Getting the legal balance right

Matters are getting worse as a direct result of Covid-19 and the resultant lockdown

THERE is a general misconception that tenants have more rights. This notion resonates with landlords and their representatives that include rental agents, attorneys and advocates.

The Rental Housing Act 50 of 1999, as the first legislation for all South African tenants and landlords, aims to balance the contractual rights and obligations. Parties to a lease agreement, like any other contract, must follow the due legal process to enforce their rights in the event of a breach.

Herein lies the challenge. This means a party wanting to enforce her or his rights must follow the rules and principles established and entrenched in our legal system. Once the legal process is involved, the due process can be cumbersome, protracted and ultimately costly. To some minor extent, the Consumer Protection Act 68 of 2008 aimed to provide tenants protection because of the inequality of bargaining power in law, with landlords having an overall advantage. Landlords, in spite of the rental housing and consumer protection laws, have more negotiating power and can write into leases terms and conditions that are favourable to them.

Tenants who are at the mercy of the biased bargaining power, later find that access to justice is restricted or denied. In other words, landlords’ bargaining power in law and social class and tenants’ powerlessness to use the law for protection gives landlords more rights in actual effect.

Let us take the case of Chantel Pretorius, a single female tenant who failed to pay her full rentals for a one-bedroom apartment in a complex in Parow, Cape Town. She took occupation in September 2018 at a monthly rental of R5500, excluding water and electricity charges. She fell into arrears with her rentals after she was retrenched and had difficulty finding employment thereafter. After what she claimed was months of harassment, threats and intimidation, she was forced to apply for a protection order against her landlord from the Bellville court, prior to the lockdown.

While two friends assisted her with food and other essentials, the lockdown affected her negatively, with no income to sustain herself. Recruiters with job prospects advised her that companies would only conduct interviews after lockdown. Last week, on May 20, her landlord hammered down the front door, entered her apartment and removed all her belongings, without a court order.

Rendered homeless and emotionally distressed and vulnerable, she turned to the Parow police station where she contacted the investigating office in her protection order case. She was informed the lockdown rules changed daily and it was up to the court to decide whether her landlord acted unlawfully, and not the police.

Landlords, too, are adversely affected by the lockdown. A mother of three is at her wits end to meet her financial commitments. Her tenants stopped paying rentals from January this year. Water consumption charges are included in the rentals and the landlady is forced to pay the water bill that is in her name. Her tenants are contractually bound and therefore liable for the rentals but she will have to approach an attorney, which she should have done before the lockdown, to reduce her losses. Her tenants are aware their landlady cannot afford the legal costs to evict them and would continue to take advantage to occupy rent free.

The struggles of bona fide tenants and landlords to survive are getting worse as a direct result of the Covid19 pandemic and the resultant lockdown. There are serious psychological ramifications and profound social impacts on the lives of tenants and struggling landlords. Government is yet to respond to the calamitous plight of people who are unable to meet their rental obligations. Some measure of direct intervention is urgently needed to prevent the catastrophic threats of homelessness and broken lives.

Tenants in need of advice during the lockdown period, can Whatsapp Pretty Gumede on 071 346 5595, Loshni Naidoo on loshni@ocr.org.za or Whatsapp 0714445671, and Dr Mohamed on civicrights@ocr.org.za.

Mohamed is the chairperson, Organisation of Civic Rights & deputy chairperson of the KZN Rental Housing Tribunal. He writes in his personal capacity.