Performing Animals Protection Amendment Bill [B9-2015]: deliberations

Meeting report

The Chairperson said that in terms of the National Assembly rule 249, the Committee could go back to the National Assembly (NA) to request permission to look into the other provisions of the Principal Act because the Proposed Amendment Bill did not deal with certain sections of the Principal Act. These were sections 7, 8 and 4. A letter had been circulated that the NA, in terms of the rules of Parliament, allowed the Committee to look into those mentioned provisions not covered by the proposed amendment Bill. Before the actual deliberations on the PAPA Bill could commence, the Committee first had to deliberate on this additional requirement.

Mr M Filtane (UDM) asked whether the deadline for this Bill, which was 12 July, would be met.

The Chairperson responded that the Committee had to do thorough work and could not send a Bill that was in question to the NA. The Department may have to ask for an extension again. An unfinished product could not be taken back to the NA because of the Constitutional judgement passed.

Ms A Steyn (DA) said that the Committee had to do that, as that was one of the concerns she had with the Department at the beginning. She had got the impression it had been a rushed job just to get the Constitutional Court issue off their hands. There had even been a discussion when the Committee started, on the purpose of the Bill and she had anticipated that the Committee would run into trouble. The Principal Act had been enacted in 1935 and needed material changes, as a couple of wording changes would not suffice. The NA needed to be approached and certain changes would be needed to the Principal Act.

The Chairperson asked if the Members agreed.

The Members agreed to the request in terms of NA rule 249.

The Chairperson said that it would be presented to the NA next week. It was felt that the Committee should not wait, and therefore continue its deliberations on the Bill. The State Law Advisor was then given an opportunity to present.

Advocate Yolande van Aswegen, State Law Advisor, described what she had done since the last meeting on Tuesday. All of the comments, made mostly by the stakeholders, had been incorporated into the PAPA Bill working document by way of comments on the side of the Bill, so that Members could see how the amendments would look if they were incorporated into the Bill. Today the proposals made by Committee members on Tuesday would be incorporated into the Bill. She asked whether the whole Bill should be run through, even where there had been no comments.

Ms Steyn asked if everything could be gone through, as there were certain issues that she wanted to raise.

Mr T Ramokhoase (ANC) said that without pushing aside the proposal, the Committee also had to be cautious of issues always coming up which had been dealt with in previous meetings. This did not allow for progress, as these issues then had to be dealt with first, and it was double time consuming. If issues which had been agreed upon on Tuesday came up, he would have a big problem with it.

The Chairperson laid out what would happen in today’s meeting. The State Law Advisor would present what they had and if Members felt that there were certain things that needed to be discussed, they should do so. It was not about individual Members’ view of what needed to be in the Bill, but rather the collective agreement of the Committee of what should be in the Bill.

Advocate Van Aswegan went through the proposed Bill working document and the incorporation of comments made in Tuesday’s deliberations. Clause one was the repeal of section 2, with no changes. Clause 2 repealed section 3, with no changes. There was also the insertion of sections 3A up to 3P, which was proposed by a Member that related to appeals, after the licensing procedure, for the sake of logical sequence. The right to appeal was now section 3M and followed after the issue of licences in section 3L -- this was an insertion of what used to be 11B, so therefore there was not much change in regard to the contents of those sections, but merely their locations in the Bill. Section 3A, which dealt with the designation of the National Licensing Officer (NLO) had no changes. 3B, the qualification of the NLO, had no changes. 3C had no changes. 3D on the appointment of experts, still stayed the same. 3E on the delegation of powers and functions, stayed the same.

With regard to section 3F, there was a proposal by the National Society for the Prevention of Cruelty to Animals (NSPCA) to insert as one of the requirements for the application of licences, that a “description should be provided as to where the animal comes from and whether the animal would travel”. This had not been included as it, and the wording of it, should be discussed and had therefore been flagged in Tuesday’s meeting. 3G on the duration of licences, stayed the same. In section 3H, on the considering and granting of applications for licences by the NLO, one should note that there had been the insertion of a proposed section 3H (2) which provided that “the NLO must consider and decide on an application within 45 days after receipt of the application”. This section had been inserted because there had been a comment made by a Member to ensure that the NLO had a specific timeframe within which to consider and decide on application. Section 3I, which dealt with the hearing of applications had stayed the same.

With regard to section 3J on the issuing of licences, there had been a minor change which had been made based on a comment of a Member, and which the Department of Agriculture, Forestry and Fisheries (DAFF) had also agreed to. The maximum period allowed for the NLO to inform an applicant for the decision in respect of an application, had been reduced from 21 days to seven days. Section 3J now read that “the NLO must within 7 days after making a decision, inform the applicant in writing of the granting, refusal or amendment of a licence and notify the applicant of the date, time and place of collection of such licence”.

On section 3K, which deals with the suspension, withdrawal or amendment of license; subsection 3K(3) had now been inserted to ensure that the applicant did not continue with the exhibition, training etc. of an animal, without a valid licence or after the licence had expired. The inserted section 3K(3) provided that “if a licence was refused, an applicant must cease the training, exhibition or use of animals for safeguarding”. The Committee, however, still had to decide on the above mentioned provision. Section 3L on the validity of licences saw no changes. Section 3M and the subsequent sections dealt with the right to appeal and nothing with regard to the content thereof had changed, but for it shifting to after section 3L.

