Engineering Professions Bill: discussion

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ENGINEERING PROFESSIONS BILL: DELIBERATIONS

PUBLIC WORKS PORTFOLIO COMMITTEE MEETING
06 September 2000
ENGINEERING PROFESSIONS BILL: DELIBERATIONS


Chairperson: Chief M Hlengwa (IFP)

Relevant document:
Engineering Profession Bill
Proposed Amendments to the Council for the Built Environment Bill [B16-2000]

SUMMARY
The Engineering Profession Bill (the Bill) was deliberated through a clause by clause analysis led by the Department of Public Works. Issues which were discussed were as follows:
· The composition of the council, and the need for a large council as a result of the size of the profession
· The possibility of consecutive terms of office as balance by the need to ensure that members do not become entrenched into an 'establishment'
· The election of an interim president / vice-president to preside over a meeting in the absence of the president and vice-president, as well as the powers vested in such an interim officer
· The recognition of previously disadvantaged persons' experience in lieu of formal "paper qualifications" required for registration in the profession
· The exclusion of convictions based on political motives from the list of factors allowing for a person to be rejected as a council member.
· Time periods requiring compliance in various clauses, and the sanction imposed in the case of non-performance.
· The need for consultation with the Minister on various issues.

The Department undertook to make the necessary changes and present these to the committee at the following day's meeting.

MINUTES
Mr Buks Annandale, Director of Legal Services at the Department of Public Works, began by proposing that the meeting attend to the Engineering Profession Bill (the Bill), and that changes which were made to the Council for the Built Environment Bill (CBE Bill) by the legal team be dealt with the following day. He also proposed that the committee be taken through the Engineering Profession Bill in detail, and that any changes requested by the committee be effected to the other related bills as they were almost identical in content.

The forum accepted these proposals, and Mr Annandale took the committee through the Bill clause by clause.

Clause 1. Definitions
No discussion arose from Clause 1.

Clause 2. Establishment of the Engineering Council of South Africa
No discussion arose from Clause 2.

Clause 3. Composition of the Council
As background, he reminded the committee that the composition of the CBE has changed, but that within each profession the composition of each council would remain the same, in line with the 60/20/20 principle.

Mr Abram (UDM) asked whether the total number of 50 members of the council was not an unwieldy number, as the council should be compact, while still representing all interest groups.

Mr Annandale replied that the other discipline's councils are smaller, but that the Engineering Board is big as a result of the size of the discipline. After consultation with the profession, it was decided that this number of Board members was the only way to represent the roughly 70 000 registered professionals within engineering. The engineering profession will still only have two representatives on the CBE.

Mr Abram also asked whether there was not a more appropriate word to be used in place of "branches" in clause 3 (1) (a) (iii). It was suggested from the floor that "disciplines" be used.

Mr Annandale agreed that "branches" was perhaps not the best word and undertook to look for an alternative.

The Committee agreed that the number of Board members was acceptable. Mr Sigwela (ANC) underlined that it was essential that all sectors of the profession be represented in order to create an appropriate mandate for the two Board members who sat on the CBE.

The Chair asked for clarification of the phrase "in consultation" used in clause 3 (2) specifically what would happen in the case of non-agreemeent.

Mr Annandale replied that the Department wants the CBE to have a say as to the composition of the nominating body, although in the case of non-agreement, the matter would be referred to the Minister for a final ruling. The department would include this in the clause.

A member asked what the legal ramifications of the phrase "in consultation" are.

Mr Annandale replied that all parties must agree on the final outcome, and that if there is no consensus, there is no possibility of final agreement.

Mr Spencer Hodgson, the Chief Director for the Construction Industry Development Programme in the Department of Public Works, said that it was essential to remember that we live in a time of change, and that some of the organisations within construction are changing. It would be impossible for the Department to stipulate a composition for these organisations .

The Chair suggested that a mechanism for solving deadlock be included.

Mr Annandale undertook to insert a new clause to cover every eventuality. He also stated that this is the only profession where the nominating bodies are appointed with consultation, as a result of the size of the profession.

Mr Annandale also drew the committee's attention to the fact that they had requested a change to the words " race, gender and disability" in clause 3 (1), and asked whether the committee would prefer the alternative "principles of transparency and representivity" be applied to all these Bills.

Mr Moonsamy (ANC) stated that he agreed with the proposal, underlining that the word "race" should not appear.

Mr Abram asked for clarification regarding the retention of one third of the current Engineering Council on the new body as in clause 3 (3).

