Government Immovable Asset Management Act (No. 19 of 2007)

Creamer Media Pty Ltd +27 11 622 3744 polity@creamermedia.co.za www.polity.org.za 2 No. 30520 GOVERNMENT GAZETTE, 27 NOVEMBER 2007 Act No. 19, 2007 GOVERNMENT JMMOVABLE ASSET MANAGEMENT ACT, 2007 (English text signed by the President.) (Assented to 22 November 2007.) ACT To provide for a uniform framework for the management of an immovable asset that is held or used by a national or provincial department; to ensure the coordination of the use of an immovable asset with the service delivery objectives of a national or provincial department; to provide for issuing of guidelines and minimum standards in respect of immovable asset management by a national or provincial department; and to provide for matters incidental thereto. BE IT ENACTED by the Parliament of the Republic of South Africa, as follows: CONTENTS Sution t. Definitions 2. Application of Act 3. Objects of Act 4. Relationship between and responsibility of custodian and user 5. Principles of immovable asset management 6. Immovable asset management plan 7 . Minimum contents of custodian immovable asset management plan 8. Minimum contents of user immovable asset management plan 9. Submission of immovable asset management plan I 0. Status of user immovable asset management plan l l. User to give effect to user immovable asset management plan 12. Revision and amendment of immovable asset management plan 13. Functions of custodian and accounting officer of custodian 14. Functions of accounting officer of user 15. Exemptions 16. Compliance t 7. Delegation 18. Assignment 19. Powers and duties of Minister 20. Regulations 21 . Offences and penalties 22. Transitional provisions 23. Short title and commencement Schedule Definitions 5 10 15 20 25 1. In this Act, unless the context otherwise indicates- 30 "accounting officer" means, in relation to a national or a provincial department, a person mentioned in section 36 of the PFMA and includes any person acting as the accounting officer; Poli~.a Creamer Media Pty Ltd +27 11 622 3744 polity@creamermedia.co.za www.polity.org.za Act No. 19, 2007 GOVERNMENT GAZETTE, 27 NOVEMBER 2007 GOVERNMENT IMMOVABLE ASSET MANAGEMENT ACT, 2007 "acquire", in relatfon to an immovable asset (a) for national government, means acquisition through construction, purchase, lease, accep1ance of a gift, expropriation, exchange or transfer of custodian ship between custodians in that sphere of government; and (b) for provincial government, means "acquire" as defined in the relevant 5 provincial land administration law or trasfer of custodianship between cus1odians in that sphere of government; "best practice" means a desirable and appropriate standard, process, procedure, me1hod or system in relation 10 immovable asset management; "best value ror money" means the optimisation of the return on investment in JO respect of an immovable asset in relation to functional , financial, economic and social return, wherever possible; "custodian" means a national or provincial department referred to in section 4 represented by the Minister of such national department, Premier of a province or MEC of such provincial department, so designated by the Premier of that province; 15 "custodianship" means the execution of functions contemplated in section 4(2); "disposal" means any disposal contemplated in the State Land Disposal Act, 1961 (Act No. 48 of 196 l) or a provincial land administration law; "immovable asset', means any immovable asset acquired or owned by govern ment, excluding any right contemplated in the Mineral and Petroleum Resources 20 Development Act, 2002 (Act No. 28 of 2002); "immovable asset management,, means chose management processes which ensure that the value of an immovable asset is optimised throughout its life cycle; "immovable asset management guidelines" means the guidelines published by the Minister in terms of section l 9 which a custodian or user may use to develop its 25 immovable asset management plan; "immovable asset management plan" means a custodian immovable asset management plan or a user immovable asset management plan, as the case may be, prepared in accordance with section 6; "life cycle" means the period during which a custodian or user expects to derive 30 benefits from the control or use of an immovable asser; "MEC" means a Member of the Executive Council; "Minister'' means the Minister responsible for Public Works; "organ of state" means any department of state or administration contemplated in paragraph (a) of section 239 of the Constitution of the Republic of South Africa, of 35 1996, but excluding the department or administration in the local sphere of government; "PFMA" means the Public Finance Management Act, 1999 (Act No. I of 1999); "portfolio" means the total extent of immovable assets controlled or used by a national or provincial department; 40 "prescdbe'' means prescribe by regulation; "provincial land administration law" means the Acts listed in the Schedule; "standard" means 1he minimum standard, process, procedure, method or system in relation to immovable asset management and the life cycle of immovable assets, issued in terms of section 19; 45 "strategic plan" means the strategic plan of a custodian or user as prescribed in terms of the Pub) ic Service Act, 1994 (Proclamation R 103 of 1994) and the