Cancellation Of Registration: Possible Implications
1 April 2001
As mostly happens Registered Persons are concerned with practising their profession and "getting on with the job". There is hardly any time for concerning oneself with the status of one’s registration, and because of this many registered persons simply forget to pay their annual fees in time. Some simply forget to provide ECSA with their address changes, with the result that their registrations are cancelled by default.
However, there are those who register purely for personal gain, while at the same time resenting the thought of paying what they perceive to be "exorbitant" fees to ECSA without receiving anything in return for their money. They conveniently forget to pay their fees resulting in cancellation of their registration. Fortunately these persons are very much in the minority.
While there are many more reasons why a person’s registration may be cancelled, this communication is intended to explain the legal implications in the event that a person’s registration is cancelled - no matter the circumstances:
The now repealed Engineering Profession of South Africa Act, 1990 provided for reinstatement or re-registration of a person’s registration.
In the case of reinstatement it meant that any person could request reinstatement of his/her registration and pay the annual fees that would have been payable had he/she remained registered. The effect of this was that a person’s registration would be considered as not having lapsed and that he/she would be regarded as having remained registered without interruption. The original registration number would still apply and a person would be regarded as having been subject to the Code of Professional Conduct at all material times.
In the case of re-registration a person simply paid the application fee, any arrear fees that may have been payable before cancellation of registration and submitted a brief resume of engineering work performed subsequent to the cancellation of his/her registration.
The new Engineering Profession Act, 2000 has changed the position significantly in that reinstatement of one’s registration is not possible anymore. Section 22(3) reads as follows:
"Subject to section 19, the council must, on application, register a person who was previously registered and whose registration was cancelled in terms of section 20(1)(a)(iii), if he or she has paid -
(a) the prescribed fee;
(b) any arrear annual fee or portion thereof;
(c) any expenses incurred by the council in connection with the recovery of any arrear fees;
(d) any penalties imposed on him or her by the council."
The section quoted in red above is significant in that Section 19 prescribes (loosely interpreted) that the Council must satisfy itself that the applicant still meets the requirements for registration. The Council is compelled to consider the competence of a person who had been registered before.
While there is a lot more to be said about this the bottom-line is that a person can simply not be re-instated anymore on the strength of having been registered before. This means that an application for re-registration has to be submitted to the Council and that the Council has to apply its mind as to the competency of such person.
While the Council has not yet formulated policy on the full implementation of Section 22(3) quoted above, the Council has accepted that a more streamlined (fast-track) procedure could be followed in cases where persons’ registrations had been cancelled during the past 3 years.
For more detailed information on the process of re-registration view "Legal Position and Policy on Re-registration" The purpose of this article, however, is simply to emphasise that the cancellation of one’s registration can not be rectified as readily as before. The Council has no choice but to "apply its mind", through due process, as to one’s competency to be re-registered. Persons who requested cancellation of their registration before, or who allowed their registration to be cancelled, will be subjected to a more strenuous process of getting re-registered and this is likely to take time.
A further implication is that if a person’s registration is cancelled, the register (which can be viewed under "Who is registered") will display the fact that a person’s registration has been cancelled. The reason for cancellation is provided as well as the date on which the registration has been cancelled. It is important to note that many clients attach a lot of weight to registration and access to ECSA’s database provided on this Web is serving a very useful purpose for clients (public and private sectors) to confirm the registration status of persons offering their engineering services.
Another significant advantage of providing the names of registered persons on this website is that employers who require registration as a pre-requisite for specified positions, can monitor whether their employees are in fact maintaining their registrations. This has proved invaluable to employers, and created considerable stress amongst employees in the past.
Finally it is most important to note that it is a criminal offence for a registered person to publicise the fact that he/she is registered with ECSA whilst not being registered - regardless of whether this "misrepresentation" was done intentionally or not. Whilst ECSA will exercise every reasonable judgment when considering criminal proceedings against a person who held him/herself out to be registered, one must be mindful of ECSA’s responsibility to protect the public against persons who fraudulently hold themselves out to be registered.