AN OVERVIEW OF PROPERTY LAW - Pg3
CURRENT LEGISLATION THAT IMPACTS RENTALSThe Constitution
Rental Housing Act 50 of 1999
Rental Housing Amendment Act 43 of 2007
Rental Housing Amendment Act 35 of 2014 (not yet applicable but due to come into effect 2015)
Prevention of Illegal Eviction Act of 1998
Estate Agency Affiars Act 1997 - if using an agency
Consumer Protection Act 68 of 2008
Financial Intelligence Centre Act 38 of 2001
Social Housing Act 16 of 2008 - if applicable
SARS Tax Laws as applicable
IMBALANCES THAT STILL EXISTWhat about the courts? Courts have more than a century of experience and an accumulated “consciousness” based on entrenched legal principles. These were introduced from English law with large part of the law based on early Roman law and its development into the 17th century Roman-Dutch law .
The “Ancient” laws, created by brilliant minds, are very much alive and relevant but changes are inevitable within a changing society. There is therefore a need for the courts’ “consciousness” to be amenable to changes. Few judges have been daringly outspoken, allowing the principle of fairness to prevail over the jealously protected principle of the sanctity of a contract. Bhana (2007) argues that the court ought to reassess its approach to constitutional values in general and the importance of the liberal notion of freedom of contract in particular.
Imbalancing factors are the critical housing shortages, homelessness and extremely small rental housing options for tenants (often with exorbitant rentals). Contracting parties do not enter into a lease contract with all things equal. A tenant does not have a choice in the absence of a “surplus” rental housing to negotiate the terms of a lease contract. Tenants are at the mercy of a rental market oriented society made hostile by the absence of choice.
A written lease can be most onerous for a tenant when the landlord hands over his common law duties to the tenant. Parties are free to contract in terms of common law and the lease contract may include a substantial part of the landlord’s duties to be undertaken as part of the tenant’s duties. A tenant cannot discuss the rental value which is a given that it must be market related. Affordability has no place for discussion and the substandard conditions of the dwelling becomes part of the contract.
Our law is that a tenant cannot challenge his landlady if he acknowledged and accepted the dwelling with its defects. A tenant in mora – who pays rental late for example, has breached her contract, regardless if she lost her job and made an effort to pay three days after the due date. The courts would generally not interfere with contracts and some of the most liberal judges have upheld the principle of the sanctity of a contract.
In the event of a dispute, judges distance themselves from any interference. At the very least, they show empathy; at most, they must take on a role of a mere bystander. The Courts powers continue to entrench the hegemony of the powerful class, of the lords over peasants; the rights (of power) of landlords in the law of contract. In practice, a tenant cannot negotiate the terms of a contract because of the unequal bargaining power. Terms are presented as part of a standard form contract on a ‘take-it or leave-it basis’.
Once concluded, a contract becomes “sacred” with the courts not willing to “handle” it, no matter how oppressive its terms for the disadvantaged tenant. Parties are free- they must be free, to enter into a contract but in reality, freedom favours the party who lets the property in a society where homelessness and acute housing shortage are growing and cannot meet the rental needs of millions.
Barnard (2006:) states, “The being of the law of contract has always been shot-through with the values associated with altruistic political morality (fairness, reasonableness, etc.) but, more often than not, the law of contract is portrayed in the standard texts and in case law as value-neutral, socially stagnant, rule-bound and an individualistic approach that favours freedom of contract above all other considerations, and is dogmatically endorsed, followed and worshipped as an untouchable foundation and idol of the law of contract.
“This classic portrayal only narrows down, furthers and delineates in contract law the false consciousness regarding the legitimacy of law in general. It provides the means to further the commercial interests of the financial elites, the powerful bargaining agents and the corporate giants to the detriment of the blindfolded labourers, debtors and have-nots who are all told that this way of contract is the best and only way: take it or leave it.”
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