ATC230615: Report of the Portfolio Committee on Public Works and Infrastructure on a petition tabled by Ms T Bodlani, Democratic Alliance, considered and adopted 14 June 2023
Report of the Portfolio Committee on Public Works and Infrastructure on a petition tabled by Ms T Bodlani, Democratic Alliance, considered and adopted 14 June 2023
The Portfolio Committee on Public Works and Infrastructure, received the petition published in the Announcements, Tabling’s, and Committee Reports (ATC) dated 18 May 2022 lodged by Hon Ms T Bodlani, Member of Parliament (MP) for the Democratic Alliance (DA), calling on the Assembly to:
“Request the City of Ekurhuleni to investigate the transfer of the ownership of the property where the Brackendowns Police Station is located to the Department of Public Works and Infrastructure; to enable the South African Police Service to build a suitable and permanent police station.”
Having considered the petition and emerging information from the City of Ekhuruleni (CoE), Department of Public Works and Infrastructure (DPWI) and the South African Police Service (SAPS) on 14 June 2023, the committee noted that a number of actions are required prior to the requested transfer can be completed.
The committee therefore set out investigative, corrective, and dispute resolution actions that the executive authority of the DPWI as custodian of government property needs to lead.
The committee must follow up on these actions as a precursor before the matter is put before the National Assembly for processing. In its conclusion this report therefore informs the National Assembly of recommendations that it puts to the executive authority for action.
The committee reports as follows:
The petition requests an investigation into the transfer of ownership of state property to enable the construction of a police station. On 18 May 2022 the Speaker tabled and referred the petition to the Portfolio Committee on Public Works (the Committee) as per the stated Rules of the National Assembly.
Processing the Petition
This report is based on information collected over three meetings. The aim was to collect information, identify constraints, make observations, and assist the relevant parties with recommended actions to ensure the requested investigation, to transfer the identified property at Erf 3231 Brackendowns Extension 5 in the jurisdiction of the City of Ekhuruleni (CoE).
- Outcomes of three Meetings
- The First Meeting - 22 February 2023:
The Committee met to collect the relevant information from the petitioner (MP Bodlani), and the Department of Public Works and Infrastructure (DPWI). The Committee noted that the information lacked the necessary detail that was required for the National Assembly to process the petition. This related to debt that the DPWI allegedly owed to the CoE.
Members made the following recommendations to process the matter:
- Full disclosure was required from the DPWI to the Committee regarding whether it owed service fees to the CoE related to Erf 3231 Brackendowns Extension 5 where the current police station is located.
- The Minister of DPWI and the Minister of Police needed to urgently meet to find a solution to this problem of where a suitable police station could be located that would meet the needs of the community.
- The DPWI must ensure that it properly complied with the Government Immovable Asset Management Act (GIAMA) (No 19 of 2007) and the completion of User Immovable Asset Management Plans (UIAMPs) per building rather than bulk UIAMPs per service delivery client department; this should be part of the standard operating procedure for the DPWI/PMTE lease unit when it draws up lease contracts between DPWI and clients/users departments.
- The Second Meeting - 17 May 2023
The Committee met with the DPWI, the South African Police Service (SAPS), and the City of Ekhuruleni (CoE) to collect information about alleged debt as an initial step to processing the matter raised in the petition. The Committee wanted to ensure that the three relevant parties collaborated to find a solution to the matter that constrained safety and security service delivery to the community.
In this meeting the Committee was disappointed that the DPWI did not send its presentation covering the work it was instructed to complete to process the matter. This led to the information from the CoE and the SAPS being the only information presented to the Committee. In spite of the absence of the DPWI presentation, the Committee deliberated with the DPWI on related matters. This assisted to consolidate the situation and to identify matters as follows:
Matters that Emerged
DPWI Debt to the City of Ekhuruleni (CoE)
The CoE repeated the claim made in the meeting dated 22 February 2023 that the DPWI as tenant remained in arrears; this time the amount stated increased from R 1 434 656.61 (as at 30 June 2022) to the sum of R 1 804 340,00 (as at May 2023).
DPWI No Debt - Paid CoE in Lump Sum
The DPWI paid for all properties per municipal area in a lump sum. It stated that this was a ‘how the payment system worked.’ This practice meant that the CoE could not identify the specific amounts owing for this specific lease for Erf 3231 Brackendowns Extension 5 where the current police station is located. In addition, it came to light that the DPWI processed payments to more than one account of the CoE.
