High Level Panel recommendations: Department of Human Settlements response

Human Settlements

04 December 2018
Chairperson: Ms N Mafu (ANC)
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Meeting Summary

The Committee met for the last time in 2018 to consider the recommendations of the High Level Panel (HLP), which had been tasked with reviewing legislation, assessing implementation, looking for gaps and proposing action steps, with a view to identifying laws that required strengthening or amending.

The HLP’s report had found that the geography of apartheid had remained largely unchanged for the poorest and most vulnerable South Africans. The spatial inequality had trapped disadvantaged communities in poverty and unemployment, created inefficient cities, and robbed the poor rural communities of secure livelihoods. Greenfield state-subsidised housing developments, built on the margins of cities, rather than upgrading existing informal settlements and urban infill development, which targeted well-situated land, had contributed to the further entrenchment of unequal spatial development.

The Panel proposed a new law -- the Land Records Act -- which would be aimed at filling the gap in legislation in land administration, recognising that the Deeds Registry, as currently constituted, was unsuited to the complex and diversified local realities of the South African land tenure landscape. The Act was conceived as ‘enabling legislation’ that would trigger a range of appropriate and interrelated measures and mechanisms to build up a comprehensive institutional framework. Its focus should be on issues such as enumeration, adjudication, spatial identification, all recorded mediation, as well as the maintenance and updating of recorded rights. The Act would aim to put in place a model of land administration with capacity to underpin the rights-based approach to the land tenure laws passed after 1994, and to create capacity to resolve disputes where land rights were contested. It would allow for a range of different tenure and landholding possibilities within a continuum of land rights. It would provide legal support for shared, layered, family ownership combined with access to common property, which would make an important contribution to the social support systems and livelihoods of the poor, and which was currently not adequately acknowledged in law.

The Department of Human Settlements (DHS) agreed that land in South Africa was a scarce commodity, and the spatial inefficiencies had to be reduced. This included changing certain pieces of legislation, such as Sec 25 of the Constitution, in order to allow the Department to do its work. There was need to develop a clearer service delivery mode to ensure the recommendations of the HLP were addressed. It had to broaden its horizons to focus more on the country’s youth, as those who currently benefited from the Department’s programmes were mostly over the age of 40.

Over the years, the business plans projected by the Department had been based on the grants provided, and this had inhibited its performance against its targets. It acknowledged that some of its challenges were related to its capacity at all levels to implement its programmes, so it had embarked on a process to revise what was contained in its 17 current programmes, in order to streamline them down to only the basic value chain instruments.  To give effect to these proposals, there would be critical pieces of legislation tabled, such as the Prevention of Illegal Evictions (PIE) Act, realignment of the Extension of Security of Tenure Amendment (ESTA) Act, and also the Labour Tenants Act.

A Member of the Committee suggested there was need to think outside the box, like asking whether the continued provision of free housing was sustainable. Was housing being allocated to the right people? In Gauteng, people were being given plots instead of houses -- could the same not be done at the national level? There was also a need to address the gaps in achieving the required spatial planning, to counter the challenges well outlined in the HLP report.  

The meeting concluded with the Committee and the Department expressing appreciation for the spirit of cooperation and support that had existed throughout the past five years.

Meeting report

The Chairperson welcomed everybody to the meeting. It was the last meeting of the year and probably the last meeting of the term. We were here to adopt reports so that we don’t have any outstanding issues before we go on holiday. The first item on the agenda was the high level panel (HLP) report. The HLP was undertaken by a team that was chaired by the former deputy president of the country. That report relates to issues of that particular section. Our content advisor would present on it and give recommendations and also areas that members must respond to. Immediately after that the department would respond on those areas. Once that had been done we would be able to adopt. We thought we deal with it so that it becomes part of our legacy report. Without wasting time this opportunity was given to the content advisor to take us through the HLP.

High Level Panel recommendations

Mr Sabelo Mnguni, Committee Content Advisor, said he would present the High Level Panel (HLP) analysis and the recommendations, and afterwards he would provide a synopsis of his reflection on what the Committee had done and what other areas it should focus on. This would not be related to the HLP. These were the support staff’s recommendations on the work of the Committee.

The Chairperson asked whether a baby’s picture, titled Mlilo, which was displayed on the screen, was part of the presentation.

