Human settlements matters: SA Human Rights Commission & Public Protector briefings

Meeting report

Opening remarks
The Chairperson said the Committee appreciated the gesture by the Chapter 9 institutions, the South African Human Rights Commission (SAHRC or the Commission) and the Public Protector (PP), in honouring the Committee’s invitations to brief the Committee on human rights issues in human settlements. These institutions complemented Parliament’s work of oversight on issues of service delivery. Parliament needed to ensure the Constitution was upheld. She noted the presence of the Department of Human Settlements (DHS or the Department).

Human Settlements Human Rights issues: South African Human Rights Commission briefing
Adv Lawrence Mushwana, Chairperson, South African Human Rights Commission, said the Commission was tasked with ensuring that issues of socio-economic rights, including housing, were dealt with progressively. There were several housing issues. SAHRC hoped this interaction would be followed up with others, and said that time was needed to interrogate issues.

Some issues required political intervention and that necessitated guidance from the Committee. He identified migration from the African continent and the internal movement of South Africans around, and to, the cities.

Mr Karam Singh, Head of Research, SAHRC, said each year SAHRC required relevant organs of state to provide information on the measures taken to realise the rights contained in the Bill of Rights. This was specific to the range of economic rights. This work was divided into three categories: research, legal work, and advocacy.

The SAHRC had found that upgrading of informal settlements had become synonymous with evictions. It was found that there were challenges around a variety of issues like legal ownership, where residents claimed ownership without title deeds. This raised issues around security of tenure. Other issues involved the location of new settlements, particularly their proximity to economic opportunities, the accreditation system, particularly for poor municipalities and the rights-based approach to service delivery. Housing issues specifically related to service delivery, quality of housing, poor workmanship, fraud and corruption, and the demand database.

Although Census 2011 showed that 70% of households had access to sanitation, this was not enjoyed by all provinces. The Eastern Cape and Limpopo showed the lowest delivery on this aspect. The bucket system was still prevalent in Free State and the Western Cape and there were significant problems around infrastructure, broken toilets, and broken pipes and sewerage in the streets.

One of the issues that came out of the investigation related to the lack of a human rights-based approach in relation to service delivery, and toilets that were inaccessible to the vulnerable groups. Sanitation was an important issue as well in schools.

In 2009, the SARHC had sent a questionnaire to all departments, and the Department of Human Settlements (DHS) provided a comprehensive submission. This had been accompanied by a presentation. However this Department did not respond to recommendations. He complimented the Department for the cooperation it had provided the Commission.

The majority of complaints around housing in this financial year were registered in the provinces of Gauteng and the Eastern Cape. It was possible that the number of complaints received was indicative of access to the offices of the Commission. There had been a sharp rise in the number of complaints received in Mpumalanga as well.

In 2010, the Commission received two complaints from Makhaza and Ramaloutsi, both dealing with unenclosed toilets. In both cases the Commission found that the municipalities had violated the citizens’ right to dignity. This underscored the responsibility of municipalities to enclose the toilets.

Additional matters related to the lack of water service for sanitation purposes in the Free State. The Commission had found a prima facie violation of the rights of dignity, privacy, housing, health, a clean environment and access to information. These was the kind of bundle of rights the Commission implied when talking about a rights-based approach.

There were complexities around proper procedures to follow for evictions. There had been unlawful municipal measures to evict, including disconnections of water and electricity. There was even a report on a farmer who removed a roof structure, thereby forcibly removing the occupants.

Findings on the Makhaza study indicated that the majority of residents had access to sanitation on their stands. However the main barrier to access was dysfunctional infrastructure, and poor quality of the unenclosed structures that leaked. There also was a challenge around safety and security in these structures, especially during the evenings, and particularly for women, the disabled and children.

The Lenasia matter received a lot of media attention last year. The Commission sought to stop the pending evictions and demolitions. Both Government and residents agreed to an amicable solution and there was a strong intervention from the Department. The Commission made a recommendation for a Lenasia Implementation Plan.

The Commission’s recommendations in various reports included emergency accommodation to those without shelter and access to resources. The location of new settlements must be considered in conjunction with access to economic opportunities and access to other services. An audit was required to assess the security of land tenure in townships and settlements. Government needed to ensure that all settlements were compliant and following a rights-based perspective.

He noted that there should be full engagement prior to the relocation and evictions of communities. The Commission also advocated that the upgrading had to be done on-site. There was recognition that the state could not be the only source of housing, and that private contractors should comply with the law and regulations. Greater transparency was required around decision making and the awarding of tender contracts.

Adv Mushwana commented that Commission had committees to advise in helping identify focus areas. Each year the Commission identified an area where violations of human rights were committed. A committee of experts from civil society and non-governmental organisations would be formed, with the purpose of advising the Commission.

