Everything you need to know about the new Rental Act

By Sayed Iqbal Mohamed Time of article published Jan 16, 2019

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CONSUMER: How many members or commissioners can be appointed to the provincial Rental Housing Tribunal?

There appears 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 the tribunal’s decision to a panel of adjudicators, so that 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 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.

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 that the lease is in writing. Under the present act, an oral lease is binding between the parties and must be reduced to 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 number 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 only sit as a single committee to hear complaints. There is also no requirement for members to have legal qualifications.

In terms of the present act, section 9 deals with the composition of tribunals as follows:-

(1) The Tribunal consists of not less than three and not more than five members, who are fit and proper persons appointed by the MEC, and must comprise

(a) a chairperson, who is suitably qualified and has the necessary expertise and exposure to rental housing matters;

(b) not less than two and not more than four members, of whom

(i) at least one and not more than two shall be persons with expertise in property management or housing development matters; and

(1A) The MEC must appoint a deputy chairperson from the members referred to in subsection (1)(b)

(2) The chairperson and members of the Tribunal must be appointed only after

(a) the MEC has through the media and by notice in the Gazette invited nominations of persons as candidates for the respective positions on the Tribunal; and

(b) the MEC has consulted with the relevant standing or portfolio committee of the Provincial Legislature which is responsible for housing matters in the province

(3) The MEC may appoint two persons to serve as alternate members of the Tribunal in the absence of any member referred to in paragraph (b) of subsection (1) but such persons must have the relevant expertise contemplated in paragraph (b) of subsection (1).

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.

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”.

Any person may request information from the MEC’s office regarding the appointment of members. A person is entitled to copies of the relevant publications such as the advertisement calling for nominations, the minutes of the provincial human settlements committee’s minutes and the final list of candidates published in the government gazette.

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 / [email protected]g.za or [email protected]

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