COVID-19: Friendly Warning and Message of Hope to Tenants not able to Pay Rent during Lockdown

From what I have personally experienced since the Lockdown started, landlords and agents all over the country have engaged in similar practices to curb against, as they call it, the unlawful non-payment of rent using the Lockdown as an excuse.

These rent collecting entities have the luxury of being protected by numerous property industry organisations and can also afford the most expensive legal teams money can buy to advise them on how they can bypass this “Lockdown excuse” and enforce their rental rights at the cost of the occupational rights of tenants.

Clearly the attitude is to aggressively collect rent as if the survival of their businesses depend on it even if those tactics include the usual illegal disconnection of electricity/water, lockouts, illegal evictions and the sending of bouncer type of “security officers” to go and do rental collections directly at rental units violating the Lockdown Regulations by doing debt collection and moving around outside the confinements of their residences for the rendering of non-essential services in the process.

Although I have noticed that there are some tenants who are exploiting the situation, I belief that most tenants are indeed in financial distress holding onto their monies worried what tomorrow might bring with talks in the grapevine that employers have the right to demand from their employees to take leave and even non-payment of salaries for “no work no pay”.

Those tenants who are working for large companies, businesses rendering essential services and public service who have received their full salaries should pay their rent in full for the duration of the Lockdown and resultantly it should not be used as an excuse. Chances are good that these tenants will receive their full salaries as ussual for as long as the Lockdown takes.

However the many who rely on SMME businesses, informal trade, partial employment, sales commission, and the like, as I have written in a previous article, may resort themselves to the common law protection of a force majeure which for tenants basically relates to one’s right not to pay rent due to unforeseen circumstances out of their control like the Lockdown.

However, this protection is only available to a tenant against termination of a lease and legal process in relation to rent due during the Lockdown and for as long as the effects thereof can harm their income thereafter within reasonable bounds and does not absolve the tenant from not being held liable for the arrears rental. [Read also COVID-19: Rights of a Residential Tenant in relation to Rental Payments during Lockdown (and Thereafter) posted on 11 April 2020 in which I have discussed force majeure in detail].

Yesterday morning I received an interesting letter sent to the Tenants’ Committee of a building called Mimosa in the Johannesburg CBD written by their estate agent Urban Task Force (UTF) in which this agency acknowledges the problem experienced with the Lockdown but demanded that only individual tenants may approach UTF to apply for leniency and may not be represented by the committee which UTF claims is against the law and if this committee does not disband immediately, UTF would consider it as an attempt of a “rental boycott” and aim to “hijack” the building.

Not only have both the phrases “rental boycott” and “property hijacking” not been specifically defined by any Court as yet, but mostly rental collecting entities who are utilising the legal services of the infamous eviction guru attorneys of Johannesburg, Vermaak Marshall Wellbeloved (VMW) Incorporated, have been name dropping these phrases throughout eviction applications issued on the urgent roll of the High Court Gauteng Local Division Johannesburg over several years as the secret tactic to quickly evict non-paying tenants.

As a relief to tenants who feel powerless defending themselves against the onslaught of their landlords and agents, after a fierce court battle stretching over several months, Liberty Fighters Network (LFN) together with several other occupiers from a residential building known as Shangri-La in Bellevue have managed to successfully appeal against one of the VMW matters during December 2019 where a Full Court of three judges held that the processes followed during these urgent eviction court applications by not properly analising the personal circumstances of the occupiers in relation to them becoming homeless and for the City of Johannesburg absent, are indeed valid defences. LFN has now also approached the Constitutional Court to hopefully finally hit a final nail in urgent eviction applications’ coffin.

Back to the misleading UTF letter, when I have first read it I initially thought that I had incorrectly judged UTF as an unreasonable and eccentric estate agency, until I have reached the final paragraphs in which it opportunistically spread false information that it was apparently illegal and against the law to have and be part of a tenants’ committee clearly trying to create fear amongst the tenants who are part of it.

Let me proof that UTF statement as factually incorrect… Firstly, the Constitution of the Republic of South Africa, 1996 gives everyone the right of association in Section 18 thereof and secondly the Gauteng Unfair Practices Regulations, 2001 which were promulgated by the Gauteng Province in terms of Section 15(1)(f) of the Rental Housing Act, 1999 (Act No. 50 of 1999) stipulate in Regulation 3(3)(d) thereof that a lease may not include a stipulation which precludes a tenant to belong to a tenants’ association and these regulations even go further in Regulation 14(1)(b) to say that a landlord must not “preclude the tenant from establishing or being a member of any tenants committee or any similar body.

Clearly UTF is engaging itself in alleged unfair rental practices by informing the tenants of this Mimosa residential building that they are prohibited to belong to a Tenants’ Committee which claimed action by UTF could constitute a criminal offence in terms of Regulation 14(5) of the Gauteng Unfair Practices Regulations, 2001.

