SUBMISSION TO THE DEPARTMENT BY Hendrik Du Toit Hendrik

COMMENTS ON THE PROPOSED LEGISLATION FOR A HOUSING DEVELOPMENT AGENCY: NOTICE 1252 OF 2007

1 General observations

There are some choice of words that should receive attention in the drafting stage.

Established by Section - Established in terms of Section. Clause - Section

Paragraph - Subsection.

2 Section 1 - Definition of low income earners.

The preamble states that the agency is intended to serve low income earners.

It should be considered to add the definition of low income earners in Section 1. This definition could be linked to the definition or application in other law.

3 Section 3(1) - Principal objectives

The preamble, explanatory comments and headings do not form part of the Act it is therefore necessary to state the true intention clearly in the sections of the Act.

The words "for low income earners" should be added to Section.3(1).

4 Section 5 (1)( a) - Prepared to dispose

The state or any organ of state can only be prepared to dispose of land when the procedures provided for in the enabling law has been followed.

Example: Section 116 of the National Water Act (Act 36 of 1998) provides that the Minister may dispose of a part of a government water works (including the land on witch it is situated and adjacent state owned land) - Section 1(1)(x)) by following the making of regulations. The regulations have to be done with full public participation.

It is proposed that the words "after meeting with legal obligations" should be added to Section 5(1 )(a).

5 Section 5(4) - May not acquire any land

It would be wise to allow for specific exemptions from the rule. The agency should for example be allowed to acquire adjacent or enclosed pieces of land belonging to local government. This "acquiring" of land may enable the municipality to relocate the intended development to another location.

6 Section 6 - development of a strategy for the municipality.

Although Section 6 indirectly provides for public participation the process can be streamlined by introducing the public participation in the Act.

A final accepted strategy will then be presented to the municipality.

7 Section 6(1 )(1)(f) - Informal settlements.

If the intention is to provide housing solutions to unemployed in informal settlements the definition should be clarified in Sections I & 3.

8 Section 6(2)(c) Job creation is optimized in the process.

It may even be better if permanent job creation is also addressed by the Agency by providing space in the panning stage for formal or informal industries and commerce. The concept will be presented later in the document.

9 Section 7(1) -As soon as possible

The "as soon as possible" coupled to a duty usually leads to periods longer that anticipated. A time limit should be placed on the completion of the written mandate. Section 7(1). One or two years should be best but definitely not more than 5 years.

10 Section 7(5) - not be in conflict with the Act

Propose a change of Section 7(5) to "The mandate must be consistent with the Act"

11 Section 9(a) - Give effect to strate2V and policv

The words "and policy" should be removed from the section.

An official strategy will incorporate the policy as it existed at the date of the strategy. A method should be created for revising the strategy for dealing with deviations, additions, and changes in policy or mandate,

There don't seem to be an official strategy that can be given effect to. This provision therefore seems to refer to the mandate or regulations envisaged by Section 35.

One of three actions must be taken.

a) The Act should provide for a procedure to create and revise a strategy with full public participation.

b) The Strategy can be defined in Section I as the regulations in terms of S35.

c) The Subsection should be changed to "must give effect to the provisions of the Act, the mandate and regulations made in terms of the Act"

Note: the regulations is already included as part of the Act in Section 1.

12 Section 9( e) notify the Minister

The section requires some careful rewording.

The word immediately should be replaced with a more practical applicable indication of the urgency.

The stage when the Minister should be informed could vary from

· Suspicion.

· Hearsay or unconfirmed evidence.

· Investigation or verification.

And should be clarified.

13 Section 10(c) Has been convicted

Corruption and bribery should be added to the list in Section 10 (c).

14 Section 10(g) - Interest in a business or enterprise

Consider adding the words "direct or indirect"

15 Section 12(3) - Steps as required by subsection (4)

No subsection (4) has been drafted. Presume it will be a PAJA related procedure.

16 Section 12(3) written notice

Consider inserting the words "with immediate effect"

17 Section 20(b) Implement the policies and decisions of the board

Consider changing to "The Act and regulations in terms of the Act"

18 Section 22 - delegations

Consider also publishing the delegations.

19 Section 24(1)( e) - Proceeds from sale of land.

A procedure including public participation should be provided for.

20 Section 27 - Financial year

The first (partial) financial year must start on the day the agency starts acting as an agency. If this is not done the task of reporting to the minister and the subsequent approval as envisaged in Section 28 may be ignored

21 Section 33 - Provision of information

The Agency will also have to prepare a manual in terms of PAlA.

22 Section 40 - Guilty of an offence.

Section 35 (3) of the Constitution provides that the accused person has the right to a fair trial and has the right in terms of S35(3)(h) to be presumed innocent..

The end of Section 40 ( 1) therefore seems to be inconsistent with the Constitution because guilty is the opposite of innocent.

Although the Constitutional rights may be derogated a suspicion of an offence should not be enough grounds for doing that.

Section 40 should rater be change to read

40 (1) It is an offence to:-

And 40(1 a) could be changed to "a person found guilty of a offence can be . . . ."

23 Additional proposals

A. Involvement in economic and industrial planning:.

My personal believe is that we must fight the housing backlog, high unemployment rate and current poverty levels by utilizing the dormant potential of our people. The Agency seems to be an excellent vehicle to kick start the process.

The proposal put forward is that the responsibility of the Agency must be extended to include planning for integrated economical/industrial development ensuring sustainable communities and reduce the independence from existing developed areas.

The Agency should be involved as a coordinator or at least consulted regarding these developments.

The main motivation is to develop job opportunities close to the housing is:

· Savings on transport costs leaving more money in the pockets of inhabitants.

· Secondary job opportunities will evolve.

· The development can then also be decentralized to areas where land is cheaper and thus serving a greater number of people.

· The security in the area will improve.

· The additional need for public transport will reduce which would reduce the future congestion of road transport systems.

· The wealth created in the area may provide capital for further development.

· The entrepreneurial capacity of the unemployed will be mobilized. The capacity can for example be witnessed on the outskirts of the Diepsloot informal settlement where a wide range of sustainable commercial activities including motor workshops, hairdressers and shops are present.