Infrastructure Development Bill [B49-2013]: continuation of Committee deliberations

Meeting report

Infrastructure Development Bill: Continuation of Committee deliberations
The Chairperson reminded Members that on the previous day the State Law Advisers and Parliamentary Legal Advisers should finalise a “clean Bill” taking into account everything that the Committee had discussed in the previous meetings. In the process of re-drafting, they had come across some technical matters that they wanted to bring to the attention of Members.

The Memorandum on the Objects of the Bill was also being re-drawn and Members would need to check that it represented the spirit of the discussions, although it apparently was not much different to what had been presented by the Minister.

Dr Barbara Loots, Parliamentary Law Adviser, wanted to firstly speak to a technical issue. The Department of Economic Development (the Department) had already included a statement in clause 2(2) that any person exercising any powers in terms of this Act must do so in full recognition of the competencies of the spheres. The Parliamentary and State Law Advisers suggested that perhaps, in line with the spirit of this clause, clause 8(4)(a) could be amended, so that instead of reading “Every organ of state must ensure”, it would read “Every organ of state must seek to ensure…”

Mr Herman Smuts, Principal State Law Adviser, Office of the Chief State Law Adviser, confirmed that he was in agreement with that addition.

Mr S Motau (DA) thought that “must ensure” was more straightforward whereas “seek to” was perhaps gave room for deviation. 

Mr F Beukman (ANC) asked for more arguments on this point. He agreed that “must” was very strong, and asked if there was other legislation where such an example was used, and what the rationale was.

Mr Gary Rhoda, Parliamentary Legal Adviser, said that there were certain competences for each level of government. These were set out in Schedule 4 and 5 of the Constitution, with Schedule 5 setting out exclusive competencies of the provinces. One of these, cutting across all, related to town and regional planning. To make it more clear that there was no intention, in this Bill, to encroach on the powers of municipalities to do their own planning through the Integrated Development Plans (IDPs), and to allow them to continue to take their own specific situation into account, it should be emphasised that the Bill did not in fact seek to prescribe how plans should be done. The best interests of the municipalities’ IDPs and the Strategic Integrated Projects (SIPs) would have to be weighed up and brought in line. He thought that it would be dangerous to “prescribe” in as specific a way as the Bill did, by using the words “must ensure”.

Mr A van der Westhuizen (DA) heard this point, and noted that the Constitution did indeed make provision for separation. However, the provincial and local government preferred to talk of “spheres” not “levels”. He would support recognition of this principle.

Mr Motau said that he was persuaded; the DA was concerned that this should not encroach on spheres’ powers and competences.

Mr Beukman indicated that he now understood the rationale.

The Chairperson asked why it was thought clause 2(2) was not protecting the various bodies.

Dr Loots explained that there was no concern with that, but there was an attempt rather to ensure that clause 8(4) read in the same tone.

The Chairperson asked, if there was no problem with clause 2(2), then whether there might be a problem that could challenge the constitutionality of clause 8(4).

Dr Loots replied that there would not be, from an application perspective, but the drafters were trying to give stronger expression to the aims of the Committee and Department in language that was as clear as possible. This wording was really to allay any uneasiness in the different spheres. It was really a question of phrasing, making it clear and plain.

The Chairperson thought that clause 8(4)(b) explained that already. It specifically said that the provisions did not derogate from the ability of the province or municipality to implement any infrastructure programme. She supported what Mr Motau had said initially – “must” was surely strong enough on its own.

Mr Rhoda said that (b) related to an infrastructure project and this could be something like the building of a hospital. Paragraph (a), on the other hand, referred to spatial planning, so there was a separation there.

The Chairperson read out clause 8(4)(a) again, and said that it did not refer specifically to any sphere but spoke to “every organ of state”. This did not mean that the powers and functions of the lower spheres would be interfered with. She thought it was capturing the spirit of clause 2(2). The Committee had been careful to ensure that there would not be any tampering with the constitutional position. She reminded the Committee that this was an intervention bill, not a general bill, and that it specifically called upon the spheres to align. That had a bearing on powers and functions that they were not utilising. This Bill sought to fast-track matters, which was different from the “normal way” of dealing with matters, and any disputes would be dealt with under the Inter-Governmental Relations Framework Act (IGRFA).

