Built Environment Professions Bill (B53-2008): deliberations
Meeting Summary
The session produced intensive discussion and sometimes heated interchanges about comments and submissions received, and responses to these. During the course of deliberations, comments and submissions were interrogated, and trust issues were identified. The Department of Public Works pointed out to the Committee that some of the deprecating comments received, were based on misreading or misconstruction of clauses in the Bill. What emerged as the most contentious issue in the session was that of community representation on the council, especially as regards representatives not to be recruited from the Built Environment professions. The Democratic Alliance challenged this aspect of the Bill, and failed to be persuaded that Built Environment professional representation would not be compromised. They were also ill at ease with the reassurance that what the Bill wished to provide here was additional skills drawn from the community, which would ultimately benefit the Built Environment. The Democratic Alliance representative comments eventually provoked rebukes from the Chairperson. Eventually, after alleging that the Chair had prevented people from speaking during submission and deliberation, he left the meeting. Powers granted to the Minister in terms of the Bill, and implications for the universities were the other important areas. However, the latter received somewhat less attention on account of the stated undertaking by the Department to revise clauses where the South African Educational Authority and the South African Qualification Authority were involved.
Meeting report
Clause 5 — Recognition of voluntary associationsAs a follow-on to the meeting of 21 August, Mr Tebogo Malatji, Legal Services, Department of Public Works, proceeded to clause 5 of the Built Environment Professions Bill. The first submission touched upon concerned the clarification of criteria for the registration of Voluntary Associations. The response of the DPW was that it could not be dealt with in the Bill.
Ms C Ramotsamai (ANC) suggested that it be dealt with as a transitional arrangement.
Clause 5(10)
Mr Malatji dealt with the question of whether clause 30 dealt with the identification of work. If so, an submission claimed, it was out of line with 5(10). The DPW conceded that 5(10) was incorrectly placed under clause 5, which dealt primarily with the recognition of voluntary associations. The recognition that VAs had to be consulted in the definition of the scope of built environment professions, was restated in clause 30, which dealt with the definition of the scope of Built Environment (BE) professions. Mr Malatji suggested that clauses 5 and 30 had to be harmonised.
A legal advisor suggested that “acts contemplated in section 30” be added to clause 5, to refer to professional acts that identify a BE profession.
Ms Ramotsamai suggested that this issue be returned to.
Clause 6 — Constitution of Council
Mr Malatji presented the Committee with the submission that there was insufficient professional representation envisaged for the South African Council for the Built Environment (SACBE).
Ms Tobias asked for comment as to whether there was a danger that laypersons could dominate
the SACBE.
Ms Ramotsamai responded that this critical input reflected the thinking of the Engineering Council of South Africa (ECSA). She suggested that the DPW response to this claim be deemed adequate. Laypersons were indeed needed. She also indicated her assent to the DPW position that not all community representatives had to be BE professionals, on account of the fact that the Council would require other types of expertise, for instance finance and legal skills.
Ms N Ngcenwane (ANC) agreed with this view. She noted the experience of bodies like the South African Railways, where the skills of engineers only had proved inadequate.
Ms Tobias noted that there were already more professionals in the SACBE than envisaged. Other skills were needed. The political environment was also important for BE projects. Skills additional to BE professional skills would make it possible to build good teams.
Mr L Blanche (DA) ventured that officials from other departments represented on the council, would posess the legal and finance skills needed.
Ms Tobias responded that this issue be debated yet again. She insisted that BE professionals could not be counted upon to have finance skills. She asked Mr Blanche if he, as a former engineering professional, had legal skills. Professionals with advanced training tended to be specialists. Or did he mean that there should be multitasking?
Mr L Maduma (ANC) stated that in the interests of efficiency, qualified and committed people had to be brought together who were specialists in their chosen fields. Mr Blanche may have meant that BE professionals had a basic working knowledge of finance. But that did not make them highly competent. It had been agreed that a variety of skills would have an enhancing effect. If a dispute in Council had to occur, and no-one had a sound legal background, outside help would have to be called in, perhaps at considerable cost. He was of the opinion that Mr Blanche was headed in a retrograde direction.
Mr Blanche again questioned the rationale for seeking expertise in the community. He insisted that community representatives had to be drawn from the BE professions. Other statutory bodies could provide legal and finance skills.
Ms Tobias referred the Committee to the Memorandum on the Objects of the Built Environment Professions Bill, 2008. She pointed out shortcomings in the present regulatory model mentioned there, especially with regard to issues like access to professions, and transformation. The 2000 legislation had failed. Gaps had been identified. BE professionals on their own had been unsuccessful. The Committee had arrived at certain resolutions on 14 November 2007. What of them?
Ms Zuraya Adhikarie, Parliamentary Legal Advisor, pointed out that out of 18 representatives on the council, only three were required who had skills other than BE.
Ms Tobias submitted that those who still found this too many, were deliberately misreading the legislation.