The Lenasia matter raised a number of issues, especially since the Commission’s intervention was preceded by a court order. The SAHRC was not seeking to oppose what the court had ordered, but had intervened because of the manner in which the demolitions were carried out. He explained that where a demolition order was granted, it was necessary to ensure that the demolition would not leave people homeless, and it was also necessary to check if disabled people or children would be affected.

The Commission found that there were children affected by the Lenasia demolitions. There had been no preliminary investigation on the conditions prevailing and no assessment of the impact that demolition would have on the people. Some people were poor, and probably would have wanted some of the materials to go and build a property elsewhere. The legal correctness of the intervention was regulated by the Constitution, and the Commission could intervene where there was a clear indication that there was a human rights violation.

Adv Mushwana noted that there was a lot of land lying fallow, yet people waited a long time before being allocated stands where they could build. Some people had money, and did not understand why it was necessary to wait for so long. There were a lot of illegal occupants in Lenasia and there was now work being done, together with DHS, to identify syndicates who had defrauded people. Some people were not aware that they had been defrauded, as some of the syndicates were working internally from the DHS. All those involved in the discussion needed to be proactive in addressing the challenge. The Commission was privy to what the Department was doing to try to apprehend the fraudsters.

Ms Pregs Govender, Deputy Chairperson, SAHRC, commented that the Commission would want to hear about the progress on the recommendations of the Makhaza toilet saga, especially relating to the eradication of the bucket system. She sought clarity on sanitation as set out in the Millennium Development Goals, commenting that DHS appeared to be deliberately shifting the timeframes and targets.  

Ms Govender also gave some clarity on the linkage the Commission made between specific responsibilities of municipalities to enclose the toilets, and the need for Government to respond in a systemic fashion to what was happening in the country.

The Presidency, through the Department of Monitoring and Evaluation (DME), was requested to undertake a study on sanitation throughout the country. The report was presented to the Commission last year. In 2013, a report was expected on specific questions of budgets, capacity building, training, redress, and questions around tender corruption.

She commented that despite the requirements that contractors and issues of bidding be made public, this was not done. Another concern during oversight was the cooperation of government departments. She said she was aware that there were still some problems as to which government department should administer the function of sanitation. The question was, however, to see how the whole of government cooperated to ensure that human rights, enshrined in the Constitution, were upheld.

DHS faced historic issues of apartheid era spatial planning, which had destroyed communities and it was now necessary to see how housing and building communities could be linked.

The SAHRC sought clarity on litigation processes and wanted to assess how effective were the state’s responses and responsiveness when challenges occurred, in an attempt to avoid litigation.

Discussion
Ms G Borman (ANC) commented that the findings by the SAHRC confirmed what the Committee had discovered on the ground. One of the frustrations that Members had was in getting quantifiable information. The figure of 2.2 million backlogs never changed.

Ms Borman asked for clarity on the Lenasia matter. The houses demolished were empty, and it seemed that they were specially selected on that basis. She asked how the DHS had responded to the SAHRC statements.

Ms Borman sought clarity on the funding for sanitation. The Rural Housing Infrastructure Grant (RHIG) was set up to fast track sanitation infrastructure, and yet this was the third year running where under expenditure was apparent on the programme. The latest report indicated there was only 16% expenditure so far and the amounts under-spent were considerable.

Mr S Mokgalapa (DA) commented that the meeting needed to discuss the impact of the Prevention of Illegal Eviction (PIE) Act. This piece of legislation seemed troublesome, and blame would be variously ascribed for the lack of implementation, or lack of understanding as to how this Act should be implemented. He asked for an indication of what impact this Act had. In one of the slides, it was noted that there should not be legislation that permitted eviction and that seemed to speak directly to the PIE Act. He wondered how it could be improved. The mushrooming of informal settlements was a resultant effect.

Mr Mokgalapa commented that the local government and departments needed to understand the role of the SAHRC as a Chapter 9 institution. It appeared that most of the recommendations SAHRC put forward were not adhered to, and he asked for comment on this perception. He also said when the Commission visited communities, an impression was created that community issues would be resolved by the Commission itself. It was sad that provinces, departments and municipalities ignored these recommendations, and this was even more troublesome given the fact that public funding was financing the findings.

Mr Mokgalapa wanted to know if the Commission also considered the precedent approach in its findings. He said the Lenasia issue was a case in point and commented that this was a complex issue that could be described as “legalising the illegal”. What happened in Lenasia was partly due to government’s failure in addressing the gap market issue. In Lenasia, people generally had the money to buy the stands, and build their own houses, so they fell within the gap market. Land was available but it was not being adequately used to address the housing challenge. He also requested clarity on why there was a particular focus on evictions on private land, and not on both public and privately owned land.