PFMA; "surplus,, in relation to an immovable asset, means that the immovable asset no longer supports 1he service delivery objectives of a user; "this Acf' includes any regulation or standard issued by the Minister; 50 "treasury" means the National Treasury or a provincial treasury, as defined in section I of the PFMA; and "user" means a national or provincial department that uses or intends to use an immovable asset in support of its service delivery objectives and includes a custodian in relation to an immovable asset that it occupies or intends to occupy, 55 represented by the Minister of such national department, Premier of a province or MEC of such provincial department, so designated by the Premier of that province. Creamer Media Pty Ltd +27 11 622 3744 polity@creamermedia.co.za www.polity.org.za Poli~ . a, No. 30520 GOVERNMENT GAZETTE, 27 NOVEMBER 2007 Act No. I?, 2007 Application of Act GOVERNMENT IMMOVABLE ASSET MANAGEMENT ACT, 2007 2. This Act applies to organs of state. Objects of Act 3. The objects of this Act are to ( a) provide a uniform immovable asset management framework to promote 5 accountability and transparency within government; (b) ensure effective immovable asset management within government; (c) ensure coordination of the use of immovable assets with service delivery objects of a national or provincial department and the efficient utilisation of immovable assets; 10 (d) optimise the cost of service delivery by (i) ensuring accountability for capital and recurrent works; (ii) the acquisition, reuse and disposal of an immovable asset; (iii) the maintenance of existing immovable assets; (iv) protecting the environment and the cultural and historic heritage; and 15 (v) improving health and safety in the working environment. Relationship between and responsibility of custodian and user 4. (I) The departments managed by lhe following executive organs of state within the national and provincial spheres of government are custodians: ( a) The Minister, in relation to immovable assets that vest in the national 20 government, except in cases where cus1odial functions were assigned to other Ministers by virtue of legislation before the commencement of this Act; ( h) subject to subsection (5), the Minister responsible for Land Affairs, in relation to immovable assets acquired for land reform, as well as immovable assets that vest in the national government and are situated within the former 25 homelands, except in cases where custodial functions in respect of those areas were assigned to another Minister by virtue of specific legislation before the commencement of this Act; and ( c) a Premier of a province or an MEC designated by the Premier, in relation to an immovable asset that vests in a provincial government. 30 (2) A custodian (aJ acts as the caretaker in relation to an immovable asset of which it is the custodian; (b) may (i) in the case of a national department, acquire and manage an immovable 35 asset as contemplated in section 13 and, subject to the State Land Disposal Act, 1961 (Act No. 48 of 1961 ), or any other Act regulating the disposal of state land, dispose of that immovable asset; (ii) in the case of a provincial department, subject to the relevant provincial land administration law, acquire, manage and dispose of an immovable 40 asset; and (c) is, subject to section 18, liable for any action or omission in relation to an immovable asset of which it is the custodian, excluding an act or omission in good faith . (3) The Minister or MEC of a user is- 45 (a) subject to section 18, responsible for 1he perfonnance of the functions assigned to it by this Act or any agreement with the custodian of the immovable asset that it occupies; and (b) liable for any act or omission in relation to the immovable a5set concerned, excluding an ac1 or omission in good faith. 50 (4) A custodian and user must seule any dispute between them in the manner contemplated in the Intergovernmental Relations Framework Act, 2005 (Act No. 13 of 2005) . (5) ( a) Notwithstanding sec1ion 19(1 ), the accounting officer of a user is the designated custodian in the case of a public private partnership relating to an immovable 55 asset, from the date of signatur~ of the public private partnership concession agreement and for ,he duration thereof. Polity~ a Creamer Media Pty Ltd +27 11 622 3744 polity@creamermedia.co.za www.polity.org.za Act No. 19, :2007 GOVERNMENT GAZETTE. 27 NOVEMBER 2007 GOVERNMENT IMMOVABLE ASSET MANAGEMENT ACT, 2007 (b) Upon termination or expiry of the term of the public private partnership concession agreement, the ownership or custodianship of that immovable asset is transferred or reverts 10 the custodian referred 10 in section 4( I). (6) Despite subsection (l)(b) and section 38 of the PFMA, the Minister performs the custodial functions referred to in section 13(1), (2) and (3)(a) in relation to immovable 5 assets situated in the former homelands and occupied by a national department in support of its service delivery objectives. (7) For the purposes of this section, the words "former homeland" bear the same meaning assigned 10 "homeland" in Schedule 6 to the Constitution. Principles or immovable asset management 10 5. ( 1) The following are principles of immovable assel management (a) An immovable asset must be used efficiently and becomes surplus