The right to housing flows directly from the supreme law of the land – section 26 of the Constitution:

• Everyone has the right to have access to adequate housing.
• The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.
• 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.

Rental Housing Act

In giving effect to the rights, the Rental Housing Act, 50 of 1999 (“the Act”), was implemented to recognise the importance of rental housing and balance the rights of tenants and landlords – and to protect them from unfair practices and exploitation.

In addition to other legislation and the Constitution expressly prohibiting discrimination, the Act also expressly forbids unfair discrimination in terms of section 4(1).

In advertising or negotiating with a prospective tenant of a lease, the landlord may not unfairly discriminate on the grounds listed, including race, gender, sex, pregnancy, marital status, sexual orientation, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, language, and birth.

“Landlord” Explained

“Landlord,” however is not limited to the owner of the property, according to the definition in section 1 it includes their duly authorised agent i.e., an estate agent / agency or a person who is in lawful possession of a dwelling and has the right to lease or sub-lease it.

Consequences of Discrimination

Violation of the Act can incur penalties and punishment including conviction to a fine or imprisonment not exceeding two years or to both a fine and imprisonment, for contravention of section 4, and section 5(2) or (9) (relating to reducing the lease to writing and requirements thereto).

Disputes or complaints may be lodged with the Rental Housing Tribunal relating to any unfair practice in terms of section 13. The Tribunal’s decision may be subject to review of the High Court.

It is therefore in the best interests of landlords and their agents to familiarize themselves with the Act and ensure they do not unfairly discriminate against tenants or prospective tenants. This is particularly paramount within the new constitutional dispensation which is desperately trying to correct the gross racism of the past and pervasive effects of unfair discrimination that has contributed to the lack of access to housing.

Bailey Haynes Inc. – Attorneys in Cape Town

If you have experience discrimination or would like to check if you understand the Act correctly – please contact our law firm in Cape Town. We will gladly assist.