Bill aims to ac­cel­er­ate ap­provals

Fast-track­ing of strate­gic in­fra­struc­ture de­liv­ery is the goal, but many are skep­ti­cal

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW - SA­MAN­THA BRENER & CLAIRE BAR­CLAY

AF­TER caus­ing a fair share of con­tro­versy, the In­fra­struc­ture Devel­op­ment Act, No 23 of 2014 was signed into law by the Pres­i­dent on May 30. The In­fra­struc­ture Devel­op­ment Bill was in­tro­duced into the Na­tional Assem­bly on Novem­ber 4 2013 in an at­tempt to pri­ori­tise (and thereby speed up) in­fra­struc­ture devel­op­ment. It trig­gered a flurry of re­sponses from in­ter­ested par­ties. Three days of pub­lic hear­ings were held in the Na­tional Assem­bly from Jan­uary 14-16 2014. In­ter­ested par­ties made writ­ten sub­mis­sions as well as pre­sen­ta­tions at the pub­lic hear­ings. De­lib­er­a­tions on the sub­mis­sions were made, and amend­ments were ef­fected. The bill has now passed, in amended form, through the Na­tional Assem­bly, the Na­tional Coun­cil of Prov­inces and has been signed by Pres­i­dent Ja­cob Zuma. It will take ef­fect on a date yet to be pro­claimed.

In 2012, a Na­tional In­fra­struc­ture Plan with 18 iden­ti­fied strate­gic in­te­grated projects (SIPs) was de­vel­oped and adopted by Cabi­net and the Pres­i­den­tial In­fra­struc­ture Co­or­di­nat­ing Com­mis­sion (re­spon­si­ble for the se­lec­tion, plan­ning and mon­i­tor­ing of large in­fra­struc­ture projects in SA). The Na­tional In­fra­struc­ture Plan is a pol­icy orig­i­nat­ing in the Eco­nomic Devel­op­ment De­part­ment. The draft bill was in­tro­duced to achieve the ob­jec­tives of the Na­tional In­fra­struc­ture Plan. It aimed to fast-track strate­gic in­fra­struc­ture de­liv­ery by short­en­ing the time re­quired to ob­tain reg­u­la­tory ap­provals re­quired for projects. The act has the fol­low­ing salient fea­tures:

It es­tab­lishes the struc­tures of the Pres­i­den­tial In­fra­struc­ture Co­or­di­nat­ing Com­mis­sion (PICC).

In the first in­stance, the PICC acts through the coun­cil (s3(a) of the act). The coun­cil’s over­all re­spon­si­bil­ity is to en­sure the devel­op­ment, main­te­nance, im­ple­men­ta­tion and mon­i­tor­ing of the Na­tional In­fra­struc­ture Plan.

It es­tab­lishes the man­age­ment com­mit­tee to sup­port the coun­cil in car­ry­ing out its func­tions and to over­see the func­tions per­formed by the sec­re­tar­iat.

It es­tab­lishes the sec­re­tar­iat which is prin­ci­pally tasked with co­or­di­nat­ing the im­ple­men­ta­tion of any SIP by ap­point­ing mem­bers to a steer­ing com­mit­tee es­tab­lished for each SIP, and di­rect­ing the work of each steer­ing com­mit­tee.

It es­tab­lishes a steer­ing com­mit­tee to fa­cil­i­tate and mon­i­tor the im­ple­men­ta­tion of a SIP. The steer­ing com­mit­tee, chaired by a SIP co­or­di­na­tor ap­pointed by the sec­re­tar­iat, is re­quired to iden­tify the dif­fer­ent projects con­sti­tut­ing a SIP, and to iden­tify the ways and means of giv­ing ef­fect in the “most ef­fec­tive, ef­fi­cient and ex­pe­di­tious man­ner” of im­ple­ment­ing a SIP. For ex­am­ple, the steer­ing com­mit­tee is re­quired to iden­tify all ap­provals and li­cences re­quired for the SIP and take all rea­son­able steps to as­sist in ob­tain­ing these. The steer­ing com­mit­tee is re­quired to de­velop and adopt a project plan for each SIP for ap­proval by the sec­re­tar­iat.

It pro­vides for the des­ig­na­tion of SIPs un­der par­tic­u­lar cir­cum­stances. In par­tic­u­lar:

The PICC (through the coun­cil) is re­spon­si­ble for des­ig­nat­ing SIPs (s4(c) read with s8(1)(a) of the act). Where the PICC de­ter­mines that a SIP be im­ple­mented, the PICC (in con­sul­ta­tion with Cabi­net) can in­struct the min­is­ter of the rel­e­vant de­part­ment in whose port- fo­lio the SIP pre­dom­i­nantly falls to in­struct its de­part­ment to un­der­take a SIP or to ad­ver­tise for ten­ders where all or part of the SIP needs to be un­der­taken by par­ties other than the state.

Or­gans of state af­fected by a SIP need to align fu­ture plan­ning or im­ple­men­ta­tion of in­fra­struc­ture or fu­ture spa­tial plan­ning and land use with the SIP.

