Chapter 5: Conclusion

This chapter concludes this Section of the Code. It considers how the Housing Act eradicates past practice, and summarises the key points of the five chapters, providing a brief analysis of how these might affect the day-to-day practices of the various spheres of government.

Conclusion

Eradicating Past Practice

Roles of Government

Key Provisions of The Act

Statutory Bodies

5.1 Eradicating Past Practice

The intent of the Housing Act is to bring housing legislation and housing activities in line with the imperatives of the Constitution. In this regard, the Housing Act clearly identifies roles and responsibilities of each sphere of government, and promotes the role of the State as a facilitator of housing development. Consequently, all housing legislation of the previous dispensation is repealed through the Housing Act, subsidies provided under previous legislation are to be phased out, and the Discount Benefit Scheme will be terminated.

1. Repeal of Historic Laws

The Housing Act repeals all previous housing legislation. This includes, for example:

the Housing Act, 1966 (Act No. 4 of 1966);
the Slums Act, 1979 (Act No. 76 of 1979);
the Housing Act (House of Representatives), 1987 (Act No. 2 of 1987);
the Development Act (House of Representatives), 1987 (Act No 3 of 1987);
the Housing Development Act (House of Delegates), 1987 (Act No. 4 of 1987);
the Development and Housing Act, 1985 (Act No. 103 of 1985)
the Housing Arrangements Act, 1993 (Act No. 155 of 1993).

The repeal of these laws means that we have finally moved away from apartheid laws and institutions to a housing policy that is rooted in our Constitution and that maintains the principle of equality of all persons. All housing institutions, programmes, policies and practices that were created in support of the apartheid policy have been eradicated. Part 1 of this Housing Code considers the impact of the constitutional provisions that relate to housing, on our housing process.

2. Phasing Out of Previous Subsidies

National housing policy and strategy provide for national housing programmes such as the Housing Subsidy Scheme. Subsidies were also granted under earlier laws in terms of:

The Housing Act, 1966 (Act No. 4 of 1966).
The Development and Housing Act, 1985 (Act No. 103 of 1985).
The Housing Act (House of Representatives), 1987 (Act No. 2 of 1987).
The Development Act (House of Representatives), 1987 (Act No. 3 of 1987).
The Housing Development Act (House of Delegates), 1987 (Act No. 4 of 1987).

The granting and payment of subsidies provided under previous, racially based legislation is problematic because they specify different qualifying criteria to the Housing Subsidy Scheme: the nature of the subsidy and benefit are more beneficial than the present subsidies. Consequently, all subsidies provided under these earlier laws are to be phased out.

The procedure for phasing out subsidies granted under previous laws is as follows:

The Minister of Housing determines a national housing programme to phase out every housing subsidy granted under previous housing and development laws.
The programme to phase out the relevant subsidies must be instituted within one year from 30 April, 1999.
The Minister of Housing reports quarterly to the parliamentary committees for housing of the National Assembly and the National Council of Provinces on progress with the phasing out programme.

3. Termination of the Discount Benefit Scheme

Remember: Previous legislation refers to: the Housing Act, 1966 (Act No. 4 of 1966); the Development and Housing Act, 1985 (Act No. 103 of 1985); the Housing Act (House of Representatives), 1987 (Act No. 2 of 1987); the Development Act (House of Representatives), 1987 (Act No. 3 of 1987); or the Housing Development Act (House of Delegates), 1987 (Act No. 4 of 1987).

The Discount Benefit Scheme aims to assist tenants to acquire state financed rental housing. Tenants may purchase the unit at a maximum discount of R 7 500 on the selling price. Text Box: Remember: Previous legislation refers to: the Housing Act, 1966 (Act No. 4 of 1966); the Development and Housing Act, 1985 (Act No. 103 of 1985); the Housing Act (House of Representatives), 1987 (Act No. 2 of 1987); the Development Act (House of Representatives), 1987 (Act No. 3 of 1987); or the Housing Development Act (House of Delegates), 1987 (Act No. 4 of 1987).

The discount is also provided to a purchaser on the outstanding balance of a purchase sum, where a property has been bought previously, or the outstanding balance of an individual loan. Part 3 of the Code set out procedures, criteria and benefits in detail.

