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[2008] ZAWCHC 224
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Perryvale Investments (Pty) Ltd v Patel NO and Another (13096/2005) [2008] ZAWCHC 224 (25 July 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
CASE
NO
:
13096/2005
DATE
:
25
JULY 2008
In
the matter between:
PERRYVALE
INVESTMENTS (PTY) LTD
APPLICANT
And
S
PATEL N.O.
1
st
RESPONDENT
MICHAEL
KATZ 2
nd
RESPONDENT
JUDGMENT
DAVIS,
J
:
[1]
On 15 April 2008 this Court granted an order which read as
follows:
"1.
The decision by the first respondent dated 5 August 2005 referring
the applicant for prosecution in terms of
section 16
of the
Rental
Housing Act No. 50 of 1999
is set aside.
2.
The applicant shall, within 60 days of the date of this order
provide the first respondent with a report, detailing the
maintenance
and repairs done to the roof of Shelbourne, Beach Road,
Sea Point, subsequent to the first respondent's decision dated 5
August
2005.
3.
The second respondent shall be entitled to 50% remission of rent
from the applicant for the period September 2002 until August
2004,
less the amount of R850, less the amount of R1 512,50 rental for
July 2004, less the amount of R1 512 rental for August
2000.
4.
The applicant and the second respondent shall each be liable for 50%
of the costs of the following:
4.1.
Cost of the building consultant's report, R3 000;
4.2.
air quality and monitoring report R1 500;
4.3.
Swift microbiology report R1 500.
5.
The ruling by first respondent that applicant shall pay a remission
of 100% of the rental for the period September 2004 to
July 2005 is
set aside.
6.
The parties shall pay their own costs of suit".
[2]
This order was made by the Court after a considerable opportunity
had been afforded to the parties to settle the dispute.
It was my
view that, after hearing argument, this was a matter that should
have been settled rather than litigated. Every opportunity
was
granted to both parties to agree to an order which would put an end
to this litigation. Sadly and regrettably, it appeared
that a
complete settlement of the dispute could not be obtained.
Accordingly the order was formulated together with the parties
but
without any agreement that this would be the end of the matter.
After the order was granted, second respondent requested
reasons for
the order. It is therefore incumbent upon this Court to provide the
reasons for the order so granted, which are set
out herein.
[3]
The applicant sought to review and have set aside the decision of
first respondent of 23 June 2005 in terms of which it upheld
second
respondent's two complaints pursuant to Regulations promulgated
under the Rental Housing Act, 50 of 1999 ("the Act").
The
applicant also sought an order dismissing the second respondent's
complaints which had been lodged in terms of section 13(1)
of the
Act.
[4]
Briefly, applicant carries on business as a proprietor of rented
immovable property, being a beachfront block of apartments,
Shelbourne, which consists of 52 fiats and a ground floor restaurant
in Sea Point. Second respondent occupied flat 801 in Shelbourne.
First respondent is cited in these proceedings in his capacity as
the chairperson of the Western Cape Housing Tribunal {"the
Tribunal') constituted in terms of the provisions of Chapter 4 of
the Act. First respondent did not enter an appearance in these
proceedings but deposed to an affidavit entitled "explanatory
affidavit" in which the following was stated:
"The
Tribunal initially filed a notice of intention to oppose. However,
on further consideration of the founding affidavit
and supplementary
affidavit filed in these proceedings it decided to file a notice of
intention to abide instead. Accordingly,
a notice of withdrawal of
opposition and a notice of intention to abide had been duly filed.
In the circumstances the purpose
of this affidavit is merely to
appraise the above Honourable Court with an explanation in respect
of certain issues raised in
the founding papers, as well as to raise
certain legal issues which are of significant relevance to the
future work of the Tribunal".
