Social Housing Regulator on Rental Policy and Rental Relief; with Deputy Minister

Human Settlements

01 December 2021
Chairperson: Ms R Semenya (ANC)
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Meeting Summary

SHRA Residential Rent Relief Programme (RRRP) Progress Outcome Report (Awaited)

The Portfolio Committee on Human Settlements (the Committee) met virtually with the Department of Human Settlements (the Department) to be briefed on plans to release blocked projects in all the provinces, a breakdown per district and local municipality, required budget estimate, the reasons for incomplete work and the steps taken to recoup the monies paid to the contractors who left the job incomplete and whether those contractors were blacklisted. The briefing was postponed by the Committee as per the Deputy Minister’s request to a date when the Department had completed its major consultations with provinces as to ensure an accurate and comprehensive report. The DA and EFF did not support the Department’s request.

The Social Housing Regulatory Association (the SHRA) briefed the Committee on its Rental Policy and on the Rental Relief. More specifically, a progress outcome report was provided on the implementation of the Residential Rent Relief Programme (RRRP) for social housing beneficiaries affected by Covid-19.

The ensuing discussion by Members concerned: reasons for the delay of the application process, approval, and implementation of the RRRP; success of the RRRP in alleviating and preventing evictions in the social housing sector in 2020; why tenants were not timeously informed of their benefitting from the rental relief measures; criteria for the RRRP; practical implementation of the RRRP to retrospective periods or circumstances; ability of beneficiaries to approach the SHRA directly; whether the RRRP was a compensation or fund; the status of the National Treasury rollover; reasons for the low up-take in applications from provinces; use of media and communications in terms of information reaching the intended recipients of the grant; groundwork done to make sure that people accessed the grant; how people that were in backyard rentals, would benefit; whether the tenants of Ekurhuleni were included in the Gauteng list; policies being anchored in the Constitution; justification for the deliberate exclusion of people most in need of support from the RRRP; the incentive for former landlords to keep proper records and administer a public service on behalf of the SHRA; and the rental tariffs of Ekurhuleni.

The Committee considered and adopted its first quarter programme with amendments.

The Committee discussed its oversight visit to Banaero Park, City of Ekurhuleni. The Committee would write an official letter to the municipality indicating its intention to visit when going to Gauteng for public hearings, as to allow the municipality sufficient time to prepare.

Meeting report

The Chairperson welcomed everyone to the meeting.

The agenda for the day was adopted.

She hoped that everyone would keep themselves safe, as there was a new announcement on the emergence or possibility of a fourth wave of Covid-19. The virtual meetings and hybrid sittings would similarly stay with the Committee for quite some time. As Members, they should thus learn more in order to become effective under the circumstances. She asked Members to observe a moment of silence, meditation, or prayer for the lives lost to Covid-19.

The Committee observed a moment of silence.

Ms Kholiswa Pasiya-Mndende, Committee Secretary, noted an apology from Mr S August (GOOD-Alt).

Deputy Minister’s Overview
Ms Pam Tshwete, Deputy Minister of Human Settlements, stated that although the Committee had invited the Department to brief it on the unblocked projects, the Department wished to request that the Committee move the item to a date when they had completed their major consultations with provinces. Much of the data required for the unblocked projects needed to be verified by provinces. She said that she had not heard an apology on behalf of Ms Mmamoloko Kubayi, Minister of Human Settlements, who had another commitment. She put on record that the Minister was not present not because she undermined the Committee but because she had another commitment. It was very unfortunate as she knew that the Committee needed the information on the unblocked projects as soon as possible, as it was discussed in some meetings that the Committee needed the number of unblocked projects. As new as the Minister was, she was trying her best and had gone to all provinces. The Minister was also going to have the Members of Provincial Executive Councils Meeting (MinMEC) and it was going to be one of the issues that was going to be discussed. The Department was still waiting for the accurate numbers of the unblocked houses and did not want to bring something that would raise questions, as the Department itself needed to get the correct version of the unblocked houses in all the provinces.

She humbly requested that the Committee remove the item from the agenda so that the next time the Department joined the Committee, the information was accurate. The Department wanted to make sure that they came with a proper and accurate report when they came to the Committee, because at the moment there were provinces that were still working on the numbers. When talking about the number of unblocked projects this was the number per province because there were those of the 11 municipalities. The Department thus needed to bring accurate numbers to the Committee in terms of how many unblocked projects there were per province. The Department was ready to brief the Committee on the Rental Policies of the Department and the way forward of some of the policies. However, the Department could not lie and give Members the wrong report of the unblocked projects. The Department needed to make sure that they gave the Committee an accurate and comprehensive report. The Department was given a huge task of facilitating the building of human settlements with a limited budget owing to the competing needs of the country. Therefore, Covid-19 had a detrimental impact on the tenure of many people who rented or leased property. It was seen how rental and social housing was an official service provided by the government, who provided homes to people who required it.

The Chairperson said that there was a request to withdraw item one from the agenda because the Department was not ready yet.

Ms N Sihlwayi (ANC) thought that Members should agree on the request of the Department so that the item was well thought out, so that they were able to present clear areas of focus when it came back to the Committee. She therefore agreed on the Department’s request.

Ms E Powell (DA) expressed her frustration and dissatisfaction with the fact that the item was being requested to be removed. When the Committee met at the beginning of every term they approved an agenda, and as Members they made sure that they were ready and well prepped for their meetings.