Mr Tsabelo replied that it was. The Chairperson had been angry at him, saying that he had disappeared from the Committee for quite some time. That was very true. He had disappeared because he had some responsibilities to take care of. And that responsibility was his son, and his name was Mlilo. Members and guests clapped and laughed happily. Mlilo had been so named because of his experiences through the Committee.

The Chairperson congratulated him on the birth of his son.

Mr Tsabelo said the HLP mandate had been to review legislation, assess implementation, identify gaps and propose action steps with a view to identifying laws that required strengthening, amending or changing. This meant that this intervention entailed the identification of existing legislation which enabled a transformational agenda and the pursuit of a developmental state, as well as the laws that impeded this goal.  

The Panel’s work had been divided into three main thematic areas:

  • Poverty, unemployment and the equitable distribution of wealth;
  • Reform, restitution, redistribution and security of tenure; and
  • Social cohesion and nation-building.

The Panel had held public hearings in all nine provinces to receive input directly from the public. It had also commissioned reports from experts and senior researchers on selected topics. In addition, small consultation round tables and workshops were also held to delve deeper into certain issues. The following challenges were some of those identified. The geography of apartheid had remained largely unchanged for the poorest and most vulnerable South Africans. The spatial inequality trapped disadvantaged communities in poverty and unemployment, created inefficient cities, and robs the poor, rural people of secure livelihoods. Greenfield state-subsidised housing developments built on the margins of cities, rather than upgrading existing informal settlements and urban infill development, which targeted well-situated land, contributed to the further entrenchment of unequal spatial development.

Due to the fact that under apartheid, people were often tenants or trust beneficiaries in both urban areas and former bantustans, recent research suggested that land tenure rights of 60 percent of South Africans remain informal and outside the deeds registry system. This includes land in former homelands, people in informal settlements and half of the beneficiaries of state-subsided houses -- commonly known as reconstruction and development programme (RDP) houses. Despite the massive expansion of low-cost state-subsidised housing, the supply was not fast enough to offset the growing demand for housing, partly because of rapid urbanisation. Since poor rural migrants were predominantly African, it meant that the proportion of African households living in informal settlements was higher than commonly reported.

There were powerful special interests that were intent on maintaining the spatial status quo, which was known as the not-in-my-backyard (NIMBY) syndrome, where middle and higher income neighborhoods actively oppose low-cost housing developments in close proximity, citing the risk of diminishing property values. At the provincial level, it was often seen in the form of evictions, where strong private sector interests override public sector interests. Economic and social policies were implemented with spatial outcomes that were not only diverse, but often also conflicting. Policies and programmes in the areas of trade and industry, transportation, environment, human settlements, health, education, infrastructure, etc, were not routinely scrutinised for their potential spatial impact, while there had been limited effort to achieve sustained spatial alignment.

The absence of an overarching strategic approach to spatial planning resulted in a fragmented system across different sector departments. Spatial planning also lacks sufficient institutional authority within the system of government. There was considerable red tape around the approval processes for environmental, heritage, water use and land use planning, leading to slower processes of development, which affected development of housing for the poor. In many townships, there was poor correspondence between the layout and extent of each property in the official register, and the reality on the ground. Many structures, boundaries and access routes that had emerged over time, bear little or no relationship to the official plans. This leads to challenges, and often an inability to issue title deeds. Legislation was not flexible enough to ensure that decision-makers and regulators were responsive to diverse realities (such as townships versus suburbs), including using means such as exemptions or fast-tracking arrangements in particular situations, especially in informal settlements.

Mr Tshepo Makhanya, Committee Researcher, said that there had also been key findings on legislation that had been passed since 1994. The first was the Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA). The legacy of spatial inequality appeared intractable, despite the National Development Plan (NDP) and SPLUMA’s focus on it. This challenge required an integrated solution that goes beyond the mandate. Government departments tasked with implementing SPLUMA were characterised by ways of operating that were compliance-centred and punitive in nature, and were therefore not open to creative approaches to inclusionary housing of any single government department, or one sphere of government. Large-scale state-subsidised housing projects, including RDP (or state-subsidised) housing projects, had mostly entailed housing developments built on cheap land on the margins of cities and very little in situ upgrading of informal settlements had been done. Regulatory procedures for the related issues of environmental, water and planning authorisations were currently not aligned and integrated into one approval system. There was also considerable red tape around the approval processes for environmental, heritage, water use and land use planning, leading to slower processes of development.

