Rental Housing Bill (B29-99): discussion

Meeting report

HOUSING PORTFOLIO COMMITTEE
7 September 1999
RENTAL HOUSING BILL (B29-99): DISCUSSION

Documents handed out:
Amendments Agreed To: Housing Rental Bill (see below)
Commission on Gender Equality submission on the Rental Housing Bill (see appendix)
COSATU's submission on the Rental Housing Bill

SUMMARY
The committee agreed to the drafted amendments and further clarified certain aspects of the Bill. The submission from Commission on Gender Equality was accepted for perusal after a discussion on whether it could be admitted at this stage of the proceedings. Formal consideration of the Bill will take place on 8 September 1999.

MINUTES
The committee went through the drafted amendments proposed in the previous meeting and found them to be correct.

Mr T Khoza (IFP) requested that in future such amendments be made available to members before the following meeting.

Mr P De Vos (DP): The definition of dwelling includes rooms rented by servants. Is that the Bill’s intention?
Director-General, Ms M Nxumalo-Nhlapo: If the relationship is between the occupier and the owner then the Bill does apply, but if the relationship is that between an employer and employee then it is covered under the contract of employment.

Dr Pheko (PAC): Should we continue to use the term "hut"? The word "hut" does not exist in the African culture. We should stop using colonial terms.
D-G: The definition is used for the purpose of clarification and if we leave out the word it will not be able to cover those dwellings.

Mr Skhosana (ANC): Section 13 deals with the right of a group of tenants and landlords to lodge complaints. Can’t we allow other institutions such as the Human Rights Commission and the Gender Equality Commission to have the right to object?

Section 4 deals with the rights of tenants is it not important for the Bill to go into depth on issues such as sexual harassment by a landlord to ensure that people are protected by this Bill.
D-G: There is a problem in using a piece of legislation relating to housing to deal with criminality. The Constitution deals with those issues. I will consult with the legal advisor to ascertain whether to insert a clause which covers human rights.

State Law Advisor, Mr S Netshimboni: We are finalising the Promotion of Equality Bill. The Bill will address all questions relating to violation of human rights.

Chairperson: The term "landlord" is perceived as being a sexist term
D-G: This is covered in the submission from the Gender Equality Commission and we have to look at that - they have proposed the use of lessor and lessee.

Mr Lee (DP): Are we going to entertain the submission by the Gender Equality Commission (CGE)? How are we going to entertain this late submission?

Mr D Montsitsi (ANC): At this stage we can consider it as long as we have not reached the formal stage of consideration.

Mr Khoza (IFP): Section 14 allows the local authorities to establish Rental Housing Information Offices. To what extent can they resolve disputes? Is there any problem in creating local tribunals?

D-G: The local government role is to establish information offices. The information offices assist landlords and tenant with information and they provide advise. Information offices cannot be converted to tribunals. The role of the local government information office is to assess the situation and provide information and advise to the parties. If the matter is serious, it refers the matter to the tribunal.

Mr Lee ( DP): Where the local government is the lessor who will solve the problem and who will decide that the matter is urgent because they have an interest in the matter.
D-G: The lodging of complaints is done at the tribunal and not the information office.

Mr Skhosana (ANC): Explain Section 10(11) and is there a closed session when the tribunal takes a decision?

D-G: If the decision is taken and there is a vacancy in the membership of the tribunal, we cannot say that decision is invalid because there was that vacancy. The fact that any person who was not supposed to be present when the decision was taken, does not invalidate the decision if the decision was taken by the majority of the tribunal members. The meeting of the tribunal will be open to the public. The tribunal will hear the evidence in public and the decision will be give to the public.

Discussion on whether to accept submission from Commission on Gender Equality
Mr Lee (DP): When we proposed public submissions, this motion was voted down. In principle I do not have problem with public hearing.

Mr Khoza (IFP); What we should decide is whether we can open for public submissions at this stage. I suggest that we revisit what we have decided.

Mr Skhosana (ANC): The D-G should look at the Commission on Gender Equality submission and consider their points and treat the submission like any other written submission.

Mr Khoza (IFP): We are bending the rules of presentation. Let's allow presentations and ask questions.

Mr Lee (DP): Rule 240 specifies how we should deal with submissions. We are not going according to what Rule 240 says.

