Rental Housing Amendment Bill: Department response to submissions

The Chairperson said the Committee needed to intensify its oversight responsibility, as there was a lot to be done in the year. The Committee’s expectations about performance and accountability should be made clear to the Department. These issues needed to be clearly communicated to the Department. She urged the Committee to be strong in carrying out its mandate.

The Chairperson said the Parliamentary Legal Services Unit and the Department of Human Settlements (DHS) would brief the Committee on the Rental Housing Amendment Bill. This was important because the Committee did not have the principal Act before it when it first discussed the amendments. This had made it difficult for the Committee to discuss the issues extensively. There had not been a comprehensive briefing on the impact of the legislation and that had led to uninformed suggestions for changes to the Amendment Bill by committee members.

Parliamentary Legal Services Unit briefing
Advocate Charmaine van der Merwe said it was important for the Committee to understand the Bill before making changes to the Amendment Bill. She referred to National Assembly Rule 249 (3)(b) which stated if it is a bill amending provisions of legislation, the Committee needed the permission of the National Assembly to inquire into amending other provisions of that legislation.

She said the Committee had the right to consult experts and organisations and other Portfolio Committees whose views it felt were needed. Public participation in the legislative process had been described as crucial by the Constitutional Court. In fact some legislation in the past had been declared invalid as a result of lack of consultation.

Ms van der Merwe drew the Committee’s attention to the Summary of Public Comments received from various organisations. There were a few matters she would recommend be brought into the Amendment Bill since there were a number of issues the Amendment Bill had failed to address. She would highlight the public comments she thought were important to add as amendments. These were contained in the document, Proposed Portfolio Committee Amendments to Rental Housing Amendment Bill. Some of the proposed amendments were on matters that were not part of the Amendment Bill and hence it was necessary to obtain permission from the National Assembly.

Ms van der Merwe said the Committee needed to consider if it wanted to give the Tribunal the right to evict or not. Currently the Act indicated that the Tribunal had no such right. She recommended that the amendment to give the Tribunal such a mandate be rejected.

She said although the recommendation on the timeframes for establishment of Tribunals was a political matter – as opposed to a legal one – six months was not sufficient. A reasonable time was needed for the officials to comply, because if officials failed, they could be taken to court and that did not reflect fairly on the image of government. Another option to look at would be to give the Minister the right to establish the Tribunal.

The proposed limit of two terms of office only also was not a legislation matter but one of good governance. A two-term limit was for purposes of good governance where institutions were prevented from degenerating into monopolies. The two-term limit allowed sharing of new ideas and experiences. In order to avoid a situation where the experience was lost all at once, there needed to be a proposal that members of the Tribunal did not leave all at once. In the boards of public institutions, there needed to be a transfer of skills. She recommended that this proposed limit be kept. The Committee could decide on the composition of the Tribunal so as to accommodate gender parity and people with disabilities as per the suggestion of the Commission for Gender Equality.

Ms van der Merwe suggested the Committee do away with the use of the word “just rental” in the Bill as it provided for exploitation by landlords. She said “just” was a very dangerous term and needed to be replaced by something non-exploitive.

She said the Committee needed to deliberate on evictions. This might affect the way the Tribunal was constituted. As this involved basic human rights, the Committee would have to ensure that it got experts in the field to comment on this when it was deliberated on.

Ms van der Merwe recommended that the proposal on the rescission and variation of rulings by the Tribunal be considered. She said the concern about this amendment was the use of the words “out of its (the Tribunal) volition” the Tribunal might rescind its ruling”. She said because there were no timeframes on the rulings and rescissions, rulings might be made, only to be rescinded in a short space of time.

Discussion
Mr A Steyn (DA) said it would have been ideal for the Committee to have received the briefing and the summary of public comments earlier. He asked what the procedure was in order to get the approval from the National Assembly. He had not been aware that the regulations were not promulgated, and this was a competency of the Eastern Cape’s in the original Act. He asked if in those provinces that had established the Tribunals, regulations had been promulgated. He suggested that the number of people on the Tribunal be increased so as to avoid a situation where an appeal was heard by the same people who made a ruling.

Mr K Sithole (IFP) wanted to know the length of time meant by the phrase “reasonable time”, as used in the principal Act. He asked why the other provinces did not make submissions on the Amendment Bill. He also asked for clarity on the relevant Committees and departments that could also be consulted.

The Chairperson said “KZN, Gauteng, and Western Cape” were the only provinces that responded to the advert calling for submissions. She said there was a problem if only three provinces responded to an invitation for submissions on such an important item as rental housing. She agreed that the appeal body should be separate from the Tribunal.

