RESIDENTIAL LANDLORD AND TENANT ACT 3 OF 1997

[ASSENTED TO 15 APRIL 1997]
[DATE OF COMMENCEMENT: 17 APRIL 1997]

(English text signed by the Premier)

ACT

To provide for the regulation of landlord tenant relations in order to promote stability in the residential rental sector in the province; to lay down general principles governing conflict resolution in the residential rental sector; to provide for the investigation, mediation and determination of disputes between landlords and tenants of formal and informal private and public residential rental dwelling units in order to protect landlords and tenants against unfair and unlawful practices, and for that purpose to establish a Landlord Tenant Dispute Resolution Board; to define the functions, powers and duties of the Board; to provide for the education of landlords and tenants in regard to their rights and obligations, and for that purpose to make provision for the establishment of Landlord Tenant Information Offices; to define the functions and duties of such offices; and to provide for matters connected therewith.

WHEREAS the State has an obligation towards its citizens to prevent the deterioration of living environments and to establish stable conditions within which healthy communities can be established;

WHEREAS there is a need to discourage unfair practices in the renting and leasing of residential rental dwelling units by providing certainty with regard to the rights and obligations of landlords and tenants;

WHEREAS there is a need to introduce mechanisms through which conflicts between landlords and tenants could be resolved and which would contribute to the stabilization and development of inner city areas;

WHEREAS there is a need to balance the rights of landlords and tenants to protect landlords and tenants alike against unfair practices:

1 Definitions

In this Act, unless the context otherwise indicates -

"Board" means the Landlord Tenant Dispute Resolution Board established under section 2;

"dwelling" means any room or place, whether privately or publicly owned, which is occupied as a human habitation, but does not include:

- any hotel or dub licensed in terms of any law relating to the control and supply of any liquor; or

- any boarding house or other institution for boarders or lodgers where not fewer than ten bedrooms are available for letting to lodgers;

"landlord" means the owner, lessor, or sublessor of a residential rental dwelling unit, or a person acting or purporting to act as the agent of any such person;

"MEC" means the Member of the Executive Council of the Province responsible for Housing;

"office" means a Landlord Tenant Information Office established under section 10;

"prescribed" means prescribed by regulation by the MEC in the Provincial Gazette;

"staff" means inspector, technical advisor, or any employee or officer appointed or seconded to the Board in terms of the laws governing public service;

"tenant" means a person having the right under a rental agreement to occupy a residential rental dwelling unit, irrespective of whether such an agreement has been reduced to writing or not;

"this Act" includes any regulations prescribed under the Act;

"unfair practice" means any practice or action or omission of a landlord or tenant, which unreasonably prejudices the rights or interests of any tenant or landlord, as the case may be, with regard to a residential rental dwelling unit, or which may have that effect, as defined in the regulations prescribed under section 9.

2 Establishment of Landlord Tenant Dispute Resolution Board

There is hereby established within the Department of Housing and Land Affairs of the Province of Gauteng a Board to be known as the Landlord Tenant Dispute Resolution Board.

3 Functions of the Board

The Landlord Tenant Dispute Resolution Board shall fulfil the duties imposed upon it in terms of this Act, and shall do all things necessary to ensure that the objectives of this Act shall be achieved.

4 Composition of the Board

(1) The Board shall consist of not less than three and not more than five members, and shall comprise -

(a) a chairperson, who shall be appointed by the MEC by virtue of his or her special knowledge, experience and expertise in regard to properly and legal matters and problems relating to rental property specifically;

(b) not less than two and not more than four members who shall be appointed by the MEC in equal number, of whom -

(aa) not more than two members shall be persons who the MEC considers to be representative of interest groups which own, invest in or manage residential property, and such representatives are to be nominated after consultation with interest groups; and

(bb) not more than two members shall be persons who the MEC considers to be representative of organisations and community-based groups in civil society who represent the interest of tenants of residential rental dwelling units, and such representatives are to be nominated after consultation with the said organisations and community based groups.

(2) The MEC shall appoint two persons to serve as alternate members of the Board in the absence of any member referred to in paragraph (b) of subsection (1), and such alternates are to be nominated after consultation with the said interest groups, organisations and community based groups: Provided that such persons shall be representative of the interest groups referred to in paragraph (b) of subsection (1) and that the equal representation of such interest groups shall not be affected.

