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Rental Housing Amendment Bill, B21 - 2011
Summary of Public Comments received
Organisation | Section addressed | Comment Received | Action taken by Parliamentary legal adviser | Amended section (changes underlined)

Achmed Kariem:

Clause 14 S15(fB) (RHAB): "(fB) norms and standards that are aligned to the policy framework set out in section 2(3), in relation to:
(i) terms and conditions of the lease, specifically in relation to fairness and protection of the weaker contract party;
(ii) safety, health and hygiene;
(iii) basic living functions including access to basic amenities;
(iv) size;
(v) overcrowding; and
(vi) affordability:
Provided that such norms and standards may be set per geographical area;"

#1 Provided articles about increases in rent, which cripples tenants.

#1 Rental abuse will be addressed by these norms and standards

No amendments made

Banking and Financial Services Division – Banking Association SA (BASA):

Clause 2 S2(5) and (6) AB: 
“(5) The Minister must –
(a) monitor and assess the impact of the application of this Act on poor and vulnerable tenants; and
(b) take such action as he or she deems necessary to alleviate hardships that may be suffered by such tenants.
(6) For purposes of subsection (5), the Minister may define criteria based on age, income, or other form or degree of vulnerability that apply to such tenants or group of tenants and amend or augment the policy framework on rental housing, referred to in subsection (3) in such a manner as he or she sees fit.”.

#1 (Page 1 bottom) Unless a clear distinction is made between "Social Housing tenants" and "other classes of private sector tenants", current private sector rental companies, especially in urban inner cities, might withdraw rental stock and capitalise their investment. (page 2 top) These subsections are loosely drafted and should be removed from the Bill. It should rather be effected through amendments to the Social Housing Act, 16 of 2008

#1 A clearer distinction has been made.
The Social Housing Act focuses on Government provision of adequate housing. The policy framework envisaged in the Rental Housing Act could affect private rental stock - for example grants to supplement rent. It's correct location is thus in the Rental Housing Act.

Clause 2, S2(5) (b)develop such relief measures and other social programmes as part of the policy framework on rental housing, referred to in subsection (3) as he or she deems necessary to alleviate hardships that may be suffered by tenants contemplated in paragraph (a)(i); and

Services Division – Banking Association SA (BASA):

Clause 6, sections 4A and 4B AB: Rights and obligations of landlords and tenants

#1 (page 2, par 3)A transitional provision is required to ensure that the new requirements aren't retrospective and only applies to agreements concluded after the amendment is effected

#1: Writing: Only leases entered into after the commencement of the AB
#1 Added section 17B re transitional provisions

Clause 7 S5 ““(1)	The Landlord must reduce the [A] lease entered into between him or herself and a tenant  [and a landlord, subject to subsection (2), need not be in] after the commencement of the Rental Housing Amendment Act, 2012, to writing [or]: Provided that the lease will not be subject to the provisions of the Formalities in Respect of Leases of Land Act, 1969 (Act No. 18 of 1969).”

+

Clause 18: S17B “Transitional Provisions. – (1) Any additional or amended obligations imposed upon a landlord or tenant by the Rental Housing Amendment Act, 2012, shall become effective three months from the date of commencement of the Rental Housing Amendment Act, 2012.”

Services Division – Banking Association SA (BASA):

Clause 6, Section 4B(1)(b) RHAB:  "4B. Rights and obligations of landlords. – (1) A landlord may require a tenant, before moving into the dwelling, to pay a deposit which –
(b) (b) must be invested by the landlord in an interest-bearing account with a financial institution: Provided that the rate applicable to such account may not be less than the rate applicable to a savings account with that financial institution; and..."

#1 (Page 2, par 2) In the event of insolvency / liquidation of the Landlord, these moneys do not enjoy preferential creditor protection. The AB should reflect the need that this deposit must be placed in an arms’ length trust account and that the regulations create a workable framework for this to be effected. The Estate Agents Act can assist in this regard

#1 An arms length account would amount to an additional burden to the landlord and does not guarantee exclusion from his or her estate. A paragraph has been added to 4B(1), namely (d) which simply states that the deposit does not form part of an insolvent or deceased estate, thereby resolving the issue.

Clause 6 S4B(1) “ A landlord may require a tenant, before moving into the dwelling, to pay a deposit which – 
(d)	shall, together with any interest accrued to it and in the event of the insolvency or death of the landlord, not form part of the assets of his or her insolvent or deceased estate.”

