Wright v Weston Raine & Horne

NEIL WRIGHT v WESTON RAINE HORNE – NORWOOD ANOR
[2004] SADC 16
Judge Lunn
Civil

On 31 October 2001 the appellant entered into a tenancy agreement with the respondent Weston Raine and Horne (“the Agent”) as agent for the landlord Cocks for Unit 10, 81-85 Windsor Grove, Klemzig. There have been several extensions of the tenancy and under those it runs until 27 May 2004 unless earlier determined. The rent has always been $100 per week.
On 24 November 2003 the Agent served a notice on the appellant for unpaid rent which on 3 December 2003 terminated the tenancy under s80 of the Residential Tenancies Act 1995 (“the Act”). The validity of this termination was not disputed.
On 4 December 2003 the Agent lodged an application with the Residential Tenancies Tribunal (“the Tribunal”) seeking an order for possession of the premises and payment of the security bond. The application was heard by the Tribunal on 15 December 2003. The appellant and a representative of the Agent attended and all gave evidence. The Tribunal considered whether it was just and equitable for it to reinstate the tenancy under s80(5) of the Act. It decided to reinstate the tenancy upon conditions. It gave written reasons for doing so which have not been challenged.
The relevant parts of the sealed order of the Tribunal were as follows:
“ORDERS:
1.Pursuant to Section 80(5) of the Act, I order that the tenancy be reinstated on the condition that the tenant makes the payments listed in clause 2 below. If the payments are not made by the times stated in clause 2 then the tenancy will terminate and the landlord will be entitled to possession of the premises at 10/81-85 Windsor Grove, Klemzig at the respective times stated in clause 3 ON CONDITION THAT if the tenant fails to give up possession then the order for possession may only be enforced by the Tribunal bailiff.
2.The tenant shall make the following payments to the landlord (via the agent):
a.      $67.50 on or before 9 January 2004 (making payment of 2 quarterly water supply charges of $33.75 each)
b      $200.00 by 5.00 pm on Friday 12 December 2003
c      $160.00 by 5.00 pm on Friday 19 December 2003
d      $160.00 by 5.00 pm on Monday 29 December 2003
e      $160.00 by 5.00 pm on Friday 2 January 2004
f       $160.00 by 5.00 pm on Friday 9 January 2004
g      $160.00 by 5.00 pm on Friday 16 January 2004
h      $160.00 by 5.00 pm on Friday 23 January 2004
i       $160.00 by 5.00 pm on Friday 30 January 2004
j       $160.00 by 5.00 pm on Friday 6 February 2004
(paying rent to 17 February 2004 with a credit of $35.00 – fortnightly rent is payable under the agreement from 20 February 2004)
3.In default of payments 2a-2i the landlord will be entitled to possession of the premises at the following times:
a       10.00 am on Monday 12 January 2004
b      10.00 am on Monday 15 December 2003
c      10.00 am on Monday 22 December 2003
d      10.00 am on Tuesday 30 December 2003
e      10.00 am on Monday 5 January 2004
f       10.00 am on Monday 12 January 2004
g      10.00 am on Monday 19 January 2004
h      10.00 am on Tuesday 27 January 2004
I       10.00 am on Monday 2 February 2004
…..
Important Information
It is the tenant’s obligation to ensure that the rent payment reaches the landlord by the time stated in the order. Failure to do so may result in the enforcement of the order which means that the tenant may be evicted from the subject premises.
…
If the tenant does not give up possession of the premises in compliance with an order for possession a bailiff of the Tribunal may evict the tenant immediately after the time in the order has passed without further notice or warning to the tenant.”
The reasons contained the following passage:
“Despite the arguments ably put on behalf of the landlord by his agents, I propose to reinstate this tenancy on condition that the tenant make regular payments towards rent and rent arrears. After discussion with Mr Wright it was agreed that the first payment will be two weeks rent ($200.00) to be paid by the close of business today. Because of the concerns expressed by the agent I propose to list each payment that will be necessary to ensure that the rent arrears are paid and the rent is two weeks in advance. The landlord will be entitled to possession of the premises if any but the last payment is not made in full and on time.”
