eviction - tenants' right not to be evicted as a result of renovations - Rental Housing Tribunal - PIE Act - High Court - Constitutional Court

SERI represents 53 tenants of Plettenberg Mansions building in an appeal against a High Court decision ordering their eviction from their homes. The residents have lived in the building with valid lease agreements for periods of up to 25 years. The tenants have previously been represented by SERI in the Jele case from 2013 to 2015, where they were involved in a battle against the previous landlord and building owner who enforced unfair electricity service charges on them. The tenants challenged these exploitative practices in the Gauteng Rental Tribunal and the South Gauteng High Court and were successful in both applications. 

On 1 January 2018, the tenants received a “Notice to Vacate”. The notice said that the building would be renovated and that the tenants had to vacate to allow this to happen. The tenants would be given alternative accommodation on the same terms and conditions as their current leases in and around the inner city, and would pay the same rent to live there. The tenants were, however, suspicious as they had previously been told that the renovations on the building could be performed without them having to vacate. They accordingly referred the notice to the Rental Housing Tribunal as an unfair practice in terms of the Gauteng Unfair Practice Regulations of 2001 and the Rental Housing Act 50 of 1999. The Tribunal considered the tenants’ complaint in February 2018, and inspected the building.

The Tribunal concluded that the renovations could not be done while the tenants remained in occupation and interpreted the notice as a Notice in terms of Regulation 8(1)(a) of the Gauteng Unfair Practice Regulations. Regulation 8(1)(a) states that “a landlord may only request a tenant to vacate the dwelling if any repairs, conversions or refurbishment are necessary and cannot be properly done while the tenant remains in occupation”. Regulation 8(4) of the Regulations states that “if a tenant, having been requested to vacate the dwelling, does not do so, a tenant has no claim against the landlord for injuries suffered while the dwelling is being repaired, converted or refurbished”.

The Tribunal ruled in favour of the landlord and found that:

• The notice to vacate issued by the landlord is lawful and does not amount to unfair practice.
• The landlord is in line with Regulation 8(1)(a).
• On completion of the refurbishment the respondent must ensure that the tenants are able to return to the dwelling as soon as possible as provided for by Regulation 8(c).
• The landlord is ordered to effect the refurbishment within a reasonable time so as to cause the tenants as little inconvenience as possible.
• The landlord must offer tenants alternative accommodation on the terms set out in the notice letter dated 1 January 2018 as well as the additional offer of R2500 made during the proceedings on the 23 February 2018”

The tenants, with SERI’s advice, took the view that neither the notice nor the ruling of the Tribunal had the effect of cancelling their leases. This was primarily because Regulation 8(1) contrasts a “request” to vacate to allow for renovations (8(1)(a)), with a “cancellation” of a lease in the event that the leased property becomes uninhabitable (8(1)(b)).

The tenants nonetheless elected to vacate the property, subject to being given alternative accommodation, a remission in rent, and an undertaking that their units would not be subdivided during the renovations. The landlord initially refused the tenants’ attempts to get it to identify alternative accommodation, but eventually identified a number of buildings where the residents could move during the renovations. The units identified were, on average, about half the size of the units the tenants currently occupy. However, the landlord refused to remit the tenants’ rent in proportion to the reduction of the size of their dwellings. It also refused to undertake not to subdivide the tenants’ units during the renovation.

While the residents were in the middle of negotiating a contractual compromise, the landlord launched an eviction application, on an urgent basis, in terms of section 4 of the PIE Act.

SERI defended the application on behalf of residents on the basis that:

1. The tenants are not unlawful occupiers, because their leases had not been cancelled. The effect of the Notice was to issue a request to vacate in terms of Regulation 8(1)(a). That did not have the effect of terminating our rights of occupation.

2. It is not permissible to bring an urgent eviction application in terms of section 4 of the PIE Act. The landlord’s failure to comply with section 5 meant that its application had to be refused.

3. It was not just and equitable to evict the tenants until the landlord had granted the tenants a remission of rent in respect of the reduced size of the temporary alternative accommodation. This entitlement arose from the common law, Regulation 8(2)(a) of the Regulations, and the leases themselves

4. It was not just and equitable to evict the tenants unless the landlord promised not to subdivide the tenants’ units during the renovation, because the tenants had a right, in terms of Regulation 8(2)(c) to return to their dwellings after the renovations. The subdivision of their dwellings would frustrate this right.

Judge Adams ruled in favour of the landlord in all four accounts, granted the eviction against the tenants and further refused the tenants' leave to appeal. The residents petitioned the Supreme Court of Appeal for a hearing, but their leave for appeal was refused. The tenants have since applied for leave to appeal to the Constitional Court on the basis that the matter should not have been considered urgent, the tenants were never unlawful occupiers (as their leases had never been cancelled), and that the High Court's eviction order was a "permanent eviction through the back door" as after the refurbishment the tenants' "homes will be gone and replaced by new, substantially smaller dwelling units".

• Residents' founding affidavit in the application for leave to appeal in the Constitutional Court (29 October 2018) here.
• Residents' notice of motion in the application of leave to appeal in the Constitutional Court (29 October 2018) here.
• Residents' founding affidavit in the application for leave to appeal in the SCA (13 June 2018) here.
  
• Residents' notice of motion in the application for leave to appeal in the SCA (13 June 2018) here.
  
• High Court judgment (23 May 2018) here.
• Residents' answering affidavit (11 May 2018) here.
• Residents' heads of argument (16 May 2018) here.