I was forced to move from a flat I was renting and now my landlord and his agent are withholding my deposit. Please help!

The long answer

The law that regulates the relationship between the landlord and the tenant is the Rental Housing Act of 1999. The part of the Act that deals with deposits, Section 5(3), 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. 

Whether or not your lease mentions this or says something different, or the landlord didn’t know that he had to invest your deposit in a bank account where interest accrues, it makes no difference as the Rental Housing Act is the law and it overrules any other agreements made in a lease. So even if the landlord didn’t put your deposit into an interest-bearing bank account, he is still required to pay the interest plus the original deposit when you leave.

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

He can also use the deposit to repair damage done to the flat. This must be actual damage, not just ordinary wear and tear. If he uses your deposit to repair the flat, he must show you the receipts for the work done so that you can see what he paid for the repairs. If he has to repair damage to the flat, he must refund the balance of the deposit, 14 days after the repairs have been made.

According to the Landlord Association of South Africa, a landlord is not allowed to deduct expenses for: 

• Normal wear and tear (such as faded paint or worn carpets)

• Renovations or improvements

• Damages existing prior to the tenant's move in.

They say that if your landlord refuses to refund your deposit, you should send a Final Demand Letter stating:

• The amount of money that you are owed 

• A payback deadline (refer to the Rental Housing Act’s seven-day refund rule)

• Legal repercussions in the event that your deposit is not returned to you. 

• Provide your banking details for payment.

So, if there are no repairs to be done, and you are not behind with the rent, he must refund the deposit plus interest within seven days of your leaving the flat.

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 landlord refuses to refund your deposit plus interest, you can either lay a complaint at the provincial Rental Housing Tribunal (RHT) or you can go to the Small Claims Court to claim the deposit plus interest. 

The RHT is free, and the legal assistants and clerks at the Small Claims Court will also assist you for free. It is designed to be simpler than other courts so that it’s accessible to everyone: lawyers are not allowed to represent you at the Small Claims Court. You can go to the Small Claims Court for claims up to R20,000, and the only costs which can be awarded are the limited Sheriff’s fees which are paid by the other party. 

According to Legal Aid, while various Small Claims Courts have varying operating hours, they typically open between 16:00 and 17:00 and are not available during normal business hours, allowing individuals to use the court without needing to take time off work. 

If you go to the Rental Housing Tribunal (RHT)

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

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

The officials at the Tribunal will make contact with the landlord to find out his side of the story. If he doesn’t agree to refund your deposit with interest, there could be a mediation process and then a hearing. This could take up to three months. The Tribunal will then make an order, which is the same as getting a judgment from the court. That means that if the Tribunal says you must get your deposit back, the sheriff of the court can go and get your money from the landlord if he doesn’t pay within seven days of the order being made.

If you go to the Small Claims court, the Western Cape Government states that these are the steps to follow: 

Step 1: Contact your landlord in person, in writing or call him via telephone and ask him to settle your claim. 

Step 2: Write a letter of demand. Send him a written demand with the facts of your claim and the amount you want if he doesn't agree to settle your claim. Give the landlord the written claim in person or by registered mail. After he gets your message, give him 14 days to settle your claim. 

Step 3: Go to the clerk of the court. After 14 days, go with the following paperwork to the clerk:

• A post office slip or any other documentation that proves that the letter of demand was delivered. 

• Any agreement, record, or other evidence that supports or is connected to your claim.

• The landlord's full name, address (including home and business addresses, if available), and phone number.

 ​Step 4: A summons is sent to the opposing party. 

The court clerk will review your paperwork and assist you in creating the summons. The summons will be issued by the court clerk and given to you to give to the landlord, or the sheriff of the court may give it to him. The court clerk will also let you know when the matter is scheduled to be heard.

Step 5: The hearing

• You have to show up in person for court.

• All of the relevant documents that support your claim must be with you.

• You need documentation that the landlord received the summons.

• The court's processes are straightforward and informal:

• You will be asked to present your case by the court's commissioner.

• Give the facts as clearly as you can.

• Answer the commissioner's questions and turn in the supporting documentation for your claim.

Step 6: After judgment has been given: if the judgment is given in your favour, the landlord must pay the money immediately and will be issued a receipt.

Wishing you the best,
Athalie