Spatial Practices in Lowliebenhof: The Case of Maphango v. Aengus Lifestyle Properties (Pty) Ltd

In Maphango v. Aengus Lifestyle Properties (Pty) Ltd 2012 5 BCLR 449 (CC) the question before the Constitutional Court was when a landlord may legally cancel contracts of lease and evict tenants. In answering this question the court had to consider the constitutional protection against arbitrary evictions in section 26(3) and the provisions of the Rental Housing Act 50 of 1999. The applicants sought a declaratory order that the landlord had terminated their leases unlawfully, because the termination had been intended to double (and in some instances more than double) the rent. The applicants argued that this escalation violated contractual and legislative provisions governing the procedure and conditions under which a landlord can increase the amount of a rental. The Constitutional Court found in favour of the tenants and postponed the appeal to allow any of the parties to lodge a complaint at the Gauteng Rental Housing Tribunal. The narrow focus of this note is the manner in which the Constitutional Court in the Maphango case interpreted the concept of "practice" in the Rental Housing Act and how this in turn corresponds to perceptions of urban spaces. The inquiry is informed by the spatial justice turn and relies on the works of Michel de Certeau, Henri Lefebvre and Doreen Massey.


Introduction
The case of Maphango v Aengus Lifestyle Properties (Pty) Ltd 1 raised a number of interesting questions in its aftermath. Some of these inquiries include an extensive analysis of rent control 2 and conceptualising an unfair practice regime in landlordtenant law. 3 The case has also been used for illuminating the complex concept of subsidiarity, 4 for discussions on a culture of commitment to the common law, 5 and to illustrate the "two sides of the coin" that is the South African law of lease. 6 Central to the case is also the tension between inner city rejuvenation projects and the interests of those who have made a home in the not-yet-rejuvenated inner city. 7 The narrow focus of this note is the manner in which the Constitutional Court in the Maphango case interpreted the concept of "practice" in the Rental Housing Act 8 and how this in turn reveals the spatial politics of urban spaces. I rely on Michel De Certeau's 9 theory on the practice of everyday life and bring it in relation to Henri Lefebvre's 10 notion of inhabitance. My inquiry is informed by the spatial justice turn. 11 After setting out the facts and litigation background of the case, I discuss the Constitutional Court's treatment of the concept of "practice" in the Maphango case.
Thereafter I briefly look at how unfair labour practices are defined and interpreted in the context of labour law in order to establish the significance of this comparable concept and the role it played in determining the content of unfair practices in the context of the Rental Housing Act. Finally I investigate the idea of "practice" from the vantage point of spatial justice, within theories of everyday life, and in conclusion turn briefly to Doreen Massey's 12 "place called home".
An understanding of "practice" as tactics within the context of spatial justice presents a different angle from which to look at the conduct of both the landlord and the tenant beyond the question of the requirement of continuation or repetition. The argument of the main judgment in the Maphango case raises a clear link between labour and home, which provides a link between spatial practices and spatial politics. 13 In the context of spatial justice the practices of everyday life are often described as potentially subversive acts that challenge spatial arrangements. The distinction between house and home corresponds with the differentiation between habitat and inhabitance as raised by Lefebvre. 14 Everyday spatial practices form part of inhabitance and distinguish inhabited places from mere habitats.

Maphango: facts and litigation background
Lowliebenhof is a block of apartments in the inner city of Johannesburg. It is a ten story apartment block in Braamfontein and the applicants had different rental agreements in terms of which they lived there. 15 These lease agreements were initially concluded with various landlords and therefore they contained different termination and escalation clauses. 16 The first lease agreement dated back to 1994.
The respondent-landlord became involved in the management of Lowliebenhof in 2007 through an associated company. 17 The respondent took transfer of the entire block in 2009, improved the building and wanted to increase the rent while claiming that the upgrading of the apartment block was in line with the "city's initiative at refurbishing and upgrading the Johannesburg inner city". 18 The respondent attempted this increase by cancelling the existing rental contracts and offering new contracts on increased rental terms. The Maphango case concerned the question of whether the landlord was allowed to cancel the leases and evict the tenants in the event that they refused to accept the revised contracts. Even though the revised rental amounts were based on market-related rentals the revision resulted in a significant increase of the existing rent. For some of the tenants it meant a 100% increase and for others as much as 150%. 19 The litigation history of the applicants living in the block had started prior to the respondent-landlord's acquisition of the apartment block as a whole. Froneman J deemed it necessary to add the following, in response to the arguments of the minority judgment: It is common cause that section 26 of the Constitution is implicated. Interpretation of what constitutes an "unfair practice" under the Act in light of this is thus inevitably a constitutional issue, a matter of law. Interpretation and application of the law under the Constitution is never a mechanical application of rules; it always involves a value judgment. Our Constitution and law are infused with moral values. The days of denying the value-laden content of law are long gone. 31 The Court was divided on whether or not judgment in terms of the concept of unfair practice should come into play, even though the parties did not expressly place it before the Constitutional Court. The majority viewed it as a question of law and therefore argued that it should be part of the Court's consideration, while for the minority it was a value judgment that had to be raised by the parties and could therefore not be raised by the Court. The concurring judgement argued that the distinction between questions of law and value judgements is a false dichotomy given the requirements of constitutionalism in South African jurisprudence. I now turn to the concept of practice.

