CONSUMER PROTECTION ACT NO 68 OF 2008 Presented by ...

CONSUMER PROTECTION ACT NO 68 OF 2008

Presented by Mamodupi Mohlala of Mohlala Attorneys

PURPOSE

The main purpose was to bring the much needed

balance in the market place by balancing the bargaining power between business and consumers, by creating a legal framework that is fair and responsible and for the benefit of consumers ;

Provides a mechanism for redress for consumers

especially those who are low – income consumers, where they live live, age or level of literacy

PURPOSE AND MANDATE OF THE ACT

BACKGROUND LEADING UP TO THE PROMULGATION OF THE CPA

Background (leading to enactment of the CPA) Environment – not conducive • Consumer abuse • Abuse of SMME • discriminatory and unfair market practices • proliferation of low-quality and unsafe products • lack of awareness of rights • limited redress

Reports confirmed lack of conducive consumer environment namely : • An International Legislative Benchmarking Study • A South African National Consumer Survey • A Review of Consumer Protection Measures in South Africa • Dti Complaints statistics

BACKGROUND LEADING UP TO THE PROMULGATION OF THE CPA

Legislative and Regulatory environment • Fragmentation of consumer protection law -

encapsulated in other legislation; • Premised on outdated principles – pre democracy

values; • Resulting in uneven regulation, with heavy regulation in

some industries, and a reliance on self-regulation in others;

• The legislative framework then did not address the challenges of discriminatory and unfair market practices ;

• Redress was limited and enforcement systems were weak.

• the dti wanted promote an economic environment that supports and strengthens a culture of consumer rights and responsibilities

BACKGROUND LEADING UP TO THE PROMULGATION OF THE CPA – SHIFTING

POWER Policy interventions – CPA • Legislative Review culminated in the publication

of Draft Green Paper on Consumer Policy Framework- 2004.

• Promoted a rights-based approach to consumer protection as in many other jurisdictions

• comprehensive laws that outlined the rights and obligations of consumers upfront.

• This resulted in the promulgation of the Consumer Protection Act No 68 of 2008 which is an omnibus consumer protection legislation

PURPOSE OF THE CPA – PROTECTING CONSUMERS FROM UNFAIR BUSINESS

PRACTICES The core purposes of the CPA are • to promote and advance the social and economic welfare of

consumers in South Africa by— - Establishing a legal framework for the achievement of a

consumer market that is fair, accessible, efficient, sustainable and responsible

- Reducing and ameliorating any disadvantages experienced by vulnerable consumers in accessing goods or services

- Promoting fair business practices & protecting consumers from improper conduct

- Improving consumer awareness and encouraging choice - Promoting consumer confidence and empowerment - Providing a consistent, accessible and efficient system of

consensual resolution of disputes; and - Providing for an accessible, consistent, harmonized,

effective and efficient system of redress for consumers.

IMPACT OF THE CPA

The Act has the following scope of application: • Protection of consumers against unfair business

practices; • Protection of consumers against unsafe products

and services; • Provision of a regulatory framework for rapid

redress; • Provision of consumer education; • Provision of free legal tools to consumers in case of

disputes with businesses; • Businesses will get feedback from their consumers

on the quality of their products and services;

KEY CONSUMER PROTECTION PROVISION

THE CHAPTERS OF THE CPA THAT ARE CRITICAL TO ENFORCEMENT OF FULL PROTECTION FOR THE CONSUMER : CHAPTER 1 – INTERPRETATION , PURPOSE AND APPLICATION CHAPTER 2 – FUNDAMENTAL CONSUMER RIGHTS CHAPTER 3 – PROTECTION OF CONSUMER RIGHTS AND CONSUMER VOICE CHAPTER 4 - BUSINESS NAMES AND INDUSTRY CODES OF CONDUCT CHAPTER5 – CONSUMER PROTECTION INSTITUTIONS CHAPTER6 – ENFORCEMENT OF THE ACT CHAPTER 7 - GENERAL PROVISIONS

CHAPTER 1 -INTERPRETATION , PURPOSE

AND APPLICATION - JURISDICTION

• INTERPRETATION - INTERNATIONAL LAW AND CONVENTIONS

• Important and unique tool is reference to international best practise when applying the provisions of the CPA whether as an individual, a court,the tribunal and the NCC;

• Practical – used in a lot of Motor Vehicle recall cases especially in the USA.

