Rental Housing Amendment Bill, Housing Development Agency Regulations, Gcora Complaint: Department Human Settlements briefings

Meeting report

Housing Development Agency Regulations: Finalisation
The Chairperson noted that the process had been started some time ago, but the Department of Human Settlements (DHS) had been asked to furnish a document that would reflect deliberations so far. The Housing Development Agency Regulations (the Regulations) had been submitted in line with Parliamentary procedures. She reminded everyone that section 32(1) must be covered fully. Section 32(2) related to development aspects. She noted, however, that she had not received such a document reflecting all discussions to date, and wanted to know why.

The Chairperson also noted that public comment on the regulations had been requested. The South African Local Government Association (SALGA) had commented. All public input should have been incorporated, or reasons given why it was not accepted, before the document was sent to the Committee. If this had not been done, then the comments must be provided separately to the Committee.

Ms Vuyokazi Ngcobozi, Parliamentary Legal Adviser, noted that the Department had been asked, at a previous meeting, to deal with the following: 
- whether there would be a conditional grant on priority housing
- the question of incorporation of environmental impact EIAs
- the beneficiary list had to be clear in the Regulations
- The implementing agency issues must be clear in the Regulations
- The DHS was also asked to look into the issue of the funding model
- Short, medium and long-term plans should be articulated in the Regulations
- As indicated by the Chairperson during the public submission process, the Minister of DHS must be the final arbiter in each case.

Mr S Mokgalapa (DA) added that the SALGA issue needed to be clarified.

Ms M Borman (ANC) noted that she had received something from SALGA the previous day. She also had documents that the Committee had worked upon its last meeting.

The Chairperson explained that the Committee did not have a consolidated document, that would effectively appear as the “draft”  of the final regulations. She reiterated that she was not informed whether the input of SALGA, which had been sent to DHS, was incorporated into the document already sent to the Committee, and the Committee needed to know which areas had been dealt with and incorporated into the document, and which were not considered, and for what reason. In other words, it needed a full response. She repeated that the Committee had hoped to deal with the final draft today.

Mr Mokgalapa noted that there was a process of upgrading mining towns, and there must be synergy also in that area. He was not sure how that was being dealt with.

Mr Khwezi Ngwenya, Legal Adviser, DHS, said that the DHS had been asked to reconsider the earlier comments and drafts. Two documents were re-tabled on 23 November. However, there had been a separate request from SALGA to further consult on that draft, and that was granted by the Committee. A copy was available, but it was not consolidated. The DHS had thought that now that SALGA had responded, the Committee would need to decide which of its comments should be accepted and inserted into the new draft, and give guidance to the drafters in that regard.

The Chairperson asked where the consolidated document was.

Mr Ngwenya explained that he had a hard copy, which was distributed on 23 November, but reiterated that he had thought that the Committee wanted to discuss the SALGA issues before instructing the drafters how to proceed further.

The Chairperson said that the legal unit of Parliament and the DHS should have been working further on the issues discussed on 23 November. A consolidated document, reflecting those and dealing with the SALGA issues, presenting them in the form of draft regulations, should have been sent to the Committee. The Committee wanted to ensure that the submissions already discussed were incorporated into the latest draft, and if any other issues were considered relevant by the Committee arising from the SALGA comment, those could also be added in. If such a draft was not available, then DHS must state this up front.

Ms Borman asked to take the meeting further, whether copies could be made while the Committee proceeded, if that document was available.

Mr Mokgalapa pointed out that he thought no purpose would be served by tabling a document now. The drafters obviously needed time, and the Members also needed to have the consolidated document in sufficient time to consider it properly.

The Chairperson said that before the DHS officials went back to Pretoria, they must work, together with the Parliamentary Legal Advisers, on a consolidated document. She commented to them in Xhosa, indicating her disappointment. This matter would have to be finalised in the following week.

Gcora complaint: Report by Chairperson:
The Chairperson noted that she had, in November 2011, received a complaint from Mr Gcora, a contractor who had been constructing houses in Eastern Cape, at kwaNobuhle area in Port Elizabeth. When the complaint was submitted to her office, she followed the usual procedure and called upon the Department to intervene. DHS acknowledged receipt of her letter, and later advised that in view of the nature of the complaint, it had referred the matter further to the Special Investigating Unit.

