National Housing Programme: Department's response to SA Human Rights Commission recommendations; Community Schemes Ombud Service Bill deliberations

Meeting report

Chairperson’s opening remarks.
Department of Human Settlement (DHS) Response to recommendations of the South African Human Rights Commission (SAHRC) on housing policy, following 2008 xenophobic attacks
Mr Thabane Zulu, Director-General, Department of Human Settlement, presented a number of comments on the recommendations that had been made by the South African Human Rights Commission (SAHRC) following its investigations into the 2008 xenophobic attacks.

The first recommendation was that the Department of Human Settlements (DHS or the Department) should formulate a policy on the partial formalisation of infrastructure and tenure rights in at-risk informal settlements, in consultation with Department of Cooperative Governance and Traditional Affairs (COGTA). This should attempt to deal with obstructive leadership, and should also address the Department of Home Affairs (DHA) attempts to manage migration. The departments must then work towards implementation of ht that policy.

Mr Zulu noted that the Housing MinMEC had, in August 2004, approved a National Housing Programme for the Upgrading of Informal Settlements (UISP). That UISP was to be based on international best practices and tried and tested projects in South Africa. It would follow a phased development approach. All informal settlements were supposed to be redeveloped in terms of the provisions of the UISP. Since 2004, all nine provinces had identified the most critical informal settlements and had commenced with the upgrading of projects in such areas. Government therefore already did have a policy in this regard, to meet the recommendations of the SAHRC.

Mr Zulu noted that the phased development approach of the UISP was specifically introduced to provide scope for the notion proposed by the SAHRC of partial formalisation, service provision and priority identification. During Phase 1, DHS embarked on shack numbering, identification of emergency service needs, establishing the community profile, and had requested DHA to intervene where immigrants were found. It had also been providing emergency interventions or services such as temporary sanitation, high mast lightning and arrangements to allow access for emergency vehicles. Where the emergency vehicle access arrangements would require temporary relocation of some of the households, this would be  facilitated through the Emergency Housing Programme (EHP) provisions. The UISP also provided for a holistic development orientation. All inhabitants would be included in the upgrading projects. The programme would favour in situ upgrading as opposed to resettlement. In regard to obstructive leadership that was sometimes found in informal settlements, the DHS believed that the issues should be addressed locally through the municipal ward councillor and the community.

Mr Zulu then moved to the SAHRC’s Recommendation 2. This suggested that the DHS must engage with residents of informal and Reconstruction and Development Programme (RDP) settlements in order to raise awareness of existing policies, and also to obtain information about the challenges faced, to enable DHS to develop appropriate policies to manage the ownership, sale and rental of shacks and RDP houses.

The DHS noted that community consultation and participation was a fundamental policy requirement already. All the inhabitants, and their needs, were recorded and their profiles were established. Communities were also tasked to manage their informal settlement redevelopment from the moment that they were recorded, and the households would be informed of their rights, choices and obligations regarding the redevelopment project and property ownership aspects. Funding was available to finance additional capacity, to ensure that proper community participation was achieved. The inhabitants of the areas were  required to make informed decisions, such as agreeing to the township layout and design, the nature and level of the services, and the type of housing solutions required. Mr Zulu said it was not possible to prevent the “sale or renting out” of informal structures in non-formalised areas. The beneficiary communities would be informed about the risks of allowing influx into redevelopment areas, but the communities themselves should be taking charge of and managing these aspects. The sale of formalised property was prohibited by law, for 8 years. However, the houseowners still tended to sell their dwellings informally, and the Department was unable to curtail this practice.

The SAHRC’s third recommendation was that there should be adoption of a management perspective on the issue of informal settlements and undocumented migration into them.