She saw that Mr Mbulelo Tshangana, Director-General (DG), Department of Human Settlements, was with the Committee, and he was ultimately the Accounting Authority for the Department—with the Ministry being the Executive Authority. As the Accounting Authority, surely Mr Tshangana and the Ministry as the Executive Authority had a responsibility to make sure that they prioritised the items that were coming before the Committee. The Department had shown up today and it was as if they were saying that the dog had eaten their homework and they were not ready. This was Parliament and it was not a playground. One could not just arrive and say that they were sorry, that they did not have their ducks in a row, and that they were not ready. Members were present, they were ready, and they had set aside the time.

She would expect that given the detailed performance, monitoring, and evaluation that the Accounting Authority and Executive Authority had to undertake in terms of holding the provincial department accountable, that even if the provincial departments had been lackadaisical or derelict in their duties reporting back to the national department for this meeting, that the Department themselves would have enough information at their disposal to come to the Committee and give Members information.

She requested that the Committee allow the DG to weigh in on the matter and give the Committee a list of which provinces did not submit their information and why, as the Accounting Authority, the DG and the Ministry were not in possession of enough information to provide the Committee with a progress report. Frankly, what had happened was that the Committee had had their time wasted.

Mr A Tseki (ANC) thought that the Committee should protect the Department from what Ms Powell was saying. It was not just the DG, or the Minister, or the Deputy Minister, but the Department that was being spoken to. He agreed with and supported Ms Sihlwayi. However, he asked for a rider as perhaps he was influenced by what Ms Powell had said. Perhaps Members could actually assist the Department by sending questions on areas that they already knew had certain challenges in relation to unfinished projects. This was so that when the Department came to the Committee, they came with exactly what Members requested. He agreed with the postponement on the rider that Members could send questions to the Department so that the Department could be ready when they came to the Committee.

Adv Masutha thanked the Deputy Minister for making herself available on behalf of the Minister who had submitted an apology. He hoped that there was a written apology from the Minister, clarifying the reasons why she was unable to lead the delegation today. This was so that on record it was clear that it was reasons beyond the Minister’s control. He acknowledged the expression of disenchantment expressed by Ms Powell. Indeed, if there was an item on the programme of Parliament—whether it was the committees or any of its Houses—it was a serious matter. The matter would be proceeded with unless there were reasons that were beyond everyone’s control such that an item was not possible to proceed with. On that score, he could not fault Ms Powell. There was a constitutional obligation that when anyone was called upon by Parliament to account on anything that was within their power, especially if they were an arm of State, they had a responsibility to honour that. In a sense, the remarks by Ms Powell were thus not out of turn.

He had only re-joined Parliament a few months before and had not been religiously following developments in his short retirement stint, but his understanding was that the President had recently re-established portfolios in the executive through a so-called reshuffling process. In the course of that reshuffling, he had appointed a new Minister, Ms Kubayi, who was just with the Department for a few months. Of course, the Minister took ultimate responsibility and could not defer to her predecessors in terms of accounting for the work of the Department. The Committee had acknowledged in previous meetings that given the fact that she was a new arrival she needed to acquaint herself with a full range of issues. The Committee had further acknowledged that some of the challenges had been going on for the past three decades. The Committee had, in the President’s wisdom, a new broom that the President had given them, who had inspired most when she had first spoke in her debut meeting with the Committee in saying that she was determined to dirty her hands. He believed that it was incumbent upon the Committee to support the Minister and give her a chance to do that which she had committed herself to do—which was to identify the challenges that she found and provide leadership in being able to resolve it. For example, it was his understanding that the Minister had not yet even had the first opportunity to interface with her provincial counterparts.

He did not know about how the local government segment got consulted given the number of councils and municipalities in the country and given the fact that delivery in the Committee spread across all three spheres. So he did not know how the Minister was going to be able to engage the third sphere of government, namely local government, given the numbers.

In a sense, the Committee was caught in a transition. Even the Committee had been re-established in alignment with the reshuffling that had taken place at an executive level. There may have well been programmes that were developed back in the day and it may well be that the officials who were present today had been present for many years and could not today say that they were new like the Minister and had inherited a situation which they themselves had not had time to engage with, especially in each of the departments. He was thus not going to stand before the Committee and defend the Department on this issue because he did not know how long the leadership at the departmental level had been in place or to what extent there had been consultation in the scheduling of this item in particular.

He also did not know how long the Department had had the opportunity, since they had received notice of the scheduling of this item on the Committee’s programme for the year, to do what was expected and be able to round up all nine provinces and over 200 municipalities to do audits of what had been done as per the title of that item. In a sense, whilst he to some extent appreciated the disenchantment of Ms Powell as he did not think that it was out of place, he did however believe that it served no purpose in advancing the Committee’s oversight role to come to the meeting and demand from a horse that did not have the carriage that it was supposed to have to deliver the goods to the Committee. Whatever the Department’s circumstances were, they could explain for themselves as to the difficulties they may have had to actually compile and complete a full audit as per the item on the agenda. He suggested that the Committee extend an indulgence to the Department as they requested per the Deputy Minister. Where he did not disagree with Ms Powell was that he believed that the accounting officer took cues from the executing authority, the Minister, or Ministry—currently represented by the Deputy Minister. It was not just the accounting authority that accounted to Parliament as constitutionally the first port of call was the executive authority.