The term “dogs” had also been inserted throughout the Bill and as a consequence there had been some subsequent amendments that were not necessarily reflected in the previous Bill that had been presented on Tuesday, but had now been incorporated into the Bill today so that Members could see how the Bill would look. One of these was section 4 of the Principal Act. In order to change the reference within the correct context from “dog” to “animal,” section 4 dealt with the right of entry which had a lot of references to “dogs,” and these had now been changed to “animals”, as in sections 4(a), (b) and (c).

Clause 5 dealt with the amendment of section 7 of the Principal Act, which referred to the Minister creating regulations on certain issues within the Act. The bold brackets here related to the omissions. The word “Certificates” had had to be removed consequently, because it related to sections 2 and 3 that were being repealed in this Bill, and the references to the renewal thereof had also been removed as a result. Clause 6 was the amendment of section 8 and nothing had changed since Tuesday’s meeting.

Clause 7 amended section 11A of the Act, which dealt with the definitions. The definition of an “Animal Scientist” had been included, and now read as “ a person registered as a professional or certified natural scientist in the field of Animal Science in terms of section 20(3) of the Natural Scientific Professions Act”. There had also been the consequential removal of the definition of “certificate” from the definitions because “certificate”, as used in section 7 of the Principal Act, had been replaced with the word “licence”. In section 7F of the Bill, which dealt with the use of safeguarding, the reference to “dog” had been replaced with the word “animal”. There was also a general amendment in the new clause 8 which dealt with certain expressions within the Act. It was a necessary clause to change all the references that had been made throughout to the word “dogs,” to “animals”.

Ms Desiree Swartz, Parliamentary Legal Advisor, said that the Act nullified sections 2 and 3 of the Principal Act. Sections 2 and 3 dealt with the certificates and licences being issued by the magistrate. She would be dealing with a document that was headed as Clause 5, and had looked at this because she was concerned about what would happen when the Act came into operation to the licences and certificates that were already there. If one just repealed a section dealing with the authorisation in terms of which a person got the licence, then the licence of the said person was of no force and effect unless one had transitional arrangements, or some sort of retaining of the validity of some of the sections. This had been looked at, but the DAFF had not been consulted yet and still needed to give their views on it. The transitional arrangements she had looked at referred specifically to the certificates and licences. If one recalled the Constitutional Court judgment, the Court had held that it did not like the fact that a magistrate issued the certificates and licences. In the transitional arrangements, it also catered for anything done by a magistrate, and therefore anything that previously referred to the magistrates was now deemed to be done by the NLO. She had had to look at it, as one could not just say that it was still in terms of the repealed section, as the Court had specifically not been happy about it. That was why a deeming clause had been included, which provided that they would be issued by the NLO. This new clause, clause 11B would be inserted just after the Short Title. 11B(1) reads that “licences issued in terms of the repealed Section 2, and a certificate in terms of the repealed section 3 of this Act, was deemed to have been issued in terms of section 3J of this Act and remains valid until the licence or certificate expires or was suspended, withdrawn or amended by the NLO”. 11B(2) provides that “anything done or decisions taken in terms of the repealed sections 2 and 3 of this Act was deemed to have been done or taken by the NLO”. Section 11B(3) stipulates that “any application for a licence or certificate made before the commencement of the Performing Animals Protection Amendment Act, 2015, must be processed by the NLO in accordance with any criteria contained in the repealed sections 2 and 3 of this Act”. She then explained section 11B(3) and said that there may be applications which were currently pending and it would be unfair for those people with pending applications to reapply and start afresh with a new application. She suggested that these pending applications should be processed by the NLO and that the applications must meet the requirements that were in place when they had applied.

Section 11B(4) read that “any investigation conducted or criminal proceedings pending before a court before the commencement of the Performing Animals Protection Amendment Act, 2015, must be proceeded with and finalised as if sections 2 and 3 of this Act had not been repealed”. In other words, if one was guilty of an offence or were being investigated for misconduct in terms of section 2 and 3, then the investigation had to continue. The Constitutional Court did not express a concern over the requirements of the issuing of licences but was rather only concerned about the separation of powers and giving the power to a magistrate. Therefore there was no harm in using the requirements in section 2 and 3 to complete the investigation.

Discussion

The Chairperson said that the Committee would focus on the highlighted changes to the Act, and asked if there were any objections to page 2 of the proposed Bill.

Ms Steyn said that now that the Committee had the letter to the National Assembly, it made sense to her because the reason why the Committee had looked at other amending provisions of the Act had also been to ensure that the Committee looked at the animal welfare side of it, and she had felt that the Committee was not dealing with it. She had asked previously if the purpose of the Act could not be included, because there was a long title. If one included the purpose, it would ensure the welfare of animals was respected and protected in the course of exhibiting and training performing animals, and using animals for safeguarding. It would introduce a licensing system that offered protection for the welfare of animals and provide for sanctions for non-compliance. Animal welfare was also being dealt with in the Bill -- the Bill was not just dealing with licensing. If the licensing was just being dealt with, it would not be necessary to change other provisions.

