Negotiating Mandates on Housing Development Agency Bill; Social Housing Bill: proposed amendments

NCOP Public Services

04 June 2008
Chairperson: Mr R Tau (ANC, Northern Cape)
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Meeting Summary

The Committee agreed on the NCOP proposed amendments to the Social Housing Bill. They would take these to the provinces in order for each province to obtain a clear voting mandate with no conditions attached to its acceptance of the Bill and the NCOP proposed amendments.

Turning to the Housing Development Agency Bill, the negotiating mandates from each province were read out. Members for all provinces said that they had been mandated to support the Bill, subject to certain proposals, which they had listed in their written mandates. KwaZulu-Natal requested an extension to submit that province’s mandate.

Several important issues were raised. These included the question of whether consultation with local communities had been thorough enough given the tight constraints of the NCOP legislative cycle, the need for the inclusion of traditional leaders in the process of public hearings, especially in rural areas, and consultation with other stakeholders.

Several questions were asked about the power to expropriate land for housing purposes. The State Legal Adviser explained that this was the sole prerogative of the Minister of Public Works but that the Minister of Housing could expropriate via a request to the former. Committee discussions also focused on the source of funds for housing development, the representation of provinces in the Housing Development Agency, the responsibilities of the Housing Development Agency, the oversight of Parliament over the agency, the fate of institutions like Servcon and Thubelisha and the financial implications of the Bill.

The Committee requested the Department submit a written response to the matters raised in the negotiating mandates, so that the Committee could take the debate further before reporting to the House.

Meeting report

Social Housing Bill [B29B-2007]: approval of NCOP proposed amendments
The Chairperson said that he had requested the presence of the Liaison Officers from the various provinces and they were indeed all present. He summarised the problems encountered at the Committee’s last meeting, with regard to the purportedly final mandates from provinces, which in fact turned out to still be conditional.

He said that the Committee had before it the amendments, the C version of the Bill, as proposed by the Committee. If all Members agreed with these amendments, then the Committee would send these back to their respective provinces for the provinces to submit their final mandates on the C version of the Bill.

The Chairperson asked if there were any issues or whether Members were agreed on the amendments.

Mr A Watson (DA Mpumalanga) asked in what way the amendments before them amended the Bill, because Committee Members did not have the original Bill before them.

Mr F Adams (ANC Western Cape) said he had brought a photocopy of the correspondence (referred to at the previous meeting) between his province and the Department. The thrust of the correspondence was that the province agreed to and approved of the proposals as per the written submissions.

Mr M Mzizi (IFP Gauteng) said he had consulted with the secretary of his province as to whether they had viewed the amendments. They had confirmed that they had but could not comment until they had the entire Bill. This placed him in an invidious position because he did not know what mandate they would give.

The Chairperson replied that the idea of the exercise was to finalise the Bill after agreeing on their proposed amendments. The C version of the Bill would then be printed and sent to the provinces, who would submit their mandates on this. This would then allow Gauteng to either agree or disagree and he said he suspected the Western Cape would go the same route.

Mr Watson said he had not seen Mpumalanga’s final mandate on the Social Housing Bill in the set of mandates.

The Chairperson replied that it had been agreed at the last meeting that they would request provinces to submit their final mandates in such a way that they were clear and unambiguous and based on the C version of the Bill (that is, the NCOP amendments). However, it had been realised that they would in fact be sending a mandate on the B version of the Bill. That was why they were now trying to agree on the proposed amendments so provinces could submit their final mandates based on the C version of the Bill.

The Chairperson asked whether the C version of the Bill could be ready by today for printing.

Ms Phumelele Ngema of the Office of the State Law Adviser, explained that the process of printing the Bill was such that one had to allow for up to three days to have it approved, signed and printed.

The Chairperson said perhaps he had been a bit too ambitious. Clearly it was not possible for the Bill to be ready by the next day, to be sent to provinces for final mandates in time for voting at the NCOP plenary the following week.

Ms Ngema said that three days was the standing rule when complex and complicated amendments needed to be checked but that did not rule out the possibility of it being printed in two days, if the amendments could be proofread in time.

