Infrastructure Development Bill [B49-2013]: Clause 1 to 7 deliberations and proposed amendments

Meeting report

The Chairperson stated that the Minister’s reasoning for providing the Bill with the Economic Development Department’s (EDD) proposed alterations included in the text was much more efficient than a presentation.

Mr S Motau (DA) asked why the programme had changed to include a meeting on Friday. The final voter registration drive was this weekend.

The Chairperson responded that the roadmap states that this Bill needs to be done by 11 February.

The Secretary read out the list of apologies.

In response, Mr A van der Westhuizen (DA) was concerned about the lengthy list of apologies. He asked if the Committee would ensure that at least half the members be present for the “not-agreed upon” Friday meeting.

Mr Mohai asked if the legal advisors could implement a systematic progress report system so that the Committee did not have to meet as frequently. He thought it would be most helpful to have a formal document that stated progress or items of note for personal reference outside the meetings. This would make the meetings more efficient and effective.

Mr F Beukman (ANC) pointed out that the legal people need time and space to also be effective in their role within the Committee. He assured Mr Mohai that the Committee will benefit most if the legal team has time to take care of the Bill’s logistics and that putting pressure on them was not realistic.

The Chairperson acknowledged the DA’s concern for the voter registration deadline but stated that the Friday meeting was needed to address the items in the Bill that were flagged and not yet agreed upon. they will determine if the Friday meeting is necessary based on today’s performance.

Mr Motau asked when would the public submissions come into the discussion.

The Chairperson replied that the method used would be a clause-by-clause discussion of the Bill. The EDD would inform the Committee whether public’s proposals for each clause were included  or not.

Mr Motau asked if the EDD document mirrored the Minister Ebrahim Patel’s response to the public submissions the previous week.

The Chairperson answered that the Minister’s response was based on both written and oral submissions given at the public hearings two weeks prior. She reassured him that if the Minister had left something out, then this meeting was the time and opportunity to include them.

Mr Motau was concerned about the circle of response documents. After week after the public hearings, the Minister had responded to some of the submissions. It was unclear to him if today’s response document differed from the Minister’s response.

The Chairperson stated that the previous week’s meeting had addressed the original submissions. Some of those who provided the original submissions were asked to make further submissions. The Department had responded to both the original and resubmitted ones. The Committee had in its hands the document with the most up-to-date responses.

Mr Motau thanked the chair for clarifying his confusion about the sequence of response documents and noted the importance of addressing the concerns raised at the public hearings and including these in the Bill.

The Chairperson stated that they had included all the submissions received, unless they were sent yesterday, in which case they were beyond the due date and thus would not be accepted.

Mr Motau appreciated that his concerns were addressed.

A discussion ensued with Mr van der Westhuizen about hard copy documents not being received by him and a request to have documents emailed in future.

The Chairperson asked for agreement to pursue the meeting as she had suggested, addressing the Bill clause-by-clause.

Mr van der Westhuizen raised his concern about the difference between Commission and Council. He wanted to know why the Department had changed this in the Bill.

The Chairperson asked if the Committee agreed to the clause-by-clause method. This format would allow questions, such as the difference between the Commission and the Council, to be addressed and would ensure that it is done systematically.

Mr van der Westhuizen continued and stated that there was no consistency between Council and Commission.

The Chairperson asked how they should approach the Bill.

Mr van der Westhuizen said the DA members wanted the Department to join his discussion on the Council and the Commission.

The Chairperson responded that they could not start with that issue and that they would get to that issue when it comes up, clause-by-clause, as nobody but Mr van der Westhuizen gave resistance.

Clause-by-clause discussion on Working Draft of the Bill

Bill Title
Mr Motau requested the Bill title be changed. He thought it was misleading. He thought it should be called the National Infrastructure Coordination Bill or Strategic Infrastructure Development Bill.

Mr Beukman pointed out that Mr Motau had given two titles and asked which one he wishes to propose.

The Chairperson agreed with Mr Beukman.

Mr Motau responded that he proposed that the Bill be titled National Infrastructure Coordination Bill.