Mr Annandale replied that this was a once-off occurrence which is needed to establish the first council.

Mr Abram asked whether the clause would remain in the Bill once it no longer applied.

Mr Annandale replied that it would remain even though it becomes obsolete once the first council has been constituted.

Clause 4. Nomination Procedure
Mr Annandale said that this clause deals with the administrative process after individual members of the council have been identified.

Mr Moonsamy drew attention to the fact that in spite of the fact that time periods have been specified for performance in clauses 4 (1), 4 (2), 4 (3) and 4 (4) no time period has been set in clause 4 (6), but rather the phrase "as soon as practicable" has been used. He questioned whether it would not be better to stipulate a time period in this clause as well.

Mr Annandale replied that specific time periods were included in order to ensure that delays were avoided. The publishing of this information in the Gazette does not have an effect of the running of the council, and may well take time.

The Chair asked whether it was necessary to include clause 4 (6) at all, and asked what would be the effect of omitting it.

Mr Annandale said that this clause had been included in order to serve principles of transparency on the part of the Department in consultation with the specific councils.

Clause 5. Term of office of members of the council
Mr Annandale stated that implicit in this clause is the principle of supremacy of the Minister, and the idea that she / he can terminate or extend the term of the Board.

Mr Opperman ( DP) asked for elaboration on the rationale of insluding clause 5 (2) as he questioned the limiting of the term of a well-functioning council.

Mr Hodgson replied that clause 5 (2) allows for two consecutive terms, but limits serving members from serving a third term. This is to ensure that an 'establishment' does not become entrenched and that 'new blood' is being brought into the council in order to ensure that it remains adaptable and receptive to change.

Mr Middleton asked whether a person could be elected for a further term after they had served two terms already.

Mr Hodgson replied that this would be possible if a 'rest term' of four years had expired after the last term served.

Mr Radebe (ANC) asked for clarification regarding section 5 (3), asking specifically whether this clause allowed for the extension of the term of office of a Board to five years' service by extending this period six months at a time.

Mr Spencer replied that this it has been known to happen that the nomination process has been flawed, or that the nominees have been unsuitable, and the need has therefore arisen that the committee's tenure be extended. Although this should not be the case, a safeguard needs to be in place to avoid the situation where the Minister is in breach of the stipulations of the Act.

Mr Radebe asked whether it was necessary to make provision for two periods of six months each, amounting to a year in total. He pointed out that the nomination period is prescribed as 2 months, and questioned whether all this extra time was necessary.

Mr Annandale stated again that this was a safeguard to ensure that the Minister would not be in breach of the Act.

Mr Opperman asked that if the reasoning behind an earlier clause limiting the number of consecutive terms that could be served by a Board member was to ensure that new blood was introduced into the organisation, why then does the Act allow for people to return to office after this 'rest period"

Mr Spencer replied that although care is being taken to ensure that 'fixtures' do not become entrenched in the Board, care must be taken that people who are valuable to the Board are not barred from making their input. The committee's attention was further drawn to section 16 (1) in this regard.

The Chair asked whether, in the light of the fact that a term of office is 4 years, the term "is duly constituted" was strong enough.

Mr Annandale agreed, and proposed that the word "duly" be substituted.

Clause 6. Disqualification from membership of council and vacation of office
Mr Sigwela asked for clarification of clause 6 (1) (c), questioning whether there are any exclusions that are extended to people who were sentenced due to political offences. He expressed the view that this should be provided for expressly, and not left to individual interpretation.

Mr Annandale replied that the same issue had been dealt with during deliberations of the CBE Bill, and proposed that the solution out forward by the state law advisors be carried forward into all other Bills.

Mr Middleton questioned the constitutionality of the clause in its entirety.

The Chair asked Mr Middleton to be more specific as the particular aspects of the clause which are causing him concern.

Mr Middleton stated that he was concerned about the whole clause.

Mr Annandale stated that the Bill has been looked at by the state law advisors, and that they were not of the opinion that there is conflict with the constitution.

The Chair suggested that Mr Middleton report to the meeting the following day as to the specific areas which he found unconstitutional. Mr Middleton agreed to do this.

Clause 7. Election of president and vice-president of council
Mr Moonsamy pointed out that in the CBE Bill the titles of chairperson and vice-chairperson are used, but that in this Bill the titles of president and vice-president are used, asking whether it would not be better to have uniformity.