Possible Steps towards Resolution - CoE Appeals to DPWI
Provide Proof of Payments on Erf 3231 Extension 5:
The City appealed to the DPWI to send proof of payments per property so that it could identify the rentals related to this account. As the DPWI claimed that it paid all debt of all properties that it used in Ekhuruleni in a lump sum to the City Council, it was crucial as a first step that the DPWI send the City a breakdown of all payments that they made into its account. This would enable the City to allocate the amount owed to this specific lease account for Erf 3231 Brackendowns Extension 5. In the case of NDPW still owing any outstanding rental arrears (the amount stated of R1.8m) must then be paid.
Land Transfer Process:
With regards to processing the transfer of land to assist the construction of a fit-for-purpose police station, the CoE explained that the property could be disposed of by means of what it referred to as a “Land Exchange Process”. This required a precursor that all debt owed on such a property and land parcel be fully paid up. A Permission to Occupy (PTO) could be agreed to once this was done.
Outcomes - Matters to Resolve:
1.2.1. Establish Certainty on Debt:
Once certainty had been established on the issue of debt or not, the DPWI, CoE, and where relevant, the provincial government could sign the Memorandum of Understanding (MoU).
1.2.2. CoE Council Resolution - Sign the MoU with DPWI:
The next step would be for the CoE to officially, through a Council resolution, agree to the signed MoU between the DPWI, the provincial government and the CoE to transfer land parcel Erf 3231 Brackendowns Ext 5 - as identified in the petition for safety and security service delivery purposes.
1.2.3. Proactive Steps to Facilitate Services to KwaThema
In order to facilitate similar issues in future, the City recommended that it entered into an MoU with DPWI as soon as possible so that any future land transfers, disposals and leases can be processed in mutually understandable manners. It also recommended that DPWI should allocate a specific official to liaise with the City on a regular basis regarding their accounts.
CoE Further Appeal - Urgent Needs of KwaThema
The City stated that although the current matter pertains to Erf 3231 Brackendowns Extension 5 located geographically in Alberton, there were similar service delivery matters that affected the area of KwaThema that could also be resolved through land transfers. If DPWI could commit to this site, it could benefit the community of KwaThema in the near future.
1.2.4. DPWI - Custodian of State Property - Act on Your Responsibility
It remains the responsibility of the DPWI as custodian of state property to ensure that they provide land that is almost equal to the subject property in size and value. The CoE stated that it was cooperating very well with the SAPS on the current matter. It found working with DPWI difficult as it was non-responsive.
1.2.5. CoE Offer - Permission To Occupy (PTO)
As a token of its commitment to collaborate and assist the DPWI as a sister-department the CoE was prepared to issue a Permission To Occupy (PTO) valid for three months to allow them to do all the necessary investigations related to the property. The process of Investment Analysis (which DPWI stated it was busy with over the past five years) should be fast-tracked in order to ensure a speedy resolution of the issue at hand.
- The Third Meeting - 30 May 2023
The Committee followed up on all issues with the focused objective of finding actionable recommendations for its Report to the National Assembly on the phased transfer of the property on Erf 3231 Extension 5 for the construction of a fit-for-purpose police station.
This meeting would also get the presentation that the DPWI did not make in the meeting scheduled for 17 May 2023.
In this final meeting the focus was on actionable recommendations that would assist the purpose of the petition which was to ensure a report to the National Assembly on the transfer of suitable property for a police station that could properly provide safety and security services.
The outcomes of this meeting were as follows:
- The Lease of the Property at Erf 3231 Brackendowns (The Current Police Station)
The CoE provided evidence that this lease agreement was entered into on 11 June 1991 between the erstwhile Alberton Town Council (now City of Ekurhuleni) and the National Government of the Republic of South Africa (presently National Department of Public Works).
The initial lease period was for 5 years. The contract stated that if the lease was to expire and was not renewed for a specified period while the DPWI continued to occupy the premises, then the lease would continue until the expiration of twelve calendar months after the date of written notice by one party to the other. The lease expired on 31 May 1996. No new agreement was entered into since the expiry of the initial lease.
CoE records further showed that due to the non-payment of arrears the lease was terminated on 30 June 2016. As in the meeting of 22 February 2023, the CoE repeated that the DPWI remained in arrears.
