WHAT DO THE REGULATIONS SAY
The Minister of Cooperative Governance and Traditional Affairs published the Directions on the once-off movement of persons and the transportation of goods for purposes of relocation as GN513 in GG 43293 on the 7th of May 2020 (“the Relocation Regulations”). These regulations state that persons are permitted to travel to a new place of residence is permitted to do so between the 7th of May 2020 and the 7th of June 2020.
SCOPE OF THE RELOCATION REGULATIONS
The purpose of the Relocation Regulations is to facilitate the movement of persons and goods within and across provincial, metropolitan, or district boundaries. By implication therefore people are not allowed to move within or across any of these boundaries/areas to a new home except as set out in the regulations.
The Relocation Regulations state that cases where a person had entered into a new lease agreement before or during lockdown, or where the transfer of property occurred before lockdown are situations which require a change in place of residence.
RE: PENDING TRANSFERS
This means that where transfer of a property is pending, the regulations will not apply. These regulations only apply where transfer has been registered and the person was unable to move into the new place of residence.
In respect of leases, the definition of “lockdown” is relevant. The Relocation Regulations state that words shall have the meaning assigned in GN480 published in GG 43258 on the 29th of April 2020 (“the 29 April Regulations”) unless context otherwise indicates. The 29 April Regulations define lockdown as the period between 23H59 on the 26th of March 2020 and 23H59 on the 30th of April 2020.
It appears therefore that on a strict reading of the wording of the regulations only those leases concluded before 23H59 on the 30th of April 2020 fall under this regulation.
ACROSS vs WITHIN DISTRICT/PROVINCE/METROPOLE
Persons are only permitted to move within or across any of these boundaries/areas to a new home if they fall within one of the two categories listed in the regulations. For those who are crossing any of the boundaries listed, they will require a permit as set out in regulation 3 of the Relocation Regulations.
Having said that, it may be advisable, albeit not strictly necessary, for people to obtain a permit even for moves within a district or metro, so as to avoid unnecessary problems with police.
The Relocation Regulations state that the transport of goods is permitted in terms of the 29 April Regulation 22(1)(f); and regulation 3(a) of the Relocation Regulations state that household furniture and effects may be moved. Therefore, it appears that moving companies will be permitted to move the household contents and personal effects of people who fall within the scope of these regulations.
WHAT THE RELOCATION REGULATIONS DO NOT COVER
It appears clear that the Relocation Regulations do not cover people who have entered into new leases subsequent to the commencement of alert level 4, as this will have taken place after lockdown, as defined, ended. People who have
concluded such a lease will therefore not able to rely on the Relocation Regulations to relocate. The regulations also do not allow people to inspect properties now with the aim of concluding a lease and moving by the 7th of June 2020; this is consistent with the interpretation that the Relocation Regulations do not apply to leases concluded after the 29th of April 2020.
The position regarding evictions remains unchanged by the Relocation Regulations; nothing in the wording thereof repeals any other regulations published, and as such, evictions will still not be able to proceed. Likewise, a landlord will not be able to give a tenant notice to vacate the property, as such a tenant is not covered by the Relocation Regulations. The landlord may cancel a lease, but will have to wait for regulations regarding personal movement to be relaxed before a tenant can be forced to vacate a property.
People simply looking to move between properties which they already own are not, in my opinion, permitted under the Relocation Regulations to do so. Their position remains the same as it was prior to the Relocation Regulations being published. The reason for this is that the regulations seem to be aimed at people who have been unable to move into a property to which they have committed to moving to. This is aimed at situations of necessity, and not convenience.
The wording used in the Relocation Regulations seem to indicate that it will not apply to juristic persons. Businesses looking to move shop will therefore not, in my opinion, be permitted to do so in terms of these regulations. This is because the regulations refer to place of residence; juristic persons of course do not have a place of residence, but a registered office and principle place of business.
There are several problems which people may run into while trying to make use of the window of movement permitted in terms of the Relocation Regulations. First, properties may still be occupied by tenants who are holding over; as eviction orders cannot be carried out at this time, the tenant who is entitled to move into the new property in terms of the regulations will be unable to do so. Likewise, if a tenant is permitted to move into a new property in terms of the Relocation Regulations, the property to which he seeks to move may be occupied by a person who is not covered by the Relocation Regulations. The first tenant therefore will not be able to move, despite the fact that he is permitted to do so.
Secondly, landlords whose tenants are permitted to relocate by the Relocation Regulations will be left with an empty property and no way to place new tenants. Admittedly this is not a deterioration of the position of landlords on the whole; the landlord of the property to which the tenant moves will be able to receive rental. But it is nonetheless a practical problem faced by some landlords.
Thirdly, in many cases ingoing inspections will not have been conducted as yet. Estate agents are not essential services and therefore will not be permitted to conduct ingoing inspections; this will mean that landlords will have difficulty recovering the cost of repairs once the leases come to an end. There have been reports that some estate agents have been able to obtain permits entitling them to conduct inspections in cases where people have moved in terms of the Relocation Regulations.
Although apparently Shane Brown, the Head of Disaster Management in Port Elizabeth has informed TPN that estate agents can obtain such a permit as doing so will be in assistance of an essential service, the wording of the regulations do not, in my opinion, support such a view. In this respect I err on the side of caution, as taking chances may result in detention by SAPS. Having said that, there are no doubt many agents who will subscribe to the views of Mr Brown, and possibly even make some money therefrom. I do not consider it worth the risk.
Additionally, there is not clarity on how landlords or agents will be permitted to hand keys to tenants who are entitled to move. One would think that simple drop off would be permissible but this is speculation as the subject is not covered in the Relocation Regulations.
And finally, tenants who concluded lease agreements during lockdown will no doubt not have been able to view the property; this could also lead to tenants being stuck in a property which is not satisfactory and thus be left without recourse.
HOW TO DEAL WITH THE UNCERTAINTY CREATED
In these uncertain times, and especially with so much government regulation, there is bound to be uncertainty. The best way to deal with this, in my opinion, is to consult with police officers as, at the end of the day, they will be the ones enforcing the Relocation Regulations as they understand them. Perhaps the situation will change in due course, if more clarity is gained from further regulations, but in the meantime, this is the approach that should be taken.