Mr K Sithole (IFP) wanted to know if the Commission adopted a proactive or reactionary posture given the fact that the demolitions in Lenasia had been pending since 2002. He asked for comment on what the role of the Commission was, once findings and recommendations had been made.

Ms P Duncan (DA) commented that these findings were not new to the Committee. Although DHS was responsible for monitoring and evaluation, provinces and municipalities were central to implementation. She said DHS provided about 90% of funding to these spheres of government and needed to play a stricter role when monitoring.

Ms Duncan said there was a need to look at the spatial development framework of municipalities as this was not taken seriously. This was a public participation process. There had to be other means to make information available to communities about spatial development frameworks. She concurred that the apartheid era planning problems were still showing an impact on the spatial development frameworks. The same challenges were experienced with the Industrial Development Plans (IDPs).

Ms Duncan asked how often, other than interrogating or giving comment on findings, the SAHRC consulted with the local and provincial sphere of government, and what was the extent of its advice on how things should be done, specifically in regard to its legislative responsibilities. She asked whether it actually followed through on the advice, or whether it compiled reports on findings and moved on.

Mr R Bhoola (MF) commented that the Committee had a responsibility to provide homes. The demolition processes had to be done in accordance with legislation. The country had a huge responsibility. In a previous State of the Nation Address, the President had alluded to the provision of 400 000 security of tenure certificates.

Mr Bhoola wanted to know if departmental officials found to be corrupt were criminally charged. He commented that it was important to undertake a comprehensive analysis of the relevant pieces of legislation pertinent to housing provision. When all this was done, it would be important to align the work of the Department and understand what it was that caused the delays. In addition, such a step would ensure that once cases of fraud were brought against individuals, they would not be dismissed by the court for technicalities.

Mr M Matshoba (ANC) commented that findings on the bucket system eradication needed to mention the Eastern Cape, as some districts of the province, like Amathole, Nxuba, Adelaide and Bedford still had this system, in addition to the cases in Free State, Western Cape and Mpumalanga.

The Chairperson said the function of sanitation had long ago been declared by the President as one that resided with the DHS. However, effecting the full transfer of the function was a weakness, and had resulted in confusion. Statements made by the President should be acted upon since departments were not taking the President seriously on the matter.

The comment that the sanitation function should be taken back to Department of Water Affairs (DWA) was disturbing. The DHS had already done a lot of work on the area of sanitation. She wondered why any other body would recommend that the function be transferred to DWA. The only person to make a proclamation was the President and, once such directive had been made, officials needed to implement. DHS had the ability to deliver on the function and the Committee would see to it that the President’s directive in this regard was implemented.

The Chairperson commented that the Commission had answered a lot of questions on which the Committee had been seeking answers. The PIE Act prescribed a period of 72 hours notice of eviction, but in the case of Lenasia it was more than seven years between notification and removal. She asked what the Department had been waiting for. The information would assist in monitoring the situation in Lenasia.

The Chairperson said the Committee started dealing with sanitation when it was first made a government priority. The Committee got down to the work at grassroots. She reiterated that the initial recommendation about the transfer of the sanitation function back to DWA was disturbing, but she was pleased that the Deputy Chairperson had clarified the matter. The problem was that departments were ignoring a directive from the President.

The SAHRC gave a composite response, and Adv Mushwana commented, at the outset, that the issues raised were not necessarily questions to be answered but a directive of where focus needed to be given. The Commission itself was not satisfied hat it had done enough. The Commission was short of one commissioner to head the special committee on this particular area, and, as a result, the Chairperson had to take care of it.

Adv Mushwana noted that the Committee had been aware of the issues for some time. However, there had to be some way found to move on. Institutions kept compiling reports and making findings and recommendations, and yet nothing happened. This was critical. Each year, the Commission tried to have a focus area to which most of its resources would be specifically directed. In the current financial year the focus area was human settlements and sanitation, and next year the focus would be on food.

The Commission had planned a bigger report, and would launch at the end of March. This followed the countrywide public hearings and workshops that were held.

Adv Mushwana reminded Members that the SAHRC was extremely concerned that many departments failed to act when the SAHRC had made recommendations. The SAHRC had no powers to enforce, but only the power to make recommendations.

Adv Mushwana commented that the laws contradicted one another, to the extent of even confusing officials. The Commission needed the parliamentary committees’ support, more especially when the departments were not responsive to recommendations.

Adv Mushwana commented, in respect of the comment that Lenasia was perceived as “legalising the illegal” that the role of the SAHRC had been misunderstood, in the case of Lenasia. The court papers lodged by the SAHRC did not even mention issues of legality, but just sought to establish the facts around evicting people and then demolishing their properties. He commented that some of the houses demolished in fact did have people living in them. There had been some individuals who had built beautiful properties there, whilst others built small houses. Some of the people believed that the land sales to them were genuine.

