If it is illegal to rent out an RDP house, why did the government not do anything when I was evicted during the lockdown?

The long answer

The first point to remember is that it has always been illegal to rent out an RDP house for profit, and the law has not changed. The problem is that the authorities don’t seem to be able to enforce their own rules, and frequently turn a blind eye to illegal renting out of RDP houses. There is often a lack of transparency and accountability in the way that municipalities interact with citizens. There have also been numerous allegations of municipal officials themselves profiting from illegal rentals of RDP houses. 

But in terms of section 26 (2) of the Constitution and section 9 of the Housing Act, municipalities have an obligation not only to provide RDP houses to people who qualify, but to prevent fraudulent activities and to take steps to resolve issues that are brought to it by applicants for RDP houses. 

In 2018 Judge Poyo Dlwati ruled that the Endumeni Municipality in KZN had failed in its constitutional obligations because of all the irregularities in allocations of RDP houses and it was placed under a supervisory court order to address these irregularities. That judgment stands as a warning to other municipalities which do not serve people as they are required to, by law.

You could ask the housing department if the law on renting out RDP houses no longer applies; when it was changed, and what the law is now. You should always keep a note of whom you speak to, the date of speaking to them and their reply. You could also explain your own situation, of you and your children having been evicted after being retrenched and being unable to pay the rent, and ask for assistance. 

You could also point out that no one in South Africa may be evicted without a court order, and under Level 1, a court may authorise an eviction but it must take into account the effect on vulnerable people like the elderly, women and children. You can only be evicted if the court specifically says that it is in order to evict you. 

Under Level 1, both tenants and landlords are required to negotiate in good faith and reach an agreement on how rent can be paid if the tenant is unable to pay because of the pandemic. 

If no action is forthcoming, you could write a letter to the Human Settlements MEC, Tertuis Simmers, which sets out your situation and your complaint against the housing department with names and dates, as well as the address of the house you were renting. You could ask him not only for assistance but also to clarify what the law is in regard to renting out RDP houses and what the consequences are, if any, for individuals and municipalities that disregard the law. 

The contact details for the Human Settlements Head Office in Cape Town are: 

Tel: 0860 142 142. 

Please Call Me: 079 769 1207. 

Email: service@westerncape.gov.za

If you do not receive any help, you could approach an organisation that may provide free legal advice and assistance, if they think you have a case to be made.

• ProBono:

Tel: 087 806 6070 

You could also ask Legal Aid for help. They are supposed to represent people who cannot afford a lawyer, and they are also supposed to assist in cases of illegal evictions:

Tel: 0800 110 110

Please Call Me: 079 835 7179 

Wishing you the best,
Athalie