If the Executive Authority had evaluated the work of the Department and came to the conclusion that, for purposes of providing accountability in order to enable the Committee to perform their oversight role, the Department’s reports would not enable the Committee to achieve its objectives then he did not think that the Committee should now say that they had heard the Deputy Minister, that whatever she had said was nonsense, and that they actually wanted to hear the DG because perhaps they would get a better story from the DG. He thought that this would not be right because the executive ultimately was finally accountable for the Department. If that was the Deputy Minister’s position and it represented the Ministry, which included the Minister, he did not think that the Committee should now jump them and run straight to the DG and say that they were going to ignore the executive and hear from the Department. That would be inappropriate. It had to be remembered that the DG had no authority to go straight into any province without going through the MEC. The DG could also not go directly to the MEC and the MEC was finally responsible for the Department. The expectation was that the Minister was the one who would have to first round up all of the MECs in a MinMEC. Arising out of that, the DG’s forum could then follow on taking cue from the executive leadership at national and provincial level.

Ms S Mokgotho (EFF-Alt) differed with what Mr Tseki had said and concurred with Ms Powell. The Committee was not there to protect the Department or executive authority but had to hold them accountable if they failed to do their duty. When the Committee summoned the Department, they always had to be ready to take responsibility to do what they were supposed to do.

Mr Malatji said that when the Committee had started as a new Committee, part of the things that they had agreed on was that they were going to support each other with an understanding that they were in a committee. He thought that if the Minister or executive had requested that they be given more time to consult with all provinces in order to come forward with a comprehensive report, that the Committee should do so. What the Committee wanted was a comprehensive report that represented an honest reflection of what was happening in Human Settlements, not a thumb-sucked report. When the time came, the Department had to be called back urgently and advised to urgently fast-track the issue of the report so that they could come to the Committee and be held accountable. There were various levels at which the Department was to be held accountable. It was the Committee’s responsibility to make sure that services are delivered to its people and to follow the taxpayer’s money that was invested in projects to assist and change the lives of people.

Ms C Seoposengwe (ANC-Alt) appreciated the opening remarks of the Deputy Minister as it was known that she was always there to guide the Committee in most of the meetings. The Committee also appreciated the Minister for her extensive work which she had done so far, as she was working very hard and it could be seen that she was always on the ball. She suggested that the Committee move forward and thought that all of the comments had been noted. The Committee was wasting time as they had an agenda before them. The agenda items consisted not only of the first item that was being deliberated on, although it was fair to talk about it, but she encouraged the Committee to continue and wait until the Minister was ready. It would not be fair if the Minister was in a meeting and was not able to respond to everything that the Committee wanted from the Department. The oversight role of the Committee was to hold the Department accountable, including the executive, but the Committee also had to give them a chance, especially given that there was a new Minister. She requested that the Committee move forward, accept all of the deliberations, and ask the Department to make sure that as soon as possible they set aside a special day to come to the Committee and discuss the item.

The Chairperson said that she would not be allowing the Committee to discuss the item further as there were other items on the agenda that had to be dealt with. The majority of Members were saying that the Committee should agree to postpone the matter. She thus said that the matter would be postponed. She reminded Members that it had been heard in previous meetings, when the Committee was still the Portfolio Committee on Human Settlements, Water, and Sanitation, that the issue had arisen. They had then been briefed that there was a rectification programme, how the process was supposed to unfold, and that the majority of provinces were not actually taking that opportunity. That was why the Committee had requested the Department to go back to the provinces as there were people who were beneficiaries and could not access houses because their houses had been approved in terms of the system but they could not get houses or go onto the list. Therefore, the Department had to go back and work with provinces and relevant municipalities to identify those areas and lists and come back to the Committee. If the Department was saying that they were not done with the process that the Committee had given to them, she thought that the Committee should be fair and allow them to say that they would prioritise this item in the next financial year, after the State of the Nation Address, whereafter they would have the item. If the Department still needed more time, they had to write a letter to the Committee and say that the work that they were doing involved certain things and that it was not done yet, so that the issue could run smoothly.

The Deputy Minister said that the next item involved the Rental Policies of the Department. She thanked Members who had listened to what had been raised and said that the Department was taking all of the issues that Members had raised seriously. The Department would try by all means to ensure that this did not happen again.

SHRA Residential Rent Relief Programme (RRRP) Progress Outcome Report
Ms Mpolai Nkopane, Acting CEO, SHRA, led the presentation on the implementation progress of the Covid-19 RRRP for social housing and presented the Policy Overview. Mr Ahmed Bokhari, Research Specialist, SHRA, presented the progress report.

The Rental Policy was used to manage the implementation of the Rent Relief Fund (RRF). It provided a guideline for who was targeted by the fund, how the fund should be distributed to tenants, and some exclusions. It was a document that the SHRA had to review with the Department on an ongoing basis to make sure that maximum impact was achieved. The Policy prescribes that the RRF will be targeted at social housing beneficiaries who were in financial distress as a direct consequence of Covid-19. All social housing landlords, both public and private, would be eligible to apply on behalf of their tenants. Landlords would be conduits. The RRRP would be made available retrospectively for the hard lockdown period.

There were 358 applications from eight institutions in four provinces. From these, only 111 had been approved, 49 had been rejected outright, and there were 198 applications pending mainly due to little information. To date, R734 752 had been approved for disbursement.

On the funding allocation, the SHRA had received confirmation from National Treasury to retain the rollover. The capital amount would not be used to fund the operational expenses but the interest thereon would.

On marketing and communications, a drive was being run with the Department. A communication plan was being implemented and more media campaigns would be utilised to enhance the reach of the RRRP and announcements for applications.

The period of applicability was up until end of September 2020.

(See attached document for further details).

Ms N Tafeni (EFF) commended the Department for its initiatives to protect some of the most vulnerable housing consumers in the sector. What are the reasons for the application process only commencing in June 2021 whilst the impact that the programme was aimed at alleviating had already occurred between April and September 2020? What was the impact of the implementation of the programme in 2021 after the impact had occurred in 2020? Has it proven to be successful in alleviating and preventing evictions in the social housing sector in 2020?