DHS noted that the government had already adopted a balanced development approach to ensure that rural development needs were also addressed, in order to stimulate economic development and create rural job opportunities. However, the migration could not be managed or controlled. The Department had established a “housing atlas”,  which documented all informal settlements in the country. This atlas provided a national perspective on informal settlements, where they were located, and their relationship to development potential and areas which were supposed to be prioritised. Updating of the atlas provided data on growth patterns and migration trends into settlements. The Emergency Housing Assistance programme provided for the establishment of transitional areas with formal stands and interim services, as a strategy to manage urbanisation. It was, however, seldom used as the preferred option.

Mr Zulu outlined that there were numerous challenges. The main one was simply the overwhelming magnitude of the problem. There were between 1.2 and 2 million households that resided in informal settlements, which meant that about 8 million people were living in informal settlements. There were also more than 300 000 families annually moving to these areas and adding to this population. In addition to this, there were many households who lived for years in backyard dwellings, although these were not counted as informal settlements.

A further challenge was that the Department did not have the capacity, either financial or human, to deliver housing at the scale required. It was important that the Department must follow a balanced developmental approach. There were difficulties in prioritising some high risk areas, as these were supposed to be aligned with the whole housing priority system, and it must be remembered that there were vast numbers of people living in the same or worse conditions than the high risk areas. Certain contractual commitments had already been made and must be respected. Another challenge was that the Department was also required to attend to the needs of households who required assistance to access affordable credit-linked subsidies. The upgrading of community projects was community driven and was also time consuming. Another issue was that informal settlements were not always in acceptable locations, so before security of tenure could be awarded, it was necessary to go through a range of investigations and town planning considerations. Finally, Mr Zulu noted that solutions to informal settlements also required de-densification and resettlement. The processes were highly sensitive, and it took considerable time to resolve the issues.

Mr Zulu noted that the DHS had not been consulted by the SAHRC. The Department had relied on municipalities and provinces to provide feedback on policy enhancement requirements. Informal settlement upgrading was also a daunting task. He was at pains to point out that the DHS had a very good National Housing Programme that specifically catered for the special development requirements of informal settlements. However, it was conceded that the capacity to implement, control and manage the upgrading initiatives remained a challenge. The Department was supposed to develop 400 000 households by 2014. The Department continuously embarked on awareness or capacity building initiatives on policies, rights and obligations of the households.

Discussion
The Chairperson said that the SAHRC reported to Parliament, and would have done its research before doing so. She pointed out that it was important for the DHS to collaborate with the SAHRC. The Committee was prepared to accept this report, although it had felt that the last report was too academic and too technical, whereas this one was far better set out.

Mr Zulu said that the DHS acknowledged the role that the SAHRC played, and its mandate under the Constitution. However, he reiterated that some of the policy directives and recommendations made must be seen in the current context of what was already in existence, which was why he had been at pains to outline the context of the DHS initiatives. The Department wanted to assure the Committee that the challenges that it had become aware of on the ground were being continuously addressed, within an existing policy perspective.

Mr M Mdakane (ANC) said that the answers now presented were comprehensive and assisted the Committee to understand some of the issue. He asked whether the SAHRC had been given this response of the Department at the time. The DHS was supposed to interact with other bodies and Departments. He said that a systematic programme must be developed around informal settlements, despite the acknowledged difficulties in dealing with them. He added that the government and the Department were supposed to concentrate on making cities vibrant, and the concept of “human settlements” was intended to inject life into the community. He believed that turning around the inner cities would assist in accommodating additional people.

Mr K Sithole (IFP) asked whether the Department had any way of monitoring the numbering of shacks, pointing out that more and more sprang up all the time.

Mr Sithole asked when the awareness campaigns had been carried out, in relation to Recommendation 2. He also wanted to know what the Department was going to do to monitor RDP houses.

Mr A Figlan (DA) asked whether there was a plan to stop people from selling RDP houses. Furthermore he asked what plans had been put in place to assist people to upgrade their houses. He asked how much migration there had been since 2008. He asked why some people had three RDP houses.

