MAIN IMAGE: Marlon Shevelew, director Marlon Shevelew and Associates
With the downgrade from Alert Level 4 to Alert Level 3 looming close, the issuing of summonses and eviction applications draws ever nearer. What can landlords expect once the lockdown we are currently under is eased?
“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.” according to some. But the fact of the matter is that, as with most things in life, the situation is simply not so clear cut.
What is ubuntu?
Ubuntu was defined by Justice Langa in Makwanyane 1995 (3) SA 391 (CC) at para 224, as “a culture which places some emphasis on communality and on the interdependence of the members of a community. It recognises a person’s status as a human being, entitled to unconditional respect, dignity, value and acceptance from the members of the community such person happens to be part of. It also entails the converse, however. The person has a corresponding duty to give the same respect, dignity, value and acceptance to each member of that community. More importantly, it regulates the exercise of rights by the emphasis it lays on sharing and co-responsibility and the mutual enjoyment of rights by all.”
Challenges faced by landlords
The lockdown and the economic slowdown which it has precipitated has placed a lot of pressure on the majority of South Africans. Landlords and tenants are no exception. As the current state of disaster is relaxed through the various alert levels, different challenges will have to be confronted by landlords. These will likely include tenants who have fallen in arrears, and inevitably evictions.
Ubuntu in evictions
It is trite that evictions must be done in an equitable fashion; sections 4(6) and (7) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 state that evictions may be granted if it is just and equitable to do so, after considering all the relevant circumstances. Courts therefore are duty bound to consider equity when adjudicating evictions.
And Justice Sachs said the following about ubuntu in Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) at para 37:
“The Constitution and PIE confirm that we are not islands unto ourselves. The spirit of ubuntu, part of the deep cultural heritage of the majority of the population, suffuses the whole constitutional order. It combines individual rights with a communitarian philosophy. It is a unifying motif of the Bill of Rights, which is nothing if not a structured, institutionalized and operational declaration in our evolving new society of the need for human interdependence, respect and concern.”
This means that ubuntu will have an effect on evictions. It will likely affect whether a court deems it just and equitable for an eviction order to be granted, and it will likely have an even greater effect on when an eviction order can be carried out. The wording of the regulations and what is permitted under the different Alert Levels of the state of disaster will play a pivotal role.
Under Alert Level 4 eviction orders were granted, but the regulations made it clear that any such orders would be suspended unless the court granting the eviction is of the opinion that it is not just and equitable for such a suspension. The position appears to remain unchanged under Alert Level 3. This means that for the foreseeable future, eviction orders will be suspended save in exceptional circumstances.
Ubuntu in the law of contract
What is less clear is what approach the courts have taken on ubuntu in the law of contract. Different courts, by virtue of the fact that they are comprised of different judges, take differing approaches to matters which they decide on. Many times these positions vacillate with time. The present topic is one where the Constitutional Court and the Supreme Court of Appeal have consistently taken divergent approaches to the topic.
The Constitutional Court has in several judgments, including Barkhuizen v Napier 2007 (5) SA 323 (CC), Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (1) SA 256 (CC), and Botha and Another v Rich NO and Others 2014 (4) SA 124, essentially applied ubuntu and fairness in declining to enforce the terms of agreements strictly.
The Supreme Court of Appeal, on the other hand, has consistently, and in a long line of cases has declined to allow the ideas of fairness (in pre-Constitutional times) and ubuntu (in the Constitutional era) to outweigh the sanctity of contract and the principle of pacta sunt servanda, only applying them as the basis of our legal rules, and not legal rules in and of themselves.
And as recently as 1 October 2019 the Supreme Court of Appeal gave judgment in Liberty Group Ltd and Others v Mall Space Management CC 2020 (1) SA 30 (SCA), a matter where the role of ubuntu in the law of contract had to be applied. Referring to several of its previous judgments with approval, the court stated at para 29 that “the concepts of good faith, justice, reasonableness and fairness are not self-standing rules which can justify the avoidance of performance under a contract. They are underlying values that are given expression through existing rules of law.”
While it is clear that ubuntu must be taken into consideration when courts adjudicate evictions, the divergent approaches which the courts have to date taken when asked to decide on the role that ubuntu plays in the law of contract means that it is not as simple as saying that landlords “will have to demonstrate ubuntu” without any qualification. If the Supreme Court of Appeal has consistently declined to apply ubuntu and fairness as a free-floating principle, such an unqualified statement cannot be accepted without more.
That is not to say that courts will not apply ubuntu; far from it. The Constitutional Court has in several judgments applied ubuntu, and the door to develop the common law in line therewith is firmly open. But it remains to be seen which approach will take preference in our courts.
Perhaps once the aftermath of COVID-19 has run its course, a simple straightforward answer will be available to us all in regard to the role of ubuntu in the law of contract. But for the meantime we can only hope for clarity and consistency in the judgments handed down by our highest courts in the future.
About the author: Marlon Shevelew is the director of law firm Marlon Shevelew and Associates Inc. Shevelew is a well-known expert authority on residential property law in South Africa.