South African Weather Service Amendment Bill [B22-2011]: briefing & public hearings Day 1

Water and Sanitation

23 January 2012
Chairperson: Mr J de Lange (ANC)
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Meeting Summary

The Department of Environmental Affairs briefing on the South African Weather Service Amendment Bill looked at the background and legislative developments since the South African Weather Service Act of 2001, the National Environmental Management: Air Quality Act (No 39 of 2004) and its 2007 National Framework, and the South African Air Quality Information System (SAAQIS). Although the South African Weather Service (SAWS) hosted the System, only a very broad Memorandum of Agreement formalised the arrangement. A legal mandate for SAWS was required. The Department explained the developmental and consultative process for the Bill. The Department had received only two sets of comments during its 30 day period for public comment in May-June 2011 - from SAWS itself on technical issues (appointment of its Chief Financial Officer to serve as a member of the Board and on who should be the accounting officer in terms of the Public Finance Management Act, and from the South African Environmental Observation Network proposing, in the main, free and open access to the National Climatological Databank and air quality information. The Department was gratified at the new public interest in the Bill. The Department explained the Bill's objectives - to remove redundant provisions, to provide for the additional functions of SAWS as to the rendering of air quality information services, SAWS being the custodian of the SAAQIS and the National Air Quality Monitoring Network (NAQMN), the operation of the NAQMN, addressing administrative challenges experienced with governance issues; and to provide for offences and penalties. The Department noted that it was this last provision that had captured the public's especial interest.

The Bill provided that the Board should be SAWS’ accounting authority, to align with the Public Finance Management Act and that SAWS’ liability should be limited under certain circumstances. The Bill would require an annual performance agreement for the Chief Executive Officer.

The Bill now provided for offences and penalties. Section 4(3) of the Act stipulated that SAWS alone might issue severe weather-related warnings over South Africa in order to have a single authoritative voice in this regard. However, the above provision was not enforceable. Therefore, Clause 12 of the Bill stated it would now be an offence to issue severe weather or air pollution-related warnings without the necessary written permission of SAWS. The Department acknowledged that the inclusion of air pollution-related warnings in Clause 12 had been a mistake.

The Bill amended the Act's Schedules to make provision for the additional services for the public good and for the commercial services relating to the SAAQIS and to the National Air Quality Management Network. As to organisational and personnel implications, the Bill did not create new structures in the Department, but rather transferred the SAAQIS and the National Ambient Air Quality Monitoring Network function to SAWS. Accordingly, in terms of the Memorandum of Agreement, a new Air Quality Information Unit had been established at SAWS to implement the SAAQIS and the National Ambient Air Quality Monitoring Network function. Financial implications were that the Department's budget would increase to include additional funds for implementing the Bill's proposed amendments concerning the SAAQIS and the National Ambient Air Quality Monitoring Network function.

The Department, addressing the current concerns, explained its reasons for the Bill's Clause to enforce the Act's Section 4(3) provision that 'Only the Weather Service may issue severe weather-related warnings over South Africa in order to ensure that there is a single authoritative voice' and that 'no person may ... issue a severe weather or air pollution-related warning without the necessary written permission from the Weather Service'. This was because of the importance of a credible severe weather warning system and because false, misleading or hoax warnings effectively undermined credibility. However, the Department acknowledged that the wording had been found unsatisfactory, and that there was a need to avoid undermining the public interest. The associated proposed penalties were similar to those contained in all current environmental legislation. The Department noted some merit in respect of the new concerns. It was not the intention of SAWS to create a monopoly. However, SAWS was a national asset.

A Democratic Alliance Member said that the Bill required good drafting and tight definitions to avoid leaving interpretation entirely to the courts, asked why secondment of employees from the Department was included in the Bill, who had been SAWS’ accounting officer since the commencement of the Act, called for more detail on the business case study for the Bill, and asked how the proposed legislation dealt with 'hoaxes'. The Chairperson asked why, when departments created agencies, they gave them the exclusive power to make policy. Departments should reserve the right to set the policy framework. The parameters of policy making must reside with Government. He was concerned that a political issue now had to be stopped through the courts, and emphasised that policy formulation should remain with Government. It was wrong that departmental agencies took policy formulation upon themselves. From his own perspective as a former deputy minister, he spoke on the need for appropriate and effective delegation of authority. He warned against mixing concepts. He emphasised the importance of the dissemination of information.

The Chairperson requested the Department to present to the Committee the future framework, and the performance agreements and policy frameworks set by successive ministers. The Committee would then have a proper debate on them.

The Department promised that it would prepare a full briefing.

There was some discussion on the status of the Bill as a Section 75 Bill. A Principal State Law Advisor, Department of Justice and Constitutional Development, explained. The Chairperson elaborated on the dominant purpose test and said that it remained to be resolved how Parliament would treat the Bill. All aspects of air pollution were a concurrent power. It was a technical legal issue.

HAMNET [amateur network] Emergency Communications: the Emergency Communications Division of the South African Radio League objected to Clause 12 which proposed insertion of Section 30A in the Act - 'No person may issue severe weather or air-related warning without ....'. HAMNET thought that the Clause was counter productive and not in the interests of members of the public in general. HAMNET therefore recommended that Clause 12 be either withdrawn or written in such a way that issuing accurate weather information was not regarded as a 'criminal offence', especially when the source (like SAWS) was regarded as a reliable source. HAMNET complained that it was now necessary to pay in order to access SAWS’ website. Because of the restrictions on access to the website, HAMNET had to use alternative sources.
 