Mr A Steyn (DA) said that on paper the plan was very good but there were concerns around its implementation.  Members had done some oversight, when it became apparent that provinces had not identified critical informal settlements, contrary to what the DHS had reported in response to Recommendation 1.  He also referred to an informal settlement in Pretoria South, which had won its court case against the Metro for provision of basic water. He asked what the Department had done to ensure that this judgment would be implemented. He said that people living in informal settlements knew very little about community consultation, and there was a need for a specific programme that informed the community of its rights. He further pointed out that despite assurances by the Department that Members would be sent an SMS neither he nor any of his colleagues had received it yet. He also raised some issues about the Newsletter No 3 on the DHS website.

Ms M Borman (ANC) said that the issues reported by the SAHRC had also been seen by Committee Members during their oversight visits. She noted that there was a breakdown in communications, which prevented different spheres of government from working together. She was concerned that the initiatives which the Department said it would implement were not happening on the ground. The DHS needed specifically to implement all its policies and ensure that they were working on the ground.

Mr Zulu conceded that implementation was a challenge. He added that targets were set and agreements had been signed, so that policies would be implemented. The Department was monitoring the targets that had been set for the implementation of policies on the upgrading of informal settlements. There were performance agreements and delivery agreements that should ensure that policies would be implemented. He added that he had also signed an agreement with the Minister to ensure that implementation would happen.

The Chairperson said that the report had not mentioned the areas that had already been attended to. She added that it was not enough to say that legislation was in place. This was where the agreements with COGTA came in. In order to address issues of capacity, intergovernmental relations had to be promoted, in order that all departments could deliver on their policies.

The Chairperson noted that this Report would be placed before the Speaker, who had requested it.

Mr Zulu requested that the Department should be permitted to add more information to the Report before it was submitted to the Speaker of Parliament.

Mr Steyn said that a copy of the final Report must also be submitted to the Committee.

Community Schemes Ombud Service Bill (the Bill): Clause by Clause Deliberations
The Chairperson tabled the Community Schemes Ombud Service Bill (the Bill) and requested that Members go through this Bill, clause by clause, raising any concerns.

Arrangement of the Act
Ms Borman said that she was happy with the layout of the subheadings in Chapter 2 of the Bill.

Clause 1: Definitions
The Chairperson said that a public submission had been received to the effect that the Bill should look at the conduct of the management agents. She added that this submission was not new.

Mr Louis van der Walt, Director, Department of Human Settlements, said that the Bill was not originally intended for this purpose. He suggested that the Committee should allow the Ombud to settle the terms of the Code of Conduct and then enforce the terms of the codes of conduct.

The Chairperson said that the Committee would consult with the legal advisors. Parliament had approved the Committee’s request to go on a study tour to learn more about this issue. Managing agents were very crucial in the matter. This was one of the reasons why the Committee had been reluctant to adopt the Sectional Titles amendments.

Mr Mdakane said that the Committee needed more time to look at the issue. He thought that there would not be a problem if the Bill included clauses around the conduct of managing agents.

Mr Steyn supported Mr Mdakane, and suggested that the Committee should look at the wording of the previous Bill in order to incorporate the managing agents.  

The Chairperson said that the DHS needed to make a submission on this point, which the Committee could then consider, and either accept or amend.

The Chairperson asked what the purpose of including the definitions was.

Mr Khwezi Ngwenya, Director: Framework Legislation, National Department of Human Settlements, responded that the definitions were included in order to indicate the meaning that was ascribed to a term used in the Bill.

The Chairperson asked what ‘adjudicator’ meant. She added that the reference to adjudicator was surely supposed to be Section 21(3)(b) as opposed to section 21(3).

Mr Ngwenya said that this was a drafting practice which would provide a clearer definition, and was used to avoid redefining the term.

The Chairperson thought that using these short forms was not a good idea.