The SAHRC was making an assessment of how each of the properties was acquired and this would also help in assessing whether individuals could be compensated. The exercise would help identify those cartels who were involved in the matter. It was on this basis that the Commission was participating in the process, as the Commission needed not to be active participants in the saga itself. The Commission could not protect illegality, but it also had to guard against acting illegally itself. There were many humane ways that could be found to deal with the situation.

The question that somebody needed to answer was where government oversight had been when these houses were built. There were also questions around whether similar incidents were also happening elsewhere in the country. This was a very serious indictment of government institutions.

Adv Mushwana said there were a number of instances where courts had provided guidance when giving an order for demolitions. However, some of the decisions were sometimes contradictory. It would not help now to argue about whether there were occupants in the houses in Lenasia; SAHRC had consulted with the municipalities when it had made those findings. Instead, there should be a focus on finding solutions.

Ms Govender commented that the Commission would follow the issue of a recommendation about transferring the function of sanitation back to DWA. The key concern was prioritisation of the function, and not which department administered.

Ms Govender said that the comment that the SAHRC tended to be reactionary, as well as questioned about its role after making findings were perhaps best contextualised by referring to the Makhaza and Ramaloutsi toilet sagas. SAHRC adopted a systematic approach where it looked at the municipalities’ roles. It was found that the municipalities concerned had to enclose the toilets in a way that ensured dignity; privacy and clean environment. A finding in the case of Makhaza was also made that the DHS had to provide a report on progress in relation to the eradication of the bucket system. In the case of Ramaloutsi, a finding was made in respect of the Presidency and the Department of Performance Monitoring and Evaluation (DPME) that a progress report on sanitation provision across the country had to be drawn.

Once that report was received, claiming that 16 million people did not have access to sanitation in the country, hearings were scheduled throughout the country with poor communities. Local, provincial, and national governments were invited to those hearings. Prior to the hearings there were site inspections in Zwelethemba township, in Worcester. Meetings were also scheduled with local councillors. The National Government was requested to be attentive and responsive to the issues that communities raised on sanitation. The provincial offices of the SAHRC followed up on the government responses. There was quite a systematic approach followed. SAHRC always sought to be proactive and that was why it had taken the systematic approach in recognition of the fact that sanitation posed a challenge not only for specific municipalities, but throughout South Africa. Accountability was required at the highest and lowest systems of governance to deal with sanitation issues. DPME brought together all the relevant departments to be able to address issues raised in that report.

She added that further hearings were scheduled for the 19 March, at the Pan African Parliament. The Committee and DHS’s Director General were invited.

Mr Karam added that the nature of work done by the SAHRC could be both reactive and proactive. SARHC received legal complaints, and here it work in investigating would be reactive. However, its advocacy and research work were proactive in nature. He said the point about evictions by private companies emphasised that the private sector was another actor in the area of human settlements and their actions needed to be informed by the rule of law.

Department of Human Settlements comment
Mr Thabane Zulu, Director General, Department of Human Settlements, commented that the Department welcomed the observations. One of the key mandates of the Commission was to inculcate a culture of human rights, and that involved not only briefing Parliament but also educating officials on human rights issues. He urged that the Committee should not sight of the very important step taken by government in broadening the portfolio of the former Department of Housing into the Department of Human Settlements.

Mr Zulu said the Department had previously presented to the Committee the steps taken to take the new mandate forward. Most of the issues raised by the Commission were issues that revolved around how the mandate and housing delivery models should be considered.

DHS’s turnaround strategy was, for instance, in line with one of the recommendations by the SAHRC on developing new settlements that were easily accessible to economic opportunities. The turnaround strategy tried to ensure that delivery of housing projects was done in that context. It was no longer considered viable to construct human settlement projects in areas that were remote from centres of economic activity, or where there was no clear plan that ensured fundamental basic services.

One of the key components, when interrogating business plans, was to ensure that every human settlement project reflected provision of bulk services. This was a fundamental philosophy enshrined in the turnaround strategy. DHS was moving in the same direction as the recommendations of the SAHRC.

It was important that those responsible for implementation did not shy away from their responsibilities to the human rights ethos; whilst this was peripheral to the core mandate of the Department, it must be observed. The DHS intended to introduce the culture of human rights within the human settlements perspective.

Mr Zulu said it might be a good idea if a similar presentation was done at MinMEC, the forum at which provincial Heads of Departments (HODs) and MECs sat. This would help them understand certain aspects of the findings by the SAHRC, and would also address the level of frustration that the Commission had about its recommendations not being taken seriously.