The Chairperson said she thought the Committee would agree that the issue of welfare needed a dialogue, because if the purpose clause was put in, exhibitions might not happen because of its interpretation in the Bill. The people who were going to use animals to perform needed to know what was expected of them and what could not be done in the training and other aspects. She thought that the Committee had agreed to give the DAFF six months to start the process and come back and give the Committee the framework/baseline in terms of the animal welfare. She gave an example, provided by Mr Filtane, which showed that whether an animal was distressed or not should be determined by an expert. Therefore the DAFF had to give a context to it. The Bill should not be put before the Court before it came into operation. The Bill was outdated. It was agreed that the Committee would comply, and had given a time frame of six months for the DAFF to bring in the dialogues that had been engaged with communities, so that the Bill could be pushed through to Parliament and the issue of animal welfare be dealt with in its entirety. The dialogues were needed as in some cultures people performed rituals with animals and this could not necessarily be considered animal abuse. Consensus therefore needed to be reached within society before the legislation could take place.

Mr M Filtane (UDM) said that his take on what his colleague Ms Steyn had said about the Bill was related to the context in which it had been brought to the Committee. However, the animals’ welfare had to be taken into account wherever they were, even though this was not the main focus of the Bill. With all the discussions that had taken place, the Committee was pretty much covered. He agreed with the Chairperson that dealing with the welfare of the animals was an area that needed focused attention, and sufficient steps had been taken to make sure that they were well cared for.

Mr Ramokhoase said that the one thing that had come out of the meeting already was the agreement on the extension. The Committee should not ponder on things that had been mentioned over and over in the previous meetings and should rather focus on how the Committee could progress in the next phase. The legal team had been struggling to fit compliance into the Act, and said the Bill should look acceptable to the people that had sent it to the Committee. The legal team had been told at the Tuesday meeting to include the suggestions that had been agreed upon by the Committee, and no Member could say that they had failed to do so. All in all, there seemed to be agreement on the compliance matter before the Committee right now.

Ms Steyn said that she was not trying to be difficult, and asked what the purpose would be of issuing licences if the welfare of the animals was not considered. Why was the Committee struggling with the licensing issue if the purpose was not also to ensure that the animals were being looked after? What was the reason for giving licences, when one could instead just make it possible for anyone to buy a licence and record it in a register? What was the reason, if it were not to protect and care for the animals?

The Chairperson responded that the Animal Protection Act (APA) needed to be read with the PAPA. For now, the Committee had not looked into the APA to determine whether it did provide for the welfare of animals or not, in terms of its own understanding. The APA’s intention was to protect animals, which could be inferred from the definition itself. Until now no one had opened a debate as to whether the APA needed to be repealed. The Committee was considering only the legislation dealing with performing animals. No Member had contested in the meetings that the APA did not cater for the welfare of animals. She said it was agreed that the PAPA Bill should not be read in isolation, but rather be read with the APA. She advised Ms Steyn that the Committee Members had decided not to agree with her proposal, but they would give her some time to motivate it and bring it up once more before the matter was closed.

Ms Steyn said she accepted this ruling, and she would read the APA together with the PAPA Bill to see if it ensured that the welfare of animals was respected and protected in the exhibition and training of performing animals and the use of animals for safeguarding and to introduce a licensing system. She had not been speaking generally. The reason licences were given was indirectly to protect the animals and to ensure that the DAFF knew that the animals were being looked after.

Mr Ramokhoase said he stood by the stance taken by the Chairperson. He had been happy with what the Committee had agreed upon on at the Tuesday meeting, and it was good to see that there was now some sort of direction.

Ms Steyn raised an issue with regard to section 3F (h) on the application for licence. She had previously asked for the description of the animal, and whether the animal would travel, among a few other aspects that had been added. The sections suggested by the NSPCA on page 4 of their presentation had not been included in the Bill. More specifically, the proposed insertions from the NSPCA that were not included were subsections (g), (h) and (i). This related to the age of the animal the person wanted to exhibit or train or use for safeguarding; the method and equipment used for control or restraint; and the methods and equipment used for training the animals intended for an exhibition or used for safeguarding. What she wanted was not in the Bill. She wanted a description of how the animal came to be in the vicinity or in possession of the applicant for training, performing, exhibiting or safeguarding, as well as whether the animal would be travelling regularly or continuously and the condition of travel.

Adv Van Aswegan responded that at the stage where the legal team had worked on the proposals again, she had not had access to the NSPCA’s proposals. That was why they had been put into a comment in the document and highlighted so the Committee could discuss the correct wording to be used.

Dr Tembile Songabe, Director of Veterinary Public Health, DAFF said that the DAFF had looked at the input from the NSPCA, including the comment made by Ms Steyn. The DAFF was of the view that where the Bill dealt with ages and premises and so on, when one looked at 3F (2), it began to list all the descriptions that were wanted. The ages and living quarters of the animals were covered in 3F(2)(d), the description of the animal was covered in 3F(2)(a), and the question as to whether the animal would be travelling was also covered in section 3F(2)(b) and 3F(2)(c). That was the view of the DAFF.

The Chairperson asked the Members if they agreed that the proposal by the NSPCA would not be inserted, as it was already covered in the Act. The Members agreed.