Rather than creating an enabling environment for informal enterprises, government departments tasked with implementing SPLUMA tended to respond to the growth of such enterprises with evictions and confiscation. The consequences of these issues were several. First, state-subsidised housing projects had largely entrenched spatial inequality due to continued development of housing outside of economic hubs and urban centres. This significantly impacted on the slow pace of spatial transformation. In some cases, this leads to overlapping and unnecessary duplication, causing excessive delays and compliance costs. Better regulation was required in terms of rules and procedures that were consistent, less burdensome, more responsive to socio-economic realities, and more development. This meant that affordable housing developments continue to be situated on urban peripheries, while well-located, vacant land owned by various entities remained undeveloped. Improved land development regulation through the SPLUMA framework could revive debate about the rationale for town planning law, which in turn regulates private investment, to protect public interests which were developmental in orientation.

The Panel proposed a new law, the Land Records Act, which should be aimed at filling the gap in legislation in land administration, recognising that the Deeds Registry, as currently constituted, was unsuited to the complex and diversified local realities of the South African land tenure landscape. The Act is conceived as ‘enabling legislation’ that would trigger a range of appropriate and interrelated measures and mechanisms to build up a comprehensive institutional framework. Its focus should be on issues such as enumeration, adjudication, spatial identification, recording all mediation, as well as the maintenance and updating of recorded rights. The Act aims to put in place a model of land administration with capacity to underpin the rights-based approach to the land tenure laws passed after 1994, and to create capacity to resolve disputes where land rights were contested. The Land Records Act would allow for a range of different tenure and landholding possibilities within a continuum of land rights. It would provide legal support for shared, layered, family ownership combined with access to common property which would make an important contribution to the social support systems and livelihoods of the poor, and which currently was not adequately acknowledged in law.

Mr Mnguni continued that the Committee support staff was now done with the HLP, and would like to give their recommendations. One of the issues that they felt the Committee should understand involved the issue of global warming. The human settlements by nature contributed to this global warming. It was up to Members to decide whether it was an important issue. The Department had to have forward looking policies, either for the short term or the long term. They should consider the environment and also future generations. This was also linked to the issue of limited resources. Did South Africa really have limited land, money and time? Were there ways to think around these issues? The last recommendation was on the issue of nation building, which they had taken from Singapore, which had used nation building to plan their human settlements. These were the recommendations of the support staff.

Discussion

The Chairperson stated that throughout the year, in dealing with its work on human settlements, and now with the HLP, these issues were not far apart from each other. The Committee gets concerned with certain issues that it had never been concerned about, and asks the Department to respond to them. There were issues that had been close to the Committee’s hearts. The Members were happy that the support team was also on the same page as they dealt with the legacy report. She asked the Department to respond to the report.

Mr Mbulelo Tshangana, Director General (DG): Department of Human Settlements (DHS) apologised for coming late due to the fact that he was attending an Inter-ministerial Committee (IMC) on land expropriation in a team headed by the Deputy President, so he would also have to leave shortly. Nevertheless he would try to articulate on some issues.

Singapore was a small island. What most people did not know was that it was ruled by a dictator for 25 years and in some cases, certain things were done not considering democracy like South Africa. The second part was about the comment that South Africa had enough land. Land would never be enough. It was a scarce commodity. One had to reduce those spatial inefficiencies. People get to work using up two hours because of these spatial inefficiencies. This involved changing certain pieces of legislation in order to allow people to do their work. He had previously been accused of being an apartheid sympathiser when he had said that the then government used to have a policy that for every township, there must be a government notice and not legislation. Now they had to pass particular legislation for that to happen. What he was saying was once SA adopted this attitude to channel all its resources as one agency, be it provincial, municipal or national, it would achieve so much more. It was also important that intergovernmental relations were maintained, as they were very crucial to the success of what was done here.

The Chairperson politely reminded the DG to appreciate the Members, as there was a possibility he would not see them again.

