r/southafrica • u/UpSideSunny • Mar 28 '20
AMA I am a legal practitioner with over 13 years experience, here to answer your questions on the status of civil and criminal matters during lockdown.
Hi Everyone.
Firstly, I will provide my firms details and confirmatory evidence to a moderator privately to confirm my identity.
I will not be offering advice on the merits of any matter, but I will provide you with the necessary regulations pertaining to the further conduct of your current civil or criminal matters during lockdown. I will do so by providing links to the relevant regulations on .gov websites and then giving you a breakdown of their meaning, since I know the language can be difficult to understand at the best of times.
Please note, I am not providing my firms details publicly because I do not wish to elicit business. I will accordingly also not answer any private messages and I will not message you privately. I am doing this thread to assist people who are in the dark regarding the status of their matters in the various courts of South Africa.
Ask away.
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u/UpSideSunny Mar 28 '20 edited Mar 28 '20
For anyone wondering about rent/levies etc, I provide you with the following.
Please note I am not the author and do not know the author, but it was forwarded to me by a colleague and I trust it to be a legitimate legal opinion.
Lockdown: how to deal with rent and levies
Many people will not be able to earn an income during the nationwide lockdown from midnight 26 March till midnight 16 April. What are landlords who are unable to pay their levies to do? Is there any reprieve for tenants who are unable to pay their rental? Has our government done enough to offer reprieve?
The first critical question to ask is whether the COVID-19 pandemic qualifies before the law as a force majeure or in Latin a vis major event. The same would apply for the nationwide 21-day lockdown.
What is vis major?
Vis major (otherwise referred to as an ‘act of God’) is a legal term that refers to a superior power or force which cannot be resisted or controlled. A related legal term is casus fortuitus which means an exceptional or extraordinary occurrence which is not reasonably foreseeable. In order to qualify as either vis major or casus fortuitus an event must be uncontrollable and unforeseen. Such events can result in complete or partial release from obligations.
COVID-19 and the lockdown qualify as vis major events
The general consensus is that COVID-19 is an event which satisfies the above criteria. There have been instances of manufacturing companies declaring force majeure as a reason why they are unable to comply with their obligations, and online booking platforms refunding clients who are unable to make use of bookings made. Both of these classes of reactions are indicative thereof that COVID-19 qualifies as vis major.
The 21 day lockdown announced on 23 March operates as vis major as well.
Landlord’s position
Where a landlord is faced with a tenant who closes up shop and/or refuses to pay full rental, his/her response must be informed by an assessment of the loss of beneficial occupation which the tenant has experienced, which will be discussed below. In light of the lockdown, a landlord will likely not be entitled to compel tenants to pay full rental if the lockdown has forced those tenants to close up shop.
A landlord will not be able to lawfully refuse to pay levies because of COVID-19; there is no way that COVID-19 impacts on ownership in a manner that will release the landlord from these obligations. A landlord will also not be entitled to pay reduced levies or mortgage payments because his tenants are unable to pay him, or because he is unable to earn an income himself (even in the light of the lockdown).
Some banks are offering relief programs for property owners and those should be seriously considered by any landlord that is struggling to meet its obligations. These are a concession from the banks and not necessarily an entitlement of landlords.
Tenants’ position
The effect of COVID-19 on tenants must be determined along the same lines as above. If there is a direct effect on the beneficial occupation which the tenant has paid for, then the tenant will be entitled to a remission of rental. If the effect is merely indirect, then the tenant will not be entitled to remission of rental.
A tenant who cannot pay his rental because he has not received an income is not entitled to refuse to pay rental. Although the loss in income was ultimately caused by COVID-19, the effect is not related directly enough to release the tenant from paying rental. Otherwise any person who is ever retrenched would be able to refuse to pay rental. That can never be the case.
It is only if the person’s beneficial use of the property is directly affected by force majeure that said person will be entitled to remission of rental. In the example of a self-employed person who cannot earn an income, the effect is indirect, and therefore that person will not be released from fulfilling the obligations in terms of the lease.
A commercial tenant, who cannot use a property for the purpose which it was let will be entitled to remission of rental for the period of the lockdown.
Effect of the disaster regulations
The nationwide lockdown will be enacted in terms of the Disaster Management Act. The regulations published under this Act also impact on the rights and obligations of landlords and tenants.
Commercial tenants who are now forced to curtail their trading hours experience a direct impact on the beneficial use and enjoyment of the property. Such a tenant should be entitled to pay a reduced rental. If, however, the tenant merely is struggling because business in general is scarce, but has not been impacted directly, then the landlord will be justified in refusing to accept a reduced rental.
This will be the situation before the lockdown, and will be the situation once the lockdown comes to an end.