Sadly to go and open a criminal case against UTF at the Police for having allegedly stated so in a letter which constitutes an unfair rental practice and punishable by a fine or two years imprisonment or both the fine and imprisonment, will be met with the incompetent reaction by the Police that the tenants must refer the matter to the Gauteng Rental Housing Tribunal due to their belief that the matter is civil in nature just like an illegal eviction without a court order always sparks from them.

This afternoon one of our members, whose employer is allegedly intentionally withholding salary payments to its 347 workers due to its claim that it is unable to pay salaries due to the Lockdown affecting its business, forwarded an SMS to me wherein her letting agent a one CBD Residency apparently claims that if she doesn’t pay her rent today that her property will be thrown out of her room which clearly constitutes a threat of illegal eviction and is alleged criminal intimidation as well.

Notwithstanding that our member and even myself during a telephone conversation explained to the representative of CBD Residency who was making these threats of illegal action, a one Ms. Melissa van Wyk, that the tenant is an unfortunate victim of the Lockdown the agent simply refused to listen and arrogantly ended the phone call and refused to receive any further phone calls from myself.

Also yesterday I was notified that a group of men stormed the flats of several tenants at Derry Mansions, managed by another client of VMW an agency called Southend Properties, and without having any such right illegally evicted them. After both myself and EFF Clr. Lydia Ledwaba contacted the Station Commander of the Johannesburg Central Police Station, Brigadier Perumal, two police officers, Seargants Mathiya and Netshungane, were sent to the scene but instead of acting against the suspected criminals and contravention of the Lockdown Regulations these officers instead started to enquire from the illegally evicted tenants why they did not pay rent and concluded arbitrarily that it was a civil matter and left the crime scene. By late last night, the illegally evicted Derry Mansions tenants were allowed to enter their flats, but everyone had their doors removed.

If we don’t realise it by now as we also see throughout the Lockdown, the Police is seemingly raging a war against the poor people of this country by continuously protecting the wealthy and influential culprits and not the victims.

Just like it is a total waste of time to report rental collecting entities to the Police for violating the Lockdown Regulations when groups of thugs engage in contact rent collections going door to door, it’s also a total waste of time and energy to try and persuade the biased Police to open criminal cases for illegal evictions and unfair rental practices.

However once a tenant who was illegally locked out of his home tries to force his way back in, the Police is quick to arrest such a tenant for alleged malicious damage to property after having been entrapped to obviously do so.

While landlords and their agents have the treat of fighting tenants from upper dry ground and Police and our courts on their side, the only thing tenants can do now is to hope that some reasonable policemen will find pity in their desperate situation and realise that tenants (and the poor in general) are the actual victims in this Lockdown and deserve to receive their law enforcement service to act against these “mafia-type” operations of the property industry which have only intensified during the Lockdown knowing that tenants are more dysfunctional in challenging these unjust actions than ever before.

Tenants in real need of rental assistance can try their best to involve the Police whenever they are faced with illegal actions from their landlords and agents and maybe they’ll manage to get their complaints acted on. Sadly with the incompetent Police, especially at the Johannesburg Inner City Cluster Stations, one’s chances to win the Lotto is far greater than convincing the Police to suddenly positively change their approach towards tenants.

Going to court for an urgent spoliation order to restitute ones electricity or having been illegally evicted seems also very difficult as people without resources of having printers to print court papers and making copies as required by the court rules, find themselves helpless and even chased back inside their homes by law enforcers for being in the street on their way to the court while the PostNet or internet cafe around the corner had been earmarked as non-essential services.

Getting a pro bono attorney now is even more difficult than during normal times to fight the case of a destitute tenant and resultantly tenants in need to defend themselves against the cowboy property industry is left to only hope and their faith.

However once the Lockdown is over, LFN is getting itself ready to ensure that the required action is taken against all rental collection entities who took the law in their own hands during the Lockdown and assist all affected tenants with suitable damages claims with several planned legal processes and other intended actions ranging from approaching the South African Human Rights Commission and even filing more complaints against the State with the African Commission on Human and Peoples’ Rights in The Gambia.

During the Lockdown LFN is also busy planning the establishment of the long-awaited National Association of Residential and Commercial Tenants of South Africa (NARCTSA) in order to level the playing field within the property industry of South Africa.

Dear oppressed tenants, my late father taught me as a child that I must never throw the first punch to my enemy. Many tenants have now received a brutal first blow to their cheeks while they only asked for leniency from their landlords and agents, after most tenants had been obediently paying their rent before. When we raise from the floor after the Lockdown, the unjust property industry of this country can expect mass action from the tenants it treated like dirt in the hour of our need. Let God be our witness to that!

Amandla! Power! Krag! The People always First!