The Discount Benefit Scheme lapses in each province, with specific reference to immovable property that was either transferred to a Provincial Housing Development Board or a municipality, or to property acquired by a municipality by means of a loan or advance under previous legislation:

The procedure for the lapsing of the scheme with reference to the above conditions follows:

The MEC determines (by notice in the Official Gazette of the province) the date for on which the Discount Benefit Scheme in the province lapses.
This date must not be later than a date determined by the Minister, after consultation with the MEC.
Claims for discount under the Discount Benefit Scheme lodged before the determined date are considered and disposed of.
Claims for discount received after the date for the lapsing of the scheme are not considered.

5.2 Roles of Government

The primary focus of the Housing Act is on role definition for each of the three spheres of government. The departure point has been that government functions should be performed at the sphere of government best able to serve communities.

National government must establish and facilitate a sustainable national housing development process.
Provincial government must do 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 take all reasonable and necessary steps within the framework of national and provincial housing legislation and policy to ensure that the right to have access to adequate housing is realised on a progressive basis. 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.

These roles are fulfilled by a number of government housing role players, including:

National Minister of Housing: is the executive authority for housing in the national sphere of government, and is responsible for executing national housing laws and the formulation and implementation of national housing policies. The Minister of Housing is appointed by the President of South Africa.
Director-General: is the head of the National Department of Housing. He or she leads the National Department of Housing in carrying out administrative activities in support of the Minister of Housing.
South African Housing Development Board: is a statutory body comprised of housing experts. This body advises the Minister of Housing on housing development and monitors the implementation of national policy and strategy.
Housing MEC: is the Member of the Executive Council of a provincial legislature responsible for housing in that province. The Housing MEC’s authority is similar in nature at a provincial level, to that of the Minister of Housing at a national level.
Head of Department: is the officer in charge of the provincial department of housing. He or she leads the provincial department of housing in carrying out administrative activities in support of the Housing MEC.
Provincial Housing Accounting Officer: is a person to be designated as accounting officer in respect of funds in the Provincial Housing Development Fund and the budget of the Provincial Department of Housing.
Provincial Housing Development Board: is a statutory body comprised of housing experts from three sectors, namely consumers, suppliers and government. This body administers the housing subsidy scheme and other national housing programmes at a provincial level, administers their housing assets, rights, liabilities and obligations, advises the Housing MEC on provincial housing policy and strategy, and performs any duty imposed by any law of the provincial legislature.
Municipality: is defined in terms of section 10(B) of the Local Government Transition Act, 1993 (Act No. 209 of 1993), as a local council, metropolitan council, metropolitan local council, representative council, rural council or district council.
Municipal CEO is the person appointed by the council of a municipality as its Chief Executive Officer or Town Clerk.

In keeping with the above roles, the spheres of government and the role players who work within them, have various responsibilities. These are set out broadly, in Table 7, below:

Table 1. Broad Responsibilities of the Various Housing Role players in Government

Role players Powers, Duties and Functions Section in the Housing Act

National Minister of Housing May prescribe any principles in addition to principles set out in the Housing Act, subject to provisions of the Housing Act. Section 2(2)(a)(i)

May prescribe any principle set out in the Housing Act in greater detail. Section 2(2)(a)(ii)

Must consult with every MEC for Housing and the national organisation representing municipalities on establishing and facilitating a national housing development process. Section 3(1)

Must determine national housing policy, including National Norms and Standards.

Must set broad national housing delivery goals.

Must monitor the performance of national government and also provincial and local government.

Must assist provinces to develop administrative capacity.

Must support and strengthen the capacity of municipalities where necessary.

Must promote consultation between national government and provincial government, local government, civil society, suppliers and financiers of housing goods and services and other stakeholders.

Must promote effective communication on housing development.

May establish a national institutional and funding framework. Section 3(4)

May negotiate for national apportionment of the State budget.

May prepare and maintain a multi- year national plan.

May allocate funds for national housing programmes to provincial governments.

May allocate funds for national facilitative programmes for housing development.

May obtain funds for land acquisition, infrastructure development, housing provision and end- user finance.

May institute and finance national housing programmes.

May establish and finance national housing institutions.