Mr Beukman said that if the argument was to clear up and amplify the relationship, he thought that perhaps a separate clause at the beginning of the Bill was another option that could be considered.

Dr Loots said that clause 2(2) was really expressing the tone, as the over-arching protection to the spheres. However, from a drafting perspective, the drafters were trying to reflect the tone of that clause throughout the Bill, and in particular to emphasise the cooperative aspects that would be required. “Must” gave the impression that something would be imposed from above, whereas “seek to ensure” implied that there would be a cooperative spirit. There was a reason why clause 8(4)(b) was slightly different.

The Chairperson thought that all the three sub-paragraphs must be read together. She asked the drafters to speak to (c) also.

Dr Loots said that in the planning phase, covered under clause 8(4)(a), all spheres should seek to ensure integrated planning. Implementation must be done in the same spirit, under (b). Subclause (c) said that if there was any problem arising in the application of (a) it must be resolved under the IGRFA. That spoke more to a mechanism and application than to a function.

The Chairperson asked if this was suggesting hat there must be other negotiation apart from the designation of the SIPs. The phrase “seek to ensure” implied more negotiation still to take place. However, “must ensure” was stronger in insisting that the powers of the different spheres should be respected. If there were disputes, they would be resolved through the IGRFA. She asked if there was any risk, if “seek to” were not included.

Mr X Mabasa (ANC) wanted to follow up on the Chairperson’s argument. The clause spoke to “every organ” so it was not implying that one sphere was above another. That already, to his mind, indicated that they must be respected. He did not think that using only the word “must” was implying any favour to one sphere, but offered equal protection to all spheres. He tended to think that it was sufficient. These viewpoints and discussion had been useful.

Ms D Tsotetsi (ANC) said that “must” did emphasise 2(2), and said that the law did prescribe what people had to do. She was also worried about watering down the phrase, and allowing for discretion.

Mr Beukman said that the Constitutional Court had ruled on the definition of “organ of state” and that did not necessarily relate to any spheres. It could mean anything funded by government. If there was a dispute between organs of state, not spheres, he wondered how that would be handled.

The Chairperson said that the challenge was really that the argument related to the local sphere, and this was too limiting. She also said that there were instances where ministers “must” do certain things, and she would not like to see the same argument to be applied to all, so they could try to avoid their strong responsibilities. It was necessary to be very consistent, in this Bill. She reminded Members also about the discussions on the use of “may”. If this Bill was to achieve its aim of intervention, people had to be forced to do things differently, by fast-tracking, and that applied to all. Planning was one issue, but implementation must be strongly pursued, to avoid ten years implementation being taken in a one or two-year project. She noted that Members would need to be thoroughly convinced of the necessity for changing the current wording.

Mr Rhoda said that he was merely here to guide Members, not to convince them. Clause 8(4) must distinguish between a SIP and an “ordinary” infrastructure project. The SIP would include the management committee, the Presidential Infrastructure Coordinating Commission (PICC) where there would be such as the building by a province of school or clinic, as it referred to future planning or use that would not be in conflict with any SIP. If there was a conflict, then the clause was setting up mechanisms to sort it out.

The Chairperson said that clause 8 spoke generally to designation and implementation of SIPs, but 8(4) was trying to ensure the alignment of all programmes. She cited the example of a SIP that might also include an area of jurisdiction of a province or municipality. The planning generally should be incorporated into the SIP process; not a different process. This would avoid the situation where Department A was dealing with something involving matters one to three, and Department B might have another project in the same place, involving matters four to six. This clause was saying that everything should be re-directed to give priority to implementation, and a re-focus so that provinces or organs of state were not trying to do their own thing, ignoring what the national government was doing.

Mr Rhoda agreed that this was correct. However, all that this clause was doing was trying to align the paths. The ordinary projects should not be stopped, but should align with the special projects.

Ms M Mohorosi (ANC) understood the reasoning behind the inclusion of “seek to”, in view of the fear, in local government, that national government adopted a “big brother” approach and ignored local government competences. She thought that “seek to” seemed to be acceptable.

