South African Constitutional Court affirms tenants’ rights to challenge excessive rents

Country: South Africa/Sudáfrica

Thematic Focus: Housing Rights

Forum and Date of Decision: Constitutional Court of South Africa

Nature of the Case: Challenge to termination of lease and eviction by private landlord as contrary to Rental Housing Act and the constitutional right to housing; whether a landlord may cancel a lease, consistent with the terms of the lease, in order to raise the rents on the tenants; Rental Housing Act 50 of 1999.

Summary: This case concerns the attempted eviction of tenants of certain residential flats in Johannesburg.  These tenants had been living in these flats subject to various leases, some for nearly twenty years.  The leases contained a provision allowing either party to terminate the lease with certain notice.  Three years before the attempted evictions the landlord told the tenants to pay double or triple their rent or leave their homes. When the tenants refused, the landlord terminated their leases. The tenants then filed a complaint before the Gauteng Rental Housing Tribunal, arguing that the landlord’s actions constituted an “unfair practice” under the Rental Housing Act.  Before the Tribunal had ruled on this point, the landlord instituted eviction proceedings in the High Court.  This forced the tenants to withdraw their complaint before the Tribunal in order to focus their efforts on resisting eviction before the High Court.  The High Court found for the landlord, as did the Supreme Court of Appeal, determining that the terminations were consistent with a negotiated lease.

The Constitutional Court, however, found that both lower courts had erred in under-assessing the power of the Rental Housing Act.  The Court found that the Act forbids landlords or tenants from engaging in unfair practices, and that, even though the leases allowed cancellation by either party, the Act prohibited use of this provision to authorize an unfair practice. The Court also decided that the term “unfair practice” must be interpreted in light of the right of access to adequate housing contained in the Constitution.  Therefore, the central question was whether the landlord’s exercise of the termination clause solely to secure higher rents constituted an unfair practice.  The Court held that the Act placed the resolution of this narrow question solely within the hands of the Tribunal and that the tenants were entitled to a decision on this issue before they could lawfully be evicted from their homes.  The Constitutional Court, therefore, found that the High Court should have postponed consideration of the landlord’s eviction application until the Tribunal had ruled on whether the landlord’s actions constituted an unfair practice under the Act.

Updated on August 2013.