Answer to a question from a reader

How can I compel my landlady to give my deposit back?

The short answer

If there is no damage to the house and you are not behind in rent, you can lay a complaint at the provincial Rental Housing Tribunal.

The whole question

Dear Athalie

I have been renting an RDP house in Oudtshoorn for about a year. In addition to a R2,500 deposit, I also paid R3,600 rent every month. For the last two months, I have been paying R3,900 because my landlady raised the rent. I cannot afford to pay this, so I am moving out. Unfortunately, my landlady refuses to return my deposit. How can I make her give it back?

Also, I have noticed that the name on the electricity meter does not match that of my landlady. Apparently, she bought it from the previous owner for R80,000. As far as I know, the RDP houses in this area were only built about six years ago. Was it legal for my landlady to buy the house from someone who had received it less than eight years prior?

The long answer

Thank you for your email asking 1) about the deposit that your landlady is refusing to pay back, now that you are leaving as you cannot afford the rent any longer, and 2) whether the landlady was legally entitled to buy an RDP house if the owner had not had it for eight years.

For your first question about getting your deposit back from your landlady:

The Rental Housing Act is the law that regulates the relationship between landlord and tenant. Section 5 (3) of the Act which deals with deposits says that the landlord must invest a tenant’s deposit in an interest-bearing account at the bank for the whole period of the lease, and the interest must be paid to the tenant plus the original deposit when the tenant leaves. 

It doesn’t matter whether your lease doesn’t mention this or says something different or the landlady didn’t know she had to invest your deposit in a bank account where interest accrues: The Rental Housing Act is the law and it overrules any other agreements made in a lease. So even if she didn’t put your deposit into an interest-bearing bank account, she still has to pay the interest when you leave.

The landlady can withhold your deposit if you are behind with the rent by the time you move out.

She can also use the deposit to repair damage done to the house. This must be actual damage, not just ordinary wear and tear. If she uses your deposit to repair the house, she must show you the receipts for the work done so that you can see what she paid for the repairs.

If she has to repair damage to the house, she must refund the balance of the deposit, 14 days after the repairs have been made.

If there are no repairs to be done, and you are not behind with the rent, she must refund the deposit plus interest within 7 days of your leaving the house.

The Rental Housing Act says that the landlord and tenant must inspect the house together when the tenant moves in, and again when the tenant moves out. If the landlord doesn’t arrange a joint inspection of the house before the tenant moves out, the law assumes that the landlord is satisfied with the condition of the house and the deposit plus interest must be refunded to the tenant.

If you are not behind with the rent and there is no damage to repair, and the landlady still refuses to refund your deposit plus interest, you can either lay a complaint at the provincial Rental Housing Tribunal (which is free) or you can go to the Small Claims Court to claim the deposit plus interest. The Small Claims Court can be used for claims up to R20,000.

To lay a complaint with the Western Cape Rental Housing Tribunal, you fill out these two online forms:

  1. https://www.westerncape.gov.za/assets/departments/human-settlements/docs/rental-tribunal/hs-rentalhousingtribunal-main-complaint-form-2017.pdf

  2. https://www.westerncape.gov.za/assets/departments/human-settlements/docs/rental-tribunal/hs-rentalhousingtribunal-fa-failure-to-refund-deposit-2017.pdf.

  • Send the proof of payment of your deposit and the lease along with the two completed forms. 

  • Also send any relevant letters between you and the landlord, including SMS or WhatsApp messages, voice notes, emails, etc.

The officials at the Tribunal will make contact with the landlady to find out her side of the story. If the landlady doesn’t agree to refund your deposit with interest, there could be a mediation process and then a hearing. The Tribunal will make an order which is the same as getting a judgment from the court. That means if the sheriff of the court can go and get your money from the landlady if she doesn’t pay within 7 days of the order being made.

If you go to the Small Claims court, these are the steps to follow:

Step 1: Contact the other party. Contact your landlady in person, in writing or telephonically and ask her to settle your claim.

Step 2: Write a letter of demand. If she doesn’t settle your claim, send her a written demand setting out the facts on which the claim is based and the amount you’re seeking. Deliver the written demand by hand or registered post to the landlady. Give her 14 days from the time they receive your letter to settle your claim. 

Step 3: Go to the clerk of the court. After 14 days report to the clerk of the court with the following documents:

  • Proof that the written demand was delivered, such as a Post Office slip.

  • Any contract, document or other proof upon which your claim is based or that’s related to it.

  • The full name and address (home and business addresses, if available) and telephone number of the landlady.

 ​Step 4: A summons is sent to the opposing party. The clerk of the court will examine your documents and help you draw up the summons.  The clerk of the court will issue the summons and hand it to you to hand to the landlady or it can be handed to her by the sheriff of the court. The clerk of the court will also inform you of the date and time the case will be heard in court.

Step 5: The hearing

  • You must appear in court in person.

  • You must have all the relevant documents on which your claim is based with you.

  • You must have the written proof that the summons was served on the landlady.

 The court procedures are informal and simple:

  • The commissioner of the court will ask you to state your case.

  • State the facts as concisely as possible.

  • Answer the questions of the commissioner and submit your documents upon which your claim is based.

Step 6: After judgment has been given. If the judgment is given in your favour, the person must pay the money immediately and will be issued a receipt. If they’re not able to pay, the court will investigate their financial position and determine a payment plan.

For your second question about whether it’s legal to buy an RDP house before eight years:

No, an RDP house may not be sold before eight years. The municipality must give permission for an RDP house to be sold.

You can report an illegal sale of an RDP house to the Department of Human Settlements here:

Toll-free Customer service hotline – 0800 146 873 / 012 421 1915

Fraud hotline – 0800 204 401

Wishing you the best,
Athalie

Answered on May 14, 2021, 1:25 p.m.

See more questions and answers

Please note. We are not lawyers or financial advisors. We do our best to make the answers accurate, but we cannot accept any legal liability if there are errors.