The Chairperson briefly summarised the substance of the complaint, as set out by Mr Gcora to her. Mr Gcora had participated in a bid to build houses in the Nelson Mandela Bay Metropolitan Municipality (the Metro). Because he did not have a Construction Industry Development Board (CIDB) certificate, as required by the bid terms, but only one from the National Home Builders Registration Council (NHBRC), which is a requirement in the provisions of the Housing Act. He then entered into a joint venture with another contractor, WK Pipelines, who had the necessary certificate. Their bid was successful.

The initial pricing for the contract was approximately R60 million, and the joint venture commenced building, with Mr Gcora focusing on the building of houses, and WK concentrating on the civil infrastructure. Later, it became apparent that the funding awarded was insufficient. Mr Gcora stated that it was agreed that WK should approach the Metro for more funding, and in the meantime continued to build, but he stated that when he heard nothing back from WK, he had made enquiries at the Metro and was told that WK had received an additional R40 million, which he stated was not shared with him.

Mr Gcora took the matter to mediation and the mediator apparently asked the Metro to conduct a verification process on the work done by Mr Gcora. However, this was not done by the Metro. Mr Gcora then sought to take the matter to arbitration, WK sought a court interdict to prevent the arbitration but was unsuccessful.

Mr Gcora did not communicate again with the Chairperson until mid-2013, when he advised that the matter was still not finalised, and that the relationship between himself and WK had broken down. The Department, when requested to give an update, said that the SIU was still dealing with the matter, and the Chairperson requested that SIU be asked to give an urgent response, and the national and provincial departments were asked to work together on the matter. Later, SIU advised that it had done a preliminary investigation to check whether there was evidence of mis-use of government funding, and did not believe the matter fell within its mandate. However the SIU did query why the Metro was insisting upon the CIDB instead of NHBRC certificates.

At the request of the Chairperson, a meeting was then arranged to try to discover exactly what had happened, between national and provincial departments, the Metro and the parties. Neither the Metro nor WK attended, and WK even questioned why the Parliamentary Committee was involved.

The Chairperson had thought that several issues had been raised in the initial complaint that could usefully be addressed by the Committee as part of its oversight, not specifically in relation to the legal dispute between Mr Gcora and WK, but in relation to the Metro’s actions, and had been intending to recommend this to the Committee. However, she had been overtaken by events in the sense that on the day before the report was to be formally tabled before the portfolio committee, she was informed that Mr Gcora had taken the matter to court, implicating the Provincial MEC and the Metro, and the substance of this dispute was thus now sub judice.

The Chairperson noted that in the meantime she and other MPs had received other complaints relating to other projects at the Metro, and this was of concern.

Discussion
Mr Mokgalapa said that he had also been seized with the matter and thanked the Chairperson for her action to date. He would have fully supported doing oversight, but agreed that because the matter was now sub judice, the merits and dispute could obviously not be debated. However, quite apart from the issues between Mr Gcora and WK, he suggested that there was still a need to question the Metro on its failure to attend the meeting, and wondered if it fully appreciated its responsibilities for cooperative governance.

Ms Borman also thanked the Chairperson for her report, and full agreed with her colleague. She too, was concerned that the Metro may not be meeting its responsibilities nor complying with government directives to pay on time, and pointed out that there were many contractors, particularly small contractors, who were being forced to close as a result of this practice. This Committee needed to exercise oversight in this regard.

Ms M Njobe (COPE) asked if Mr Gcora had been aware that the Committee may visit the Metro. She too believed that the Metro must be held to account, and it would be useful to find out how it was operating.

The Chairperson reminded the Committee that it would have to be very careful not to debate the merits of issues that were sub judice. She asked the Parliamentary Legal Advisers for input.

Ms Ngcobozi agreed that because the matter was now before the Court, this Committee could not question or discuss the issues between Mr Gcora, WK , the provincial DHS ad the Metro. She noted that the provincial government and Metro had been cited. However, she did believe that, as an entirely separate issue, this Committee would be well within its rights, as part of its oversight, to call upon the Metro to account to it in respect of the Zanemvula Chatty and Joe Slovo projects, the substance of other complaints lodged with the Chairperson, and it could also be asked to explain why it had failed to attend the meeting called earlier.

