“Architects shun their new Law” – A response (part 1)

SHARE   |   Tuesday, 10 October 2017   |   By Joseph Mfanyane

The Botswana Institute of Architectural & Construction Technologists (BIACT) finds itself compelled to respond to gross misrepresentations allegedly by Mr. G. S. Manowe in the article titled “Architects shun their new law” which appeared in the “The Patriot” newspaper dated 24th September, 2017 and a Press release titled “Misleading Assertions Published in the Weekend Post” by the Architects Registration Council (ARC) in the same newspaper and some local Newspapers respectively. It is interesting to note that Mr. G.S. Manowe responded in his personal capacity in parallel with a Press release on the same matter from ARC for which he is the founding and current chairman.

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 recognized as professionals, elects 4 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 2 members, one of whom does not have to be an architectural professional,” Manowe acclaims. The reader has been made to believe that the representation in the council is balanced in relation to its executing intended “Mandate”.  

Fact: Representation in the ARC: The Council shall consist of eight members who 

(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 or his or 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 potential to cause more problems than it cures 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 & secondly, between Institute of architects and architects who are not institute members.  Furthermore, as clearly stated above the council 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” - Protect the interest of the public and The integrity of the profession”. These two objectives can often clash. The risk to consumers and to the economy more generally, the profession 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 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 on hand? Amongst the 8 members how many are there for the public interest? Remember our analysis reveals already six are architects in fact seven are Architects. What does that mean? Who is there for the public interest? These has been well proven by in History of regulating Architects in United Kingdom, from 1931- 2008 says it all.

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 recognized as professionals, elects 4 members to the Council”. Here the reader is made to believe that other Architectural professionals institute can be represented. 

Fact: The Act is specific to "institute” (body of architects practising) not Architectural professionals claimed. In fact, the act even dictates to Architectural professional i.e. Architectural Technologist:

According to Section (23) 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, a building costing P180, 000.00 or less would attract a fee, for the entire service from inception to end of construction on site (i.e. 7 work stages in total), of P13, 302.75 to be precise. Manowe indicated

 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) standard service 

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. 7 work stages in total), of BWP 34, 002.89. 

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The tariff of fees schedules below from the council (ARC) would help the reader to ascertain which of the two is correct i.e. P13, 302.75 and P34, 002. 89. 

 Formula of Architectural Professional Fee=C+ (Vw-E) x D Where C is a Primary Fee, Vw is                 value of works, [(Vw-E) x D] is secondary fee

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For Value of works (VW) BWP 180, 000.00

Primary fee (C) BWP 13,303.00

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Secondary Fee [(Vw-E) x D] [(180,000-1) x 11.5%]  

=179,999x11.5%

SEE ALSO:

=BWP 20,699.89

Professional fee BWP  13,303.00+20,699.89= BWP 34,002.89

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The competition Commission of South Africa on the 26th February 2016, gazetted a rejected an application of publication Professional Fee Guideline by six built Environment councils including The South Africa Council of Architectural Profession (SACAP)a similar council with Architects Registration Council (ARC). On the rejecting the same two reasons were brought forth by the South African Commission 1. “The publication of fee guideline by the professional council 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 with their fees with the consumers. This reduces price competition in the market and also in prices within the built environment being set above ta 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 jurisdiction are moving away from the practice of publishing the 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, recommended fee whatever you may call has been denounced 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?

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“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 which a Design Architect (traditionally called Architect). The reader will believe that when given that as an example by seasoned Architect. This is not possible in Health Profession versa-visa Architecture profession. Furthermore, Nurses and Doctors both have their respective regulatory councils. As per your Press Release (ARC) it is stated “Technologist trained to higher level than a minimum set are eligible for registration in the category of Architect” Fact: The truth of the matter is that 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 (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?

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?

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It must be noted that the concerns highlighted above and in subsequent articles, on this matter, have been raised with the relevant Ministry being the Ministry of Infrastructure and Housing Development (MIH) and the Architects Registration Council (ARC). To date there is no commitment on the aforementioned parties to address these concerns objectively.  

*Joseph Mfanyane is a “Technologist,” The President of Botswana Institute of Architectural & Construction Technologists (BIACT) and also The Vice President for Union of Architectural Technologists for Southern Africa. (UATOSA), A member of The South African Institute of Architectural Technologists (SAIAT).