Courts will demand that landlords, tenants showed ubuntu during lockdown, lawyer says

It is expected that the courts will demand that landlords and tenants apply the principles ubuntu during the coronavirus crisis, says a prominent property lawyer.

Ubuntu is a recognised legal principle in South Africa, and has been used in legal cases to demand humanity, respect for dignity and morality.

Cilna Steyn, managing director of the property law firm SSLR in Johannesburg, expects that the landlords won’t be able to rely on current common law solely in court when trying to evict or recoup money from tenants, who can’t afford to pay because of the coronavirus crisis.

“They will have to demonstrate ubuntu – that they didn’t profit while the tenants lost all of their income due to the crisis and couldn’t afford to feed their families.”

The same principle will be demanded from tenants who refuse to pay landlords. South Africa’s large commercial property owners are facing a struggle for survival as their major mall tenants are not paying rent during the lockdown.

“The burden of proof will be to demonstrate that all parties did their best to accommodate each other during a time of extraordinary hardship,” says Steyn.

Already, almost a third of SA’s residential tenants did not pay full rent in April, according to preliminary data from Tenant Profile Network (TPN).

May is expected to be a bloodbath, when it will reflect the first mass job losses as a result of the coronavirus crisis and lockdown. According to one estimate, almost a million South Africans could lose their jobs due to the crisis.

Steyn says that a fake news report that Health Minister Zweli Mkhize had barred landlords from collecting rent money from their tenants has already contributed to an increase in non-payment, while the eviction of homeless people by municipalitieshas created uncertainty about whether evictions can proceed.

Government has banned any evictions during the lockdown, as well as sheriff services for evictions. But TPN has seen a 30% surge in letters of demand against tenants, as landlords continue to demand rent and prepare for cancellation of leases and possible evictions post-lockdown.

Steyn says  landlords are allowed to send these letters of demand. “It is crucial for landlords to do so where tenants and landlords are unable to find middle ground, (and after) considering their personal circumstances.”

Tenants who were unable to pay rent because of the effects of the coronavirus, and who have landlords who were “factually” in a position to assist the tenant financially, but who have failed to do so, will probably be given more time to vacate given the current crisis, she ads.

She advises landlords and tenants, who can’t afford to pay full rent, to conclude a separate very specific agreement to accommodate the period of non-payment. This could include using the deposit in lieu of rent, or arranging deferment of the rent.