National Environment Management (NEM) Laws Amendment Bill [B26-2013], NEM: Protected Areas Amendment Bill [B28-2013] & NEM: Air Quality Amendment Bill [B27-2013]&: public hearings day 2; South African Weather Service Am. Bill [B23-2013]: deliberations

Water and Sanitation

18 September 2013
Chairperson: Mr J de Lange (ANC)
Share this page:

Meeting Summary

Afriforum made a brief presentation on the National Environmental Management Act.  Much of what was in the presentation had already been covered.  They were concerned that the Department of Mineral Resources would still have to create capacity within their environmental directorate.  At present, mining permits were being granted with little concern for the environment.

The Centre for Environmental Rights made a presentation on the Air Quality Act.  They suggested that Section 22A should be deleted, as it was a duplication of Section 24G of the National Environmental Management Act.  The Centre felt that the atmospheric emission licensing process was too cumbersome.  The process of rectification had to be addressed.  There was a discussion on penalties.  The Department of Environmental Affairs responded that provision had to be made for activities that had commenced before the inception of the Act.  The Committee informed the presenter that the procedures for rectification were captured in Regulations.

The Chamber of Mines appreciated the move towards streamlining the process of mining licence applications.  It supported the intention to return environmental responsibilities to the Minister for Environmental Affairs, as well as the formal creation of environmental management inspectors.    The Chamber had some questions over waste management.  A concern was that Members of the Executive Committee of provinces were named as competent authorities.  Mining was a national competency.  Some guidance was needed on the water tribunal. 

The Committee replied that the clause on inspectors should be redrafted, as there was a tendency towards inaction in the Department of Mineral Resources that had to be redressed.  Parts of the Bill were too wide, such as the interpretation of adjacent land and associated activities.  There should be a list of mining-related activities.  Waste management would remain under environmental authority.  Parliament would set the date for the implementation of the Act.  The Chamber had a vital role to play in ensuring that the credibility of Parliament was not undermined by poor implementation of the Act.

The Committee then considered comments on, and amendments to, the South African Weather Services Amendment Bill.  Some proposed definitions from the public hearings had been included in Clause 1.  References to emissions and greenhouse gas had been removed, as these would fall under the Air Quality Act.  A definition of a severe weather warning had been included from the public comments.  The Committee agreed on the definition in principle, but ruled that the concepts of damage and public alarm should be expanded on.

Clause 3 needed to be amended to create space for the Minister to advise colleagues of severe weather warnings, not to provide a list of tasks.  Members agreed on the need to amend Clause 4.  Policy and policy frameworks would now be provided by the Minister.  These had to be tabled in Parliament and published in some form.  A new clause was to be inserted, providing for the operational independence of the Board.

A new Section 13 would describe the procedures for the appointment and removal from office of a Chief Executive Officer.  After some discussion, Members rejected the proposal that the the term of office be limited to two terms.  The appointment would be for a period not exceeding five years, but there would be no barrier to an incumbent Chief Executive Officer applying for a subsequent term.  The Minister would retain a right of veto over appointments.  A remuneration clause was to be included.  The proposal that an Acting Chief Executive Officer be appointed from outside the South African Weather Service was rejected.  Provision should instead be made for the provision of a second person to serve concurrently as Chief Executive Officer, for grooming purposes.

The Committee accepted the clause protecting intellectual property rights of employees gathering data.  A proposal from Afriforum had not been accepted, as the current wording of the Bill protected employees who passed on incorrect information, provided that they had been acting in good faith.  The ‘reasonable person’ test would be applied in such a case.  Members welcomed the incorporation of the provision that prosecutions for offences under the Act would be handled only at the highest level, given the gravity of such offences.

The Department was instructed to have the amended Bills ready for deliberation when Parliament resumed in October.  Members also discussed the forthcoming programme.  They agreed on the importance of holding the proposed rhino workshop, and efforts would be made to source suitable accommodation in the Kruger Park area later in the year.

Meeting report

The Chairperson welcomed the delegation from Afriforum.  It was unfortunate that they had not attended the earlier meeting as much of what was in their presentation had already been covered.  While he agreed with their sentiments, what they proposed had not worked for ten years.

Presentation by Afriforum on Mining
Mr Julius Kleynhans, Head of Environmental Affairs, Afriforum, said that there were various sensitive environments, such as the Karoo.  It seemed that the Department of Mineral Resources (DMR) was issuing licences for prospecting and mining without concern for the environment.  DMR would have to create the capacity within their environmental directorate to address these issues.  Permits had been given in areas where there should be no mining.

