On 28 January 2014, Economic Development Minister Ebrahim Patel announced that changes had been made to the contentious Infrastructure Development Bill to strengthen its constitutionality, to reduce ambiguity and to ensure that public consultations are properly effected.
Prior to the release and inevitable dissection of this latest version of the Infrastructure Development Bill, it is worthwhile to be reminded of the background to the Bill and the debate surrounding both its relevance and suitability in a South African context.
In his 2013 Budget, Finance Minister Pravin Gordhan allocated ZAR 827 billion to be spent on infrastructure delivery over the next three years. This allocation was a reflection of government's increasing awareness of the dire need to stimulate economic growth in the country and to develop a sustainable and co-ordinated infrastructure plan. These considerations were the catalyst for the Infrastructure Development Bill, dubbed the Bill that "will establish the necessary legislative tools for the biggest public infrastructure programme in SA history" by Minister Patel in a The Mercury report.
In terms of the Bill, the Presidential Infrastructure Co-ordinating Committee (PICC) is bestowed with the powers to identify strategic infrastructure projects (SIPs); to facilitate the process of planning, approving and implementing them; and to ensure co-operation and co-ordination between the different organs of state and other SIPs. This process is designed to ensure that large infrastructure projects are implemented in a timely, integrated and efficient manner.
But the Bill has been a bone of contention almost immediately following its publication in February 2013, and Minister Patel's announcement comes on the back of numerous concerns raised by organisations and government bodies during the first round of public hearings held in Parliament on 14 January 2013. Thirty submissions were presented to Parliament and, although there were those that exhibited support for the Bill (for example, the labour movement); many questioned the constitutionality of the Bill and raised concerns about its vagueness and the lack of consultation in drafting the legislation.
Environmental experts have been particularly vocal in voicing their misgivings about the Bill. Their concerns stem mainly from Schedule 3 to the Bill, which prescribes only 250 days for the authorisation of SIPs, which timeframe may not be exceeded. It has been argued that the time periods prescribed by the Bill not only contradict existing, well-established procedures for environmental impact assessments (the National Environment Management Act stipulates 300 days for the approval of a project), but are also not sufficient to allow for responsible scientific assessment of the detrimental impacts of SIPs on the environment. Public participation could also be curtailed as a result of the fast-tracked development.
Others have chastised the Bill for failing to make any reference to sustainable development, which is a requirement in terms of section 24 of the Constitution. The section requires that legislation "secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development".
In its submission on 14 January, the Legal Resources Centre (LRC) submitted that although the Bill does make provision for public consultation, it fails to adequately provide for the protection of marginalised, rural communities on communal land; and to facilitate the decision-making processes and input of these rural communities. The LRC also contended that the 30-day public consultation process prescribed in Schedule 2 of the Bill overlooks the layered and often time-consuming nature of customary decision making – an oversight that is, according to the LRC, contrary to South Africa's international and regional human rights obligations.
The South African Local Government Association (Salga), in turn, argued that the broad powers bestowed on the PICC by the Bill could constitute interference with the constitutional powers of municipalities. While the PICC has been granted the discretionary power to designate SIPs, the Bill fails to furnish adequate guidelines as to how this power should be exercised. Salga pointed out that the Constitutional Court in Dawood v Minister of Home Affairs 2000 3 SA 936 (CC) held that Parliament cannot confer an administrative discretion on functionaries without providing any guidelines as to how such discretion should be issued.
Salga specifically asserts that the Bill empowers the PICC to decide on the awarding of tenders and that this power would overlap with municipalities' responsibilities. There is also the risk of political pressure being placed on government departments to grant authorisations for SIPs without adequate impact assessments. This, it argues, is a potential violation of the constitutional guarantee of just administrative action entrenched in section 33 of the Constitution.
Salga further proposed that the Bill as a whole is not a necessary regulatory mechanism – a sentiment echoed by others in the public domain. Many have postulated that existing infrastructure approval and development processes are already sufficient to facilitate an integrated and streamlined infrastructure programme. They suggest that government should be focusing on better project management and leadership, rather than adding another layer to the bureaucratic process of obtaining approvals for infrastructure projects.
In its submission to Parliament, Business Unity South Africa (Busa) criticised the Bill's lack of clarity in the treatment of private sector projects; the risk of preferential treatment being given to state-owned infrastructure when there is competition with the private sector; as well as the failure of the Bill to provide guidance as to how conflicts with other legislation would be dealt with.
Others have argued that the Bill's intentions and objectives are ill-defined; that it will confuse the roles and responsibilities of the three spheres of government; that the PICC's powers go beyond that of infrastructure, that the Bill lacks sanctions for those who fail to meet the prescribed timelines; and that the Bill should include a priority clause over existing legislation.
However, notwithstanding the above, the Bill also has many ardent supporters, including the Congress of South African Trade Unions, Transnet, Rand Water and Telkom. These organisations argue that they fully support any intervention that expedites infrastructure development, and agree that the institutionalisation of coordinating infrastructures is a positive step towards achieving this goal.
There are also counter-arguments to be made to many of the abovementioned criticisms of the Bill. There are, for instance, those that welcome the shorter time periods for approval, and believe that environmental and other authorities will merely have to learn to become more streamlined and efficient in their processes. Others, in turn, believe that section 8 of the Bill, which prescribes that any conflict which arises as a result of a tender must be resolved in terms of Intergovernmental Relations Framework Act, No. 13 of 2005, is sufficient to allay fears that the PICC may infringe on the powers of municipalities.
The Centre for Environmental Rights has argued that the Bill and the National Infrastructure Plan has the opportunity to ensure the entrenchment of sustainability in infrastructure development in a more transparent, accountable manner. Although the Infrastructure Development Bill cannot address all of the coordination challenges raised by interested parties, it is fair to say that, in its current form, it has also failed to fully exploit some of these opportunities.
There is no doubt that the Bill's aims are laudable, given South Africa's pressing economic development and job creation needs, but without proper regard to the Constitution, public support and awareness of social and environmental impacts, any successes that may be achieved by the Bill could be outweighed by its challenges. The objectives are praiseworthy, but the implementation needs fine-tuning.
That being said, Patel's announcement serves as a positive sign that the Department of Economic Development has taken note of, and is trying to assuage, the public's concerns. Interested parties will now be turning their attention to the latest version of the Bill, and it will be interesting to see whether the Bill's detractors will be silenced.