SUBMISSION BY THE ENGINEERING COUNCIL OF SOUTH AFRICA TO THE PARLIAMENTARY PORTFOLIO COMMITTEE ON PUBLIC WORKS ON SPECIFIC CLAUSES OF THE BUILT ENVIRONMENT PROFESSIONS BILL

1 INTRODUCTION

1.1 The following submission is in addition to the written submissions addressed to the Parliamentary Portfolio Committee on Public Works, dated 18 July 2008 and the accompanying submission from the Engineering Council of South Africa (ECSA). The Portfolio Committee is requested to consider these submissions at its hearings on 12 and 13 August 2008 on the Built Environment Professions Bill. Some specific clauses of the Bill are analyzed and discussed in this submission.

2 THE BILL: DEFINITIONS

2.1 The definitions of “candidate” and “professional” deal with basically the same matter and logic dictates that the wording should be the same, as far as context allows. The wording is not the same and should be amended.

2.2 The definition of “registrar” should contain the definite article before “person” as this refers to the specific person that will occupy this post.

3 THE BILL: ESTABLISHMENT, OBJECTS AND FUNCTIONS OF COUNCIL AND PROFESSIONAL BOARDS (CHAPTER I)

6.1 In clause 3(b) reference is made to the “built environment industry”. As this Bill deals with the built environment professions, the word “industry” should be replaced with “professions”.

6.2 In clause 3(c) the word “professions” should be inserted after “… persons in the built environment …”.

6.3 In clause 4(1), paragraph (a) should be deleted as the needs and shortcomings of the present legislation are being met with the other functions mentioned in clause 4. 2

6.4 In clause 4(1)(q), paragraph (ii) should be deleted as a report on the status of built environment professions would form part of the annual report, provided for in paragraph (iii).

6.5 In terms of clause 6 (Constitution of council), ECSA will be 1 of 6 boards represented on a council of 18 members. That means a total representation for professionals of 33% on a council called into existence to promote the affairs of professionals in the built environment. That means the engineering profession will have a 5.5% representation on the board. Should the Minister decide to establish one board for two of the professions, thereby reducing the number of boards, the representation by professionals on the council will be reduced to 27%. If one considers that the engineering profession consists of 9 disciplines and that there are 4 registration categories for the profession, it would mean that the majority of disciplines and registration categories will not be represented on the council. It is submitted that clause 6 should be reformulated so as to provide that at least 60% of the representation on council be reserved for professionals. The present Act provides for 60% representation of professionals not in the service of the state. There is no reason why this percentage should be reduced. In the interest of the profession, the Bill should also provide that some of the community members on the council should also be registered in terms of the Act.

6.6 In clause 7(2), paragraph (f) should be deleted as the Minister is authorised in clause 7(8) to remove a person without the necessity to consult with anyone.

6.7 Clause 8(1) should be amended to allow the members of council to elect a chairperson and vice-chairperson from their number because this is the present position in terms of the Engineering Profession Act and it constitutes a healthy democratic principle.

6.8 Clause 9(2) provides for at least 2 meetings of the council per year. In view of the fact that council will have to decide on the affairs of 6 professional boards, it is submitted that 6 or more meetings per year would be needed for council to properly perform its functions.

6.9 Clause 12 provides for the appointment of one registrar for all the work of the council. The 6 existing professional councils each have a registrar or CEO. It is submitted that it will be physically impossible for one person to perform all the work pertaining to 3

the council and to act as the secretary of 6 boards. The Bill should provide for the appointment of 6 registrars or CEO’s to help carry the workload.

6.10 As far as clause 12(4) is concerned, the question can be asked why it is necessary for the Minister to approve the appointment or dismissal of the registrar. This function could better be left to the council.

6.11 The heading at clause 13 reads “Corporate finance and governance of council”. As the council to be created and the boards are not corporations but statutory bodies, it is suggested that the word “corporate” be deleted.

6.12 In clause 13(4) a deadline should be inserted by which council should submit the estimated income and expenditure statement for the following financial year. It is suggested that this deadline should be 6 months before the next financial year.

