The South African law of lease and socioeconomic rights

The South African law of lease, in particular the landlord-tenant regime, is currently under constitutional scrutiny. In several cases, the position of socioeconomically vulnerable tenants had to be considered. On the one hand, Section 26 of the 1996 Constitution of the Republic of South Africa provides that the state must afford access to adequate housing. On the other hand, landlords should be protected as rental housing forms a large portion of the South African housing market. To illustrate the two sides of the coin, two cases are discussed: the first case illustrates that unscrupulous landlords may, in respect of the common law duties of a landlord, be able to hide behind the constitutional duties of the state. The second case illustrates that the right of access to adequate housing should be incorporated into the relationship between a landlord and tenant. The concern is that if a landlord’s right to dispose of his property as he wishes is continuously eroded by a tenant’s right to access to adequate housing, the sustainability of the rental market will be affected.