Briefing by the Department of Public Works on legislation, status of the Construction and Property Charters and all other outstanding policies Presentation to the Portfolio Committee on Public Works by Acting DDG: Construction & Property Policy Regulation (Mandisa Fatyela-Lindie) 18 February 2014
Presentation outline: A. Legislation: A.1 Establishment of Agrèment South Africa as a Public Entity A.2 Review of Expropriation Act A.3 Built Environment Professions Proposed Policy A.4 Establishment of Independent Development Trust as a Public Entity. B. Construction Sector Charter Council C. Status of other outstanding Policies C.1 Immovable Asset Condition Assessment Guideline C.2 Prestige Norms and Standards
A: LEGISLATION A.1 ESTABLISHMENT OF AGRÈMENT SOUTH AFRICA AS A PUBLIC ENTITY
1. Introduction • Agrément South Africa (ASA) was established by the Minister of Public Works in 1969, through a delegated authority. • Its mandate is to “support and promote the process of integrated socio-economic development in South Africa as it relates to the construction industry by facilitating the introduction, application and utilisation of satisfactory innovation and technology development, in a manner which will add value to the process and by so doing enhance Agrément South Africa`s position as the internationally acknowledged, objective South African centre for the assessment and certification of innovative non-standardised construction products, systems, materials, components and processes, which are not fully covered by a South African Bureau of Standard standard or code of practice.”
2. ASA Current Objectives • Serve specifier and user interests by providing assurance of fitness-for-purpose and value for money of innovative, non-standardised construction technology as well as ongoing quality assurance; • Work with the construction sector to facilitate the introduction of cost effective innovative, non-standardised construction technology; • Disseminate correct, objective and relevant information to all concerned in respect of the technical, socio-economic, and regulatory aspects of innovative, non-standardised construction technology; • Support policy makers at all levels and minimize the risk associated with the use of innovations; • Support the application of the National Building Regulations;
ASA Current Objectives ..cont… • Maintain links with international peer organizations and support the South African construction industry in its export activities by facilitating the approval of South African innovative construction products into foreign countries; • Facilitate the acceptance of innovative products within the context of the government’s new priorities and policies; • Serves a national interest by being internationally acknowledged as an objective and independent South African centre serving the building and engineering communities by providing assurance to specifiers and users via technical approvals for the fitness-for-purpose of innovative, non-standardised construction technology.
3. Need to Establish ASA as a Public Entity • ASA’s lack of legal status:- • Dependent on Council for Scientific & Industrial Research (CSIR) to fulfill its administrative requirements and to manage its technical agency; • AG Report classified transfers to ASA Irregular Expenditure. • Draft ASA Business Case was developed motivating the establishment of ASA as a juristic person and submitted to the Joint Evaluation Committee (JEC) for approval in March 2013.
4. Business Case • Business Case: Format • situation analysis, • problem statement; • needs analysis; • service delivery options, • governance issues, and • recommendations on appropriate service delivery option.
5. Consultation • Purpose: • analyze the strengths, weaknesses, opportunities and threats that exist in the current mode of service delivery; • situation analysis; • determine whether: - any synergies exist between ASA and other public entities; - there is a duplication of ASA’s mandate with other public entities; and - there is a need for ASA to exist in its own independent space or whether ASA should reside within one of the other public entities.
6. Stakeholders • Department of Trade & Industry (the dti): Two entities with related but distinct mandates from ASA: • South African Bureau of Standards (SABS): • develops standards for existing products on market. • National Regulator of Compulsory Standards (NRCS): • sets and monitors compliance to compulsory standards. • Department of Human Settlement: • National Home Builders Registration Council: - protects home buyers against shoddy workmanship by home builders. • Dept. of Cooperative Governance and South African Local Government Association • supports ASA as certifier of “fit-for-purpose” non standardized building material and products.
Stakeholders ...cont… • Dept. of Science & Technology : • CSIR develops non-standardised materials & products, therefore cannot also certify; • DST recommends establishing synergies between ASA and the Technology Innovation Agency (TIA). • Council for the Built Environment: • Supports ASA proposals, given its own regulatory role over the built environment. • Construction Industry Development Board -Supports ASA proposals given its own regulatory role over the construction industry. • South African Revenue Service: • Recommends all non-standardised building materials and products imported into South Africa (SA) are compliant to ASA.
