Built Environment Professions Bills: discussion

PUBLIC WORKS PORTFOLIO COMMITTEE
15 August 2000
BUILT ENVIRONMENT PROFESSIONS BILLS: DELIBERATIONS

Chairperson: Chief M Hlengwa (IFP)

SUMMARY
The Council for the Built Environment Bill (CBE Bill) was deliberated on in a thorough clause by clause analysis. The first important issue was around implications for possibly a more competitive fee structure for the professions and the role of the CBE in determining this. The size of the council and whether the appointment of the chairperson and deputy chairperson should be made by the Minister or by the Council itself were heavily debated issues. It was agreed that the size of the Council be 20 members (not 28) and the majority voted for the appointment of the chairperson and deputy chairperson to occur "after consultation with the minister". The DP opposed this.

Discussion also occurred around the criteria for disqualifying council members, the funding of the council, its surplus finance, the notice period for meetings of the council and the experience required from a professional who would serve on the appeal committee. The motion of desirability was moved.

MINUTES
Council for the Built Environment Bill (CBE Bill)
Introduction
Mr Spencer Hodgson, the Chief Director for the Construction Industry Development Program clarified that the Department of Public Works was currently responsible for four professions which it regulated, namely the Architects, Engineers, Quantity Surveyors and Property Valuers. In 1994/95 there was a recognition that the manner in which the professions were regulated and the applicable Acts were out of date and did not correspond with the new Constitution. There was thus a need to modernise these Acts and bring them up to date with current developments. In addition there were new professions which had emerged which needed regulation and promotion of development by establishing a Council that accredited professionals competent in those areas. One of the important new professions was Construction and Project Management. Part of the objective of the new Acts, and particularly the CBE Bill, was to create an overarching council for the Built Environment Professions. This Council would ensure that there was coordination in the way that the different professions developed and grew, and to ensure that there was an authority competent of recognising new professions in the future and establishing them if need be. For instance the Land Surveyors and Town Planners, currently regulated by the Department of Land Affairs, were also interested in becoming part of the Built Environment Professions (BEPs). This was a possible future development which the CBE could oversee.

The new legislation opened up the professions for the first time to public participation, promoting greater transparency. In the past the professions were the exclusive preserve of certain persons who had undergone full university training. There were non-university trained people who were also professionals and the Bills would recognise them and enable a career path development for people at that level of the profession.

Clause-by-Clause Analysis
Mr Buks Annandale, Director of Legal Services at the Department of Public Works took the committee through the Bill clause by clause.

1.Definitions
There was no discussion arising out of the Definitions Clause.

2.Establishment of Council for the Built Environment
The minister must establish a juristic person to be known as the Council for the Built Environment. A juristic person was created so that the CBE could sue and be sued. It would thus operate as a company or close corporation and conduct its own affairs.

3.Objects of the council
Essentially the functions of the CBE would be to coordinate, as an overarching body, the functions and operations of the six councils, which would answer to it and report to the CBE.

Mr S Abram (UDM) asked if there should not be an additional subsection, 3(h)(vi) which allowed for the possible discussion of general matters incidental to the built environment. He felt that the five issues stated in 3(h)(i)-(v) did not allow room to manoeuvre beyond them. He asked if there was a reason for not allowing for this.

Mr Annandale said that the objects broadly stated what the CBE is going to do. The next clause (Functions, Powers and Duties of the Council) provided for what Mr Abram was suggesting: "generally, do all such things as the council deems necessary or expedient to achieve the objectives of this Act."

4.Functions, Powers and Duties of the Council
4(k)(v) stated:" The council may ensure the consistent application of policy by the councils for the professions with regard to-the principles upon which the councils for the professions must base the determination of fees which registered persons are entitled to charge in terms of any of the professions' Acts, and in accordance with any legislation relating to the promotion of competition."

Mr Abram said that his problem with local government development in the was that there were many professional people claiming to help uplift communities. Yet they still charged ordinary people the maximum laid down by the relevant professional body. He believed that millions of rands were being lost to "professional fees" or "project management fees" in this way.

He asked if the clause "…with any legislation relating to the promotion of competition", would assist in creating some competition with regard to fees?

Mr Hodgson said that the current Councils were responsible for publishing fee guidelines and these were often based on external factors. For example the engineering profession paid a great deal for "professional indemnity insurance", since they could be sued for anything going wrong with a bridge or a building. These fees should be a guideline. The private sector already attempts to drive these fees down by bargaining and competing. It had to be understood that this was not necessarily a good thing because one also wanted quality and sufficient supervision. Another problem is that because professions operate in isolation from each other, there are disparities when and how fees are adjusted. The purpose of making this a function of the CBE is to make sure that the principles for determining fees should be the same.