Services Division – Banking Association SA (BASA):

Clause 6, S4B(9)(d)(ii) (RHAB):  "(d) on termination of a lease to—
(ii) where the tenant fails or refuses to vacate the dwelling, repossess the rental housing property having first obtained an order of court; and"

#1 This section should rather refer to the landlord's right to obtain an order for eviction from a competent court

#1 Effected the amendment

Clause 6, S4B(9)(d) “(ii) where the tenant fails or refuses to vacate the dwelling, evict the tenant from the rental housing property after having obtained an order of court; and”

Services Division – Banking Association SA (BASA): | Clause 11 Section 10 (RHAB): "“(1A) The Tribunal may, subject to subsection (5), arrange two separate but simultaneous meetings of its two committees for purposes of effective functioning.” | #1 There is a need for the MEC to appoint an alternate chair for the simultaneous meetings | S9(1C) provides that the Chair and Deputy rotates at the committees, but the section has been worded more clearly | Clause 10, S9 (1C) “The Tribunal may function as two committees, each with three members with the expertise set out in subsection (1)(b)(i), (ii) and (iii) respectively and with one committee being chaired by the chairperson and the other by the deputy chairperson: Provided that the chairperson and the deputy chairperson must on a regular basis rotate as chairperson between the meetings of the two committees.”

Services Division – Banking Association SA (BASA):

Clause 14 S15(fB) (RHAB): "(fB) norms and standards that are aligned to the policy framework set out in section 2(3), in relation to:
(i) terms and conditions of the lease, specifically in relation to fairness and protection of the weaker contract party;
(ii) safety, health and hygiene;
(iii) basic living functions including access to basic amenities;
(iv) size;
(v) overcrowding; and
(vi) affordability:
Provided that such norms and standards may be set per geographical area;"

#1 (page 3 top) There is no indciation what these norms and standards are or what the threshold would be. This could indicate that legislation will be promulgated that could cap rent or force a landlord to reduce rent if the tenant has financial difficulties.
#2 (page 3 top) - Regulations such as these require public consultation

#1 and #2 as per the Chairperson: These regulations must come to the committee, which means that there will be opportunity for the public to engage on them

No amendments made

#3 (page 3 top) - These should be national uniform norms and standards to avoid "patchy stock"

#3 An amendment has been made to make it clear what is meant by norms and standards per geographical area

Clause 14, S15 (1) “(fB)	norms and standards that are aligned to the policy framework set out in section 2(3), in relation to:
(i)	terms and conditions of the lease, specifically in relation to fairness and protection of the weaker contract party;
(ii)	safety, health and hygiene;
(iii)	basic living functions including access to basic amenities;
(iv)	size;
(v)	overcrowding; and
(vi)	affordability:
Provided that such norms and standards may be set per geographical area to avoid unfair practices particular to that area;”

Eskom:

Clause 1 :Section 1 (RHAB): “‘maintenance’ refers to such repairs and upkeep as may be required to ensure that a dwelling’s habitability does not constitute an unfair practice, more specifically that the habitability does not constitute unacceptable living conditions and “maintain” has a corresponding meaning;”

#1 "Unacceptable living conditions" is vague and too broad. This definition should only refer to the fact that the dwelling's habitability should not constitute an "unfair practice". The reference to unacceptable living conditions should be deleted

#1 Due to the insertion of a definition for "habitability" this phrase can be deleted

“‘habitability’ of a dwelling includes –
(a)	adequate space;
(b)	protection from the elements and other threats to health;
(c)	physical safety of the tenant, the tenant’s household and visitors; and
(d)	a structurally sound building
and “habitable” has a corresponding meaning;”;

Eskom:

Clause 2 S2(5) and (6) AB: 
“(5) The Minister must –
(a) monitor and assess the impact of the application of this Act on poor and vulnerable tenants; and
(b) take such action as he or she deems necessary to alleviate hardships that may be suffered by such tenants.
(6) For purposes of subsection (5), the Minister may define criteria based on age, income, or other form or degree of vulnerability that apply to such tenants or group of tenants and amend or augment the policy framework on rental housing, referred to in subsection (3) in such a manner as he or she sees fit.”.