7. Consultation Outcome • Stakeholders in principle supported: • the need for ASA to retain its mandate and to continue to exist as a separate, independent organisation (in line with international trends); • a proposal for the extension of ASA’s mandate to include a regulatory function – Future Action. • DTI advised that ASA regulatory function should not infringe any provisions of World Trade Organisation Trade Agreements, to which South Africa is a signatory – this means a clear health, safety, or environmental reason for regulatory exclusion of an imported commodity is required.
8. Impact of Policy Position • Irregular expenditure concerns by the Auditor-General (AG) will be addressed with ASA fully functional as an independent entity. • ASA will be able to effectively promote the value of certification of non-standard construction materials & systems – thus promoting innovation, local manufacturing and job creation. • Increased availability and reliability of non-standard materials will impact on lowering construction costs for public and private sector. • Through international engagements, ASA will ensure SA assessment standards remain internationally accepted - thus facilitating SA exports of products, materials and systems.
9. Draft ASA Bill Draft ASA Bill addresses the following: • Objects of Agrément South Africa; • Powers and Functions; • Certification and Renewal of Certification Process; • Keeping of a Register; • Board of Agrément South Africa: • Composition, • Term of Office, • Disqualification & Vacation of Office, • Remuneration and allowances of members of Board, and • Conflict of interest of members of Board.
10. Current status • Cabinet approved that the draft ASA Bill, 2013 and its Memorandum on the Objects, be gazetted for public comment in December 2013. • Draft ASA Bill was gazetted on 15 January 2014 for public comment which closes on 17 February 2014. • Workshops on draft ASA Bill to be held during February 2014. • ASA Bill to be tabled in Parliament by September 2014.
The proposed Expropriation Bill seeks to align the Expropriation Act, 1975 with the Constitution, 1996 and to provide a common framework to guide the processes and procedures for expropriation of property by organs of state. • The Bill does not seek to interfere with the powers of expropriation conferred by specific legislation, but prescribes uniform procedures to be followed by all expropriating authorities when exercising their powers. • The Bill introduces certain measures that differ significantly from the existing Expropriation Act. Noteworthy is the recognition and compensation of unregistered rights in property in all expropriations.
The proposed Expropriation Bill confirms the power of the Minister of Public Works to expropriate property for purposes connected with the execution of his/her mandate. • The Bill does not grant expropriating powers to any other functionary, but rather prescribes uniform procedures to be followed by all expropriating authorities who derive their powers to expropriate from other pieces of legislation. • The aim is therefore to introduce consistency and uniformity in the way that organs of state undertake the expropriation of property.
In contrast to the Expropriation Act, 1975 the proposed Expropriation Bill embodies the constitutional principle of just administrative action by, amongst other measures – • providing for the publication of an intended or actual expropriation, incorporating the rationale for such expropriation; • providing for notices of an intended or actual expropriation, incorporating the rationale for such expropriation, to be served on or delivered to all known affected persons; and • affording interested parties an opportunity to raise objections and make representations to an expropriating authority, and requiring that authority to consider such submissions before taking a decision whether or not to proceed with an expropriation.
In the development of the Expropriation Bill, the Department sought advice from various prominent legal practitioners on specific constitutional and practical matters relating to expropriation. • The draft Bill was gazetted for comment in March 2013. Wide-ranging submissions were received from organised agriculture; commerce and industry; the financial sector; the legal fraternity; the property industry; professional associations; public entities; government departments and members of the public. • Following thorough consideration of the public comments, a revised draft Bill was submitted to NEDLAC. A joint Task Team of the Trade and Industry and Development Chambers has concluded its deliberations, with relatively few areas of disagreement recorded. There are, however, no areas of disagreement where Labour, Community and Business unanimously oppose any provision of the proposed Bill.
The implementation of the uniform procedures for expropriation proposed in the Bill should not have a significant impact on the staff structures of expropriating authorities. Some existing personnel may require initial training on the new procedures. • The Department of Public Works will establish capacity to provide guidance on the new uniform procedures to all expropriating authorities. • The Department will now be seeking Cabinet’s approval to table the Expropriation Bill in Parliament.
1. Introduction • Built Environment Professions (BEP) Bill was tabled in Parliament and withdrawn from the NCOP in 2008 – citing the need for further consultation. • Review of BEP was re-introduced in 2011. • Interactions between CBE, the Professional Councils and DPW culminated in the development of a new policy document titled “Policy Document on the Proposed Amendments of the Statutory Regulatory Framework of the Built Environment Professions”. • Policy document aims to review BEP based on the following three principles :- • Public protection, • Integrity of professions, and • Government policy objectives.