On 23 December 2003 there was a further hearing before the Tribunal on another application by the Agent for an order for possession of the premises based on alleged breaches by the appellant of his obligation to keep the premises clean and for his keeping illegal substances in the unit. That application was dismissed. Also on 15 January 2004 there was a further hearing before the Tribunal on the appellant’s application for repairs to be carried out on the premises. An order was made for such repairs and that the tenant be paid compensation of $250 to be offset against future rent. Neither of these applications is directly relevant to what I have to decide, but they show an acrimonious relationship between the parties.
The appellant duly made the payments required by paragraph 2b-d of the order of 15 December 2003. Prior to 2 January 2004 he paid a further $100.00, but not the whole $160.00 which was payable by 5pm on 2 January 2004 under paragraph 2e of the order. On Monday, 5 January 2004 at about 2.45pm a representative of the Agent telephoned the Tribunal informing it of the breach of condition 2e and requesting the issue of a warrant for possession. Without any further inquiry or formality the Registrar of the Tribunal thereupon issued the warrant. (It is undisputed that he was entitled to do so.)
On 6 January 2004 the appellant instituted this appeal against the order of 15 December 2003. He claimed that he had been late in paying the outstanding $60.00 because he had been sick. He said that he had tendered it to the Agent on 6 January 2004 when the tender had been refused. The respondents did not dispute these assertions, but for the reasons appearing hereafter this evidence is inadmissible on this appeal except as an indication of what could have been anticipated on 15 December 2003 about possible problems in complying with the order. On 7 January 2004 this Court suspended the operation of the order of 15 December 2003 pending the determination of this appeal.
On the hearing of the appeal the Commissioner of Consumer Affairs intervened under s109 of the Act. Counsel for the Commissioner adopted a neutral stance in the dispute between the parties, but made submissions on the law relating to self-executing orders and the nature of an appeal under s41 of the Act. Counsel for the respondents adopted her submissions on the law.
Nature and Scope of an appeal under s41 of the Act
It is necessary to consider at the outset the nature and scope of an appeal under s41 of the Act. If it is not an appeal by way of a rehearing at the present time, or an appeal de novo, this Court cannot act on evidence of matters occurring after 15 December 2003 except perhaps for limited purposes.
I am not aware of any judicial exposition of the nature and scope of the appeal under s41. Parts of it are couched in somewhat unusual phraseology. I have not been able to find any similar appeal provisions in other statutes.
Sections 41 and 42 of the Act state:
“Appeals
41. (1) An appeal lies to the District Court from a decision or order of the Tribunal made in the exercise (or purported exercise) of its powers under this Act.
(2) On an appeal, the District Court may (according to the nature of the case)-
(a)     re-hear evidence taken before the Tribunal, or take further evidence;
(b)     confirm, vary or quash the Tribunal’s decision;
(c)     make any order that should have been made in the first instance;
(d)     make incidental and ancillary orders.
(3) The appeal must be commenced within one month of the decision or order appealed against unless the District Court allows an extension of time.
(4) If the reasons of the Tribunal are not given in writing at the time of making a decision or order and the appellant then requests the Tribunal to state its reasons in writing, the time for commencing the appeal runs from the time when the appellant receives the written statement of the reasons.
Stay of proceedings
42. (1) If an order has been made by the Tribunal and the Tribunal or the District Court is satisfied that an appeal against the order has been commenced, or is intended, it may suspend the operation of the order until the determination of the appeal.
(2) If the Tribunal suspends the operation of an order, the Tribunal may terminate the suspension, and if the District Court has done so, the District Court may terminate the suspension.”