Mr Mabasa suggested that perhaps the issue should be parked and the Committee could return to it later.

Mr S Mohai (ANC) questioned if anything would change while the issue was parked.

Ms Tsotetsi thought that retention of “must” was stronger. She did not think that any new arguments could be advanced.

Mr Mohai said he had no problem with keeping “must”.

After a short break, the Chairperson asked the Committee to go through the Bill, page by page. On the previous day, the Committee had discussed each clause up to the schedules.

Mr Smuts referred Members to the document “Version 6.2” (with the changes highlighted), which showed the deletions and additions, with new additions highlighted. The “clean version” was the version that showed what the eventual wording would be, and that version would be on the ATC.

The Chairperson explained that she would like the Committee to approach the Bill, page by page, using the two versions together, but she would be speaking to the page numbering on the shaded document, listed as “version of 06/02”.

In regard to page 1, Mr Mabasa asked if the correct title of the Portfolio Committee was “on” or “of” Economic Development.

Mr Rhoda said that the word “of” implied that the Committee would be part of the Department of Economic Development. The word “on” was broader, and implied it was dealing with thematic development within that area.

Mr Motau questioned the reference to the “State” in the long title, and would prefer to refer to the “Republic”.
 
Mr Mabasa and Mr Mohai thought that the usual wording was to refer to “goals of the State” rather than of the “Republic”.

Mr Rhoda said that “the Republic” spoke to the citizens and people. In this context, “State” meant development goals of the government.

Mr Smuts agreed that “State” was the correct word, although he thought it was different from “government” and the word was chosen for a specific reason. The State would continue although government may change. 

The Chairperson pointed out that it tended to be used interchangeably in everyday language, but agreed with Mr Smuts that the State would remain, outside of the executive.

Members agreed to the clauses on page 2.

The Chairperson asked if the layout for the Table of Contents was usual, and was told that it was, and that it followed a drafting convention.

Members agreed to page 3.

The Chairperson asked if the headings of the schedules should be included. Mr van der Westhuizen had suggested that they should be, in view of the fact that other clauses did have their headings noted.

Mr Smuts replied that it was a drafting convention that no headings be included for the schedules, but there was no objection to doing so.

Mr Mohai thought it helpful for the headings to be included, so that readers did not have to look into the full document.

Other Members agreed with the principle, and it was decided to insert the headings of the schedules also into the table of contents.

The pages dealing with clause 1 were approved.

Clause 2
Mr Motau said that when discussing the objects of the Bill, the Committee had discussed that the objects stated in the clause should be separated out from  the implementation aspects. The Bill contained statements of commitment, and he suggested that perhaps clause 2(2) should perhaps be separated out altogether.

Mr Smuts pointed out that the heading of that clause had been changed to “Objects and implementation of the Act” to reflect that two aspects were being dealt with.

Mr Motau suggested that the word “implementation”, as part of the heading, should be capitalised.

Mr Smuts said that this would not be aligned with the format of the rest of the clause.

Mr Motau felt that the same status should be given to objects and to implementation.

Dr Loots said that this was more to do with language conventions than drafting. Only positions of status (Magistrate, Judge etc) were capitalised. The use of a small letter was not minimising the importance of the word. Essentially, sentence case was being used.

Members adopted the changes on page 10, and also agreed to pages 11 and 12, with the shaded insertions, which were as discussed on the previous day. The Chairperson noted that the body initially called the “Commission” was now changed to “Council” and there were changes noted to clause 4(g)(iii) and (v).

Mr Mabasa knew the issues in (iii) had been debated. He was not sure that the phrase “inclusiveness, including…” read well. He suggested that perhaps the word “including” could be replaced with “particularly”.

The Chairperson pointed out that the words as reflected had been agreed upon previously. However, she asked if Members would have a problem with the emphasis on women and persons with disability.

Mr Smuts said that the use of “particularly” would imply a slightly different emphasis, but if that was the intention of the Committee, there would not be a problem with changing it.

The Chairperson said that it would be problematic if this was changing the meaning.

Mr Smuts read out the whole sentence, and thought it was in order.

