Housing Code

Part 2

Chapter 1: Introduction

The Housing Act, 1997 (Act No. 107 of 1997) is the supreme housing law in the land. Replacing all previous housing legislation, it clarifies the roles and responsibilities of the three spheres of government in respect of housing, and ensures that all housing activity in South Africa happens within the framework of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996). This Part of the Housing Code explains the Housing Act, 1997 in detail. The Act is contained in Annexure A of this Chapter 1 of Part 2 of the Housing Code. 

CHAPTER 1: Introduction

1. Overview of The Housing Act
2. Framework of The Housing Act
3. Points of Departure
4. Principles

1.1 Overview of the Housing Act

Remember:

The Housing Act arises out of the policy approach, as expressed in the Housing White Paper, to rationalise institutional capacities. The process of rationalisation was initiated under the previous Housing Arrangements Act, 1993 (Act No. 155 of 1993) which, for example, resulted in the creation of a single national housing fund out of five racially based statutory funds. The Act furthers the process of rationalisation and brings housing legislation in line with the imperatives of the Constitution.

The Housing Act is the supreme housing law in South Africa. It: 

prescribes the principles applicable to housing development, to which all spheres of government must adhere.  clearly defines the housing-related functions of each sphere of government.  provides for the establishment of a South African Housing Development Board (SAHDB) and the continued existence of Provincial Housing Boards (PHBs) under the new name of Provincial Housing Development Boards (PHDBs).

addresses the financing of national housing programmes, with specific reference to the role of each sphere of government and the procedures that are applicable.  provides for the termination of previous housing arrangements  repeals all previous housing legislation.

The Housing Arrangements Act, 1993 (Act No. 155 of 1993) is replaced by the Housing Act. It was the first piece of legislation heralding the institutional arrangements. The Act provided for the establishment of a National Housing Board and four Regional Housing Boards (later replaced by nine Provincial Housing Boards). It also replaced the former National Housing Fund with a new fund, called the South African Housing Fund. This fund is still in existence. 

The President assented to the Housing Act on 27 November 1997. The Housing Act was then published in the Government Gazette on 19 December 1997 and came into effect on 1 April 1998 under Proclamation No. R. 10, 1998. To facilitate the process of implementation, an “Implementation Committee: Housing Act” was convened at national level, comprising officials from all three spheres of government as well as from the housing institutions. In certain situations where provisions in the Housing Act have not yet been implemented, the procedures provided in the previous Housing Arrangements.

Act, 1993 (Act No. 155 of 1993) apply as an interim arrangement. This is despite its repeal by Section 20 of the Housing Act. 

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1.2 Framework of the Housing Act 

The published Housing Act is included in this Code for easy reference. Following the preamble and a section on definitions, the Housing Act is split into seven parts. These are: 

Part 1: General Principles applicable to housing development. 

Part 2: National Government, including its functions, a requirement to publish a National Housing Code, the establishment of the South African Housing Development Board, to determine national norms and standards in respect of housing development, and to maintain a national housing data bank and information system. 

Part 3: Provincial Government, including its functions and the role and activities of Provincial Housing Development Boards. 

Part 4: Local Government, including the functions of municipalities and rules relating to their accreditation. 

Part 5: Financing of Housing Development, including the South African Housing Fund and the allocation of money to the provinces. 

Part 6: Termination of Housing Arrangements, including the abolition of the National Housing Board and arrangements regarding its various rights, assets, and liabilities, as well as the arrangements in regard to the administration of these rights, assets, and liabilities. This part also considers the termination of the Discount Benefit Scheme and the phasing out of inequitable subsidies of the previous dispensation. 

Part 7: General Provisions relating to delegation, annual reports, repeal of laws and the short title and commencement of the Housing Act. 

At the end of the Housing Act, a schedule setting out the forty-one laws that were repealed at its commencement, is provided. 

