Maphango and Others v Aengus Lifestyle Properties (Pty) Ltd (CCT57/11) (CC) [2012] ZACC 2; 2012 (3) SA 531 (CC); 2012 (5) BCLR 449 (CC) (13 March 2012)

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Maphango and Others v Aengus Lifestyle Properties (Pty) Ltd (CCT57/11) (CC) [2012] ZACC 2; 2012 (3) SA 531 (CC); 2012 (5) BCLR 449 (CC) (13 March 2012)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 57/11
[2012] ZACC 2
In the matter between:
NTOMBIZODWA YVONNE MAPHANGO
(NOW MGIDLANA)
…..............................................................................
First
Applicant
ANNAH MKWINDA
….........................................................................
Second
Applicant
JUDITH HUGO
….....................................................................................
Third
Applicant
P R MUSANDIWA
…..............................................................................
Fourth
Applicant
N SOMPALI
…...........................................................................................
Fifth
Applicant
E S MABASO
….......................................................................................
Sixth
Applicant
T MULAUDZI
…..................................................................................
Seventh
Applicant
D MOYO
….............................................................................................
Eighth
Applicant
V M MOLEKO
….....................................................................................
Ninth
Applicant
N B MASEKO
…......................................................................................
Tenth
Applicant
G R MAFORA
….................................................................................
Eleventh
Applicant
S MABOTJA
….....................................................................................
Twelfth
Applicant
Z Z NODADA
…................................................................................
Thirteenth
Applicant
B G MOATSHE
….............................................................................
Fourteenth
Applicant
T E MUTSHINYA
…...........................................................................
Fifteenth
Applicant
and
AENGUS LIFESTYLE PROPERTIES (PTY) LTD
…...................................
Respondent
and
INNER CITY RESOURCES CENTRE
….................................................
Amicus
Curiae
Heard on : 3 November 2011
Decided on : 13 March 2012
JUDGMENT
CAMERON J (Moseneke DCJ, Froneman J, Nkabinde J, Skweyiya J, Yacoob J
and Van der Westhuizen J concurring):
The
narrow question in this case is when a landlord may cancel a lease
and evict its tenants. Behind this lies the impact of
the
protection the Constitution affords against eviction.
1
The
applicants are tenants in Lowliebenhof, a ten-storey block of flats
in Braamfontein, in the inner city of Johannesburg.
The flats are
their homes, and they live there in terms of various leases. The
respondent landlord, a property investment company,
bought the
building, upgraded it, and then wanted to increase the rent. To do
so, it cancelled the tenants’ leases, but
offered them new
tenancies, on identical terms, though at new and much higher rents.
The tenants resisted. The landlord brought
eviction proceedings.
The tenants lost in the South Gauteng High Court
2
and the Supreme Court of Appeal
3
and now seek leave to appeal to this Court.
Although
different leases are at issue, each made provision for an annual
rent increase at a stipulated rate. Each also had
a clause
entitling either party to terminate the lease on written notice. It
is the landlord’s exercise of this power
that gave rise to
the dispute. The landlord’s case was that, since the existing
leases did not allow it to increase the
rents unilaterally, it was
entitled to use the termination clause to oblige the tenants either
to leave or to enter new leases
at higher rents. The tenants’
case was that the law did not permit the landlord to use the bare
power of termination
for this purpose. In the High Court and the
Supreme Court of Appeal the tenants’ argument turned largely
on the Constitution,
contract law and public policy. But they also
said the Rental Housing Act
4
(Act) precluded what the landlord had done. The two courts of
previous instance rejected all these arguments, including that

based on the Act. The tenants now seek leave to appeal to this
Court.
This
judgment holds that the statutory argument should have prevailed.
The Act creates a finely-balanced mechanism to resolve
disputes
between landlords and tenants. It offers an appropriate and fair
mechanism for the resolution of this dispute. There
is therefore no
need to consider the tenants’ common law and contractual
arguments.
Constitutional issue and leave to appeal
The
statute was enacted to give effect to the constitutional right of
access to adequate housing, which includes the right not
to be
evicted without an order made by a court after taking into account
all the relevant circumstances. Hence we have jurisdiction
to
determine its ambit.
5
This, together with the tenants’ strong prospects, points to
the grant of leave to appeal.
The
parties and their leases
There
are fifteen applicants.
6
They have lived at Lowliebenhof for differing periods – the
longest since 1994. In that time, the building has belonged
to
various entities, each of which concluded the leases with the
individual tenants. Ten of them – including the first

applicant, Ms Ntombizodwa Mgidlana (formerly Maphango) –
concluded leases with the landlord’s predecessor in title,

the Ithemba Property Trust (Pty) Ltd (Ithemba lease). Two tenants
concluded leases with the Technical Workers’ Union,
a
registered trade union (Union lease). One person concluded a lease
with the Artisan Staff Association (Artisan lease). Two
others
concluded a lease with a company called Eagle Creek Investments 128
(Pty) Ltd (Eagle Creek lease).
Each
lease was to run for a specified initial period,
7
during which the landlord could terminate the tenancy for breach
(these included the usual grounds:
8
non-payment of rent, damage to the premises, contravention of laws
or by-laws). After this, the lease would continue on the
same terms
and conditions, subject to termination by either the landlord or
the tenant on a specified period of written notice.
9
The Ithemba lease provided in addition that if the landlord decided
after the expiry of the initial period, but while the lease
was in
force, to demolish or substantially renovate the premises, it would
be entitled to suspend or cancel the lease on not
less than two
months’ written notice.
The
Ithemba lease, which governs the tenure of most of the applicants,
has four unusual stipulations. These reflect the fact
that, some
years before the landlord acquired the property, the building had
been refurbished with Gauteng provincial housing
department funds.
First, the lease provides that if it was “supported by a
Department of Housing subsidy, termination
shall be at the
discretion of the lessee”. Second, apart from the provision
for an annual rent escalation, it provides
that if a “statutory
Rental Body or Act” becomes applicable to it, the landlord
“shall be entitled”
to apply to the “competent
authority” to charge a higher rent than the stipulated annual
increase, and to increase
the rent to the extent permitted by “the
said Act or any amendment or replacement thereof”, “subject
to the
approval of the competent authority whose approval is
necessary”.
10
Third,
the lease provides that the landlord has the right on written
notice to the tenant four years after signing the agreement
to
“change the nature of [the] tenure” under the lease.
The provision stipulates that the changed tenure has to
be “one
of the options as defined in the Housing Code”. The tenant
has first option to take up the changed tenure.
Fourth, there is a
succession clause. If the tenant dies or becomes permanently
disabled, then his “wife or dependants”
are entitled to
continue in occupation of the premises, subject to fulfilling the
terms of the lease.
The
subsidy had long run out by the time of the present dispute and not
all the clauses reflecting it applied. But the tenants
pointed to
the unusual features of the Ithemba lease to underscore their
contention that the landlord’s invocation of
the bare power
of termination was contrary to the scheme of the lease.
The
landlord acquires run-down inner-city buildings, some of which it
strips and refurbishes. Others it upgrades. It says its
ventures
are aligned with the city’s “initiative at refurbishing
and upgrading the Johannesburg inner city.”
It became
involved in the management of Lowliebenhof in 2007 through an
associated company. It took formal transfer of the
property in 2009
and later upgraded the building. After the sale, the landlord
concluded that market-related rentals in similar
buildings were
many times higher than the tenants were paying, and that the rent
income was in any event less than the building’s
overheads.
In
September 2008, the then-landlord began giving the tenants written
notice to vacate. The termination letter in each case
stated that
if the tenant wished to remain, he or she would be billed the
increased rent. The letter made no reference to any
renegotiation
of the lease, or to any other change in its terms. The implication
was that the landlord was willing to retain
the tenant, on
identical terms to those in the lease, save only for the increased
rent.
The
tenants resisted. On 17 September 2008, they lodged a complaint
with the Gauteng Rental Housing Tribunal (Tribunal),
11
established under the Act.
12
The Tribunal wrote to the landlord immediately to inform it of the
complaint. It later set out the details – “intimidation

and victimizing of tenants”, “threatening to evict
tenants without a court order and issuing of notices while a
case
lodged against you has not been finalised”, and “unfair
and exploitative rental and services charges.”
The Tribunal
asked of the landlord: “May you please govern yourself
accordingly and know that we are attending to this
matter”.
In the mean time, it requested that the landlord “refrain
from issuing eviction notices.”
A
mediation hearing was convened at the Tribunal on 22 October 2008.
The landlord said that about eight tenants attended, apparently
as
representatives for about 20 tenants. There are 58 flats in the
building. The mediation proceeded, but at the end the mediator

recorded that the parties could not settle.
13
The Tribunal therefore referred the matter for arbitration. It
would appear that a date was eventually set for a hearing, namely

19 June 2009. But before a hearing could take place the landlord
went to court to evict the tenants.
Litigation
history
In
February 2009, the landlord’s predecessor in title applied
for the tenants’ eviction in the magistrates’
court.
This was after the three-month moratorium the Act places on
evictions had expired.
14
The tenants defended. In resisting summary judgment in the Ithemba
and Union lease cases, the tenants objected that the proceedings

were incompetent because of their pending complaint before the
Tribunal.
15
Their plea that suit was pending in another forum
16
was never adjudicated, because the magistrates’ court
proceedings were withdrawn in May 2009. For, in the meanwhile,

formal transfer of title had taken place, and the present landlord
became the legal owner of the building. The day after the

magistrates’ court application was withdrawn, the landlord
instituted fresh proceedings for eviction in the High Court.
In
its founding affidavit, the landlord explained its business mission
and the necessity, arising from it, to secure a higher
rental
return on Lowliebenhof. The landlord also explained why it
cancelled the leases. It recounted that it took advice from
its
attorneys. It was informed that the lease agreements concluded with
various tenants “did not allow us to unilaterally
increase
the rental to the levels that we needed to and that the only way in
which this could be achieved, was to cancel the
existing leases”
and to invite tenants to enter into new lease agreements.
In
her opposing affidavit, Ms Maphango noted that the magistrates’
court proceedings were launched before the Tribunal
had
“adjudicated” the tenants’ complaint. She added,
“[a]gain, before the matter at the Housing Tribunal
was dealt
with on the 19
th
of June 2009, it came to light that
there is the application issued in the [High Court] for my
eviction, which application
was yet to be served”. She
concluded: “Under the circumstances, I had no option but to
instruct my attorney to
withdraw the complaint lodged with [the]
Housing Tribunal so that I can concentrate on this application”.
The
landlord’s replying affidavit confirmed that the High Court
application was served before the Tribunal hearing was
convened on
19 June 2009. It went on to record that before the hearing of the
matter, the tenants’ attorney informed
the landlord’s
lawyer “that he intended to withdraw the complaint that had
been lodged in terms of the Rental Housing
Act in its totality”.
The deponent stated that he had been advised that “the
complaint to the Housing Tribunal,
which has been withdrawn, does
not constitute an impediment to the hearing of the current eviction
application”. I return
to this later.
The
High Court eviction application moved tortuously, for despite the
tenants’ opposing affidavits, their then-attorney
consented
to an eviction order, which was granted but later rescinded when
they disclaimed his authority to do so. The tenants
secured their
present legal team, and the matter was argued before Van Der Riet
AJ, who in a reserved judgment found in the
landlord’s
favour.
The
High Court found that it was difficult to conceive why a
property-owner would negotiate a right to terminate a lease by

notice if that right could not be used to terminate the lease in
order to negotiate a new one with different terms. The escalation

clauses regulated rent increases during the operation of the lease,
but did not govern the rental once the lease had been terminated.

Nor was the Court persuaded that the termination was contrary to
public policy especially since the power to declare a contract
or
the exercise of contractual rights contrary to public policy should
be used sparingly and only in the clearest of cases.
On 7 May 2010,
the Court granted an order of eviction against ten respondents. It
postponed the eviction of seven respondents,
who would be rendered
homeless, granting them leave to apply to join the City of
Johannesburg, which had never been cited in
the proceedings.
With
leave of the High Court, the tenants appealed to the Supreme Court
of Appeal. Their appeal was unavailing. That Court found
that the
positive component of the section 26(1) right to security of
tenure
17
obliges the state to take reasonable measures, but does not bind
private persons. While its negative aspect binds private persons,

who are forbidden from interfering with the rights of any other
person, a tenant has no security of tenure in perpetuity. The

duration of the tenure is governed by the terms of the lease,
beyond which there is no security of tenure. Hence the Court

concluded that the tenants’ security of tenure was
circumscribed by the leases themselves. It could therefore not be

said that termination, in accordance with the leases, constituted
an infringement of their security of tenure.
The
tenants’ contractual argument fared no better. The Supreme
Court of Appeal held that since reasonableness and fairness
are not
freestanding requirements for the exercise of a contractual right,
a court cannot refuse implementation of a contract
simply because
the individual judge regards this as unreasonable or unfair. The
landlord behaved transparently by disclosing
its motive in
terminating the leases, which it was not obliged to do. The Court
found “nothing wrong in the [landlord’s]
conduct that
can justifiably be described as unreasonable and unfair”. Nor
did the leases contain a tacit term precluding
the landlord’s
reliance on the bare power of termination.
No
doubt because of the focus of the tenants’ contentions, the
Supreme Court of Appeal dealt very succinctly with their
argument
on the Act. In fact, the Court observed that it was not clear why
the tenants chose a “circuitous route”
instead of
simply relying on a contravention of the Act. The Court rejected
the tenants’ contention that the termination
of their leases
constituted a contravention of the statute’s provisions. It
gave two reasons:
“
First,
the provisions of the Act and the regulations relied upon are
directed against a ‘practice’. That does not

contemplate, as I see it, unacceptable conduct by the landlord on an
isolated occasion (see eg
the
Concise Oxford English Dictionary
which
defines ‘practice’ (in this context) as ‘the
customary or expected procedure or way of doing something’).

It envisages incessant and systemic conduct by the landlord which is
oppressive or unfair. Termination of a lease would therefore
not
qualify as a practice. Secondly, for reasons I have already stated,
I do not believe that the respondent’s termination
of the
leases could in the circumstances be denounced as unreasonable or
unfair, let alone oppressive.”
18
Submissions in this Court
In
this Court, the tenants accepted that the termination clauses are
not, on their face, offensive to public policy. Their contention

was that the circumstances in which the landlord exercised the
power rendered the termination unfair, unreasonable and contrary
to
public policy. They contended that it is grossly unfair for the
landlord to bring their tenure to an end for the sole purpose
of
imposing a rent increase beyond that permitted by the leases
themselves. Their primary submission was that the landlord’s

act had to be set aside because the termination was to frustrate
the rights the tenants had under the leases. This was because
the
landlord did not primarily wish to bring the leases to an end: it
wished to circumvent the rent escalation clauses, and
also sought
to avoid compliance with the Tribunal clauses.
The
landlord was not only entitled but, the tenants submitted, obliged
to apply under the Ithemba lease to a “competent
authority”
for leave to charge a higher rental than that permitted by the
escalation clauses. It was not entitled to
dispense with that
procedure by terminating the leases. Here the tenants relied on the
Act’s provisions empowering the
Tribunal to make “a
determination regarding the amount of rental payable by a tenant”.
19
The lease provisions read together with the Tribunal’s
statutory authority meant that the landlord was obliged to approach

the Tribunal for leave to charge a higher rent than that set out in
the escalation clauses.
The
landlord urged that the lease agreements do not create any form of
security of tenure since a tenant at the inception of
a lease by
implication accepts that the right of access to adequate housing is
not assertable indefinitely. The landlord pointed
to the provisions
of the Prevention of Illegal Eviction from and Unlawful Occupation
of Land Act
20
(PIE), which requires consideration of all a tenant’s
circumstances before eviction. The landlord warned against creating

a perpetual contract for the parties by precluding it from relying
on the termination clause. This, it argued, would also sanction
a
quasi-expropriation of the premises terminable only at the instance
of the applicants.
The
landlord also disputed the application of the Act, submitting that
the statutory framework empowers the Tribunal to determine
neither
whether a party’s motives for cancelling a lease are
reasonable nor the amount of rent or the rates of escalation
under
a lease. In addition, the Act is consistent with the unqualified
right of a landlord to cancel a lease under a termination
clause.
Given the landlord’s transparency in disclosing its motive,
the cancellation here was not an “unfair practice”

