Dr Sayed Iqbal Mohamed
Terminating or cancelling a lease contract must follow certain procedures, unless the lease comes to an end by agreement.
When parties enter into a lease contract for a fixed period, the tenant agrees to move out on the last day stated in the contract.
No notice to terminate the contract is required in this instance and should the tenant fail to vacate, legal action may follow.
New laws and changes in existing tenancy laws have placed additional requirements on parties, particularly owners/landlords seeking to end lease contracts.
Certain requirements of the Consumer Protection Act 68 of 2008 (CPA) apply to landlords whose ordinary course of business is to let out properties.
In the case of the CPA, a tenant as a consumer can terminate a fixed term lease by giving 20 business days’ written notice.
The Rental Housing Act 50 of 1999 as amended is the main law for all residential tenancies, together with the common law, law of contract and the 1996 Constitution.
What about the Promotion of Administrative Justice Act 3 of 2000 (PAJA)?
PAJA is part of Administrative law that affects all tiers of government in the performance of its administrative actions.
It informs government officials and members how to conduct themselves in exercising their duties, they may be required to give reasons for their actions and to provide remedies including the right to review or appeal a decision.
Section 33 (1) of the Constitution states “everyone has the right to administrative action that is lawful, reasonable and procedurally fair”.
Moodley occupied Aurora Flats situated at 133 Dr Hoosen Haffajee (Graypark) Road, Brighton Beach, Durban for approximately nine years, being granted two extensions on the occupation time cycle limit of three years.
In 2005, a new housing allocation policy was introduced and SAPS members occupying police quarters provided by the state had to re-apply.
The minister argued that the accommodation to SAPS members was linked to their employment. PIE did not apply since the accommodation was of a temporary nature.
Judge Sishi of the high court in Durban disagreed and refused to grant the eviction.
The SCA dismissed the minister’s appeal with costs and made the following judgment that confirmed the agreement between the parties:
1. The respondent is to make representations with regard to the correctness or otherwise of the decision taken on February 6, 2006.
2. The said representations are to be made within 30 days of the date of the order.
3. The Provincial Commissioner is to consider the said representations and make a decision thereon within 30 days and is to give written reasons for the decision.
4. The respondent is thereafter entitled to pursue any internal remedy or take any steps under PAJA that he may be entitled to.
The government is also bound by lease contracts and eviction laws as any other contracting party, without exception.
Dr Sayed Iqbal Mohamed is the chairperson of the Organisation of Civic Rights and deputy chairperson of the KZN Rental Housing Tribunal. He writes in his personal capacity. Tenants who need advice during the lockdown can contact the office on 031 304 6451 or WhatsApp Pretty Gumede on 071 346 5595 or pretty@ocr.org.za, Loshni Moodley on loshni@ocr.org.za or WhatsApp 071 444 5671.
The Star