Rental Housing Bill [B21–2011]: deliberations; Human Rights Watch on its report “Ripe with Abuse – Human Rights Conditions in South Africa's Fruit and Wine Industries”

Meeting report

The Chairperson commented that the process of amending the Rental Housing legislation had started in October 2011, and it was hoped that it would be finalised by early 2012. It had to be put on record by the Committee that it had not been possible to fulfill that mandate because the Bill was of such a technical nature. An “unfortunate situation” had arisen, since the principal Act, which was fundamental for the purposes of making any amendments, had not been made available to the Committee by the Department of Human Settlements. The principal Act had eventually been obtained from the government printer. The Committee did not condemn the actions of the Department, but it was important to note the oversight responsibility carried by the Committee. An assessment should have been undertaken to gauge the achievements and shortcomings of the Rental Housing Act since it was originally promulgated in 1999, but the Department had not conducted that process properly. MPs, both individually and collectively as a Committee, were present on the ground to see, hear and listen to the concerns of the people affected by the legislation, and they had identified a “dire need” to review the principal Act.

The public comments submitted to the Department had not necessarily been in response to the Department’s Amendment Bill, but also involved challenges faced by people in the rental sector. The Department had overlooked those comments, and confined themselves to the issues raised by the Amendment Bill alone. The Department had missed an opportunity to examine other critical issues raised during that consultation process. The Committee had both a right and a mandate to amend the prinicipal legislation in appropriate circumstances. The Committee had looked at the principal Act clause by clause, and had done its homework based on the observations on the ground and the public submissions and complaints raised by members of the public. Ms Dambuza had personally received complaints from members of the public who experienced problems within the rental sector generally, and in the student rental sector particularly. Parliament had a responsibility to respond to all of the issues that had been raised by the public. There was no need for the Department or any individual to feel offended, but it was necessary to follow the constitutional mandate of responsiveness. The Bill was not rejected by the Committee, but still needed improvement.

Ms M Borman (ANC) asked whether the Department had had an opportunity to peruse the most recent amendments, to which it emerged that the Department had not yet seen them.

Parliamentary Legal Adviser presentation on further proposed Committee Amendments
Ms Charmaine van der Merwe: Parliamentary Legal Adviser, explained the draft amendments in the most recent colour-coded working draft of the Bill. The reason for the new definition, in Section 1, of the terms “maintenance” and “maintain” was apparent when referring to Section 16, as there had been a concern that failure on the part of a landlord to attend to minor maintenance issues would be classified as an offence in terms of the Act. It would now only be an offence if there was a failure to attend to maintenance necessary for the premises in question to be habitable.

The addition of Section 2(2)(e) added to government’s responsibility for housing by requiring it to “provide legal mechanisms to protect the rights of tenants and landlords against illegal actions by the other party by affording speedy means of redress”. The legislation fulfilled that mandate by establishing Rental Housing Tribunals. Section 2(5) placed monitoring requirements on the Minister, and required the Minister to monitor and assess the impact of the Act on poor and vulnerable tenants, and to take such action as was deemed necessary to alleviate hardships suffered by such tenants. Section 2(6) gave discretion to the Minister to define certain tenants as “vulnerable”, and would enable the Department to perform its mandate.

Section 3 dealt with financing. At the previous meeting of the Committee, it was indicated that the National Department should be responsible for the training of Rental Housing Information Offices on both a National and a Provincial level, hence the addition of Section 3(5) and (6). The Committee had identified the need for Rental Housing Information Offices to be present in every Province. Section 3(6) made provision for that, and allowed existing municipal structures to be used for that purpose.

The heading of Chapter 3 had been changed, since the Committee felt that the previous one had not been clear enough in conveying the fact that the Chapter set out “rights and obligations” of both tenants and landlords. Section 4 had been simplified so that it dealt solely with the issue of advertising. Sections 4A and 4B were added to specifically set out the rights and obligations of tenants and landlords, respectively. Section 4B(6) was included to make the Act more accessible to both parties.