The Chairperson said that the National Environmental Management Act (NEMA) had been amended to give the Minister the power to declare 'no-go' areas for mining.  The Minister of Environmental Affairs was the final appeal authority.  The DMR must now apply environmental laws.  No organisation had picked up the lack of standards and norms for undersea mining.  The same debates had been made in 2008, but the resulting decisions had not been implemented until now.  Both the DMR and the Department of Environmental Affairs (DEA), together with Parliament, would have to approve any amendments.  If DMR was completely excluded from the process, the Minister of Environmental Affairs would effectively make decisions on mining, and this could also not be right.  There were 50 or 60 mines operating without water licences, and this was completely unacceptable.  There was now more certainty in the appeal process.

Mr Kleynhans said that this was a considerable strengthening in environmental legislation. 

The Chairperson thanked Afriforum for their contribution.  There were no further comments from Members.

Presentation by CER on Air Quality
Ms Robyn Hugo, Attorney, Centre for Environmental Rights (CER), said that Section 22A of the Air Quality Act dealt with the consequences of unlawfully conducting an activity resulting in emissions.  This was a duplication of Section 24G in NEMA.  This provided for penalties for conducting a listed activity such as coal or oil storage, without authority.  A full environmental impact assessment (EIA) was needed before constructing any infrastructure required for any activity for which a licence was needed.

Ms Hugo said that there was already a need for an atmospheric emissions licence (AEL).  Without this, the activity was unauthorised and punishable in terms of Section 24G of NEMA.  In terms of Section 22A, two applications were needed.  The licensing authority was normally a municipality, and there had to be an application to the Minister as well.  This system was too complicated.  Deleting Section 22A would simplify the process and allay concerns over the capacity of municipalities.

Mr Ishaam Abader, Deputy Director-General (DDG), DEA, said that a different regime was needed to deal with activities that had commenced before the inception of the Act.  The licence was issued only at a later date as part of a sequential process. 

The Chairperson said that if only a specific category was to be addressed, this could be addressed by a dedicated clause. 

Ms Hugo thanked the Chairperson.  Environmental rights had improved greatly.  She presented a proposal to deal with ambient air quality, if Section 22A was retained.  There should be more reference to air quality and human health impacts.  The provision should not be retrospective.  The word used was 'may', indicating that prosecution was discretionary.

The Chairperson said that Section 24G had been rewritten to provide more flexible powers to the Minister.  Section 28G was no longer linked to an offence, with a myriad of outcomes.

Ms Hugo said that in some cases, rectification would never be an option.

The Chairperson said that in certain cases, structures would have to be broken down and rectification action put in place. 

Ms Hugo said that the administrative fine was too low.  It should be imposed by an independent tribunal.

The Chairperson replied that the procedure was prescribed in the Regulations.

Ms Hugo listed some of the factors that should be taken into account in imposing a fine, such as intent and the benefit gained from this illegal activity.  It should be clear that the payment of a fine was one option to rectify a situation.  The National Prosecuting Authority (NPA) should still be able to institute criminal action.  It was more a question of whether the offender was indemnified.

The Chairperson said that government would look at the question of indemnity.  A fine would not lessen the responsibility of the police to investigate a criminal offence.

Ms Hugo said that the discretion to defer a licensing decision should result in a suspension of activity.  This would encourage speedy prosecution.

The Chairperson was not sure about this.  There was no guarantee that the prosecuting authority would proceed speedily, if at all.  The processes should run in parallel.  Once someone was found guilty, the status of that person would change.  More care might be taken in future.  The criminal system was too arbitrary at present.  Only 13% of criminal charges laid actually led to a court case.  Environmental offences would be at the back of the queue.  The accused might be a company, with access to financial and other resources. 

Ms Hugo recommended that Section 22A be deleted. 

the Chairperson stressed that only Members would be allowed to interact with presenters.  DEA must redraft the clause to accommodate these suggestions. 

Presentation by Chamber of Mines
Ms Stephinah Mudau, Head: Environment, Chamber of Mines, apologised for the absence of senior management due to the lack of available flights.  The industry had battled with the issue of alignment of the licensing system for some time, and commended the efforts by government to streamline the industry.  There was a process under way to align the time frames of mining licences, water and waste applications.