To consider the Housing Act in another way, the table that follows sets out its main provisions: 

Table 1. Components of the Housing Act, 1997 (Act No. 107 of 1997)

PRINCIPLES APPLICABLE TO HOUSING DEVELOPMENT (Part 1 of the Act)	The Act prescribes fundamental principles binding on all three spheres of government in respect of housing development. These principles can almost be described as a Housing Bill of Rights. Their purpose is to create certainty among all role-players regarding the government’s housing policy, thereby enhancing the delivery process.
ROLES OF GOVERNMENT (Parts 2, 3, & 4 of the Act)	The primary focus of the Act is on role definition for each of the three spheres of government. Government functions should be performed at the sphere best able to serve local communities. National government must establish and facilitate a sustainable national housing development process, and must for this purpose, amongst others, determine national housing policy. Provincial government must create an enabling environment, by doing everything in its power to promote and facilitate the provision of adequate housing in its province within the framework of national housing policy. Municipalities must pursue the delivery of housing. Every municipality must within the framework for national and provincial housing policy seek to ensure that the right of access to adequate housing is realised. It will do this by actively pursuing the development of housing, by addressing issues of land, services and infrastructure provision, and by creating an enabling environment for housing development in its area of jurisdiction.
STATUTORY BODIES  (Parts 2 & 3 of the Act)	The Act abolishes the National Housing Board, replacing it with the South African Housing Development Board (SAHDB). The SAHDB advises the Minister of Housing on, and monitors the implementation of, national housing policy.  Provincial Housing Boards are renamed “Provincial Housing Development Boards” (PHDBs). PHDBs administer and approve finance for national and provincial housing programmes and advise the MEC for Housing on housing development in the province. The Act gives the Provincial Legislature the authority to abolish PHDBs by legislation, if their functions are assigned to another body created in terms of such legislation. PHDBs are no longer extensions of national government, performing delegated powers. They now perform their functions in their own right, and are accountable to the MEC’s.

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While the Housing Act provides greater clarity of how the housing sector should operate given the principles it sets out and the roles it defines, its effective implementation is reliant on government’s capacity, and the willingness and capacity of the non-state sector to participate in the housing process as envisioned. To address the capacity of the various spheres of government to undertake their housing functions, the national Department of Housing has implemented a “national capacitation programme”. This programme is considered briefly in Part 1 of this Code. 

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1.3 Points of Departure

The Preamble to the Housing Act acknowledges that the Housing Act is based on two points of departure.

Remember: Internationally, ‘adequate shelter’ is measured by legal security of tenure; the availability of services; materials, facilities and infrastructure; affordability; habitability; accessibility; location; and cultural adequacy.
The Act upholds Section 26 of the Constitution, which provides that everyone has the right to have access to adequate housing and which requires that the state must take reasonable legislative, and other measures, within its resources, to achieve the progressive realisation of this right.

2. The Act recognises that housing: 

• as adequate shelter, fulfils a basic human need. 
• is both a product and a process. This means, for example, that the Housing Act deals with norms and standards (which apply to housing as a product) and also general principles (which guide the manner in which housing development occurs). 
• is a product of human endeavour and enterprise. This recognition lays the basis of, and provides the justification for, making housing development a people- centred process- a basic tenet of our housing philosophy. 
• is a vital part of integrated developmental planning. Integrated planning is the favoured developmental approach in post- apartheid South Africa, not least because it is a means by which to achieve efficiency and effectiveness. At a national level, the Urban Development Framework is an important resource. At a local level, Land Development Objectives and Integrated Development Plans are formulated in order to plan development and to implement such plans in a manner that is integrated. 
• is a key sector of the national economy. 
• is vital to the socio-economic well-being of the nation. 

1.4 Principles

Section 2(1)

The Housing Act sets out the general principles applicable to housing development that national, provincial and local spheres of government must adhere to, encourage and promote. 

Broadly, the principles set out in the Housing Act affirm the Bill of Rights and the policies of the State regarding prioritisation of the needs of the poor and marginalised; sustainability; integration; consultation; good governance; empowerment; equity; optimal use of resources and compliance with sound land development principles. 

