This month’s letters focus on legal issues relating to GIS and the Restitution of Land Rights Amendment Bill.
Send your letters to: positionit@ee.co.za
Our winning letter
re: Upholding legal issues relating to GIS in South Africa
Dear Editor
Every profession has a legal body that protects and governs its existence. However, the GIS sector in South Africa seems to struggle to abide by the rules and legal issues that relate to this profession. Legal issues are here and they are as important as any other rules in promoting or limiting the development of a profession.
The recent results from the survey conducted by GISSA and presented at the University of Pretoria on 14 March 2014, reflect the confused state of our GIS community as a proportion of people in the GIS community do not see registration with a professional body as being important. (See article on pg. 12.) Others want to attain professional and technologist registration within a minimum number of years due to the economic opportunities presented by Occupational Specific Dispensation (OSD) in government, while others want modules such mathematics and science not to be considered when registering with a professional body. Still others want to be registered with a GIS professional body without qualifications and experience.
So which qualification is relevant for GIS in South Africa, who is supposed to be handling spatial data in South Africa, and with what degree of consideration? What state of mind?
It is very important that the GIS profession abides by the rules and standards set out. Poorly collected GIS data and analysis can lead to bad public policy and services, and cost government and private business substantial amounts of money due to deviation from standards, policy and legal issues.
Clearly legal and other issues need to be considered during the creation and implementation of large public and private GIS. Legislation governing information systems and GIS requires us to have accurate, correct, consistent reasoning when dealing with spatial data. Legal issues also require us to have correct education and training which will back up our competence on the job.
Below are some extracts from the legislation relating to GIS to illustrate this point:
“Geomatics Profession Bill Act 13 of 2013: To provide for the establishment of the South African Council for Geomatics Professionals as a juristic person; to provide for the facilitation of accessibility to the geomatics profession; to provide for different categories of persons to be registered as a geomatics professional; to provide for the identification of areas of work to be performed by the different categories of geomatics professionals; to provide for the recognition of certain voluntary associations by the Council; to provide for measures designed to protect the public from unethical geomatics practices; to provide for measures in order to maintain a high standard of professional conduct and integrity; to provide for the establishment of disciplinary mechanisms; to provide for the establishment of an Appeal Board; and to provide for matters connected therewith.
Section 2: The principles set out in this section apply to the Council and all registered persons and must guide the interpretation, administration and implementation of this Act: (a) Geomatics and the geomatics profession are areas of expertise which involve one or more of the following activities which may occur on, above or below the surface of the land or the sea (i) the determination of the size and shape of the earth and the measurement and recording of all data needed to define the size, position, shape and contour of any part of the earth; (ii) the spatial positioning of objects and the positioning and monitoring of physical features, structures and engineering works; (iii)the determination of the position of the boundaries of land and of rights in land, for the purpose of registration of such land and rights in terms of applicable legislation; (iv) the design, establishment and administration of geographic information systems and the collection, storage, analysis, visualisations and management of geo-spatial information.
When it comes to the registration of persons this is what the legislation has to say:
Section 13(1) A person may be registered in terms of subsection (4) in one of the following categories:
(a) A candidate geomatics professional;
(b) a geomatics technician;
(c) a geomatics technologist; or
(d) a professional geomatics practitioner,
and in one or more or all of the applicable branches of the geomatics profession. (2) A person may not practice in or perform any work, whether for reward or otherwise, which is reserved for any of the categories or branches referred to in subsection (1), unless he or she is registered in that category or branch and such practice or performance is supervised as may be required.
If the act is making provision in terms of section 13 subsection 2, we shouldn’t have the significant number of people who feel that they are not compelled to register.
With regard to improper conduct, the legislation is also very clear:
Chapter VIII of Publication of Rules In terms of The Professional & Technical Surveyors’ Act 1984 (ACT 40 OF 1984) as amended Professional & Technical Surveyors’ Act (Act Number 40 of 1984 (as amended) rule 15. Improper Conduct:
The under mentioned acts and omissions by a person who is or was registered in terms of the Act, shall constitute improper conduct (in addition to improper conduct referred to in section 28 of the Act) and which acts and omissions the council may inquire into in terms of section 29(1) of the Act –(1) undertaking work of a survey nature for the execution of which he or she was inadequately trained or insufficiently experienced;(2) performing any survey work undertaken by him or her in an incompetent, reckless or negligent manner; (13) in respect of any survey, employing a person (a) whose name has been removed from the register in terms of the Act or whose right to practice has been suspended or cancelled in terms of section 12 of the Land Survey Act; or; 14) allowing an unregistered person to assist him or her by making measurements in the field without exercising proper control.
Do we have our eyes closed to this situation? Who ensures that rules 1, 2 and 3 are being adhered to? Why are unregistered people still dominating the sector and why do they make up such a significant percentage?
A similiar deviation exists with regard to geospatial data.