Mr Blanche said that he contemplated the withdrawal of his party, the Democratic Alliance, from further deliberations.
Ms Tobias stated that legal and finance skills were only cited as examples in the DPW response to submissions. The constitution of the Council was there to be viewed under clause 6. If Mr Blanche wanted to withdraw, he had to understand what this entailed. She would regret it if he withdrew on the basis of a misunderstanding.
Ms Adhikarie noted that the DPW responses to criticisms were not to be written into the Bill. At least twelve representatives on the Council would be BE specialists, with three drawn from education. Only three positions remained.
Ms Ramotsamai suggested that the Committee agree to the clause. It had been agreed upon that the Minister could include persons other than BE professionals. The Bill itself did not prescribe who this might be. Diversity was needed.
Ms Tobias insisted that the Mr Blanche be given a chance to indicate that he understood what was at stake.
Mr Blanche responded that the Chairperson and himself could at best agree to disagree.
Ms Tobias implored him not to disagree on principle. The deliberations had to be more than just party-political.
Mr Malatji returned to the submissions under discussion, namely the question as to what constitutes “good character”, as referred to in the Bill.
Mr Blanche remarked that the concept of good character featured in the appointment of officials like judges, of whom it was expected not to drink and drive, and then sit in judgment of drunken driving offences.
Ms Tobias parried that some officials might be ex-racist, but had to be given the benefit of the doubt. People could change. But what did it mean in this context?
Mr Malatji described character as the attributes of a person that defined who they were.
Ms Ramotsamai asked if certificates could be submitted that testified to good character.
Ms Tobias pointed out the problematic of deciding who were to submit such certificates. She suggested that it be taken to mean that a person is in all respects qualified to register for a profession or a position.
Regarding the submission received that a cap was placed on the number of professional members in the composition of the professional boards, Mr Blanche asked if there would be at least one person from every professional board.
Mr Malatji replied that such questions from the ranks of engineers had been anticipated. Clause 15(5) capped the number of professional members on professional boards at 20. However, given the variety of engineering types (nine), and the fact of registry at three levels, the DPW recognised that up to 30 representatives would be needed, and agreed to that number.
He then spoke to the submission that proposed community nominations to the council be made through the National Economic Development and Labour Council (NEDLAC). The DPW response to this was that the composition of NEDLAC was confined to government, labour and business, and that its influence would be limiting.
Ms Tobias asked what it was that NEDLAC was supposed to provide.
Ms N Ngcengwane (ANC) reminded the Committee that the suggestion about NEDLAC could be traced to the submission made by the Chamber of Mines, and had to be viewed against the background of the stance adopted by that body.
Ms Tobias remarked that the Minister could consult with NEDLAC if it was deemed necessary.
Ms Adhikarie suggested that the function of board composition be restricted to the Council.
Clause 7 — Disqualification, vacation of office, filling of vacancies and dissolution of council
Clause 7(5)
With regard to the submission that after dissolution the Minister must immediately appoint a new council, Mr Blanche proposed that a period of 30 days be allotted for the purpose.
Ms Ramotsamai agreed with Mr Blanche on this matter.
Ms Tobias requested that a longer period to be agreed upon, and 90 days was accepted by the Committee.
Clause 7(8), 7(7), 7(6), 7(5)
Mr Malatji pointed out that submissions about these sub-clauses of clause 7 showed concern about the role of the Minister. The DPW questioned the specific concerns regarding that role. The DPW response had been that the Minister would act in the best interest of the BE and the country. He identified this concern as representing yet another trust issue. It was common practice elsewhere for Ministers to appoint boards.
Mr N Magubane (ANC) asked how rural people would be reached, seeing that stakeholders were not based in the rural areas.
Ms Tobias replied that the Parliament’s Public Education Unit was supposed to educate people about legislation. It had to be popularised. The Committee had not solicited submissions from rural areas. The Bill had an urban bias. It would not affect the day to day lives of rural people. But it had to be explained to rural people.
Clause 8 — Chairperson and vice-chairperson
Mr Malatji noted another concern expressed about the role of the Minister was to be found in Clause 8(1). It stated that the Bill provided for the Minister to appoint the chair and vice chair, and to approve the appointment of the registrar. It was submitted that the opportunity of appointing the best registrar might be lost if the Minister appointed someone of a shared political persuasion over a person who would best benefit the industry.
Ms Tobias remarked that the comment implied that the Minister would necessarily appoint a political person. That was same type of viewpoint dealt with in the public hearings. The suggestions emanating from there, among others, that the Council appoint the chair and vice chair, she found nonsensical.
Mr Blanche protested that a board is normally allowed to appoint its own chair.
Ms Tobias replied that the board was appointed by the Minister. Why did Mr Blanche maintain that the board had to appoint its own chair?
Mr Blanche responded that when the chair was absent, the Bill stipulated that the board could appoint a chair. He asked why this could not happen from the outset.
Ms Tobias insisted that the appointment of chairpersons from the outside was common practice.
