2020 was an unpredictable year, to say the least. Each new week seemed to hold its own uncertainties and concerns. And in 2021, the world is still adjusting. In such times, it is important for tenants of residential property to know what their rights are in terms of premature cancellation of lease agreements that may be necessitated by COVID-19, the pursuant lockdown regulations and general change of personal circumstances.

As a point of departure, the tenant can consult the lease agreement to check if there are any provisions pertaining to early cancellation. If there is no such clause, or the terms of the clause are unacceptable, the tenant can turn to the provisions of the Consumer Protection Act 68 of 2008 (“the CPA”), if applicable.

The CPA will be applicable to residential lease agreements, except in rare circumstances. Consult with your lawyer to determine the CPA’s applicability to your lease agreement.

If the CPA is applicable to the lease agreement, the tenant would be able to lawfully cancel the lease agreement at any time, even if there is no cancellation clause in the agreement. Section 14(2)(b) of the CPA states that a tenant may cancel the lease agreement, despite any provision of the lease agreement to the contrary, by giving 20 business days’ notice in writing.

There may however be financial consequences for the tenant as the landlord can impose a reasonable cancellation penalty on the tenant upon early cancellation. There are guidelines in Regulation 5 of the Act as to what a “reasonable cancellation penalty” entails.

The cancellation penalty should not be exorbitant, and if the tenant feels that the landlord’s claim is excessive and unfair, they can approach the National Consumer Tribunal or the Rental Housing Tribunal. Tenants can also approach their lawyer, who can address the landlord and negotiate a reasonable cancellation penalty, considering the relevant facts of the matter.

Upon expiry of a fixed-term lease agreement the lease agreement will automatically carry on a month-to-month basis, unless the tenant expressly agreed to the renewal of a further fixed-term or the tenant terminated the agreement upon the expiry date. In such a case, the provisions of the Rental Housing Act 50 of 199 are relevant. The landlord can cancel the lease agreement, in terms of the Act, by giving one calendar months’ notice.

In Luanga v Perthpark Properties Ltd 2019 (3) SA 214 (WCC), the Western Cape High Court held that one month’s notice must be interpreted as a notice given before the end of the month, to terminate the contract at the end of the next month.

There are therefore various considerations at play when a tenant considers premature cancellation of a lease agreement. To avoid unnecessary disputes and an exorbitant cancellation penalty, a tenant would benefit from consulting their attorney before giving notice of cancellation to their landlord.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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The Portfolio Committee on Home Affairs has expressed its disappointment in the failure of the Department of Home Affairs to resolve the perennial Information Technology (IT) challenges that continue to hamper its ability to deliver quality services.

The committee received briefings yesterday that included a briefing from the department on its annual report for the financial year 2019-20, and a briefing from the Auditor General South Africa on the audit outcomes of the annual report for the financial year 2019-20 of the department.

The Chairperson of the committee, Adv Bongani Bongo, said: "It is unacceptable that the IT environment has not improved over the past few financial years and is worrying in the context of a department with a vision to be totally automated in delivering services. It is also unacceptable that it has taken this long to fill the position of the Deputy Director-General (DDG): ICT which the committee considers critical in resolving technological challenges at the department."

The committee highlighted the impact of the lack of improvement of the IT environment and its impact on the war on queues programme. It said the glaring and perpetual long queues that are evident at service points indicate the far reaching implications of the impact of the lack of improvement within the IT environment.

It is further concerning, the committee said, that the long queues are prevalent at a time of the Covid-19 crisis and when they pose a high risk of being super-spreader sources.

Despite this, however, the committee has welcomed the assurance it got from the department of interviewing the shortlisted applicants from today to fill the position of the DDG: ICT. The committee will await a report within a month from the department on progress in filling the critical positions within the department's IT environment.

The committee has welcomed the achievement of 75% of planned targets over the financial year by the department. While the committee appreciates the department for the achievement of its service delivery targets, it has called for a detailed plan indicating clear timelines on achieving the remaining targets.

