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Wednesday Sep 03, 2014

Property leases buttressed by case and common law

The rental Housing Act of 1999 is the main law that applies to a residential tenancy agreement between a tenant and landlord.

Other laws, or certain sections of them, may also have a direct bearing on the agreement and the contractual relationship between the parties.

The following are some of the relevant laws:

  • The Constitution of the Republic of South Africa 1996 is the supreme law of the country, which set outs the Bill of Rights and the relationship between state and individuals, between individuals and the relationship of government structures.

  • Case law, or court decisions, play a critical part. The courts' judgments (precedents) are part of our common law.

  • Common law directs tenancy relationship not covered or changed by the Rental Housing Act or other laws.

    It is the law that is based on tradition and usage that governs the relationship of people that has come down to us from Ancient Roman law (around 750BC), and 17th century Roman-Dutch law.

  • Law of contract deals with the requirements of lease contract.

  • Neighbourhood law (for example, noise and encroachments) deals with the protection of the rights of ownership of land, limited by various common law rules regulating the relationship between neighbours. A tenant's or an owner's behaviour that disturbs a neighbour's right is covered by this law.

  • The Consumer Protection Act 68 of 2008: This provides specific guidelines and protection for tenants as consumers.

  • National Heritage Resources Act, 1999: The act protects heritage sites and a landlord or tenant cannot, without permission, alter or demolish a building that is a heritage site.

  • The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act No 19 of 1998: This relates to unlawful occupiers, including tenants, and the procedure for eviction.

    A landlord is required to establish and disclose the circumstances of the tenant to be evicted.

    An application is made to the court setting out the tenant's circumstances apart from the summons or application for eviction.

    Since eviction affects the right to shelter, the municipality is cited as a party.

  • The Promotion of Administrative Justice Act 3 of 2000: This act is part of administrative law that affects all tiers of government in the performance of its administrative actions.

    Adequate notice of the nature and purpose of the proposed administrative action must be given to an affected tenant terminating a lease (for example, an SAPS member).

  • Protection of Personal Information Bill 2012: This deals with gathering minimum information about a tenant that must not infringe on the tenant's privacy.

    The storage of such information in the landlord's custody must be secured 'to prevent unauthorised access, use, disclosure, loss, destruction, copying or modification of any personal information'.

  • Electronic Communications and Transactions Act 25 of 2002: The act includes the concluding of contracts electronically; electronic signatures on a lease are legally binding.

  • Financial Intelligence Centre Act 38 of 2001: This act relates to the prevention of money laundering.

    Failure to identify the client (section 46) and failure to keep records of client (section 47) carry a maximum of 15 years' imprisonment or a fine not exceeding R10 000 000.

  • Conventional Penalties Act 15 of 1962: A penalty clause subject to the act allows the innocent party to claim from the defaulting party a sum of money, or to deliver or perform in terms of the contract.

    A lease may contain penalties for breach, such as late payment and arrear rentals.

    The tenant is bound to pay interest if this is part of the agreement.

  • Insolvency Act 24 of 1936: The sequestrator, or a liquidator, may have the authority to collect rentals.

    The liquidator inherits the lease in its entirety.

  • Companies Act 61 of 1973: If the property is owned by a company or leased to a company, then certain requirements will apply, for example, the company's representative or agent must be duly authorised by a resolution to conclude a lease.

  • Occupational Health and Safety Act 85 of 1993: Regulation 12 of the Electrical Machinery Regulations, 2011, of the Occupational Health and Safety Act relates to electric fencing:

    An owner of a property with an electric fence system must have an electric fence system compliance certificate.

    This applies to a system that was installed after October 1, 2012, or when an addition or alteration is done to the system, or the property is sold any time after this date.

    Since a tenant is a user or benefits from the electric fence, he or she ought to have an electric fence compliance certificate, preferably attached to the lease.

    In terms of section 4 of the regulation, failure to comply with the regulations, or a contravention of any of its provisions is an offence, and if the owner is found guilty, would be liable on conviction to a fine or to imprisonment for a maximum of 12 months.

    If the offence continues, an additional fine of R200 may be imposed for each day or additional imprisonment of one day for each day not exceeding 90 days.

  • Immigration Act 13 of 2002: A prospective tenant who is not a South African citizen must have a valid visa from the Department of Home Affairs (for example, a study visa, legal work permit, refugee permit, legal temporary residence permit or a permanent residence permit, retired persons visas).

    Dr Sayed Iqbal Mohamed
    Chairman of the Organisation of Civic Rights.
    Tenant Issues
    Daily News

    For tenants' rights advice, phone Loshni Naidoo or Pretty Gumede at 031 304 6451


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