Section 5(1) had been changed from stating that a lease need not be in writing to provide that “[a] lease between a tenant and a landlord must be in writing, but will not be subject to the provisions of the Formalities in Respect of Leases of Land Act, 1969, (Act No. 18 of 1969).” The obligation of putting the lease in writing was one carried by the landlord. Section 5(6) set out the content that had to be included in the written lease agreement. If there was any redundancy brought about by the inclusion of s 5(2), it was not problematic, since the requirement of reducing a lease agreement to writing was a legal innovation, and it was necessary to make it clear that the responsibility to reduce the agreement to writing was that of the landlord. The requirements setting out which information had to be contained in a written lease in Section 5(6) were purposefully kept simple enough to allow the lease agreement to be contained within one page.

Chapter 4 dealt with the Rental Housing Tribunal, and Section 6 set out the overall application of the Chapter. Section 7 provided that “[E]very MEC must within the first financial year following on the commencement of the Rental Housing Amendment Act, 2012, by notice in the Gazette establish a tribunal in the province to be known as the Rental Housing Tribunal.” Section 9, entitled “Membership of Tribunal” had been changed from “Composition of Tribunal” at the last Committee meeting, since the Committee members preferred the term “membership”. There was some debate as to whether the meaning of the two terms was in fact identical. One State Law Adviser confirmed that the term “composition” was usually used in that context, whereas “membership” was an unusual term. While “membership” was not necessarily wrong, it was not commonly used. A Parliamentary Legal Adviser said that the Skills Development legislation used the term “membership”, and that in that context, it meant more than just “composition”

Ms van der Merwe continued to describe the new contents of Section 7, and explained that Section 7(4B) had been added to provide for “succession plans” in response to concerns about the transfer of skills and knowledge for Tribunal members. Section 10, dealing with the meetings of the Tribunal, had already been discussed with the Department of Human Settlements.

A State Law Adviser sought clarity as to which Tribunal was referred to in the heading of Section 10, to which the Chairperson replied that there would be on Tribunal for each province. There would, however, be instances in which one of the Tribunals would split up into smaller groups in order to hold hearings. There would subsequently be a sitting of the Tribunal at which the reports from different areas within the province were given. There was a need to expand the reach of the Tribunals in this respect, but this did not mean that there would be more than one Tribunal per province. Mr A Steyn (DA) proposed a mechanism to make the section clearer, by inserting the words “two separate but simultaneous meetings for purposes of effective functioning”.

Ms van der Merwe proposed that the section be altered to indicate that one Tribunal may form into smaller “Committees”, which would be empowered to hold more than one meeting, simultaneously, “for purposes of effective functioning.” Mr Steyn explained that the idea was that where there was a large caseload, the Tribunal should be allowed to sit in more than one sitting in order to effectively deal with it, and that the word “simultaneously” should be included for purposes of clarity. Ms Borman seconded the Chairperson’s proposal that the State Law Advisers sort out the exact wording, as long as the intention of the Committee was retained. Ms van der Merwe reiterated that the word “Committee” would make it clear that smaller groups of Tribunal members would be empowered to meet both separately and simultaneously.

Section 5(10), dealing with the required quorum for Tribunal meetings, had already been amended by the Department of Human Settlements in order to make provision for internal appeals, and to ensure that an appeal would not be heard by the same group of people – or “Committee” – who had made the first decision.

Section 13(5) featured the insertion of the term “prevailing economic conditions” in addition to “supply and demand”, as the term “supply and demand” on its own had given the incorrect impression of what factors were to be used to guide a determination of fair rental rates. Section 10A, which had been suggested by the Department, had been moved to Section 11. Section 12, dealing with the powers of the Tribunal, used wording taken directly from the language used by the courts in various rulings on the topic. Section 14 provided for Information Offices, which had to be established, “[p]rovided that local municipalities may combine the functions of the Rental Housing Information Office with an existing office.”