to a user if it does not support its service delivery objectives at an efficient level and if i! cannot be upgraded to that level; (b) to minimise the demand for immovable assets, alternative service delivery 15 methods that do not require immovable assets must be identified and considered; (c) in relation to an acquisition, it must be considered whether (i) a non-immovable asset solution is viable; (ii) an immovable asset currently used by the state is adequate to meet a 20 change in its service delivery objectives; and (iii) the cost of the immovable asset as well as operational and maintenance cost throughout its life cycle justifies its acquisition in relation to the cost of the service; (d) immovable assets that are currently used must be kept operational to function 25 in a manner that supports efficient service delivery; (e) when an immovable asset is acquired or disposed of best value for money must be realised; (f) in relation to a disposal, the custodian must consider whether the immovable asset concerned can be used- 30 (i) by another user or jointly by different users; (ii) in relation to social development initiatives of government; and (iii) in relation to government's socio-economic objectives, including land reform. black economic empowerment, alleviation of poverty, job creation and the redistribution of wealth. 35 (2) The Minister may, by notice in the Gazette, identify additional principles of immovable asset management. (3) When the Minister issues a notice referred to in subsection (2). the provisions of section 20(2). (3) and (4) apply with the necessary changes. Immovable asset management plan 6. (I) Subject 10 this Act and as part of its strategic planning process contemplated in the Public Service Regulations, 200 I, the accounting officer of ( a) a custodian must 40 (i) prepare an immovable asset management plan, to be known as a custodian immovable asset management plan, in relation to all the 45 immovable assets which are in its custody; (ii) prepare a user immovable asset management plan, which relates 10 all the immovable assels which the custodian uses or intends to use in support of its own service delivery objectives; and (b) a user must prepare an immovable asset management plan co be known as a 50 user immovable asset management plan in relation to the immovable assets which that user uses or intends to use. (2) When preparing a custodian or user immovable asset management plan, the accounting officer must ( a) meet the objects of this Act; 55 (b) adhere to the principles contemplated in section 5; ( c) adhere to any regulations published in terms of section 20; and (d) adhere to standards issued in terms of section 19. Poli~.a Creamer Media Pty Ltd +27 11 622 3744 polity@creamermedia.co.za www.polity.org.za Poli~. a JO No. 30520 GOVERNMENT GAZETTE, 27 NOVEMBER 2007 Ad No, J II, 2007 GOVERNMENT IMMOVABLE ASSET MANAGEMENTAC~2007 Minimum contents of custodian immovable as.set management plan 7. A custodian immovable asset management plan must consist of at least ( a) a portfolio strategy and management plan; (b) a management plan for each immovable asset throughout its life cycle; ( c) a performance assessment of the immovable asset; 5 (d) subject to section 13(l)(d)(iii), a condition assessment of 1he immovable asset; ( e) the maintenance activities required and the total and true cost of the maintenance activities identified; and (f) a disposal strategy and management plan. 10 Minimum contents of user immovable asset management plan 8. A user immovable asset management plan must consist of at least ( a) a strategic needs assessment; (b) an acquisition plan; (c) an operations plan; and ( d) an immovable asset surrender plan. Submission of immovable asset management plan 9. ( l) The accounting officer of a custodian must, on a date determined by the relevant treasury, submit a copy of its custodian immovable asset management plan to that 15 treasury. 20 (2) The accounting officer of a user must ( a) on a date determined by the relevant treasury, submit its user immovable asset management plan as part of its strategic plan to that treasury; and (b) on a date detennined by the custodian, submit a copy of its user immovable asset management plan to the relevant custodian. 25 Status of user immovable asset management plan 10. A user immovable asset management plan ( a) is the principal immovable asset strategic planning instrument which guides and infonns all immovable asset management decisions by the user; ( b) binds the user in the exercise of its executive authority, except to the extent of 30 any inconsistency between a user immovable asset management plan and this Act or the immovable asset management guidelines published by the Minister under section 19, in which case this Act or those guidelines prevail. User to give eft'ect to user immovable asset management plan 11. A user must give effect to its user immovable asset management plan and conduct 35 immovable asset management in a manner which is consistent with this Act and its user immovable asset management plan. Revision and amendment of immovable asset management plan 12. (I) A user (a) must annually revise its user immovable asset management plan after its 40 budget allocations have been finalised by the relevant treasury and must incorporate the revised user immovable asset