging from verbal harassment to lockouts to destroying the homes of the tenants”.

A similar, but more radical campaign, is Rent Strike. The collective is advocating that tenants not pay rent at all. 

“We encourage tenants to keep their rent in order to feed themselves and buy basic necessities in the midst of this crisis,” the group told Daily Maverick. 

According to Albers, this strategy is far too risky. 

“Rent Strike offers no assistance to all those they have told to write to their landlord and tell them they will not pay rent. They call for a rental strike but refer to no solutions or recourse,” she said. 

The group, however, said their call to action is not a “blanket prescription”.

“Foreign nationals, gender minorities, backyarders and other vulnerable people are already in high-risk scenarios if they are unable to pay rent, so our approach is always to try to diffuse any risky scenarios surrounding rent non-payment from the get-go.” 

Rent Strike says illegal evictions have taken place often with “terrifying and abusive actions ranging from verbal harassment to lockouts to destroying the homes of the tenants”.

“In many of these cases of illegal eviction, law enforcement has illegally taken the side of the landlord, leaving tenants in an incredibly tight spot regarding what to do.” 

Rent Strike, alongside the Covid-19 People’s Coalition, drafted a list of “demands for shelter” during Covid-19, including a rent and mortgage freeze and for “all residents in shack dwellings testing positive to be given safe and dignified accommodation in which they can self-isolate; where necessary appropriate buildings may be requisitioned for this purpose”.

Albers says the moratorium on evictions isn’t a blanket option either, but should apply to those tenants who’ve consistently paid their rent, but now, through no fault of their own, have been stripped of their income. 

“It is my firm belief and opinion that this is the time for the government and the courts to make the application of justice to be placed above the mere application of the law. That we find a just, and not merely a legally correct, resolution to the issue created by Covid-19 for renters and landlords.” DM