South African Weather Service Amendment Bill [B22-2011]: summary of submissions, with Minister

Water and Sanitation

13 February 2012
Chairperson: Mr J De Lange (ANC)
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Meeting Summary

The Minister of Water and Environmental Affairs appreciated the Committee's work on the Bill. Her objective was to prevent potential hoaxes. She had witnessed the danger of conflicting messages received from different quarters. However, it had never been intended to interfere with very minor and informal communications between individuals. It was issues of national importance and issues of national potential disasters that the Bill sought to address. She was, however, a little disappointed with the unfortunate manner in which this Bill had entered the public arena. She emphasised the importance of team work in drafting laws to benefit the South African people and that in future we must respect each other. The Chairperson might draw boundaries as to how, in future, we would debate such matters.

The Chairperson assured the Minister that he preferred that before the Committee held public hearings, that the Minister could come and give some political overview and context. Despite what might have been said in the media, the Committee had not yet passed or agreed to anything. He hoped that the Minister's staff would report regularly to her. Moreover, the Committee hoped to engage with the Minister again, in any form she wished, before entering into formal deliberations.

The Department had, as the Committee requested, met with Business Unity South Africa and provided a report and summary of proposed amendments to the South African Weather Service Amendment Bill [B22-2011]. The Chairperson had also drafted proposed amendments to Clauses 11 and 12 and circulated them to Members. The Committee discussed these informally.

A Democratic Alliance Member said that an important issue was whether this Bill should be a Section 76 Bill and not a Section 75 Bill, as it was currently tagged. Air pollution, under the schedule of the Constitution, was one of the functions of a local municipality. There was no reference in the Bill to the role of the local municipality and the cooperative function. If the South African Weather Service gave out a warning, where was the discussion with the local municipality?

The Chairperson noted that Members had no problem with moving the air quality function of a system of information to the Weather Service. The issue was whether to give the power of issuing pollution warnings to the Minister/ Director-General or to the Weather Service, which clearly did not have the expertise around the economic consequences of such warnings. It was now a specific function that was being discussed, not the information system. However, agreement had been reached that someone must be able to issue the warnings. The issue for debate was who was best equipped to do so. The legal advisors would have to rethink the issues around their opinion on the Bill's tagging.

The Democratic Alliance Member was concerned that Clause 12 [insertion of Section 30A(1)(b)] as it stood might enable the Weather Service, through its legal department to bully people in the commercial sector who were competing with the Service. He also thought that the South African Weather Service website was weak. He was worried that anyone who criticised the Service in the public domain might be liable to prosecution.

The Chairperson's concern was above all with false or misleading information, which essentially was fraud. He was not too worried about the possibility of bullying: the Weather Service might be a complainant and lay a charge, but first the South African Police Service must investigate and lay a charge, and then the National Prosecuting Authority must decide to prosecute. Also the common law might cover this concern, but it would depend on how the prosecutors interpreted fraud.

In particular, the Committee flagged the following for further in-depth consideration:
Who was to decide on giving a pollution warning (the South African Weather Service or Government), and what implication did the choice have on the tagging of the Bill?
Whether there should be a specific removal procedure for South African Weather Service board members;
Clause 11 (the Bill's proposal to allow the Minister to amend the Schedules by proclamation, which the Chairperson saw as unconstitutional);
Redrafting of Clause 12, in particular, putting in a provision that the provincial director of prosecutions should decide whether or not to prosecute in an offence under Clause 12(a) and 12(b).


Meeting report

Chairperson's Introduction
The Chairperson welcomed the Minister of Water and Environmental Affairs, Bomo Molewa, and the Department of Environmental Affairs. He emphasised that no decisions would be taken in this meeting. It was merely a debate. He informed Members that the Department had, as the Committee requested, met with Business Unity South Africa (BUSA) and provided a report and summary of proposed amendments. These were circulated to Members. Members had also been given a copy of the existing Act, the South African Weather Service Act 2001 (Act No. 8 of 2001), with the amendments proposed thus far, noted in.