Ms Mokgotho asked why the tenants who had lost their jobs in 2020 not informed on time that they were going to benefit from the rental relief measures. Why were they left to pack their goods or things and leave their rental units? If they had been informed on time about the rent relief measures, most of them would not have left. She thus wanted to know the reasons for the delay. Why did the Department delay in informing people that there was a rental relief policy which they intended to implement and assist people?

Adv Masutha said that it was clearly seen that the horse had bolted. It had not been clear to him how the Department’s programme reached those that it was meant to have assisted, now more than a year later. What was the criteria going to be? If, for example, in June/July 2020 he had lost his job, was not earning any income, and was kicked out of his residential home, but a year later after all of the suffering he was now in a better position and had since been able to move on, was he able to benefit from any of this? If he had been kicked out then, struggled, slept on the streets, and was still struggling today, did he benefit in any way from this programme? If so, how? Did the Department now contribute towards his accommodation going forward? Did the Department compensate him for all of the hardship he had incurred whilst he had been homeless over the last year or two? How did this really work? There were more questions than answers to him from the practicality side of it. He could see the good intention of the programme but its practical implementation seemed to be fraught with all kinds of complications, especially if talking of a period that had already happened and circumstances that had already occurred.

It may well be that the landlords, immediately when leaving a place, whether through being kicked out or leaving on your own volition because you could no longer afford it, did not keep a record of where you were going and might not even have any form of contact with you. Do beneficiaries have a right to approach the SHRA directly, and not through previous landlords, to say that they were a victim of the situation and ask for compensation? He added that the SHRA would then ask the beneficiaries for proof and that the onus would then be on the former tenant to approach the former landlord to produce proof that they actually used to be a lessee on the property. He was genuinely trying to understand how ex post facto anyone that was a victim of that situation was affected. Is it a compensation fund or a fund that only assisted people going forward? From which date until which date of suffering are you entitled to be compensated? What really is the form of compensation or support?

Ms Powell said that when the Covid-19 hard lockdown was announced in the previous year, there was a huge amount of public relations that was done on the RRRP for immediate relief. It was touted as a programme that was going to provide immediate relief and almost a year later the policy had still not been finalised. What took the policy framework so long to be approved? How could it have taken the length that it took? What is the status of the National Treasury rollover? She had submitted a Parliamentary question to the Minister who had responded about a month ago to say that one of the reasons that the fund had not been disbursed to date, at the end of October, was because they were still waiting for National Treasury approval for the rollover of R377 million. What is the status of that?

The table that she had been sent by the Minister was indicative of about 37% of what had been targeted had been applied for. In places like the Eastern Cape, the total number of applications stood at three applications from the entire province. In KwaZulu-Natal there were seven applications from the whole province. In the Western Cape there were 42 applications. What is the reason for the low take-up of this? What is the Department or the SHRA doing in terms of media and communications around informing people who would be the intended recipients of the grant that this is available? She knew that there was a lot of work being undertaken in terms of Twitter and online platforms, but the types of beneficiaries that were being looked at did not necessarily have this kind of access. From what she could tell, the presentation that Members had received was not the same presentation that the SHRA had presented. She asked that the presentation be distributed to the Committee.

Ms Seoposengwe said that it was really worrying to see the low applications from provinces. Did it mean that people had this information? How best was the information being circulated to people on the ground? Do people actually even know that there is such a grant? How much groundwork had been done to make sure that people got access to this grant?

The Chairperson said that one of the reasons the Committee had requested the Department to brief them on the Relief Policy was based on the fact that the previous Minister was against the evictions of tenants by landlords. That was when this Relief Fund was conceived and the process had been started to apply to National Treasury. Of the people who had probably lost their jobs there were those that were in backyard rentals, and understanding that the policy of the SHRA did not actually accommodate those people, how were they going to benefit out of the scheme? If there was any means, were these people aware of it? What would the Department do to make sure that people are informed of the situation? The Deputy Minister would remember that when they had dealt with the Ekurhuleni issue on the rental scheme of Ekurhuleni municipality where there were people who could not afford to pay municipalities, that the Committee had said that the Department should work with Ekurhuleni to see whether the tenant could not be assisted through this scheme. The Committee had emphasised that those people should actually approach the Department for assistance. In the list of Gauteng, are the tenants of Ekurhuleni included?

Department’s Response
Mr Tshangana admitted upfront that, as a Department, they were a little bit risk averse in administering the programme. The Department was also risk averse in the sense that they were packaging the programme at a time when there were too many investigations about other relief measures elsewhere. The Department wanted to get it right the first time and wanted to perfect the policy because it could not be broad. The Department did not have all of the money in the world to target all of the beneficiaries in backyards or who had formal arrangements with landlords elsewhere.

A lot of time had been spent debating about the target audience or beneficiaries because they did not want to send a message that they had all of the money in the world and could help anyone that was struggling with rent. A decision had then been arrived at to target those who were contracted to the Department as of 31 March up until 30 September 2020. The definition had to be narrowed given the fact that the Department only had R600 million at its disposal. The programme was managed by two entities. R300 million was managed by the SHRA, which targeted social housing institutions and other development agencies who were contracted to them as of 31 March 2020. The other R300 million was managed by the National Housing Finance Corporation (NHFC), also focusing on institutions which were contracted to the NHFC as of 31 March up until 30 September 2020.