[5]
The applicant bases its application for review on section 6 of the
Promotion of Administrative Justice Act, 3 of 2000 ("PAJA")
and accordingly seeks to have this section apply to the Tribunal's
decision of 23 June 2005. In its view, the decision taken
by the
first respondent, purportedly pursuant to powers contained in and
granted by the Act and Provincial Regulations published
in the
Western Cape Provincial Gazette 5822 of 1 February 2002 as
Provincial Notices 21 and 22. The decision of 23 June 2005
was
preceded by a hearing before the Tribunal, which itself was preceded
by the institution of an action for the ejectment of
second
respondent from apartment 801 in Shelbourne.
[6]
In essence, Mr
Lourens
who appeared on behalf of the applicant, correctly characterised the
decision of the Tribunal as the ultimate consequence of
a complaint
which had initially been brought by second respondent against the
applicant alleging various defects in the rented
property and which
constituted an unfair practice by the applicant entitling the second
respondent to a remission of rental.
[7]
The applicant appears to launch its attack against the decisions of
first respondent on the following basis:
1.
The character of the decision itself as contemplated
by section 6(2)(e) of PAJA and the basis for the decision
as
contemplated in section 6(2}(f) of PAJA.
2.
Procedural unfairness as contemplated by section 5(2}(c) of PAJA.
Applicant
instituted proceedings against second respondent on 9 September 2004
for the second respondent's eviction from Shelbourne.
In a letter of
8 September 2004 addressed to the Tribunal, second respondent set
out a complaint against the applicant concerning
the subject of
unfair practices. In this particular regard, two pieces of
correspondence are relevant to illustrate the nature
of the
complaint which was brought by second respondent after the action
taken by applicant. In a report generated by C Wellman
on behalf of
Western Cape Rental Housing Tribunal, the following is stated with
regard to the complaint:
"1.
The complainant claims that the leaking roof of his flat has never
been properly repaired, although the respondent has
been informed
and requested to do so on numerous occasions. The leak resulted in
water dripping through the ceiling and down
the walls which caused
mildew. This caused damage to his possessions (clothing, furniture
etc) and was detrimental to his health.
2.
Furthermore,
the complainant is of the opinion that it would not be fair of the
respondent to expect him to pay the full rental
as he is claiming
that he never had the full use and enjoyment of the flat and that
the dampness influenced his health and wellbeing.
The
report continues:
The
complainant is claiming compensation in the following amounts:
Damages
to his possessions caused by the leaking roof - R13 000.
Remission/rebate
of rent for the rental period R61 775.
Compensation
for other expenditure due to disrepair of roof - R5 225.
That
the Tribunal makes an order for the roof to be repaired properly".
[8]
On 8 September 2004 second respondent generated the complaint to
which reference has already been made, under cover of a letter
headed "re unfair practices". It is a voluminous document
and I shall merely cite key passages thereof to indicate
the nature
of the complaint: "The landlord's lawyer...seems to think that
the so-called inadequate roof repairs effected
on 8 July
2004
exonerates his client's transgressions. Adequate roof repairs should
have been effected over two years ago!".
Second
respondent continues:
"I
only recently began to suspect that there could be moulds in my fiat
as I was not previously aware that water leaking
in can cause indoor
mould growth (sic). The landlord should have been aware of this but
did not advise me of the risk. As a result
of the landlord refusing
to effect adequate roof repairs and attend to the water feaking in
problem for over two years, there
was excessive moisture/dampness
content in my flat which was highlighted by my building consultant
on 15 July 2004. My flat was
and still is contaminated by moulds and
I have expert evidence to back this up. The excessive mould spores
did cause/exacerbated
my health problems (sic) and definitely
affected my wellbeing (the area in my flat was and is biologically
contaminated)...'.
Second
respondent concludes:
"The
landlord has flagrantly disregarded my rights as a tenant for over
two years and was not concerned about denying me
commodus
usus
of
my flat for over two years and that his wrongful and negligent
actions were exposing me to health and safety risks. He believes
he
owes no duty of care to the tenant. He has now run to a large legal
firm to help him get out of a minefield he foolishly and
negligently
entered having ignored all the warning signs along the way. The
sooner unscrupulous landlords are punished to the
full extent of the
law, the sooner they will learn not to abuse the law".
