South Africa: Implementing Strategic Infrastructure Projects

Last Updated: 30 August 2013
Article by Nikita Lalla, Mbali Lembede, Zama Ngcobo and Kate Swart

Most Read Contributor in South Africa, September 2018

Part 3

The Bill takes a robust approach to clearing the usual bureaucratic stumbling blocks, which have historically led to the backlog in infrastructure development. This includes the introduction of strict timeframes for planning phases, provisions dealing with the expropriation of land earmarked for the Strategic Infrastructure Projects (SIPs), the interaction of the Bill with the relevant spatial planning and land use policies and the introduction of various new bills, which will complement the goal of speeding up the implementation of SIPs.

Timeframes

In line with the overall emphasis on ensuring timely delivery of infrastructure projects, the Bill imposes tight deadlines on authorities tasked with approving aspects of the projects. To expedite regulatory hurdles such as approvals, licences or exemptions, the Bill provides that all such processes must run concurrently. Furthermore, it sets out specific timeframes which may not be exceeded. These include:

  • Once a project plan has been approved and the relevant steering committee has determined the applicable legislation and authorisations required for the project, the applicant must compile and submit an application and project plan for consideration by the relevant authority within seven days.
  • The public consultation process may not exceed 30 days.
  • Once public consultation has been concluded, the application and project plan must be amended and re-submitted to the relevant authority for consideration and approval within 52 days.
  • Once the project plan is approved, a detailed development and mitigation plan must be prepared and submitted to the relevant authority within 60 days.
  • Public consultation on the development and mitigation plan must then take place and comments must be reviewed by the relevant authority within 44 days.
  • And finally, the relevant authority has a further 57 days in which to consider and assess the development and mitigation plan and to make a regulatory decision.

Though the inclusion of these timeframes is a positive sign, there is no consequence for failure to comply. Some type of sanction needs to be imposed before the Bill comes into force.

Political muscle

As discussed in our previous article, the Bill places politically and bureaucratically powerful players in the various committees at different levels of authority and brings together various spheres and departments of government. This is clearly done with a view to creating management structures, which are able to solve problems as they arise, rather than having to wait for the relevant authorities to co-operate.

There is a focus on placing decision-makers in the steering committees, which oversee each SIP. This is done in order to get around some of the biggest snags in construction – the granting of approvals, authorisations, exemptions and licenses necessary for implementation of projects.

To try to improve the application process, officials responsible for environment, water, public works, finance, planning and land use management may form part of a steering committee. This will have two big advantages – the relevant official can (and is in fact obligated to) ensure that the application is put together correctly and complies with the applicable legislation before submission and can thereafter follow up in the corridors of power to ensure that the paperwork is not lost in the system.

Should any "regulatory concerns" come to light while the official is monitoring the processing of the application, this must be reported to the steering committee. Legislative changes, which are needed to achieve the Bill's goals can, therefore, be suggested (and some such changes are already being implemented, as discussed further on).

If an application for any required authorisation is refused, the relevant authority must provide reasons to the steering committee, which in turn reports the refusal to the Secretariat, which may then enter "negotiations" with a view to obtaining the necessary authorisation while making every effort to avoid an intergovernmental dispute. Should more political muscle be required, the Secretariat may also escalate the problem to the Management Committee or even the PICC for a decision or action.

This process, though streamlined and designed to speed up implementation of the SIPs, could lead to authorisations being pushed through despite reservations by the relevant authorities. This risk must, therefore, be carefully monitored.

Interaction with other legislation and policy

The Bill expressly calls for all state owned entities and organs of state to ensure that their planning and implementation of infrastructure, spatial planning and land use do not conflict with any SIPs implemented in terms of the Bill or in the national infrastructure development plan. Any conflicts must be dealt with in terms of the Inter-governmental Relations Framework Act (the IRF Act).

This approach seems to imply that the implementation of the SIPs is more important than, for example, the spatial land use and environmental planning by local authorities. This may lead to conflicts developing within the various committees, which is problematic given that government often eschews the dispute resolution mechanism of the IRF Act in favour of the courts. Should this trend continue, it may inadvertently slow down the planned pace of implementation. It remains to be seen how effectively the various spheres and departments of government are able to work together. Previous spats between spheres of government about the complex levels of authority relating to land use and planning led to a Constitutional Court ruling in 2010 which declared that certain provisions of the Development Facilitation Act were invalid and that rezoning was essentially an exclusive municipal function.

In light of this ruling the Spatial Planning and Land Use Management Bill was re-introduced in June 2012 and aims to delineate the powers and functions of local government planning in the national interest as well as repealing the problematic Development Facilitation Act. It aims to provide for co-operative government and inter-governmental relations among the national, provincial and local spheres, while supporting the environmental legislation and other laws applicable to municipalities.

Expropriation is specifically addressed in the Bill, which empowers the PICC to expropriate land needed for SIPs. It is clearly stated in the Bill that all the relevant legislation, including the Constitution, must be strictly complied with. However, a Draft Expropriation Bill (which has had a facelift since its previous introduction in 2008) was released for public comment in March 2013 and may change the way expropriations take place by allowing the state to take possession of property simply by notice, before compensation is paid and without an agreement on the amount to be paid. Another Bill, which will play a large role in ensuring the smooth implementation of SIPs, was introduced for comment in May 2013. The Property Valuation Bill aims to establish the office of the Valuer-General, who will be tasked with valuing land identified for land reform or expropriation.

Environmental authorisation procedures also significantly slow down projects. The Minister of Water and Environmental Affairs, Edna Molewa, reported in her Budget Vote address that the environmental authorisation process is being streamlined by the Department to facilitate the implementation of the SIPs. This is being done through the use of Strategic Environment Assessments, which are being developed in order to accelerate environmental authorisations without undermining sound environmental impact principles.

To ensure that decisions on the granting of environmental authorisations for SIPs take top priority, amendments to the National Environmental Management Act (NEMA) have been proposed in the National Environmental Management Laws Second Amendment Bill (NEMLA 2), which was passed by the National Assembly in June 2013 and which has been sent to the National Council of Provinces for concurrence. NEMLA 2 proposes amendments to the provisions identifying the competent authorities authorised to make decisions on granting environmental authorisations. It states that Cabinet may identify the Minister of Environmental Affairs as the competent authority to grant such authorisations where the activities are declared a "national priority."

Another suggested amendment provides that, where a competent authority fails to make a decision within the prescribed timeframes, the applicant may leap-frog them and apply directly to the Minister to take the decision.

Implementation

From this, as well as our previous two articles, it is clear that great effort has been taken, both in this Bill and in other new legislation to try to speed up the implementation of the SIPs. The usual stumbling blocks of environmental and planning authorisations and the expropriation process have been addressed and the officials strategically placed in the relevant committees involved with the SIPs to ensure that implementation remains on track.

However, despite the good intentions and the fact that work has started on the first SIPs, murmurs have begun to circulate that the goals of the National Development Plan have been put on hold. The Deputy Public Works Minister, Jeremy Cronin, was recently quoted as saying that it was "impossible to implement."

Though it remains to be seen, therefore, whether this mighty plan will come together in the end, it is clear that all the groundwork is being put in place by government to ensure that it does. This includes the numerous bills and amendments to legislation, which are in the process of being passed and which will pave the way for smooth implementation of projects and the various provisions contained in the Bill itself, which introduce innovative structures to overcome problems, which usually slow projects down.

Though it is inevitable that there will be issues along the way, if these are approached with the same determination that has been present in the fledgling stages of the Bill, they will be overcome.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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