The Rental Housing Amendment Act 35 of 2014 (herein after referred to as the “Amendment Act) is the recent amendment to the Rental Housing Act 50 of 1999.
It would come to question as to what brought to the amendment of the Rental Housing Act 50 of 1999 and what are the material changes that have been introduced by the Amendment Act.
In a Landlord (this term has been substituted to Landowner in the Amendment Act) and Tenant relationship, the Tenant is often in a vulnerable position. The Tenant in need of housing is often compelled to accept the terms and conditions set by the Landlord in the lease agreement.
The Landlord can set the terms of the lease agreement without any measurement in law of their reasonableness and fairness to the Tenant.
Despite the availability of The Rental Housing Act 50 of 1999, Common law and Consumer Protection Act in regulating the Landlord and tenant relationship, there were still a number of shortfalls in regulating the relationship and a number of disputes which could not be resolved in fairness and in the interest of justice. The introduction of the Amendment Act seeks to cater for these shortfalls in all fairness to the Landlord and Tenant.
The importance of introducing the Amendment Act was made in mindful of Section 25 (1) and Section 26 (1)-(3) of the Constitution of the Republic of South Africa (The Constitution).
Section 26 of the Constitution provides;
- “Everyone has the right to have access to adequate housing’”;
- “The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right”;
- “No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions”
The Amendment Act has introduced provisions that sought to promote social justice. This has been achieved by requiring the MEC’s to establish Rental Housing Tribunals and such tribunals be given the necessary powers to resolve disputes and pass orders (Section 13(12A) and have appeal procedures for an aggrieved party (Section 17A). Before the amendment, the Rental Housing Act has been criticized for being ‘toothless’, this was based on its incapability to enforce its rulings.
The MEC will further be required to ensure that all Municipalities have Rental Housing Information Offices. This ensures accessibility of the law to the public.
Prior to the Amendment Act, it was not a formality for a lease agreement to be reduced to writing however the Amendment Act requires a lease agreement to be reduced to writing, failing which no valid lease agreement exists (Section 8(1)(a)). This is mainly to overcome the number of disputes based on oral agreements which are difficult to prove.
Another major introduction to the Amendment Act is section 4B which requires the landlord to invest the deposit amount into an interest-bearing account. The deposit plus accrued interest will be refunded to the tenant upon termination of the lease, after having considered any damages caused by the tenant to the property. The tenant is entitled to request for information on the deposit and interest accruing during the course of the lease.
The Amendment Act has created new offences which are punishable by law. Landlords may face either imprisonment or a fine for failing to comply with the following but not limited to;
- Providing a written lease agreement to the tenant’;
- Providing a habitable dwelling and maintaining the premises;
- Refunding the security deposit with interest;
- Cutting the utilities of the premises; e.g electricity or water
- Denying the tenant access to the premises e.g lockouts
To date, the Amendment Act has not yet come into force. It was assented by the President of the Republic of South Africa in November 2014 but has not been promulgated. This means it is not law which one can rely on and this was demonstrated in the case of Kondile v Canary (29896/2013) [2018] ZAGPHC 412 where the Applicant made an application to have a Rental Housing Tribunal ruling rescinded by the High Court. Judge Nel made confirmation that the Amendment Act is not yet in operation.
It is important that everyone takes interest in the Act because once the Amendment Act has been promulgated, the Landlord will be given an opportunity of six month from date of promulgation to ensure that their lease agreement with their tenant do conform with the Amendment Act.