(3) Any appointment in terms of subsection (1) or (2) shall be for a period not exceeding three years; provided that a person whose terms of office as a member has expired may be reappointed at the discretion of the MEC for an additional period not exceeding three years.

(4) When a casual vacancy occurs in the ranks of the members appointed under subsection (1) or (2), the MEC shall fill the vacancy by the appointment of another member representative of the relevant interest group referred to in paragraph (b) of subsection (1) for the unexpired part of the period for which his or her predecessor was appointed, and such member is to be appointed after consultation with the said interest groups, organisations and community based groups.

(5) If there are sound reasons for doing so, the MEC may at any time remove from office any member appointed under subsection (1) or (2) and substitute such person in accordance with the provisions of subsection (4).

(6) When the chairperson is not able to perform his or her functions as chairperson, or if the office of chairperson is vacant, a person appointed by the members of the Board as acting chairperson shall, during the unavailability of the chairperson or until a chairperson is appointed, act as chairperson and perform all the functions assigned to the chairperson by this Act.

(7) A member or an alternate member of the Board other than a person who is in the full-time employment of the State, shall be appointed on such conditions of service as the MEC in concurrence with the Member of the Executive Council responsible for provincial expenditure may determine.

(8) Conditions of service determined under subsection (7) may differ according to whether the person concerned is a member or an alternate member or serves on the Board by virtue of his or her office.

(9) Members shall be reimbursed in respect of expenditure incurred in the exercise of their duties under this Act.

5 Meetings of the Board

(1) Meetings of the Board shall be convened by the chairperson, and may be adjourned, whether for an indefinite time or until a particular time, if in the opinion of the chairperson circumstances so warrant.

(2) Meetings shall be held or resumed at such times and places throughout the area of the province as the chairperson may at any time determine.

(3) A local authority shall, at the request of the Board, make a venue available for meetings of the Board.

(4) Meetings of the Board shall be convened for the consideration of -

(a) issues relating to complaints referred to the Board in terms of section 9;

(b) any other matter which the Board may or shall consider in terms of this Act.

(5) The quorum of any meeting of the Board shall be three members of the Board: Provided that each of the interest groups referred to in paragraph (b) of subsection (1) shall be represented.

(6) All decisions of the Board, subject to subsection (7) below, shall be taken by consensus.

(7) Where consensus cannot be reached by the Board, the decision of a majority of the members shall be the final decision of the Board.

(8) In the event of an equality of votes in regard to any matter, the chairperson shall have a casting vote.

(9) A member or any alternate member of the Board may not attend or take part in the discussions of or decision making on any matter before the Board in which he or she or his or her spouse, or his or her relative within the second degree of affinity, or his or her partner or his or her employer, other than the State, or the partner or the employer of his or her spouse, has any direct or indirect pecuniary interest.

(10) Minutes of the proceedings of the Board shall be kept and retained at the offices of the Board.

(11) Any person may obtain copies of minutes contemplated in subsection (10) against payment of the prescribed fee.

6 Powers of the Board

The Board may, without derogation from the powers under section 9(4) -

(a) appoint a mediator or arbitrator, who is not in the employ of the Board, for the purposes contemplated in section 9;

(b) require any Landlord Tenant Information Office to submit reports concerning inquiries and complaints received, as well as any other makers concerning the administration of this Act within the area of jurisdiction of that office;

(c) require any inspector to provide information, or to produce any report or other document concerning inspections conducted which may have a bearing on any complaint received by the Board;

(d) require any Landlord Tenant Information Office to advise the Board on any maker concerning any particular residential rental dwelling unit or concerning any complaint received from any landlord or any tenant within the area of jurisdiction of that office;

(e) in the form prescribed subpoena any landlord or tenant or any other person who, in the Board's opinion may be able to provide any information concerning a complaint to appear before the Board for purposes of any investigation, mediation, hearing or order;

(f) in the form prescribed, summon any person to attend its proceedings to produce any book or other document under his or her control or to disclose any other information regarding the residential rental dwelling unit which in the opinion of the Board may be of relevance to the complaint before the Board;

(g) in the form prescribed, administer the oath for purposes of adducing evidence before the Board.