#1 Section 2(5)(b) is unclear as it is uncertain what action the Minister may deem necessary and what the implication may be on the Landlord. The relief that the Minister may create should be set out clearly

#1: Changed "take such action" to "develop such relief measures and other social programmes "

Clause 2 S 2(5)(b): 
“(b) develop such relief measures and other social programmes as part of the policy framework on rental housing, referred to in subsection (3) as he or she deems necessary to alleviate hardships that may be suffered by tenants contemplated in paragraph (a)(i); and

| | #2 S 2(5)(b) confers upon the Minister the same powers as are conferred on the Tribunal. This should not be done. | #2 This is not correct. Section 2(5)(b) confers upon the Minister the power to set up criteria related to the national policy on rental housing. The Tribunals do not have this power. | No amendments made
Eskom: | Clause 6, section 4B(11) (RHAB): "(11) Landlords must maintain the structure of and provision of utilities to the dwelling." | #1 This may be interpreted to require a landlord to install the infrastructure or facilities if none are existent and it maybe outside the landlord's control. The Landlord should only be required to maintain the existing structures and where possible provide utilities to the dwelling | #1 Amendments made accordingly | Clause 6, S4B “(11) Landlords must provide a tenant with a dwelling that is in a habitable condition, as well as maintain the existing structure of the dwelling and where possible facilitate the provision of utilities to the dwelling.”
Eskom: | Clause 7, Section 5(6A) (RHAB): "“(6A) The Minister must prescribe a pro-forma lease agreement, in all 11 official languages, containing minimum requirements for a lease agreement which may be used as a guideline by the tenants and landlords.”." | #1 (Page 2) The wording is unclear using "minimum requirements for a lease" and "guideline" in the same sentence. The pro forma lease should strictly be used as a guideline | #1 It has been reworded | Clause 7, S5(6A) “The Minister must develop (~~prescribe~~) a pro-forma lease agreement, in all 11 official languages, containing the minimum requirements set out in this Act: Provided that this pro-forma lease agreement will not be mandatory for use by landlords and tenants.”

Eskom:

Clause 14 S15(fB) (RHAB): "(fB) norms and standards that are aligned to the policy framework set out in section 2(3), in relation to:
(i) terms and conditions of the lease, specifically in relation to fairness and protection of the weaker contract party;
(ii) safety, health and hygiene;
(iii) basic living functions including access to basic amenities;
(iv) size;
(v) overcrowding; and
(vi) affordability:
Provided that such norms and standards may be set per geographical area;"

#1 The terminology is broad and sweeping and it is not clear what the exact status of the document would be as it would be minimum requirements, yet would be a guideline. A guide as to the norms and standards should be set and the status of the document must be clarified

#1 There is no indication that this document will be a guideline. It is aligned to the policy framework set out in section 2(3) and thus its status is that of policy

No amendments made

Inner City Resource Centre NPO (ICRC): | Clause 10 Section 9 (RHAB): "(1)  The Tribunal consists of [not less than three and not more than five] seven members, who are fit and proper persons appointed by the MEC, and must comprise—" | #1 (page 1) The tribunals require capacity to deal with the case loads that they have. | Section 2(5)(c) now provides for the Minister to assist Tribunals to function effectively | Clause 2, S2(5)(c)  “develop programmes, directives and guidelines or amend or augment the policy framework on rental housing, referred to in subsection (3) in such a manner as he or she sees fit, to facilitate effective performance by Tribunals and Rental Housing Information Offices.”
Inner City Resource Centre NPO (ICRC): | Section 13 Principal Act: Complaints | #1 Act 43/2007 makes lock outs, cutting off services and evictions without a court order a crime. Tribunals are not enforcing this act. | #1 S13(4)(b) gives Tribunals the authority to refer any contravention of an act to an appropriate authority, which could be SAPS or the Magistrate's Court (or the Director of public prosecutions - DPP). Tribunals do not have criminal jurisdiction and can thus not determine whether the act is in fact contravened. | No amendments made
| | #2 There should be a follow up after the rulings have been granted to ensure that they are adhered to and enforced | #2 It is for the parties involved to inform the Tribunal if an order is not adhered to. | No amendments made

Inner City Resource Centre NPO (ICRC):

Clause 14 S15(fB) (RHAB): "(fB) norms and standards that are aligned to the policy framework set out in section 2(3), in relation to:
(i) terms and conditions of the lease, specifically in relation to fairness and protection of the weaker contract party;
(ii) safety, health and hygiene;
(iii) basic living functions including access to basic amenities;
(iv) size;
(v) overcrowding; and
(vi) affordability:
Provided that such norms and standards may be set per geographical area;"

#1 High rental remains a problem and rental control should be brought back.