The Chairperson noted that she had fully explained the progress to Mr Gcora, and he appreciated the processes being followed. She had informed him that the Committee was unable to instruct the Department to pay him without concrete evidence , and fully apprised him of the Committee’s oversight function and mandate. Therefore it was important for Mr Gcora to be patient to give the committee time to enquire. In the meantime also, the national and provincial DHS and Metro had been asked to brief the Committee in the following week, but in view of the developments, the meeting would now only deal with the issues that were not sub judice.

Rental Housing Amendment Bill: Departmental comment on submissions made at public hearings
Mr Kwezi Ngwenya, Legal Adviser, Department of Human Settlements, noted that there was some consensus on some of the issues raised by commentators on the Rental Housing Amendment Bill (the Bill) during the public hearings process.

Some comments were raised on the inclusion of a definition for “arbitrary eviction”, because it had been pointed out that these words did not actually appear in the text. He understood the intention behind inserting this, but said that the Rental Housing Tribunal (the Tribunal) would not have a power to deal with evictions, which were covered under the Prevention of Illegal Evictions Act (PIE).

The Western Cape Provincial Government had questioned the new section 17A, relating to appeals. Suggestions were made on how the process might be dealt with. He reminded Members that the purpose of this legislation was to provide a speedy, affordable dispute resolution mechanism. There were fears expressed that the appeal process might cause delays in itself, and therefore run counter to the purpose of the Bill. This was in fact true, once there was a lock-out and spoliation order, but it was likely that the losing party was quite likely to want to use the appeal process to get “a second bite”. DHS had also debated whether not only the referrals to the Tribunal should fall under the threshold, so it might be possible to say that for amounts below R20 000, there should not be any recourse to appeal processes. However, the contrary view was that setting such a threshold would deny some their access to the second tier. DHS concluded that it could either do away completely with section 17, or keep it as it was, without making reference to any threshold. The unintended consequences of possible delays might also need to be considered.

The Chairperson interjected to ask if DHS was making any proposals to change the current clause. This Bill was setting up a speedy and affordable process. She noted that a similar process was provided for in the Sectional Titles legislation, that she was not aware of any complaints that that provision was not working, and was not in favour of deleting it. She also pointed out that the disputes were not invariably related to the money and thus asked what the reason for proposing a threshold was.

Ms Borman agreed and was pleased that the Chairperson had raised this point. If there was any suggestion that the appeal provisions would be removed, then there would be a need to strengthen the Tribunal, in which case options for this would need to be put to the Committee.

Mr Mokgalapa also agreed. Accessibility was another bone of contention. There had been concerns aired about possible abuse of the system - for instance, landlords would invariably take matters on appeal to the courts if the tribunal ruled against them. The threshold was intended to refer to cases where there had been deposit disputes between the parties. Either the Tribunal must be strengthened, to ensure that its decisions were final, or the appeal must be allowed, but in a speedy, affordable and accessible manner. He pointed out that virtually all submissions had spoken of the need to tighten the Tribunal. It must also be remembered that in any event, parties could still take matters to the Court.

The Chairperson said that, in all honesty, it was not possible to strengthen the Tribunal much. The problem was that the enforcement of the decisions did not fall under the control of DHS, but the justice sector.

Mr Mokgalapa said that one comment was made that technically the MEC, a politician, would be making judicial decisions if that person was to consider appeals. He asked for comment on this point.

Mr Ngwenya responded that the DHS was not in fact proposing that the appeal process be done away with completely. The DHS understood the purpose why this was inserted; the two options was to keep the provision but strengthen it, or to remove it, but Members had clearly indicated that they were not in favour of the latter.

Mr Ngwenya said that a panel of adjudicators must be appointed. Responsibility was being given to the DHS. However, the point about the appeal process being vested in the MEC was a legal point that could be subjected to different interpretations. That was why there were other options inserted of MEC and Minister, and it was possible to expand on that.

The Chairperson said that the main concern was that the appointment of adjudicators should rather be done by the MEC, although it was recognised that the procedure would be attended to in practice by the officials. Indeed they had a role to play, but she believed that the final appointment must be signed off by the MEC. This was a similar process to that when the Minister appointed boards. She thought that the adjudication panel appointments should include the Chairperson of the Standing Committee, similar to what was done at the national level. The adjudicator would be a senior person, and his/her appointment should not vest with officials.

Mr Morris Mngomezulu, Director, said that it was necessary to distinguish between adjudicators appointed ad hoc as cases arose, and permanent adjudicators. Adjudicators would not be similar to board members with a permanent term of office. He said that the appointment of adjudicators was essentially an administrative process, but this would not be the case if it was done by the MEC.

