Disputes mediated in terms of the Rental Housing Act

LANDLORDS and tenants of residential dwellings can settle their disputes in any province in which the rental property is the subject matter.

The tribunal staff is there to assist landlords and tenants in completing a complaint form.

It is through the mediation process or a hearing that parties are given the opportunity to present their case.

It is also important that the relevant parties be cited correctly, with proper contact details.

When parties attend a mediation in terms of the Rental Housing Act 50 of 1999, do they have to be sworn in by the mediator? What happens if a party to a dispute is not satisfied with the mediation process at the rental housing tribunal? Can a landlord or tenant refuse mediation or object to signing a mediation agreement?

Mediation is a form of alternative dispute resolution that allows the complainant and the respondent to look for a compromise to a dispute arising from the tenancy agreement. A member of the tribunal or a third party appointed by the tribunal is required to mediate to bring about a settlement.

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 with a view to resolve the dispute.

Where the tribunal is of the view that the dispute is of such a nature that it cannot be resolved through mediation, or where a mediator has issued a certificate to the effect that the parties are unable to resolve their dispute through mediation, it conducts a hearing and makes such a ruling as it may consider just and fair.

The tribunal is also empowered to make a mediation agreement a ruling.

The tribunal’s ruling is deemed to be an order of a magistrate’s court in terms of the Magistrate’s Courts Act 32 of 1944 and is enforced in terms of that act, but without the right of appeal.

The following procedure ought to be followed in mediation:

• Parties are informed that the dispute lodged by the complainant (landlord or tenant) will be mediated in terms of the Rental Housing Act.

• The mediator informs the parties of the procedure to be followed.

• Parties are required to sign a confidentiality agreement.

• The mediator must be impartial, must explain the mediation process, help and guide parties to arrive at a mutually-acceptable solution.

• The mediation process is voluntary, even though parties are issued a notice by the tribunal to attend.

• Mediation is about the common interests of the parties involved and not the interests of the mediator.

• A mediator cannot coerce a party.

• A mediator must conduct herself or himself professionally.

• Parties have the right to be represented during mediation.

• The solution must be reached through a voluntary settlement with the help of the mediator.

• A failed mediation is referred to the tribunal for a hearing.

• A settlement agreement is signed when the mediation is successful or if there is an agreement on one or more parts of the dispute.

• Parties at mediation do not take an oath or make affirmation because they do not give evidence.

• The mediator becomes privy to the discussions through mediation. It is preferable for the mediator not to be part of the panel that would hear the evidence of the parties.

• Parties have the right to ask for an adjournment to consider proposals.

• The complainant has the right to withdraw the complaint.

• A party has the right to an interpreter and may choose to have a legal representative.

• A party should raise any objection regarding jurisdiction prior to the commencement of the mediation process.

A party to a settlement agreement may decide to challenge it in the high court. In Jackpersad NO & Others v Mitha & Others [2009] JOL 24120 (D), the respondents (tenants) rejected the agreement they signed with their landlord and the mediator.

In a counter claim to the landlord’s eviction application, they argued that the settlement agreement was not valid because the mediator did not draw their attention to the rights they had in terms of the Rent Control Act.

They wanted the court to declare the settlement agreement unenforceable to prevent the landlord from evicting them. However, they failed to disclose to the court their financial circumstances.

Judge Swain concluded that the settlement agreement was valid. 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 / pretty@ocr.org.za or loshni@ocr.org.za