A Democratic Alliance Member understood HAMNET to be a closed network and asked about the dangers of hoax warnings. African National Congress Members asked what HAMNET's sources of funding were, what languages its members used, and in what way HAMNET' s warnings might be more accurate than those of SAWS.

The Chemical and Allied Industries Association indicated key issues that the Bill raised: the intention of amendments, current challenges on implementation of the National Environmental Management: Air Quality Act 2004, the scope of responsibility for air quality information, pollution warnings, that there was no reference to how the proposed amendments would be funded, and the proposed changes. It noted that the Bill's intention was to give effect to the agreement between the Department and SAWS on the establishment and management of an air quality information system, and that there were no changes proposed to the relationship between the regulator and industry. The current situation was that the licensing regime was still not operational. There were inconsistent messages on licensing requirements. The Green House Gas inventory was the subject of co-operation between Business Unity South Africa and the Department. The Association commented on scope of responsibility. As to advisory services, it believed that the inclusion of air pollution concentrations and emissions was beyond the scope of SAWS’ mandate, that the Bill did not acknowledge the responsibility of industry in respect of pollution warnings, and that it duplicated the responsibility of competent authorities. Instruments should be confined to information management. The Association submitted that research should be confined to SAWS. Training in air quality was not an appropriate function for SAWS. The Bill reflected a misunderstanding of the purpose of pollution warnings. Emission incidents must be reported in terms of the National Environmental Management: Air Quality Act [2004]. Warnings to the public were required in terms of the Major Hazard Installation Regulations: in case of emergency response measures, it was not possible to wait for written permission. The Association proposed deleting definitions not used in the Bill; deleting restrictions on pollution warnings; deleting advisory and consultancy services on individual emissions; including restrictions on the use of business confidential information collected as part of licence applications; and deleting limitation of liability. Ambient air quality was available from a variety of sources, and therefore the definition should clarify those that would be used. There should be no limit on the sources of information to be used for consultancy services. The relationship between these services and advice given by competent authorities should be clarified. The Association further called for a limit on the sources of information to be used for consultancy services; clarifying the cost of these services; clarifying the relationship between this service and the advice given by competent authorities; and including Intellectual Property Rights protection for information submitted by industry in accordance with Section 26 of the Act.

A Democratic Alliance Member found the presentation rather technical. The Chairperson asked the Association to meet with the Department and give the results of their discussion to the Committee.

The Centre for Environmental Rights submitted orally that if the Weather Service was the custodian of air quality-related functions, this might create a silo between the information-gathering and dissemination functions and between other aspects of air quality management, like enforcement and licensing of activities. The organisation sought a continuing strong link between the Department and the Weather Service.

The Chairperson asked the Department to note the Centre's concerns.

The Society of Master Mariners South Africa, submitted that South Africa was a Contracting Party to the International Convention for the Safety of Life at Sea 1974 (as amended) which required that the master of every ship which met with such hazards as dangerous ice, a tropical storm, severe ice build-up on ships' superstructures, or winds of force 10 or above on the Beaufort scale for which no storm warning had been received, was bound to communicate the information by all means at his disposal to ships in the vicinity, and also to the competent authorities. Moreover, no person should not prevent or restrict the master of the ship from taking or executing any decision which, in the master's professional judgement, was necessary for safety of life at sea and protection of the marine environment. The Society proposed the term 'severe weather' should be defined; and the proposed Section 30A (1)(a) must be amended to acknowledge and even encourage the Convention's obligation on masters of ships to issue danger messages.

The Chairperson accepted the Society's concerns. The importance of SOLAS could be acknowledged by a general reference to international treaties. There were no Members' questions.

Afternoon session
The FW de Klerk Foundation expressed serious concerns concerning the proposed clause 30A relating to offences and penalties. It argued that the Bill was vague and unconstitutional in that it would impinge on the right to freedom of expression. 

Members agreed that the wording was vague.  They agreed that hoax warnings must be prevented and that the wording of Bill had not been properly thought through.  It would need to be revised.

A delegation from e.tv was also concerned about the vagueness of the wording of the Bill.  The scope of the proposed legislation was not clear and could be seen as unconstitutional.  The weather team at the broadcaster were all trained meterologists and could make correct deductions from viewing weather data.  They had a duty to use the medium to warn the public of severe weather events which could lead to the loss of life or property, but felt that having to obtain prior permission from the South African Weather Services before issuing warnings might lead to fatal delays.  While they recognised the authority of the South African Weather Services, the speed of information being passed could be improved.


Members asked about the broadcaster's relationship with the South African Weather Services and if it issued weather warning on television.

Meeting report

Introduction
The Chairperson asked that careful note be made of proposed changes to the South African Weather Services Amendment Bill [B22-2011] (the Bill).

Department of Environmental Affairs South African Weather Service Amendment Bill [B22-2011] presentation
Background
Mr Peter Lukey, Chief Director, Air Quality Management, Department of Environmental Affairs (DEA, the Department), gave a briefing on the South African Weather Service Amendment Bill [B22-2011]. As background and introduction he explained the need for an amendment to the South African Weather Service Act 2001 (No 8 of 2001) (the Act). He referred to relevant developments since 2001: the National Environmental Management: Air Quality Act 2004 (No 39 of 2004) and its 2007 National Framework, and the SAAQIS. He noted that although the South African Weather Service (SAWS) hosted SAAQIS, only a very broad Memorandum of Agreement (MOA) formalised the arrangement. Moreover, in just under 10 years experience of implementing the Act, the Department found that it contained transition provisions which were outdated and no longer needed, contained outdated governance provisions, and lacked teeth.

