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Tenant selection and unfair discrimination

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

Disclaimer

The information on this website is provided to assist the reader with a general understanding of the law. While we believe the information to be factually accurate, and have taken care in our preparation of these pages, these articles cannot and do not take individual circumstances into account and are not a substitute for personal legal advice. If you have a legal matter that concerns you, please consult a qualified attorney. Simon Dippenaar & Associates takes no responsibility for any action you may take as a result of reading the information contained herein (or the consequences thereof), in the absence of professional legal advice.