I, Angela Thokozile Didiza, Minister for Agriculture and Land Affairs, hereby publish the Surveying Profession Bill for general comment.
Bill published in Government Gazette No.
Surveyors; to provide for different categories of surveyors and the registration of surveyors; to authorise the identification of areas of work for surveyors; to recognise certain voluntary associations; to protect the public from unethical surveying practices; to maintain a high standard of professional conduct and integrity; to establish disciplinary mechanisms and an Appeal Board; and to provide for incidental matters.
"National Qualifications Framework" means the National Qualifications Framework as defined in section 1 of the South African Qualifications Authority Act, 1995 (Act No.
"survey technician" means a person registered as.
Petroleum Resources Development Act, 2002 (Act No.
"voluntary association" means any voluntary association, organisation; institute, institution or other body of surveyors recognised by the Council in terms of section 17.
The following principles apply to the Council and all registered persons and must guide the interpretation, administration and implementation of this Act:.
the design, establishmentand administratian-of-geographic information systems and the collection, storage, analysis, visualisation and management of geoinformation; and the measurement of land, mineral and marine resources.
Surveying must pursue and serve the interests of the public to benefit the present and future generations.
promote environmentally responsible surveying which will ensure sustainable development.
The Council must perform the functions determined in this Act.
eleven surveyors who are not in the full-time employ of the State; , and no more than two, but at least one person to represent the interests of the public.
The Minister must appoint, from the members of the Council, a chairperson, a deputy chairperson and an alternate chairperson of the Council.
When the chairperson is unable to perform the functions of that office, they shall be performed by the deputy chairperson or, if the deputy chairperson is unable to do so, by the alternate chairperson.
inviting all interested persons, voluntary associations, institutions and organisations to submit nominations; and taking any other steps he or she deems necessary.
In appointing members of the Council, the Minister must have due regard to the surveying profession principles contained in section 2, the different categories and branches of the surveying profession and the need to ensure and promote gender, disability and other demographic representativity.
Every member of the Council must be appointed for a period of four years, but the Minister may in his or her discretion extend the term of such a f member by a further period not exceeding three months until a new Council or member has been appointed.
A member of the Council may not serve for more than two consecutive terms of office.
Minister must publish in the Gazette the names of and positions held by each appointee to the Council and the date on which each appointment takes effect.
If a member of the Council dies or vacates his or her office before the expiry of the period for which he or she was appointed, the Minister may appoint a person to fill the vacancy for the unexpired podion of the period for which such member was appointed: provided that the appointment does not alter the composition of the Council as set-out in subsection (1).
is declared by a court of law to be mentally incompetent or is detained in terms of the Mental Health Act, 1973 (Act No.
has been determined by a court, tribunal or forum as contemplated by the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act No.
is a political representative at the national, provincial or municipal sphere of government; or is not a fit and proper person to be so appointed.
his or her appointment has ceased; or he or she is not, within one year from the.
or within such extended period as the Minister may approve, a registered person.
The Council may designate one of the members of a committee as chairperson of the committee.
Any reference in this Act to the Council or the chairperson of the Council in relation to the exercise of any power which the Council has delegated to a committee, must be construed as including a reference to that committee or to the chairperson of that committee, as the case may be.
serve solely as a committee on. educational and training matters;and advise 'or assist the Council as.
matters contemplated in section'8 the methods and procedures for the assessment and registration in the various categories of registered persons; and all educational, training, skills development and related matters.
The provisions of section 10 apply, with the necessary changes, in respect of a committee of the Council.
support the functioning of disciplinary and appeal structures established under this Act; and ensure and promote a high standard of education and training in . the surveying sector.
1995 (Act No.
may grant, conditionally grant, refuse or withdraw the accreditation of educational programmes with regard to.
must deal with matters pertaining ta education and training in consultation with the Council on Higher Education established in terms of the Higher Education Act, 1997 (Act No.
investing funds, borrowing or' lending money or entering into any lease, whether as lessor or lessee, if the period of the transaction will be longer than 12 months, and the value exceeds an amount prescribed by the Minister from time to time by publication of an appropriate notice in the Gazette;and acquiring, other than as a lessee, or disposing of or encumbering immovable property, irrespective of its value; and must invest its funds only in registered financial institutions considered appropriate by the Department of the National Treasury.
determined by the Minister and subsequent meetings of the Council must be held at such times and places as determined by the Council.
The Council must hold at least two meetings each year but may hold such further meetings as it determines from time to time.
The chairperson may at any time on reasonable grounds and on notice of the purpose of the meeting convene a special meeting of the Council to be held on a date and place that he or she determines.
the Minister; or at least one third of the Council members, on notice of the purpose of the meeting...
The special meeting requested in terms of subsection (4) must be held within 30 days after the date of receipt of the request, on a date and at a place that the chairperson determines.
A majority of the members of the Council constitutes a quorum at any meeting of the Council.