The Department had had to narrow the target group because if it was broadened it would mean that they would have to return to the National Treasury and ask for money. The National Treasury did not have the money as they had previously told the Department that they had to make do with what they had as there were other competing demands in the sector. The Department thus had to make sure that there was policy in place before they started. Once the policy was in place, the controls had to be put in place so that the Department did not end up getting investigated by the Special Investigating Unit or other investigating agencies who were very active at the time. The Department had taken some time to perfect the policy and operational mechanism. The two entities did not have the capacity to run the programme, so the Department had to hire additional capacity and negotiate with National Treasury to make available the operational budget. This is because the R600 million subsidy that was made available was a capital budget, not an operational budget. The Department needed to make sure that the two entities had the operational budget and capacity to run the programme. It had taken some time. He was the first one to admit, as the accounting officer, that the Department was a bit risk averse and had taken some time because they wanted to make sure that the got it right the first time and geared themselves up. The SHRA had gone too far in terms of administering the programme. In fact, the SHRA was ahead of the NHFC. He said that perhaps, at some point, the Department would come and present to the Committee on how the NHFC was doing with the other R300 million that they were administering.

SHRA’s Response
Ms Nkopane said that on the question of the rollover, as the SHRA they had requested National Treasury to allow them to rollover those funds to the current financial year. They had done it as part of the SHRA’s request to retain their surplus. That had been approved and the SHRA now had the go ahead, which was why they were able to disburse the funds.

Ms Powell had asked about what other communication initiatives the SHRA had. The SHRA had gone through social media and had had tenant engagements in almost all of the provinces. In addition, there were also advertisements on radio stations that were specific to the language that was spoken in that particular province.

On the reasons for the low take-up, because of the delay in implementing the programme, both the tenants and the social housing institutions were still grappling with the nitty-gritty because there was a lot of detail that went into the application process. Earlier on when the policy was presented, the SHRA had spoken about the means testing that they needed to do. One of the things that would be looked for if a person was retrenched was a letter from their employer to prove that the person had been retrenched. If a person’s income had been reduced, then proof thereof would be needed, as well as bank statements and all documents required to be submitted. Tenants and social housing landlords thus took some time in getting themselves organised, such that they could submit all those documents.

There was an issue about evictions. During the hard lockdown period, and according to the regulations, landlords and social housing landlords were prevented from evicting tenants. There was thus a moratorium on evictions. Insofar as the social housing sector was concerned, as the regulator they had made sure that no tenants were evicted during that period. However, given that the sector had already been suffering with people losing their jobs, there were those tenants who had been defaulting on their rentals both before the hard lockdown and post the hard lockdown. The SHRA monitored the evictions to make sure that they were lawful and ensure that tenants rights were protected through that process. She assured the Committee that during the hard lockdown period, and as per the regulations, no evictions were undertaken. For all those evictions that were undertaken, it was found that the institutions would have had those court orders before. Even then, the SHRA had engaged with landlords, with the assistance of the Department, to make sure that sufficient work was done with tenants before landlords got to the eviction process.

Adv Masutha was quite right, the horse had probably bolted. This was why the SHRA had been continuously having these review conversations with the Department. There were some elements of the SHRA policy that were impacted on by the national policy framework, and there were then other elements that were impacted on by the regulations. The easiest part for the Department was reviewing the national policy framework but she was not so sure about the regulations.

A beneficiary could not approach the SHRA directly at the moment, because the policy stipulated that the funds had to be paid to a landlord. If this rule was to be relaxed, the SHRA would then need to get the Department to review the national framework such that it allowed them to be able to do so. As such, this was something that the SHRA strongly supported because if the fund was to have an impact then those tenants who were impacted during that period needed to be assisted. The nature of the Rent Relief Fund as it stood was that the funds were being provided retrospectively. Everything, including the impact, therefore needed to be retrospective. The SHRA was working on this with the Department. The applicable dates were 1 April to 30 September, which was an element covered in the regulations. She was not sure if anything could be done about the regulations but it was a conversation that the SHRA was having with the Department. Ms Powell was correct, because the SHRA was continuously getting applications, they had updated their presentation to take into consideration all old and new applications that come onto the system.

Mr Bokhari said that with regards to the provincial breakdown, the SHRA had also noticed a low up-take in provinces such as the Eastern Cape and had further probed the institutions there. One institution in the Eastern Cape could not apply because they had taken a poor decision to write off the debt. There were thus no arrears for the tenants because at a board level the debt was written off.

Another institution had found that, by screening the tenants, many did not meet the application requirements simply due to the stringent requirements. Another reason was due to non-performance, in that the institution did not take the initiative. The SHRA had then gone directly to that social housing institution to help them and probe them to package those applications. The institution had submitted the applications now in November, just past the cut-off date, and the SHRA had to re-evaluate their applications. When he said that the SHRA was looking at targeted strategies, they were seeing who was providing applications, and going down to an institutional level to try and get the tenants and staff to assist them in then packaging and submitting. The same as was done for the Eastern Cape was done in other provinces like KwaZulu-Natal.

Ms Nkopane responded to the question on the tenants being informed on time. Initially, if one looked at the timeline of events, as the SHRA they had had their approvals around October 2020 in anticipation of the programme. However, they did not have a formal announcement by the Ministry. The Budget Vote speech had taken place in May 2021. Before then, the SHRA had been cautiously communicating with the sector and had had engagements with the National Association of Social Housing Organisations and social housing institutions. Through them, they had then communicated with the tenants. As the SHRA, they had not communicated with the tenants at that point because they were themselves waiting for formal communication. The SHRA believed that when they had started communicating, and still now, that they were sufficiently communicating with the tenants and had in fact reached quite a lot of tenants.