Mr Abram asked if the legislation was protective of tariffs or did it say that there could be free and open competition? In his experience professionals simply said that they could not compromise on their fees charged because a tariff was laid down.

Mr Annandale confirmed that in terms of 4(q) the Competition Commission would ensure that competition would be dealt with properly.

Mr Opperman (DP) addressed the issue of consultation between the councils for the various professions and the CBE. He asked if the CBE could make a ruling if they believed that fees were unjustifiable.

Mr Annandale said that he would get to that specific clause later - it provided that if there was a difference of opinion between the CBE and the relevant council, the matter would be referred to the Minister for final decision.

Ms Borman (DP) was concerned that the CBE was in fact beginning to interfere with the professions and the way they were run.

Mr Hodgson said that currently there was no body which ensured that there was a common approach or coordination amongst the professions for determining their fees. In the interests of the public and sound governance, The CBE which has representation from all the professions, the public and government, would work out the principles of how they determine the fees.
Further at the moment the Minister had no say to determine whether fees were appropriate or in line with certain principles . The CBE would also be the the right channel to take complaints regarding too high professional registration fees.

Mr Opperman asked whether the Department was saying that there was currently nobody dealing with problems like these.

Mr Hodgson said that in the past the Department was structured differently where there was a Chief Director for each profession. This was why the Acts needed to be modernised.

Ms Borman asked if overriding the professions would not lead to a lowering of standards.

A Law Advisors said that Section 4(k) stated that the function given to the CBE was to ensure the "consistent application of policy by the council". This did not give them the power to determine what fees should be charged but on the consistent application of the principles. This was confirmed by 4(r). The CBE could not prescribe what the fees or standards should be.

Mr Opperman said that in terms of 4(s) the council could charge membership fees. He asked whether government should not also make a contribution to the funding of this body.

Mr Hodgson said that the view of the Department is that the CBE serves first and foremost, all the professions which were part of this overarching council. Ultimately, if government contributes it is the tax payer who would pay for the development of the professions. The appropriate way to fund the overarching council is therefore via a fee paid by the professions. The Department had calculated that the cost of this would be between sixteen and twenty five rand per annum per person. Nevertheless the Department did feel an obligation, having being part of championing the establishment of the CBE, of funding the CBE in the first year or two of its life to make sure that it gets on its feet.

5.Composition of Council
Mr Chikane (ANC) said that using the term "disability" in 5(2) could be problematic. It should explicitly state: "disabled persons" instead.

Mr Annandale proposed that the whole reference to race, gender and disability be deleted and a cross-reference be made to Section 9 of the Constitution which contained the grounds on which a person may not discriminate.

Mr Middleton (IFP) asked what number constituted the maximum number in terms the composition of the council.

Mr Annandale said that the maximum was currently 28. The Department had in the previous day's meeting suggested that this be reduced to ten persons - the 60-20-20 principle would still be conformed to. Further discussion was needed on what the size of the council should be.

Ms Borman felt that to start at a figure of ten made more sense. The numbers could be allowed to grow as the need arose.

Mr Annandale felt that twenty would in fact be a better number to start with, in order to ensure adequate representation for all parties. With ten, government would only have 2 representatives of whom one would come from the Department. All spheres of government would not be represented.

Mr Hodgson agreed with twenty.

Ms Borman wanted clarity on the question of opting for the twenty. If a new professional council was established, would this mean that the numbers representing government and public would also be increased?

Mr Annandale said that the Department would then have to come back to the Portfolio committee with an amendment of that specific clause to get it in line with a 60-20-20 principle. The Department would probably live with one additional council coming on board, since there would not be a total moving away from the 60-20-20 principle. However if two new councils came on board it may be necessary to look at additional members from the state as well as the public.

The Chairperson said that this issue had to be looked at in study groups at a later stage and proposed that the meeting continue with the rest of the Bill.
Mr Annandale noted that if there was no finality on this question, then large portions of Clause 8 could not be dealt with. The Chairperson said that Section 5 and 8 would be returned to before the meeting adjourned.

6.Appointment of members of council
There was no discussion

7.Removal from office
Mr Middleton asked who did the enquiry contemplated.

