Consumer / 31 July 2019, 06:00am / sayed iqbal mohamed
RENTAL WATCH: When a complaint is lodged with the Rental Housing Tribunal in terms of Section 13 of the Rental Housing Act 50 of 1999, the tribunal through its administrative process needs to establish if there is a dispute relating to an unfair practice. Thereafter, the respondent and complainant are informed of mediation or a hearing.
If it is a hearing, parties and witnesses present their sides by giving evidence under oath or by making an affirmation. At the end of the hearing, the tribunal is required to “make such a ruling as it may consider just and fair in the circumstances”.
A ruling of the tribunal in terms of Section 13 (13) is not only the same as a magistrate’s court judgment, but it is also enforced in terms of the Magistrate’s Courts Act (Act No.32 of 1944). Unlike magistrate’s court judgments though, a tribunal’s ruling cannot be appealed in the high court.
Section 13(4)(c) states regarding the tribunal’s powers: make any other ruling that is just and fair to terminate any unfair practice, including, without detracting from the generality of the aforegoing, a ruling to discontinue -
(ii) unacceptable living conditions;
(iii) exploitative rentals; or
(iv) lack of maintenance.
The tribunal is under statutory duty to terminate an unfair practice since the Rental Housing Act is an Act of Parliament. It is a legislation that “is enacted in pursuance of the State’s constitutional mandate” (Kendall Property Investments v Rutgers 4 All SA 61(C)).
A ruling or judgment must provide relief to the aggrieved party, the reason for lodging a complaint and parties ought to know what’s expected of them. The ruling or judgment must be just and equitable and must be decisive.
Peering under the robe, one might also find the subjective nature of the judicial officer’s reasoning that is interwoven with the interpretation of the relevant law. Chief Justice Mogoeng Mogoeng’s judgment in two cases where women were victims of sexual abuse were decisive, but it was alleged these judgments were seriously impaired by being unjust and unfair.
What judges, magistrates and commissioners of tribunals pronounce may reflect their knowledge of the law; their commitment to dispensing matters with fairness and with moral and legal integrity. The conclusion and decision contained in an order, judgment or ruling will be sound and objective, and without fear, favour or ineptitude.
Tenancy matters that need to be resolved by those who are appointed to bodies whose decisions are significant, cannot escape public scrutiny. Let us take the case of tenants who were turned away from the tribunal, not being able to lodge a complaint. Their complaint against their new landlord relates to deplorable living conditions and unfair rental increases. Almost two years earlier, they lodged a similar complaint and the ruling or judgment failed to terminate the unfair practice.
The unanimous ruling of the tribunal was that the tenants as respondents led evidence that the property contained approximately 18 rooms where each tenant paid R220, including lights and water, to the complainant’s family who were the landlords. The ruling continued:-
“The tenants were requested in February to pay R300 per month as according to them the landlord had R6000 water bill to pay. The tenants refused to pay the new rental as they complained that the landlord refused to repair the roofs that were leaking.
“The landlord advised that the tenants were not paying any rental at all since April. The landlord also advised that the tenants were supposed to be attending to the renovations themselves. The landlord also did not have the money to repair. The report of the inspector then revealed that the roof was in a bad condition and according to the report the property was inhabitable.
“Since the parties were unable to agree on either a rental increase or the repairs the tribunal in relying on the report rules the property is inhabitable.”
This was a hearing not a mediation. It is during mediation that parties are given the opportunity to agree or reach a compromise, failing which the matter is referred for a hearing.
Hearings result in a decisive ruling based on evidence that would investigate, for instance, proof of the actual electricity and water charges, other expenses and income. There are usually manifold enquiries that would include circumstantial, legal and evidential issues.
The property dealt with by the tribunal is still owned by the municipality as far as the municipal records show and therefore no rates are payable by the landlord. A deeds search show a different owner. The landlord at the time of the above hearing was a councillor, his son took control of the leases after his death and the tenants continue to live in inhabitable conditions with a rental increase looming.
Two tenants were threatened with a lockout after the tribunal’s ruling and together with the other tenants were turned away from the tribunal from lodging complaints, and bearing in mind that the tribunal has jurisdiction to deal with disputes arising from all residential leases, the tenants were left to the landlord’s “mercy”.
The tribunal’s powers exclude the courts as confirmed by the constitutional court in the Maphango case (Maphango (now Mgidlana) & others v Aengus Lifestyle Properties (Pty) LTD (inner city resources centre as amicus curiae)  JOL 28529 (CC)). while it is precluded from granting an eviction order since it is not a court as defined in the country’s constitution, it has to accept unfair practice complaints.
Dr Sayed Iqbal Mohamed is the chairperson of the organisation of civic rights and deputy chairperson of the KZN rental housing tribunal. For advice, contact Pretty Gumede or Loshni Naidoo at 031 304 6451, email [email protected] or [email protected]