Can the payment on rental arrears be increased unilaterally by your landlord without negotiation and agreement with you?

The long answer

There are two separate issues here, as far as I can see:

The first is that your landlord is legally obliged to maintain the premises in good repair and has failed to do so. The second is whether the payment on rental arrears can be increased unilaterally by your landlord, without negotiation and agreement with you.

Your lease agreement would normally say when and by how much your rent can be increased, and a landlord may not increase the amount of rent you pay without negotiating the increase with you. But whether this applies to payment of rental arrears is not clear, as this is not specifically mentioned in the law governing rental housing, which is the Rental Housing Act 50 of 1999. Lawyer Simon Dippenaar says in a News24 article that "The landlord must give the tenant notice of the breach and a chance to rectify it. In the case of rent arrears, an opportunity must be given to make good the rent due" (my bolding). In your case, the landlord might say that he had already given you a chance to make good the rent arrears before you again failed to pay the full current amount of rent.

But the fact that you were forced to pay a workman yourself to fix the roof and ceilings is directly a result of the landlord failing to do the repairs which he is legally obliged to do. However, using R1,000 of your rental payment to pay the workman and forgetting to inform the landlord is a separate issue.

Under the Rental Housing Act, landlords can only evict tenants for valid reasons recognised by the law. These reasons include non-payment of rent and breach of the lease agreement.

I would advise that you log a dispute with the Rental Housing Tribunal (RHT). The tribunal is an independent body set up in terms of the Rental Housing Act that receives complaints from both landlords and tenants and attempts to resolve these disputes by mediation. If mediation fails, the dispute will be referred to arbitration which will make a legally binding decision. The decisions made by the tribunal have the same weight as those made in a magistrate’s court. They can only be challenged in the high court. The issues that the tribunal can investigate include the following:

• Failure to pay rent

• Failure to refund deposits

• Unacceptable living conditions

• Harassment and intimidation

• Failure to maintain the premises

• Unlawful seizure of a tenant’s belongings

• Illegal changing of locks

• Illegal disconnection of electricity or water

• Unlawful eviction by the landlord. 

In your case, you could complain (a) about the lack of maintenance of the roof and ceilings by your landlord resulting in you having to spend your own small resources as a pensioner on repairs and thus being short of the rent, and (b) instead of communicating with you and attempting to negotiate an agreement, your landlord’s lawyers simply demanded that you pay off your rental arrears at R1,000 a month instead of the R500 that you had been paying in good faith for some years.

The landlord has no defence against your complaint (a), as he is legally obliged to maintain the premises and effect repairs. As for (b), he is likely to respond that as you again did not pay the full rent, which you are legally obliged to do, he was within his rights to demand that your payment of rental arrears be increased. 

But in that the tribunal is set up to mediate between landlord and tenants, it should be possible to come to an agreement about the payment of rental arrears, as well as to compel the landlord to repair the premises and refund you for repairs undertaken at your own expense. If you and the landlord are able to reach an agreement in the mediation phase of the tribunal, that agreement or settlement will be made an order of the tribunal, which has the same legal effect as a magistrate’s court judgment. 

If you and the landlord cannot come to an agreement, the dispute is referred to arbitration, where you each set out your case and can question and be questioned, and finally, the arbitrator makes a decision that is final and can only be challenged in the high court.

The tribunal is a free service, and while a complaint is being dealt with, a tenant cannot be evicted until it has been resolved, even if the landlord has obtained a court order to evict the tenant. During the time that it takes to resolve the dispute, the tenant is required to pay rent.

The Golegal website sets out the following steps for lodging a complaint:

Complaints must be lodged in person or by mail or email, at the tribunal office closest to the premises in question. 

The following documentation is required to lodge a complaint:

• Your ID or passport

• The lease agreement (if there is one)

• Proof of applicable payments

• Proof of the physical address of both parties

• Contact telephone numbers of both parties

Once the forms and documents have been lodged:

• The tribunal opens a file for each complaint

• A letter is sent to all parties stating the nature of the complaint

• The tribunal conducts a preliminary investigation of the complaint

• The tribunal summonses the parties to a mediation session

The Schindlers website notes that a landlord cannot apply to the tribunal (RHT) for an eviction order, and the RHT cannot order the eviction of a tenant.

If it should come to the cancellation of your lease, the Fitzanne website says that, according to the Consumer Protection Act (CPA), “a landlord should give notice to their tenants regarding the cancellation of the lease agreement due to a breach of the contract. The rental law in South Africa states that the notice period should last for at least 20 business days. Within this period, the tenant has the opportunity to rectify the breach.

If it should come to eviction, a landlord can evict tenants for non-payment of rent and breach of the lease agreement, but has to follow these legal steps which are laid out in the Prevention of Illegal Eviction and Occupation of Land Act 19 of 1998 (the PIE Act): 

Once the tenant has not rectified the breach within the stipulated period, the landlord has the right to terminate the lease agreement. The landlord must notify you that he has terminated the lease and give you a date by which you must vacate the premises.

If you do not vacate the premises by the stipulated date, the landlord can apply for a court order to evict you, but the landlord must inform you that he is seeking an eviction order.

He must give you written notice of the date and time that the court schedules for the eviction hearing. The municipality must also be given the notice.

The landlord will put his case in court providing proof of the notice to evict, evidence of the grounds for eviction, and any communication or attempts made to resolve the matter amicably. The landlord could ask for your property to be attached to cover the rental arrears. If the court order is granted the Sheriff will be allowed to seize property to the value of the rental arrears still owing.

You must also attend the court hearing and are entitled to put your side of the story. The municipality must also indicate if they have emergency housing available should the eviction order be granted.

The court will weigh up what is said on both sides and must give particular weight to defendants that are elderly, children, or women-headed households. The court will only grant an eviction order if it finds that it is fair and just to grant it.

If an eviction order is granted, the court will set a date within which you must vacate the premises. If you do not vacate the premises on that date, the court will order the sheriff to evict you. But that is the worst-case possibility.

You could ask Legal Aid, which is a means-tested organisation that must assist people who cannot afford a lawyer, for legal assistance.These are their contact details:

• Legal Aid

Tel: 0800 110 110 (Monday to Friday 7AM - 7PM) 
Please Call Me: 079 835 7179
Email: communications2@legal-aid.co.za

Wishing you the best,
Athalie