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landlord and occupier rights Archives | Eviction Lawyers South Africa

Tenant selection and unfair discrimination

By | Tenants

It is illegal to discriminate against prospective tenants unfairly

The tenant selection process allows property owners to vet prospective tenants. It is legal – and advised – to carry out a credit check and ask for references. A landlord has a right to know that a tenant will be able to pay the rent on time and will look after the property respectfully. However, it is illegal to reject a tenant application on the basis of sex or race (or any other quality, such as sexual persuasion, protected by the Bill of Rights). Not only are these basic rights enshrined in the Constitution, they are also protected by the Rental Housing Act (RHA), which allows for the prosecution and imprisonment of landlords and estate agents who practise unfair discrimination against prospective tenants.

Legislation   

It’s hard to believe that, in South Africa in 2022, this should still be an issue. But just recently a prospective tenant was refused the right to apply to rent a property in Cape Town CBD by an estate agent. The reason given was the “client is race-specific”. This situation not only contravened the RHA but also the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), constituting this act as a criminal offence. Section 4(1) of the Rental Housing Act of 1999 states:

In advertising a dwelling for purposes of leasing it, or in negotiating a lease with a prospective tenant, or during the term of a lease, a landowner may not unfairly discriminate against such prospective tenant or tenants, or the members of such tenant’s household or the visitors of such tenant, on one or more grounds, including race, gender, sex, pregnancy, marital status, sexual orientation, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, language and birth.

The section refers to “landowners”. However, agencies and estate agents are not excluded. “Landowner” is defined in section 1 of the Act and includes the owner’s “duly authorised agent or a person who is in lawful possession of a dwelling and has the right to lease or sublease it”.

Section 16 of the RHA continues:

Any person who fails to comply with Section 4…will be guilty of an offence and liable on conviction to a fine or imprisonment not exceeding two years or to both such fine and such imprisonment.

What is “unfair” discrimination?

Similar to PEPUDA, section 4(1) of the Rental Housing Act prohibits “unfair” discrimination. What constitutes unfair discrimination? In certain circumstances different treatment does not perpetuate patterns of disadvantage and harm. Thus the different treatment will be permissible, although these circumstances are rare. An example might be a women-only residence, set up as a place of safety for women who have suffered abuse. In this case, it is not unfair to refuse to rent to a man.

Discrimination goes beyond tenants

Unfortunately, discrimination doesn’t begin and end with the two parties of the lease agreement. It is not unknown for body corporates or other tenants of a building to harass tenants of colour or their guests in a manner that equates to unfair discrimination. The security guard who waves one car through with barely a glance but subjects the next driver to exaggerated scrutiny because the body corporate has hinted that cars or drivers fitting a certain description are suspicious is an example of  discrimination thinly disguised as security. However, the protective measures apply to everyone and discrimination of this nature is in contravention of the relevant provisions of PEPUDA. Tenants who experience any form of unfair discrimination can take those responsible for it to the Equality Court.

We can help

Simon Dippenaar & Associates, Inc. is a Cape Town law firm of specialist eviction lawyers, now operating in Johannesburg and Durban. We help both landlords and tenants with rental property issues. If you think you are the victim of unfair discrimination, or if you need advice on any aspect of a lease or landlord-tenant relations, contact one of our attorneys on 086 099 5146 or simon@sdlaw.co.za.

Further reading:

Landlords likely to have stricter credit and rental checks after Covid-19 financial impact

Tenant risk: 5 metrics to consider

Getting to grips with the Rental Housing Amendment Act

Tenant red flags and how to avoid them

By | Lease Agreement, Rent, Rental deposit, Tenants

Tenant Red Flags

Reprinted from Engineering News – 2022-03-24

The residential property industry continues its upward trajectory, and investors are getting in on the action. However, with the rise of investors choosing to take advantage of low prices and invest in ‘buy-to-let’ properties comes an excess supply of rental properties in areas with high supply and low demand.

Residential rental vacancies in Gauteng are currently sitting at a high rate of 11.9%, while the Western Cape is sitting at a slightly lower 11.4% vacancy rate according to TPN’s 2021 Q4 data.

Although landlords may be getting desperate, industry experts advise you to think twice before signing on the first tenant who comes your way. Explains Grant Smee, Managing Director of Only Realty, and property entrepreneur: “Placing a tenant in your vacant property might help curb your losses in the short-term, but putting the wrong tenant in can have a lasting negative effect.”

He adds that the law protects both the landlord and the tenant’s rights and therefore urges parties to do their due diligence prior to signing a lease agreement. Speaking to tenant’s obligations, Smee highlights “the requirement to pay rent promptly, to take care of the property and to return the property in the same condition that it was received in.” Landlords, on the other hand, are required to provide the tenant with access to a safe home in good working order. They are also required to maintain the exterior of the building and to protect the tenant’s deposit.

Smee adds while some properties are enjoying an influx of rental applications, others are desperately seeking tenants, both of which are at risk. “Receiving a rental application is a big relief for a landlord, so much so, that they often overlook red flags.”

Unfortunately, the price of avoiding the warning signs and securing a problem tenant carries a high price for landlords. This is because evicting tenants is a long and costly process in South Africa, and requires landlords to serve tenants with a ‘tenant eviction notice’ before they are entitled to a court hearing. “Even if the court process rules in the landlord’s favour, only a court-appointed sheriff is allowed to remove the tenant’s belongings, and this process can take weeks if not months,” warns Smee.