Ms Steyn said she agreed, as long as the person who was being issued a licence understood it like that. She was not happy that the word “may” in section 3F (3) had not been replaced with the word “must”. If the word “may” was used, a person could lie about the age of the animal in their application, if no one went and carried out an inspection. The DAFF could delegate their functions and therefore the person issuing the licence could delegate it to someone else.

Ms Steyn then confessed that she was going off the point, but would like to take the opportunity to congratulate Dr Botlhe Modisane, Chief Director, Animal Production and Health: DAFF, on becoming the President of the World Organisation for Animal Health (OIE), and on becoming a first time grandfather. The Chairperson and Members then congratulated Dr Modisane. The Chairperson said that she was planning on congratulating him in the House, as it was important for South Africans to know.

Mr Ramokhoase said the issue of “may” and “must” had been deeply engaged upon, but ultimately the Committee had to understand that when it dealt with legislation it should sometimes not make it difficult for itself because of some other interest or aspect that was being looked at from another angle. It should be a balanced matter that would allow for both parties to have space so that progress could be made.

The Chairperson said she wanted to agree with what Ms Steyn had said, but she first wanted the DAFF lawyers and the Parliamentary lawyers to guide the Committee. From her experience, when “may” was used nothing usually got done because there was no instruction. As it was now past the 20th year of democracy in South Africa, it had now reached a point where the experience gained had to be used. She asked for advice on the issue from the DAFF and the Parliamentary legal advisors.

Mr C Maxegwana (ANC) referred to Mr Filtane’s suggestion that the issue should be conditionally accepted, and said that he did not want to accept conditions. He asked if the legal team advised that the word “must” should be used instead.

Dr Songabe said the DAFF’s view was that the word “may” should be retained. The rationale behind the retention was that if one used the word “must”, it meant that before consideration of any license one would have to go there in person. The DAFF’s view was that there could be certain circumstances where one would not need to, as a matter of principal – for instance, where one had already received all the information necessary to process that particular application. The DAFF’s logistical and practical issue specifically related to the film industry, where they film animals from place to place, depending on the operational dynamics. It had been learnt that whenever one wanted to see where an animal was at any particular time of the day, one would not be able to do so. On the other hand, the provision 3(c)(1)(i) allowed for the NLO to seek any information from anyone who may be assisting the NLO in considering any applications. Therefore, the visiting of the premises did not necessarily have to be done when it was not necessary to do so. If the word “must” was used, it was implied that even if it did not have to be done, it now had to be done, even when there was adequate information in that regard.

The Chairperson responded that she did not agree with Dr Songabe. The work of the NLO should be to ensure that licences were given with regard to evidence received, and the state of the premises confirmed. That was also where the issue of welfare was coming in, and if the word “may” was used then the animals would not be protected. She asked for advice from the lawyers present.

Mr Mooketsa Ramasodi, Chief Director, Inspections and Quarantine, asked if the DAFF lawyer could also be given an opportunity to give advice.

The Chairperson responded that the DAFF lawyer had been part of the Parliamentary legal team since the Tuesday meeting, and they had been instructed to work together.

Ms Kanthi Nagiah, Chief Director: Legal Services, DAFF said that what also should not be lost sight of in section 3 was the right to privacy. She had not looked into it fully, but for anyone to enter someone’s premises, reasonable grounds to do so was required. The concern was that if it was an obligation that had to be performed in terms of the Act, then no other laws should be violated in entering the premises. Therefore caution should be taken in that respect, and any applicant could say that the NLO had been provided with copious amounts of information and all the requirements had been fulfilled, so what were the grounds for entering the person’s premises? In addition, what also needed to be kept in mind were all the other prescripts that had been included in the Act to ensure that the application had enough information for there to be a desktop study, and to make a decision based on the information.

The Chairperson then said that it would be incorrect for an applicant to make an application and then to say that he wanted nobody to inspect his premises. She allowed the lawyers to respond on the issue of consent.

Ms Nagiah said that when one applied for a car licence, or any licence regarding one’s home, it was not that one was inviting anyone to inspect one’s home. As had been said earlier, she had not gone through it in detail, but that was her take on it.

Ms Swartz responded to the question on the use of “may” or “must” by saying that it was a policy decision which had been based on resources and the issues involved. When an application was made, one of the issues that would be looked at was to see whether the information given around the issue welfare was in fact true. That would have to be taken into account when one considered making it “must” or “may”. Her response to the issue of consent was that one could enter the premises only once the owner of the premises had given consent. If it was “must”, the NLO had to go and inspect. If the consent aspect was taken away, it would be unconstitutional and would need a warrant, but as it was written now it complied with all the requirements if one had to go on to a person’s premises. The “may” does not relate to the consent, because the consent was in any event a requirement. The “may” would be important if one looked at whether it was practical for the NLO to go and inspect every situation, and this would be based on the resources of the DAFF. It did not matter whether “may” or “must” was used but it would have an impact as to whether the provisions of the Act could be implemented properly.

The Chairperson said she agreed to the word “may” being retained, based on the lack of resources in the country.

