Rental Housing Amendment Bill [B21-2011]: public hearings

Meeting report

Mr Khwezi Ngwenya, Legal Advisor: National Department of Human Settlements (NDHS), presented the written submissions on the Rental Housing Amendment Bill:

Organisation of Civil Rights Submission
The OCR welcomed the mandatory requirement for each province to establish a Rental Housing Tribunal (RHT) and welcomed the amendments to sections 6 and 7 of the principal Act. It believed however that the mandatory requirement for each province to have a Rental Housing Tribunal should be vested with the Minister.

The OCR raised a number of issues about the implications of Clause 2 of the Bill which set out the powers of Rental Housing Tribunals to hear eviction matters. Clause 2 amended Section 4(5)(d)(ii) as follows: “repossess rental housing property having first obtained a ruling by the Tribunal or an order of the court;”

The OCR submitted that the Tribunal should not be given the powers to rescind its rulings since there was no appeal procedure to the High Court. Also, allowing a Tribunal to act “on its own accord” to rescind its decision was tantamount to unfettered powers and subject to abuse. The seriousness of the Tribunal ruling and the importance of its role would be undermined. More importantly, there was adequate safeguard in the Rental Housing Act and the pending Regulations.

The Chairperson said that the Committee had raised the matter of timeframes attached to the rescission of Tribunal rulings.

Mr Ngwenya replied that the state law advisors had noted the Committee’s concerns about the timeframes but had not given effect to this proposed change yet. The issue of the timeframes would be written into the new working draft of the Bill.

The Chairperson said that it was standard practice for the state law advisors to consolidate the issues that had been raised by the Committee in previous meetings so the Committee did not have to repeat itself and rehash issues already discussed. The changes to be made should then be sent to the Chairperson.

Mr Ngwenya agreed to this.

Ms Borman (ANC) asked if Mr Ngwenya meant to say that the OCR suggestions about procedures and the courts and the Prevention of Illegal Eviction Act (PIE) were not valid and could be disregarded. In the submission, the OCR wrote about the courts and other judicial matters and said that the Tribunals would be conducting its functions outside of its powers. Was this the case?

Mr Ngwenya replied that it should be remembered that the Tribunals were not the same as a court as defined in the Constitution. This was why the legal advisors would argue the OCR’s argument was misplaced. The Constitution stated clearly that issues relating to evictions must be dealt with by a competent court. A Tribunal is not a court and so that is why the OCR’s argument could be disregarded.

The Chairperson noted the difference between submissions by people on the ground who were raising issues and those raised by committee members. There was a difference in how issues raised by the Committee and those raised by the public should be dealt with. The Committee was fortunate in that it could ask questions to seek clarity.
 
Mr Steyn (DA) said that he got the impression that Mr Ngwenya agreed with OCR’s questioning of the constitutionality of the Tribunal to issue an order of repossession. However, the original Act made reference only to the repossession of rental housing property after having first obtained an order of the court which was constitutionally correct. The amendment to the Act now said that an order could be obtained from a Tribunal or a court. Mr Steyn got the impression that Mr Ngwenya acknowledged that, if a Tribunal were to make a ruling, it would not be constitutional. It seemed that the clause should not be amended and should remain as it was in the original Act.

Mr Ngwenya replied that the Western Cape Government had made a similar submission on clause 2. After consideration it had been agreed that the amendment should be disregarded and the clause should remain as it was in the principal Act. The insertion of the phrase “a ruling by the Tribunal or” would be dropped and 5(d)(ii) would read “…(ii) repossess rental housing property having first obtained an order of the court; and…”

Mr Steyn said that the bottom line therefore was that no amendment would be made to section 4 of the principal Act.

The Chairperson stated that the issue of enforcement was related to the legislation itself. The OCR was commenting that RHTs had “no teeth” meaning it was a useless body or a “kangaroo court”. The issue of enforcement was a relevant issue and one that the Committee had been raising for some time. Enforcement was a crucial issue in regard to this legislation.