Ms van der Merwe said the approval of the additional amendments was easy in that the Committee needed to provide the Speaker’s Office with what it planned to amend. She said a “reasonable time” was around 18 months depending on the urgency of the matter at hand, as indicated by the Court in 2010. She said the Committee could decide which other departments or institutions the Bill impacted on. It could be that the Committee held joint sittings with such departments/committees. This was not a must but an acknowledgement that the work the Committee did was not isolated. She said the appeal process required a separate body as it was a total reconsideration of all the facts and the evidence. On appeal, it often happened that judges did not agree.

Ms D Dlakude (ANC) asked if there was no other way to avoid the high cost of taking matters on appeal. Was there no other way that rulings of the Tribunal could be reviewed without going to the High Court?

Ms van der Merwe said only the High Court could hear appeals and such a process ranged from 20 000 to 30 000. The only way around that would be to allow for an appeal procedure within the Tribunal or have a central appeal body that would hear all appeals from the Tribunals.

Chairperson’s remarks
The Chairperson said 2012 was the year of action and focus. The Committee and the Department needed to be executing their mandates. The officials needed to do more in order to ensure that a better life was realised in the area of human settlements. There had been a couple of sessions already on the Rental Amendment Bill. When the Committee finished the Bill it should come up with something that would assist everybody. The Committee had no quarrels with the recommendations submitted by the Department.

Following deliberations on the recommendations, the Committee was of the view that the Department had done well but it could improve. She said it was noticeable that the Department had focussed on a single issue – the establishment of the Tribunal. The Department did not submit a comprehensive assessment of the impact the Amendment Bill would have on the ground. Looking at the submissions received, there were a lot of omissions that the Committee felt the Department ought to have looked at. The principal Act had recently been amended but there were issues that should have been included. The Committee was not out to discredit the Department, but to enhance its work. Continually amending legislation was not the ideal way of doing things. That was not sustainable and the Committee felt that there were things that needed to be attended to. The Amendment Bill would not be rejected, but further work would have to be done. The Committee would consult with role players and follow the parliamentary process. The Committee had up to the end of March to approve it, and would focus all its energies on the Amendment Bill.

Discussion with Department of Human Settlements
Mr Steyn (DA) said following engagements with the Department last year, the Committee was under the impression that an appeal could be put to the Tribunal. The Committee had discussed at length whether the members of the Tribunal who gave a ruling should form part of the appeal committee. It had been made clear by Parliamentary Legal Services that the Bill as it stood did not allow for an appeal. The Department needed to clarify the appeal process at the Tribunal.

Mr Steyn said it appeared there were no regulations. There had not been any regulations promulgated since 1999 – when the Act first became effective. The Committee needed to know what the status was, as there were only draft regulations, and how other provincial Tribunals came into being without promulgated regulations. The Committee needed to get more information on the uncertainty around whether the Tribunal could make an order about the evictions of tenants.

Ms Borman (ANC) said the Committee needed to be a little clearer about the cost involved in establishing the Tribunal. Very often officials draft legislation only to find out that it could not be implemented properly because a proper costing had not been done.

She would welcome feedback from those provinces that had already set up a Tribunal. The Committee should receive an input from them on the weaknesses they found in implementing them. Further consultation was critical for any proposed amendments to the Amendment Bill.

Ms Dlakude wanted to know why the other provinces failed to make submissions on the Amendment Bill.

Department of Human Settlements response
Mr Khwezi Ngwenya, DHS Legal Advisor, said the reason that the other provinces did not make submissions was because provinces had had direct input into the process of formulating the Bill before it was brought to Parliament. The Department went beyond what it was required to do and held information sessions with all provinces. There had been quarterly meetings with provincial Tribunal chairpersons. The bulk of what was contained in the Amendment Bill came from these quarterly meetings. This could be the reason other provinces did not formally submit to Parliament. Gauteng and the Western Cape were invited to the meeting to share their experiences.

Ms Borman sought clarity on the format and the profile of those who attended the information sessions, and if there were any minutes recorded.

Mr Ngwenya replied that the attendance of such information sessions was by provincial departments; MECs and relevant stakeholders like the South African Local Government Associaition; representatives from the Department of Justice; local chiefs; private rental associations and the public.

He said the only provinces that had not yet established the Tribunals were the Eastern Cape and Free State. The other seven provinces had fully functioning Tribunals. Progress reports had been received from the two provinces indicating that they were in the process of establishing Tribunals. He said in the Free State there was a challenge of political authority that had led to the delays.

Mr Ngwenya said the amendments indicated that the regulations need to be the responsibility of the Minister of Human Settlements as this would ensure uniformity. Costing was a challenge. As the Act stood, the cost was the responsibility of the provincial department. The idea would be to have the Tribunal not as a permanent body, but sit as and when it was required.