Spatial Data Infrastructure Act 54 of 2003: To establish the South African Spatial Data Infrastructure, the Committee for Spatial Information and an electronic metadata catalogue; to provide for the determination of standards and prescriptions with regard to the facilitation of the sharing of spatial information; to provide for the capture and publishing of metadata and the avoidance of duplication of such capture; and to provide for matters connected therewith.
Why are we still having duplicated data and misalignments that hinder integration when this act is in place. Again why are our eyes closed to this situation?
A further contradiction arises with regard to access to information.
Promotion of Access to Information Act 2 of 2000: To give effect to the constitutional right of access to any information held by the State and any information that is held by another person and that is required for the exercise or protection of any rights; and to provide for matters connected therewith.
Citizens have a right to free access to information in terms of the legislation and it is expensive to establish information systems. Requirements that they pay for information because it has become part of an expensive information system could undermine that right. At the same time, the information that agencies hold and create with GIS has become increasingly valuable, and certain private individuals and companies are able to generate great economic benefit from it.
How is the GIS professional body enforcing the above acts and rules? If a registered person can be found guilty of contravening the rules and act by the PLATO Act, how is the unregistered person held accountable? Who holds unregistered persons accountable should anything go wrong with the data? The GIS professional body must prevent unregistered individuals from practicing GIS. (Preventing unregistered persons from practicing
is different to job reservation due to the fact that no one is prevented from registering.)
The GIS governing body requires that all registered individuals adhere to those acts and rules. However, private GIS companies and private businesses develop GIS for the purpose of profit, while the public sector finds GIS essential for fulfilling their public roles. This is a source of many problems in GIS today.
Private GIS companies and private businesses use GIS extensively to fulfill their own needs as well as to increase efficiency. However, their use of the technology has also brought new problems because it creates an unprecedented demand for information from both the private and public sectors.
In South Africa, GIS professionals have not been aware that they can be held legally accountable for the accuracy and reliability of the information stored in their databases, sold, or issued to the public. GIS professionals have not been held legally accountable for harm that they may have caused or economic loss that might be sustained by a mistake made in a GIS dataset or by a mistake not corrected once discovered. In South Africa, if public policy is decided on the basis of a faulty GIS analysis, and causes harm or economic loss, again, those in charge have not been held accountable, not only for the mistake, but for the manner in which the decisions were reached.
GIS professionals have not been held rightfully accountable. They have not been held legally accountable when the information they distribute leads to damage or loss even if that information was used for purposes for which it was never intended. The profession has not come up with measures to deal with errors and faulty decisions made due to incorrect, incompetent, poorly thought out processes and GIS design.
There is a degree of leniency in dealing with the mediocre in this sector which is the source of all its associated problems, yet the sector is strategic in nature because most decisions in South Africa have a spatial attachment. GIS is used to create enumeration areas, voting districts, wards, addresses and so on. At times members of the public will have conflict over these entities. Government will then develop policies based on these entities. Their correctness is very important and their reliability depends on the GIS community and the regulations in place.
Managers and GIS heads in the public and private sector are not going to hire unregistered individuals if they are going to be held accountable should anything go wrong with the data.
On the issue of education and registration, GIS welcomed individuals from different study backgrounds for many years. Many of these individuals who are currently working with GIS don’t meet the requirements for registration in any of the PLATO categories. This is due to the fact that until recently there were few institutions in South Africa that offered GIS qualifications. However, tremendous developments have since been made. It is very confusing now to establish who should be practising GIS in South Africa and who should not because of these problems, and also who should qualify for which professional categories due to the same problems.
There is a need to regulate GIS use in South Africa; there is also a need to raise awareness of the legal implications of using GIS. There is also a need to bridge the gaps that exist between institutions of higher learning, the GIS community and the GIS statutory body. The confusion and problems in GIS today are a result of not recognising that GIS like any other profession is governed by statutes and anyone who is found to be using GIS and doesn’t adhere to the statute, can be held responsible and found guilty of contravening an act of parliament.
As a result, we have limited the development of GIS is South Africa. The council needs to be an independent but integral part of GIS responsible for its members and also accountable for the data use and decisions made by government and business as a result of their members. Let us all uphold the legal issues that govern information technology development in South Africa.
Andrew Tshililo
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re: Who’s footing the Restitution of Land Rights Amendment Bill
Dear Editor
I found your March 2014 lead editorial in PositionIT very interesting. I forwarded it to a couple of my friends (not associated with GIS/Geomatics) and they too concur with me.
These are some of the comments made after reading your article on the Restitution of Land Rights Amendment Bill and the envisaged scenario:
i) Re-open the land restitution process
ii) Allocate inadequate resources (funds, courts, people) to deal with the resultant deluge of claims
iii) When the chaos is at its worst, step in and proclaim the State as ward over all the private property (land) in the country. They are quite entitled to do that, as the Court of Appeal ruled that this does not equate to expropriation.
iv) In their capacity as ward of private property (and in the interests of stability in the country, of course), re-allocate land in order to settle land claims without following the due process procedure of litigation.
Chris Isherwood
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