Developmental process
Mr Lukey explained the Bill's development process. The Department had begun an initial review in July 2009 and completed and circulated a technical discussion document in October 2009. The Department had in February 2010 briefed the legal drafters, who presented the initial draft Amendment Bill to the Department in May 2010. The Department, however, put the Bill's development process on hold, pending, among others, the finalisation of the Business Case for SAWS to host the SAAQIS, but resumed development of the Bill early in 2011, and presented it to the Cabinet Cluster for the Economic Sectors and Employment and for Infrastructure Development (ESEID) on 06 April, to the Cabinet Committee for ESEID on 13 April, and for Cabinet Decision (public comment) on 29 April 2011 (slide [4]).

The Department published the Bill for public comment in May 2011, addressed SAWS and South African Environmental Observation Network comments and consulted the National Treasury in June 2011, presented the Bill's final draft to the Cabinet Committee for ESEID on 31 August 2011 with a Cabinet Decision (tabling in Parliament) on 07 September 2011.

The revised Bill was introduced in the National Assembly and an explanatory summary of the Bill published in September 2011.

Public comments May-June 2011
Mr Lukey noted that the Department received only two sets of comments during its 30-day period for public comment in May-June 2011. At that time the Department did not find this surprising, as it envisaged the Bill as largely technical in nature. These sets of comments were from SAWS itself on technical issues on the appointment of its Chief Financial Officer (CFO) to serve as a member of the Board and to request clarity on who should be the accounting officer in terms of the Public Finance Management Act 1999 (No 1 of 1999) (PFMA); and from the South African Environmental Observation Network (SAEON) proposing, in the main, free and open access to the National Climatological Databank (NCD) and air quality information.

The Bill's objectives
The Bill sought to amend the South African Weather Service Act 2001 (No 8 of 2001) by:
removing redundant provisions;
providing for the additional functions of SAWS as to the rendering of air quality information services, being the custodian of the SAAQIS and the NAQMN, and the operation of the NAQMN;
addressing administrative challenges experienced with governance issues; and
including a provision for offences and penalties (slide [7]).

Mr Lukey noted that is was this last provision that had captured the public's especial interest.

Air Quality Information Management
In order to meet the information requirements for good air quality governance and ensure full compliance with the Air Quality Act, the Department, in partnership with SAWS, had been developing the SAAQIS and its National Ambient Air Quality Monitoring Network. However, the only formal agreement between the Department and SAWS was a very broad Memorandum of Agreement.

A legal mandate was needed for SAWS, the Department and SAWS had agreed, for SAWS to implement the above systems efficiently and effectively. Such a legal mandate, Mr Lukey emphasised, had not existed before. Most of the Bill's proposed amendments to the Act therefore dealt with the ambient air quality information service function, and, consequently, the proposed amendments provided SAWS with this legal mandate to perform the Ambient Air Quality Information Service: Mr Lukey emphasised that it was purely around information; the Department would not lose any element of its accountability for service delivery. On the contrary it was merely acquiring a legal mandate to perform certain aspects of this work. It could be seen as delegation. (Slide [9]).

The Board
The Bill sought amendments to ensure that the needs of the air quality management stakeholders were taken into account when Board members were appointed; that the remuneration of Board members was to be approved by the Minister of Water and Environmental Affairs; that the Board should be the accounting authority, to align with the PFMA which was very important; and that provision was made to limit the liability of SAWS under certain circumstances (slide [10]).

Chief Executive Officer
The new provision prescribed the process for appointing the Chief Executive Officer (CEO), the term of appointment and responsibilities. The new provision would compel the Board to enter into an annual performance agreement with the CEO. The provision set out the grounds for terminating the CEO's service and appointing an acting CEO. Mr Lukey noted that these were all typical of the King III Code of Governance for South Africa 2009 recommendations.

Offences and penalties
Section 4(3) of the Act stipulated that SAWS alone might issue severe weather-related warnings over South Africa in order to have a single authoritative voice in this regard.

However, the above provision was not enforceable.

Therefore, the Bill provided (Clause 12) that it would now be an offence to issue severe weather or air pollution-related warnings without the necessary written permission of SAWS. (Slide [12])

Right from the outset, Mr Lukey explained, the provisions concerning air pollution-related warnings were actually a mistake, since they conflicted with the National Environmental Management: Air Quality Act 2004. These provisions were included in an early draft of the Bill. After internal discussion, they were removed from the early clauses of the Bill, but, by mistake, they had not been removed from the offences and penalties (Clause 12).

Schedules
The Bill amended the Act's Schedules to make provision for the additional services for the public good and for the commercial services relating to the SAAQIS and the National Air Quality Management Network.

Organisational and personnel implications
The Bill did not create new structures in the Department, but rather transferred the SAAQIS and the National Ambient Air Quality Monitoring Network function to the SAWS.

Accordingly, in terms of the Memorandum of Agreement, a new Air Quality Information Unit had been established at SAWS to implement the SAAQIS and the National Ambient Air Quality Monitoring Network function.

Financial implications
The Department's budget would increase to include additional funds for implementing the Bill's proposed amendments concerning the SAAQIS and the National Ambient Air Quality Monitoring Network function.

Current concerns
It was the Bill's Clause 12 to enforce the Act's Section 4(3) provision that 'Only the Weather Service may issue severe weather-related warnings over South Africa in order to ensure that there is a single authoritative voice in this regard' that had aroused the media's attention. Mr Lukey explained why.

