Concourt sends tenants back to tribunal

A group of tenants whose leases were cancelled to make way for more expensive apartments must take the matter back to the Gauteng Rental Housing Tribunal, the Constitutional Court ruled on Tuesday.

"The tribunal is empowered to determine whether a landlord committed an 'unfair practice', and it might accordingly have ruled in the tenants' favour," Justice Edwin Cameron said.

Aengus Lifestyle Properties, which specialises in buying old Johannesburg buildings and revamping them into modern apartments such as Tribeca and Fashion Lofts, had given notice to tenants of Lowliebenhof, Braamfontein, then cancelled their leases.

Aengus wanted to revamp the building so it offered the tenants alternative accommodation in its other buildings, or they could have stayed on, but paid a higher rent.

The tenants lodged a complaint with the tribunal, a body established under the Rental Housing Act, but mediation was unsuccessful.

When the landlord brought eviction proceedings against them in the High Court in Johannesburg, they withdrew their case from the tribunal and challenged their eviction.

Cameron, reading the majority judgment, explained that when the matter was escalated to the High Court and Supreme Court of Appeal (SCA), those courts found the Rental Housing Act did not apply and that the landlord was entitled to terminate the leases with written notice. By doing this, the landlord could not be seen to be unfair or oppressive, and the eviction order could stay in place.

However, the Constitutional Court found the two previous courts failed to give adequate weight to the act and that the landlord's conduct may have amounted to an unfair practice. The court found the act takes account of market forces, as well as the need to protect landlords and tenants.

The tenants had never withdrawn their complaint of unfair practices, and so that complaint and any complaint the landlord might have about the rental rate should be considered by the tribunal, the court ruled.

The Constitutional Court postponed the appeal, and gave the tenants until May 2, 2012 to lodge a complaint with the tribunal.

The parties were granted permission to apply to the Constitutional Court again following the tribunal's decision. If the parties did not lodge a complaint with the tribunal by then, their appeal would be dismissed with costs.