management plan into its strategic plan; (b) may amend its user immovable a~se1 management plan in accordance with the prescribed process; and 45 ( c) must submit its revised and amended user immovable asset management plan to the relevant custodian as prescribed. (2) A custodian must an nu ally revise its custodian immovable asset management plan after receipt of the revised and amended user immovable asset management plan or where other factors necessitate such revision. SO Creamer Media Pty Ltd +27 11 622 3744 polity@creamermedia.co.za www.polity.org.za 12 No. 30520 GOVERNMENT GAZETTE, 27 NOVFMBER 2007 Act No. 19, 2007 GOVERNMENT IMMOVABLE ASSET MANAGEMENT ACT, 2007 Functions of custodian and accounting officer of custodian 13. (I) The accounting officer of a custodian must, for all immovable assets for which that custodian is responsible ( a) compile, in accordance with section 7. and with due regard to the user immovable asset management plans submitted in terms of section 9, a 5 custodian immovable asset management plan that fonns part of the strategic plan of that custodian; (b) submit the custodian immovable asset management plan to the relevant treasury as part of its strategic plan; (c) advise the relevant treasury on the immovable asset management plans of 10 users; (d) ensure that all activities that are associated with common law ownership are executed, including (i) managing an immovable asset throughout its life cycle; (ii) assessing the performance of the immovable asset; 15 (iii) assessing the condition of the immovable asset at least every fifth year; (iv) identifying the effect of the condition of an immovable asset on service delivery ability; (v) determining the maintenance required to return the immovable asset to the state in which it would provide the most effective service; 20 (vi) estimating the cost of the maintenance activities identified; (e) establish and execute a perfonnance measurement system as prescribed. (2) The accounting officer of a cuscodian must assist a user by making available infonnation pertaining to an immovable asset used by that user as well as suitable al!ematives, including analysing that information in a manner that would enable the user 25 to make informed and effective decisions on the use and management of that immovable asset. (3) A custodian may dispose of a surplus immovable asset ( a) by the allocation of that immovable asset to another user; or (b) subject to the State Land Disposal Act, 1961 (Act No. 48 of 1961), and any 30 provincial land administration Jaw, by the sale, lease, exchange or donation of that immovable asset or the surrender of a lease. Functions of accounting officer of user 14. ( 1) The accounting officer of a user or custodian in its capacity as a user mus!, for all the immovable assets that it uses or intends to use- 35 ( a) compile, in accordance with section 8, a user immovable asset management plan that will form part of the strategic plan of that user; (b) jointly conduct the immovable asset strategic planning process with the relevant custodian; (c) submit its user immovable asset management plan to the relevant treasury in 40 accordance with section 9; ( d) submit a copy of the user immovahle asset management plan to the relevan1 custodian in accordance with section 9; and (e) establish and execute a performance measurement system as prescribed. (2) The accounting officer of a user must surrender a surplus immovable asset under 45 its control to the relevant custodian. Exemptions IS. The Minister may, by notice in the Gazette, in respect of certain immovable asset~ or categories of immovable assets, ex.empt any organ of state or part thereof to which 1his Act applies from any provision of this Act for a period determined in lhe notice. 50 Compliance 16. A standard issued by the Minister in terms of this Act is compulsory and the Minister may incorporate any guideline issued in 1erms of this Act or any best practice or part thereof into that standard. Polity~ Creamer Media Pty Ltd +27 11 622 3744 polity@creamermedia.co.za www.polity.org.za 14 No. 30520 Act No. I!>, 2007 Delegation GOVERNMENT GAZETTE, 27 NOVEMBER 2007 GOVERNMENT IMMOVABLE ASSET MANAGEMENT ACT, 2007 17. ( 1) The Minister may, in writing, delegate any of the powers or duties entrusted to him or her under this Act, to any official in the employ of the Department of Public Works or in the employ of another organ of state. (2) The accounting officer of a custodian or user may, in writing, delegate any of the 5 powers or duties entrusted 10 him or her under this Act, to any official in the employ of that cuslodian or user. (3) A delegation referred to in subsec1ion (I) or (2} ( a) is subject to any limitations or conditions that the Minister or accoun1ing officer may impose; to (b) may authorise the subdelegation of that power to another official: Provided that the subdelegation is in writing and does not exceed the power originally delegated; (c) does not divest the Minister or accounting officer of the responsibility concerning the exercise of the delegated power or the performance of the 15 delegated duty. ( 4) The Minister or accounting officer may confirm, vary or revoke any decision taken by the person to whom the delegation or subdelegation was made, subject to any rights that may have become vested as a consequence of the decision. Assignment 18. ( 1) A Minister, Premier or MEC referred to in section 4 may, in writing, assign any or all of his or her powers, duties and responsibilities as a custodian in terms of this Act to any organ of state. 