Minister of Water and Environmental Affairs observations
The Minister appreciated the Committee's work on the Bill, the manner in which the Committee was dealing with it, and its necessary efforts to strengthen the Bill. Parliament was a place where laws were made. The discussions were enriching. She pointed out that her objective was to correct the weaknesses seen every day, as the Department would have indicated, in preventing potential hoaxes for severe weather warnings. The Minister had previously indicated her concerns to the Committee. She had witnessed, in the control room of the Department of Water Affairs, in early January 2011, the conflicting messages received from different quarters. This had been for her an alarming challenge. However, it had never been intended to interfere with very minor and informal communications between individuals such as farmers or between two communities. It was issues of national importance and issues of national potential disasters that the Bill sought to address. She agreed with the strengthening of definitions as needed, and saw the process as teams working together. She was, however, a little disappointed with the unfortunate manner in which this Bill had entered the public arena and appeared to express mild criticism of the Announcements, Tablings and Committee Reports (ATC). Even before she had the opportunity to have a discussion with the Committee, already 'one of us here' took the debate into the public arena. 'It is probably OK. If people do that but the manner in which it was done – some of us were called “stupid” to write the Bills like that and so on' – was regrettable. She emphasised the importance of team work in drafting laws to benefit the South African people and that in future we must respect each other. The Chairperson might draw boundaries as to how, in future, we would debate such matters. However, she was prepared for discussion on definitions, in particular that of weather-related warnings, and to talk about other technical amendments. The Departmental team was present and would lead the discussion.

Chairperson's response
The Chairperson assured the Minister that she did not have to wait for an invitation to attend the Committee's meetings. He preferred that before the Committee held public hearings, that the Minister could come and give some political overview and context. Despite what might have been said in the media, the Committee had not yet passed or agreed to anything. He would follow the practice that he had always followed in Parliament of discussing the entire Bill in the Committee by way of informal debate, before proceeding to formal deliberations. He hoped that the Minister's staff would report regularly to her. Moreover, the Committee hoped to engage with the Minister again, in any form she wished, before entering into formal deliberations.

South African Weather Service Amendment Bill [B22-2011] informal discussion
Clause 1 (a)
The Chairperson said there had been no proposed amendment for Clause 1 (a). It was just to remove a definition. Members had no comment.

Clause 1(b)
Clause 1(b) substituting the definition of advisory services: here BUSA had proposed that additional advisory services should be restricted to those relating to ambient air quality. The words air pollution and emissions should be removed.

The Chairperson quoted the Department's comment (Department's report, paragraph 3.2). The Department submitted that the intention of the definition of advisory services was to provide the South African Weather Service (SAWS) with a legal mandate to implement the ambient air quality information through the South African Air Quality Information System (SAAQIS) and the National Ambient Air Quality Monitoring Network (NAAQMM). This should also allow the SAWS to convert the raw data from these systems into commercial products for the market. The Department believed that any independent consulting should provide the same service with the raw data.

The Chairperson assumed that the Department was suggesting that the two words should not be deleted as suggested by the Chemical and Allied Industries Association (CAIA).

Ms Linda Garlipp, Chief Director: Legal Services, Department of Environmental Affairs (DEA), explained the reasoning behind CAIA's view. CAIA believed that the information that it had to provide to the Department, free of charge, on industry's atmospheric emissions was confidential. The Department on the other hand did not regard such information as confidential. It would provide that to the public for the public good, since the public had the right to know what industry was putting into the air. Raw data, as provided by CAIA, would not be sold, but provided free of charge in its raw form. However, once the South African Weather Service (SAWS) added skill and information, and re-packaged the data, then it could sell the information in its re-packaged form. It was only when SAWS added value to the information that SAWS could actually sell it.

The issue of whether the information was confidential or not might be discussed, but outside the scope of this Bill, during the further phases of the South African Air Quality Information System (SAAQIS). (Department's report, paragraph 3.1).

The Chairperson affirmed that no Member of the Committee would want this raw data information to be confidential.

However, it was up for debate as to whether it could be the source of something that was to be sold.

He noted that the CAIA feared the consequences of giving too much of the Government's role to the South African Weather Service (SAWS). It seemed that CAIA thought that the Committee would hand over all functions concerning pollution to the SAWS. However, the Committee had made it clear during the hearings that the Bill sought to create merely an information system. Those functions were being delegated to the Weather Service. Confusion around this had clouded CAIA's perspective. CAIA's suggestion amounted to creating a second information system within Government to collect the information that would not, according to CAIA's suggestion, be collected by the Weather Service. He asked Members if they would accept the Department's position, as it seemed to be the most reasonable.

Members agreed.

The Chairperson said that the Committee had therefore disagreed with BUSA's suggestion to remove the words air pollution and emissions and affirmed that there should be one information system and it should be holistic.