Mr Mokgalapa suggested that the legislation should specifically state that the Secretariat would appoint, on an ad hoc basis.

Ms Njobe agreed with the explanation being given now.

The Chairperson clarified that it would be useful to deal with the public concerns, in the Committee Report, and to explain why the Committee had preferred that option.

Ms Borman felt that the Committee was making progress. Clause 3 dealt with the panel of adjudicators. Clause 4 noted that when appeals were lodged, the Secretariat must select “one or two” to deal with the appeals, and that already did appear to indicate that this was not a permanent appointment.

The Chairperson noted that there were questions raised around the Chair of the Tribunal. The Secretariat would be acting under the directorship of the Chairperson. In other words, the Chairperson was accountable for actions of the officials.

Mr Mokgalapa noted that the final accounting authority would be the MEC. The seven adjudicators would gather and appoint a Chairperson, who would be accountable to the MEC.

Mr Mokgalapa said that one suggestion was that the Tribunal members should be full-time.

Mr Mngomezulu said that the members of the Tribunal were different from the panel of adjudicators. The Tribunal members would be appointed by the MEC in terms of the Act, and would act in a similar way to a board. In addition to them, there was also a panel of adjudicators, from whom individuals would be selected to sit on cases, and which was separate from the Tribunal.

Ms Borman sought clarity, stating that she was still worried that the Secretariat would appoint, because presumably the panel might comprise legal people from the Tribunal.

Mr Mngomezulu explained that this was not so. There would be a “pool” of adjudicators set in advance, and each time a case was brought, the Secretariat would select from that pool, not the Tribunal, to set up the adjudication panel for the case. The Tribunal would be governing the running of the Tribunal itself. A member of the Tribunal may sit as Chair in each of the cases.

The Chairperson asked that the Act and the Regulations must be quite clear on this point. The intention was that, for instance, should a case arise in Matatiele, the adjudicators should ideally come from that area, and the case would be heard in the municipal or magisterial offices in that area. Whatever was not covered in detail in the Act must be dealt with in the Regulations.  She pointed out that in effect, the Secretariat was not “appointing” and perhaps “facilitating” might be a better word.

Ms Borman thought it advisable to include a section dealing specifically with appointment / selection of adjudicators. The word Secretariat was being used, but this sounded as if it was different from the Tribunal

Mr Mokgalapa thought that perhaps a dedicated section was needed dealing with exactly how the adjudicators would be selected and appointed, and what kind of person was fit and proper.

Ms Njobe pointed out that similar provisions must be available in other pieces of legislation and suggested that the legal advisers look to other examples. She asked whether the adjudicators would be regarded as part of the national body or provincial pool, and how, in general, it would be organised in practice.

Mr Mngomezulu explained that in practice, in each province, nominations would be sought to set up a pool. They would not all be legal practitioners, but should have sufficient expertise, and would have to note their interests, in order to avoid any conflicts. The adjudicators would not be employees of the DHS or the Tribunal, as this would be far too costly, but were simply a team of professionals who were able to adjudicate. He likened this to the pool of commissioners who were available and called in where necessary to assist the Commission for Conciliation, Mediation and Arbitration.

Mr Ngwenya agreed that there were doubtless other provisions dealing with appointment of adjudicators and the need to appoint a pool in various regions, and the DHS, taking into consideration the points now raised by the Committee, would look into the wording again.

The Chairperson noted that the issue of appeals had not yet been finalised. When the Committee met in the following week, it did not want to start the whole discussion from scratch, so this document must be updated to reflect the comment and decisions taken by the Committee until now.

Mr Nathi Mjenxane, Parliamentary Legal Adviser, agreed that there were numerous examples of similar bodies in other legislation, specifically the Department of Social Services who had similar provisions that dealt with appointments in different geographical areas.

The Chairperson held up a copy of a tabulated document, and said that the Committee expected to be presented with a table that set out the name of each organisation, the input, the response of the Department and its suggestions.

The Chairperson returned to the issue of the appeals process, the new section 17A, and the resolution of disputes between landlord and tenant.

Mr Mjenxane said that there must be clarity on the appeals board under this Act. He noted that disputes around rental housing would have to be sorted out effectively and in a cost-efficient matter. Section 33 of the Constitution spoke to the right to just administrative action. A person had the right to “judicial review” of administrative actions.