[9]
The Cape Town Magistrate's Court, on 1 December 2004, referred the
eviction proceedings which had been instituted by applicant
before
it to the Tribunal for determination. Second respondent's letter of
complaint then resulted in two undated reports by
a building
consultant, Mr Jonathan Mitchell based on inspections carried at the
apartment on 15 July 2004 and 3 November 2004.
Testimony was heard
from a range of persons, including a building inspector Mr Goodall,
an air monitoring specialist, Mr L J
van Rensburg, Mr Deon Bell, the
general handyman responsible for repairs of a general nature and
testimony from Mr David Kawitzky
and Perry Kawitzky, director of the
applicant.
[10]
After hearing this evidence, first respondent ruled that "the
applicant must submit a detailed repair plan for the whole
building
and not simply for apartment 801 by 31 July 2005". In this
connection, the ruling detailed the nature of the report
that was
required:
"1.
A reputable waterproofing contractor ought to be appointed to
satisfactorily remedy the concrete roof over flat 801 to
prevent any
storm water ingress.
2.
The spalling concrete on the interior of flat 801 ought to be
attended to and inspected by a structural engineer who ought
to
issue a detail specification of how to treat the steel for purposes
of inhibiting any further rust ana" then to specify
an
appropriate epoxy repair mortar. Thereafter, the ceiling to be
reskhnmed and repainted.
3.
Where the walls are cracked these cracks ought to be raked open and
sealed with a suitable flexible acrylic sealant and then
painted
over.
4.
Wherever there is loose and flaking paint as a result of storm water
ingress and dampness, the loose paint ought to be scraped
off and
the area thoroughly prepared and feft to dry out prior to repainting
with three coats of good quality paint.
5.
The loose piaster externally which is visible through the kitchen
window ought to be carefully hacked off and be satisfactorily
remedied. Precautions have to be taken against falling debris to the
restaurant patrons below.
6.
The remedial work be undertaken by suitably skilled artisans and all
under competent supervision,
7.
The remedial work be undertaken in consultation with the tenant so
as to cause as little inconvenience and disruption as possible".
First
respondent also ruled that second respondent was
entitled
to a remission of rent. It calculated such
remission
as follows:
"The
tenant is entitled to a remission of rent and
costs
incurred calculated as follows:
50%
remission of R2 500 for 24 months totalling
R30
000 (September 2002 - August 2004) and
100%
remission of R3 025 for 10 months totalling
R30
250 (September 2004 - June 2005);
repairs
to ceiling R850;
cost
of building consultant's report R3 000;
air
quality monitoring report R1 500;
Swift
microbiology report R1 500".
First
respondent also found thus:
"The
evidence led would indicate that repairs more of an emergency nature
were done rather than any specific plan to do maintenance.
In the
absence of any other evidence of maintenance, the Tribunal cannot
but agree that there was a serious lack of maintenance
foreseen or
envisaged in the
Rental Housing Act and
the unfair practices
regulations".
[11]
Mr
Lourens
submitted that this particular holding, together with the
decisions which had been made:
1.
Ignored the testimony of the local authority official, Mr Goodafl,
that the building was in a safe and good state of repair.
2.
Ignored the evidence that the second respondent refused the
applicant access to the premises for the purposes of effecting
repairs.
3.
Ignored the documentation to the contrary of Messrs M Waggie, W
Voigt and Stormroofing which indicated the extent of the repairs
undertaken.
4.
Ignored the evidence of Mr David Kawitzky and Mr Perry Kawitzky as
to the extent of the repair work applicant had carried out.
5.
Afforded insufficient regard to the evidence before the Tribunal
that the applicant had reasonably attempted to resolve the
problem
of leakage or damp complained of by second respondent in respect
only of flat 801 Shelbourne".