Committee Clerk, Mr M Makhari: Rule 240 is dealing with draft Bills which have come before parliament. Rule 249 deals with the tabled Bill before the committee. If we clear the confusion, we will be able to deal with the problem.

Mr D Montsitsi (ANC): If we open up for submissions then we will not able to pass the Bill in time.
The committee clerk: The ruling taken by the committee did not say no-one could write to the committee about the Bill. The decision still remains whether the committee will entertain that submission.

After this discussion, it was decided that the written submission by the Commission on Gender Equality be accepted and the D-G would consider it.

Mr Lee (DP) wanted to know if they would be allowed propose amendments the following day. The Committee clerk said that such last-minute amendments can be made but they have to be done as part of the committee report. The Chairperson added that if the DP wanted to submit proposals at this stage, they have to do so in writing so that it can be formally perused by the committee.

The next meeting will on 8 September 1999.


Appendix 1
Amendments Agreed To: Housing Rental Bill [B 29 - 99]

CLAUSE 1

1. On page 4, in line 36, after "house," to insert:
hostel room,

2. On page 8, in line 37, after "address", to insert
, including the street number and further description, if necessary,

3. On page 10, in line 3, to delete paragraph (f) and to substitute the following:
(f) at the expiration of the lease the landlord 'd tenant must arrange a joint inspection of the dwelling to take place three days prior to such expiration with a view to ascertaining if there was any damage caused to the dwelling during the tenant's occupation thereof;

4. On page 12, to insert the following paragraph after line 39
(c) a deputy chairperson, appointed by the MEC from the members referred to in paragraph (b) above.

5. On page 12, in line 47, after "must", to insert
, within one month of such vacancy occurring,

6. On page 14, in line 35, to delete subclause (9) and to substitute the following:
(9) A member or any alternate member of the Tribunal must not attend or take part in the discussions of or decision-making on any matter before the Tribunal in which he or she has a direct or indirect pecuniary interest.

Appendix 2:
Commission on Gender Equality submission on the Rental Housing Bill

Submission to the Portfolio Committee on Housing:
Concerns of the Commission on Gender Equality on the Rental Housing Bill (B29-99)

Introduction
The Commission on Gender Equality (CGE) is an independent, statutory body established in terms of Section 187 of the Constitution of South Africa, Act 108 of 1996.

The role of the CGE is to promote respect for gender equality and the protection, development and attainment of gender equality. The powers and functions of the CGE are detailed in the Commission on Gender Equality ACT 39 of 1996. In terms of Section 11(1), the CGE must inter-alia evaluate any law proposed by Parliament, affecting or likely to affect gender equality or the status of women, and make recommendations to Parliament with regards thereto.

The Commission welcomes this opportunity to engage with the Committee and to make this submission. Lessor-lessee relations are essentially unbalanced in terms of the implicit economic power they manifest. This economic disparity is easily exacerbated by gender differences. Hence we find it crucial that the Committee engage its self on the gendered implications of the Bill and submit the following for your attention.

Chapter One
Terminology
The Bill includes the term landlord. Historically this term has referred primarily to male owners of property. The term propagates for the historically unbalanced exercise of power in the relation between property owners and those to whom they rent property. It further represents the power dynamics emanating from the historical restrictions on women’s rights to own property.
In the presentation of this Bill the committee has the opportunity to ensure that the culture surrounding the leasing of property be transformed to ensure equality across gender, race and class divides. We therefore suggest that the Bill be re-drafted to remove potentially prejudicial gender-specific terminology. Hence, terms ‘lessor’ and ‘lessee’ should replace the terms ‘landlord’ and ‘tenant’ respectively.


Chapter Two
Rural Development
2(1)(a)(ii) has a particularly urban focus and fails to ensure similar developments in rural areas. We suggest that inclusions be made to ensure that the Bill encourages development of affordable rental housing in rural and historically disadvantaged areas.
Suggest the following addition:
2(1)(a)(ii) be adjusted by adding "…. encourage development of affordable rental housing in rural and historically disadvantaged areas; and" after "revitalisation and resuscitation"

2(2)(c) this sub-clause promotes higher residential densities. Care should be taken to ensure that the residential densities are maintained within reasonable standards to ensure healthy living conditions, particularly for women and children living in urban areas. Of particular concern is the security of women in areas of high residential density. These areas in particular ought to be developed with specific attention to the safety of women working and living in them. Particular provisions for this could be included in regulations. An example of this would be in ensuring that walkways are well lit, that recreational grounds are provided for children and that security features be made standard aspects of governmental rental housing.