#1 Rental abuse will be addressed by these norms and standards

No amendments made

Organisation of Civic Rights (OCR):

Clause 1 :Section 1 (RHAB): “‘maintenance’ refers to such repairs and upkeep as may be required to ensure that a dwelling’s habitability does not constitute an unfair practice, more specifically that the habitability does not constitute unacceptable living conditions and “maintain” has a corresponding meaning;”

#1 (Page 2 centre) Addressing "habitability" is a milestone for SA. This should be an essential inclusion in the bill. Habitability should be elaborated on in a separate section in the bill. Habitability includes adequate space; protection from the elements (eg cold, damp, heat, rain, wind )and other threats to health, physical safety of occupants must be guaranteed, the building must be structurally sound eg roof, ceiling, exterior walls and floors.

#1 Inserted a definition for "habitability"

“‘habitability’ of a dwelling includes –
(a)	adequate space;
(b)	protection from the elements and other threats to health;
(c)	physical safety of the tenant, the tenant’s household and visitors; and
(d)	a structurally sound building
and “habitable” has a corresponding meaning;”;

Organisation of Civic Rights (OCR):

Clause 3, Section 3(5) AB: 
"(5) National Government must develop and fund programmes to train members of the Tribunals and officials appointed in terms of section 14(2)."

#1 (Page 1 bottom) Training is commendable.

#1 Noted

Noted

Organisation of Civic Rights (OCR):

Clause 6, sections 4A and 4B RHAB: Rights and obligations of landlords and tenants

#1 (Page 7 centre) Habitability should be elaborated on in a separate section in the bill. 
Add to section 5(3) before (a): "the landlord must provide a tenant a dwelling that is in a safe and habitable conditions, and one which is in a fit and proper state of repair at the beginning of the lease."

#1 Added the obligation iro habitability at the outset to section 4B(11). Habitability is defined, thus "safe" and "fit and proper state of repair" are superfluous

Clause 6 S4B “(11) Landlords must provide a tenant with a dwelling that is in a habitable condition, as well as maintain the existing structure of the dwelling and where possible facilitate the provision of utilities to the dwelling.”

Organisation of Civic Rights (OCR): | Clause 6. Section 4A(3) RHAB: "(3) On the expiration of the lease, tenants have the right to receive payment of the deposit and interest without any deduction or set-off, within seven days of expiration of the lease: Provided that where the tenant –" | #1: The deposit should be restricted to an amount equivalent to one months rental | #1 BASA indicated that the practice is two months rent. The impact of such a  restriction will first have to be investigated and accordingly justified as it impacts on the risk management conducted by landlords on rental stock | No amendments made
| | #2 the deposit should be payable to the tenant upon vacating the premises. Tenants have to pay deposit at a new place and need that deposit as most places require a deposit upfront. | #2 No balanced resolution was provided. Landlords must be able to determine damages upon a tenant moving out of the premises, prior to refunding the deposit. The disparity could rather be addressed by section 2(5)(b) by way of Government intervention | No amendments made

Organisation of Civic Rights (OCR):

Clause 7, Section 5(6A) (RHAB): "“(6A) The Minister must prescribe a pro-forma lease agreement, in all 11 official languages, containing minimum requirements for a lease agreement which may be used as a guideline by the tenants and landlords.”."

#1 (Page 9 -1 0) The landlord can still issue a lengthy difficult to read document: Mandatory requirements for inclusion in a lease should be:
- Implied warranty of habitability
- Landlord to be responsible for all maintenance and repairs, internal and external
- Jurisdiction in the event of an unfair practice dispute will be the Tribunal
- Breach allows for cancellation provided proper notice is given to remedy the breach within 14 days
- Proper contact details of the parties;
- The role of the agent, if any