Mr V Windvoel (ANC Mpumalanga) said his understanding was that because they were dealing with laws, there had to be agreement and clarity on all pertinent issues and a uniform process involving correspondence sent to all nine provinces. Even though they were talking about three minor amendments, they could not afford to take any shortcuts.

Mr L van Rooyen (ANC Free State) asked for clarification as to whether this was a final rather than a voting mandate.

In reply to the Chairperson’s question about the difference, Ms Ngema explained that there was a difference. There was first a negotiating and then a final mandate, after which the provinces had to decide whether their final mandate stayed the same. The voting mandate was for the plenary session, when a vote was taken.

The Committee then approved the NCOP proposed amendments to the Social Housing Bill.

Negotiating Mandates on the Housing Development Agency Bill [B1-2008]
The Chairperson extended apologies on behalf of the Committee Secretary, who could not attend the meeting due to a burglary at her residence. The Chairperson then asked if the Committee had any copies of the negotiating mandates. As far as he knew, the Committee had only those of the Free State, Gauteng, Limpopo, Northern Cape, Mpumalanga and North West.

Free State negotiating mandate
Mr van Rooyen referred to the printed negotiating mandate of the Free State, which stated that, subject to certain inputs and considerations, the Free State Legislature resolved to confer authority on its delegation to vote for the adoption of the Bill.

Gauteng negotiating mandate
Mr Mzizi said his province had conferred authority on its delegation to “support the principles and details” of the Bill.

Limpopo negotiating mandate
Ms H Matlanyane (ANC Limpopo) said that, after holding public hearings, its Committee recommended its NCOP delegation to “negotiate in favour of the Bill”, after taking into consideration certain specific inputs listed on its mandate.
Mpumalanga negotiating mandate
Mr Watson said his province conferred on its delegation the authority “to negotiate and vote in favour of the Bill”, subject to the considerations it had mentioned in its mandate.

Northern Cape negotiating mandate
Mr R Tau (ANC, Northern Cape) read out the mandate of the Northern Cape, which mandated its delegates “to participate in the deliberation at the negotiating stage and support the Bill” subject to its submitted inputs.

In reply to Mr Mzizi asking if Northern Cape’s submissions were “comments” or “proposals”, Mr Tau said that his understanding was that they were proposals, if one looked at the context.

Mr Mzizi asked whether the other provinces agreed, to which the unanimous answer was affirmative.

North West negotiating mandate
Rev P Moatshe (ANC North West) referred to his province’s mandate, saying it had always experienced problems with the available housing agency in the province and had many other problems with the Housing Agency Bill such as the question of accountability. But his Committee agreed to “support the Bill” with the proviso that its submissions and proposals be considered.

Eastern Cape negotiating mandate
Mr D Neer (ANC Eastern Cape) said his province had had numerous public hearings on the Bill and had recommended that its delegation “support the spirit and purposes” of the Bill subject to its inputs as submitted.

Western Cape negotiating mandate
Mr F Adams (ANC Western Cape) said the Western Cape provincial parliament conferred authority on its delegation in the NCOP “to support the Bill” with certain amendments, which it had listed in its mandate.

KwaZulu-Natal apology
The Chairperson said that although the Committee had no negotiating mandate from KwaZulu-Natal at the moment, it assumed it would still be submitted.

Ms M Oliphant (ANC KwaZulu-Natal) said that her province had requested an extension. She had been informed that the province had written a letter to the Chairperson asking for the extension. The Committee members were serving on three different portfolios and lacked sufficient time to deliberate and finalise its mandate. The KZN’s mandate would be forthcoming very soon. She also requested that the Western Cape legislature either buy or rent a new fax machine because in all their mandates, their documents were difficult to decipher.

Department Response to Negotiating Mandates on Housing Development Agency Bill
Mr Khwezi Ngwenya, Legal Services: Department of Housing, said he would attempt to respond to some of the issues raised by the provinces.

First there seemed to be a general concern, raised by several provinces, about the relationship between the Housing Development Agency (HDA) and the Provincial Government that was such that it might result in conflict. He said that the National Housing Act (NHA) spelt out clearly the responsibilities, roles and functions of the different spheres of government in terms of housing delivery. It went further and defined the general principles applicable to housing development in all spheres of government. It was very important to emphasise that that role was always the same and was not going to change. This agency would be the one to intervene where there was a problem with lack of capacity on the part of a particular province or municipality, which affected service delivery. But the provisions of the NHA would not change, he stressed.