20 (2) Upon acceptance of the assignment referred to in subsection ( 1 ), the organ of state assumes full responsibility and liability for all ensuing activities and functions 25 performed on or in respect of an immovable a<;set, as if it were the custodian of the immovable asset in question, for the duration of the assignment. (3) The Minister, Premier or MEC referred to in section 4 may, in writing, withdraw an assignment contemplated in subsection (I). Powers and duties of Minister 19. (I) The Minister ( a) may, in respect of asse1s that vest in the national government, by notice in the Gazette and with the concurrence of the Minister of Finance and the Minister 30 for the Public Service and Administration, and in consultation wi1h the relevant organ of state, designate that organ of state as the custodian of that 35 immovable asse1; (b) must provide guidelines for the management of immovable assets to be incorporated into the asset management guidelines issued by National Treasury in terms of the PFMA; (c) may, by notice in the Gazette, issue standards to facilitate benchmarking, 40 condition assessment and performance measurement by determining, amongst others (i) requirements in relation to cost and space; (ii) how the total and true cost of an immovable asset is reflected in a transparent fashion, including all expenditure in respect of property rates 45 and municipal service charges; and (iii) the minimum infonnation required to manage an immovable asset. (2) The Minister may prescribe minimum requirements in relation to, amongst others (a) the content and format of and processes required to compile an immovable 50 asset management plan; (b) the management of an immovable asset throughout its life cycle: and (c) portfolio management by a custodian. (3) The Minister may implement government programmes which are necessary to give effect to immovable asset management. 55 (4) When the Minister issues a notice referred to in this section the provisions of section 20(2), (3) and (4) apply with the necessary changes. Polity~ a Creamer Media Pty Ltd +27 11 622 3744 polity@creamermedia.co.za www.polity.org.za No. 30520 Act No. 19, 2007 Regulations GOVERNMENT GAZETTE, 27 NOVEMBER 2007 GOVERNMENT IMMOVABLE ASSET MANAGEMENT ACT, 2007 20. (I) The Minister may make regulations not inconsistent with this Act with regard to any matter that is required or permitted to be prescribed in terms of this Act and any other incidental or administrative matter necessary for the proper administration and implementation of this Acr. 5 (2) Before the Minister makes any regulation under this section, he or she must publish a draft of the proposed regulation in the Gazette together with a notice calling on interested persons to comment, in writing, within a period stated in the notice, which period may not be less than 30 days from the date of publication of the notice. (3) If the Minister amends the draft regulations as a result of any comment, he or she 10 need not publish those amendments before making the regulations. (4) The Minister may, if circumstances necessitate the immediate publication of a regulation, publish that regulation without consultation as contemplated in subsection (2). Offences and penalties 21. An accounting officer is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding five years if that accounting officer wilfully or negligently contravenes or fails to comply with any provision of this Act. Transitional provisions 15 22. (I) The Minister may, by notice in the Gazette, suspend any requirement in tenns 20 of this Act for a transitional period to facilitate the implementation of this Act. (2) The Minister must, by notice in Gazette and in consultation with the Minister of Finance, determine the duration of the transitional period for the implementation of this Act. Short title and commencement 23. (I) This Act is cal led the Government Immovable Asset Management Act, 2007, and comes info operation on a date determined by the President by proclamation in the Gazette. (2) Different dates may be determined in respect of different provisions of this Act, 25 and the dates so determined may differ in respect of different national and provincial 30 departments. Polity~ a Creamer Media Pty Ltd +27 11 622 3744 polity@creamermedia.co.za www.polity.org.za p O Ii~ -a 1s N o . Jo s 2o G o v ER N M E N T G A ZE n E , 21 N o v E M B E R 2 00 1 Act No. lit, 2007 GOVERNMENT IMMOVABLE ASSET MANAGEMENT ACT, 2007 SCHEDULE (Section 1) ( a) Eastern Cape Land Disposal Act, 2000 (Act No. 7 of 2000); ( b) Free State Land Administration Act, 1998 (Act No. l of t 998 ); (c) Gauteng Land Administration Act, 1996 (Act No. 11 of 1996); 5 (d) KwaZulu-Natal Land Administration Act, 2003 (Act No. 3 of 2003); ( e) M pumalanga Land Administration Act, 1998 (Act No. 5 of 1998): (/) Northern Province Land Administration Act, 1999 (Act No. 6 of 1999); ( g) Northern Cape Land Administration Act. 2002 (Act No. 6 of 2002); ( h) North West Land Administration Act, 200 I (Act No. 4 of 2001 ); l 0 ( i) Western Cape Land Administration Act, 1998 (Act No. 6 of 1998). Polity~ a