Adv Van Aswegan added that when it came to the entering of premises for inspection, there were always two types of inspections that must be considered when dealing with legislation. The former was the regulatory one, as seen in the Bill, and the latter was the one which related to offences -- presuming someone had drugs on the premises -- which was the more serious one. Therefore, when dealing with the regulatory one, the consent angle was used because there were certain requirements a person must comply with in order to get a licence. That was the reason why consent was always built into the provisions, because issues were always raised on the right to privacy and if it was made a “must”, one would have to specify in the legislation a whole procedure about what the investigator should carry on him, the identification, what type of warrant could be issued and when. A warrant was also required only in very serious instances where one had a very strong suspicion that something was going wrong on those premises and which almost amounted to an offence. That was why the use of “may” had been advised, in order to stay away from the right to privacy issue, because it could be challenged in Court. As explained by the DAFF, it also gave the NLO leeway to inspect, where the NLO could make an appointment with the applicant and could go to the premises and inspect and see if the applicant was complying with the requirements or not. Basically, it was a condition.

The Chairperson asked if the item could be passed, and it was passed by the Members.

Mr Filtane had an issue with section 3H (1) and referred to the last word used, which was “satisfied”. There were two ways a person could be satisfied. He wished to have the “satisfaction” that had been referred to, to be qualified because one could be satisfied that he had been given all the information. The satisfaction had to come by way of “the premises, accommodation, equipment and facilities that were utilised for the training, exhibition or performance of the animal were safe and would not cause harm to the animal”. He then proposed that the condition of the animal should also be another requirement that needed to satisfy the NLO. The problem with being specific in legislation was that things that were not mentioned automatically became excluded. What would happen if the NLO raised something that had not been mentioned that he needed to be satisfied on? The applicant could say that the NLO had no authority to look at any other factors.

The Chairperson responded that in section 3F, which dealt with the applications for licences, the issues which the Member had just proposed were covered.

Ms Steyn said she was still on the issue of public participation and held that “may” should be used instead of “must”. It should still be inserted that the NLO “may” grant an application for any licences if he or she was satisfied that the two requirements had been met. If the applicant applied, it had to be published on the website and a time frame should be given, and input should be considered with the application. The reason for this was that if it went to appeal, it could drag the process out for a long time, but when the DAFF applied their minds they could also receive information from the public and everything could be done within the 45 days provided in section 3H(2). If people were not happy about something, they could bring it forward in the application phase so that it did not have to go to the appeal process.

Mr Filtane said that he had to depart early and asked whether he could raise his questions on clause 5 and receive the responses later.

The Chairperson responded that Mr Maxegwana could raise his issues on his behalf. She added that three Members were departing early, and one should not forget that a quorum was needed in order to discuss the Bill. The meeting might have to be adjourned if there was no quorum. She asked for advice from the legal team and the DAFF on the proposal made by Ms Steyn.

Ms Swartz said that there was nothing wrong with the proposal to put the application on the website before it had been processed, but it must hold that people could make submissions with their applications. There was nothing legally wrong with it, and was rather a policy decision that needed to be taken.

The Chairperson said it was a responsibility and the implementers were executives. If it was put in legislation, it might not work. She thought the Committee had previously agreed to have it put in the regulations.

Ms Steyn said that it had been discussed and agreed that the Committee would have a say in the regulations, because if it was left like that it would be up to the Minister and the DAFF to determine what was included in the regulations, which would be out of the Committee’s hands.

Mr Ramokhoase said that it was an operational matter which depended on the Committee, and said some Members were concerned about the implementation by executives. However, he would have agreed.

Ms Phumelela Ngema, Parliamentary Legal Advisor, brought up two elements that needed to be noted on the issue. Firstly, with regard to the publication on the website, there was a question as to whether everyone was able to access the website. The second point was the making of an enabling provision with regard to the Executive making any publications, as in terms of the Prescription Act such publications must be published in the Government Gazette in order to have official status. This was an issue for consideration as well.

Dr Songabe said that when this matter had been deliberated upon, it had first and foremost been indicated by the DAFF that in this Bill there was not enough room to formally compel persons other than the Executive in the issuing of licences. It had been great that the publication of any inputs made had been considered, but the DAFF was operationally concerned that it compelled that kind of participation. The DAFF had now reached consensus with what was provided in section 3C (1)(i) as it allowed the NLO to request input from any person and secondly, the provisions in section 3I(1), (2), (3) and (4) which allowed for further considerations of any concerns that may be necessary, which Ms Steyn had been worried about. Based on that, the DAFF was of the view that in addition, there were chapters on appeal, if anyone was of the opinion that the NLO had not applied its mind properly. If the publication and noticing of people were made compulsory, it would have additional administrative and cost implications, because it meant that all people would have to be able to access the website, newspapers and Government Gazette. Given the operational and practicality of this, it would be impossible. The DAFF believed all the concerns raised by Ms Steyn would be managed by 3C (1)(I), as well as the whole of section 3I. In the case of someone still being concerned that the NLO had not applied its mind, the DAFF was of the view that section 3M and subsequent sections allowed for it to be dealt with.

The Chairperson said that the explanation given by DAFF was fine, and Members agreed with it.

Ms Steyn raised a concern about the number of days, which had been reduced from 21 to seven in section 3J. She asked whether the Department could do it in the seven days.

The Chairperson said that they could, and that was why she had never raised it.