Ms M Njobe (COPE) said that the definitions may not set out the general dictionary definitions of a particular word, but were intended to indicate how that word was to be defined within the context of this legislation, and that was a usual legislative practice.

Mr Ngwenya pointed out that the definition of ‘Director-General’ would be aligned with the previous legislation, as had been suggested by the Committee.

Ms Borman said that the submissions from the banking and financial services sectors had questioned whether it was intentional that only the ‘owner’ be referred to in the definition of ‘dispute’, or whether this should refer to both the owner and occupier.

The Chairperson said that the definition of ‘dispute’ set out all the people that were involved.

Ms Borman agreed that it was inclusive. She said that disputes should not be taken up against everyone, but only the owner of the particular section or unit.

Mr van der Walt said that there was a range of community schemes which did not have ownership, so that the intention was not only to deal with tenants, but also those who had left or who had registered real rights.

Mr van der Walt added that the word ‘person’ under the definition of ‘managing agent’  would also cover a company.

Mr Ngwenya said that the definition of “Minister” should also be aligned with what the Committee had suggested during a previous meeting.

The Chairperson stated that she needed an explanation on the term ‘occupier’.

Mr van der Walt said that the definition had to be read together with the definition of a ‘private area’.

The Chairperson noted that there had been a submission from the public on the definition of the ‘scheme governance’ provisions, to the effect that the definition should include a reference to the  minutes of annual general meetings and special general meetings.

Mr van der Walt responded that every different community scheme had different documents, which could be numerous, and which included the founding documents. This would add considerably to the work of the Ombud. This issue was considered an internal housekeeping issue in the general scheme of things. If the documents were important, then the Bill provided that the Ombud could call for them.

Clause 2: Purpose of the Act.
The Chairperson suggested that ‘governance of services’ should be added under sub-clause (b) and that ‘sectional titles’ should be added under sub-clause (c).

Mr van der Walt responded that the definition of ‘community schemes’ included sectional tittles. However, he agreed to include the term ‘governance of services’ under sub-clause (b).

Clause 3: Establishment of Service.
No amendments were suggested by the Committee.

Clause 4: Functions of Service.
The Chairperson suggested that that term ‘control’ be deleted and replaced with the term ‘regulate and monitor’,  under Clause 4(1)(c).

Mr Ngwenya agreed with the proposed amendment.

Ms Borman said that there had been a public comment on the issue of accessibility electronically, to save on a large number of support staff.

Mr van der Walt responded that only a small number of people in South Africa had access to the internet, and it would be unwise for the Ombud to demand that there should only be provision for electronic access.

Mr Mdakane said that if resources were available, then electronic access had to be provided for.

Mr Mdakane added that sub-clause 4(1)(c) could be amended to say ‘regulate, monitor and control’, which would enable sectional titles to be of a higher quality.

The Chairperson said that the electronic issue had to be added in.

Ms Borman suggested the use of the word ‘must’ should be substituted for the existing ‘may’, under Clause 4(4)(2).

The Chairperson suggested that the word ‘shall’ should rather be used.

Mr Mdakane agreed that the word ‘may’ had to be removed and replaced with the word ‘must’.

Mr Mdakane felt that the term ‘Members of the Public’ under Clause 4(2)(b)(ii), was too broad and should be removed.

Mr van der Walt suggested that if Clause 4(2)(b)(ii) was removed the contents would have to be incorporated under 4(2)(b)(i).

Mr Mdakane said that the legislation had to be very specific, since it dealt with specific people. If the Bill were to be broader there would be a problem.

Clause 5: Mandate.
Mr Steyn said that Clause 5(3) again concerned issues around the use of ‘must’ or ‘may’. He thought that the first time that ‘may’ appeared, it should be substituted with ‘must’. In relation to Clause 5(4) he said that the time frame of five years did not allow for any mandate to be considered earlier than five years.

Mr Morris Mngomezulu, Chief Director, Department of Human Settlements, responded that a three year period was too short to measure the impact of a mandate. He added that the period of five years was consistent with the Housing Development Act.