Clause 1(c)
CAIA had said that concerns around the inclusion of the responsibility to the Weather Service to collect, process and provide atmospheric emission information was beyond the scope of the Objects of the Act. CAIA proposed that advisory services should be restricted to ambient air quality. (Summary of Proposed Amendments, page [2]).

The Chairperson said that this was exactly the same issue. The Committee would also not accept that proposed amendment.

Members agreed.

Clause 1(c)(b)
CAIA proposed to replace instruments with management information systems.

Mr Ishaam Abader, Deputy Director-General: Environmental Quality and Protection, Department of Environmental Affairs, affirmed the Department's view that the word instruments should remain.

The Chairperson said that one could not go broader than information systems.

Mr G Morgan (DA) asked how the Department defined instruments in this regard.

Mr Abader replied that instruments denoted the monitoring stations used to collect the information and other instruments in the field.

The Chairperson therefore inferred that it was than just an information system. It included the physical infrastructure needed.

Mr Morgan suspected that the Chairperson would say that. But whose instruments were we talking about – Government instruments, including those operated by the municipalities, or those instruments operated by the weather-related sector?

Mr Abader replied that the Weather Service were also included; it was basically the national ambient air quality monitoring network – the monitoring stations that the Department had bought, and was using to measure and collate the ambient in the atmosphere. So it was basically all the monitoring stations that the Department currently owned, and which, when this Bill was passed into law, would be operated and maintained by the SAWS.

The Chairperson said that the definition would have to be read in the context of the definition in the Principal Act. In that sense it could only mean Government instruments. He suggested leaving it 'wider'.

Clause 1(c)(ii)
CAIA had submitted that research with the aim of reducing the impact of air pollution was outside the scope of the Objects of the Act and wanted to delete Clause 1(c)(ii). (Summary of Proposed Amendments, page [2]).

The Chairperson said that the problem with that kind of argument was again that if you were going to create your information system in one place, it would be foolish to create a research capacity at an entirely different place. CAIA was worried that SAWS was to be given wider powers, in this regard, than an information system. However, the powers to be given, in this regard, were limited to an information system.

Members had no comments.

Clause 1(d)
CAIA had submitted that it was not clear why training should be included here. Training in meteorological skills did not form part of the Principal Act. Clause 1(d) should be deleted.

The Chairperson said this submission was part of CAIA's broader worries and fell away once those broader worries were addressed.

Members had no comments.

The Centre for Environmental Rights was concerned about the proposed transfer of air-quality related functions to the Weather Service. If the Weather Service was the custodian of these functions, this might create a silo between the information-gathering and dissemination functions and aspects such as enforcement and licensing of activities.

The Department had responded that the Bill did not transfer air quality related functions to the Weather Service. The Bill only provided the Weather Service with a legal mandate to gather, manage and make information available through the SAAQIS and the NAAQMN. (Summary of Proposed Amendments, pages [2-3]).

The Chairperson pointed out that in the Committee's engagement with the Centre in the public hearings it had emerged that this was a misunderstanding on the Centre's part. The Centre saw it as air quality function, not as an information system. The Centre had no proposed amendments.

Once on corrected the overall worry that it was not functions that one was handing over to the creation of an information system, such arguments fell away.

Members had no comments.

Clause 1(e)
The CAIA wanted the term greenhouse gas deleted, as the definition was not used in the Bill. The Department had agreed to this. (Summary of Proposed Amendments, page [4]).

Members agreed.

Clause 1(f)
The CAIA wanted the terms ozone depleting substance, pollution, and priority area deleted, as the definitions were not used in the Bill. The Department had agreed, with the exception of pollution, as it was used in the National Environmental Management: Air Quality Act 2004 (Act No. 39 of 2004). (Summary of Proposed Amendments, page [4]).

Members agreed to deleting ozone depleting substance and priority area.

The Chairperson argued that the definition of pollution was not needed at all. Why say in this Bill what the word would mean in another Act. It was tautologous. It was a circular argument. Although the Bill would amend that Act, there was no need to include the definition in this Bill. It was embellishment.

Members agreed to deleting the definition of pollution.

Clause 1(g)
No amendments had been proposed.

Members were happy with this.

