Eastern Cape Provincial Department Briefing cancelled; Rental Housing Amendment Bill A-List deliberations

Human Settlements, Water and Sanitation

06 February 2014
Chairperson: Ms B Dambuza (ANC)
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Meeting Summary

The Committee had been due to receive a briefing from the Provincial Department of Human Settlements, Eastern Cape, updating it on progress of matters noted during an oversight visit by the Committee in 2012, but because no briefing documentation had been received, as the Committee required, by one week prior to this meeting, to enable Members to prepare themselves thoroughly, she had asked the national Department of Human Settlements to advise its Eastern Cape counterparts not to attend the meeting. The presentation had now been rescheduled for 12 February, and she hoped that the documentation would arrive later today.

The Committee then proceeded to go through the latest version (A-list plus revised draft headed (Portfolio Committee amendments to Rental Housing Amendment Bill). It was noted that although the Committee had intended to try to adopt the Bill at this meeting, the DA had requested the opportunity to consult with their party, and Members agreed that the final adoption of the Bill could thus be postponed also to 12 February.

The Office of the Chief State Law Adviser and Legal Advisers from the Department of Human Settlements read through the list of amendments, firstly, and then the reworded Bill. The Chairperson noted that there was wording missing from the new definition of 'local municipality' and asked that this be amended in the next draft.

In respect of clause 7, the new wording for new section 4A(5), Members had quite a lengthy debate over the phrase ' in a reasonable manner' and wondered if reference should not rather be made to ' a dignified manner' since one of the public submissions had said that the inspections were done without dignity. The legal advisers suggested that the word 'reasonable' was one that was used frequently in legislation, that this reasonable was sufficiently flexible and allowed the courts to put it in context and rigid prescription should be avoided. Other discussion was held on the term 'property' but it was noted that this had been changed already. A grammatical error was raised for correction in the new section 4A(6).

In clause 7, the new section 4B(9)(d)(i), Members discussed whether the phrase 'save for' was sufficiently understood by the layperson. Members then discussed whether the stipulation about numbers of members of the Tribunal with legal expertise, in the new section 9(1)(b)(iii), was reasonable and whether there was a reason not to allow more than two members with legal expertise. The legal drafters explained that this was an attempt to try to get as broad representivity as possible, and to avoid the Tribunal becoming “bogged down” in legalities. In respect of the new section 17, it was confirmed that the High Court would be the court referred to, as its mandate included reviews. The question was raised, but not answered, why the Memorandum on the Objects of the Bill referred to 'all local municipalities'. Finally the Chairperson reminded the State law Advisers that the Bill would have to be translated into two more languages before 12 February.
 

Meeting report

Chairperson's Opening Remarks
The Chairperson said that the agenda anticipated two items being discussed at this meeting – the first being the processing of the Rental Housing Amendment Bill (the Bill) and the second a report from the Eastern Cape Provincial Department of Human Settlements, following up oversight by the Committee.

The standard practice of the Committee was that Members should receive the presentations a week before the meeting,so the Members could have an opportunity to go through the reports on their own. The Committee still had not received the report from the Eastern Cape Provincial Department by the previous day, and she had requested the national Department of Human Settlements (DHS) to advise its Eastern Cape counterpart not to come to Parliament on  06 of February. The Committee would reschedule the briefing from the DHS provincial department for the following week. Hopefully the reports would be coming at the end of today,as they were apparently ready.

Rental Housing Amendment Bill: further deliberations
The Chairperson said that the Committee had agreed that it was going to adopt the Rental Housing Amendment Bill (the Bill) on 06 February. The Committee knew the Bill was not contentious, but Parliamentary procedure was that if a political party had requested an opportunity to consult with its political principals, then that opportunity had to be given.

She noted that the DA had requested an extension, since the Members had consulted with their political principals but had not received feedback from them. The Chairperson therefore suggested that the DA be given another extension up until 12 February 2014, when the Committee would adopt the Bill. In order to ensure that this could be done, the Committee would rather use the session today to  carefully check the Bill, clause by clause. She asked Members if they were in agreement.

Mr J Matshoba (ANC) agreed that it was fine for the DA to consult and return the following week.

Ms P Duncan (DA) said that she was grateful for the opportunity that the Committee was giving the DA to consult its leadership.

Mr R Bhoola (MF) said that the DA had agreed to numerous insertions in the Bill, and conveyed the Committee's expectations of the DA in taking the Bill forward, so he seconded the proposal by Mr Matshoba to allow that extra time.

The Chairperson asked the legal drafters to take the Committee through the revised version of the Bill (see attached document).