Mr Steyn pointed out that an option was supposed to be given. He suggested that it may be better to use wording such as ‘the mandate may be reviewed every three years, but must be reviewed every five years’.

The Chairperson asked why other relevant legislation that related to human settlements had not been referred to.

Mr Mngomezulu thought that there was no harm in including other relevant legislation.

Ms V Mugwanya (ANC) suggested the use of the phrase, ‘the mandate must be reviewed every five years, or any such shorter period as the Minister may determine’,  in order to avoid confusion.

Clause 6: Board Service.
The Chairperson suggested the use of the term ‘govern and manage’ under Clause 6(2).

Clause 7: Appointment of Members of Board.
The Chairperson said that the board was supposed to be representative of the population demographics, rather than referring to ‘males and females’ under sub-clause (3).

Mr Mdakane said that the issue of “broadly representative” should not be changed.

The Chairperson stated that two issues had been mixed – namely that of the board and that of the nomination committee.

Mr Mngomezulu agreed that the issue of the nomination committee was mixed up with the board.

Advocate Zorina Adhikarie, Senior Parliamentary Legal Advisor, said that Clause 7(8) made no provision for the continuity of tenure, and could result in the terms of non-executive members expiring simultaneously. She added that this could be addressed by staggering the first term, to allow continuity and knowledge transfer to incoming member.

Ms Mugwanya suggested that Clause 7(4) deal with issues of demographics.

Ms Njobe said that Clause 7(4)(b) catered for the previously disadvantaged people.

Mr van der Walt asked whether the Minister could appoint any people who had not been nominated.

Ms Njobe disagreed with this, adding that sub-clause 7(2) dealt with the issue.

Mr Mngomezulu confirmed that the Minister had to appoint only from the nominees.
Ms Njobe said that there was no need for sub-clause 7(6) because this was covered under sub-clause 7(2).

Clause 8: Functions of Board.
The Chairperson asked who was supposed to develop a plan in terms of Clause 8(a).

Mr Mngomezulu responded that the organisation was supposed to develop the plan and submit it to the Minister for approval.

Clause 9: Disqualification from Membership of Board.
No amendments were made.

Clause 10: Resignation and Removal from Offices.
No amendments were made.

Clause 11: Fiduciary Duty and Disclosure.
Adv Adhikarie noted that Clause 11 provided that a member of the board must, upon appointment, declare whether she or he had any direct or indirect financial interest in community schemes. She proposed that the clause should also include a requirement that that a member must also disclose his or her financial interests.

Adv Adhikarie noted that under sub-clause 11(3), after the word ‘immediately’, the phrase ‘but no later than X months’ must be included. A reference to ‘immediately’ alone was far too vague. The Committee would have to decide the appropriate maximum period.

Mr Steyn asked what would happen after a member of the board had disclosed his financial interests.

Adv Adhikarie responded that a new sub-clause 11(8) then had to be inserted, that would criminalise a failure to comply with Clauses 11(1), (2) and (3).

Ms Njobe said that what Mr Steyn had raised was covered under Clause 9(d).

The Chairperson said that the Committee had to discuss this sub-clause further.

Adv Adhikarie said that Clause 11(4) required that an organisation wishing to render a service to the board must disclose whether any board member had any interest in that organisation. She added that this sub-clause was misplaced, because Clause 11 dealt with fiduciary duties and disclosure of members. Furthermore there was no indication whether non-compliance with this sub-clause, or any other sub-clauses of Clause 11, would result in a finding of misconduct or possible criminal liability.

Mr van der Walt said that everything that had been said was necessary.

Clause 12: Committees.
No amendments were made.

Clause 13: Delegation and Assignment of Functions by Board.
No amendments were made.

The Chairperson said that the Committee would continue with the clause by clause deliberations at its next meeting.

The meeting was adjourned.