Mr Tshangana humbly apologised for his oversight, and said that during the term there had been a very high level of professionalism. The Committee had made the Department accountable. It had been tough. It had not been a good route. The DHS took full responsibility where it had not performed well, and it would go back to the drawing board. The lawmakers had done their work. It was a pity that  only one piece of legislation had been passed.

He wished the Members good luck as they returned to their constituencies with a tough job as the political season approached. The current team was very professional, and he would like to express his sincerest gratitude and thanks to the Committee.

The Chair thanked the DG for his words and joked that Members here were good friends, but out there in the coming season things might change – which evoked laughter from Members and guests. She invited Mr M Bara (DA) to say something before the DG left.

Mr Bara said that the DHS had treated Members with respect. It was common to find Members in other committees being ridiculed, especially when they were not informed. Even when they were misinformed, they were never ridiculed but guided in a kind of respectful manner. That talked to how the DG conducted himself as a person, because if he had been arrogant to this Committee, Members would have received the same treatment from everybody else. What Members would take out of this Committee, whether they come back or not, was how they had treated each other as colleagues committed to driving empowerment in this country. On behalf of all the Members, he expressed his thanks.

The Chairperson added that Mr Bara was speaking on behalf of all the Members and that was exactly how they all felt.

Department’s response

Ms Sindisiwe Ngxongo, Chief Operations Officer: DHS, said the Department would address the concerns highlighted, most of which were on policy issues.

Ms N Buthelezi, Chief Director: DHS, said the report was quite detailed. It had close to 600 pages, and they had analysed all the keys findingss and key recommendations and drafted what they called an action plan to deal with some of the issues which they considered were lacking in respect of the short, medium and long term implications. This had been done by a team comprised of 43 members, which had included the Department of Public Wroks (DPW) and the Department of Water and Sanitation (DWS).

There was a need to develop a clearer service delivery mode to ensure some of the issues of the HLP were addressed. Part of the issue was the people referred to as agents. DHS policy talks about qualification criteria which were broad, and talks to residents in the country about legal documents and the legal competency to contract. When looking at the report, the Department decided the issue of agents had been discussed with the Committee, especially towards the end of 2017, when there was talk about people who had special needs. This was also one of the areas the DHS had been tasked by entities like the Human Rights Commission (HRC) to look into. The issue was that the Department should take into cognisance that its qualification criterion was broader than that. It was just a question of the DHS being able to engage with the idea that the youth should be at the forefront. However, when it looks at the houses it had provided, the numbers showed that it had not provided to the youth as it had envisioned. The most who had benefited were above the age of 40. The DHS needed to talk about what it could provide for the youth.

The other issue was on diagnostics, and the Department had considered the issues involved in saying the demand outweighs the supply. Over the years, the Committee would have noted the business plans projected by the Department were based on the grants provided, which limited the targets which it had to achieve over the year. If one looked at output versus target, there was definitely a challenge to say demand and supply was not in line. Some of the problems were alluded to -- for example, the Department’s capacity at all levels to implement its programmes. It had embarked on a process to revise what was contained in the current 17 programmes, and after internal discussions had agreed that having more programmes allowed room for deviation from what the DHS provides as policy guidelines. The programmes should therefore be streamlined. The Department wanted to revise the code and streamline the programmes from 17 down to only the basic value chain instruments.  

The Chairperson said what was comforting was the fact that the Department was looking at how to improve policy issues in terms of service delivery. She would also be happy if the programmes were streamlined down to around five, which would be easier to manage.

Mr Khwezi Ngwenya, Legal Advisor: DHS, said that in the Department’s legislative programmes for 2019, there would be critical pieces of legislation that it would be tabling to Cabinet and parliament. One of those was the Prevention of Illegal Evictions (PIE) Act, which addresses critical issues around evictions, and circumstances or measures that had to be in place when the government seeks to evict people. There was also need for realignment of the Extension of Security of Tenure Amendment (ESTA) Act, which deals with security of tenure, and also the Labour Tenants Act. The DHS was also looking at issues that had been raised by the courts.

The Department was developing new pieces of legislation around human settlements, because here they were not talking about housing, but human settlement. The most critical element was the protection of investment that is provided, and the issue of the pre-emptive clause. Was it logical to say one could not dispose of property for a period of 10 years? The issue here was, how does one protect the investment of government by making sure these houses were not sold on the black market? At the same time, must one block critical opportunities for people? There was also the Human Settlements Bank that would give effect to all the particular mechanisms the Department wanted, to stop having to over rely on banks.

