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[2019] ZAGPJHC 345
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Fernflat Share Block (Pty) Ltd v Willemse and Others (14908/18) [2019] ZAGPJHC 345 (3 October 2019)
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 14908/18
FERNFLAT
SHARE
BLOCK
First
Applicant
(PTV) LTD
and
CARO
NAUDE nee
WILLIMSE
First
Respondent
CITY
OF
JOHANNESBURG
Second
Respondent
GAUTENG RENTAL
HOUSING
TRIBUNAL
Third
Party
JUDGEMENT
MATSEMELA
Al
[1.]
The Plaintiff seeks to evict the first respondent from her home in a
block of flats called Habitat, at 268 Surrey Avenue, Fernadale,
Randburg ("Habitat") where she lived since 1997. The
applicants allege that the first respondent's lease has been validly
cancelled and as a result that the first respondent is an unlawful
occupier.
BACKGROUND TO THIS
APPLICATION
[2.]
The first respondent has lived in a bachelor flat in a block of flats
called Habitat, located at 268 Surrey Avenue, Ferndale,
Randburg,
since 1997.
[3.]
At various times since November 2013, the first respondent lodged
complaints to the Tribunal regarding unfair practices committed
by
applicants. These complaints were made by her and she also assisted
various other tenants to lodge similar complaints.
[4.]
In 2015, the Tribunal dealt with the following issues raised by the
first respondent and other tenants of Habitat in their
complaints.
13.1
Locus standi
of the
complainants.
13.2 Substantial increases in rental,
and intimidation and harassment regarding alleged arrear rental.
13.3 Rentals increased without
providing the requisite two months' notice prior to the increased
rent being levied.
13.4 Deposits and interest accruing on
the deposit.
13.5 Maintenance of the premises.
13.6 Remission of rental.
[5.]
I was addressed that some of the issues which follow below were dealt
with during the course of the hearing and did not form
part of the
ruling.
5.1
The tenants provided a new mandate which dealt
with the issue of the complainants' locus standi to bring the
complaints.
5.2
The applicants presented sufficient proof that the deposits of
the complainants have been invested in an interest bearing account
as
prescribed in terms of the Act.
[6.]
On 22 August 2015, the Tribunal made a detailed ruling with these
issues. The ruling is summarized as:
6.1. The applicants were required to
undertake a variety of maintenance tasks in the complainants' flats
and the outside and common
areas of the building.
6.2. In light of the lack of
maintenance undertaken by the applicants, which led to the reduction
in the tenants' use and enjoyment
of their rented property, the
Tribunal granted the complainants a 10°/o remission of rental.
6.3. The Tribunal found that the
rental increases were reasonable in one-bedroom flats. However, the
increases were found to be
excessive in two- and three-bedroom flats
(as the increases were 34-35°/o which is substantially more than
the 10-15°/o
increase which the Tribunal held is the general rate
of increase on a twelve months cycle), particularly when backdated to
December
2013 The Tribunal ultimately granted the increased rental
sought by the applicants, less than 10°/o remission for the lack
of maintenance, but did not backdate the rental to December 2013 but
rather to December 2014.
[7.]
Since this ruling, the first respondent together with other tenants,
have lodged further complaints with the Tribunal that
were not dealt
with and such complaints appear to have been lost. The cancellation
of the first respondent's lease was first attempted
on 2 July 2016
and then again on 26 September 2017.
These
complaints include whether the applicants have committed an unfair
practice in cancelling the first respondent's lease.
[8.]
On 7 November 2018, the first respondent was asked by the Chairperson
of the Tribunal to resubmit all the complaints that she
and the other
tenants had made previously which have not been adjudicated.
[9.]
On 7 November 2018, the first respondent, along with other tenants,
submitted a multi-part complaint encompassing a wide range
of issues.
This multi-part complaint was attached to the supplementary answering
affidavit on 31 October 2018 as Annexure CNlO.
These complaints
include:
9.1 The cancellation of the first
respondent's lease is on grounds that constitute an unfair practice
because the true basis for
the cancellation is retaliation for the
previously complaints lodged with the Tribunal.