On 29 August 2022, an in loco inspection was undertaken by the City of Ekurhuleni’s Real Estate Department to inspect the property in response to a query received from the local Ward Councilor. The aim was to ensure that it was in a position to comment on the possibility and viability of disposing the property (Erf 3231 Brackendowns Extension 5) to the Department of Public Works and Infrastructure (DPWI) to enable the SAPS to build a permanent police station on the property. It is important to note that this is the same purpose as stated in the petition in the name of Hon Bodlani (MP).
- The Department of Public Works and Infrastructure (DPWI)
In response, the DPWI presented as follows on Erf 3231 Brackendowns Police Station:
- A valid lease remained in place between DPWI and the CoE from 1 April 2019 to 31 March 2028, at the monthly rental of R24 537.29 with an annual escalation of 7% (copy of the lease agreement was shared with CoE). The total extent of the police station is 3 023m,² DPWI has been processing payment to CoE on a monthly basis in line with the above lease contract.
- Regarding the alleged debt owed, DPWI and CoE have agreed to convene an urgent meeting set for 23 May 2023 in order to assist the CoE in allocating the rental payments.
- The Immovable Asset Register (IAR) of the DPWI confirmed that Portion 1 and 2 of Erf 3231 Brackendowns Police Station, Alberton was erroneously transferred to CoE as part of Regulation 293 properties when townships were devolved to local municipalities.
- DPWI was certain that it owed no debt to Ekurhuleni Municipality. It noted that the challenge might be that the CoE might be receiving money but that it is unable to allocate the payments to the relevant account. DPWI makes bulk payments to all properties in a municipal area as its payment system does not capture the payee’s reference number.
- DPWI wrote to SAPS enquiring if they (SAPS) would issue an instruction for DPWI to acquire the current Police Station to enable the construction of suitable and permanent Police Station. It was awaiting an official response from SAPS.
- The South African Police Services (SAPS)
In response, the SAPS stated as precursor that the delivery of a new police station was a long-term process that could not be fast-tracked due to dependencies on external stakeholders. Its presentation laid this out as follows:
- The Government Immovable Asset Management Act (GIAMA) (Act No 19 of 2007) mandates the DPWI to facilitate the acquisition of accommodation for all departments. The devolution of custodial functions to client departments in terms of the signed MoU excluded the leasing of facilities for any form of accommodation needs.
- The condition of the SAPS facility at Erf 3231 Brackendowns Extension 5 had deteriorated over the years of occupation due to neglected maintenance. This was raised with the DPWI.
- In 2017 the SAPS submitted a request to the DPWI for the purchasing of the leased facility from the CoE. The request was underpinned by the fact that upon the finalisation of the purchasing of the facility, the SAPS would utilise its capital/planned maintenance budget and bring the station to the desired condition.
- Due to non-response of DPWI the attempted purchasing of the facility stalled. The SAPS was left with no option but to activate a process for the procurement of an alternative accommodation in 2021 but no tangible progress had been achieved.
- The police station at Erf 3231 Brackendowns Extension 5 consisted of a small two room brick and mortar building accommodating the Community Service Centre with inadequate ablution and detention facilities, the lack of proper detention facilities (cells) necessitated detainees to be transported to neighbouring stations which impacted negatively on service delivery.
- The rest of the Police Station consisted of six park homes and prefabricated structures to accommodate the different functions performed by the SAPS; two of the park homes were rented from Kwikspace and were in a relative good working state; the remaining four state owned park homes are in a poor state.
- There were no shelters or awnings in front of the park home office doors which often resulted in flooding of the offices during rainy periods. The Police Station was unable to cater for disabled members of the community as there was no ramp or railing provided; accessing park home offices; due to the lack of a back-up generator the facility struggles during load shedding.
- The DPWI was curtailed from doing renovations as the premises was owned by the CoE.
Having collected information over these three meetings from the petitioner, the City of Ekurhuleni, the DPWI, and the SAPS, the committee observed the following:
2.1. Disputed Ownership of Erf 3231 Brackendowns Police Station
The revelation made in the third meeting dated 30 May 2023 by the DPWI that the Immovable Asset Register showed that the property was erroneously transferred to the CoE required urgent attention from the Minister of Public Works and Infrastructure.