May evaluate the performance of the housing sector against set goals and equitableness and effectiveness requirements. Section 3(4)(i)

May take any steps reasonably necessary to create an environment conducive to enabling provincial and local governments, the private sector, communities and individuals to achieve their respective goals in respect of housing development and promote the effective functioning of the housing market. Section 3(4)(j)

Must publish a National Housing Code. Section 4(1)

Must provide each provincial government and each municipality with a copy of the National Housing Code. Section 4(3)

Must inform each provincial government and each municipality of amendments to the Code and to provide copies of the revised Code. Section 4(4)

Appoint members of the SAHDB, in accordance with the provisions of the Housing Act. Section 5(3)(a)

Determine criteria for municipal accreditation. Section 10(2)(a)

Must submit statements and balance sheets of the SAHF to Parliament, on receipt of these from the Director General. Section 11(7)(b)

May allocate moneys in the SAHF to national and provincial housing programmes. Section 12(1)(a)

Must determine criteria for the allocation of moneys out of the SAHF to the PHDBs. Section 12(1)(b)

Must dispose of shares in Lanok. Section 14(5)(b)(ii)

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Must institute a national housing programme to phase out previous subsidies; and to report quarterly on progress to the parliamentary committees for housing. Section 14(9)

May issue additional directives regarding the management and disposal of assets, rights, liabilites and obligations of the former NHB. Section 14(10)

Determine the latest date by which rights, liabilities and obligations in respect of movable and immovable property may be transferred from the PHDB to municipalities, in consultation with the MECs. Section 15(1)(a)

Determine the latest date for the lapsing of Discount Benefit Scheme in each Province. Section 17(2)

Must submit a report on activities undertaken in terms of the Housing Act to Parliament annually. Section 19(2)

Director-General Must establish and maintain a national housing data bank and a national housing information system. Section 6(1)

Administer the SAHF. Section 11(5)

Fulfill responsibilities as accounting officer in respect of moneys in the SAHF.

Submit detailed statements of the SAHF to the Minister, in accordance with the stipulations of the Housing Act. Section 11(7)(a)

Must pay moneys out of the SAHF to the PHDF. Section 12(4)(a)

Determine the form and intervals of requisitions to be submitted by provincial accounting officers to draw funds out of the SAHF to the PHDF. Section 12(4)(c)

May delegate certain conferred powers or assign duties imposed in terms of the Housing Act. Section 18(1)

Submit a report on activities undertaken in terms of the Housing Act to the Minister annually. Section 19(1)

South African Housing Development Board Advise the Minister on any matter relating to housing development. Section 5(2)

Monitor the implementation of national housing policy. Determine procedures at meetings of the SAHDB, subject to the directions of the Minister. Section 5(5)(d)

Housing MEC Appoint members of the PHDB, in accordance with procedures set out in the Housing Act. Section 8(2)

May also appoint alternate members. Section 8(3)(f)

Determine period of appointment. Section 8(4)(a)

Designate a chairperson and a vice-chairperson. Section 8(5)(a)

Designate an acting chairperson when both the chairperson and vice- chairperson are absent. Section 8(5)(b)

May determine the manner and intervals for members to disclose direct or indirect financial interests in the matters of the PHDB. Section 8(6)(e)(ii)

May determine the conditions of service for members that are not in full- time employment of the state, with the approval of the MEC responsible for finance in that particular province. Section 8(7)(a)

Submit reports to the provincial legislature on activities of the PHDB and accredited municipalities. Section 8(9)(c)

Determine the form of application for accreditation by municipalities. Section 10(1)

Evaluate applications received from municipalities for accreditation and, where applicable, to grant accreditation. Section 10(2)(a)

Must review performance of accredited municipalities. May intervene where performance by the accredited municipality is inadequate. Section 10(3)(c)(i)

Allocate funds to the accredited municipality, after consultation with the PHDB. Section 10(4)(a)

Submit detailed statements on the PHDF to the provincial legislature. Section 12(2)(d)

Issue directives regarding the submission of monthly reports by municipalities on the sale of immovable property by municipalities including the basis for the determination of selling prices. Section 14(4)(d)(iv)

Determine date for the lapsing of the Discount Benefit Scheme in a particular province, in accordance with the provisions of the Housing Act. Section 17(1)(b)

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Head of Department Must issue certificate that immovable property, claim or right has passed from the former NHB to the PHDB in terms of Section 14 of the Housing Act. Section 14(2)(c)

Determine in which municipality’s area of jurisdiction movable property is mainly utilised where movable property is utilised in more than one municipality. May also direct and agree on compensation to be paid from one municipality to another. Section 15 (1)(b)
Section 15(1)(d)(i)

May delegate certain conferred powers or assign duties imposed in terms of the Housing Act. Section 18(1)(b)

Provincial Accounting Officer Must transfer moneys allocated to the accredited municipality in accordance with procedures. Section 10(4)(b)

Must incorporate the statements and balance sheets of the accredited municipality with the statements and balance sheets of the PHDF. Section 10(4)(f)(ii)

Submit requisition to the Director-General for the drawing down of funds out of the SAHF to the PHDF. Section 12(4)(b)

Provincial Housing Development Board Must determine procedures at meetings of the PHDB. Section 8(6)(d)

Must carry out the policy directives of the MEC in performing functions and managing, administering and disposing of assets, liabilities, rights and obligations. Section 8(9)(a)

Administer national and provincial housing programmes. Section 8(8)

Approve financing of national and provincial housing programmes.