Meanwhile, the committee is concerned that the department is stagnating in its audit opinion especially because the matter of emphasis continues to be on material findings on compliance with legislation. To this end, it said, the R284 million in irregular expenditure with R277 million of payments made on the ABIS project must be investigated and concluded. "The committee remains of the view that adherence to key legislation and policy processes is essential in ensuring prudent spending of state resources," Adv Bongo emphasised.

Also, the committee has expressed its concern over contingent liability that the department is facing as a result of litigations, but it is reassured by the department's employment of staff within its legal services unit to ensure timely response to legal matters against itself.

The committee welcomed the decrease in fruitless and wasteful expenditure in the year under review. Furthermore, it expressed its appreciation on the department's move to institute investigations against the alleged perpetrators of fruitless and wasteful expenditure with the aim of recovering the wasted financial resources.

Regarding the investigation on how Prophet Shepherd Bushiri and Mary Bushiri absconded from South Africa, the committee remains committed to getting to the bottom of the matter and will engage other committees within the Justice and Security cluster to get a full briefing from the cluster with the aim of getting reasonable answers on the matter.

Meanwhile, the committee has noted and welcomed the Minister of Home Affairs, Dr Aaron Motsoaledi's apology regarding comments he made during an interview on TV last Sunday which the committee was unhappy about. The Minister told the committee that he respects the committee's constitutional mandate of oversight over the department and that his comments were in no way an affront to this important mandate.

Regarding the correspondence which the committee Chairperson has received on the matter of alleged fraudulent Corporate Visas issued to new mining companies, Bokamoso and Phenyo mining solutions, the committee has resolved to request the department to suspend the permits that were given to the two mining houses.

Furthermore, the committee has instructed the department to conduct an investigation into the issuance of those permits especially in the context of the allegations of preferential treatment given to these entities and it has given the department a deadline of the end of March 2021 to submit a comprehensive report on the matter.

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 'We won't turn away undocumented people,' Treasury boss reveals

The government has revealed that illegal immigrants will also benefit from the rollout of the Covid-19 vaccine.

National Treasury director-general Dondo Mogajane said this during a virtual meeting between his department and the SA National Editors Forum on Wednesday afternoon.

“We are in SA and we have many millions of undocumented people and [we can't say they shouldn't receive the vaccine as they are undocumented]. The demand for the vaccine is going to be exceeded, and we are not going to turn away undocumented people…” said Mogajane, without revealing more details.

He said that getting the vaccine was for the public good, and it would be appreciated if medical aid companies could procure vaccine dosages for two or three extra people who are not their clients.

“We welcome all the donations and if medical aids want to pay for three people extra, and they must know that it's for the public good,” he said, as he urged donations relating to the vaccine to be channelled towards the Solidarity Fund.

Mogajane noted that the Covid-19 vaccination programme was the responsibility of the state and “the state cannot be found wanting” in this regard.

Treasury deputy director-general Ismael Momoniat said that in the meetings he has been attending at Nedlac they have seen a growing demand for the extension of social grants for unemployed people, as well as the extension of the Temporary Employment Relief Scheme and the loan guarantee scheme.

Momoniat said that some people made these demands as if the country was still on level 5 hard lockdown.

He, however, said they were busy talking with the department of employment and labour about the relief measures.

Another Treasury official said a request for deviation from normal processes in the procurement of the vaccine and in the transportation and distribution had been approved.

The official said the four logistics companies, which include DSV, had been awarded a contract to transport the Covid-19 vaccines at temperatures ranging between minus -17°C and 5°C.

The official said that contracts would be reviewed in six months

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The Department of Home Affairs (DHA) is looking to conclude its biometrics tender by the end of the year.

So says Siya Qoza, DHA ministerial spokesperson, after the department received a preliminary forensic investigation report into the awarding of the botched Automated Biometric Identification System (ABIS) tender.

The ABIS system was supposed to be up and running after 12 months but this hasn’t happened yet. The contract was awarded in 2015.

