Two weeks ago, Human Settlements Minister Connie September introduced the Rental Housing Amendment Bill in the National Assembly.
One of the major changes is the inclusion of 'maintenance' of the dwelling being leased. It includes 'repairs and upkeep as may be required to ensure that a dwelling is fit or suitable to live in'.
The new provision states the landlord must also 'maintain the existing structure of the dwelling and, where possible, facilitate the provision of utilities'.
The bill still falls short of the common law obligation of habitability - providing inhabitants with adequate space and protection from the elements, threats to safety, health and dignity - but is an improvement in protecting the rights of tenants.
In short, it seeks to change the landlord's duties to include:
This confirms the common law requirement that the dwelling to be let must be in the condition fit for the purpose for which it is let when handed over to the tenant, and the landlord must maintain the premises in that condition (Viljoen v Cleaver 1945 NPD 332 at 336).
The well-known case courts generally refer to is Hunter v Cumnor Investments 1952(1) SA 735 (C), which confirms the contract of lease principle in Roman-Dutch Law that the landlord is obliged to repair defects and is responsible throughout the term of the lease to maintain the premises in that condition.
Therefore, the landlord must know of defects, or ought to have knowledge of it.
This principle resonates through the majority of judgments, but 'fit for the purpose for which it is let' is not the same as the dwelling being habitable.
The tenant's obligation has not changed and he or she still has to hand over the dwelling immediately on expiration or termination of the lease, in the same condition it was received - or to restore it to that condition.
The landlord must carry out an inspection with the tenant at the end of the lease to protect himself in the event he needs to claim compensation from the tenant for causing damage to the dwelling.
Should the landlord fail to inspect the dwelling in the presence of the tenant, it would be deemed an acknowledgement by the landlord that the dwelling is in a good and proper state of repair.
If the tenant fails or refuses to vacate the dwelling, the landlord is entitled to evict the tenant with a court order.
The landlord's right is also protected. He is entitled:
Dr Sayed Iqbal Mohamed
Chairman, Organisation of Civic Rights
Commercial and Property Attorney