Considering the importance of a credible severe weather warning system and how false, misleading or hoax warnings effectively undermined credibility, the Bill introduced, by way of this Clause, an offence and penalty: 'No person may ... issue a severe weather or air pollution-related warning without the necessary written permission from the Weather Service'. As Mr Lukey had said earlier, the reference to air pollution-related warnings was now to be removed, as its inclusion had been a mistake. [Slide [16]. However, Mr Lukey acknowledged that the wording had been found too open-ended and was tending to criminalise the very act of issuing a warning, even warnings with good intent. He gave examples, such as a farmer warning his neighbours by citizen's band (CB) radio of a hailstorm the approach of which he himself had witnessed. It was, of course, not the Department's intention to outlaw such warnings which were genuinely in the public interest. However, the Department sought to prohibit false warnings that resulted in panic and injury.

Discussion
The Chairperson inferred that is was the Department's intention to prevent hoaxes but not prevent genuine warnings in the public interest.

Mr Lukey said that the Department wanted to encourage people, such as the above-mentioned farmer, to communicate with SAWS so as to enable information to be further disseminated.

Current concerns (continued)
The associated proposed penalties were similar to those contained in all current environmental legislation. He pointed out that the Bill merely proposed an upper limit, not a minimum fine. The actual fine was at the discretion of the courts (See slide [17]).

Discussion
The Chairperson had repeatedly advised parliamentary drafters to spell out the intention of legislation and not leave so much discretion to the courts. Why should it be left to the courts to interpretation what the intention of the legislature was?

Conclusions
Mr Lukey said that the Department was gratified at the new level of interest in the proposed amendment, after it had received only two sets of comments in May to June 2011.

The Department noted some merit in respect of the new concerns.

The Department hoped that the Committee would provide it with an opportunity to submit proposals on how the current concerns could be addressed without compromising the good intentions of the amendments.

Mr Lukey pointed out that it was not SAWS' intention to corner the market. However, SAWS was a national asset.

He pointed out the role of the SAWS Regulatory Committee, which was basically a watchdog. Concerns about the SAWS could be reported to this regulator which was obliged by law to investigate.
(See presentation)

Discussion
The Chairperson wanted to hear all the submissions before the Committee would consider new wording. He thanked Mr Lukey, and congratulated the Department, together with the Department of International Relations and Cooperation (DIRCO) on the Conference of the Parties (COP) 17.

Mr Lukey suggested that the Committee should visit the SAWS.

Mr G Morgan (DA) appreciated the Department's implicit request to the Committee to remove from the Bill the reference under offences and penalties to air pollution-related warnings.

Mr Morgan asked if, in fact, 'severe weather' was defined, and weather it could be defined. He could not find it in the definitions in the Act or in the Bill. Good drafting would imply clarity on that subject. Did the Department regard the definition as important? No doubt the courts could interpret, but he was not sure that one would want to leave that to the courts. In the context of climate change, was an 'extreme weather event' the same as 'a severe weather event'. He said that the Bill required good drafting and tight definitions to avoid leaving interpretation entirely to the courts.

Mr Morgan asked the Department to provide the Committee with some background on the proposed amendments that were regarded as uncontroversial, in particular Clause 7 on the secondment of employees from the Department to the SAWS. Why was the Clause included? Was it in fact good practice to second employees from a Government department to an entity?

Mr Morgan further asked for clarity on Clause 8, which referred to the issue of the accounting officer. He knew that there had been a clash between the PFMA and the Weather Service Act 2001, and he was glad that the Bill sought to resolve this conflict. However, what in practice had happened operationally in the past years? Who had been the accounting officer since the commencement of the Act?

Mr Morgan noted that the Bill provided for an increase in the SAWS' functions principally in regard to air pollution management. He called for more detail on the business case study for the Bill.

Ms J Manganye (ANC) asked, in the context of the SAWS being the only voice for issuing severe weather warnings, how effective the present warning system was.

Ms D Tsotetsi (ANC) wanted to ensure that all the provinces had the infrastructure to contend with emergencies, such as those recently in Mpumalanga and Limpopo.

The Chairperson asked why, when departments created agencies, they gave them the exclusive power to make policy.

He was especially concerned about the implications of policy making by the boards of entities when the board expanded the commercial activities of the entity. It was a huge problem. He hoped that he would not be misunderstood, and he acknowledged the specialised knowledge that existed in entities such as the SAWS.

Departments should reserve the right to set the policy framework. The parameters of policy making must reside with Government and with politicians who were accountable.

The Chairperson asked how big the SAWS Board was.

The Department replied that there were 12 members of the Board.

The Chairperson asked how the Board was held accountable.

The Chairperson was dismayed that the policy making responsibility which the Constitution had given to the Executive, was, in so many instances, given away, and a board decision that was really a political issue could now only be stopped through the courts. He emphasised that policy formulation should remain the preserve of Government. It was wrong that departmental agencies such as those of this Department took policy formulation upon themselves.

The Chairperson asked about the role of the CEO and the Chief Financial Officer (CFO) in relation to the Board.

He further commented on the issue of policy and the function of the agency and accounting authority issues.

Responses
Mr Lukey replied to Mr Morgan that the Department had reconsidered the dictionary definition of 'severe', and found that the dictionary definition was inadequate. The Department now thought that it was necessary to define certain terms, such as 'severe weather warnings'.

The Chairperson said that the Bill's definition was wrongly worded. He imagined that if the Department reworded the definition in the way that Mr Lukey had explained it, it would not even be necessary to use the phrase 'severe weather warning'. If the Department were to say 'false and misleading weather information' that led to stampedes [or other such consequences], then a definition of 'severe weather warning' was not required. The debate would then hinge on 'false'.

