�Architects shun their new Law� (Part 1)
Correspondent | Wednesday October 18, 2017 13:35
It is interesting to note that Manowe responded in his personal capacity parallel with a press release on the same matter from ARC for which he is the founding and current chairperson.
Issue on conflict of Interest
“Representation in the ARC: It is claimed that there it is not enough public representation and the Architects Association of Botswana (AAB) is conflicted. Fact: The Act provides, to some degree, and not for wholesale, self-regulation. Any institute that represents the majority of architectural professionals (architectural draftspersons and architectural technologists included), i.e. those registered by the ARC and recognised as professionals, elect four members to the Council. All that a rival institute has to do is prove that their membership outnumbers that of the one currently represented. The Minister (a public representative) appoints two members, one of whom does not have to be an architectural professional,” Manowe claims
The reader has been made to believe that the representation in the council is balanced in relation to executing its intended “Mandate”
Fact: Representation in the ARC: The Council shall consist of eight members who will have,
(a) One person eligible for registration under the Act, appointed by the Minister ;
(b) One person from outside the profession of architecture, appointed by the Minister,
(c) The Director of the Department of Building and Engineering Services and/or his/her nominated representative, who shall be an ex-officio member,
(d) Four persons eligible for registration under the Act, elected by the Institute, of whom at least shall be from the private sector; and
(e) a professor or lecturer in architecture eligible for registration under the Act, from a tertiary institution who shall be elected by the Tertiary Education Council established under the Tertiary Education Act
The new law has the potential to cause more problems by investing statutory functions to a body “institute” of Architects which could have a potential conflict of interest.
The law underpins two conflicts of interest, firstly between the “institute” members and consumers and secondly, between the institute of architects and architects who are not institute members.
Furthermore, as clearly stated above, the council’s composition is dominated by Architects who are supposed to serve the mandate of the Act. Conflict of interest arises because regulation in the Act deals with two “functions“1. Protecting the interest of the public and 2. Protecting the integrity of the profession”. These two objectives often clash.
The risk to consumers and to the economy more generally, the professional representative function would dominate. That is, regulations would be established that benefit the profession without any benefit to consumers, or perhaps to the detriment of consumers because they (the regulations) serve the profession. One would wonder, amongst the two functions as stated, which one is the main one? Or which of the two is on the right hand? Amongst the eight members, how many are there for the public interest? Remember, our analysis reveals that already, six are architects. In fact, seven are architects. What does that mean? Who is there for the public interest?
This has been well proven in history of regulating architects in United Kingdom, from 1931- 2008.
Manowe goes on “The Act provides, to some degree, and not for wholesale self-regulation. Any institute that represents the majority of architectural professionals (architectural draftspersons and architectural technologists included), i.e. those registered by the ARC and recognised as professionals, elect four members to the Council”.
Here the reader is made to believe that other architecture professionals institute can be represented.
Fact: The Act is specific to “institute” (body of architects practising) not as Architectural professionals claimed. In fact, the Act even dictates to architectural professionals, ie architectural technologists.
According to Section (23) of Architects Registration Amendment Act, 2014, 2(c) is a member of institution of architects, membership of which is recognised by the council as furnishing a sufficient guarantee of sufficient knowledge of, and practical experience in, architectural technology.
