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Rental Housing

Not everyone can afford, or get access to borrowed money, to buy a home for themselves and their family. It is estimated that there could be several million homeless people in South Africa1; yet, according to the Constitution2 everyone has the right to have access to adequate housing.

In order to achieve realisation of this right, Government has an obligation to implement legislation and other reasonable measures. Rental housing is recognised as a key component of the housing sector, and this is why we have the Rental Housing Act 1999.3

Administered by the Minister of Human Settlements, the Act is designed to ensure the proper functioning of the rental housing market, to create mechanisms to promote the provision of rental housing, and generally to provide for all things in this regard.

A. Treatment of tenants

  1. No one may unfairly discriminate in advertising for purposes of leasing a dwelling, on any grounds – including race, gender, sex, pregnancy, marital status, sexual orientation, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, language and birth.4

  2. You may not discriminate (in such a way) when negotiating a lease with a prospective tenant.5

  3. Discrimination against the household members, or visitors of any tenant or prospective tenant,6 is also prohibited.

  4. Any person who unlawfully locks out a tenant, or shuts off the utilities to the particular rental housing property contravenes the Act.7

B. Leases

  1. If requested by a tenant, a landlord must record the lease in writing and commits an offence if he fails to do so.8

  2. If the tenant requests a written lease, the landlord contravenes the Act if he fails to ensure that the lease includes the following information:9
    • the names of the tenant and the landlord;
    • their addresses in the Republic;
    • the description of the dwelling;
    • the amount of rental of the dwelling and the escalation, if any, to be paid in terms of the lease;
    • any other charges payable in addition to the rental;
    • if rentals are not paid on a monthly basis, then the frequency of rental payments;
    • the amount of the deposit, if any;
    • the lease period – or, if there is no lease determined period, the notice period for termination of the lease; and
    • obligations of the tenant and the landlord.10
  3. One of the obligations on a tenant and landlord is (before the tenant moves in) to inspect the premises and compile a list of any defects or damage, with a view to determining the landlord’s liability to rectify. This list must be attached as an annexure to the written lease , and the landlord commits an offence if he fails to ensure that this happens.11

  4. The same applies if there are any House Rules. These are the rules in relation to the control, management, use, administration and enjoyment of the dwelling.12

C. The Rental Housing Tribunal

The MEC for each province has established a Tribunal, the main function of which is to investigate and determine complaints lodged13 by any tenant, landlord or interested group concerning unfair practices.14 The Tribunal has wide powers of inspection, investigation and enquiry.

  1. If you have been duly summonsed, you commit an offence if you fail:
    • to attend the Tribunal at the time and place specified in the summons; or
    • to remain in attendance until excused by the Tribunal from further attendance.15
  2. If, having been called upon, it is an offence if you refuse to be sworn in or to make an affirmation as a witness.16

  3. The same applies if you fail:
    • to answer, fully and satisfactorily, any question put to you;17
    • to produce any book, document or object in your possession, custody or control which you are required to produce at a hearing.
  4. As is to be expected, it is an offence to produce before the Tribunal any false, untrue, fabricated or falsified book or document.18 It is also a contravention of the Act to furnish information, or make a statement to the Tribunal, which is false or misleading.19

  5. The Tribunal can also require housing inspectors, and even the Rental Housing Information offices established by local authorities, to submit reports, advise, and even give evidence concerning any complaint. It is an offence not to comply with such a request.20

  6. At the conclusion of its hearing into a complaint, the Tribunal can make a variety of rulings – for example, concerning unfair practices, overcrowding, living conditions, rental, maintenance of the premises, and so forth.21 It is a crime not to comply with any such ruling.22
  1. See www.homelessworldcup.org/partner/southafrica. It is impossible for any accurate figure to be established. In 2010, Jacques Du Toit, a lecturer in the Department of Town and Regional Planning at University of Pretoria, published a paper entitled ‘Local metropolitan government responses to homelessness in South Africa’ (see www.repository.up.ac.za). He recorded research indicating that in Cape Town, Johannesburg, eThekwini and Tshwane alone 3,083 million people lived below the minimum living level, many of whom would be homeless. There is, however, a lack of definition of ‘homelessness’. 

  2. See section 26 of the Constitution. 

  3. As amended; the latest amendment was effected by Act 35 of 2014. 

  4. Section 4(1). 

  5. Section 4(1). 

  6. Section 4(1). 

  7. Section 16(hA). 

  8. Section 5(2) read with section 5(9). 

  9. Section 5(6) read with section 5(9). 

  10. These are not to detract from the obligations deemed to be included in section 5(3). 

  11. Section 5(7) read with 5(3)(e) and 5(9). 

  12. Section 5(8) read with section 5(9). 

  13. The Gauteng MEC has promulgated the Rental Housing Tribunal Procedural Regulations, under Government Gazette Notice 4003 of 2001 which governs the complaints procedure. 

  14. This means any act or omission by a landlord or tenant in contravention of the Act; or a practice (prescribed by regulation) as a practice unreasonably prejudicing the rights or interests of a tenant or a landlord. No regulation regarding unfair practice have yet been promulgated. 

  15. Section 16(b). 

  16. Section 16(c). 

  17. Section 16(d). 

  18. Section 16(e). 

  19. Section 16(f). 

  20. Section 16(h) read with section 13(3). 

  21. Section 3(4). 

  22. Section 16(g).