The Chairperson asked for a vote.

Ms D Tsotetsi (ANC) said she did not understand why it needed to be changed.

In response to the Chairperson asking why it needed to be changed, Mr Motau responded that the DA wanted the bill to be based on coordination with other bills already implemented. The DA wants it to reflect what is actually in the Bill, as the Bill title excludes ‘coordination’, a major aspect of the Bill.

Mr Mohai did not support the change to the title. Mr Mabasa proposed that the Committee keep the existing title, his reason being that it affects the country as a whole. Mr Beukman stated that the title must be user friendly and that they needed to stick to the current wording for consistency and easy reference.

The Chairperson responded that the popular view was to keep the title of the Bill as is and asked Mr van der Westhuizen if he opposed this.

Mr van der Westhuizen responded that he was proposing an alternative. He stated his irritation with the methodological process the creation of this Bill had taken, saying that the Committee had not discussed the Bill amongst the Members and that they had only had hearings.

The Chairperson responded that the first working of the bill had been done in chamber where DA members had participated. The bill has been in the works for some time and she suggested Mr van der Westhuizen speak with other DA members for a briefing of the Bill, as he had come in mid-process.

Mr Mabasa assured the Committee that the method presented by the Chairperson allows Mr van der Westhuizen to address his concerns.

The Chairperson expressed her concern about the amount of time elapsed in crafting this Bill and restated her reasons for the clause-by-clause methodology. She closed the discussion on the title of the Bill.

Long Title and Table of Contents
Mr van der Westhuizen proposed using full wording, specifically for Strategic Integrated Project (SIP), and use the acronyms later.

Adv Herman Smuts (Principal State Law Advisor) responded that the table of contents will have acronyms spelled out in both the table of contents and in the Bill, initially, but after the full form, acronyms will be used.

Mr van der Westhuizen addressed the usage of “approval” in the Long Title. He stated that those in the public hearings wanted it rephrased and suggested it be something like “decision-making processes”.

Mr Mabasa said he thought it would be best for the Department to give their opinion. Ms Tsotetsi and Mr Mohai agreed.

The Chairperson asked the Director General why the Department used “approval”.

Ms Jenny Schreiner, EDD Director General, responded that it was essential to have various stages of approvals to prevent monopolies within the decision-making processes. It did not necessarily mean that the approvals were “positive”, only that they were to illustrate the progress of the Bill.

Mr Mabasa said that this explanation made sense.

Clause 1: Definitions
Mr Motau wanted “development” to be “sustainable development” due to the inclusion of National Environmental Management Act (NEMA) in the Bill. He proposed defining “sustainable development” as ”the integration of social and economic environmental factors into planning implementation and decision making as to ensure that problems do not spread to future generations.”

The Chairperson addressed for responses.

Mr Mabasa accepted this definition but rejected the use of specifying NEMA, as sustainable development is a universal term and leaving it open allows it to be applied more broadly.

Mr Mohai said that this Bill does not seek to replace existing legislation; it aims to strengthen this.

Mr van der Westhuizen pointed out that the Constitution strongly uses “sustainability.” He suggested that this Bill steered close to compromising this as so long as “sustainability” is absent.

The Chairperson questioned which issues were compromised.

Mr van der Westhuizen responded that Section 24 of the Constitution reads: “Everyone has the right to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that secure ecological sustainable development and use of natural resources while protecting justifiable economic and social development.”

Mr Beukman agreed with Mr Mabasa that the over-elaboration of definitions was not necessary

Mr Motau commented that infrastructure development requires “destructive” processes and that future generations should not have to face the repercussions of their actions. This is why the Committee needs to have “sustainable development”. He wanted the Committee to be viewed as sustainability-minded.

Mr Mabasa withdrew his prior support for defining “sustainable development”.

The Chairperson asked the DG to explain the Department’s notes on page six on the Definitions section.

The DG answered that definitions should be present in a bill only if it is referenced to the content of that bill. The definitions used in the Bill are based on terminology utilised in the body of the Bill. This Bill is subject to other legislation, specifically the Constitution. The Bill acknowledged that it must adhere to the Constitution.

