Social Housing Act, 2008 (Act No. 16 of 2008)Chapter 3 : Social Housing Regulatory Authority12. Powers of intervention of Regulatory Authority |
| (1) | If the Regulatory Authority is satisfied on reasonable grounds that there has been maladministration by a social housing institution, the Regulatory Authority must— |
| (a) | prepare a report to that effect; |
| (b) | provide the social housing institution with a written notice of the Regulatory Authority's intention to intervene, and must specify in that notice what remedial action must be taken by the social housing institution; |
| (c) | instruct the social housing institution to take the remedial action specified in the notice, and may request the institution to obtain specified support in order to rectify such maladministration. |
| (2) | The Regulatory Authority may make available funds through the social housing investment plan to assist in meeting the costs of any such support. |
| (3) | Should the social housing institution continue to resist the intervention of the Regulatory Authority or if there is no improvement in performance in respect of the matters which necessitated the intervention, the Regulatory Authority may authorise a forensic investigation into the institution's affairs and appoint a public accountant and auditor registered in terms of the Public Accountants' and Auditors' Act, 1991 (Act No. 80 of 1991), to undertake such investigation. |
| (4) | The Regulatory Authority may, after consultation with the providers of any debt finance to the institution and upon notice to affected parties, including the providers of finance to the institution— |
| (a) | apply to the High Court for the suspension of the chairperson, members of the board, manager or executive or senior staff of the institution for the period of the investigation; and |
| (b) | appoint suitably qualified persons to manage the institution's affairs in their place pending the findings of the forensic audit report. |
| (5) | The forensic audit report must make a finding on whether the social housing institution has been managed in a manner which constitutes maladministration. |
| (6) | If the forensic audit report does not make a finding of maladministration, the suspended persons are automatically re-instated as from the date of such report and the Regulatory Authority must review its previous instructions to the institution. |
| (7) | If the forensic audit finds maladministration, the Regulatory Authority must request the members of the social housing institution to replace any suspended person or person associated with the maladministration with a person acceptable to or recommended by the Regulatory Authority. |
| (8) | If the Regulatory Authority, based on the forensic audit report, does not believe that the institution is sustainable in its current form, or if the social housing institution refuses to take the steps required under subsection (8), the Regulatory Authority may, after consultation with the providers of debt finance to the institution and upon notice to affected parties, including the providers of finance to the institution, apply to the High Court for an order placing the institution under the administration of the Regulatory Authority. |
| (9) | If the High Court grants an order placing the institution under the administration of the Regulatory Authority, the Regulatory Authority- |
| (a) | must manage the institution effectively and efficiently; |
| (b) | may remove the accreditation of the social housing institution; |
| (c) | may transfer the housing stock or rights of the social housing institution to another social housing institution prepared to accept such transfer on such terms and conditions as may be agreed at the time; or |
| (d) | where appropriate, institute legal proceedings for the winding up of the institution. |
| (10) | Where the Regulatory Authority succeeds in restoring the viability of the institution or any part thereof, it may apply to High Court for— |
| (a) | the administration order to be lifted; and |
| (b) | for an order authorising the Regulatory Authority to appoint suitable persons as directors and office bearers of the institution. |
| (11) | A social housing institution or any person directly affected by a decision of the Regulatory Authority, may exercise— |
| (a) | any rights to internal review to the Regulatory Authority in accordance with the prescribed procedures; |
| (b) | any other rights according to law. |
| (12) | A social housing institution for purposes of any inspection under this Act must, subject to the provisions of any applicable law and subject to such limitations as may be prescribed by the Minister, allow the Regulatory Authority— |
| (a) | access to its premises or any property developed, constructed or managed by it; |
| (b) | access to its records and documentation; and |
| (c) | the seizure and photocopying of such records and documentation as may be required for investigation. |
| (13) | This section, in accordance with the provisions of section 6(2), does not apply to other delivery agents. |