The Rental Housing Tribunals operate in terms of a law enacted by Parliament, the Rental Housing Act 50 of 1999.
Its members are appointed by provincial MECs (member of the executive in provincial legislature) and support staff are employed to carry out the autonomous mandate of the act. They are not part of the Department of Human Settlements, as is clear from the requirements stipulated in the act.
The Department of Human Settlements, national and provincial, are also landlords and have either lodged complaints against their tenants with the respective provincial tribunals, or were subject to defending their tenants’ complaints.
This is perhaps one of the reasons the tribunals are not part of the department, but an independent body.
Parties before the tribunals can have their dispute mediated, or summons is issued for a hearing. A mediation process requires a confidentiality agreement to be signed by the parties and the mediator. And a successful resolution ends up in a signed mediation agreement.
The mediator is a neutral third party. When a mediator transgresses the line of impartiality, the mediation process fails immediately.
The procedure and process of informing parties of a mediation or a hearing must be just and fair in terms of the common law, the Promotion of Administrative Justice Act 3 of 2000, the Rental Housing Act and its regulations.
“Regulation 6(1)(b) of the Gauteng Procedural Regulations provides for a mediation process by a tribunal member, a member of staff, or a nominee of the tribunal, in which the mediator merely acts as a facilitator in trying to resolve the dispute. The mediator must inform the parties that the decision to be arrived at will be the decision of the parties, and not that of the mediator.” (Judge Cameron in Maphango (now Mgidlana) and Others v Aengus Lifestyle Properties (Pty) Ltd (CCT 57/11) (2012) ZACC 2).
David Willem Jacobs recounts a traumatic experience from the moment he received a summons to appear for mediation the following morning.
The summons was dated May 24, served on the landlord/respondent Jacobs at 5pm on the same day, requiring him to appear for mediation the following morning at 11am in Akasia, Pretoria.
It stated that the complaint related to “problems regarding the lease agreement” lodged on May 24. The copy of the notice to Jacobs and the mediator’s “certificate of outcome of complaint” were forwarded to the Gauteng tribunal with several questions, including the following:
How was it possible to issue summons for mediation when sections 13(3) (d) and (e) and 16 (b) on the notice referred to a hearing?
The “certificate of outcome of complaint” referred to the “Rental Housing Tribunal Act 1999. Where could it be found? (There is no such law.)
How is it that the Department of Human Settlements’ letterhead is used for the tribunal, which is independent of the department?
How can a complainant/ tenant who lodges a complaint against the department be assured that the tribunal would deal with the complaint in a fair and objective manner?
Why was a mediation agreement not signed with the complainant, respondent and the mediator in Jacob’s case?
A “certificate of outcome of complaint”, which appears to be the mediator’s note to the tribunal, was given to the parties. Questions were posed regarding the mediator’s conduct in the matter.
The only response, after an investigation by the Gauteng tribunal, was to the allegations against the mediator.
It was alleged by Jacobs that during the mediation he was not allowed to state his side and was told that he would be imprisoned for two years if he said anything.
Jacobs alleged that the mediator remarked that he could not understand why the landlord was being difficult to a “beautiful lady”.
Comments were also required regarding the relevant laws. The mediator believed that the notice to vacate was not valid because it was on an Avis letterhead.
The mediator also thought he was empowered to state that the landlord’s wife will be the person in charge of the lease, and collecting rentals. But this was mediation and the mediator had to be impartial, fair and objective.
Next week we will look at the official response of the Gauteng tribunal through the mediator.
Article by Sayed Iqbal Mohamed