Clause 2(a)
CAIA had submitted that the source of 'ambient air quality information was not defined, and proposed that this term was defined for purposes of the interpretation of Section 3 as well as for the proper interpretation of the Act. It was further proposed that the definition should include ambient air-quality data generated by licensing authorities in terms of the National Environmental Management: Air Quality Act 2004 (Act No. 39 of 2004) and South African Weather Service Act 2001.

The Chairperson asked the Department what CAIA meant by 'the source of ambient air quality information was not defined'. If we did not know what CAIA meant, we could not address its complaint.

Mr Abader replied that the source was the information actually obtained from the monitoring stations. He was not sure what CAIA's complaint was.

The Chairperson was worried that this was a simple answer, but one not written down in the Summary of Proposed Amendments, page [4].

Mr Abader referred to CAIA's submission.

The Chairperson commented that one either had a legal mandate (through the South African Weather Service Act 2001) to do it or not. If one did not have a legal mandate, the only way to do it was through a contract. If it was covered by the Act, one would know what the source was. If it was not covered by the Act then the person who had that information would argue that if someone did not have a contract with the person, then the person would not have to give that information.

Members were happy with the Department's explanation and the Chairperson's comments.

Clause 3(d)
CAIA had submitted that the purpose, objectives and the criteria for exercising the discretionary powers or issuing of air pollution-related warnings were not explained. It had proposed that the objective for issuing such a warning be clearly explained and that related criteria for determining 'necessity' in the application of the discretionary power be also included. (Summary of Proposed Amendments, page [6])

The Chairperson commented that this was more substantial. CAIA's wanted air pollution-related warnings to be given by the Department, while the Department wanted the warnings to be given by SAWS. This was going wider than an information service. The Department wanted to give SAWS the power that someone on Government should have. Perhaps the Department should expand on this before anyone commented.

Mr Abader replied that SAWS, as the curators of the information, would be monitoring the information from all the monitoring stations. It would be in charge of processing the information, and would be best placed to issue the warnings. Otherwise it would be necessary to go through the Department, by which time it might be too late.

The Chairperson said that this made sense, but asked for further clarity on the proposed relationship between the Department and SAWS in the issuing of warnings.

The Minister said that in the first instance the Department had two people working directly with SAWS on a daily basis, and they also served on the SAWS board itself. One, Mr Peter Lukey, Chief Director: Air Quality Management and Climate Change, DEA, dealt with issues of air-pollution, and the other with regulatory matters. There was also continuous liaison at the levels of policy and implementation. With regard to warnings, she herself at Ministerial level and the Director-General received those reports on a continuous basis – on a daily basis if need be. Because of the sophistication of the system itself, some of the tools were in the oceans and in Antarctica. Once that information had been interpreted, there was communication on a daily basis. However, the Minister' and Director-General could not be expected to answer technical questions on the weather on a continuous basis because of the commitments of their daily schedules, such as attending meetings.

The Chairperson said that it was obvious that weather warnings had to be given immediately. The ambient pollution warnings impacted heavily on industry and on other departments. Whether one allowed a weather service which had no expertise about businesses to give the warnings or whether the Weather Service should give the information to the Department to give the actual warnings needed to be considered seriously.

Mr Morgan said that it was obvious that the Weather Service provided weather warnings. However, here we were discussing pollution-related warnings. The issue raised was whether the Weather Service should be given such a function. There was general acceptance that the Weather Service should collect data. An important issue was whether this Bill should be a Section 76 Bill and not a Section 75 Bill, as it was currently tagged. Air pollution, under the schedule of the Constitution, was one of the functions of a local municipality. Where was the cooperative side to this particular amendment? This needed to be clarified. There was no reference in the Bill to the role of the local municipality and the cooperative function. If the SAWS gave out a warning, where was the discussion with the local municipality?

The Chairperson had not thought about the consequences of the Bill's tagging. The legal advisors had said that the air-pollution information system was not a concurrent issue. However, if other powers were given in relation to the function, then concurrent issues might be involved, which would mean that the Bill should be tagged as Section 76 and not Section 75. This was something to be borne in mind over and above those arguments.

Mr Abader agreed that the function had originally rested with local municipalities and colleagues from SAWS would support his contention. The problem was that these monitoring stations were very expensive pieces of equipment; most of it imported, and needed regular maintenance, whereas the municipalities had serious financial problems and lacked capacity. This is why it was moved to make it a separate independent system to ensure a dedicated budget and dedicated people for the system.