The law on the various types of appeals which can be created by statute was set out by Cox J in Wigg v Architects Board of South Australia (1984) 36 SASR 111 at 112-114 as follows:
“The word ‘appeal’ is itself a word of flexible meaning … in Builders Licensing Board v Spurway Constructions (Syd.) Pty Ltd, Mason J described the different kinds of appeal that may be created by a legislature with respect to the decisions of judicial and administrative tribunals, … The first kind is an appeal strictly so called. Here the question is simply whether the judgment complained of was right when given: … There is no question of introducing fresh evidence in the appeal court. All that will be decided is whether the court below came to the right decision on the material that was before it. …Next, there is the appeal by way of rehearing, of which the appeal to the Court of Appeal in England, modelled on the old Chancery appeal, is typical. … This is a rehearing on the documents, but with a special power to receive further evidence on the appeal. The latter power is necessary, because the question on a rehearing of this kind is whether the order of the court below ought to be affirmed or overturned in the light of the material before the appeal court at the time it hears the appeal. …Thirdly, there may be an appeal de novo in which the appeal court hears the matter afresh. … Which type of appeal is given by a particular Act will depend upon its construction. The use of the word ‘rehearing’ will not be decisive, because that is a word to which different meanings have been given. … It will be a matter of discerning Parliament’s intention from an examination of the legislation as a whole. …
It is not to be supposed, of course, that a statutory appeal procedure will always fit easily into one or other of the three categories discussed above. It is open to the legislature to create any kind of appeal it pleases, including a hybrid that exhibits features of more than one of the classic categories. …”
(Citations of supporting authorities omitted.)
See also generally on the topic Halsburys Laws of Australia, volume 20, paras [325-11105] – [325-11115]; Cairns “Australian Civil Procedure”, 4^th edition, 637-8.
It was not suggested this was an appeal de novo. The issue is whether on the proper construction of the Act it is a strict appeal to be determined on the facts as they existed at the time the Tribunal made its decision, whether it is an appeal by way of rehearing on which this Court should make the appropriate orders on the facts as they exist at the present time or whether it is some hybrid of these two. Regrettably, the issue is far from clear cut.
Sections 41 and 42, which are the only sections of the Act to deal with such appeals, do not explicitly categorise the type of appeal created. There is no assistance on the point from the Second Reading Speech in Parliament (Hansard, House of Assembly, 1 June 1995, pp 2495-2499. Section 41 was then apparently clause 34 in the bill.)
The Act replaced the Residential Tenancies Act 1978 (“the 1978 Act”) which generally dealt with similar subject matter. Section 29 of the 1978 Act conferred a similar, but not identical, right of appeal. Section 29 provided:
“29. (1) … a right of appeal shall lie to a Local Court of full jurisdiction … against any order or decision of the Tribunal made in the exercise or purported exercise of its powers under this Act.
…
(4) The Local Court may, on the hearing of the appeal, do one or more of the following, according to the nature of the case-
(a)     affirm, vary or quash the decision or order appealed against, or substitute, or make in addition, any decision or order that should have been made in the first instance;
(b)     remit the subject matter of the appeal to the Tribunal for further hearing or consideration or for re-hearing;
(c)     make any further or other order as to costs or any other matter that the case requires. …”
(By s23 of the Statutes Repeal and Amendment (Courts) Act 1991 a reference to a Local Court of Full Jurisdiction is to be construed as a reference to the District Court.)
In interpreting s41 regard may be had to changes which have been made from the previous legislation as to the intention of Parliament. I have not been able to find any judicial exposition of the nature of the appeal created by s29 of the 1978 Act. The principal differences are that there is no equivalent of s29(4)(b) in s41 and there was no equivalent of s41(2)(a) in s29. Furthermore, what was s29(4)(a) has been in part split into s41(2)(b) and (c) but without the express connection between them which was contained in s29(4)(a).
To my mind the most significant words in s41 on the intention of Parliament about the nature of the appeal are those in the phrase in s41(2)(c) “any order that should have been made in the first instance”. They are not as wide as any orders that are within the power of the Tribunal. It is not orders which could have been made, but orders which should have been made. That strongly suggests that in exercising its powers under s41(2)(c) the District Court is to put itself in the position of the Tribunal at first instance and determine what order it should then have made. Those orders must be limited to what was proper “in the first instance” which is the date of the order of the tribunal. There is a temporal connotation and restriction implicit in this phrase. It is quite inconsistent with the District Court acting on what should be done in the light of what may have happened after the hearing before the Tribunal. A restriction on an appeal court confining it to acting on what was before the Tribunal at first instance is a principal determinant on the decided authorities of whether a right of appeal is to be categorised as a strict appeal: Townsend v Townsend (1910) 10 SRNSW 126 at 130; Firth v The Director of Navigation (1950) 50 SRNSW 119 at 120-121. Hence this phrase points strongly to the appeal created by s41 being characterised as a strict appeal.
