The Infrastructure Development Bill

By Nikita Lalla - director in the construction and engineering department at ENSafrica (Opinion)

The Infrastructure Development Bill was first introduced in February 2012 with the aim to fast track infrastructure development projects in South Africa. When it was released for public comment in 2012, a number of concerns were raised and the Bill was subsequently amended. The amended Bill was passed by the National Assembly on 25 February 2014. On 26 March 2014, the National Council of Provinces (NCOP) Economic Development Committee convened and approved the amendments to the Bill without call for further amendments. The Bill was signed by the President on the 10th June 2014; however it is not yet in effect.

The Bill introduces the concept of Strategic Integrated Projects (SIPs). These are projects “…which are of significant economic or social importance to the Republic or a region in the Republic or which facilitate regional economic integration on the African continent, thereby giving effect to the national infrastructure plan.” (Part 1, 2(b) of the Bill).

The Bill takes a robust approach to clearing the usual bureaucratic stumbling blocks which have historically delayed infrastructure projects. It does this in various ways: by bringing together numerous departments and spheres of government; the introduction of strict timeframes for planning phases; provisions dealing with the expropriation of land earmarked for SIPs; the interaction of the Bill with the relevant spatial planning and land use policies; and the introduction of various new bills that will complement the goal of speeding up the implementation of SIPs. The Bill is also retrospective in terms of scope, in that it empowers committees that are already in existence and that currently oversee 18 SIPs. These include the Durban-Free State-Gauteng logistics and industrial corridor and the revitalisation of public hospitals and health care facilities.

Importantly, the Bill also seeks to combat possible corruption and there is an emphasis on procedural fairness and standards of administrative justice. The Bill brings together the three spheres of government and other stakeholders in various sub-committees. These include the Presidential Infrastructure Coordination Commission (PICC), the Management Committee, the Secretariat and steering committees. 
The Bill as passed still does not contain any sanctions for failing to comply with these ambitious time periods.

One of the criticisms of the Bill was its potential unconstitutionality - the over-arching powers given to the three spheres of government encroached on that of provincial and local government and the time frames for public consultation. The Bill as passed includes an additional requirement which states that any person acting in terms of it must do so in a manner that is consistent with the Constitution and the boundaries between the different spheres of government.

The Bill gives the PICC the mandate to expropriate land in instances where an infrastructure project has been deemed a SIP. The power that the Bill gives the President in this regard continues to be of concern with detractors stating that the Bill still provides too much power to the President without appropriate parliamentary oversight. The expropriation of land is governed by a number of pieces of legislation and Government has stated that any concerns regarding the scope given to the PICC in terms of land expropriation will thus be sufficiently dealt with and expropriation will be done in terms of current law. Over and above relevant existing legislation, there are two additional draft pieces of legislation which will impact the process by which land is expropriated namely, the Draft Expropriation Bill and the Property Valuation Bill which were released for comment in March and May 2013 respectively. The interplay between these and existing pieces of legislation will be critical to the process of identifying land to be expropriated as well as ensuring the delivery of SIPs within the timeframes provided for in the Bill. It remains to be seen how expropriations will be implemented in practice.

The PICC is also responsible for the co-ordination of various departments in the implementation of the provisions of the Bill. The wide scope of projects which could fall under the ambit of the Bill as outlined in Schedule 1 (Section 7 (1)(a)) necessitates effective co-operation between a number of departments for the successful delivery of large projects.

Although there is yet to be consensus as to the interpretation of the Bill and if it can be effectively implemented, there is no doubt that it is a significant step forward in terms of creating a legislative framework to expedite the delivery of infrastructure projects.
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