File picture: Pexels
File picture: Pexels

'Race specific' landlords and estate agents are against the law, Pierre de Vos says after Cape Town man’s apartment query rejected

By Yasmine Jacobs Time of article published Oct 21, 2021

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Cape Town – It is a criminal offence for landlords and estate agents to discriminate against black applicants, said constitutional law expert Professor Pierre de Vos in a blog post, calling on harsh action and prosecution to be taken against those who perpetrate this.

This comes after Cape Town resident Pol Osei was told to “find another lease or apartment” during a WhatsApp exchange with estate agent Gabriella Johnson, who had informed him that he could not rent a property in the Cape Town CBD (listed by Tyson Properties) because the “client is race-specific”.

Osei told Johnson that it was illegal to discriminate on the basis of race. Johnson told Osei that it was “cool” and told him to “find another lease or apartment”.

Osei posted the exchange on Twitter and it went viral.

“Both the owner of the property and his duly authorised agent (in this case, Johnson) almost certainly committed a criminal offence by offering to lease an apartment, but only to white tenants,” said de Vos.

“They almost certainly also acted in contravention of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), which prohibits any private party from unfairly discriminating against anyone on any of the 16 listed grounds (including race, sex, gender, sexual orientation) or on other analogous grounds like HIV status or nationality.”

Many have argued that because it is the land owner’s private property, they have the right to choose who to lease the property to. This can not be further from the truth.

De Vos noted that in South Africa, the right of property owners are limited in various ways. Section 4(1) of the Rental Housing Act of 1999 states that:

In advertising a dwelling for purposes of leasing it, or in negotiating a lease with a prospective tenant, or during the term of a lease, a landowner may not unfairly discriminate against such prospective tenant or tenants, or the members of such tenant’s household or the visitors of such tenant, on one or more grounds, including race, gender, sex, pregnancy, marital status, sexual orientation, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, language and birth.

“If they agree to lease the property of a landowner who has ’race-specific’ requirements, they act in contravention of section 4(1) and open themselves up to criminal prosecutions,” said de Vos.

“This is because section 16 of the Act states that anyone who contravenes section 4 of the Act ’will be guilty of an offence and liable on conviction to a fine or imprisonment not exceeding two years or to both such fine and such imprisonment.”

De Vos said that it is worth noting that the landowner of the property was not the only one that was prohibited from unfairly discriminating against a prospective or existing tenant.

He said that an estate agent or agency that rented properties on behalf of property owners were also bound by this provision.

“Despite the fact that these kinds of racial discrimination are prohibited and, in some cases, criminalised, discrimination against prospective and existing black tenants (and against some of their visitors) continues in some parts of South Africa, probably more so in places where landowners and estate agents believe that they can get away with the discrimination,” he said.

“This is why I believe it is high time that people like Gabriella Johnson and the nameless owner of the property who discriminated against Pol Osei are prosecuted in accordance with the Rental Housing Act and given harsh sentences, including a period of imprisonment.”

IOL

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