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Wednesday Jun 27, 2012

Rental housing bill shelved over appeals system

The Rental Housing Amendment Bill was withdrawn at the end of May. Members of all political parties on the human settlements portfolio committee had worked enthusiastically on the bill since its introduction in September last year.

While the bill originally contained proposals, such as the granting of eviction powers, that were unconstitutional, public participation ensured a thorough redrafting of the bill, rendering it constitutionally compliant.

The second draft also benefited from public participation this year, and committee members were confident their work was done after several deliberations resulted in the fine-tuning of a number of changes.

The bill sought to introduce changes to offer more protection to poor and vulnerable tenants, while at the same time affording security to landlords.

Minister of Human Settlements Tokyo Sexwale did not object to the changes during the meetings held by the portfolio committee regarding the bill.

In fact, public input and the vigilance of portfolio committee members gave more substance to protections for the poor and resulted in the removal of unconstitutional provisions.

The only amendment that proved troublesome was finding a coherent mechanism for appealing against the decisions of rental housing tribunals.

The appeal or review of a tribunal's ruling to a body other than the courts would mean greater access to justice, which is otherwise denied owing to high legal costs.

Then, without prior warning or having raised concerns during the portfolio committee's intensive engagement with the bill, Sexwale withdrew it.

He sent the following notice to the portfolio committee on May 30 this year: "The bill makes certain propositions which may become impossible for the department to implement and enforce in the light of judicial activism that is being displayed by our courts.

"The bill seeks to introduce an appeal mechanism which will contribute to the disinterest and disinvestment into the rental housing market, as parties to a rental housing dispute will be expected to undergo a protracted dispute resolution mechanism, thereby defeating the main purpose of the Rental Housing Act, which is to provide a simple and speedy resolution process."

The portfolio committee members from all political parties, including the ANC, were furious.

There was unanimous support for the bill in the many deliberations on it.

Incensed, the committee proposed to have the bill reintroduced to the National Assembly as a committee bill.

This proposal received unanimous support.

The parliamentary law adviser, Charmaine van der Merwe, an advocate, said: "The minister had the right to withdraw the bill before the second reading. However, there was nothing to stop the committee from initiating its own bill because the bill had been withdrawn.

"The bill would be redrafted, the committee would have to conduct public consultation, because it would be a completely new bill with a new number, but the only advantage was that the bill would not need to be redrafted."

The minister is correct in expressing his reservations about the appeal mechanism envisaged by members.

Such a mechanism would be in conflict with the very essence and spirit of the Rental Housing Act to provide a speedy and effective resolution of disputes.

However, with all due respect, Sexwale should note the following:

The bill could still be passed without the inclusion of the appeals procedure, which could be sorted out later.

Decisions of the tribunals are of poor quality, often prejudicing the rights of tenants and landlords, even where the tribunal comprises legal practitioners.

There are many examples of the rulings that leave much to be desired legally.

Decisions of the tribunals, which have the status of magistrate's court judgments, can be challenged on appeal in the high court.

The committee sought a cost-effective mechanism for an "appeal" procedure. However, this proposition was not properly thought through.

Complaints are required to be resolved within three months. There are instances where parties have waited for more than a year - in some instances, for up to two years - to have their complaints resolved.

Tribunal staff act as prosecutors, juries and judges, preventing certain complaints from being lodged.

It is the sitting of the tribunal that gives it the competency to pronounce on the merits of complaints of unfair practice.

A ruling can be reviewed by the high court.

The aggrieved party must show that there was procedural unfairness, bias on the part of tribunal members, and so on, but he/she cannot appeal against the merits of the ruling.

The minister must sign the unfair and procedural regulations into law, which he has been required to do since 2009.

This has not happened, and it would appear the tribunals are functioning without the necessary powers.

In spite of almost a decade of complaints to the human settlements ministry, tribunals have no powers to enforce their rulings, save for threatening imprisonment or offering some inducement to comply.

Staff and members of the tribunals do not have adequate training and do not have the requisite knowledge for speedy and just resolutions of disputes.

The independence of the tribunals is compromised by the Department of Human Settlements, which considers the tribunals to be part of its executive function, rather than independent forums. is the chairman of the Organisation of Civic Rights.

Sayed Iqbal Mohamed
Daily News

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