Measures Amendment Bill, 2003 for public information, discussion and comment.
[ ] Words in bold typein square brackets indicate omissions from existing enactments.
Words underlined with a solid line indicate insertions in existing enactments.
To amendtheHousingConsumersProtectionMeasures Act, 1998, so asto provide for certain revised definitions and the insertion of a new definition of "owner builder"; to make provision for the application for exemption of owner builders; to transfer the powers of granting exemption from the Minister to the NationalHomeBuildersRegistrationCouncil; andtoprovideformatters connected therewith.
Amendment of section 1of Act 95 of 1998 1.
"(b) to construct a home for purposes of sale, renting, leasing or otherwise disposing of such a home."
the bona fide building of occupation by that person; or a home by anyperson for builder, in the building of a home, unless such person is guilty of conduct as prescribed bv the Minister.
Insertion of section 10A in Act 95 of 1998 2.
lOA(1) 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 Provisions of this section will not auuly to a person who physically uses hisher own labour to build a house for hisher occupation if the house is a art of an amroved Project Linked Housing Subsidy Proiect: People'sHousing Process Route, until the Minister issue regulations in this repard.
Amendment of section 14 of Act 95 of 1998 3.
the Council has accepted the submission contemplated in paragraph (a) and has entered it in the records of the Council; and the Council has issued a certificate of proof of enrolment in the prescribed form and manner to the home builder; and the provincial housing development board haspaid the prescribed fee to the Council in terms of the agreement contemplated in section 5(4)(c).
Amendment of section 18of Act 95of 1998 4.
and local government.
5The relevant local authority shall be responsiblefor informing any prospective home builder or owner builder of the possible application of the provisionsof this Act, prior to granting municipal approval for the commencement of the construction of a home.
Amendment of section 21 of Act 95of 1998.
"(b) contravenes a provision of section (lo)(1) or (2), 13(7), 14(1) or (2); 18(1) or (2) or 19(5)."
Amendment of section 22 of Act 95 of 1998 6.
(5) Irrespective of subsections (1) to (4).
29 of this Act, may, within one month from the date on which such decision was made known by the Council, lodge an aupeal in writing with the Ministeragainstsuchdecision, andthereupon the Minister may confirm, set aside or amend such decision of the Council.
Substitutionof section 29 of Act 95of 1998 7.
objdctive of thisAct, or the effectiveness of the Council; or the not be the effect be extremely prejudicial to the interests of the applicant and housing consumers.
The Council mustreachand make known adecisionwithin 60 daw of receipt of an application made to it.
An exemption conterndated in subsection (1) is not transferable.
This Act iscalledtheHousingConsumersProtectionMeasures Amendment Act, 2003, and comes into operation on a date to be fixed by the President by proclamation in the Gazette.
No 95 of 1998, hereinafter referred to as "the Act".
to ensure that the purpose for which a home is constructed is dealt with as comprehensivelyaspossible, theexpressions"renting"and"leasing"are inserted in paragraph (b) of the definition.
paragraph (d) of the definition hasproven tobeproblematic. In terms of various legal opinions, including that of the Chief State Law Adviser, it has been established that the current wording of paragraph (d) excludes so-called "owner builders" from the scope of application of the Act. Although the aim and purpose of the Act is to provide protection to all housing consumers, it was recognised that in some cases consumers would wish to build a home for occupation by themselves, using own resources. These resources would include both labour and the financing of building costs. In such casesthe application of the Act wouldin effect meanthatconsumersarebeing protectedagainstthemselves, whichforobviousreasonsdoesnot make sense.
It was, however, never the intention of the legislature to totally exclude these owner builders from the applicationof the Act, but rather that they be entitled to apply for exemption from the provisions of the Act, so as to ensure that they are indeed bona fide owner builders, and not just builders trying to take advantage of the situation. As mentioned, paragraph (d) of the definition of "business of a home builder" has not achieved this, and it has been decided to rather delete paragraph (d) and make provision for a substantive definition of the expression "owner builder".
(a)enable the newly defined"ownerbuilder"toapplyforexemptionfrom the application of the provisions of the Act in terms oftheprocesssetout in section 29 of the Act.
(b)exclude from the applicationoftheAct, at least until such time as the Minister has issued regulations on the matter, persons who physically build their own home as part of an approved Subsidy Project in terms of the People's Housing Process programme. These persons are essentially in the same position as owner builders but for the fact that these homes fall within the low cost housing category.
Section 14 is amended to exclude the expressions "except in respect of any deposit payable" and "solely" as these expressions have become obsolete within application of the provisions of the Act at a later stage. In view of the fact that the Minister has decided that all houses must be enrolled, the qualification has become obsolete.
Section 22 oftheAct is being amended by the insertion of 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.