Ms Mudau noted that the Minister of Environmental Affairs would be the appeal authority.  The Chamber supported the proposed amendment, but did have some concerns.  There had been a fruitful engagement with DMR before the hearings, and the parties had seen eye to eye on most issues.

Ms Mudau welcomed the insertion of a definition of an 'environmental mineral resources inspector' (EMI).  This office had existed informally in the past.  Particular mines were inspected and the results had disturbed DMR.  This provision would legitimise the function.  However, there should be a way to ring-fence the role of the EMIs to make them the only responsible authorities to inspect mining operations.  This would avoid conflicting findings and the resultant confusing instructions to mines.

The Chairperson said that the function would remain with DMR.  This might not be legally correct.  The public had commented strongly that DMR was lax on this issue.  DMR had been told to look at a mechanism for intervention where there were failures.  In the inspectorate and elsewhere, matters should not be allowed to stagnate.  This clause would have to be redrafted.

Ms Mudau said that there would be unintended consequences from the deletion of the definitions of 'related activities' and 'Minister'.  This would leave room for the Minister to be in charge only of environmental activities, which would defeat the purpose of the Act.

The Chairperson said that he felt the Act was too wide.  There was an open-ended association of mining land and adjacent land.  There had been an input on constitutionality.  The grounding was good, but there was a problem with 'associated activities'.  It was no longer just the mining area in question, but now also included the surrounding land and even non-adjacent areas.  This authority could not be taken away from the jurisdiction of provinces.  The mining-related activities should be listed to enable a more specific focus.  This was one area where more thought was needed.

Ms Mudau welcomed this suggestion. 

The Chairperson asked what would justify giving the Minister these powers on adjacent land.  Activities such as slimes dams and crushers were normally within the mining area itself.  Fresh water dams might be in the way of mining activity, and there could be a ruling on these or sensitive wetlands.

Ms Mudau queried the management of residue deposits and stockpiles.  Historically, these had been managed under the Mineral and Petroleum Resources Development Act (MPRDA).  These were now being shifted to the ambit of the Waste Act.  The mine's environmental management plan (EMP) dealt with such deposits. 

The Chairperson was adamant that this would remain under environmental laws, but the law would be applied by the Minister of Mineral Resources.  Licences would have to be obtained before activities could commence.  Residue was waste, and had to be dealt with correctly.  Mines could not retain all the 'nice things' under the MPRDA.  NEMA was a broad piece of legislation with broad principles, but more detail was in the Waste Act, with specific guidelines on how to deal with this issue.  These provisions were being removed from the MPRDA. 

Ms Mudau said that clause 3B referred to the Member of the Executive Committee (MEC) as the competent authority for prospecting, mining, exploration and production licences.  The Chamber disagreed with this.  Mining was a national competency.  This authority should rest with the national Minister.

Mr Sibusiso Shabalala, DDG, DEA, read the clause in question.  This would amend Section 24C.

The Chairperson said that there were three competent authorities, but some competencies applied only to some of the three.

Ms Mudau welcomed the provision for internal appeals.  However, the Chamber’s legal people had raised concerns over one Minister appealing to another.

The Chairperson said that this was 'complete and utter nonsense'.  No lawyer could tell him that an appeal process could be unconstitutional, while not giving the Minister in charge of mining competence over environmental issues.

Ms Mudau proposed that there be an amendment to the commencement date.

The Chairperson said that this would not be left up to proclamations.  Parliament would insert commencement dates into the Bills after the experience of delays.

Ms Mudau said that there had been problems with the water tribunal appeal process.  The Chamber looked to government for guidelines in terms of best practice. 

The Chairperson said that the Chamber had a vital role to play in the implementation of the Bill.  The credibility of Parliament was on the line.  If the process did not work, the arguments for re-vesting all environmental affairs with DEA would resurface.  It would not be ideal if the Minister for Environmental Affairs effectively took decisions on where mining should happen.  Most presenters had expressed concern over the abilities of the DMR.  The Chamber must assist in giving the Bill credibility.  If political parties reached consensus there would be a way forward.  In the major parties, there were arguments on both sides of the issues.  This was why there was no clarity.  The Chamber needed to see how it could make the legislation work.  It was not just up to non-government organisations (NGOs).

The Chairperson said that people on the ground were not happy.  Resources were dwindling as a result of mining.  This compromise had to be made to work efficiently.  There could be no future compromise if this solution did not work.  There was a big credibility gap between the public and the mines.

