PRL5901
ASSIGNMENT 2 2025
UNIQUE NO. 185367
DUE DATE: 3 SEPTEMBER 2025
, Drafting of Commercial Contracts
Part 1: Legal Advice to Mrs B
Introduction
You have requested advice regarding the lawfulness and enforceability of certain
provisions you wish to include in a lease agreement for your apartment in Cape Town.
South African lease agreements are regulated by the Rental Housing Act 50 of 1999
(RHA), the Consumer Protection Act 68 of 2008 (CPA), common law, and the
Constitution. Below, each proposed clause is considered in turn.
1. Tenant age restriction (30–40 years)
This amounts to discrimination on the basis of age and violates section 9 of the
Constitution and the Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000 (PEPUDA). A landlord may not refuse to contract with
tenants based solely on age, unless objectively justified (e.g. student housing). Your
restriction would be invalid and unenforceable.
Advice: Use financial criteria such as creditworthiness, references, and affordability
instead of age.
2. Excluding liability for damage even if caused by landlord’s fault
The CPA prohibits unfair terms that exempt a supplier from liability for loss caused by
gross negligence or fault (s48). The Constitutional Court in Barkhuizen v Napier 2007
(5) SA 323 (CC) confirmed that clauses contrary to public policy are invalid. Attempting
to exclude liability for your own negligence or breach of duty is therefore
unenforceable.
ASSIGNMENT 2 2025
UNIQUE NO. 185367
DUE DATE: 3 SEPTEMBER 2025
, Drafting of Commercial Contracts
Part 1: Legal Advice to Mrs B
Introduction
You have requested advice regarding the lawfulness and enforceability of certain
provisions you wish to include in a lease agreement for your apartment in Cape Town.
South African lease agreements are regulated by the Rental Housing Act 50 of 1999
(RHA), the Consumer Protection Act 68 of 2008 (CPA), common law, and the
Constitution. Below, each proposed clause is considered in turn.
1. Tenant age restriction (30–40 years)
This amounts to discrimination on the basis of age and violates section 9 of the
Constitution and the Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000 (PEPUDA). A landlord may not refuse to contract with
tenants based solely on age, unless objectively justified (e.g. student housing). Your
restriction would be invalid and unenforceable.
Advice: Use financial criteria such as creditworthiness, references, and affordability
instead of age.
2. Excluding liability for damage even if caused by landlord’s fault
The CPA prohibits unfair terms that exempt a supplier from liability for loss caused by
gross negligence or fault (s48). The Constitutional Court in Barkhuizen v Napier 2007
(5) SA 323 (CC) confirmed that clauses contrary to public policy are invalid. Attempting
to exclude liability for your own negligence or breach of duty is therefore
unenforceable.
