ocr’s household survey of west point lodge and investigation into the formation of a ‘lodge’

OCR’S

HOUSEHOLD

SURVEY OF WEST

POINT LODGE

and investigation into

the formation of a

‘lodge’

Report by Sayed Iqbal Mohamed

for the Organisation of Civic Rights (OCR)

Updated: April 10, 2015

.

OCR’s Household Survey and investigation into the formation of a ‘lodge’ 1 | WPL

Abstract

The struggle continues for the tenants of West Point Lodge (WPL) in Durban to have secure

tenure with the provincial government, the owner of the property. A government official

colluded with an estate agent in a fraudulent scheme by inflating the market values of the

properties and subsequently imprisoned. The seller maintained total control of the building

for almost a decade, generating rental income.

The Organisation of Civic Rights (OCR) conducted surveys of each household, engaged the

provincial government’s department of human settlements to take control of its property and

to provide security of tenure to the tenants. After much pressure from the OCR, the

department barred the landlord, effectively taking control of its building in December 2010.

The survey results showed that the residents were tenants who occupied rooms. Seventy

seven people occupied the 38 households surveyed: 31 were adult females, 1 tenant occupied

the room for more than a year and 37 tenants were in occupation for less than a year. All the

respondents were occupying in terms of oral leases with varying monthly incomes.

Whether the occupants were lodgers or tenants became contentious, defining their legal

rights. This report established that the occupants or residents of WPL were in fact tenants

and the rooms they occupied fell within the definition of a dwelling and not a lodge. As a

tenant, several statutory laws come into play, regulating the tenant-landlord relationship,

which do not relate to lodgers. The eThekwini municipality misdirected itself in issuing a

licence to operate a lodge.

Key words: tenants, government, landlord, fraud, survey, questionnaire, lease,

South Africa, security of tenure, lodge


Acknowledgments

The Organisation of Civic Rights (OCR) is grateful to the tenants of West Point Lodge for

responding to the questionnaires. Pretty Gumede and Loshni Naidoo of the OCR have spent

many hours liaising with the tenants and management of the building. To them, a special

gratitude for their support and commitment. Julie Ruwers of Trafalgar is also acknowledged for

providing valuable information on current rentals and size of flats and we express our gratitude to

her for her prompt response.

Introduction

The analysis of this survey is based on the responses of 38 respondents to OCR’s questionnaire

undertaken in mid-October 2010.1

After a thorough investigation, this survey identifies the respondents/occupants as tenants and not

as ‘lodgers’. Integrally linked to the status of the occupants is the status (commercial, residential

or accommodation establishment) of the building in terms of legislation.

Hence, critical to the status of tenants’ security of tenure is the status of the building. Broadly,

two specific areas of concern emerge in this respect: -

1. The political, constitutional and moral responsibility of the KwaZulu Natal’s

Department of Human Settlement (DHS) since ownership is vested with the DHS.

2. The overhauling of bylaws to prevent what appears to be a complicit relationship

between the landlord and the eThekwini Municipality in creating a situation that

deems tenants as occupants of a hotel, motel or some other form of short term

occupants of an establishment accommodation.

3. In fact, the DHS is part of the ‘scheme’ of stripping tenants of their legal rights in

view of the requirement that the owner must give written consent for an

accommodation establishment licence. (Annexure “C)

These concerns need to be addressed urgently to prevent the insecurity experienced by the

tenants, the payment of exorbitant rentals (refer to Table 1) for shoddy dwellings and denying

tenants the procedural protection accorded by the Constitution regarding arbitrary eviction. It is

imperative for urgent remedial intervention to prevent the recurrence and replication of the West

Point Lodge scenario (the city may have granted licences to several ‘lodges’).

******

The discussion of the purpose of the survey is followed by an analysis of the granting of a licence

to run a business of a short term accommodation establishment. It will be established that WPL is

not a short term accommodation establishment and that the Municipality has misdirected itself in

issuing such a licence; in any event, it has failed to carry out a diligent and regular follow up

inspection as required by its bylaws.

Thereafter, we look at specific responses of the demographics of the tenants.

