Monthly Archives: January 2021

What tenants need to know to protect their rights

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Must my residential lease agreement be in writing?

It is currently not a requirement for a residential lease agreement to be in writing – a verbal agreement where the rent and rented property is identified is recognized by South African common law and is just as valid as a written agreement. This may, however, not remain the position for much longer. The Rental Housing Amendment Act, which is not in operation yet, requires that all lease agreements should be in writing, and places the onus of ensuring compliance herewith on the Landlord. A lease agreement must, however, be reduced to writing if the tenants requests this from the landlord.

As a rule, it is preferable to enter into a written lease agreement, as it brings a measure of certainty regarding the contractual terms, rights, and duties. Verbal lease agreements often lead to “he-said-she-said” disputes and conflict.

Leases can also be formed by conduct alone. For example, if you as a tenant pay the owner of the property a monthly amount and they accept the money on the shared understanding that the payment is paid in exchange for the tenant being allowed to live in the rented property, then there is a lease agreement between the parties. Such an agreement can easily lead to conflict when one of the parties unilaterally change their conduct by, for example, paying a lesser monthly amount or sending an electricity bill to the tenant where the owner had always paid it in the past.

How long can my lease endure?

A fixed-term lease may endure for a maximation period of 24 months in terms of the Consumer Protection Act. This restriction only applies to natural persons. It may, however, be possible for a lease to endure for a longer period (as stipulated in the lease agreement) if the parties can show that there is a demonstratable financial benefit to the lessee.

In what condition must the lease premises be when I move in?

The Landlord must make the premises available for occupation in a condition reasonably fit for the purpose for which it was let, namely human habitation. The general state of the property should be well-documented during the ingoing inspections by listing and taking photographs of any defects. It is advisable for the tenant to view and inspect the premises before signing the lease agreement, to ensure that the premises are in a good and safe condition.

Can I sublet the lease premises?

This will depend on the agreement. If there is no clause in the written lease agreement making provision for Subletting, a lessee will be entitled to sublet the property without the Landlords consent. The latter is qualified in that the proposed sublessee must not be a person to whom the original lessor could reasonably object. If the lease does make provision for Subletting, the provisions of the lease agreement must be followed.

What can I do if my landlord does not keep up their side of the bargain?

The Landlord is bound to the terms and conditions of the lease just like the tenant is. The Landlord’s duties in terms of the lease can therefore be enforced in various ways. If the dispute cannot be resolved on an informal basis, the first port of call will be the lease agreement. The written lease agreement may make provision for disputes and the steps to be taken during a dispute. In the absence of such a clause, the tenant can lodge a complaint with the Rental Housing Tribunal. The Rental Housing Tribunal resolves complaints through dispute resolution mechanisms such as mediation and arbitration. The parties can also approach their attorneys for legal advice.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Claiming maintenance from a life partnership estate

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On 28 September 2020, the Cape Town High Court handed down judgment in favour of Ms Bwanya directing that section 1(1) of the Intestate Succession Act 81 of 1987 (“the ISA”) is unconstitutional and invalid insofar as it excludes Ms Bwanya, a surviving life partner in a permanent opposite-sex life partnership, from inheriting from her deceased fiancé’s estate.

 

The Facts

Ms Bwanya and Mr Ruch (“the deceased”) met in February of 2014 when she was waiting for a taxi in Camps Bay. The deceased reportedly “swept her off her feet” by taking her to the Cape Town train station in his car. Later that same evening, the deceased took her on their first date.

Ms Bwanya averred that, at the time of the deceased’s death, she and the deceased were partners in a permanent opposite-sex life partnership, with the same or similar characteristics as a marriage, in which they had undertaken reciprocal duties of support and had committed themselves to marrying each other.

Ms Bwanya sought an order that—

  1. Section 1(1) of the ISA be declared unconstitutional and invalid insofar as it excludes the surviving life partner in a permanent opposite-sex life partnership from inheriting in terms of this Act; and
  2. The definitions of “survivor”, “spouse” and “marriage” in section 1 of the Maintenance of Surviving Spouses Act 27 of 1990 (“the MSSA”) be declared unconstitutional and invalid insofar as they exclude partners in permanent opposite-sex life partnerships from claiming maintenance in terms of this Act.

Applicable Law

Section 1(1) of the ISA, as it currently stands, excludes life partners in a permanent opposite-sex life partnership from inheriting in terms of the ISA. Similarly, the definitions of “survivor”, “spouse” and “marriage” in section 1 of the Maintenance of Surviving Spouses Act 27 of 1990 (“the Surviving Spouses Act”) excludes partners in permanent opposite-sex life partnerships from claiming maintenance in terms of this Act.

Ms Bwanya submitted to the Court that the ISA and the Surviving Spouses Act, as they currently stand, infringe on her Constitutional rights to human dignity and equality. Ms Bwanya further argued that she is being discriminated against in terms of section 9(3) of the Constitution on the grounds of sex, gender, marital status, and sexual orientation.

Ms Bwanya argued that, on her facts, she should be permitted to inherit from the deceased’s estate in terms of the ISA, and that she should be entitled to claim maintenance from the deceased’s estate in terms of the Surviving Spouses Act.

For similar reasons, the Women’s Legal Centre and the Commission for Gender Equality argued that the ISA and the Surviving Spouses Act are unconstitutional.

The Court’s Finding

The Court held that it can be inferred that Ms Bwayna and the deceased tacitly agreed they were in a permanent life partnership akin to marriage. Accordingly, it was held that Ms Bwanya and the deceased were permanent life partners who had undertaken reciprocal duties of support to one another.

The Court further held that section 1(1) of the ISA in fact discriminates against Ms Bwanya unfairly on the grounds of marital status, sexual orientation and gender, and that this discrimination has gravely affected the rights of heterosexual permanent life partners where the parties depended on each other for support. It was also held that Ms Bwanya’s constitutional rights to equality and dignity were infringed upon.

The Court dismissed Ms Bwanya’s request to have the relevant definitions of the MSSA declared unconstitutional, on the ground that there must be a duty of support by operation of law, and not a mere contractual one. As there was no duty of support by operation of law between Ms Bwanya and the deceased, she did not succeed on this leg.

Reference List:

  • Bwanya v Master of the High Court, Cape Town and Others (20357/18) [2020] ZAWCHC 111.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)