Section 15, dealing with regulations, included the legislative mandate, in Section 15(3), that “[t]he Minister must issue regulations... within 12 months of the commencement” of the Act. Those specific regulations were identified with reference to other sections of the Act. Another addition to Section 15 clarified what constituted “urgent” in instances where the courts had concurrent jurisdiction with the Tribunals. The Minister would be required to set out regulations dealing with norms and standards, going beyond the matter of rental amounts. The term “affordability” might have to be reconsidered, as there was a need to avoid the appearance of legislated rent control.

Section 16 provided a detailed list of offences and penalties in terms of the Act, and gave some explanation of the rights and obligations of both tenants and landlords in dealing with the Tribunal. Failure to comply with any ruling of the Tribunal would constitute an offence. Section 17 set out the procedure to be followed for an appeal or review of a decision of the Tribunal.

Discussion
A State Law Adviser raised the concern that in terms of Section 17, the aggrieved party might have to appeal to the same Tribunal that had made the challenged ruling. There was a general rule that in such instances, an appellant would be able to appeal to a higher body. She advised against the amendment and proposed that there should instead be a mechanism for appeal to a higher authority.

The Chairperson reflected on her experiences as a shop steward, and on instances in which she had had occasion to raise an internal complaint. An appeal would be placed within the same institution, but to a higher authority within that institution. The appeals chairperson would be selected from outside of the institution itself. The purpose of the clause was to curb instances in which wealthy people would be able to thwart the appeal process by taking the matter to court, and out of the control of the Rental Housing Tribunal. The purpose of the amendment was to limit court cases, thereby protecting vulnerable parties.

The State Law Adviser said that the Minister of Human Settlements should deal with appeals in these instances.

Mr A Steyn (DA) sought clarity as to whether the appeals should be made to the Minister or to the MEC of the province concerned.

The State Law Adviser replied that the issue needed further research, but that in either case, the decision of either the Minister or the MEC should be the final decision.

The Chairperson asked why the Department had seen fit to include an exemption clause in Section 4A, which allowed the Tribunal to, “in exceptional cases, and on application by a landlord, exempt the landlord from providing” the written receipt, as required in terms of Section 4A(1).

A State Law Adviser replied that the Committee had proposed the exemption in 2007, in recognition of the fact that it may not always be possible to present a receipt in such cases.

Ms Dambuza replied that the requirement to provide a receipt was not an onerous one, and so there should not be an exemption for instances in which there was no receipt. Ultimately, renting was a business, and a business could not be run properly without the proper use of receipts.

The State Law Adviser stated that the proposal had been made in response to practical challenges raised by the Tribunal. The Bill specified that the Tribunal could be approached in “exceptional cases” to exempt a landlord from the requirement to issue a receipt.

The Chairperson replied that the Tribunal was not the body responsible for making the law.

Ms J Sosibo (ANC) felt that there was no need to argue about the issuing of receipts, since it should not be problematic to obtain one in the first place.

Mr Steyn agreed that the Act had been amended so that, effectively, receipts had to be issued by landlords. He asked, with reference to Section 15(3), where it said that “[t]he Minister must issue regulations”, whether to “issue” meant the same as to “promulgate”. He asked for clarity regarding the membership of the Tribunal, as set out in Section 9. The intention of the requirement that at least two of the members must be “persons with legal qualifications” did not appear to be very clear. Section 13(11) provided that “[t]he Tribunal must within 30 days of receipt of a complaint, refer any matter that relates to evictions to a competent court.” While Mr Steyn agreed that the Tribunal should not be empowered to grant eviction orders, there was a need for clarity in terms of the consequences of a referral to a court. He wanted to know whether such a referral would constitute some sort of a short-cut for the landlord to go to court, or whether the process would remain the same as currently occurred in terms of the Prevention of Illegal Eviction from and Occupation of Land Act, 1998 (Act No. 19 of 1998).