under the Act. In addition, the landlord supported the meaning the
Supreme Court of Appeal ascribed to “practice”.
The
Inner City Resource Centre, which was admitted as an amicus curiae,
generally supported the tenants’ arguments on
their section
26(1) constitutional rights, as well as on the termination of their
leases as an “unfair practice”
under the Act. However
it urged that if neither of these arguments prevailed, the Court
should develop the common law to include
an implied term in the law
of lease prohibiting a landlord from cancelling a lease to
circumvent protective clauses in the
lease, where this would cause
disproportionate hardship.
The
Rental Housing Act
The
critical question is whether the landlord was lawfully entitled to
exercise the bare power of termination in the leases
solely to
secure higher rents. At common law, there can be no doubt that a
lessor was entitled with no let or hindrance to
terminate a lease
on notice.
21
But even before the Constitution, rent control legislation heavily
clamped lessors’ common law powers.
22
In the wake of accommodation shortages during World War I, the
legislature enacted the Tenants Protection (Temporary) Act
23
and the Rents Act.
24
The former statute was an interim measure, but formed “the
nucleus” of later rent control legislation.
25
It provided that as long as a lessee paid the stipulated rent on
due date, and performed all other conditions appurtenant to
the
lease, he or she could not be ejected unless the lessor required
the premises for personal accommodation.
26
No distinction was drawn between levels of rent. As long as the
lessee paid the rent due, he or she was protected, even if
the rent
was unreasonably low.
27
Though
later controls were less invasive,
28
they still constituted what the Appellate Division described in
1942 as “a drastic interference with the common law rights
of
lessors”.
29
The legislation was repeatedly extended, in various amended forms,
culminating in the Rent Control Act of 1976.
30
Its social rationale was thus explained:
“
In
view of the fact that housing is one of the basic necessities of
life, the state was forced to interfere in the market-place
and to
introduce legislation protecting the economically weaker party, the
lessee, against exploitation by the lessor. Consequently,

legislation controlling the lease of immovable property was enacted
in 1920 and has not left the statute book.”
31
(Footnote omitted.)
Before
1994 the only clogs inhibiting a lessor’s common law power of
termination were those expressly legislated. But
the Constitution
has fundamentally changed the setting within which the rights of
both lessors and lessees stand to be evaluated.
Constitutionalism
has wrought significant changes to private law relationships. In
particular, the inclusion in the Constitution
of social and
economic rights created a right of access to social goods. Amongst
these is the right now afforded to everyone
to have access to
adequate housing. It is true, as the landlord emphasised, that the
main burden of fulfilling this right falls
upon the state, which
section 26(2)
32
obliges to take reasonable measures within available resources to
achieve its progressive realisation.
But
the impact of the right is not solely on the state. It goes wider
in two ways. First, the right of access to adequate housing
imports
an inhibitory duty not to impede or impair access to housing. This
rests not only on public bodies but also on private
parties. This
Court held in
Grootboom
33
that the right imports “at the very least, a negative
obligation . . . upon the State and all other entities and persons

to desist from preventing or impairing the right of access to
adequate housing”.
34
Later
decisions of this Court have shown how the progressive realisation
of the right of access to housing may impinge on private
parties.
Thus, debt recovery is subjected to judicial consideration of the
right before creditors may levy execution on a debtor’s

home.
35
And while a private landowner cannot be expected to house unlawful
occupiers indefinitely, its right not to be arbitrarily
deprived of
property
36
must be interpreted in conjunction with the constitutional
requirement
37
that every eviction be made by court order after considering all
the relevant circumstances.
38
The
second way in which the right of access to adequate housing ripples
out to private rights is when the state itself takes
measures to
fulfil the right. These may affect private relationships. The Act
is a prime instance. It originated in a government
White Paper in
December 1994
39
that envisioned a policy framework aiming to create market
certainty while enabling provincial and local governments to fulfil

their constitutional obligations in relation to housing.
40
Since the Constitution provides that housing is a functional area
of concurrent national and provincial competence,
41
the Act made provision for provincial measures to secure its
practical operation.
The
statute’s heading states that it is enacted “to define
the responsibility of Government in respect of rental
housing
property” and “to promote access to adequate housing
through creating mechanisms to ensure the proper functioning
of the
rental housing market”. The Preamble expressly couches the
statute’s enactment and its objectives within
the right of
access to adequate housing, and the state’s duty to fulfil
it. It goes on to note that “rental housing
is a key
component of the housing sector”, and that there is “a
need to promote the provision of rental housing”.
It also
notes “a need to balance the rights of tenants and landlords
and to create mechanisms to protect both tenants
and landlords
against unfair practices and exploitation”, and to “introduce
mechanisms through which conflicts
between tenants and landlords
can be resolved speedily at minimum cost to the parties”.
Rent
control was a focus of major public debate before the Act was
passed. It was recognised that rent control inhibited market

mechanisms that provide an incentive for investors to contribute to
the available stock of rental housing.
42
After extensive public consultation,
43
the statute’s provisions were finalised, placing
responsibility on government to “promote a stable and growing

market” in rental housing that “progressively meets the
latent demand for affordable rental housing among persons

historically disadvantaged by unfair discrimination and poor
persons”. This is to be done “by the introduction
of
incentives, mechanisms and other measures” that improve
conditions in the rental housing market, encourage investment
and
correct distorted patterns of residential settlement.
44
Chapter
3 of the Act regulates relations between tenants and landlords. It
prohibits unfair discrimination in advertising or
negotiating a
lease, or during the term of a lease.
45
It confers on a tenant the right to privacy during the lease.
46
It also itemises certain protections encompassed within the right
to privacy.
47
It records the landlord’s rights against the tenant.
48
These expressly include the right to “terminate the lease in
respect of rental housing property on grounds that do not

constitute an unfair practice and are specified in the lease”.
49
Chapter
3 also contains general provisions pertaining to leases. These
permit oral leases,
50
but require the landlord to reduce a lease to writing if the tenant
requests it.
51
A lease is deemed to include certain standard provisions, which
neither tenant nor landlord may waive.
52
These concern receipts,
53
deposits and how they may be used,
54
inspection of the premises,
55
vacation of the premises before expiration of the lease,
56
and payment of costs shown to have been incurred in relation to the
contract.
57
The Chapter regulates the position when the tenant remains with the
landlord’s consent after the lease has expired.
58
And it requires that a lease that is reduced to writing must
include certain information.
59
This includes “the amount of rental of the dwelling and [the]
reasonable escalation, if any, to be paid in terms of the
lease”.
60
Chapter
4 empowers the Member of the Executive Council (MEC) responsible
for housing in each province to create a Rental Housing
Tribunal.
61
The Tribunal’s functions are to fulfil the duties the Chapter
imposes on it, and to “do all things necessary to
ensure that
the objectives of this Chapter are achieved”.
62
Tribunal members are appointed by the MEC after a public process
63
and must include persons with expertise in both property management
or housing development
64
and consumer matters.
65
The Act provides for meetings of the Tribunal,
66
its staff,
67
funding
68
and reports.
69
The proceedings of the Tribunal may be brought under review.
70
The
Act provides that any tenant, landlord, group of tenants or
landlords, or interest group “may in the prescribed manner

lodge a complaint with the Tribunal concerning an unfair
practice”.
71
“Unfair practice” means:
72
(a) any act or omission by a landlord or tenant in contravention of
the Act; or (b) a practice “prescribed as a practice

unreasonably prejudicing the rights or interests of a tenant or a
landlord”.
73
The Gauteng Unfair Practices Regulations provide that neither a
landlord
74
nor a tenant
75
may “engage in oppressive or unreasonable conduct”. A
landlord must not “conduct any activity which unreasonably

interferes with or limits the rights of the tenant or which is
expressly prohibited under the lease, these regulations, the
Act or
any other law”.
76
The parallel provision for tenants proscribes “any activity
which unreasonably interferes with or limits the rights of
other
tenants and that of the neighbours, or which is expressly
prohibited under the lease, these regulations, the Act or any
other
law”.
77
In addition, the regulations provide that a tenant must not
“intimidate, discriminate or retaliate against the landlord

for exercising any right under these regulations, the Act or any
other law”.
78
The
Gauteng Unfair Practices Regulations also import an obligation of
good faith into the parties’ dealings. They stipulate:
“
Every
obligation under these regulations, the Act, or any other law, and
every act which must be performed as a condition precedent
to the
exercise of a right or remedy, imposes an obligation of good faith
in its performance or enforcement”.
79
The
statute sets out the steps the Tribunal must take if “it
appears that there is a dispute in respect of a matter which
may
constitute an unfair practice”.
80
These include mediation.
81
Where mediation is not possible, or has failed, it must conduct a
hearing, and, subject to the section, “make such a
ruling as
it may consider just and fair in the circumstances”.
82
The Tribunal’s powers in relation to hearings are
stipulated.
83
Where at the conclusion of a hearing the Tribunal is of the view
that an unfair practice exists, it may oblige any person to
comply
with the Act;
84
refer the matter for investigation;
85
or “make any other ruling that is just and fair to terminate
any unfair practice”.
86
The
Act provides that an unfair practice ruling “may include a
determination regarding the amount of rental payable by
a tenant”.
87
But it carefully circumscribes the Tribunal’s powers in
making the determination. It “must be made in a manner
that
is just and equitable to both tenant and landlord”. In
addition, the rent determination must take “due cognisance”

of—
“
(a)
prevailing economic conditions of supply and demand;
(b) the need for a realistic
return on investment for investors in rental housing; and
(c) incentives, mechanisms,
norms and standards and other measures introduced by the Minister in
terms of the policy framework
on rental housing referred to in
section 2(3)”.
88
More
generally, the Act requires a Tribunal when making a ruling to have
regard to specified factors. These include not only
regulations in
respect of unfair practices,
89
but also “the common law to the extent that any particular
matter is not specifically addressed in the regulations or
a
lease”,
90
the provisions of the lease “to the extent that it does not
constitute an unfair practice”,
91
as well as “the need to resolve matters in a practicable and
equitable manner”.
92
A Tribunal ruling is deemed to be an order of a magistrates’
court,
93
enforceable in terms of the Magistrates’ Courts Act.
94
A section added in 2007 expressly provides that the Tribunal does
not have jurisdiction to hear applications for eviction.
95
Applying
the Act to the parties’ dispute
The
lessor is a landlord under the Act.
96
Its tenants were therefore entitled to lodge an unfair practice
complaint against it with the Tribunal. They did so. The landlord

instituted eviction proceedings against them first in the
magistrates’ court. The tenants did not withdraw their
complaint.
After those proceedings in the magistrates’ court
had been withdrawn, the landlord instituted eviction proceedings in

the High Court. It was only then that the tenants withdrew their
complaint before the Tribunal. It is not difficult to infer
that
they lacked resources and energy to litigate in both forums, thus
deciding to “concentrate” on fighting the
eviction
proceedings.
97
It
has not been suggested, nor could it be, that by withdrawing their
complaint the tenants abandoned it or waived their right
to pursue
it under the Act. On the contrary, they
have
consistently contended that the landlord did not validly terminate
their lease agreements, whether under the leases themselves,
the
law of contract as they say it should be constitutionally
developed, or the Act. And,
without objection from the
landlord, they contended in this Court and in the courts of
previous instance that the landlord’s
action in terminating
the leases was unlawful because it was an “unfair practice”
under the Act.
As I
see it, the question before us is not whether the Act prohibited
the landlord from terminating the tenants’ leases
in order to
secure higher rents, but whether the termination was capable of
constituting an unfair practice.
98
Whether it was an unfair practice, and what a just and fair ruling
would be if it was an unfair practice, lies within the Tribunal’s

power to decide. If the termination is capable of constituting an
unfair practice, I must consider what order this Court should
make.
In
my view, neither the landlord nor the tenant fully appreciated the
force of the Act’s provisions in litigating their
dispute.
But it would be wrong for this Court to take a narrow view of the
matter that ignores the importance and impact of
the statute. That
would imply that this Court could allow litigants to ignore
legislation that applies to an agreement between
them. Rule of law
considerations militate against this.
The
Act abolished rent control legislation, but in its stead it enacted
a more complex, nuanced and potentially powerful system
for
managing disputes between landlords and tenants. That system
expressly takes account of market forces
99
as well as the need to protect both tenants and landlords.
100
Even-handedly, it imposes obligations on both. It is in particular
sensitive to the need to afford investors in rental housing
a
realistic return on their capital.
101
The statutory scheme is therefore acutely sensitive to the need to
balance the social cost of managing and expanding rental
housing
stock without imposing it solely on landlords. Far from ignoring
the interests of investors like Lowliebenhof’s
landlord, the
Act seeks to create a framework for resolving disputes with tenants
that accommodates landlords’ requirements.
At
the same time, the Act does not ignore the need to protect tenants.
Its most potent provisions are those at the centre of
the dispute
in this case, namely termination of a lease and rental
determinations that are just and equitable. The Act expressly

provides that a landlord’s rights against the tenant include
the right to “terminate the lease . . . on grounds
that do
not constitute an unfair practice and are specified in the lease”.
102
“And” is not disjunctive. It is conjunctive. It means
the Act recognises the landlord’s power to terminate
a lease,
provided the ground of termination is specified in it, but, in
addition, does not constitute an unfair practice. Differently
put,
the Act demands that a ground of termination must always be
specified in the lease, but even where it is specified, the
Act
requires that the ground of termination must not constitute an
unfair practice.
In
this way, the Act superimposes its unfair practice regime on the
contractual arrangement the individual parties negotiate.
That the
statute considers its unfair practice regime to be super-ordinate
emerges not only from the requirement that a lease-based

termination must not constitute an unfair practice, but also from
what the Act enjoins the Tribunal to take into consideration
when
issuing its rulings: these include “the provisions of any
lease”, but only “to the extent that it does
not
constitute an unfair practice”.
103
The effect of these provisions is that contractually negotiated
lease provisions are subordinate to the Tribunal’s power
to
deal with them as unfair practices.
It
follows that where a tenant lodges a complaint about a termination
based on a provision in a lease, the Tribunal has the
power to rule
that the landlord’s action constitutes an unfair practice,
even though the termination may be permitted
by the lease and the
common law. Whether a termination in these circumstances could be
characterised as “lawful”
need not be decided now.
“Unfair practice” is an act or omission in
contravention of the Act, or a practice the
MEC prescribes as
“unreasonably prejudicing the rights or interests of a tenant
or a landlord”. This formulation
is significant. It poses
“interests” in contradistinction to “rights”.
This embraces more than legal
rights. So used, “interests”
includes all factors bearing upon the well-being of tenants and
landlords. It encompasses
the benefits, advantages and security
accruing to them.
104
This
greatly enlarges the compass of unfairness under the Act. It means
that unfair practices are not determined by taking into
account
only the common law legal rights of a tenant or landlord, but by
considering also their statutory interests. This makes
it even
clearer that the statutory scheme does not stop at contractually
agreed provisions, and conduct in reliance on them.
It goes beyond
them. It subjects lease contracts and the exercise of contractual
rights to scrutiny for unfairness in the light
of both parties’
rights and interests.
The
Gauteng Unfair Practices Regulations provide that a landlord must
not “engage in oppressive or unreasonable conduct”.
105
This must be read in the light of the power to prescribe as unfair
a practice that unreasonably prejudices a landlord’s
or
tenant’s rights or interests. It means that “oppressive”
conduct might be held to entail an exercise of
a landlord’s
legal entitlements under a lease that oppresses or unreasonably
prejudices a tenant’s interests.
I
therefore respectfully consider that the Supreme Court of Appeal
erred in concluding without more that the landlord’s
termination of the leases could in the
circumstances not be denounced as unreasonable or unfair, let alone
oppressive. This
approach in my view applied an unduly constricted
approach to the question, which focused solely on the landlord’s
common
law entitlement to cancel the leases. Since in my view this
dispute is best approached through the generous and powerful
mechanisms
the Act offers both sides to the dispute, I express no
view on whether the landlord was entitled at common law to cancel
the
leases, nor on whether, if it was so entitled, the common law
should be constitutionally developed to inhibit that power.
It
is enough to say that in my respectful view the High Court and the
Supreme Court of Appeal under-assessed the power of the
statute. In
particular, they overlooked the history and setting of the statute,
its broad definition of “unfair practice”,
its clear
intimation that invocation of lease terms may constitute an unfair
practice and the carefully balanced powers that
are conferred on
the Tribunal. These show that the statute sought to create a just
and practicable means of resolving landlord/tenant
disputes. This
encompasses a ruling by the Tribunal that a termination of a lease
in the exercise of a right conferred by the
terms of the lease
constitutes an unfair practice. Since the tenants never abandoned
their reliance on the provisions of the
Act, this Court should in
my view afford a remedy that enables the tenants to seek a ruling
from the Tribunal.
106
I
also respectfully differ from the Supreme Court of Appeal’s
conclusion that “practice”
envisages
only “incessant and systemic conduct by the landlord which is
oppressive or unfair”
107
and cannot consist in unacceptable conduct on an
isolated occasion. It has long been established in our law that a
“practice”
may consist in a single act. This accords
with one of the ordinary meanings of the word.
108
Thus, it was decided early under the unfair
labour practice jurisdiction in employment law
109
that a single dismissal may constitute a labour
“practice”.
110
That authority has never been doubted.
111
It forms the interpretive backdrop for
understanding the use of the word “practice” in the
Act.
112
More importantly, the broader interpretation
accords with the Constitution.
113
The Act is a post-constitutional enactment
adopted expressly to give effect to the right of access to adequate
housing. A cramped
interpretation of “practice” would
thwart its good ends.
There
can thus be no doubt that the Tribunal had jurisdiction to rule
that the landlord’s t
ermination of the
tenants’ leases was an unfair practice, and that the Tribunal
had the power to issue a ruling granting
the tenants appropriate
relief. That may include a ruling setting aside the landlord’s
termination of their leases.
Here,
it bears especial emphasis that the tenants’ right to seek a
ruling setting aside the termination of their leases
has a mirror
counterpart in remedies the Act affords the landlord. It too can
lodge an unfair practice complaint with the Tribunal.
It can
thereby seek an increase in the rents it says have become
uneconomic and unsustainable. The Tribunal is empowered to
issue a
determination regarding the amount of rent payable by the tenants.
The
rent it determines must be just and equitable to both landlord and
tenant.
114
And it must take cognisance of exactly the concerns that speak
loudly in the landlord’s depositions in this case –
the
unsustainability of the building and of its business model at
present rents, and the fading of lustre of its investment
in
Lowliebenhof. It seeks “a realistic return”
115
on its investment – not unjustly so. The statute demands that
the Tribunal in determining rent take due cognisance of
precisely
that. If it fails to do so, the landlord may bring its proceedings
under review.
116
At
the same time, the Tribunal’s determination whether the
landlord’s termination of the tenants’ leases,
solely
to get higher rents, was an unfair practice, would be material to
any subsequent decision on whether to grant an eviction
order. The
Constitution requires that an eviction order be granted only “after
considering all the relevant circumstances”.
117
A Tribunal’s determination that the landlord’s
termination of the tenants’ leases was an unfair practice

