Housing Act [No. 107 of 1997]
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REPUBLIC OF SOUTH AFRICA
GOVERNMENT GAZETTE
STAATSKOERANT
VAN DIE REPUBLIEK VAN SUID-AFRIKA
Registered at the Post Ofice m a Newspaper As ‘n Nuusb[ad by die Poskantoor Geregistt-eet-
VOL. 390 CAPE TOWN, 19 DECEMBER 1997
KAAPSTAD. 19 DESEMBER 1997
OFFICE OF THE PRESIDENT
No. 1661. 19 December 1997
; It is hereby notified that the President has assented f to the following Act which is hereby published for general ! information: —
No. 107 of 1997: Housing Act, 1997.
No. 18521
KANTOOR VAN DIE PRESIDENT
No. 1661. 19 Desember 1997
Hierby word bekend gemaak dat die President sy goedkeunng geheg het aan die onderstaande Wet wat hierby ter algemene inligting gepubliseer word:—
No. 107 van 1997: Behuisingswet, 1997.
~ No. 18521 GOVERNMENT G&zETTE, 19 DECEMBER 1997
Act No. 107, 1997 HOUSING ACT, 1997
ACT To provide for the facilitation of a sustainable ho~fig development process; for this purpose to lay down general principl~ app~~bk+ to housing development in all spheres of government, to define the fUnCtiOIIS of nation~, provincial and local governments in respect of housing development ~d ~ profide for the establishm- ent of a South African Housing Development Bo~d, the continued existence of provincial boards under the name of provinc~ ho~g development boards and the financing of national housing pro~~; to’ ~pd certain laws; and to provide for matters comected therewith.
- PREAMBLE
WHEREAS in terms of section 26 of the constitution of the Republic of South Africa, 1996, everyone has the right to have acc& to C&@W housing, and the state must take reasonable legislative and other measures, wi~n ]ts av&Iable resources, to achieve the progressive realisation of this right;
AND WHEREAS the Parliament of the Repubfic of South Africa recognises that— housing, as adequate shelter, fwa basic human need; housing is both a product and a process; housing is a product of human endeavour and enterprise; housing is a vital part of integrated developmental planning; housing is a key sector of the national economy; housing is vital to the >ocio-econornic well-being of the nation;
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(English text signed by the President.) (Assented to 27 November 1997.)
BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa,as follows:— ARRANGEMENT OF ACT
INTRODUCTION
1. Definitions 5
7 A.
3. 4. 5. 6.
7. 8.
PART 1 GENERAL PRINCIPLES
General principles applicable to housing development
PART 2 NATIONAL GOVERNMENT
Functions of national government National Housing Code South Afric~ Housing Development Board National housing data bank and information system
PART 3 P R O VINCIAL GOVEw~
Functions of provincial governments Provincial houstig development boards
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A NO. 18521 GOVERNMENT GAZE7TE. 19 DECEMBER 1997
Act No. 107.1997 HOUSING ACT. 1997
9. 10.
11. 12.
13. 14. 15.
16, 17.
18. 19. 20. 21.