Mr Steyn endorsed what the Chairperson had said. If the submissions on the Bill fell outside of what the Department had proposed, then the Committee should still consider them. The fact that there was no amendment on the issue of enforcement, did not mean that the Committee should ignore public submissions that commented on the enforcement issue. If the Committee felt that amendments additional to those proposed by the Department were needed, then these should be considered. Mr Ngwenya and his team should have considered the comments made by the OCR on the issue of enforcement, even if they went beyond the amendments that the Department had originally proposed.

The Chairperson said it was good that this issue had been discussed.

Ms Borman said it would be helpful for the Committee to have guidance on the original Act, the amendments and the public submissions so that it could properly consider the legislation before it.

Mr Ngwenya replied that enforcement was not a legislative issue which was why the Department had not proposed any further amendments to deal with it. The issue was rather an administrative one which needed to be dealt with by both the NDHS and the Department of Justice. When this legislation was first amended in 2007, the issue of enforcement had been emphasised and amended in section 13 of the principal Act. This administrative issue required better coordination and a better understanding of what was expected from the Magistrates’ Court. Mr Ngwenya had met with the Department of Justice to request that it address the administrative challenge of enforcement. The Department of Justice responded that each and every provincial chairperson of the RHT would be introduced to the chief magistrate in their jurisdiction to ensure that effect would be given to the amendment made in 2007.

The Chairperson and Mr Steyn suggested that these issues should be addressed in the Regulations.

Mr Steyn stated that the OCR had submitted that the Tribunal should not be given the power to rescind its ruling since there was no appeal procedure to the High Court.

The Chairperson replied that the Committee had agreed that the Tribunal could rescind its ruling. The Committee had suggested there should be a timeframe attached to the rescission of the Tribunal’s ruling.

Mr Steyn apologised saying he had been unable to attend the briefing meeting in which the Amendment Bill had been introduced to the Committee and had therefore not been aware of the Committee’s decision. There was an argument made that where there was not an option to appeal to a higher court, that a different body should deal with any appeal process. The chance of the same people coming to the same conclusion as their original one in an appeal process, was very high. Appeals should be dealt with by a separate body which should hear the facts afresh and which should not be influenced by knowledge gained from the first hearing.

Ms Borman said that in hindsight, the Committee had not had the arguments made by the OCR and Mr Steyn before it when it had considered the matter in a prior meeting. The Committee needed to understand whether the argument being put forth now was valid or not. There was a possibility that the Committee should be considering whether or not the Tribunal could rescind its judgement.

Ms Njobe said she had thought that the Department would have responded in more depth to the arguments presented in the submissions. Some of them were very serious. In law, if a judge had made a decision, that same judge could not rule on the appeal.

The Chairperson replied that the Committee needed to discuss this issue further, but that she believed the Tribunal did have the right to rescind its own ruling. If the Tribunal had made an incorrect decision which was then taken to the courts, then this was where the issue would be resolved.

Ms Nomvo Ngcenge, State Law Advisor: Office of the Chief State Law Advisor, said she agreed with the Chairperson’s view. It should be understood that the Tribunals were not courts but were quasi-judicial mechanisms.

Mr Steyn said that this matter should be flagged for further consideration. An argument had been made that a magistrate could not consider the appeal of his or her own original ruling. The principal Act before the Committee however said that a ruling by the Tribunal was deemed to be an order of the Magistrates Court in terms of the Magistrates Court Act. The same rules that applied to appeal procedures for decisions made by the Magistrates Court should then apply to decisions made by the Tribunal.

The Chairperson agreed that the issue should be flagged and discussed further.

Western Cape Government Submission
The Western Cape also submitted that Clause 2 should be removed and that section 4 of the principal Act retain its original wording.