Ifwithin half an hour after the time appointed for any meeting a quorum is not present, the meeting must be adjourned to a date to be determined by the chairperson, which date must not be earlier than seven days and not later than 21 days after the date of the meeting and the members present at such meeting constitute a quorum.
The minutes of, and the reports tabled at, the meetings or proceedings of the Council must be forwarded to the Minister within 30 days after the conclusion of each meeting or proceeding.
A decision of the majority of the members of the Council present at any meeting constitutes a decision of the Council.
In the event of a deadlock the chairperson has a casting vote in addition to a deliberative vote.
A decision taken by the Council or act performed under authority of the Council is not invalid by reason only of a vacancy on the Council or of the fact that a person who is not entitled to sit as a member of the Council sat as a member at the time when the decision was taken or the act was authorised, if the decision was taken or the act was authorised by the requisite majority of the members of the Council who were present at the time and entitled to sit as members.
The Minister may after consultation with the Council and any person directly affected by a Council decision suspend or revoke that decision on good grounds and if it is in the public interest to do so.
The Minister must, after suspending the decision of the Council and before its revocation, remit such decision to the Council for its reconsideration.
The chairperson, deputy chairperson, other members of the Council and members of committees of the Council who are not members of the Council, excluding such a member who is in the full-time service of the State, must out of the funds of the Council be paid such remuneration and allowances as the Minister, with the ccmcurrence of the Minister of Finance, may determine from time to time.
The funds of the Council consist of any money received by it in terms of this Act and all other moneys'which may accrue to the Council from any other source.
The Council may establish and administer an education fund for the purpose of the education, training-and continued education and training of registered persons and students in the surveying profession.
The Council must keep a full and correct account of all morleys received and expended by it.
The Council must annually prepare a statement of income and expenditure and a balance sheet showing a financial position at the close of the financial year, and must have the statement and balance sheet audited, by an auditor registered in terms of the Public Accountants' and Auditors' Act, 1991 (Act No.80 of 1991).
A copy of the auditor's statement and balance sheet must be open for public inspection at the offices of the Council.
The Council must within six months from the close of each financial year, submit the auditor's statement and balance sheet to the Minister.
The Minister may, with the concurrence of the Minister of Finance, on receipt of a budgeted request grant to the Council, out of money appropriated by Parliament, such amounts as he or she considers necessary in order to enable the Council to carry out its functions and may determine the conditions of the grant.
survey technologist; and professional surveyor.
Any person who wishes to be registered, must apply in the manner prescribed by the Council.
The Council must consider an application for registration and must register the applicant in the relevant category, and issue to him or her.
has undergone practical training of not less than one year or as may be prescribed by the Council; and has passed a competency assessment determined by the Council, or that the applicant possesses such other qualifications as defined in the South African Qualifications Authority Act, 1995, as may be determined for the relevant category from time to time by the South African Qualifications Authority in terms of that Act and by the Council.
Only a registered person may describe himself or herself in terms of the category and, if applicable, the branch of surveying, in which he or she is registered.
The Council may determine abbreviations or acronyms for the categories of registration referred to in subsection (1).
has had his or her name removed from any professional register on account of misconduct and who has not been reinstated; or is not, in the Council's opinion, a fit and proper person to be registered.
was registered on the basis of incorrect information; or fails, without good reason and in the absence of an arrangement for deferred payment, to pay any amount owing to the Council on the due date or any extended date, may be cancelled in terms of this section.
The Council must notify such a person df the intention to cancel his or her registration and call for'representations to be made within a specified reasonable time.
Unless the Council is thereafter satisfied that good grounds exist for such person's registration to continue, it must cancel that registration.
The Council must, at the written request of any registered person, remove his or her name from the register, but where an investigation into an alleged improper conduct by such a registered person is in progress or is to be held, such removal must not be made until any resultant misconduct proceedings have been concluded.
or resigned; or wishes to be registered in a different category, may apply to be re-registered.
If a person contemplated in subsection (4) has paid the prescribed application and registration fees and any arrear fees, subscriptions, recovery expenses and penalties, the Council must, subject to the provisions of this Act, re-register such person in the appropriate category.
Any person whose registration has been cancelled must return his or her certificate of registration to the Registrar within 30 days from the date upon which he or she is directed by the Registrar in writing to do so.
If the person referred to in subsection (1) cannot return a certificate as required, he or she must provide written reasons on affidavit to the Registrar's satisfaction for the inability to return the certificate.
The Council must consult with all voluntary associations and any person, body or industry determined by the Minister regarding the identification of certain areas of surveying work to be reserved for registered persons, including f work which may fallwithin the scope of any other profession.
After such consultation, the Council must prescribe the areas of surveying work to be reserved for each category of registered persons.
pretend to be, or in any manner hold himself or herself out or allow himself or herself to be held out as, a person registered in terms of this Act; or use the name of any registered person or any name or title referred to in section 13(1).