Ms Funaneng Matlatsi, CFO, SHRA, said that the rollover request was submitted by the entities, both the NHFC and the SHRA. The process that was ran by entities in terms of the request for rollovers or retention of funds was different from the way that the Department had done it. The process was two-fold, being towards the end of May when they were supposed to be submitting their financial statements and then by July as they had to redo their application. The rollovers were both approved by Parliament and the SHRA was waiting for the tabling of the mid-term adjustment for the funds to be available to both the SHRA and the NHFC.

Deputy Minister’s Response
Deputy Minister Tshwete responded to the issue of Ekurhuleni. She reminded the Committee that at that time there was a petition coming from the DA Member concerning the rental tariffs of Ekurhuleni. Indeed, a resident in Benoni reported dissatisfaction with the rental policy of Ekurhuleni, especially the fact that the rental tariffs were based on income. This was discussed in the Committee. The responses that had been received from the City of Ekurhuleni was that they were following their policy. If she was correct, a decision was taken by the City to revise the policy and submit it to its Council meeting. With the help of the DG, she was going to make a follow up to check whether the policy had been revised. At the time that it was discussed, it was said and agreed upon to invite the SHRA so that they could assist in answering all of the questions, which they had done.

Department’s Response
Mr Neville Chainee, Deputy Director-General: Human Settlements, Planning and Strategy, DHS, said that, in terms of the policy and relief, it was intended and focused specifically on the regulated social rental market. This was the market that the SHRA had raised and clarified. On the aspect related to the backyard rental, the Department had approached this with caution particularly in relation to a range of things. At that stage there was compliance issues and regulatory issues, and there a caution which the Department approached in relation to that. One of the things that the Department had raised together with the municipalities and provinces particularly at the time that the evictions had taken place, and which was part of the programme that they had assumed would have been taken, was that the State of Disaster Regulations prohibited any evictions without a court order for that period. However, it was highly unlikely and the Department was not aware of any court orders that were actually granted during that period when the clause was in the State of Disaster Regulations. This also prohibited anyone, including people living in backyards with a verbal or written lease, from being evicted.

The Department had also taken steps to make sure that the provinces activated and made sure that the Rental Housing Tribunals were in fact active and were there to provide oversight and make sure that any disputes that arose out of people being evicted as a result of loss of jobs and income would be prohibited. The Department would in due course, once they had consulted with the Minister and she has approved it, bring to the Committee what the Department was doing in terms of revising their current policy. One of the things that the Department had taken cognisance of, and what was one of the lessons learned around what had happened in the previous year, was that the substantial amount of people that lived in backyards were unprotected and in fact suffered the greatest amount of abuse and trampling of their rights. This was one of the issues that the Department was taking quite seriously so that they could, as a matter of urgency, bring it to the attention of the Minister. The Minister could then apply her mind and bring that to the Committee as was done with all other policies.

Further Discussion
Adv Masutha thanked the Department for their attempt to respond to all of the difficult questions, some of which may have been beyond them. One that he wanted to highlight was a constitutional issue. The equality clause in section 9, Chapter Two of the Constitution of the Republic of South Africa, 1998 (the Constitution), said in its first part that everyone was equal before the law. The second part said that everyone therefore had equal protection and equal benefit of the law. If it was accepted that the Constitution took precedence over everything, it did not matter what the usual laws were and what any other law or policy was, all that a citizen needed was to go to the Constitution, find what the Constitution entitled them, and make their demand. The only excuse that the Department or government would have as a whole collective would be to demonstrate that whatever limitations were being put on such citizen’s rights fell within the limitation clause of the Constitution, the detail of which he would not go into. Whatever policies were adopted, whether as the Department or government as a whole, had to be anchored first and foremost in the Constitution. This was why he always told departments that whenever they came up with a policy or report, the first paragraph had to state the constitutional obligation or anchor upon which the policy is being proposed and being put forward.

The context of this was that today it had been heard that there was a social relief scheme which he was sure actually, amongst other things, sought to honour a constitutional obligation. That policy, in its design, clearly excluded people who were most in need of support from the same intervention. This exclusion was deliberate. Whether it was because of the limitation of resources or something else, that limitation needed to be justified as a government as a whole in terms of the limitation clause in the Bill of Rights. There was thus a serious challenge, which former President Thabo Mbeki had articulated saying that there were two societies: one which was part of the mainstream and another which was completely outside of it. The issue became how to deal with this. He had already told the Committee that at the Portfolio Committee on Social Development, when they had started back then after democracy, they had made sure that they tailored the system so that they had a single national framework that sought to honour the Constitution. He did not want to go back to how they had achieved it, as he had already done that before. He heard that National Treasury imposed requirements, for example that one must have their taxes in order before they could benefit from any of the relief measures in the small business sector or housing or any other relief areas, when it was known that there were many challenges that kept many people out of the system and yet they were often the very first people to submit.

What was very strange was that the government had clear measures to protect people from eviction irrespective of whether they belonged to the formal or informal sector by saying that nobody should be subjected to eviction. This was a beautiful achievement that was in line with the Constitution because it said that everybody had the right to protection of the law. However, on the second part where everybody has the right to equal benefit of the law, people then suddenly decided to abandon the Bill of Rights and only benefit those that were in the formal sector. These people were probably less vulnerable and probably had more than one kitty into which they could tap, whether it be at the Department of Labour or Department of Small Business etc. The people who generally got excluded in all of the relief measures then became the last to be considered for benefits. He thought that sooner or later there was going to be a constitutional conundrum. The whole of government needed to go back to the drawing board and say how, on the one hand, they were going to reconcile the need to do away with lawlessness where people avoided paying taxes or declare their incomes where they should and not benefit from wrongdoing. On the other hand, government had to say how they were going to make sure that people who were most vulnerable and really in need, but because the formal system did not even recognise their existence as whenever relief measures came they were never considered.

