12 Apr 2022

The Role of Mediation in Residential Rental Property Disputes

by Nerisha Besesar, Partner, Durban,
Practice Area(s): Litigation |

When it comes to resolving residential property disputes, mediation should be considered between the parties. The benefits of mediation have long been recognised by the Department of Human Settlements as can be seen from the further provisions for mediation set out in the draft Rental Housing Regulations in terms of the Rental Housing Act 1999 published on 18 March 2022 (Draft Regulations) which are available for public comment. This article will discuss the benefits of mediation in the rental housing sphere and also what the Draft Regulations propose.

It would be useful to have a general understanding of what mediation is. Mediation is a voluntary alternative dispute resolution process whereby parties seek to resolve a dispute in good faith and without the formal involvement of the court.

The Rental Housing Tribunal (RHT) is an independent statutory body which serves to resolve disputes between landlord and tenants in respect of residential dwellings (the definition of dwelling” is far-reaching and includes hostel rooms, huts, shacks, storerooms, outbuildings and even parking bays which form part of a residential lease). The RHT deals with the nonpayment of rentals, failure to return a deposit, unlawful changing of locks, lack of maintenance and repairs, damage to property, unlawful disconnection of services, discrimination, and overcrowding to list some of the types of disputes. The RHT strives to promote the resolutions of disputes and it is empowered in terms of the Rental Housing Act and its regulations. One of the means in which it promotes the resolution of disputes is through mediation.

The RHT mediation process is straightforward in that the aggrieved party lodges a written complaint at the RHT office or their local Rental Housing Information Office by completing a complaint form. The RHT then considers the complaint and conducts its own investigation to assess whether the complaint amounts to unfair practice and if it falls within its jurisdiction. The RHT also assess whether the dispute is capable of being resolved by way of mediation. If so, it will then arrange for the mediation to take place before a suitably trained and impartial mediator. He/she will facilitate the negotiation process by guiding the discussion which will involve helping the parties identify disputes and arrive at their own possible solutions. Once the parties reach an agreement, the mediator will draw up those terms in a written agreement and it will be recorded in the RHT register. If no agreement is reached, then the dispute is then referred to arbitration and that process will unfold.

There are many benefits of approaching the RHT to mediate your dispute. The key benefit is that the mediation is private and confidential and held on a without prejudice basis. Parties have their own private space and time to discuss aspects of the dispute with each other which they would not ordinarily have in a court room scenario. They are in control of the process and then of the outcome. There is also a sense of openness to consider alternative routes to arrive at a settlement that is in the interests of the future conduct of the parties’ relationship as opposed to waiting for a judgment from the court being imposed on them.  The other advantages of approaching the RHT to mediate your dispute are as follows:

  • services are free;
  • significantly reduced time frames;
  • less risk; and
  • reduced stress levels.

The Draft Regulations intend to make the RHT mediation services more appealable to parties. It also echoes the recent changes to the Uniform Rules of Court which now make provision for mediation.  The Draft Regulations provide for:

  • mediations may be held by telephone or videoconference. This will reduce logistical barriers to improve efficiency;
  • mediation to be revisited at a later stage if the RHT members are satisfied that the parties may benefit from a further mediation process notwithstanding the failure of the parties to arrive at a settlement during the initial mediation;
  • any oral or written statement (including those in documents) made as part of the mediation process by the mediator and/or any party will be protected by legal privilege, one of the tenets of mediation. This means that the statement cannot be used against them in court or tribunal proceedings unless the parties consent to the waive that privilege or if that statement would be admissible in criminal proceedings; and
  • the award of punitive costs against a party during arbitration proceedings who had initially refused to participate in the mediation process without a reasonable excuse or had had participated in the mediation process but acted in a contemptuous or improper manner.

Landlords and tenants who have residential property grievances have a lot to gain from approaching the RHT to have their disputes mediated. Parties engaged in this process should make the most out of the opportunity to mediate in order to arrive at an amicable solution. The Draft Regulations certainly aim to increase the viability of mediation.

The KZN Rental Housing Tribunal can be contacted on (031) 372 1800 / (031) 372 1806/04 or email info.rht@ kzndhs.gov.za .