Genuine Visitors
The Bill makes no definition of this term, thus rendering problematic the determination of who is or isn’t a ‘genuine visitor’. Further to this is the matter of who would determine the legitimacy or other wise of a visitor.
We suggest that the Bill define the term and that, in so doing, it highlight the Constitutional provisions of the freedom of association and that the Bill also endeavours to protect this right.

Written Agreements
The Committee debated extensively on the issue of the necessity of written agreements between lessors and lessees. We propose that all leases be written leases. In our experience of working with domestic and farm workers where levels of illiteracy are relatively high we have found it most effective to ensure that agreements are written. From this it would follow that the onus would fall on the literate party to explain the terms of the contract are explained to the lessee.
Requiring lessees to request lessors to "reduce the lease to writing" assumes that lessees feel sufficiently empowered to request this.
To ensure that illiterate workers are not prejudiced in any way, we suggest the department explore developing a standard contract detailing the minimal mandatory requirements of all parties. Should parties wish to make additions they would do this independently. This would ensure a minimal measure of formal protection for parties. This would further serve to ensure that all the relevant issues are discussed and agreed to by both parties. A similar approach was adopted by the Department of Labour, regarding farm workers. The Department of Labour has accompanied this with a Code of Good Conduct outlining how to engage with people who are not literate.

Chapter Three
Sexual Harassment
4(3) outlines the lessee’s rights as against the lessor. The differentiated power structure inherent in the lessor - lessee relationship is a prime site for the leverage of unequal power based on gender differences. Women, men and individuals of homosexual orientation can experience real feelings of dis-empowerment in their quest to secure accommodation for themselves and their dependants. Hence we believe the rights of lessees would be greatly advanced if the provisions of 4(3) included the right not to be harassed sexually. Should this suggestion be incorporated into the Bill, it would have to be accompanied by a definition of the term sexual harassment.

We welcome clause 5(4) which ensures a minimal standard of protection for individuals.

Chapter Four
Provincial Legislation
Clause 6 requires that this chapter only apply to Provinces who do not presently or at any time in the future have their own legislation in this regard. Of concern are provinces who currently or in the future enact legislation that is less progressive than this chapter. The advances made by this Bill in the provisions of this chapter could easily be undermined should this chapter not be established as the minimal requirement. To do this would require that other Provinces either comply to the minimum standards of this chapter or promulgate more progressive requirements.

Composition of the Tribunal
As it stands there is no requirement ensuring a gender balance in the representation of those serving as members of tribunals. To this end, we recommend, in the strongest terms, that the Bill be adjusted to ensure that, in addition to the current requirements, at least two of the five members of the tribunal be female.

Meetings of Tribunals
We suggest that Clause 10 include a provision for a code of conduct for members that precludes sexual harassment either amongst members or between members and complainants. Particular focus must rest on the access of Members, Staff and Rental Housing Information Officers to leased property. To enable this we suggest that the requirements applicable to the lessor in 4(3) (inclusive of our recommendation regarding sexual harassment) apply equally to Members of the Tribunal, Staff of the Tribunal and Rental Housing Information Officers

Complaints
Clause 13 does not allow for Rights Organisations to lodge a complaint with the tribunal.

Review and Appeal
The Bill allows for review of the decision at the high court – this is expensive and inaccessible to the majority of the poor and the illiterate. Further it does not allow for appeal of the decision. It is suggested that an appeal be accessible through the office of the MEC. It is, however, necessary to provide a point of appeal that is as accessible as the complaints process.

Regulations
We suggest that Section 15 include a caution to ensure that all processes adopted are accessible to those who are not literate as well as those who reside in remote areas. Of particular concern is the process for lodging complaints. In keeping with the requirements for just administrative action attention should be drawn on the necessity of those involved in these processes to ensure that individuals are prejudiced by neither their level of literacy or their geographical location.

Conclusion
The CGE understands that adjusting the Bill to take our submissions into account may prolong the passage of the Bill. However, we strongly recommend that this not determine the outcome of a piece of legislation essential to the manner in which ordinary people access and control their personal living environments.

Once again the Commission thanks the Committee for the opportunity to present a submission on this Bill.