BACKGROUND

The Rental Housing Act 50 of 1999 applies to all leases of dwellings, used for the purpose of residential housing, concluded between landlords and tenants. The Rental Housing Act  imposes an obligation on government to promote ‘a stable and growing market that progressively meets the latent demand for affordable rental housing among persons historically disadvantaged by unfair discrimination and poor persons …’.

The Act defined key provisions that govern the conduct and rights afforded to landlords and tenants. The Act repealed the Rent Control Act 80 of 1976 and introduced extensive provisions dealing with the relationship between landlords and tenants. In particular, the Act provided for the introduction of a rental housing tribunal in each province, to hear and consider complaints lodged by tenants or landlords. The tribunals may, if an ‘unfair practice’ is found to exist, make appropriate rulings. The term ‘unfair practice’ is defined as a practice unreasonably prejudicing the rights or interests of a tenant or landlord.

Unfair practice regulations are prescribed by the MEC of a province responsible for housing matters. At time of presenting this petition, the only provinces that have promulgated such regulations are Gauteng, Western Cape, Kwazulu-Natal and Mpumalanga.

As prescribed by the Act, a landlord has the right to recover unpaid rental after obtaining a court order or where a rental housing tribunal ruling applies. While the act defines non-payment of rent as an offence, it is only in Gauteng that the act of non-payment also constitutes an unfair practice. The Act also expressly, and justly, precludes the landlord from resorting to self-help schemes in an effort to recover unpaid rental.

The Act defines that after legal termination of a lease, the Landlord is entitled to repossess the premises. However, in cases where the Tenant refuses to give up possession in a voluntary manner, the landlord may not resort to self-help schemes. The Gauteng Unfair Practice Regulations stipulate that if the Tenant breaches the lease and the Landlord wishes to deprive the Tenant of access or full use of the dwelling, the Landlord must:

• Give the tenant seven days’ notice in which to remedy the breach, and
• obtain a Court order to evict the lessee.

However, it should be noted that such notice is not required if the lessee is in default of rental and remains in default for a period of seven days of the due date.

It follows that eviction proceedings are defined. At common law a landlord seeking an eviction after termination of lease merely has to prove:

1. he is the rightful owner
2. the tenant has no right to continue possession.

This principle still applies within the Act. However, is limited by the Constitution, statutory law, a contractual provision or some other basis.

Section 26(3) of the Constitution states that no person may be evicted from their home without a Court Order made after considering all relevant circumstances. However, it must be noted that, this provision is only applicable in cases where a Landlord wishes to evict a Tenant following cancellation of a lease by the Landlord and that circumstances are only relevant to this section if they are legally relevant. Furthermore, it should be noted that the personal circumstances of the Tenant, should an eviction order be granted, are not considered as relevant circumstances.

The constitution does not confer on any court the discretion to refuse an eviction order where the owner would otherwise be entitled to such order. The constitution confers that, except in cases where specific legislation applies, it is the right of the owner to be granted an ejectment order against a person who has no business interfering with the owner’s possession of his property.

It follows that a person who remains in possession of a residential premises, where a lease under the Rental Housing Act 50 of 1999, has been lawfully terminated or cancelled, is an ‘unlawful occupier’ as contemplated in the Prevention of Illegal Eviction from the Unlawful Occupation of Land Act 19 of 1998 and that procedures laid down in the Act must be followed before an eviction order can be granted.

However, under the Prevention of Illegal Eviction from the Unlawful Occupation of Land Act the Court will not entertain a natural person who was formerly a tenant, whose lease agreement was legally terminated, to continue in occupation of premises in a parasitic fashion under the guise of protection afforded by the Act.

PROBLEM

It stands to reason that property owners who wish to rent their property will encounter situations where tenants, for no reason other than inability, do not pay their rentals.

In such cases the Rental Housing Act defines that the Landlord must give the Tenant seven days’ notice in which to remedy the breach. In many cases the Tenant does remedy the breach, yet there are many cases where the Tenant does not and following the seven day period refuses to voluntarily vacate the premises.

At time of writing, the best course of action is for the Landlord to contact the Rental Housing Tribunal and lodge a complaint on the basis that the Tenant has committed an offense and that an ‘unfair practice’ exists. At which point the Rental Housing Tribunal informs the Landlord to issue an additional 30-days notice to the Tenant before taking any further action.