Mr
Lourens
also submitted that the very finding was premised on the principle
that, unless a specific maintenance plan was En place, there
would
automatically be a serious lack of maintenance, notwithstanding the
extent of the repairs which were undertaken, as well
as the
existence of five fufl time employees at Shelbourne.
[12]
Mr
Lourens
contended further that there was no indication in the reasons
provided first respondent of the grounds upon which the remissions
of rental had been decided. Neither the reports nor the evidence
indicated in each of these two periods that flat 801 was either
oniy
half inhabitable or totally uninhabitable as the case may be, nor
did first respondent find to that effect in its reasons.
This raised
the inference of the arbitrary nature to this component of its
decision. He also contended that there was no indication
as to what
had motivated the Tribunal to adopt a differentiated treatment for
rental remission purposes in respect of the two
periods, namely 50%
for the period September 2002 to August 2004 and 100% for the period
September 2004 to June 2005. He therefore
submitted that the
Tribunal had not taken account of the fact that the applicant had
offered the second respondent alternative
accommodation but that the
latter had refused this. Moreover, the Act did not afford the
Tribunal the power to order repayment
of rent which already had been
paid.
[13]
In this connection he referred to section 13(4)(c) of the Act
which provides:
"Where
a tribunal, at the conclusion of the hearing in terms of paragraph
(d) of subsection (2), is of the view that an unfair
practice
exists, it may (c) make any other ruling that is just and fair to
terminate any unfair practice, including without
detracting from
the generality of the aforegoing, a ruling to discontinue (i)
over-crowding; (ii) unacceptable living
conditions; (Mi)
exploitative rentals; (iv) lack of maintenance".
Mr
Lourens
further submitted that the use of the word "discontinued"
in this provision clearly referred to a regulation of future
conduct or behaviour; that is a discouragement or prescription of
an existing unfair labour practice from continuing into
the
future. He also noted that the second respondent had vacated flat
801 during August 2004. In the circumstances, the Tribunal
was not
empowered to direct a remission of rental and by necessary
implication, uphold and effect the claim for damages for any
period
before that.
[14]
Mr
Lourens
noted that the applicant had been directed to bear the costs
occasioned by the professional reports. These reports had been
commissioned by the second respondent and related to possible fungus
spores in the air. Applicant contended that the alleged presence
of
fungus spores was irrelevant to the complaint being a leaking roof.
In directing the applicant to bear the costs of these
irrelevant
reports, Mr
Lourens
submitted that the decision taken had been for an ulterior purpose
or motive, being a punitive measure and, further, that irrelevant
considerations have been taken into account, namely that the
presence of fungus spores was relevant to the complaint.
[15]
Second respondent appeared in person. He submitted that the first
respondent was required to establish whether there had
been a lack
of maintenance by applicant which resulted in storm water ingress
and caused mould and damp in second respondent's
dwelling. He
further submitted that the first respondent was required to
establish whether second respondent had been partially
deprived by
such lack of maintenance so that the full beneficial use and
enjoyment of the apartment and, if so, the extent to
which such
deprivation would constitute a fair remission of rental in the
circumstances.
[16]
In this connection, second respondent referred to Regulation 4(1)(d)
which requires that the landlord must effect repairs
for which he is
responsible and not merely attempt to effect repairs. He submitted
that for the purposes of
remissio
mercedis
it
was irrelevant whether the applicant had acted reasonably, for
example by conducting patchwork of the suspected problem area
as a
first attempt to remedy the water ingress, or use its best
endeavours in its attempt to effect repairs. It was sufficient,
in
his view, for second respondent to demonstrate that the attempted
repairs were unsuccessful and that accordingly second respondent
had
been deprived of the full use and enjoyment of the apartment.