The practice of Aengus Propriety Holdings
The Supreme Court of Appeal relied on the definition of "practice" in the Concise Oxford English Dictionary 32 and rejected the tenants' contention that the termination of their leases contravened the Rental Housing Act based on the argument, amongst others, that the landlord's conduct was an isolated occasion and could therefore not constitute a practice. 33 As already noted, the majority in the Constitutional Court argued that the Rental Housing Act does apply and should be considered as a question of law, which any party is free to raise at any time. 34 The minority differed by supporting the argument of the Appellate Division that the consideration of "unfair practice" constituted a question of value judgment and not a question of law. 35 Maass 36 stresses the importance of the manner in which Judge Cameron formulated the question: "whether the termination was capable of constituting an unfair practice". She argues that the fact that the Court did not ask if the ground for termination amounted to an unfair practice is an indication that the ground for termination is not markedly significant in determining whether termination of the lease amounted to an unfair practice or not. 37 In giving content to the concept of "practice" necessarily repetitive or continuous. 43 In the context of labour law, the term "labour practice" can be interpreted to mean a single act. 44 The majority in Maphango found it problematic that the Supreme Court of Appeal required unfair conduct to be perpetual in order to qualify as a practice and accordingly be challenged under the Rental Housing Act. Judge Cameron finally argues that a limited interpretation of the term "practice" would stifle the Act's aim to give effect to the right of access to adequate housing and would therefore not accord with the Constitution. 45 Part A of Schedule 4 to the Constitution provides that housing is a functional area of concurrent national and provincial competence. The Rental Housing Act made provision for provincial measures to secure its practical operation. From the preamble of the Rental Housing Act: "a need to balance the rights of tenants and landlords and to create mechanisms to protect both tenants and landlords against unfair practices and exploitation"; definition of "unfair practice" ("a practice prescribed as a practice unreasonably prejudicing the rights or interests of a tenant or a landlord") and s 13(5) (rent determinations must be "just and equitable to both tenant and landlord").

Unfair labour practices
26 of the Constitution. 54 Drafted in close proximity as constitutional legislation, these acts have a shared political and legal culture within which they came into existence.
The minority, despite not being prepared to entertain the question of "unfair practice" as a question of law in the case, nonetheless concedes to the similarities between the Labour Relations Act and the Rental Housing Act.
The difference between proving an unfair labour practice in terms of the Labour Relations Act as opposed to discrimination as defined in the Constitution and the The question of unfair labour practices intersected with unfair rental practices in the case of SAFRAWU obo Members / Rainbow Farms 2002 11 BALR 1184 (CCMA). In this case the respondent rented out houses to some of the applicant's members, who were farm workers of the respondent. After not increasing the rent of these houses the respondent proposed to raise the rental of houses which it leased to some of the applicant's members. The applicant claimed that this constituted an unfair labour practice in relation to the provision of benefits. The respondent denied that the rented houses constituted a benefit. The commissioner held that it was unnecessary to determine if the provision of housing was a "benefit" as contemplated in the definition of unfair labour practice, because the union had failed to prove that the company had acted unfairly by proposing to increase the rentals. The company had notified the applicant of its intention to do so, and the matter had been discussed and negotiated. The case was brought and considered in terms of the Labour Relations Act and the Commission found that the provision of houses to employees did not constitute a benefit and that the increase therefore did not constitute an unfair labour practice. Had the dispute been brought in terms of the Rental Housing Act, the increase would have fulfilled the definition of unfair practice in terms of the Rental Housing Act. ILJ 1358 (LAC) for the requirement that the alleged act should be between an employer and an employee. The trade union NEWU referred a dispute to the CCMA, alleging that one of their union officials had committed an unfair labour practice by resigning, not serving the required three month notice period, and commencing employment with another trade union on the day he resigned. According to the CCMA the case was closed due to a lack of jurisdiction as the conduct did not constitute an unfair labour practice. On review the Labour Court ruled that the concept of an unfair labour practice contemplated by Item 2 of Schedule 7 to the Labour Relations Act "does not embrace a labour practice committed by an employee vis-a-vis an employer" and that the CCMA correctly dismissed the dispute.

