The enforceability of tenants rights (part 1)
CITATION: Van Der Walt, A.J. & Maass, S. 2012. The enforceability of tenants' rights (part 1). Journal of South African Law / Tydskrif vir die Suid-Afrikaanse Reg, 2012(1):35-52.
The original publication is available at https://journals.co.za/content/journal/ju_tsar
The purpose of the article is ultimately to align our current understanding of the nature of tenants' rights, according to basic common-law property principles, with their nature and role in the new constitutional dispensation. We consider this a worthwhile exercise in view of the question, emerging from constitutional law rather than property law or landlord-tenant law, whether the holders of short-term and unregistered long-term residential tenancies should enjoy the benefits of section 25(6) of the 1996 constitution. Section 25(6) provides that a person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an act of parliament, either to tenure which is legally secure or to comparable redress. If this provision applies to holders of short-term residential tenancies, tenants whose current position is particularly vulnerable because of past racial discrimination might be able to challenge current landlord-tenant legislation for being inadequate in view of the constitutional provision.