About regulations, Mr Ngwenya said that the regulations would go to Parliament for it to make its inputs.

As for the concern about Integrated Development Plans (IDPs), this issue had been addressed in Clause 7 of the Bill and had also been raised in the proposal of the Western Cape. In performing its functions, the Agency would deal with housing development in accordance with IDPs. He referred to Clause 7(3)(a) of the Bill, which provided that, “in performing its functions, the Agency may declare priority housing development areas for residential and community purposes” and to Clause 7(3)(c) that the Agency “may also implement measures to fast-track housing development in the declared priority housing development areas”.

On Gauteng’s concern about consultation with all stakeholders, Mr Ngwenya replied that the Department had consulted with various stakeholders on the Bill and had received public comments from the relevant institutions.

On expropriation and how the Expropriation Bill would have reference to this Agency, Mr Ngwenya said that the Expropriation Bill was still a Bill at this stage. The Department had noted the content of that Bill but could not make reference to it in this Bill. There were over 100 Bills dealing with expropriation. If the Bill were promulgated, it could review it and if necessary revise it so as to make sure both Bills were in line with each other.

Mr Morris Mngomezulu, Director: Housing Institutions, Department of Housing, said that the Bill was quite clear on the question of who paid for land. In Clause 25 it stated that the Agency would use money appropriated by Parliament and also funds from donations.

With regard to the oversight role of the National Parliament over the Agency, he said the Bill indicated that, like any other public entity, the Agency would be subject to the PFMA (Public Finance Management Act) and would table its budgets and operational results to Parliament. According to Clause 12, the term of office for non-executive members (as opposed to executive members) was up to three years – the terms of office for a public entity – but that would still be looked into.

Mr Windvoel asked what the procedure was and suggested they finalise these issues once and for all.

Rev Moatshe said that the Committee’s procedure was “wrong” and they had wasted a lot of time. Instead of dealing with responses to provinces’ concerns generally, they should be dealt with one by one, “on the spot” as they were mentioned by provinces.

The Chairperson replied that at the start of the meeting he had asked Members this precise question and they had agreed to have all the provincial responses and then have a discussion on the issues raised. Mr Windvoel added that they had all agreed on the procedure that had been adopted.

Mr Mzizi said that if this Committee agreed, then they had “misled” the Chairperson. That is why he felt that time had passed and they had not complied with the negotiating mandate.

Mr Windvoel said his question about procedure had been more about whether the Committee should take all the Department’s responses at one time and then deal with them. But it was clear what procedure had been adopted.

The Chairperson said they were still negotiating and that the Committee took note of the issues raised. If there was a specific issue to which a province felt that the Department had not adequately responded, it should raise that issue now. For instance, North West had raised the question of the relationship of the Housing Agency to the Housing Corporation. Also together with many other provinces, North West had raised the matter of consultation with traditional leaders. If it was clear that that was a question raised by many provinces, then it should be dealt with by the Committee now.

Mr Watson asked if the Committee was equipped to deal with it in this manner. Would it not be better if the Department analysed the provincial inputs and then separated out those which did not belong to the Bill.

The Chairperson replied that he would appeal to the Department to handle the matter as it had done with the Social Housing Bill. There the Department had analysed all the provinces’ negotiating mandates and had responded to all the issues raised, province by province and had submitted a report to the Committee. If the provinces felt they needed more time, the matter could be postponed by a week.

Ms B Dlulane (ANC Eastern Cape) said she had not heard the Department’s response on the issue of the inclusion of traditional leaders. The province was also not happy with the Department’s response on the role of the different spheres of government. Could the Department refer to specific clauses and be more specific?

