Rental Housing Tribunals and Evictions Will the Tribunals have by xkp52206


									Rental Housing Tribunals and Evictions
Will the Tribunals have jurisdiction regarding evictions?

Sayed Iqbal Mohamed
Chairperson, Organisation of Civic Rights
Member of KwaZulu Natal Rental Housing Tribunal

Should the provincial Rental Housing        (b)    by the insertion after subsection
Tribunals (RHTs) be given powers to                (11) of the following subsection:
evict? Few members of the RHTs
mooted this idea several years ago,                       "(11A) The Tribunal must
leading to a proposal that was eventually                 refer any matter that
rejected by specific exclusion from the                   relates to eviction to a
Rental Housing Amendment Bill (“the                       competent court.”
Bill”) 2007. When the Bill appeared
before parliament’s housing portfolio        (e)   by the addition of the following
committee, there appeared to be an          subsection:
impasse on the eviction issue.
                                                          "(14) The Tribunal does
The Bill will lead to the second                          not have jurisdiction to
generation Rental Housing legislation                     hear applications for
and is therefore the first set of                         eviction orders."
amendments. The Bill addresses certain
implementation problems, especially         Why RHTs cannot be given powers to
enforcement of its rulings that are         grant eviction orders:
deemed to be Magistrate’s Court
judgments. Since the promulgation of        The present composition of the RHTs,
the Rental Housing Act, 1999 (Act No.       except for Western Cape is not
50 of 1999), on 1 August 2000, RHTs         established within the ambit of the
have encountered serious difficulties in    Rental Housing Act 50 of 1999 (“the
giving effect to its rulings.        The    Act”). The rationale of section 9 of the
amendment also clarifies the jurisdiction   Act is to ensure a fair representation of
of RHTs regarding eviction orders. The      interest groups who have expertise in
argument was why the RHTs should not        consumer matters pertaining to rental
be given the powers to grant eviction       housing, management or housing
orders.                                     development matters.
                                            The first challenge would be to re-
Section 5 of the Bill reads:                constitute the Tribunals.
                                            Assuming that representatives from
       Section 13 of the principal Act is   estate agents, consumer, management or
hereby amended—                             housing development matters are
                                            appointed, this does not mean that their
                                            expertise would allow them to evict
tenants. Such expertise is required for a      challenge is to amend the constitution of
balanced contribution by members in            South Africa because the Tribunal is not
arriving at a just and equitable ruling.       a court.

Members,        despite      their     legal   THE TRIBUNAL                IS    NOT       A
backgrounds (law is not a pre-requisite        COURT1.
for an appointment to the Tribunal), do
not have the skills and training to            Section 26 (3) of the Constitution states
perform the task of magistrates and            that no one may be evicted from their
judges. The Act made certain specific          home without an order of court, made
changes to the common law. Members             after considering all the relevant
are required to have a sound knowledge         circumstances. This alone renders all
of not only the Act but also decided           discussion sophistic because of the
cases, common law, evidentiary rules,          constitutionality of the Act.
natural justice; and the application
thereof, in arriving at a decision (ruling).   ARBITRARY EVICTIONS
A perusal of some of the rulings
indicates the dearth of cogent legal           It therefore follows that the Tribunal not
arguments. There are exceptions with           being a court, would be granting
respect to members who are diligent,           arbitrary evictions as Section 26 (3) of
apply the law and use their legal              the Constitution further states that no
experience to further the aims and             legislation    may permit         arbitrary
objectives of the Act.                         evictions.

                                               The exclusion of jurisdiction to grant an
THE SECOND CHALLENGE WOULD                     eviction in the Bill is therefore correct.
                                               Dr. Sayed Iqbal Mohamed is chairperson of
Tribunals presently have to decide             the Organisation of Civic Rights, Member of
whether a notice to vacate is an unfair        the KwaZulu Natal Rental Housing Tribunal
practice. However, the Tribunal does           and Council of Canadian Administrative
not request a municipality to provide
accommodation in a hostile rental              ------------------
market where the demand far exceeds            Mohamed, S. I. ‘Rental Housing Tribunals and
the      supply      of      residential       Evictions: Will the Tribunals have jurisdiction
accommodation.                                 regarding evictions?’ In LexisNexis Property
                                               Law Digest, 11(4): 7-8, December 2007. Durban,
                                               South Africa.
The Act allows for a review. It does not
allow for the ruling to be appealed. The
Tribunal’s eviction order or order not to
grant an eviction would therefore be

Assuming that the Tribunals are properly
constituted, members are trained and all
the expertise are present; the major           1
                                                Judicial System - s166 – Rental Housing
                                               Tribunal is not listed as a court.

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