Notwithstanding the provisions of subsections (2) and (3), the Council may identify certain areas of work which may be carried out by persons registered in terms of other legislation, without subjecting such persons to the prohibitions contained in subsection (3).
The provisions of this section may not be construed as prohibiting any person from performing work reserved, if such work is performed in the service of or by order of and under the direction, control, supervision of or in a formal association with a registered person entitled to perform that reserved work and who must assume responsibility for any work so performed.
Recognition of voluntary.
Any voluntary association which has as its main object the promotion and protection of the interests of the surveying profession, and which applies its profit, if any, in promoting its said main object, may apply to the Council to be recognised as such.
The Council must, within 90 days after its first meeting, prescribe the requirements and procedure for the recognition of a voluntary association.
The Council may, if the voluntary association complies with the rules made under section 30 (2), recognise that organisation and issue to it a certificate of recognition.
A certificate of recognition is valid for a period of five years from the date of issue so long as the voluntary association continues to comply with the rules.
A voluntary association must, at least three months prior to the expiry of its recognition, apply in the prescribed manner to the Council for renewal thereof.
A voluntary association whose recognition has lapsed must on written request of the Registrar return its certificate of recognition to the Council within 30 days from the date upon which it is directed by the Registrar to do so, unless it provides written reasons on affidavit to the Registrar's satisfaction for not returning the certificate.
The Council must include in its rules a code of conduct for registered persons.
The Council is responsible for administering the code of conduct and must ensure that the code of conduct is available to registered persons and members of the public at all reasonable times.
to accurately represent his or her qualifications to practice surveying as well as his or her education and affiliations; and to respect the rights of every person and not violate any right of another person protected by the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996).
accepts remuneration for the performance of work reserved for registered persons from any person other than his or her client or employer without the prior approval of such client or employer; or fails to comply with the provisions of this Act.
Investigation of charge of improper conduct one or more investigating officers as it deems fit to investigate any charge of improper conduct.
the Council must, as soon as is reasonably possible, refer the matter for investigation.
investigate the matter; and obtain evidence to determine whether or not in his or her opinion the person concerned. should be charged or not, and if so, recommend to the Council what the contents of the charge in question should be.
has the right to be assisted or represented by another registered person or a legal representative; and is not obliged to make any statement and that any statement so made may be used in evidence against that registered person.
The investigating officer must, after the conclusion of the investigation, submit a report making his or her recommendations to the Council regarding any matter referred to it in terms of this section.
The Council must after considering the investigation report charge the registered person with improper conduct if the Council is convinced that sufficient grounds exist for such a charge to be made against such a registered person.
The Council must, by hand or registered mail, deliver to a registered person who is charged with misconduct a charge sheet setting out the details and nature of the charge together with a copy of the investigation report.
that he or she may, together with the admission or denial, submit a written explanation regarding the improper conduct with which he or she is charged; and of the period, which must be reasonable, within which his or her plea in terms of paragraph (a) and explanation in terms of paragraph (b) must be submitted to the Council.
may be imposed in respect of such charge, find such registered person guilty without referring the charge to a disciplinary tribunal and may impose an appropriate sanction.
The acquittal or the conviction of a registered person by a court of Jaw on a criminal charge is not a bar to conduct proceedings'against him or her under this Act on a charge of improper conduct, even if the facts stated in the charge of improper conduct would, if proved, constitute the offence stated in the criminal charge on which he or she was acquitted or convicted or any other offence of which he or she might have been acquitted or convicted at his or her trial on the criminal charge.
may be imposed in respect of such charge.
a person qualified in law and who has at least five years' experience in the legal profession; and a person with specialised knowledge of matters concerning the charge if the Council deems it necessary.
The members of the disciplinary tribunal must amongst themselves elect a chairperson to chair the proceedings.
The Registrar must perform the administrative functions necessary to support the functioning of a disciplinary tribunal.
who in its opinion may be able to give material information concerning the subject of the hearing; or who it suspects or believes has in his or her possession or custody or under his or her control any book, document or object which has any bearing on the subject of the hearing, to appear before the disciplinary tribunal at the time and place specified in the subpoena, to be questioned or to produce a book, document or object.
be signed by the chairperson of the disciplinary tribunal or, in his or her absence, any member ot the disciplinary tribunal; and be served on the subpoenaed person personally or by sending it by registered mail.
for the duration of the hearing.
The chairperson of the disciplinary tribunal may call upon and administer an oath to, or take an affirmation from, any witness.
without sufficient cause, fail to answer fully and satisfactorily to the best of his or her knowledge to all questions lawfully put to him or her; or fail to produce any book, document or object in his or her possession or custody or under his or her control which he or she is required to produce.
A witness who has been subpoenaed must remain in attendance until excused by the chairperson of the disciplinary tribunal from further attendance.
A witness who has been subpoenaed may request that the names of the members of the disciplinary tribunal be made available to him or her.