Mr Zulu said government had put in place a master plan on sanitation. The implementation of sanitation was fragmented as there were different role players in the same area of responsibility doing different things. Department of Water Affairs was responsible for the provision of water within the function, whilst DHS looked into the provision of the service in rural areas. Local government was also responsible for the provision of sanitation through the Municipal Infrastructure Grant (MIG). The Sanitation Master Plan meant to deal with this matter by providing an integrated approach to the provision of sanitation.

It was true that the level of cooperation among departments was not where it needed to be. The nature of the function of sanitation made it vital that departments cooperated. There was no way the mandate of human settlements would be realised without cooperation. He described some of the structures that were being put in place to address cooperation. Already last week three Directors General, from the Department of Social Development (DSD), Department of Rural Development and Land Reform (DRDLR) and DHS – had met to discuss cooperation, in recognition that it was fundamental.

Mr Zulu added that some of the information that had been requested would be forwarded to the SAHRC by Friday.

Mr Neville Chainee, Deputy Director General (DDG): Strategy and Planning, Department of Human Settlements, said that during the finalisation of the Lenasia Framework it was made clear that the Department and the SAHRC were not adversaries. He suggested quarterly meetings with the Commission to report on progress made on recommendations. The Department had a policy that was consistent with the human rights ethos, but it was acknowledged that it was lacking in implementation. It would be incorrect to imply that DHS condoned evections or had a blatant disregard of frameworks.

Mr Chainee said a perfect example was Makhaza. The toilets here had not been consistent with the standards contained in the national housing code. DHS standards were consistent with human rights and required that they be taken into consideration at all times. The Department even funded the corrective measures that were taken in Makhaza. He requested that the Department meet with the Commission after it had submitted the report. Sometimes a written report alone did not allow people to have an effective engagement.

Mr Chainee commented in-situ upgrading, as mentioned by the Commission in the recommendations, was sometimes inconsistent, because some of the informal settlements were badly located, and entrenched the exclusion of the poor from the economic activity centres. He commented that there had been preparation, by Department of Cooperative Governance and Traditional Affairs, of a comprehensive report on the four Millennium Development Goals (MDGs) that concerned human settlements.

Mr Chainee said the state’s responsiveness to the rights of the poor was taken seriously by the Department. A lot of money in the form of grants was being pumped into the cities, to try to address challenges faced by poor dwellers.

Adv Mushwana requested that the Department address the issue of under spending in the report that would be forwarded on Friday.

Ms Govender also said that a response on the sanitation findings, especially with regard to the eradication of the bucket system would also be included. She commented that the Commission was in favour of holding regular meetings with the Department. The discussion needed to address issues such as the concurrent responsibilities pertaining to sanitation, and the impact that had on implementation. She noted that poor people did not care what department or sphere of government dealt with the issues as long as they were addressed. Other specific questions to be addressed at the discussions should be how long an informal settlement should remain informal, the low levels of services offered to the poor, and how DHS equipped local government so that it could understand its legal obligations.

Ms Borman requested that the responses provided to the Commission should also be forwarded to the Committee.

The Chairperson commented that the Committee needed to engage with the Commission on the pieces of legislation that contradicted each other. These laws needed to be discussed and rectified by Parliament.

Public Protector presentation
Adv Thuli Madonsela, Public Protector, said she hopped to give Parliament preliminary observations on the systemic investigations into Reconstruction and Development Programme (RDP) housing. She explained that when the office of the Public Protector was flooded with complaints of a similar nature, it normally conducted systemic investigations to determine the root cause of the problems, and assess accountability for specific wrongs. During the 2011/12 financial year, about 10% of complaints received related to maladministration pertaining to the delivery of low cost housing.

She noted that until such time as it was finalised, the report of the Public Protector contained observations and not findings. The Office of the Public Protector (OPP) had hoped to finalise the report by 31 March, but could not do so because the task was so massive.

She commented there was confusion as to whether the OPP would take remedial action once it had made recommendations. It was on rare occasions that remedial action was implemented in South Africa, although in New Zealand, a public protector’s office had existed for over 50 years, and there had never been an instance of non-compliance to implementation of recommendations. This was surprising, because the New Zealand offices only recommended remedial action, whereas in South Africa the PP would instruct departments to take action, yet even the instruction met with lack of compliance.

OPP did not only investigate and report, but it also intervened. Investigations only accounted for 5% of the budget. The work of the OPP was modelled on the Makhadzi institutions, whose standard approach involved investigations and appropriate remedial action. In the year 2011 alone, 2 000 complaints were received in respect of RDP housing. Because of the numerous cases, the OPP had decided to investigate a systemic investigation.

In the 2012/13 financial year, the OPP combined its annual stakeholder consultative process with public hearings, in respect of complaints relating to delivery of low cost housing. By July 2012, about 1 987 complaints had been received, and by February 2013 the number had risen to more than 5 000.