The practice of everyday life: making do, strategies and tactics
Judge Cameron chooses the word "live" as opposed to "reside" or "stay" to describe In considering what an interpretation of "practice" in the context of spatial justice might entail, I rely on the work of De Certeau. 71 In his two-volume book The Practice of Everyday Life he approaches the idea of a "practice" in a different way from that of the courts in Maphango. 72 According to De Certeau 73 a "practice" can be classified as a "strategy" or as a "tactic". I suggest that the same distinction applies to the practices of landlords and tenants. Place stands central to the distinction.
Strategies assume a specific circumscribed place, but tactics are independent of "proper" places. 74  community. An individual's participation in these actions, albeit only once, then becomes a practice by virtue of its association with that of the broader group, and by extension is then an expression (or subversion) of power. 77 De Certeau's understanding of everyday practices has been criticised from a Marxist perspective for being a "prevailing 'redemptive' model of the productive consumer". 78 Chris Butler, 79 with reference to the work of John Roberts, explains that De Certeau's model bypasses the importance of the everyday for a "critique of culture" and for "the development of radical forms of politics". My focus is therefore not on De Certeau's emphasis on consumption, but rather on his distinction between strategies and tactics and how these practices confirm or subvert power. I relate this distinction to habitat and inhabitance as understood by Lefebvre.
De Certeau's concept of practice is described in terms of art and closely associated with creativity: the "art of using" or "making" or "making do". 80 To explain the formal structure of practices he considers on the one hand certain ways of "making" according to their value for strategy: "functions that make possible (or permit) everyday practices". 81 On the other hand he looks at poetic ways of "making do" for their tactical value: from "familial practices" to "the tactics of the art of cooking". 82 De Certeau also makes a case for the city walker as a voyeur. 83 Walking in the city has its own logic or "rhetoric". 84 The ordinary walkers live on the streets of the city privileged, panoramic view of the city. 85 For him the inhabitants of the city write the urban text and fill the empty space with the life they breathe into it. 86 In contrast to strategies, tactics, according to De Certeau,87 are calculated actions determined by "the absence of a proper place". Strategies seek to establish their own place and are connected to power. They keep the existing power in place and assert power. 88 He calls strategy the "calculus (or the manipulation)" of power relationships, which become possible whenever a subject of will and power can be isolated. This form of making constitutes the manipulation of force made possible by the power of a subject. 89 Strategic rationalisation, in management, begins by distinguishing its "appropriate" place from an "environment", that is, the "place of its own power and will". 90 Tactics on the other hand are determined by the absence of power, 91  The first applicant, who has given her name to the case, Ntombidzodwa Yvonne Maphango, got married in the time that the application was first brought and its hearing in the Consitutional Court. In the citation of the parties, the words (now Mgidlana) appear next to her name. Life went on and she continued to perform the practices of everyday life in spite of the court case.
sense is similar to participating in a trick in a card game: it depends both on the hand that has been dealt and the skill or ability to play cards. 103  In conversations before the adoption of the Constitution and the inclusion of section 26, Geoff Budlender 116 suggested that it may be "more appropriate to talk of the right to shelter and a home, than the right to housing". For him the phrase "right to housing" conjured up images of "long queues of people waiting at a government office to be allocated a matchbox house". 117 He argued that people need the state to provide land and access to clean water with "an administration which encourages rather than obstructs" attempts to build your own house. 118 I will extend this call to a call for inhabitance and an interpretation of the right to housing that acknowledges inhabitance as opposed to habitat.
Lefebvre highlights the rationality in the practices of urban planners and city administrators and argues that this leads to a "bureaucratic society of controlled The user's space is livednot represented (or conceived). When compared with the abstract space of the experts (architects, urbanists, planners), the space of the everyday activities of users is a concrete one, which is to say, subjective. As a space of 'subjects' rather than of calculations, as a representational space, it has an origin, and that origin is childhood, with its hardships, its achievements, and its lacks. 122 Within the spatial practices of tenants and landlords, the tenants' space is lived and the space of the business owner, who is merely interested in higher rental income, is abstract space. The tension between tactics and strategies, inhabitance and habitat, lived and abstract space is aptly captured by the fact that the landlord attempted to justify the evictions by arguing that they were in line with the city's rejuvenation policies. The city of Johannesburg has an extensive fifty-five page Inner City Regeneration Charter. 123 The Maphango case illustrates the tense relation between the rejuvenation of the city and the poor. The Johannesburg policy manages to capture this tension in stating that: Our Inner City will not be a dormitory for the poor, nor an exclusive enclave of loft apartments, galleries and coffee shops. 124

