RENTAL WATCH: Rental housing and the law

By Dr Sayed Iqbal Mohamed Time of article published Mar 13, 2019

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CONSUMER:  THE Promotion of Administrative Justice Act 3 of 2000 (Paja) relates to the conduct of government officials and holds all tiers of government to account. What is the relevance of Paja to the provincial rental housing tribunals?

A party cannot appeal the decision or judgment of the small claims court (SCC) and the rental housing tribunal (tribunal). An aggrieved party may file an application with the high court to review the proceedings. The grounds for review may relate to the absence of jurisdiction of the SCC or the tribunal.

In other words, it does not have the authority to make an order in disputes such as criminal matters, civil claims that exceed the maximum amount allowed or the place where the contract took place, and where related damages claims fall outside the district or province of the SCC or tribunal.

Review may also be for the following reasons:

Conduct of the members, whether they were biased or acted prejudicially or maliciously against a party.

Corruption on the part of the commissioner.

Gross irregularity with regard to the proceedings.

Review procedures are concerned with the above, while an appeal deals with the case being decided accurately on the facts and law (merits or value of a case).

A tenant or landlord can approach the high court to review the proceedings of the tribunal in terms of section 17 of the Rental Housing Act. When taking the matter on review, a party will have to rely on other legislation as well to direct the court's attention to the reasons for the review sought.

This legislation is Paja. It is a law that affects all tiers of government in the performance of its administrative actions. It informs government officials and members how to conduct themselves in exercising their duties, and requires them to give reasons for their actions and provide remedies, including the right to review or appeal a decision, where allowed.

Judge Dennis Davis, in his judgment, did not address the applicability of Paja since this was not challenged. In Perryvale Investments (Pty) Ltd v Patel NO and Another 2008 ZAWCHC 224, the landlord took the decision of the Western Cape Rental Housing Tribunal on review. The high court’s review included setting aside the tribunal’s ruling of 100% rental remission for the period September 2004 until July 2005 and the decision to prosecute the landlord.

Judge Hughes-Madondo set aside the decision of the KwaZulu-Natal Rental Housing Tribunal and directed it to conduct a new hearing because its entire hearing was procedurally unfair. This was the case of eThekwini Municipality against the KwaZulu- Natal Rental Housing Tribunal, eThekwini Municipality v KwaZulu-Natal Rental Housing Tribunal 2010 JDR 1432 (KZD).

The municipality brought the review application in terms of section 6 of Paja in that, in terms of section 6 (c), there was procedural unfairness; section 6 (e) (iii) relevant considerations were not taken into account; section 6 (* ) the decision taken by the first respondent was so unreasonable that no reasonable person could have taken same; and section 6(e) (vi) the decision was arbitrary or capricious.

No objection was raised by the defendants, including the tribunal regarding the reliance on Paja. Judge Hughes-Madondo reviewed the case accordingly and provided an excellent judgment. Did Paja apply? This was not challenged and the relevance of Paja was therefore untested.

One may argue that the tribunal is not a government body but a court, and this would exclude a party from referring to Paja. The Constitution provides a comprehensive definition of an “organ of state”:

(a) Any department of state or administration in the national, provincial or local sphere of government.

(b) Any other functionary or institution:

(i) Exercising a power or performing a function in terms of the Constitution or a provincial constitution; or

(ii) Exercising a public power or performing a public function in terms of any legislation, but that does not include a court or a judicial officer.

The relevance or applicability of Paja was taken head-on in Young Ming Shan CC v Chagan NO and Others 2015 ZAGPJHC 25. Judge Philip Coppin was thorough and methodical in laying out his arguments for Paja’s direct relevance to a review of the tribunal’s ruling. He examined “administrative action” in reference to section 33 of the Constitution and argued that while the tribunal conducted itself in an adjudicative manner, its proceedings are expressly made reviewable but its rulings are not appealable.

The tribunal does not have a formal system of binding precedent as courts do - that is, it does not have to follow its own decisions or those of other tribunals. As for the tenure of the officers presiding in the tribunal, it is different from that of judges.

According to Coppin, the tribunal is a state organ exercising public power and as such the tribunal must be held to the standards espoused by the Constitution in Section 33, that is, lawfulness, reasonableness and procedural fairness.

“Since Paja is the legislation contemplated to give effect to the rights contemplated in section 33 of the Constitution, it is applicable to the proceedings of the Rental Tribunal.”

It can be argued that where a tribunal performs a quasi-judicial function, its decision too may be considered an administrative action and consequently affected by Paja, unless there is inherent provision for review in its legislation.

The tribunal is not a court, although its ruling is a judgment of a magistrate's court. This was the main reason that the power to grant an eviction order could not be given to the tribunal, since only courts have the authority to do so in terms of the constitution.

Dr Mohamed is the chairperson of the Organisation of Civic Rights and deputy chairperson of the KZN Rental Housing Tribunal. He writes in his personal capacity. For advice, contact Pretty Gumede or Loshni Naidoo at 0313046451 / [email protected] or [email protected]

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