DALRRD briefing on Sectional Titles Amendment Bill; with Deputy Minister

Meeting report

Chairperson’s Opening Remarks

The Chairperson welcomed the Committee and the Department of Agriculture, Land Reform and Rural Development (DALRRD). She told the Committee that all Members from the different provincial legislatures and not just permanent Members of the Select Committee have the right to raise questions.

The Committee considered the agenda for the day.

The Chairperson said that she received an apology from the Minister, Ms Thoko Didiza, who was attending a Cabinet meeting. Deputy Minister, Mr Mcebisi Skwatsha, joined the meeting in her place but advised that he will leave early to attend another meeting. The only other apology she received was from Ms C Labuschagne (DA, WC). She asked the Committee if it accepted the apologies and the agenda for the day.

Mr C Smit (DA, Limpopo) said that he does not accept the apologies from the Minister and the Deputy Minister because it was the second time that they have not been able to attend Committee meetings to answer questions.   

Other Committee Members supported this.

Mr M Nhanha (DA, EC) suggested to the Chairperson that the meeting be postponed until the Deputy Minster or Minister are able to join.

Although other Committee Members supported this, the meeting proceeded.

Overview of the Sectional Titles Amendment Bill 2020

Mr Mooketsa Ramasodi, Director-General, DALRRD, introduced the Department.

Ms Antoinette Reynolds, Deputy Registrar of Deeds, took the Select Committee through the Sectional Titles Amendment Bill.

She discussed the objectives of the Bill, stating that it speaks to the Sectional Titles Act, 1986 (Act 95 of 1986), with the objective of improving and enhancing the application and implementation of the Act. She explained which clauses have been added to different sections in the Bill, to address the issue that has been identified, being:

• Clause 1: The definition of ‘Exclusive Use Areas’ (EUA) was amended as it could be interpreted to exclude any person other than the owner from using the EUA. The definition of ‘Sectional Title Schemes Management Act’ was amended to be a 2011 Act, because it was incorrectly referred to as being a 2010 Act.
• Clause 2: Section Four deals with the approval of development schemes and allows developers to have meetings with lessees where a building is to be let for residential purposes. Amendments to this Section will allow for a lessee’s representative to act on behalf of such a lessee in instances where a lessee is absent from such a meeting.
• Clause 3: Section 14 deals with the amendment and cancellation of Sectional Plans (SP). However, this section only provides for dealings with sections that are affected by incorrect SPs and not for EUAs. Section 14(8) provides for cancellation, upon application by a developer, of a SP by court order. Section 14 must clarify the provisions to follow where a Body Corporate (BC) exists and the court makes an order for the cancellation of a SP.
• Clause 5: Section 17(4B) provides for alienation of a portion of the SP on which an EUA or part thereof is registered. The Act does not provide for dealings with parts of EUA and s17 must be amended.
• Clause 7: Section 21 deals with the approval of plans of subdivision or consolidation by the Surveyor-General (SG). However, Section 21 does not provide for a developer to cause a land surveyor to submit a draft sectional plan of subdivision or consolidation to a SG for such approval. This Clause will address this issue.
• Clause 8, 9 and 10 were handled together because they contain similar proposals in respect of the consolidation and extension of sections: Section 22 deals with registration of subdivisions of sections. However, section 22 does not provide for developers, prior to the establishment of Body Corporates, to apply for registration of SPs of subdivisions of sections. The insertion of sections 22(1A) and 22(2)(eA), in clauses 8(a) and 8(e), aim to provide for this insertion. Section 22 provides for endorsement of deeds that have been registered against title deeds of sections in order to reflect subdivisions of such sections. However, section 22(2) ignores reference to leases. The insertion of section 22(2)(cA), in Clause 8, aims to resolve this matter.
• Clause 11: Section 25 deals with extensions of a scheme. Section 25(2) provides for filing in a deeds registry of a plan to scale showing the part of the CP affected by the reservation and the manner in which buildings are to be subdivided into sections and EUA. However, does not provide for replacement documentation to be filed in instances where such documentation has been lost or destroyed. Clause 11 in the Bill will address this issue.
• Clause 15: Section 54 provides for the establishment of a Sectional Titles Regulations Board. The amendment of section 54 provides for gender issues and the appointment of a Registrar and another conveyancer with practical knowledge on matters pertaining to the registration of sectional title units and the opening of sectional title registers.

Discussion 

Mr A Arnolds (EFF, WC) made a few comments regarding the presentation. He started off by saying that the Sectional Titles Act of 1973 and 1986 have been amended in the past and no major breakthroughs from the basic structural principles have been made. According to him, the structural principles are based on institutional racism and segregation policies of the past. All the amendments that have been made were merely cosmetic, superficial and unsustainable ‘changes’ without any meaningful transformation for example the Sectional Titles Act of 1985/1986. He said that the target that the Bill set out back then, which was concerned mainly about the poor, especially Black people, never envisioned Black people owning land and residing in urban areas. The Sectional Titles Bill only worked for rich people and it does not work for the poorer people, who live in low-cost housing. He said that the amendments are not aimed at making any radical shifts or changes that would allow people access to land on a fair and equitable basis. The Economic Freedom Fighters (EFF) do not support the Sectional Titles Bill.