The Chairperson asked if there were any other concerns with the definitions.

Mr Mabasa moved to approve the definitions.

Mr Motau restated the DA’s disapproval of the absence of sustainable development being mentioned.

The Chairperson reassured him that the Committee is not neglecting sustainable development. The Bill, as it was, has no need for a definition of “sustainable development” because there is reference to the Constitution and environmental law issues. Just because it was not literally written down does not mean it is not a concern.

Ms Tsotetsi reiterated what the Chairperson said

Mr Beukman stated that the ANC was also concerned with long term sustainable development and that these issues have existed for a long time. They are nothing new and that they have been addressed the whole time.

The Chairperson stated that sustainable development holds primacy in South Africa and that this Bill states that it requires working concurrently with current legislation. She stated that enough time had elapsed on this issue and that they would move to the next section.

Mr van der Westhuizen had another concern about the use of the singular form rather than plural for “guidelines” on the bottom of page eight under “this Act”.

The DG stated that “guidelines” should be “guideline”.

Mr van der Westhuizen asked whether, on page eight, “one or more installation, structure, facility, system, service or process…” should be plural.

The DG answered that either way it was a legal issue.

Mr van der Westhuizen was concerned with the last line of page eight which read: “”this Act includes any regulation, guidelines or target made or issued in terms of this Act.” He did not think it was proper to have the term being defined to be in the definition.

Mr Smuts answered that this happens in every piece of legislation; that is a catch-all formatting technique.

Mr van der Westhuizen thought “in issue of terms of this act” should be less ambiguous.

A Member of the Department responded that it is a drafting convention.

Clause 2: Objects of Act
Mr Motau pointed out that there were two “2’s”. It ended up that the first was for Clause two and the second was for a subclause.

The Chairperson decided to give a five minute break to the Department to organise.

Mr Mabasa was confused about the documents which were handed out; the Chairperson clarified what the meeting was covering.

The Chairperson inquired about the reasons for the inclusion of governmental spheres, on page ten.

The DG answered that the Department wanted to ensure that throughout the implementation of the bill the Constitution is accounted and considered.

The Chairperson asked for a further explanation from the legal representative.

A Department official answered that the Department was worried about encroaching on other governmental powers, specifically provinces and municipalities, and emphasised that the Department did not want the Bill to keep the power in their hands. Mr Smuts agreed.

Mr van der Westhuizen was concerned about the use of the word “scope”.

The Chairperson dismissed this concern as trivial, asking the Committee if they agreed.

Mr Motau said that he did not want the DA’s concerns treated as afterthoughts.

The Chairperson reassured them that they were not afterthoughts, and then proceeded to clause 3.

Clause 3: Structures and composition of Presidential Infrastructure Coordinating Commission
Mr Mabasa asked to remove “so” in s3(1)(a).

The DG said that was not legally significant.

Mr van der Westhuizen inquired about the plural usage of Chairpersons in s3(2)(d).

The DG explained that the whole subclause needs to be read and contextualised. There may be a need to draft in an explanation, that being the connections between SIPs as well as having the order of these bodies (Chairpersons, coordinators, etc.) correct, reflecting the hierarchy of decision-making and authority.

The Chairperson asked for more clarification to be written as the DG had explained it. 

Ms Tsotetsi said it makes sense when read slower.

The Chairperson was concerned about s3(1)(b) and s3(2)(a), reading “The Commission acts through its Council” and “The Commission has a Council,” respectively. She thought these were redundant.

The DG assured her that it is important to have both for legal reasons and allows the Commission to act through its Council, as it states.

Mr van der Westhuizen asked why on page 11 “Commission” had been replaced with “Council” in (4), (5), (6) but not (7).

The Chairperson answered that the Presidential Infrastructure Coordinating Commission (PICC) still works but is referred to as the Commission.

The DG clarified that the Commission is an all-encompassing term and includes the PICC.

Clause 4  Functions of the Council
Mr van der Westhuizen had a minor grammatical inquiry. Ms Tsotetsi,  Mr Mohai and the Chairperson also had minor comments about this clause.