Ms Borman asked if this arrangement would also take care of the offices at the local municipality level. Would the province be responsible for ensuring local municipalities were covered?

Mr Sithole wanted to know if the Eastern Cape and Free State had made any contributions during the information sessions. If so, what was their understanding of the Tribunal, given that they had not established one.

Mr Ngwenya replied that the national Department was also involved in supporting several aspects once the Bill was operational such as the training of Tribunal members and the people who would be running the information desks at municipalities. The Department needed to budget for the Tribunal so as to ensure smooth operations. The Department therefore acknowledged that hosting a rental housing office at a municipality would be at a cost.

He said apart from consulting with the Eastern Cape and Free State, the Department had conducted follow up visits to ascertain the exact challenges. The Department also assisted the two provinces with specifications for the advertisements for nominations. The Department’s understanding was that challenges to the establishment of the Tribunal were political commitment and contestations. The respective provinces were aware of the importance of establishing such an institution as the Tribunal. He said MECs were aware that they had to establish it within 12 months.

Mr Tsakane Pila, DHS Acting Director: Rental Housing, said the Eastern Cape had a Tribunal that had staff but it was only awaiting the appointment of Tribunal members. Matters were being reported every day and were handled through mediation. This was the case in the Free State as well.

Mr Ngwenya said the Act made provision for a review mechanism and not for an appeal. The Tribunal was a quasi-judicial body and therefore could not have an appeal mechanism.

The Chairperson said this was a problem. She wanted to know how costs could be avoided as people were poor out there; the Court should be the last resort.

Mr Ngwenya replied that there was no way the Tribunal could hear appeals as it was a quasi-judicial body. If any party felt aggrieved by a ruling, it could take that on review.

He took the Committee through the proposed committee amendments. The Committee resolved that the number of Tribunal members be seven with a quorum of three. There needed to be two persons who were legally qualified; and two who were experts in the field of property development. It was agreed that provision be made in the amendment for a split sitting of the Tribunal, in which case there had to be one representative of each field.

It was also agreed that a provision be made for a succession plan in order to counter the effects of skills erosion. The provision would indicate in the amendment that members of the Tribunal could not leave all at the same time when their term of office was up. Although this was a corporate governance issue, it was important that the Act addressed this as it would allow for the transfer of skills.

Closing remarks
The Chairperson said it was a weakness that the Committee had never looked at the principal Act. She said the Committee was not a Department and should have taken note of the public submissions the Department ignored. The Committee needed to entertain the views of the people. The Committee had raised issues including the return of rental deposits; this ought to be reflected in the Act. She said the use of words like “just” and “equitable” in the Act could have implications. A person may determine a rental and justify it whilst it was grossly unfair to the other party. Looking at the public comments there were a lot of issues that were left out and not considered by the Department. She said the Committee would need time to look at those submissions.

The meeting was adjourned.

Appendix
249. Process in committee
(1) If a bill has been published for public comment in terms of Rule 241 or 258,
the Assembly committee to which the bill is referred must arrange its
business in such a manner that interested persons and institutions have an
opportunity to comment on the bill.
(2) If a bill has not been published for public comment, and the committee to
which the bill is referred considers public comment on the bill to be
necessary, it may by way of invitations, press statements, advertisements
or in any other manner, invite the public to comment on the bill.
(3) The committee —
(a) must inquire into the subject of the bill and report on it to the
Assembly;
(b) if it is a bill amending provisions of legislation, may seek the
permission of the Assembly to inquire into amending other provisions of
that legislation;
(c) may, or if ordered by the Speaker must, consult any other committee
that has a direct interest in the substance of the bill;
(d) may consult the member in charge of the bill;
(e) may consult the JTM on whether any amendments to the bill
proposed in the committee —
(i) may affect the classification of the bill; or
(ii) may render the bill constitutionally or procedurally out of order;
(f) may not propose an amendment that —
(i) affects the classification of the bill, except as provided in
Subrule (4) and Joint Rule 163; or
(ii) renders the bill constitutionally or procedurally out of order
within the meaning of Joint Rule 161;
(g) may recommend approval or rejection of the bill or present with its
report an amended bill or a redraft of the bill;
(h) must report to the Assembly in accordance with Rule 251; and
(i) may report to the Assembly on a Bill introduced in the Assembly
and classified as being subject to section 18(1) of the Traditional
Leadership and Governance Framework Act, 2003, only after 30 days have
passed since the referral to the National House of Traditional Leaders in
terms of Rule 332.
(4) The committee may propose an amendment that changes the classification
of a section 75 or section 76 bill to a mixed 75/76 bill only if the JTM is of
the view that the bill as amended is unlikely to lead to unmanageable
procedural complications.
[Note: Subrule (4) must be suspended until the proposed procedure
for mixed bills is implemented.]