He said that he had several follow-up questions for the DALRRD, but that he would raise them with the Department after the meeting.

The Chairperson reminded Mr Arnolds that he was a Member of the Committee and not at an EFF rally.

Mr Smit wanted clarity on the tagging of the Sectional Titles Bill because an original memorandum tagged the Bill as a s76, when the Bill was introduced at the National Assembly, and now it has been tagged as a s75. He asked the Department to provide the Committee with clarity on this matter and to explain why the Bill is tagged as it is.

He pointed out that there were various issues when it came to the availability of land and the problem of ‘backyarders’, where people reside in the backyards of their family members. He asked if the Department has made any provisions on that matter. Whether or not the Department has looked at providing a sectional title where there is more than one family member residing on a single piece of land and easing it out in order to be able to sort out the problem of property ownership. He highlighted that there are various challenges around this matter, especially in urban areas, where land is limited.

Ms W Ngwenya (ANC, Gauteng) asked whether the Department has any plans in place to address the confusion in various legislations, especially in those matters that deal with the sectional titles, some of which are found in the DALRRD and others are found within the Department of Human Settlements. If yes, can the Department elaborate on that? If not, why not?

Will the Department conduct an education and awareness campaign in order to inform both the honors and the public of their rights and responsibilities when it comes to taking ownership of housing in the sectionally titled establishment. If yes, how does the Department plan on conducting such a campaign? If not, why not?

How did public and civil society organizations’ react during the public hearing process that was conducted at the time when the Bill was introduced before the Portfolio Committee of the National Assembly? Was the Bill welcomed or rejected? She asked the Department to provide the Committee with a full report on this matter.

She said that her observation of the Sectional Titles Amendment Bill is that it is a progressive piece of legislation, which is in line with the country’s developmental needs in addressing the issues around land ownership. On the basis of her observation, she said that she supported the Bill.

Mr Arnolds said that, when it comes to Section 4: The Development Scheme, he noted that there is a clause that states that when there is an extension of a development, the members who are a part of that scheme have an opportunity to also provide their input and have meetings. However developers have a lot of money and they usually threaten communities with court cases when do not want to cooperate or support the developments.

Responses

Ms Reynolds addressed the question of the housing issue, especially for the less fortunate. She noted and appreciated the comment that was made by Mr Arnolds. She mentioned that the Sectional Titles Act is very technical and that it only deals with registration and surveying matters. In other words, it only deals with matters pertaining to the drafting of sectional plans; the approval of sectional plans by the surveyor-general; and the registration of the various documents, sectional plans and schemes.

On the question concerning s4 of the Bill that deals with the approval of development schemes and the managerial issues, these are all dealt with in the Sectional Titles Schemes Management Act, Act 8 of 2011 and it is administered by the Department of Human Settlements under Act 9 of 2011, the Chief Ombud Service Act. This Act specifically provides a Chief Ombud to go into the managerial matters where the sectional title owners and tenants have problems with the living standards and the sectional title issues. All these matters are dealt with by the Department of Human Settlements, in Act 8 of 2011 and Act 9 of 2011. She repeated the fact that the Sectional Titles Act is merely technical in nature, as it only deals with registration and surveying matters. The managerial and living standards issues are dealt with in completely different legislation – the Sectional Titles Schemes Management Act 8 of 2011.

The Bill was originally tagged as a s75 Bill. However, she said that it was changed to a s76 Bill at a previous meeting. She mentioned that the certification/pre-certification by the State Law Advisors Office was of the opinion that the Bill was a s75 Bill and not 76. This matter needs to be raised with the NCOP.

On the rights and responsibilities of the owners, she mentioned before that the Sectional Titles Schemes Management Act 8 of 2011 and the Chief Oumbud Service Act deals with these matters. Therefore, owners need to approach the Chief Ombud or the Department of Human Settlements.

On the amendments of the Sectional Titles Act, the Chief Registrar’s Office is responsible for the registration matters that are being changed. The Chief Surveyor-General’s Office will issue circulars on the surveying matter that need to be changed. The Law Society of South Africa and the Legal Practice Council also inform the Sectional Titles Regulation Board and they inform their members who deal with the technical matters of the registration and amendments processes.

She said that they have received various complaints from the public around land ownerships and sectional titles schemes that were not looked after very well

Ms Carlize Knoesen, Chief Registrar of Deeds, was called to answer a few of the questions but she was not available.