Mr Lukey replied that the Department would try to find a solution that was the simplest, since the more definitions were included in an attempt to give clarification, the greater was the potential for confusion. The Department also acknowledged that there was no definition of weather-related disaster in the National Disaster Management Act 2002 (No 57 of 2002).

The Chairperson warned against mixing concepts in Clause 12. He affirmed the right of the SAWS to issue warnings while emphasising the importance of the right of individuals to disseminate information. Clause 12 needed further debate.

Mr Lukey referred to Clause 7 on secondment. The whole concept of air quality management was a new one. Until 2005 the Department had no information system on air quality. Both the Department and the SAWS had been building up their capacity in parallel. This was the intention for this Clause. The Department was effectively the client in this situation.

With regard to Clause 8, the motivating factor was not failure, but to achieve compliance with the PFMA, and avoid the implication that 'despite' the PFMA, the SAWS might do something different.

Mr Lukey referred to the business case. It was not really a classic business case because the SAWS was not a business. It was actually the provision of a service that one paid for directly, and SAWS was based on the kind of financial service that the Department gave to SAWS, which based its work on a business plan approved by the Department.

Mr Lukey said that it was not really the warning that was important, but the response to the warning. SAWS was a very important member of the entire disaster management fraternity of South Africa. SAWS was considering the use of cell phones as one of a number of additional means of disseminating severe weather warnings.

Mr Lukey replied to Ms Tsotetsi that disaster response was not included in the SAWS mandate but fell specifically under the Department of Cooperative Governance (DoCG) in terms of the National Disaster Management Act. The SAWS had an exceptionally important role, however, in relation to the disaster management centres in providing continuously accurate information on the weather, as did the Department of Water Affairs in providing information on river levels.

The Chairperson requested the Department to present to the Committee the future framework, and the performance agreements and policy frameworks set by successive ministers. The Committee would then have a proper debate on them.

Mr Lukey promised that the Department would prepare a full briefing.

The Chairperson, from his own perspective as a former deputy minister, spoke on the need for appropriate and effective delegation of authority.

Follow-up questions
Mr Morgan asked how other legislation dealt with 'hoaxes'.

The Chairperson commented that such definitions were to be found in other legislation, such as the Terrorism Act, and in the Judicial Matters Bill. There was also protection in common law, but of course it would be civil.
 
Mr Morgan was concerned about the air quality functions given to SAWS, which was a national entity, and sought assurance that they were aligned to provincial and local government. Under the National Environmental Management: Air Quality Act, local government was the most important sphere in relation to air quality. The Bill was tagged a Section 75 Bill, but he wanted to be sure about possible implications for the provinces.

The Chairperson sought reasons for the tagging.

Ms Suraya Williams, Principal State Law Advisor, Department of Justice and Constitutional Development (DoJ&CD), explained why it had been tagged as a Section 75 Bill. The Bill in essence did not deal with the formulation or anything regarding air pollution or air quality control. Therefore the State Law Advisors were of the view that the amendment Bill was within the meaning of any other matters referred to in Section 44 of the Constitution. Actually the Bill dealt with certain aspects of ambient air, but it did not substantially fall in the concurrent provided for in the relevant Schedule.

The Chairperson accepted what Ms Williams had said, but wanted to consider the matter further. He spoke of the dominant purpose test which had been used in drafting the Constitution, and which had a precedent in Canada. The whole intention of the Constitution had been to keep provincial matters to a certain limit. He wanted to avoid the Bill's subsequently being determined unconstitutional purely on procedural grounds.

Mr Lukey said that the SAWS was in the best position to provide an additional service, on air quality, to the licensed authorities. The National Environmental Management: Air Quality Act was not in any way amended by this Bill.

The Chairperson said that all aspects of air pollution could be seen as a concurrent power. It was a technical legal issue relating to Schedule 4 of the Constitution. He preferred to be cautious and wanted to prevent the Bill's stalling on a procedural matter. He would depend on the advice of the State Law Advisors. It remained to be resolved how Parliament would treat the Bill.

HAMNET Emergency Communications presentation
Mr Francois Botha, National Director, HAMNET Emergency Communications: the Emergency Communications Division of the South African Radio League, submitted that, in principle, HAMNET [amateur network] had no objection to the Bill, except the one issue of the proposed insertion of Section 30A in the Act - 'No person may issue severe weather or air-related warning without ....'.

Mr Botha, himself an amateur radio operator, explained that among services that HAMNET offered the community, was to inform it of adverse weather conditions if and when the situation might arise. HAMNET's members were fully trained, licensed and dedicated amateur radio operators.

This allowed recipients to prepare themselves for either possible flooding or heavy snow falls. HAMNET had a proud record of having issued various 'advisories' over the years which had been very accurate. HAMNET obtained the information from SAWS and it was therefore regarded as accurate and from a reliable source.

HAMNET felt that if it was prohibited from issuing these warnings, it might jeopardise life and limb. Moreover, by issuing such a warning, SAWS which HAMNET gave the community would become, under the proposed legislation, a criminal offence.

HAMNET thought that this was counter productive and not in the interests of members of the public in general.

HAMNET therefore recommended that Clause [number] be either withdrawn or written in such a way that issuing accurate weather information was not regarded as a 'criminal offence', especially when the source (like the SAWS) was regarded as a reliable source.

Mr Botha noted that obtaining weather information from around the world was available in many formats on a minute-by-minute basis and most, if not all of it, was very accurate. He therefore emphasised that the proposed Section 30A be accordingly amended.

Mr Botha pointed out that the SAWS did not inform the public well enough about the dangers, especially flooding, which could occur as a result of 'cut-off lows' - a term often used, but hardly explained.