Mr Motau was concerned that the Committee was assuming people would understand the Bill and that means that it could be open to interpretation.

Mr Motau re-emphasised and pushed the need to address environmental concerns.

Mr Mabasa countered that if the Committee addressed the environment blatantly, the whole Bill would change.

Mr van der Westhuizen said that sustainability includes existing issues such as the lack of using existing buildings while simultaneously wanting to build new ones. He was concerned with building new infrastructure when it was not needed or maintained.

The Chairperson referenced s4(g)(iv) and (v) which state that: “The functions of the Council are to (g) identify (iv) the direct and indirect impact of any strategic integrated project on economic equality and social cohesion; (v) financial matters that may impact on infrastructure development”.

The Chairperson reassured the Committee that maintenance assumes and implies sustainable development.

Mr van der Westhuizen said he was still discontented with the lack of sustainable development mentioned in the Bill.

The Chairperson tried again to explain why it was lacking.

Mr van der Westhuizen said he would address his concerns at a later time. He then proposed there be another subclause, (o), drafted to include funding options.

The DG said that s4(g)(v) addresses financial matters. The Council is to “(g) identify (v) financial matters that may impact on infrastructure development.

The Chairperson had a minor follow up comment on sources of funding.

The DG said that they need to ensure the Council does not take the responsibility of the Treasury over budget.

Mr Mabasa proposed to add “maintenance” to (g)(v) after “infrastructure development”.

Ms Tsotetsi said she did not think this was necessary.

Ms D Chili (ANC) was concerned about women not being mentioned (g)(iii).

Mr Beukman answered that s4(l) discussed it.

The Chairperson clarified that this discusses it in reference to SIPs.

Mr Beukman clarified that they are not saying the same thing.

Ms Tsotetsi answered that s4(l) involves economics and capacity building.

The DG said s4(l) deals with different aspects.

The Chairperson added that g(iii) is not exclusive. She suggested the Committee move on to Clause 5.

Mr van der Westhuizen asked who approves the infrastructure plan. Some sort of report needs to given to Parliament.

The Chairperson asked if it was approved by the Cabinet.

The DG answered that page 7 says that this Bill coordinates with the national infrastructure plan and Clause 4 covers it as well.

The Chairperson asked if the infrastructure plan is adopted by Cabinet, if it was a procedural matter, and if the Committee addressing a new issue.

The DG answered that the definition requires it to be adopted by the Commission.

The Chairperson asked why that was.

The DG answered that it was their function to deal with infrastructure and the SIPs.

Mr van der Westhuizen said that the document says Commission but the DG says Cabinet.

The Chairperson said the plan was adopted before any legislation was proposed. The President forms the Cabinet and is therefore involved.

Mr Mohai asked if there was a contradiction.

The Chairperson furthered asked if the PICC is a body of the Cabinet. Does it report to the President or does everything end at the PICC level? What is the decision-making process?

The DG answered that the PICC answers to Cabinet.

The Chairperson asked if it was a structure or is it decision-making.

The DG replied that they all go through Cabinet meetings where they are approved.

The Chairperson asked if everything that the PICC does, went through Cabinet.

The DG responded that it was uncertain as it depends on the issue. S4(c) was important to understand for the infrastructure plan.

Mr van der Westhuizen was concerned that the Committee was giving primacy to metro areas over rural ones. The Committee represents metro, the President represents rural. He wanted to see Cabinet as highest in the decision-making hierarchy.

Mr Mohai stated that the Council is there to approve. His main concern was about implementation.

The Chairperson said that the Cabinet, chosen by the President, makes the decisions (approvals) and that is what the strategic infrastructure plan was intended to do and why it was presented.

Mr Smuts said that both the Cabinet and the Commission make decisions. Cabinet implements the decisions it makes, though.

A Department official said it was not the PICC but the President that would have power, along with Cabinet.

Mr Motau reiterated his concern about the future and not considering only the here and now [next comment inaudible].

The Chairperson said his comment did not make sense. He understood that he was confused and concerned but that they needed to press forward. If need be, the Bill can be amended.