Ms Steyn raised an issue in section 3K (3). She was happy if “refused” was left in there, but it was her suggestion that “refused, suspended, cancelled or withdrawn” be inserted, not only “refused.”

The Chairperson said Members agreed that it would be inserted.

Ms Steyn had an issue with the use of “must” and ‘may” in section 3O. She said that she knew it had been discussed but would like to know the reason why the Minister “may” refer it to the Appeal Board -- should it not rather be a “must” that the Minister refer it? She said that a timeframe should be put on this section, as the appeals may drag on.

The Chairperson responded that it was her understanding that when the matter had been dealt with, it was an executive function and legislation would give a mandate to the Minister, because the only person interacted with was the chief implementer, who was the Minister. If the Minister received an appeal, it had to be noted that the responsibility would have been delegated to the NLO. If the Minister felt on her own that she could not deal with the matter, she could establish an Appeal Board to deal with the matter. On the issue of “may,” if the issues raised were more complicated and needed legal minds or veterinarians, then an appeal board would need to be established for advisement. She asked if the Members agreed.

The Members agreed.

Ms Steyn said she was back on to who could be a NLO. The Minister was not an expert, so if a matter went to appeal, would an expert be designated? She was asking questions so that the Committee did not later have to come back and say that this was an issue that should have been looked at. She asked whether a Minister could appeal licences issued by an expert.

The Chairperson said that the Minister was given a mandate by the Public Service Act (PSA) to be the executing authority of the Department. The PSA did not say that for one to be a Minister, one was required to have the technical skills for the field in which they would be deployed, as it was the prerogative of the President. That was why the word “may” was used, because if it was something that the Minister could deal with without establishing an Appeal Board with expertise, he could do so. She then asked for the legal team’s advice on the time frames.

Ms Ngema said that in terms of time, it was an administrative function and since there was no provision that excluded the Promotion of Administrative Justice Act (PAJA), then PAJA would be applicable to the time frames given in the Act.

Ms Steyn asked if time frames should not be put in, and also asked what the time frames provided in the PAJA were.

Ms Swartz said that PAJA was an overarching Act and provided set minimum timeframes, so in other legislation lower timeframes could not be given -- only more generous ones. If the legislation did not refer to timeframes, then the timeframes provided in PAJA became automatically applicable. Timeframes did not need to be included now, as the PAJA dealt with it.

Ms Steyn asked the legal team what the timeframes provided in PAJA were.

Adv Van Aswegan said that she would look at PAJA and tell the Committee what the time frames were.

Ms Steyn said that she was still concerned with section 3M, and asked whether the general public could also appeal against a licence that had been awarded.

Ms Nagiah responded that any person in the general public may appeal. If one looked at section 3M it provided that “a person” may appeal and this referred to any person in the public domain.

Ms Steyn asked how this worked in practice, and how the public would know.

The Chairperson responded that the regulations would be on the website, and the DAFF had said it would have a database where any person could obtain information.

Ms Steyn said that the Committee needed to get the regulations so that it could deal with them.

The Chairperson responded that the DAFF did not have to bring them to the Committee in order for issues to be raised. Sometimes decisions should not be made that would undermine the Committee’s authority, and the DAFF should deal with the matter even when it was not in front of the Committee.

Ms Steyn said that the PAJA provided for the Department to be given 120 days. She asked what would happen if the matter was on appeal.

Ms Swartz responded that the ordinary consequence when one lodged an appeal was that the order that was granted would be suspended till the appeal had been finalised.

Ms Steyn said that was why she wanted the general public to have a say, before the issuing of licences. An example was, if a circus person made an application for a licence and someone appealed it, would his circus operations stop or how would it work in practice?

Ms Swartz responded that not just any person could appeal, as that person must feel aggrieved and had to set out the grounds for the grievance before the appeal was qualified. Therefore there would be an initial inquiry to determine whether it was actually a valid appeal, and only if it was valid would it be processed.

The Chairperson said it was her understanding that if people just submitted appeals without them being qualified, Government would never operate. However if it was qualified by a person being aggrieved, it was justifiable to stop the activity of the person who was making an application for a licence.

Ms Steyn asked what the legal basis for stopping someone’s operations was, and whether it was general knowledge or not.

The Chairperson said that it was not general knowledge, but when it was found that someone had contravened the legislation, then the activity could be stopped.

Ms Z Jongbloed (DA) said that it would be prudent to include timeframes. She had listened to all the scenarios where applications and renewals could be denied, but if a matter could take up to four months as prescribed in PAJA, if someone lodged an appeal then the person’s business could be stopped for up to four months while the appeal was being processed.

The Chairperson responded that the issue of the time frame had been suspended, and the State Law Advisor would come back to the Committee with her findings.

Ms Steyn said that this brought the Committee back to section 3K (3), which dealt with where the license could be suspended, withdrawn or amended, or that operations must stop. It made sense now. She was looking from all sides, which included the Department, the applicant and the appeal process. She also found an issue with section 3P, which was the consideration of the appeal by the Minister. Section 3P (1) said he may refuse or grant the application, then in section 3P (2) that he may give it to the Board on appeal, and then “may” refuse or grant the licence. This gave a lot of power to the Minister.