Mr Luke Hilton, Legal Researcher, Office of the Chief State Law Adviser, said that there were two main changes that had been captured from the previous day. He read out from the draft in front of him.

The Chairperson noted that the Committee should have been given copies of the draft Bill with the amendments that were being read.

Ms Duncan asked for clarity whether the line that Mr Hilton had just read, was the amendment that the Committee had requested to delete the word “ of”.

The Chairperson replied in the affirmative, and she read how the line would sound without the 'of'.

Mr Hilton continued reading the other amendments, as set out in the A-list to the Bill.

Mr Khwezi Ngwenya, Legal Adviser, Department of Human Settlements, took the Committee through the B-version of the Bill.

Amendment of section 1 of Act 50 of 1999: as amended by Act 43 of 2007 section 1, subsection (c).
The Chairperson said that something was wrong with this amendment.

Mr Hilton interjected that on the A-list, in clause 1, under paragraph (d), there was a word missing.

The Chairperson replied that that was why she was saying the amendments Mr Ngwenya had just read did not sound right. She asked Mr Ngwenya to rework the wording so that it would read more effectively.

Mr Ngwenya continued reading from where he had left off. He clarified that he was actually using both the A-list and the B-version of the Bill to clarify the new wording.

Clause 7: New section 4A(5)
The Chairperson questioned the phrase, in the new section 4A(5), that the inspection should be done 'in a reasonable manner'. She wondered if this was what the Committee had wanted. She suggested that 'in a dignified manner'  might be better wording.

Mr Hilton said that legislation provided for generality, and that courts had to deal with the word 'reasonable' daily. They could determine in each individual case whether the inspection was being conducted in a reasonable manner or not.

The Chairperson asked if there would be any harm if the word 'dignified' was inserted as well, and she reminded the Committee that during the public hearings, a tenant making submissions had said that the inspections had been done in an undignified manner. 

Ms Duncan agreed with the Chairperson and suggested that the Committee replace the word 'reasonable' with 'dignified'.  Additionally she believed that the 'reasonable' meant that the landlord would not go and inspect the tenants dwelling without the tenant being given the chance to be present.

Mr Matshoba said that even if the tenant was  present, the inspection still had to be carried out in a dignified manner.

Mr Hilton said that an undignified inspection would also be unreasonable ; therefore the term 'reasonable' would include dignity as well. 

The Chairperson said that the public had raised dignity as an issue during public submissions; therefore she wanted to know why 'reasonable' could not be omitted from the clause and substituted with 'dignified'. 

Mr Hilton said that there was a danger with attempting to define 'reasonable' because the reason for using that term was that, without definition, it was sufficiently flexible to measure the rights between landlords and tenants. Legislators, both in the past, and currently, continued to avoid defining the term 'reasonable', because they preferred to leave it to the courts or tribunals what would be considered reasonable in the context of each case. He cautioned that it was unwise to try to insert too specific a definition that would be binding.

The Chairperson asked why 'reasonable manner' could not be deleted completely, so that the sentence read: '' the inspection must be done after reasonable notice to the tenant’’.

Mr C Mathale ( ANC) said that even if that was done, the Bill would still require a definition of how the inspection needed to be conducted. Including the term 'reasonable manner' was an attempt to specify the manner in which the inspection was to be done, while the second aspect, 'after reasonable notice to the tenant'  dealt with the time.  If that latter phrase was to be removed as well, then there would have to be something included to specify what the notice period should be. He suggested that Mr Hilton's explanation of  how 'reasonable' was applied in both cases, and what it encompassed, should be accepted. If only one reference to 'reasonable' was included, then it would have to cover both the manner of inspection and the time period of the notice.

The Chairperson noted the Committee's agreement not to change anything in that clause.

Clause 7: New section 4A(6)
Mr Hilton raised another grammatical error on sub-clause (6).   

Ms Duncan asked if the Committee could also consider using the term 'property' in the new section 2A(6)(b) of the same sub-clause. She pointed out that possessions might not technically belong to the tenant.

Mr Hilton said he understood Ms Duncan's point but said that 'his or her possessions' could well extend to movable possessions which did belong to the tenant.

Ms Duncan still maintained that this could cause confusion.

The Chairperson asked Ms Duncan to remind the Committee what it had put in there, as a replacement.

Ms Duncan said the Committee had been using 'dwelling' right through the document.

Mr Nathi Mjenxane, Parliamentary Legal Advisor reminded the Committee that the original wording for the new section 2A(6) had been deleted, and the reference to 'searched' had now been moved to sub-clause (6c), which now referred to search and seizure of  possessions, including movable property.

The Chairperson agreed that indeed the original wording of (6b) had been deleted.