Implementation of the ABIS system was delayed after the missing of master files in the contract, with EOH prompting the DHA to launch a forensic audit on how the tender was awarded.

The preliminary report’s assessment of the process, according to officials, has now been presented to the DHA but the department remains mum on its findings, saying it’s waiting for the final report.

Home affairs minister Aaron Motsoaledi has since last year been making amends to salvage the controversial multimillion-rand project, which saw the department slapping technology services company EOH with a R44 million penalty over delays in the implementation of the project.

In his presentation to the portfolio committee last year, Motsoaledi revealed that out of the R400 million contract, R224 million had already been spent on services, infrastructure and software. The budget still available for the project is R129 million.

Commenting on the progress of the project, Qoza says: “The project is still continuing with its implementation on the basis of the signed master services agreement between DHA and EOH. EOH has not been released from its obligations.

“The DHA intends to finalise the ABIS issues before the end of the current calendar year, to ensure phase one of the project goes live into production.”

“A preliminary report has been handed over to the department. The department awaits the final report.”

Ructions over the contract have been growing since November, when reports emerged that recommendations had been made to the department that the contract be ceded to French multinational technology company IDEMIA.

It is this recommendation that has caused controversy, with questions being asked as to why a subcontractor that was part of a consortium that failed to deliver the ABIS system on time should be the one to take over.

IDEMIA’s empowerment credentials as per the tender requirements were also flagged as a concern because it’s a French-headquartered company.

Motsoaledi, however, denied IDEMIA was the preferred company to take over the project from EOH.

He added that the DHA was considering various rescue plans, including the ceding of the contract on condition that such action doesn’t lead to excessive additional costs.

The matter was then referred to National Treasury for guidance.

“The matter is still under consideration at National Treasury, including additional information that has been requested,” Qoza tells ITWeb

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Home affairs sets new deadline to deliver biometrics project

IT Web – 27 January 2021

The Department of Home Affairs (DHA) is looking to conclude its biometrics tender by the end of the year.

So says Siya Qoza, DHA ministerial spokesperson, after the department received a preliminary forensic investigation report into the awarding of the botched Automated Biometric Identification System (ABIS) tender.

The ABIS system was supposed to be up and running after 12 months but this hasn’t happened yet. The contract was awarded in 2015.

Implementation of the ABIS system was delayed after the missing of master files in the contract, with EOH prompting the DHA to launch a forensic audit on how the tender was awarded.

The preliminary report’s assessment of the process, according to officials, has now been presented to the DHA but the department remains mum on its findings, saying it’s waiting for the final report.

Home affairs minister Aaron Motsoaledi has since last year been making amends to salvage the controversial multimillion-rand project, which saw the department slapping technology services company EOH with a R44 million penalty over delays in the implementation of the project.

In his presentation to the portfolio committee last year, Motsoaledi revealed that out of the R400 million contract, R224 million had already been spent on services, infrastructure and software. The budget still available for the project is R129 million.

Commenting on the progress of the project, Qoza says: “The project is still continuing with its implementation on the basis of the signed master services agreement between DHA and EOH. EOH has not been released from its obligations.

“The DHA intends to finalise the ABIS issues before the end of the current calendar year, to ensure phase one of the project goes live into production.”

“A preliminary report has been handed over to the department. The department awaits the final report.”

Ructions over the contract have been growing since November, when reports emerged that recommendations had been made to the department that the contract be ceded to French multinational technology company IDEMIA.

It is this recommendation that has caused controversy, with questions being asked as to why a subcontractor that was part of a consortium that failed to deliver the ABIS system on time should be the one to take over.

IDEMIA’s empowerment credentials as per the tender requirements were also flagged as a concern because it’s a French-headquartered company.

Motsoaledi, however, denied IDEMIA was the preferred company to take over the project from EOH.

He added that the DHA was considering various rescue plans, including the ceding of the contract on condition that such action doesn’t lead to excessive additional costs.

The matter was then referred to National Treasury for guidance.

“The matter is still under consideration at National Treasury, including additional information that has been requested,” Qoza tells ITWeb

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