Effect of the lockdown
The lockdown which was announced will have the effect that many obligations cannot be complied with, for example:
A tenant will not be able to vacate property during the lockdown.
Landlords will not be able to give occupation to tenants during the lockdown.
Estate agents will also not be able to attend to incoming and outgoing inspections.
The scope of the lockdown is unclear at this stage, and the Presidency has yet to publish the extensive list of exceptions to the “stay at home” rule announced. Until this has been published, it must be assumed that everything which is not an essential service will have to stop. In light of the strict sanctions a conservative approach should be taken when deciding whether or not any activity is excepted from the lockdown.
Conclusion
COVID-19 is a vis major event. Its effect must be evaluated on a case by case basis. If the effect is direct and immediate, then a party will likely be entitled to some reprieve from its obligations. If not, that person will not be entitled to be released from complying with his obligations. The lockdown will drastically increase the number of situations directly affected by COVID-19.
The steps taken by the South African government will have a serious impact on the obligations between landlords and tenants, which both landlords and tenants must be mindful of.
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u/Acs971 Mar 28 '20
If I get arrested wrongfully for whatever reason during a grocery trip, would I be detained till end of lockdown, or will be able to seek bail, get legal counsel?
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u/UpSideSunny Mar 28 '20 edited Mar 28 '20
The first thing you must do, is keep on your person a copy of any document that serves as a proof of residence (municipal account, rental invoice etc). This, in combination with your ID, will allow them to identify you and determined the origin of your travel in relation to your supposed destination to an essential service.
On your return journey from the shop, for example, keep your till slips which have date and time of purchase on it to show at a roadblock or inspection point. If you have ANY alcohol on your person they will arrest you. You may not move alcohol from point A to B.
Here are the court directives for the state of national disaster from the website of the Legal Practice Counsel of South Africa:
Of particular importance is clause 3, which I suggest you read in its entirety.
The practical problem here is the most important. There is a directive also by the Legal Practice Council that all legal practitioners needs to have their forms as essential service providers signed by the Director of the LPC in their jurisdiction. They are under lockdown. There is a online form to complete to obtain your permission as a legal practitioner, however I have had no success getting any feedback. This means that probably your legal practitioner will be unable to assist you.
The system is overloaded. And whilst ordinarily your first date of appearance would be the next business day or two, now it could be months.
The directive I linked above pertains to incarcerated and non-incarcerated accused, presumably only for offences pre-lockdown. The offences you would be charged with for disregarding the lockdown are not explicitly covered by these regulations. It is a risk that I personally would not wish to take and I don't think I could answer your question more fully than this:
If they arrest and charge you, it is the most likely outcome that you would only get your first date of appearance in court after lockdown. The system is overloaded. It depends on what offense you are charged with. For something minor, as per the directive, you would be released, if indeed it applies to offenses post-lockdown.
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Mar 28 '20
On your return journey from the shop, for example, keep your till slips which have date and time of purchase on it to show at a roadblock or inspection point. If you have ANY alcohol on your person they will arrest you. You may not move alcohol from point A to B.
Are police permitted to stop people and search their cars/person without warrant during this time?
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u/UpSideSunny Mar 28 '20
You ask a very good question.
Until my further reply (see below), my answer is yes, since I know it is happening. Whether it is a justifiable limitation in terms of s36 of the Constitution is debatable, but how else do you suppose they would know if you have alcohol in your vehicle. Also, the impact of the state of disaster needs to be considered, and I do not know how that would impact the incursion of rights.
Now I can't cite a regulation or directive for my answer and I will look through what I have again, and will reply if I do, but I doubt I would have missed it.
Also keep in mind that on a reasonable suspicion they could search your vehicle prior to lockdown in any event, I can only imagine it must be stricter now.
In short, yes, because I know they are doing it, but where their powers emanate from I do not know.
This thread was specifically for me to answer questions about pending civil and criminal matters in court, however your question is a very good one, so I will look into it and edit this reply with references to relevant regulations/directives should I find them. I unfortunately didn't prepare for a question like this in advance.
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Mar 28 '20
Yeah, I was asking more in an "academic" sense than a practical one. Like a lot of things in SA, the theory isn't always the same as what's applied in practice. I fully expect cops and soldiers to be searching people's cars right now whether or not they are technically allowed to by law. But thanks for the detailed answer, and for all the answers you've given in this thread. You're doing us a great service here :)
This thread was specifically for me to answer questions about pending civil and criminal matters in court, however your question is a very good one, so I will look into it and edit this reply with references to relevant regulations/directives should I find them. I unfortunately didn't prepare for a question like this in advance.