A State Law Adviser replied that the Tribunal would simply be empowered to refer the matter to a competent court. The referral process itself would be presented in more detailed terms in the regulations.

Ms van der Merwe said that the most that would probably happen in terms of a “short-cut” would be that the Tribunal would pass all of the relevant paperwork to the court to which the matter was referred.

The Chairperson called on all parties present to comment on their impressions of the amendment process.

A State Law Adviser from the Department of Human Settlements said that the Department had not been given enough time to peruse the proposed amendments and to properly apply their minds to three particular issues contained therein, but that in principle, the Department was happy with the amendments.

The Chairperson responded that the Department would still be afforded enough time to engage with the proposed amendments, and that re-drafting the Bill meant that there would be an opportunity for additional consultation processes. There was still ample time for the Department to review the Bill and the Department was consequently not disadvantaged. The next step in the process would be consultation with the National Assembly. All interested parties, including the State Law Advisers and representatives from the Department of Human Settlements, had worked together well. The Prevention of Illegal Eviction from and Occupation of Land Act, 1998 (Act No. 19 of 1998) had to be amended, and this type of cooperation would be welcomed during that process as well.

Mr Steyn emphasised the fact that the Committee had done some groundbreaking work. No other Committee had made such substantial changes to a Bill. For the purposes of the substantive amendments that had been made, the public participation process would be opened up again. Mr Steyn extended a warm thank you to the substantial amount of work put in by the State Law Advisers, the Parliamentary Legal Advisers, the members of the public who made submissions, as well as to the Chairperson.

The Chairperson introduced the Senior Legal Adviser from Human Rights Watch who had been invited to present a report dealing with living and working conditions of farm workers in the fruit and wine industries. The Department of Human Settlements could not work alone in dealing with the issues affecting farm workers, and needed cooperation from its sister Departments, including the Department of Labour and the Department of Rural Development and Land Reform. It was not the first meeting dealing with the issues at hand. In future, it would be desirable to have a joint meeting with the other relevant Departments when this type of issue was considered.

Human Rights Watch on its report “Ripe with Abuse – Human Rights Conditions in South Africa’s Fruit and Wine Industries”
Mr Clive Baldwin, Senior Legal Advisor: Human Rights Watch, introduced the organisation. Human Rights Watch (HRW) was a global organisation dealing with human rights issues generally, and particularly the rights of vulnerable workers worldwide. In the South African context, the particular problems facing farm workers that were encountered by HRW particularly involved the conditions of housing; evictions and threatened evictions of those living on farms, including threats to evict family members; and conditions of work, including wages and health and safety conditions. Farm workers’ unions had routinely been denied access to farms to organise workers. The government was responsible for providing core protection to these vulnerable workers, and this included the important functions to be undertaken by Labour Inspectors from the Department of Labour. HRW had made recommendations to the Department of Labour in accordance with its findings. One particularly worrying issue was the recurring concern voiced by workers that if they protested about their working conditions to their employers, they would be dismissed. That fear was symptomatic of a much wider problem, and the authorities should ensure that workers were able to raise complaints without fear of reprisals.

HRW had produced a series of recommendations from its findings. One of the main recommendations would require that a minimum standard of housing be agreed upon as a legal standard. As state resources increased, that standards could in turn be raised accordingly. One particular recommendation to the Department of Human Settlements involved addressing the poor housing conditions on farms, without providing a disincentive to farmers to continue to hire farm workers.

HRW had encountered problems in attempting to recognise which Department was responsible for which issue affecting the conditions of farm workers. Because of this, all responsible Departments needed to work together in order to ensure that, for example, illegal evictions from farms were not taking place. There was a need to enforce the applicable law, and to ensure that those who contravened it were held accountable, as well as to provide alternative accommodation to people who had been unlawfully evicted. There was an impression that some of government’s core responsibilities had been falling through the cracks.