6.13 In clause 13(6) the duties of the registrar are set out. Paragraph (e) enjoins the registrar to take effective and appropriate steps to “(ii) prevent unauthorized, irregular and fruitless and wasteful expenditure and losses resulting from criminal conduct”. This is an obligation imposed by the Public Finance Management Act, 1999. The highlighted part does not appear from that Act and seems to limit the effectiveness of the provision. The question arises: “What if the loss results from negligence or incompetence?” It seems as if the registrar will then not be liable in terms of the PFMA. It is submitted that the highlighted words should be deleted to bring this provision in line with the PFMA.

6.14 Clause 13(9) makes the obstructing of the registrar or the council in “fulfilling any requirement” an offence. The words in parenthesis should rather be replaced by “performing its or his/her functions”. It is not clear whether intent is required for a finding of guilty in terms of this clause or whether negligence would suffice. If intent is required, it should clearly state so.

6.15 Clause 15 will have a profound effect on the existence of ECSA and the other 5 professional councils when it becomes law. ECSA will loose its legal personality and all its assets. Its loss of legal personality and independence will impact negatively on ECSA’s status in terms of international agreements like the Washington, Sydney and Dublin Accords, two international registers and a number of mutual exemption agreements. Furthermore, a problem of Constitutional Law arises with the loss of its 4

property. The property currently belongs to ECSA who holds it on behalf of its registered members. Should the property be transferred to the SACBE in terms of clause 51(4) without compensation, it will amount to a violation of section 25 of the Constitution of South Africa.

6.16 A further problem with clause 15 has to do with the composition of the board. Of this board, established especially for the engineering profession, engineering professionals will constitute a maximum of 20 members. A certain number of community representatives, who may not be registered professionals, will be appointed by the Minister. The Bill is silent on the number and no maximum is determined. There will also be representation by educational institutions and state departments. Again no number or maximum number is determined. There is therefore no guarantee in the Bill that engineering professionals will constitute the majority on their board. It is submitted that the Bill should be amended to allow for at least 60% representation by engineering professionals on their board. This is the present position in terms of the Engineering Profession Act and seems to be a healthy democratic principle. The Bill should also provide, in the interest of the profession, that some of the members of the community should be registered in terms of the Act.

6.17 The Bill also creates uncertainty as to which councils will be converted into boards and which will be combined with other councils to form new boards. A schedule, attached to the Bill, with the names and fields of discipline of the new boards would help to remove this uncertainty.

6.18 It is submitted that all the functions of the board, mentioned in clause 16(1) and (2), as far as they relate to engineering, are functions that should be exercised according to the peer judgment principle. They are therefore functions that fall entirely within the ambit of the particular board. ECSA submits that clause 16(3)(b) should be deleted as this sub-clause would allow council to interfere in what is essentially a matter for peer judgment.

7 THE BILL: EDUCATION, TRAINING AND REGISTRATION OF PROFESSIONALS (CHAPTER II)

7.1 Clause 18 deals with compulsory registration. Compulsory registration to practice in a built environment profession is only possible when the type of work peculiar to that 5

profession has been identified. No provision is made in the Bill for the process of identification of work. This matter will further be dealt with under clause 30. Clause 18 can be divided into 2 parts: sub-clauses (2) – (4) deal with the registration process; sub-clauses (1) and (5) deal with compulsory registration and the sanction for violation of this provision. It is submitted that the 2 matters should be kept apart. In order to qualify for registration, a person should have the necessary educational qualifications and practical training. The decision to register should be made by peers. Thereafter the registrar should do the necessary administrative work to have a person registered. It is submitted that this clause should be amended to give effect to these principles. Sub-clause (4) is confusing in the sense that it seems to provide for some kind of appeal against the decision not to register. In the normal course of events, the initiative to appeal lies with the applicant. The onus in this case seems to be on the registrar. No appeal procedure is prescribed. Another problem with this clause is that no reference is made to the specified categories of registration mentioned in section 18 of the Engineering Profession Act, 2000. Does this mean that the categories will fall away once this Bill becomes law?

7.2 Clause 19(5) provides for the removal of the name of a registered person from the register under certain circumstances. Clause 20 deals with exactly the same subject. This can cause endless problems as the 2 clauses overlap in some places and differ in others. In clause 20(1) the power is given to the registrar to remove a name from the register. This power should be exercised according to peer judgment principles and not left for a bureaucrat to decide on. No provision is made for an appeal against the decision to remove a name from the register. ECSA submits that it will serve justice better to include appeal provisions in this clause.