The law relating to privilege, as applicable to a witness subpoenaed to give evidence or to produce a book, document or object in a civil trial before a court of law must, with the necessary changes, apply in relation to the examination of, or the production of any book, document or object to the disciplinary tribunal by, any person called in terms of this section as a witness.
A witness may not, after having been sworn or having been affirmed as a witness, give a false statement on any matter, knowing that answer or statement to be false.
No person may unlawfully prevent another person from complying with a subpoena or from giving evidence or producing a book, document or object which he or she, in terms of this section, is required to give or produce.
the record is accompanied by a certificate from the chairperson of the relevant disciplinary tribunal; and the certificate-certifies that the investigation was lawful, reasonable and procedurally fair.
If the improper conduct with which the registered person is charged amounts to an offence of which he or she has been convicted by a court of law, a certified copy of the record of his or her trial and conviction by that court is, on the identification of the registered person as the person referred to in the record, sufficient proof of the commission by him or her of that offence, unless the conviction has been set aside by a superior court.
The Council may prescribe procedures not inconsistent with this Act for the effective performance of the functions of a disciplinary tribunal.
within 14 days after its decision and in writing, inform the registered person charged and the Council of the finding and the reasons for such finding; and inform the registered person of his or her right of appeal in terms of section 27.
The Council or a registered person found guilty of improper conduct in terms of this Act may offer evidence, including calling witnesses, to establish any aggravating or mitigating circumstances which the disciplinary tribunal must consider in determining an appropriate sanction.
impose on him or her a fine not exceeding the amount calculated according to the ratio for one year imprisonment determined in terms of the Adjustment of Fines Act, 1991 (Act No.
The disciplinary tribunal may act under more than one of the subparagraphs of paragraph (a).
The disciplinary tribunal may, but is not obliged to, award costs as may be just against the Council or the registered person charged.
At the conclusion of the hearing the disciplinary tribunal must notify the Council of its decision.
The Council must publish the outcome of the disciplinary hearing in its annual reporl andmay-publisbitin any other manner it considers fit.
The Council must give effect to the decision of the disciplinary tribunal.
The Registrar must keep a record of the proceedings of every tribunal hearing.
There is hereby established an Appeal Board with jurisdiction to hear appeals in terms of this Act.
Two members of the public of whom at least one person is qualified in law and has at least five years' experience in the legal profession.
The Minister must appoint, from the members of the Appeal Board, a chairperson and a deputy chairperson and an alternate chairperson of the Appeal Board.
When the chairperson is unable to perform the functions of that office, they shall be performed by the deputy chairperson or, if he or she is also unable to do so, by the alternate chairperson.
The Minister must take into account, among other things, the principles of transparency and representivity when he or, she appoints members of the Appeal Board.
disqualified from membership of the Appeal Board and upon which a member must vacate his or her office, are those referred to in section 5(1), and (d),and in addition, a member office if the member has, without leave of the chairperson of the Appeal Board, been absent from two or more sittings of the Appeal Board during a year.
The chairperson or deputy chairperson may vacate his or her office as such, and such vacation does not terminate his or her membership of the Appeal Board.
An appeal must be heard by not fewer than three members of the Appeal Board, including the chairperson.
A decision of the majority of the members of the Appeal Board present at any meeting in terms of this section constitutes a decision of the Appeal Board.
In the event of a deadlock at a meeting the chairperson has a casting vote in addition to a deliberative vote.
The Appeal Board must conduct appeals in accordance with rules made by the Council under section 30(2).
The Appeal Board must decide an appeal within 60 days after the appeal was lodged and, within the same period, inform the appellant and the Council of its decision.
The Appeal Board must keep a record of proceedings of every sitting held in terms of this section.
The Registrar must perform administrative functions necessary to support the functioning of the Appeal Board.
The remuneration and allowances of the chairperson, the deputy chairperson and every other member of the Appeal Board must be paid out of the funds of the Council as the Minister, with the concurrence of the Minister of Finance, may determine from time to time.
a person aggrieved by a decision of the Council in terms of sections 13 and 14; and a person objecting to a rule in terms of section 30 (4).
Appeal Board must consider and decide the appeal.
uphold an appeal against such a rule or a decision of the Council wholly or in part and set aside or vary the rule, decision, finding or sentence or both the finding and the sentence and must in writing inform the appellant and the Council of its decision and the reasons for it; or award costs as may be just.
If an appeal is dismissed in terms of section 27 (3) (a), the appellant may through the Registrar request the Appeal Board in writing to furnish him or her with its reasons for the decision within 30 days after receipt of the request.
The appellant may, after giving notice to the Appeal Board, lodge a notice of appeal with the Registrar of the High Court of South Africa within 30 days from the date of the decision of the Appeal Board or of receipt of the reasons for the Appeal Board's decision.
The Council may appeal to the High Court of South Africa against any decision of the Appeal Board in terms of section 27(3)(6).
The Council must, after giving notice to the Appeal Board, lodge a notice of appeal with the Registrar of the High Court of South Africa within 30 days from the date of the decision of the Appeal Board.