The Chairperson said that Members, including Mr Morgan, had no problem with moving the air quality function of a system of information to the SAWS. The issue now under discussing was not about the stations and maintaining the equipment, but whether to give the power of issuing pollution warnings to the Minister or the Director-General or to the SAWS which clearly did not have the expertise around the economic consequences of such warnings. It was now a specific function that was being discussed, not the information system.

Mr Abader drew an analogy with the actual weather-related warnings. If there was such a warning, the SAWS advised the municipalities concerned in terms of the emergency response plan. So the relationship between the SAWS and the municipalities was already established.

The Chairperson said that there was no debate about the Weather Service and weather-related warnings. Moreover, a disaster management system was already in operation with regard to weather-related events. However, one was now talking of an industrial and health issue, and to what extent the Government should reserve the function of giving pollution-related warnings. For air-pollution warnings there was no disaster management system in place. So it therefore had to be asked if the Minister or the Director-General should not be in charge of informing the Department of Health and other concerned departments of the danger.

Mr Morgan understood the analogy. He even understood why a national entity wanted this function in order to expedite saving people's lives. However, the issue was whether the Weather Service had the expertise to handle air-pollution related warnings. Weather-related warnings were not a function of local municipalities, but air-pollution related warnings were. There had to be a link between the two spheres of Government. It had to be asked if the cooperative governance framework in terms of the Constitution contemplated a relationship between a local municipality and a Government entity. Perhaps the amendment overreached in this regard?

The Minister understood that the national disaster management system did not deal only with weather-related events. If there was an event involving mercury pollution, for example, it would have to be dealt with through the national disaster management system. However, Mr Morgan had raised a good point. Perhaps we should go back to the National Environmental Management: Air Quality Act 2004 and see how this would actually be provided for. This important matter should not be left out on the basis that it was a concurrent function. The concurrent function was spelt out elsewhere, as we knew. It was not even a function that was delegated; it was a function that was rather assigned to the local municipalities.

The Chairperson did not think that the suggestion was to leave it out completely but whether the Department or the Minister should be performing that function and giving the warnings or the SAWS. It was an interesting debate and he suggested flagging it.

However, agreement had been reached that someone must be able to issue the warnings. The issue for debate was who was best equipped to do so.

The legal advisors would have to rethink the issues around their opinion on the Bill's tagging.

Once the Committee had something concrete, it would engage with the Minister before formal deliberations and voting.

Members agreed.

Clause 4
The CAIA wanted the insertion to read 'ambient air quality management'.

Mr Abader understood that 'air quality' included 'ambient air quality'. The former was a more comprehensive term.

The Chairperson understood that the aim was to achieve the appointment of experts on air quality to the board.

There were no comments from Members.

Clause 5
No comments had been received.

The Chairperson was happy with the Clause's provision for board members' remuneration to be approved by the Minister or by Treasury.

The Chairperson inferred Dr S Huang (ANC)'s assent, and that of other Members.

Clause 6
The Chairperson asked what the removal procedure for board members was. It appeared to be quite an open-ended process. He was worried that the Executive would be bound by the findings of a disciplinary hearing. Did the board sit as a disciplinary committee? Or did it appoint a disciplinary committee and act on the latter's recommendation?

Mr Abader put the Clause in context. As explained previously the Department received a quarterly report from SAWS. In the event of untoward behaviour by a board member the usual provisions for disciplinary proceedings would be followed. The Act referred to fair labour practice.

The Chairperson thought that it was important to set out clearly in the legislation how disciplinary proceedings would take place. He advised the Department to talk to the Minister about this. He was also concerned about the possibility that the board must split in two on a disciplinary issue. He gave the South African Broadcasting Corporation (SABC) board as the prime example of how things could go wrong.

Members concurred.

Clause 7
The Chairperson thought that to require specification of appropriate skills in this Clause, as submitted by CAIA, (Summary of proposed amendments, page 7) was overly burdensome. It was obvious that one would second only competent people.

There was no comment from Members.

Clause 8
There were no submissions and there was no comment from Members.

Clause 9
There were no submissions and there was no comment from Members.

Clause 10: insertion of Section 27A in Act 8 of 2001
The Chairperson said that this Clause, on limitation of liability, was a standard clause. He did not accept CAIA's submission that the Clause was unnecessary (Summary of proposed amendments, page 7).

Members agreed with the Chairperson's view.

Clause 11
The Chairperson thought that this Clause was very unusual.

