No-fault breach of lease agreement

April 1st, 2024

This article is intended to deal solely with rental housing provided by the state; and where it is regulated by a lease agreement; and rent has not been paid, due to poverty. I submit that non-payment of rent in such situations constitutes a ‘no-fault breach’ and should not be visited by the normal remedy of eviction.

It is submitted that state housing is always occupied by persons who cannot – through their own means or efforts – provide adequately for their own shelter. Hence their reliance on the state for this basic amenity.

It is a common occurrence for such persons to breach the terms of a lease agreement by failing to pay rent or failing to pay it regularly. In the vast majority of cases this occurs not because the tenant seeks to avoid their responsibilities. It is simply that their circumstances have altered (they have become unemployed; ill or injured; or they have suffered some other misfortune) such that there is simply no money left to pay the rent. Our law is presently geared towards evicting such persons and their families and rendering them homeless.

The question that must be asked is whether South Africa’s (SA’s) Constitution countenances such an outcome, having regard to, inter alia, the values of care, responsiveness, and compassion, which are now said to be central to our constitutional ethos.

As a starting point it may help if we understood the routine difficulties faced by the poor:

  • Being malnourished.
  • Having sub-optimal health; and prone to chronic illnesses.
  • Having a low level of literacy.
  • Probably unemployed.
  • If employed, working in a low paying job.
  • Being exposed to unhealthy and unsafe working conditions that cause illnesses and accidents.
  • Liable to be retrenched when the economy takes a downturn.
  • Likely to be the victim of crime since they walk long distances; and live in areas where crime is endemic.
  • Likely to suffer injuries or death due to use of dangerous minibus taxis.

In societies generally, and SA in particular, the needs of the poor enjoy low priority; and they are treated with rudeness and disrespect.

The following, therefore, is normal in the life of the poor:

  • Hunger.
  • Uncertainty.
  • Stress, anxiety, helplessness, and lack of control.
  • Waiting in long lines for everything.
  • Instability and volatility caused by concerns about food and job insecurity, poor health, and poor finances. Turmoil is normal because they have to deal with one crisis after another; or more than one crisis at the same time.

The above cannot be contested by the state or any reasonable person or institution.

Most difficulties faced by the poor are connected in some or other way with the lack of money or lack of sufficient money. Money is needed to buy food; medicines; transport; utilities; and other daily necessities. The lack thereof, or inadequate access thereto aggravates existing or pre-existing difficulties.

With everything conspiring against the poor, why does it come as a surprise when they breach a lease agreement? I submit that it can and should be anticipated if not expected that a poor person will breach such an agreement as a result of poverty.

That breach should be categorised as a ‘no-fault breach’. In other words, it is not due to any act or omission on the part of such poor persons. It is simply something that is beyond their control; unavoidable; and an inherent part of a poor person’s existence. The state should be aware of this.

A ‘no-fault breach’ means that the normal remedy of eviction cannot and should not be levied against a tenant who has not paid rent due to poverty. I submit that lease agreements in such circumstances should provide for the following options:

  • Exemption from rent for the duration that the tenant is not in receipt of any income.
  • Where the tenant is in receipt of an income, but such income does not allow the tenant to pay the rent in full, for a new agreement to be concluded that takes into account the commitments of the tenant to their family and especially their children. As such, the rent should be lowered.
  • In both the above scenarios, the tenant and their family should be allowed to remain in the existing premises; alternatively moved to lower-tier alternative accommodation for non-payment or low rental paying tenants.

I submit that lease agreements that provide for these clauses will be in keeping with our new constitutional ethos. Our common law of lease should be developed having regard to the above submissions.

In cases of ejectment due to non-payment of rent, where the state or a state agency is the landlord, the defence of poverty should be pleaded – and there is no reason why in present day SA, such a defence cannot be recognised – in the limited circumstances of an ejectment – seeing that it deals with shelter – a fundamental right.

Poverty is a ‘no fault’ circumstance that must be considered when determining whether an eviction is ‘just and equitable’ (as contemplated in ss 4 and 6 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998).

In summary, I submit that poverty is not something that one chooses. One gets entangled in poverty regardless of any action or omission on one’s part. Any court that is sensitive to the plight of the poor must refuse to grant an eviction where the breach has come about by way of poverty; and where the landlord is the state.

Ranjit Purshotam BProc LLB (Unisa) is a Consultant at the Legal Resources Centre in Durban.

This article was first published in De Rebus in 2024 (April) DR 8.