Mr Mohai seemed to recall an earlier discussion on this. He liked the current crafting. The problem of youth employment should not be set against that for women, and he thought that “including” was giving the right emphasis.

Mr Mabasa said that Mr Mohai was correct on the intention and he would go along with the majority view.

It was decided that the phrase remain as it currently was.

Members then debated whether they should go through pages or clauses. The Chairperson clarified again that she would be referring to pages in the version with shading.

Members moved for the adoption of pages 13 and 14, incorporating clause 5 on expropriation.

Pages 16 to 17 were agreed upon (clauses 6 to 8(3)(a)).

Clause 8
Mr van der Westhuizen noted that the DA wished to note its objection to the whole of clause 8. The DA thought that there should be better criteria for the designation of a SIP, the sizes of the project, levels of cooperation and so on.

The Chairperson pointed out that the whole of clause 8 dealt with designation and implementation of strategic integrated projects.

Mr Mabasa wondered if Mr van der Westhuizen had any counter-proposal.

Mr Mohai thought that the current wording was a correct reflection of the discussions of the previous day, and proposed support for the clause.

Mr van der Westhuizen said that the stance of the DA had been fully aired in the previous meeting and he did not intend to go through it all again. What was in the document reflected the majority agreement. However, the DA was still not happy with it.

The Chairperson said that the DA’s objection to the whole of clause 8 would be noted in the minutes.

Mr Rhoda questioned what the Members had decided upon for clause 8(4)(a). He said that there was a proposal from the Department and Parliamentary Legal Advisers to include the words “seek to” which had not yet been settled. 

Mr Smuts clarified that it was not actually a proposal but a point raised for discussion. He had been instructed that if the Parliamentary Legal Advisers were to press for that amendment strongly, the Department “could live with” the insertion of “seek to”. 

Mr Beukman asked if there was a representative of the Department present.

Mr Smuts said that he had instructions from the Department to stand in for its legal adviser, and he would take full responsibility on this point.

The Chairperson reminded Members that on the previous day, the Director General had noted that the legal adviser from the Department would stand in for her. She had asked that she be notified of anything requiring her specific attention, as she was in a Cabinet lekgotla at the moment. However, the other Departmental representative was not able to be present. She said that “live with” the amendment was not very clear and at the end of the day, something must be found that was the best.

Mr Mabasa made a specific proposal that there be no further change, and therefore that the phrase “seeks to” should not be included.

The Chairperson repeated her earlier question whether there was any risk in leaving the wording as it was.

Mr Smuts responded that there would always be risks because the Bill, in a sense, sought to be prescriptive. The Office of the Chief State Law Adviser (OCSLA) had certified the Bill but there was always a possibility that someone might seek to argue that this clause affected, for instance, provincial planning. He said that the addition of “seek to” would minimise the risk of it being challenged, but he could not say that it would remove that risk completely.

Dr Loots added that it was very difficult to say what the Constitutional Court might find. Essentially the words “seek to” were erring on the side of caution, to try to reduce the risks of infringement as far as possible.

Mr Rhoda said that there would always be differing interpretations. He tended to be more cautious than others and tried to make the Bill as inoffensive as possible, by way of a version that was least likely to be challenged. He thought that “seeks to” might lessen the risk but could not say that another person would not challenge it.

The Chairperson said that this was a section 76 Bill and it was possible that the NCOP may change that wording.

Mr Rhoda agreed; each of the provinces would propose amendments, which would be taken on board or not. After the NCOP had dealt with it, the Bill would be referred back to the NA and this Committee again. The Committee could make a final decision then. If there was disagreement between NCOP and NA, the matter could go to the mediation committee.

Mr Beukman asked whether the conceptualisation in clause 8(4) affected clause 2(2), by weakening it.

Mr Rhoda responded that because 2(2) was setting out a principle, it was not weakened.

The Chairperson asked where the competence lay for spatial planning, and received confirmation from the Parliamentary Legal Advisers that it did not only vest in the municipalities. At the moment, the Planning Commission was dealing with this, for the whole country. She said that there seemed to be different understandings of what clause 8(4) was trying to achieve.

Mr Rhoda pointed out that Schedule 5, dealt with exclusive legislative competence responsibilities of the province, which included provincial planning. Municipal planning was also a concurrent competence, as set out in part (b) of Schedule 4.

