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Wednesday Aug 27, 2014

Land tenure 'a two-way street'

Tenure means a period under which a person has the right to hold employment or term of public or private office.

Security of tenure refers to a permanent position of employment, like the security of tenure of the office for judges.

In a feudal society, tenure dealt with land ownership and land possession. All land belonged to the king.

The tenant was a landholder, who had the right to possess land.

In return, the tenant had to render many services to the lord.

'The various types of arrangements between the tenant and lord were called tenures. The most common tenures provided for military service, agricultural work, economic tribute or religious duties in exchange for land.'

In rental housing, tenure refers to the duration of occupancy right.

Security of tenure would be the length of time a person is entitled to possess a dwelling/ property, for example, a fixed-period lease for nine years; a monthly lease, daily, weekly or whatever the period agreed between the parties.

This right to hold on to the dwelling is secured by the period agreed. A tenant who has a nine-year lease cannot be expected to move out after two years, or even eight and a half years.

If the tenant is forced to vacate the dwelling, the tenant can sue for damages or take action to be reinstated.

Security of tenure is also associated with the notion of 'permanency' and 'protection', having a right in perpetuity. In other words, a tenant has the right to occupy the dwelling for ever or indefinitely, or, the tenant has the option to renew the lease for ever.

This is not correct, since a tenant does not have security of tenure in perpetuity.

It is not the tenant, but the landowner who has an indefinite right to security of tenure in terms of his or her right to own and possess property.

A tenant's right to security of tenure is for the duration of the lease, as pointed out by Judge Frederik Daniƫl Jacobus Brand in Maphango and Others v Aengus Lifestyle Properties (Pty) Ltd 2011 (5) SA 19 (SCA).

The state has a responsibility in terms of the constitution to ensure a person's right to security of tenure, according to Judge Brand, but this does not apply to private tenant-landlord relationships.

The tenant's right to security of tenure is only for the lease period; beyond that, the tenant has no security of tenure.

In the instance of a fixed lease, the notice period is agreed at the outset.

In a periodic lease, the notice to terminate a lease depends on the period; for example, a monthly lease is ended by a calender month's notice.

According to Judge Brand, parties agree at the outset that the tenant's tenure can be terminated on notice.

'What this amounts to is an agreement that the lessee's security of tenure will never endure beyond the end of the notice period.'

In the feudal system, the cultivators were at the mercy of the lords for whom they worked.

In South Africa, farmworkers and farm dwellers were at the mercy of the farmers until the introduction of the Extension of Security of Tenure Act 62 of 1997 (ESTA).

Farm dwellers could rely on the law, which regulated the conditions of residence, termination, eviction and long-term security of land tenure.

Farm dwellers have obligations too, and failure to fulfil these obligations may lead to the termination of the right to security of tenure.

Examples include a farm dweller causing damage to property or causing a nuisance.

Security of tenure has meant different things over the centuries and today, under international human rights law, security of tenure is linked to the right to adequate housing.

South Africa has enacted various laws to provide security of tenure, reversing several centuries of entrenched laws that discriminated against tenants.

Dr Sayed Iqbal Mohamed
Chairman, Organisation of Civic Rights.
Daily News

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