The Western Cape Government referred to Clause 5 which proposed that section 9 of the principal Act be amended by inserting: “(4A) A person appointed in terms of subsection (4) may not serve for more than two consecutive terms.”

In the opinion of one of the Western Cape Tribunal members “this would be punitive to those who could be of enormous benefit to the Rental Housing Tribunals, as there are few individuals who are expert in the various sectors expected of future members.” The Tribunal member proposed that the provision be amended to make it possible for a member who fulfilled two consecutive terms to reapply for appointment as a member of an RHT.

The NDHS’s rationale for limiting the term of office for Tribunal members to two consecutive terms was based on the fact that Tribunal members should not make the Tribunal “their home” but that they should allow other people the opportunity to serve on the RHT. It would be up to the province to capacitate new individuals to serve on the RHTs if there was a lack of expertise in the rental housing discipline.

Discussion
Ms Borman thought that the argument for limiting the term of office to two consecutive terms seemed valid, but on the other hand, expertise would be lost. Were people breaking their necks to be on the Tribunals? Did the limitation of two consecutive terms mean that a member could sit on a Tribunal for a third term after having taken a break for one term?

Mr Ngwenya replied that the implication of the clause was that Tribunal members could return to serve a third term after taking a break.

Mr Steyn said he agreed with Mr Ngwenya that a situation where Tribunal members became too comfortable in their positions and did not really apply their minds should be avoided. This would also force the provinces to search for new talent and to capacitate people with the necessary skills if they did not exist. Mr Steyn suggested that the proposed amendment, limiting the term of office to two consecutive terms, be adopted.

Commission for Gender Equality Submission
The CGE submitted that it supported the Rental Housing Amendment Bill on the basis that deep-seated inequities still existed in terms of land ownership which included the fact that more men owned land in comparison to woman and that white ownership comprised the bulk of prime properties with high value. The CGE was however concerned that “various issues relating to gender inequities which pose as obstacles by limiting women’s access to accommodation had been totally ignored”.

The CGE did not support Clause 2 (the amendment to section 4 of the principal Act) because it was ambiguous and had been drafted in a manner which allowed the landlord to repossess even where the order may prohibit repossession. This amendment to the principal Act had been dealt with in the discussion on the previous two submissions.

The CGE did not support Clause 4, amending section 7, in its current form as it did not set out any timeframes within which the RHTs must be established in the provinces. It proposed that every MEC must, by notice in the Gazette, establish a tribunal in the province to be known as the Rental Housing Tribunal within six months of the promulgation of the Act.

Mr Ngwenya did not think that it would be appropriate for the legislation to give a time limitation by when the provinces must establish RHTs. This was because other processes, such as the appointment process, needed to be taken into consideration. It was good enough that the legislation forced provinces to establish RHTs within a reasonable timeframe.

The CGE rejected the proposed amendment to section 9 of the principal Act because it was not rationally connected to the purpose of ensuring that fairness, equity, community interests and accommodation needs were addressed by the Tribunal. Gender representation in the RHTs was completely ignored and it was recommended that RHTs be required to be balanced in terms of gender representation. Furthermore, one individual should be nominated from the community and the chairperson of the Tribunal must have suitable qualifications. The CGE requested that the legislation include that at least one of the Tribunal members was a female.

Mr Ngwenya said that it was required of the MEC, who appointed the Tribunal members, to follow government policy and national legislation on equity and that this was not usually explicitly legislated.

The CGE supported the amendment to section 13 of the principal Act but proposed that in certain instances the Tribunal should be able to adjudicate and make the requisite rulings instead of referring the latter to a competent body as contemplated in Section 13(4)(b) of the Act. There should also be an attempt to regulate the maximum deposits that may be levied by lessors / landlords.

Referring to the amendment to section 14 of the principal Act, the CGE stated that the marketing of services and the jurisdiction of the RHTs was important for effective service delivery. It was necessary for an independent party to provide information on the services offered by RHT so that, amongst others, disadvantaged people were made aware that they could seek relief from RHTs. Accordingly, all municipalities must be obliged to set up a rental information office in their area of jurisdiction.