Discussion
Mr A Steyn (DA) sought clarity involving the title of the report, and asked whether it covered farm areas beyond those within the Western Cape. He asked whether, when people were being interviewed, and they identified exploitative practices, they were told about options to address their grievances.

Ms Borman asked whether conditions appeared to be improving generally. She wanted to know whether there was a detailed report dealing particularly with the housing conditions of farm workers.

The Chairperson asked whether the report had also engaged with farmers. She pointed out that there was a responsibility on farmers to ensure that certain standards were being upheld. She made reference to the Employer/Employee Assistance Programme, which was meant to give guidance in relation to the obligations on employers who had to provide housing for employees.

Mr Baldwin replied that the report dealt specifically with conditions in the Western Cape. The main aim of the research was to determine what the prevailing conditions were, and not necessarily to give advice. If it was clear that certain issues could be addressed, researchers would refer the interviewees to relevant service points for help, but that was not a policy. In most cases, where workers raised concerns, they did not give HRW permission to take those issues up with the relevant farmers. HRW did, however, consult with farmers and farmers’ organisations, including AgriSA, for the purposes of the report. In most cases, farm workers had little to no idea what their rights were in the first place, or where they could go to enforce those rights. As the report was the first of its kind conducted by HRW in the Western Cape, it was not possible to say whether conditions had changed or improved over time. The report set out as much detail regarding housing as was possible within the time and resources available to HRW. It was a “snapshot” of what was observed with regard to housing for farm workers, and needed to be followed up in greater detail.

Mr Steyn referred to the recommendations in the report – especially those regarding policy – and pointed out that there was already a detailed policy document that had been compiled early in 2011 to deal with the housing needs and obligations of both farmers and farm workers.

Mr Baldwin stated that HRW had done as much research as they could within their available resources, and had spoken to as many people as they could while exploring the conditions on the ground. They were aware of the draft legislation on evictions in rural areas. It was not only important to have a policy, but it was necessary to have a policy that was effective, and was properly communicated to those people whom it was meant to assist.

Adv Jan Tladi, Chief Director, Legal Services: Department of Human Settlements, made reference to the Extension of Security of Tenure Act (No 62 of 1997) and the Land Reform (Labour Tenants) Act (No 3 of 1996), both of which were specifically earmarked for assisting atypical workers, such as farm workers. From the Department’s side, there was a comprehensive national policy document entitled “Farmworkers’ Assistance Programme”, which set out the housing rights of farm workers and corresponding best practices. He was surprised by the fact that the report did not make mention of it. The Minister had engaged in consultations with farmers’ organisations in order to determine how farmers could assist to ameliorate the conditions of farm workers, especially with regard to housing.

On the issue of evictions from farmland, there was legislation in place to deal with it, in addition to the Extension of Security of Tenure Act (No 62 of 1997). The Prevention of Illegal Eviction from and Occupation of Land Act (No 19 of 1998) was originally intended to ensure there would be no arbitrary evictions. There had been a number of court rulings determining clear directions in the case of evictions. In relation to the issues raised by the report, the Department of Human Settlements only dealt with housing and evictions.

Mr Baldwin reiterated that in many cases people did not even know their rights or what to do to enforce them. It was questionable as to whether court rulings had provided enough protection for people on the ground, considering there were still no minimum core standards set out to guide the provision of housing.

The Chairperson said that the Committee needed to obtain a copy of the Farmworkers’ Assistance Programme, in order to determine whether the recommendations and standards contained within it were being followed. She requested a list of the farms and areas visited by HRW. She stressed the need for coordinated oversight, and remarked that it was a pity that the Labour Portfolio Committee had already undertaken its own programme, but that the Human Settlements could still work with the Rural Development and Land Reform Portfolio Committee. With regard to the important issue of evictions, there was a need to confer with all of the related Departments. The Committee had not done much to date to oversee the issues involving housing conditions in farmlands, and the report would assist the Committee to engage effectively in its oversight functions.

Meeting adjourned.