Mr Annandale said that this was covered partly later on in the Bill. It would also be covered partly by regulation. Probably what would happen was that a sub-committee of the CBE would be appointed to do this enquiry on behalf of the Minister.

8.Disqualification, vacation of office and filling of vacancies
Section 8(1)(c) stated that a person could not be appointed as a member of the council if that person has been convicted of an offence, whether in the Republic or elsewhere…". Mr Radebe (ANC) wanted to know what happened if a person was convicted in a country having a dictatorship or military state where people's rights were not respected.

Mr Opperman added that some people, like Mr Radebe, were convicted of offences before 1994. What happened in these cases.

Mr Hodgson said that the intention was clearly not to disqualify persons who had been honourably convicted. A representative of the Department felt that the criteria for disqualification should be restricted to whether or not the person was convicted of an offence of dishonesty, namely theft/ fraud. Mr Hodgson felt that the term honesty was not adequate as persons guilty of abuse, violence or murder should also be disqualified. Mr Hodgson suggested that during the break they would look at this and come with a proposal.

9.Chairperson and deputy chairperson
The Bill made provision for the Chairperson and deputy chairperson to be elected by the council members.

Mr E Sigwela (ANC) felt that the Minister should be in charge of the appointment of the Chairperson and deputy chairperson so that it was ensured that policy would be carried forward by the council. There was a danger that sectarian interests could be advanced since the members of the CBE would consist of persons from the various professional councils.

Mr Opperman did not agree with this. There were government representatives on the council. If the minister made the appointments then he felt that it should be written in the Bill that the chairperson and deputy chairperson had to be members of the ANC because this was what it boiled down to.

Mr Chikane said that it could be seen in the chairing of this very Portfolio Committee that sometimes people were appointed not necessarily from the ANC. This should put Mr Opperman's fears at rest. The question of policy and transformation was very important, and because of this, it was believed that the person in charge had to be able to influence the process of implementation.

Mr Radebe felt that the members of the council should recommend three names to the minister for the final appointment of the chairperson and deputy chairperson concerned. He agreed that sectarian interests could be advanced which could hinder transformation and progress. In any case the chairperson would work very closely with the Department and the minister on matters pertaining to policy. The appointment of the chairperson would be crucial for the development of South Africa.

Ms O Kasienyane agreed with Mr Radebe.

Mr Annandale said that the minister was involved in appointing all the members of the council and thus in this way already had an input in terms of who was elected as chairperson and deputy chairperson. He did understand the concerns of members and suggested that Section 9(1) be amended to require that the chairperson and deputy chairperson be elected by the members of the council in consultation with the minister. Thus the minister should be satisfied with the chairperson and deputy chairperson as well.

Mr Hodgson said that saying "the board in consultation with the minister" meant that the board would still actually do it with the approval of the minister who would not necessarily actively apply his/her mind to the issue of who was of leadership calibre. When however the minister has to appoint the chairperson and deputy chairperson, then the minister would have to start thinking about this process before people are even nominated onto the board.

Mr Chikane felt that in consultation was not adequate to allow the minister a rightful say. It could mean that the minister simply had to be informed about a decision already taken. It had to be quite clear that the minister would appoint these offices so that policy would not be compromised.

Mr van der Merwe (NNP) felt that the minister had already chosen the entire council and argued that these members should decide, who among them should be chairperson and deputy chairperson. Everyone on the board supported what was being striven for in South Africa. It was wrong that the minister should govern every single thing that one did in the country. If the minister did everything, this would make the council weaker and not stronger.

Mr Spencer said that the question was also one of governance, and the concern raised was one which could be accommodated by saying, "the minister, after consultation with the board, would appoint the chairperson and deputy chairperson". In this way the board would be involved in the process and it was ensured that there was consultation.

The chairperson was concerned that if the minister should appoint the chairperson and deputy chairperson, then these persons could be stigmatised. Secondly, since the council was a juristic person, this would have an impact on the minister, should the council, chaired by the person appointed by the minister, be sued.

Mr Abram wanted to move away from the perception that existed in the past that certain persons were government lackeys. Whilst there had to be a good working relationship between the leaders of the council, the Department and the minister, it had to be remembered that the members of the council would all be put there by the minister. The independence of the body should be guaranteed so that the chairperson and deputy chairperson could not be tagged as being government lackeys merely carrying out the government's agenda. There were also private sector interests, which may at times be in conflict with the interests of government, and one had to have a body which could find the balance between all these things. He felt that the committee would be giving the body credibility and would empower it if it had the authority to choose its own leaders. If the chairperson fell out of line and did not carry out the national agenda, then the council would deal with him.

