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HOUSING PORTFOLIO COMMITTEE
21 August 2007
RENTAL HOUSING AMENDMENT BILL [B30-2007]: DELIBERATIONS
Chairperson: Ms Z Khota-Fredericks (ANC)
Documents handed out
Rental Housing Amendment Bill [B30-2007]
Audio recording of meeting
The Committee deliberated on the Rental Housing Amendment Bill [B30-2007], focusing mainly on Clauses 4, 5 and 6 of the Bill. Public hearings on the Social Housing Bill scheduled for 5 September 2007 would be postponed to 11 September 2007. Public hearings would not be held on the Rental Housing Bill although the Committee would be accepting submissions on both Bills.
The Committee felt that the Rental Housing Tribunals needed to be consulted about the difficulties they experienced with regard to their inability to have their orders enforced as well as about preventing the postponement of Tribunal meetings when the chairperson or deputy chairperson were absent.
Plans for public hearings on Social Housing Bill
The Chair explained that public hearings, which had originally been scheduled for 5 September 2007 would be postponed to 11 September 2007. Public hearings would be held only on the Social Housing Bill and not on the Rental Housing Bill. The Committee would however be accepting submissions on the latter bill, as this Bill comprised amendments to existing legislation.
Rental Housing Amendment Bill [B30-2007]
The Chair said that due to time constraints, the meeting would focus only on the Rental Housing Amendment Bill and not on Social Housing Bill as scheduled. She hoped that the various parties had already met to discuss the Bill and that the present meeting merely served as a ‘meeting of the minds’. She reminded members that the Department of Housing had briefed the Committee on the Bill the previous week.
She explained that the Rental Housing Amendment Bill sought to amend the Rental Housing Act, 1999. The aim of this Bill was to address implementation problems that had arisen during the application of the Act.
The Chair read through each of the clauses and called for comments:
This amended Section 1 of the Act. The Chair noted that the definition of “unfair practice” included both landlords and tenants so that both were granted rights. The Chair asked if the researcher had come across anything controversial in her research on this clause and the researcher said that she had not. There were no further comments on this clause.
This amendment resulted in the deletion of the words ‘bona fide’ from Section 4 of the Act.
This clause amended Section 5 of the Act. The Chair explained that the Act had required the landlord to provide receipts and this Bill proposed the relaxation of this requirement.
Mr A Steyn (DA) was not sure what the purpose of this provision was. The receipts often served as the only proof that payment had in fact been made to the landlord. This was particularly important in cases where tenants were in arrears with their rent and were paying off the amount owed. The receipt then served to indicate the amount still owing and as proof of payment.
The Chair agreed, saying that receipts protected the tenant and landlord. They indicated the reason for payment being made. This issue would be flagged to be dealt with later.
In reply to Mr G Schneemann (ANC) asking why the underlined provision in lines 13-15 was being deleted, the Chair said that it was not being deleted but added.
This clause amended Section 9 of the Act. The Chair referred to the situation where both the chairperson and deputy chairperson of the Tribunal were absent from a meeting. She noted the Committee discussions during the briefing on the Bill about preventing the postponement of Tribunal meetings. Tribunal meetings were sometimes postponed due to the absenteeism of either the chairperson, the deputy chairperson or both of them. They had considered whether the members present should elect someone to stand in as acting chairperson. It was however necessary to include a provision which stated that the chairperson would be removed from office if absent for more than three consecutive meetings.
Mr Steyn proposed that the MEC should appoint a second deputy chairperson to address the situation of both the chairperson and deputy chairperson being absent.
The Chair considered this as a possible solution to prevent the adjournment of meetings. She suggested that this proposal be flagged.
Ms N Ngele (ANC) disagreed, saying that this would mean keeping irresponsible people instead of replacing them with responsible people who would attend the meetings.
The Chair explained the rationale behind proposing the appointment of an additional deputy chairperson. If members of the Tribunal merely appointed ad hoc persons as acting chair in the absence of the chairperson and deputy chairperson, the appointed individuals would not have to take responsibility for decisions taken, and there was no continuity.
The Chair asked that members present this issue to their respective parties for discussion.
Mr Schneemann asked where in the Bill was the issue of the additional deputy chairperson discussed.
Mr Steyn said that the Bill was rather confusing as it was saying exactly the same thing as the Act, although it was worded differently. He said that this occurred throughout the Bill.
The Chair suggested that this should be flagged to be raised with the State Law Advisor at a later date.
Mr Schneemann agreed that both the Bill and original Act were saying the same thing about the appointment of the deputy chairperson. He also was not sure what the difference was. He agreed that the State Law Advisor had to be consulted to advise them on what the difference could be. He also proposed that the Committee should try to find out how tribunals in other sectors dealt with this issue.
The Chair agreed with these proposals.
This clause amended Section 13 of the Act. The Chair explained that the question of eviction orders had been raised previously. Eviction orders had been left to Magistrate’s courts due to the Tribunals lacking the resources to implement these. There had to be a relationship between the Department of Justice and the Tribunals or the Tribunal would just be a quasi-judicial body without power to enforce orders. It was perhaps for this reason that eviction orders should be dealt with by the Courts.