CHAPTER 1 – INTERPRETATION , PURPOSE AND APPLICATION - JURISDICTION

• CPA APPLICABILITY

• The CPA applies to all transactions in the ordinary course of business

that involves the promotion and transacting of goods and services

(whether transacted on separately or jointly) unless exempted.

• Exempted industries

– Banking section 14

– Insurance long term and short term – 18months post 01. 04.11

– Pensions

– Labour relations disputes

– Credit agreements – manner of conclusion but not terms and

conditions


– DEFINITION OF CONSUMER – ORDINARY (definitions section) – all consumers of groups –consumers of goods and

services; – Juristic person - A business with a will be defined

as a consumer (section 2(5)) – R 2 million annual turnover or asset value – MCTS case

– A third party who is the consumer of the goods or services irrespective of whether that person was a party to the transaction concerning the supply;

– Franchisee in terms of a franchise agreement; – E.g. Prisonsers, animal rights groups, pensioners

in retirement homes.


– DEFINITION OF CONSUMER - CONTINUED – VULNERABLE CONSUMERS (section 3(1)(b))

• Marginalised communities – low income consumers;

• Persons residing in rural and peri - urban

areas –remote , isolated or low density areas;

• Persons challenged from a literacy, age

i.e. youth, minors, pensioners and other vulnerable groups


• Definition of consumers - exclusions

• Government departments;

• Entities above the Ministerial threshold of R 2 million;

• Credit agreements terms and conditions;

• Persons in an employer and employee relationship.


• Definition of Supplier • Any person who markets goods or services • Definition of Goods Includes (d) a legal interest in land or any

immovable property other than interest that falls within the definition of service

• Definition of Service Provision of accommodation or sustenance; Right of access to or use of any premises or other

property in terms of rental; Right of occupancy of or power or privilege over in

connection with any land or immovable property

CHAPTER 2 – FUNDAMENTAL CONSUMER RIGHTS

• PART A – RIGHT OF EQUALITY IN CONSUMER MARKET

• SECTION 8- Protection against discriminatory marketing

• Medical aid provisions

»Late Joinder Penalty fee

»Pregnancy benefit

»Waiting period – 3 -12 month

• Section 10 –Referral to the Equality Court


• PART B – CONSUMERS RIGHT TO PRIVACY

• Opt out register

– Pre – emptive block;

– Established by NCC;

– Biggest data base in RSA;

– Provided for free of charge to the consumer.

• Regulation of direct marketing

– Manner and time of conducting direct marketing.


• PART C – CONSUMERS RIGHT TO CHOOSE • Section 14 – renewal of fixed term contracts

• 20 business day notice period in writing or other agreed method

• Reasonable cancellation penalty – 3 months

• E.G lease agreements ,health and fitness , MCTS, timeshare

• Section 15 – pre- authorization of repair or maintenance service

• E.G. repair of vehicles must on each element of specification or quote get express approval


• Section 20 – Consumers Right to Return goods

– Right to Return Goods -

– Return and full refund

– Exceptions where refunds not permissible:

• Public health

• Disassembled or physically altered


• PART D – RIGHT TO DISCLOSURE OF INFORMATION

• Right to disclosure of information in plain and understandable language

• Disclosure of price of goods and services

• Product labelling and trade descriptions

• Sales records

• Disclosure of intermediaries


• PART E – RIGHT TO FAIR AND RESPONSIBLE MARKETING

• Section 29 - General standards for marketing of goods or services

• Not mislead concerning the goods or services;

• Mislead on the nature of the nature , properties , advantages or uses of the goods or services;

• Mislead on the Manner in and conditions of goods or services;

• The price at which goods may be supplied.


