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- Smoking weed in a rental property is not illegal in South Africa.
- This comes after the use and cultivation of dagga in one’s personal space was decriminalised in the country in 2018.
- According to a legal expert, smoking it is illegal only if the rental unit does not permit smoking.
- For more stories, visit the Tech and Trends homepage.
The use and cultivation of cannabis, or dagga, for personal consumption in South Africa was decriminalised in 2018, allowing people, including tenants, to smoke weed even in their rental properties. However, landlords still do have the last say.
In recent years, several complaints have surfaced both from neighbours and landlords that some tenants are smoking dagga in their rentals. These complaints, particularly from neighbours, put landlords in a tough position, but they can’t immediately chuck the smoker out because another tenant has an issue with it.
According to TPN Credit Bureau legal counsel Rowan Terry, since the use and cultivation of dagga was decriminalised a few years ago, "anybody is entitled to grow, possess or smoke cannabis in the privacy of their own property, including tenants renting a property".
"As such, landlords may not cancel the lease agreement because the tenant is smoking cannabis on the property, for the simple reason that the tenant is not in breach of the agreement," he said.
When it comes to smoking in common areas, such as gardens and one’s outside balcony, it becomes illegal if the body corporate has put in place rules that smoking (of anything) in these areas is prohibited.
"The only time that smoking cannabis is illegal is if the rental unit does not permit smoking," Terry said.
He added:
"In this case, the tenant needs to receive three consecutive written warnings to stop smoking in the unit."
The landlord has the right to cancel the lease agreement only after giving the tenant three consecutive written warnings and giving the tenant notice to vacate.
This is why lease agreements need to clarify whether the rental property is designed as a smoking or a non-smoking unit. If the unit in question was designed to accommodate smoking, the tenants are then obliged to ensure that the smoking will not cause damage to any part of the property.
Landlords can also use the rules for smoking to oblige tenants to restore the property to the pre-smoking condition at the end of the lease period.
Should there be any damages caused by the smoking – discoloured walls or carpets that smell of dagga or cigarette smoke – the tenants will have to take care of the cost associated with fixing the unit, such as repainting, cleaning, or replacing the carpet.
"The bottom line is that landlords need to be proactive and ensure that they have put adequate measures in place to protect their property from every conceivable threat," Terry said.