The Chairperson agreed and said that the Department should be given an opportunity to respond on that. The Committee’s view so far was that it had been discussed that the Minister had the powers and could deal with certain appeals in areas where he needed to, or if it was necessary to appoint a Board. This meant that experts would be brought in to deal with the issues.

Ms Nagiah responded that her understanding was that the power would always be with the Minister, and when the Minister needed advice the Appeal Board would be constituted. What the Appeal Board was doing was merely making a recommendation to the Minister. The Minister could not divorce himself from making the final decision, and when the Board made a recommendation they may sometimes make an error. It just gave the Minister better information and comfort that the matter had been looked at properly, but the Minister must be afforded the opportunity to apply his mind and make a decision. There was also case law in that respect as well.

Ms Steyn asked whether the investigation in section 3O and the consideration in 3P was given a timeframe of 120 days. What did the law say on this issue?

Ms Nagiah responded that the DAFF would have liked some time to look at it, but her understanding was that PAJA related to final decision-making and gave a timeframe for that in reference to the executive authority. Subject to correction, the 120 days referred to the final decision-making.

Ms Steyn said she had a concern with the regulations in clause five, which substituted section 7 of the Principal Act. She asked why the wording “not inconsistent with” was used, rather than “in addition to 3F (2),” which provided for what needed to be done. It had been previously been seen that where it was not inconsistent, the Minister had the power to change the regulations. She added that the “devil was always in the regulations and not in the Act.”

Adv Van Aswegan responded that it must be remembered that the first three sections of section 7 were the same as those of the Principal Act. If it was said that “make regulations that were not inconsistent with the Act,” it was an empowering provision which had to be put into the Act so that the Minister could make the regulations. What was being said when “not inconsistent with” was used, was that the Minister must not make regulations that went wider than the scope of the Act. This in turn limited the Minister so that he could not include additional requirements that now needed to be met which had not initially appeared in the Act. The clause referred to all regulations made and could not be in contravention of any principles provided for in the Act. This was just standard wording for an authoriaation provision in Acts.

The Chairperson said that the essence of section 7 was that the Minister could not go beyond the ambit of the law.

Ms Steyn asked how section 7B (2) was to be understood. 7B (2) was related to the information to be supplied. She asked why it had been included, as it basically restrained the Minister.

The Chairperson referred Ms Steyn to the section 7 amendment and section 7 in the Principal Act. She emphasised that the amendment of the Principal Act section 7 was what was being dealt with.

Ms Steyn responded that she understood that there were some deletions, but she still did not understand why this applied to the “information to be supplied” if one could provide for “other information” in the regulations. For her, that was a contradiction because it said that the Minister could not give any other regulations that were not consistent.

The Chairperson said the Committee had requested the NA to look at section 7 and for them to identify issues which needed to be changed that were actually affected by the amendment. The issues that Ms Steyn was raising now were not affected by the amendment.

Ms Ngema said that as the preceding words in section 7 indicated, and the subsection 7B (2) which provided for “information to be supplied,” it enabled the Minister to get to the “how” part. It was something that could not be ignored or be changed. Further information may allow for the Minister to consider certain things that the Act could not go into because of the practicalities, and when the Minister knew what he was operationally dealing with he could identify and determine how it should be done.

Ms Swartz added that this regulation section did not give anything in addition to what was in the rest of the Act. For instance, the provision of section 3F, which provided for details to be given of where the animal would stay, section 7B(2) allowed for the Minister to go into the specifics which the NLO may need in order to make a well founded decision. This allowed for the Minister to put it into the regulations.

The Chairperson asked if Ms Steyn accepted the explanation. It was then passed.

Ms Steyn had a concern with section 8, and said that subsection 2 and 3 should be deleted.

Adv Van Aswegan responded that section 8(1) and (2) had been bracketed, so it would be deleted before the enactment.

Ms Steyn asked why there were all the references to the other sections in Principal Act. Why did one have to write the amendment of section 8 in the Amendment Bill?

The Chairperson responded that she had earlier said that she had requested guidance from the NA on section 7,8 and 4 of the Principal Act because it still had wording of “dogs” that needed to be changed. Therefore unless one was saying that there was a problem with it, it was something that needed to be tabled and made open for discussion.

Ms Steyn said she did not have a problem but was asking why the reference to “dog” could not now just be referred to as “animal” in the Amendment Bill. Why could it not just be bracketed or underlined as had previously been done.

Ms Swartz responded that it had been done that way because it was the drafting technique that had been used, and it had been meticulously looked at as to whether it would be better to do it this way. If the Member’s suggestion was used, the Bill would be much longer and it would have more sections. The technique used was generally accepted and would sufficiently cover what the intention was behind it.

Ms Steyn said that it would be confusing to the layman reading the Bill, but she was sure that it was acceptable.

Adv Van Aswegan said that she understood the concern raised by Ms Steyn, but after the incorporation of it into the Principal Act, it would be a much better read. It was only a drafting technique. It would have been more confusing to have put in the brackets and underlining in section 8, as the Principal Act was very inconsistent in its use and context of the word “dog”. That was why funny words had been used in section 8 so that it provides some context for the “dogs”. The Printers would incorporate it into the Principal Act as this was an instruction to them to change all those places and contexts where the word “dogs” appeared.

