Vol. 409, No. 20321, 30 July 1999
GENERAL NOTICE
Notice 1624 of 1999
DEPARTMENT OF HOUSING
CALL FOR COMMENTS ON DRAFT REGULATIONS PUBLISHED
UNDER THE HOUSING
CONSUMERS PROTECTION MEASURES ACT, 1998 (Act No. 9S of 1998)
- Minister's Regulations
- Minister's Fees
- Council's Regulations
- Council's Fees
- Disciplinary Rules
The Director-General
Department of Housing
Private Bag X644
PRETORIA
0001Attention: Mr R Thatcher (Tel. (012) 421 1629)
Comments may also be faxed to the Department on fax no. (012) 341 8512.
Comments must reach the Department not later than 31 August 1999.
Minister's Regulations
DEPARTMENT OF HOUSING
HOUSING CONSUMERS PROTECTION MEASURES ACT, 1998 (ACT NO. 05 OF 1998)
Under the powers vested in me by sections 1 and 7(2) of the Housing Consumers Protection Measures Act, 1998 (Act No.95 of 1998), I, SANKIE DOLLY MTHEMBI-MAHANYELE, Minister of Housing, hereby make the rules set out in the Schedule.
S D Mthembi-Mahanyele
Minister of Housing
SCHEDULE
1. Definitions
In these rules, unless the context indicates otherwise, any word to which a meaning has been assigned in the Act has the meaning so assigned to it, and -
2. Definition of "home"
(1) For purposes of the definition of "home" in section 1 of the Act, "home" excludes:
(2) For purposes of a claim in terms of section 17 of the Act, "home"
(3) For purposes of enrolment in terms of section 14(1) of the Act, "home" includes all homes with the exception of a home contemplated in section 14(2) of the Act, being homes which, except in respect of any deposit payable, will be financed solely from the proceeds of a state housing subsidy;
3. Definition of "business of a home builder"
For purposes of the definition of "business of a home builder" in section 1 of the Act, the following also constitutes the business of a home builder:
"The activity conducted by a legal entity of buying land and developing such land and constructing homes on such land and the subsequent sale of the legal entity owning the land rather than the home itself."
4. NHBRC technical requirements
A home builder must, in the construction of a home, ensure compliance with the requirements set out in rules 5 to 10 inclusive, being the requirements contemplated in section 7(2)(d) of the Act, relating to the design and construction of homes in respect of structural strength, serviceability, behaviour in fire, drainage and stormwater management.
5. NHBRC technical requirements in relation to structural strength and stability
(1) A home and any structural element or component thereof must be designed and constructed to provide strength and stability for the lifetime of the structure in accordance with current accepted standards of good practice.
(2) Foundations must be designed and constructed to transmit loads from super-structures to soil horizons safely and without causing excessive movement or distress in the elements which they support.
(3) Foundations must be designed and constructed to resist differential displacement and to prevent the passage of moisture to the interior of the home.
(4) Floors and stairways must be designed and constructed to carry their own dead loads in addition to any live loads which they are likely to be subjected, safely and without undue deformation and distress.
(5) Walls must be designed and constructed to safely withstand any load to which they are likely to be subjected without impairing weather tightness and without undue deformation and distress.
(6) Roofs and their components must be designed and consbucted to safely resist any forces to which they are likely to be subjected and without the roof consbuction becoming detached from its respective supporting sbucture.
6. NHBRC technical requirements in relation to serviceability
(1) Any home and any structural element or component thereof must be durable, resist wafer penetration and prevent condensation which may adversely affect fitness for habitation, and withstand any loads to which they are likely to be subjected without undue deflection, distortion or cracking over the lifetime of the structure.
(2) Walls must be designed and constructed to resist the penetration of water into the interior of homes.
(3) Roofs must be designed and constructed to resist rain penetration and to avoid the accumulation of rain water thereon.
7. NHBRC technical requirements in relation to fire
The combustibility and fire resistance characteristics of all floors, walls, roofs and the ceiling assembly must be appropriate to the location and use of such elements.
8. NHBRC technical requirements relating to materials
Materials used in the construction of homes must be suffficiently durable and of a suitable quality for the purpose for which they are to be used.
9. NHBRC technical requirements in relation to drainage
Drainage installations must be designed and constructed so that the installation is capable of carrying the hydraulic design load; of being easily maintained; and which does not result in leakage which may detrimentally affect the structural integrity of a home.
10. NHBRC technical requirements in relation to stormwater disposal
Suitable means, preferably of a fail-safe nature, must be provided for the control and disposal of stormwater in a manner which does not result in soil erosion or nooding which may detrimentally affect the sb uctural integrity of the home.
11. Satisfying the NHBRC teehnieal requirements In relation to design
The NHBRC technical requirements contemplated in rules 5 to 10 inclusive are deemed to have been met where a home builder has -
12. Satisfying the NHBRC technical requirements in relation to construction
The NHBRC technical requirements in rules 5 to 10 inclusive are deemed to have been met where a home builder has -
13. Compliance in relation to materials
(1) A home builder may be required by the Council to satisfy the Council that materials used or to be used by the home builder in the construction of a home comply with the requirements relating to materials and the guidelines in relation thereto prescribed by the Council in terms of section 12(1)(b) in the Home Building Manual, or the requirements specified by the competent person in terms of section 12(2) of the Act, or the relevant requirements set out in the Agrément certificate.
(2) The tests which the Council may apply on materials are the relevant tests applied by the South African Bureau of Standards, as contemplated in the Standards Act, 1993 (Act No. 29 of 1993) or relevant industry based institutions, such as the Cement and Concrete Institute, or the Council for Scientific and Industrial Research, as contemplated in the Scientific Research Council Act, 1988 (Act No. 46 of 1988).
(3) The Council may require a home builder, on demand, to make samples of materials and components available for testing.
(4) If any material or component does not comply with the NHBRC technical requirements, the Council may, without derogating from the generality of the relevant provisions, exercise its powers relating to cancellation or suspension of enrolment under section 14(4) and/or regarding the recovery of costs relating to examination or tests under section 19(4) of the Act.
(5) Any notice relating to the cancellation or suspension of the enrolment of a home as contemplated in section 14(4), or for the recovery of any costs of any examination or test in temms of section 19(4), must -
14. Registration criteria
(1) The criteria that the Council must apply in considering an application for registration are -
(2) The Council must consider an application with particular reference to the number of homes expected to be built by the home builder during the ensuing twelve months.
(3) For purposes of evaluating an application, the Council may have regard to the information set out in the application form prescribed by the Council.
15. Terms and conditions of registration
(1) Where the Council receives an application from a home builder, which in the opinion of the Council:
the Council may require personal suretyships, indemnities and/or guarantees as contemplated in section 10(5) of the Act from the home builder, the partners, directors, members, shareholders or trustees of the home builder or those of its associates.
(2) Without detracting from the provisions of section 10(4) of the Act, the Council may require, as a precondition for registration -
(3) Without detracting from the provisions of section 10(4) of the Act, the Council may, where a home builder has been registered provisionally -
until the home builder is able to demonstrate its capacity to meet the obligations of a registered home builder.
(4) Without detracting from the generality of subrule (1) and section 10(5) of the Act, the Council may require a home builder to provide it with security in -
(5) The Council may, where it receives an application from a home builder in respect of which there exists an associate, without detracting from the generality of rule 15(4), require security from such associate.
(6) The Council may impose further or additional conditions at any time : Provided that the provisions of section 10(8), (9), (10), (11) and (12) of the Act, with the necessary changes required by the context, apply.
(7) A registered home builder, without derogating from the provisions of the Act, must comply with the rules and circulars of the Council.
(8) The registration of the home builder remains effective for one year.
(9) A home builder must annually, prior to the renewal date, apply for the renewal of its registration.
(10) The home builder must immediately notify the Council if the home builder -
(11) A notification in terms of subrule (10) must include the full name, identity number and addresses of any person acquiring a financial interest as well as such other information as the Council may require.
16. Minimum and maximum amounts payable from me Fund
(1) The maximum amount that may be expended by the Council under section 17(1) in respect of any home pursuant to a failure of a home builder to meet its obligations in terms of section 13(2)(b)(i) of the Act, is the selling price of the home as declared by the home builder at the time of the enrolment of the home, up to a maximum amount of R500 000.00.
(2) The maximum amount that may be expended may include -
(3) No amount shall be paid out of the fund in relation to:
(4) The Council may in exceptional circumstances, instead of having a defect rectified, make a payment to the housing consumer in full and final settlement of any claim.
(5) Should the costs of rectification, as estimated by the Council, in any particular case be less than 5% of the selling price of the home or R4000.00 whichever is the lesser, the costs of such repairs is for the account of the housing consumer.
(6) In the case of homes enrolled in terms of section 14(2), the minimum amount that may be expended by the Council is an amount determined by agreement between the Council and the Provincial Housing Development Board in terms of the agreement concluded in terms of section 5(4)(c) of the Act.
17. Limitations, qualifications and exclusions from deemed warranty
Without in any way extending the scope of liability of a home builder to anything beyond liability for major structural defects caused by non-compliance by the home builder with NHBRC technical requirements, the limitations and exclusions contemplated under section 13(2)(b)(i) in respect of which a home builder is not liable for loss, damage, destruction or threat of collapse are -
18. Obligations of conveyancer to ensure payment
For purposes of complying with the provisions of sections 18(1) and (2) of the Act, a conveyancer must accept an enrolment certificate issued in terms of section 14(3) of the Act as proof of payment of the prescribed enrolment fee.
Minister's Fees
DEPARTMENT OF HOUSING
HOUSING CONSUMERS PROTECTION MEASURES ACT, 1998 (ACT NO.95 OF 1998)
Under the powers vested in me by section 7(2) of the Housing Consumer Protection Measures Act, 1998 (Act No. 95 of 1998), I SANKIE DOLLY MTHEMBI-MAHANYELE, Minister of Housing, hereby determine the fees payable by home builders to the Council as follows:
S D Mthembi-Mahanyele
Minister of Housing
Council's Regulations
DEPARTMENT OF HOUSING
HOUSING CONSUMERS PROTECTION MEASURES ACT, 1998 (ACT NO. 9S OF 1998)
The National Home Builders Regishation Council has by virtue of the powers vested in it in terms of section 7(1) of the Housing Consumers Protection Measures Act, 1998 (Act No. 95 of 1998) made the rules set out in the Schedule below.
Mr M M Mohohlo
Chairperson
SCHEDULE
1. Definition
In these rules, unless the context indicates otherwise, any word to which a meaning has been assigned in the Act shall have the meaning so assigned to it, and
"agrément certificate" means a certificate confirming the acceptability of a non standardised design and the conditions pertaining thereto issued by the Board of Agrément South Africa;
"Board of Agrément South Africa" means the body operating under the delegation of authority of the Minister of Public Works;
"conciliation deposit" means the refundable deposit, applicable to requests for conciliations in terms of complaints relating to sections 13(2)(b)(i) and (iii) of the Act and prescribed by the Council under GN.... of .... 1999;
"conciliation fee" means the fee applicable to requests for conciliations in terms of complaints relating to section 13(2)(b)(ii) of the Act and prescribed by the Council under GN.... of .... 1999;
"contractual dispute fee" means the fee applicable to requests for dispute resolution in respect of contractual disputes in terms of section 13(1) and section 13(2)(a)(iii)(bb) of the Act and prescribed by the Council under GN ..... of ..... 1999;
"committee" means the disciplinary committee contemplated in section 5(1)(b) of the Act;
"council's registered address" means Fernridge Office Park, 5 Hunter Street, Ferndale, Randburg;
"day" excludes any day falling within the building industry recess period;
"enrolment fee" means the enrolment fee prescribed by the Council under GN .... of .... 1999;
"fees of the arbitrator" means the fees of the arbitrator in terms of any dispute recommended by the Council for arbitration in terms of section 7(1)(a)(vi) of the Act and prescribed by the Council under GN .... of .... 1999;
"internal complaints deposit" means the deposit prescribed by the Council in relation to receipt of a complaint in terms of section 22(3) of the Act and prescribed by the Council under GN .... of .... 1999;
"inspectorate" means the inspectors appointed or contracted by the Council to assist home builders to comply with the NHBRC technical requirements;
"late enrolment fee" means the late enrolment fee prescribed by the Council under GN ..... of .... 1999;
"Minister's rules" means the rules published by the Minister under GN .... of .... 1999;
"notify" means to notify in accordance with section 24 of the Act;
"registration criteria" mean the registration criteria prescribed by the Minister in the Minister's rules;
"selling price" means, in the case of a deed of sale, the total selling or package price as determined by the deed of sale, including VAT, and in the case of a building contract the contract price, including VAT, as determined in the building contract, together with the price at which the serviced erf has been acquired;
"the Act" means the Housing Consumers Protection Measures Act, 1998 (Act No. 95 of 1998).
2. Registration procedure
(1) A home builder wishing to apply for registration must make application to the Council at the Council's registered address by the completion and submission of "Application for Registration - AR003" in the form of Annexure 1 and payment of the application fee prescribed by the Minister.
(2) The Council may require additional information from the home builder or any other person and may conduct such investigations, as it may consider necessary to assess the application.
(3) The Council must consider an application submitted to it in terms of the registration criteria.
(4) The Council may, in order to assess an application, contract the services of a rating agency, inspection agency or other person to assess applications for registration, and to provide information in respect of credit ratings, court judgements, supplier and other references or to undertake a technical assessment of the home builder.
(5) The Council, or any persons contracted by it, must treat any financial information provided by an applicant as part of his application to the Council with the strictest confidence.
(6) The Council may undertake, within its discretion a technical assessment of the home builder by means of -
(7) The Council, without detracting from the provisions of the Act, may -
(8) If the Council decides -
the Council must notify the home builder accordingly.
(9) A decision notified in terms of subrule (8) takes effect -
(10) A home builder may apply for review of its provisional registration or an increase of the number of homes that it may enroll as determined by the Council.
(11) The Council must treat an application for an increase in enrolments with urgency and must deliver its decision within 14 days of receipt of such application.
(12) The home builder must provide reasonable assistance and access to the Council to facilitate an investigation for purposes of subrule (10).
(13) Where the Council has determined that a home builder meets the registration criteria, the Council must issue a registration certificate in the form of Annexure 2 to a home builder where it has received at its registered address -
3. Renewal of Registration
(1) The Council must notify a home builder of the home builder's obligation to renew the home builder's registration as contemplated in rule 15(9) of the Minister's rules one month prior to its expiration.
(2) The Council must thereafter, if necessary, issue two further notices to serve to remind the home builder of the need to renew and must maintain the registration of the home builder for a period of three months from the date of expiry before recording the home builder's status as 'Dot Renewed".
(3) From the date of expiration of a home builder's annual registration, the Council may suspend enrolments in terms of section 11(3) of the Act until such time as the home builder has renewed its registration.
(4) The notice requiring renewal may request the home builder to confirm the accuracy of the data maintained by the Council on the database referred to in section 9 of the Act and in relation to homes enrolled with the Council in the previous year or other years.
(5)The Council must, subject to the provisions of section 11 of the Act, complete its review within one month of receipt of the annual renewal fee and, where appropriate, issue a new registration certificate to the home builder.
(6) The Council may in respect of the failure of the home builder to renew its registration, withdraw the registration of the home builder after instituting disciplinary proceedings in terms of section 11 of the Act.
(7) The failure to renew registration or the withdrawal of registration pursuant to section 11 of the Act does not affect the obligations of the home builder at the time in respect of housing consumers or in respect of the Council.
4. Review of Registration
(1) The Council may at any time of its own accord, or on information received, or at the request of the home builder, review the home builder's registration having regard to the home builder's performance as a home builder during the period of registration and any charges in the ownership of the home builder.
(2) The Council may, when acting in terms of subrule (1) take account of any complaints received from housing consumers, any notices of non-compliance received by the home builder from the inspectorate, the enrolment history of the home builder and any other relevant matter.
(3) The Council may, pursuant to the re evaluation contemplated in subrule (1), decide to change the registration status of the home builder or the conditions attached to such registration after having notified the home builder of its decision and the reasons for any decision, where such decision may affect the home builder.
(4) The provisions of section 10(8), (9), (10), (11) and (12) of the Act apply, with the necessary changes required by the context, to any decision in terms of subrule (3).
5. Cancellation of registration
(1) The Council must cancel the registration of a home builder on written request from the home builder.
(2) If a home builder's registration is withdrawn, cancelled or not renewed, such home builder must -
(3) Notwithstanding withdrawal of registration or failure to renew registration, a home builder must -
(4) Where a home builder wishes to cease conducting the business of a home builder, for whatever reason, the home builder may request the Council to assume the home builder's responsibilities in terms of section 1 3(2)(b)(i) on homes enrolled with the Council.
(5) The home builder must inform the Council under the circumstances contemplated in subrule (4) of any complaints received by the home builder on homes constructed by it.
(6) If the Council is prepared to assume the obligations contemplated in subrule (4), it will notify the home builder of the amount of any prescribed payment it requires to meet any potential claims for rectification.
(7) Without derogating from the provisions of section 11 of the Act, the Council must withdraw the registration of a home builder once an application has been made to a competent Court for the provisional liquidation or sequestration of a home builder.
(8) The granting of an order by any competent court for the provisional liquidation or sequestration of a home builder has the effect of an automatic withdrawal of the home builder's registration.
6. Re-registration
(1) If a home builder has previously been registered with the Council and wishes to re-register, the home builder may make application to the Council for registration and the provisions of section 10 of the Act and rule 2 apply with the necessary changes required by the context.
(2) The Council must, in the circus contemplated in subrule (1), consider the home builder's registration against the registration criteria having regard to the previous registration history of the home builder.
7. Objectives of the Enrolment Process in terms of Section 14(1) of the Act
(1) The objective of the enrolment procedures contemplated in section 14(1) of the Act are to -
(2) In order to reduce the risk of structural failure in a home, the home builder must -
8. Competent persons
(1) To keep a record of competent persons in terms of section 5(5)(d) of the Act, the Council may require competent persons to complete "Competent Person Questionnaire - CP001" in the form of Annexure 3 and to provide proof of their registration in terms of the Engineering Professions of South Africa Act, 1990 (Act No. 114 of 1990) or a person registered in terms of section 11 of the Natural Scientific Professions Act, 1993 (act Not 106 of 1993).
(2) The amount required to be held by way of professional indemnity insurance by a competent person is an amount not less than R500 000.00.
(3) The Council may require a competent person annually to provide it with details and proof of its indemnity insurance.
9. Methods of Payment of Enrolment Fees
(1) Depending on the circumstances, payment of enrolment fees may be effected in one of three methods, namely -
(2) All payments in respect of enrolment fees must be made to:
The National Home Builders Registration Council
Account No. 4045581790
Absa Bank,
Braamfontein Branch,
Branch Code: 630605.
10. Direct and full payment by Bank guaranteed cheque or cash bank transfer.
(1) The home builder must pay the enrolment fee in the full amount payable directly to the Council by way of bank guaranteed cheque or cash bank transfer where:
(2) Payment may also be made in the manner contemplated in subrule (1) in the case of sectional title homes, homes constructed in terms of a building contract, or by any other form of agreement.
11. Payment by mortgage lender as a first progress payment
(1) The home builder may make payment of the enrolment fee where the housing consumer authorises the mortgage lender to make payment to the Council from the proceeds of money owing to the home builder by the housing consumer in respect of the construction of the home.
(2) Where the housing consumer has consented to a financial institution which has an agreement with the Council to effect such payment, the home builder must submit to the Council the documents contemplated in rule 16(1), together with the "Authorisation for Contractor's Payment - PA003" in the form of Annexure 4.
(3) Payment in accordance with subrule (1) may only be used where a building contract has been concluded between the housing consumer and the home builder in respect of the construction of a home.
(4) Payment in accordance with subrule (1) may not be made where the home is a sectional title unit or is constructed in speculation of sale or in the case of the late enrolment of a home.
(5) The enrolment fee must be paid directly to the Council by the financial institution at the time of the financial institution advancing the first progress payment in respect of the mortgage loan or in a manner agreed between NHBRC and the financial institution.
(6) The Council must, from time to time, publish the names of the financial institutions with agreements with the Council to facilitate payment as contemplated in this rule.
12. Sectional title phased payment
In the case of a sectional title development, a home builder may make a direct and full payment in terms of rule 10 of these rules or make a phased payment of the enrolment fee, as follows -
13. Competent person certification of soil classification
(1) With every enrolment, the home builder must submit a soil classification for the plot duly certified and signed by a competent person in the form of Section C Appendix B and Section D of either:
as the case may be.
(2) The soil classification must be in the categories published by the Council in the Home Building Manual as applicable at the time of enrolment.
(3) Where the home is other than a single storey masonry home constructed on soil classification C, H. R or S. as prescribed by the Council in the Home Building Manual, the home builder must ensure a competent person also certifies and signs Section C Appendix B2 of the form referred to in subrule (1)(a) or (b) as the case may be.
(4) Where the soil type is of a dolomitic or limestone nature (i.e. D1, D2, D3 or D4), or site falls within a geographical area of known dolomitic, limestone or other conditions as identified in the Home Building Manual, the home builder must comply with the Council's procedures for the technical investigation of such sites and their enrolment prescribed in the Home Building Manual.
(5) If, during the course of a development, it emerges that the original classification of the subsoil conditions of the site by the original soil tests or as originally assessed by the competent person requires revision, the home builder is required, as a condition of enrolment, to notify the Council immediately using a form "Notification of Change Site Class: Design of Foundations and Associated Structures on Problem Soils -Appendix A1" in the form of Annexure 7.
(6) The home builder must, under the circumstances contemplated in subrule (5), ensure that the design of foundations for a home constructed on such a site is amended to conform to the revised soil classification.
14. Rational Design and Agrèment certified systems
(1) For enrolment of a home, additional information is required where a home -
(2) In these instances, the home builder must submit to the Council the respective forms -
(3) Where the Council appoints an engineer registered in terms of the Engineering Profession of South Africa Act, 1990 (No 114 of 1990) to carry out further investigations that engineer shall be deemed to have been appointed for the purposes of legal proceedings.
15. Non- Agrèment certified building systems
(1) Home builders using non-standardised components, elements or systems that do not have an Agrèment certificate must approach the Council for technical assessment of their system as an interim measure by completion of "Building System Registration Form - BS001" in the form of Annexure 10 and submission of the relevant documentation.
(2) The Council must consider such application and may -
(3) The Council may, in the circumstances set out in subrule (1) and subrule (2), require Agrèment certification within a specified period.
(4) Council may request any surety, guarantee, indemnity or other security considered reasonable by the Council to satisfy its obligations under section 16 (1) of the Act.
(5) Where the Council appoints an engineer registered in terms of the Engineering Profession of South Afiica Act, 1990 (No 114 of 1990) to carry out further investigation that engineer shall be deemed to have been appointed for the purposes of legal proceedings.
(6) Once a system is approved by the Council the home builder may submit an application for enrolment for homes to be constructed using the approved system.
(7) An application for enrolment in terms of subrule (6) must include a form "Certification by Competent Person in respect of Non-Agrèment Approved Non-Standardised Construction - Appendix D2" in the form of Annexure 11.
16. Submission of enrolment documentation and payment to NHBRC
(1) In the case of a home built with the registration of a mortgage bond, built for cash or built in speculation of sale, the home builder must submit:
(2) In the case of a sectional title development, the home builder must submit to the Council:
(3) The Council must, upon receipt of the documents specified in subrule (2) and if they are found to be in order, issue a "Sectional Title Phased Payment Form - ST001" in the form of Annexure 12 to the home builder as proof of having accepted the home in the records of the Council.
(4) Prior to the opening of the sectional title register, the home builder must return the "Sectional Title Phased Payment Form - ST001", with payment of the outstanding amount by bank guaranteed cheque, cash, or evidence of cash or bank guaranteed cheque bank transfer declaring the difference between actual selling prices compared with expected selling prices and males payment of the difference.
Issuing of enrolment certificates
(1) Where the home builder submits the prescribed documents, information and fees to the Council in terms of rule 16 above, the Council must enter the home into the records of the Council.
(2) The Council must review such documents, information and fees.
(3) Where the Council believes the home builder has complied with section 14(1) of the Act and rule 16(1) of these rules, the Council must accept the submission and issue an enrolment certificate in the form of Annexure 13 in terms of section 14(1)(c) of the Act.
(4) Where the Council believes the home builder has complied with section 14(1) of the Act and rules 16(2), (3) and (4) of these rules, the Council must issue enrolment certificates for such sectional title units in terms of section 14(1)(c) of the Act.
(5) Where the Council has received enrolment documentation and where the application for enrolment is not complete, the Council may enter the application into the records of the Council but must record such an application as "pending".
(6) The Council must notify the home builder in writing as soon as practically possible of the information required or the reasons for the application not being accepted.
(7) If the relevant information is not received, the Council must maintain the application as "pending" on its records for a period of not less than three months.
(8) If the home builder has failed to provide the information or failed to comply with enrolment procedures within the period contemplated in subrule (7), the Council may reject the application, and notify the home builder of the reasons for such rejection.
18. Late enrolments
(1) Where a home builder in contravention of section 14 of the Act submits an application for the enrolment of a home to the Council after construction has started, the Council must require the home builder to satisfy the Council that the construction undertaken at the time is in accordance with the NHBRC technical requirements so as to take prudent measures, contemplated in section 16(1) of the Act, to manage the risks pertaining to the fund.
(2) In the case of late enrolment, the home builder must supply the Council with the following duly completed documents:
- the soil classification in terms of rule 13;
- the design of foundations in terms of rule 13(3) and, where applicable, rule 13(4);
- rational design in terms of rule 14(1)(a); and
- satisfactory completion of structural work by submitting a duly completed and signed "Completion Certificate by Competent Persons: Satisfactory Completion of Structural Work -Appendix D1" in the form of Annexure 14 from a competent person.
(3) The home builder must, at the request of the Council, pay an additional prescribed late enrolment fee in an amount determined by the Council for a special inspection to be undertaken by the Council to enable the inspectorate to determine compliance with the NHBRC technical requirements, prior to the acceptance of enrolment.
(4) Should any defects be detected during the course of inspection that may influence the structural integrity of the home or if it is established that there is substantial non compliance with the NHBRC technical requirements, the Council must, prior to the acceptance of the enrolment, request rectification of such defects or such non-compliance to be undertaken as may be necessary at the home builder's cost and under the supervision of the competent person appointed by the home builder.
(5) Where an inspector is unable to determine compliance with the NHBRC technical requirements, for whatever reason, the Council may require the home builder to appoint a competent person -
(6) Any work that needs to be exposed to enable the competent person to respond to the questions raised in terms of subrule 5(b), must be undertaken by and at the cost of the home builder.
(7) The Council may request any surety, guarantee, indemnity or other security considered reasonable by the Council to satisfy its obligations under section 16 (1) of the Act.
(8) Where a home has been constructed with a building system classified as non-standard in terms of section 12(2) of the Act, rule 14(1)(b) and rule 15 of these rules and the Home Building Manual, the late enrolment of such home must not be accepted by the Council.
19. Non-declared Late Enrolments
(1) Where a home builder does not declare the fact that construction has commenced at the time of enrolment and late enrolment is detected by the Council, the Council, if it has reason to believe that such non-declaration was a deliberate attempt to avoid enrolment, or the inspection process, must require the home builder to appoint a competent person
(2) Any work that needs to be exposed to enable the competent person to respond to questions raised in terms of rule 18(2)(d) must be undertaken by and at the cost of the home builder.
(3) Rules 18(2) to (8) inclusive of these rules apply with the necessary changes to homes enrolled in terms of rule 19(1) and specifically the Council must charge the late enrolment fee contemplated in rule 18(3).
20. Disciplinary measures for late enrolment
(1) The Council may, without derogating from the generality of and subject to the provisions of section 11(1)(b) and section 11(3) of the Act, where a home builder makes itself guilty of consistent late enrolment, withdraw the registration or suspend the enrollments of the home builder.
(2) If the Council determines that a late enrolment was an attempt to avoid enrolment or the inspection process, the Council may, after notice to the home builder, suspend further enrolments in terms of section 11(3) of the Act until any corrective work has been completed on late enrolment of homes not declared to the Council.
(3) If the Council needs, in terms of section 14(4)(a) of the Act, to cancel a late enrolment not declared to the Council or reject a late enrolment declared to the Council due to non-compliance with the NHBRC technical requirements, the Council must -
21. Notice of Non-Compliance
(1) The Council may give a home builder a "Notice of Non-Compliance" in the form of Annexure 16 instructing the home builder to comply with the NHBRC technical requirements or any other requirement of the Act.
(2) A notice contemplated in subrule (1) must specify the nature of the non-compliance and the time within which the specified work must be completed or a particular action need to be taken by the home builder.
(3) Within seven days of receiving a notice contemplated in subrule (1), the home builder must -
(4) Where the Council appoints an engineer registered in terms of the Engineering Profession of South Africa Act, 1990 (No 114 of 1990) to carry out further investigations in terms of section 19(3) that engineer shall be deemed to have been appointed for the purposes of legal proceedings.
22. Aim of NHBRC complaints procedures
The NHBRC complaints procedures serves -
23. Responsibilities of the housing consumer and the home builder regarding complaints
(1) The housing consumer and the home builder must seek to resolve their differences in a reasonable manner prior to referring a complaint to the Council.
(2) The housing consumer must, prior to submitting a complaint to the Council, notify the home builder in writing of his or her complaint, listing all the items requiring attention.
(3) The housing consumer must keep a copy of the letter of complaint and proof of the date it was sent to the home builder.
(4) The housing consumer must allow the home builder reasonable access to effect rectification.
(5) The housing consumer must ensure that he or she has met his or her financial obligations to the home builder prior to reporting a complaint to the Council.
(6) Within 21 days of receiving a complaint from the housing consumer relating to the three month non-compliance period or the five year structural defects period, the home builder must in writing -
(7) Within seven days of receiving a complaint from a housing consumer relating to a roof leak within the one year roof leak period, the home builder must in writing -
(8) The home builder or the housing consumer, as the case may be, may refer a complaint to the Council -
24. Acceptance of a complaint
(1) The Council must accept a complaint from a housing consumer where the complaint falls within the ambit of sections 13, 17, or 21 of the Act or the Code of Conduct contemplated in section 7(1)(a)(ix) of the Act.
(2) It is not necessary for a housing consumer to employ the services of an attorney or other professionals, including engineers, to lodge a complaint with the Council and costs incurred by the housing consumer for such services are not recoverable from the Council.
(3) On receipt of the complaint the Council must carry out a preliminary assessment of the complaint based on the information provided by the housing consumer and may request further information from the housing consumer to assist it in considering the complaint.
(4) A complaint must be lodged in the form of a "Complaint Form" in the form of Annexure 17.
(5) Where the housing consumer holds retention monies, the Council may request that such monies be deposited with NHBRC until such time as the recommendation of the Council is issued.
(6) The Council may make it a condition of accepting a complaint that the housing consumer must honour any finding of the Council regarding retention monies.
25. Processing complaints relating to section 13(2)(b)
(1) For purposes of considering a complaint relating to the deemed warranty obligations in terms of section 13(2)(b) of the Act, the housing consumer must submit to the Council -
(2) Where the Council is of the view that the complaint falls within the ambit of section 13(2)(b) of the Act, or where the Council is satisfied that the housing consumer has informed the home builder of his or her complaint, and the home builder has not respond as required in terms of rule 23, the Council must notify the home builder of -
and request the home builder's assistance in resolving the matter.
(3) Should the Council determine that the complaint does not fall within the ambit of section 13(2)(b) of the Act, it must notify the housing consumer of its decision and its reasons in respect thereof in writing.
26. Complaints relating to the three month non-compliance period
(1) If the nature of the complaint relates to matters contemplated in section 13(2)(b)(ii) of the Act which have been notified within three months of occupation, the Council will seek to resolve the complaint telephonically and through correspondence with the home builder.
(2) Should the home builder fail to respond within one month of notification from the Council, the Council may issue a "Request for Conciliation" in the form of Annexure 18 to the housing consumer requesting confirmation of the details of the complaint and payment of the prescribed conciliation fee.
27. Complaints relating to the one year roof leak period
(1) If the housing consumer experiences a roof leak in the home within one year of occupation and the home builder teas failed to respond to the complaint notified to it by the housing consumer, the Council must notify the home builder and seek an immediate response from the home builder.
(2) Should the home builder fail to respond within seven days of notification in terms of subrule (1), the Council may issue a "Request for Conciliation" in the form of Annexure 18 requesting confirmation of the details of the complaint and may request payment of a prescribed refundable conciliation deposit by the housing consumer.
(3) The conciliation deposit must be refunded once the complaint teas been dealt with in terms of rules 30 to 36, unless the complaint is found by the Council to be frivolous.
28. Complaints relating to the five year major structural defects period
(1) Where a complaint from a housing consumer relates, in the opinion of the Council, to a possible major structural defect, the Council may seek the home builder's response but the Council may issue the housing consumer immediately with a "Request for Conciliation" in the form of Annexure 18 and may request a prescribed refundable conciliation deposit from the housing consumer.
(2) The conciliation deposit must be refunded once the complaint has been dealt with in terms of Rules 30 to 36, unless the complaint is found by the Council to be frivolous.
29. Contractual Disputes
If a housing consumer or a home builder refers a dispute to the Council relating to a matter contemplated in section 13(1) or section 13(2)(a)(iii)(bb) of the Act, including any dispute in respect of financial obligations, the Council may -
30. Request for Conciliation
(1) Where the Council, after having received a signed copy of the Request for Conciliation form the housing consumer or the home builder in the form of Annexure 15 under the circumstances set out in rules 26, 27, 28 and 29 and the Council is of the view that it is necessary or desirable to carry out an on-site conciliation. the Council must propose three alternative dates and times for an on-site conciliation.
(2) Should none of the dates suit the home builder, the conciliation inspection must proceed on a date convenient to the housing consumer.
(3) The date and time must be notified by the Council to both parties.
(4) Where the home builder is unable to attend, the home builder must be notified -
31. The Investigation
(1) The Council must on the date contemplated in rule 30(3), inspect the home and assess the complaint in terms of the Act.
(2) Where further investigation is required to complete the report the Council may request the home builder to do so within a specified period or the Council may carry out such investigations as may be necessary.
(3) Where the Council appoints an engineer registered in terms of the Engineering Profession of South Africa Act, 1990 (No 114 of 1990) to carry out such further investigations that engineer shall be deemed to have been appointed for the purposes of legal proceedings.
32. The Report
(1) Following the on-site conciliation and any further investigation undertaken, the Council must draw up a report -
(2) The contents of the report must be notified to both the housing consumer and the home builder, and the home builder musts subject to the provisions of section 22 of the Acts effect the rectification specified in the report.
33. Requests for assistance from the Fund
(1) Subject to the provisions of section 17 of the Acts the Council may pay for rectification only when -
(2) If the home builder disputes the findings and recommendations of the report referred to in rule 32 and refers a dispute in terms of section 22(1) or (3) of the Act, the Council must proceed with the rectification of any major structural defect recommended in the said report subject to final determination of liability for the costs of rectification which shall be part of the dispute referred to in terms of section 22(1) or (3) of the Act.
34. Referral of a complaint to arbitration
(1) The Council may, subject to subrule (2) to (5), submit any complaint in terms of section 13 of the Act received by it to arbitration.
(2) The housing consumer and the home builder may, for purposes of resolving any dispute in terms of section 13 of the Act by written agreement between the parties refer the dispute to arbitration.
(3) The nature of the dispute to be resolved must be specified in an agreement between the parties that shall constitute a submission to arbitration by a single arbitrator in terms of and subject to the Arbitration Act, 1965 (Act No. 42 of 1965).
(4) The parties may agree on an arbitrator or may request the Council to appoint an arbitrator.
(5) Should the parties fail to agree on an arbitrator, the Council must appoint the arbitrator.
(6) The fees of an arbitrator appointed by the Council must be in accordance with the tariffs determined by the Council from time to time.
(7) The arbitrator, in conducting the proceedings, must be guided by the intention to provide an effective, speedy and affordable mechanism to resolve disputes between home builders and housing consumers.
(8) The arbitrator may require such security as he or she may consider appropriate regarding the payment of costs, and may make such an order as to the payment of costs as he or she may deem fit.
(9) The parties may, by agreement in writing, instruct the arbitrator to limit the proceedings to an investigation and an expert opinion by the arbitrator in respect of the item complained of which opinion shall be binding on the parties: Provided that -
35. Referred to the Internal Complaints Procedure, Arbitration and the Public Protector
(1) A housing consumer or a home builder wishing to have a decision or action of the staff of the Council or its agents reviewed in terms of the Council's internal complaint procedure must notify the Council in this regard within 30 days of receiving notice of the relevant decision or action.
(2) The notice referred to in subrule (1), must -
(3) When notifying the Council, the housing consumer or the home builder must pay a prescribed internal complaints deposit with the Council.
(4) The housing consumer or the home builder may request that the decision or the action be reviewed by either -
depending on the nature of the matter.
(5) Where a complaint is referred to the committee, the committee may request security for the cost of any such review.
(6) Where the matter is reviewed by the chief executive officer, he or she must review the decision or action within 30 days of receipt of the request for a review.
(7) Following such review, the chief executive officer must confirm, vary or reverse the decision or action, or where the matter falls within the scope of the activities of the committee, refer the matter to the committee.
(8) Where the complaint is valid, the internal complaints deposit shall be repaid to the housing consumer or the home builder, as the case may be.
(9) The housing consumer and the home builder, or both, as the case may be, must be notified of the chief executive officer's decision.
(10) The committee must consider any complaint as soon as practically possible and no later than three months from receipt thereof by the Council.
(11) The committee may determine its own procedures for purposes of considering a complaint.
(12) The committee may confirm, vary or reverse the decision or action of the Council's staff or its agents.
(13) The committee may condone a failure to comply with the period of 30 days referred to in subrule (1) where it is satisfied that there are sound and substantial reasons for the failure.
(14) The committee may make any order concerning the deposit and any other direct costs relating to the investigation, including those of the Council, in considering the matter.
(15) Should a housing consumer or home builder be dissatisfied with the decision of the committee, the complainant may pursue his or her rights in terms of section 22(4) of the Act, within thirty 30 days of receipt of the committee's decision.
(16) If the aggrieved person fails to exercise its rights in terms of section 22(4), within 30 days, the decision of the committee, subject to section 22(1) of the Act, is final.
36. Arbitration in terms of section 22(4)(ii) of the Act
(1) Any dispute regarding a discretion exercised by the Council must be determined with reference to the rules of administrative justice.
(2) The Council and a housing consumer or home builder may for purposes of resolving a dispute in terms of section 22(4)(ii) refer the dispute to arbitration.
(3) The nature of the dispute to be resolved must be specified in an agreement between that parties that shall constitute a submission to arbitration by a single arbitrator in terms of and subject to the Arbitration Act, 1965 (Act No. 42 of 1965).
(4) Should the parties fail to agree on an arbitrator, the Director General: Department of Housing must appoint the arbitrator.
(5) The arbitrator may require such security from the home builder or housing consumer as he or she may consider appropriate regarding the payment of costs and may make such as order as to the payment of costs as he or she may deem fit.
(6) An arbitration in terms of this rule shall be held in Randburg or such other place as may be agreed to between the parties.
37. Availability of chief executive officer
Arming required to be done by the chief executive officer may in his or her absence be done by person nominated by the chief executive officer for that purpose: Provided that where for any reason this was not possible such functions may be exercised by the chairperson of the Council.
38. Access to documentation
Any person may have access to rules pertaining to the Council, the Home Building Manual or am circular issued by the Council at the offices of the Council between 8h00 and 16h30, at the following offices of the Council:
| RANDBURG Fernridge
Office Park |
DURBAN 98
Davenport Road |
CAPE TOWN Unit
No. 7 |
| PORT ELIZABETH 40 Pickering Street |
BLOEMFONTEIN Unit 12 Brandwag Park |
|
| NELSPRUIT 4
Jones Street |
RUSTENBURG 104
Leyd Street |
Council's fees
DEPARTMENT OF HOUSING
HOUSING CONSUMERS PROTECTION MEASURES ACT, 1998 (ACT NO. 95 OF 1998)
Under the powers vested in the Council in terms of section 7(1)(a)(iii) of the Housing Consumers Protection Measures Act, 1998 (Act No. 95 of 1998), the Council hereby determines the fees and deposits payable to the Council as set out in the schedule:
Mr M M Mohohlo
Chairperson
SCHEDULE
1. Definitions
(1) In these rules, unless the context indicates otherwise, any word to which a meaning has been assigned in the Act shall have the meaning so assigned to it, and
(2) Any fee specified in terms of these rules includes Value Added Tax.
2. Calculation of the Enrolment Fee in terms of section 14(1) of the Act
(1) The enrolment fee is a fee payable by the home builder in respect of a home to be recorded against the registration number of the home builder.
(2) Enrolment fees paid by home builders shall be taken into account in the development of differentiated enrolment fees as required under section 5(4)(i) of the Act.
(3) The enrolment fee for homes to be enrolled under section 14(1) of the Act is one point three per cent of the selling price of the home up to a maximum selling price of R500 000.00.
(4) The fee payable in respect of a home exceeding the selling price set out in subrule (3) is one point three per cent of R500 000.00 plus one percent of that portion of the selling price exceeding R500 000.00 but not exceeding R1 000 000.00.
(5) The fee for homes with a selling price exceeding R1 000 000.00 but not exceeding R2 000 000.00 is the fee calculated in subrule (4) plus point seven five per cent of that portion of the selling price exceeding R1 000 000.00.
(6) The fee for homes with a selling price exceeding R2 000 000.00 is the fee calculated in subrule (5) plus point five per cent of that portion of the selling price exceeding R2 000 000.00 up to R5 000 000.00, Whereafter no additional amount is payable.
(7) In view of the fact that a deed of sale is unlikely to exist at the time of enrolment for sectional title homes or homes built in speculation of sale, the selling price must be determined with reference to the expected selling price.
(8) In order to prevent the under declaration of selling prices of homes by home builders, the Council requires submission of marketing brochures reflecting selling prices or extracts from the feasibility studies reflecting details relating to selling prices, which the Council may from time to time compare with actual selling prices.
(9) Where under-declaration of the selling prices in respect of homes has occurred, the home builder must, on demand therefor by the Council, pay the outstanding difference in enrolment fees.
3. Calculation of tine i ate Enrolment Fee
The Council must calculate the late enrolment fee payable on the basis of -
4. Fees for copies of Council documentation
The fees for obtaining copies of any document in terms of section 9(4) of the Act are:
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R5.00 |
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R100.00 |
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R2.50 |
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R25.00 |
5. Fees and deposits relating to complaints, conciliation and arbitration services
(1) The conciliation deposit shall be:
(2) The conciliation fee shall be:
(3) The contractual dispute fee shall be:
(4) The fee of the arbitrator shall be R450 per hour.
(5) The internal complaints deposit shall be R500.00.
Disciplinary Rules
DEPARTMENT OF HOUSING
HOUSING CONSUMERS PROTECTION MEASURES ACT, 1998 (ACT NO. 95 OF 1998)
Under the powers vested in me by sections 1 and 7(2) of the Housing Consumers Protection Measures Act, 1998 (Act No. 95 of 1998), I, SANKIE DOLLY MTHEMBI-MAHANYELE, Minister of Housing, hereby make the disciplinary rules set out in the Schedule below.
S D Mthembi-Mahanyele
Minister of Housing
SCHEDULE
DISCIPLINARY RULES
1. Definitions
In these Regulations, unless the context indicates otherwise, any word to which a meaning has been assigned in the Act shall have the meaning so assigned to it, and
2. Disciplinary committee
(1) The Council must appoint a disciplinary committee as contemplated in section 5(1)(b) of the Act, consisting of at least three persons.
(2) The Council may from time to time remove or substitute members of the committee.
(3) Subject to subrule (4), the constitution of the committee must remain unaltered for purposes of any proceedings in respect of any particular home builder in terms of section 11(1) of the Act.
(4) Should a vacancy occur on the committee, after the committee has commenced with proceedings, the proceedings may continue before the remaining members of the committee: Provided that it shall not be less than two members.
(5) If only two members are present at a meeting, the decision must be unanimous in order to bring out a decision adversely affecting the home builder.
(6) No decision taken by the committee or act performed by it hereunder is invalid merely by reason of a vacancy on the committee.
(7) The committee must meet from time to time and at such places as it may be necessary for it to fulfil its duties.
(8) The quorum of the committee is two members, which must include the chairperson contemplated in section 5(2)(a) of the Act.
(9) The proceedings before the committee must be recorded
(10) Any decision of the committee is a decision of the Council and is, subject to section 22(2) of the Act, final.
(11) The decision of the majority of the members of the committee, subject to subrule (5), constitutes the decision of the committee.
(12) Subject to subrule (5), in the event of an equality of votes, the chairperson has a casting vote in addition to his or her deliberative vote.
3. Preliminary proceedings
(1) In the event that the Council has received information that a home builder may be guilty of anything contemplated in paragraphs (a) to (e) of section 11(1) of the Act, the Council must investigate the matter.
(2) The Council must investigate such charges in terms of its complaints procedures prescribed in terms of section 7(1)(vi) and (vii) of the Act.
(3) Following such investigations, should the Council be of the view that there has been a contravention contemplated in section 11(1) of the Act that requires disciplinary action, the Council must notify the home builder in terms of section 24 of the Act -
and must provide the home builder with a copy of these rules and any affidavits contemplated in subrule (4).
(4) The Council must have affidavits prepared setting out the facts pertaining to the charge and details of the nature and results of any investigation undertaken by the Council and forward a copy of the notice in terms of subrule (3) and such affidavits to the committee, who, subject to any comments contemplated in the affidavit submitted in terms of subrule (3)(d) may determine that -
(5) The Council may at any time before a decision in subrule (4) has been taken withdraw a charge and notify the home builder and the affected housing consumer accordingly, and may re-open the matter thereafter should new evidence become available which may justify such an action.
(a) In the event of the committee concluding as contemplated in subrule (4)(a), (b) or (c), the committee must acquit the home builder and the Council must notify the home builder and any affected consumer accordingly.
(7) Should the home builder in its comments, referred to in subrule (3)(d), admit that the home builder performed or failed to perform any act as charged and the committee is satisfied that such act or omission constitutes a contravention contemplated in section 11(1) of the Act, the committee must after considering the contents of the affidavits contemplated in subrules (3) and (4), determine the penalty to be imposed and must notify the home builder and any affected housing consumer -
(8) In the event of a home builder pleading not guilty and the charge not being disposed of in terms of subrule (4), the Council must summon the home builder to appear before the committee at a time and place specified in the summons for the purpose of an inquiry.
4. Summons
(1) A summons referred to in rule 3(8), must be -
(2) If the home builder, after the summons referred to in rule 3(8) has been served on it but before the commencement of the inquiry, notifies the committee in writing that the home builder wishes to plead guilty to the charge as set out in such summons and the committee is satisfied against the home builder should be disposed of without the holding of an inquiry, the committee must, time permitting, notify the home builder, and the affected housing consumer and any person on whom a summons has been served in terms of rule 7, that the inquiry will no longer be held, and thereupon rule 3(7) applies with the necessary changes required by the context in respect of such charge.
5. The Hearing
(1) At the commencement of an inquiry the prosecutor must read the charge to the home builder and must ask the home builder to plead guilty or not guilty thereto.
(2) If the home builder refuses or fails to plead to the charge at the inquiry, it must be recorded that the home builder pleaded not guilty, and thereupon the inquiry must be proceeded with as if the home builder had in fact pleaded not guilty to the charge.
(3) A home builder may be assisted by an adviser, including a legal adviser, at an inquiry at the home builder's cost.
(4) Subject to the provisions of these rules, evidence at an inquiry must be given orally or be tendered by way of sworn affidavits: Provided that no affidavit must be admitted in evidence if the committee is satisfied that there are sufficient grounds why it should not be admitted.
(5) Unless an affidavit has been made available to a party before the hearing to consider such affidavit, the affected party may object to the acceptance thereof without having an opportunity to consider the affidavit..
(6) The chairperson of the committee must administer an oath to or accept an affirmation from any person giving evidence.
(7) Whenever the home builder has pleaded guilty to a charge -
(8) If the home builder has pleaded not guilty to the charge or the committee has decided to hear or accept further evidence in connection with the charge in terms of subrule (7), the committee must give the prosecutor the opportunity of adducing evidence in support of the charge.
(9) After the prosecutor has adduced evidence in support of the charge in terms of subrule (7), the committee must give the home builder the opportunity to adduce evidence in its defence against the charge.
(10) Witnesses may be cross-examined by the parties and may also be examined by the committee.
(11) After all the evidence in connection with a charge has been adduced or if the committee has decided in terms of subrule (7), not to hear any further evidence in connection with the charge, the prosecutor and the home builder may address the committee and the committee may allow the parties to reply to issues raised.
(12) The committee must thereafter consider the evidence submitted at the inquiry, in order to come to a decision whether the home builder should be convicted on the charge.
(13) The committee must inform the home builder and the affected housing consumer of its decision.
(14) A committee may at any time, for sufficient cause, adjourn the inquiry to a date determined by it.
6. The penalty
(1) If the committee has in terms of rule 5(12) convicted the home builder of the charge, it must give -
(2) A certificate signed by the chief executive officer purporting to be an extract from the minutes of the proceedings of the committee stating the particulars of the charge brought against the home builder, the conviction of the home builder, and the penalty imposed upon the home builder by the committee is, upon its mere production by the prosecutor to the committee, sufficient proof that the home builder had previously been convicted until the home builder proves that it had not been so convicted.
(3) After the provisions of subrule (2) have been complied with, the committee must, subject to rule 5 (14), impose a penalty and inform the home builder and an affected housing consumer accordingly.
(4) The penalties that may be imposed are -
(5) If the home builder has taken the decision of the committee under review in terms of section 22(1) of the Act, or noted an appeal in terms of section 22(2) of the Act where the penalty imposed is the withdrawal of registration, the Council must, upon the matter being resolved finally, publish a notice in the Gazette stating the conviction of the home builder and the charge convicted of, as well as the specific section of the Act or the relevant provision in pursuance of which the home builder was convicted as well as the penalty imposed upon the home builder.
(6) Where a fine has been imposed, the committee may order that a portion of the fine, but not exceeding 80 percent of such fine, be applied, subject to finalisation as contemplated in subrule (5) towards payment of compensation to any affected housing consumer who suffered pecuniary loss as a result of the home builder, s contravention of the Act.
(7) Any fine imposed by the committee must be paid within 30 days of notification to the home builder failing which the registration of the home builder is automatically suspended.
(8) Should the fine not be paid within sixty days, the Council may act in terms of section 11(1)(c) of the Act.
(9) Any person directly affected by the decision committee may within 30 days of notification of the decision request the committee in writing to furnish him or her with written reasons for a decision of the committee.
(10) A request in terms of subrule (9) must be accompanied by a fee of R50.00 including V.A.T.
(11) Any person affected by the decision of the committee may request a copy of the record of proceedings of the committee.
(12) A person requesting a copy of the proceedings must contribute to the cost of production of the record in an amount reasonably determined by the Council.
7. Witnesses and attendances
(1) A committee may of its own accord or at the instance of the home builder or the prosecutor summon any person to be present at an inquiry in order to give evidence and to produce at such inquiry any book or other document which such person has in his or her possession or custody or under his or her control or which is suspected or believed to be in his or her possession or custody or under his or her control and which has a bearing on the charge which is a subject matter of such inquiry: Provided that the committee may require security for the cost of attendance of any particular witness.
(2) Subject to a decision of the committee, the Council may pay a witness summoned and present at an inquiry, such fees as the Council may from time to time determine generally, or in any particular case.
(3) The committee may disallow such payment contemplated in subrule (2) or any portion thereof, if in the opinion of the committee, such witness' s evidence or presence at the inquiry was unsatisfactory.
(4) No person -
(5) Where a person fails to comply with subrule (4), he or she is guilty of an offence in terms of section 27(1) of the Act and liable on conviction to a fine not exceeding R25,000.00 or to imprisonment for a period not exceeding one year.
8. Representation
A home builder must be represented in disciplinary by the chairperson, managing director, chief executive officer, managing member of the home builder or such other person as may be specified by the Council in any particular case in the notice contemplated in rule 3(3) or the summons in rule 3(8).
Annexure 1
Housing Consumer Protection Measures Act, 1998 (Act 95 of 1998)
Form of summons referred to in regulations 3(8) and 4(1) and prescribed in terms of Section 27(1) of the Act.
| To ....................................................................................................... You are hereby summoned to appear on .......................................19 ..............at .........h ........ at .............. ....................................................................... before a disciplinary committee of the National Home Builders Registration Council for the purposes of an inquiry into improper conduct by you and to produce the following books and documents at the said time and place ...................................................................................................... The charge against you which will be inquired into at the said time and place and of which you have already been notified in writing by the board on ...................................... is the following ............................................................. If you fail, without lawful excuse, to be present at the time and place stated above, you will be guilty of an offence in terms of regulation 7(5) of Regulation No of 1999 and liable on conviction to a fine not exceeding R25,000 or up to one year's imprisonment. Signed at ............................................ on ........................................ 19 ................... ..................................................................
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