1 OCR has maintained contact with the tenants and represented them on various matters. A site visit on April 8, 2015 revealed that the number of households now stands at 18.


Purpose of the Survey Occupants of West Point Lodge (WPL), situated at 131 Margaret Mncadi Avenue,

Durban approached the OCR for intervention regarding ownership dispute reported in the

Daily News2. The reports created an impression of possible eviction by the KwaZulu

Natal Department of Human Settlement (DHS), the owner. According to the tenants,

they were at West Point Lodge (WPL) as a result of a verbal contractual agreement.

They identified a Mr. Anesh Maharaj of Anesh Maharaj Attorneys, as their landlord.

The building is managed by WPL with no other written communication or information

available to the tenants regarding the owner or the landlord. A letter head of WPL bears

a mobile number and a street address, which is that of the building, WPL. There is no

other information or detail of members, trustees, owners or directors. Refer to Annexure

“A”.

According to media reports3, WPL is owned by the DHS and one of several buildings that

was the subject matter of a high court application that established fraud committed by an

official (head of department of the DHS) and an estate agent, both of whom were

convicted and subsequently imprisoned. WPL and Palm Beach Hotel were previously

owned by Dr Rikesh Maharaj and Anesh Maharaj, who sold the two properties to the

DHS in 2004. They, however, continued to act as landlords, collecting rental income for

themselves for the past 6 years.

The provincial MEC for the DHS, Maggie Govender is yet to make a decisive move that

would end the ‘exploitation’ of tenants at WPL and ensure DHS as the owners and,

which, under a constitutional mandate, provide security of tenure to the occupants, either

by way of social housing rental, with or without the option of ownership or full

ownership rights).

While the media reports mention WPL as a hotel and as a short term accommodation,

these were not contradicted by the landlord. In fact, in written communication with

the OCR (on November 24, 2010) Maharaj confirmed that WPL was licensed as a

lodge in accordance with the requirements of the Accommodation Establishment

Bylaw. See Box 1 below.

2 Zohra, M. T. “Property owners 'did no wrong',” Daily News, October 22, 2010. Zohra, M. T.

“Durban mulling province's offer of free hotels”, Daily News, September 09, 2010 3 Articles above


BOX 1

Hello Dr Mohamed

I am well and trust that you are doing good.

1. Westpoint is a licensed lodge (licensed short term accommodation provider permitted to

supply or allow meals to be consumed in the rooms with a restriction of not more than

two persons allowed to accommodate each room save for room 125 where a maximum

of 5 persons are permitted).

2. The Application was made and granted in terms of the Accommodation Establishment

By-Law and included certain other applications to the Health, Police, Fire and

Emergency Department and Metro Police in terms of that By-Law.

I trust that the above is in order and look forward to being of further assistance to you.

Regards

Anesh Maharaj

ANESH MAHARAJ ATTORNEYS

TEL: 031 301 3105

Dear Mr. Maharaj

Hope you re well?

Thank you for providing the licence number and for your co-operation. You are perhaps the

only person who can ‘demystify’ the following since the City has thus far failed to provide any

explanation: -

1. West Point Lodge is licensed as a lodge. Correct?

2. Was the application in terms of the ‘Accommodation Establishment bylaw? If not, please

indicate the relevant bylaw or legislation.

Thank you in anticipation of your response

Yours faithfully

Sayed Iqbal Mohamed

Further clarification sought the same day, resulted in the following response: -

Hi

You are welcome. I haven’t come across that definition in any by-law myself and can only

presume that it refers to licensed short term accommodation establishments which do not

operate on a hotel basis. Possibly in correlation to the concept of a motel in the European

countries and the United States.

Regards

Anesh Maharaj

ANESH MAHARAJ ATTORNEYS

Subject: Re: West Point Lodge

Thank you for the response. I am still struggling to make sense of the concept of a

'lodge'. There is nothing in the bylaws that explains a ‘lodge’ not even in the Accommodation

Establishment By-Law.

Be that as it may, thank you again for responding . . .


