DPWI legislation status report; with Deputy Minister

Meeting report

The Chairperson observed that 25 May was celebrated as a public holiday in many African countries. It was the date of the founding of the Organisation of African Unity (OAU) in 1963. South Africans, too, celebrated it as a day to remember that they were Africans, even if it was not an official public holiday. She stressed that the Committee wanted to see actual progress on the Public Works and Infrastructure Bill, and it would not accept another White Paper. She invited the Deputy Minister of Public Works and Infrastructure, Ms Noxolo Kiviet, to make opening remarks.

Opening remarks by Deputy Minister
Deputy Minister Kiviet agreed that South Africans should embrace 25 May as Africa Day. She also agreed that another White Paper on Public Works would be unacceptable. The Department of Public Works and Infrastructure (DPWI) needed a unified legislative foundation for all activities. She apologised for sending the Department’s presentation at a late hour. She noted that although the legislation under discussion was administrative, it still needed to support the country’s constitutional objectives.

DPWI briefing on the status of DPWI legislative processes, including legislation regulating its entities
Mr Alec Moemi, acting Director-General, DPWI, confirmed that the Public Works Bill, and Expropriation Bill, had been highlighted for fast-tracking. He asked Mr Molatelo Mohwasa, acting Deputy Director-General: Property and Construction Industry Policy and Research, to deliver the Department’s presentation.

Mr Mohwasa explained that the development of draft legislation to be tabled in Parliament involved four key processes: research to inform policy position, approval of policy position, development of definitions of key terms and consultations. He then summarised progress on legislation development in four areas:

Public Works and Infrastructure Bill
A drafter had been appointed in May 2021, but after their work had proven unsatisfactory, a new drafter, Adv Uday Naidoo, was appointed in October 2021. A lot of the content of the 1997 and 1999 White Papers had since been achieved, which necessitated briefing Adv Naidoo on the Department’s current mandate and various other factors. The Department was bending over backwards to ensure that it had something to table before Cabinet in the current financial year.

Construction Industry Development Board (CIDB) Amendment Act
A draft Bill was sent to the Office of the Chief State Law Advisor, which had found some shortcomings in the draft. The Presidency had approved the socio-economic impact assessment (SEIA) and it was expected that the draft Bill would be submitted to Parliament before the end of 2022.

Agrément South Africa Act
The Act established Agrément South Africa as a juristic person independent of the Council for Scientific and Industrial Research (CSIR) in 2015. The Department was monitoring the Act's implementation, and currently, no reason to amend it had been identified.

Independent Development Trust (IDT)
The IDT was established in 1990 and has been regulated in terms of both the Trust Property Control Act (TPCA) and the Public Finance Management Act (PFMA) since 1999 as a Schedule 2 public entity. This had created serious institutional difficulties and Cabinet had finally resolved in 2021 to reconfigure it as a government component. The DPWI was developing a business case to identify the best institutional form for the IDT. It would only be known once the business case was complete whether this would require enabling legislation.

Discussion
Ms S Graham (DA) asked whether there would be any presentation on the draft memorandum on the initiation process of the Public Works and Infrastructure Bill that had been sent to the Committee.

Mr Mohwasa explained that Adv Naidoo had prepared the memorandum to demonstrate his understanding of the brief. He had not prepared a presentation on it but would be able to go through it if required.

The Chairperson did not think it would be necessary.

Deputy Minister Kiviet explained that the memorandum had been shared with the Committee to show that work on the Bill had begun. The Department was still engaging with its contents, and it would be tabled but for now, it was still work in progress, and a detailed engagement with it on a public platform might be premature.

Ms Graham observed that having read the memorandum, there seemed to be a certain resistance or hesitancy towards drafting the Bill and enabling the Department’s force and effect in the industry. The memorandum mentioned establishing a committee to discuss the Bill but a committee could not substitute for actual legislation. The DPWI needed to be empowered to address compliance and enforcement, which could not be done without enabling legislation.

Mr Mohwasa denied that there was any resistance to drafting the Bill. The Department was doing everything in its power to ensure that Adv Naidoo was able to draft a Bill that articulated the Department’s requirements. He noted that the drafter had to look at international examples of similar legislation and also had to take care that powers of provincial and municipal government were not usurped. Another pertinent question was whether the Expanded Public Works Programme (EPWP) needed to be based in legislation or whether it could be enabled directly through policy. Adv Naidoo was being very thorough.

Ms Graham thought that the presentation contained very little, if any, new information. It had also not mentioned the Council for the Built Environment (CBE) Amendment Act.