would be most pertinent to that.
It
follows that the High Court ought to have postponed the eviction
application to enable proceedings before the Tribunal to
determine
whether the termination of the leases was an unfair practice.
Remitting the matter to the High Court would unduly
protract what
has already been a long-fought case. Hence the remedy I propose
will ensure that this Court can itself issue
a just and expeditious
order, after enabling the parties to approach the Tribunal. I turn
to that now.
Remedy
The
conclusion that the Tribunal had jurisdiction to determine the
tenants’ grievance against the landlord, including
its
cancellation of their leases, brings the question of remedy to the
fore. Once a tenant has lodged a complaint with the
Tribunal, the
Act imposes a three-month moratorium on evictions.
118
In this case, the landlord waited out the three-month period before
instituting eviction proceedings. That it was entitled
to do so had
no effect on the validity or otherwise of the tenants’
complaint that the termination of the leases constituted
an unfair
practice under the Act. Nor did it deprive the Tribunal of
jurisdiction to rule that it was, and to grant the tenants

appropriate relief. In other words, while the Act imposes only a
limited moratorium on evictions, it does not follow that a
court
from which an eviction order is sought may not stay the proceedings
before it in order to give the Tribunal a chance
to make a ruling.
Indeed,
the Act itself provides that any dispute in respect of an unfair
practice “must be determined by the Tribunal”
unless
proceedings “have already been instituted in any other
court”,
119
that is, before a complaint has been brought before the Tribunal.
This means the Tribunal was under an obligation to determine
the
tenants’ complaint, notwithstanding the effluxion of the
three-month moratorium, and notwithstanding the landlord’s

later institution of eviction proceedings.
The
Act further provides that any person may approach a court for
urgent relief in circumstances where he or she would have
been able
to do so were it not for the Act, or to institute proceedings for
the normal recovery of arrear rental, or for eviction
“in the
absence of a dispute regarding an unfair practice”.
120
The authority to apply urgently for eviction only “in the
absence of a dispute regarding an unfair practice” seems
to
preclude at least some eviction proceedings entirely. However, the
provision must be interpreted alongside the moratorium.
The
moratorium appears to license all eviction proceedings after it has
expired. The two provisions are best understood as
licensing
eviction applications in other forums, while nevertheless
preserving the Tribunal’s power, and maintaining
its duty, to
make a ruling on any unfair practice complaint before it.
Here,
the unfair practice complaint the tenants lodged against the
landlord was triggered by the termination letters. Their
complaint
cited “intimidation and victimizing of tenants”,
“threatening to evict tenants without a court
order and
issuing of notices while a case lodged against you has not been
finalised”, and “unfair and exploitative
rental and
services charges” – the latter plainly directed at the
new, post-cancellation, rents the landlord sought
to exact. It
follows from this that the tenants’ complaint encompassed a
grievance against the termination of their leases.
That complaint
the Tribunal was bound to adjudicate.
Given
the strong and balanced framework the Act creates to accommodate
the interests of both landlords and tenants, the High
Court should
in my view have stayed the proceedings before it to enable the
tenants to resuscitate their complaints against
the landlord, and
to enable the Tribunal to determine whether the termination of
their leases was an unfair practice. It is
true that the tenants
had by that time withdrawn their complaint, but they did so without
prejudice to their rights under the
Act, whose vindication they
continued vociferously to claim. Justice therefore required that
the Tribunal adjudicate their
complaint. That should be done
together with any counter-complaint the landlord might choose to
lodge about the inadequate
rentals it says Lowliebenhof is
yielding.
In
my view, given the fuller understanding of the Act set out in this
judgment, the proper order is to grant the applicants
leave to
appeal, but to hold over final determination of the appeal to
enable the landlord and tenants, if so advised, to bring
suitable
proceedings before the Tribunal.
121
If the Tribunal should hold that the termination of the tenants’
leases was an unfair practice, and should the relief
it grants
include an order setting aside the termination, the eviction order
granted against the applicants may have to be
set aside. The
parties must be granted leave to set the matter down in this Court
for finalisation of the appeal on papers
supplemented as they think
fit.
The
question of costs, in the event that a complaint is lodged with the
Tribunal, must stand over for later determination.
Order
The
following order is made:
The
application for leave to appeal is granted.
The
appeal is postponed.
Any
of the parties may, if so advised, lodge a complaint in terms of
section 13
of the
Rental Housing Act 50 of 1999
with the Gauteng
Rental Housing Tribunal on or before Wednesday 2 May 2012.
If a
complaint is lodged on or before that date, the parties are granted
leave to apply to the Court within fifteen court days
of the ruling
by the Gauteng Rental Housing Tribunal, or other disposition of the
matter, for further directions.
If
no complaint is lodged on or before that date, the appeal is
dismissed with costs.
ZONDO AJ (Mogoeng CJ and Jafta J concurring):
This
matter concerns a dispute between the applicants and the respondent
about whether the leases between the applicants and
the respondent
were validly terminated. In applications that were brought in the
South Gauteng High Court (High Court) by the
respondent for the
eviction of the applicants, Van der Riet AJ found that the leases
were validly terminated. In an appeal,
the Supreme Court of Appeal
upheld the finding and dismissed the appeal. The applicants applied
to this Court for leave to
appeal against that decision.
Cameron
J has prepared a judgment to which I refer to as the main judgment.
Cameron J has come to the conclusion that the High
Court “ought
to have postponed the eviction application to enable proceedings
before the Tribunal to determine whether
the termination of the
leases was an unfair practice.”
122
For reasons that appear later in this judgment,
although I agree that the applicants be granted leave to appeal to
this Court
against the decision of the Supreme Court of Appeal, I
am unable to agree with the conclusion reached by Cameron J and
with
the order in the main judgment.
123
The facts
The
facts are comprehensively set out in the main judgment. It is not
necessary to repeat them, save for highlighting only those
aspects
that I consider essential for a proper understanding of this
judgment.
The
applicants occupy certain flats in a building called Lowliebenhof,
in Braamfontein, Johannesburg. The building is owned
by the
respondent. When the respondent purchased it, the applicants were
already tenants by virtue of leases concluded at different
times
with different previous owners of the building. The applicants’
occupation of the flats was governed by four different
leases.
These were the Ithemba lease, the Technical Workers Union lease,
the Artisan Staff Association lease and the Eagle
Creek lease.
Except
for the Artisan Staff Association lease, the leases contained
termination clauses which provided that they could be terminated
on
notice. Some required two months’ written notice of
termination while others required one month’s written notice.

The Artisan Staff Association lease did not contain any provision
for its termination on notice but it was common cause between
the
parties that it could be terminated on reasonable notice.
The
Ithemba lease contained a provision that, if the lease was
supported by a Department of Housing subsidy, the lease could
only
be terminated at the discretion of the lessee. In terms of that
lease the annual rent increase was predetermined at 10%.
It also
provided that, if certain of the landlord’s expenses or
charges connected with the property increased, the lessor
would be
entitled to increase the rent proportionately in order to take
account of increased expenses the landlord had to pay.
It also
provided that “should the provisions of any statutory Rental
Body or Act or any amendment or replacement thereof,
be or anytime
during the operation or any renewal or extension of this lease,
become applicable to the leased premises”,
the lessor was
entitled to apply for a higher rent than the fixed increase.
The
Technical Workers Union lease contained a clause providing for the
escalation of rent by 15% per year. It had no provision
relating to
a statutory rental body. The Eagle Creek lease provided for the
annual escalation of the monthly rent by “not
less than 10%
and [was] further subject to such increases in rental from time to
time in terms of the Agreement.” The
Eagle Creek lease did
not contain a clause making any reference to the Rental Housing
Tribunal or to a statutory rental body.
To
purchase the building bond finance was used. According to Mr
Seinker, a director of the respondent who deposed to the founding

affidavit in the various applications against the applicants, a
financial analysis was conducted after the sale of the properties

to the respondent to compare the financial overhead costs with the
overall rent return that was being received from the tenants.
Mr
Seinker says that the amount of rent charged was also compared to
market-related rents in comparable buildings in the area.
He says
that it was found that the then current market-related rents in the
Aengus Portfolio were three times higher than the
rents being paid
by the tenants in the Lowliebenhof Building. It was also
established that the rent for the building was lower
by some margin
than the overhead costs and finance charges relating to the
building. Accordingly, said Mr Seinker, the building
was being run
at a loss.
On 1
August 2008 and on other subsequent dates, Aengus Property
Management (Pty) Ltd (APM), in its capacity as manager of the

building, sent a letter to tenants including some of the applicants
which bore the heading: “NOTICE TO VACATE”.
The tenants
were given notice to vacate their flats by specified dates but were
offered leases on the same terms as existed
at the time if they
were prepared to pay higher rent. The suggested new rent seems to
have been more than double the rent the
tenants were paying at the
time. The notice to vacate that was sent to the first applicant, Ms
Maphango, was dated 8 September
2008. Notices on identical terms
were offered to other tenants. It was pointed out in the notice
that, if a tenant was not
prepared to sign the new lease, he or she
would have to vacate the flat on the date given in the notice. The
applicants neither
accepted the new leases nor vacated the flats.
The
tenants, including the first applicant, then referred to the Rental
Housing Tribunal of Gauteng
124
(Tribunal) a complaint against the respondent or
its predecessor or APM. A copy of the tenants’ complaint was
not included
in the papers. However, copies of the two letters that
were written by the Tribunal about the complaint were included. It
is
reflected in one of those letters that the tenants’
complaint was acknowledged by the Tribunal on 17 September 2008.

According to the correspondence from the Tribunal, the tenants’
complaint against the respondent or its predecessor or its

predecessor’s property managers was that—
(a) there was intimidation and victimisation of tenants at the
Lowliebenhof Building;
(b) the tenants were being threatened with eviction without a court
order; and
(c) there were unfair and exploitative rent and service charges at
the Lowliebenhof Building.
In
their letter dated 17 September 2008, the Secretariat to the
Tribunal informed APM that the tenants of Lowliebenhof Building
had
lodged a complaint against it regarding: unfair rent charges,
intimidation, and eviction threats. The Secretariat also
wrote that
the complaint had been lodged in terms of the
Rental Housing Act
125
(RHA
) and the Unfair Practices Regulations of
the Gauteng Provincial Government
126
(RHA Regulations). The Secretariat stated that,
in terms of section 13(2) of the RHA, a mediation meeting/tribunal
hearing would
be held regarding the complaint. In subsequent
correspondence, after informing APM of the nature of the complaint,
the Secretariat
requested APM to “refrain from issuing
eviction notices”. They also informed APM that a mediation
meeting would
be held in due course and advised that—
“
[i]n
terms of section 13(9) of the Act ‘any dispute in respect of
an unfair practice must be determined by the Tribunal,
unless
proceedings have already been instituted in any other court’.”
127
The
mediation meeting was held on 22 October 2008. The tenants’
then attorney and APM’s attorney, who is the respondent’s

current attorney, were both present at the mediation. The mediation
was unsuccessful and the mediator issued a certificate
of outcome
to the effect that the matter was unresolved.
128
In
February 2009 ApexHi Properties Limited (ApexHi), which was still
the owner of the building, began to act against the applicants.
It
issued summonses in the Johannesburg Magistrates’ Court for
their eviction. In those actions the applicants were represented
by
one and the same attorney. In resisting summary judgment the
applicants raised, among others, the defence of
lis pendens
.
The applicants asserted that they had referred a complaint to the
Tribunal relating to rent increases and that that matter
was still
pending before the Tribunal. In her affidavit, Ms Maphango said:
“
The
Tribunal held mediation proceedings between ourselves and the
property managers which were eventually unsuccessful. The Tribunal

then issued a certificate of outcome which is annexed hereto and
marked annexure “D”. Basically the matter was referred

to arbitration and the tribunal duly informed us that we will
receive notification for a date of arbitration. We are still

awaiting the said date and notification from the Tribunal.”
129
Ms
Maphango also stated that they (the tenants) were duly informed
that in terms of the law “no proceedings may be instituted
in
a court of law until such time as determination has been made by
the Tribunal in regard to this complaint.” In her
affidavit
she also submitted that the Tribunal had not yet made a
determination in the complaint referred to it which included

impermissible evictions. ApexHi aborted the summary judgment
application and withdrew the actions.
Meanwhile
the Tribunal notified the applicants that the arbitration hearing
was set down for 19 June 2009. Before the date of
hearing,
applications for evictions were instituted in the High Court on 29
May 2009. This time the applicants did not raise
the defence of
lis
pendens
. In the affidavit of the fifteenth applicant, their
stance is captured as follows:
“
Under
the circumstances I had no option but to instruct my attorney to
withdraw the complaint lodged with [the] Housing Tribunal
so that I
can concentrate on this application.”
Indeed,
all the applicants withdrew the complaint from the Tribunal before
it could be arbitrated. The explanation given is that
they wanted to
“concentrate” on the High Court proceedings.
Proceedings in the High Court
The
respondent instituted applications for eviction. In the
applications the respondent maintained that it was entitled to
cancel the leases, that the cancellation was valid, and that,
therefore, the applicants had no right to continue to occupy the