The Council may annually, but must at least every three years, after consultation with voluntary associations, determine guideline professional fees and publish such fees in the Gazette.
The Council must, before determining the guideline fees in terms of subsection (l), publish a draft of the proposed guideline fees in the Gazette together with a notice calling on interested persons to comment in writing witl-Jn a period of not less than 30 days after such publication, and must consider any comments received.
any other matter for the better execution of this Act.
The Minister must, before making any regulation under subsection (I), publish a draft of the proposed regulation, repeal or amendment in the Gazette together with a notice calling on interested persons or voluntary associations to comment in writing within a period not less than 30 days from the date of publication of the notice.
If the Minister alters the draft regulations as a result of any comment, he or she needs not 'publish those alterations before making the regulations.
generally all matters necessary for or incidental to the exercise of the powers and performance of the functions of a disciplinary tribunal and the Appeal Board; and the fees payable in respect of the lodging of an appeal under this Act and the copying or transcription of records of a disciplinary tribunal or Appeal Board.
Before the Council makes, repeals or amends any rule under this section, it must publish a draft of the proposed rule, repeal or amendment in the Gazette together with a notice calling on interested persons and voluntary associations to comment in writing within a period not less than 30 days from the date of publication of the notice.
If the Council alters the draft. rules. as a result of any comment, it needs not publish those alterations before making the rule.
comment after such publication; or appeal to the Appeal Board against such a rule.
The register serves as evidence of all matters which are required to be or may be entered therein by or under this Act.
A certificate purporting to be signed by the Registrar to the effect. that an entry has or has not been made in the register or that any other thing by or under this Act has or has not been done, is evidence of the matters mentioned in that certificate.
A copy of an entry in the register or of a document in the custody of the Registrar, or of an extract from the register or from any such document, purporting to be certified by the Registrar, must be admitted in evidence in any disciplinary tribunal, Appeal Board hearing or court of law without further proof or production of the original.
if satisfied that such failure was due to an error or oversight and that it would not be to the detriment of any person affected by such failure, and after that person has been informed of such failure, where applicable, authorise it to be done or performed on or before any other day or at any other time or during any other period, and anything done or performed during this period is of full force and effect and is deemed to have been lawfully done or performed in accordance with the provisions of this Act.
The Council, or any member, committee or official thereof, is not liable in respect of any legal proceedings in relation to an act performed in good faith in terms of this Act.
fails to perform an act; or informs the Council or any other appropriate authority of an act, or failure to perform an act, by any other person, which act or failure endangers or is likely to endanger the safety or health of the public or fellow employees, is not liable with respect to any legal proceedings in relation to a refusal, omission or information contemplated in this subsection.
Any person who was registered in terms of this Act and whose registration has been cancelled, is liable for any action taken against him or her while he or she was a registered person.
Board and the power to make regulations, to the Director-General or any other official of the Department.
and (iv) or (0 is guilty of an offence.
hW-for worK--done during the periorof contravention or to a maximum fine equal to the fine calculated according to the ratio determined for a period of three years' imprisonment in terms of the Adjustment of Fines Act, 1991 (Act No. 101 of 1991).
of the Act, is liable to a maximum fine equal to the fine calculated according to the ratio determined for one month's imprisonment in terms of the Adjustment of Fines Act, 1991.
and (iv) or (0 is liable to a maximum fine equal to the fine calculated according to the ratio determined for three years' imprisonment in terms of the Adjustment of Fines Act, 1991.
Any person who is convicted of an offence of contravening the provisions of any other section of this Act, is liable to a maximum fine equal to the fine calculated according to-the ratio determined for one month's imprisonment in terms of the Adjustment of Fines Act, 1991.
In addition to, and independently of, any criminal proceedings contemplated or instituted against a person or body referred to in subsection (l), the Council may, in any court having jurisdiction, institute any civil proceedings against such person or body in order to compel compliance with the relevant provisions of this Act or to interdict any contravention thereof or for any related purpose.
For the purposes of this section, 'effective date' means the date of the first meeting of the Council.
The South African Council for Professional and Technical Surveyors established by section 2 of the Professional and Technical Surveyors' Act, 1984 (Act No.40 of 1984), continues to exist and may exercise its powers and perform its duties and functions after the commencement of this Act until the effective date, on which date that council will cease to exist.
as a surveyor or geoinformation technologist, is entitled to be registered under this Act as a survey technologist; and as a professional surveyor or professional geoinformation practitioner, is entitled to be registered under this Act as a professional surveyor, and must, on applying for registration in terms of this Act, be registered accordingly and issued with the appropriate registration certificate.
or on such later date as the'Minister may determine and publish in an appropriate notice in the Gazette.
Notwithstanding any other provision of this Act, a person contemplated in subsection (3) who wishes to continue to practice in the profession must be registered in terms of this Act by no later than the end of the transitional period contemplated in subsection (4).
