The number of drug-related crimes recorded by the South African Police reached some 162 100 offences between 2022 and 2023, says statista.com. This was an increase of nearly 22 000 on the previous year, and is a cause for concern.
There are also statistics that speak of at least 15% of SA people that have a drug problem, with Dr David Bayever from the government drug control organisation, known as the CDA, saying “The drug problem in South Africa remains very serious with drug usage being twice the world norm in most cases…and we are only dealing with what we know about…this is only the tip of the iceberg.”
It is more than likely, therefore, that some drug abusers will also be renters. “As a landlord, it's essential to understand the legal implications and responsibilities should your tenant be taking or bringing drugs onto your property,” says Khairiyah Safeda, Founder and Director of legal firm Safeda & Associates.
She clarifies that there are ‘Acceptable and Unacceptable’ drugs. Unacceptable drugs, as per those listed in Schedule 2 of the Drugs and Drug Trafficking Act, include opiates (e.g. diamorphine hydrochloride (heroin), morphine, methadone hydrochloride, oxycodone hydrochloride, pethidine hydrochloride), major stimulants (e.g. amfetamines), quinalbarbitone (secobarbital), cocaine, and ketamine.
“Cannabis, however, is decriminalised for personal use founded on the Minister of Justice and Constitutional Development v Prince [2018] ZACC 30 case, also known as the ‘Prince case’, which decriminalised the possession, use, and cultivation of cannabis for personal consumption in private,” says Safeda.
“This means that individuals, including tenants, can grow, possess, or smoke cannabis in the privacy of their own property without fear of prosecution.”
This has key implications for tenants and landlords:
General rentals
• Tenants' Rights: Tenants can consume cannabis in their rented properties, but must adhere to the lease agreement and any conduct and management rules.
• Landlords' Obligations: Landlords cannot cancel lease agreements solely due to cannabis use, but can regulate smoking.
• Exclusive-Use Areas: Balconies and gardens registered as exclusive-use areas are considered private spaces, and therefore smoking cannabis in such areas is permitted.
• Smoking Restrictions: Smoking cannabis is prohibited in common property areas, and landlords can designate units as smoking or non-smoking.
Sectional Title Schemes
The rules are somewhat different for Sectional Title Schemes because they need to account to, and have regard for, the general community:
• Lease agreements should clearly state whether the unit is smoking or non-smoking. If it is a non-smoking unit then smoking cannabis, cigarettes, and other drugs are prohibited.
• Tenants must ensure smoking does not damage the property and restore it to pre-smoking condition
• Sectional title residents cannot smoke or grow cannabis in common areas. However, it is permitted on exclusive use areas.
Trustees can invoke Section 13(e) of the Sectional Titles Schemes Management Act (STSMA) - which prohibits an owner or tenant from using his or her section in a manner that causes a nuisance or disturbance to any other occupier in the scheme.
Lease Agreement clauses
Safeda confirms that in order to protect their property, landlords should consider including specific clauses addressing drug activity, such as:
- Prohibiting illegal drug use or possession.
- Regulating cannabis cultivation or use.
- Designating the property as a smoking or non-smoking area.
- Specifying consequences for breaching these terms.
Note: Sectional title trustees can introduce new Conduct Rules outlining cannabis use conditions subject to approval by CSOS.
Eviction for drug-taking
“Landlords can evict tenants for drug-related activities, even if not specified in the lease agreement, in so far as it is considered criminal behaviour,” confirms Safeda. “In fact, a landlord has a legal obligation to report any suspected criminal activity, including drug abuse, to the local authorities. Failure to do so may render the landlord complicit.”
Proving drug use
Suspicious behaviour is not necessarily an indication of drug use. “Evidence may include witness statements, photographs, police reports, or physical indicators,” says Safeda. “Landlords must follow a fair process when investigating suspected drug use and should consult with a property law specialist in this regard.
“But there are behaviours to watch, such as unusual odours, frequent visitors, or changes in tenant behaviour or personality. Landlords who have concerns should regularly inspect their property, maintain open communication with tenants, and document incidents. If a dispute relative to drug activity should arise, seeking legal advice is always the first option, with the possibility of mediation being considered.”
