DPWI on work completed to strengthen mandate & draft Public Works Bill; with Ministry

Meeting report

The Chairperson opened the meeting, and accepted the apologies of Mr Nxumalo (IFP) and Mr P van Staden (FF+).

The purpose of the meeting was to receive a progress report on the completion of the draft Public Works Bill, which would strengthen their mandate, improve co-ordination and assist the Portfolio Committee in their oversight. The process had begun in 2020.

Minister’s opening remarks

Ms Patricia de Lille, Minister of Public Works and Infrastructure, informed Members that there had been a fire at Parliament the previous day in the Old Assembly Chamber. The investigation team was on board, with a member of the Cape Town regional office in the meeting to answer questions Members might have.

The Minister agreed that there was a legislative hole which needed to be fixed for the Department of Public Works and Infrastructure (DPWI) to function properly. The Infrastructure Development Act of 2014 needed to be improved, and the Government Immovable Asset Management Act (GIAMA) of 2007 was another piece of legislation with no regulations.

The DPWI was working on the report of the South African Law Reform Commission, where recommendations had been made on which legislation should be repealed, and there were at least 14 acts involved. There were 55 acts of Parliament that impacted on the DPWI. They had begun the process of bringing the Repeal Bill to the Committee. In the sixth administration, this would include infrastructure matters. They would use the two White Papers to do this.

Draft Public Works Bill: progress

Mr Imtiaz Fazel, Acting Director-General (ADG), DPWI, made the submission to the Portfolio Committee on progress in processing the draft Public Works Bill. The DPWI was relying on a number of pieces of legislation, instead of an act. In 2019, the Department’s mandate was revised to include infrastructure, which had ultimately only exacerbated their challenges.

Mr Devan Pillay, DPWI, began the presentation, and said the objective was to create a framework legislation, which meant they were reconfiguring the Act, while addressing the DPWI’s concurrent function concerns. There were two existing White Papers, though there were policy gaps identified in them. The existing White Papers would be used as direction for the new bill, as guided by the Minister. While the Bill did not speak directly to regulations and guidelines, it would strengthen the Department’s capacity in areas such as protecting state resources and effective current and future accommodation, effectively embedding its functions.

Minister De Lille said that the historic background provided excuses for why the Public Works Bill was not brought to Parliament. In November 2020, however, the President had put forward a new directive on how the policy needed to be processed, which was much faster. She was concerned, however, that current timelines in the report were not in line with the President’s timelines and directives. They had advertised for a Deputy Director-General (DDG): policy and research post, but ultimately this had been rejected by the Department of Public Service and Administration (DPSA) because they had not followed due process. This had wasted time. They had since re-advertised the post, and interviews would take place.

Mr Pillay, in executing his function, had asked for approval to use the two White Papers to draft the bill. The DPWI had agreed that they now needed to follow the legislative framework as introduced by President Ramaphosa in November, and align their process with this directive. Some work had started in earnest. The problem of not getting a proper service provider stemmed from not being able to write the proper specifications. To speed up the process, a shorter way would be to approach the State Attorney to appoint a legal drafter to assist the DPWI. This request had already gone out. As soon as it was approved, they might see progress. They would update the Committee when the legal drafter came on board.

There was therefore a very chequered history with the Public Works Bill. They were looking for a ‘different way’ of dealing with legislation. The Minister was sure that the timelines might need to be shifted, and they were not ‘out of the woods’ yet. This matter had been outstanding since 2012.

With the Public Works Amendment and Appeal Bill, one of the commissioners who served on the South African Law Review (2010) had been approached to address the old legislation on land from the last century. They were using all the methods available to them to speed this up.

The Chairperson thanked the Minister and invited Members to ask questions.

Discussion

Mr E Mathebula (ANC) said the Department needed the bill in order to fast-track service delivery to South Africans. If this bill was not in place, common sense would be used in running the DPWI, and they would therefore run the risk of being legally challenged in the future.

Ms S Graham-Mare (DA) said she was not surprised that they had struggled to find people to draft the bill. With a Department that had evolved so many times, this had to be a most convoluted and complicated process. She did not know how this would be achieved, as it would be a near-impossible process, but she was excited that they were making headway. Without this legislation, the DPWI would continue to fail. They needed to ensure that the new legislation strengthened the Department. If they were to be ‘the government’s landlord,’ they needed to make sure that they were compensated for this. Many of the provincial departments were ‘doing their own thing.’ Without overstepping the bounds of concurrence, how would they draft legislation to strengthen the mandate of provincial departments? Would national legislation include or inspire new provincial legislation?

Ms A Siwisa (EFF) thought this administration would end before the bill saw the light of day, as the Minister had said they were struggling to find individuals to provide support. She asked the Minister about public entities. What did the bill say about entities which did not report to the Minister, and where the Portfolio Committee did not have jurisdiction to do oversight -- for example, in the area of transformation? The bill needed to address deepening transformation, though since the last meeting with the councils. Had there been any progress or improvement? There was also uncertainty as to what was on the immovable assets register. How would the bill address these issues?

