High Court confirms, Rental Housing Amendment Act not law … yet


Don’t prejudice yourself by pre-empting the promulgation of the law and changing your lease agreements early.

Kondile v Canary and Another


The recent case, Kondile v Canary and Another was heard in the Pretoria High Court on 7 May 2018 on an application to have a Rental Housing Tribunal ruling rescinded or overturned by the High Court.
In his Judgement, acting Judge Nel confirmed that ‘on 5 November 2014 the Rental Housing Amendment Act, No. 35 of 2014 ("the Amendment Act") was assented to, but it has not yet come into force, as it has not been promulgated.’


Why jumping the gun is dangerous


It is risky business to pre-empt the law. In doing so, you might prejudice either party and cause confusion as to what the real rights and obligations between the parties in the rental relationship are. For example, the Rental Housing Amendment Act requires formalities to be fulfilled that the current Rental Housing Act does not.

Any new clauses added to a current lease agreement that directly refers to the Rental Housing Amendment Act would be incorrect in law.

Trying to rely on the Amendment Act when it is not yet in force could leave you with little recourse should litigation be your only option.

When does the law become the law?


It is a fact. The Rental Housing Amendment Act 34 of 2014 is not yet in operation. An Act becomes operational only after it has been promulgated which is a process of publication of the official date from which the Act needs to be complied with.

Effectively, it is the start date when new legislation becomes law in the day to day practical sense, for you and me. This date is published in the Government Gazette by the President. And as of yet, no such date has been published.

Similarly, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Amendment Act (PIE) was signed off on in November 2007 and is still not in operation 11 years later! The Protection of Personal Information Act 4 of 2013 (POPIA) is not yet operational either and has been awaiting promulgation for 6 years.

The Rental Housing Amendment Act promises to be no different. Once it is promulgated, it is expected that any new obligations on the landlord or tenant will only become effective 6 months from the date that the Act has come into force.

Why it could still be a while …


The new Amendment Act brings with it a number of changes that require development and training to ensure that nationally, the public is better supported through the Rental Housing Tribunal.

This includes the MEC for Human Settlements having to set up a panel and appointing suitably qualified chairpersons and members of each Rental Housing Tribunal.

The intention to appoint any new members must be made public in the Government Gazette and in the media and brought before the Provincial Human Settlements portfolio committee. 

These newly appointed members must again be pronounced in the Government Gazette once officially selected.

With many areas not yet served by a Rental Housing Tribunal at all, this government process could in all likelihood take a while.

Conclusion


The TPN LeasePack does not place any obligations on a party that is not required by law.

Once the Amendment Act is actually promulgated, TPN Credit Bureau will, as always, be at the forefront in providing a lease agreement that is fully compliant with all applicable and current law.

To ensure that you are using the best possible lease agreement to not only give the landlord and tenant the protection they have in terms of law but also to set out all current obligations in law, make sure you have downloaded the latest version of your LeasePack agreements. 

To update your LeasePack: https://shop.tpn.co.za

Kondile v Canary and Another (2018): https://goo.gl/HAa6EH






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