Response to NCOP : Provincial Negotiating Mandates
Housing Dev Agency Bill (B1B-2008)
Framework Legislation
  1. Select Committee on Public Services: 04/06/2008

1.1Negotiating Mandates on Housing Development Agency Bill:

  • The above meeting was held on 04 June 2008and various provincial permanent delegates presented their Portfolio Committees Negotiating Mandates.
  • Submissions were in writingexcept that of the Kzn province whereby they requested more time to deal with the negotiating mandate.
  • The National Department responded to all of the issues raised.
  • All submissions were in support of the Bill provided that cognisance was taken of issues raised.
  • The Select Committee was of the view that they appreciate that not every operational issue raisedby various provinces can be included in the Bill, but still required a written response from the Department so that members concerns could be addressed.

1.2Committee Request

  • The Committee requested that NDoH should respond in writing to the concerns/issues raised by provinces.
  • This would trigger the final mandate and thereafter full endorsement of the Bill.

1.3Response

  • In the interest of expedience, this document will not duplicate the concerns raised (those in writing) but will only provide responses. The verbal submissions will be paraphrased as recorded.
  • Proposed amendments are indicated in bold font.
  1. RESPONSES

2.1General

  • As was indicated in the meeting the following factors must be taken into consideration:-
  • The role of the Department during the negotiating mandate stage of the Bill is primarily to assist provinces to consider the Bill and thereafter, provinces will finalize their mandates from an informed position. The Department’s role during this process will be of an advisory one.
  • Members were also concerned that many Bills were considered and approved by Parliament with a promise that certain issues and aspects will be dealt with and covered in the Regulations- but however, Parliament has neverbeen consulted/engaged before on the regulations. The view of the committee is that it is expected to approve Bills without having sight of Regulations. Both the State Law advisor and the NDoH agreed that the following provision in the Billcovers the Committee’s concern :
  • Clause 32 (2) of the Bill provide that,“the Ministermay, after consultation with Parliament, make regulations regarding” – and “Parliament”refers to both Houses of Parliament.
  • In this case, the regulations will have to be referred to both Houses of Parliament for consideration before they are finalised and therefore members will have the benefit of ensuring that their concerns are addressed.
  • All other issues of an operational nature will be covered in the guidelines, regulations and in policy documents.

2.2Western Cape

  • The proposals put forward by the province deal with technical amendment to the Bill, which require support and approval of the Committee. The proposed amendment by the province to clause 7 as indicated in no 4 of their negotiating mandatecovers some of the concerns raised by other provinces. The Department will be guided by the Committee’s decision in this regard. It is up to the province to lobby others in support of their proposals.

2.3Gauteng

  • The Committee recommendation as contained in paragraph 7 of the negotiating mandate are considered as follows:

With regards to bullet 1, the National Housing Act,1997(Act No 107 of 1997) spells out the responsibilities of the various spheres of government in relation to housing delivery.It also lays down the general principles applicable to housing development in all spheres of government. It is therefore not the intention of this Bill to duplicate or repeat what is already covered by the National Housing Act.

The real objective and purpose of the Agency is to assist any organ of the state where there is a lack of capacity and not to take over, the roles and responsibilities of other spheres of government with regard to Sustainable Human Settlement Development. Clause 5(4) of the Bill supports this viewpoint.

  • Issues pertaining to IDP’s will be covered if the proposed amendment to clause 7 of the Bill by the Western Cape is supported and adopted by the Committee.
  • It is not the objective of the Agency to acquire and hold communal land under the jurisdiction of Traditional leadership. However Human Settlement Development in such areas will remain the responsibility of the Provincial and Local governments except where the Agency is requested to assist due to capacity constraints.
  • With regards to consultations with various stakeholders mentioned, the stakeholders referred to were part of the joint initial process to establish the housing land special purpose vehicle. SALGA and Provincial Housing Departments also have representatives in the Human Settlements Development Task team, Technical MINMEC and MINMEC, and therefore are part of the decision making process.
  • With regards to other issues raised , these would be dealt with in the regulations and the regulations will be referred to both houses of parliament for consideration and approval.
  • Limpopo
  • With regards to the Bill not being clear on Broad representation in terms of racial and geographical locations, the Committee’s attention is drawn to clause 12(3) of the Bill, which clearly addresses this concern.
  • Due to the role and function the Agency is expected to perform, it is therefore, requiredof the agency to recruit the best technical and professional expertise available.
  • Non executive Board members are remunerated according to National Treasury guidelines.
  • The Committee’s attention is drawn to the fact that there is no clause 23(4) in the Bill. (B IB-2008).

2.5Northern Cape

Under Committee Inputs:-

  • Consultation with parliament with regards to the regulations is covered in clause 32(2) of the Bill.
  • The process of appointment of the Board by the Minister would be open and transparent as provided for under clause 12(1) of the Bill.
  • Procedurally regulations are always gazetted for public comments
  • Clause 12(3) of the Bill covers aspects of representatives on the board.

2.6Mpumalanga

  • It is the expectation of this Agency to address most of the issues raised by the province in co-operation with other housing institutions such as the NHBRC.
  • It is also expected that the Agency will operate with the assistance of provincial or regional offices.

2.7KZN

  • No Negotiating Mandate was submitted

2.8North West

  • The Housing Development Agency is a national Agency established with specific objectives and functions as outlined in the Bill. It will therefore have no relations with any provincial corporations.
  • The Agency is accountable to parliament as outlined in clause 27 of the Bill. This process will therefore include both houses of parliament.
  • The legislative process of parliament will normally determine when the Bill will be referred to provinces. Procedurally the Bill will only be referred to provinces after the adoption and approval of the Bill by the National Assembly.
  • Clause 12 of the Bill provides for nominations of members of the Board by various stakeholders.
  • Funding for the operations and purchase of land by the Agency is provided for in clause 25 of the Bill.
  • The Bill makes reference to the existing Expropriation Act, 1975(Act No 63 of 1975), and it will therefore be inappropriate and unlawful to refer to another Bill in this current Bill.

2.9Eastern Cape

  • Clause 12 of the Bill provides for nominations of members of the Board by all relevant stakeholders and interested parties.
  • It is also expected that the Agency will operate with the assistance of provincial or regional offices.
  • Executive members of the Board are employees of the Agency. Their term of employment will be determine by the their individual contracts.
  • The Agency is accountable to parliament as outlined in clause 27 of the Bill. This process will include both houses of parliament.

2.10Free State

  • The Housing Development Agency is a national Agency established with specific objectives and functions as outlined in clause 2,3, 4 and 7 of the Bill.
  • HoldingLandmeans; retaining suitable and well located land for future human settlements development.
  • Community participation is done within the spirit of constitutional democracy and in line with other pieces of legislation which provides for community consultation and participation in matters concerning housing development.

PROPOSAL FOR FUTHER AMENDMENTS TO ADDRESS SOME OF THE CONCERNS OF THE PROVINCES

  • Clause 5:
  1. On page 4, line 32, after “owner”,to insert, “of the identified land”
  2. On page 4, line 32, to omit, “identify”

The rationale for the above amendment is to simplify the text because the process of land identification does not necessarily need a consultative process. It is only when you acquire such piece of land that you need to consult with the relevant owner.

Clause 7(3)(c)

On page 5, line 55, after “areas”, to insert,“as may be prescribed”.

Rationale for the above amendment is that provinces were concerned about the procedure and criteria for declaring a Priority Development Area, and to respond adequately to this concern, the process will therefore need to be prescribed in the regulations,