Mr Mohwasa replied that he was not aware that an update on the CBE Amendment Act had been expected. He reported that internal discussions on the CBE Act and a proposed Professional Councils Act was taking place because there was a need to look at the legislative framework of the CBE and the other built environment councils. One proposal was for the CBE to become a kind of “super council”, similar to the Health Professions Council of South Africa.

Ms Graham noted that the SEIA for the Expropriation Bill had been woefully inadequate. Who had been responsible for the SEIA of the CIDB Amendment Act? What had been its terms and conditions? The Committee needed to know that it was not just a cut-and-paste study like the one for the Expropriation Bill had been. The CIDB was the main vehicle for transformation within the construction sector, so the Amendment Act's impact would need to be looked at very closely to ensure that the Act was worthwhile.

Mr Mohwasa replied that the Department’s policy practitioners were responsible for the SEIA. It was developed based on thorough discussions in the national stakeholder forum of the CIDB, which included a wide range of industry players, including established and emerging contractors, the CIDB itself, and government departments engaged in construction projects.

Ms Graham recalled that the Expropriation Bill SEIA had only been made public after a Promotion of Access to Information Act (PAIA) request. This was unacceptable. As a general rule, SEIAs should be provided to the Committee at the same time as any legislation.

Mr Mohwasa replied that he had also been surprised that it had required a PAIA request to make the SEIA public. He understood that since the Presidency had approved it, it should not have been embargoed, especially given its importance to the public.

Ms Graham asked what shortcomings the State Law Advisor had found with the draft CIDB Amendment Act.

Mr Mohwasa replied that the shortcomings were minor. For example, one of the amendments was intended to clarify the appointment of the Chief Executive Officer (CEO). The State Law Advisor had questioned why the Minister and Cabinet should be involved in this appointment. He added that one of the Department’s first quarter targets for 2022/23 was to have the CIDB Amendment Act gazetted. 

Ms L Shabalala (ANC) did not want to get involved with the Department's administrative processes but was concerned about the outsourcing of drafting services. A structural problem arose when a non-employee failed to deliver. She assumed the Department would be involved throughout the drafting process and be aware of any shortcomings when they arose. She asked the Department to provide a programme of legislative development with timeframes.

Mr Mohwasa replied that appointing a drafter could be an intricate process. The Department engaged the State Advocate, who appointed a legal drafter. The Department then provided the drafter with terms of reference and scope and met with them regularly to check on the quality of the work being done. In the case of the Public Works and Infrastructure Bill, the fact that the first drafter had had to be replaced had had a knock-on effect on other deadlines.

Ms M Hicklin (DA) recalled the concerns she had raised in the National Assembly the day before about the lack of compliance reports between 2018 and 2021 on the massive budget of the CBE’s Public Protection, Policy and Legislation Programme. This was the same problem the Committee was dealing with in the case of the Public Works and Infrastructure Bill: policy was not being developed. She was concerned that the Department was big on words but scant on delivery. The presentation did not clarify when a draft Bill would be tabled.

The Chairperson said that she had read and re-read the presentation slides but had not found what she was looking for. The presentation was very disappointing. The Department often explained its inability to enforce rules or extract payments from client departments by reference to the absence of enabling legislation, but at the same time, it was not moving forward urgently with the Public Works and Infrastructure Bill. The presentation contained no new progress or even timelines. Did the Department enjoy the status quo, which allowed it to always explain its inaction? She was also frustrated by the slow progress being made on the CIDB Amendment Act. She instructed the officials present to convey her dissatisfaction with the briefing to the Minister.

Deputy Minister Kiviet noted the level of unhappiness with the contents of the presentation. The Ministry shared the Committee’s frustration, and she conceded that the absence of the Public Works and Infrastructure Bill did limit the Department’s ability to fulfil its mandate. However, she assured the Committee that the Department had not taken its foot off the pedal when it came to the Bill, but certain necessary processes were holding progress back.

Mr Moemi admitted that the delays in drafting the Bill were inordinate and noted the members’ dissatisfaction. Considerable progress had been made over the last few weeks. However, it was hoped that the momentum could be maintained. The availability of the drafter and the protracted consultations were factors that would limit the pace of drafting. He committed to providing the Committee with a timetable for each next stage of the process within a week.

The Deputy Minister confirmed that a timetable with milestones would be provided to the Committee.

Mr Mohwasa agreed with the comments made by the Deputy Minister and Director-General. In particular, he noted that consultations were a significant source of delays.

The Chairperson said that all the Committee could do was hope that the Bill would be tabled before the end of the current term. She read a paragraph from the African Union anthem, which called for lasting peace and justice on Earth in connection with a march calling for justice for Namhla Mtwa, who was alleged to have been abused and killed by her boyfriend.

The meeting was adjourned.