[17]
Turning to the maintenance plan, second respondent contended that
first respondent's ruling required applicant to submit
a maintenance
plan which was not premised on the principle that unless such a plan
was in place there would automatically be
a serious lack of
maintenance. The conclusion of a serious lack of maintenance was
drawn by first respondent in his ruling and
was based on the absence
of any maintenance other than that which he described as being of an
emergency nature. Furthermore,
the complaint form states "roof
not adequately repaired". In his view, this description did not
limit the inadequate
repairs to a part of the building's roof. Mr
Mitchells report also referred to
p
and which was attached to the complaint form under "list of
complaints and disputes", this report on the lack of
maintenance of both second respondent's dwelling and moreover, the
building as a whole. In this particular connection, Mr Katz
referred
to the evidence of Mr Julian Mitchell, the building consultant, who
testified that "the building is In a state
of decay, it is
degenerating, it needs remedial work". Mr Mitchell had
testified, after his second inspection of 3 November
2004, that "the
purpose of remedial work was to resolve the problem, but it failed
dismally in being able to resolve the
problem"
[18]
Insofar as the rental remission was concerned, Mr Katz contended
that during the first period, that is between September
2002 to
August 2004, there was storm water ingress into the flat with the
resultant damp and mould growth. The mould smelled
and the storm
water ingress caused damage to furniture and fittings in the flat. A
progressive worsening in the living conditions
of the flat took
place during this period because no repairs had been effected since
May 2002.
[19]
At the end of August 2004, that is prior to the commencement of the
second period, second respondent vacated his fiat as
repairs had not
yet been carried out. In a letter generated by applicant's attorney
of 3 September 2004, there was the implication
that applicant was
unable to effect any repairs unless second respondent vacated the
premises, albeit temporarily. Thereafter
repairs to the flat were
unsuccessfully attempted and second respondent accordingly could not
return to the flat as he awaited
applicant to effect the necessary
repairs. In his view, therefore, in terms of Regulation 5(2)(a) he
was entitled to 100% remission
of rental.
[20]
He contended that the living conditions had progressively worsened
during the first period and it followed that by the second
period
living conditions were significantly worse than had been experienced
by him during the first period. He submitted therefore
that first
respondent's omission to expressly mention these facts at the ruling
did not mean that they had not been considered
and their relevance
was clear in the determination of a fair rental remission.
[21
] Turning to the question of the cost of professional reports, Mr
Katz referred to section 13{12){a) of the Act which empowers
first
respondent to make a ruling as to costs which may be just and
equitable. The professional reports in respect of which the
costs
were to be granted to second respondent was relevant to the hearing.
The relevance of the reports of Mr Mitchell are self-evident.
The
remaining two reports being the air quality monitoring and the Swift
microbiology report were relevant to establish the presence
and
extent of mould and fungal spores in the dwelling, both of which had
clearly affected the ability to enjoy full occupation
of the
apartment in the manner envisaged by the law and both therefore were
relevant to the determination of the remission of
rental.
Evaluation
[22]
As I indicated at the commencement of this judgment, first
respondent abides the decision of the Court. That is certainly
relevant with regard to the question of any prosecution which may be
brought in terms of section 16 of the Act. In my view, there
was no
purpose in doing anything more than setting aside any possible
prosecution, particularly when the authority in question
abided the
decision of the Court and showed no real intention that it was to
prosecute the matter. Furthermore, the question
which arose for
complaint were not best resolved through the issue of a prosecution,
but rather through the implementation of
a maintenance pian which
ultimately became the central dispute between the parties. In my
view, an examination of the findings
of the first respondent
certainly do no more than necessitate an examination of the possible
success to be achieved by the maintenance
report and the further
work which may have to be done by applicant, pursuant to such a
plan.
[23]
I therefore turn to the question of the report. In his affidavit,
first respondent refers to the report produced by applicant
in
response to the Tribunal's ruling, itself an indication that
applicant had hardly treated the matter in the kind of cavalier
fashion which would have justified a prosecution and the use of
criminal law in circumstances where, quite clearly, alternative
dispute mechanisms are further indicated.