It pro­vides for the PICC to ex­pro­pri­ate land, in terms of the Ex­pro­pri­a­tion Act, for the pur­poses of im­ple­ment­ing a SIP.

It pro­vides com­pul­sory time­lines for the im­ple­men­ta­tion of the SIP.

It pro­vides a list of the SIPs in ex­is­tence at the com­mence­ment of the act.

In its fi­nal form, the act looks sim­i­lar to its pre­de­ces­sor bill. Im­por­tant spe­cific changes are dis­cussed below.

The most con­sis­tent com­plaint across the sub­mis­sions re­lated to the “process and pe­ri­ods of time” set out in sched­ule 2 of the act. S17 of the act pro­vides that the pro­cesses listed in sched­ule 2 pro­vide a frame­work or guide for the im­ple­men­ta­tion of any SIP, and that the time frames pre­scribed may not be ex­ceeded. In its sub­mis­sions, Telkom sug­gested the time­lines in sched­ule 2 were un­re­al­is­tic. The Cen­tre of En­vi­ron­men­tal Rights sug­gested the “fast-track” ef­fect would dras­ti­cally re­duce the time nec­es­sary (and le­gally re­quired) for as­sess­ing en­vi­ron­men­tal and so­cial im­pacts. The South African Lo­cal Govern­ment As­so­ci­a­tion sub­mit­ted that the time frames were un­rea­son­able and bore no re­la­tion to ex­ist­ing leg­is­la­tion reg­u­lat-

The draft bill aimed to fast­track strate­gic in­fra­struc­ture de­liv­ery by short­en­ing the time re­quired to ob­tain reg­u­la­tory ap­provals re­quired for projects

ing land devel­op­ment. Busi­ness Unity SA sug­gested that a bet­ter ap­proach to time frames would be a more flex­i­ble one — the rel­e­vant steer­ing com­mit­tee should de­ter­mine up­front a re­al­is­tic (and ag­gres­sive) time­line.

Ul­ti­mately, the time frames have re­mained un­changed in the act. How­ever, the leg­is­la­ture has added new clauses to s17. These pro­vide a mech­a­nism for ex­tend­ing the pe­riod for com­plet­ing a process, if the rel­e­vant of­fi­cial makes a writ­ten re­quest to “the ex­e­cut­ing au­thor­ity”. This mech­a­nism may prove un­sat­is­fac­tory if the sched­ule 2 time­lines are se­verely un­re­al­is­tic, or the ex­ten­sion mech­a­nism proves to negate the in­ten­tion to speed up in­fra­struc­ture projects.

S5 of the act, the ex­pro­pri­a­tion clause, al­lows the PICC to ex­pro­pri­ate land for the pur­poses of im­ple­ment­ing a SIP. Telkom, the South African Lo­cal Govern­ment As­so­ci­a­tion and the In­dus­trial Devel­op­ment Cor­po­ra­tion made sub­mis­sions on the va­lid­ity of the ex­pro­pri­a­tion clause. Par­ties ques- tioned whether it was nec­es­sary for the PICC to ef­fect ex­pro­pri­a­tion when the en­tity im­ple­ment­ing the project should be re­spon­si­ble for this as­pect. How­ever, the ex­pro­pri­a­tion clause has re­mained, al­beit more el­e­gantly worded. The new clause re­quires the PICC, be­fore ex­pro­pri­at­ing land, to con­sult with the or­gan of state in whose favour the ex­pro­pri­a­tion is to be made.

Many of the sub­mis­sions to par­lia­ment ex­pressed ap­pre­ci­a­tion of the act’s at­tempt to re­duce bu­reau­cracy as­so­ci­ated with in­fra­struc­ture devel­op­ment and so speed up in­fra­struc­ture roll-out. How­ever, there was a worry the act would have the re­verse ef­fect — it would add ex­tra reg­u­la­tion and slow down the broader process. The act of­fers only two real mech­a­nisms (or in­cen­tives) to achieve its aims:

It puts in place fairly strict time frames for ob­tain­ing nec­es­sary ap­provals; and

It tasks steer­ing com­mit­tees with pro­vid­ing con­crete as­sis­tance to SIPs.

Steer­ing com­mit­tees are re­quired to iden­tify all nec­es­sary au­tho­ri­sa­tions, li­cences, per­mis­sions and ex­emp­tions and in­struct the ap­pli­cant to sub­mit ap­pli­ca­tions for these si­mul­ta­ne­ously. Steer­ing com­mit­tees are also re­quired to en­sure that ap­pli­ca­tions are com­plete and com­pli­ant and to mon­i­tor pro­cess­ing of ap­pli­ca­tions.

Cyn­ics will ar­gue that nei­ther of these mea­sures will as­sist in speed­ing up in­fra­struc­ture devel­op­ment, since none of the ex­ist­ing leg­isla­tive red tape has been re­moved. Time will tell whether in­fra­struc­ture devel­op­ment is im­proved or hin­dered as a re­sult.

Pic­ture: THINKSTOCK

BAL­ANC­ING BU­REAU­CRACY VS EF­FI­CIENCY

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