Dr Sayed Iqbal Mohamed. Supplied
Dr Sayed Iqbal Mohamed. Supplied

Tenants' rights: the Constitution is supreme

By Dr Sayed Iqbal Mohamed Time of article published Feb 13, 2020

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The legislature is that branch of the government that makes the law and also has the authority to amend and repeal laws. 

In South Africa, Parliament is the legislature, made up of the National Assembly and the National Council of Provinces that represents the nine provinces.

The president and his Cabinet comprise the executive branch of the government responsible for ruling the country. At the provincial level, it is the premier and his or her executive council and the municipalities at the local branch.

The Constitution of the Republic of South Africa 1996 is the supreme law of the country, which set out the Bill of Rights and the relationship between State and individuals, between individuals and the relationship of government structures. While Parliament makes all laws, the 1996 Constitution was not created by Parliament and is therefore not referred to as an act. It was the constitutional assembly (National Assembly and Senate) that was responsible for the Constitution and, furthermore, it had to be certified by the Constitutional Court.

The Constitution is supreme and not Parliament, and the legislature, the executive and the judiciary, all organs of the state, every government official and all citizens are bound by the Constitution.

However, during the apartheid era, Parliament was supreme, and the executive branch of government could also create laws. The apartheid government was vested with unfettered powers. As long as the correct procedures were followed in passing the law, there could be no Constitutional challenge.

Twenty-six years into our democracy, there are many instances when certain individuals still imperceptibly hold onto the power of the apartheid era, when laws were created to humiliate and subjugate.

In one recent case, a tenant was informed that he had 10 hours to get rid of his visitor and to deposit a fine of R100 into his landlord’s account for breaking the “house rules”.

The tenant was also told that should he fail to get rid of his visitor, the SA Police Service would assist in “evicting” the visitor. The supervisor’s previous attempts to impose some 80-odd “house rules” were rejected by the tenants.

In many of the supervisor’s violations of the tenants’ rights, unlawful and unconstitutional as they are, the legal representative supported the supervisor.

The tenants are fighting a battle at three levels to protect their rights, against the supervisor, their landlord and the legal representative. The “triad” have confused and disregarded the rules, principles and the application of the relevant laws and specific provisions of these laws.

Can anyone arbitrarily remove a tenant’s visitor or occupant or deny him or her access to the dwelling without breaking the law? Yes, under the apartheid state with its draconian laws, police apparatus and legal representatives. These no longer exist.

Since 1994, under the interim Constitution and after the introduction of the Constitution of 1996, no one in our democracy is above the law. Everyone must obey the Constitution and the rule of law.

More specifically, in the above scenario, several constitutional provisions apply. Section 26(3) of the Bill of Rights in the 1996 Constitution is one of several relevant provisions: “No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.”

The landlord has the right to challenge a tenant who violates the terms of the lease and enjoys equal protection of all the applicable laws and the relevant constitutional provisions. The legal representative is legally and morally obliged to inform the landlord, his supervisor or agent of the right course of action.

Litigating through correspondence, confirming and supporting mistaken notions of the law and a ruthless approach towards tenants is wasting the landlord’s money. Parties need to approach the provincial rental housing tribunals that have jurisdiction over unfair practice complaints between landlords and tenants. The tribunals’ authority is derived from section 13 (9) of the Rental Housing Act, giving it “exclusive jurisdictions” over unfair practice disputes.

Dr Sayed Iqbal 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.


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