Council and the Council is deemed to have acquired or incurred those rights, obligations, assets and liabilities in terms of this Act.
Any act performed, decision taken, or rule made or purported to have been so performed, taken or made in terms of the Professional and Technical Surveyors' Act, 1984, remains valid unless substituted by any act performed, decision taken or rule made under this Act.
Any notice issued or exemption granted by the Minister in term of the Professional and Technical Surveyors' Act, 1984, remains valid unless substituted by a notice issued or exemption granted under this Act.
Surveyors' Act, 1984, which is pending at the cornmencement date of this Act, must be finalised in terms of that Act.
The Professional and Technical Surveyors' Act, 1984, is hereby repealed.
The laws mentioned in the Schedule to this Act are hereby amended to the extent set out in the third column of the Schedule.
This Act is called the Surveying Profession Act, 2005, and comes into operation on a date fixed by the President by proclamation in the Gazette.
By the substitution in section 1 for definition of "land surveyor" of the followin!
Survevinc Profession Act, 2005, and whose name i!
the Minister shall, subject to section 50 and the Public Service Act.
to be styled the Chief Director Surveys and Mapping.
Profession Act, 2005.
or 2 as the case may be.
A member of the Board referred to.
Council may, at any time remove thz member from office on grounds c misbehaviour, incapacity or incompetence.
Technical Surveyors, as the case may be may appoint a person to fill the vacancy foi the unexpired part of the term for which the member was appointed or nominated.
The surveying profession in South Africa is regulated by the Professional and Technical Surveyors' Act, 1984 (Act No. 40 of 1984) ("the Act"). The South African Council for Professional and Technical Surveyors, established by the Act, controls the education, training, registration and discipline of surveyors registered in terms of the Act.
The Act provides for the registration of different categories of surveyors. Each of the categories are divided into different fields af namely engineering, mining, cadastral and topographic surveyors.
1.3 In spite of various initiatives by the said Council, the profession is still far from being representative of the South African demographics. Other areas where the profession needs to be transformed are, inter alia, the composition of the Council itself, the entry requirements into the profession, the funding of the Council, rationalisation of the categories of surveyors, work reservation and disciplinary procedures.
benefit of-present and future generations, the Surveying Profession Bill has been drafted.
Chapter 1 of the Bill contains the definitions and surveying profession principles.
2, inter alia, acknowledges that surveying and the surveying profession are areas of expertise involving a number of activities. It acknowledges that surveying must pursue and serve the interests of the public to benefit the present and future generations. It obliges the South African Council for Surveyors ("the Council") to strive to achieve the transformation of the profession to ensure its legitimacy and effectiveness and to achieve high standards of quality and integrity in the profession.
2.2 Chapter 2 provides for the establishment of the Council, its constitution, membership, committees, functions, powers and duties, meetings, decisions, remuneration of members, its funds and the keeping and auditing of accounts. In terms of clause 3 the Council to be established is a juristic person consisting of not more than 19 members to be appointed by the Minister after nominations by the public have been called for. The appointment of members in terms of clause 4 by the Minister will ensure the constitution of a more representative Council because at present the appointments are made from nominations by the professional bodies.
2.3 Clause 5 of the Bill provides for the disqualification of persons as members of the Council and vacation of office.
2.4 Clause 6 of the Bill empowers the Council to establish committees to assist it in the performance of its functions. The Council is obliged to establish an Education and Training Committee to serve solely as a committee on educational and training matters and to advise or assist the Council on these matters.
2.5 Clause 7 of the Bill provides for the functions of the Council. These functions are aimed at regulating the surveying profession in order to promote and protect the public interest, to register persons as surveyors, to institute and enforce disciplinary action, to support the functioning of disciplinary and appeal structures and to ensure and promote a high quality of training. These functions will promote and protect the interests of both the surveying profession and the public.
2.6 Clause 8 of the Bill provides for the powers and duties of the Council with regard to administrative, registration of persons, fees, education and training, financial and general matters. A Registrar who is responsible for the registration of persons in the categories of registered persons must be appointed. The Council must keep and maintain a register of registered persons, which register will be open for public inspection. To determine competency standards, the Council must consult with the South African Qualifications Authority. Accredited visits must be paid to educational institutions which have departments, schools or faculties of surveying, geomatics and geoinformation scienqe.
Matters pertaining to education and training must be dealt with in consultation with the Council on Higher Education. As far as finance is concerned, the Council is empowered to collect moneys due to it, invest funds, raise loans, lend money and mortgage immovable property. The Council may also acquire or lease movable or immovable property.
2.7 Clause 9 of the Bill determines the meetings of the Council.
2.9 Clause 11 of the Bill determines the remuneration of me of the Council and committees of the Council who are not in the full-time e State. Such members are paid out of the Council's funds. The remu on and allowances are determined by the Minister with the concurrence of the Mirif'ster of Finance.