flats. It pointed out that there were prospective tenants who were
willing to pay the increased rent.
The
bases upon which the applicants opposed the respondent’s
applications were the same and the opposing affidavits were
almost
identical. Later the applicants authorised Ms Maphango to depose to
a supplementary affidavit the contents of which
they adopted as
their own for purposes of resisting the respondent’s claim.
The applicants disputed the validity of the
termination of their
leases. They contended that the respondent’s motive for
cancellation was to circumvent clauses that
did not permit the
respondent to increase the rent beyond 10% in some cases and 15% in
others. The applicants contended that
there was a tacit term in
their leases that precluded the respondent from terminating the
leases in order to circumvent those
clauses.
The
applicants also contended that their eviction from the flats would
constitute an infringement of their right of access to
adequate
housing as provided for in section 26(1)
130
of the Constitution and of their protection from
arbitrary eviction.
131
The applicants further contended that the
termination of their leases was contrary to public policy as
embodied in the Bill
of Rights. In this regard the applicants
submitted that the use of the termination clause to effect an
increase in rent of
more than 100% or 150% in the circumstances of
this case was contrary to public policy. They contended that public
policy imported
“the notions of fairness, justice and
reasonableness to the contract.” They submitted that it was
neither fair,
just nor reasonable for the respondent to terminate
their contracts to achieve a 150% rent increase “when it was
agreed
that the rental increase would be between 10% and 15%,
depending on which contract was entered into”. Although they
accepted
that on its own a clause providing for the termination of
a contract could never be unreasonable, they argued that the
purpose
for which the respondent sought to implement the
termination clause was unfair, unjust, unreasonable and, therefore,
contrary
to public policy.
In
the alternative, the applicants contended that, if the termination
was found to have been valid, the Court should not order
their
eviction because in terms of section 4(7)
132
of the Prevention of Illegal Evictions from and
Unlawful Occupation of Land Act
133
(PIE), it would not be just and equitable to do
so. They pointed out that some of them would be homeless if evicted
and that
others would be forced into a lower standard of living
than the one they enjoyed at Lowliebenhof Building because
alternative
suitable accommodation at the price they could afford
was not available near the area where the building is situated.
Judgment of the High Court
In
the High Court the matter came before Van der Riet AJ. He found
that the termination of the leases of two of the applicants
before
him were invalid because they were recipients of housing subsidies
from the Department of Housing.
134
It was common cause that the leases of tenants
who fell into that category could only be terminated at the
discretion of the
lessee. Accordingly, the respondent’s
applications against those two applicants were dismissed.
135
The Court found that the leases of the present
applicants were validly terminated.
136
The Court then considered whether it would be
just and equitable to order the eviction of the respondents before
it. It made
certain orders with regard to eviction against which
the applicants did not appeal.
137
Accordingly, it is not necessary to say more
about them.
Appeal to the Supreme Court of Appeal
With
the leave of the High Court, the applicants appealed to the Supreme
Court of Appeal. Their grounds of appeal were set out
in the
application for leave to appeal. It was not one of the applicants’
complaints against the judgment of the High
Court that it erred in
not staying the proceedings and affording the applicants an
opportunity to resuscitate their complaint
which they had withdrawn
from the Tribunal in 2009. The relevance of this point will become
clear later in this judgment, when
I deal with the difficulties I
have with the main judgment. The Supreme Court of Appeal dismissed
the appeal with no order
as to costs.
Brand
JA, who wrote for a unanimous Court, recorded that the appeal
against the judgment of the High Court was in essence aimed
at two
findings of the High Court. One finding was that the leases had
been validly terminated.
138
This was the only finding that the present
applicants challenged in the Supreme Court of Appeal. The other
finding of the High
Court against which there was an appeal did not
relate to the present applicants but to the two tenants who were
successful
in the High Court. From this, it is clear that the whole
appeal of the present applicants in the Supreme Court of Appeal was
about whether or not their leases had been validly cancelled.
The
Supreme Court of Appeal pointed out that there were two arguments
that were advanced on behalf of the present applicants
as to why
the leases had not been validly terminated. It listed the two
arguments as having been that:
139
(a) each of the leases contained a tacit term which forbade the use
of the termination clause to effect increases in rent beyond
the
increases provided for in the leases;
(b) the termination of the leases for the sole
purpose of allowing the respondent to implement a rent increase in
excess of the
maximum rent increase provided for in the lease was
contrary to public policy. In support of this argument, said the
Supreme Court of Appeal
,
the present applicants had relied upon three grounds, namely:
(i) that the termination would be unreasonable and unjust;
(ii) the termination of the leases constituted an infringement of
the applicants’ constitutional right to have access to

adequate housing in terms of section 26(1) of the Constitution;
(iii) the termination of the leases constituted an “unfair
practice” as contemplated in the RHA read with the RHA

Regulations.
In
its judgment, the Supreme Court of Appeal rejected the contention
that each one of the leases contained the tacit term contended
for
on behalf of the present applicants. The Supreme Court of Appeal
referred to Corbett AJA’s well-known judgment on
the issue of
a tacit term in a contract, namely,
Alfred
McAlpine and Son (Pty) Ltd v Transvaal Provincial Administration
140
and Nienaber JA’s judgment in
Wilkens
NO v Voges
141
which lays down the test for the determination
of a tacit term. In
Alfred McAlpine
Corbett AJA explained that a tacit term is an
unexpressed provision of a contract inferred by a court from the
express terms
of the contract and the surrounding circumstances. In
that case, the Appellate Division said that an inference that there
is
a tacit term in a contract would only be drawn if the court was
satisfied that the inference was necessary.
142
The
Supreme Court of Appeal stated that, “[o]nce there is
difficulty and doubt as to how the term should be formulated
or how
far it should go, it could hardly be said that the parties clearly
intended the proposed term to be part of their agreement.”
143
The Supreme Court of Appeal further referred to
the test as formulated by Nienaber JA in
Wilkens
NO v Voges
. There, Nienaber JA had
this to say about tacit terms:
“
The
practical test for determining what the parties would necessarily
have agreed on the issue in dispute is the celebrated bystander

test. Since one may assume that the parties to a commercial contract
are intent on concluding a contract which functions efficiently,
a
term will readily be imported into a contract if it is necessary to
ensure its business efficacy; conversely, it is unlikely
that the
parties would have been unanimous on both the need for and the
content of a term, not expressed, when such a term is
not necessary
to render the contract fully functional”.
144
Applying
this test to the present facts, the
Supreme
Court of Appeal
concluded that there were
many difficulties that stood in the way of the incorporation of the
tacit term for which the applicants
contended.
145
These included whether the landlord would have
to justify its motive for termination in every case and whether the
lessee would
be required also to have a valid motive to terminate
the lease.
146
The
Supreme Court of
Appeal
held that acceptance of the
applicants’ contention would mean that the landlord had
entered into a lease of infinite duration.
147
The
Supreme Court of Appeal also addressed the contention that the
termination was contrary to public policy. The Court considered

whether what rendered the termination of the leases to be contrary
to public policy was that it was unreasonable and unfair.
148
The Supreme Court of Appeal recorded that the
applicants had relied upon the decision of this Court in
Barkhuizen
v Napier.
149
The Supreme Court of Appeal took the view that
the applicants’ argument in this regard was fundamentally
flawed because
the proposition upon which it relied was not
supported by
Barkhuizen
.
150
In this regard the Supreme Court of Appeal
pointed out that reasonableness and fairness were not freestanding
requirements for
the exercise of a contractual right.
151
Accordingly, the Court rejected this contention.
With
regard to the argument that the termination of the leases was
contrary to public policy because it infringed their rights
of
access to adequate housing, the Supreme Court of Appeal held that
the applicants’ section 26(1) rights, including
the right to
security of tenure to one’s home, were not implicated by the
termination. This is so, said the Court, because
“a lessee of
property has no security of tenure in perpetuity”.
152
The duration of the lessee’s tenure, the
Court reasoned, is governed by the terms of the lease and
consequently the lessee
has no security of tenure that endures
beyond the currency of the lease.
153
The
Supreme Court of Appeal also dealt with the contention of the
applicants that was based on the provisions of the RHA.
154
The Court recorded the applicants’
argument in this regard as having been that the termination of the
leases was contrary
to public policy because it constituted an
unfair practice in contravention of the RHA. The Court said that it
was not clear
why the applicants had chosen “this circuitous
route instead of simply relying on a contravention of the Act”.
155
It stated that the applicants’ focus was
the provision of section 4(5)(c)
156
of the RHA to the effect that the landlord may
“terminate the lease in respect of rental housing property on
grounds that
do not constitute an unfair practice and are specified
in the lease”.
157
The Court rejected the applicants’
contention on the basis that the termination of the leases was a
single act which could
not constitute a practice.
158
The Court reasoned that a practice contemplated
in the relevant section was “incessant and systemic
conduct.”
159
It needs to be pointed out that the Court dealt
with this contention without first determining whether it was part
of the applicants’
case on the papers. In conclusion the
Supreme Court of Appeal upheld the finding of the High Court that
the leases had been
validly terminated and dismissed the appeal.
160
Application for leave to appeal to this Court
In
Ms Maphango’s affidavit she records that the applicants
contend that, in the circumstances of this case, the respondent’s

purported termination of their leases was unlawful. She then says
that this is “for three separate and independent reasons”.

She gives the following reasons:
(a) each
of
the
applicants’ leases contained a tacit term that the termination
clause
could not
be employed to effect a rent increase in excess of the rent increase
prescribed in the leases themselves;
(b) the termination of the leases in the
circumstances of this case was an unjustifiable infringement of the
applicants’
rights of access to adequate housing in terms of
section 26(1) of the Constitution. In elaboration of this reason Ms
Maphango
says that in
Jaftha v
Schoeman
161
this Court held that security of tenure is a
constituent of the right of access to adequate housing. She says
that the termination
of the applicants’ leases put an end to
the applicants’ security of tenure. Ms Maphango also adds
that, following
upon the decision of this Court in
Barkhuizen
,
the applicants submit that the enforcement of the termination
clause, on the facts of this case, and “the consequent
extinction of [the applicants’] security of tenure”
would be contrary to public policy; and
(c) the termination of the applicants’ leases, in the
circumstances of this case, constituted an unfair practice in terms

of section 4(5)(c) of the RHA because it amounts to “oppressive
or unreasonable conduct” in terms of the RHA Regulations.
This
matter raises important constitutional issues relating to the right
of access to adequate housing as provided for in section
26 of the
Constitution, as well as the effect of public policy
on
the exercise of contractual rights. The case
relates to
whether
the
applicants have a right to continue to occupy the flats in the
building of the respondent. It also affects a large number
of
people. With regard to the prospects of success, I think that the
applicants’ case has reasonable prospects of success.
It
seems to me that it is in the interests of justice that the
applicants should be granted leave to appeal.
The appeal
It
is convenient to start with the applicants’ contention that
the respondent’s conduct in terminating their leases

constituted an unfair practice as contemplated in the RHA and
the
RHA Regulations. The applicants’ counsel
submitted that in the light of the provisions of section 4(5)(c) of
the RHA the
respondent was not entitled to terminate the leases of
the applicants. Section 4(5)(c) reads:
“
The
landlord’s rights against the tenant include his or her right
to—
. . .
(c) terminate the lease in
respect of rental housing property on grounds that do not constitute
an unfair practice and are specified
in the lease”.
In
the
Supreme Court of Appeal
this
contention was rejected on the basis that the termination of a
lease does not constitute a “practice”. That
was an
incorrect reason for rejecting the
applicants’
contention. In this regard I am in agreement
with the main judgment in its rejection of the
Supreme
Court of Appeal
’
s finding. When I
say that I agree with the main judgment on this, I do not mean that
I agree that the contention of the applicants
relating to section
4(5)(c) of the RHA should have been considered or entertained by
the Supreme Court of Appeal. I mean no
more than simply that as a
matter of law, based on the authority of the Supreme Court of
Appeal itself, the conclusion that
a single act cannot be a
practice was not justified. I agree that the applicants’
contention should have been rejected
but for different reasons. A
reading of the affidavits put up by the applicants in the High
Court does not reveal that it was
their case that the termination
of their leases was invalid because it constituted an unfair
practice. The bases upon which
the applicants contended that the
termination of their leases was invalid was that the respondent
sought to effect a rent increase
that was in excess of the maximum
rent increase permitted by the leases and that the termination of
the leases was an infringement
of their constitutional right of
access to adequate housing. Their case was not that the termination
constituted an unfair
practice. In fact on their papers the
applicants first said that there had been no termination and that
the leases remained
valid.
In
my view, a case that the termination of the lease was invalid
because it was resorted to in order
to
effect a rent increase precluded by the terms of the lease is
different from a case that says that the termination was invalid

because it constituted an unfair practice and was precluded by
section 4(5)(c) of the RHA. In this case if, in their affidavits,

the applicants had put up a case to the effect that the termination
of the leases constituted an unfair practice and was in
breach of
section 4(5)(c) of the RHA, then they would have had to state the
grounds upon which they contended that the termination
was unfair
and to show that those grounds were specified in the leases.
162
The respondent would have had to address those grounds in its
replying affidavit and would have set out facts on which it would

have contended that the termination of the leases did not
constitute an unfair practice. Since the applicants never put up

that case, the respondent has never had the opportunity of dealing
with it.
In
the concurring judgment the applicants’ contention that the
termination of the leases constituted an unfair
practice
and was in breach of section 4(5)(c) of the RHA is given
consideration on the basis that it is a question of law which a

party is free to raise at anytime. I am unable to agree that the
determination of whether conduct constitutes an unfair practice
is
a question of law. In my view it is the passing of a value
judgement.
In
labour law, which gave rise to the concept of an unfair labour
practice from which the drafters of the RHA may have derived
the
concept of an unfair practice, it was decided a long time ago by
the Appellate
Division
that the
determination of whether conduct is
an
unfair labour practice or is unfair is not a question of law but
involves the passing of a value judgment. In
Media Workers
Association of SA and Others v The Press Corporation of South
Africa Ltd
163
the Appellate Division held, in relation to the determination of an
unfair labour practice, that the determination of what
is an unfair
labour practice “is not a decision on a question of law in
the strict sense of the term. It is the passing
of a moral judgment
on a combination of findings of fact and opinions.”
164
A contention had been advanced that the question whether or not a
dismissal constituted an unfair labour practice or is unfair
was a
question of law in which the assessors who sat with a chairman who
was a High Court Judge in the Labour Appeal Court
under the Labour
Relations Act
165
had no role to play. After carefully considering the contention and
the distinctions between questions of law, questions of
fact and
questions of value judgment, the Appellate Division unanimously
rejected the proposition that the determination of
the fairness or
otherwise of conduct is a question of law and held that it is a
question of passing a value judgment on findings
of fact and
opinion. There is no basis to depart from the decision of the
Appellate Division on this issue. That approach was
followed in a
number of decisions.
166
Indeed even this Court has, in a unanimous judgment in
National
Education Health and Allied Workers Union v University of Cape Town
and Others,
167
approved the approach that the determination of what is fair
involves a value judgment.
168
In that case, Ngcobo J, writing for a unanimous Court, said:
“Indeed, what is fair depends upon the circumstances of
a
particular case and essentially involves a value judgement.”
169
In
Sidumo and Another v Rustenburg Platium Mines Ltd and Others
170
(
Sidumo
) this Court quoted with apparent approval the
statement from
MWASA
that the determination of what is fair
“is not a decision on a question of law in the strict sense
of the term”
but “[i]t is the passing of a moral
judgement on a combination of findings of fact and opinions.”
I agree. Since
this point is not a question of law, the rule that a
party may raise a point of law at any time does not
apply
.
There
is a suggestion that whether conduct constitutes an unfair practice
is a question of fact and law. This proposition is
not supported by
our jurisprudence as dealt with above. It is also stated that that
question has elements of law and that,
for that reason, it may be
introduced and determined at appellate stage. In my view this
proposition does not reflect our law.
There is also a suggestion
that whether or not the termination of the leases constitutes an
unfair practice is a constitutional
issue. It seems to me that, if
that were so, there would be no warrant for that issue to be left
to the Tribunal to decide
as this Court could just as well decide
it.
The
concurring judgment sets much store on the fact that
MWASA
was decided before the Constitution came into force. While this is
true, the principle it lays down was followed by the Supreme
Court
of Appeal in a long list of cases after the Constitution had come
into operation.
171
The reason is that the Constitution has not changed the principle.
The principle has nothing to do with interpreting a statute
in
accordance with section 39(2) of the Constitution.
172
What the principle does is to define the process of determining
whether what has occurred constitutes an unfair labour practice
or
is unfair. This indisputably involves a consideration of facts and
passing a value judgement on the facts, based not on
the questions
of legality but on one’s sense of justice and fairness. The
values invoked to pass judgment are now entrenched
in the
Constitution.
173
The passing of a value judgment is quite different from raising a
point of law.
The
rule in terms of which a court permits a party to raise a point of
law is subject to well-known conditions. These conditions
ensure
fairness to all parties. First, the point sought to be raised must
be a point of law in the true sense of the word.
Second, if not
foreshadowed in the pleadings, it must be supported by the
established facts in the record. Third, the entertainment
of the
point must not prejudice the other parties. Consistent with these
requirements, in
Barkhuizen
this Court made it clear that a
party will not be permitted to raise a point not covered in the
pleadings if its consideration
will result in unfairness to the
other party.
174
The purpose of this rule is to give a fair hearing to all parties.
Therefore, the rule promotes the right to a fair hearing
which is
entrenched in section 34 of the Constitution.
The
main judgment states that the respondent has not objected to the
applicants’ contention that its conduct in terminating
the
leases was unlawful because it constituted an unfair practice. That
the respondent has not objected to this is not correct.
In its
answering affidavit to the applicants’ application for leave
to appeal to this Court, the respondent took the
point that, in
their papers in the High Court, the applicants’ case did not
include any reliance upon the provisions
of the RHA and that what
has happened is the applicants have sought to expand their case
from the bar. The respondent pointed
out that this was
inappropriate. It is true that, in the applicants’ answering
and supplementary affidavits in the High
Court, the
applicants
did not anywhere state that the respondent’s
conduct in seeking to increase the rent in the manner in which the
respondent
sought to do constituted an unfair practice or was in
breach of section 4(5)(c) of the RHA. Nor was it said in the
applicants’
affidavits that the termination of their leases
constituted an unfair practice. The applicants bore the onus to
prove that
the termination fell within the ambit of section 4(5)(c)
of the RHA.
It
would be very unfair to the respondent to decide the question
whether or not the termination of the leases was valid on this