Whilst the Housing Act commits government to comply with the general principles applicable to housing development, it is implicit that all other parties involved with housing development (including the private sector, parastatals, facilitative agencies and NGOs) must act in accordance with the housing development principles. This is especially the case where state resources are utilised. Government fulfils its facilitative role in respect of the realisation of the said principles by engaging in awareness initiatives whereby an understanding of the principles and policies is created through interventions including its communication and education programme. 

In addition to setting out specific principles, the Housing Act also requires that we observe the principles in the Development Facilitation Act, 1995 (Act No. 67 of 1995) which refer broadly to land development, in our housing development processes. 

The following general principles therefore apply to all housing development: 

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Table 2. Principles Applying to all Housing Development 

Housing Act, 1997: Principles for Housing Development

Development Facilitation Act, 1995: Principles for the Settlements and  Environments we create

Prioritise the housing needs of the poor.  The Housing Process: Housing development should  Provide as wide a choice of housing and tenure options as is reasonably possible.  Be economically, fiscally, socially and financially affordable and sustainable.  Be based on integrated development planning.  Consider and address the impact on the environment.  Be administered in a transparent, accountable and equitable manner, based on the principles of good governance.  Empowerment Through Capacitation: Government should encourage and support individuals and communities, including co-operatives, associations, and other community based bodies, in fulfilling their own housing needs in a way that ensures skills transfer and community empowerment.  Aspects of Housing: The following must be promoted in respect of housing development:  Housing consumer education and protection.  Socially and economically viable communities.  Safe and healthy living conditions.  Racial, social, economic and physical integration in urban and rural areas.  Effective functioning of the housing market and level playing fields.  Effective equality in respect of gender, race, creed, class, etc.  Higher densities and the economical utilisation of land and services.  The meeting of special needs, including those of the disabled.  Community and recreational facilities in residential areas.  The housing needs of the marginalised, including women and other disadvantaged groups.  The expression of cultural identify and diversity in housing development.  Participation: Individuals and communities affected by housing development must be meaningfully consulted and the active participation of all relevant stakeholders in housing development should be facilitated.  Geographic Application: Housing development in urban or rural areas must not be inhibited.  Constitution: All sections of the Constitution must be respected, protected, promoted and fulfilled.  Policy Uniformity: Consensus around housing development policies among the three spheres of government should be striven for by applying the principles of co-operative government in a balanced fashion.  Development Facilitation Act, 1995: The principles of the Development Facilitation Act, 1995 should be observed and maintained.  Gearing: Government investment in housing should gear additional financial and other investment by the private sector and individuals.

Policy, administrative practice and laws in relation to land development should:  provide for a range of settlement types in both urban and rural areas.  promote sustained protection of the environment.  Discourage the illegal occupation of land while recognising informal land development processes.  promote efficient and integrated land development, including the social, economic, institutional and physical integration, and discouraging urban sprawl.  Encourage partnerships so as to maximise our capacity to undertake land development.  promote land development within national fiscal, institutional and administrative means.  promote the establishment of viable communities.  meet the basic needs of all citizens in an affordable way.  take factors such as geological formations and hazardous undermined areas into consideration.  promote sustainable land development at the required scale.  promote speedy land development.  Laws, procedures and administrative practice relating to land development should-  be clear and generally available.  provide guidance and information.  be calculated to promote trust and acceptance.  give further content to the fundamental rights set out in the Constitution, 1996.  Participation: Members of communities affected by land development should actively participate in its process.  Skills Development: The skills and capacities of disadvantaged persons involved in land development should be developed.  Equitable evaluation: Each proposed land development area should be judged on its own merits. No particular land use (residential, commercial, conservational, industrial, etc.) should be favoured.  Security of Tenure & Choice: Land development should result in security of tenure for all persons, and provide for the widest possible range of tenure alternatives, including individual and communal tenure.

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