• PART F – RIGHT TO FAIR AND HONEST DEALING

• Section 41 - false, misleading or deceptive representations

– Not mislead;

– Not exaggerate, innuendo or ambiguity or fail to disclose a material fact if that failure amounts to deception;

– Failure to correct an apparent misapprehension on behalf of the consumer amounting to false, misleading or deceptive representation


Section 41 3 (c) – state land or immovable property has characteristics that it does not have

• Can be lawfully used for a purpose that it cannot in law be used for;

• Has or is proximate to any facilities, amenities or natural features that it does not have.


• PART G – RIGHT TO FAIR JUST AND REASONABLE TERMS AND CONDITIONS

• Section 48 (1):

• Provide goods or services at an unfair , unreasonable or unjust terms and conditions or prices

• Section 48(2):

• Definition of a term that unfair , unreasonable and unjust is if it is excessively one sided, terms very adverse to the consumer, consumer relied on a statement that was detrimental to them


• Section 49 - Notice Required for certain Terms and Conditions

• Where assumption of risk by consumer;

• Where contract have unusual or unexpected terms and conditions;

• Could result in serious injury or death.

CHAPTER 3 – PROTECTION OF CONSUMER RIGHTS AND CONSUMER VOICE

• PART A -Section 69- Enforcement of the Rights of the Consumer

• Consumers can Enforce Rights at the following forums:

• Consumer Tribunal – section 75& 116 – 3 year prescription – schedule 2 section 8 (1)- Referred by NCC or so declared

• Ombudsman Accredited in terms of section 82(6)- process defeats purpose of CPA – judge and jury in own cause

• Consumer Court of the Province with jurisdiction / ordinary courts – ranking with tribunal binding effect of decisions of one consumer court in other provinces especially if offender is the same

• Alternative Dispute Resolution Agent (section 70)– established conciliation/mediation challenged independence

• Compliant with NCC (Section 71) – challenge section 71 refers to section that is none existent in the CPA namely section 69(1)©(ii)

CHAPTER 3 – PROTECTION OF CONSUMER RIGHTS AND CONSUMER VOICE

• PART A -Section 73- outcome of an investigation • Issue notice of non – referral – alternative ombud/tribunal – NCC

protocols • Refer matter to NPA – • Where there is perception of criminal conduct i.e. auctions section

45(5)© fraudulent conduct • Refer to the Equality Court –section 10 • Discriminatory conduct that is not protected in terms of the

Constitution. • Consent order – section 74 • Issued after conciliation/mediation – parties reach amicable

agreement • Confirmed by tribunal • Compliance notice – section 100 – • 100(1) declare conduct prohibited before issue compliance notice; • Section 100(4) reading of the wording effective once issued refused to

comply until sanctioned by tribunal; • Section 100(6) administrative fine what point is it included after

issuance of compliance notice or compliance certificate

CHAPTER 4 - BUSINESS NAMES AND INDUSTRY CODES OF CONDUCT

• SECTION 80 & 81 – BUSINESS NAMES

– Registration of Business names by CIPIC – Any name or combination of names numbers

or symbols (+,&,#,@,%,=) and in any language ,

– Subject to not cause confusion with any other name of a juristic person, registered trade mark registered in South Africa or registered in terms of the Merchandise Marks Act,

– Must not falsely imply or suggest association with a person or company not so associated.

CHAPTER 4 - BUSINESS NAMES AND INDUSTRY CODES OF CONDUCT

• Section 82 – Industry Codes

• include or exclude

• ombuds or ADR scheme- established by lawyers – guidelines;

• Code of conduct – drafting lawyers.