point, when it was not established by the facts and the respondent
did not get a chance to deal with it in the papers. In the
majority
judgment in
Barkhuizen
, Ngcobo J said that this Court may
consider a law point that is raised for the first time on appeal if
the point is covered
by the pleadings and its consideration on
appeal involves no unfairness to the other party.
175
He said that it would be unfair to the other party if this Court
were to consider the point where “the law point and
all its
ramifications were not canvassed and investigated at trial.”
176
Ngcobo
J was speaking of a matter that had been brought to court by way of
action. There can be no doubt that the same principle
applies to a
case brought to court by way of motion proceedings. There, one
would say, in paraphrasing the last point made
by Ngcobo J, that it
would be unfair to the other party if this Court were to consider
the point in circumstances where “the
point and all its
ramifications were not canvassed and investigated” in the
affidavits.
177
The contention by the applicants that the termination of the leases
constituted an unfair practice can be compared in the field
of
labour law to a contention that the termination of a contract of
employment constitutes an unfair labour practice. I do
not think
that, in that field, a contention that the termination of a
contract of employment constituted an unfair labour practice
would
be entertained when that was never alleged in the papers, and the
employer never had a chance to deal with that case
in the papers.
I
would dismiss the applicants’ contention on this basis as
well.
The
concurring judgment also suggests that a case may be decided by
invoking relevant legislation even if in the pleadings no
reliance
was placed on that legislation. I am unable to agree. This approach
relegates pleadings to an insignificant role.
In every case
pleadings play a vital role. They promote fairness in court
proceedings by defining the issues for determination
so that the
court and the other party are informed of the nature of the case
brought. The approach suggested in the concurring
judgment is
inconsistent with a number of decisions of this Court.
178
In
Bel Porto
Chaskalson CJ, writing for the majority said:
“
In
Prince’s
case it was made clear the parties must make out their case in their
founding papers and will not ordinarily be allowed to supplement
and
make their case on appeal.”
179
(Footnote omitted.)
Later
in
Phillips
this Court once again underscored the importance
of the pleadings in constitutional litigation. In the clearest
language Skweyiya
J, writing for a unanimous Court, declared:
“
It is
impermissible for a party to rely on a constitutional complaint that
was not pleaded.”
180
And later
the Court said:
“
Accuracy
in pleadings in matters where parties place reliance on the
Constitution in asserting their rights is of the utmost
importance.”
181
Tacit term
It
was argued on behalf of the applicants, as it had been argued both
in the High Court and in the
Supreme
Court of Appeal
, that each one of the
leases contained a tacit term to the effect
that
the
respondent could not terminate them for the purpose of effecting a
rent increase in
excess
of the increases
permitted by the leases. Both the High Court and the
Supreme
Court of Appeal
dealt thoroughly with the
applicants’ submission in this regard. I cannot fault the
Supreme Court of Appeal
in
rejecting this argument for the reasons it gave. The
Court
emphasised that during the currency of the lease
the parties would be bound by all the terms including clauses that
govern the
maximum annual increases in rent but, once the lease had
been terminated, these clauses would not apply.
In
my view it cannot be said that, if, at the time that the parties
were negotiating their leases, a bystander had asked whether
the
landlord would be able to terminate the lease on notice if
circumstances
made it too financially
burdensome to continue to run the building on the basis of the rent
increases prescribed by the leases,
both the landlord and the
tenant would have said: “of course, the landlord will not be
able to terminate the lease on
notice and get out of it: we just
did not bother to specify that!” I think that the landlord
would surely have said that
the termination clause was there to
enable him or her to get out of the situation. Indeed, I am certain
that if, at the same
time the question had been asked whether the
tenant would be able to terminate the lease on notice if his or her
financial
position changed for the worse and he or she could no
longer afford the annual rent increases prescribed by the lease,
the
tenant would have said: “of course, yes! I will be able
to do that! I cannot be forced to continue with a lease whose rent

I cannot afford!”
Accordingly,
I hold that the applicants have failed to prove the tacit term for
which
they
contended.
Does the termination of the leases constitute an infringement of
the right to adequate housing?
It
was argued on behalf of the applicants that the termination of
their leases constituted an unfair and unreasonable infringement
of
their right of access to adequate housing, provided for in section
26(1) of the Constitution. The applicants were referring
to the
negative aspect of their right of access to adequate housing.
Section 26(1) provides that everyone has the right to
have access
to adequate housing.
The
applicants referred to
Jaftha
182
and submitted that in that case this Court
explained the concept of
security
of
tenure of the right of access to adequate housing. Counsel for the
applicants referred to Mokgoro J’s statement that
“any
measure
which
permits a person to be deprived of existing access to adequate
housing limits the rights protected in section 26(1)”.
183
It was submitted on behalf of the applicants
that it was not their case that no lease that is for an indefinite
period may ever
be terminated for fear that the termination will
offend constitutional rights. Their counsel submitted in their
written argument
that “[t]he question in each case will be
whether the infringement is reasonable and fair in the
circumstances.”
I
am unable to uphold the proposition that the termination of the
leases constitutes a limitation of the applicants’ right
of
access to adequate housing, let alone its infringement. In my view
the cancellation terminated the applicants’ legal
entitlement
to occupy the flats and no more. It did not, of itself, result in
the loss of access to housing. What would have
implicated the
applicants’ housing right is the eviction. The view that the
cancellation of the leases did not limit
the applicants’
rights is buttressed by the fact that section 26(3)
184
affords people in the applicants’ position
protection against an eviction from their homes without a court
order. In this
regard, the protection against eviction which is
provided for in section 4(7) of PIE is relevant. As a general
proposition
section 4(7) precludes any court from making an order
of eviction where it would be unjust and inequitable to do so.
185
The
point may be explained better by an illustration. If the respondent
did not seek the applicants’ eviction after the
termination,
their access to accommodation would not have been affected at all.
Under the common law the applicants would have
been regarded as
tenants on a month to month basis for as long as they remained in
occupation.
The
further argument advanced by the applicants was that the
enforcement of the termination clause was unfair, unreasonable
and
as a result contrary to public policy. Reliance for this submission
was placed on
Barkhuizen
.
The
submissions advanced in support of the contention that the
enforcement of the termination clause was contrary to public
policy
was that the respondent did so in order to increase the rent to
levels that exceeded those prescribed by the leases.
This, it was
submitted, the respondent did in order to circumvent the clauses
that precluded the high rent increases the respondent
sought to
effect. Counsel for the applicants also submitted that the
termination clause was invoked so as to avoid the clause
which
required the respondent first to seek the authority of the Tribunal
before it could increase rent as high as it sought
to do in this
case. It was further submitted that in considering the issue of
fairness the parties’ respective bargaining
positions were
relevant.
I
accept, that in the determination of fairness in the context of the
enquiry whether or not the enforcement of a contractual
term is
contrary to public policy and, therefore, invalid and
unenforceable, the bargaining power of the parties is a relevant

factor.
186
As the majority said in
Barkhuizen
,
if it is found that the objective terms of the contract are not
inconsistent with public policy, the further question will
be
whether the terms are contrary to public policy in the light of the
relative situation of the contracting parties.
187
Ngcobo J said that this was “an important
principle in a society as unequal as ours.”
188
Also to be taken into account is the freedom of
contract
189
although courts will not let blind reliance on
the principle of freedom of contract override the need to ensure
that contracting
parties respect the constitutional values
enshrined in our Bill of Rights.
190
Public policy also requires that, in general,
parties to contracts should honour their obligations that have been
voluntarily
and freely undertaken.
191
I would add that public policy also requires
that parties to contracts that have been freely and voluntarily
agreed to should
respect the exercise by other parties to their
contracts of their rights provided for in them.
It
is not the applicants’ case that they did not enter into
their leases freely and voluntarily. It is also not their
case
that, if they had been given a longer period of notice, the
termination of their leases or the enforcement of the termination

clauses would have been in accordance with public policy. Their
case is simply that the fact that the respondent used the
termination to achieve the high rent increases that were precluded
by the leases, or, for which it required the authorisation
of the
Tribunal, made the termination of the leases or the enforcement of
the termination clauses unfair.
I
am unable to uphold the applicants’ submission. The parties
freely and voluntarily entered into leases with clauses
that
allowed either party to terminate them on notice and which did not
say that the termination would not be permissible when
effected for
a certain purpose or when effected with a certain motive. In this
regard I point out that some of the leases to
which some of the
applicants were party did contain unusual terms. For example the
leases that were subsidized by the Department
of Housing contained
provisions that the leases could only be terminated at the
discretion of the lessee. As a result of those
clauses, two of the
tenants whose leases the respondent had purported to terminate were
successful in the High Court in opposing
the respondent’s
application to evict them. This is an indication that the
applicants may also have insisted on clauses
that excluded certain
reasons or motives for the termination of
their leases. They did not do so and they have not put up any case
to suggest that
their bargaining position did not allow them to do
so. The matter must then be decided upon the basis that, like the
two tenants
who included the unusual clauses that their leases
could only be terminated at their discretion, the applicants, too,
could
have included a clause to the effect that their leases could
not be terminated to enable the landlord to increase rents by

amounts higher than those permitted by their leases. They failed to
do so.
Another
factor to be taken into account in determining fairness in this
case within the context of inquiring into whether or
not the
termination of the leases was contrary to public policy is that
this is not a case where, during the currency of the
leases, the
respondent increased the rent to levels above those provided for in
the leases. The respondent terminated the leases
first and only
sought to include the rent increases in new leases offered to the
applicants. Therefore, the respondent did
not act in breach of the
leases to which the applicants were party. In fact, the respondent
offered the applicants leases on
the same terms save that the rent
was much higher than before.
The
respondent found itself in a situation which did not permit it to
continue with the leases on the terms prescribed by the
leases with
regard to the annual rent increase and found that it was an
appropriate situation for it to use the escape route
provided by
the clause relating to termination on notice. There can be no
justification for a suggestion that the respondent
was obliged to
continue with the leases as they stood, no matter how much the
losses it was suffering and would continue to
suffer if the rent
was not drastically increased. Of course, the use of the clauses
providing for the termination of the leases
on notice is not
necessarily a route that a lessor will always resort to because it
entails the loss of a good tenant by the
landlord whom the landlord
may have wished to keep. Good tenants are not always easy to get.
In other words, in terminating
a lease in order to charge a much
higher rent increase than is permitted by the lease, a landlord
would also be freeing the
tenant from his or her obligations and,
in certain circumstances, may find it difficult to find another
suitable tenant.
I
have said above that one purpose which is served by a clause
providing for the termination of the contract on notice, even
in
the absence of a breach by the other party, is that it enables a
party who, for one or other reason, wishes to get out of
the
contract to do so simply by giving the required notice. One
situation is where one party wants to change certain terms
and
conditions of the contract and finds that the other party to the
contract is not prepared to agree to the change or amendment
of the
contract. That is what happened in this case. In labour law, it is
also permissible for an employer which wishes to
change the terms
and conditions of the contracts of employment of its workers, to
terminate them on notice if, after a proper
consultation process,
the position is that the existing workforce is not prepared to
agree to the proposed changes.
192
The
facts of the present case and the issue raised by the applicants
resemble the facts and issue that the Courts had to decide
in the
Fry’s Metals
matter.
193
In that case, the employer sought to change
certain terms and conditions of employment of its workforce but the
employees were
not prepared to agree to the changes. When this
remained the position even after a lengthy consultation process,
the employer
terminated the employees’ contracts of
employment on notice, so that it could offer contracts with new
terms and conditions
to other people who were prepared to sign the
contracts of employment that the existing workforce was not willing
to sign.
When, subsequently, the employees contended that the
termination of their contracts of employment was unfair, the Labour
Appeal
Court rejected the contention and held that the termination
was fair. In a subsequent appeal, the Supreme Court of Appeal
upheld
the decision of the LAC.
The
Fry’s Metals
matter ultimately turned upon whether or
not an employer was entitled to terminate the contracts of
employment of employees
in order to make more profit in its
business operations. The Courts said that an employer is entitled
to terminate contracts
of employment for this purpose if, after a
fair consultation process, the employees refuse to accept the
changes proposed by
the employer. The question raised by the
present applicants on this aspect of their case is whether or not
the termination
of their leases on notice by the respondent, in
order to effect higher rent increases than those prescribed by the
leases was
fair, and therefore, in accordance with public policy.
In my view, the answer is that the lessor or landlord is entitled
to
terminate the leases on notice in those circumstances. Just as
it can be done in the field of employment law, it also can be done

in the field of the law of landlord and tenant. In this case the
respondent had no obligation to offer the applicants new leases
but
it did so and they spurned the offer. Just as an employer is
entitled in labour law to terminate the contracts of employment
of
employees on notice to effect changes to contracts of employment so
as to make more profit or to avoid suffering more losses,
so is the
landlord also entitled to terminate the leases of tenants who are
not prepared to accept changes to their leases
which will enable
the landlord to earn a higher rent for his property or which will
enable the landlord to avoid suffering
more losses in connection
with its property.
In
the circumstances, I hold that the termination of the applicants’
leases or the enforcement of the termination clauses
was not unfair
or unreasonable and was therefore not contrary to public policy.
Before I conclude this judgment it is appropriate
that I refer to
reasons, other than those reflected earlier in this judgment, for
which I am unable to agree with the main
judgment.
Additional reasons for which I am unable to agree with the main
judgment
In
the course of this judgment so far I have given some of the reasons
why I am unable to agree with the main judgment. I do
not propose
to repeat them here. However, I set out below other reasons which
have not been captured above. In the main judgment
an order is made
that—
(a) postpones the appeal;
(b) gives until 2 May 2012 to
refer, if so advised, a complaint to the Tribunal concerning the
termination of the applicants leases
or concerning the rent proposed
by the respondent for the flats occupied by the applicants failing
which the appeal is dismissed;
and
(c) allows the parties, if the
complaint is lodged within the stipulated time, to apply to the
Court for further directions once
the Tribunal has given its ruling
on the complaint or once the complaint has been disposed of in any
other way.
Although
this order is couched as a postponement order, it in effect is an
order staying the appeal proceedings in this Court.
Furthermore,
although the order purports to give either party an opportunity to
refer a complaint to the Tribunal, it in fact
gives the applicants
that opportunity and not the respondent. I say this because the
order is to the effect that, if no referral
of the complaint is
lodged with the Tribunal by the stipulated date, the appeal will be
dismissed. That would mean that the
respondent succeeds and
effectively the order of the Supreme Court of Appeal confirming the
order of the High Court will stand.
Both those orders were in
favour of the respondent. It would make no sense for the respondent
to refer a complaint to the Tribunal,
at least not before the
applicants have referred their own complaint to the Tribunal. On
the terms of the order made in the
main judgment, the applicants
have everything to lose if they do not refer the complaint to the
Tribunal. They will lose the
appeal as well as their occupation of
the flats. Accordingly, for all intents and purposes, the order
made in the main judgment
has as its purpose, the giving of another
opportunity to the applicants once again to refer their complaint
to the Tribunal.
In
my view this Court should not make an order staying the appeal
proceedings in this matter. This Court should decide the appeal