Ms C Zikalala (IFP) said there had been a mention of the low percentage of cases reaching court.  She asked why this was the case.

The Chairperson replied that there were many reasons.  The first was a lack of proper investigation.  There was no DNA database at present.  The Bill had gone through Parliament in the past few weeks, despite being introduced in 2009.  The figure of 13% did not even include prosecutions.  There was even a high proportion of serious cases that had never got to court.

Ms Zikalala had heard mention of mining in wetlands, and the effect on dams.

The Chairperson replied that from now on, DMR had its own environmental laws.  All environmental laws would fall under DEA.  Certain areas would be excluded from mining areas.  There were many issues concerning the location of mines.  The Minister for Mineral Resources should still decide this, subject to environmental laws and possible appeals to the Minister of Environmental Affairs.  The problem was really with the associated activities in adjacent and non-adjacent areas.  Non-adjacent areas were not described.  Environment was a concurrent power, shared by provinces and national government.  The broader the power, the more likely a constitutional challenge was likely.  Associated activities were a blank cheque at present.  He asked if there were real issues to be addressed by 'associated activities'. 

Mr Alf Wills, DDG, DEA, encouraged the Chamber to engage with DEA on the Waste Act.  The issues they had raised touched on the definition of waste.  It was about the control of harmful substances being released into the environment.  Stockpiles and residue issues were not about remaining or recycling, but about the possibility of harmful substances being released.

The Chairperson said that the Waste Amendment Bill was being processed and would soon be before Parliament.  This concluded the public hearings on the three Bills dealt with at this meeting, and the meeting held the previous day.  Further processing of the Bills would occur when Parliament returned from recess in October 2013.

Deliberations on SAWS Amendment Bill
Clause 1 - Definitions
The Chairperson led the Committee through consideration of comments on and amendments to the South African Weather Services (SAWS) Amendment Bill.  He read comments submitted by Kobus Botha Weather on the definition of 'advisory services'.  This proposal had been rejected.

The Chairperson said that Dr Laurraine Lotter, of the Chemical and Allied Industries Association (CAIA), had proposed that the phrase 'for a specific area' be included in the definition of 'ambient air quality forecast'.  This proposal was accepted.  She had further proposed the insertion of a definition for 'ambient air quality information'.  Her proposed definition had been accepted with some adjustments.  He urged DEA to engage with Dr Lotter, to ensure that the essence of her proposal was still captured.

Mr Shabalala said that the current definition of 'emission' and 'greenhouse gas' would be removed, as these would now be captured in more detail in the Air Quality Amendment Bill.  A further proposal from Dr Lotter on the definition of the National Ambient Air Quality Monitoring Network (NAAQMN) had been accepted.  However, the reference to automatic air quality monitoring stations had been removed from the proposed definition

Mr Shabalala said that Agri SA had proposed that a definition of a 'severe weather warning' be included, as this was related to the offences under the Act.  DEA agreed with this proposal, but preferred to split the definition into separate definitions of 'severe weather warning', 'severe weather' , 'advisory', 'watch' and 'warning', all terms used in the Agri SA definition.

The Chairperson agreed with the definitions, but 'damage' should be more specific.  The concept of 'public alarm' should also be expanded on.  It was not just the loss of human life, but the threat of loss of human life was also an issue.  The Committee accepted the definitions of 'severe weather warning' and 'severe weather' in principle, but required further work from the DEA on these definitions. 

Mr Shabalala said that the definitions of 'advisory', 'watch' and 'warning' had come from SAWS. 

The Chairperson suggested that the generic term 'alarm' be used.  The Committee was satisfied with these definitions.

Clause 2
The Chairperson noted an amendment in Clause 2(b), which was consequential to the deletion of the definitions of 'emission' and 'greenhouse gas'.

Clause 3 – Amendment to Section 4
Mr Shabalala said that Clause 3 would amend Section 4 of the Act.  He proposed that subsection (aD) be removed, which provided for the processing of data regarding emissions and greenhouse gas.  This proposal was accepted.  A new subsection (6) was proposed, in which certain conditions were imposed on SAWS issuing a weather warning.  The Minister must be informed of the intention to issue the warning.  All relevant information must be provided, and the Minister must consult with all relevant Ministers. 

The Chairperson suggested a rephrasing of the proposed (6)( c ).  The Minister could not be given tasks, but should be given the space to consult as necessary.  The Committee agreed with this amendment in principle.  The Chairperson felt that the structure of the paragraph could be changed, as the current wording was a bit clumsy.