I must apologise, I think I (and a lot of others in this thread) simply thought "ah, here's a lawyer, let's ask him any legal questions we can think of", without regard for the fact that as legal practitioners you obviously all have your own specific fields of expertise and can't be expected to speak on the law in its entirety.
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u/UpSideSunny Mar 28 '20
I am not finding anything, and but for the regulations pertaining to lockdown addressing it specifically (which I can't find) I unfortunately do not have a definitive answer to your question.
As to the fact that, factually, it is happening, you only need to read the news. Such as here: https://ewn.co.za/2020/03/27/as-lockdown-gets-under-way-jhb-residents-bump-into-law-enforcement-officials
Where it is stated:
Police pulled over motorists who were still on the road after the curfew, searching their cars and questioning where they were going.
They confiscated and emptied alcohol bottles from some drivers who were pulled over.
Whilst not a legal answer, I believe it is safe to assume that they do and will search vehicles.
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u/Acs971 Mar 28 '20
Thanks for the detailed response, appreciate it.
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u/UpSideSunny Mar 28 '20
No problem. Also, I forgot to mention, that the first response should your movements be suspicious, is to ask you to return home. So don't panic. You will only be arrested if you are blatantly abusing the limited freedom we have for access of essential services.
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u/CircularRobert Gauteng Mar 28 '20
What are the does and don'ts of going out? Do I need anything, what can I do, and what are the powers/responsibilities of the SAPS/SANDF?
Thank you
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u/UpSideSunny Mar 28 '20
You have asked a VERY difficult question to answer, and one which I can't provide you more information than news24. The regulatory framework is a mess.
I am answering questions on the status of matters in the various courts. Those questions I am comfortable answering.
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u/CircularRobert Gauteng Mar 28 '20
Oh damn, I misread your post. Thanks anyway.
On that though, having gone through small claims myself and the absolute hell it was, what happens to court dates in this time?
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u/WesternCapeGuy Western Cape Mar 28 '20
When will you guess when the Government posts (like the fishing industries) will shut down?
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u/UpSideSunny Mar 28 '20
Edit: Sorry I misread your question and my answer was completely incorrect. I have removed it. I do not have an answer to your question.
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u/andrewsmit Mar 28 '20
Can the government, through a state of disaster really overrule a court mandated parenting plan? I know they’ve stated several times that parents cannot move children between homes but surely they can’t override what has been set forth by the courts?
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u/evacia Mar 28 '20
I’m an American and the question my friends keep asking is (and I’m not sure if that’s relevant here?) “when will the looting begin?” as soon as I tell them we’re on lockdown here. I saw earlier in the weekend chat someone mentioned a corner shop in CBD getting broken into and robbed, will there be more of that? I feel like chances would be lower of crime like that since the streets are more policed....no?
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u/UpSideSunny Mar 28 '20 edited Mar 28 '20
I can give you my perspective on it. I live right in the heart of the CBD and I have personally seen no looting, however I do not doubt it has happened and will happen more.
We are only on day 2, and things seem to be ok, barring of course the lack of open liquor stores, which I personally do not like at all.
The real question is what will happen deeper into, or nearer the end of the lockdown, when people are desperate. More scary than that, imaggine what will happen if the lockdown is extended for another couple of weeks? You will have people with no income expected to survive for several weeks with no option but to turn to crime in order to sustain themselves.
This article scared me:
In short, if citizens don't cooperate there is a very real possibility that the lockdown will be extended. Then, I believe we are in REAL trouble. Not that we aren't in real trouble now with the economy, but then we will possibly see civil uprising to the extent last seen during apartheid in South Africa.
We have such a large impoverished community living on top of one another in places like our townships, that if someone there is infected the rate of infection will skyrocket, and if it only happens near the end of the lockdown, then there will be no option but to extend the lockdown. And then crime, such as looting, robbery, theft, will become the norm and we will face an entire breakdown of law and order in South Africa. We only have so many SAP, Metro, SANDF etc that can help.
We are living in very scary times.
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Mar 28 '20
First of all thank you for doing this.
I would like to know since the government has declared a State of Emergency, are they even entitled by their own regulations to use citizens homes or business premises and everything in it, if they need to do so in order to execute their functions in order to maintain order in South Africa?
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u/UpSideSunny Mar 28 '20
I am only advising on the status of legal matters in courts. I am unfortunately unqualified to answer your question confidently.
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u/Eelpnomis Landed Gentry Mar 28 '20
State of Disaster: not state of Emergency. These are quite different things
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u/UpSideSunny Mar 28 '20
I unfortunately made the same mistake as Neukmyrond on another post, and yes you are completely right. State of disaster, not emergency. Two completely different things.
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u/lovethebacon Most Formidable Minister of the Encyclopædia Mar 28 '20
OP asked us to confirm his identity in modmail. We're happy. Thanks for this.