Tenants or Lodgers? Whether the occupants are lodgers or tenants becomes contentious. As a tenant, several

statutory laws come into play, regulating the tenant-landlord relationship. The provisions

of the Constitution, the Rental Housing Act 50 of 1999 (RHA), the law of contract and

the common law direct the rights and duties of the parties. As a ‘lodger’, created by the

landlord and the Municipality, the occupant is treated outside the protection afforded by

the above laws. Some of the provisions of the RHA that would have a direct bearing on

WPL landlord are the issuing of receipts with specific details, unfair practices, reasons for

terminating the tenancy, notice period, illegal lockout and maintenance. In terms of the

RHA and the Constitution, WPL landlord are prevented from arbitrary evictions.

While it would appear WPL is permitted by the municipality to operate as a lodge,

occupants believe that they are tenants paying rentals weekly or by-monthly and issued

receipts. See Annexure “B”.

“According to South African common law, a lease period is definite: daily, weekly,

monthly, yearly (periodic leases) or for a specified fixed period …”4.

Each household occupies a room that is partly furnished. Each occupant or household

head have brought into their rooms personal items / appliances such as beddings, stoves

and refrigerators.

Occupants are not allowed to wash any clothes, beddings and linen or to hang these in the

building. These are washed at a laundromat and paid for by each occupant. It would

appear that the linen of the rooms of the 10, 11 and 12 floors are washed by the

management and hung to dry in the building.

It therefore became necessary to undertake an in depth investigation of how a ‘lodge’

comes into existence in terms of the Municipality’s bylaws.

General definition:

Masons in the Middle Ages lived in shelters called lodges that were part of or

near cathedrals and castles.

A lodger is defined as one who rents another person’s room, usually a

furnished room.

Municipality’s definition:

In our investigation we have not come across a definition in the City’s bylaws.

The eThekwini Municipality has yet to respond to OCR’s query regarding a

‘lodge’ and where it is located in terms of its legislation.

Case law definition

Cotton, L.J., in Bradley v Baylis (8 QBD 195) defined a lodger as follows: “In

my opinion there is involved in the term 'lodger' that a man must lodge in the

house of another man and lodge with him.”

According to Collins, M.R.: “If another person is really in control of that part

of the house, the person living in it has not a separate occupation within the

meaning of the Act of 1878; his occupation is on behalf of his landlord, and he

4 Mohamed, S. I. (2010). Tenant and Landlord in South Africa. Second Edition. Organisation of Civic

Rights. Durban


is a lodger. On the other hand, if by agreement with his landlord he has an

independent occupation which the landlord cannot control, his occupation is

that of a tenant, and entitles him to the franchise as an inhabitant occupier.”

(In Stellenbosch Students' Case 1915 CPD 599, the following cases were

referred to on the point of a lodger.)

“It seems to me that in a contract for the supply of board and lodging there is

an implied condition that either party shall conduct himself in a decent and

reasonable manner. It is implied because without it the relation of landlord and

lodger would become intolerable. They occupy the same house, they are liable to

come into frequent contact with one another.” Brown v Hayden 1931 CPD 70.

Accommodation Establishment Bylaws

Any person or entity that intends to operate a short term accommodation business

with or without the provision of meals must be ‘registered’ with the eThekwini

Municipality in terms of its Accommodation Establishment Bylaws. The process

starts with lodging an application form with the consent of the owner if the applicant

is not the owner (Annexure “C”). The application must be accompanied by certain

requirements such as a site plan, a layout plan that includes the location of the

cooking facilities, bathrooms, toilets, showers, laundry facilities and the number of

people per bedroom [our emphasis] in terms of Schedule 3 to the Slums Act 76 of

1979.

The city’s health and fire departments have to establish that the requirements laid

down in the above bylaws are met. After the initial inspection and verification, an

official of the Municipality is empowered to carry out in loco inspection at any time to

ascertain if the licensee is not in violations of the bylaws.