On how the policy framework’s delivery framework was structured, the SHRA was saying that they did not deal directly even with their beneficiaries of the formal sector that they had identified as they dealt only with the landlords. Why should he as a former landlord be interested? What is the incentive for him? Was there a fee that he could charge the SHRA for administering a public service on its behalf? Landlords were in the business of making money. The way that landlords made money was by charging rent in return for the accommodation that they gave and the SHRA was now asking them to do something more, namely all kinds of administrative functions that belong to the State. What incentive do landlords have to keep proper records, especially if people had already moved away and if there was nobody coming back to claim their rights? These were fundamental constitutional questions and one day he would be thanked for raising these questions. Ideally, the SHRA should be able to allow for a tenant or former tenant who had not been assisted by a landlord or former landlord to be able to appeal directly to the SHRA. The tenant should be able to say that there was this system in terms of which they were supposed to benefit and that their landlord was not interested because they had nothing to gain out of it as the benefit was ultimately intended for the lessee. This is so that the SHRA would be able to bridge the gap by ensuring those who qualified were not left out purely because of that dichotomy.

Department’s Response
Mr Tshangana thought that the comments that Adv Masutha was making were very relevant and valid. If one stepped out of the RRRP and looked at the affordable rental programme or social housing programme as a whole, it would be noticed that the SHRA dealt both with the landlords or social housing institutions themselves as well as with the tenants to see if the tenants had access to social housing in the other programme.

In the administering of the RRRP, it was the executive authority. The point that Adv Masutha was making was a valid one. The initial draft policy on the Rent Relief covered the entire spectrum of affordable rental in the market and all of the customers. The threshold had now been moved to those who earned less than R2 000. The Department had to be realistic and clear about what was doable and what was not doable. The fiscus also did not permit the Department to cover the entire spectrum because they were on a limited budget. The executive authority had arrived at a decision after consulting with legal advisors and a number of other people, that the Department needed to be clear and define the target market and justify why they were targeting that target market. It was not in the interest of the Department for the social housing institutions to go under. If the social housing institutions were going under, then it meant that the beneficiaries who were renting in these areas would also suffer.

The Department thus needed to be clear about what was doable within a short space of time, and what could be achieved. This was not to say that the Department was neglecting the entire market of people who were in the affordable rental space or social housing space. These people were dealt with in various ways and approached the Department in various ways. There was one case study in the Western Cape where one social housing institution was going under in Muizenberg and the Department had had to intervene and assist them because the tenants were not paying. The Department then had to mediate between the tenants and the landlord because that was what the regulator did most of the time; they found themselves in a space where they were regulating between the tenants and the landlords. As this was linked to rent relief, it was linked to Covid-19. The Department had said that the President and Cabinet had taken a decision that there would be a hard lockdown from 25 March 2020 and that it would be eased on 30 September 2020. The Department took a decision first to define the target period. The Department had said that they would not be in a position to cover everyone in the market, though they would have loved to, as it was the Department’s constitutional mandate to cover the entire spectrum of people who were in the affordable rental space. The Department needed to be realistic about what was doable between March and September.

The Department also said that they would target those people who were not in a position to pay because of the lockdown and who were contracted to the Department at the time of the lockdown. The definition had thus been narrowed. However, the non-government organisations and a number of progressive bodies wanted government to cover the entire spectrum. The Housing Act together with the Constitution allowed the Department to deliver progressively to various communities and acknowledged that the State may not be in a position to cover everyone within a short space of time. To provide affordable rental to everyone in South Africa was the Department’s constitutional mandate and they had to continue to do so. However, in terms of providing the relief to everyone, it was going to be practically impossible to administer it. Some people were in backyards and in those backyards people did not have formal contractual arrangements between the landlord and the tenant; there would be a loose arrangement. In some cases, there were families who stayed in backyards. The Department had a programme that spoke to backyard dwellers, but the RRRP was only targeting Covid-19 relief and not just relief in general terms. Any tenant who was affected during that period between March and September 2020 had every right to approach the Department both nationally and provincially, not just the SHRA, to seek relief.

The Deputy Minister thanked the Committee for affording them the opportunity to brief them on their rental polices and the implementation of the RRRP for beneficiaries affected by Covid-19. If there were any outstanding issues or concerns, the DG and his team would take note of that. In the previous year, the Chairperson used to say that the Committee was not only present to police as they wanted to advise the Department, which the Committee was doing exactly. The Department was not always right and would try their best to satisfy the Committee.

The Department and the SHRA were excused.

Consideration and adoption of the First Quarter Programme

Portfolio Committee on Human Settlements’ First Quarter Programme:16 February-30 March 2022
The Chairperson presented the draft First Quarter Programme of the Committee. A decision was taken that the Department had to intervene on the Housing Development Agency and the Estate Agency Affairs Board. Although they had reported to the Committee on their action plan, they needed to be brought back to look at the action plan and see whether there were timeframes. The item was moved towards the end of the quarter so that the Department could be given enough space to interact with the Auditor-General and the Department, so that when they came to the Committee there was not a similar problem as was experienced that morning. The item was thus shifted to around March to allow enough time. She asked for the adoption of the draft programme with the amendment that was made.