Ms M Hicklin (DA) echoed the sentiments of her colleagues. It was essential that the Public Works Bill was drafted and came into law so that the Department could be seen to be moving forward with purpose. At this time, there was no enabling legislation. The immovable asset register was key to this. They were having trouble using ARCHIBUS and SAGE to document land, and how much was at the government’s disposal. They needed to be able to be held accountable as a Department. This was tied in with the appropriate recruitment of officials across the board. There would be fewer loopholes and fewer problems if they managed to get the bill into legislation.

Ms S van Schalkwyk (ANC) said that progress was urgent. She asked the DPWI to stick to the timelines they had once again moved. They were past the stage of trying to find their feet with progress on the bill. She requested updates from Department. The Committee wanted to check movement and the stagnation, as had been seen in 2020. She asked for clarification of the concurrent functions as per the Constitution, to avoid misinterpretation by the Members. They needed to alert the DDG of Construction, Policy and Research that in their previous meeting, they had dealt with the Expanded Public Works Programme (EPWP), and the Department had been asked to find a way to include within the drafting process a clause which pertained to enforcement and standardisation of recruitment at all levels of government. The different approaches and initiatives of the ministry were urged to make real progress before the end of the term.

Mr W Thring (ACDP) said that the importance of having the Public Works Bill established could not be overemphasised. The use of consultants over the years indicated a lack of capacity within the policy department of Public Works. The policy had been in the process since 2012, according to the Minister, so why did it take so long to ask for the state attorney to look at internal capacity? There had been no traction since February 2020, which indicated a lack of responsibility, and the Portfolio Committee needed to take some responsibility for this. They needed better monitoring and accountability to reinforce the DPWI’s role. The concurrency issues exposed the weaknesses in the Department, which would continue unabated, exploited and would undermine it. He asked the Minister about the President’s new policy and legislative framework – what was different between what the President had said and what had been presented to the Members? What was the shorter timeline in getting the bill drafted?

The Chairperson said the issue of time was of the essence – they could not continue to discuss White Papers. She was pleased the two White Papers would be used as a resource, although the process presented did not show enough evidence that the issue of transformation was being addressed. The Construction Industry Development Board (CIDB) and the Council for the Built Environment (CBE) were the two councils that had complained about the lack of transformation in the built environment. This needed to be included in the draft DPWI bill. There also needed to be something about the EPWP policy in the bill.

She asked the Minister about the functional areas of concurrency – the national and provincial spheres. What was her understanding of the concurrent functions across the national, provincial and local government spheres? Did the DPWI enforce these concurrent functions, especially when they had their Ministers and Members of Executive Council (MINMEC)? They had already seen gaps in 2019 with the non-availability of the bill, and they could not continue in this way.

Department’s response

Minister De Lille addressed the question on Schedule Four, which referred to the concurrence of functions. In the absence of provincial laws, this was not implemented. The purpose of the new bill was to bring in concurrent powers. The impact of the absence of the Public Works Bill meant conventions had developed over the years, with no legislation to guide the Department. Besides the nine provincial DPWIs, there were also 11 regional offices in the respective provinces. This was where 80% of the DPWI’s budget was being spent -- where there was weak co-ordination and accountability. That was why the DPWI was reviewing this system, not only because it was costly, but because of the duplications. The Minister and Deputy Minister had visited all of the regional offices. She agreed that the process needed to go faster. Failure to do so had been the result of not being able to appoint a service provider.

The Minister agreed that the DPWI was the least transformed department. Over the years, Parliament had established the CIDB (by an Act in 2000) which would drive the transformation in the built environment. From 1 April 2021, they would introduce the principle that a service level agreement with performance targets needed to be signed before any money was paid. There were also other bodies (councils) which were given funding by the DPWI to drive transformation, which was key. The Infrastructure Investment Plan, as approved by Cabinet, also included transformation. Over and above this, there was a review being done by the Presidential Review Council. The DPWI and the Deputy Minister were working on proposals of how to merge some of these entities, and would carry out an assessment as to whether they were fulfilling their mandate.

On the matter of the Immovable Asset Register (IAR), there had been to earlier attempts to digitise the IAR, both of which had failed. On 29 January, the DPWI had put out another tender with the same specifications, which had been due to close in February. She had intervened to ensure they drafted new specifications and used the advice from the National Treasury. They had learned to put out tenders, not specifically for ARCHIBUS and SAGE, but rather to test the market. There were still two outstanding models of ARCHIBUS. Two weeks earlier, they had had a meeting with Treasury which had advised the DPWI to cancel the tender because they were going out with a third tender on the same specifications. They would also be attempting to have the IAR put on blockchain. They were hoping for a modern solution, with an open data portal available at the press of the button. They needed to stick to timelines and a quarterly report was necessary. The Cabinet-approved memo of November 2020 guidelines was being used to align the bill drafting process.