Clause 4 – new sections 4A and 4B
The Chairperson said that Clause 4 would insert new Sections 4A and 4B into the Act.  This dealt with the determination and implementation of policy.  Section 4A mandated the Minister to determine the policy within which the SAWS would perform its functions.  This would be done after consultation with the Board, and be published in the Gazette.  Policy could also be included in a White Paper or in a Memorandum of Understanding (MoU).  He wondered if the Gazette should be specified, or if this should be more open-ended.

Mr Shabalala said that the policy had to be published.

The Chairperson agreed.  He suggested that the stipulation in the clause should simply say that the policy must be published, without specifying where this should be done.  What was missing was a provision that the policy be tabled in Parliament.  He mused on what could be done with existing policies.  There was nothing to cater for these.  He suggested an additional clause that existing policy should be tabled in Parliament within six months of the implementation of the Act.  Members signalled their agreement.  He asked if there was a difference between policy and policy framework.

Mr Shabalala understood a policy being specific issues.  The framework would be a more general guideline.

Mr Abader provided an example of a broader over-arching issue, while the policy would deal with more specific issues.

The Chairperson suggested that 'policy framework' be included in (1).  The new Section 4B would deal with the Minister's supervisory powers.  He asked if 'norms and standards' should be directly linked with the performance of the SAWS functions.  Norms and standards were also applicable in other areas, such as finances.  Norms and standards could also apply to the whole field of climatology.  He suggested a phrase of 'norms and standards for achieving the objectives of this Act'.  Members agreed with these suggestions.  It had to be clear that policy emanated from government, but the SAWS enjoyed operational independence.  He was not sure where this provision should be located.

Mr Shabalala said that SAWS must be established as a juristic person in terms of Section 2 of the Act.  It might be appropriate to incorporate this suggestion in Section 2.

The Chairperson proposed that a new section be inserted after the current Section 2, which would include the contents of Clause 4.  He was not sure how the clause on operational independence should be phrased.  The Weather Board must perform the functions assigned to it with operational independence.  This needed to be spelt out clearly.

Mr Abader said that the functions of the Board were listed in Section 6.  At present, the Board was mandated to set policies within the framework given by the Minister.

The Chairperson said that this would have to be amended.  He would give this matter more thought, to arrive at a suitable clause.  Members agreed to this.  New policies should be tabled in Parliament.

Clause 5 – Amendment of Section 6
Mr Shabalala said that CAIA wanted an amendment to the responsibility regarding air quality management, to include the word 'ambient'.  This proposal was not accepted.

Clause 6 – substitution of Section 13
The Chairperson said that Section 13 would be substituted with provisions regarding the Chief Executive Officer (CEO).  He queried the limitation on the period of office of the CEO.  The current wording made provision for a five year term, which could be renewed only once.

Ms B Ferguson (COPE) felt that this provision might be out of fear that an incompetent person might become entrenched in office.  It was up to the Board to assess the performance of the CEO.

Mr Abader said that the Board served for only five years, and might come to a conclusion on the competence of the CEO only at the end of their term.

The Chairperson said that the Minister had the right of veto.  There should not be a tendency to bring in new blood for the sake of bringing in new blood.  He asked if it was necessary to create an obstacle for a person who was suitable for this very specialised position.

Mr Abader asked about the converse situation, where a capable person was being denied the chance of promotion.

Ms S Wenger (DA) was hearing both sides of the argument.  While the incumbent might be doing a good job, there should be opportunities for younger and more innovative minds to exercise their knowledge.  Such persons would be denied the opportunity.

The Chairperson said that the Board and the Minister had the opportunity to re-assess the situation after a five year period.  Prohibiting a re-appointment in law would make it impossible to exceed the two term limit.

Mr Abader said that the post would have to be advertised.  The current CEO would have to re-apply for the post.

The Chairperson agreed.  The five year term would come to an end, and the process of applications would then follow.

Ms Linda Garlipp, Chief Director: Law Reform and Appeals, DEA, said that the members of the Board should also have five-year appointments.

The Chairperson said that it was not necessary for the law to make provision for a second term for both the CEO and Board members.  However, this would not prevent the opportunity to re-apply.

Mr S Huang (ANC) was concerned about the appointment procedure.  Sometimes the application process could not deliver a suitable candidate.  He suggested that a renewal period of one to two years be provided for in such a case.