Ms Steyn said that she understood and said that she had wrongly thought that it would be read in that way.

The Chairperson asked if there were any other considerations to be made.

Adv Van Aswegan said that on page 9, where section 7 amended section 11 of the Principal Act, the definition of an “Animal Scientist” had been changed and had been flagged for feedback from the DAFF as to whether it should include “Certified Natural Scientist,” or if it should be made “Professional Natural Scientist” only.

Dr Songabe responded that the DAFF had looked at the three categories and appreciated the input from the Committee. The DAFF had come to the conclusion that the two categories of “Certified Natural Scientist” and “Professional Natural Scientist” were the most appropriate ones that could be used, because all had to have at least a three- or four-year degree or diploma, and would have been taught about animal welfare.

Dr Songabe added that he was excited about the aspect of licences, as all licences were due to expire on 31 December, so these measures would help the DAFF in dealing with those components until people applied for new licences.

Ms Swartz said that a decision should still be taken on the “transitional arrangements” which had been proposed, because they had to form part of the new Bill.

Mr Maxegwane, on behalf of Mr Filtane, asked about section 11B(1), and whether the licences could be endorsed. He said that in section 11B (3), the application needed to be prioritised.

The Chairperson said she agreed with section 11B (2),(3) and(4), as it was out of the control of the Committee when the meeting had been concluded, as the President would sign off on the legislation and it would become law.

Mr Ramasodi said that the DAFF was happy with the transitional arrangements clause. However, there was a standing issue to which the Chairperson had referred to in the introduction, in relation to the extension by the Constitutional Court. The DAFF needed to be guided as to what time extension should be requested, as this was pertinent to the “transitional arrangements”.

Ms Swartz responded to the question on the endorsement of licences, saying it would now require an administrative process for a licence to be returned to the NLO to endorse it. The way it had been drafted now, it would not require the extra administrative burden of endorsing it by the NLO. This was how it has been endorsed, but it could be seen as an option. In response to the matter of prioritisation, that should be a question answered by the DAFF as to whether they could prioritise the applications.

Ms Steyn said that she was glad that the DAFF had mentioned the date on which the licences were to expire. She asked why section 11B (3) and (4) was needed, as the Act should become into operation before the expiry.

Ms Swartz responded that it definitely was necessary because one did not want work that had already been done to fall away.

Ms Ngema responded to the question by the DAFF on the time extension that should be requested. She said it would be difficult to decide on the time frame (extension), because it was not clear what programme or arrangements the NCOP would require to run with the process. However, she estimated a time frame of 12 months, as the previous extension asked for from the Court had been six months, and that was definitely not enough. There would definitely be an end result after 12 months and this would allow for the President to ensure that it became an enactment.

The Chairperson asked if all the questions had been answered.

Ms Steyn asked whether all references in the Principal Act to “penalty fee” and the time frame period had been changed, as three areas had been noted in the Principal Act.

Adv Van Aswegan said she had cast her eye on the Principal Act, and section 5 had not yet been dealt with. It could just be substituted and form part of what the Committee referred to the NA, as it was once again a consequential amendment. She thanked Ms Steyn for spotting it.

The Chairperson suspended the discussion, as a Member had to leave and this left the Committee with not enough Members to constitute a quorum. The minutes of the meeting held on 26 May also needed to be adopted.

Dr Songabe asked whether the PAPA should be taken away from the responsibility of magistrates and be dealt with as a Department. The challenge that the DAFF faced was that this work was so decentralised and scattered, and there was nowhere where it was being consolidated. After the DAFF started getting involved with it in late 2012, it had embarked on an effort to obtain all the information from the various magistrates and it had been found that given the nature of the records no clear information was available. One of the operational logistics that the DAFF had to consider was what the normal volumes were, and so forth. There had been a period of six months where there was a small committee commissioned by the North Gauteng High Court, where these applications had been dealt with centrally. Initially it was thought that this would provide a rough figure of the applications processed in the six months, because it was a centralised component. This was found not to be a good basis as an indication, as many people boycotted the committee because it was said to be unlawful. The final answer was that the DAFF simply did not know, as there was no yardstick as to the volume of licences. That was why the DAFF was waiting for the expiry of the licences in order to know the volume of licences, which would also be captured in the database.

Ms Steyn said that this should be advertised beforehand so that one could get some kind of idea of volumes, as there were now deadlines and if one sat with 10 000 applications that had not been anticipated, then they would not meet the deadlines of seven and 45 days. This would result in many Court cases if this concern was not dealt with properly. Again, the “may” and “must” issue came up. If one did not know how many applications were expected and had to be inspected, it needed to be stressed that the DAFF had to have a plan and strategy as to how it was going to be dealt with. This was why this amendment Bill needs to be looked at seriously, as the Principal Act was really not conducive to the protection of animals.

Adoption of Minutes 26 May 2015

The adoption of the minutes was moved by Mr Maxegwana and was seconded by Ms Jongbloed. The minutes were adopted.

Dr Modisane was then congratulated officially on behalf of the Committee for being elected President for the OIE, as he was raising the flag high for fellow South Africans. The legal team, which was comprised of the State Law Advisor, the DAFF’s lawyer and the Parliamentary Legal Advisor, was thanked for its great work.

The meeting was adjourned.