Mr Annandale stated that the existing councils have a president and vice-president, but that the CBE is a new council. The existing councils have asked that the current titles be retained.

Mr Chikane expressed concern over clause 3 (a) as he was of the opinion that this allowed for a small group of members to hold a meeting of their and in the absence of the president and vice-president be able to elect a president who, with the immediate powers granted by this clause, may stage a 'coup' and out the elected president and vice-president.

Mr Annandale replied that as there are only four meetings held a year, it would be unlikely that both the president and vice-president would not be present.

Mr Chikane said that it was possible that the president and vce-president way have a car accident or a puncture while travelling to the meeting together.

Mr Abram stated that these meetings would have an agenda set well in advance, and would not be centred around individuals as the organisation should be greater than the individual. The legislation needs to make an allowance for a degree of elasticity otherwise it only serves to paralyse the organisation in the absence of the president and vice-president.

The Department stated that there are regulations as to what constitutes a council meeting, and that section 10 (d) regulates how meetings are convened.

Mr Moonsamy drew attention to the fact that the powers granted to the temporary president or vice-president only applies to the specific meeting.

Mr Annandale agreed, saying that there would need to be a quorum in order to make any changes, and that the acting president only has the casting vote in the event that there is an equality of votes. With a council of this size, it is unlikely that this should ever happen.

Clause 8. Appointment of chief executive officer and other staff members of the council.
No questions arose from this clause

Clause 9. Decisions of council
Mr Annandale stated that new wording had been drafted for this clause when dealing with the CBE Bill (clause 11), and proposed that this be substituted here as well. The clause was read from the changed CBE Bill.

Mr Baloi (UDM) stated that he supported the new wording as it was shorter and more to the point.

The Chair asked about the reference to section 8 (2).

Mr Annandale stated that this would become section 6 (2) in this Bill relating to disualification.

Mr Middleton stated that he would be hesitant to accept this wording at this meeting as the new wording would only be deliberated with other alterations to the CBE Bill at the meeting the following day.

The Chair reminded Mr Middleton that the new wording was drawn up on the request of the committee.

Mr Spencer asked whether the meeting agreed to the substitution in principle so that it can be presented with other alterations for deliberation at the following day's meeting. The meeting agreed in principle.

Clause 10. Administrative powers of council
Mr Middleton asked whether clause 10 (b) relating to the payment of pension and other benefits related only to staff members or to all members of the council.

Mr Annandale stated that it applied only to staff members.

Clause 11. Powers of the council with regard to registration
No questions arose from this clause.

Clause 12. Powers of the council with regard to fees and charges
No questions arose from this clause.

Clause 13. Powers of the council with regard to education in engineering
Mr Moonsamy asked for re-examination of the period of 5 years allowed for in clause 13 (a), asking if this should not be reduced.

The Chair pointed out that a period of office is 4 years, and allowing for visits required every 5 years did not seem to make sense.

Mr Annandale replied that in reality visits happened more frequently, mostly every 2 years, and that reasons have to be submitted to the Minister if this does not happen.

Mr Opperman asked whether clause 13 (a) would mean that a new institution may have to wait up to 4 years for a visit to establish accreditation.

Mr Annandale replied that this provision does not apply to first assessment for accreditation purposes. First accreditation is dealt with by the Higher Education Act and the Engineering Bill would simply comply with those provisions. This clause deals specifically with visits to ensure the continuation of standards.

Mr Hodgson suggested that the wording be changed to "within the term of office of that specific council".

The Chairperson asked for clarification of the mechanisms for gaining recognition of their qualifications obtained in other countries as described in clause 13 (e).

Mr Hodgson replied that there is mutual recognition with other countries once their standards of accreditation have been assessed.

Clause 14. General powers of council
The Chair asked whether it was necessary to include "encourage" and "itself undertake" under clause 14 (f).

Mr Annandale replied that this covers both situations as the council may not always be able to undertake the research itself, but may encourage this to be undertaken by other institutions within its constituency. Should the council wish to undertake its own research, this can also be done.

Mr Radebe asked whether this allows for a research by the CSIR for example.

Mr Annandale replied that the CSIR was a body that could be used.

Mr Moonsamy asked whether it was wise for the council to be given carte blanche to dispose of their property as they see fit? Assuming that government granted the council funds, should this apply?

Mr Annandale replied that they are self-sufficient and that as government has not funded the council in the last 30 years it was unlikely to happen.