Mr Ngwenya said that this amendment had been proposed before but, after consultation with SALGA, it had been found that municipalities could not be compelled to do this. Some municipalities were struggling financially. The NDHS’s argument for compelling municipalities to set up rental information offices had been that people, especially in the rural areas, did not know how to access the RHTs. SALGA had practical experience with these issues. Certain municipal officials could however be designated to provide information about renting. Most provinces had already established rental information offices.

Discussion
Ms Borman said she understood that all provinces needed to have RHTs but SALGA had raised some pertinent questions regarding this. There should be a wider discussion on SALGA’s questions as SALGA would be dealing with the role of the municipalities in this matter.

Mr Steyn said if the legislation left the establishment of RHTs in the provinces open-ended and without a timeframe, there would be provinces that would find excuses for not setting up RHTs. The processes that needed to be followed were known and a maximum timeframe, allowing for some leeway for provinces that lacked capacity, could be written into the legislation.

The Chairperson said that there had been a problem with provinces not establishing RHTs. A timeframe of twelve months should be more than enough time for provinces to budget for and set up tribunals. Six months was unfair but twelve months should be enough time. It was crucial that all provinces established RHTs. This legislation would be finalised before the end of the current financial year and so provinces could start budgeting for this.

Ms Njobe (COPE) agreed with the twelve-month timeframe.

Mr Ngwenya agreed with the Committee that twelve months was enough time for provinces to establish Tribunals.

The Chairperson said that when Boards and Tribunals were appointed, the need for gender balance, and the inclusion of women, tended to be forgotten. The requirement for gender equity should be included in the legislation. The Tribunal should have equal representation of men and women unless compelling reasons for a deviation could be provided. This should be put into writing.

Ms Borman agreed the Committee had been remiss on this issue and should not just leave it to the MECs to make up their own minds about it. Further, people with disabilities should also be taken into account.

Mr Steyn said that the Committee should be careful about not being too prescriptive and that provision for gender balance could be made in more general terms.

Mr Steyn suggested that all municipalities that owned rental housing stock should have a Rental Housing Information Office. There were some municipalities in very rural areas that did not own rental stock and that did not have the capacity to set up an information office.

Ms Njobe said she understood Mr Steyn’s argument and asked how it could be dealt with in relation to SALGA’s submission that municipalities with Level Three accreditation should be responsible for establishing Rental Housing Information Offices.

Mr Steyn replied that he did not know of a single metropolitan municipality that had Level Three accreditation and so if SALGA’s suggestion was to be accepted then no metros would be forced to have information offices. He did not think a municipality’s obligation to establish an information office should be linked to its accreditation but should rather be linked to whether a municipality owned or traded rental housing stock.

Mr Ngwenya begged to differ with Mr Steyn saying that they could not only focus on municipalities with rental stock. Municipalities with certain gradings should rather be compelled to establish information offices. The constitutional implications needed to be considered. The issue being raised by SALGA and others was that municipalities could not be compelled to do certain things which they could not afford to do.

The Chairperson asked why they were creating legislation that could not be funded. She believed that funding would be allocated in order for the legislation’s provisions to be implemented.

Mr Ngwenya replied that the issue of a municipality’s lack of resources had been dealt with technically. Those municipalities with resources to create a Rental Housing Information Office should do so, but those without could simply designate an official to ensure that the function of an information office was performed.

Ms Noligwa Tembani, Director: Rental Housing, National Department of Human Settlements, added that the establishment of Rental Housing Information Offices could not be limited to municipalities that owned rental housing stock. Her understanding of the Act was that it regulated all rental matters, including private rentals, and so Rental Housing Information Offices would be needed in all municipalities whether or not the municipality owned rental housing stock.