• Industries approached NCC –

• retail multifaceted -includes franchise etc;

• Auction industry;

• Motor vehicle;

• Airline industry .

CHAPTER 5 – CONSUMER PROTECTION INSTITUTIONS

• SECTION 83 &84 – CONCURRENT JURISDICTION- NATIONAL AND PROVINCIAL CONSUMER PROTECTION AUTHORITIES

• Provincial Consumer Protection Authorities jurisdiction on any prohibited conduct occurring in the province concerned- issue compliance notices on behalf of the NCC,mediate or conciliate, refer consumer court in the province, request NCC to initiate an investigation;

• National Consumer Commission jurisdiction on prohibited conduct nationwide – view deal with escalation only from Province, Minister direct investigation, appointment of Commissioner, investigators and inspectors i.e appointed inspect shops same as health inspectors ;

• MIN-MEC to co - ordinate reporting on activities

CHAPTER 5 – CONSUMER PROTECTION INSTITUTIONS- CONTINUED

• National Consumer Commission • Section 93-codes of practice

• Use of Plain and simple language

• Standards or uniform means of

presenting and communicating

information

• ADR

• Any other matter

• Section95- promote consumer protection with other

organs of state

• Section 97 – relations with other regulatory authorities

• Section 98- advice and recommendation to the Minister

• Enforcement functions of Commission

• Compliance notices

• Investigations – summons, enter and search warrant, powers to enter and search, conduct of entry and search and confidential information

• Offences and penalties -breach of confidence, obstructing application of the Act, offences relating to tribunal and prohibited conduct, penalties, administrative fines

CHAPTER 6 – ENFORCEMENT OF THE ACT

Thank you

Presented by Mamodupi Mohlala – Mulaudzi (Chairperson of the Gauteng Rental Housing Tribunal)

RHA – PRESENTATION - OUTLINE

• BACKGROUND • GRHT - STRUCTURE • GRHT - TYPES OF COMPLIANTS • GRHT – NATURE OF STRUCTURE • RENTAL HOUSING ACT

– CHAPTER 1 - DEFINITIONS – CHAPTER 2 – PROMOTION OF RENTAL HOUSING

PROPERTY – CHAPTER 3 – RELATIONS BETWEEN LANDLORD

AND TENANT – CHAPTER 4 – RENTAL HOUSING TRIBUNAL – AMENDMENTS TO THE ACT

• GRHT - TRENDS

2

RHA - BACKGROUND

• Historical rationale for the establishment of tribunal. • The issue of land and shelter in urban areas has always

been an issue of dispute in South Africa’s history i.e this is more so in the context Africans in urban areas;

• The Democratic Government decided rather than leave issues to market forces where the bargaining power between the landlord and tenant is not equal there needed to be a legislative intervention that would establish an institution established to be an independent arbiter to mediate between these two parties;

• There was also a recognition that the rights of the tenant needed to be balanced against those of the landlord so as not to discourage investment in the property market by would be investors.

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RHA - BACKGROUND

• This resulted in the promulgation of The Rental Housing Act No 50 of 1999;

• The Rental Housing Act provides for the following : – Chapter 1 – introductory provisions – Chapter 2 – promotion of rental housing

property – Chapter 3 – relations between tenants and

landlords – Chapter 4 – housing tribunal – Chapter 5 – general provisions

4

RHA – STRUCTURE –(C4)

• The GRHT is composed of seven members: – Chairperson; – Deputy chairperson; – Three permanent members; – Two alternate members; – secretariat

• Quorum – Three members of the tribunal at any given time;

• Sittings – Johannesburg and Pretoria – To introduce Ekhuruleni and Sedibeng – Mediation – Johannesburg, Pretoria,Ekhuruleni,

Sedibeng

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RHA- TYPES OF COMPLAINTS-(C4)

• Deposit Refund;

• Maintenance;

• Arrear rental;

• Arrear water and electricity charges;

• High rental charges or rental charges;

• Damage to property;

• Contract interpretation;

• Eviction or lock out without a court order;

• Electricity and water cutt off without a court order.