2.10 Clause 12 of the Bill provides for the Council's funds and the keeping and auditing of records. The Minister may, with the concurrence of the Minister of Finance, on receipt of a budgeted request, grant to the Council, out of money appropriated by Parliament, such amount the Minister considers necessary. At present the Council has to contend with funding received from inadequate registration fees. The funding from the budget of the Department will enable the Council to carry out its duties and responsibilities more effectively. The Council's statement and balance sheet must at the close of the financial year be audited by a registered auditor.
2.11 Chapter 3 of the Bills deals with the categories of registered persons, the cancellation of registration of such persons, the return of registration certificates and the identification of surveying profession work. In terms of clause 13 of the Bill, the existing categories of registration are reduced to four, namely candidate surveyor, survey technician, survey technologist and professional surveyor. The entry requirements for each category are brought into line with the South African Qualifications Authority Act, 1995 (Act No. 58 of 1995) and refer only to National Qualifications Framework level. The existing barriers whereby technical surveyors cannot become professionals without completing a university degree, are thus eliminated. The Act does not provide for work reservation and consequently there is no incentive for people to register. The exception is in terms of the Land Survey Act, 1997 (Act No. 8 of 1997), where only registered professional land surveyors may perform cadastral surveys. The provision with regard to work reservation should, therefore, encourage surveyors to register, which will be in the interest of both the surveying profession and the public.
2.12 Clause 14 of the Bill provides for circumstances when a registered person's registration may be cancelled. The person must, however, be notified of the intended cancellation and be given an opportunity to make representations before a decision is taken in respect of the cancellation of registration. In terms of clause 12 of the Bill, a person whose certificate has been cancelled, must W return the certificate of registration to the Registrar within 30 days. This is to protect the public from surveyors performing work for which they are no longer registered.
Clause 16 of the Bill obliges the Council to consult with voluntary associations and any person, body or industry determined by the Minister, pertaining to the identification of areas of surveying work to be reserved for registered persons. The Council may even identify areas of work which may be carried out by persons registered in terms of other legislation. -This 1s to ensure that persons registered perform work for which they are properly trained and to protect the interests of registered persons and the public. This will also contribute to the quality of the work performed.
2.14 Chapter 4 of the Bill deals with the recognition of voluntary associations by the Council. In terms of clause 17 of the Bill, the Council may recognise any voluntary association which has as its main object the promotion and protection of the interests of the surveying profession and which applies its profit in promoting its main objects, as a voluntary association. The recognition of voluntary associations as contemplated in the Bill, could obviously only benefit the surveying profession.
2.15 Chapter 5 of the Bill deals with professional conduct. A code of conduct for registered persons, which must also be available to members of the public, must be provided by the Council.
of the Bill contains a number of requirements pertaining to proper conduct.
determines when a registered person is guilty of improper conduct.
2.16 Clause 19 provides for the appointment of investigating officers to investigate charges of improper conduct. A registered person's right to a fair investigation is protected because he or she may not be questioned unless he or she is informed of the right to be assisted or represented by another registered person or a legal representative and that he or she is not obliged to make a statement and that any statement made may be used in evidence against him or her. After the investigation the investigating officer must submit a report with his or her recommendations to the Council.
2.17 In terms of clause 20 the Council must charge the registered person with improper conduct if sufficient grounds exist. A charge sheet must be delivered to the registered person who may admit or deny the charge. If a registered person charged has admitted his or her guilt of the charge, the Council may find such person guilty without referring the charge to a disciplinary tribunal.
2.18 Clause 21 provides for the appointment of a disciplinary tribunal by the Council if the person charged of improper conduct denies or admits the charge and the charge is subject to the imposition of certain sanctions. The constitution of the members of the disciplinary tribunal is such that the interests of both the Council and the person charged will be served.
2.19 Clause 22 regulates the disciplinary hearing process. The person charged must be subpoenaed to appear before the disciplinary tribunal. The disciplinary tribunal may retain any book, document or object produced for the duration of the hearing and the law pertaining to privilege applicable to a witness subpoenaed to give evidence or to produce a book, document or object in a trial before a court of law, applies to disciplinary tribunal hearings. Any record of evidence on the charge before the disciplinary tribunal which was presented before any tribunal which investigated an event or conduct relating to the hearing before the disciplinary hearing, is admissible without any further evidence if the chairperson of the disciplinary hearing of first instance certifies that the investigation was lawful, reasonable and procedurally fair. If the improper conduct with which the registered person is charged, amounts to an offence to which the person has been convicted by a court of law, a certified copy of the record of the trail and conviction by the court, serves as sufficient proof of the commission of that offence, unless the conviction has been set aside by a superior court.
2.20 Clause 23 regulates the proceedings after the disciplinary tribunal hearing. The disciplinary tribunal must within 30 days decide if the person is guilty of improper conduct and within 14 days after the decision inform the person of the reasons for its findings. The person charged must be in formed of his or her right to appeal against the findings. Both the Council and the person, if found guilty of improper conduct, are allowed to offer evidence to establish aggravating or mitigating circumstances before the Council determines an appropriate sanction. At the conclusion of the hearing the disciplinary tribunal must notify the Council of its decision and the outcome of the disciplinary hearing must be published in the Council's annual report and may also be published in any other manner the Council considers fit.