2. Challenges with the current regulatory system • Policy document put forward the following challenges identified in the BEP: • Poor cooperation between CBE and PC’s, • Poor oversight and lack of accountability by PC’s, • Inadequate governance regulations, • Lack of alignment to government policy planning, • Lack of transformation, • Gaps in the registration processes, • Cost of investigating complaints. • In addressing these challenges, various options were identified.
3. Option Analysis 3.1 A Single CBE with 6 Professional Boards • This option provides for the establishment of a “super council”. • Built Environment Professional Councils (BEPC) Acts will be repealed and BEPCs to be converted to Professional Boards accountable to the Council. • This option restructures the current system to provide standardised regulation for the built environment professions. • This option was not preferred by the BEPCs and Government (National Treasury and Department of Science and Technology).
Option Analysis … cont… 3.2 CBE and 6 Professional Councils (amending legislation) • This is the current situation. • Minister regulates BEPC and CBE – flat structure remains. • BEPC can report through CBE but cannot be accountable to CBE. • Amendment of Legislation is a tedious process. • This option largely maintains the status quo. • Option may not be ideal for the above reasons.
Option Analysis … cont… 3.3 Relocation of functions within DPW • CBE currently plays a promotional, facilitation and coordination role to BEPCs; • The functions be relocated within DPW. • Current Professional Councils legislation will be amended to address shortcomings. • This is a preferred option.
4. Preferred Option 4.1 Relocation of functions within DPW: • Authority derived directly from the Minister and not from the Council (CBE). • Functions of CBE ring-fenced within DPW: • BEPCs to report to the Minister; • Saving – Council fees; • Improved synergy within DPW – further cost saving; • Remove duplication in functions; and • DPW to ensure BEPCs give effect to the mandate. • Implementation of policies will ensure synergy with DPW. • Legislation: • Repeal CBE; • Amend Regulations for BEPC Acts.
5. Addressing current challenges • Alignment to government policy planning: • Empowered through a direct mandate from Minister – direct planning with DPW (Strategic Planning sessions). • Governance: • No competing interests or conflicting views in executing the mandate. • Accountability: • BEPCs to report directly to DPW. • Poor cooperation: • Enhance cooperation through amendment of BEPC legislation. • Oversight: • DPW in good stead to oversee alignment in the implementation of the legislation and to government priorities. • Governance matters firmly addressed. • Lack of Transformation: • DPW to drive transformation in the built environment. • Ensure consistent application of policies.
6. Current Status • In finalising the draft policy document, the following key stakeholders were consulted: • May 2013: CBE Council • June 2013 CBE Staff and BEPCs. • Draft BEP Policy will be gazetted for public comment by the end February 2014.
A.4: ESTABLISHMENT OF INDEPENDENT DEVELOPMENT TRUST AS A PUBLIC ENTITY (PROPOSED MANDATE)
1. Background • The Independent Development Trust (Trust Registration no. 669/91) was established in 1990, as an independent, civil society, temporary grant-making agency with a R2 billion Government endowment to be invested, with the returns to be utilised to achieve the IDT’s primary goal of enabling disadvantaged communities to access resources, and recognise and unlock their potential to continuously improve their quality of life. This was to be achieved together with strategic partners. • In March 1997, Cabinet endorsed a recommendation of a Cabinet Advisory Committee that, inter alia, “The IDT must be transformed into a government development agency that will implement projects which are commissioned by government departments. It must cease to be a civil society organization, an independent agency or a funding agency”. • With the establishment of the National Development Agency (NDA) in 1997, the IDT ‘handed over’ its funding agency role by way of a R100 million grant to the NDA. In the context of this new role, the IDT has implemented over 20,000 projects on behalf of the State since 1997.
Background … cont… • In October 2001, the Trust was amended to make provision for appointment of new Trustees; its goals and objectives to complement Government’s national development policies and priorities; and ensuring co-operation with Government, development agencies and the private sector. Its primary goal was to “use its resources together with strategic partners, in ways which in the opinion of the Trustees will best serve to enable poor communities in the Republic of South Africa to access resources and recognise and unlock their own potential, so as to continuously improve their quality of life”. • From 1998 to 2005, the IDT provided programme management services to Government, initially at no cost and later at a nominal fee. The no cost/nominal fee service offering was largely funded by capital endowment the IDT received in 1990 and the interest accrued thereon. • The IDT evolved from a granting making institution that funded qualifying community initiatives to the provision of programme management services that support Government’s social infrastructure delivery programmes. However, the formal mandate, positioning and structure of the IDT had not changed during these transitions.