6

RHA – NATURE (1) – (C4)

• Rental Housing Tribunal -Nature and Purpose – Nature of tribunals – Provincially established by MEC notice in the Gazette – Services provided for free at no cost – Purpose of the tribunals – Tribunal established with the purpose of resolving

complaints between landlords and tenants emanating from provisions of a lease agreement written or oral

– Functions • Ensure the objectives of the ACT are upheld • Statutory body • Any other obligations aimed at ensuring that there is equity

and leveling of the playing field between landlord and tenant.

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RHA– NATURE (2) –(C4)

• Gauteng Rental Housing Tribunal - Functions

• The GRHT is a quas1 – judicial entity ( which we means we assume the persona of court but are flexible in that we hear presentations by non – legally qualified;

• GRHT is the equivalent of the Magistrates court presiding over a civil matter;

• We have powers to subpoena witnesses and any other party necessary to facilitate the proceedings of the tribunal;

8


• Gauteng Rental Housing Tribunal – Complaint handling

• Who may lodge a complaint – Individual tenants or landlords

– A group of tenants or landlords

– Legal representative of tenants or landlord if properly mandate

• How is a compliant lodged – the compliant must be presented in writing

and delivered to tribunal;

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• Jurisdiction • Complaints between landlord and tenant and any

obligations emanating from the lease agreement i.e. – storage of goods in residential premises no jurisdiction – Sub – tenants do they have jurisdiction – Hi – jacked building landlords do they have right to bring

a compliant

• Tribunal processes on receiving a complaint – Upon receipt of a compliant must within 30 days

determine if there is an unfair practise – struggling to meet these time limit , even with urgent matters need to be heard within 48 hours not meeting these timelines i.e capacity, resources and knowledge.

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– thereafter open a file, give reference number , details of parties and address of dwelling;

– The tribunal conducts a preliminary investigation

to determine whether there has been an unfair practice.

Appointment of inspectors

– Where necessary instruct an inspector to inspect the property ie. Inspectors used on comparable rental, maintenance and now enforcement of orders because less co – operation from police. – stressful on resources

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– Tribunal processes and procedures of the tribunal for dispute resolution: • Mediation • Arbitration - hearing

• Mediation – Voluntary; – Attendance is a problem as there are no

consequences for non – attendance; – When reach settlement made an order of

the tribunal; – If no settlement refer to the tribunal for

hearing.

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• Arbitration – tribunal hearing – Quorum three or more members;

– Recorded;

– Quasi –judicial - inquisitorial, not completely formal;

– Free of charge;

– Obligatory and binding;

– Formal hearing as in a court of law – opening hearing, give oath, complainant ,respondent and witnesses testimony;

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– reply and respond and tribunal adopts inquisitorial approach to arrive at the truth and where unable use powers of equity to resolve the matter;

– Language – English and interpretation any of the official languages;

– ruling within 18 – 21 days of the hearing;

• Urgent matters –cases heard on an urgent basis

– Heard within forty eight hours of complaint being lodged;

– Evictions or lock – out without a court order;

– Cutt off of electricity and water or other utilities without a court order, removal of doors and roof.