Provisions such as s41(2)(c) of the Act appear to be rare. Apart from s29 of the 1978 Act the only other instance of it of which I am aware was the original s38(6) of the Magistrates Court Act 1991, which read:
“(6) The District Court (constituted of a single Judge) may, on the application of a party dissatisfied with a judgment given in a minor civil action, review the proceedings and, if it appears just to do so, set aside the judgment and give any judgment that should, in the opinion of the District Court, have been given in the first instance.
(It is intended that the District Court should give a final judgment on the review and should not send the matter back to the Magistrates Court for further hearing or re-hearing.)”
Section 38(6) was repealed in 2000 and replaced by a new section which does not repeat the phrase in question, but provides “and substitute a judgment that the Court considers appropriate”. I am not aware of any judicial exposition of the phrase in the context of the original s38(6) and Magistrates Court Act 1991 other than a reference to it by myself in Lawrence v Sambevski (1997) 189 LSJS 451 at 454.
Counsel for the intervener submitted that the power to take further evidence in s41(2)(a) meant that it was intended the District Court could take evidence of matters occurring after the Tribunal order. The phrase is ambiguous. It could merely refer to evidence of matters prior to the Tribunal hearing which were not before the Tribunal but which the District Court considers should have been acted on in making any order that should have been made in the first instance. The power of an appeal court to take further evidence was construed in this limited way in Duralla Pty Ltd v Plant (1984) 2 FCR 324 at 350 in holding that an appeal was strict in its nature, albeit that the appeal court there could act not only on what was actually before the lower court but also upon other evidence which should have been before the lower court when it made its order. I consider that s41(2)(a) has a similar limited operation here.
Counsel for the intervener also argued that it would not always be necessary to have resort to s41(2)(c) and many appeals would be dealt with under (2)(b) where there was no implied limitation in the wording of the District Court being confined to the situation at the time of the Tribunal’s order. Whilst that is correct it does not mean that the intention of Parliament for the whole of s41 cannot be gleaned from (2)(c). It would be absurd if the nature of the appeal depended upon whether the appeal court had to resort to (2)(c) rather than deal with it under (2)(b).
Section 41(1) creates an appeal “from a decision or order of the Tribunal”. Neither “decision” nor “order” is defined in the Act. An order is a judicial act which decides one of the questions raised for decision in a particular proceeding: Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126 at 127 and 137. There is no doubt here that the order of the Tribunal of 15 December 2003 is an order for the purposes of s41 of the Act. What is envisaged by “decision” in s41, which is not an order, is unclear. Not everything which is commonly described as a “decision” is subject to appeal under a statutory provision allowing appeals against decisions: Harrington v Harrington (1979) 22 SASR 449 at 450-1; Workers Rehabilitation and Compensation Corporation v Thuy Thi Vu (1988) 49 SASR 585; Advertiser Newspapers Ltd v Despoja (1990) 159 LSJS 75. The only other reference to “decision” in the Act is s39 which provides:
“Reasons for decisions
39. The Tribunal must, if asked by a person affected by a decision or order, state in writing the reasons for its decision or order.”
However, it is not necessary for my present purposes to explore what, if anything, may be appealable as a “decision” which is not otherwise appealable under s41 as an order.
The significance, in the context of this matter, of appeals under s41 being against decisions and orders is that by their wording the operation of s41(2)(b) is confined to decisions and (2)(c) is confined to orders. The point did not occur to me until after I had reserved my judgment and I have not heard counsel on it. It differs from s29(4)(a) of the 1978 Act where the equivalents of those powers applied to both decisions and orders. Section 42 is also confined to orders, but s41(3) and (4) use the composite expression “decision or order”. I do not understand the distinction and doubt that it has any bearing on what I have to decide.
For these reasons I construe s41 to create an appeal strictly so called which is to be determined on the evidence before the Tribunal at the time of its order together with any further evidence which the District Court in its discretion takes on matters bearing on the determination at first instance. This construction does not produce a unjust result in that it does not deprive a party of a just determination of the issues where circumstances subsequently change. Under s32(1)(f) of the Act there is power for the Tribunal to “vary or set aside an order if the tribunal considers there are proper grounds for doing so”. (A similar power is also contained in s37.) That is generally a more expeditious and economical way of dealing with relevant subsequent changes in circumstances than an appeal under s41.