[24]
In that affidavit the following is stated by Mr Patel:
"in
this regard I point out that the applicant's attorneys of record
addressed correspondence to the Tribunal on 2 August
2005 in terms
whereof the following is stated:
"In
accordance with the requirement that our client should investigate
through an engineer whether urgent remedial work is
necessary, it
has secured a report from Rozowsky & Associates, a highly
reputable firm of consulting civil and structural
engineers and we
attach a copy of their fax report of 28 July 2005..."
On
5 August 2005 the Tribunal responded thus:
"The
Tribunal does not make a ruling that your client should investigate
through an engineer whether urgent remedial work
is necessary. For
ease of reference the relevant section on the ruling dealing with
the repair plan is quoted hereunder. Cfearly
your client has not
complied with the ruling in terms of substance nor in terms of the
date of 31 July 2005. The matter will
now unfortunately be referred
for prosecution as non-compliance is an offence in terms of
section
6(d)(7)
of the
Rental Housing Act.
The
Tribunal thus questioned the whole issue around the
report and this is also in the process of being followed up.
The
Tribunal therefore cannot commit itself and is satisfied that
there is no immediate hazard to occupancy of the building
or to
members of the public frequenting the restaurant below. Your own
report only evaluated the impact on occupancy of the
apartment or
building..." Significantly on 12 August 2005 applicant's
attorneys of record addressed correspondence
to the Tribunal
in terms whereof the following is stated;
"With
the best will in the world the applicant has been unable at the date
you offer to provide the maintenance program
required in your
decision. The said correspondence also requested an
extension to finalise reports and plans...
On 26 August 2005
the Tribunal addressed correspondence to the applicant's
attorneys of record advising
the Tribunal (after considering the
relevant correspondence as well as the
proceedings) had decided that an
extension would not be provided".
I should add that no satisfactory explanation is proffered in any of
the correspondence
as to why the extension was not granted.
[25]
On the basis of Mr Patel's evidence, there had been noncompliance
in a material aspect with the Tribunal's ruling. Further
action was
clearly necessary. In my view, there is evidence which indicates
that the Tribunal was justified in persisting with
its finding that
a comprehensive plan should be developed. Mr Mitchell's evidence,
for example, was of sufficient coherence and
plausibility, given the
persistent problems which had been encountered by second respondent
and documented by him, to justify
the Tribunal's ruling that a
comprehensive report was required.
[26]
In this respect, Mr Mitchell's evidence is particularly persuasive.
I do not intend to set out comprehensively the evidence
which he
provided before the Tribunal, the following passage must therefore
suffice for the purposes of this judgment. He informed
the Tribunal
as follows in his testimony:
"On
the second visit the conclusion I came to after inspecting the
interior of the apartment, again being denied access to
the roof,
was that in my opinion only cosmetic remedial work had been executed
and this had not addressed the source of the problem
and was more a
case of concealing the visual effects of the problem but did not
address the root cause and the source of the
storm water ingress and
i
believe
that whatever remedial work had been done will prove to be grossly
defective the minute it starts raining again".
This
was in essence the basis of Mr Mitchell's evidence before the
Tribunal. It is supported, to a considerable extent, by further
evidence, namely that the problem continued to persist,
notwithstanding efforts to the contrary. For this reason, I made an
order that a comprehensive report as indicated by the ruling of the
Tribunal had to be produced within 60 days of the order of
this
Court. This would afford the Tribunal a concrete basis for deciding
whether any further action should be taken against the
applicant,
including the possibility of prosecution, were the proposed plan be
proved to be inadequate or applicant treated the
problem in a
fashion which undermined the very purposes of the Tribunals
objectives. If, by contrast, the Tribunal does not act
against
applicant after the provision of the report, it must have a rational
basis for taking that decision. In short, the order
provided a
further opportunity for the Tribunal which, on its present attitude,
did not appear to be pursuing the matter
[27]
I turn, therefore, to deal with the second essential component of
the order and the reasons given therefor, namely the remission
of
rental.