The articles on fees on direct appointment: (using tariff of fee scale)
In terms of the current tariff, Manowe indicated that a building costing P180, 000 or less would attract a fee, for the entire service from inception to end of construction on site ( i.e. seven work stages in all), of P13, 302.75 to be precise. Here the reader is made to believe that according to the law he/she can engage an architect from inception to completion (stage 1-6)
Fact: According to the tariff of fees scale (see below) when calculating architectural fees, you cannot divorce the primary fees from secondary fees. A building costing BWP180, 000.00 to be precise, would attract a fee for the entire architectural service from inception to end of construction on site (i.e. seven work stages in total), of BWP 34, 002.89
The tariff of fees schedules below from the the council (ARC) would help the reader to ascertain which of the two is correct i.e P13, 302.75 and P 34, 002. 89
The Competition Commission of South Africa on February 26, 2016, gazetted and rejected an application of professional fee Guidelines by six built environmental councils including The South Africa Council of Architectural Profession (SACAP), a similar council with ARC. On rejecting the same, two reasons were brought forth by the South African Commission 1. “The publication of fee guidelines by the professional councils amounts to price fixing in contravention of section 4(1)b(i) of the Act. The commission concluded that the persons offering their services within the built environment will use the fee guidelines as benchmark when negotiating their fees with the consumers. This reduces price competition in the market and also in prices within the built environment being set above to competitive level to the detriment of the consumers.
2. Further, the Commission concluded that the publication of fee guideline is not in line with International best practice. A review of International best practice conducted by the Commission revealed that building industries in other jurisdictions are moving away from the practice of publishing fee guidelines.
This is an attempt in those countries to increase price competition”. However, ARC has used the same fee schedule rejected in South Africa as a benchmark when structuring their fees. It is now being used as “tariff of fees scale” and it is current and active. A similar practice of tariff of fee, professional fee guideline, indicative fees and recommended fee, whatever you may call it, has been denounced as illegal in United Kingdom over 30 years ago. Is this still in the public interest?
Who is misleading who, and is this not deliberate misinformation for personal gain and hidden agenda?
“Why are we not hearing of a ridiculous argument, in the papers, that a nurse is to be permitted to act as a doctor simply because she or he has donkey years of experience and there is no record of a person who has died under their care when there was a shortage of doctors in the country and there was no Health Professionals Act?” Manowe lauds
It will be misleading to compare Architectural Technologist and Architect with a nurse and doctor. Fact: An Architectural Technologist (Technical Architect) can study along the path of Architectural Technology and can perform all the roles and responsibilities of architecture as a design architect (traditionally called Architect)
The reader will believe that when given that as an example by a seasoned architect. This is not possible in Health Profession vis-à-vis Architecture profession. Furthermore, both nurses and doctors have their respective regulatory councils
As per your press release, it is stated “Technologist trained to higher level than a minimum set are eligible for registration in the category of architect”
Fact: Such a provision is not catered for in the Act or in the Regulations. This is only appearing in the press release from the council. Is this not calling the shots?
According to Section (23) Architects Registration Amendment Act, 2014 (2),
A person shall qualify for registration as an architectural technologist where the person has
(i) a degree or diploma in architectural or construction technology or such other equivalent qualification as may be prescribed, and
(ii) for such period as may be prescribed by the council, performed the work of an architect under the direction and control of, and in the same office as, an architect,
(b) has-
(i) Passed an examination or any examination recognised as being equivalent to one so prescribed, and
(ii) For such period as may be prescribed, performed the work of architect which in the opinion is of sufficient variety or satisfactory nature and standard for the purpose of registration as architectural technologist, or is a member of an institution of architects, membership of which is recognised by the council as furnishing a sufficient guarantee of sufficient knowledge of, and practical experience in architectural technology?
Why is it that the Act integrated the qualifications of architectural technologists and compressed it into one category of Registration? “Architectural Technologist” I.e. Such qualification, in similar legislation (Architectural PROFESSION ACT No. 44 of 2000.) of South Africa recognises all levels of academic qualification respectively. Was this an oversight or intentional?
It must be noted that the concerns highlighted above and in subsequent articles, on this matter, have been raised with the relevant Ministry of Infrastructure and Housing Development (MIH) and the ARC. To date there is no commitment on the aforementioned parties to address these concerns objectively.
*Joseph Mfanyane is a “Technologist,” President of Botswana Institute of Architectural & Construction Technologists and also The Vice President for Union of Architectural Technologists for Southern Africa. (UATOSA). He is a member of The South African Institute of Architectural Technologists (SAIAT) To be continued.