May appoint agents to assist in the administration of national and provincial housing programmes.

Must advise the MEC on matters relating to housing development.

May exercise powers and perform duties in terms of any provincial legislation.

May appoint an executive committee, with the approval of the MEC, and determine functions of the executive committee. Section 8(11)

Request the Registrar of Deeds to make necessary endorsements where immovable property or a registrable right or claim passes to the PHDB. Section 14(2)(b)

Manage, administer or dispose of any property, in accordance with the provisions of the Housing Act. Section 14(3)(a)-(e)

Complete projects or schemes that were in process of execution by the former NHB as at 1 April, 1998. Section 14(3)(g)(i)

Transfer rights, liabilities and obligations in respect of movable and immovable property acquired from the former NHB to municipalities, in accordance with the provisions of the Housing Act. Section 15(1)(a)

Report to the MEC on the activities of the Board when requested to do so by the MEC (the Chairperson is the responsible person). Section 8(9)(b)

Consider any claims for discount received before the date determined for the lapsing of the scheme. Section 17(3)

Municipality Furnish reports, returns and other information as required by the Minister. Section 3(7)

Provide any information reasonably required for the purposes of the national housing data bank and information system to the Director General. Section 6(4)(a)

Must take all reasonable and necessary steps to ensure that inhabitants in its area of jurisdiction have access to adequate housing on a progressive basis. Section 9(1)(a)

Undertake steps to promote and facilitate housing development (including the setting of housing delivery goals and the identification and designation of land for housing development) Section 9(1)

May act as a developer in the planning and execution of housing projects. Section 9(2)

May establish a separate business entity for housing development purposes.

May administer national housing programmes, subject to accreditation.

May expropriate land required for housing development purposes, in accordance with the conditions and procedures of the Housing Act. Section 9(3)

Furnish the MEC with monthly reports on the sale of immovable property by the municipality. Section 14(4)(d)(iv)

Administer movable and immovable, in accordance with the provisions of the Housing Act. Section 14(3)(a)-(g)

Utilise proceeds from the sale, letting or alienation of property for housing development, as approved by the MEC in consultation with the PHDB. Section 14(4)(d)(iii)

Maintain a separate account for the purposes of administering movable and immovable property. Section 15(5)

Consider any claims for the discount benefit received before the date determined for the lapsing of the scheme. Section 17(3)

Municipal CEO Submit detailed statements of the results of the previous year’s transactions and balance sheets in respect of accounts to the provincial accounting officer (applicable where a municipality is accredited). Section 10(4)(f)(i)

Issue certificates that a property, claim or right has passed from the PHDB to the municipality in terms of the Housing Act. Section 15(6)

National Housing Department

The Minister of Housing must publish and update the Housing Code. The National Department of Housing is responsible for the administrative responsibilities in this regard.

Throughout the Code a number of directorates in the Department have been referred to. The composition of the Department is clarified in the organisational structure set out in figure 13.

Figure 1. Department of Housing Organ-o-gram

5.3 Key Provisions of the Act

With a view to an effective housing development process, the Housing Act contains certain key provisions.

These provisions pertain to the determination of National Norms and Standards in respect of housing development, the financial management, asset management, the management of information and lastly, it makes provision for the Minister to delegate powers and duties to the Director General or Head of a Housing Department for the effective execution of functions.

5.4 Statutory Bodies

The Housing Act abolishes the National Housing Board, replacing it with the South African Housing Development Board. The South African Housing Development Board advises the Minister of Housing on housing development, and monitors the implementation of, national housing policy. The members of the Board are housing experts and are appointed in an open and transparent process.

Provincial Housing Boards are renamed “Provincial Housing Development Boards”. Provincial Housing Development Boards administer national and provincial housing programmes, approve finance in respect thereof, and advise the MECs for Housing on housing development in the provinces. The Housing Act gives Provincial legislatures the authority to abolish Provincial Housing Development Boards by means of legislation, on condition that the legislation must provide for another body to perform the functions of the abolished boards. The members of this body are to be appointed by the MEC for housing after an open and transparent process in terms of the Act.