| 1) | Subject to subsection (2), the Council shall pay out of the fund established for that purpose in terms of section 15(4), an amount for rectification where- |
| i) | five years of the date of occupation, a major structural defect has manifested itself in respect of a home as a result of non-compliance with the NHBRC Technical Requirements and the home builder has been notified accordingly within that period; |
| ii) | 12 months of the date of occupation, a roof leak attributable to workmanship, design or materials has manifested itself in respect of a home and the home builder has been notified accordingly within that period |
| b) | the home builder is in breach of the home builder’s obligations in terms of section 13(2)(b)(i) regarding the rectification of such defect; |
| d) | the home builder no longer exists or is unable to meet his or her obligations; and |
| 2) | Subject to subsections (3), (4) and (5), the Council may- |
| a) | subject to section 7(2)(e), reduce any amount that may be expended in terms of subsection (1); |
| b) | in exceptional circumstances prescribed by the Council, instead of having a defect rectified, make payment to the housing consumer in full and final settlement of any claim; or |
| 3) | Prior to exercising its powers in terms of subsection (2), the Council shall consult with and make recommendations to the Minister in respect of its obligations under section 16(1) and 16(6). |
| 4) | The Minister shall make a decision on any recommendation contemplated in subsection (3) within a period of three months. |
| a) | exercise its powers in terms of subsection (2); or |
unless the Minister has approved such action or the period referred to in subsection (4) has expired.
| 7) | If the Council has incurred costs or expenditure contemplated in subsection (1), a home builder who fails to meet his or her obligations in terms of section 13(2)(b)(i) shall, on demand by the Council, reimburse the Council with all reasonable costs or expenditure incurred by the Council as a result of the failure of the home builder. |
| 8) | If a home builder registered in terms of section 10(6)(b) fails to meet his or her obligations in terms of section 13(2)(b)(i), the home builder having constructed a home enrolled with the Council in terms of an agreement concluded pursuant to the provisions of section 10(7) shall be liable to perform the obligations of the defaulting home builder in terms of section 13(2)(b)(i) or to reimburse the Council in respect of the costs or expenditure of the Council where the Council, after having obtained judgment against the defaulting home builder, or after insolvency proceedings having been instituted against the defaulting home builder by any person, has been unable to obtain settlement of the Council’s claim against such defaulting home builder. |
| 9) | If the Council has incurred costs or expenditure where a home builder has failed to meet his or her obligations in terms of section 13(2)(b)(i), the Council shall be entitled to institute any action which the housing consumer or home builder may have or would have had in contract or in delict against any person for having caused or contributed to the failure of the home builder in respect of his or her obligations in terms of section 13(2)(b)(i). |
| 10) | The provisions of this section shall apply, with the necessary changes, to any other fund established in terms of section 15(5). |