Mr Hodgson said that there was precedent in other bodies for appointment by a minister or even the president. This did not undermine the prestige and independence of these bodies such as the IBA. Professions, by their nature tended to be very conservative and slow to change. This was not only in terms of transformation but also adapting to global changes.

The Chairperson decided to defer the question of the appointment of the chairperson and deputy chairperson.

10.Meetings of the council
A member raised the point that the reference to "six members" in 3(b would perhaps have to be changed, depending on how many council members were later agreed upon.

It was felt by members of the ANC that a meeting could be convened without the chairperson or deputy chairperson. Should both be incapacitated, then the minister should appoint someone to convene such a meeting.

Mr Middleton felt that if a matter under discussion involved the chairperson or deputy chairperson, and they were obliged to recuse themselves, someone had to be chosen to continue chairing the meeting. Ms Borman agreed.

Mr Radebe had no problem with this, as long as the meeting had initially been convened by a chairperson or deputy chairperson who had been duly appointed.

Mr Annandale admitted that the issue of notice period for meetings was not covered by the Bill but would be covered in the regulations. A representative of the Department noted that the 30 day notice period in 10(1)(a) only applied to the first meeting.

11.Quorum and decisions
There was no discussion

12.Executive committee
There was no discussion

13.Powers of the executive committee
There was no discussion

14.Committees of council
In reply to Mr Opperman asking if the committee had to consist of members of the council, Mr Annandale said that this was not necessarily the case. It depended on the matter. The council could deem it necessary to get expertise from outside. This could also include members from the professions.

15.Appointment of registrar and staff
There was no discussion

16.Delegation of powers
There was no discussion

17.Financing of council
The Chairperson was concerned about what would happen to the surplus money of the council. He felt that in 17(3)(a)(ii), "must" had to be "may".

Mr Opperman said that the DP agreed with this.

Mr Abram said that there was no problem because in terms of 17(3)(a)(i), surplus could be reinvested. He also agreed with the chairperson's proposal since there would be confusion if the "must" in 17(3)(a)(ii), remained.

Mr Chikane felt that surplus money had to be returned to government. He said there were many examples of underspending in government such as the Welfare Department. This was not an investment body but a professional body. All its funds should be governed by legislation governing public funds.

There was a general feeling amongst members that donations in terms of 17(1)(b) could not come from "rogues" who would donate large sums of many and expect favours from the council.

18.Accounting and accountability
There was no discussion

19.Reporting
There was no discussion

20. Identification of work
There was no discussion

21.Appeal
In 21(3)(c), Mr Abram said that "specialises in the area" could mean many things. Something was needed to clear this obscurity.
In terms of 21(3)(a) Mr Opperman felt that 10 years experience was fine.

Mr Chikane said that 10 years experience was problematic since many oppressed people would not have 10 years experience. He suggested "appropriate experience".

Other suggestions that were put forward were:
- In 21(3)(c) Mr Hodgson felt that "specialises in the area" was fine and could not think of another way of being more specific.
- The Chair felt that it could be interpreted to mean other things.
- Mr Hodgson suggested putting in "professional field or area".
- Mr Abram suggested: " A person who has the appropriate experience in the profession/ field.
- Mr Hodgson said that this was too narrow. If the area was bridge design, not just a structural engineer would be needed, other specific areas of engineering would be relevant. He suggested: "A person who specialises in the profession and specific area concerning the appeal".
- With regard to 21(3)(a), Mr Hodgson felt that "appropriate experience" was fine, however 2 or 3 years was not sufficient.
- Mr Middleton felt that 10 years was discrimination against those with 7 or 8 years experience.
- Ms Borman felt that whilst 10 years may not be needed, with "appropriate experience" 1 year could be adjudged to be enough.

The ANC members were adamant about "appropriate experience" replacing ten years.

22.Regulations
Mr Chikane said that "not inconsistent" should be changed to "consistent"

23.Short title
No discussion

In terms of the two deferred issues on the number of members of the council and the appointment of the chairperson and deputy chairperson, the DP agreed with the proposed 20 members and the majority voted for the appointment of the chairperson and deputy chairperson to occur "after consultation with the minister". The DP opposed this.

The motion of desirability was read out by the chairperson and then moved.
The others six related Bills would be dealt with by the committee on 6 and 7 September 2000.