Consumer / 22 May 2019, 07:00am / Dr Sayed Iqbal Mohamed
RENTAL WATCH: A lease between parties grants a tenant the legal right to possess a dwelling as a temporary owner. The tenant has the right to undisturbed use and enjoyment, physical control over the property and unhindered possession.
If the peaceful possession is disturbed, the tenant has certain remedies. The tenant is entitled to a rental reduction or even to withhold rental in certain instances when the use and enjoyment is disturbed by the landlord. The landlord’s failure to carry out necessary repairs or shutting off the supply of basic services such as water or electricity interferes with the tenant’s use and enjoyment. The tenant is entitled to rental remission, but the provincial Rental Housing Tribunals and courts are the best authorities to decide what amount should be deducted or withheld.
A landlord who enters his tenant’s dwelling without permission may be guilty of a criminal trespass. The landlord would be like a stranger should he or she enter the dwelling without permission or prior arrangement. A tenant can stop the landlord by approaching the tribunal or the court for an interdict.
What remedy does a tenant have when she or he suffers personal injury due to the landlord’s negligence to maintain the property?
Is the landlord responsible for the tenant’s safety? What if the lease contains a clause that states the landlord is indemnified, that is, he or she cannot be held responsible for any injury sustained by the tenant due to the condition of the property?
The tenant cannot withhold rental or deduct from the rental for personal injuries sustained. An interdict will not be appropriate in this instance either. The tenant will have a damages claim for personal injury from the landlord for his wrongful act.
The courts apply certain principles to establish if the landlord was liable for the injury. In other words, what did the landlord do or fail to do, and was this conduct unlawful? Also of importance is to establish whether the landlord owed the tenant a legal duty to ensure his safety.
The court will assess if the landlord’s conduct was unlawful, whether it was intentional or the result of his negligence. A lease contract may have clauses to protect the landlord from being sued by the tenant.
The following is an example of what may be included in a clause to “protect” the landlord from being held liable:
The landlord shall not be responsible for any damage or loss sustained or suffered by the tenant, the tenant’s visitors or family members due to any act, omission or neglect on the part of the landlord.
The tenant further indemnifies the landlord for any loss or injury sustained by reason of the dwelling or the building falling into a state of disrepair or requiring repairs to be undertaken or for the interruption of services such as water and electricity.
The tribunal or court can order a landlord to compensate a tenant despite a lease with an exclusion or exemption clause.
One tenant, a Mr Swinburne of Flat 5, Arli Court, Channel View Road on the Bluff in Durban, successfully sued his landlord for an injury he sustained on the night of April 16, 2006. Swinburne suffered a severe fracture in his left leg (of the tibia) when he slipped and fell down a flight of stairs.
Swinburne had successfully negotiated the stairs but the sand that had accumulated on the top level due to heavy rain caused him to lose balance. The absence of a handrail led to him falling down the flight of stairs into the courtyard.
The judge did not accept the argument that the landlord was not liable since there was another access, being the main entrance, which Swinburne could have used. The second argument that the landlord cannot be held responsible when it was apparently obvious that the stairs were not safe to use due to the heavy rain was also rejected.
According to Judge Wallis, a landlord is responsible for ensuring safety for all users of the property.
“It is clear that the owner of property is ordinarily liable to ensure that the property does not present undue hazards to persons who may enter upon and use the property. In other words, it is the owner’s legal duty to ensure that the premises are safe for those who use them.
“That is so whether one is dealing with trespassers, invitees, or others who may have a right to enter upon the property, such as tenants. There are a number of instances where our courts have imposed upon an owner of property such a legal duty in relation to the condition of stairs and staircases.”
The third defence the landlord relied on were two exclusion clauses.
Here the judge examined the clauses thoroughly and concluded that these did not exclude liability.
In a judgment delivered on April 22, 2010 (in Swinburne versus Newbee Investments (2010) 4 All SA 96 (KZD), the court found the landlord, Newbee Investments was liable for the damages suffered by the tenant and ordered compensation and legal costs.
Can a guest or visitor sue the owner for negligence?
It is not only the tenant but their visitor or guest who can claim damages for injury sustained as a result of the owner’s negligence.
In Pauw v Du Preez (2015) ZASCA 80, the court found the owner Pauw was liable for Du Preez’s injury. Du Preez and her mother visited their relatives who had rented Pauw’s seaside holiday home. The injury occurred when they left the home and at a section below the gate where there was no handrail, Du Preez lost balance and fell “off the stairway to end up lying between it and a motor vehicle that was parked parallel to the stairs facing the garage door”. The court also found that Pauw failed to prove that Du Preez was negligent and dismissed her appeal.
Dr Mohamed is the chairperson of the Organisation of Civic Rights and deputy chairperson of the KZN Rental Housing Tribunal. He writes in his personal capacity. For advice, contact Pretty Gumede or Loshni Naidoo on 031 304 6451, email [email protected] or [email protected]