WPL is licensed in terms of the above bylaw but does not meet the requirements and

is consequently not an Accommodation Establishment. These are some of the reasons

that WPL, while licensed, is not an Accommodation Establishment: -

1. A registration certificate must be displayed in the office or reception area. (s4)

No such certificate is displayed at WPL

2. Every adult occupant must sign a certificate “to the effect that his attention has

been drawn to the copy of these bylaws displayed in terms of section 11 and in

which he acknowledges that he may be required to leave the premises if he

commits a breach of these bylaws or commits a nuisance.” (s10)

According to the tenants, no certificates were signed

3. Updated bylaws relevant to such an accommodation establishment must be

displayed on the premises and accessible to the occupants. (s11).

No bylaws are displayed at WPL

BOX 2

Note: The Slums Act 76 of 1979 was repealed in 1997 by section 20 of the

Housing Act 107 0f 1997 as recorded in the Schedule of laws repealed.


4. In terms of s14 of the Accommodation Establishment Bylaws, under the

heading: ‘Identification and marking of bedrooms’, a notice is to be displayed

prominently on each bedroom wall [our emphasis] that will include:

“(a) the floor area of the room in square metres;

(b) the maximum number of persons who may be accommodated in that

room as calculated in terms of section 13; as shown on the plan lodged in

terms of section 3(1)(b) as amended in terms of section 8(2).”

No such notice or any notice is displayed in the rooms.

5. Section 15 places several responsibilities on the landlord/owner:-

One of which states that if meals are not provided by the

Accommodation Establishment, there must be permission granted

for separate cooking and food preparation facilities, which has to

be separate from the bedroom. This must be depicted as such on

the plan lodged with the application for a licence.

West Point Lodge did not meet the requirement for an application to operate a business

of a short-term Accommodation Establishment. Inspection by the relevant departments

would have revealed that this was indeed the case. Subsequent inspection after the

granting of a licence (not sure how one could be granted in the first instance) would

reveal that WPL miserably failed to satisfy the requirements.

The substance and reality of WPL occupiers are that they are tenants even though a

situation of a ‘lodge’ or a short-term accommodation was created in theory, supported

by eThekwini Municipality and presumably with the consent of the owner, the DHS.

Consent of the owner is necessary and is done on a separate form (Annexure “C”

below).

Perhaps, the impression of a ‘lodge’ or of a short-term Accommodation Establishment

was done for expeditious reasons: to save legal costs by circumventing the legal

requirements to secure an eviction; seize the personal property of a tenant; to deal with

late or non-payment of rentals and to avoid the statutory requirements of the Rental

Housing Act, which is the law of general application for residential leases that would

apply to WPL.


Table 1: Comparable ‘market’ rentals

Rentals Dwelling

Type with

kitchen,

bathroom &

toilet

5Size

sq.m

for areas

Suburb/area below standard standard upmarket

Central Durban Bachelor flat

1 b/room flat

2 b/room flat

45

65

75

R2100

R2950

R3375

R2700

R3900

R4500

Musgrave Bachelor flat

1 b / room flat

2 b/room flat

45

65

75

R2700

R3900

R4500

R3000

R4400

R4500

Esplanade Bachelor flat

1 b / room flat

2 b/room flat

45

65

75

R2500

R3200

R3800

R2750

R3800

R4500

WEST POINT

LODGE

Dwelling WITHOUT kitchen, &

toilet

below standard precinct

Single room 15.67

From R1560 up to R2500

Single room 17.4

5The average sizes and estimated rentals for Central Durban, Musgrave and the Esplanade were

provided by Trafalgar Properties. It was also indicated that the older buildings have larger floor space

while floor space for new bachelor flats may measure 27sq.m


How was the survey conducted?

Tenants approached the OCR to intervene in what appeared to be uncertainty

over their tenure, resulting in the belief that there was an imminent threat of

eviction. The OCR responded by meeting with the tenants in mid October 2010 and

followed up with questionnaires. 38 respondents participated, with about the same number choosing not to be

represented by the OCR on ‘legal’ advice from the landlord’s representative

regarding OCR’s mandate. The tenants’ representatives visited each household with OCR fieldworkers

supervising and managing the process. In total, 22 main questions were asked with several sub-questions.

