Built Environment Professions Bill: adoption

Meeting report

Department of Public Works (DPW) Response to Comments and Input on the Bill
Ms Jessica Moodley, Director: Legislation, DPW, revisited some of the outstanding issues that the Committee had not resolved in previous meetings.

Clause 1, definition of “built environment”
Ms Moodley recalled that the parliamentary legal advisor had expressed concern about the definition of built environment.

The Chairperson clarified that this issue was not only raised by the parliamentary legal advisor but also by stakeholders during the public hearings. Concerns had been raised that the term “physical world” was too wide and could mean a number of things that did not necessarily affect the built environment. As a result, it was suggested that a different wording be used. In view of the concerns raised, the Committee was mindful of not overstepping its mandate, and enacting for “people” beyond the built environment.

Ms Moodley explained that the use of the term “physical world” was restricted by the subsequent words “intentionally created through science and technology”. In addition, she clarified that the scope of work, prescribed in the Bill, and the professional bodies established in terms of section 15 of the Bill further limited the application of the legislation.

The Chairperson stressed that the wording needed to be precise, otherwise the legislation could be misinterpreted and also challenged in court.

Ms Zuraya Adhikarie, Parliamentary Legal Advisor, accepted the Department’s viewpoint that clause 15 brought the definition back within its scope. However, she preferred not defining the term at all, instead of relying on the content of the Bill to narrow it. Notwithstanding all of this, she had no objection with retaining the current definition, and was satisfied that no legal ambiguity would arise.

The Chairperson said that the Department’s explanation clarified the issue but not the definition itself. As a result, she asked whether there was a way to ensure that everybody understood it in the same manner.

Ms Moodley maintained that the Department could not omit the definition, and that it had made the definition wide in order to cater for the different disciplines within the South African Council for the Built Environment (SACBE). She added that that the existing definition was an internationally recognised.

The Chairperson believed that there was sufficient motivation to maintain the current definition. However, she maintained that the Committee would issue a statement to clarify all the points.

Clause 4(1)(n)
Ms Moodley highlighted that the Committee had yet to decide on the proposal to insert the words “taking due cognisance of the differences between the professions” after the words “professional boards” in clause 4(1)(n). The Department believed that the suggestion was reasonable and should be included in the Bill.

Mr B Radebe (ANC) replied that there would be no harm in including the proposed wording.

Members accepted the recommendation without any dissent.

Clause 15(1)
Ms Moodley pointed out the suggestion that the word “may” either be replaced by “must” or “shall”. The Department rejected the proposal because the current clause allowed the Minister to establish more boards if she/he decided to include other professions under built environment.

Ms Adhikarie agreed with the Department, and reasoned that the use of the words “must” and “shall” deprived the Minister of any discretion and also imposed a time constraint.

The Chairperson agreed that the current wording should be retained because it provided the Minister some latitude to exercise her discretion.

The Committee accepted this explanation.

Proposed Amendments to Built Environment Professions Bill
Ms Moodley guided the Committee through all the proposed amendments, and also showed how they were incorporated into the actual Bill. An arrangement of sections was introduced together with changes to clauses 1, 4, 5, 6, 7, 15, 16, 17, 25, 28, 48 and 51 (see Proposed Amendments Document and Bill Incorporating Amendments to Built Environment Professions Bill Document).

Ms Moodley highlighted that the National Qualifications Framework (NQF) Act had repealed the South African Qualifications Authority Act, and that reference to the latter was therefore omitted from the Bill.

In respect of clause 15, Ms Moodley pointed out that the Department had addressed the concern raised by Engineering Council of South Africa (ECSA), and had increased the number of persons that could be appointed to a professional board.

Moreover, Ms Moodley explained that subclause 17(5) was deleted because a professional board in terms of the NQF Act did not have automatic status as a quality assurer, and would have to reapply for recognition.

In respect of clause 48, Ms Moodley explained that a new subsection was inserted to provide for the tabling of draft regulations in Parliament before publication.

Discussion
Ms Moodley noted that in the previous meeting, the Department had addressed the issue of including a clause on limitation of liability. She indicated that the wording of the clause would be formulated in consultation with the State Law Advisor and be inserted either as part of clause 51 or as a new clause.

Ms C Ramotsamai (ANC) was eager to vote, and questioned how long it would take the Department to craft such a clause.

Ms Moodley replied that this could be ready by the afternoon session of the meeting.

Ms Adhikarie advised that the proposed clause (dealing with limited liability) was redundant and could be considered as trite law. Consequently, she believed that the provision would not add any value, and should not be included in the Bill.

Ms Moodley agreed with Ms Adhikarie’s comments, and added that it was ultimately the Committee’s decision on whether to include or exclude the clause.

Members decided to abandon the provision.

Afternoon session

Voting on the Bill
The Committee accepted clauses 1, 4, 5, 6, 7, 15, 16, 17, 25, 28, 48 and 51, as amended. Thereafter, all the other clauses were approved of without amendment.

The Committee adopted the Bill with amendments.

The Chairperson commended the Members for engaging in the discussions in a constructive manner. However, she criticised the negative role played by the Democratic Alliance, and alleged that there “were people (in Parliament) that represented certain interests, which were not necessarily national interests”. She appealed to the Members to unite and focus on the Committee’s work rather than the “party line”.
In addition, the Chairperson thanked the Department as well as all the legal experts for their “intellectual work”, which helped to shape the legislation. Lastly, she addressed all the stakeholders with whom the Committee had disagreed with on certain points. Firstly, she declared that it was inherent to disagree and that the disagreements were not personal. Secondly, she assured the stakeholders that the Committee’s decisions did not imply that their views would not be considered in future.

The meeting was adjourned.