The Chairperson said that this would be covered by the wording of 'not exceeding five years'.  This would allow for a shorter appointment in such a case.

Ms Ferguson proposed that the Minister be empowered to make a temporary appointment.

The Chairperson said that this might create room for the entrenchment of an unsuitable CEO.  By leaving the wording as 'not exceeding five years,' this would cover all possibilities.

Ms Zikalala wanted an assurance that the DEA was taking heed of what the Members were saying.

The Chairperson asked why certain Board members seemed to be excluded.  There was a reference to members of the Board contemplated in (b) and (c).

Mr Shabalala explained that (a) made provision for the ex officio membership of the CEO on the Board.

The Chairperson suggested that a rider be added, that the procedures described in the clause should be followed on every occasion.

Ms Wenger was concerned that if the CEO was part of the Board, a relationship might be developed with the Board members which might influence the future appointment.

The Chairperson said that the veto power of the Minister should nullify such a possibility.  It was normal practice for a CEO to serve on the Board.  He wondered if there should be provision for an interview process for all candidates they regarded as suitable.  The details could be stipulated in the Regulations.

Mr Shabalala confirmed that there was a Regulations section in the Act.

The Chairperson said that the regulation clause might have to be expanded to cover aspects of the removal of the CEO from office.  He asked how (5) would work in practice.  Often the Minister of Finance was involved in setting salaries.

Mr Abader said that this would be included in the Financial Implications.  There was no specific clause for remuneration.

The Chairperson proposed that there be provision for such a clause.  There were government agencies, where the Board had approved salaries in excess of those of the President.  The Board should also not have a free rein in allocating bonuses.

Mr Abader said that there was a provision for concurrence with the Minister of Finance.

The Chairperson said that a similar clause should be included for the remuneration of the CEO, as this was different to that of the Board members.  He quipped that Mr Abader was setting himself up to become CEO.

Mr Abader was concerned that too much was now being legislated, especially with the requirement that amendments to regulations had to come to Parliament.

The Chairperson said that the interview process must be fair and objective.  This was why the details of the process should at least be contained in Regulations.  Perhaps this part of the Regulations could be written by the Board, in concurrence with the Minister.  He disagreed with Mr Abader's assertion that this would be giving executive powers to the Board.

Ms Garlipp said that the provision for the appointment of an acting CEO from outside SAWS was needed, as there might not be a suitable person within the organisation.

The Chairperson proposed that 9 (a) (ii) should be removed.  Members agreed that an acting CEO should be appointed from within SAWS.  A provision could be made for the appointment of two concurrent CEOs for the purpose of grooming a successor.  It was an accepted practice that a salary top-up might be awarded to an acting CEO.  Sub-clause (b) (ii) could also be removed as a consequence.

Mr Luke Hilton, State Law Adviser (SLA), raised a concern over re-appointment.

The Chairperson suggested that a clause be added to provide that nothing would prevent another term being granted.  The term re-appointment should be avoided.  A choice of candidates should be presented to the Minister. 

The Chairperson read through the proposed Section 13A, dealing with the removal of the CEO from office.  He suggested that (1) (b) and (c) be swapped.  Subsection (2) would make provision for the removal from office.  Subsection (2) (e) did not specify a certain number of Board meetings not attended, and could be invoked for missing a single meeting.  However, there could be a case where the CEO failed to attend a specific meeting, for example, to probe his or her alleged financial misconduct.  He asked DEA to have another look at this provision.  Sub-clause (5) was an excellent summary of all the circumstances, but could perhaps be split into sub-clauses.  In 3(a), he wondered if there should not be a separate (4), specifying that finding could be made only after disciplinary procedures had been concluded.  The consequences of (b) could also only follow a disciplinary hearing.  There should be a reference to all procedures.  He asked if appeal procedures were included.

Mr Abader said that they were not, but it was standard practice that a disgruntled employee could approach the Commission for Conciliation, Mediation and Arbitration (CCMA) for redress and, failing that, the Labour Court.

The Chairperson recalled an appeals procedure to the Minister.  He was not sure if there had to be an appeals procedure.  The protection mechanism was that the Board and the Minister had to agree on the course of action.  He asked if the 'applicable disciplinary code' would be provided in Regulations.  There should be a reference to procedures as prescribed in the Regulations.  The disciplinary clause should include disciplinary procedures for the removal of the CEO.  These Regulations should be tabled in Parliament. 

