Tribunal reduces woman’s rent

Notice to vacate ruled to be unfair practice and set aside

LAST week, 81-year-old Zubeida Hendricks of 43 Goldsmith Road, Salt River, Cape Town was relieved when she emerged victorious with a ruling from the Western Cape Rental Housing Tribunal. The ruling on December 10 against Ebrahim Kaskar, the respondent, declared the eviction notice invalid and found the rental increase to be exorbitant.

While the tribunal did not specifically use the word “exorbitant”, its finding and ultimately the rental amount it determined confirmed the tenant’s claim.

When Hendricks together with six other families challenged their landlord regarding exorbitant rental increases and unlawful notices to vacate in February this year, the prospect of success seemed hazy. The landlord cancelled their leases when they challenged him over two increases in one year, up to 41% and then by 10%. It was the second increase that was the subject matter of the unfair practice dispute lodged with the Tribunal.

The tenants, mainly pensioners and one disabled, vowed to contest their landlord’s eviction notices and turned to Ndifuna Ukwazi (NU) for assistance. NU is an activist organisation and law centre, part of Reclaim the City, a social movement of tenants and workers struggling with access to land and affordable housing. Through its law centre, NU provides free legal services to the poor and destitute families and individuals who cannot afford legal costs.

Attorney Jonathan (Jonty) Cogger of NU was persuasive in his presentation of the tenants’ case.

The Tribunal applied itself diligently and objectively to the evidence and legal principles in arriving at a just and fair decision by balancing the rights and interests of both parties.

When Hendricks refused to pay the second increase of 10%, the landlord issued a notice on January 29, 2018 requiring her to vacate the property by the end of February.

The reason for the termination of the lease was maintenance, upgrades and repairs the landlord intended to carry out, which he could only do if the property was vacant.

The Tribunal found that while the notice threatened 81-year-old Hendricks and her family with eviction, there was no mention that she or her family breached the lease agreement. During his evidence, Kaskar mentioned that he intended to sell the property and therefore required vacant occupation.

The Tribunal was not convinced by the landlord’s reasons for terminating the lease. It found the notice to vacate constituted an unfair practice and ruled that it was invalid.

As for the contention that the second rent increase from R4 400 to R4 800 was exorbitant following a previous increase within a year, the Tribunal had to consider what would be just and equitable.

The landlord argued that the rental was below the market-related rental. He was also not benefiting from the current lease agreement.

Cogger’s argument for a just and equitable rental for both the tenant and landlord focused on:

• The prevailing conditions of supply and demand.

• The need for a realistic return on investment for investors in rental housing.

• Incentives, mechanism, norms and standards introduced by the government.

• The tenant’s personal circumstances and ability to absorb the rental increase.

• The state of maintenance and repairs of the property.

• That a just and equitable rental is a rental that the tenant could reasonably be expected to pay.

The Tribunal found that the current monthly rental of R4 800 was not just and equitable as contemplated in Section 13(5) of the Rental Housing Act.

The following was the ruling of the Tribunal:

“After having considered the evidence and submissions on behalf of the complainant and respondent, the following ruling is made:

1. The notice to vacate dated 29 January 2018 by the respondent’s attorneys, Parker, Holt Incorporated, addressed to the Complainant constitutes an Unfair Practice.

1.1.The notice as per (1) above is invalid and hereby set aside.

2. The monthly rental of R4 800 is hereby declared to be unfair and unjust.

2.1. A monthly rental of R3000 is equitable, fair and just.

2.2. The complainant shall with effect from 1 December 2018 pay the respondent a monthly rental of R3000.

3. No Ruling is made in respect of the maintenance work to the property.”

The Tribunal’s decision to reduce the rent may have been correcting the market distortion that so often skews rental to the point of displacing tenants, even rendering some families homeless. It was a brave decision.

What is long overdue though is for the Rental Housing amendment Act 35 of 2014 that was signed into law four years ago, to become operational.

It is about time that the human settlements minister made the amendments that would benefit both tenants and landlords a reality.