7 Appointment of Staff

(1) The staff required for the proper performance of the Board's functions and the administration of this Act, shall be appointed subject to the laws governing the public service.

(2) The staff contemplated in subsection (1) shall include inspectors, technical advisers and administrative support staff.

(3) Any person appointed in terms of subsection (1) shall be provided with a certificate of appointment signed by the MEC or an officer designated by him or her.

(4) The Board may, subject to such conditions as it may determine, delegate any powers conferred upon it by sections 6 and 9 to persons appointed in terms of subsection (1); provided that any such delegation shall not divest that Board from exercising any such power itself, and the Board may set aside or amend any decision of the delegate made in the exercise of such power.

8 Funds of the Board

(1) The funds of the Board shall consist of -

(a) moneys appropriated by the Provincial Legislature in order to enable the Board to perform its functions, all costs to be provided for in provincial estimates of expenditure and in appropriations by the Provincial Legislature;

(b) money received from any other source including donations, bequests or contributions from any person.

(2) The Board shall cause financial records of all income and expenditure to be kept.

(3) An annual report on the activities and the financial position of the Board shall be submitted to the MEC in respect of each financial year commencing on the first day of April and terminating on the thirty-first day of March.

(4) The MEC may require of the Board to submit additional reports to him or her as he or she may require from time to time.

(5) Any report referred to in subsection (3) or (4) above shall be tabled in the Provincial Legislature within thirty days after receipt thereof by the MEC, or if the Provincial Legislature is then not in ordinary session, within thirty days of the commencement of such session.

9 Unfair practices

(1) Any landlord or tenant or group of landlords or tenants may lodge a complaint with the Board concerning an unfair practice relating to a residential rental dwelling unit.

(2) The MEC may by notice in the Provincial Gazette prescribe regulations defining unfair practices, creating offences in respect thereof and providing for penalties in respect of any contravention thereof.

(3) The regulations contemplated in subsection (2), without detracting from the generality of subsection (2), may relate to -

(a) the changing of locks;

(b) deposits;

(d) demolitions;

(e) ejectment;

(f) forced entry and obstruction of entry;

(g) House Rules;

(h) intimidation;

(i) issuing of receipts;

(j) tenants committees;

(k) lease contracts;

(l) municipal services;

(m) nuisances;

(n) overcrowding and health matters;

(p) tenant activities on rental premises; and

(q) reconstruction or refurbishment work.

(4) In respect of any complaint made with the Board, the Board shall -

(a) assess whether the matter could be disposed of summarily after having made preliminary enquiries from the person having made the complaint and the person having been complained of as conducting an unfair practice, and if so, dispose of such matter summarily and informally;

(b) where the situation calls for mediation, through mediation attempt to resolve any dispute relating to a complaint and with due regard to the provisions of paragraph (a) of section (6);

(c) with the consent of the parties to the dispute, nominate or appoint an arbitrator for the purpose of an arbitration, subject to such terms as may be agreed by the parties to the dispute, and subject to such procedures as may be prescribed by regulation.

(5) In acting in terms of subsection (4), the Board shall have regard to -

(a) the regulations prescribed in respect of unfair practices;

(b) the provisions of the common law to the extent that any particular matter is not specifically addressed in the regulations;

(d) the need to resolve matters in a practicable and equitable manner.

(6) The Board shall not be competent to make an order regarding the amount of rental to be paid in respect of any residential rental dwelling unit, but shall be competent to act as mediator in any such dispute.

(7) Proceedings of the Board shall, as far as possible, be conducted within the magisterial district from which the complaint has emanated.

(8) If a complaint has been lodged with the Board in respect of an unfair practice and legal proceedings has not as yet been instituted in a competent court in relation to the matter, no legal proceedings shall be instituted:

(a) in the circumstances contemplated in subsection (4)(b), before the mediator has issued a certificate to the effect that he or she has not been able to mediate successfully in the matter; or

(b) in the circumstances contemplated in subsection (4)(c) save to the extent that such proceedings would not be precluded in terms of an arbitration to which the parties to the dispute had agreed.

