Housing Consumer Protection Bill: DHS response to negotiating mandates; with Minister

Meeting report

The Chairperson spoke to the objectives of the Bill which sought to regulate the home building industry to ensure that consumers were protected and got quality housing; to provide for the continuance of the National Home Builders Registration Council as the National Home Building Regulatory Council; to provide for the registration of homebuilders and the enrolment of homes to be covered by the home warranty fund.

The Chairperson  acknowledged the presence of the Minister who would take over from the Chairperson. He confirmed that the Department had been given all negotiating mandates two weeks before and they would be expected to respond to every clause meticulously and in detail.

Minister's remarks
Minister of Human Settlements Mmamoloko Kubayi said that they had indeed received the negotiating mandates from the Committee and the Acting Chief Director of  Legal Services would present the DHS responses. Some of the concerns raised would fall under the regulations and would be considered as such. On the capacity concern, she assured the Committee that once the Bill is passed, it would be easier for the NHBRC to implement the required processes.

DHS responses to negotiating mandates
Mr Paul Masemola, DHS Acting Head: Legal Services, went through the Department’s responses to the negotiating mandates which proposed amendments and replied to concerns raised during provincial public hearings such as the role played by the Department of Human Settlements, NHBRC and municipalities, warranties for structural defects in houses older than five years and why the Bill does not cover electricians and plumbers (see document).

Discussion
The Chairperson  thanked Mr Masemola and asked the Minister if she would like to add on to what was said or give clarity if necessary.

In response, Minister Kubayi said she had nothing to add but instead would welcome the questions the Committee had for her.

Mr R Badenhorst (DA, Western Cape) asked if provinces would be given an opportunity to review the DHS responses post-meeting and then send in their comments as they had little time to do so prior to the meeting. Just in case they would not have that opportunity, he would like to make two comments about the responses.

The Chairperson replied that they have received the Department responses. It is up to the provinces to discuss those responses and come back to the next meeting with a final mandate on the proposed amendments to the current Bill and ensure every question is answered. If Mr Badenhorst needed clarity on anything, now would be the perfect time to do so.

Mr Badenhorst referred to point 3 of the Western Cape negotiating mandate on clause 13 of the Bill. The DHS response was that clause 13(6) speaks to a service level agreement (SLA) but when referring to the Bill it says that the court may enter into agreements and makes no reference to a service level agreement. He would like the Department to clarify where this is stipulated.

Secondly, point six refers to clause 67 that speaks to the term 'adjudicate'. The Department’s response was that 'adjudicate' is a legal generic term. It then becomes a problem because the clause is a prescriptive clause as it states that the alternative dispute resolution agent must adjudicate. The definition of 'adjudicate' means to judge which takes away the remedies such as mediation and negotiation. This means that the  alternative dispute resolution agent must now judge. Hence, the Western Cape is seeking clarity on the usage of this word in the clause.

Ms S Shaikh (ANC, Limpopo) had a concern about the Limpopo negotiating mandate. It had clear recommendations for the amendment of the Bill based on the public comments. DHS had given responses to the other provinces but did not do the same with Limpopo. The Department should revisit the Limpopo report and extend the same courtesy.

Mr Masemola replied that the Department had responded to what they had received. He requested that they receive the complete documentation so that they may respond in full.

On the SLA, the Bill does not refer to a SLA, but the Department decided to include it in their response because the NHBRC board was still in the process of concluding the SLA and the board intends to use the Constitution as their guide in this process.

On the term adjudication, he defined it as a process in which you give a resolution between two parties; it could either be through arbitration or adjudication. They would ask the parliamentary and state law advisors if the term is applicable in the clause or not.

The Minister had no further comments but did state that the use of adjudicate has no punitive intention but you are equally adjudicated. The NHBRC may decide if a matter goes for adjudication or not and this will be detailed in the regulations. The law only covers the broader concepts and the details are captured in the regulations.

The Chairperson  emphasized once more the importance of responding to all the negotiating mandates to ensure the success of the adoption of the new Act. The Committee would read the Department responses once more so that everyone is on the same page when the next meeting takes place. The Committee is still waiting for the written submissions from the public. Once they have received them, the same procedure will be followed.

Meeting adjourned