Mr Steyn said that it was strange that other provisions of the Act mentioned that the Tribunal would have the authority of a court. Why then did this issue still have to be referred to a court if the Tribunal already had the authority of a court? He asked if a possible reason was that members of the Tribunal lacked the necessary legal expertise to deal with these issues. If this was the case, why then did they have the necessary expertise to enforce other orders?
The Chair said that the Tribunal had been established to litigate on conflict resolution arising from rental matters. However the issue of evictions and eviction orders may have become too cumbersome for the Tribunal to handle. She asked if Members were suggesting that the Tribunals should have their own sheriffs or whether they should just issue evictions.
Mr Steyn said that this was not what he was suggesting. The Tribunal should make the eviction order and the Department of Justice should enforce it. This department was at present unable to enforce these orders. There was in fact nothing wrong with the Tribunals’ ability to grant orders.
The Chair agreed that there appeared to be a disjuncture between the Tribunals and the Justice Department.
Mr Steyn suggested that the Chair should write to the three Tribunals, asking them to provide information on the problems they were experiencing on this issue and how they suggested these burdens could be eased. If it then emerged from the responses that the legislation needed to be amended, the Committee could then do so. It was however not appropriate to simply pass this responsibility on to the courts.
The Chair asked if it was really necessary to write such a letter, since the Tribunals would be present at the public hearings and could make their submissions in that forum.
Mr Steyn responded that he had been under the impression that the hearings would only be held on the Social Housing Bill.
The Chair replied that the Committee would be accepting submissions on the Rental Housing Bill as well. However she added that there was in fact no harm in writing to them.
Mr Steyn said the written letter by the Chair would ask specifically for their responses with regard to their inability to have the order enforced. It would not deal with their comments on the Bill.
Mr Schneemann argued that writing to them would take time and suggested that the members visit the Tribunals instead. They would then be able to obtain information on how these Tribunals operated and also how they dealt with the issue of absenteeism of the Chair or Deputy Chairperson from their meetings.
Ms Ngele agreed that a visit would be a simpler approach, but suggested that members simply visited the Tribunals in their own areas and then draft reports for submission to the Committee.
The Chair said that this was a problem since Parliament was in session. This meant that members were all required to be in Cape Town. This meant that visits to other Tribunals were problematic since the information had to be obtained before the public hearings on 11 September 2007. Perhaps the Committee could send a team of members to the Tribunals. She suggested that it would perhaps only be necessary to visit one Tribunal, which would obviously be the one in the Western Cape.
She said that Clause 5 was looking at giving the Tribunal teeth. If they were to agree to grant this authority to the Magistrates Court, it would appear as if the Tribunal in fact had no teeth. In addition, one could not ignore the backlog faced by the courts. This would not be acceptable when dealing with these issues, which require speedy resolution, since they affected families’ dwellings. Thus this amendment was not necessarily helpful.
Mr Steyn suggested that when the Committee discussed this issue again, a legal advisor should be present. He referred to Clause 5(c), saying that previously in the Bill, it had been stated that evictions or attachments had to be referred to court. Here on the other hand, it was stating that the Tribunal could grant these orders.
Mr Schneemann asked where in the Act or Bill had stated it that these orders had to be referred to court.
Mr Steyn could not remember the exact provision but reminded the Committee that the Department had in fact mentioned this at the briefing.
The Chair suggested that this clause be flagged, so that the Committee could:
- carefully consider these points in further detail,
- visit the Tribunal and
- engage with legal advisors on this issue.
Mr Steyn referred the Committee to the new Section 13(d) which provided that a ruling by the Tribunal was deemed to be an order of the magistrate’s court in terms of the Magistrate’s Court Act and was enforced in terms of that Act. Thus the primary problem with the enforcement of the order had to be with that Act or with the lack of resources of the Department of Justice.
The Chair agreed.
This clause amended Section 15 of the Act. The Chair said that this clause was simple. It gave the Minister power, which had previously rested with the MECs. This was important since not all provinces had Tribunals.
Mr Steyn added that this provision correctly gave the Minister the power to make regulations in consultation with the MECs. Previously it had been done by the MECs in consultation with the Standing Committees. He asked why the Standing Committees had been omitted from the Bill. It was not appropriate for the Committee to be responsible for passing the legislation but to be excluded from involvement in the regulations. He suggested that regulations be made by the Minister in consultation with the MECs and the relevant Portfolio Committees.
The Chair agreed, adding that the Committee were custodians of legislation.
This clause amended Section 16 of the Act. The Chair explained that this clause prevented the landlord from unlawfully locking out a tenant or shutting off utilities to rental housing property. She felt that this was fair.
The Chair said that the Committee’s discussions on the Bill were not completed. The purpose of the meeting had been to familiarise members with the ambit of the legislation. The main areas requiring further discussion were the amendments to Sections 9, 13 and 15 of the Act.
Mr Schneeman proposed that the parliamentary researchers should investigate how other tribunals dealt with the issue of absenteeism of the chairperson and deputy chairperson. These would include tribunals in other sectors, as well as rental tribunals in other countries. He suggested that they looked at the Netherlands and Norway, as the Committee had visited these countries.
Adoption of Committee Minutes
Although the Committee had been scheduled to adopt Committee minutes, they only adopted the minutes of 2 and 3 May 2007. This was because there were too many errors in the minutes and members therefore felt that the Committee secretary should revise the rest of the meetings’ minutes, taking into account the comments and suggestions made by the Committee.
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