Adv Dladi said that it should not be forgotten that housing was a concurrent function shared by provinces and national government and did not extend to municipalities. In order for that concurrency to run to the municipality, section 129 of the Constitution should be followed. It might be premature to change the word “may” in Clause (8)(a)(1) to “must”. If the municipalities were to be forced to establish information offices in the legislation, then SALGA would cry foul about an unfunded mandate because housing was not a concurrent function. Almost all of the metros did have Rental Housing Information offices. This issue should perhaps be dealt with in the Regulations.

The Chairperson said that in her opinion, if a national department delegated a function to a municipality, resources should follow. The word “may” in clause (8)(a)(1) was fine but the issue of ensuring that municipalities were supported should be dealt with in the budgeting. SALGA’s comments were noted but SALGA should think out of the box on this one.

Ms Borman asked where this issue should be dealt with and whether or not it should be dealt with in the regulations. There were those municipalities that were really struggling and that were sometimes told by the MECs to “just get on with it”. Where would provision be made to ensure that municipalities were given the necessary resources?

Mr Ngwenya replied that two sets of regulations would be developed for the implementation and procedures around the Rental Housing Act. Procedural regulations could reflect which category of municipalities would qualify for funding. Mr Ngwenya asked that he be given the opportunity to consider the constitutional implications of the matter. Municipalities had indicated during consultation that they were worried about the legislation imposing an obligation on them to establish information offices.
 
Rental Housing Commission submission
Mr Ngwenya said that most of the issues raised in this submission had already been discussed in the previous three submissions. Other points raised by the Rental Housing Commission were generic ones such as maintenance and deposits. It was a problem that some rental housing accommodation was not up to standard. The issues raised were broader problems that needed to be addressed by way of a strategy. For example, people were not informed about the way deposits worked and the interest accrued on deposits. The Department was considering lessons learned in Australia about ensuring that there was proper administration of rental deposits. In Australia the deposit was not paid directly to the landlord but rather to a central account which was managed. As soon as the lease agreement came to an end, the tenant’s money would be returned within two days. If there was a dispute then the landlord was given the opportunity to state his case about any damages to the rental property. The Department had been informed that the majority of disputes between landlord and tenant was about the deposit not being returned to the tenant. Tenants complained that they did not get their deposits back in cases where they should have, never mind the interest accrued on the deposit. In Australia, all the rental housing tribunals fell under one body.

Discussion
The Chairperson said that critical issues had been raised in this submission and asked if everyone could agree to returning to them. The issues of maintenance and deposits were crucial and needed to be taken seriously.

Ms Tembani said that certain others Acts did deal with the maintenance issue such as the Social Housing Act which required the maintenance of government funded housing stock. The Rental Housing Amendment Bill was saying that everyone who owned rental stock must have a maintenance plan and that one must ensure that the issue of deposits was enforced.

Ms Borman said that landlords did abuse the deposits on rental housing made by tenants. Some landlords even asked for as much as a three month deposit. The general wear and tear of the rented building should be taken into account and differentiated from damages. Landlords, and not tenants, should be responsible for wear and tear on a building. Was this issue not covered in the Sectional Titles Act?

Gauteng Rental Housing Tribunal
Mr Trevor Bailey, Chairperson of the Gauteng Rental Housing Tribunal, thanked the Committee for hearing his submission. Mr Ngwenya had been very supportive of Gauteng’s need to have the legislation amended and had also shared detailed questions put to him by the Committee over a period of time. Mr Bailey had brought with him a document on the history and operations of the Gauteng RHT which he would leave with the Committee for them to read. The document would provide the Committee with a greater understanding of the need to make certain amendments. Committee members were welcome to ask him questions on this document at any time and Mr Bailey was also happy for any of the members to visit the Gauteng RHT should they find themselves in Johannesburg. The Gauteng RHT heard a minimum of four cases a day and sometimes as many as fourteen cases a day. The Gauteng RHT was a full seven day a week operation in that after hours work was done during the evenings and weekends in order for there to be a turn-around time of seven days for cases.

