DEPARTMENT OF HOUSING No.
The Department of Housing hereby publishes the draft Housing Consumers Protection Measures Amendment Bill, 2006 for public comment.
Interested persons and institutions are invited to submit written comments on the draft Bill to the Director-General, Department of Housing, on or before 26 September 2006.
To amend the Housing Consumers Protection Measures Act, 1998, so as to substitute certain definitions; to insert new definitions; to clarify the scope of application of the Act; to make provision for late enrolment and non-declared late enrolment; to make provision for the position of owner builders; to extend the warranty scheme to include roof leaks; to make further provision for the use of moneys in the fund; to extend the offences created in the Act; to amend the provisions pertaining to the granting of exemption by the Council, and the lodging of appeals with the Minister; and to provide for matters connected therewith.
to construct a home for purposes of sale, renting, leasing or otherwise disposing of such a home.
National Housing Code as contemplated in section 4 of the Housing Act, 1997 (Act No 107 of 1997); or any other policy, administrative or procedural guidelines issued in terms of the Housing Act, 1997, which repeals or substitutes the National Housing Code.
any person that bona fide builds a home for occupation by him or herself; or any person, who is not a registered home builder, that bona fide assists a person in the building of a home, unless such person is guilty of conduct as prescribed by the Minister.'
Insertion of section ?
of this Act, in which case such person shall be deemed to be a home builder: and does not apply to any person who physically uses his or her own labour to build a house for his or her occupation if the house is part of an approved PHP Proiect.
17 (1) in respect of any home pursuant to the failure of a home builder to meet his or her obligations in terms of section 13 (2) (b) (i)[.
prescribe the type of costs and losses that may not be paid out of the fund.
An owner builder must apply in terms of section 29 of the Act to the Council for exemption from the application of sections 10 and 14 of the Act.
the Council has issued a certificate of proof of enrolment of the project in the prescribed form and manner to the home builder; and the MEC has paid the prescribed fee to the Council in terms of the agreement contemplated in section 5 (4) (c).
of the Act, to manaqe the risks pertaining to the fund.
to inspect the home; and to complete the competent person late enrolment report in the form prescribed in the Council rules, to confirm compliance with the NHBRC technical requirements.
the provisions of this section, the Council may prescribe disciplinary measures for late enrolment and non-declared late enrolment which are not inconsistent with this Act.
and (5), with the necessary changes required by the context, have been followed, increase the fees payable by home builders and MEC in respect of the enrolment of homes contemplated in sections 14 and 14A.
[reduce any amount, subject to section 7 (2) (e), that may be expended in terms of subsection (1) or refuse such claims.
to section 7(2Me), reduce any amount that may in terms of subsection (1 circumstances, instead of havina a defect rectified, make payment to the housinq consumer in full and final settlement of any claim; or refuse such claims.
Irrespective of subsections (1) to (4), any person who feels aggrieved decision that the Council has made in terms of section 29 of this Act, may, within one month from the date on which such decision was made known by the Council, lodge an appeal in writing with the Minister against the decision, and thereupon the Minister may confirm, set aside or amend such decision of the Council.
the granting of the exemption would not undermine the objectives of this Act, or the effectiveness of the Council; or should the exemption not be granted, the effect would be extremely prejudicial to the interests of the applicant and housing consumers.
The Council must reach and make known a decision within 60 days of receipt of an aoDlication made to it.
is not transferable.
This Act is called the Housing Consumers Protection Measures Amendment Act, 2006, and comes into operation on a date to be fixed by the President by proclamation in the Gazette.
1998 (the Act).
inserting the words "renting" and "leasing" in paragraph (b) of the definition, which deals with acts that are regarded as constituting disposal of a home; and deleting paragraph (d) of the definition. The wording of paragraph (d) has resulted in so-called 'owner builders' being excluded from the scope of application of the Act. In broad terms an owner builder is a person who wishes to build a home for occupation by him or herself, and who utilises own resources such as labour and financing. In these cases application of the Act would result in an absurd situation where the mentioned person is in fact protected against him or herself. Although this fact is recognised, it was never the intention of the legislature to totally exclude such 'owner builders' from the application of the Act, but rather that they be entitled to apply for exemption from the provisions of the Act, thereby ensuring that they are indeed bona fide owner builders, and not just builders wishing to escape from the letter of the law. As paragraph (d) of the definition has not achieved this, it is being deleted and substituted with a substantive definition of, and provisions pertaining to, "owner builders".
2.2 The definition of "home builder" is amended to include "owner builders'' who have not been exempted in terms of the Act.
2.3 Definitions for "late enrolment" and "nondeclared late enrolment" are inserted. Although these issued have in the past been dealt with in Regulations issued under the Act, they are not defined in the Act, nor does the Act contain any specific provisions pertaining thereto. This situation is rectified by the insertion of the mentioned definitions, as well as making specific provision therefore in the proposed section 14A, dealt with below.
2.4 Definitions for "National Housing Code" and "PHP project" are inserted, as these expressions are contained in the substantive provisions proposed by this Bill.
2.5 A definition for "owner builder"is inserted after the definition of "organ of state".
is inserted to provide for the scope of application of the Act.
2.7 Section 7, dealing with the regulating measures that the Council and the Minister may prescribe, is amended to include measures pertaining to late enrolment, non-declared late enrolment and late enrolment fees.
is inserted to enable "owner builders" to apply for exemption from the provisionsof the Act.
2.9 Section 14A is inserted to ensure that the Act contains substantive provisions pertaining to, and regulating, late enrolment and non-declared late enrolment. The proposed section 14A consists of a revised combination of the existing regulations 14 and 15, as contained in the Council Rules published under Regulation No. R.
2.10 Section 17 of the Act is amended to extend the cover provided by the Council's warranty scheme to include roof leaks, and to enable the Council, in exceptional circumstances, instead of having a defect rectified, to make payment to the housing consumer in full and final settlement of a claim.
duty of a conveyancer to ensure that a home builder is registered before attending to the registration of a mortgage bond.
2.12 Section 22 is amended by the insertion of a new subsection (5) which enables persons who are aggrieved by any decision made by the Council in terms of section 29, to lodge an appeal with the Minister. This is necessitated by the fact that section 29 is being amended to allow the Council, and not the Minister, to grant or refuse applications for exemption.
2.13 Section 29 is amended to allow the Council to grant or refuse applications for exemption, In its current format the section empowers the Minister to consider applications for exemption, based on recommendations provided by the Council. As this process firstly causes lengthy delays due to the extensive responsibilities of the Minister, and as the technical expertise necessary to properly evaluate applications is not available in the Department of Housing, the responsibility is best vested in the Council. A safeguard in the form of an appeal process is, however, built into section 22 to ensure that exemptions are not refused unreasonably.
Natal Institute for Architecture. Consultation was also undertaken with the Council and the State Law Advisers, and it is proposed that the Bill be published in the Gazette again.
The State Law Advisers and the Department of Housing are of the opinion that this Bill must be dealt with in accordance with the procedure established by section 75 of the Constitution since it contains no provision to which the procedure set out in section 74 or 76 of the Constitution applies.
Act, 41 of 2003, since it does not contain provisions pertaining to customary law or customs of traditional communities.