The Chairperson interjected to ask the State Law Advisers if the wording of the Sectional Titles legislation had been checked.

Mr Mjenxane added that the Parliamentary Legal Advisers were of the view that the two options were to retain the wording on the appeals board, with improvements, or remove it, depending on the Committee’s suggestions. The decisions of the appeal board would still be subject to judicial review, and he wanted to stress that point. There was no objection to keeping the appeals board. 

The Chairperson said that the bottom line was that the Committee did want to retain the appeals board, but wanted to strengthen the provisions wherever possible. Again, she asked the state law advisors to check the similar example in the sectional titles legislation, which was introduced for the same reasons. The Committee had already agreed on the need for a further layer between Tribunal and final courts. Perhaps the time-frames needed to be looked at, to allay fears around delays, but she also pointed out that it was only the Western Cape Government submission that raised that point, with no substantial comment on that point in other submissions. The main problem was around the functions of the Secretariat. She thought that commentators were suggesting problems where they did not exist.

Mr Mokgalapa said that if the appeal process was retained, then it made sense to limit the time frames. The Members understood that it could be abused to create delays, and so this must be addressed. However, retaining the principle enhanced accessibility. He would not like the appeal process to be unduly prolonged.

Ms Bongiwe Lufundo, State Law Adviser, Office of the Chief State Law Adviser, said that the challenge was to avoid any conflict between the Tribunal and appeal body. At the moment, the Secretariat was named as appointing the adjudicators, but that was the Secretariat of the Tribunal. The Office of the Chief State Law Adviser (OCSLA), for that reason, suggested that this was why the MEC, as accounting authority, should appoint from the panel of adjudicators.

Mr Mokgalapa reiterated that there was perceived to be a problem with this because the executive would be involved in a judicial process, and said that in addition, from a practical point of view, should the MEC have to appoint, it would take far too long, so he was in favour of retaining the wording around the Secretariat.

Ms Borman thought the Committee was going backwards. This point had been argued long and hard in the initial discussions. Her understanding was that the Committee would be looking at other legislation that dealt with a similar position. The important point was that there should not be room for abuse of system by prolonging the process. It was necessary to achieve speedy resolution at an affordable price.

The Chairperson thought that there was nothing wrong with the Secretariat appointing, because the Secretariat would not have any influence over who was already in the “pool”, and it was simply a case of calling in members already nominated to handle the process. In fact, the Secretariat was facilitating. The Tribunal was a recognised body. She pointed out that in cases where there was suspicion of corruption, a Minister could appoint a body to investigate. However, she stressed the need to have clear wording, which could not be subjected to differing interpretations.

Ms Borman agreed that there should be a new section dealing with the issues.

Mr Ngwenya said that another issue raised related to inspections, with suggestions that this must be more clearly spelled out. However, DHS pointed out that the new section 4B(1)(4) being inserted by the Rental Housing Bill already said that the landlord and tenant must jointly inspect, and so DHS believed that this point was already covered.

Mr Mokgalapa said that this might be a question of semantics. The word “jointly” was used, but perhaps the concept of “pre-inspection” might need to be more clearly spelled out. Estate agents tended to refer to “pre-inspections” and he thought that a simple insertion of this word in the clause might help the understanding.

Ms Borman and Ms Njobe thought that it was clear already.

Mr Mokgalapa thought that a lease did not have to be in writing.

Mr Ngwenya said that the provision here was intended to clarify the position around the general (common) law of contract in South African law. The South African jurisprudence did not hold that contracts must be in writing, except for the sale of land. The principles of offer and acceptance constituted a contract. The DHS was, however, trying to provide that, for the purposes of this Bill, a lease should be in writing. This was quite competent, since a statute could make provisions different from the common law, for a particular case. However, the DHS had had some interesting discussions around the point, and one of the discussions related to who a “landlord” would be, particularly in a township situation. A standard or pro forma lease agreement, setting out exactly what clauses should be found in a standard agreement, would be covered in the regulations.

Ms Borman said that there had been quite a bit of discussion earlier in this. The Committee had foreseen the problems in informal settlements. The Consumer Protection Act apparently required a huge amount of information to be provided, although she accepted that for purposes of this legislation, it was not desirable to have complex documentation. She sought assurance from the drafters if these two pieces of legislation would be likely to conflict.