The complaints varied in nature. The investigation was designed in a manner that addressed complaints around planning inadequacies; procurement irregularities; allocation irregularities and post allocation challenges, as well as the time that it took people to move up the waiting list. The issues raised generally related to tardiness on the part of government institutions in the planning processes. Non-compliance with the Development Facilitation Act, which required that the objectives of land development should take into account the bulk services, was another problem.

In the Eastern Cape, complaints involved houses built without the provision of water and sanitation. In the Free State and North West, residents complained about approved projects which were never implemented, and blocked projects. The planning had not always factored in the rapid urbanisation, that, admittedly, was compounded by informal settlements that mushroomed overnight, and the implications that this had on proper planning.

The key problem in procurement related to the People’s Housing Projects (PHP), which placed the initiative at the door of beneficiaries, but was hijacked by developers, who sometimes performed shoddy work. The intention was good, but did not take into account the fact that most people were clueless about construction processes. Municipal inspectors abdicated their responsibilities to ensure that these PHP houses were built according to specifications. The beneficiaries, including elderly females, were required to sign letters that they clearly could not have understood, indicating their satisfaction that houses had been built according to specification (so-called “happy letters”), although the construction was technical and required engineers.

Another challenge was that beneficiaries had to report defects within six months. Many of the defects were structural. It was found that some houses were built without foundation and other instances where sub-standard materials were used. If the contractors had effectively cheated government by using materials cheaper than what had been specified in the tender, the contractor should be held accountable and should not be able to hide behind the six month window period. Houses with structural defects could easily be affected by weather.

She said also that there were perceptions of contracts being awarded to members of a ruling party. Complaints also included developers not following the same specification, as there was a need to standardise a basic house. There were also problems that most of the houses were not disability friendly.

The allocation of RDP houses was a thorny issue, especially to those who applied long ago. This had also become a major source of community conflicts. There had been allegations that some names had been removed from the lists and replaced by relatives. There were double and multiple allocations, where the same house was allocated to different beneficiaries. Some people said this was due to contractors, others said there had been administrative errors, and others said some councillors replaced them on the list. One such a case, where a councillor had allocated a house to a relative, was indeed found in Gauteng.

Another challenge arose when elderly people on the waiting list died. In these cases, there had been allegations that these houses were being sold by officials, even if beneficiaries came forward to claim them. The dependants, who were often indigent, were often told to apply for their own RDP houses, and this was confusing. Disabled people complained that they were not given priority when it came to allocation of RDP houses. In some areas people did not know where to apply for housing.

Post-allocation challenges included the failure of the state to ensure that title deeds were issued to the complainants, substandard structures, and illegal sale of RDP houses by the beneficiaries after allocation. The failure to register title deeds made people vulnerable because these houses could be stolen by anyone. However, a new trend was also emerging where people were given false title deeds. This should be dealt with by the anti-corruption agencies.

Adv Madonsela said the general challenges included the question of who should get priority when the RDP houses were being allocated. Young people were being awarded houses while grandmothers waited on the list. Another question to ponder was whether ownership of the houses, for the purposes of maintenance, should be left with government. There was an emerging group of elderly people without dependants and the question arose of what would happen to the houses when they died. In the case of young people who might enter the job market later and be able to afford houses, the question was whether they should be permitted to own, or merely to rent houses.

She noted that some other observations covered by the OPP included the need to give effect to the whole concept of human settlements, where provision of houses needed to be coupled with bulk infrastructure, the urban migration challenges, particularly the mushrooming of informal settlements; and failure to pay attention to geotechnical reports. Procurement related observations had included irregular award of tenders, poor vetting of service providers, alleged over-billing and false billings and poor quality assurance, leading to shoddy work. Observations in relation to the allegations on the complaints covered the long waiting time, poor management of waiting lists, fraud, double allocations and illegal sales, the mismatch between allocations of stands and built structures, and the needs of child-headed households. General observations included prioritisation of allocations, risk management, and compliance with Section 26 of the Constitution, especially around the issue of ownership for those earning below a certain threshold. There were infrastructure challenges in response to rapid urbanisation and informal settlements, and there was a need for standardisation of sizes of RDP houses.

Some provinces had conceded to the challenges, and relevant authorities would be requested to submit implementation plans for addressing the challenges. Many people at the DHS had good intentions, but there were still some who were harmful to the system. It was the state’s responsibility to sort those out. Investigations would be conducted and a full report would be issued on RDP housing challenges.

Discussion
The Chairperson requested that the Public Protector should make a few recommendations of what Members and the Committee could do in the future.

Adv Madonsela replied that there was a need to engage further with DHS about the extent to which the Department had picked up the challenges. DHS also needed to clarify the holistic approach it adopted in resolving the challenges. It was necessary also to speak with the National Council of Provinces, to look at what was being done where provinces had conceded wrongdoing. The value that the OPP could add was primarily in respect of cases where there had been tender irregularities, and issues of fraud, but where there were challenges and people needed assistance that should be done immediately.