10 Landlord Tenant Information Offices

(1) A local authority may apply to the MEC to establish a Landlord Tenant Information Office to advise landlords and tenants in regard to their rights and obligations in relation to residential rental dwelling units within the area of such local authority's area of jurisdiction.

(2) A local authority may, subject to the laws governing the appointment of local government officials, appoint officials to carry out any cubes pertaining to such Landlord Tenant Information Office.

(3) The functions of a Landlord Tenant Information Office shall be -

(a) to educate, provide information and to advise landlords and tenants with regard to their rights and obligations in relation to residential rental dwelling units within its area of jurisdiction;

(b) to provide advice to disputing parties on reaching solutions to problems relating to residential rental dwelling units;

(d) to comply with any request or instruction of the Board in terms of section 6; and

(e) to keep records of enquiries received by the office and to submit reports in relation thereto to the Board on a monthly basis.

11 Standard lease agreements

(1) As from a date to be prescribed by the MEC by notice in the Provincial Gazette, no landlord shall rent a unit to a tenant in respect of a residential rental dwelling unit unless the terms of such agreement shall have been reduced to writing substantially in the form of a prescribed agreement.

(2) The prescribed agreement referred to in subsection (1) shall be such that it shall balance the rights of landlords and tenants so that landlords and tenants alike may be protected against unfair practices.

12 Offences

(1) A person on whom a subpoena has been served in the manner prescribed under this Act and who, without sufficient cause, fails to attend at the date, time and place specified in a notice served, or to remain in attendance until the conclusion of the proceedings or until he or she has been excused by the Board from further attendance, shall be guilty of an offence and liable on conviction to a fine.

(2) A magistrate's court shall have jurisdiction to adjudicate any offence under this Act and shall be competent upon conviction to impose a fine.

(3) Any court convicting a person under this Act may, in addition to imposing a fine, order such person to carry out any specific action to remedy an unfair practice, or order the payment of compensation to any person who has suffered damages as a result of such unfair practice.

(4) A decision of the Board shall be reviewable subject to the provisions on mediation and arbitration.

13 Regulations

(1) The MEC may by notice in the Provincial Gazette prescribe regulations in relation to -

(a) the procedures and manner in which dispute resolution proceedings or any other proceedings of the Board shall be conducted;

(b) the forms to be used by the Board;

(d) the assessment of complaints for purposes of section 9(4)(a);

(e) the functions, powers and duties of inspectors and technical advisors for the purpose of carrying out the provisions of this Act;

(f) any matter which may be prescribed under this Act;

(g) all other matters which the MEC considers necessary or expedient to prescribe in order that the objectives of this Act may be achieved.

(2) At least one month prior to the publication of any regulations contemplated in subsection (1), the MEC shall publish a notice in the Provincial Gazette setting out the MEC's intention to publish regulations in the form of a Schedule forming part of such notice setting out the proposed regulations, and inviting interested persons to comment on the said regulations or make any representations which they may wish to make in regard thereto.

14 Hostels

(1) The MEC may by notice in Provincial Gazette make regulations as to the terms and conditions of residents in hostels, the making available of accommodation therein, allocation of premises therein and management and control thereof.

(2) Such regulations shall provide -

(a) for hostel management to encourage and facilitate the establishment and operation of a residents committee, and to consult regularly with it, inter alia for the resolution of complaints; and

(b) where appropriate, for mediation or appeal hearings by the Landlords Tenant Dispute Resolution Board.

(3) At least one month prior to the publication of any regulation contemplated in subsection (1), the MEC shall publish a notice in the Provincial Gazette setting out the MEC's intention to publish regulations in the form of Schedule forming part of such notice setting out the proposed regulations, and inviting interested persons to comment on the said regulations or to make any representations which they may wish to make in regard thereto.

(4) The MEC may by a notice in the Provincial Gazette make such regulations applicable, with or without modification, to hostels: Provided that the owner and the occupants thereof shall have been given at least two month's notice of such intention, and that consultation with such parties shall have taken place to the MEC's satisfaction.

15 Short title

This Act shall be called the Residential Landlord and Tenant Act, 1997.