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A Review of Rent Control Legislation in Botswana
Published online by Cambridge University Press: 28 July 2009
Extract
The subject “Rent Control” is very wide as it covers many areas. It may deal with the control of rents in respect of agricultural land, industrial property or it may be limited either to dwelling houses or commercial buildings. For the purposes of this paper, “rent control” focuses on the dwelling or residential houses and commercial buildings in the country. The obvious reason is that the current rent control legislation is limited to those properties because of the apparent high level of the rents they attract.
The use of legislation to control rents of premises is a product of the twentieth century. In England, for instance, the first attempt to control rents was in 1915, during the First World War. It is interesting to note that the first legislation on rent control in England coincided with the outbreak of the First World War. Rent controls in Nigeria and Ghana were also influenced by the First and Second World Wars respectively. The reason for the introduction of rent control legislation to coincide with world wars is not hard to find. Wars generally create shortages of a number of essential goods because many resources are diverted to the production of armaments and the labour force is channelled to the battle front. Housing is one of the needs of mankind which usually becomes scarce as a result of the outbreak of a major war like the last two World Wars.
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References
1 Increase of Rent and Mortgage Interest (War Restrictions) Act, 1915Google Scholar
2 The first Nigerian Legislation on rent control was the “Profiteering (Rent) Ordinance”, No. 8 of 1920Google Scholar. This coincided with the end of the First World War. The Ghanaian one came out in 1942 and was entitled “Defence (Rent Restriction) Regulations” No. 20 of 1942Google Scholar. These were made under the Emergency Powers Defence Acts of 1939 and 1940.
3 Control of rents in Ghana for instance, emerged when a Committee felt it necessary “to recommend the introduction of Rent Restriction Legislation as soon as possible and its application to the larger urban centres where the accommodation available for labourers and artisans is sufficiently restricted to give opportunity for exploiting these classes in regard to rents”. See Parliamentary Debates, Vol. I, 1952, at p. 96Google Scholar.
4 The English, Ghanaian and Nigerian attempts were initially introduced as a temporary relief to tenants during the war periods which brought about unusually high rents. In all those cases it was hoped that they would be withdrawn as soon as normal conditions were restored. But these countries continue to retain rent control legislation.
5 Under the English Rent Act of 1968 it was stated that the purpose was to “guard against the social and economic evils generated by a shortage of housing”.
6 The supposed “economic rent” normally has a different term under different systems of legislation. Under the Botswana Act (Cap. 43:08) it is known as “controlled rent”, in Ghana it was referred to as the “recoverable rent” under Act 220 of 1963. Under English Acts terms such as “standard”, “recoverable” and “fair” rent have been used. In Tanzania the term “standard rent” was used.
7 Under Cap. 43:08 this is the Rent Control Tribunal. This task is performed in Ghana by the Rent Officers or the Rent Magistrate, and in England it is done by Rent Assessment Committees.
8 The Ghana Act, and the Tanzanian one of 1962 had the two elements in one legislation.
9 1971 Census showed the population to be 608,656; 1974 estimates put it at 661,000; 1977 estimates = 700,000; 1980 estimates = 857,000; 1981 census = 941,027 and 1985 projection = 1,086,880.
10 For the purposes of this article rents charged by B.H.C. do not form part of the discussion since they are fixed far below the economic rent by the Government. Further, the Rent Control Act does not apply to B.H.C.
11 These may be conservative estimates based on advertisements in the local newspapers and information from various sources.
12 Currently there are about three such agents in Gaborone. With this small number some monopolistic control of houses for rental purposes is likely to emerge.
13 Report of the Presidential Commission on Land Tenure, 12, 1983Google Scholar, paragraph 3.23. The Commission which was appointed on May 11, 1983 submitted its findings on December 19, 1983.
14 National Polity on Land Tenure, Government Paper No. 1 of 1985, para. 1.44Google Scholar.
15 Section 3 of the Act.
16 Rent Control Application Order, 1983; Statutory Instrument No. 108 of 1983Google Scholar, published on August 26, 1983. The towns specified are Francistown, Gaborone, Jwaneng, Lobatse and Selebi-Phikwe. Originally under Statutory Instrument 53 of 1978 it was applicable to commercial buildings in Gaborone only.
17 The objective is not stated in the Act. But it can be assumed that because of the vital role played by agriculture it would be ideal to exempt it from undue encroachment by the law.
18 Section 2.
19 Normally the accompanying sanction or the threat of a sanction and the certainty of it may compel people to respect or obey the law.
20 Under section 6(7) a member of the Tribunal or any other person authorised by the Chairman may enter into any premises to conduct investigation for purposes of determining the controlled rent. But this right of entry is limited to premises in respect of which application has been made by either the landlord or the tenant. Seven days' notice to the tenant is required. The suggestion being made is that the Tribunal's power of entry for investigation should not be dependent on the existence of application. Notice to the tenant should, however, be maintained.
21 Section 6(1).
22 Section 7.
23 Regulation 7(1).
24 Regulation 7(2).
25 Regulation 7(3).
26 Section 10(2).
27 Section 10(1).
28 See, Section 11.
29 Section 5(1).
30 Regulation 6(1) and 7(2).
31 Regulation 6(4) reads: “In proceedings for any purpose before any court, the court shall presume that the rent specified in a document purporting to be a copy of an extract from the registrar, and purporting to be certified by the Secretary as a true copy, or in a document purporting to be a certificate issued under subregulation (1) as the controlled rent of the premises specified in the document is the controlled rent of those premises, unless the contrary proved” (emphasis added).
32 This argument is based on the privity of contract principle. Third parties cannot be held to be bound by an agreement to which they are not privy.
33 I hold the view that ideally recovery of possession should normally be exercised through either the courts or an independent body. Even where the parties are in agreement on the recovery of possession it might be ideal to subject such agreement to the scrutiny of an independent tribunal since the alleged exercise of the right of recovery may be faulty. The only time that we should not worry ourselves about the termination of a tenancy is where there is positive evidence indicating that the initiative comes from the tenant. Otherwise we should always be suspicious of possible coercion by the landlord.
34 For a discussion on effective rent control legislation, see, generally, Frimpong, J. K., “Towards an Effective Control of Rents of Premises in Ghana” LL.M. Thesis, 1973 (unpublished)Google Scholar.