The matter of ownership of Erf 3231 Extension 5 raised serious questions regarding the alleged debt as it seemed as if the DPWI followed an invalid lease contract and paid debt to the CoE on its own property.
If this could be established as a fact in legal terms, then the DPWI did not require the Council of CoE to make a decision on a Permission to Occupy to construct a SAPS station on Erf 3231 Extension 5.
As it was a matter to be addressed by the Minster of Public Works and Infrastructure, it was advisable for the administration of the Council of Ekhuruleni and DPWI to initiate the necessary legal processes to transfer the property to DPWI so that the needs of the community could be addressed. A report be provided to the PC on PWI on a quarterly basis until completion of the project so that it remained updated on the progress to satisfy the community’s safety and security needs.
- Council of CoE to Process Permission to Occupy and Build (PTOB)
Fully compliant legal transfer processes towards PTOB to be followed in the Council of the CoE, documented, and recorded to facilitate transfer of the property to DPWI and to prevent unnecessary constraints.
- Scope of Works, Statement of Needs - Client and Custodian
The DPWI as custodian and SAPS as client department to initiate the process of size and specific needs of the police station per service section to ensure that the community’s safety and security needs are fulfilled.
- Initiate proactive work in similar action steps for KwaThema Community
DPWI, CoE, and SAPS to initiate similar processes to ensure a fit-for-purpose SAPS police station for the KwaThema community.
The committee recommends that the Minister of Public Works and Infrastructure:
3.1. Investigate Erroneous Transfer of Property - Resolve the Debt Issue
In case of the erroneous transfer of Erf 3231 Extension 5 having caused the PMTE/DPWI to have paid rental to the CoE for its own property over a number of years, funds previously paid may in fact need to be paid back to the DPWI. This places an unnecessary burden on the Council of the CoE and may require further work at the level of the executive authorities of national, provincial and municipal levels of this government.
In case this matter becomes the cause of dispute, the matter be dealt with in strict accordance with the principles as set out in chapter 3 of the Constitution, National Treasury guidelines, and following the dispute resolution processes set out in the Intergovernmental Relations Framework Act (IGRFA) (Act No. 13 of 2005).
- Address Weaknesses in DPWI Financial Record System:
The matter of this petition raised possible weaknesses in the financial record system of the DPWI. This requires urgent corrective attention. Instead of the DPWI making bulk payments to municipalities, its financial recording system needed to generate records that showed precisely which properties in the municipal jurisdiction it paid fees for, with adequate information of what it paid for.
This would assist a proper breakdown of all payments that DPWI might have made erroneously into the account for Erf 3231 Brackendowns Extension 5. This is a precursor that would remove possible constraints to the action steps to enable the future development of Erf 3231 Brackendowns Extension 5 for the safety and security needs of the community.
In the probable case of PMTE/DPWI still owing any outstanding rental arrears (the amount stated of R1.8m), such had to be placed on official record for further steps towards resolution as in 1 above.
- Transfer of Land Erf 3231 to DPWI:
A finding by the Minster of the DPWI that there was no erroneous transfer, would provide a platform of certainty to follow the steps towards ascertaining debt, the outstanding amount, and agreements such as the provincial government signing a Memorandum of Understanding (MoU) with the two relevant parties (DPWI and CoE).
The next step would then be for the Council of the CoE to officially agree to the signed MoU between the DPWI, the provincial government and the CoE for the transfer land parcel Erf 3231 Brackendowns Extension 5 - as identified in the petition for safety and security service delivery purposes.
- DPWI Lack of Cooperation as Custodian
The lack of cooperation of the DPWI as Custodian of government property as reported in the three meetings by the CoE and the SAPS is a familiar echo from most client departments. The executive authority of Public Works and Infrastructure needs to urgently address the administration and ensure that the DPWI complies fully with all laws in the legislative framework.
Regarding the matter at hand, in case land parcel Erf 3231 Brackendowns Extension 5 is found unsuitable for the intended purpose as stated in the petition, the DPWI needs to use the Immovable Asset Register and identify and find land that is almost equal to the subject property in size and value.
- Need for Investment Analysis - Proactive Action to Include KwaThema
Drive and fast-track the process of Investment Analysis (which DPWI stated it was busy with over the past five years) in order to ensure a speedy resolution of Erf 3231 and to include the safety and security needs analysis of KwaThema with the SAPS.
Report to be noted.