Tribunals still largely toothless
Will Tokyo Sexwale, the Minister of Human Settlements, find the time to make the provincial Rental Housing Tribunals efficient? Thus far, he has failed.
His predecessors, Lindiwe Nonceba Sisulu and Sankie Mthembi-Mahanyele, also failed.
Tribunals are supposed to be a cost-effective means of resolving conflicts between landlords and tenants.
A party, whether a tenant or a landlord, can look forward to a speedy resolution of a dispute, waiting at most up to three months, compared with several years if the matter were to go to court.
Unfair practices such as unpaid rentals, nuisance tenants, illegal lockouts and disconnections of water and electricity services are on the rise.
Our courts are burdened with a backlog of cases, and the tribunals, which have special powers to handle tenant-landlord matters, save for eviction, ought to provide a solution.
In the past five weeks, most tenant victims of quick-fix measures by landlords are still locked out of their dwellings or are living without basic municipal services.
Some landlords, whose tenants have not paid their rent, are still waiting for cases to be heard by the tribunals.
Victimised tenants are being turned away by the tribunals and referred to Legal Aid and other bodies.
Two weeks ago, a tenant was locked out of her dwelling and received no help from the KwaZulu-Natal tribunal. This was in spite of an explicit provision in the Rental Housing Act that empowers the tribunal to take swift action.
It is a criminal offence to resort to self-help or quick-fix solutions in terms of Section 16 (Offences and Penalties) of the Act. Section 16(hA) states that any person who unlawfully locks out a tenant or shuts off the utilities to the rental housing property, or contravenes any regulation, will be guilty of an offence and liable on conviction to a fine or imprisonment not exceeding two years, or to both such fine and imprisonment.
The tribunal referred the tenant to Legal Aid, but she was not able to meet their requirements and was sent to a newly formed non-governmental legal body. After a week, she was told they could not help her.
A simple letter informing the landlord that his actions are unlawful, and that should he fail to reinstate the tenant immediately, urgent court action will be instituted, usually gets an obstinate, aggressive landlord or landlady to give in.
The drafting of the application papers, setting the matter down and obtaining an order from the court, can take up to a few days.
The tribunals are given powers to hear such urgent matters, but in all fairness to its members, commissioners and support staff, there is no means to enforce such an order.
In fact, tribunals cannot enforce their orders because, more than a decade on, the ministry of human settlements has failed to implement enforcement mechanisms.
While some unscrupulous tenants and landlords have used their “friends” in the SAPS to get results, the police do not get involved in civil disputes.
However, in recent years disciplined officers have taken a no-nonsense approach and have accompanied tenants to their landlords and agents, asking for proof of a court order and the writ issued to the sheriff authorising an eviction, or proof of a municipal disconnection notice.
Given the limited resources of the police and the challenges they face, they are beginning to play a proactive role in ensuring landlords do not break the law.
The Berea, Durban Central, Yusuf Dadoo (Broad) Street, Point and Mayville police stations have made many referrals to the Organisation of Civic Rights and have themselves intervened, treading a thin line between what is civil and criminal. They deserve to be recognised for their efforts in ensuring the law is not violated.
The general rule is that no one is entitled to take the law into his or her own hands. That is the essence of an urgent application, commonly known as a spoliation application.
Self-help can be a costly exercise for the landlord, who may end up paying, at the very least, the legal costs of the urgent application (spoliation), or being charged with trespassing.
The SAPS must be commended for its role because, through its intervention, landlords are saved from paying legal costs, victimised tenants are reinstated in their dwellings, and those who have had their services disconnected have had them restored.
* Dr Sayed Iqbal Mohamed is the Chairman, Organisation of Civic Rights.
For tenants’ rights advice, contact Loshni Naidoo or Pretty Gumede at 031 304 6451.