#1  - all the rights and obligations which includes the ones mentioned are deemed to be included in a contract (section 5(3))
- Tribunals have preferred jurisdiction on unfair practices. A court may refer such a matter to to Tribunal. This is sufficient prescription iro jurisdiction. Any further prescription will serve to oust the jurisdiction of the courts & requires further consultation.
- Breach is provided for by common law and does require reasonable notice etc. The tenant is  in any event protected by the rule iro eviction against immediate cancellation.
- The role of an agent is only applicable if there is an agent. 
The idea was to keep the contract as short as possible, whilst including the essentials

No amendments made

| | #2 (Page 10) The pro forma document MUST be used | #2 The intention was only to assist those who cannot draft their own document. “Fair” contract terms cannot be prescribed in this manner | No amendments made
Organisation of Civic Rights (OCR): | Clause 14, Section 15 (3) (RHAB): “(3) The Minister must issue regulations as contemplated in section 1(b), (f), (fA) and (fB) within 12 months of the commencement of the Rental Housing Amendment Act, 2012.” | #1 These regulations should already be in place. The Tribunal cannot function without it | #1 As per the Chairperson: The Department is still getting its house in order. These regulations will be prioritised | No amendments made

Organisation of Civic Rights (OCR):

Clause 18, Section 17A (RHAB): "“17A. Appeal. - (1) Any person who feels aggrieved by the decision of the Tribunal may appeal to the MEC against that decision, in the prescribed manner.
(2) The application to appeal the ruling of the Tribunal must be made in writing with 21 days of receipt of the decision.
(3)  The MEC may appoint an Advocate or Attorney of the High Court of South Africa, whether internal or external to the Department, to consider the appeal and make a recommendation to him.
(4) The MEC must finalise the appeal within 30 days of referral and may refer the decision back to the Tribunal, or confirm, set aside or amend the decision.
(5) The Minister must prescribe the circumstances under which an application for appeal may be submitted, including the procedure for appeal.”

#1 (page 14) This compromises the Tribunal - "It renders it as an appendage of the DHS such as a housing board or administrative functionary."
#2 Often the MEC is the landlord
#3 Cannot have one person considering an appeal from 3 people
# 4 The appeal should rather be to courts iro merit and then a review iro process
#5 A Rental Housing Appeal Tribunal or - Appeal Court would be more appropriate

DHS must guide us on the possible use of one of their existing agencies. The Committee could also reconsider all the options that were discussed before

No amendments made yet

SALGA: | Clause 3 - S3(6) AB: "(6) Provincial Government must financially assist local municipalities not yet on level three accreditation, in establishing Rental Housing Information Offices as contemplated in section 14" | #1  (Page 4, 2nd par) This is welcomed by SALGA, and was one of their comments in the previous submission it made. However, SALGA is concerned about the obligation to establish RHIO being compulsory (see comment at S14) | #1 This must be consulted on with Treasury | No amendments made  – Consultation to inform the Committee
SALGA: | S14 Principal Act: "A local authority may establish a Rental Housing Information Office..." | #1 The Bill seeks to make this compulsory so as to improve access to the services of Tribunals. SALGA is concerned (par 2.1., page 3, bottom) that if the Tribunal is not functioning effectively, Municipalities will be held accountable for failure of a function beyond their control | #1 This argument is not supported. Tribunals are responsible for their own performance only, not for the functioning of rental housing services in a province. | No amendments made
| | #2 (Page 4, top) "Housing is an unfunded mandate for Municipalities". Making this compulsory is "just another extension of this unfunded mandate". | #2 This must be consulted on with Treasury | No amendments made  – Consultation to inform the Committee
| | #3 (Page 4 centre) Establishing RHIO should not be compulsory for all municipalities. It should only be obligatory for municipalities that have been assigned the housing function by MECs | #3 The need for information is present in all Municipalities | No amendments made

SALGA:

S15 Principal Act: "(1)  The Minister must after consultation with the standing or portfolio on housing and every MEC, by notice in the Gazette, make regulations relating to -"

Clause 14 S15(1) (RHAB):  ‘‘Subject to subsection (3), [The] the Minister [must] may make regulations, after consultation with the [standing or portfolio on housing] relevant parliamentary committees and every MEC, by notice in the Gazette, [make regulations] relating to—’’

#1 S163 of the Constitution requires Ministers and MECs to consult with the National Organisation representing Local Government. This bill does not provide for such consultation. It should be amended to also provide for consultation with organised local government

#1  S163 does not place an obligation to consult - only a mechanism to do so. The resultant Act, the Organised Local Government Act 52 of 1997,  provides in s 3 for participation of these bodies in the NCOP and in S4 sets out the consulting mechanism. This does not place any obligation to consult. If the Committee wish to add this requirement, an Example of possible wording: National Housing Act   107 of 1997: "7.   Functions of provincial governments.—(1)  Every provincial government, through its MEC, must, after consultation with the provincial organisations representing municipalities as contemplated in section 163 (a) of the Constitution, do everything in its power to promote and facilitate the provision of adequate housing in its province within the framework of national housing policy.