PART 4 LOCAL GOVERNMENT
Functions of municipalities Administration of national housing programmed by municipalities
PART 5 FINANCING OF HOUSING DEVELOPMENT
South African Housing Fund Allocation of money in Fund to provincial governments
PART 6 TERMINATION OF HOUSING ARRANGEMENTS 10
Abolition of National Housing Board Arrangements regarding assets and liabilities of National Housing Board Transfer of certain property from provincial housing development boards to municipalities Transfer of money in certain funds to municipal operating accounts 15 Termination of Discount Benefit Scheme
PART 7 - GENERAL PROVISIONS
Delegation Annual report Repeal of laws Short title and commencement
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SCHEDULE REPEAL OF LAWS BY SECTION 20
INTRODUCTION 15
Definitions
1. In this Act. unless the context otherwise indicates— (i)
(ii) (iii) (i\)
(v)
(vi)
(vii)
. . (vIll)
“Constitution” means the Constitution of the Republic of South Africa. 1996 (Act No. 108 of 1996): (vi) “Department” means the Department of Housing: (iii) 30 “Director-General” means the Director-General: Housing; (iv ) “Fund” means the South African Housing Fund referred to in section 11(1): (v) “head of department” means the officer of a provincial administration in charge of the department of a provincial administration responsible for the 35 administration of housing matters in a province; (vii) “housing development” means the establishment and maintenance of habitable, stable and sustainable public and private residential environments to ensure viable households and communities in areas allowing convenient access to economic opportunities. and to health. educational and social 40 amenities in which all citizens and permanent residents of the Republic will. on a progressive basis. have access to-- (a) permanent residential structures with secure tenure, ensuring internal
and external privacy and providing adequate protection against the elements; and 45
(b) potable water. adequate sanitary facilities and domestic energy supply; (i)
“housing development project” means any plan to undertake housing development as contemplated in any national housing programme: (ii) “MEC’” means the member of the Executive Council of a province 50 responsible for housing matters in the province in question; (viii)
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.4ct !%. 107, IW HoUSING ,ACT. 1997
(ix) (x)
(xi)
(xii)
(a)
(b) (c)
c-~r” ~=~ tbe ~ster of Housing; (ix) ‘$m@~P~W~:-a ~u~cipality as defined in sec:ion 10B of the LOC~ Govemm[ T~~i~on Act, 1993 (Act No. 209 of 1993); (X) “national IIOUS@,.P@” means the national policy in respect of housing ,~v~~~~ned by the Minister in terms of section 5 W)(ai (x i ) 1,,- w’””- “national ho- p~e>’ mems any national policy framework to fa@l@pj~nL ~cluding, but not limited to, any housing assistan= Xnk@llm ‘“” ‘referred to in section 3(5) or any other IA memu or ama@~t~,*j L: I
~~~~.~3--f@~Y provide for their own hou~ln~ ‘u facilit~te housing
“ + q u s i n g ‘ t o c k ’ ‘ n c ’ u d i n g ‘U n i c i p a ’ 15
,. .,.- . ,4*.,.$? ~jj.~~#&j)j3 ,,; ; , ensure that housing development= (i) provides as wide a ch~ice of h~$~g’rmd tenure options as is reasonably 30
possible: (ii) is economically. fiscally. socially and financially affordable 7$ sustain-
able; .,
(iii) is based on integrated developrneu$rpw“n ; and(iv) is administered in a transparen~, W@#.% “‘ ,,~w~~d,equitable manner, and 35upholds the practice of good govemh encourage and SUppOfi individuals a#!#$##$ies, including, but not limited to, co-operatives, associations SIId &~,WS which are community- based, in their efforts to fulfi] their own,h&tttg%f%ds by assisting them in accessing land, services and technical ‘&&%&~i~’? way that leads to the 40 transfer of skills to, and emp~werment Of~kk kOfIUltUtlity;
(e) promote— . ,: ,>, ., (i) education and consumer ~rotection~@:~$-k#@fhOusing development;
(ii) conditions in which everyone meetS’~7#~3$@tions in respect of housing development; 45
(iii) the establishment, development r@ &@@rifice of socially and
(iv)
(v)
(vi)
(vii)
economically viabIe communities ~di ‘d~~j$~ ~d healthy ‘living,
of municipalities to effectively exercise their powers and perform their duties 5 in respect of housing development;
(d) co-ordinate housing development in the province; (e) take all reasonable and necessary steps to SUpport municipalities in the
exercise of their powers and the performance of their duties in respect of housing development; 10
&) when a municipality canrlot or does not perform a duty imposed by this Act. intervene by taking any appropriate steps in accordance with section 139 of the Constitution to ensure the performance of such duty; and
(g) prepare and maintain a multi-year plan in respect of the execution in the province of every national housing programme and every provincial housing 15 pro.grarnme, which is consistent with national housing policy and section 3(2)(b). in accordance with the guidelines that the Minister approves for the financing of such a plan with money from the Fund.