Another ground upon which this Court is precluded from dealing with matters arising after the order of the Tribunal comes from s24(1)(a) of the Act which states:
“24. (1) The Tribunal has-
(a) exclusive jurisdiction to hear and determine a matter that may be the subject of an application under this Act; …”
Under either s32(1)f) or s37 the Tribunal can deal with applications by parties for orders varying or setting aside orders which it has previously made. Under s24(1) of the Act the Tribunal has exclusive jurisdiction in such matters which excludes a determination of them by the District Court at first instance in the course of an appeal. They can only come to the District Court on an appeal under s41 after orders have been made by the Tribunal under either ss32(1)(f) or 37 of the Act.
Should the Tribunal have made a self-executing order?
There is no doubt that the Tribunal has power to make such an order under the following sections:
“Notice of termination by landlord on ground of breach of the agreement
80. …(5) If the Tribunal is satisfied that a tenancy has been validly terminated under this section, but that it is just and equitable to reinstate the tenancy (or would be just and equitable to reinstate the tenancy if the conditions of the order were complied with), the Tribunal may make an order reinstating the tenancy.
(6) An order reinstating the tenancy under this section may be made on conditions that the Tribunal considers appropriate.
(7) On an application for an order reinstating the tenancy, the Tribunal may make alternative orders providing for reinstatement of the tenancy if specified conditions are complied with but, if not, ordering the tenant to give up possession of the premises to the landlord. …
Conditional and alternative orders
111. (1) The Tribunal may make orders on conditions the Tribunal considers appropriate.
(2) The Tribunal may make orders in the alternative so that a particular order takes effect, or does not take effect, according to whether stipulated conditions are complied with. ….”
The issue here is whether on the evidence before it the Tribunal should have made the self-executing order which it did. Under ss80(6) and 111(1) of the Act the condition of a self-executing order could only be imposed if the Tribunal considered it “appropriate”. There has been no judicial exposition of when it is appropriate for the Tribunal to make such self-executing orders. It is the exercise of a quasi-judicial discretion. If a number of different alternative conditions could each be considered as appropriate, the condition to be imposed should be that which is most appropriate.
The circumstances in which Courts should make self-executing orders to enforce procedural requirements in court actions in this State has a substantial history. In Easton v Duemeke (1983) 105 LSJS 261, Mitchell J said:
“… I point out that here I am concerned with an order dismissing an action unless the plaintiff set it down for trial within an extended period allowed by the order. Sub-rule 10 of Order 36 Rule 8, which provides that ‘no party shall enter for trial any cause, matter, question or issue for trial unless a Judge or a Master has, within one month prior to such entry for trial, given leave to the party so to do’, was introduced into the Supreme Court Rules to ensure that actions will be set down for trial when they are ready and not at such later time as the plaintiffs or their solicitors chose to do so. It was designed to expedite and not to retard the hearing of actions. Where the plaintiff fails to set the action down for trial within the stated period and there is an application to dismiss the action it is usually appropriate that he be given a further time within which to set the action down. It is not appropriate that that be done without more. In the instant case had the order been simply that the time within which the plaintiff might set the action down for trial be extended for a period of 28 days the probabilities are, from the past conduct of the plaintiff in relation to the proceedings, that those 28 days would have expired as they did without anything further being done and, when the defendant again applied to dismiss the action for want of prosecution, the plaintiff would have applied for a further extension of time within which to set down the action. The purpose of Order 36 Rule 10 will be achieved only if orders of the type made by the Master in this case are made as a matter of course. In saying this I do not mean that a Master should not take into account any circumstances which indicate that the self executing order should not be made. However as a rule I would expect that such an order would be made. …”
It should be noted that there the attitude of the plaintiff was contumacious in defying the authority of the Court and the requirements of the Rules. He was merely playing for time. There was no suggestion that he had, or would have, any justification for his delay.