Mr Blanche retorted that self-appointment was the norm in democracies.
Ms Tobias put it to him that the ANC would like to know where he had learnt about democracy. It was not undemocratic for a minister to appoint a chair. She herself had been appointed chairperson of the Committee in a similar way.
Mr Blanche said that she had been appointed without him being consulted.
Ms Tobias reminded Mr Blanche of the fact that the ANC had superior numbers in Parliament and could walk over his party. Yet it desired debate. He had to at least concede the possibility that his position could be wrong. And he had to be clear about his reasons for disagreeing with appointments by the Minister.
Ms Ramotsamai remarked that Mr Blanche’s position resembled that of Engineering Council South Africa (ECSA), who resisted regulation, and insisted on their independence.
Clause 12 — Appointment of registrar and staff
Mr Malatji turned to the submission that the registrar should not have too much power - that responsibility should be delegated to a committee of the Council. The DPW response had been to reject this.
Ms Tobias posed the question as to what would happen if such a committee had to decide for itself. There had to be an identifiable person who could be held accountable.
Clause 15 — Establishment of professional boards
On the submission expressing concern that the Bill could remove the authority of universities as it granted boards the authority on education and training matters, Mr Malatji said that the DPW response was that that was for purposes of registration only. He went on to say that the DPW would be revising clauses where the South African educational authority was involved. There would be revision where the South African Qualifications Authority was concerned.
With reference to an submission about 15(5)(b), that provides for community representatives who are not registered professionals, Ms Tobias remarked that there was a need to learn about checks and balances. If all were professionals, none would be willing to work for another.
Mr Blanche related that he had witnessed a township that was established four years before on clay ground. After two years, the houses had developed cracks. He maintained that it was the result of having unqualified people on boards. A civic council had been approached to build 20 houses. They were built on clay. The ANC-controlled council had approved the project.
Ms Tobias put it to Mr Blanche that he was only prepared to see ANC failure. There had been a lack of environmental impact assessment. She asked him why he believed that committee members would necessarily be a bunch of illiterates from the townships. That six of them would be able to override the other twenty four members. His inputs in the discussion were made in bad faith.
Ms Ramotsamai said that boards that had made wrong decisions had not been informed by environmental impact studies. There had to be a movement away from a purely “developmentalist” approach. Community representatives could supply alternative viewpoints.
Clause 17 — Education and training
Ms Tobias expressed dismay at a comment received to the effect that clause 17(2) “is strange and written without regard to the way things work”. The clause related to educational institutions having to apply to a professional board for accreditation.
Mr Blanche asked if the objector had been before the Committee, or whether it had been a written submission. He stated that the Committee should have asked him what he meant. Was any information available?
Mr Malatji replied that it had not been aired during the hearings.
Ms Tobias asked if the comment implied that “the way things work” required that unqualified opportunists had to be allowed to continue with what they were doing.
Mr Blanche insisted that it was important to know who had made the comment. He alleged that Ms Tobias had disallowed certain people making statements.
Ms Tobias responded that the comment was from the University of Johannesburg, who had been invited to hearings and had absented themselves without apology.
Mr Blanche asked if Ms Tobias would allow departmental officials to answer him.
Ms Tobias replied that she would do so herself.
Mr Blanche left the meeting.
Ms Tobias remarked that there was a preconceived notion into which all disparaging comments fitted.
Mr Malatji echoed this by pointing out the assumption made in comments regarding clause 26 (Registration of persons who hold qualifications not prescribed for registration), namely that council would lack accreditation knowledge. He also indicated that some comments were based on misreading, for instance of clause 26(1) and (3), or misconstruction, as regards clause 28 (Registration of certain persons for education and training purposes). This clause was construed as appearing to infringe on the right of a university to determine who may teach. In fact the clause was concerned with creating a mechanism whereby a lecturer from another country, who had to demonstrate practical techniques, could obtain a professional registration for the purposes of lecturing.
Ms Tobias asked about appeal to a higher body in case of dissatisfaction with a council decision. There had been a comment that the Bill was silent on this.
Mr Malatji replied that the High Court could be approached, or the issue could be raised with the Chief State Legal Advisor.
With regard to comments made about clause 47 (Investigation of matters relating to education and training of certain persons), Ms Tobias noted a reluctance to accommodate regulation that resembled the refusal to grant the minister access to registration records.
Ms Adhikarie addressed the issue of power given to the Minister to regulate without consultation in certain instances. There had been a comment to the effect that this created scope for the abuse of power. She maintained that the power to regulate was a competence delegated to the Minister. Parliamentary committees might at times desire to make inputs, or offer insights. This could be incorporated into the Bill. She cautioned that any insistence on consultation with parliamentary committees would have to be formally worded.
Mr Malatji recommended that a limitation of liability clause for members of councils and boards be included. This would be to enable functionaries to discharge their duties without fear of being sued.
The meeting was adjourned.
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