The Chairperson asked for a very direct answer whether the Consumer Protection Act would impact upon the intention to have a simple, pro forma lease. The Chairperson reminded the Committee that the Committee had a right to do oversight and rectify what it had discovered on the ground. If leases were not reduced to written form, then they would favour the stronger parties, and she cited an example of how a person desperate for accommodation might be mislead into paying without getting any security of tenure. She thought that there was a need to be far more sensitive to the realities when drafting legislation, and to adopt a common sense approach.

Mr Mokgalapa also noted that the Legal Resources Centre had also raised this point, and said that palliative measures were needed.

Mr Ngwenya said that the DHS was not suggesting that a lease should not be in writing; in fact the Bill stated the opposite, and he reiterated that there was nothing in law preventing the Committee from inserting such a provision in the Bill.

The Chairperson agreed, and said that the initial instructions of the Committee needed to be observed.

Ms Borman repeated that the main concern of the Committee was the effect of the Consumer Protection Act upon this Bill.

Mr Mjenxane said that it was possible to come up with a contract that used plain language to reflect the essential elements of the contract.

The Chairperson noted that this point must be included in the Committee Report.

Ms Njobe asked if it was not possible to use the words “for the purpose of this legislation” and then define what a lease agreement must cover.

Mr Mjenxane said that the law of contract required “essential elements” to be clear, and that would be covered in the proposed contract.

The Chairperson reminded the drafters that Parliament was rising on 14 March and the NCOP by the end of March. It was necessary to ensure that the NCOP had six weeks to pass the legislation, so it would have to be adopted on the following Wednesday. A special plenary date would then have to be set by the NA to deal with comments from the NCOP. For this reason, there was an urgent need to have the final document by the following day.

Ms Lufundo repeated that provisions around the standard lease agreement were in the Bill. She referred Members to page 6, at clause 6(b), which stated that the lease agreement must contain specific information.

Ms Borman said this still did not answer her specific question about any possible mis-match between this Bill and the Consumer Protection Act, and asked if it was possible that only these provisions apply.

Ms Lufundo said that the Consumer Protection Act would apply broadly to all contracts, but the Rental Housing Bill was specifically dealing with rental housing matters. She would look in more detail to that point, but her initial response was that in the case of any conflict, this Bill (once passed) would prevail in the event of any conflict, in respect of rental housing matters.

Mr Mokgalapa suggested that what was in the Bill could be supplemented also in the Regulations.

Mr Ngwenya moved on to another submission, whether there was a need to provide for a Deputy Chairperson. He said that this was covered, in the existing section 9(1A) of the principal Act.

Mr Ngwenya referred to a submission around the intention to split the Tribunal into two committees. The real issue related to their decisions. It should be made clear, and he suggested inserting specific wording to the effect that, for reasons of speed, and in order to cover more areas, the Tribunal could divided into sub-committees, but the Tribunal would endorse their decisions, and any decision of a sub-Committee was thus considered to be a decision of the Tribunal itself. 

Mr Mokgalapa agreed that it was well put.

Mr Ngwenya noted that another issue raised in the public comment had already been touched upon, which was the need to ensure alignment between the Consumer Protection Act, Social Housing Act, PIE Act and this Bill. He noted that since this Bill did not deal with evictions (since the Tribunal was not empowered to deal with them), there was no conflict with PIE. Social housing legislation did envisage rental space so it was necessary to ensure that any disputes within the sector would be referred to the Rental Housing Tribunal because of their nature.

Mr Mokgalapa reverted to the question of the written lease and asked whether the Bill covered the position of existing leases that had not been reduced to writing, and if any penalty measures were provided for failure to effect a written lease within a certain time.

Mr Ngwenya said that the DHS had considered that and accepted that it would need to work on a transitional arrangement. Whilst it was not finally decide upon the period – possibly 12 months or shorter, new provisions would cater for this, and it was also possible to provide specifically what would happen on termination of current leases.

Mr Mokgalapa said that in practice, when leases had lapsed, parties often went to a month-by-month arrangement, and wondered how long this could last before a written lease must be signed.

Mr Ngwenya agreed that the transitional provisions would need to be amplified; they were already set out in clause 19 but would be worded more precisely.

Mr Mjenxane confirmed that the Parliamentary legal advisers agreed that the definition of “arbitrary evictions” was not needed.

The Chairperson said that this must be defined in the correct context.