Mr Mohai thanked the Department and agreed with their explanation.

The Chairperson addressed the DA's concerns, saying she was not ignoring them, but noted that just because they have concerns does not mean that the Committee will give them the attention they want.

Clause 5: Expropriation of Land by Commission
Mr Motau asked if the Committee could agree that this Bill complied with the Expropriation Act.

A Department official stated that (3)(a) and (b) are an exception to the Expropriation Act: (a) is saying in addition to public purpose – if you put in an “and” it will only be in the public interest . He said these are not expropriations of private interest.

Clause 6: Management Committee
Mr Motau wanted to include proportional representation from each sphere of government in s6(2), giving a complex reason for this.

The Chairperson said she could not follow what he was saying.

Mr Beukman asked if Mr Motau wanted a congress for everything.

Mr Mabasa agreed with Mr Beukman.

The Chairperson moved to Clause 7

Mr van der Westhuizen returned to Clause 6, wanting it to mention the private sector and other institutions.

Mr Mabasa said that they were well expressed at high levels and that they should continue.

Clause 7: Requirements for strategic integrated projects and designations of SIP Chairpersons
Mr van der Westhuizen said there needs to be criteria for projects to qualify and there is too much ambiguity as to how they qualify. He wanted more checks and balances, saying that the existing decision-making process was not enough.

The Chairperson asked the Committee if they wished to address this concern. There was little response so she proceeded to explain that the criteria are explicit and that they had always been there.

Mr van der Westhuizen insisted that the criteria were ambiguous and that there needed to be environmental qualifications. 

Ms Tsotetsi asked him to repeat his proposal.

Mr van der Westhuizen said he wanted s7(1)(b)(i) to include environment in between economic and social and replace “or” with “and”: so it read: “It would be of significant economic, environmental and social importance to the Republic”.

The Chairperson asked what he meant by environment and how he would propose it to be implemented.

Mr van der Westhuizen said he wanted to ensure that projects do not negatively impact the environment.

The Chairperson said that there are environmental criteria.

The Chairperson then determined that the majority of the Committee did not agree with Mr van der Westhuizen’s inclinations.

Mr Motau was “amazed” by the vast exclusion of environmental concerns and insisted that the Constitution written 20 years ago would not support this Bill.

The Chairperson reassured the DA Committee members that it does not have to be everywhere because it was included in the Constitution.

The Chairperson said that there was no need to clarify items which are already specified, especially the environment.

Mr Smuts noted that at the end of s7(3) “project” should read “infrastructure” instead.

The Chairperson asked if the Committee agreed to this.

Mr van der Westhuizen jokingly said that although they had not supported any of the DA positions, it would support this proposal. He also proposed that a register system should be implemented so that the status of projects could be followed.

The Chairperson asked if it should be managed according to the Construction Industry Development Board (CIDB) Act.

Mr Motau said that the construction industry is heavily regulated and that they should not leave the SIPs out of the loop.

The Chairperson supported this proposal but asked how it would be managed.

Mr van der Westhuizen asked if they could answer that tomorrow.

Mr Motau said that if it is construction then it will follow construction criteria anyway, which has a register system.

The DG said that the National Infrastructure Plan (NIP) projects are registered already. As projects are completed, the National Infrastructure Plan automatically updates their status.

The Chairperson expressed her concern for “white elephants” and wanted to prevent them. She was worried that such intertwining would lead to unidentified projects.

The DG responded that NIP projects consist of various infrastructure projects. It was important to remember that each project is overseen by its respective department. She concluded that it was important to understand how the NIP was designed.

The Chairperson emphasised the need to know the status of projects. Many committee members were concerned about maintenance. They must address knowing what is completed and what is not, before addressing maintenance.

The DG said that each department has an infrastructure plan it has to adhere to. There is a check and balance with the individual plans of departments and the NIP.

The Chairperson was concerned about maintenance of both projects and registering programs.

A Department official reassured the Committee that planning was the essential element which determines how maintenance plays out: good planning means good maintenance.

The Chairperson adjourned the meeting.