The OPP would ideally like to see that where it had identified contraventions, a common approach was taken to address the situation. Some provinces reported they received reports from the forensic teams but these were gathering dust in some office, whilst others reported they had actually addressed challenges raised in those reports. Some provinces were not even collecting the money owed to the state. The State could not keep paying more for the problems as a lot of money had been used up in rectification. She recommended that stringent steps to recover the amounts spent on rectification should be taken against those responsible for the mistakes. Finally, she urged that there had to be a policy decision now on what must happen. If the Committee sat again in 2014 to consider contraventions committed in 2013, then it would have failed the country.

The Chairperson commented that the policy recommendation was critical as it was the role of the Members to deal with policy and legislation. The President had also stressed the issue of accountability. The main issue for the DHS was ensuring the President’s directive was implemented. Some of the issues raised by the Public Protector were policy-related and DHS had already been engaged on them. Hopefully, by next year, the issues would have been involved. She assured the PP that the Committee was engaging rigorously with the Department. Earlier in the year, a two-day policy workshop had been held to address legislation gaps and resolve issues. Other issues arose purely from neglect of duty, as there were systems and mechanisms in place. There was no reason why people should not get title deeds. This point had been taken up with provinces, but there remained challenges with the intergovernmental relations.

The Chairperson said she failed to understand why a house would be issued to a poor person without a proper support and follow up. DHS needed to ensure cohesion. This did not have to be a contentious process. Issuing houses was a constitutional obligation, to ensure people had shelter, in a proper and dignified way. It was “pathetic” if a department merely issued houses and took no positive steps to resolve the challenges later.

Ms Duncan sought clarity on the question of title deeds. She commented that there was an ongoing process. She wanted to know how the Public Protector could be used to investigate the municipalities. A title deed could only be given to a homeowner through a legal process and this meant municipalities appointed lawyers who dealt with title deeds. The Committee should ask the Public Protector to investigate all the 183 municipalities in the country, to see whether they had procedures in place to ensure people received their title deeds.

Adv Madonsela replied that the current process used to regulate title deeds was part of the systemic investigations. The suggestion that there should be an investigation into appointment of lawyers who dealt with the conveyancing process at municipalities was encouraging. The points raised were useful. She said that the OPP always welcomed suggestions as to areas that needed investigations.

Ms A Mashishi (ANC) commented that she had learnt much from this session about the challenges faced by communities. There was still a long way to go. She asked if recognition and disregard by departments of OPP recommendations was a challenge, as was stated earlier by SAHRC.

Adv Madonsela replied that OPP did not have any problems with recognition. Wherever the OPP wet, it did get cooperation, even to the extent that it had heard that some people even pretended to be working for the Public Protector, so that they would be listened to. She told a story of one person who successfully represented another who was fired from his post, but had raised suspicion in the municipality when he started making demands and claimed to be from OPP. OPP was now starting a process whereby all its investigators would be able to be verified.

Ms N Mnisi (ANC) commented that the reports were informative. The Committee should build something concrete out of the report. The challenges raised were policy-related, and Members, as legislators, should attend to them immediately, lest the problems be prolonged. Policies that sought to address these challenges were in place, but were not being implemented, and this was a major problem.

Ms Mnisi commented that the Committee had, during oversight, seen some of the houses without foundations and some with severe structural defects. This also raised questions about the role of the National Home Builders Registration Council (NHBRC). She asked for how long DHS should be rectifying poorly built houses. She said that clear specifications were needed in different provinces as to how an RDP house should look, with a uniform approach being adopted by government.

Adv Madonsela replied that the OPP was happy with the developments, as it now seemed that NHBRC was entrenched in the system. However, there were ways in which municipal inspectors were sidestepped. It would be important for DHS to ensure that whatever had been agreed to remained the bottom-line, with no deviation permitted. In some of the projects visited in some provinces she was satisfied, and it looked like the NHBRC would be the ultimate decision-maker on occupation of houses. Parliament needed to make sure that this was done and that nobody occupied a house without it first being inspected by the NHBRC.

Mr Mokgalapa commented that the Public Protector had given Members a food for thought. The volume of cases indicated there was a lot of public trust in this Office. He concurred with the Public Protector that there had to be immediate policy to address the challenges. It was important that such a policy address the question of who should get an RDP house. The comments about accountability were spot on. Rectification was wasteful and fruitless expenditure, and this was tantamount to building backwards. He commented that one province was only doing rectification, and had aptly labelled its projects “old-new projects” as it was doing nothing other than merely rectifying.