Mr Bailey agreed with the Committee’s earlier decision to scrap the proposed amendment to section 4 of the principal Act. The amendment of section 9 of the principal Act dealt with the composition of the Tribunal. At the moment the Tribunal consisted of five full-time members and two alternate members. The proposal on the table was that this be increased to six full-time members and two alternate members. The Gauteng Tribunal would like for this number to be bigger but was not necessarily pushing for an increase as the proposals seemed to be more appropriate considering that the legislation dealt with all provinces and not just Gauteng. It would have been nice for the Tribunal to be bigger but the Gauteng Tribunal would not insist on this.

The Gauteng Tribunal currently had a backlog of approximately 280 to 300 cases. It did not matter how hard the current five Tribunal members worked, they could not get up to date with the backlog because the cases just kept coming. The rationale for increasing the Tribunal members to six was that the Tribunal could be split up into two panels of three members each. The current five Tribunal members sat in Johannesburg for three days a week and in Pretoria two days a week. With the new structure, one panel of three Tribunal members could sit in Pretoria for five days a week and another panel of three Tribunal members could concurrently sit in Johannesburg for five days a week. The beauty of this was that cases could be dealt with according to the 90-day rule which said that the time at which a complaint was lodged with the Tribunal to the time that the matter was closed should not be longer than ninety days. Due to the massive backlog, the Gauteng Tribunal had been unable to consistently meet this target. The proposal on the table would allow the Gauteng Tribunal to increase its output by 100% at the cost of only one extra Tribunal member.

According to the proposed amendments in Clause 5(a), a Tribunal would consist of six members; at least one and not more than two of whom should be persons with expertise in property management; at least one and not more than two of whom should be persons with expertise in consumer matters; at least one and not more than two of whom should be persons with legal qualifications. Mr Bailey proposed that the Tribunal consist of two persons with expertise in property management, two persons with expertise in consumer matters and two persons with legal qualifications so that when the Tribunal of six members was split into two panels consisting of three members each, each panel would have one person with expertise in each of the three fields. He suggested that the phrase “at least one and not more than” be taken out of clauses 5(a)(b)(i), (ii) and (iii) to allow for this.

Mr Bailey then moved on to address Clause 5(b) which said that a person appointed to the Tribunal may not serve for more than two consecutive terms. It should be stated at the outset that he had currently served two consecutive terms and, in terms of the proposal, he would no longer qualify to serve on a Tribunal. Mr Bailey served on a number of Boards and Councils at the pleasure of ministers and MECs and he accepted whatever the law had to say. He would however like to put some issues on the table for the Committee to consider. Not all pieces of legislation provided for limitation of terms. The National Heritage Resources Act, the Competition Act and the Gauteng Consumer Affairs Court Act for example did not. When one was talking about RHTs, one was talking about orders of the Magistrates Court. Magistrates and judges did not have limitations. Judges in the Constitutional Court sat for one term only which was for twelve years. Commissioners on the South Africa Human Rights Commission sat for a term of seven years and could not sit for more than two terms which would take them to fourteen years. The term for RHT members was three years and there was currently no limitation on how many terms of three years each a Tribunal member could serve. The amendment to section 9 of the principal Act was proposing that members be limited to serving only two terms of office of three years each, or a total of six years which was way below some of the example given by Mr Bailey.

