Examining the Requirement of Habitability under the South African Landlord-Tenant Framework

Abstract

There are three rental housing sectors in South Africa, namely the private, the public, and the social sector. The private sector comprises the landlord–tenant relationship between purely private parties. The public sector comprises a rental relationship between low-income tenants and the state as public landlord, andthe social sector comprises a rental relationship between lower-income tenants and state-subsidised landlords. Private residential housing is regulated by the Rental Housing Act 50 of 1999 (RHA) and the common law. In terms of the common law, a landlord is obliged to place and maintain the property in a condition that is reasonably fit for the purpose for which it was rented. The RHA is pending an amendment, which will expressly alter the common law and include the requirement of habitability in the landlord-tenant framework. In terms of the Rental Housing Amendment Act 35 of 2014 (RHAA), private-sector landlords will be required to provide tenants with a habitable dwelling and maintain the existing structure of such a dwelling in a habitable condition for the duration of the lease. “Habitability” in the RHAA refers to a dwelling that is safe and suitable to live in and has adequate space, protection from the elements and other threats to health, ensures the physical safety of the tenant, the tenant’s household and visitors, and is structurally sound. The RHAA defines “maintenance” as including such repairs and upkeep as may be required to ensure that a dwelling is in a habitable condition. Conversely, public residential housing does not fall under the ambit of the RHA, but it is regulated under a different framework, the National Housing Code of 2009 (NHC), whilesocial rental housing is regulated under the Social Housing Act 16 of 2008 (SHA). The research problem is that the NHC and SHA are not currently housed under the ambit of the RHA. Accordingly, this article aims to investigate where the NHC and SHA fit into the South African landlord-tenant framework, asregards the requirement of habitability. It is important to explore the concept of Ngwenyama2 habitability so as to paint a coherent, complete picture and delineate the scope of what constitutes habitability in respect of tenants’ rights in all three rental sectors.