The Chairperson thought that the DHS had not yet commented specifically on all issues raised in the public hearings. The complaint had been noted that this Bill seemed to be giving undue protection to the tenant.

Mr Mjenxane pointed out that this Bill did not deal with eviction; that was covered in PIE, which dealt specifically with landlord and tenant obligations. There was, however, a spoliation order provided for already in section 12 of the principal Rental Housing Act.

Mr Ngwenya clarified that the Tribunal had the power to issue a spoliation order to restore the tenant to possession.

Mr Mokgalapa said that the point was that, just as there were provisions to ensure that tenants could get back their deposits, it had been suggested that landlords be protected. For the tenant, the main concerns were the right of pre-inspection and getting a written lease agreement. For the landlord, the main concerns were having the rental paid, and being able to evict where necessary.

Mr Ngwenya said that section 6 of the PIE Act set out clearly what landlords must do to evict a tenant, and reiterated that it was not the intention of the principal Rental Housing Act or Bill to deal with that question. It was possible, however, to insert a cross-reference in the Bill to say that in the event that a landlord wanted to evict, this must be done in terms of the PIE Act.

Mr Mokgalapa asked for comment from DHS on the suggestion that perhaps the Tribunal should be full-time.

Mr Ngwenya responded that the legal advisers had not considered it in detail. It was possible, as there were a number of referrals and backlogs.

Mr Mokgalapa said that his question was really directed to whether this would be necessary to strengthen and speed up the work.

The Chairperson did not believe that the Tribunal should be full-time, pointing out that its position was akin to that of a board

Mr Mngomezulu said that he was also not sure that this would be cost-effective.

The Chairperson pointed out that the Regulations could deal with strengthening measures; perhaps the Tribunal could be required to sit for more days than at present.

Ms Lufundo said that section 9 of the principal Act said that any appointment was for a period not exceeding three years, and there could be an extension on that.

Mr Mokgalapa said that that was another issue, relating to the question of whether their term of office should be limited to serving only two terms.

The Chairperson said that continuity was a prime consideration, to allow for passing on of expertise.

Ms Borman pointed out that there was a provision that members who had served already for two terms could be appointed again, once the Bill came into operation, to serve an additional term of not more than 18 months. That appeared to cover the concerns.

Ms Borman also wanted to make a comment that perhaps the Tribunal should not in fact divide into sub-Committees automatically; different cases might require more or less members.

The Chairperson said that if it did divide into sub-committees they would effectively involve, respectively, the Chair and Deputy Chair.

Ms Njobe said that efficiency was the main point. If there were not many cases, there would be no need to split the Tribunal, and the same would apply to a complex case. However, it must be remembered that those appointed should be those with expertise and the right qualifications to do the job.

Mr Mjenxane agreed that even if the Tribunal was divided, the members of each team should be competent

Mr Mokgalapa agreed that this also tied back to the point that all decisions of the sub-Committees would be regarded as having been taken by the full Tribunal.

The Chairperson noted that a question had been raised on estate agents accepting and returning deposits. The banking sector had suggested that this point must be covered.

Ms Lufundo responded that the Bill was not intended to deal with the position of estate agents, but regulated the relationship between landlord and tenant. The obligation rested with the landlord to return the deposit.

The Chairperson said that in practice, the landlords sought to “hide behind” the estate agents, and that was a major bone of contention.

Mr Mokgalapa added that there was also a problem because sometimes return of deposits was liked to municipalities giving rental certificates on time.

The Chairperson said that this was not actually to do with payment of any municipal accounts, so that point could not be raised as an excuse for withholding.

Mr Mokgalapa suggested that maybe “within a reasonable time thereafter” could be inserted. The tenant should settle the municipal bill in the month in which s/he was leaving the accommodation..

The Chairperson said that the estate agent usually represented the landlord. She reiterated that this Bill, however, set out the relationship between landlord and tenant. The deposit should be in a special account, a trust account, as clearly stipulated already in the legislation.

Ms Borman agreed that this was covered, but stressed that there was a need to educate people that it might not always be that the full deposit was returnable; for instance any damages caused by the tenant could be offset, provided that invoices were produced for the repairs. Far more public awareness should be done. The Committee had been impressed, when visiting Australia, about the degree of training that was conducted. She suggested that the DHS should propose to the estate agents that they should put together a booklet to explain the rights and obligations of tenants.