In Lum v Su (1985) 120 LSJS 1 the Full Court upheld a self-executing order dismissing an action for failing to answer interrogatories. Again there was no justification put forward for the plaintiff’s delay. King CJ said at 3:
“… I think that there was every justification for the self-executing order. The appellant had had ample time to answer the interrogatories and make discovery before the application of 19^th April. He could have done so after receiving that application and before the hearing before the magistrate. He chose to wait for an order to be made. He then failed to comply with that order, even after the application to strike out had been taken out. The reasons for making a self-executing order referred to by Mitchell J in Easton v Duemeke Vol. 105 L.S.J.S. 261 were clearly present.”
In Rogers v Curnow (1979) 22 SASR 204 Zelling J allowed an appeal against a consent self-executing order dismissing the action for failure to file a statement of claim within a specified time. He said the proper course was that set out in the following quotation from Turner v Bulletin Newspaper Ltd (1974) 3 ALR 491 at 494 where Barwick CJ said:
“’The primary judge in this case properly, in my opinion, refused when striking out the third statement of claim to make a self-executing order dismissing the action. In my opinion, the better course where further pleading is limited either as to content or time for service is to allow the rules themselves to operate in default of a pleading, thus necessitating a motion for judgment on the hearing of which any matters proper for the consideration of the Court in its exercise of discretion may be fully considered.’”
In Ford v Gray (1988) 50 SASR 425 Bollen J said:
“It would be too sweeping to say that orders called ‘self-executing orders’ which can produce entry of judgment if not obeyed should never be made. In Trnka v Commonwealth (1986) 44 SASR 572 at 577 Legoe J said:
‘In my judgment the practice of making self-executing orders, for the reasons that have been mentioned in the numerous cases which have been discussed, should be used with a reasonable amount of caution.’
I respectfully agree. Indeed, I would go rather further. I would say. ‘with great caution’. Of course, they are not self-executing. Someone must do something to make the order work. Someone must sign judgment, enter judgment, or record judgment. In short, someone must write, print, type or stamp some piece of paper to execute the order. Once the self-execution order is made control slips away, or tends to slip away, from judge or magistrate. If the judge or magistrate adopts an alternative course control does not tend to slip away. If he says to a party: ‘You must do such and such within seven days or judgment will be entered’ and adjourns until (say) the eighth day he will, on the eighth day, be able to hear any objection to the entry of judgment or if he thinks proper decide not to hear any objection which he deems vexatious or futile. …”
There an explanation was accepted that the defendant had not received a relevant letter and the self-executing order striking out the defence for failure to make discovery was set aside. Bollen J had been a member of the Full Court in Lum v Su (above), but he did not think it necessary to refer to that decision as apparently it was not in conflict with what he was saying in Ford v Gray.
In a number of the cases prior to Ford v Gray there had been an issue that the Court after making the self-executing order was functus officio, and thus could not set aside the order or extend the time for compliance. However, since Ford v Gray, and the High Court decision in FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268, it has been clear that Courts have power to extend the time for compliance with self-executing orders or otherwise vary them even after the time for compliance has expired. This is the situation here as the Tribunal has power under ss32(1)(e) and (f) and 37 of the Act to vary or set aside orders and extend time. It is no longer the case that the only way to challenge the operation of a self-executing order which has taken effect is to appeal against the order which created it.
The most recent pronouncement of the Supreme Court on the issue is contained in the judgment of Debelle J in Jalun Pool Supplies Pty Ltd v Onga Pty Ltd, 22/01/99, Jud No [1999] SASC 20, unreported where he said at paragraph 25:
“Before leaving this appeal, I add that self-executing orders should be used sparingly, if at all. There are dangers in making self-executing orders. Not infrequently, there are grounds on which it is reasonable to excuse the failure to comply. If the order is self-executing, there is a danger that the court may perceive its discretion to be circumscribed or that the court may lose full control of this action. These and other dangers were identified in Trnka v The Commonwealth (supra) and Ford v Gray (1988) 50 SASR 425. It is for that reason that it is, generally speaking, undesirable to make such orders.”
Many of the above authorities are reviewed in an article “The Self-Executing Order is All But Dead” by D W Smith, as he then was, in volume 12, Law Society Bulletin, March 1990, part 2, p 39. As is acknowledged in the last paragraph of that article the title is a little misleading in that the self-executing order still has a place in the hierarchy of interlocutory orders. The cognitive significance of the title comes primarily from the ability after FAI Insurance v Southern Cross NL (above) for Courts to overturn self-executing orders after they have operated rather than from a complete abandonment of their use by the Courts.