2. IDT Strategic Objectives • To address the on-going need for a community-oriented development agency that is able to support the efforts of all spheres of Government with development specialists and expertise in implementation of projects at a community level. • To facilitate, contribute and integrate the efforts of all spheres of Government, and leverage efforts of the private sector and civil society in support of community development particularly in the delivery and maintenance of social infrastructure. • To contribute towards a long-term vision of a consolidated development agency which plays a programme and project management role for all of Government’s development initiatives, with a view of meeting long-term mutually reinforcing roles of economic, social and sustainable development. This includes facilitating development programmes within communities by setting development priorities, managing outcomes, tracking impact that will over time reduce dependency and enhancing self-reliance at a community level.
3. Problem Statement • A change in the IDT’s mandate in 1997 saw an increase in services offered to the State at no cost to the latter and with no adjustments to its funding from the fiscus. This adversely impacted on the IDT’s capital base. This was exacerbated by increasing overheads stemming from its growing portfolio of programmes and decreasing interest rates. • Financial modelling undertaken in 2006, indicated that the IDT’s grant would be exhausted by 2012/13. In light thereof, the IDT embarked on a course of securing its long-term future. The interventions pursued by the IDT in 2006, were two-fold. One sought to introduce a cost-recovery mechanism to a category of the IDT services (i.e. programme management) as part of a short-term intervention, while the other sought to initiate a process of developing a business case for the long-term sustainability, in accordance with the revised mandate of the organisation. • While the cost-recovery mechanism was implemented, it failed to generate sufficient revenue to ensure the IDT remains financially viable. Further, the business case process was never finalised as it did not address the IDT’s core function and its long-term financial sustainability.
Problem Statement …cont… • The current low level of spending by spheres of Government informs the need for the State to accelerate its capacity and ability to deliver social infrastructure. Hence it is vital to consolidate an institution specifically mandated to deliver social infrastructure for all spheres of Government to achieve the core outcomes of job creation and poverty alleviation. To maximize these outcomes and secure a sense of community ownership of these assets, the delivery of social infrastructure must actively involve community participation and responsibility for public assets. • In addition, Cabinet established the Presidential Infrastructure Coordinating Commission (PICC) to coordinate, integrate and accelerate implementation of infrastructure, and to develop a single common National Infrastructure Plan beyond one administration to avoid a stop-start pattern to the delivery of infrastructure. The IDT is currently acting as joint coordinator of the PICC’s Strategic Integrated Project (SIP13): National School Build Programme and it continues as an implementing agent of social infrastructure for a number of provincial and national Government departments.
4. Consultation process • Purpose: • to identify the strengths, weaknesses, opportunities of and threats to the IDT – current and future; • examine its delivery model; • establish whether synergies exist between the IDT and other State institutions; • determine whether a role exists for the IDT in the delivery of infrastructure. • Consultation sessions were planned for May and June 2013. While all stakeholders were contacted, not all were consulted. Some did not honour meetings and others were not available – consultations were held with 4 national departments, 16 provincial departments and 3 State institutions. • To supplement the consultation, a desktop analysis was undertaken of institutions with a similar mandate to the IDT.
Consultation process …cont… 4.4 Consultation list:
5. Consultation outcome • Identified the IDT’s market space as the provider of social infrastructure; • Proposed that the DPW: • responds to clients needs, a client needs; • allocates projects to the IDT for implementation; • plays an oversight role in the implementation of such projects; and • provides clients with feedback on the projects; • The IDT to become the implementing arm of the DPW for the provision of social infrastructure; and • The IDT to consider building internal capacity and skills to undertake projects to ensure cost savings to client departments.
6. Recommendations • Governance Schedule 3A: the preferred model, as the procurement process in a public entity will be quicker and will allow for quicker response in the delivery of projects. The IDT as a coordinator will complement the DPW in the delivery of social infrastructure by enhancing the DPW’s capacity and in turn advance the achievement of the national development objectives and thus enable the DPW to deliver on urgent and immediate infrastructure requirements. The IDT will enhance its programme and project management capacity to ensure speedy response in the delivery of projects on behalf of the DPW.
