Introduction
The City of Johannesburg (“City”) recently promulgated its “By-law on Problem Properties” (“Bylaws”). We wrote a previous article commenting on the difficulties that the Draft By-law on Problem Properties pose. This article looks at problems caused by the promulgated (final) version, which is now legally in force. For convenience, some of the content herein is therefore a repeat of what has been said before.
Problem Properties
Problem Properties are defined to include any part of a building or structure located in the City, and which fit the criteria set out in clause 7(1) of the bylaws. Section 7(1) is a long list, which includes criteria such as whether the property is abandoned, hijacked, overcrowded, illegally connected, illegally occupied, a dumping site, structurally unsound, or a threat to the safety of the public for health or safety reasons, and where rates/taxes/service charges haven’t been paid for any 3 out of the preceding 12 months, the structures on the property are not legally compliant, or has no service supply.
Powers of the City re problem properties
The bylaws give the City the power to issue a notice declaring a property to be a “problem property” and inviting any interested party to submit reasons why it should not be so declared. If the City decides to declare it a problem property, it does so by issuing a notice stating such. The City can then make application to court to appoint a person as the administrator, who will then assume all the powers in law of the person who ought to have been responsible for the property.
Missing links
Although the idea of a policy to deal comprehensively with problem properties is to be welcomed, the bylaws appear to have been hastily compiled without giving any real thought to the implications of same. For example, the bylaws completely fail to address the issue of supply terminations. This is probably the most potent weapon in the City’s arsenal to address problem properties, but bizarrely it is not mentioned at all.
Another glaring omission is the failure to suspend the City’s powers in relation to problem properties where the property owner has a valid, revenue related query pending with the City in relation to the property. The billing crises is well documented and it would be unlawful to subject a property owner to the power of the City to declare and deal with a property as a problem property, where in fact, it is only a billing error on the City’s systems that renders the property a problem.
Remedies extending beyond scope of powers
A further problem with the bylaws is that it attempts to create a new remedy for the City – namely the ability to have an administrator appointed over a problem property – where currently there is no provision for this in our law whatsoever. Legally, the City can make its own bylaws regulating its own policy in relation to buildings in its jurisdiction, but it is not authorized to create new laws, especially not laws which infringe constitutional rights. Only Parliament could legislate such a remedy into existence, but then only within the constraints of the Constitution.
Cost recovery impractical
The bylaws further provide that the administrator must recover the costs of rehabilitating and running the property, from the ‘responsible person’. This is non-sensical as the likely reason for the appointment of an administrator, would be that the responsible person is AWOL or otherwise cannot afford to run the property. The bylaws also empower the administrator to collect rental and other charges from tenants, which would violate the owner’s common law and constitutional rights to property, and would violate existing cession of rental and other contractual arrangements owners may have in place with their mortgagees and others.
No review/appeal procedure
Another issue is that the City’s proposed wide ranging powers are virtually unchecked, in the sense that no provision is made for internal review/appeal procedure for decisions taken in terms of this bylaw. This means that a person aggrieved needs to bring an expensive review application to the High Court, to seek relief from biased, unreasonable or otherwise arbitrary decisions.
Interesting Exemptions
The Bylaws includes a new provision which provides that a person who is non-compliant can apply for exemption from the Bylaws. The City is entitled to grant the exemption or not to, at its discretion, and it may impose any conditions that it sees fit, when granting such exemption. If any of the conditions are not complied with, the City can then revoke the exemption on reasonable notice. This certainly does go a long way towards alleviating the potential impact that these Bylaws might have on consumers who have not paid their rates/taxes/service charges for more than 3 months out of 12 because a dispute is pending in relation to such charges, as it means that if the City picks this up and declares the property a problem property, the owner can make application for exemption explaining why it has not paid.
Existing Laws
There are more than adequate laws and bylaws in place to regulate and police properties and property owners in the City of Johannesburg. The City simply needs to start applying existing laws. Serious revision is necessary before these bylaws can be published, failing which the City will be challenged for attempting to exercise self-made, unconstitutional powers, promulgated ultra vires its authority.
Co-Author:
David Hepburn
Partner at Schindlers Attorneys
Phone: +27 (0) 11 448 9600
Hepburn@schindlers.co.za