No amendments made

Western Cape Provincial Government:

General Comments

#1 "dwelling", "home", "property" and "rental housing property" are used interchangeably

#1  Corrected home - but not in long title of the PA
#1 Corrected property, but not in Sections 4A(8)(b) and 15(1)(f)(iii) as these sections refer to any property

Home to Dwelling:
* Clause 6 - S4A (8) (a) 	
* Clause 6 - S4B (11)
Rental Housing property:
* Clause 6 - S4B(9)(d)
* Clause 7 – S5(6)(h)
* Clause 10 – S9(1)(b)(i)

| | #2 "Tribunal" and "tribunal" are used interchangeably | #2 Corrected Tribunal but not in section 7 as tribunal refers to the generic term - otherwise the section would not make sense | * Clause 7 – S5(3)
| | #3 Clause 18: MEC is male | #3 Corrected Clause 18 | * Clause 18 – S17A(3): “(3) The MEC may appoint an Advocate or Attorney of the High Court of South Africa, whether internal or external to the Department, to consider the appeal and make a recommendation to the MEC.“
| | #4 Must include financial implications in the memorandum of objects, as well as the rationale for the proposed amendments | #4 Made additions to the Memo | See memo – too numerous to repeat here
Western Cape Provincial Government: | Clause 1 :Section 1 (RHAB): “‘arbitrary eviction’ refers to refers to depriving a tenant of occupation of a dwelling, without an order of court made after considering all the relevant circumstances;”; | #1 (Page 3 par 9) "Arbitrary Eviction" repeats "refers to - delete one | #1 Deleted extra "Refer to" | “‘arbitrary eviction’ refers to depriving a tenant of occupation of a dwelling, without an order of court made after considering all the relevant circumstances;”;
| | #2 "Prescribed to be defined without reference to the MEC and the GG" - But also states on page 4 that the competency of the MEC to make regulations should not be removed | #2 Prescribed has been replaced in 2007 amendment already. This is thus a decision of 2007 and nothing was presented by WC or requested by the PC to indicate that this should change | No amendments made

Western Cape Provincial Government:

Clause 2 S2(5) and (6) (RHAB): 
“(5) The Minister must –
(a) monitor and assess the impact of the application of this Act on poor and vulnerable tenants; and
(b) take such action as he or she deems necessary to alleviate hardships that may be suffered by such tenants.
(6) For purposes of subsection (5), the Minister may define criteria based on age, income, or other form or degree of vulnerability that apply to such tenants or group of tenants and amend or augment the policy framework on rental housing, referred to in subsection (3) in such a manner as he or she sees fit.”.

#1  (par 20, p5) Landlords should be included in this monitoring and alleviation of hardships;

#1  Landlords are included in M&E

Clause 2: S2(5)(a) monitor and assess –
(i)	the impact of the application of this Act on landlords and tenants, and more specifically the impact on poor and vulnerable tenants; and

#2 (par 22, p 5) A M&E system for Tribunals and RHIO must also be included

#2 M&E for Tribunals and RHIO included

Clause 2: S2(5)(a) monitor and assess –
(i)  ...; and
(ii) the performance of Tribunals and Rental Housing Information Offices;

