By Prof. Graham Paddock
The first Information Session was held on 16 Nov 2009 at the CSIR Conference Centre in Pretoria and the second on 20 Nov 2009 at the Durban International Conference Centre. The third session will be held on 27 Nov 2009 at the Southern Sun Hotel, Claremont in Cape Town. All the sessions are chaired by Ms. Nelli Lesholonyane (Deputy Director General: Corporate Services) and supported by Adv. Santie Burger and other Department staff. After the opening and an introductory talk there are two presentations on each Bill and then time for comments and questions.
For the Sectional Titles Scheme Management Bill my presentation is entitled “An overview of the relevance, benefits and challenges facing sectional titles as a form of tenure option to accelerate housing delivery in South Africa and evaluation of international best practice.” The talk is divided into five parts with an initial look at the relevance, primary benefits and greatest challenges facing sectional title. I identify the greatest challenge to the concept of sectional title as being the perception that it is too complex and financially risky. I then look at the various tenure options and address the question “When is Sectional Title suitable and when is it not?” I examine various ways of making sectional title legislation more accessible and “user-friendly”, touch on the importance of education and conclude with the view that, carefully applied, our sectional title is good enough to deal with any type of development where it is appropriate.
Mr Khwezi Ngwenya (Director: Framework Legislation) gives the next talk, covering the background to the STSM Bill, its effect on the Sectional Titles Act, 1986 and dealing with the contents of the Bill.
Because the STSM Bill does not make any substantive changes to the governance provisions that exist in the current Sectional Titles Act, there is not a lot of scope for comments. Nevertheless there been a range of suggestions made as to how the existing provisions should be amended. Clearly the revision of sectional title governance provisions is an issue that will require ongoing attention in the future.
Joseph Maluleke gives the first presentation on the Community Scheme Ombud Service Bill entitled “An ombud service as a dispute resolution mechanism to protect the right to good administration within community schemes; and the relationship of the two Bills to other pieces of legislation (Estate Agency Affairs Act, Housing Development Schemes for Retired Persons Act and the Sectional Titles Act).” He deals with the role of CSOS in dispute resolution, the management of Community Schemes, arbitration, and the features and functions of the CSOS.
The second presentation on this Bill is given by Adv. Jan Tladi (Chief Director: Legal Services). He describes the Department’s vision and mission, the genesis of the Ombudsman concept, the modern form of Ombudsman and the philosophical underpinnings. He then covers the background to the Bill, its contents and some very positive comments received by the Department, concluding that we need the Community Schemes Ombud Service. His presentation ends with a quotation by Rollo May taken from “Man’s Search or Himself”: “the most effective way to ensure the value of the future is to confront the present courageously and constructively.”
Most of the comments on the CSOS bill have been very positive. A representative from the Gauteng Rental Housing Tribunal shared her view that the Ombud Service is a good approach. Dr Gerhard Jooste and Barbara Shingler, directors of NAMASA have both said that managing agents should fall under the control of the Ombud Service as should Administrators appointed by the High Court. It was suggested that the Ombud Service should adopt NAMASA’s code of conduct. The Retirement Village Interest Group believe that the Ombud Service is sorely needed by retirees.
A number of comments expressed concern that setting up the Service would be a difficult task and would take time. Others expressed concerns about the exact wording of parts of the Bill and will be making suggestions as to how these might be amended to address their concerns.
It was suggested that lawyers should be excluded from the adjudication process. A subsequent suggestion was that lawyers should only be allowed to represent parties to more complex disputes, so as to avoid clogging up the system with representation when this is not appropriate.
But not all people have been positive about the Ombud Service, nor have all the comments been constructive. The Service has been described as a “looming disaster” that will be inefficient and expensive, staffed by inept government officials who will not be up to the task of resolving intricate issues of legal interpretation. Another fear is that experience and ability will not be the dominant criteria in the choice of adjudicators.
If you want to have your views on the STSM and CSOS Bills considered, e-mail them in a message to Adv. Santie Burger (Santie.Burger@dhs.gov.za) before the end of Monday, 30 November 2009.