before it on the same record that the
Supreme
Court of Appeal
had when it decided the
appeal. It is the decision of the
Supreme
Court of Appeal
that is on appeal before
us and we must decide whether that decision is right or wrong.
194
The main judgment does not decide the issue
before us and the issue which was argued by the parties for
determination by this
Court. This Court ought to decide that issue.
If, on the same record that the
Supreme
Court of Appeal
had before it, its
decision was wrong, the appeal should be upheld in which case the
applicants would be entitled to a judgment
in their favour. If,
however, on that record the decision of the
Supreme
Court of Appeal
was right, the appeal
should be dismissed and the respondent is entitled to a judgment in
its favour. On this we ought to be
firm. After three years of
litigation in the High Court, the
Supreme
Court of Appeal
and this Court one of the
parties is entitled to a final decision.
The
main judgment effectively grants the applicants a stay of the
appeal proceedings in circumstances in which they did not
make any
application to this Court for a stay. Indeed, they did not make an
application for a stay even in the High Court.
A party that seeks
an order staying court proceedings is required to make an
application to court – preferably on affidavit
– in
which it would motivate why it should be granted a stay of
proceedings and the other party would get an opportunity
to oppose
the application and challenge the grounds upon which the stay is
sought. In this case the applicants did not apply
for a stay before
the completion of the eviction proceedings in the High Court, nor
did they apply for it in the
Supreme
Court of Appeal
. Indeed, even before us,
they did not apply for a stay. In
Bel
Porto
, Chaskalson CJ, with the
concurrence of the majority, was not able to agree with the relief
that Ngcobo J proposed and the
reason that Chaskalson CJ gave was
that the relief which Ngcobo J proposed “was not the relief
sought by the appellants
in the High Court or in this Court, and it
is inconsistent with the attitude adopted by the appellants
throughout the litigation.”
195
We are not dealing here with unrepresented
litigants who may have failed to apply for a stay of proceedings
because they did
not know that they had that right. We are here
dealing with litigants who have been legally represented at all
material times.
They had an attorney who was with them even at the
mediation meeting concerning their complaint in the Tribunal. In
the High
Court they were represented by an attorney and counsel.
That was the position also in the appeal in the
Supreme
Court of Appeal
. Before us they were
represented by Senior Counsel and two juniors. In these
circumstances it is, to my mind, extremely unfair
to the respondent
that the applicants should be granted a stay of proceedings for
which they never applied.
If
the applicants wanted a stay, the proper forum and time for that
application was before the High Court and before it handed
down its
judgment. Once the High Court had delivered its judgment without
that application having been made, there was no room
for the
application because, from that time on, there was a judgment in
favour of the respondent which could only be set aside
if it was
found to be wrong. In case I am wrong in the view that this
application could have been made only before the High
Court handed
down its judgment, then the least that the applicants would be
required to do if they applied for a stay of the
appeal to the
Supreme Court of Appeal
would
have been to explain why they did not make that application before
the High Court handed down its judgment and why they
took as long
as they would have taken to bring that application. They would have
had to give a proper explanation for all of
this. The respondent
would have been entitled to oppose the application for a stay and
to show the prejudice that a stay would
occasion it. On the same
basis, if the applicants had applied to this Court for a stay of
the appeal pending the referral,
once again, of their complaint to
the Tribunal, they would have had to explain why they were only
seeking to do this after
three years of litigation and deal with
the prejudice to the respondent. They would also have had to
explain why they must
be given another opportunity three years
later to refer their complaint and why they withdrew their
complaint before the Tribunal
at a time when they were about to be
afforded a hearing that could have resulted in an award in their
favour which would have
prevented the litigation in the High Court,
Supreme Court of Appeal
and
in this Court. The main judgment grants the applicants a stay
without their having had to give any explanation for their

withdrawal of their complaint in the Tribunal and for their failure
to apply for a stay all these years.
The
applicants did make an application for a stay of proceedings in
their supplementary answering affidavit but not one pending
the
possible referral of a complaint to the
Tribunal
but for a stay of the eviction proceedings
pending the joinder of the municipality and provincial government.
That application
was made to deal with a situation where the Court
was to find that the leases had been validly terminated. Obviously
the applicants
knew of the availability of the right to apply for a
stay of proceedings and elected not to apply for a stay of
proceedings
such as the one that the main judgment, in effect, now
proposes in its order. The Court must respect the choice that the
applicants
made in circumstances in which they had professional
legal advice available to them.
Another
reason why I am unable to agree that we should, in effect, grant a
stay of proceedings pending a possible referral of
a complaint to
the Tribunal by either party is the following. The applicants did
refer a complaint as is contemplated in the
order proposed in the
main judgment to the Tribunal in 2008. That complaint was that the
respondent sought to charge them “exploitative”
rental
and was threatening them with unfair evictions. The Tribunal
regarded that alleged conduct on the respondent’s
part as one
that fell or could fall within the ambit of an unfair practice in
terms of the RHA read with the regulations promulgated
thereunder.
It called the parties to a mediation meeting. The attorneys for
both the applicants and the respondent were present
at that
meeting. The complaint was not resolved at the mediation meeting.
As required by the RHA, the Tribunal then referred
the complaint to
arbitration. The Tribunal set the complaint down for the
arbitration hearing on 19 June 2009. In terms of
the RHA in those
proceedings the arbitrator would have had the power, if he or she
found that the conduct of the respondent
constituted an unfair
practice, effectively to prevent the respondent from charging the
applicants and other tenants the high
rent it sought to charge them
and to prevent their eviction and could have effectively set aside
the termination of the leases.
196
The
applicants elected to withdraw their complaint against the
respondent after the Tribunal had set the complaint down for
the
arbitration hearing. The reason that the applicants advance in
their papers for withdrawing their complaint from the Tribunal
is
quite strange. They say that they withdrew the complaint from the
Tribunal because the respondent had launched eviction
proceedings
against them in the High Court and they wanted to “concentrate”
on opposing that application. I do
not think that they would have
withdrawn the complaint without discussing it with their
then-attorney. After all, he attended
the mediation at the Tribunal
to advise them. In fact the respondent says that the then-attorney
of the applicants informed
the respondent’s attorney in
advance that the applicants would withdraw the complaint from the
Tribunal. Although the
applicants subsequently dismissed that
attorney on the basis that he had entered into a settlement
agreement with the respondent’s
attorneys without their
instructions, nowhere in their affidavits have they accused him of
any wrongdoing connected with the
withdrawal of their complaint
from the Tribunal. If he had withdrawn their complaint without
their instructions, or against
their will, they would have said so
in their papers. Moreover, on their showing, the applicants had
previously been advised
that, once a complaint has been lodged with
the Tribunal, the matter may not be referred to court.
The
applicants’ withdrawal of their complaint at a critical time
when they were so close to getting a decision which could
have
granted them full relief against the respondent is difficult to
understand. They made the decision at a time when they
had
professional legal advice available to them. If they had allowed
the arbitral process to take its course, the eviction
application
may have been abandoned. There may not have been an appeal to the
Supreme Court of Appeal and the present proceedings
in this Court
may not have happened. In fact, it is at that time that the
applicants should have applied to the High Court
for a stay of the
respondent’s application pending the outcome of the
arbitration. The applicants elected not to do so.
It would be
unfair not to bring this dispute between the parties to finality
and instead to make an order that, for all intents
and purposes,
forces the parties to re-open a process that was abandoned in 2009
at the instance of the applicants. That is
completely unfair to the
respondent which has a business to run. It is unduly favourable to
the applicants.
There
were no circumstances that can reasonably be said to have put undue
pressure on the applicants to withdraw their complaint.
One would
have thought that the fact that the Tribunal had already allocated
a date for the arbitration hearing of their complaint
would have
inspired the applicants to make sure that the arbitration hearing
took place rather than to withdraw the complaint.
The
main judgment also says that it has not been suggested that by
withdrawing the complaint the applicants abandoned or waived
their
right to pursue it under the RHA. The answer to this is simply that
there has been no such suggestion because the respondent
has not
been given an opportunity to deal with the possibility of an order
to stay these proceedings and to afford the applicants
an
opportunity to refer to the Tribunal a complaint that they
voluntarily withdrew three years ago just before there was to
be an
arbitration hearing, which may have given them the relief that they
seek in these proceedings. The respondent has not
suggested this
because that was not part of the case that it was called upon to
meet in these proceedings. I have little doubt
that, on the facts
of this case, and when one has regard to the circumstances which
prevailed at the time of the applicants’
withdrawal of the
complaint from the Tribunal, if the respondent had been given a
chance, it would have argued that the applicants
had no right to
refer the same complaint to the Tribunal for a second time three
years later. The stay is ordered in circumstances
where the
respondent was not afforded the opportunity to be heard. This is in
breach of the
audi alteram partem
rule, an important aspect
of the rules of natural justice.
The
main judgment states that the Tribunal was bound to adjudicate the
complaint that had been lodged by the applicants and
other
tenants.
197
But, the Tribunal had no obligation to
adjudicate the complaint once it had been withdrawn by the
complainants.
The
main judgment states that the High Court should have stayed the
proceedings before it to enable the tenants to resuscitate
their
complaint against the landlord and to enable the Tribunal to
determine whether the termination of their leases was an
unfair
practice.
198
This criticism of the High Court is not only
unjustified in law but is also unfair. I know of no principle of
law that required
the High Court to stay proceedings before it in
circumstances where that was not an issue between the litigants
before it,
and none of the parties had asked for a stay,
particularly, as in a case like this, where all the parties were
legally represented.
The main judgment also does not refer to any
principle of law that supports its criticism of the High Court on
this point.
A court is required to adjudicate only the issues
between the parties and whether or not the proceedings before the
High Court
should have been stayed was not one of the issues
between the parties. It would have been irregular for the High
Court to have
gone outside the issues before it to make an order
that no party had asked for. I do not understand why the High Court
should
have stayed the proceedings in order to give the applicants
an opportunity to start all over again a legal process which they

had voluntarily withdrawn and which they did not tell the High
Court they wanted to resuscitate.
The
effective stay of the appeal proceedings in this matter, pending
the referral or ruling of the Tribunal on the complaint
that the
applicants have been granted another opportunity to resuscitate,
will unduly postpone the determination of the dispute
between the
parties. This is so because, if the applicants refer the complaint
to the Tribunal by the stipulated date, as they
are likely to do,
and the Tribunal makes a ruling, that ruling may be taken on review
in the High Court, and yet further on
appeal to a higher court.
What this means is that this appeal will remain in abeyance until
that process has reached finality.
Meanwhile the applicants would
remain in occupation of the flats. By the time that process is
completed, they will likely have
remained in occupation of the
flats for over seven years with the respondent not being able to
make any progress in its business
venture. In fact, by then the
delay in the finalisation of the dispute might have proved
disastrous to the respondent’s
economic or financial
situation.
In
the light of all of the
above
I
conclude that the applicants’ leases were validly terminated.
Accordingly, I would dismiss the appeal with no order
as to costs.
FRONEMAN J (Yacoob J concurring):
I
concur in the judgment of Cameron J (main judgment) and merely wish
to add some comments in support of its reasoning.
This
case is ultimately about the eviction of the applicants from the
homes they lease from the respondent. The
Rental Housing Act
199
(Act
) applies to relations between tenants and landlords.
200
Both the High Court
201
and the Supreme Court of Appeal
202
interpreted the Act and came to the conclusion that the
respondent’s right to cancel the leases was unaffected by its

provisions. The main judgment finds that interpretation to be
wrong. That the interpretation of the Act lies at the heart of
this
matter, however pleaded, has never been doubted.
I
thus have considerable difficulty in understanding how this appeal
can be determined in this Court without interpreting the
Act.
Whether the Act applies to leases in general is a matter of law. So
is the question whether the cancellation of a lease
amounts to an
unfair practice under the Act.
Under
the Constitution all law is, or needs to be, infused by
constitutional values.
203
Legislation must be interpreted to promote the spirit, purport and
objects of the Bill of Rights.
204
It is common cause that section 26 of the Constitution is
implicated. Interpretation of what constitutes an “unfair
practice” under the Act in light of this is thus inevitably a
constitutional issue, a matter of law. Interpretation and

application of the law under the Constitution is never a mechanical
application of rules; it always involves a value judgment.
Our
Constitution and law are infused with moral values. The days of
denying the value-laden content of law are long gone.
205
It
would be a denial of constitutional responsibility for any court to
decide a matter without considering legislation where
it was aware
of applicable legislation. This would be so no matter how the case
was pleaded. Fortunately neither the High Court
nor the Supreme
Court of Appeal did so here. Criticism of the main judgment for
considering the Act is in my view unwarranted.
The
main judgment finds that the Supreme Court of Appeal’s
interpretation of the effect of the Act in respect of cancellation

of the leases is wrong
206
and that it is primarily the jurisdiction of the Tribunal to
determine whether a purported cancellation may amount to an unfair

practice under the Act.
207
This is the ground on which the remedy in the main judgment is
based. Courts deciding constitutional matters may, and in some

circumstances are obliged to, make any order that is just and
equitable.
208
These powers are not confined by the pleadings.
I
see no prejudice to the respondent in the order made in the main
judgment.
What
are the alternatives to this order, given the finding in the main
judgment that the Tribunal is the appropriate port of
call to
decide unfair practice disputes under the Act?
One
alternative would be to refer the matter back to the High Court.
The application before the High Court was for the eviction
of the
applicants. A Court determining an application for the eviction of
an applicant from his or her home is obliged to take
into account
“all the relevant circumstances”.
209
A court would be failing in its duty if it limited this
constitutionally-mandated enquiry by not determining whether it was

appropriate, in the circumstances of the case, for the Tribunal to
determine whether the cancellation amounted to an unfair
practice.
This is surely a “relevant circumstance” to be
considered by the High Court before an ejectment order
is made.
Consideration of this might lead to a similar order as the one made
in the main judgment, in which case the process
will simply take
longer.
Another
alternative would be to dismiss the eviction application. Neither
alternative is less prejudicial to the respondent
than the order in
the main judgment.
Lastly,
the Supreme Court of Appeal’s rejection of the
Barkhuizen
210
public policy defence to eviction proceeded from its finding that
the cancellation did not amount to a ‘practice’
under
the Act. The main judgment rejects this finding.
211
Even if it is indeed inappropriate to decide the matter directly
under the Act, the assessment of the
Barkhuizen
defence
would have to take into account the correct interpretation of the
Act. But, for the reasons given in the main judgment,
I agree that
direct application of the Act is appropriate. Determining the true
ambit of
Barkhuizen
must wait for another day.
For the
Applicants: Advocate D Berger SC, Advocate S Wilson and Advocate I
de Vos instructed by SERI Law Clinic.
For the
Respondent: Advocate WB Pye and Advocate N Mbelle instructed by
Knowles Husain Lindsay Inc.
For the
Amicus Curiae: Advocate H Barnes and Advocate N Jele instructed by
Norton Rose South Africa (incorporated as Deneys Reitz
Inc).
1
Section
26(3) of the Constitution provides:
“
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.”
2
Aengus
Lifestyle Properties (Pty) Ltd v Maphango and Others
Case No
22346/09, 7 May 2010, unreported.
3
Maphango
and Others v Aengus Lifestyle Properties (Pty) Ltd
2011 (5) SA
19
(SCA), per Brand JA (Lewis, Cachalia, Shongwe JJA and Plasket AJA
concurring).
4
Act
50 of 1999.
5
National
Education Health and Allied Workers Union v University of Cape Town
and Others
[2002] ZACC 27
;
2003 (3) SA 1
(CC);
2003 (2) BCLR 154
(CC) at paras 13-4 and
Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC) at para 25.
6
There
were 19 tenants in the eviction proceedings before the High Court.
The landlord conceded there that the leases of two tenants
had not
been validly terminated. One tenant has since died. Before the
Supreme Court of Appeal there were 18 tenants. There are
only 15
tenants before this Court. It is not clear from the papers how that
tally was reached.
7
The
initial periods were: Ithemba lease, twelve months; Union lease, one
month; Artisan lease, six months; and Eagle Creek lease,
three
months.
8
The
usual grounds for termination are well set out in Lotz “Lease”
14
LAWSA
1981 at paras 159, 161-2.
9
The
notice periods were: Ithemba lease, two months; Union lease, 30
days; Artisan lease, one month; and Eagle Creek lease, two
months.
10
Clause
5.5 of the Ithemba lease provides:
“
Notwithstanding anything to
the contrary herein contained and should the provisions of any
statutory Rental Body or Act or any
amendment or replacement
thereof, be or any time during the operation or any renewal or
extension of this lease, become applicable
to the leased premises,
the Lessor shall be entitled;
5.5.1 to apply to any such competent authority having
jurisdiction of authority to charge a higher rent for the leased
premises
than that provided in clause 5 (whether or not it has been
adjusted in terms of this clause 5) and if such authority is
granted,
the Lessee undertakes, and it shall be obliged to pay as
rent such amount as the Lessor is authorised to charge with effect
from
the date fixed by the said competent authority; and
5.5.2 subject to the approval of the competent
authority whose approval is necessary, to increase the rent to the
extent permitted
by the said Act or any amendment or replacement
thereof, if any of the amounts referred to and allowable in terms of
paragraphs
5.2 suffer any increase in respect of the premises, the
Lessee hereby agrees to the increases with effect from the date on
which
such increases come into force.”
11
Gauteng
Unfair Practices Regulations
Provincial Gazette Extraordinary
No 124 Notice 4004 of 2001, 4 July 2001 (Gauteng Unfair Practices
Regulations). In the same
Gazette
, the Province promulgated
the Rental Housing Tribunal Procedural Regulations Notice 4003 of
2001 (Gauteng Procedural Regulations).
Both the Gauteng Unfair
Practices Regulations and the Procedural Regulations purport to be
issued under section 15 of the Act,
which gives the national
Minister of Housing power to make regulations. On this seeming
anomaly, see below n 73. Other provinces
have promulgated
regulations substantially similar to those of Gauteng, establishing
Rental Housing Tribunals under the Act,
and providing for complaints
and other procedures: Western Cape Unfair Practices Regulations
Provincial Gazette
No 5822 Notice 22 of 2002, 1 February
2002; Western Cape Rental Housing Tribunal Procedural and Staff
Duties Regulations
Provincial Gazette
No 5822 Notice 21 of
2002, 1 February 2002 (Western Cape Procedural Regulations); Free
State Unfair Practices Regulations
Provincial Gazette
No 65
Notice 152 of 2003, 25 July 2003 and Mpumalanga Rental Housing
Unfair Practices and Procedural Regulations
Provincial Gazette
No 1060 Notice 83 of 2004, 12 March 2004. It does not appear that
all provinces have established Tribunals or issued unfair practice