Mr Neer said that the Eastern Cape wanted to emphasise the issue of the inclusion of traditional leaders. Also, the Province was emphatic that if the Agency was at a national level, as appeared from the Bill, then the question arose: Given the gravity of the current lack of capacity of provinces and municipalities, how would the Agency assist in this regard? The Bill provided that the Agency had the right to appoint committees, then his province wanted representation to be at provincial and local level in those committees. It was suggesting this to assist the Agency to deliver on its mandate and it was doing so on the basis of the public hearings it had conducted and the feedback from people at community level.

Ms Oliphant had two questions. First, she asked about Clause 29 dealing with the additional functions of the Agency. It stated that the Minister may authorise the Agency to perform any additional function “not inconsistent” with this Act. What functions were being referred to? Secondly, with regard to expropriation, both the Public Works and Land Affairs legislation referred to expropriation. Why was there not an integrated approach rather?

Mr Watson said he had not heard a response on the questions of the powers to take disciplinary measures against municipalities, the Board’s term and the written submission on the accommodation of local government.

Mr van Rooyen agreed that the role of traditional leaders (raised by the Eastern Cape) was a very important one and so too was that of the role and function of SALGA and both needed to be clarified by the Department. Also, the Department had not responded to the issue of IDPs.

Mr van Rooyen referred to the Western Cape’s proposal for Clause 3(2), this had been previously discussed and had to do with regulations. The weakness of their suggestion was that it stated that after consultation, the Minister “may” table regulations, whereas the Free State felt that it should read “must” so as to make it peremptory. Also, there was a reference to “officers in provinces of this Agency”. Development could not be centralised like this and there had to be provision for representation in the province.

He asked what the term “hold” in Clause 4(1)(a) (Objects of the Agency) meant. Also he asked what form the “community participation” referred to in Clause 7(2)(e) should take. That was a question that had emerged very prominently in public hearings.

Mr Windvoel commented that housing was one of the more contentious issues in the country. Therefore, as much as this Committee was eager to address it, it should not take shortcuts. He said that what had emerged from his Legislature was the issue of oversight of Parliament and provincial Legislatures and this was an issue which had to be looked into. The issue of the representation of traditional leaders was as important as that of local government. Members should bounce these and other issues off their provinces and report back to the Committee.

Ms Ngema said she wanted to address three issues:
- Clause 12(7)(a) stated that a non-executive member would hold office for a period not exceeding three years. She stressed that although not stated in the Bill, executive members such as the CEO and the CFO, held office on the Board by virtue of their positions.
- The mandate, however, talked to the time and what the Agency had to do and this had to be reviewed every five years, in terms of Clause 8(4). This meant that every five years there had to be a review of whether the Agency had fulfilled its mandate or not.
- As for expropriation, in terms of the Public Works Act, the Minister of Public Works and no one else had the power to expropriate. It was true that the Minister of Land Affairs could also expropriate in terms of the Extension of Security of Tenure Act (ESTA) but the main legislation on expropriation was the Expropriation Act, which gave the power of expropriation only to the Minister of Public Works to expropriate for purposes of public interest. Any other Minister who wished to expropriate could only do so via a request to the Minister of Public Works. The current Bill talked about the power of the Agency to expropriate but this should really be the power of the Minister of Housing to expropriate via a request to the Minister of Public Works.

Mr Mzizi said he understood what Ms Ngema had said about expropriation but suggested that this was perhaps a political decision on which the Minister could pronounce. He asked how wide consultation had been because he had spoken to certain officials in SALGA who had heard nothing about these housing matters. He also referred to Clause 6(1) which said that the Agency “may, after consultation with the land owner, identify, acquire and hold land”. Clause 6(2) added that the Agency could expropriate land to create sustainable human settlement. That was his concern.

Some members of the Committee responded that Ms Ngema had made that quite clear in her remarks.

The Chairperson replied that it had been agreed that after listening to all these comments and the negotiating mandates, the Department would follow up. He asked that, at least by the end of this week, all the provinces should be given a written response where the Department summarised and picked up on all the submissions. In the following week they would again convene by which time they would all be well-informed on the issues and able to speak with authority on them. This would also assist KwaZulu-Natal, who would enjoy the benefit of having had the discussion in the Committee.