Mr Botha complained that it was now necessary to pay in order to access the SAWS website. Since the information was now not available, HAMNET members' jobs were made harder.

HAMNET was very careful if it issued a warning. Moreover, such warnings were transmitted to HAMNET members. Creating a monopoly was a problem. There should be sharing of information. Because of the restrictions on access to the SAWS website, HAMNET had to use alternative sources.
 
(See presentation and submission)

Discussion
The Chairperson gave an assurance that there would be a much more specific prohibition in the final version of the Bill. He criticized the SAWS for not being assertive enough in giving out information. Maybe the oversight visit that SAWS had suggested was long overdue, and perhaps the Committee should reprimand SAW. The lines of communication must be streamlined. It took time to do everything through formal structures, and he thanked Mr Botha for raising the matter. Moreover, he assured Mr Botha that the Committee appreciated HAMNET's work.

Mr Morgan understood HAMNET to be a closed network. He asked about the dangers of hoax warnings.

Ms Tsotetsi asked what HAMNET's sources of funding were.

Ms Tsotetsi asked what languages HAMNET members used.

Dr S Huang (ANC) asked in what way HAMNET' s warnings might be more accurate than those of SAWS.

Responses
Mr Botha replied that he was friendly with Radio 702 in Johannesburg. HAMNET reported events to the station, but did not issue advisories. Anyone who had information was welcome to share it with HAMNET. Moreover, HAMNET encouraged sharing information with the SAWS. Most amateur radio operators were to be found in the big cities. Some were farmers, and some worked in the emergency medical services. Amateur radio operators in South Africa used mainly English and Afrikaans, but members of the South African Amateur Radio League (SARL) in Johannesburg were fostering in schools an interest in amateur radio in order to broaden knowledge of and interest in amateur radio in the wider community. It was to be hoped that more languages would be heard on the air. Radio amateurs could use any language, subject to the restriction that they must give their call sign, for example, ZS6BUU, at the beginning and end of every segment of transmission.

Mr Botha replied to Ms Tsotetsi that HAMNET members financed their equipment and operation entirely at their own expense. Their activities were entirely voluntary, and HAMNET was a purely voluntary organisation. A small exception was some particular financial help from Sasol in expectation of assistance when required.

Chemical and Allied Industries Association (CAIA) Weather Services Act presentation
Key issues
Dr Lorraine Lotter, Executive Director, Chemical and Allied Industries Association (CAIA), indicated key issues that the Bill raised: the intention of amendments, current challenges on implementation of the Air Quality Act, the scope of responsibility for air quality information, pollution warnings, that there was no reference to how the proposed amendments would be funded, and the proposed changes.

The Bill's intention
Dr Lotter noted that the Bill's intention was to give effect to the agreement between the Department and the SAWS on the establishment and management of an air quality information system, and that there were no changes proposed to the relationship between the regulator and industry.

The current situation
The licensing regime, Dr Lotter explained, was still not operational. There were inconsistent messages on licensing requirements. Advice on requirements was provided by national and local government. Under the existing legislation the information to be provided in licence applications was still not clarified. Concerns around public access to confidential business information remained unresolved. The development of phase 2 of the SAAQIS included stakeholder involvement. The Greenhouse Gas (GHG) inventory was the subject of co-operation between Business Unity South Africa (BUSA) and the Department.

Scope of responsibility
As to advisory services, Dr Lotter said that CAIA believed that the inclusion of air pollution concentrations and emissions was beyond the scope of the SAWS mandate; the Bill did not acknowledge the responsiblity of industry in respect of pollution warnings; and the Bill duplicated the responsibility of competent authorities.

The CAIA thought that instruments should be confined to information management.

Research should be confined to SAWS.

Training in air quality was not an appropriate function for SAWS.

Pollution warnings
The Bill reflected a misunderstanding of the purpose of pollution warnings, Dr Lotter said. She pointed out that emission incidents must be reported in terms of the National Environmental Management: Air Quality Act (NEMA) (No 9 of 2004). Warnings to the public were required in terms of the Major Hazard Installation Regulations: in case of emergency response measures, it was not possible to wait for written permission.

CAIA's proposed changes to the Bill
The CAIA called for:
▪ deleting definitions not used in the Bill;
▪ deleting restrictions on pollution warnings;
▪ deleting advisory and consultancy services on individual emissions;
▪ including restrictions on use of business confidential information collected as part of licence applications;
▪ deleting limitation of liability of SAWS. (CAIA was worried about this.)

The CAIA noted that ambient air quality was available from a variety of sources, and that therefore the definition should clarify those that would be used.

There should be no limit on the sources of information to be used for consultancy services.

The relationship between these services and advice given by competent authorities should be clarified.

CAIA further called for:
▪ a limit on the sources of information to be used for consultancy services;
▪ clarifying the cost of these services;
▪ clarifying the relationship between this service and the advice given by competent authorities; and
▪ including Intellectual Property Rights protection for information submitted by industry (Section 26 of Act).
 (See presentation and submission, especially the table of detailed comments)

Discussion
Mr Morgan agreed with the Chairperson in finding the presentation rather technical and that it would be useful to ask for some suggested amendments.

The Chairperson asked the CAIA to meet with Mr Lukey and give the results of their discussion to the Committee.

The Chairperson was pleased at the progress of the hearings, the Department having, in its briefing, acknowledged 'mea culpa' [i.e. the Department had admitted its mistake in Clause 12].

There were no further Members' questions.