14


– Make orders – • rule nisi – urgent cases - order restore occupation or reconnect

electricity within hours of the order (if disconnected without court order)

• Postponements – request of parties, need more evidence, • Interim orders – inspections on maintenance and comparable

rental, interim rental payments and interim discounts • Final orders sounding in monetary terms i.e problem with specific

performance if in default • Implications of failure to comply with order

– Compliance within 15 days of the order;

– Interest on the debt at the rate of 15.5% from date of default to date of payment;

– Refer to Magistrates court to sanction – Writ of execution : Refer to sheriff to create inventory and if fail to present guarantee

for the principal debt attach and remove assets as sold in execution – Garnishee order – Fine or period of imprisonment

15

RHA – CHAPTER 1

• Definitions • Dwelling

– “Includes any house, hostel room , hut, shack, flat, apartment, room, outbuilding, garage or demarcated parking space which

is leased as part of the lease.” ISSUES 1. CARAVAN PARK 2. LIMITED CLAIMS FROM BACKROOM

DWELLERS IN TOWNSHIP 3. RIGHTS WITH RESPECT TO PARKING SPACES

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RHA – CHAPTER 1

• House Rules – “means the rules in relation to the control ,management

,administration, use and enjoyment of the rental housing property”

• ISSUES – Used to prevent over crowding – Abuse rights of tenants with respect to number of tenants

i.e rights of access by tenants visitors, or to hamstring the rights of a tenant e.g. tenant in a block of flats with elderly tenant not happy about hippy lifestyle changed house rules to prevent him charging his motor bike on the plug next to his parking space once a week and also prevented braaing by tenants of ground floor tenants where the Complainant happened to reside;

– Negotiated and agreed between parties (landlord and tenant because now only landlord and body corporate)

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RHA – CHAPTER 1- DEFINITIONS

• Lease – “means an agreement of lease concluded

between tenant and a landlord in respect of a dwelling for housing purposes”

– ISSUES

– Written Leases – no need for it to be written/amendment bill – pro forma lease.

– Storage when get premises and never move i n but leaves furniture – is this for housing purposed is it a lease

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RHA– CHAPTER 1- DEFINITIONS

• Landlord

• “means the owner of a dwelling which is leased and included and includes his and her duly authorised agent or a person who is in lawful possession of a dwelling and has the right to lease.”

• Tenant

• “means the lessee of a dwelling which is leased by the landlord”

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RHA – CHAPTER 2 - PRHP

• Promotion of Rental Housing Property • Section 2 – places an obligation on Government to

promote access to affordable housing among HDIs by removing discrimination against people because they are poor and introduction incentives and other mechanisms that: – Improve conditions in rental market; – Encourage investment in urban and rural areas that need

rejuvenation and resuscitation; – Facilitate new development aimed at correcting

distorted (by apartheid)patterns of settlement. ISSUE : balance the interests of investment in rental industry versus

the rights of the tenant. Difficult balancing act.

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RHA – CHAPTER 2

• Measures to increase provision of Housing Property

– Minister to introduce Rental housing subsidy measures;

– Money to be appropriated to the South African Housing Fund to finance the programme annually;

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RHA – CHAPTER 3

• Relations between Tenants and Landlords

• When providing access to premises in the open market

there is to be no discrimination against a potential tenant or bona fide visitor either based on – Race ,gender, disability, religion ,conscience ,belief ,culture , language and birth. ISSUE – Landlords condemn visitors and argues that potential for over

crowding or sub - leasing; – Had case of block of flats next to taxi rank for taxis from

Zimbabwe the tenants would house persons and charge a fee for the first few months of arrival in Johannesburg. i.e. Overcrowding and a security risk and burden on infra - structure

– Tenants argue that the bona fide visitors must be allowed and duration on of stay not stipulated

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RHA – CHAPTER 3

• Deals with the tenants right to privacy vis a vis the landlords right of search;

• The tenant has a right not to have his/her property searched and seized or removed without a without a court order;

• The tenant has the right to have privacy over his or her communication

• The landlord has the right to receive rental and other charges related to the lease.

• The landlord can terminate the lease but can only evict with a court order;

• Landlord tend to charge late rent or services – this is prohibited by the RHA except only if the entity charging the penalty ia a registered debt collector but even then they must use the tarrif provided for debt collectors and can not charge at will;

• The landlord has a right to claim damages for any damage effected to property.

