Landowners to replace landlords
Changes to the rental housing tribunal should help aggrieved parties
HOW many members or commissioners can be appointed to the provincial Rental Housing Tribunal?
There seems to be confusion between the Rental Housing Act 50 of 1999 (as amended in 2007 and promulgated into law in 2008) and the Rental Housing Amendment Act 35 of 2014. The 2014 amendment was signed into law by former president Jacob Zuma on November 5, 2014.
There is one more step before the Rental Housing Amendment Act 35 of 2014 comes into operation: the announcement of the commencement date through the government gazette. When this happens, the amended law comes into operation and tenants and landowners will have six months before any additional or amended obligations imposed on them become effective.
There are substantial changes that include habitability to ensure the property occupied by a tenant is safe and suitable for living in, with adequate space, protection from the elements and other threats to health, physical safety of the tenant, the tenant’s household and visitors and a structurally sound building.
Training of members or commissioner and staff will become a national mandate to ensure the public receives a better service. “The national government must develop and fund programmes to train members of the Tribunals and officials appointed in terms of section 14(2).”
An aggrieved party would be able to appeal against the Tribunal’s decision to a panel of adjudicators, so the aggrieved party does not have to incur legal costs for a review to the high court.
At present, a party aggrieved by the decision of the tribunal cannot appeal against its ruling. Once the 2014 amendments come into operation, the MEC for Human Settlements is tasked with setting up the panel.
A party will still have the right to bring the tribunal’s proceedings under review, including an appeal adjudicated by the appeals panel.
The amendments include reference to “landowner” as a gender-neutral term, which will replace “landlord”, in keeping with the constitutional mandate to develop the common law. “Landlord” was introduced through Roman-Dutch law in the 17th century, associated with a feudalistic relationship.
There is also the onus on the landowner to ensure the lease is in writing. Under the present act, an oral lease is binding between the parties and must be put into writing at the request of the tenant. The written lease in terms of the 2014 amendment will be enforceable in a tribunal or competent court.
What about the composition of the tribunal? How many members can the MEC appoint to serve on the tribunal? The members will increase to seven members, with not more than two legal practitioners. In addition to the seven members, the MEC for Human Settlements may appoint up to six alternate members.
Two simultaneous hearings in a province can be held. The Tribunal becomes two committees with a minimum of three members or commissioners for each committee. The two simultaneous sittings of the committees do not mean there are two provincial tribunals.
For now, an MEC cannot appoint more than five members and two alternate members, and the Tribunals can sit only as a single committee to hear complaints. There is also no requirement for members to have legal qualifications. It is unlikely that an MEC would appoint more than five members because the act that applies is the Rental Housing Act 50 of 1999 as amended by the Rental Housing Amendment Act 43 of 2007.
Besides, there are other pre-requisites the MEC must comply with.
The intention to appoint new members must be publicised in the media and the government gazette. The names of the candidates selected to serve on the Tribunal must be placed before the provincial human settlements portfolio committee. Once approved, the newly appointed members’ names must be published in the government gazette.
Any person may request information from the MEC’s office regarding the appointment of members. If there is any confusion about applying an amended legislation that is signed into law but not given an operational date, then a recent judgment provides clarity.
Acting Judge Nel in Kondile v Canary and Another 2018 ZAGPPHC 412, refers to the Rental Housing Amendment Act 35 of 2014 and states “but it has not yet come into force, as it has not been promulgated”.
Dr Mohamed is chairperson of the Organisation of Civic Rights and deputy chairperson of the KZN Rental Housing Tribunal. For advice, contact Pretty Gumede or Loshni Naidoo on
031 304 6451 / pretty@ocr.org.za or loshni@ocr.org.za