Mr Aubrey Matshego, Director: Planning. DHS, said the HLP referred to a framework that the Department had already started in terms of spatial planning, management and consolidation. The framework was based on the Housing Development Agency Act, which requires it to develop priority areas. For these areas, the Department wants to build consensus with municipalities and provinces so that it could then begin to mobilise resources and handle any subsequent interventions. It would share the details with the Committee at a later stage.

Regarding the red tape involved in planning, it was worthy to mention that the Department of Rural Development had initiated a process that they called the integrated land administration system. The DHS was assisting in that process and had indicated that it wanted that system to address the red tape, as well as those areas where it took long to get approvals and compromised its work. It had also asked them to address the issue of cost so that people did not have to pay an exorbitant amount to register or transfer property, in relation to what financial resources they had. The DHS had asked them to accommodate rural areas as well as informal settlements. It was also trying to implement a project readiness matrix to help with integration.

Regarding title deeds, there were a number of measures the Department had taken, such as a new grant that focuses solely on title deeds, and building capacity by appointing programme delivery coordinators to support delivery.

The Chairperson invited any Member who wanted to make a comment, to do so.

Mr Bara said he wanted to make a contribution to the issue of short term and long term planning. There was need to think outside the box. For example, was the provision of free housing sustainable? Secondly, were the right people being given housing, otherwise they would never clear the backlog and would be giving houses to undeserving people. There was need for a database to indicate all deserving people. Last week, the Committee had heard that Gauteng was giving people plots instead of giving houses. Could this be done at the national level? Lastly, the Department had been struggling with the provision of title deeds and formalisation. This should be one of the areas that the Department should strive to improve their service delivery. There was also need for new strategies.

Mr M Wolmarans (ANC) said that he welcomed the work of the Department in focusing on specific areas where there was a need for radical improvement. If one went through the HLP report, most of the issues were already known about, as they have been under the Committee’s radar for quite some time. There was a need to identify the gaps in achieving spatial planning in order to counter the challenges, which this report outlines well. 

The Chairperson invited the DDG to give her concluding comments.

Ms Ngxongo said the emphasis was on the various stakeholders to find each other and improve on implementation as soon as possible. The DHS was keen on intergovernmental relations because as a department, it could not perform to the best of its abilities if the intergovernmental relations were not to the required level. The Department was busy with its 25-year review, and she could confirm that the matters that had been highlighted here today had made their way into that review. What needed to be done now was implementation. The DHS knew it had limited resources, and had to use the 80/20 principle, which basically meant it had to achieve more with limited resources. This would be reflected, for example, in reducing the 17 programs in the Housing Code to a fewer, but manageable, number to focus on what mattered, and priorities.

The Chairperson said this report laid the foundations for the programme for Parliament. She hoped that whoever was coming on to the Committee next year would look at that report.

Adoption of reports and minutes

The first was the report on the Singapore study tour.

Mr Wolmarans moved the adoption, and Ms N Hlonyana (EFF) seconded.

The Chairperson said that the annual report was just for noting. They were doing this so that in the event they did not meet next year, they would have no outstanding issues. However, there was still the 25-year report that we had to review. Members agreed to note the report.

The next item was the lengthy legacy report. It was also for noting.

Members agreed to note the report.

The last item was the minutes of the last meeting 27 November.

Mr P Khoarai (ANC) moved their adoption, and Mr D Kabini (ANC) seconded.

Chairperson’s closing comments

The Chairperson said that as Chairperson of the Portfolio Committee, she wanted to express her appreciation to each and every Member. Whatever differences they might have had as political parties, she could tell them that this Committee was one of the best functioning committees in this Parliament. They had never used their differences to try and stifle the work of the Committee, and for that she would be forever appreciative. Even when there had been areas where they had not agreed, they had done so professionally.

When they returned in 2019, they would be dealing with only two matters as Parliament -- the State of the Nation Address, and the budget. The chances that there would be Committee sittings were very slim, as there would be a lot of work on the ground.

She concluded by thanking the Department and the Ministry for its good relationship and support for the Committee over the past five years.

The meeting was adjourned.

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