While some of these red flags can be avoided by using a reputable letting agent (and agency), some red flags are often overlooked.

The obvious red flags

A poor credit score: “A credit score refers to ones’ ability to pay back their debt on time. The COVID-19 pandemic has further exacerbated high levels of debt in South Africa, and this will be a prevalent issue for years to come,” says Smee. “Prior to signing on a tenant, a thorough credit check should be run. A credit score of 610-plus is acceptable.”

Affordability: “The general rule of thumb is that your monthly rental should not exceed 30% of your monthly salary,” says Smee. An assessment of a prospective tenant’s affordability will give a landlord a clearer idea of their monthly income and expenditure. “Agents and landlords should ensure that the tenant has enough income left over to pay their rent, electricity, and water (where required).”

References: A tenant will require a reference from previous landlords to determine their behaviours as  tenant. “A reference tells the landlord who the tenant is and if they are reliable or not. If the prospective tenant has no prior rental history, they will need to either arrange a co-signature on their lease agreement or can offer to put another credible reference- such an employer – forward.”

The not-so-obvious red flags

Smee lists the potential red flags that many landlords overlook in the tenant screening process:

Employment history: “Employment is hard to come by, however, some prospective tenants’ short employment histories can tell a different story. Job hoppers or people who run into trouble in the workplace can sometimes display these behaviours in their home life too.”

Criminal history: “Performing a criminal background check may sound extreme but this is a standard part of the hiring process in many industries and rentals should be no different. Some companies such as TPN provide a SAPS criminal background check to landlords as part of their Credit Check offering to ensure that your tenant is safe, honest and reliable.”

General behaviour: “Quite often there are red flags from the very first engagement with a tenant. In some cases, they are hard to reach or can be extremely difficult and demanding for no apparent reason,” he explains. “This is another reason why it’s important to use a rental agent whose judgement you can trust.”

Ensuring a good tenant-landlord relationship

Smee offers the following advice for those wanting to ensure a smooth relationship:

Always communicate: “In cases where the tenant already occupies the property, be sure to communicate and put everything in writing. Remain calm and rational should something go wrong and seek advice from estate agents and lawyers (where necessary).”

Don’t be fooled by fast cash: “Don’t fall into the trap of accepting a large sum of cash upfront in lieu of regular rental payments. Just because they have the money now, doesn’t mean they’ll have it in four month’s time when the next payment is due.”

Don’t rush: “In cases where the tenant is dragging their feet about signing the rental agreement, don’t lose hope yet. Try your best to clearly communicate, perform all the necessary checks, answer any questions they may have and spend a few days mulling over your decision before jumping into a lease agreement.”

Trust your gut: “Much like any relationship, if something feels off when you’re engaging with a prospective tenant, trust your instincts. Paperwork can be forged, but your intuition is rarely wrong,” he concludes.


Simon Dippenaar & Associates, Inc. is a Cape Town law firm of specialist eviction lawyers, now operating in Johannesburg and Durban, helping both landlords and tenants with rental property issues. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you need advice on the eviction process or if you need help with any aspect of a lease or landlord-tenant relations.

Further reading:

Can a landlord make vaccination a condition in a lease agreement?

By | COVID 19, Rental Housing Act, Vaccination

Can a landlord make COVID-19 vaccination a condition for rental?

Reprinted from Fin24, by Allison Jeftha – 2021-11-06

A Fin24 reader wants to know if a landlord can make vaccination a requirement for a residential lease.

He writes:

Can a landlord make vaccination a condition in a lease agreement?

Michelle Dickens, Chief Executive Officer at TPN Credit Bureau responds:

The National State of Disaster Regulations specifically regulates Rental Housing and Evictions during the various alert levels. These Regulations are in addition to the Rental Housing Act and provincial Unfair Practice Regulations.

Effectively, tenants are protected from being evicted without a court order and evictions are stayed until the termination of the National State of Disaster. The latest extension of the National State of Disaster was renewed to 15 December 2021. These monthly extensions are expected to continue into 2022.

Specifically, during the National State of Disaster, the courts can suspend the stay of eviction.

In other words, they can grant the eviction order only if it is just and equitable after considering if the tenant will have access to a place of residence and basic services to protect their health, the impact of the disaster on the tenant, the tenant’s access to legal services and if adequate measures are in place to protect the health of the tenant after relocating.

These State of Disaster Regulations reference the tenant’s health in multiple sections when a court is considering whether to grant or stay the eviction order.

The Rental Housing Act specifically outlaws discrimination on the basis of race, gender, sex, pregnancy, marital status, sexual orientation, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, language and birth.

Current market dynamics highlight that it is a tenant’s market – with high vacancies and low escalations. Landlords opting to limit their portfolio to vaccinated tenants may be considering the health risk of their tenant portfolio with specific reference to the National State of Disaster.


Simon Dippenaar & Associates, Inc. is a Cape Town law firm of specialist eviction lawyers, now operating in Johannesburg and Durban, helping both landlords and tenants with rental property issues. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you need advice on the eviction process or if you need help with any aspect of a lease or landlord-tenant relations.

Further reading: