Badly conceived legislation doesn’t protect everyone

Every now and then a legal absurdity occurs because some well-intentioned politician has curried favour with voters by putting forward badly-written legislation that is supposed to protect us.

It happens when, although the motive for the new law may be fine, its wording is anything but, probably because some civil service lawyer, egged on by his or her political boss, has drafted it in a hurry.

Put such flawed legislation before a tame Parliament, it sails through. Everyone congratulates everyone else. It is only when the new law is applied that the trouble starts.

A recent example of this caused understandable anxiety among members of the South African Institute of Architects and something akin to panic among some construction companies, especially those operating in the small-scale domestic sector.

It began when the owner of a plot of land hired a small construction company to build a dwelling on the property. It was a perfectly normal arrangement between a willing-buyer and a willing-seller of the skills needed to construct the home. However, when the builder completed the job, the result was not to the owner’s satisfaction. When the owner refused to settle the bill, the sorry saga began.

Arbitration

After the usual back-and-forth, the protagonists agreed to put the dispute to arbitration, the upshot of which was a finding in favour of the builder. It should have ended there with the owner settling the bill. But it did not. The owner still refused to pay the bill.

The contractor then approached the High Court to make the arbitration finding enforceable, which it did.

The owner then appealed to the Supreme Court because the contractor was not registered with the National Home Builders Registration Council (NHBRC) at the start of the building operations.

The owner won, even though the contractor had registered later before the home was completed.

The effect of this was that the owner now has the use of a free house. Naturally, the contractor appealed, this time to the Constitutional Court. It was the final step on the legal road to ruin because the court found in favour of the owner.

And there the owner sits, a part of his/her anatomy, not to be mentioned, now firmly pressed into the butter, while enjoying the new home without a cent owing.

And there is nothing legal the contractor can do about it, all because of a poorly conceived, badly written piece of feel-good law, seemingly based on the idea that everyone seeking to make a profit is a crook in disguise.

The Housing Consumer Protection Act 95 of 1998, which makes this sorry situation possible, also provides a tidy little income for the National Home Builders Registration Council (NHBRC) courtesy of the R750 contractor registration fee and the annual tithe of R675 that it extracts for the privilege of appearing on the council’s database.

There is also the small matter of the enrolment fee, which, if the value of the property and the building contract is R1.5 million, will amount to more than R11 000. This has to be paid before a sod is turned, as late enrolment is onerous and not always certain, and without enrolment, the banks are not allowed to give a building loan.

Last word

So what do we have? A building contractor forced towards bankruptcy; a lucky recipient of a free house, courtesy of a rigid and badly conceived law; a few more unproductive bureaucrats to administer it (that is, collect fees) and police it; and a Constitutional Court unable to cut the Gordian Knot.

All of this with the intention of protecting the consumer. (As a matter of interest, low-cost social housing is exempt. Under this legislation, owners of government provided dwellings have no protection against shoddy work).

The last word here must go to one of the three dissenting judges on the Constitutional Court. He argued that fairness is one of the core values of our constitutional order, and lies at the heart of the enquiry, not its periphery, that nothing stands in the way of the enforcement of an arbitral award in this case.

He also argued that the inevitable result of the main judgment would be to deprive the contractor of his right to payment for work, fairly and properly done, and this would amount to deprivation of property and be against the constitution.

An opinion put forward by the Institute of Architects found it disturbing that the judgment did not appear to address the constitutional questions that the contractor had brought to the court. It only deals with the issues of illegality rendering the contract void or unenforceable.

That seems an eminently reasonable observation, but perhaps it is even more apposite to recall Mr Bumble’s observation recorded in Charles Dickens’ Oliver Twist: “If the law supposes that,” said Mr Bumble, squeezing his hat emphatically in both hands, “the law is an ass – an idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience“.

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