Provincial housing development boards
8. (1 )(a) Despite the repeal of the Housing Arrangements Act. 1993 (Act No. 155 of 1993), by section 20-
‘(i) - every provincial board established under section 11( 1 ) of that Act continues to exist under the name “provincial housing development board” for the province in question: and
(ii) every executive committee appointed under section 11A(1)(a) of that Act. continues to exist,
until abolished b) a law of the relevant provincial legislature as contemplated in subsection (13 ) of this section.
(b) Every person who holds office in respect of such provincial board or executive committee continues in office for the unexpired portion of the period for which he or she was appointed or designated, unless the MEC determines otherwise.
(2) The MEC must fill any vacancy in any office in respect of a provincial housing development board and its executive committee in accordance with the applicable provisions of subsections (3) and (11).
(3)(a) A provincial housing development board is a juristic person and consists of not more than 18 members and, if that number is less than 18. the number of members must be divisible by three. and of which—
(i) one-third must be nominated by the sectors and subsectors supplying or financing housing goods or services in the province in question;
(ii ) one-third must be nominated by those organisations and community-based groups in civil society representing the interests of consumers of housing goods or services in such province; and
(iii ) one-third must be nominated by those institutions regulating housing in such province and the political parties which are represented in the provincial legislature of the province.
(b) The members of a provincial housing development board are appointed by the MEC with the approval of the Executive council of which he or she is a member.
(c) The members of a provincial housing development board must be appointed only afler—
(i) the MEC has throwzh the media and bv notice in the Pro~’itrcial Gazette. invited nominations of persons as candidates for the respective positions on such board: and
(ii ) the committee for housing of the provincial legislature has made recommen- dations to the MEC in relation thereto after a transparent and open process of considering persons so nominated.
(d) The need for a provincial housing development board to reflect broadly tbe race
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and gender composition of South Africa-and the ~eographic composition of the province must be considered when members are appointed.
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Act No. 107.1997 HOI_ISINCi ACT. 1997
(e) A member cr alternate member of a provincial housing development board must- (i) be a fit and proper person; and
(ii ) have knowledge. qualifications or experience in the field of housing development. -
(~) If a member of a provincial housing development board other than its chairperson or vice-chairperson so requests, the MEC may appoint an alternate member for that member to act in his or her stead when he or she is absent from a meeting of such board.
(4)(a) A member of a provincial housing development board is. subject to paragraph (b), appointed for the period determined by the MEC at his or her appointment, but not more than three years. and may be reappointed on the termination of such period.
(b) A member or alternate member of a provincial housing development board ceases to hold office if—
(i) he or she resigns; -
(ii) without the leave of such board, he or she is absent from three consecutive meetings of the board;
(iii) his or her estate is sequestrated or he or she applies for assistance contemplated in section 10(1)(c) of the Agricultural Credit Act, 1966 (Act No. 28 of 1966);
(1v ) he or she becomes of unsound mind: (v) he or she is convicted of an offence and sentenced to imprisonment without
the option of a fine; (vi) he or she becomes a member of Parliament, a provincial legislature. a
Municipal Council, the Cabinet or the Executive Council of a province; or (vii) the MEC. with the approval of the Executive Council of which he or she is a
member. terminates his or her office for reasons which are just and fair. (5)(a) The MEC must tiesignate one of the members of the provincial housing
development board as the chairperson. and another member as the vice-chairperson. of the board.
(b) When— (i) the chairperson of a provincial housing development board is absent or unable
to fulfil any function of the chairperson, the vice-chairperson of such board must act as chairperson during such absence or incapacity;
(ii) both the chairperson and vice-chairperson of the board are absent or unable to fulfil any function of the chairperson, the MEC must designate any other member of the board to act as chairperson during such absence or incapacity.
(6)(a) All meetings of a provincial housing development board must be held at times and places determined by its chairperson.
(b) The chairperson or, in his or her absence, the vice-chairperson— (i) ma~ convene a special meeting of the provincial housing development board:
(ii) must convene such meeting within 14 days of the receipt of a written request signed by not less than six members of the board to convene such meeting.