Ms Oliphant said that on the issue of public consultation, she thought that they were going to be challenged as a Committee. If one looked at the negotiating mandate of the North West, there was no indication that there was any public hearing. Even where public hearings were held, it appeared that one or two were conducted in one area. One of the reasons KwaZulu-Natal had asked for an extension, was because they said the Bill had not been sent to the House of Traditional Leaders and they wanted to consult with them during the public hearings.

The Committee would have to give this careful consideration because of the fact that most of the rural areas were still under the control of traditional leaders, said Ms Oliphant.

Mr Windvoel that the Committee would also need to consider the financial implications of the Bill. Often, Bills were passed that stated that there were no financial implications. However, it was only later realized that there were financial implications. He said that the Committee would need to know from where the funds were coming and how much had been budgete.

Mr van Rooyen asked for clarity on the way forward. His understanding was that it had been decided that the Department would give the Committee a response document, stating which were the substantial issues, province by province. The Committee would deliberate on this and only then send its response to provinces.

Other members said Mr van Rooyen’s understanding was correct.

Mr Adams asked for clarity on references in Clause 6(3) of the Bill to the Expropriation Act. He said that although Ms Ngema had said that only the Minister of Public Works could expropriate, this clause stated that in the context of expropriation, a reference to Minister meant the Minister responsible for housing. He asked for clarification on that ambiguity.

Ms Ngema replied that Clause 6(3) stated the Minister of Housing could expropriate land for the purposes of this Bill. But, as she had already stated, expropriation powers could be given to other Ministers as long as this was legislated, as was the case with the ESTA Act. In this case, what was stated here was that expropriation took place in terms of the Expropriation Act and the Minister as referred to in that Act, must be understood to mean the Minister of Housing.

The Chairperson noted that Mr Windvoel had raised an important point concerning socio-economic conditions and housing. The Bill would seek to do away with Thubelisha and Servcon because they had already outlived their mandate and this would have serious implications for housing delivery.

Had any extension been made to Thubelisha and Servcon, to continue providing housing for human settlement until Parliament had finalised this Bill, or had they been automatically dissolved as institutions.

Mr Mngombezulu said the issue of the two institutions were parallel processes. There was a process of putting in place the mechanism of establishing the HDA and also winding down and eventually closing the other two institutions. The legal process of closing a public entity could take between 12 and 18 months. There would be an audit of Thubelisha and Servcon closures to see what could be absorbed or taken over by a new Agency, if need be. But it was envisaged that the operations of the two would continue until there was a transfer of existing contracts to the new Agency.

Mr Neer said he wanted to leave the Committee with a question about the process of consultation on Clause 76 Bills, emanating from the NCOP. Were they, as public representatives, satisfied with the manner in which they were consulting with their communities and allowing their communities to express their opinions on Clause 76 Bills, as enshrined by the Constitution? They had been given a briefing and had two weeks within which to come back with negotiating mandates. But the question they were always asked by people at public hearings was: Have you given us, as ordinary people, enough time to discuss this Bill? Mr Neer said he had been mandated to ask for leeway of a week or so with regard to this Bill.

Mr Windvoel said that his province shared the same sentiment. Previously they had had four weeks to deal with Clause 76 Bills but this had been expanded to six weeks. But they were not tied to this, especially when complex legislation was being considered.

Mr Mzizi said that when he was briefing the province, the provincial department had raised issues which were the same as those raised at the MINMEC meeting. Submissions had been made which were available and he had requested those, but he did not know whether the Department had these submissions.

The Chairperson said the issue that the Eastern Cape had raised was an important one. He personally had always sought to be very technical about interpreting this cycle. He felt strongly that more time was needed since the Act spoke of a minimum of six weeks but did not state this to be a maximum period.

He said that while as an organiser of NEHAWU back in 1996, he had had serious problems with the inclusion of the word “consultation” in the Labour Relations Act because consultation meant just that…you did not have to consider my view but just to listen to it. In the context of Parliament, why was “consultation” referred to rather than “sufficient public participation”?

Ms Oliphant agreed with the question raised by Mr Neer about the legislative cycle. She also agreed with Mr Windvoel but wanted to add that in terms of the mandate, they had been mandated by the provinces and it was the latter that should decide how long the consultation process should be.

The Chairperson thanked the Members and closed the meeting.



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