Mr Mohai thought that there was no harm in using “must ensure”. This discussion had been enriching, but he thought that the spirit would be understood already, and there was no need to change the current wording of clause 8(4).

Mr Mabasa agreed. The matter had been debated extensively and he thought the wording should remain as “every organ of state must ensure that its future planning.

Mr Motau indicated that the DA did not agree with the whole of clause 8, and that related also to clause 8(4), so his earlier comments on clause 8(4) were, in a sense, superfluous.

The majority of Members agreed to clause 8, in its current form. The objection of the DA to the whole clause was noted.

Pages 20 to 25, incorporating clauses 9 to 13 were agreed to. 

Mr van der Westhuizen noted that the DA was abstaining from agreement on page 26, dealing with clause 13(6) to (8)

Clause 15
Mr van der Westhuizen noted the DA’s opposition to clause 15, especially the words that applications “must be submitted simultaneously” in clause 15(1)(a). He had noted his objections to that on the previous day, and certain proposals had been made, but he accepted that the majority of Members agreed to the current clause 15, as set out on pages 28 to 29. He said that the DA had been working, as far as it could, to reach concurrence on the whole Bill. It was still not happy with the wording of the clause when considered as a whole.

The Chairperson noted that the Committee had, on the previous day, agreed that the DA’s suggestion to add the words “to allow for concurrent consideration”. She asked if Mr van der Westhuizen was still suggesting that this amended sentence was not acceptable.

Mr van der Westhuizen clarified that, where possible, the DA agreed that applications should run concurrently and did not think that one decision was needed before another process was being embarked upon. The DA was grateful for consideration of that wording. However, he had indicated that one person may be able to prepare a simple application but then would have to wait until another linked application, taking much longer, was ready, so that the two could be submitted simultaneously. He accepted that the DA had been outvoted on that yesterday, and accepted that, but it was still not happy with the retention of “simultaneous”.

The Chairperson thought that whilst paragraph (a) dealt with single applications, (b) was dealing with concurrent considerations, as explained by the Department on the previous day. If the DA did not agree with the explanation on (b), which would appear to cover his concerns, then she wanted clarity whether everything was being rejected. The ANC Members had agreed to the insertion of wording that Mr van der Westhuizen had suggested, so she was not sure whether he was now rejecting all the changes.

Mr van der Westhuizen said that his problem was only with “simultaneous”. He had suggested that “without undue delays” would have been better.

Mr Mabasa thought that clause 15 had been well captured, enriched by Mr van der Westhuizen’s contribution on the previous day. The use of the word “simultaneous” was to expedite action to be taken by the Department, but also allowed room for those not yet submitting to do so later, in terms of (b).

Mr Mohai thought that the wording was easier to understand, and moved that the clause be adopted in its latest form.

The Chairperson said that the DA had also made a proposal to add in “notwithstanding paragraph (a), which the Committee had agreed to. She asked for clarity whether the DA was now taking the Committee back.

Mr Motau said that the DA had, on reconsideration, believed that a word had been left out. The DA’s concern related to the requirement for “simultaneous applications” and had suggested that the word “simultaneous” should not be included. Other wording had been added but he thought the correct wording should be “application simultaneously and to allow for concurrent consideration”. That would bring more sense to the subparagraph.

The Chairperson asked the legal advisers if “and” would change anything.

Dr Loots said that concurrent meant at the same time, but simultaneous could also mean together. She was a little uncertain and asked for more motivation why there was a suggestion to include the “and”.

Mr Smuts said that there would be a subtle change by inserting “and”, for it would empower the applicant to permit concurrent consideration. He would think the clause should remain as it was.

Mr Motau said that the DA would concede the point.

The majority of Members agreed to page 29, which now incorporated the DA’s amendments from the previous day to clause 15. The opposition of the DA to clause 15 was noted.

The Committee approved page 30.

Clause 17
Mr Smuts said he had been asked to propose a change to clause 17(2) of page 31. This clause was important and sought to set a particular time frame. However, the clause also sought to deal with time frames of other projects. It was proposed that the words “notwithstanding any other law” should be inserted at the beginning of the clause. This was to make the clause even clearer and avoid any misunderstanding.

