Inequality, abuse, supervision, of the contract of residential lease in South Africa

Abstract

This dissertation seeks to investigate and evaluate the inequality, abuse and supervision of the contract of residential lease in South Africa. It also attempts to answer three main questions: Whether the contract of residential lease is reeked with abuse of unequal bargaining power between the lessor and lessee? What protective measures are available in terms of legislation to guard against abuse of power and inequalities? Is the current legislation or set structures of contract of lease sufficient in addressing the problems between the lessor and lessee? The introduction is an overview of the general fundamental principles of the contract of residential lease focusing on duties of the parties within the contract. This analysis seeks to answer the following research questions; viz: What are the protective measures in legislation to guard against abuse and inequalities? Are the current regulations, supervisory measures, system, or structures of contract of lease sufficient in addressing the problems between the lessor and lessee? In attempting to answer the above questions I focused on the legislation regulating residential lease contract in South Africa. These are the Consumer Protection Act (CPA) 68 of 2008; the Rental Housing Act (RHA) 50 of 1999; the Rental Housing Amendment Act (RHAA) 35 of 2014; the Prevention of Illegal Eviction from Unlawful Occupation of Land Act (PIE) 19 of 1998; the Extension of Security of Tenure Act (ESTA) 62 of 1997; and the current Constitution of the Republic of South Africa, 1996 which is the supreme law of the land. Furthermore, I assessed the involvement of the Rental Housing Tribunals (RHTs) in the residential lease disputes. In addition, this research seeks to establish the extent to which the contract of residential lease in South Africa is reeked with abuse and inequality or unequal bargaining power between the contracting parties. To achieve this, I discussed the meaning of the terms ‘abuse’, ‘inequality’, and ‘unfair practice’ and ‘bargaining power’ of the parties. Other aspects such as extra charges, repair or improvements, rent increase, security deposit were scrutinised to establish abuse or unfair practice and bargaining powers of the parties. Finally, a conclusion was drawn up and few suggestions or recommendations were provided on what South African legislators or set structures can do to prevent or regulate abuse, inequality and unfair practice within the contract of residential lease. The research has shown that abuse or unfair practice exists in residential lease contract. The second conclusion established is that the existing structures and fragmented provisions are enough to deal with the problems between the lessor and lessee, but it is the monitoring or supervision which requires more resources on existing set structures. I however disagree with the exclusion of section 14 of the CPA from governing of the lease as our courts has extended the meaning of the consumer to give rights to an occupant. Courts have also indicated that there is no requirement to inform the tenant that they have 20 business days to pay rent arrears before cancellation of lease.