The primary elements of a lease are that the lessor gives the lessee use and enjoyment of the property; and the lessee pays the lessor rent for such use and enjoyment of the property. Therefore, these obligations must be performed one against the other. In light of that, the non-payment of rental constitutes non-performance on the part of the lessee to comply with their contractual obligations in terms of the lease agreement concluded with the lessor.
In the case of commercial leases, tenants could, during the different stages of the national lockdown, and in specific instances, claim for a reduction or suspension of rental payment due to vis major as tenants suffered a loss of beneficial occupation which loss was objective, direct and an immediate result of vis major. However, this is not the case in respect of residential leases as the lessee remained in occupation of the property.
The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, No. 19 of 1998 (Act) provides for the prohibition of unlawful eviction and for procedures for the eviction of unlawful occupiers. Where a lessee has breached the terms of the rental agreement such that the lessor has opted to exercise its right to terminate the contract, but the lessee does not vacate the property, rendering the lessee an unlawful occupier in terms of the Act, the lessor must follow the procedures as provided for in the Act.
In terms of section 4(2) the Act, at least 14 days before the hearing of the proceedings by an owner or person in charge of land for the eviction of a person who occupies land without the express or tacit consent of the owner or person in charge, or without any other right in law to occupy such land, the court must serve written and effective notice of the proceedings on the unlawful occupier and the municipality having jurisdiction. This notice must, of necessity, state that proceedings are being instituted for an order for the eviction of the lessee; indicate on what date and at what time the court will hear the proceedings; set out the grounds for the proposed eviction; and state that the lessee is entitled to appear before the court and defend the case and, where necessary, has the right to apply for legal aid.
In terms of section 8 of the Act, no person may evict an unlawful occupier except on the authority of an order of a competent court. Therefore, lessors may not evict non-paying tenants unless they to comply with the procedure set out in section 4 of the Act.
Of significance, in terms of section 8(3) of the Act, any person who contravenes the provisions of the Act, and evicts an unlawful occupier without the authority of an order of a competent court is guilty of an offence and liable on conviction to a fine, or to imprisonment not exceeding two years, or to both such fine and such imprisonment.
In order to avoid the prescribed penalties of the Act, it is imperative that lessors adhere its prescripts. Finally, various promulgations relating to evictions have been made by the relevant ministers pursuant to each pronounced lockdown level. These must be carefully considered in conjunction with the above.