9.2 Deduction from tenants' accounts
for visitors' car park fees without any communication.
9.3 Deduction of a "cash deposit
fee" even where tenants have been paid their rent via electronic
funds transfer.
9.4 The applicants have charged
tenants for the cleaning of carpets, however those carpets have been
replaced by tiles.
9.5 The tenants were notified that
they would now be charged for water, however on the same day as the
tenants were notified of
this additional charge their monthly
invoices were generated and show that this charge has been included.
This is in breach of
the tenants' leases as well as Regulation 6( 4)
which requires two months' notice prior to increases in rental. In
addition, the
applicants refused to allow the first respondent to
view the invoices from Joburg Water as she is entitled to under
Regulation
13(1)(g).
9.6 Charges for legal fees were
deducted from the tenants' accounts. These amounts are still
reflected in the first respondent's
accounts as "outstanding
rent". This is breach of Regulation 13(1)(g).
9.7 Rent paid by the first respondent
has not been reflected on her invoices despite these discrepancies
being brought to the attention
of the applicants.
LEGAL
ISSUES
[10.]
The following legal issues were raised;
10.1
Did the Tribunal determine whether the
cancellation of the first respondent's lease is an unfair practice
and the applicants have
failed to show that the Tribunal has
dismissed the first respondent's complaints.
10.3
Were the applicants are entitled to cancel the lease without
complying with the Act.
10.4
The Tribunal is the appropriate forum to decide whether the
cancellation is on the basis of an unfair practice.
10.5
It was argued on behalf of the Respondents that, the first
respondent's lease has not been validly cancelled, and she is not an
unlawful occupier. Is the cancellation of the lease agreement on
grounds which constitute an unfair practice.
THE
TRIBUNAL HEARINGS
[11.]
On 3 April 2018, all parties appeared before the Tribunal. At that
hearing, the applicants submitted that the complaints were
res
judicata on the basis that these complaints are related to those
complaints adjudicated on in August 2015 under case number
RT
2392/14. In response to this submission, the Tribunal issued a ruling
on 7 April 2018.
The
7 April 2018 Ruling states:
"8.1 The evidence
before me is clear that both the complainants and the Respondent are
not in agreement with what is heard
before and what is not.
8.2 It is important to note that I am
not mandated to review the Ruling made by my colleague but merely
indicate which of the items
she dealt with from her ruling giving
direction to the current case.
8.3 Upon assessing the complainants
and going through the ruling made by my colleague, I only found that
only two of the complainants
are dealt with:
8.3.1
Harassment and intimidation based on false amount as arrears rental.
8.3.2 Unfair rent increase.
8.4 It is therefore my analysis and
decision that the rest of the complaints are not adjudicated to."
[12.]
The Tribunal on 7 April 2018, then held:
"10.1 That the only
complaints that are adjudicated to is, Harassment and intimidation
based on false amount as arrears rental
and unfair rent increase.
10.2 The Tribunal has jurisdiction to
hear the rest of the complaints.
10.3 The matter is therefore postponed
to the 24 April 2018 at 09h30, for hearing."
[13.]
Thereafter there are further hearings on 24 April 2018 and 15 May
2018. It was argued on behalf of the applicants that at
on 15 May
2018 the Tribunal dismissed these complaints. However, counsel for
the respondent argues that no determination was made
on these
complaints.
THE LAW
[14.]
The applicants cancelled the lease solely on the basis that the lease
has a cancellation clause. The applicants' notice of
cancellation
does not include any reference to any grounds for termination in the
lease. This contravenes section 4(5)(c) of rental
Housing Act, 50 of
1999 ("the act") which states that the landlord's rights
against the tenant include his or her right
to terminate the lease in
respect of rental housing property on grounds that do not constitute
an unfair practice and are specified
in the lease. In addition to
failing to specify the grounds of its cancellation, the applicants
seek the first respondent's eviction
on grounds which constitute an
unfair practice.
[15.]