This amendment could cause difficulties particularly in those provinces that did not currently have RHTs but that will be required to establish them once the legislation is passed. After six years, the new Tribunals set up to satisfy the new legislation, did not want to find themselves in a position where they had to usher in a set of completely new Tribunal members because all of the Tribunal members will have served two consecutive terms. This would be no good for jurisprudence. Issues of sustainability, cross-over and transition needed to be considered by Tribunals. Why limit the terms that a Tribunal member can serve? There were currently checks and balances on Tribunal members in that every three years members had to be nominated and interviewed. The current law gave the MEC discretion to reappoint members based on consultation with the provincial portfolio committee. Mr Bailey further argued that the whole rationale behind the Rental Housing Act was to ensure that people were housed as this was a fundamental right. The experience of the Gauteng RHT was that it had provided certainty in the rental housing market by regulating it through the Tribunal decisions. Landlords and tenants wanted consistency from the decisions made by the RHT. Expertise needed to be built up in a RHT. The book “Outliers” by Malcolm Gladwell said that in order to become an expert at something, one needed to have approximately 10 000 hours of relevant experience. After six years a member of the Gauteng Tribunal would have roughly only 7 200 hours worth of experience. RHTs in Limpopo and some of the other smaller provinces heard far fewer cases and would be even further away from becoming experts in just six years.

Mr Bailey suggested that the limitation on the number of terms a member may serve on a Tribunal therefore be taken out. Clause 5 implied that a member could take a break of one term after having served two terms and then return to serve a (non-consecutive) third term. Why would one want to interrupt the growth of a member building up expertise around the country? Clause 5 would limit the building up of expertise needed in the rental housing field at the moment (and especially so in light of the economic recession). There were currently 69 000 mortgage holders in arrears – the banks could not repossess because who were they going to sell to? What this meant was that more and more people were going to be forced into rental housing meaning that the RHTs would get busier.

Mr Bailey referred to the discussion that the Committee had had earlier on in the meeting about gender representation, saying that of the five full-time members in Gauteng, there was one male and four females. If the Committee were to prescribe that the gender balance of a Tribunal should be exactly fifty-fifty then the composition of the Gauteng RHT might have to be balanced out. The fifty percent requirement may in fact have unintended consequences. An argument could be made that when any Tribunal was appointed the issue of gender parity had to be considered.

Mr Bailey said that the Gauteng RHT often heard arguments made on the basis of the safety of women and children which it tried to take into account.

The Gauteng RHT supported the clause giving the Tribunal the power to rescind its ruling because in cases where a party was subpoenaed to court and did not come, a ruling could be made in the absence of that party. The Tribunal in Gauteng generally tried to make telephone calls to see if there was a problem when this happened as sometimes a person could be on their way to the Tribunal and be caught in traffic or a car accident and then miss their hearing; whereby the Tribunal would hand down a judgement. The current law said that the only way this type of a case could be dealt with was for the case to be taken to the high court. It was not commonly acknowledged that the RHT’s powers on the merits of a case were stronger than those of the high court’s. A high court could only “review” errors in the procedure of a case dealt with by RHT and not the merit of a case. The Gauteng RHT always tried to ensure that it followed the procedures correctly so that once it made a decision based on the merit of a case, the only body that could then set that ruling aside would be the Constitutional Court. The Tribunals therefore had enormous power and it was right and appropriate that in instances where a party might have been caught in traffic or might have a legitimate reason for missing their hearing, that the Tribunal have the power to rescind the ruling made. The good thing about a Tribunal being split up into two panels of three members each is that if one of the panels had made a decision on a case, then the other panel of three members could make the decision to rescind the original ruling. The splitting up of the Tribunal into two parts had numerous advantages.

Discussion
Ms Borman said that Mr Bailey’s argument to amend clause 5 of the Bill made very good sense and could be supported.

Mr Steyn agreed with the sentiment but sought further clarity. If Mr Bailey’s proposal was accepted, then the Tribunal would end up having seven members – one chairperson and two people with expertise in each of the three areas of legal, property and consumer matters.

Mr Bailey responded that the Tribunal could be increased to seven. At the moment the Tribunal consisted of a chairperson, a deputy chairperson and three other members.

Ms Njobe asked if it was not possible for the chairperson to be one of the persons with expertise in one of the three fields of expertise required so that the Tribunal still consisted of six members.

