A CRITICAL ANALYSIS OF THE DECISION OF THE CONSTITUTIONAL COURT* Maphango v Aengus Lifestyle Properties (Pty) Ltd 2012 (3) SA 531 (CC)


  • Moses Retselisitsoe Phooko




lease contract, rental housing, unfair practice


The pursuit of access to better economic opportunities such as decent jobs has resulted in an astronomic influx of people into the inner city of Johannesburg, South Africa. As a result there is a high demand for rental housing. This presents an opportunity to make profit for those who leasepremises in order to generate an income. The demand for rental housing has arguably caused the escalation of rental prices, thereby causing a shortage of affordable rental housing in the city centre. The Rental Housing Act 50 of 1999 was enacted to resolve disputes that may arise from any unfair practice or matters affecting the relationship between the landlord and his tenants in respect of the lease contract. In particular, the Rental Housing Act seeks inter alia to “create mechanisms to promote the provision of rental-housing property; promote access to adequate housing through creating mechanisms to ensure the proper functioning of the rental-housing market [and] to lay down general principles governing conflict resolution in the rental-housing sector” (Preamble to the Rental Housing Act). In terms of the Rental Housing Act, the landlord or a tenant may approach the Rental
Housing Tribunal and complain about an unfair practice (s 13 of the Rental Housing Act). The Rental Housing Act defines an unfair practice as “a practice unreasonably prejudicing the rights or interests of a tenant or a landlord” (s 1 of the Rental Housing Act). Where the Tribunal, at the conclusion of the hearing, is of the view that an unfair practice exists, it may rule that the exploitative rental be discontinued. The Tribunal may also make a determination about the amount of rental that must be paid by a tenant taking into account inter alia “the need for a realistic return on investment for investors in rental housing”. The argument presented in this case is that the applicants ought to have made up their case in the court of first instance and not at the appellate stage. The paper is
divided into nine sections. Section 2 provides an overview of the facts of the case, section 3 discusses the case before the High Court, section 4 discusses the case before the Supreme Court of Appeal (SCA), section 5 discusses the case in the Constitutional Court, the issues, arguments, before the court, the findings and conclusions of the court. Section 6 evaluates the parties’ submissions in light of the Rental Housing Act, the Constitution, the Gauteng Unfair Practices Regulations, and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIEA) (19 of 1998). Section 7 discusses the majority judgment. Section 8 discusses the minority judgment. Section 9 is a critique of both the minority and majority judgments. The conclusion made is that the applicants should stand or fall by the arguments contained in the founding documents.


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How to Cite

Moses Retselisitsoe Phooko. (2021). A CRITICAL ANALYSIS OF THE DECISION OF THE CONSTITUTIONAL COURT* Maphango v Aengus Lifestyle Properties (Pty) Ltd 2012 (3) SA 531 (CC). Obiter, 33(3). https://doi.org/10.17159/obiter.v33i3.12143