Mr Hodgson stated that this provision was included in order to allow the council to act as a juristic person.

Clause 15. Funds of the council and keeping and auditing of accounts
Mr Abram raised a concern relating to clause 15 (3) relating to remuneration. There is an expectation that the council act responsibly, but should an extra safeguard in the form of Ministerial consultation be allowed for?

Mr Annandale replied that these are professional organisations, and as such would have definite procedures and constitutional imperatives. Conditions of intervention by the state would have to be acceded to by the body.

Mr Radebe expressed a concern that the committee should ensure that members of the body be remunerated at the same level for council work as for work undertaken in their professional capacity.

Mr Annandale reminded the committee that the council's funds are not state funds, and so it would be difficult to add more than "after consultation with the Minister".

Mr Hodgson stated that the council is obliged to do this with the Minister and the CBE in order to ensure uniformity as the funds are raised through a statute governed by the Minister.

The Chair asked for clarification of the sanctions imposed in the case of a body being in breach of the six month period for submission as allowed for in clause 15 (8).

Mr Annandale stated that these are dealt with under section 41 relating to offences and penalties.

Clause 16. Reports to CBE
No questions arose from this clause.

Clause 17. Committees of council
No questions arose from this clause.

Clause 18. Categories of registration
A member proposed that the word "must" be removed from clause 18 (4) and br replaced with the word "may".

Mr Annandale replied that this was not possible as members cannot do work as a candidate.

Mr Spencer stated that the clause as currently drawn up meant that as a candidate members are only permitted to do work in the engineering profession, but the intention is that candidates may only work in the engineering profession under the supervision of an engineer.

Mr Annandale proposed moving the word "only" to between the words "in the engineering profession" and "under the supervision of".

Clause 19. Registration
Mr Baloi proposed that the words "improper conduct" be replaced with "misconduct".

Mr Chikane stated that he felt that improper conduct was in fact the better term as it covers an area wider that misconduct, which deals only with conduct in the professional capacity.

Mr Opperman asked what would be required to "present evidence of prior learning" as used in 19 (2) (b) (iii).

Mr Abram suggested that a better word be used in 19 (2) (a) (i) as "against" seems to be very negative.

Mr Abram also asked whether the word "learning" as used in 19 (2) (b) (iii) was appropriate and indicated the standard of education required.

Mr Abram also suggested that 19 (3) (a) (v) was a bit long and should be made more compact and to the point.

Mr Annandale replied to this question by stating that people can be unrehabilitated insolvents as a result of no specific fault of their own, and that this clause was specifically written to exclude such people. He undertook to look at the clause again, as well as the other concerns of members raised above.

Mr Radebe stated that people with experience but without qualifications (as a result of being previously educationally disadvantaged) should also be included.

Mr Hodgson replied that until now, people could only become an engineer through a university degree, but that there are people who, with a combination of experience and a 'lower' qualification should also qualify. Under SAQA , this combines as 'prior learning' and this should be reflected in this Act. The Council will have to deal with this on a case-by-case basis.

Mr Radebe suggested that a definition of 'prior learning' be included in this clause to avoid confusion.

Mr Annandale agreed.

Mr Sigwela raised the issue of previous convictions again.

The Chair replied that the amendments as indicated in the earlier discussion be applied consequentially throughout the Bill.

Mr Moonsamy asked whether it was accurately reflected in clause 19 (2) (b) (i) that educational institutions need to be recognised institutions.

Mr Annadale proposed that he deal with all issues as raised by the members tomorrow.

Clause 20. Cancellation of registration
No questions arose from this clause

Clause 21. Authorised titles
Mr Middleton asked for clarification regarding the difference between professional engineers and certificated engineers.

Mr Annandale replied that a professional engineer had a higher status than a certificated engineer, and undertook to provide clarity for the members tomorrow.

Clause 22. Renewal of registration
Mr Abram asked what the prescribed period for registration was, as well as whether members received a reminder to renew this registration.

The department replied that this was usually done annually and that reminders were sent out.

Clause 23. Return of registration certificate
Mr Middleton asked what would happen if the person concerned did not comply with this requirement.

Mr Radebe asked whether a person whose registration was cancelled was able to continue performing his duties within the 30 days allowed for return of the certificate.

Mr Moonsamy drew attention to the fact that section 25 (8) requires immediate return of the certificate and asked whether this should not be standardised.

