Disputes between landlords and tenants in South Africa regularly arise over issues such as unpaid rent, lease agreement breaches, property maintenance and eviction processes. These conflicts are governed by the Rental Housing Act 50 of 1999 (the Act) and managed by the Rental Housing Tribunal, which offers mediation and dispute resolution services.
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Tafadzwa Zhanda , a Senior Associate and Vinolia Mashego a Candidate Attorney, from Litigation and Dispute Resolution Department at Gwina Attorneys Incorporated (GAI) provide insights on what tenants and landlords need to understand in the event of a dispute regarding the number of days a tenant can work from home.
Zhanda and Mashego explain that these disputes can also be addressed in Court, where the Court reviews the evidence from both parties, hears testimonies and makes a binding decision based on the relevant laws and regulations. The decision to take a rental dispute to the Rental Housing Tribunal or Court is at the discretion of the complainant.
In the event that a landlord imposes a restriction on a tenant (in their Lease Agreements) by placing a limitation on the number of days a tenant can work from the leased premises, then several legal considerations must be taken into account when drafting and enforcing such restrictions. There must be consideration of the relevant laws such as constitutional rights of the parties and Municipal Regulations.
The Act is the primary legislation governing the relationship between the landlords and tenants in South Africa. The preamble of the Act states, “there is a need to balance the rights of tenants and landlords and to create mechanisms to protect both tenants and landlords against unfair practices and exploitation”.
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Although the Act allows landlords to include reasonable provisions in the Lease Agreement, it prevents landlords from imposing restrictions that are unfair and unlawful. The Act does not explicitly define what constitutes a reasonable restriction, but the general understanding is that the restriction must not be
unduly restrictive. While the landlord has the legal right to impose restrictions, the restrictions cannot infringe on the tenant’s constitutional rights as enshrined in the Bill of Rights (of the Constitution of the Republic of South Africa, 1996).
Relevant rights that may be impacted by restrictions on working from home include: -
• Section 14 of the Bill of Rights addresses the right to privacy which can be infringed if the landlord’s restrictions are overly intrusive or require excessive monitoring of the tenant’s activities.
• Section 21 of the Bill of Rights addresses freedom of movement and residence, whilst not directly related to working from home, landlords should be cautious not to impose restrictions that limit a tenant’s freedom of movement or residence.
• Section 22 of the Bill of Rights addresses the freedom of trade. Restrictions that unreasonably limit a tenant’s ability to work or earn a living from their chosen occupation or profession could be seen as an infringement of this right.
• Zoning and Municipal Regulations must also be taken into consideration. Many Municipalities have specific provisions regarding home-based business or work activities, which may include restrictions on the types of activities permitted, noise levels, signage and other factors. An example of this restriction could be a Municipal Regulation that forbids a mechanic from repairing motor vehicles in residential areas.
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If the tenant’s work activities comply with these regulations, the landlord may have limited grounds to impose additional restrictions, such as limiting the number of days the tenant can work from home. However, if the tenant’s activities violate Zoning or Municipal Regulations, or violate other tenant’s rights on the premises, the landlord may be justified in imposing stricter restrictions or prohibiting the activity altogether. It is noteworthy that a landlord cannot impose a restrictive term on a tenant with an existing lease agreement without the tenant’s consent.
When considering imposing a restriction on the number of days a tenant can work from home in application of the principles indicated in the Act, the following must be considered:
• Nature of work - a tenant who performs administrative tasks may have a minimal impact on the premises and restricting his/her ability to work from home would not be justifiable;
• Disturbances and nuisances - if the tenants work activities creates a disturbance such as excessive noise or parking issues (such as repairing of motor vehicles in a residential area), the landlord may have stronger grounds to limit the number of days to mitigate the nuisance for the benefit of other tenants and residents in the area;
• Security and safety - if the tenants work activities pose potential security or safety risks to the premises or other tenants, the landlord may be justified in imposing stricter limitations or prohibitions. If the tenant’s business attracts many people, including potential criminals, it can be argued that the business poses a danger to the other tenants.
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In the premises, when drafting a Lease Agreement, a landlord must ensure that if he/she imposes restrictions on a tenant, such restrictions are reasonable and proportionate. These restrictions cannot be applied randomly to all tenants, and each tenant’s situation must be carefully considered. It is a situation where “one size shoe will not fit all”. Should the landlord impose a restriction without consideration, the tenant has the right to challenge its validity at the Rental Housing Tribunal or at Court. If the Rental Housing Tribunal or the Court find the restriction unreasonable, such restriction shall be severed from the Lease Agreement and will no longer be valid or binding on the tenant.
Remote working allows employees to perform their duties from a location outside the office environment, usually at home. This arrangement offers flexibility and reduces travelling time and can improve work-life balance. COVID-19 has changed employers’ attitudes towards remote work, making it more widely accepted in certain circumstances. Since the end of the pandemic, some employees have not returned to the office fulltime, meeting there only when necessary. Remote working for many professions may be seen as a glimpse into the future.
* Disclaimer: The articles on these web pages are provided for general information purposes only. Whilst care has been taken to ensure accuracy, the content provided is not intended to stand alone as legal advice. Always consult a suitably qualified attorney on any specific legal problem or matter.
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