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Policy and procedural issues that impact the built environment by delaying projects

By Deon van Zyl, Chairperson of the Western Cape Property Development Forum (WCPDF)

Disclaimer: the views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of Property Wheel.

Front of mind this month for the property industry, is the ‘hot-off-the-bench’ interdict of a multi-billion-rand project in the Western Cape.

Let me be very clear: the WCPDF has a strict policy of not speaking about individual developments. What we do speak about is the policy and procedural issues that impact our industry by delaying projects; the ones that cost households their income – whether those be in wages, salaries, or fees – and result in the loss of investment confidence in the Western Cape.

Let me deal with the current industry frustrations around the statutory process that is causing these delays to happen, yet again.

Firstly, complex developments do not happen in a void. Large-scale, intricate projects typically trigger every rule in the legislated rulebook; water use licenses, environmental management applications, heritage applications, land use applications, and building application processes. Every one of these legislated application processes is underpinned by reams of expert reports, each dealing with a field of specialisation – and each application is also assessed by different spheres of Government.

Every single legislated process also requires multiple public participation opportunities, and in turn, offer some form of appeal process. Society has a plethora of chances during which to raise objections, at no cost to the individual objector or appellant, and every one of the decisions that arise can be taken on legal review.

That is the nature of our Constitutional Democracy – enabling the right of the very last naysayer to be heard; even to the level of public-participation fatigue. There are so many checks and balances in place that it can truly be considered a miracle if a project ever gets to break ground in South Africa, never mind being completed on time and on budget.

But, at some point, someone mandated by specific legislation needs to reflect on the total picture and make an informed multi-disciplinary decision either for – or against – the project. In fact, this decision making happens in each silo of legislation. The shocking reality is that any single “no” effectively vetoes the project.

And it is not only private-sector profit incentives that define large scale and complex projects; the exact same statutory application process is followed for complex public sector projects, whether these address energy security, housing, education, health, or public utility infrastructure.

The question – indeed, the fear – that is front of mind to any large-scale investor, whether private or public, is what certainty can there ever be on the outcome of the statutory application process in South Africa when any single person has a veto right along every step of the timeline?  And even when due process has been followed to the letter and decisions are made, will there then still be side-line attacks that stop investment in its tracks?

During times of economic crisis and dire need for job creation, one would expect the pendulum to swing accordingly. One would expect that, following due process, a level of sensitivity would exist for the wages paid on construction sites, and the spin-off benefits to society at large. Clearly, South Africa has some way to go before it is sincerely ready to build itself out of the economic and social crisis caused by joblessness. One would expect the multitude of statutory silos to work together to promote and facilitate investment. And, sometimes, this does happen. But, alas, the right to veto or delay via the Court appears to supersede any national crisis.

But returning to the ruling at the centre of this discussion: what do the 4 000 wage-earning parents do (some of whom are the only breadwinner in an entire extended household) when the large-scale project they are working on is halted along with their fortnightly wages? What do we say to them when they suddenly cannot put food on their tables because the right to veto is more important than their right to feed their families? 

We live in a society where this right to veto belongs to every single citizen; but at what point should this right be allowed to impact on the needs of the greater good? And this in a country where growth and job creation should, in fact, be front-of-mind on every court bench.

It is indeed a strange country we live in – we demand of our elected leaders that they be strong and make good structural decisions. But when they do, and we don’t like the decision, we run to the courts which have become the real, de-facto government in South Africa. What is the survival and growth message that South Africa sends out through all this to the investment world? 

And if we subscribe to the concept of democracy, we also need to subscribe to the concept of decision making by politicians that reflects the mandate of those who elected them. The same leadership must then, in due course, account for their actions and decisions at the ballet box which in current economic conditions, must focus on creating jobs and putting food on the table.

If we are serious about investment and job creation, we will have to recalibrate the way we make decisions about just where the buck finally stops … and judge as carefully the right of individuals to veto our country even further down the economic rabbit hole.

Join the WCPDF for their 9th Annual Conference taking place on the 26th and 27th of May 2022 at the CTICC in Cape Town.