7.3 Clause 23(1) refers to “prima facie proof, in the absence of evidence to the contrary”. Prima facie means at first sight. Logically this clause means that if a person’s name does not appear on a copy of the register, at first sight such person is not registered. If evidence to contrary is obtained, another decision should be made, but then it is based on the new evidence and not on the prima facie evidence. The highlighted part is in contradiction with the words prima facie and should be deleted.

7.4 Clause 30 deals with the definition of the scope of built environment professions and in clause 31 ties this with registration to practice any of the built environment professions. This is confusing in 2 aspects: in order to define the scope of a profession, you have to identify the type of work that is being done in that profession. 6

Once you have identified the type of work peculiar to a profession, you have also defined the range or the extent of the profession, in other words, the “scope” of the profession. It is submitted that clause 30 should be amended to provide for the process of the identification of work. After such identification, the scope of a profession will automatically be defined.

7.5 A further problem following upon clause 30, are the references to registration in and the offences created by clauses 31, 32, 33 and 34. If one reads clause 18 together with clause 31, it is not clear whether a person should register once “in terms of this Act” (clause 18) or whether a person should register twice: in terms of clause 18 and in terms of clause 31 after the scope of the profession has been defined. It is submitted that the registration requirements should be brought under one provision. Clauses 18(1) and 33 also seem to overlap. A further problem, highlighted in paragraph 7.1 above, is that no provision is made for registration in anyone of the specified categories of registration. This will create much confusion in the engineering profession.

7.6 As far as the offences clauses are concerned, it is suggested that all the offences in terms of the Bill should be brought under one provision and moved to Chapter IV of the Bill. This concerns the offences created in terms of clauses 17(4), 18(5), 31(2) and 34. Clause 34(a) prohibits someone who is not registered to pretend to be registered, whilst clause 45(e) has the same prohibition but is not applicable to a person who is not registered. This is confusing. Clauses 21(3), 32(3) and 33 create prohibitions but do not provide for penalties when they are violated. Is this not necessary for the effective administration of legislation?

8 GENERAL AND SUPPLEMENTARY PROVISIONS (CHAPTER IV)

8.1 ECSA submits that, before the Minister exempts a juristic person or class of juristic persons from the operation of any of the provisions of the Bill I terms of clause 44, this decision should be endorsed by the relevant board concerned.

8.2 Clause 46, dealing with remuneration of unregistered persons is not clear in respect of the position of such persons working under the supervision of registered persons. This clause should be amended. 7

8.3 Clause 48 deals with the making of regulations. As most of the subjects deal with matters particular to the boards, it is submitted that the Minister should consult with the particular board before making regulations pertaining to that board. Clause 48(1) (a)(i) refers to the registration of candidates, but from the context it is clear that it purports to deal with the registration of students. ECSA submits that this provision should be deleted as it is not practicable to register students and this has never been done.

8.4 In clause 49 the power is given to council to make rules. Most of the subjects on which it may make rules, seem to be administrative matters. However, in terms of sub-clause (1)(e), the council may make regulations regarding qualifications which may be registered as additional qualifications. This is a matter that requires peer judgment and should not be done without the consent of the board.

8.5 Clause 51 deals with transitional provisions. It determines that the existing professional councils will continue to exist until the effective date, meaning the date of the first meeting of the SACBE council. The problem with this provision is that there is no provision in the Bill that at that moment the professional boards will come into existence to take over the duties, functions and responsibilities of the professional councils. There is a provision in sub-clause (2) that the councils must, within 30 days after the commencement of clause 15, invite nominations for appointment to the boards, but there is no guarantee that the boards will exist at the time of the first meeting of the council. This can cause endless administrative and legal problems.

9 CONCLUSION

9.1 Attention has been drawn to problems with some 39 clauses and sub-clauses of the Bill. In order not to take up too much time of the Portfolio Committee, other problems with the Bill have not been alluded to.

9.2 ECSA submits that this Bill is not ripe for passing into law. If it were to become law as it stands, it will not be in the best interest of the built environment professions or of South Africa, its economy and the safety of its inhabitants. ECSA requests that this Bill be referred back to the Department of Public Works with the request to consult widely and thoroughly on it and to create a committee of experts that can come up with a Bill that complies with the requirements of sound legislation.