Summary of the survey results

Table 2: General information

Number of floors

Number of lifts

Total number of rooms

Number of rooms occupied (relatively on long term basis)

Number of rooms occupied (on short term basis)

Number of occupants signed OCR’s mandate

Number of occupants completed questionnaire

12

02

82

63

19

39

38

Table 2: Number of respondents 38

Number of females 31

Number of males 26

Number of children 20

Total occupants of 38 households 77

Size of rooms most rooms: 15.67m2

corner rooms (west-end): 17.4 m2


Number of households

Seventy seven people occupied the 38 households surveyed: 31 were adult females,

26 adult males and 20 children. As for the period of occupancy, 1 tenant occupied the

room for more than a year and 37 tenants were in occupation for less than a year.

(Tables 4, 5 & 6)

Tenant

All the respondents were occupying in terms of oral leases.

Landlord

All 38 respondents identified Mr. Anesh Maharaj as their landlord.

Learners

Eleven households indicated that they had children (16) who attend crèches and

schools. Five were at various crèches, 7 attended primary school, one high school and

three did not state which crèche or school their children attended. (Tables 7 & 8)

Income

As for respondents’ monthly income, majority (52%) had an income between R2001

and R3000, with 39% earning R2000 and below. Two stated their income between

R3400 and R5000 and one person did not respond.

Most household (29%) had an income between R2001 and R3000, followed by 16%

of the household whose income was up to R2000. Eleven percent fell within an

income bracket of R3001 and R3800 and 5% had a total household income between

R4001 and R5000. Thirty nine percent did not respond. (Table 9)

Rental

When is rental paid?

The overwhelming number of respondents (79%) paid rental weekly; 16% monthly

and 5% fortnightly. None of the respondents paid a daily rental. Most tenants (81%)

paid up R1999 rental per month; 11% between R2000 and R2500.

To whom and where is rental paid?

Most respondents (97%) said that they paid their rentals to Mr. Maharaj’s receptionist

while 3% paid to the Supervisor. Ninety four percent paid at Mr. Maharaj’s office,

3% at the Supervisor’s office and 3% paid into Anesh Maharaj’s bank account.

(Tables 10 - 13)

Receipts

Except for one respondent, all respondents are issued with receipts for rental

payments. (Table 14)

Arrears

Four respondents stated that they had fallen behind with their rentals, ranging from

R95 to R525. Ninety seven percent said that they met their rental commitments.

(Tables 15 & 16)

Increase

Under half of the respondents (42%) had rental increases. In a six month period, the

overall average rental increase was 12%; ranging from 10% to 16.6% increases for the

different rentals.


Table 4: Number of respondents

Room No’s

1st Floor 11 12 13 14 15 16 17

2nd Floor 21 22 23 24 26 27

3rd Floor 31 32 35 36 37

4th Floor 42 43 44 47

5th Floor 51 52 53 54 55 57

6th Floor 61 62 66

7th Floor 71 72 74 76 77

8th Floor 85

9th Floor No Response

Table 5: Total occupants of 38 households

Number of Persons

per room

Number

respondents

Total

1 15 15

2 14 28

3 3 9

4 5 20

5 1 5

Total 38 77

Table 6: Period of occupancy

1-6 months 19

7-11 months 18

1-2 years 1

3-5 years 0

Other 0


Table 7: How many school going children do

you have?

Households No. of learners

11 16

27 No response

Total 16

Table 8: Which school(s) do they attend?

Addington Primary 2

St. Anthony’s Primary 1

Dingezweni Primary School 2

Gillits Primary School 1

Day-care/ Crèche

Little Flower

Children Care

Elwyn Court crèche

Not stated

1

2

1

1

5

Langelitsha High School 1

Seven Hills Primary 1

Did not indicate school 3

Total learners 16

Table 9: Total household

income per month?

R 1000-1200

R 1201-1400

R 1401-1600

R 1601-1800

R 1801-2000 6

R 2001-2400 3

R 2401-2600 2

R 2601-2800 3


R 2801-3000 3

R 3001-3400 1

R 3401-3600 2

R 3601-3800 1

R 3801-4000

R 4001-5000 2

above R 5000

no answer 15

Total 38

Table 10: when is rental paid?

