Tribunals face unique challenges during lockdown
Tribunals are operating with a reduced support staff who are burdened with sharing the various line functions and staff duties. This has increased the workload for staff, who might be required to concurrently carry out several tasks.
The support staff interacts with the public and is central to ensuring an effectively functioning tribunal. During the lockdown, they continue to accept unfair practice complaints from tenants and landlords, register each complaint, allocate a file, request further information and documentation, contact the respondents and send each complaint for processing.
On short notice, numerous urgent matters are scheduled for telephonic conference mediation. This means that parties have to be contacted after the complaint is processed to arrange a day and time for a member to mediate a specific complaint or a series of complaints against the respondent.
Due to most matters requiring urgent intervention during the lockdown period, the tribunal is unable to serve its mediation notice on the respondents unless email addresses are available.
The skeleton support staff also have to attend to backlogs, telephonic and electronic queries and complaints, and members on duty who have cases scheduled for mediation as well as dispatch rulings. These are some of the duties that are carried out routinely and almost daily.
Mediation is generally assigned to members of the rental housing tribunal. Mediation, as a form of alternative dispute resolution, allows the complainant and the respondent to look for a compromise to a dispute arising from the tenancy agreement.
Section 13(2) (c) of the Rental Housing Act states that where the tribunal is of the view that there is a dispute, such dispute may be resolved through mediation. The tribunal must appoint a mediator, who may be a member of the tribunal, a member of staff or any person deemed fit and proper by the tribunal, with a view to resolving the dispute.
One of the essential requirements is for the mediator to remain impartial. The mediator does not take sides and conducts her or himself in a professional manner with all the skills required, avoiding any suspicion of bias. The mediator is a third party, neutral without being able to give a ruling or make a decision. Should the mediation fail, the complaint is referred to the tribunal for a hearing.
During lockdown there is no face-to-face contact between the parties and the mediator. Teleconference makes the task of the mediator difficult and sometimes a party interrupts repeatedly or refuses to listen or fails to give the other person an opportunity of presenting her or his side.
The greatest challenge for the mediator during the lockdown is to convince the respondent-landlord that it is unlawful to lock out the tenant or disconnect basic services. The unlawful action is usually the result of the tenant’s failure to pay rental or refusal to move out of the property after the lease has ended or been cancelled.
A disconnection of water and electricity or denying tokens or vouchers for prepaid meters are some of the controversial or contentious issues.
There are instances where the respondent-landlords are octogenarians and their tenants are overbearingly insolent. The landlord whose abusive tenant has not paid rentals for eight months is not interested in the difference between a breach for non-payment on the part of the tenant and criminal sanction that results from a disconnection of services or a lockout. Insulted, humiliated and abused, the landlord is willing to face the consequences of breaking the law rather than be interred on his property with an abusive, non-paying tenant.
Mediation, whether through teleconference in the lockdown situation or the normal in person, is of no value.
What makes mediation even more difficult is an attorney who, as an officer of the court, advises his or her landlord-client to break the law. In issuing a notice of cancellation of the lease, an attorney cannot state that his or her client will disconnect the services or lock out the tenant.
It would appear that the attorney is a party to the intended unlawful action and in the event such an action is carried out, then the attorney, if found guilty, may be suspended or prevented from practising.
That is precisely what happened recently during the lockdown where an attorney advised the landlord to deprive his tenant of the electricity supply because the tenant failed to vacate before the lockdown was implemented.
Mediating a breach of agreement a landlord believes he and the tenant validly concluded can be tricky if the agreement is unlawful.
A landlord who threatened to lock his tenant out if she failed to settle her arrear rentals within seven days cannot consider her agreement to his illegal action binding. The tenant, despite agreeing to this via WhatsApp, broke the locks and entered the dwelling after the landlord changed the locks to the property. The landlord’s recourse is to lodge a complaint with the tribunal to recover the arrear rentals or to start the eviction process through the court, where he can also claim the outstanding rentals at the same time.
Tribunals are facing a tough time during the lockdown to assist parties to find a compromise when tenants are not in a position to pay rentals nor to vacate the property, and landlords who rely on the rental income to survive resort to unlawful measures to force payments or carry out unlawful evictions.
Dr Sayed Iqbal 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.