| | #3 The M&E report should inform the policy framework referred to in S2(3) | # 3 Included | Clause 2(5)(c) develop programmes, directives and guidelines or amend or augment the policy framework on rental housing, referred to in subsection (3) in such a manner as he or she sees fit, to facilitate effective performance by Tribunals and Rental Housing Information Offices.
Western Cape Provincial Government: | Clause 3 - S3(6) (RHAB): "(6) Provincial Government must financially assist local municipalities not yet on level three accreditation, in establishing Rental Housing Information Offices as contemplated in section 14" | #1 This is an unfunded mandate. The word "financially" should be removed from the sentence or "Provincial" replaced with "National". Ss 214, 227 and 229 of the Constitution implies that Municipalities only get funds from their own revenue or from National transfers out of the fiscus. This could of course be funded by the National Department, e.g. the Human Settlements Grant. | #1 This must be consulted on with Treasury – even if in a study group meeting | No amendments made – Consultation to inform the Committee
Western Cape Provincial Government: | Clause 6, section 4B(5)(a) (RHAB): "(a) failure by the landlord to inspect the dwelling in the presence of the tenant as contemplated in this subsection is deemed to be an acknowledgement by the landlord that the dwelling is in a good and proper state of repair, and the landlord will have no further claim against the tenant who must then be refunded the full deposit plus interest by the landlord as contemplated in subsection (4)(a); or" | #1 It seems the section refers to (3)(a), not (4)(a) | #1 Corrected | Clause 6 – S4B(5)(a)	failure by the landlord to inspect the dwelling in the presence of the tenant as contemplated in this subsection is deemed to be an acknowledgement by the landlord that the dwelling is in a good and proper state of repair, and the landlord will have no further claim against the tenant who must then be refunded the full deposit plus interest by the landlord as contemplated in subsection (3)(a); or
Western Cape Provincial Government: | Clause 6, Section 4B(8) (RHAB): (8)   Landlords may inspect the dwelling during the course of the lease, but in doing so must respect tenants right to privacy during the lease period and may only exercise his or her right of inspection in a reasonable manner after reasonable notice to the tenant. | #1 It is suggested that "giving" be inserted between "after" and "Reasonable" | #1 Corrected | Clause 6. S4B(8)  “Landlords may inspect the dwelling during the course of the lease, but in doing so must respect tenants right to privacy during the lease period and may only exercise his or her right of inspection in a reasonable manner after giving reasonable notice to the tenant.”
Western Cape Provincial Government: | Clause 6. Section 4B(9)(e) (RHAB): "claim compensation for damage to the rental housing property or any other improvements on the land on which the dwelling is situated, if any, caused by the tenant, a member of the tenant’s household or a visitor of the tenant." | #1 (page 6, par 34)  It is understood why damage on the property is required, but why on improvements - this is already to the advantage of the landlord. It is recommended that "any improvements" be deleted | #1 Improvements refers to damages to additions, whether effected by the Landlord or tenant. It has been worded more clearly | Clause 6, S4B(9) “(e)	claim compensation for damage to the rental housing property and damage to any other improvements on the land on which the dwelling is situated, if any, caused by the tenant, a member of the tenant’s household or a visitor of the tenant.”
Western Cape Provincial Government: | Clause 7, Section 5(6A) (RHAB): "“(6A) The Minister must prescribe a pro-forma lease agreement, in all 11 official languages, containing minimum requirements for a lease agreement which may be used as a guideline by the tenants and landlords.”." | #1 Provision should be made for a mechanism that would assist illiterate landlords | A pro forma document will be issued as per section 5(6A) | No amendments made
Western Cape Provincial Government: | Clause 7, Section 5(7) (RHAB): “(7)   A list of defects registered in terms of [subsection (3) (e)] sections 4A(5) and 4B(4)  must be attached as an annexure to the lease as contemplated in subsection (2).” | #1 The words :as contemplated in subsection (2) should be deleted. | #1 Amended - Lease is defined and thus this amendment can be made | Clause 7, S5 “(7)  A list of defects registered in terms of [subsection (3) (e)] sections 4A(5) and 4B(4)  must be attached as an annexure to the lease [as contemplated in subsection (2)].”
Western Cape Provincial Government: | Clause 9, Section 7 (RHAB): "[The] Every MEC [may] must within the first financial year following on the commencement of the Rental Housing Amendment Act, 2012, by notice in the Gazette establish a tribunal in the Province to be known as the Rental Housing Tribunal." | #1 This is an unfunded mandate | #1 This must be consulted on with Treasury – even if in a study group meeting | No amendments made – Consultation to inform the Committee

Western Cape Provincial Government:

Clause 10 Section 9 (RHAB): "(1)  The Tribunal consists of [not less than three and not more than five] seven members, who are fit and proper persons appointed by the MEC, and must comprise—"

#1 The MEC should still have the discretion as to the number of members

#1 Made discretion possible iro 3 or 6 members

Clause 10, S9(1) “ The Tribunal consists of [not less than three and not more than five] four or seven members, who are fit and proper persons appointed by the MEC, and must comprise--”