Mr Mokgalapa said legislators should think about ensuring that the existing Housing Act could be made more flexible, to address the current challenges. He wondered if it was really necessary to build RDP houses continuously and whether it was not time now to look at building rental stock and social housing, without neglecting the poorest of the poor.

Mr Mokgalapa commented that it would be interesting to see the final findings, as the report so far contained observations only. One of the challenges that all Chapter 9 institutions faced was with the implementation of their recommendations. It was critical that Parliament assisted these institutions, by ensuring that the public understood their roles. He said the 5 000 complaints received were overwhelming and they would not be finalised soon.

Adv Madonsela replied that the NHBRC quality-assured houses. People could go to the NHBRC when they had complaints with how their houses were constructed. The OPP had a role in reviewing NHBRC decisions, only in so far as it made decisions to resolve disputes. She said both the concerned individuals and the contractor could lodge complaints, if they felt prejudiced by the NHBRC.

She noted that the comment as to whether to rent or own was a policy decision that rested with government. It was not the OPP’s place to tell Government what to do.

Ms Borman commented, in respect of implementation, that different institutions came up with the same findings, but agreed that the challenge lay in implementation. She noted that the beneficiary list was a major concern. She related how she had recently been called upon to assist a poor woman in the Ethekwini municipality, who, after years of trying to get a house, had been told to erect a shack in order to get on to the lists. This was a sad indictment of the process of how these lists were being managed. Some provinces were still using housing lists, while others had scrapped those lists.

Failure to implement policies was an area in which it would be necessary for Parliament to intervene and enforce compliance. She said when she worked for Government in 1995, staff was not allowed to deviate from any processes, not even to buy a pen. The challenge now was that the focus had shifted to the outcomes, whilst the processes were being ignored. Parliament could ensure that rules were followed.

Ms Borman asked if any of the complaints received had cited instances where people were dumped in temporary relocations. Some people complained they had been left in tin houses since 2008. This was an area that the Department should address. There had to be a policy to regulate the length of time that people were permitted to remain in temporary structures.

Adv Madonsela replied that she was happy that Members had raised the issue of people having to first own a shack in order to get to the waiting list, and confirmed that similar problems had been raised also with the OPP. In previous years, it was true that shack-dwellers got priority. Government was trying to comply with court orders and shack-dwellers used the court system to get decent housing, and was then made into a priority focus. This gave rise then to the argument that the so-called backyard dwellers were disadvantaged, because they were regarded as individuals, whilst the shack-dwellers were regarded as a group.

She said that the OPP had not previously heard of a specific instance where someone was asked to go and live in a shack in order to be included in the list. Many issues had been raised about the lists, and where people applied. The challenges around the lists was something that the Department should be asked to speak to, and she particularly suggested that DHS be asked to state what it was doing to address anomalies. There had been many complaints from the owners of tin houses. Many people had been moved from tin towns, but some were still there, and it was not clear why they were still occupying those tin houses.

Adv Kevin Malunga, Deputy Public Protector, added that the PHPs, especially in the Western Cape, were a highly contested issue, and a source of complaints. People were saying that both provincial and national departments were abdicating their responsibility because they did not want to get involved. At the end of the day this led to confusion as to who should account. This was one issue where a clear policy framework was required. He said that if such a framework was in existence, it needed to be publicised, and made available in all languages.

Adv Malunga said another issue picked up during mediation related to the lack of uniformity of standards. People wanted to know exactly what they were entitled to, as this was not very clear under the frameworks.

Adv Malunga added that the OPP was empowered by law to review the decisions of the NHBRC. Since his appointment in December, it seemed that nothing had been happening with regard to the review power.

The Chairperson commented there would be friction between NHBRC and the Department on rectification. The contestation would arise because the Department understood that every unit in new projects had to be inspected by the NHBRC, and there could be challenges if the entity failed in its responsibility.

Department of Human Settlements comment
Mr Zulu commented that he appreciated the manner in which the assignment had been undertaken by the Public Protector. He agreed with the comment that the challenge lay in the implementation. The observations made were of concern, but there were solutions in the existing policy instruments.

Mr Zulu said that a crucial statement had been made that officials were outcomes-focussed and had at some stage forsaken the process. Challenges were the direct result of failure to implement processes that were clearly articulated in the policies. If officials had abided strictly to the specifications, as stipulated in policy, there would not be so many challenges. This confirmed the need for DHS to resource the project management unit that had been established. The unit was meant to ensure that thorough implementation processes were not compromised.

He concluded that DHS was looking forward to the final report, as it would give a clearer picture of the work that the Department had been doing.

Closing remarks
The Chairperson said Parliament needed to ensure that delivery happened on the ground. Chapter 9 institutions existed to support the work of Parliament and Government. The Committee would still invite Chapter 9 institutions to Parliament, as it needed their assistance in other areas like investigations.

The meeting was adjourned.