Housing Development Agency Regulations: input by Parliamentary Legal Adviser

Meeting report

Introduction by Chairperson
The Chairperson apologised for the late start to the meeting. The delay occurred because the Committee wanted to give time to the Committee Staff to provide copies of the new draft of the regulations to Members. The old draft had already been circulated but there had been certain changes which necessitated an update of the draft regulations.

The Chairperson told Members that the meeting was going to be a short one as the Regulations had already been presented to and discussed by the Committee.

The Chairperson stated that a lot of focus was required as the consideration and adoption of the Housing Development Agency (HDA) Regulations was the delegated task of the Committee. Regulations were part of legislation and the Committee had to make sure that before the House rises, the regulations were complete. The quality of the work to be done by the Committee was also very important.
The Department of Human Settlements had already made a presentation to the Committee on the Regulations and Members had familiarized themselves with the Regulations and had made comments. The work which was now left only concerned procedural issues as the parliamentary process had to be followed. This was the reason why the Regulations went back to the Department and now the Committee was going to receive input from the Parliamentary Legal Services.

Briefing by Parliamentary Legal Adviser
Ms Vuyokazi Ngcobozi, Parliamentary Legal Adviser, told the Committee that the changes which were proposed to the draft regulations were done in the form of track changes on technical, grammatical and policy issues. Ms Ngcobozi took the Committee through the changes proposed to the Regulations.

Introduction
The first change to the regulations was the removal of the name of the former Minister of Human Settlements from the introduction of the regulations and replaced only with the phrase “the Minister of Human Settlements”.

Chapter One
In Chapter One, the Parliamentary Legal Services proposed that the word “interpretation” should be deleted. This was because the chapter was dealing with definitions and not interpretations. In this Chapter, the definition of “Intergovernmental Relations Framework Act” was given. Some drafting and grammatical corrections were also proposed.

Chapter Two
On Clause 3(1), the Regulations provided that the Minister may, after consultation with Minmec, consider and approve a preliminary declaration of a priority housing development area. The Parliamentary Legal Services had asked what would happen if the Minister did not approve or give reason for non-approval. The proposal was that the clause needed to be improved.
On Clause 4, which referred to actions to finalise the priority housing development plan, Ms Ngcobozi suggested that timeframes for each step had to be clearly stated. She also noted that more clarity had to be provided on the participation of other Ministers.

Ms Ngcobozi referred to clause 4(4) and asked who the participating parties were and requested that it be clearly stated in the regulations.

Chapter Three
Ms Ngcobozi requested that the Department should explain the meaning of “landed property” as it was not defined in Chapter One which dealt with definitions.
On Clause 7(4), the proposal was that the Department had to state clearly for how long the agency could keep a record of any interest or objection expressed by a party affected by the priority housing development area. She asked what was to be done with the record.
A drafting and grammatical correction was made to Clause 9(1).

Chapter Four
Clause 11 related to funding the implementation of a priority housing development area. Ms Ngcobozi said that the Department was given strict instructions by the Committee to ensure that this provision was beefed up with all the details of funding. The clause had to state where the funding was going to come from, how it was going to be channeled for this purpose and which grant was the funding going to come from. In terms of Clause 11(4), funding and infrastructure had to be placed before the plan. The funding commitment had to be clear.

Chapter Five
Ms Ngcobozi stated that Clause 13(1) related to the coordination and monitoring of a priority housing development area. She recommended that the timeframes had to be specified. This same proposal was also made for Clause 14(2).

Chapter Six
In terms of Clause 21(1) relating to committees and support structures, Ms Ngobozi said that the regulations had to clearly stipulate the need to ensure that the community in which the development was going to happen formed part of the committee and support structures.

Chapter Seven
Ms Ngcobozi recommended that the entire Chapter 7 which provided for Offences and Penalties be deleted entirely as there was no empowering provision in the Act giving the Minister powers to regulate on offences and penalties. She said that this chapter breached the principle of legality.

Discussion
The Chairperson thanked Ms Ngcobozi for her input and called on Members to comment on the proposed corrections.

Ms P Duncan (DA) said that the input from the Parliamentary Legal Adviser made the Regulations look better. She expressed concern about the to-and-fro movements which the Department was doing with the Regulations. It was important for the process to be completed as soon as possible.

Ms G Borman (ANC) agreed with Ms Duncan that the current corrections and changes made were an improvement to the Regulations and the document was now more user-friendly. She further proposed two grammatical corrections.

The Chairperson asked why the title of Chapter 1 relating to interpretations was deleted. She said that the Department had to redraft the regulations to show more clarity on Clause 7.3. This provision provided that it would be and remained the obligation of a municipality to solicit and consult with the community in terms of the relevant legislation applicable to municipalities in regards to community participation. Community participation was a constitutional obligation and the provision had to be made clearer. The legislation and articles had to be very clear. It was important to note that regulations were very complex and the officials who were going to be implementing them at all the levels of government had to understand them well. She gave the examples of Integrated Development Plans in municipalities which were very good documents but many local government officials were still struggling to understand and implement the plans.
In terms of funding commitments, there had to be other Ministries participating and the Department of Human Settlements could not cope as it was overstretched. In this regard, limiting funding was not advisable. The commitment from other Ministries had to be clearly provided for. Collaborative planning was very important.

The Chairperson asked if Ms Ngcobozi had any responses to the comments and questions raised.

Ms Ngcobozi first addressed the issue of deleting the word “interpretation” at the beginning of the Regulations. She replied that the word “interpretation” was deleted because the section was referring to definitions and not interpretations. This was a drafting issue and just helped to make the drafting of the regulations more compact.

With regards to Clause 7.3, Ms Ngcobozi said that the Parliamentary Legal Services concurred with the Chairperson in requesting for more clarity and the need to be specific in terms of community participation. 

The Chairperson asked the officials from the Department of Human Settlements to briefly respond to the issues raised by the Members and the follow up reply by the Parliamentary Legal Adviser.

Mr Khwezi Ngwenya, Legal Adviser, Department of Human Settlements, told the Committee that the Department concurred with the corrections, changes and input as presented by the Parliamentary Legal Adviser. The issues raised were vital policy issues and the technical and language changes were agreed to. Mr Ngwenya further explained that the Department had followed and understood all the changes as proposed by the Parliamentary Legal Adviser and had agreed to the input.

Mr Ngwenya said that on specific policy clauses, the Department was going to go back and rework the drafting for a day or two and revert to the Committee with a corrected draft.

The Chairperson thanked the officials from the Department of Human Settlements and the Parliamentary Legal Adviser for their inputs. She said that the Committee could meet in the following week to finalise the Regulations.

The meeting was adjourned.