Mr Ramasodi apologised for Ms Knoesen’s absence and addressed some of the questions. He wanted to clarify some of the issues that the Department deals with. Regarding the matter of the backyard owners, the Department does not deal with these matters. However, he said that they would look into the matter that was raised by Mr Smit.

On the issue of the legislation, he said that there would be different pieces of legislation. There are no plans, as of yet, to merge legislations because the legislations deal with different aspects, even within a composite area of deeds.

Deputy Minister Skwatsha highlighted that this was an important engagement. He said that we must all appreciate the process of rebuilding the country into a better place. It is a challenge that will take some time. He said that we will not always see this part as fundamental in transforming the country but this Act is a very important piece of progressive legislation. He thanked the Committee for their comments and said that their comments always help the Department in bettering, refocusing and shaping the Bill into something that will serve the better interest of the people.

Ms S Isaac, Parliamentary Legal Advisor, made a comment regarding the tagging of the Bill because it is something that is done by Parliament. She said that the Bill was introduced as a s75 Bill, however, that was just the suggested tagging. The Bill goes through a joint tagging mechanism, that is made up of the Speaker and the Chairperson and she confirmed that the Bill was tagged as a s76 Bill by the NCOP.

The Chairperson thanked Ms Isaac for clarifying that matter.

Mr Smit thanked Ms Isaac for providing the Committee with clarity on how the Bill has been tagged because he was confused when one of the members from the Department mentioned that the Bill was tagged as a s76 because that would mean that the Department would be amending the Constitution.

Have the amendments to the Bill been sent to the provinces for their input because there was a lot of confusion around the tagging of the Bill? He asked if Deputy Minister Skwatsha could make a few comments on the amendments that have been made and why he thinks that these amendments are progressive.

Mr J Nyambi (ANC, Mpumalanga) joined Ms Ngwenya in emphasising that this is progressive legislation that will go a long way. He said that part of the issue that they have to deal with is what they have to do as provinces, but he said that that will be discussed when they are done with the Department.

Mr Smit pointed out that Deputy Minister Skwatsha still had to answer his outstanding question.

The Chairperson asked the Department to answer the outstanding question in writing so that it could be shared with the whole Committee. She thanked the Deputy Minister, the Director-General and the Department.

Mr Smit said that he was disappointed in the Deputy Minister and demanded that he answer the question.

The Chairperson said that he was in another meeting and that he will respond to it in writing because maybe it is a difficult question.

The Chairperson was busy thanking the Committee when Deputy Minister Skwatsha entered the Zoom meeting to answer the question.

Mr Smit repeated his question and asked why he thought that it was progressive legislation in terms of amendments and what specific amendments he thought were progressive.

Deputy Minister Skwatsha said that he will attempt to answer the question. It was a rather strange question but he said that all pieces of legislation that have been advanced by a democratically elected Parliament are meant to be progressive – to undo the mistakes of the past. On which amendment(s) he found progressive, he said that any Committee deals with undoing, therefore all amendments are progressive in dealing with that.

Mr Smit said that Deputy Minister Skwatsha gave a vague answer.

Mr Nyambi interrupted with a lighthearted comment.

The Chairperson excused the Department from the meeting.

Committee matters

The minutes and the Committee Report of the previous week were considered by the Committee. The Chairperson allowed an opportunity for the Committee to raise questions if they had any.

The minutes with a minor amendment to a Member’s attendance were adopted.

Mr Smit said that he was concerned that the Committee was already handling the Committee Report before the deliberations have been finalised on the matter. He recalled that another meeting had to be scheduled where the political office bearers (the Minister and Deputy Minister) would be available to answer questions.

The Chairperson raised Mr Smit’s concern to the Committee and asked if they seconded his concern.

Mr M De Bruyn (FF+, Free State) agreed with Mr Smit and the concern was opposed by no one.

The Chairperson said that the Committee will not accept the report and that it would wait until the political office bearers were available.

Mr Smit pointed out that the Committee still had to discuss the way forward on the Sectional Titles Bill, s76.

The Chairperson thanked Mr Smit for reminding her.

Mr Smit said that they need to ask the staff component whether they handled the piece of legislation in terms of s75 or s76, to ensure that the provinces are aware of this so they are able to allow public participation.

Mr Kobus Jooste, Committee Content Adviser, pointed out that the Bill was still listed as a s75 Bill on the programme and he will have to raise the issue with the Committee Secretary and discuss what has been communicated to the provinces and how the Bill has been treated, as a s75 or a s76. He said that he will get back to the Committee about what the procedure will be going forward.

The Chairperson thanked Mr Jooste and said that she also thought that the Bill was listed as a s75. She said that the Committee will address the issue and it will be communicated to the provinces. She thanked the Committee for making time to join the meeting and for participating in asking questions.

The meeting was adjourned