regulations. If enacted, the Rental Housing Amendment Bill GN R765
of 2011 GG 34703, 28 October 2011, will render the establishment
of
a Tribunal in every province mandatory.
12
The
Act provides in section 7 that the Member of the Executive Council
(MEC) of a province responsible for housing matters may
by notice in
the
Gazette
establish a tribunal in the Province to be known
as the Rental Housing Tribunal. The Gauteng Rental Housing Tribunal
was established
in terms of the Premier’s Notice
Provincial
Gazette
No 127 Notice 4216 of 2001, 18 July 2001.
13
Regulation
6(1)(b) of the Gauteng Procedural Regulations provides for a
mediation process by a Tribunal member, a member of staff,
or a
nominee of the Tribunal, in which the mediator “merely acts as
a facilitator in trying to resolve the dispute”
and the
mediator must inform the parties that “the decision to be
arrived at will be the decision of the parties and not
that of the
mediator”. See also Regulation 6(2)(b) of the Western Cape
Procedural Regulations.
14
Section
13(7) of the Act provides that, from the date a complaint is lodged
with the Tribunal, a landlord may not evict a tenant
who continues
to pay rent until the Tribunal has made a ruling on the matter, or a
period of three months has elapsed, whichever
is the earlier.
Section 13(7) reads:
“
As from the date of any
complaint having been lodged with the Tribunal, until the Tribunal
has made a ruling on the matter or
a period of three months has
elapsed, whichever is the earlier—
the
landlord may not evict any tenant, subject to paragraph (b);
the tenant must continue to pay the rental payable in
respect of that dwelling as applicable prior to the complaint or,
if there
has been an escalation prior to such complaint, the amount
payable prior to such escalation; and
the
landlord must effect necessary maintenance.”
15
Section
13(9) of the Act provides that from the date of the establishment of
a Tribunal, “any dispute in respect of an unfair
practice,
must be determined by the Tribunal unless proceedings have already
been instituted in any other court.”
16
Lis
alibi pendens
.
17
Section
26 of the Constitution provides:
“
(1) Everyone has the right to
have access to adequate housing.
(2) The state must take reasonable legislative and
other measures, within its available resources, to achieve the
progressive
realisation of this right.
(3) 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.”
18
Maphango
and Others v Aengus Lifestyle Properties (Pty) Ltd
2011 (5) SA
19
(SCA) at para 34.
19
Section
13(5) of the Act provides:
“
A ruling contemplated in
subsection (4) may include a determination regarding the amount of
rental payable by a tenant, but such
determination must be made in a
manner that is just and equitable to both tenant and landlord and
takes due cognisance of—
prevailing
economic conditions of supply and demand;
the
need for a realistic return on investment for investors in rental
housing; and
incentives,
mechanisms, norms and standards and other measures introduced by
the Minister in terms of the policy framework on
rental housing
referred to in section 2(3).”
20
Act
19 of 1998.
21
See
Voet 19.2.9
The Selective Voet, being the Commentary on the
Pandects
translated by Percival Gane, vol 3 at 413. This passage
from Voet deals with leases at the will of the landlord, and is so
cited
in the South African case law and literature; but the
principle it invokes, that a lease must have an ending, and that a
lease
of indefinite duration is terminable at the will of the
landlord, was of powerful general force throughout the common law of

lease. Compare Lotz “Lease” 14
LAWSA
2009 at
paras 139 and 186.
22
The
legislation was modelled on English statutes: Cooper
The South
African Law of Landlord and Tenant
1
st
ed (Juta &
Co Ltd, Cape Town 1973) at 348 and Hawthorne “Tenant
Protection” 26
LAWSA
1986 at para 373 note 3.
23
Act
7 of 1920.
24
Act
13 of 1920. Ensuing legislative measures included War Measure 37 of
1943 and the Rents Act 43 of 1950.
25
See
Rosenow and Diemont
The Rents Act in South Africa
2
nd
ed (Juta & Co Ltd, Cape Town 1950) at 1.
26
Id.
27
Id.
28
For
the practical operation of rent control, see Hawthorne “Tenant
Protection” in 26
LAWSA
1986 at para 373-432; Cooper
The South African Law of Landlord and Tenant
1
st
ed (Juta & Co Ltd, Cape Town 1973) part 9 chapters 26-30 at
339-554 and Cooper
The Rent Control Act
(Juta & Co Ltd,
Cape Town 1977).
29
Herison
v
South African Mutual Life Assurance Society
1942 AD 259
at 263 per De Wet CJ (Watermeyer, Tindall, Centlivres and Feetham
JJA concurring). See also Lotz “Lease” 14
LAWSA
1981 at para 198.
30
Act
80 of 1976. See Thomas “Rental Housing” 23
LAWSA
2009 at para 163.
31
Hawthorne
“Tenant Protection” 26
LAWSA
1986 at para 373.
32
The
full text of section 26 is set out above in n 17.
33
Government
of the Republic of South Africa and Others v Grootboom and Others
[2000] ZACC 19
;
2001 (1) SA 46
(CC);
2000 (11) BCLR 1169
(CC).
34
Id
at para 33.
35
See
Gundwana v Steko Development and Others
[2011] ZACC 14
;
2011
(3) SA 608
(CC);
2011 (8) BCLR 792
(CC) and
Jaftha v Schoeman and
Other; Van Rooyen v Stoltz and Others
[2004] ZACC 25
;
2005 (2)
SA 140
(CC);
2005 (1) BCLR 78
(CC).
36
Section
25(1) of the Constitution provides:
“
No one may be deprived of
property except in terms of law of general application, and no law
may permit arbitrary deprivations
of property.”
37
Section
26(3) of the Constitution, quoted above n 1.
38
City
of Johannesburg Metropolitan Municipality v Blue Moonlight
Properties 39 (Pty) Ltd and Another (Lawyers for Human Rights
as
Amicus Curiae)
[2011] ZACC 33
;
2012 (2) SA 104
(CC);
2012 (2)
BCLR 150
(CC). See also
Occupiers of Skurweplaas 353 JR v PPC
Aggregate Quarries (Pty) Ltd and Others
[2011] ZACC 36
; Case No
CCT 26/11, 7 December 2011, as yet unreported and
Occupiers of
Portion R25 of the Farm Mooiplaats 355 JR v Golden Thread Ltd and
Others
[2011] ZACC 35
; Case No CCT 25/11, 7 December 2011, as
yet unreported.
39
“
A
New Housing Policy and Strategy for South Africa”, released by
the National Ministry and Department of Housing. The White
Paper
itself originated in the National Housing Forum, which was created
in 1992 to reach a national consensus on the housing
crisis. See
Thomas “Rental Housing” 23
LAWSA
2009 at para 162.
40
Thomas
id.
41
Part
A of Schedule 4 to the Constitution.
42
The
Explanatory Memorandum accompanying the Housing Rental Draft Bill GN
R2111 GG 19260, 18 September 1998 stated that “Internationally,

there appears to be general agreement that rent control curtails
investment”. See also Hawthorne “Tenant Protection”

in 26
LAWSA
1986 at para 373 (a concomitant of rent control
is that “the housing shortage is aggravated as the permitted
return on
investment discourages construction of new housing”)
and Thomas “Rental Housing” 23
LAWSA
2009 at para
163.
43
Thomas
“Rental Housing” 23
LAWSA
2009 at para 163.
44
Section
2(1)(a).
45
Section
4(1).
46
Section
4(2).
47
Section
4(3) provides:
“
The tenant’s rights as
against the landlord include his or her right not to have—
(a) his or her person or home searched;
(b) his or her property searched;
(c) his or her possessions seized, except in terms of a
law of general application and having first obtained a ruling by a
Tribunal
or an order of court; or
(d) the privacy of his or her communications
infringed.”
48
Section
4(5) provides:
“
The landlord’s rights
against the tenant include his or her right to—
(a) prompt and regular payment of a rental or any
charges that may be payable in terms of a lease;
(b) recover unpaid rental or any other amount that is
due and payable after obtaining a ruling by the Tribunal or an order
of
a court of law;
(c) terminate the lease in respect of rental housing
property on grounds that do not constitute an unfair practice and
are specified
in the lease;
(d) on termination of a lease to—
(i) receive the rental housing property in a good state
of repair, save for fair wear and tear; and
(ii) repossess rental housing property having first
obtained an order of court; and
(e) claim compensation for damage to the rental housing
property or any other improvements on the land on which the dwelling
is
situated, if any, caused by the tenant, a member of the tenant’s
household or a visitor of the tenant.”
49
Section
4(5)(c).
50
Section
5(1).
51
Section
5(2).
52
Section
5(3) and (4).
53
Section
5(3)(a), (b), (h) and (n).
54
Section
5(3)(c), (d), (g), (i), (l) and (m).
55
Section
5(3)(e), (f), (j) and (k).
56
Section
5(3)(o).
57
Section
5(3)(p).
58
Section
5(5).
59
Section
5(6).
60
Section
5(6)(c).
61
Section
7 explained above n 12.
62
Section
8.
63
Section
9(2).
64
Section
9(1)(b)(i).
65
Section
9(1)(b)(ii).
66
Section
10.
67
Section
11.
68
Section
12(1) and (2).
69
Section
12(3), (4) and (5).
70
Section
17.
71
Section
13(1).
72
Section
1 “definitions” under “unfair practice”. The
definition, which previously read “
a
practice prescribed as a practice unreasonably prejudicing the
rights or interests of a tenant or a landlord”
was
amended by the
Rental Housing Amendment Act 43 of 2007
to add
paragraph (a).
73
Section
15(1) of the Act provides that the national Minister of Housing must
make regulations on specified matters, by notice
in the
Gazette
,
“after consultation with the standing or portfolio [committee]
on housing and every MEC”. The ministerial power
to regulate
includes unfair practices, which the Act stipulates may amongst
other things relate to: (i) the changing of locks;
(ii) deposits;
(iii) damage to property; (iv) demolitions and conversions; (vi)
forced entry and obstruction of entry; (vii)
House Rules, subject to
the Sectional Titles Act 95 of 1986; (viii) intimidation; (ix)
issuing of receipts; (x) tenants’
committees; (xi) municipal
services; (xii) nuisances; (xiii) overcrowding and health matters;
(xiv) tenant activities; (xv) maintenance;
(xvi) reconstruction or
refurbishment work. Sub-paragraph (v), evictions, was deleted by Act
43 of 2007. In addition to the national
Minister’s regulatory
power, the definition of “unfair practice” empowers
provincial MECs to promulgate regulations
on an “unfair
practice”. This is because “prescribed” is itself
defined as “prescribed by regulation
by the MEC, by notice in
the
Gazette
”. The anomalous position regarding
provincial and ministerial regulatory power in the Act is addressed
in the Rental Housing
Amendment Bill GN R765 of 2011 GG 34703, 28
October 2011.
74
Regulation
14(1)(d).
75
Regulation
14(2)(e).
76
Regulation
14(1)(f).
77
Regulation
14(2)(g).
78
Regulation
14(2)(c).
79
Regulation
14(3).
80
Section
13(2).
81
Section
13(2)(c).
82
Section
13(2)(d).
83
Section
13(3).
84
Section
13(4)(a).
85
Section
13(4)(b).
86
Section
13(4)(c) provides that a just and fair ruling by the Tribunal may
include a ruling to discontinue—
“
(i) overcrowding;
(ii) unacceptable living conditions;
(iii) exploitative rentals; or
(iv) lack of maintenance.”
87
Section
13(5).
88
Section
13(5)(a)-(c). Section 2(3) provides that “National Government
must introduce a policy framework, including norms
and standards, on
rental housing” to give effect to government’s
responsibilities as set out in sub-section (1).
89
Section
13(6)(a).
90
Section
13(6)(b).
91
Section
13(6)(c).
92
Section
13(6)(e). Section 13(6)(d) requires the Tribunal in addition to have
regard to “national housing policy and national
housing
programmes”.
93
Section
13(13).
94
Act
32 of 1944.
95
Section
13(14), added by the
Rental Housing Amendment Act 43 of 2007
. The
same legislation deleted the provision empowering the national
Minister of Housing to make regulations on unfair practices
relating
to evictions: see above n 73.
96
Section
1
defines “landlord” very broadly to mean “the
owner of a dwelling which is leased and includes his or her duly

authorised agent or person who is in lawful possession of a dwelling
and has the right to lease or sub-lease it”.
97
See
[17] above (Ms Maphango’s statement that she decided to
“concentrate” on the eviction).
98
Whether
conduct constitutes an unfair practice is a question of both fact
and law. In
Media Workers Association of South Africa and Others
v Press Corporation of South Africa Ltd (‘Perskor’)
[1992] ZASCA 149
;
1992
(4) SA 791
(A) at 798E-I the Appellate Division held that “the
definition of an unfair practice entails a determination of the
effects
or possible effects of certain practices, and of the
fairness of such effects.” The consideration of fairness or
unfairness,
it held, was “implicit in the very concept of an
unfair labour practice.” Accordingly, the Court held that “a