Centre for Environmental Rights oral presentation
Ms Robyn Hugo, Staff Attorney, Centre for Environmental Rights, a law clinic and not-for-profit organisation providing legal expertise to community organisations, civil society, and the community at large. She referred Members to her organisation's written submission on behalf of groundWork, the South Durban Community Environmental Alliance, and the Vaal Environmental Justice Alliance. All three of these organisations strove for environmental justice and improvement in the quality of life for vulnerable people and helping civil society have a greater impact on environmental governance. Their submissions had also been endorsed by the Wildlife and Environment Society of South Africa (WESSA). She had intended to address the Committee about the offence of unauthorised issuing of air pollution-related warnings (Clause 12) which in the view of the above organisations had potentially negative implications for the environment and public health. Her organisation's clients disclosed, in the public interest, air pollution-related information, and believed that this practice was well-established and was a valuable check and balance. However, she was now happy to hear that prohibition of such warnings had been included in the Bill in error, and she would not speak about the matter further. She also noted the Chairperson's comments on transferring certain functions to the Weather Service. Her organisation had addressed this in its written submission. If the Weather Service was the custodian of air quality-related functions, the organisation feared that this might create a silo between the information-gathering and dissemination functions and between other aspects of air quality management, like enforcement and licensing of activities. The organisation sought a continuing strong link between the Department and the Weather Service (see submission).

Discussion
The Chairperson asked Ms Hugo to provide other suggestions, if not now, then in writing. He noted that the Department had now identified three problems that it wished to prevent - false information, misleading information, and hoaxes. It also wished to prevent the consequences of these.

The Chairperson appreciated Ms Hugo’s drawing attention to the risks of possible fragmentation of functions.

The Chairperson asked Dr Lukey to note the organisation's concerns. He noted that secondment of staff might enhance the flow of information.

There were no Members' questions.

Society of Master Mariners South Africa oral submission
Proposed Section 30A
Captain Rob Whitehead, President: Society of Master Mariners South Africa, submitted that the Bill's proposed insertion into the Act after Section 30 of offences and penalties (proposed Section 30A) was of great concern to the Society. He gave reasons:

The phrase 'severe weather' was not defined in the Bill and was vague;

South Africa was a Contracting Party to the International Convention for the Safety of Life at Sea (SOLAS) 1974 (as amended); Chapter V (Safety of Navigation) of this Convention dealt in some detail with meteorological services and warnings: Regulation 31 (Danger Messages) section 1 of this Chapter required that the master of every ship which met with dangerous ice, a dangerous derelict, or any other direct danger to navigation, or a tropical storm, or encountered sub-freezing air temperatures associated with gale force winds causing severe ice accretion on superstructures, or winds of force 10 or above on the Beaufort scale for which no storm warning had been received, was bound to communicate the information by all means at his disposal to ships in the vicinity, and also to the competent authorities.

Further, Regulation 34 of the above required that the owner, the charterer, the company operating the ship as defined in Regulation IX/1, or any other person, should not prevent or restrict the master of the ship from taking or executing any decision which, in the master's professional judgement, was necessary for safety of life at sea and protection of the marine environment.

While the Society appreciated that there should be 'a single authoritative voice”, as envisaged in the Act, when issuing severe weather warnings, it was a fact that masters of ships, who often found themselves in remote sea areas and were the first to detect warning signs of and to experience severe weather conditions, must take into account their obligation 'to communicate the information by all means at their disposal to ships in the vicinity, and also to the competent authorities' in terms of the SOLAS Convention.

The Society proposed:
The term 'severe weather' should be defined;

The proposed Section 30A (1)(a) must be amended to acknowledge and even encourage the SOLAS obligation on masters of ships to issue danger messages.

The proposed Section should be worded as follows:
'No person may -
(a) issue a severe weather or air pollution-related warning without the necessary written permission from the Weather Service (except in the case of a ship's master acting in terms of his obligations under the International Convention for the Safety of LIfe at Sea (SOLAS) 1974 (as amended).'

The Act's failure to recognise Government's important meteorological obligations in terms of SOLAS
Captain Whitehead said the Society strongly believed that the Bill's proposed amendment of Section 3 of the Act must include the insertion of a new paragraph (g) laying down a Weather Service objective as follows:

'(g) to fulfil the meteorological obligations of the Government under the International Convention for the Safety of Life at Sea (SOLAS) 1974 (as amended).'

Discussion
The Chairperson accepted Capt Whitehead's concerns. In particular, the concern around SOLAS could be accommodated in a more general reference to international treaties. This should not be a problem.

There were no Members' questions.

Afternoon session
Presentation by the FW de Klerk Foundation
Mr Dave Steward, Executive Director, FW de Klerk Foundation, welcomed the chance to express the views of the Foundation.  In general, the Foundation was in agreement with most of the provisions of the Weather Service Amendment Bill. However, it had serious concerns regarding the proposed clause 30A relating to offences and penalties. He welcomed the news that the Department had moved to change the wording but the concern still remained nonetheless.  There had to be an open public debate in a free society.  This would inevitably lead to misunderstandings and incorrect impressions.  He felt that it would be unconstitutional to make this an offence.

The Chairperson said that the Bill proposed a prohibition on false and misleading information.

Mr Steward argued that it was a matter of interpretation of what was meant by false and misleading.

The Chairperson said that the courts would have to decide.

Mr Steward said that Section 30 could be interpreted as a prohibition on any criticism of a government organ.  This would lead to a curb on free expression, debate and political activity.  It was the Foundation's opinion that the wording of this clause should be reconsidered to be brought within the realms of freedom of expression.  The current wording infringed on Section 16 of the Constitution.