The Chairperson said that the use of 'may not' in (9) could be misinterpreted by the public.  He understood this clause to mean that it was prohibited from delaying the disciplinary procedures.  He could not understand why the Department had resisted this clause, as it was a 'thing of beauty'.  All the principles of removal would now be in the Act, but the detail in the Regulations.

Clause 7 – Amendment of Section 17
Mr Shabalala said that CAIA had raised the issue of intellectual property rights.  DEA agreed with this, but had put forward its own wording for the clause.

The Chairperson noted the agreement of the Committee.

Clause 9
Mr Shabalala said that Clause 9 dealt with limitation of liability.  CAIA had proposed that Section 27 should be deleted.  DEA did not accept this proposal. 

The Chairperson said that the proposal of Afriforum had been rejected.  Government officials could be forgiven their mistakes, provided they had acted in good faith.

Clause 10
The Chairperson said that Clause 10 would insert a new Section 30A, dealing with offences and penalties.  The proposal from CAIA that 'undue' be inserted into (1) (a) (ii) had not been accepted.  The crimes were now completely different, so the comments from Hamnet Emergency Communications were not accepted.  The “reasonable person” test would be applied.  A number of comments on this section had not been accepted.  SAWS employees were not exempted if they deliberately provided false information.

The Chairperson was happy to see that a clause requested by the Committee had been included.  Only the most experienced prosecutor should handle such a case in order to allay the fears of the public.  This power could not be delegated.

Ms Ferguson asked if the 'or' in (1)(a)(i) was correct.

The Chairperson said that a hoax was a criminal offence only if it went to the extent described in (ii).  There might be some truth in a hoax warning.

Ms Ferguson said that if a SAWS person was misled, that person should have investigated the supposed threat.  Both the informant and the SAWS employee could be prosecuted if false information was distributed.

Mr Hilton also wanted clarity on 'or'.

The Chairperson said that (ii) would cover only the most extreme cases.

Ms Garlipp said that the flow of wording might need to be cleaned up.

The Chairperson suggested that 'it' be removed from (ii).  This was where the “reasonable person” test would be applied.  He agreed that 'undue' should be removed as it was more applicable to the mobilisation of resources.

Clause 11
The Chairperson said that Clause 11 would amend Schedule 1.

Mr Shabalala said that Eskom had proposed that the role of a Flash Flood Guidance System should be added.  DEA had noted this comment, but had not included an amendment to this effect.

Clause 13
The Chairperson said that the Constitution allowed for a Bill to be published in the Gazette, or by proclamation.

Mr Abader said that another consequential amendment would be needed.  Clarity was needed on the appointment date of the CEO.

The Chairperson said that DEA could handle the consequential amendments without further permission from the Committee.  He wanted to give the Bill to parties so that it could go to their respective caucuses.  He was planning to be in Pretoria the following week, and could meet with DEA on the amendments then, if they were ready.  The state law advisor (SLA) must look for any technical errors as well. 

Programme for next term
The Chairperson outlined the programme for when Parliament returned in October 2013.  The first two days, 8 and 9 October, would be devoted to legislation.  After that, there would be hearings towards compiling the Budget Review and Recommendations Report (BRRR).  He was still trying to find a time for the rhino workshop due to a lack of accommodation in the Kruger Park over the proposed dates.  An alternative was to host the workshop at Parliament.

Ms Ferguson was saddened by all the issues relating to rhinos.  The situation seemed to be getting worse.  The workshop was absolutely necessary.

Ms Wenger was concerned about all the external groups coming to the country.  Members were not being given the opportunity to interact with these groups and express their concerns. 

Ms Zikalala said that the atmosphere of the Kruger National Park would be conducive for the rhino workshop.  She did not fancy becoming lion food in the chalets, which seemed to be the only accommodation available.

The Chairperson instructed the Secretary to investigate the accommodation options.  While Parliament might extend its final term by a week, and  election work was important, the rhino issue really needed to be addressed.

Ms Zikalala said that the Committee was failing to act when the opportunities were present.  Members had to fight for what they believed in.

The Chairperson said that if Members so wished, he might have to resort to more than words to persuade the powers that be to accommodate the needs of the Committee.  He again emphasised to DEA that the amendments had to be prepared in order to get the Bills through Parliament.  He understood that it was not always easy, but his experience of the previous day's proceedings had been disappointing.  The SAWS Amendment Bill, however, was looking promising at this stage.

The meeting was adjourned.

Share this page: