Draft Housing Development Agency regulations: Departmental briefing

NCOP Public Services

11 September 2012
Chairperson: Mr M Sibande
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Meeting Summary

The Department of Human Settlements (DHS) and Housing Development Agency (HDA) attended to brief the Committee on the draft regulations framed in terms of section 23(1) of the Housing Development Agency Act. These essentially dealt with a number of technical issues around the composition and meetings of the Board of the Agency. The draft regulations had been published in the Government Gazette, two comments were received, and the regulations were now, as prescribed in the Act, being presented to Parliament. They had been presented to the Portfolio Committee in the previous week.

Members voiced their unhappiness with the regulations and the consultation process. Firstly, they asked whether the DHS had held any broader consultation, and whether it had consulted with the provinces. DHS conceded that it had not. They commented that publication in the Government Gazette, although this was prescribed, really did not have the effect of reaching people on the ground and it was vital, for issues such as land, that the public be properly informed and be given the chance for feedback. In regard to the regulations themselves, Members noted that the Minister “must” prescribe regulations, and yet these were being drafted for the first time only three years after the HDA had commenced its operations, which begged the question of how it had been operating so far. DHS conceded that it had not monitored the HDA properly but was now, at the behest of the Portfolio Committee, compiling a report on its operations and activities. Members also asked why the regulations did not address issues in terms of section 32(2), which were strategic matters that lay at the core of the proper implementation of the legislation. They pointed out that two regulations were missing from the presentation, and that it was possible that two others may be unnecessary since their content may already be outlined in the principal Act. They also wanted to have sight of the comments submitted to DHS. They took issue with a comment by the HDDA as to “future” actions, pointing out that many of the challenges should already have been addressed, and were also critical of the fact that not all details were available, commenting that this pointed to lack of proper preparation. They were critical of the fact that the reasons why these regulations were not addressed prior to now were not properly explained, and demanded a full explanation of the budget to date. Members asked for a written report within 14 days and were adamant that DHS must monitor and manage the HDA properly. The DHS conceded that it should consider a broader consultation process, and said that this was a flaw in the past.

The Committee adopted minutes of 4 September 2012.

Meeting report

Draft Housing Development Agency Regulations: Department of Human Settlements (DHS) briefing
Mr Khwezi Ngwenya, Legal Advisor, Department of Human Settlements, presented the draft regulations that were drawn under the Housing Development Agency Act (HDAA) of 2008, and reminded Members that this Act mentioned the instances in which the Minister of Human Settlements (the Minister) was empowered to make regulations. The present set of regulations were based on the empowering provisions in section 32 of the HDAA.

Mr Ngwenya stated that the Housing Development Agency (HDA or the Agency) was primarily set up to acquire and release state and communal land for residential and community purposes.

Section 32 of the Act allowed the Minister, after consultation with Parliament, to make regulations on various aspects as meetings of the Agency Board, venues, quorum, adjournment, chairpersons, and how decisions were to be made. The Act compelled the Minister to consult with the Agency and Parliament. The consultation with the Agency had been finalised, and the draft regulations were published in the Government Gazette. Two comments had been received. The next stage of the process was the consultation with Parliament.

Mr Ngwenya said that the content of the regulations covered the following:
- Definitions
- Meetings of the Board
- Notices of meetings
- Quorum
- Adjournment
- Persons presiding at meetings
- Decisions
- Minutes
- Teleconference meetings
- Resolutions
- Execution of documents
- Proceedings of Board
- Offences and penalties
- Short title

Mr Neville Chainee, Acting Chief of Operations, DHS, said the regulations were only presented for consultation and comment. If the Committee felt there was a need to take anything further into consideration, that would be done. The regulations had been presented to the Portfolio Committee.

Ms P Themba (ANC Mpumalanga) asked DHS to elaborate on the consultation process and whether anyone was consulted other than Parliament. She said she wanted to establish if South Africans at large were aware of the regulations.

Mr M Jacobs (ANC Free State) sought to understand the reasons behind the introduction of the regulations. He also sought clarity on other sections of the Act that needed to be amended.

The Chairperson commented that the Housing Development Agency Act stated that the Agency had the mandate to facilitate the acquisition of land to complement the work of Government. The regulations were important to help the Agency carry out its mandate. However, he was concerned that all of these regulations dealt with matters under section 32(1) of the Act, which were essentially procedural aspects of meetings. The regulations should have dealt with issues under Section 32(2), which were the strategic matters that lay at the core of the proper implementation.

He pointed out that regulations 10 and 11 were not contained in the presentation. He also commented that regulations 6 and 13 might be removed, as their content was already provided for in the principal HDDA. He also asked that the substance of the two comments received should be outlined, and the Members told what sort of issues had been raised. He asked for comment on the consultation process.

Mr Chainee requested that the Department be allowed to give a later, more comprehensive presentation on the substantive regulations in relation to Section 32(2). The HDA had now been in existence for three year. The DHS had requested a strategic review of the Agency's performance, with a particular focus on issues as weaknesses, strengths, and compliance. The question of what was of particular hindrance to the Agency, when trying to deal with the provinces, would also need to be explained.

Mr Ngwenya replied that the consultation process was informed by the primary legislation, and the necessary steps had been followed. The legislation stipulated that the Department had to consult with the Agency and Parliament. The Department had published the regulations in the Government Gazette so that the general public would be aware of them, and raise comments for consultation. There had never been a general consultation process with all stakeholders and the provinces, since DHS generally only confined itself to what was prescribed in legislation. However, in fact, the DHS had gone further than what was prescribed, since it had consulted with provincial counterparts through the legal forum within DHS, which generally attended to legal matters and new pieces of legislation in the sector. It was hoped that the provincial bodies would inform their respective provinces when regulations were raised at the forum. He said MinMEC, the meetings between the Minister and MECs was informed and there had been an open consultation process with the public.

Mr Ngwenya added that the procedure followed for regulations was slightly different to amending legislation, and confirmed that the DHS was not amending the HDDA but was giving effect to the Act’s provisions that the Minister draft and present regulations. The process was still at consultation phase.

In answer to specific questions, Mr Ngwenya then said that Regulation 13, on offences and penalties, was noted and this point had been raised by other stakeholders. Regulations 10 and 11 were missing as a result of a printing error.

Ms L Mabija (ANC Limpopo) and Mr Jacobs requested further explanations on the consultation process.

Mr Jacobs also wanted to know what necessitated the new regulations and whether there had been deficiencies with prior regulations.

Mr Ngwenya replied that the whole purpose of the regulations was set out in the HDDA. He explained that there had never been any regulations developed, after the HDDA was passed in 2008, and this set of regulations therefore sought to regularise that position. Section 32 of the Act clearly stipulated that the Minister "must" draw regulations and it was clear that the Minister did not have any discretion not to do so.

Ms Themba commented that she did not agree that important information should be published in the Government Gazette only, and it was likely that this notification would not have reached the general public, but only the privileged. She did not think enough had been done to enable comment from the rural population, and this should be the aim, with all development matters. She believed DHS would have to start afresh so as to accommodate the public.

The Chairperson said Members were correct that consultation on issues pertaining to land ought to be broader. However, negotiated settlements, and the fact that various departments owned land, made the issues quite complex.

The Chairperson asked if the HDDA had started with the review of its developmental objectives, and if so, what processes it followed. He wanted to know the role of provincial legislatures, the National Council of Provinces (NCOP) and Parliament as a whole in those processes. He asked to have sight of the comments submitted to DHS.

Mr Chainee replied that the DHS would have to consider a process of broader scope of consultation. He agreed that wide consultation was even more critical when dealing with issues such as land. It was a flaw in the process, and the DHS had tended to be too limited in its consultation.

Mr Ngwenya replied that if it was the feeling of the Committee that consultation needed to be broadened with provinces, that would be done. A Committee itself could decide to take the matter to the provinces and conduct public hearings, and in fact Members were in a better position than the Department to engage intensively with communities, but the DHS would proffer support if Members wanted to engage in that process.

Ms Mabija interjected and said it was incorrect to imply it was Members’ role to engage with communities, and clarified that it was not up to the Members to visit the provinces.

Mr Ngwenya clarified that what he meant was that the DHS should lead a wider consultation process, but that this be done jointly with Members, because he had found in the past that Members wanted to take issues to their constituencies. The Department would off course consult.

Ms Rashieda Issel, General Manager: Corporate Services, HDA, noted that the HDDA e Agency submitted quarterly reports to the DHS, setting out its challenges, such as time it took to acquire land. A new Board was in place at the Agency, and in future there would be a legal team as well.