(c) The quorum for a meeting of a provincial housing development board is more than 50 per cent of its members.
(d) A provincial housing development board determines. subject to the directions of the MEC. the procedure at its meetings.
(e)(i) A member or alternate member of a provincial housing development board may not be present during. or take part in. the discussion of. or the making of a decision on. any matter before such board in which—
(au) such member or his or her spouse, immediate family member, business partner or associate or employer, other than the State; or
(bb) the business partner or associate or employer. other than the State. of his or her spouse,
has a direct or indirect financial interest. (ii) A member or alternate member of a provincial housing development board must.
in the manner and at the intervals the MEC determines, disclose any direct or indirect financial interest—
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S() 1X52122 GOVERNMENT G.4ZETTE. 19 DECEMBER 1997
.Act NO. 107.1997 HOUSING ACT. 1997
(CM) such member or his or her spouse, immediate family member, business partner or associate or employer. other than the State; or
(bb) the business pa]tner or associate or employer, other than the State, of his or her spouse,
has in housing development. (iii ) For the purposes of this para.graph—
(au) “spouse’” includes a person with whom the member lives as if they were married or with whom the member habitually cohabits;
(bb) “immediate family member” means a parent, child, brother or sister. (7)(a) A member or alternate member of a provincial housing development board.
other than a person who is in the full-time employment of the State, must be appointed on the conditions of service detetined by the MEC with the approval of the member of the Executive Council responsible for finance in the relevant province.
(b) Conditions of service so determined may differ according to whether the person cotlccmed is a member or an alternate membe; of such board or serves on the board by t’irtue of his or her office or on a full-time or part-time basis.
(8) Subject to subsection (9), a provincial housing development board— ~ o ) must administer every national housing programme and every provincial
housing programme. which is consistent with national housing policy and section 3(2)(b J. and for this purpose may, in accordance with such programme— (i J approk’e the financing thereof out of money paid into the provincial
housing development fund as contemplated in section 12(2): and (ii ) appoint such agents as are necessary to assist such board in the
adrniriistration thereofi (b) may of its own Zccord, and must at the request of the MEC. advise the MEC
on any matter relating to housing development in the province; (c) may exercise or perform any powers conferred or duties imposed b~ any lav
of the relevant provincial legislature. (9)(a) A provincial housing development board must, in the performance of its
functions and in the management. administration and disposal of its assets, liabilities. rights and obligations, cm out the policy directives of the MEC consisten[ with na[ional housing policy.
(b) When so requested by the MEC, the chairperson of the provincial housing development board in question mus[ report to the MEC on the activities of such board.
(C) The MEC must, within 90 days after 31 December of each year, submit to the provincial legislature in question or. if such legislature is not then in session. within 14 days after the commencement of its next session, a report on the activities in terms of this Act of the previous year of—
(i) the provincial housing development board; and (ii ) the municipalities within the province in question which have been accredited
under section 10(2). ( 10)(u) At the commencement of Part 6, the functions of the National Housing Board
established b) section 2 of the Housing Arrangements Act. 1993 (Act No. 155 of 1993). in respect of any housing assistance measure mentioned in section 3(5) of this Act. performed by that Board or a provincial board in terms of section 11(4)(a) of the Housing Arrangements Act. 1993. devolve upon a provincial housing development board in respect of those functions which were performed by that Board or such a provincial board in relation to the province of such provincial housing development board.
(b) Any reference to the National Housing Board or a provincial board in any document in which such housing assistance measure is mentioned, must be construed as a reference to the provincial housing development board in question.
(11 )(a) A provincial housing development board may, with the approval of the MEC. appoint an executive committee consisting of the chairperson and vice-chairperson of such board. and not more than four other members of the board.
(b) The chairperson or, in his or her absence, the vice-chairperson of the provincial housing development board presides at meetings of the executive committee or. in the absence of both the chairperson and vice-chairperson, the meeting must be chaired by a
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