Recommendations…. cont….. • Mandate • Client Departments (national and provincial level) proposed that DPW take responsibility for all social infrastructure projects and allocates projects to IDT for implementation on its behalf. • DPW to play an oversight role in the execution of projects but will critically be responsible for issuing of certificates of completion – thus guaranteeing the quality of asset. An implementation protocol defining roles and responsibilities between DPW, IDT, client departments (including provincial DPWs) and possibly the Local Government. • The above will fortify the IDT as a delivery arm of the DPW focusing on provision of social infrastructure thus embed participation of local communities into the project (from concept to completion) to ensure communities derive maximum benefit from the delivery of the asset. • IDT as a Schedule 3A public entity will complement the DPW in the delivery of infrastructure by enhancing the DPW’s capacity and in turn advance the achievement of the national development objectives and thus enable the DPW to deliver on urgent and immediate infrastructure requirements.
Recommendations…. cont….. • Mandate … • DPW through this entity will better address the developmental gap in terms of poverty eradication at the community level and advance social facilitation with marginalised communities to ensure effective empowerment of communities to drive its development agenda, with a spread focus in the health, education and justice sectors. • IDT mandate as per Cabinet’s approval of 1997 remains unchanged, in so far as it supports all spheres of Government to implement national development agenda to the eradicate poverty, create employment, and the create sustainable and cohesive communities. • IDT will enable DPW to deliver on urgent and immediate infrastructure requirements and better address the developmental gap in terms of poverty eradication at community level and advance social facilitation with marginalised communities.
7. Current status • The Human Resources and Finance models are currently under development – estimated completion date: end March 2014. • Submission of completed IDT Business Case to the Joint Evaluation Committee (JEC) by mid-April 2014. • Submission to Cabinet for approval by end April 2014.
B: STATUS OF THE CHARTERS B.1 CONSTRUCTION CHARTER
Background and processes towards the gazette of the charter. • Gazetting of the Broad Based Black Economic Empowerment(BBBEE) Codes in 2007 and the framework for charters. • Signatories to the charter and the approval in June 2009. • Establishment of the Charter Council in 2010 and registration as a NPO. • Outline of the construction code targets and measurement period. • Broad Outline of CSCC (Members of EXCO). • Appointment of the Chief Executive Officer. • Finalization of the Baseline Study for purposes of annual reporting. • Progress in the appointment of the Chairperson. • Increasing compliance targets (Self Regulation). • Monitoring and evaluation going forward. • Public Engagement and Self Funding Model. • Challenges facing the Construction Industry.
1.1 Construction Sector Charter Council (CSCC) : • Established as the result of the gazette of the Construction Sector Codes in June 2009. • Registered as an NPO (October 2012) pursuant to the signature of the founding constitution by 16 (sixteen) of the 17 (seventeen) founding major commercial associations, industry bodies, including the National Department of Public Works. • As the monitoring and overseeing body of the construction sector code, the CSSC has the executive authority on all matters related to the interpretation, measurement and implementation of the construction code (as may, from time to time, be amended and reviewed). • Reports to regulatory stakeholders on the annual measurement of the construction sector code (CSC) such as Parliament, BBBEE Advisory, Departments of Public Works and Trade and Industry.
2.1Progress on CSCC Programmes namely: a. Baseline Project: • measures performance of the construction sector against the charter since its gazette in 2009 with a target, to analyze and report on about 6000 scorecards of the construction value chain for period between 2009 and 2012. • to be used by the CSCC to create an empowerment database in the future. • over 2500 certificates & scorecards captured – represents a spread between EMEs, QSEs & large entities. • preliminary report expected by March 2014.
Progress on CSCC Programmes namely: b. Practice Notes and Information / Guidance notes : • CSCC has uncovered a number of inconsistencies in the application and/or interpretation of the construction sector code. • Closely working with the Association for BEE Verification Agencies (ABVA) and Independent Regulatory Board of Auditors (IRBA) to correct these irregularities and to ensure that practice notes issued talk to the guiding principles of the CSCC. • The CSCC is in discussions with the dtito confer the CSCC with a mandate to approve the issuance of verification certificates – projected completion by August 2014.
3.1 Process towards alignment: a. Amendment of BBBEE framework & Alignment of the Sector Code: • Following the publishing of the revised BBBEE codes in October 2013, the construction sector codes, together with all other gazetted sector codes are expected to be aligned with the new codes within twelve (12) months. • The CSCC is facilitating the process of negotiations on the elements of the scorecard and to guide all founding members on the process of alignment. • Working groups made up of industry organizations will be constituted. The CSCC is in a process of appointing facilitators & advisors (for established and emerging constituencies).
b. Alignment timelines are outlined below: Sep – October 2014