He asked the Department not to include the names of Members of Parliament (MPs) among submissions, since this might set the precedent for political parties to make submissions along with members of the public, while political parties were already represented in Parliament by their MPs.

Clause 11: insertion of section 28A in Act 8 of 2001
The issue here was the Amendment of Schedules

The answer was simple. The legislature amended them through amendment bills. As the Minister had said this morning, Parliament was the legislative authority and divided whether to amend or not to amend.

The Department had proposed that the Minister on the recommendation of the Weather Service could amend the Schedules and then publish the amendments in the Government Gazette. However, the Schedules were a fundamental part of the Act and had to be amended by Parliament. The Constitutional Court had ruled against Executive amendment of any Act by proclamation.

However, the Executive could make regulations within the scope of the Act. To do so outside the Act's scope was to act ultra vires.

The Chairperson had drafted a proposed further amendment to the Department's proposed amendment, and he circulated it to Members, the Department and law advisors for them to study and comment. He himself still had doubts about it. As the Bill stood, Parliament was left out completely. His suggested further amendment might allow the Executive to amend the Schedules by notice with the consent of Parliament, but he wanted to be sure about its constitutionality and to avoid challenges. Moreover, he acknowledged that his proposed further amendment was cumbersome, but he wanted to put an option on the table. The constitutional problem that might arise might not be in the process, but in the case of Parliament's possible disagreement with the Minister, the Minister might trump Parliament in legislative processes.

Ms Garlipp agreed with the Chairperson's proposed further amendment, except 28A (5) where the portion to the effect that if the Minister disagreed should become subsection (6) to reflect good drafting practice.

The Chairperson knew that was drafting practice, but he had done it that way deliberately, in order to change that practice. He noticed in overseas legislation a tendency to put related matters in one sentence where possible.

Ms Garlipp asked what happened if Parliament disagreed with the report that the Department tabled. Would there be a further process?

The Chairperson replied that this was the problem with the Department's proposed process. If the Department were to follow the normal process of an amendment, there would be none of these problems.

Mr Abader said that the Department was dealing here with schedules and he wished to draw an analogy with regulations.

The Chairperson asked Mr Abader to distinguish clearly between schedules and regulations. He explained regulations as the power delegated by Parliament to the Minister to expand any aspect in the legislation.

Essentially the choice was between removing this Clause and leaving amendments to schedules to the normal Parliamentary process or redrafting the Clause on the lines suggested by the Chairperson, but which he felt would introduce a cumbersome process that would be liable to challenges on the grounds of unconstitutionality.

Members did not have anything to add to the debate.

Clause 12: insertion of Section 30A in Act 8 of 2001
The Chairperson pointed out to members of the media that the Department's intention was to deal with false and misleading information.

He did not want to use the word 'hoax' in the Bill, and suggested a revised 30A (1) (a) whereby no person might disseminate in any manner whatsoever any weather-related information including a severe weather-related warning which consisted of a potential imminent or existing threat of dangerous weather conditions that might lead to a weather-related disaster within an identified area, on a specific date or for an identified time-period which (I) he or she knew, believed or ought to have reasonably known or suspected to be false or misleading; or (ii) incited or might incite public reaction and lead to or might lead to the undue mobilisation of resources, public alarm, evacuations or loss.

He suggested a revised 30(A) (b) to the effect that no person might publish, distribute or supply false or misleading information about the Weather Service. This dealt with fraud.

He suggested a revised 30(A)(c) to the effect that no person might impersonate or falsely represent himself or herself to be an employee of the South African Weather Service or purport to act on behalf of the Weather Service. This dealt with Mr Morgan's concern.

He suggested an additional 30(A)(d) that stated no person might use official corporate branding from the Weather service, or corporate branding closely resembling that of the Weather Service such that it would be difficult for the reasonable person to distinguish between the two, with the intention to deceive a member of the public into believing that the document or message presented or disseminated was an official document or message originating from the Weather Service.

He felt that this was a much more nuanced clause.

Ms Garlipp suggested leaving out 'in any manner whatsoever'.

The Chairperson cautioned against doing so, as this would give leeway to the Courts to restrict the meaning.

Ms Garlipp asked if at least ' any weather-related information including a severe weather-related warning' and then add 'a warning of a potential imminent or existing threat of ….'.