Dr Loots said that the Parliamentary Legal Advisers agreed that this would strengthen the meaning of the clause.

Mr Mohai supported that.

Mr Motau said that the DA had already expressed that it believed that some of these time frames would not be achievable, and they ran counter to time frames stipulated in other pieces of legislation. The addition of these words, seeking to make this legislation override those other pieces of legislation, would, in the DA’s view , worsen the position.

The majority of the Committee approved the insertion of this phrase, but the DA noted its disapproval for the insertion.

Clause 19
Mr van der Westhuizen recorded the DAs objection to clause 19, as the DA believed that there should be a role for Parliament.

The Chairperson asked if the DA was suggesting that there should not be quarterly reports by the Minister.

Mr van der Westhuizen was not opposed to the principle of reporting, but the DA would have liked to see the reports being given to Parliament.

The Chairperson confirmed that the DA’s concerns were noted.

Pages 32 to 35 , incorporating clauses 19 to 23, were adopted.

Page 36 set out Schedule1 and was adopted.

In regard to page 37, Schedule 2, Mr Motau indicated that the DA was very concerned about the time frames and believed that they would create problems. The DA therefore wished to record its objection to the entire schedule.

Mr Beukman quipped that thought that this was a pity, in light of the fact that the DA had asked for and obtained agreement to have the titles of all those schedules listed.

The majority of the Committee agreed to the adoption of Schedule 2.

Page 38, setting out Schedule 3, was adopted.

Adoption of Bill
Mr Motau wanted to record that the Committee had discussed the clauses in greater detail on the previous day. He was a little worried that the Committee had moved for adoption, page by page, instead of clause-by-clause, and wondered if the procedure was correct.

The Chairperson made the point that the clauses were included in the pages.

Mr Mohai thought that there was nothing irregular in the manner this meeting was conducted. The Committee had carefully looked at all the clauses on the previous day, and both documents were available today, reflecting all of the changes to each of the clauses. None of the Members were denied the opportunity to raise points on any specific clause and he thought that the meeting had proceeded in a fair manner, with no suppression of any Members. The legal advisers had been allowed to advance their views.

The Chairperson asked if the legal advisers were satisfied that the correct procedure had been followed

Dr Loots said that there was no procedural requirement whether a Committee should deal with a bill by clause or page. Members could accept, abstain or reject any clause. As long as that was noted, and included in the Report, that was sufficient. Most committees, whether they dealt with pages or clauses, would put the whole Bill to a vote. For each page, there had been proposers and seconders.

Mr Rhoda agreed that it was practice, rather than a rule, to adopt bills clause by clause. He agreed that if there were objections by parties, they could be noted in the Committee’s Report.

The Committee repeated that approval of pages had included approval of clauses, meaning that the Bill had been dealt with it in its entirety.

She put the whole Bill to the Committee for adoption

Mr Beukman proposed the acceptance of the Bill, seconded by Ms Mohorosi.

Mr van der Westhuizen noted that the DA was abstaining. It did not want to indicate, at this stage, whether it was approving or disapproving the Bill as a whole.

Dr Loots said that the party would be able to accept or reject during the vote in the House. The word “abstinence” was the correct word to use in the Committee Report.

Mr Mabasa said it was important to record officially that the majority of the Committee was adopting the Bill.

Memorandum on the Objects
Mr Smuts said that the drafters had concentrated on the Bill and had only realised recently that the Memorandum on the Objects did not contain exactly what was in the latest version of the Bill, and another version was being prepared that would pick up what was currently contained there. He noted that the Rules made provision for the Committee to present an amended Memorandum also. It was important to have an updated Memorandum to give some direction to the NCOP. In addition, for future interpretive purposes, the Court may refer to that Memorandum.

Dr Loots and Mr Rhoda supported the principle that the Memorandum should be adjusted. Although it would not form part of the Bill, it was akin to a research document, would give guidance to the NCOP and should be re-drafted.

The Chairperson suggested that the Committee should then adopt both the Committee Report and the new Memorandum on the Objects, on the following Tuesday.

The meeting was adjourned.