Discussion

Mr Morgan said that the Members had discussed this issue in the morning session. He asked to what extent an organisation could have legislation that would prevent false or misleading information about that body.  The focus had been on the aim of the Bill and not on the drafting. 

Ms D Tsotetsi (ANC) said that it was correct and lawful to prevent false or hoax warnings.

Mr Morgan said that he had read the Bill intensively. He wondered if any comments he might have made as a Member had caused commercial harm to SAWS.  The Bill was going far beyond simply banning hoax warnings.

The Chairperson said that three separate offences were being defined.

Mr Morgan sketched the effect should he go and publicly criticise the SAWS.  He suspected that this was not the intent, but there was a problem in the drafting.

Mr Steward asked what the consequences would be if such legislation applied to the office of the President.  This would put a burden on any public commentator to make absolutely certain that their comments did not contain any false or misleading information otherwise they would be subject to a serious fine or even imprisonment.  The clause in this Bill was fundamentally unconstitutional.

The Chairperson said that most organs of state had similar provisions.  He urged Mr Steward to read similar legislation pertaining to other organs.  The Committee would accept any further written submission from the Foundation.

Presentation by e.tv

Adv Nick Ferreira, an Advocate in Gauteng acting as Counsel for e.tv, presented an opinion on behalf of e.tv.  ETV recognised the importance of updating the South African Weather Services Act to allow the South African Weather Services function effectively. However, e.tv is concerned about the effects of s 30A of the Amendment Bill. This section was over-broad and vague and should be amended to narrow the scope of the new criminal offences to more precisely achieve their purpose.

Discussion

The Chairperson said that the Department had conceded that the clause was too wide and should concentrate on hoax warnings.  It was clear that the clause needed to be amended.

Adv Ferreira said that there was also a submission regarding Section 30A. (1) (c).

The Chairperson said that there had not been engagement with the DWEA.  The issue was not freedom of speech, but to what extent government could create an offence.

Adv Ferreira said that the Amendment Bill created three new offences, relating to the issuing of warnings regarding weather and air pollution, and criticism of the SAWS.  The language was too vague to make it clear what the scope of the legislation was.  He listed examples of offences which related to freedom of expression.  This need to have prior permission for publication of warnings from SAWS was a form of prior restraint.  This was the highest form of curbing freedom of expression. 

Adv Ferreira said that a high level of justification was needed to curb freedom of expression.  There was a delay when having to apply for permission, and this might restrict the effectiveness of warnings for impending weather events.  It was important to prevent hoaxes, but the problem lay in the far-reaching nature of the proposed criminal offences.  The focus needed to be narrower.  He could not give an exact example, but there was a precedent.  The Constitutional Court had issued a ruling on a case where the Islamic Unity body had denied that the holocaust had happened.

Adv Ferreira said that it was not clear what was meant by a severe weather warning.  There was also a lack of clarity over the nature of issuing such a warning.  The Constitutional Court had said that such legislation must be as clear as possible to enable the public to comply.

Adv Ferreira said that e.tv was concerned about the proposed Section 30A. (1) (c).  This created severe criminal liability.  This proposed offence was very broadly defined.  The misleading information might come from within SAWS.  A range of happenings, such as a creditor company going bankrupt or employees of SAWS staging an illegal strike, would also be seen as criminal acts.  It was not clear where unlawfulness would come from.  This sub-clause could be deleted.

Discussion

The Chairperson thanked Adv Ferreira for his helpful submission.

Ms Tsotetsi felt that the examples put forward were not relevant.  It should not be an offence to look at weather patterns and predict what problems may develop.

The Chairperson said that the intention was to prevent false warnings from being issued to the public.
 
Mr Morgan asked Mr Derek Van Dam, Senior Meterologist, e.tv, what part of his work involved simply reporting on weather patterns or included issuing warnings.  The degree of severity was open to individual interpretation.  He asked if the possibility of committing an offence would cause him to adjust his personal interpretation of weather events. There had not been many hoaxes in the past.  On occasion, a weather reporter might be mistaken. Data could be drawn from unreliable sources.  He asked if this would temper a forecaster's enthusiasm in imparting information to the public.  The legislation should rather target people impersonating a weather service, as had happened recently.


Adv Ferreira said that the Committee had to bear in mind that a Judge could not interpret the intent behind an Act, but would have to make his or her decisions based on the written letter of the law.

The Chairperson said that the intent was not to punish negligence except in sub paragraph (c).

Mr Van Dam said that his definition of a severe warning had been discussed internally. It would be any weather event endangering the lives or property of South African citizens.  As a trained meterologist, he and the team at e.tv recognised the authority of SAWS.  Warnings issued were in the terms of their mandate.  It was up to him and his department to distribute warnings of hazardous conditions to the public as soon as possible.  He needed to know that he could do this freely.

The Chairperson asked what the broadcaster's relationship with SAWS was like.  He looked at the United States of America (USA) where weather reporting was much quicker to respond to events.  More information could be given to media services in a direct manner.  He could not recall seeing a weather warning on television.  There could have been a better response in many cases leading to lives being saved.

Mr Van Dam suggested that the relationship between the weather department at the broadcaster and SAWS should grow.  He had worked with the equivalent body in the USA.  Systems allowed for automatic displays of severe events such as tornadoes.

The Chairperson said that if the media was used to better effect, the SAWS would be more credible.  He hoped that SAWS and the DWEA would take this advice to heart.

Ms Tsotetsi asked how hurricanes were named.

The Chairperson was glad that there had been a large degree of consensus.  The process had gone well.  The point of the public hearing process was to gather as much expert information as possible.  This would lead to better legislation.

The meeting was adjourned.

 



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