It was submitted on behalf on behalf of the respondent that the
cancellation by the applicant is on grounds which constitute
an
unfair practice because the true basis for the cancellation of the
first respondent's lease is retaliation for her exercising
her rights
under the Act and the Gauteng Unfair Practice regulations, 2001 ("the
Regulations"), and assisting other tenants
to do the same. She
lodged in good faith a number of complaints to the Rental Housing
Tribunal ("the Tribunal") regarding
the applicants'
contraventions of the Act and Regulations on a number of occasions
since 2013.
[16.]
The first of these complaints was adjudicated by the Tribunal in
August 2015 where the applicants were found to have committed
a
number of unfair practices, and were ordered to effect maintenance to
the property. The Tribunal also dealt with issues regarding
the
amount of rental the applicants' sought to charge - which in some
cases were an increase of almost 35%.
[18.]
The applicants cancelled the first respondent's lease on 26 September
2017. In December 2017, the first respondent, and other
tenants,
lodged a multi-part complaint with the Tribunal. This complaint
included the applicants' cancellation of the first respondent's
lease
amounts to an unfair practice.
[19.]
The applicants have sought to show that these complaints have been
determined and dismissed by the Tribunal. In support of
this, the
applicants have provided a transcript of the 15 May 2018 hearing and
an email from one of the members of the panel indicating
that the
matter has been "finalized". The transcript does not show
that any ruling was made at that hearing. At best,
the transcript
refers to the previous ruling of "Matabane", which it seems
is the ruling by Mr Matsobane Ramalatso on7
April 2018. This ruling
shows that the first respondents' complaints were
not
be res
judicata
and that ruling states that:
7.1. "The only complaints that
are adjudicated to is, Harassment and intimidation based on false
amount as arrears rental and
unfair rent increase."
7.2. "The tribunal has
jurisdiction to hear the rest of the complaints."
7.3. "The matter is therefore
postponed to the 24 April 2018 at 09h30 for hearing."
[20.]
I agree with counsel of the respondent that these complaints have
been brought in good faith by the first respondent, and
the tenants
that she has assisted to make such complaints. There is no evidence
that these complaints have been made on any basis
than in the
legitimate use of the Tribunal system to ensure that tenants are
afforded
the protections of the Act and Regulations.
21.
I am satisfied that the applicants have failed to show that the
Tribunal has determined, among other things, that the cancellation
of
the first respondent's lease was not an unfair practice and that it
dismissed the first respondent's complaints. Before this
court is
able to decide whether it is just and equitable to grant an eviction
order, the Tribunal must make this determination.
On that basis, the
eviction application ought to be dismissed or stayed pending the
determination of the first respondent's complaints
by the Tribunal,
as the Constitutional court in
Maphango and
Others v Aegus Lifestyle Properties (Pty) Ltd
2012
(3) SA 531
(CC) (Maphango) ordered in similar circumstances.
[22.]
In its supplementary affidavit of 26 November 2018, the applicants
contend that all the complaints have been dismissed, including
the
cancellation complaint. The applicants attach to this affidavit the
transcript of the 15 May 2018 hearing, at SA4.1, and an
email from Mr
Matsobane Ramalatso, one of the members of the Tribunal. Notably, the
applicants do not refer the court to any specific
sections of the
transcript in support of the contention.
[23.]
At page 16 of the transcript (page 674 of the record) of 15 May
2018(1ines 16 - 22), the chairperson of the Tribunal states:
"The matter was
postponed, my col, colleague, Matabane, was there at the next
hearing. Unfortunately, I was not present. He
then did a ruling after
reading my ruling, where he indicated that in, in his, he believed
the issues are still
res judicata.
The
other tribunal members were here. Uh,
res
judicata
except for one matter."
[24.]
The chairperson then states at page 29 of the transcript (page 687 of
the record),"... we have come to the conclusion
that what are
you raising in 2016, is the same thing that we ruled on in 2015."
[25.]
While it is not immediately apparently who "Matabane" is
that the Chairperson refers to, it seems that she is referring
to Mr
Matsobane Ramalatso who issued the ruling on 7 April 2018 dealt with
in detail above.
[26.]