Mr Annandale replied by saying that anyone not returning their registration certificate within the required time period would be in breach of clause 41, and would incur penalties as such. Someone continuing to practise within the period allowed for return of certificate would also be in breach of section 41.

Clause 24. Grievance procedure in relation to registration
Mr Abram asked whether the words "lies against" could not be substituted with "lodged against" for better reading.

Mr Sigwere asked which body the appeal was lodged to, as the registration is cancelled by the council, but does the CBE feature in the appeal process?

Mr Annandale replied that a committee of the council cancels the registration, but the full council hears the appeal. If the appellant is still not satisfied, they may make further appeal to the CBE.

The Chair asked whether members if the committee refusing registration form part of the council to hear the appeal.

Mr Annandale replied that although some members may be the same, the full council is made up of 50 members which will add more perspective.

Mr Opperman asked whether there would be any financial implications for people wishing to lodge appeals.

Discussion ensued as to whether the fees referred to in clause 24 (1) were fees which had fallen due resulting in cancellation of registration or whether these were appeal fees. It was felt by members that fees should be levied for appeal in order to ensure that appeals were bona fide. Mr Hodgson suggested that the Department seek clarity on this and report the following day.

Clause 25. Recognition of voluntary associations
Mr Opperman drew attention to the fact that no time period was stipulated for return of certificate of recognition.

Mr Annandale undertook to investigate this.

Clause 26. Identification of work
Mr Abram expressed the concern that members of the industry who ho not have paper qualifications as a result of the history of our country are again not reflected. He felt that this legislation should reward and not inhibit deserving people.

Mr Annandale suggested that as a way of solving the problem of interpretation of "prior learning" this should be incorporated under the definitions.

Mr Hodgson added that there are a number of professions in the building industry, but only two that require registrations. Nothing prohibits people in these other professions from rising up the ladder, and the Constructions Education and Training Authority is making these kinds of recognition possible.

Mr Sigwela indicated that there should liaison with the Department of Labour on these issues.

Clause 27. Professional conduct

Mr Opperman asked why the clause makes use of the word 'may' in section 27 (1) dealing with the drawing up of a code of practise, suggesting that the word "must" should rather be used.

Mr Annandale replied that while it is compulsory to have drawn up a code of conduct it was not compulsory to draw up a code of practise. If, however, a code of practise is in existence, compliance is compulsory.

Clause 28. Investigation of charge of improper conduct
No questions arose from this clause

Clause 29. Charge of improper conduct

No questions arose from this clause

Clause 30. Appointment of disciplinary tribunal

Mr Annandale proposed that the words "at least 10 years" (clause 30 (2) (b)) be replaced with the word "appropriate" and the words "the area" ( clause 30 (2) (a)) be replaced with the words "the professional field" as had been done in the CBE Bill.

Afternoon session
Clauses 31 to 45 were read out and explained to the Portfolio Committee. Members were encouraged to ask questions at the end of each clause. The following clauses engendered discussion:

Clause 31. Disciplinary hearing
Mr Hodgson said that Clause 31 was based on the Public Disciplinary Act, and is a fair and procedural way of dealing with misconduct.

Mr Radebe (ANC) asked whether the witnesses in disciplinary hearings had any immunity.

Mr Hodgson said that there was no immunity since this could lead to malicious lies being used by victims, with no recourse for the accused.

Mr Middleton (IFP) asked how the disciplinary hearing as envisaged by the Engineering Profession Bill was related to the Labour Relations Act.

Mr Hodgson replied that the Labour Relations Act superceded the disciplinary hearing and in fact the disciplinary hearing conforms to the Labour Relations Act.

Mr Opperman (DP) asked if anyone had the right to refuse to testify.

Mr Hodgson replied that only if sufficient cause is pointed out to the tribunal, will someone be recused from testifying.

Mr Moonsamy (ANC) asked what form of information dissemination would be used after a disciplinary hearing.

Mr Hodgson suggested that it be provided for in the Act that the verdict be published. He added that the current practice in the Medical Association is that findings of disciplinary tribunals are published in the Gazette.

Mr Opperman asked what would happen to the publication if a person appealed against the decision of the tribunal.

Mr Hodgson assured him that the appeal is dealt with comprehensively before any publication takes place.

Clause 41. Offences and penalties
Mr Chikane (ANC) felt that Chief Executive Officers should be accorded performance measures and there must be maximum time period up to which a Chief Executive Officer can occupy office

Mr Hodgson said that he endorses such a performance contract.

The meeting was concluded.

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