Unfair practice and the Constitutional Court case
Posted by Sayed Iqbal Mohamed on Mar 14, 2012
An unfair practice in terms of the Rental Housing Act (RHA) is any action, behaviour or conduct by one party that affects the rights of the other party in terms of their contractual relationship. The RHA’s definition is: “unfair practice means any act or omission by a landlord or tenant in contravention of this Act; or a practice prescribed as a practice unreasonably prejudicing the rights or interests of a tenant or a landlord.” The RHA together with the Regulations state what the unfair practices are, what the landlord/lady and tenant must do and what they are not allowed to do.
The Rental Housing Tribunal (RHT) have exclusive jurisdiction regarding unfair practices. Where a party has lodged a complaint with the RHT, the courts are prevented from adjudicating the complaint because the RHT must settle the unfair practices dispute first. “Any other court” would include the magistrates’ courts and the superior courts.
In Maphango and Others v Aengus Lifestyle Properties (Pty) Ltd (CCT 57/11)  ZACC 2 (13 March 2012) one of the crucial issue was the ‘exclusive jurisdiction’ of the RHT to hear an unfair practice complaint. The context was whether a landlord can use the offer and acceptance in contract law to terminate a lease and simultaneously or subsequently offer a new lease with a new rental opposed by the tenants as an unfair practice. The Constitutional court held that the high court and the supreme court of appeal erred in not allowing the matter to be sent to the RHT for its decision. Eviction would follow if there is no unfair practice.