The above statements and the balance of the transcript do not amount
to a ruling at all. Further what I set out above shows
that in fact
the Chairperson was mistaken in the above statements. The 7 April
2018 Ruling was rather that the first respondent's
complaints,
relating to among other things whether the applicants' cancellation
of her lease is an unfair practice, have n
o
t
been determined by the Tribunal.
[27.]
Similarly, the email from Ramalatso, does not amount to a ruling. In
that email, Mr Ramalatso states "This matter was
finalized by
the Chair in the presence of everybody, I am not sure what exactly,
are we still discussing."
[28.]
In terms of section 13 (13) of the Act, a ruling of the Tribunal is
deemed to be an order of a magistrates' court in terms
of the
Magistrates Court Act, 32 of 1994, and is enforced in terms of that
Act.
The Supreme Court of Appeal in Zweni v Minister of Law and
Order
1993 (1) SA 523
at paragraph 532I-533B provided useful
guidance on when a decision qualifies as an order or judgement, it
held that:
"A judgement or
order is a decision which, as a general principle, has three
attributes, first, the decision must be final
in effect and not
susceptible of alteration by the court of first instance; second, it
must be definitive of the rights of parties;
and third, it must have
the effect of disposing of at least a substantial portion of the
relief claimed in the main proceedings
(Van
Streepen & Germs (Pty) Ltd
case supra at
5861 - 587B ;
Marsay v Dilley
[1992] ZASCA 114
;
1992 (3) SA
944
(A) at 962CF). The second is the same as the
often
stated requirement that a decision, in order
to qualify as a judgement or order, must grant definite and distinct
relief (
Willis Faber Enthoven (Pty) Ltd v B
Receiver of Revenue and Another
[1991] ZASCA 163
;
1992 (4) SA 202
(A)
at 214DG)."
[29.]
Thus, for a decision of the Tribunal to qualify as such as an order
it must grant definite and distinctive relief. The evidence
that the
applicants have placed before this Court does not meet these criteria
.
[30.]
I am of the view that the transcript it does not contain any
discernible ruling.The applicants have failed to demonstrate
that the
Tribunal has determined and dismissed the first respondent's
complaint that the cancellation of her lease amounts to an
unfair
practice. It is required to do so before this Court is able to
determine whether it is just and equitable to order an eviction.
THE TRIBUNAL IS THE
APPROPRIATE FORUM TO DECIDE WHETHER THE CANCELLATION IS ON THE BASIS
OF AN UNFAIR PRACTICE
[31.]
The Constitutional Court in Maphango was faced with a similar factual
situation in that there the tenants in that case had
lodged a
complaint against the landlord and then the landlord, after the
effluxion of the three month-month moratorium on eviction
then
instituted eviction proceedings. In that case, the Tribunal had also
not adjudicated the tenants' complaint. The Constitutional
Court
ordered that:
"[67] Given the
strong and balanced framework the Act creates to accommodate the
interests of both landlords and tenants, the
High Court should in my
view have stayed the proceedings before it to enable the tenants to
resuscitate their complaints against
the landlord, and to enable the
Tribunal to determine whether the termination of their leases was an
unfair practice. It is true
that the tenants had by that time
withdrawn their complaint, but they did so without prejudice to their
rights under the Act, whose
vindication they continued vociferously
to claim. Justice therefore required that the Tribunal adjudicate
their complaint....
"[68] In my view,
given the fuller understanding of the Act set out in this judgement,
the proper order is to grant the applicants
leave to appeal, but to
hold over final determination of the appeal to enable the landlord
and tenants, if so advised, to bring
suitable proceedings before the
Tribunal."
[32.]
I am therefore satisfied that, this court should direct the Tribunal
to make this determination before it considers whether
it is just and
equitable to grant an eviction order.
I
therefore make the following order:
1. The eviction application must be
stayed pending the determination by the Tribunal of whether the
applicants' cancellation of
the lease is an unfair practice.
2. No order as to costs
M
MATSEMELA
ACTING JUDGE OF THE HIGH
COURT
GAUTENG LOCAL DIVISION
For
the Applicant
: FR McAdam
Instructed
by
: Lee and McAdam Attorneys
For
the Respondent
: SDJ WILSON
Instructed
by
: WEBBER WENTZEL