The Chairperson refused: he wanted to move away from 'warning'. Then we would be back to the same problem, as in the Act, that only the Weather Service might issue a warning. He did not understand why the Department wanted to persist with the idea of a warning when the Committee had already pointed out that the use of this term created a problem. Moreover, the way that he had tried to accommodate 'warning' was to say 'including'.

Ms Garlipp agreed, but asked the Chairperson to change the 'or' between (I) and (ii) to an 'and'.

The Chairperson refused; to do so would be too restrictive in meaning. Also he still wanted to consider whether (ii) included the meaning of 'hoax'. It was necessary to be very careful with (ii). The concern was with public reaction. It was also important not to exclude private individuals as possible sources of information that might incite a public reaction. The Chairperson doubted that the words 'that might lead to a weather-related disaster within an identified area, on a specific date or for an identified time-period' in 30A (1) were actually needed. Already the crime was wide enough to include any weather-related information.

Mr Morgan was concerned that 30A (1) (b) as it stood might enable the Weather Service, through its legal department to bully people in the commercial sector who were competing with the Service.

The Chairperson's concern was above all with false or misleading information, which essentially was fraud. The Weather Service might be a complainant and lay a charge, but first the South African Police Service (SAPS) must investigate and lay a charge, and then the National Prosecuting Authority (NPA) must decide to prosecute. This was a criminal, not a civil case. For this reason he was not too worried about the possibility of bullying. In some pieces of legislation there was provision that the National Director of Public Prosecutions must take the decision to prosecute. However, this created extra work for senior prosecutors, and should not be considered lightly. The fact that the police had to investigate was a protection.

Mr Morgan felt that this was too broad and might be covered by other legislation. He questioned the need for 30A (1) (b) at all.

He felt that the common law might cover Mr Morgan's concern, but it would depend on how the prosecutors interpreted fraud.

Mr Morgan thought that the SAWS website was weak. He was worried that anyone who criticised SAWS in the public domain might be liable to prosecution.

The Chairperson acknowledged that Mr Morgan had a valid point.

Clause 13
The Chairperson noted no comments from Members.

Clause 14
The Chairperson noted no comments from Members.

Clause 15
The Chairperson did not like Clause 15. There had been big problems in the past with Bills where the short title and commencement was left open-ended, since this left the decision to the Executive as to when the proposed Act should come into operation. He preferred the Clause to say that the proposed Act should come into operation no later than three (or six months) after the President's assent.

He asked members of the media to bear in mind that that Committee had not decided on anything as yet.

He asked the Department to put the amendments proposed today in standard form. The committee would at a later stage deliberate on and approve them.

He reminded Members and the Department of the three matters flagged:
Who was to decide on giving a pollution warning (the Weather Service or Government), and what implication did the choice have on the tagging of the Bill?
Whether there should be a specific removal procedure for SAWS board members;
Clause 11 (see above); and
Redrafting of Clause 12, in particular, putting in a provision that the provincial director of prosecutions (DP) should decide whether or not to prosecute in an offence under 12(a) and 12(b).

Ms Garlipp, as Chief Director: Legal Services, DEA, would be in charge of this drafting team. He asked the Department to be active and respond quickly. The only real work that it had to do was on the items flagged, especially the first three. Mr Abader and Ms Garlipp must also inform the Director-General and the Minister.

Committee programme
The Chairperson outlined the Committee's provisional programme for the immediate future. There would be no meeting on 15 February, nor on 21 February; the next meeting would be on 22 February, when the Committee would meet with both Departments for a briefing on job creation and discussion on the State of the Nation Address (SONA) as was the Committee's practice every year. The 28 or 29 February was allocated to an assessment of the Conference of the Parties (COP) 17, if Cabinet had processed the matter. From March onwards, the Committee would begin assessing the budgets of the Departments of Water Affairs and Environmental Affairs, subject to confirmation of budget debate dates in the National Assembly.

Mr Morgan and Ms J Manganye (ANC) were examining the subject of the Committee's forthcoming study tour, but Members' views were needed on the oversight trip.

The Committee Secretary had ready to send to Members a package of the Committee's draft minutes for the past year; each party must study them and provide comments. Accuracy of the minutes was of paramount importance, as was a better system of achieving up-to-date sets of minutes. An oversight report on the Committee's study tour in June 2011 had been drafted. Also the Committee Secretary was busy on a draft of the Committee's Annual Report 2011. The Chairperson said that he would also have to find time to review the Committee Report on the White Paper.

The meeting was adjourned.



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