The Housing Consumers Protection Measures Act favours the council and the builder, not the consumer. And the Human Settlements Ombudsman, appointed two years ago, hasn't been given legal or enforcement powers. Picture: Jason Reed/Reuters
Three years after the foundations to her new home were laid in a housing estate in Kempton Park, Dr Babazile Mahlalela and her family have not moved in. They cannot - most of the house needs to be demolished. At a significant cost.

It’s badly constructed, dangerous and an eyesore in the upmarket estate she had bought into. Her three-year fight with the National Home Builders Registration Council (NHBRC) hasn’t got her anywhere. The Human Settlements Ombudsman (HSO), who was appointed by previous human settlements minister Lindiwe Sisulu, intervened, but the council told him he had no real legal or enforcement powers, so ignored his ruling.

It raises the questions: what’s the point of the HSO, whose office remains in limbo two years after appointment because the ministry is yet to deliver legislation clarifying its powers? What does the NHBRC do for housing consumers? Why does the ministry appear indolent on housing issues?

The NHBRC was established by the Housing Consumers Protection Measures Act of 1998, which requires the council to: “Represent the interests of housing consumers by providing warranty protection against defects in new homes; regulate the home building industry; provide protection to housing consumers in respect of the failure of home builders to comply with their obligations in terms of this act; establish and promote ethical and technical standards in the home building industry; improve structural quality in the interests of housing consumers and the home building industry; promote housing consumer rights and to provide housing consumer information; communicate with and to assist home builders to register in terms of this act; assist home builders, through training and inspection, to achieve and to maintain satisfactory technical standards of home building.”

Consumers are required to pay 1.3% of the total cost of their new build - up to the value of R34000 - as an “enrolment fee” which is said to give them the assurance of regular inspections, expertise and access to a healthy reserve fund, apparently worth R4.8 billion. Should things go wrong, they can claim up to R500000 - and see consequences. In theory.

But to access the warranty fund, consumers need to take occupation, which puts them at risk: theoretically forcing them to move into structurally unsafe buildings so they can compel the council to rectify the problems.

Mahlalela did everything by the book: her R6million home wasn’t going to be built by a Jack of all trades she picked up on the side of the road. She signed with an NHBRC-registered builder, as legally required; flagged issues; raised complaints through the relevant channels - numerous times, becoming increasingly desperate - and yet, there is no home.

In December last year, she was told high-handedly that an amicable settlement had been reached with the NHBRC.

She has been asked to resubmit her complaint because the ministry lost track of it. Turns out, the minister had not been made aware of either her appeal or the ombud’s recommendations made in September.

Mahlalela’s home was not inspected at crucial stages, and yet the council’s spokesperson Tshepo Nkosi says: “There is no need for consumers or builders to make arrangements for inspections as NHBRC inspectors conduct unannounced visits to ensure that builders meet the NHBRC structural requirements at all times.

“If the house is enrolled prior to construction, the NHBRC will carry out all the necessary inspections. The number of inspections conducted depends on the enrolment value and the complexity of the design in order to mitigate structural risk.”

Asked what happens if inspections are not done, he said: “The inspections remain an important risk management tool and a missed inspection due to unforeseen circumstances, will not have any impact on the rights of the housing consumer to claim against the builder or the NHBRC. The right of recourse for the housing consumer remains intact.”

But if consumers don’t get joy from the NHBRC or are unhappy with its decisions, they are told to take it up with the ombud - or go to court.

The act favours the council and the builder, not the consumer. The ministry said it was repealing the act to “ensure adequate protection of housing consumers and effective regulation of the home building industry by, inter alia, strengthening the regulatory mechanisms; expanding protection to housing consumers; introducing effective enforcement tools and prescribing appropriate penalties/sanctions to deter non-compliance by home builders. For example, under the act, warranty cover is from date of occupation, whereas with the proposed bill the cover will commence from construction and cover the warranty period”.

Mahlalela has been let down. She’s not alone. From complaints about the council allowing unscrupulous businesses to operate, to it failing on its mandate to assist and protect housing consumers from unscrupulous home builders who deliver substandard houses, drag their feet, fail to take responsibility for bad workmanship and poor quality material, have “random”, if any, inspections and inadequate processes; to negligence and incompetence - and, even picking on the little guy. One online complaint even questioned: Does anyone even work at the NHBRC?

She had followed said processes: reporting the builder, whom she later discovered wasn’t able to pass the basic NHBRC competency test but was working with his sister and was hopeless; the NHBRC eventually fined him R80000 - 19 months after receiving the complaint - but he couldn’t pay.

Mahlalela appealed to the NHBRC’s chief executive; both ministers Lindiwe Sisulu and her replacement, Nomaindia Mfeketo. Mfeketo referred her to the ombudsman, who ruled decisively against the council, which ignored him because it said he had no jurisdiction, who then went back to the minister, to be passed onto her legal adviser. Six months after the minister’s adviser promised Mahlalela a favourable settlement, she’s no closer to a resolution.

Sisulu announced the establishment of the ombud in her 2017 budget speech. That June, during a Ministers and Members of Executive Councils meeting, it was agreed the ombud’s recommendations would be implemented, despite a lack of jurisdiction. Two years later, there’s only a draft policy and silence from the department.

EFF leader Julius Malema has mocked the department, asking where it was on the housing crisis, telling Parliament: “People are marching for houses. Who’s the minister of Human Settlements? No one knows. You’ll never see her at any protests.”

Asked about the ombud’s lack of jurisdiction, Xolani Xundu, Mfeketo’s spokesperson, said: “In 2017, all entities of the department, including Municipalities and Human Settlements will abide, but we do have some challenges hence we are proceeding with the policy and legislation in this regard to provide legal teeth.”

It denied it was dragging its feet on formulating policy: “There is no delay; the draft policy has now been formulated to start legislation process for the (HSO).”

Asked about Mahlalela’s issue, the ministry said: “We understand the pain and the frustration of Dr Mahlalela; hence the NHBRC has repeatedly offered to assist the housing consumer with this by providing the necessary support.”

But Mahlalela says all support she received from the NHBRC was to arrange for someone in Limpopo to write the NHBRC’s technical test so that he could come and rectify the gross structural defects. He too failed the NHBRC test (he got 15%).

The only other option given to her was to tell her to allow the first unqualified builder who ruined her house to return to the site and rectify the structural defects. An offer she obviously refused.

* Georgina Crouth is a consumer watchdog with serious bite. Write to her at [email protected], tweet her @georginacrouth and follow her on Facebook.

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