The government is also bound by eviction laws Onus is on owner/landlord
TERMINATING or cancelling a lease contract must follow certain procedures unless the lease comes to an end by agreement. When parties enter into a lease contract for a fixed period, the tenant agrees to move out on the last day stated in the contract.
No notice to terminate the contract is required in this instance and should the tenant fail to vacate, legal action may follow.
New laws and changes in existing tenancy laws have placed additional requirements on parties, particularly owners/ landlords seeking to end lease contracts.
The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 requires a landlord to establish and disclose the circumstances of the tenant to be evicted.
A court will only grant an eviction that is just and equitable, after considering all the relevant circumstances; the rights and needs of the elderly, children, disabled persons and households headed by women.
Certain requirements of the Consumer Protection Act 68 of 2008 (CPA) apply to landlords whose ordinary course of business is to let out properties.
The Rental Housing Act 50 of 1999 as amended is the main law for all residential tenancies, together with the common law, law of contract and the 1996 constitution.
What about the Promotion of Administrative Justice Act 3 of 2000? It is part of administrative law that affects all tiers of government in the performance of its administrative actions.
It informs government officials and members how to conduct themselves in exercising their duties, they may be required to give reasons for their actions and to provide remedies including the right to review or appeal a decision.
Section 33 (1) of the constitution states “Everyone has the right to administrative action that is lawful, reasonable and procedurally fair”. In terms of 33 (2), “everyone whose rights have been adversely affected by administrative action has the right to be given written reasons”.
The government is bound by the constitution and must follow the rule of law. Like all citizens, it must obey the law and act in accordance with what is legally allowed.
How does PAJA affect a lease contract, the relationship between tenant and landlord?
In a unanimous judgment of the Supreme Court of Appeal (SCA) in May last year, the PIE and PAJA were the main basis for the appeal.
In the case of the Minister of Safety and Security v Moodley (429/10) (2011) ZASCA 93 (31 May 2011), the SCA expressed its doubts about the relevance of PIE in this particular case but stopped short of making any pronouncement.
As for PAJA, the court found that the Minister of Safety and
e-mail Security did not lawfully terminate the lease of the police quarters occupied by an SAPS employee, Devarajh Moodley, by failing to comply with fair procedure in terms of section 3(2) of PAJA.
This section requires that adequate notice of the nature and purpose of the proposed administrative action must be given to an affected person. This was not done.
Moodley occupied Aurora Flats situated at 133 Dr Hoosen Haffajee (Graypark) Road, Brighton Beach, Durban, for about nine years, being granted two extensions on the occupation time cycle limit of three years.
In 2005, a new housing allocation policy was introduced and SAPS members occupying police quarters provided by the state had to re-apply.
Moodley’s application was unsuccessful and he made representations to remain in his quarters.
He was granted an extension. It was understood by the SAPS to be an extension of time within which to vacate.
Moodley obtained an interdict in 2007 preventing the renovation of his dwelling, followed by a contempt application.
A settlement agreement was reached. Moodley was given alternative accommodation during renovation and was to be allowed back to his dwelling after renovations were done.
The SAPS refused to allow Moodley to move back and he made another application to the High Court with the minister bringing a counter-application to have him evicted since, it was alleged, the tenancy was lawfully terminated.
The minister argued that the accommodation to SAPS members was linked to their employment.
PIE did not apply, since the accommodation was of a temporary nature.
Judge Sishi of the Durban High Court disagreed and refused to grant the eviction.
The SCA held that Sishi had erred regarding PIE but the judgment not to grant the eviction was not changed since there was no lawful termination. The SCA dismissed the minister’s appeal with costs and made the following judgment that confirmed the agreement between the parties: -
‘1. The respondent is to make representations with regard to the correctness or otherwise of the decision taken on February 6, 2006 that because the respondent had already been in occupation for five years he could not qualify for the allocation of housing.
2. The said representations are to be made within 30 days of the date of the order.
3. The Provincial Commissioner is to consider the said representations and make a decision thereon within 30 days and is to give written reasons for the decision within 30 days thereafter.
4. The respondent is thereafter entitled to pursue any internal remedy or take any steps under PAJA that he may be entitled to.’
is the chairman, Organisation of Civic Rights. Website: www.ocr.org.za
For tenant’s rights’ advice, contact Pretty Gumede or Loshni Naidoo at 031 304 6451.