We believe that instructing the Landlord to issue an additional 30-days notice is not ‘just and equitable’ and infringes on the Landlords Constitutional rights to repossess premises in cases where the Rental Housing Act applies and the lease has been lawfully terminated and is not subject to any mitigating circumstances based in related legislation, regulation or other law.

RECOMENDATIONS

We are of the opinion that subject to receipt of 7-days notice and continuing reluctance to relinquish the premises in question, that a Tenant is no longer a ‘Tenant’ as defined in the Rental Housing Act. As such a Tenant in this position can no longer be afforded protection under the Rental Housing Act and the Tenants status is changed from one of ‘Tenant’ to ‘Unlawful Occupier’ as contemplated in the Prevention of Illegal Eviction from the Unlawful Occupation of Land Act 19 of 1998.

As such a Landlord wishing to evict a Tenant from possession of a property should immediately be entitled to obtain an ejectment order from a Court or a Rental Housing Tribunal. Furthermore, the Landlord should be entitled to discontinue provision of utility and other municipal services with immediate effect. These rights and actions should be afforded to the Landlord in order to protect the Landlord from subsequent costs and to establish a position where the situation is ‘just and equitable’ for the Landlord who is clearly in the position of having an ‘unlawful occupier’ in possession of a premises.

In interaction with legal counsel and members of the Rental Housing Tribunal, for both Gauteng and the Western Cape, it is apparent that nobody is able to categorically define the point at which a Tenant passed from status as a ‘Tenant’ to that of ‘Unlawful’ occupier. It is further obvious that the Rental Housing Tribunals are acting outside of the Landlords Constitutional rights to repossess premises, where a lease has been lawfully terminated, by instructing Landlords to issue a further 30-days notice to the Tenant, instead of proceeding with an immediate ejectment order.

In interaction with the Rental Housing Tribunal, no member of either province was able to substantiate in the Act or Regulations that a Landlord has by law to provide the additional 30-days grace. Despite this Tribunals continue with this practice.

On requesting a copy of the regulations pertaining to the said provinces, neither was able to furbish a copy of the regulations by which they are a ledge to be following. Instead they refer to an ‘interpretation of the Act and Regulations, which is by no means defined as to whose interpretation it is and cannot be defined as Act or Regulation.

We therefore wish to impress upon the Minister of Housing that changes to Rental Housing Act 50 of 1999 and proposed amendments 30 and 30B reflect as follows:

• a clear definition as to when a person’s status as ‘Tenant’ becomes that of ‘Unlawful Occupier’ must be defined and interpreted.
• subject to a person’s status as ‘Tenant’ being defined as ‘Unlawful Occupier’ by a Court or Rental Housing Tribunal. That the Landlord is entitled to discontinue providing utility and municipal services in order to reduces losses.
• subject to the above, that a Landlord is then entitled to an immediate eviction order against the Tenant, to be served by the Landlord or a Sherriff of the Court.
• and that, in the event of outstanding rentals, the Landlord or the Sherrif in possession of a Court Order or a Tribunal ruling may remove the ‘unlawful occupiers’ possessions, present on the property at time of eviction, to safe keeping for public auction in order to recoup outstanding amounts.

Further to the above we wish that:

• The Rental Housing Tribunal ceases, with immediate effect, the practice of instructing Landlords to issue a further 30-days notice and starts to implement the Landlords Constitutional rights in the context of the circumstances outline here.
• The Rental Housing Tribunal immediately engage a tenant or a landlord against whom there is a lodged complaint. Such communication shall be made telephonically and afford the other party the opportunity of a defense upon which the Tribunal may start to build a case and determine a resolution.
• That all Provinces are made to promulgate uniform legislation on a National-basis in order that consistent interpretation of terms, legislation and processes may be applied under the National Policy Framework on Rental Housing.

Further to the above, it is our opinion that since the Constitutional rights of Landlords are being infringed upon by current interpretation and  implementation of the Act and Regulations by the Rental Housing Tribunal under the auspice of the Minister of Housing, that Landords who experience losses do have a case for reparation against the Minister of Housing.

We naturally wish to restore a just and equitable balance and respectfully urge the Minister of Housing to implement changes to the legislation that reflect and promote a just and equitable situation for both Landlords and Tenants in accordance with the recommendations made herein.

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