S9(1)(b)  [not less than two and not more than four] three or six members, of whom—
(i)	[at least one and not more than] where three members are appointed, one, and where six members are appointed, two, shall be persons with expertise in rental housing property management or housing development matters; [and]
(ii)	[at least one and not more than] ] where three members are appointed, one, and where six members are appointed two, shall be persons with expertise in consumer matters pertaining to rental housing or housing development matters; and [.]
(iii)	 where three members are appointed, one, and where six members are appointed two, shall be persons with legal qualifications and legal expertise.”;

| | #2 The splitting of the committee into two should also be discretionary | #2 Amended | Clause 10, S9 (1C) “The Tribunal may function as two committees, each with three members with the expertise set out in subsection (1)(b)(i), (ii) and (iii) respectively and with one committee being chaired by the chairperson and the other by the deputy chairperson: Provided that the chairperson and the deputy chairperson must on a regular basis rotate as chairperson between the meetings of the two committees.”
| | #This is an unfunded mandate | #1 This must be consulted on with Treasury – even if in a study group meeting | No amendments made – Consultation to inform the Committee
Western Cape Provincial Government: | Section 12 Principal Act: "(3)  An annual report on the activities of the Tribunal must be submitted by the chairperson of the Tribunal to the MEC as soon as possible after, but within four months of, 31 March in each year." | #1 No guidance is given as to what must be reported on. This should be set out in the bill | This is an aspect that can be cleared with the MEC and if the reports differ greatly, the Minister may by regulation assist (section 15). This is not an aspect on which permission was sought to amend. If this aspect is addressed now, additional permission must be sought | No amendments made

Western Cape Provincial Government:

Clause 12, Section 13 (12B) (RHAB): "(12B)  The Tribunal may act on its own accord when it is supplementing accessory or consequential matters, including:--
(a) costs orders;
(b) altering an order for costs where it was made without hearing the parties;
(c) interest on ruling debts; 
(d) clarification of a ruling so as to give effect to the Tribunal’s true intention; and
(e) correcting clerical, arithmetical or other errors in its ruling:
Provided that any substantive change to a ruling must be made within 14 days of the ruling being made."

#1 This is unclear and should be redrafted

#1 Amended

Clause 12. S13

‘‘(12A) 	The Tribunal may, acting on request of one of its members ~~(its own accord)~~ or on application by any affected person, rescind or vary any of its rulings if such rulings—“

(12B) “The Tribunal may on request of one of its members ~~(its own accord)~~ supplement or amend accessory or consequential matters, including:”

Western Cape Provincial Government: | Clause 15 (RHAB): “15. Chapters 4 and 5 of the principal Act are hereby amended by removing section from Chapter 4 and inserting it under Chapter 5 before section 16.” | There is a missing word between section and from | #1 Section "15" inserted | Clause 15 - 15. Chapters 4 and 5 of the principal Act are hereby amended by removing section 15 from Chapter 4 and inserting it under Chapter 5 before section 16.

Western Cape Provincial Government:

Clause 18, Section 17A (RHAB): "“17A. Appeal. - (1) Any person who feels aggrieved by the decision of the Tribunal may appeal to the MEC against that decision, in the prescribed manner.
(2) The application to appeal the ruling of the Tribunal must be made in writing with 21 days of receipt of the decision.
(3)  The MEC may appoint an Advocate or Attorney of the High Court of South Africa, whether internal or external to the Department, to consider the appeal and make a recommendation to him.
(4) The MEC must finalise the appeal within 30 days of referral and may refer the decision back to the Tribunal, or confirm, set aside or amend the decision.
(5) The Minister must prescribe the circumstances under which an application for appeal may be submitted, including the procedure for appeal.”

#1 Do not support the creation of an appeal. The process is often emotional rather than legal issues. An Appeal will be abused. The finalisation of cases within 90 days is very useful and an appeal will prolong this
#2 MEC is often a party to the case
#3 Members of the Tribunal are appointed by the MEC and having to appeal to the MEC takes away their autonomy and independence
#4 Tribunal acts as small claims court which has no appeal
#4 This would result in increased costs for the parties involved

DHS must guide us on the possible use of one of their existing agencies. The Committee could also reconsider all the options that were discussed before

No amendments made yet