Mr Mathale corrected the Chairperson that it was (6c) that was contentious.

Ms Duncan agreed that (6b) was deleted but noted that it was still in the copy she had in front of her, which was why she had raised the query.

Mr Mathale said that all that was being done was to remind each other and to agree.

The Chairperson also reaffirmed that this was the reason the Committee was reading through the Bill, clause by clause.

Mr Ngwenya then continued from where he had left off.

Clause 7: New section 4B
The Chairperson interrupted Mr Ngwenya when he reached the new wording of the new section 4B. Under new section 4B(9)(d)(i), the Committee had agreed that the word 'save' was actually meant to be 'safe', and said that was not the legal advisers' fault, but that of the printers.

Mr Mjenxane interjected that the 'save for' was a synonym for 'except'.

The Chairperson replied that the Committee had repeatedly stressed that it wanted to pass a piece of legislation that was user-friendly, and she wondered whether the term 'save for' was clear and unambiguous for the lay person. She stressed that the legal drafters had to make sure that people would not be taking each other to court over the interpretation of the legislation.

Mr Mathale said that he agreed with the Chairperson, but the Committee needed to be mindful that it was creating an environment that would enable people to do certain things. As it was developing that law, it should also bear in mind that it was also necessary to avoid an “either / or”  type of situation that would not have the desired effect, because it was too rigid.

The Chairperson agreed with Mr Mathale, but  maintained that he Committee still needed a better, simplified word.

Mr Ngwenya continued reading for the Committee.

The Chairperson interjected again, saying that the legal advisers were reading the documents in a rather casual manner.  She requested Mr Ngwenya to read what was actually on the document, not what he was used to reading.

Clause 13: amendment of section 9
Mr Mathale commented that he had thought that, in the amended section 9(1)(b)(iii), the stipulation on numbers of people with legal qualifications should be 'at least one' only, and that the reference to 'not more than two' should be deleted. He asked how the MEC would deal with the situation that three persons, all of whom had legal expertise, were the ideal candidates for appointment. If they could all add value to the Tribunal he was worried that this stipulation might suggest that not all of them could be appointed. He was not sure that the Bill needed to be as prescriptive as it was at present.

The Chairperson said that what the Committee was doing was trying to balance expertise within the rental tribunal. The reason the stipulation had included a reference to two members was in recognition of the fact that one legal expert might not be able to make it to a particular meeting. She reminded Members that now there was a further provision that the Tribunal could divide itself into two sub-committees.

Mr Hilton added that it could also be an issue of accessibility. If there were, for argument sake, three legal experts on the Tribunal, that could make the Tribunal more technically legal. The legislative intent could also possibly have been that the Tribunal should not become “bogged down” in legalities, and so to avoid this there was a specific capping that no more than two of its Members should be legal experts, and others should have expertise in other matters. 

The Chairperson requested that this topic be not argued further. The composition had already been discussed at length. The opportunity to raise issues was to allow Members to understand why the stipulations read in this way. She repeated that the reasons for the numbers were to balance expertise within the tribunal.

Mr Mathale said that life in the public domain was not quite the way the Committee was trying to put it in the Bill. He cited an example of an individual with a law background, who might now a practising engineer. He said that if that individual was needed for the Tribunal, an argument could be made against that appointment, that that the individual had expertise in law.

The Chairperson replied that when considering the appointment of the panel, consideration was given primarily to what an individual was currently doing. She said that Mr Mathale's concerns had been considered in the DHS's adjudication panel.

Mr Mathale said that he would not engage in semantics, so he would not argue the point further, but he did maintain that the Bill needed to be as enabling as possible.

Mr Ngwenya resumed reading through the Bill.

Clause 19: Substitution of section 17
The Chairperson asked whether the court mentioned under the new section 17 was supposed to read 'a competent court' or 'a high court'. She said that submissions had suggested that any competent court of law could be accessed, although the Committee preferred the view that it should be the 'High Court'.

Mr Hilton replied that the Chairperson was correct to refer to the High Court because in reality it was this institution that had the powers of review.

Mr Ngwenya resumed reading from then on.

Memorandum on the Objects of the Bill
The Chairperson asked, in relation to the Memorandum on the Objects of the Bill, why there was not a reference merely to 'all municipalities' instead of 'all local municipalities'.

Translation
The Chairperson repeated an earlier question as to who would be responsible for ensuring that the Bill would be translated into three official languages before 12 February 2014. She emphasised to the State Law Advisers that the Bill would not pass muster, if it was still in English only by that date.

The Chairperson said that the drafters must ensure, together with the Government Printers, that the errors just pointed out were rectified in the version to be adopted.

The meeting was adjourned.
 

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