Mr Bailey said that the Committee needed to decide whether it wanted to accept Ms Njobe’s proposal or whether it wanted to increase the number of members sitting on a Tribunal.

Ms Borman said that in principle the Committee liked the idea and that it did not want to increase the size of the Tribunal. Could the Committee apply its mind to this and come up with a more suitable proposal?

Mr Steyn said that this issue could be flagged and perhaps the Department could also give some feedback on it.

Mr Ngwenya said there were issues with backlogs but that there were also “geographical challenges” with the provinces that needed to be considered and addressed by this amendment.

Mr Steyn said that his main issue regarding the rescission had been that the same party making a ruling should not be tasked with possibly rescinding that ruling. If one of the panels of the Tribunal were to make a ruling and the other panel were to consider the rescission, as suggested by Mr Bailey then that would be fine. If the legislation was to allow the Tribunal to rescind its decision then what would happen with smaller Tribunals with less than six members?

Mr Bailey responded that any Tribunal would now always have six members as he understood it.

Mr Steyn replied that the amendment Bill said that a Tribunal should consist of not less than three and not more than six members.

Mr Bailey replied that he thought every Tribunal should appoint at least six persons as members plus two alternate members, so that every province had eight Tribunal members in total. An alternate member was a member who sat in for a full-time member when he or she could not be present. A maximum of three members would be appointed by the Chairperson to hear a case and, if necessary, the remaining three members would be appointed to hear the rescission. The rescission criteria were quite narrow and one or two further sub-clauses might need to be added on. Mr Bailey was pleased that this issue had been flagged for possible consideration. It was not fatal if a party lost on a rescission because the matter only ran to procedure and not to the merits of the case. For example, say three persons were to hear a case and hand down a judgement in absentia because the party did not arrive. This had happened before in Gauteng where the party had not arrived at the hearing because he had been in hospital at the time. A subpoena was pasted up on the door but the patient never got it. There had even been a case where a party had not arrived for his hearing because he had been in jail. The party could come before the same three Tribunal members to say that a judgement had been handed down but that he or she had not received it. The members could rescind the judgement based on pure case law and call for a rehearing of the matter.

Ms Njobe asked if Mr Bailey was saying that members of the Tribunal could continue to serve limitlessly. She asked about the Department’s concerns that persons who served as members for too long became “comfortable” and “took advantage of the situation”.

Mr Bailey replied that if the Committee did not want to leave the principal Act as it was (where the number of terms a member could serve was not limited), then it could extend the length of one term to more than three years, perhaps to five or seven years.

The Chairperson thanked Mr Bailey and the Gauteng Tribunal for its participation in the public hearings on the Rental Housing Amendment Bill. South Africa was a unitary state and Parliament needed to make sure of this by making laws that applied to the whole country but with the understanding that not all provinces were the same. Each and every province had to try and make sure that people in its rural areas enjoyed the same benefits enjoyed by people living in urban areas. This should be kept in mind when laws were being passed. The Chairperson said the Committee “was not going to speak tongues on the issue of gender”. The Committee would insert the requirement for fifty-fifty representation but would attach the word “may” to the provision and not “must”. If there was not a gender balance in a Tribunal then reasons would have to be provided for why this was so.

The Chairperson said that the composition of Tribunal members would have to be considered further. Her understanding of splitting the Tribunal into two groups was that one particular group might sit to hear a case but that the final decision would be taken by the entire Tribunal and not just the group that heard the case. The document provided by Mr Bailey would be a critical one for the Department and the Committee when it drew up the regulations. Mr Bailey had certainly not wasted his time by preparing such a valuable document for the Committee.

The Chairperson thanked everyone for their attendance and said that the Committee would be considering the Bill in its first meeting next year. One more public submission would be presented the next day and then the public hearings would be closed.

The meeting was adjourned.