[28]
It appears from the first respondent's decision that it took into
account the fact that alternative accommodation was offered
to the
respondent. The first respondent therefore concludes "in
substance, no alternative accommodation was offered".
In coming
to this conclusion it is clear to me that the first respondent
failed to take into account the following relevant considerations
that the second respondent's own witness, Mr Mitchell, did not
contend that the offer of alternative accommodation, meaning in
flat
701, was indeed unreasonable. To the extent that it is relevant, his
evidence reads thus:
"That
would obviously be inconvenient but if this aspect had taken care of
and it is the flat directly below that one, other
than the fact that
you are going to lose a little bit of view because you are now - I
suppose it would be a reasonable offer".
The
incoherence of the record does not detract from the fact that Mr
Mitchell did not testify that the offer which had been made
was
indeed unreasonable.
[29]
The offer of alternative accommodation was not only made in the
applicant's attorney's letter of 10 September 2004, but had
also
been made on 10 August 2004 and again on 3 September 2004.
Significantly, second respondent did not contradict this evidence.
In his evidence before the Tribunal he stated the following:
"I
have been saying every time he offered me a flat on 2004, I am not
denying that he made me the offer. No one has ever...the
flat but he
is saying that he offered it on two other occasions. On 10 August he
asked me to move, no, no, no and I did not...well
then that is
clearly documented before September. Yes sure I said there were two
occasions, 10 August and 3 September I am not
denying that".
It
appears that second respondent's refusal to accept the alternative
accommodation was based on the fear that it is cockroach-infested
and it would be a three years lease and that water would run into it
from flat 801 above. In this connection applicant testified:
"So
you know I didn't unreasonably refuse that flat. No. I what would
you do if the previous tenant said the flat is cockroach-infested?
She wouldn't lie to me. No. 2...a lease for three years when you are
told that the landlord's partners aren't supposed to know
about it
and then...the previous experience I must take that flat and then go
through the whole thing again. Why can't they fix
up the one flat,
get it right and then carry on".
[30]
There was no evidence led as to the presence of cockroaches; nor is
there any suggestion of any supporting evidence from
the other
tenant. There was no evidential basis by which the Tribunal could
have taken this kind of vague allegation, unsupported
by evidence,
into account. When Mr Kawitzky testified that 'in over 30 years of
administering property for my family we have
never, ever offered
anybody a three year lease agreement, we never sign more than a one
year lease with people', there was no
evidence which contradicted
this statement nor justified the speculative attempt at a reason by
second respondent to refuse the
alternative accommodation.
[31]
On the record before the Tribunal and after a careful reading of all
the relevant passages thereof which apply to this issue,
there does
not appear to be evidence to justify the contentions of second
respondent as to why he had refused to accept the alternative
accommodation. In short, from September 2002 until August 2004,
second respondent was entirely justified in its argument that
a
remission of rental should have been granted for the reasons that
are evident from the faults in the roof. But from August
2004
alternative accommodation was offered and other than the
unsubstantiated allegations by second respondent, all
I
suspect
are obduracy, tenacity or perhaps frustration with the applicant and
its treatment of second respondent more than any
objective reason,
there was no basis for his refusal of such an offer. For this reason
I ordered a reduction of that period of
the remission as is
reflected in the order.
[32]
Turning finally to the reports for which applicant has been ordered
to pay the costs, I could find no justification in law,
nor was any
offered, as to why the applicant should bear the entire costs of
these professional reports. It was for this reason
that the ruling
was made to the effect that both parties should share the costs of
the reports which had been commissioned by
second respondent.
[33]
Given the fact that neither side emerged victorious in this dispute,
it was equitable to order that each side pay its own
costs. For
there reasons, therefore, the order of 15 April 2008 was so granted.
DAVIS,
J