The survey of the above cases shows that Courts in this State have become progressively circumspect about the use of self-executing orders, although there is still a field for them to operate where parties have shown that they are not likely to fulfil their obligations and have no excuse for their delays. A growing emphasis has been placed on the need for the Courts to keep effective control of their own processes, particularly where the subject matter of the orders can have serious adverse consequences for a party. There is nothing in the Act to suggest that similar considerations should not apply in the exercise of the Tribunal’s discretion in deciding whether to exercise its powers to make self-executing orders for possession.
The primary submission of the respondent’s counsel was that the history of prior defaults by the appellant meant that it was appropriate in the circumstances of this matter to make the reinstatement of the tenancy subject to self-executing orders for the payment of each instalment of the arrears. I do not agree that the appellant’s previous defaults were of this magnitude.
On 9 September 2002 the Tribunal heard an application by the Agent for possession on the basis that the tenancy had been terminated by a notice under s80(1) for substantial arrears of rent. Without giving any reasons the Tribunal reinstated the tenancy on conditions of payment of the arrears by instalments over six weeks and made self-executing orders for possession in the event of default in payment of any instalment of the arrears. The order was complied with and the tenancy continued. It was renewed on 30 November 2002 which suggests that the landlord had not been overly concerned by the previous default of the appellant.
On 20 May 2003 the Tribunal heard another application by the Agent for possession of the premises based on its termination under s80(1) of the Act by a notice for arrears of rent of $245.00. The appellant did not attend at that hearing. The Agent consented to a reinstatement of the tenancy on condition of the payment of the arrears by three instalments. However, no self-executing order was made, but it was provided in the order:
“In default of payments 2b-2c, the landlord may lodge an application with the Tribunal for an order terminating the tenancy without first serving a Form 2 Notice of Termination on the tenant. The Tribunal may terminate the tenancy if there is a breach of the agreement as to rent arrears and that breach is sufficiently serious to justify termination of the tenancy.”
Again the arrears were apparently paid according to the terms of the order. It appears that at about this time the landlord agreed to an extension of the tenancy for a further year which again suggests that there was no great concern about this default.
While I do not have a transcript of what occurred at the Tribunal hearing on 15 December 2003 it is clear from the reasons of the Tribunal that in deciding that it was just and equitable to reinstate the tenancy, it accepted the appellant’s explanation that the arrears of rent had been caused by unexpected expenses in relation to his daughter and that he was bona fide in his offer to make regular payments of $160.00 each week to catch up the rental arrears. If the Tribunal had considered that the appellant was not acting genuinely and reasonably in his proposals to honour his legal obligation to pay the current rent and the arrears of rent as best he could, it is highly unlikely that it would have found that it was just and equitable that the tenancy should be reinstated.
There can be no dispute that the reinstatement was a considerable indulgence granted to the appellant and that it had to be conditional upon prompt payment of the arrears. The crux of the issue here is whether it was appropriate in the circumstances to impose additional conditions of self-executing orders so that the landlord could obtain the issue of a warrant for possession of the property by a mere request to the Tribunal for its issue under s80(7) rather than to leave it to the Agent to come back to the Tribunal to obtain a further order if there was default (as had been done in the order of 20 May 2003) or some intermediate position. In the paragraph of the reasons quoted in paragraph 4 above the Tribunal did not expressly address this issue of the adequacy of bringing any default back to a further hearing, but appeared to go directly from finding that the reinstatement should be conditional upon the payment of the arrears to the imposition of a self-executing order for default in paying each of the instalments.