Concluding remarks
The majority decision in the Maphango case presents the possibility of an The recent clamp down on informal traders contradicts this section of the Charter and other parts of the Charter that try to acknowledge that "City efforts have sometimes been seen as localised, fragmented and episodic and have been critiqued as not always sensitive enough to the circumstances of poorer residents and informal businesses". strategy, and inhabitance over habitat. The majority decision situates this distinction between business and home by explaining the historical context of the Rental Housing Act. 125 In the minority judgment, considerations of public policy, fairness and the equitability of the rent to both the landlord and the tenant are more important. Judge Zondo emphasizes the landlord's economic justification for charging market-related rents. Abstract space, habitat and functionalism take preference. It captures an understanding of home in terms of which ownership and market-demands (strategies) turn apartments into business ventures (habitats) and thereby it diminishes the possibility of a home in the city centre of Johannesburg.
The tension between inhabitance and habitat in the Maphango case is illustrated not only in the opposing arguments of the parties but also through the majority and minority decisions of the Constitutional Court. The Constitutional Court did not grapple with this tension, but instead referred the matter to the Rental Housing Tribunal. On the one hand the Consitutional Court can be said to have avoided the problem, but in another sense, referring the matter back to the Housing Tribunal can be read as an "everyday" remedy. My contention is that the majority decision was in support of the tactics of the tenants and encouraged them and other tenants to follow an ordinary, everyday route in addressing rental disputes, namely the procedure available through the Rental Housing Tribunals.
To approach the notion of home from the vantage point of everyday practices as tactics and to acknowledge the political nature of inhabitance are to resist a romanticised, static and nostalgic conception of home. Instead, such an approach inscribes social relationships into the understanding of these spaces. Massey's understanding of spatial practices, place and space supports a dynamic and contested notion of "a place called home". 126 She quotes Bell Hooks: 125 Maphango para 29. The housing shortages after World War I lead to the enactment of the Tenant's Protection Act 7 of 1920, which formed the centre of later rent control legislation. Judge Cameron quotes from Rosenow and Diemont Rents Act 1: the Tenant's Protection Act "provided that as long as a lessee paid the stipulated rent on due date, and performed all other conditions appurtenant to the lease, he or she could not be ejected unless the lessor required the premises for personal accommodation". The lessee was protected regardless of the amount of rent. As long as she paid the rent she was protected even if the rent was unreasonably low.
Home is no longer just one place. It is locations. Home is that place which enables and promotes varied and ever-changing perspectives, a place where one discovers new ways of seeing reality, frontiers and difference. 127 Home need not be a single and stable place or space but could be "home-places" that become equally complex products of "the ever-shifting geography of social relations present and past". 128 The tactics of making do and the strategies of increasing rental income related to how the Lowliebenhof as a home-place was perceived and conceived of. The tenants filed a complaint with the Rental Housing Tribunal before the deadline prescribed by the Constitutional Court, 129 but the case was not followed through. 130 The living spaces in Lowliebenhof are now the homes of other tenants who can afford to practice everyday life there. 127 Hooks Yearning 171. 128 Hooks Yearning 172. 129 In May 2012 a complaint was filed with the Gauteng Rental Housing Tribunal. A copy of that complaint and subsequent activity on the case can be accessed at the website of the Social and Economic Rights Institute of South Africa (SERI 2014 http://www.seri-sa.org). The order in Maphango para 70 read: "Any of the parties may, if so advised, lodge a complaint in terms of section 13 of the Rental Housing Act 50 of 1999 with the Gauteng Rental Housing Tribunal on or before Wednesday 2 May 2012. If a complaint is lodged on or before that date, the parties are granted leave to apply to the Court within fifteen court days of the ruling by the Gauteng Rental Housing Tribunal, or other disposition of the matter, for further directions. If no complaint is lodged on or before that date, the appeal is dismissed with costs." 130 A telephone call to the Tribunal confirmed that the matter was never heard after the filing of the dispute.