Mr Mjenxane agreed that this was important. There was a need for interest bearing account in which to keep the deposits. The estate agents professional conduct was regulated by a Board, which specified matters such as the opening of special interest-bearing accounts, the fact that ownership of the deposit in trust did not transfer from tenant to landlord and the need to repay the deposit, on condition that the tenant had not damaged the property. If the estate agents did not adhere to this the Board would regulate. It was possible, but in his view not necessary, to make reference to this in the Bill.

The Chairperson thought that this was a matter to be clarified in the Committee Report.

The Chairperson referred to the wording of the Bill in relation to providing and maintaining a suitable structure. Originally, the word “habitable” was used and defined, and it was quite specific, covering protection against the elements, physical safety for tenants and visitors and structural soundness. She noted that new wording now appeared. Firstly, she asked what “facilitating the provision of utilities” meant, and what the reference to boundaries meant. Secondly, and perhaps of more import, the Committee had not been informed that the legal advisers were intending to remove this wording (between the initial and re-submitted Bills), nor why this was done. Any changes between the original and revised bills was supposed to be explained to the Committee. She felt that the drafters had misled the Committee, and that they had not shown sufficient respect for Parliament. The Committee was only picking up on these issues because the Members had done their own serious scrutiny.

Ms Njobe said that if the legal drafters thought that anything was not suitable or might cause problems for the Minister, the point must be clearly made to the Committee and more suitable wording suggested.

The Chairperson said that the word “habitable” was well understood and was used in international treaties, such as the Vancouver Declaration. She thought this was a very important issue. She asked that the word be re-inserted. The very reason for including it initially was the necessity of avoiding situations where vulnerable people might be placed in unsafe or unsound structures, and not be able to call for rectification.

The Chairperson noted other concerns raised. She wanted the drafters to speak to qualifications and the composition of the Tribunal. She also said that a comment had been raised about whether the poor and vulnerable and the competitive market spaces should be separated.

Mr Mjenxane said that the legal drafters had discussed that but thought that there was a need to include all players and to create a uniform regulatory system to promote clarity on all rental housing.

The Chairperson, continuing to read from notes on the public hearing, said that Legal Resources Centre had raised a point in support of leases being reduced to writing. It had encouraged the Committee to articulate the consequence of non-compliance with this requirement, suggesting that it might be stated as an offence in terms of section 16 of the Act.

The Chairperson also noted that questions were raised on section 15, which said that the Minister may make regulations after consultation with the relevant parliamentary committees. That did not deny the right for public participation prior to the matter being tabled to Parliament. This was a matter of oversight. There had been an unfortunate trend in the past where Regulations had made the lives of the people more difficult or were not clearly aligned with legislation and the requirements of section 15 were attempting to deal with that.

Mr Mokgalapa suggested that perhaps an explicit reference to public participation could be inserted, such as “subject to public participation as required by the Constitution”.

Ms Njobe noted that SALGA had also asked for the opportunity to participate in the making of regulations.

The Chairperson said that this was a slightly different issue, and felt that section 15 should remain, but the matter should be addressed in the Committee’s Report. DHS had understood the concerns.

Ms Lufundo said that there was already provision in the Act, in section 15(2), requiring that at least one month prior to the presentation of regulations, they should be advertised for public comment.

The Chairperson said that this point must be covered in the Report.

The Chairperson noted that a point had been made around the Rental Housing Tribunal Information Officer, and the transitional provision, and thought the issue had been covered in practice. All municipalities must have fully fledged housing units, and most already had them.  There would not be an extra cost.

The Chairperson noted other issues were raised, which had effectively been covered. These included questions of what would happen where there was market failure.

The Chairperson raised the question of the languages in which the Bill should be presented, pointing out that it should be published in three languages.

The Chairperson asked the DHS to report back on the changes to section 2.

Mr Ngwenya said that the DHS had re-considered this. Seen holistically, in the context of the intended aims, the DHS would rather retain the current section, which actually provided more clarity on what exactly the Minister was expected to do, as well as covering concerns about the distress of the people. The DHS was proposing that the clause in the Bill that sought to remove section 2 should be rejected. The DHS would provide a document on the objects.

The Chairperson reiterated that this Committee was under serious pressure to complete all the work. She would need to report to the strategy committee on the following Tuesday and the Committee would need to adopt the Bill next Wednesday, so she urged the legal drafters to finalise all the issues and present them to Members in good time for their consideration.

The meeting was adjourned.