Daily 0

Weekly 30

Monthly 6

Bi- monthly 2

Table 11: How much rental do you pay per

month?

Below R 500 0

R 501-999 0

R 1000-1499 3

R 1500-1999 31

R 2000-2499 3

R 2500 or more 1

Table 12: Who do you pay your rental to?

Mr Maharaj’s receptionist 37

Supervisor 1


Table 13: Where do you pay your rental?

Maharaj’s office 36

Supervisors office 1

Anesh Maharaj’s bank account 1

Table 14: Are you issued with receipts?

Yes 37

No 1

Table 15: Are you up to date with your

rental?

Yes 34

No 4

Table 16: If no, how much do you owe?

room 26

R 95.00

room 43

R 395.00

room 71

R 95.00

room 47

R 525.00


Conclusion

Each household at WPL occupies a room that is partly furnished. Each occupant or

household head have brought into their rooms personal items and appliances such as

beddings, stoves and refrigerators. There are no separate cooking facilities and no bedrooms.

Rental is too high for the condition that they live in and the size of the rooms.

Communal toilets are in a dreadful , communal showers have no doors and doors to the

tenants’ rooms need to be replaced to prevent further unlawful entry by third parties

(criminals).

There are other matters that need to be addressed, such as tenants being denied visitors, not

allowed to wash clothes and illegal lockouts.

City officials failed to respond to the repeated attempts to explain where the definition of

‘lodge’ is to be found in the bylaws. The general definition refers to Masons in the Middle

Ages who lived in shelters called lodges that were part of or near cathedrals and castles.

A lodger is also defined as one who rents another person’s room, usually a furnished room and

lives with the owner. English and South African case law confirm that a person must lodge in

the house of another person and lodge with her or him.

Judge President Gardiner in Brown v Hayden 1931 CPD 70 stated:-

“It seems to me that in a contract for the supply of board and lodging there is an implied

condition that either party shall conduct himself in a decent and reasonable manner. It is

implied because without it the relation of landlord and lodger would become intolerable. They

occupy the same house, they are liable to come into frequent contact with one another.”

As for the conditions in the building, the department of human settlements subsequent control

of its property did not change much. In fact, after the death of two children, the burnt flat

remains a danger.

Two children burnt to death in building owned by provincial; government in January 2012

Tenants continue to occupy their rooms with the constant threat of eviction or displacement.

The department’s or rather the MEC’s undertaking of secured tenure appears to be an empty

promise.


Recommendation

Immediate control of West Point Lodge (WPL) by its owner, the Department

of Human Settlement (DHS).

Re-assessing and reviewing rentals with the view to reducing rentals urgently.

Looking at maintenance issues for the short term.

Converting WPL, within six months, into social housing units, with rental and /

or ownership options.

Need for a national standardised bylaws.

Investigation into the circumstances under which licence was approved and

granted to WPL landlord. Appropriate action against such person/s.

Investigation into the person/s from the DHS who gave consent for the

Accommodation Establishment licence. Appropriate action against such

person/s.


“C”


References

Interviews with tenants

Meetings with KwaZulu Natal provincial MEC for human settlements: January 18, 2012

Mohamed, S I ‘Owner cannot alter existing lease terms: Esplanade residents’ rightful tenants,

not squatters’ 07-04-2015 Daily News

Mohamed, S I ‘‘Question hangs over the status of residents: Are West Point Lodge occupants,

tenants or ‘lodgers’?’ 07-12-2010 Daily News

Questionnaires

Rondganger, L ‘City to convert ruined buildings: 3 landmarks earmarked for housing’ 31-03-

2015 Daily News

Zohra, M. T. ‘Property owners 'did no wrong',’ 22-10-2010 Daily News

Zohra, M. T. ‘Durban mulling province's offer of free hotels’, 09-09-2010 Daily News

Julie Ruwers of Trafalgar Properties

ocr’s household survey of west point lodge and investigation into the formation of a ‘lodge’

Documents