She said there were twelve signed implementation protocols with provinces and departments. Although there had been engagement with the provinces there were some difficulties when officials changed, as that prolonged the process of acquiring land.

Mr Z Mlenzana (COPE, Eastern Cape) commented that it was a contradiction if the Department was saying, on the one hand, that it must act strictly in terms of what the legislation prescribed, and, on the other, that it expected broad public comment on the regulations. DHS had to implement what was in the legislation.

Mr Jacobs pointed out that the HDAA was passed in 2008. He wanted to know why there was such a long delay in introducing the regulations.

Ms Mabija suggested that information on the provinces where there had been engagement must be forwarded to the Committee, and Members could then perhaps assist in resolving some of the challenges.

Mr D Feldman (COPE Gauteng) wanted to know if were there any financial implications.

The Chairperson commented that the consultation process could help solve many of the challenges. However, he was also concerned that the Agency had already been in existence for three years, and had been given a lot of money to carry out certain functions. It should already have done so, and, at the very least, it should have a risk management plan for assessing and monitoring the institution. He was disturbed by the apparent postponement of matters to “the future”.

Ms Issel said she could not recall using the phrase ‘in future’. She clarified that the Agency had appeared before the Portfolio Committee in the previous week and was give a deadline to report back on the regulations and a couple of other issues. The DHS was in receipt of correspondence that dealt with how to move forward on the regulations. The new Board was looking at strategies to overcome the challenges, especially those relating to funding, and acquiring state and privately owned land. HDDA had identified 6 250 hectares of suitable land

Ms Themba wanted to know what was being done about the challenges. She commented that often government officials would sit for long periods with challenges that they made no attempts to address, only raising them when questioned in Parliament. She wanted to know if there were blockages that obstructed the work of the Agency.

Mr Chainee replied he had noted all the issues raised by Members, and DHS and the HDDA would formulate responses in a comprehensive report. He also added that DHS would now go back to communities and do more public consultation. DHS took full responsibility for the delays in drafting the regulations.

Mr Chainee replied there were financial implications to all the work of the HDDA, but everything DHS did was premised on land availability. A lot of money was provided for land purchase. A substantial rand amount went into the 6 250 hectares that the state owned. DHS took the HDA seriously and had budgeted R98 million for the financial year. DHS would be giving a presentation on the performance of the HDA, and give the exact figures spent on acquiring land.

Ms Issel apologised for giving the impression that the HDA was doing nothing to address its challenges, but had not known that she would be required to give a detailed presentation on these.

The Chairperson wondered how an official could come unprepared to a Parliamentary meeting.

Ms Themba agreed and said that if the terms of the invitation were not clear, they should be clarified before the officials came to Parliament, and the HDDA should not simply accompany the DHS without having information to share with the Committee. She stressed that Members were representing and had to report back to their provinces.

Mr H Groenewald (DA, North West) thought that the name of the Agency should be “Human Settlements Development Agency”, and he wondered if it would be more effective if its name were changed.

Mr Jacobs said he was not satisfied with the reply to the question on the delays in putting regulations in place. He understood the role of the DHS as well, but pointed out that no specific answer had been given as to what had been happening since 2008. It seemed that nothing had happened to date. The DHS had not been monitoring the HDA and it was unacceptable, in his view, for DHS to say only now that it would sit down with HDA, as it had been failing in its duties.

Mr Feldman said the money budgeted for the HDA worried him, as it appeared that for three years it had been wasted. He requested that the Committee be furnished with information on the budget of the HDA.

The Chairperson commented that DHS need not reply; it had conceded that there had been a problem and had promised to meet with the HDA and give a report. He asked that the Committee be furnished, within 14 days, with a written response. He also reminded DHS that the Committee still awaited a reply to a question asked in a previous meeting about an Ermelo Farm that was sold to different owners, with the asking price being inflated from a few thousand rands to over R13 million.

The Chairperson was insistent that the DHS must prepare itself properly prior to coming to Parliament. This was the reason why the Committee insisted on senior officials, who could give answers, being present. He also asked that the HDS must indicate how long it would take to correct the issues relating to HDA, and noted that DHS must monitor and manage the HDA properly.

Adoption of Minutes
The Committee adopted the minutes of 04 September.

The meeting was adjourned.


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