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RHA – CHAPTER 3

• ISSUE – Landlords tend to discriminate according to

conscience and culture and political affiliation e.g • a flat with a lot of pensioners were not happy that there was a motor cyclist

who would electrically charge his motor bike once a week and cause no noise but claimed disturbing. Further would braai every Sunday was on a ground floor unit others on top floor complained affects their health – amended house rules to try and exclude complainant

• Others who hold meetings for certain political parties are evicted.

Tenants at times also abuse their rights not to be evicted without a court order

– Tenants abscond and abandon premises and leave premises sparsely furnished and because the landlord does not want to be seen to evict allow this to happen for months and only approach the tribunal for arrear rental when the problem is out of hand.

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RHA – CHAPTER 3

• Return property in a good state of repair subject to fair wear and tear – Abused by tenants who at times damage property on

departure and argue it is wear and tear

– Abused by landlords that want o up- grade the premises and then they argue that tenants caused premises damages e.g a tenant wanted to change entire kitchen unit and then came and made an allegation the flat had cockroach infestation which then resulted in the need to replace the entire unit. He also argued that fumigation would not be sufficient as cockroaches had planted eggs in the cupboards but could not produce expert evidence to substantiate this

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RHA – CHAPTER 3

• Lease agreements: provides that lease agreements need not be in writing not unless it is requested by the tenant.

• ISSUE • The legislative amendment proposes that it

must be compulsory to have a written lease in fact there is an intention to have a pro – forma lease to be applicable to all lease relationships.

• Provide better protection because new growing trend of experiencing difficulty in identifying owners (as tenants deal with care takers ) and finding the owners dominicilium.

26

RHA – CHAPTER 3

• OTHER RIGHTS • Receipts for rental paid - Landlord must

present a tenant with a receipt for rental paid i.e hardly complied with in inner city

• Deposit – paid and agreed by the landlord and tenant

• Issues – Many cases for deposit refunds – Problem if paid to agent who hands it over to

landlord – then at time of refund landlord can not be found – approach the EAAB fidelity fund for refunds if agent is at fault

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RHA – CHAPTER 3

– Deposits not kept in interest bearing accounts –interest on a savings account 3% - 5% per annum;

– Deposit can be used to repair damaged premises or lost keys;

– No defects or damages refund deposit within 14 days of vacating.

• Joint entry and exit inspection - record defects in writing and remedy during tenancy . Check again on vacating if any changes have occurred.

• Should there be no joint exit inspection (due to fault of landlord) assumption is property returned in correct state of repair and landlord could not deduct anything for damages and must therefore refund the deposit in full.

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RHA – CHAPTER 3

• STANDARD CONTENTS OF A LEASE – Names of parties

– Description of dwelling

– Rental amount

– Frequency of rental payments

– Deposit payable

– Lease period

– Obligations of landlord or tenant

– Copy of house rules applicable if any.

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RHA – CHAPTER 4

• OBLIGATIONS OF LANDLORD – Lease in writing – Lease out premises in condition fit for human

habitation – Ensures that tenant enjoy undisturbed habitation

and where multi tenanted dwelling ensure that the party does not affect the others rights or contravene the regulations and maintain the peace and adopt house rules

– Maintain the premises and this includes undertaking reasonable repairs where necessary i.e landlord repairs exterior and common areas and the tenant repairs inside dwelling

30

RHA– CHAPTER 4

• OBLIGATIONS OF TENANT • Use premises for purpose let out for i.e shebeens

and drug manufacturing plants; • Keep dwelling clean by disposal of rubble and

rubbish • Refrain from intentionally damaging the premises

or any of its components; • Return dwelling the manner he found it fair wear

and tear taken into account i.e what is wear and tear;

• Maintain internal part of premises • Maintain garden and pool • Comply with house rules i.e problem with

subtenant vs visitors.