Mr Tseki asked if the Committee could have workshop on the Bill before they went out, if possible in the programme, even if it was two hours.

The Chairperson agreed. She thought that it could be held on the Wednesday before that, being the one she was saying should be shifted. She had forgot to mention that actually that was what she had said to the Committee Secretary needed to be included so that as the Committee went out they were able to address the Bill as Members.

Adv Masutha said that what had transpired that morning around the agenda for today, where the Committee had to unfortunately accede to the Department’s request for a withdrawal of an item for a later date linked with something that he had wanted to raise. He accepted that the Rules Committee and Programming Committee had an overarching responsibility to provide a broader framework within which portfolio committees could then develop their own portfolio-specific programmes. In as much as the Committee as Parliament had the prerogative to determine their own business and schedule activities accordingly, he thought that administratively it would assist if, once a draft programme had been developed and to avoid similar situations going forward, administratively there be some liaison between the Department/Ministry and the Secretariat on behalf of the Chairperson and Whip. This was to make sure that there was some level of coordination and synchronisation between the Committee and the Department so that they too could develop their own programme into the new year, including their own activities that were aimed at responding to the Committee’s programme well in time, so that come the day that they were to appear before the Committee they had had ample time and had been scheduled at a point in time where they in terms of their own activities would have undertaken all of the tasks that were necessary in preparation for appearing before the Committee.
This was just a suggestion as one administrative way through which the Committee could coordinate and manage between the two arms of State.

Ms Seoposengwe moved for the adoption of the programme.

Ms Sihlwayi seconded the adoption of the programme.

The Chairperson said that the programme would be amended accordingly and interact as requested by Adv Masutha. The programme would be circulated after the amendment.

Oversight visit to Banaero Park, City of Ekurhuleni
The Chairperson said that in terms of the Committee’s programme, after having received the petition from the Member representing the communities of Ekurhuleni, they had invited the Department. After their interaction with the Department, the Department then committed that they would assist Ekurhuleni and had given them R300 million to assist in the situation of Banaero Park. As it was an Urban Settlements Development Grant (USDG), and fell within Water and Sanitation, the Committee’s role would be to monitor the R300 million from the USDG that was given to Ekurhuleni municipality to resolve the problem in Banaero Park. The Committee was supposed to visit the city. She knew that the Committee had been interacting with Members to check their availability. At the time that the programme was tabled, there were no elections planned and no election preparations or outcomes. Therefore, if the Committee with Members’ permission suggested that they could probably give the new Executive Mayor and his team time to settle and then they could reschedule the visit if Members agreed to postpone it.

Adv Masutha thought that it was in similar vein as had happened that morning when the Committee had indulged the Minister to allow her the opportunity to do some work before she returned to the Committee on the earlier matter. For similar reasons he agreed with the proposal except that he thought that the manner of it should be that the Committee should not be the ones to assume that the new Mayor or government of Ekurhuleni municipality as a whole would not be ready to receive the Committee and deal fully with the issues. An olive leaf had to be extended to the municipality to say that the Committee acknowledged the fact that they were new and needed to be settling in and have the necessary consultative processes—even with the national Department—so that there was a better coordination both at an administrative and executive level. Further, therefore if it suited them, the Committee proposed a shifting of it to a later date in the following year which would be determined in consultation between the Committee and the municipality. This was how he proposed that the situation be managed. Of course, if the municipality said that they were ready to see the Committee the next day, then the Committee should go ahead as some Members had already confirmed their availability for that meeting.

Mr Tseki asked to be pardoned if he was out of order. The call that he had received was to visit the Eastern Cape, not Ekurhuleni. He supported what the Chairperson had said but made a rider of flexibility. He proposed the flexibility as the issue had been there for some time now. He proposed that the Chairperson go and visit Ekurhuleni and just call one of the opposition, and then come and give the Committee a report. He was worried about the postponements so was giving the Chairperson some flexibility on how to deal with the matter.

Ms Mokgotho disagreed with Mr Tseki’s suggestion. She thought that when an oversight visit was going to be done at Ekurhuleni that all Members should accompany the Chairperson. If it was possible for the Committee to also invite the Department, then they should do so. It should not only be the Chairperson and one opposition. She did not think that this was proper.

Mr Tseki said that he had suggested the oversight visit because of the many postponements.

The Chairperson said that Mr Tseki was out of order. Oversight should include all Members if it was done. Usually, because of the financial situation of Parliament, sometimes they dictated how many people should go on oversight. However, if it was local, all Members should go as it was all of their work. What the Committee would do with the proposal of Adv Masutha was that they would write to the new Mayor as soon as they left the meeting as she was not sure. One of the reasons she was suggesting that the Committee allow the municipality time to settle was because they might not have received this information. So the Committee would write an official letter to the new Mayor and the Speaker, indicating to them the Committee’s intention to visit the municipality. The Committee could then look at them. As the Committee was going for the Gauteng public hearing, they could use the one Wednesday to visit Ekurhuleni. It would thus not be delayed so much. The Committee could utilise the fact that they would be going to Gauteng at some point for public hearings and would then schedule a visit to Ekurhuleni.

Adv Masutha said that, on the budgetary constraints, some Members lived in Gauteng so the Committee could rest comfortably knowing that they did not burden the Committee much when activities of the Committee were located there. He added that he was speaking for himself.

Ms Mokgotho concurred.

The Chairperson thanked Members. She told the Committee Secretary that she thought that in the next meeting the Committee should have the minutes that had been returned back to her. This was so that the Committee could close with finalising all of those minutes.

The Committee Secretary noted the Chairperson’s request.

The meeting was adjourned.

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