The lack of capacity issue was being used as screen for a lack of competency. Contactors could carry out their work for only one year. Upon assessment, she had found that these contractors were not working on drafting the bill. She would not extend this kind of contract, though the ultimate responsibility resided with the Department of Public Service and Administration (DPSA). An 800-page policy documents had been produced. The process had then been further refined, and they were now sitting with a document of over 400 pages. Nonetheless, there was a definite need to review the 2003 policy. The Minister and Deputy Minister would be writing the policy themselves after two years of seeking Departmental support.

Mr Pillay said they would do their utmost best to stick to the timelines. The issue of procurement processes were with the Chief State Law Advisor and the State Attorney. The CIDB had a clear mandate to transform the construction industry. The Construction Sector Charter Council also had codes with revised targets for the transformation of the sector.

Mr Fazel confirmed that they would present quarterly reports on progress, and welcomed the fact that they could present on ARCHIBUS and SAGE. He acknowledged that there had been a failure over a long period, particularly with leadership.

Follow-up discussion

Ms Hicklin suggested they look at a different software package, if ARCHIBUS and SAGE were causing problems. They needed to guard against a crash of the system within the DPWI. She suggested that irrespective of how many models had been implemented, they should cut their losses and look at another system which would enable them to do their jobs.

Ms Siwisa was uncomfortable that the Minister had addressed issues as if she was not part of the DPWI, which pointed to a lack of leadership and proper monitoring and evaluation in her Department. She repeated her question regarding what they would do about structures that they did not have jurisdiction, such as the Development Bank of South Africa (DBSA).

On another note, she asked why the digitisation of the IAR could not be finalised.

Mr Thring asked about the difference in the timelines between the President’s processes and the one that was being presented.

The Chairperson asked if they could get a full report on the consultative process currently under review in the DPWI in the following quarter. It was deeply worrying that the Minister was saying that ARCHIBUS and SAGE were presenting serious challenges. This meant that the Department’s vision of full functionality of the IAR by 2021 was still just a dream. It also meant they would have an audit query when it came to the IAR and the Auditor-General of South Africa (AGSA). As the Portfolio Committee providing oversight to the DPWI, they were worried and red flags were being raised.

Department’s response

Minister De Lille said the reason she could be so brutally honest with the Committee was because they were doing monitoring and evaluation all the time. They had monthly meetings with senior management (MINTOP), they had a weekly meeting with the Minister, the Deputy Minister (DM), DG, Chief Financial Officer (CFO) etc. When it came to the supply chain management (SCM) process, they could not interfere with it, and that was exactly where the mess was.

The implementation of ARCHIBUS and SAGE had started in 2015. She herself did not want the system. Two implementing contractors had been appointed, but in 2021 this had still not been implemented. In 2015, the PDWI had spent R16.5 million, in 2017 it had spent R19.8 million. Between 2015 and 2016, another R42 million had been spent on implementing the ARCHIBUS system. Because of the drafting of the specifications of three aborted tenders, the last attempt was when the DPWI had tried to put out another tender on 29 January 2021, with the same specifications. They had introduced a system where all tenders needed to be on the DPWI’s website – this was where the Minister had seen the third tender put, and had turned to the state’s Chief Procurement Officer and National Treasury.

At the same time, they were employing between 70 and 80 contract workers, who were working manually, in addition to the staff complement. Because they still had to do manual physical verification, there was an audit finding every single year by the AGSA. To move towards an unqualified audit, they had put unqualified audits into their targets for all divisions.

Regarding the difference in the timelines as put forward by the Department, compared to the Cabinet directives, the DPWI was busy with this and would present it to the Portfolio Committee. They were in the process of developing the correct specifications, together with National Treasury.

Because of the DPWI’s historical problems, the Minister was committed to being held responsible by the Portfolio Committee and would be honest with the Members, whose input she valued. The Minister would not simply give up hope, despite the circumstances. They needed to see movement. She made an appeal for a month to sort out the exact timelines to be aligned with the Cabinet directives, and give more positive feedback.

The Chairperson said that the Portfolio Committee wanted to see the Bill -- not the draft bill --implemented before the end of the term. This was why they were pressing these matters so urgently. They would want an update report at the start of the next quarter.

Committee matters

The Committee proceeded to the following agenda item – the adoption of minutes and a report.

The minutes of 16 March 2021 were proposed adopted.

The Committee report on a petition from Mr S August (GOOD), dated 16 March 2021, was adopted with amendments.

Announcements and closure

The Chairperson advised that on 24 and 25 March 2021, the Committee would have virtual meetings on oral submissions on the Expropriation Bill.

Ms Graham-Mare asked if they could advertise the Limpopo, Mpumalanga and North-West oversight visits.

Ms Hicklin asked if they had venues as yet.

The Committee Secretary asked Members to give the staff until the upcoming Friday to alter the programme, due to a complication with the North-West visit. As soon as the final programme was out, they would finalise it with the Members.

The Chairperson clarified that this meant Members were free to communicate with their constituents.

The meeting was adjourned.