decision of the Court pursuant to [whether the conduct is an unfair
labour practice] is not a decision on a question of law in
the
strict sense of the term. It is the passing of a moral judgment on a
combination of findings of fact and opinion.”
It follows that,
since this question is not purely a question of fact, it also
embodies elements of law, and may be introduced
and determined at
appellate stage.
99
Section
13(5)(a)
(“prevailing conditions of supply and demand”).
100
Preamble
(“a need to balance the rights of tenants and landlords and to
create mechanisms to protect both tenants and landlords
against
unfair practices and exploitation”); definition of “unfair
practice” (“a practice prescribed
as a practice
unreasonably prejudicing the rights or interests of a tenant or a
landlord”) and
section 13(5)
(rent determinations must be
“just and equitable to both tenant and landlord”).
101
Section
13(5)(b)
(“the need for a realistic return on investment for
investors in rental housing”).
102
Section
4(5)(c).
103
">
103
Section
13(5)(c).
104
">
104
See
Concise Oxford Dictionary under “interest”, “3.
the advantage or benefit of someone”.
105
Regulation
14(1)(d).
106
">
106
An
appellate court is not bound to consider only those issues the
parties themselves have previously identified or formulated
or
adhered to. This Court has held that “the duty of an appeal
court is to ascertain whether the lower court reached a
correct
conclusion on the case before it. To prevent the appeal court from
considering a legal contention abandoned in a court
below might
prevent it from performing this duty” (
Alexkor Ltd and
Another v The Richtersveld Community and Others
[2003] ZACC 18
;
2004 (5) SA 460
(CC);
2003 (12) BCLR 1301
(CC) at para 43). See also
above n 98.
107
Maphango
and Others v Aengus Lifestyle Properties (Pty) Ltd
2011 (5) SA
19
(SCA) at para 34.
108
Shorter
Oxford Dictionary under “practice”, “the action of
doing something; . . . an action, a deed”,
quoted in Brassey
et al
The New Labour Law
(Juta & Co Ltd, Cape Town 1987)
at 49.
109
Labour
Relations Act 28 of 1956. The substantive content of the definition
of “unfair labour practice” was inserted
into the
statute by the Industrial Conciliation Amendment Act 95 of 1980, and
jurisdiction to determine unfair labour practices
was transferred to
the Industrial Court by the Labour Relations Amendment Act 51 of
1982. See Brassey id at 49-53.
110
Marievale
Consolidated Mines Ltd v President of the Industrial Court and
Others
1986 (2) SA 485
(T) (
Marievale
) at 491H-I and
498B-D per Goldstone J (a practice “does not in any way relate
to habitual or repetitious conduct”)
and
Consolidated Frame
Cotton Corporation Ltd v President of the Industrial Court and
Others
1985 (3) SA 150
(N) at 154-5.
111
Compare
Media Workers Association of South Africa and Others v Press
Corporation of South Africa Ltd (‘Perskor’)
[1992] ZASCA 149
;
1992 (4)
SA 791
(A) at 798G (citing the interpretation of “unfair
labour practice” in
Marievale
id without questioning
that “practice” can be a single act);
National Union
of Metalworkers of South Africa and Others v Macsteel (Pty) Ltd
[1992] ZASCA 75
;
1992
(3) SA 809
(A) at 814C-D and
National Union of Mineworkers v East
Rand Gold and Uranium Co Ltd
[1991] ZASCA 168
;
1992 (1) SA 700
(A) at 734G.
112
The
legislature is presumed to be aware of existing judicial
interpretations of comparable concepts in legislation:
Fundstrust
(Pty) Ltd (in liquidation) v Van Deventer
1997 (1) SA 710
(A) at
732A-B;
S v Marais
1982 (3) SA 988
(A) at 1017E-G, per Botha
AJA, concurring in the majority judgment;
Cooper and Others v
Trustee in Insolvent Estate of Pretorius and Another
1967 (3) SA
602
(O) at 610-1; De Ville
Constitutional and Statutory
Interpretation
(Interdoc Consultants Pty Ltd, Cape Town 2000) at
216-7; Devenish
Interpretation of Statutes
(Juta & Co
Ltd, Cape Town 1992) at 135 and Du Plessis
The Interpretation of
Statutes
(Butterworths, Durban 1986) at 70.
113
See
De Ville id at 64-8.
114
Section
13(5).
115
Section
13(5)(b).
116
Section
17.
117
Section
26(3).
118
The
full text of section 13(7) is set out above in n 14.
119
Section
13(9) provides:
“
As from the date of the
establishment of a Tribunal as contemplated in section 7, any
dispute in respect of an unfair practice,
must be determined by the
Tribunal unless proceedings have already been instituted in any
other court.”
120
Section
13(10) provides:
“
Nothing herein contained
precludes any person from approaching a competent court for urgent
relief under circumstances where he
or she would have been able to
do so were it not for this Act, or to institute proceedings for the
normal recovery of arrear
rental, or for eviction in the absence of
a dispute regarding an unfair practice.”
121
In
Occupiers of 51 Olivia Road, Berea Township, and 197 Main Street,
Johannesburg v City of Johannesburg and Others
[2008] ZACC 1
;
2008 (3) SA 208
(CC);
2008 (5) BCLR 475
(CC), this Court provided a
novel remedy even though the parties had not expressly sought it.
The Court held that “[t]he
need for meaningful engagement
between the city and the occupiers was not directly raised by the
parties before this court. It
was however in some sense foreshadowed
by their contention that the city was obliged to give the occupiers
a hearing before taking
the decision to evict on the basis that the
decision was an administrative one” (para 9). The Court
concluded: “It
follows that the Supreme Court of Appeal should
not have granted the order of ejectment in the circumstances of this
case, in
the absence of meaningful engagement” (para 23).
122
See
[62]
above
.
123
The
details of our differences are set out in paragraphs [134] to [147]
below.
124
Section
7
of the
Rental Housing Act 50 of 1999
provides for a Rental Housing
Tribunal to be established in every province by the MEC of that
province.
125
50
of 1999.
126
Gauteng
Unfair Practices Regulations
Provincial Gazette Extraordinary
No
124 Notice 4004 of 2001, 4 July 2001.
127
An
unfair practice is defined in the RHA as:
“
(a) any act
or
omission by a landlord
or tenant in contravention of this Act; or
(b) a
practice
prescribed
as a practice unreasonably prejudicing the rights or interests of a
tenant or a landlord.”
128
It
would seem that drafters of the RHA modelled the RHA along the same
lines as the Labour Relations Act 66 of 1995 (LRA) and
borrowed
processes employed in that Act for the resolution of disputes.
First, the LRA includes the concept of an unfair labour
practice and
the RHA provides for an unfair practice. The dispute resolution
system of the LRA is based on subjecting unfair
labour practices and
unfair dismissal disputes initially to the process of conciliation
or mediation and, subsequently, to arbitration
if conciliation or
mediation fails. In respect of complaints concerning unfair
practices the RHA does exactly the same. In terms
of the LRA, a
tribunal called the Commission for Conciliation, Mediation and
Arbitration (CCMA) conducts most of the mediations
and arbitrations.
The RHA establishes the Rental Housing Tribunal which is responsible
for the mediation and arbitration of unfair
practice complaints.
129
Section
13 of the RHA provides for the Tribunal to subject a complaint to
mediation if it is of the opinion that it may be resolved
through
mediation. If mediation is attempted but fails or
if the Tribunal is not of the view that mediation may result in the
resolution
of the complaint, it refers the complaint to arbitration
in terms of section 13(2)(d) of the RHA.
130
Section
26(1) of the Constitution reads:
“
Everyone
has
the right to have
access to adequate housing.”
131
Section
26(3) of the Constitution provides:
“
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.”
132
Section
4(7) of PIE provides:
“
If an unlawful occupier has
occupied the land in question for more than six months at the time
when the proceedings are initiated,
a court may grant an order for
eviction if it is of the opinion that it is just and equitable to do
so, after considering all
the relevant circumstances, including,
except where the land is sold in a sale of execution pursuant to a
mortgage, whether land
has been made available or can reasonably be
made available by a municipality or other organ of state or another
land owner for
the relocation of the unlawful occupier, and
including the rights and needs of the elderly, children, disabled
persons and households
headed by women.”
133
Act
19 of 1998.
134
Aengus
Lifestyle Properties (Pty) Ltd v Maphango and Others
Case No
09/22346, 7 May 2010, unreported at para 13.
135
Id.
136
Id
at para 34.
137
Id
at paras 35-40.
138
Maphango
and Others v Aengus Lifestyle Properties (Pty) Ltd
2011 (5) SA
19
(SCA) at para 3.
139
Id
at para 12.
140
1974
(3) SA 506
(A) (
Alfred McAlpine
).
141
[1994] ZASCA 53
;
1994
(3) SA 130
(A).
142
Above
n 19 at para 13.
143
Above
n 17.
144
Above
n 20 at 137A-C.
145
Above
n 17 at para 20.
146
Id.
147
Id
at para 21.
148
Id
at para 22.
149
[2007]
ZACC 5
;
2007 (5) SA 323
(CC);
2007 (7) BCLR 691
(CC) (
Barkhuizen
).
150
Above
n 17 at para 23.
151
Id.
152
Id
at para 28.
153
Id
at paras 28-9.
154
Id
at para 31.
155
Id.
156
Section
4(5)(c) of the RHA provides:
“
(5) The landlord’s
rights against the tenant include his or her right to—
. . .
(c) terminate the lease in respect of rental housing
property on grounds that do not constitute an unfair practice and
are specified
in the lease”.
157
Above
n 17 at para 32.
158
Id
at para 34.
159
Id.
160
Id
at para 38.
161
Jaftha
v Schoeman and Others; Van Rooyen v Stolz and Others
[2004] ZACC
25
;
2005 (2) SA 140
(CC);
2005 (1) BCLR 78
(CC) (
Jaftha
).
162
The
rule of
practice
is that in motion
proceedings a party stands or falls by its papers. This rule has
been followed in our courts for probably more
than a century. See
for
instance
Pountas’
Trustee v Lahanas
1924 WLD 67
where Krause J stated:
“
I think it has been laid down
in this Court repeatedly, that an applicant must stand or fall by
his petition and the facts alleged
therein, and that, although
sometimes it is permissible to supplement the allegations contained
in the petition, still the
main
foundation of the application is the allegation of facts stated
therein, because those are the facts which the respondent is
called
upon either to affirm or deny.”
This
extract has
been
repeatedly cited with
approval. See for instance
Director of
Hospital Services v Mistry
1979 (1) SA
626
(A) at 635-6;
Langeberg Ko-operasie
Beperk v Folscher and Another
1950 (2)
SA 618
(C) at 621; and
Shell Company of
South Africa v Vivier Motors (Pty) Ltd
1959
(3) SA 971
(W) at 972.
163
(1992)
13 ILJ
1391
(A) (
MWASA
).
164
Id
at
1400.
165
Act
28
of 1956 as
amended
.
166
Benicon
Group v National Union of Metalworkers of SA and Others
(1999)
20 ILJ 2777 (SCA) at 2779H-J;
National Union of Metalworkers of
SA v G M Vincent
Metal Sections (Pty) Ltd
1999 (4) SA 304
(SCA);
Boardman Brothers (Natal) (Pty) Ltd v Chemical Workers’
Industrial Union
1998 (3) SA 53
(SCA) at 58B-C;
Betha
and Others v BTR SARMCOL
,
a
Division of BTR DUNLOP Ltd
[1998] ZASCA 5
;
1998 (3) SA 349
(SCA) see
Olivier JA’s judgment (Zulman JA
concurring)
at 369I-370B, Streicher JA’s judgment at
380G-H, Scott JA’s judgment at 406A-C, Smalberger JA’s
judgment at
387C-D;
Dube
and Others v Nasionale Sweisware
(Pty) Ltd
[1998] ZASCA 52
;
1998 (3) SA 956
(SCA) at 960D-I;
Wubbeling
Engineering (Pty) Ltd and Another v National Union of Metalworkers
of SA
(1997) 18 ILJ 935 (SCA) at
937E-938D;
National Union of
Mineworkers and Others v Free State Consolidated Gold Mines Ltd
[1995] ZASCA 109
;
1996
(1) SA 422
(A) at 446C-I
;National Union
of Metalworkers of SA v Vetsak Co-operative
Ltd
and Others
(1996) 17 ILJ 455 (A) at
476B-F;
Atlantis Diesel Engines (Pty)
Ltd v National Union of Metalworkers of SA
(1994)
15 ILJ 1247 (A) at 1257A-B
.
167
[2002]
ZACC 27
;
2003 (3) SA 1
(CC);
2003 (2) BCLR 154
(CC).
168
Id
at para 33.
169
Id.
170
[2007]
ZACC 22
;
2008 (2) SA 24
(CC);
[2007] 12 BCLR 1097
(CC) at para 63.
171
Above
n 45.
172
Section
39(2) provides:
“
When interpreting any
legislation, and when developing the common law or customary law,
every court, tribunal or forum must promote
the spirit, purport and
objects of the Bill of Rights.”
173
Id.
174
Barkhuizen
above n 28 at para 39.
175
See
Barkhuizen
above
n 28 at para 39; see
also
;
Alexkor
Ltd and Another v Richtersveld Community and Others
[2003] ZACC 18
;
2004 (5) SA 460
(CC);
2003 (12)
BCLR 1301
(CC) at
para
43;
Carmichele
v Minister of Safety and Security (Center for Applied Legal Studies
Intervening)
[2001] ZACC 22
;
2001 (4)
SA 938
(CC);
2001 (10) BCLR 995
at para 31;
Kannenberg
v Gird
1966 (4) SA 173
(C) at 182A and
Cole v Government of the Union of South Africa
1910 AD 263
at 272.
176
Barkhuizen
above n 28 at para 39.
177
Id
para 41.
178
Prince
v President, Cape Law Society, and Others
[2000] ZACC 1
;
2001
(2) SA 388
(CC);
2001 (2) BCLR 133
(CC) at para 22;
Bel Porto
School Governing Body and Others v Premier, Western Cape, and
Another
[2002] ZACC 2
;
2002 (3) SA 265
(CC);
2002 (9) BCLR 891
(CC) (
Bel Porto
)
and
Phillips
and Others v National Director of Public Prosecutions
[2005]
ZACC 15
;
2006 (1) SA 505
(CC);
2006 (2) BCLR 274
(CC) (
Phillips
).
179
Bel
Porto
id at para 119.
180
Phillips
above n
57
at
para
39.
181
Id
at para 40.
182
Above
n 40.
183
Id
at
para 34.
184
Above
n 10.
185
A
bove
n 11.
186
A
bove
n 28 at para 59.
187
Id.
188
Id.
189
Id
at para 55.
190
Id
at para 30.
191
Id
at para 60.
192
Fry’s
Metals (Pty) Ltd v National Union of Metalworkers of SA & Others
(2003) 24 ILJ 133 (LAC)
as
approved by the Supreme Court of Appeal in
National
Union of Metalworkers of SA & Others v Fry’s Metals (Pty)
Ltd
(2005) 26 ILJ 689 (SCA).
193
Id.
194
Health
Professions Council of SA v De Bruin
[2004]
4 All SA 392
(SCA) at para 23; see also
Tikly
and Others v Johannes N.O. and Others
1963
(2) SA 588
(T) at 590H and
Commercial
Staffs (Cape) v Minister of Labour and Another
1946
CPD 632
at 638-41.
195
Bel
Porto
above n 57 at para 115.
196
Section
13(4) of
the
RHA
reads:
“
Where a Tribunal, at the
conclusion of a hearing in terms of paragraph (d) of subsection (2)
is of the view that an unfair practice
exists, it may—
(a) rule that any person must comply with a provision
of this Act;
(b) where it would appear that the provisions of any
law have been or are being contravened, refer such matter for an
investigation
to the relevant competent body or local authority;
(c) make any other ruling that is just and fair to
terminate any unfair practice, including, without detracting from
the generality
of the aforegoing, a ruling to discontinue—
overcrowding;
unacceptable living conditions;
exploitative rentals; or
lack of maintenance.”
197
[66]
above.
198
[67]
above.
199
Act
50 of 1999.
200
Chapter
3, sections 4 and 5.
201
Aengus
Lifestyle Properties (Pty) Limited v Maphango (Mgidlana)
Case
No. 09/22346, 7 May 2010, judgment of Van Der Riet AJ, unreported at
paras 25, 25.4, 26 and 31.
202
Maphango
(Mgidlana) and Others v Aengus Lifestyle Properties (Pty) Ltd
2011 (5) SA 19
(SCA) at paras 31-4.
203
Sections
1, 2 and 39 of the Constitution.
204
Section
39(2) of the Constitution.
205
The
rigid distinctions discussed in
Media Workers Association of
South Africa and Others v Press Corporation of South Africa Ltd
(‘Perskor’)
[1992] ZASCA 149
;
1992 (4) SA 791
(AD) at 795C-797J (a
pre-constitutional matter) must thus be cautiously re-assessed in
the light of our new constitutional dispensation.
206
[55]-[56]
above.
207
[47]
and [52] above.
208
Section
172(1)(b) of the Constitution.
209
See
section 26(3) of the Constitution as well as the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act 19
of 1998
at para 2 of the Preamble and at sections 4(6); 4(7); and 6(1).
210
Barkhuizen
v Napier
[2007] ZACC 5
;
2007 (5) SA 323
(CC);
2007 (7) BCLR 691
(CC).
211
[57]
above.