I need to consider the issue as at 15 December 2003 on the material that was then before the Tribunal. Clearly there was some possibility that there could be a trivial breach or a breach without fault of the appellant. A bank transfer may have gone astray, the appellant could have been struck by lightning, the cash tendered may have been inadvertently $1.00 short and many other remote, but not entirely fanciful, possibilities. If such had occurred, it is likely that the Tribunal would have exercised its powers to excuse the breach, but the time within which it might have taken the appellant to get before the Tribunal to have the breach excused may have meant that the warrant for possession would have been already executed and the appellant deprived of his home. Reinstatement of a tenancy sometime after eviction is usually cold comfort for the tenant. In the light of such possibilities these must be a balance between the interests of the landlord in obtaining, as soon as practicable, payment of the rent, albeit that it was partly secured by the bond, against the likelihood from his previous conduct or otherwise that the tenant would default in compliance with the conditions of reinstatement unless it was reinforced by the additional, and immediate, sanction of self-executing orders for warrants of possession.
One matter that has caused me some concern is the lack of control which the Tribunal apparently would exercise in the issue of the warrant for possession. (There is no suggestion that the Agent acted improperly in this matter or other than in accordance with its legal rights.) I presume that as at 15 December 2003 the Tribunal would have foreseen that the Agent could have procured the issue of the warrant upon any default in payment of an instalment by a telephone call to a Tribunal officer saying that there had been a default. There are obvious potential problems with mistakes about whether payments have been made or with unscrupulous landlords who may not tell the truth, or the whole truth, to the Tribunal. This is contrary to what has been said in the authorities about Courts, and here a quasi judicial Tribunal, retaining control over the issue of their own processes of execution, and particularly where it is as draconian as a warrant for possession.
Section 99(1) of the Act provides:
“Enforcement of orders for possession
99. (1) If an order for possession of premises is made by the Tribunal and the person in whose favour the order was made advises the Tribunal that the order has not been complied with, a bailiff of the Tribunal must enforce the order as soon as is practicable thereafter. …”
I do not consider that this subsection applies in the context of this matter. The order which “has not been complied with” in (1) is an order for possession of the premises. It simply means that a tenant who has been ordered to give up possession has not done so and the landlord merely has to inform the Tribunal that the tenant is still in possession of the premises. There is no significant potential mischief in that as if the tenant has left the premises the warrant is largely superfluous. What is in issue here is a conditional order for reinstatement of a tenancy which is different from an order for possession. A breach of a conditional reinstatement order may involve complex issues of fact and interpretations of law. Section 99(1) does not apply to it. A Tribunal is not usually properly supervising its own processes if it acts on the verbal intimation of a party that such a breach has occurred. In my experience Courts have required at least an affidavit proving the breach of a self-executing order where it is not otherwise apparent from the face of the Court file. I do not consider that it was appropriate for the Tribunal to have made a self-executing order in this matter where its practice was apparently to allow its enforcement in this informal manner.
Generally speaking more caution should be exercised in making multiple self-executing orders than is required for a single self-executing order. The risks of an injustice to the tenant are multiplied by the number of separate conditions whose breach can activate the issue of a warrant.
There is nothing before me to suggest that it would have been unduly onerous to require the Agent to come back for a short hearing before the Tribunal before any warrant was issued for breach of a reinstatement condition. Directions could have been given in the original order for expedited service of any notice of the hearing on the appellant. If the breach was contested, or if the appellant had some grounds for seeking to be excused from the breach, this could then have been dealt with by the Tribunal before the warrant issued. On that scenario the Tribunal would always maintain control over the issue of its warrants and ensure that they were only issued in appropriate circumstances. It may be that the matter could have been dealt with by some form of “liberty to apply” in the Tribunal order or adjournment of the hearing. It may be that in some cases it would be prudent to include an additional endorsement on the sealed order pointing out to the tenant that if a breach occurred application could be made immediately to the Tribunal under ss30(1)(e) and (f) or 37 seeking to vary the reinstatement order or extending the time for compliance.

For the reasons given I do not consider that on the findings of the Tribunal there was sufficient justification in the circumstances to make it appropriate that a self-executing order should have been made on 15 December 2003 under s80(7) of the Act and it was more appropriate that some order in less draconian terms should have been made.
The order of 15 December 2003 is quashed. Because of the lapse of time there is no point in this Court now varying that order as in any event the arrears and current rent should have been paid by today. The effect of the quashing is that the reinstatement of the tenancy is no longer operative and it is open to the landlord to apply again to the Tribunal for a further possession order based on the previous default.

[2004] SADC 16

6 February 2004