President Mnangagwa has invoked his temporary powers to allow rent payments for residential property and mortgage payments to be deferred during the lockdown because many people are not earning income during the period.
Deferred rent for residential property or deferred mortgage payments have to be made when the lockdown ends, but in three equal monthly payments for each month of lockdown.
So, if the lockdown lasts two months, the tenant has six months to make the back payments of the unpaid rent, and if it lasts three months, the tenant has nine equal monthly payments to pay the backdated rent.
These payments become due in the month immediately following the month during which, or at the end of which, the lockdown ends, but legal proceedings can only start 14 days after the due date.
Statutory Instrument 96, Presidential Powers (Temporary Measures) (Deferral of Rent and Mortgage Payments During National Lockdown) Regulations, 2020, was gazetted yesterday following a Cabinet recommendation on Tuesday that the President uses his temporary powers.
The regulations made it clear that any non-payment of rent or mortgage obligations during the lockdown is because of the lockdown, so there is no legal argument over the reason for non-payment.
But they also make it clear that tenants and property owners with mortgages can make payments during the lockdown, in whole or in part, in which case the regulations only apply to the unpaid portion.
Protected tenants, those who have not paid their rent during the lockdown, cannot be evicted during the lockdown, or afterwards, so long as they are making the back payments on time.
The regulations go into detail that the tenant cannot be subjected to legal proceedings, and courts cannot make any order, for eviction, for the recovery of possession or for damages of trespass.
Evictions are also banned for other reasons, not just non-payment of rent, and rent cannot be increased for any reason, even if there is an escalation clause in the lease.
And it does not matter whether the residential accommodation is rented in terms of a statute law or a contract.
But tenants who do not pay their monthly instalments of back rent after the lockdown within 14 days of that payment becoming due can be subjected to legal proceedings, including those deferred by the moratorium.
So legal action can be taken to evict tenants not making the back payments within the stipulated times.
Similar rules apply to property owners with mortgages.
They also get the three months for each month of lockdown to make the necessary back payments, they have that 14 day grace period, and they are also then subject to legal proceedings.
The preamble to the regulations carefully sets out the legal requirements for the President to invoke the temporary powers by noting that a state of national disaster was declared on 23 March, that a lockdown was declared under public health laws, and that the President can issue temporary regulations for reasons of public safety and public health when urgent action is needed that cannot wait for Parliament to pass the required legislation.