2.21 Chapter 6 regulates the establishment of an Appeal Board and its functioning.
and consists of 5 members appointed by the Minister. Three registered persons who have been practicing or teaching surveying for a period of not less than five years and two members of the public of whom at least one person is qualified in law with at least five years experience in the legal profession, must be appointed. The Minister must call for nominations, by notice in the Gazette and at least one national newspaper and any other appropriate media, and invite interested persons, voluntary associations and organisations to submit nominations for the appointment of members. In order to enhance the transformation process it is required from the Minister to take the principles of transparency and representivity into account and to have due regard to the surveying profession principles, the categories and branches of the surveying profession and the need to ensure and promote gender, disability and other demographic representivity.
2.22 Clause 25 regulates the meetings, procedures and administration of the Appeal Board. An appeal must be heard by not fewer than three members of the Appeal Board and a decision of the members present at a meeting constitutes a decision of the Appeal Board. Appeals must be conducted in accordance with the rules made by the Council. An appeal must be decided within 60 days from the date of lodgment and the appellant and the Council must be informed of the decision within the same period. The Registrar performs the administrative functions of the Appeal Board and keeps records of the proceedings.
2.23 Clause 26 regulates the remuneration and allowances of members of the Appeal Board. Members are paid out of the Council's funds as the Minister, with the concurrence of the Minister of Finance, from time to time determines.
2.24 Clause 27 deals with appeals against decisions of the Council and disciplinary tribunal. An appeal may by lodged by a person found guilty of improper conduct who is aggrieved by a finding of the disciplinary tribunal or the sentence imposed or a person aggrieved by a decision of the Council or a person objecting to a rule made by the Council. The Appeal Board may dismiss or uphold an appeal.
2.25 Clause 28 provides for an appeal to the High Court if an appeal is dismissed by the Appeal Board. The appellant must give notice to the Appeal Board of an appeal to the High Court. This clause also empowers the Council to appeal to the High Court against any decision of the Appeal Board.
2.26 Chapter 7regulates certain general issues. Clause 29 empowers the Council to determine guideline professional fees after consultation with voluntary associations. A draft of the guideline fees must be published in the Gazette for comment by interested persons.
2.27 Clause 30 empowers the Minister to make regulations and the Council to make rules, by notice in the Gazette. In both instances the draft regulations and rules must be published in the Gazette together with a notice calling on interested persons or voluntary associations for comment. The Council may, if circumstances necessitate the immediate publication of a rule, publish the rule without consultation. Any person objecting to the rule may, however, comment after the publication or appeal to the Appeal Board.
2.28 Clause 31 deals with procedures and evidence with regard to the entering of information in the register to be kept by the Registrar and certificates purporting to be signed by the Registrar.
2.29 Clause 32 deals with the rectification of errors where the Minister is empowered to authorise anything which is required to be done or performed on or before a specified time or during a specified period has not been done or performed, if the Minister is satisfied that the failure was due to an error or oversight.
2.30 Clause 33 provides for liability by determining that the Council, or any member, committee or official thereof, is not liable in respect of any legal proceedings in relation to an act performed in good faith. This clause also exempts registered persons who in the public interest, refuses or fails to perforrx certain acts endangering the safety or health of the public or fellow employees, from liability.
2.31 Clause 34 seeks to empower the Minister to delegate certain powers to the Director-General or other official in the Department and also empowers the Council to delegate certain of its powers to a committee, an official 'or a member of the Council.
2.32 Clause 35 provides for offences and penalties.
South African Council for Professional and Technical Surveyors continues to exist and may exercise its powers and perform its duties until the date of the first meeting of the Council, on which date the former Council ceases to exist. This clause also deals with the transition of the existing categories of surveyors to the new categories contemplated in the Bill and the appropriate registration of persons for the new categories.
2.34 Clause 37 provides for the repeal and amendment of laws.
2.35 Clause 38 determines that the State is bound by the Act.
2.36 Clause 39 contains the short title and the date of commencement of the Act.
The only financial implications are those relating to the funding of the Council's and the Appeal Board's activities. These are estimated at about R 3 million per year.
All the staff members in the Chief Directorates of Cadastral Surveys and of Surveys and Mapping in the Department have been consulted. After publication of the Bill specific stakeholders will be consulted. These include the present Council, the provincial Institutes of Land Surveyors, the Mine Surveyors and the Institute for Technical Surveyors.
The State Law Advisers and the Department of Land Affairs are of the opinion that this Bill must be dealt with in accordance with the procedure established by section 75 of the Constitution since it' contains no provisions to which the Drocedure set out in section 74 or 76 of the Constitution amlies.