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AMENDMENTS TO THE RENTAL HOUSING ACT NO 35 OF 2014

• INSERTION SECTION 4A AND SECTION 4B – “RIGHTS AND OBLIGATIONS OF TENANTS” – full elaboration of rights and obligations.

• AMENDMENT OF SECTION 5 – – the lease is to be reduced to writing; – The Minister must develop a pro – forma

lease in all official languages –minimum requirements;

– Attach sections 4A and 4B as annexure to lease.

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AMENDMENT TO THE RENTAL HOUSING ACT NO 35 OF 2014

• AMENDMENT OF SECTION 7 – Each province the MEC must establish a

Rental Housing Tribunal

– Increase number to between 4 to 7 permanent members;

– Increase number of alternates to 6 members;

– Expertise legal, consumer matters pertaining to housing, rental housing property development or housing development.

33

AMENDMENT TO THE RENTAL HOUSING ACT NO 35 OF 2014 • AMENDMENT TO SECTION 7

• Arrange two separate sittings;

• AMENDMENT TO SECTION 13

• Tribunal must within 30 days of receipt of a compliant which relates to evictions refer it to a competent court.

• Make rulings for arrear rental;

• May rescind or vary any of its rulings

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AMENDMENT TO THE RENTAL HOUSING ACT NO 35 OF 2014 • AMENDMENT TO SECTION 15 • Establishment of an Appeal tribunal. • INSERTION OF SECTION 17A • Appeal of decisions of the tribunal within 143 days of

receipt of the decision; • Procedure for appeals to be determined by the MEC; • MEC to select panel of adjudicators of the appeal; • Appeal to be finalised within 30 days of referral to

the MEC; • Appeal outcome – set aside or amend decision of

tribunal

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GRHT - TRENDS

• Trends noted in the rental housing market vis a vis the tribunal: – Student accommodation becoming an issue where we

receive complaints – Tenants increased complaints on lack of maintenance; – Landlords increased claims for arrear rental; – Landlords coming up with new ways to evade the

workings of the tribunal by not providing addresses; – High income earners living in affluent suburbs using

the services of the tribunal e.g sandhurst and hyde park with rentals of R 80 000 per month;

– Black African women being brought to the tribunal as landlords in middle income to affluent suburbs. 36

GRHT - WAYFORWARD

PUBLIC AWARENESS CAMPAIGNS

Imbizos – Target inner city residents

• Large amount of abuse in the inner city;

• Target peri – urban residents

• Large amounts abuses because of lack of literacy and access to services

• NGO groups in the province also targeted to assist with spreading information of the tribunal – Created and funded by the Department of Social

Development.

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GRHT - WAYFORWARD

• Community Development Workers

• Local Government Councillor – monthly ward meetings

• Local newspapers

• Community Radio Stations

• Community Television Stations

• Consumer Journalist – print media

– Electronic media

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GRHT - WAYFORWARD

PUBLIC AWARENESS CAMPAIGNS- II

Workshops – Legislation/regulations/new rulings

– Industry

– Professional associations

– Chambers of commerce

– media

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GRHT - WAYFORWARD

PROVINCIAL AND OTHER ENTITY CO-OPERATION • PROVINCIAL • Strengthening co ordination and interaction with

other provincial tribunals • Create a centralised data base of the nature of

complaints received i.e trends and usual suspects so that the smaller provinces can learn from each other on anticipating challenges and putting in place preventative;

• Create portal with all the rulings so that can critically discuss findings and approaches and where possible create

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GRHT - WAYFORWARD

• INTER ENTITY CO- OPERATION • When we do inspections or interventions

we need to start undertaking this with all relevant agencies so that when a report is created and action is undertaken it is done collectively and we benefit from all the agencies with the different mandates.

• Facilitate this we need to conclude MOU’s with these entities such as Estate Agency Affairs Board, Fire Department, City of Johannesburg and Environmental Inspectors

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GRHT

• THANK YOU

• KE YA LEBOHA

• NGI YA BONGA

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