Disaster Management Bill: Input by Telkom & Financial and Fiscal Commission

Meeting report

PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE
13 August 2002
DISASTER MANAGEMENT BILL: INPUT BY TELKOM & FINANCIAL AND FISCAL COMMISSION

Chairperson: Mr Y Carrim

Documents handed out:
Financial and Fiscal Commission: Assessment of the Disaster Management Bill
FFC presentation
Telkom Submission (see Appendix)
Disaster Management Bill [B21-2002]

SUMMARY
The meeting dealt with the Financial and Fiscal Commission's assessment of the funding implications of the Bill for all three spheres of government. The speaker indicated that there are different funding approaches. She went on to consider the current funding arrangements. A case was made for centralised funding for prevention/mitigation, emergency response and post-disaster recovery. The speaker concluded by evaluating the funding provisions in the Bill and their implications for disaster management.

The most important of Telkom's concerns was that the Bill makes inadequate provision for consultation of operators on their role in disaster management and their supply of communication facilities. Telkom also expressed concern that private telecommunication service providers seem to receive special treatment in that some obligations applying to Telkom are not extended to the other service providers such as Vodacom, MTN and Cell C. The Committee said that some of the concerns had already been addressed or were minor but it would look into the issue of consultation.

MINUTES
Financial and Fiscal Commission: Assessment of the Disaster Management Bill
The Minister of Provincial and Local Government had requested that the FFC provide an assessment of the financial implications of the Disaster Management Bill. The presentation by the FFC was made as a response to that request.

Dr Hildegarde Fast of the FFC indicated that there are currently some funding provisions in the Bill, but it is unclear which funding mechanisms should be catered for in the National Disaster Management Framework and which in the Bill itself. In considering the funding of disaster management the FFC used four components of disaster management. These are (a) prevention or mitigation; (b) emergency preparedness; (c) emergency response and (d) post-disaster recovery and rehabilitation. Currently there are no funding arrangements for some categories whilst in others the current funding mechanisms provide no clear guidelines. Some of the funding mechanisms are not efficiently operated - an example of which are the three funds for relief to individuals. Attention was drawn to Clause 57 of the Bill that allows provinces and municipalities to request that the national government financially contribute to post-disaster recovery and rehabilitation. Their request will be assessed against whether or not available resources at local or provincial level have been exhausted. The FFC raised the question of how one measures the exhaustion of resources? It also questioned why reference is made of only one component of disaster management to the exclusion of others. The FFC made a case for a centralised fund for disaster management. The reasons advanced for this include the fact that sub-national jurisdictions may not have the resources to respond to a disastrous event.

Some of the FFC's recommendations with regard to funding of disaster management were:
(a) the centralising of funding for, amongst others, emergency response, post-disaster relief and recovery.
(b) the Contingency Reserve should be set aside for immediate response to emergencies.

Telkom Submission
Ms R Singh said that Telkom's main concern was the issue of consultation around the processes of disaster management. It was felt that since the Bill is silent on the issue of consultation a provision should be inserted to make it obligatory to consult with the relevant role players. This is necessary to ensure that the role players will be able to prepare themselves in time to take part in disaster relief processes. Telkom commented that disaster management is the primary responsibility of the government and hence it is unfair to burden parastatals with the same obligations. It also pointed out that if a second national operator were to be licensed before Telkom is listed, they would be regulated differently with regard to disaster management. A case was made that all obligations applying to Telkom should apply to other telecommunication service providers.

The Committee believed that Telkom had not raised any serious issues and the Chairperson pointed out that most of Telkom's concerns had already been addressed. It was felt that Telkom should not be treated differently from any other parastatal. Given the fact that the company is soon to be fully privatised, Telkom had no case since whatever applies to parastatals, would not apply to it. Ms G Borman (DP) indicated that the issue of communication or consultation was important. Mr P Smith (IFP) concurred that Telkom had raised minor issues and that the Committee would look into the issue of consultation.

Mr Louis Buys and Dr Petra Bouwer (Department) established that there was consensus amongst committee members for Clauses 1 to 27 - up until the beginning of Chapter 4 (except for those dealing with funding: Clause 25(1)(a)6, 15(1)(e), 7(2)(k). The Committee hopes to finalise the Bill next week. The 5 September debate on the Bill in the National Assembly has been postponed until after the 10 September because of the WSSD.

Appendix
TELKOM'S SUBMISSIONS
DISASTER MANAGEMENT BILL, 2002

Introduction

1. Telkom SA Limited ("Telkom") wishes to be given the opportunity to comment on the Disaster Management Bill that was published in Government Gazette 22937 of 14 December 2001.

2. Although Telkom supports the purport of the proposed legislation, the company has a number of concerns with the Bill which Telkom wishes to raise before the Bill is pass into law.

3. Telkom would like to make oral submissions on the Bill and would require a timeslot of half an hour to do this. It would be appreciated if Telkom could be informed whether this would be possible.

General comments

4. As the title of the Bill suggests, its purpose is to regulate disaster management in South Africa.

5. Under the Bill the government bears the primary responsibility for disaster management. However, the Bill also makes provision for other role-players (like parastatals, the private sector and other institutional role-players) to participate in disaster management processes.

6. The Bill does not mention Telkom directly, but impacts on the company in the following two Ways:

6.1. Firstly, the Bill imposes a number of obligations on "organs of state" to participate in disaster management processes, which appears to include parastatals like Telkom.

6.2. Secondly, the Bill requires communication facilities to be installed and maintained during times of disaster.

7. Briefly stated, Telkom's concerns are as follows:

7.1. Firstly, Telkom does not believe that it is appropriate to impose the same obligations on parastatals as with government departments in relation to disaster management. Telkom is also of the view that it should not be regulated differently from telecommunication operators in the private sector.

7.2. Secondly, the Bill makes inadequate provision for operators to be consulted - both with regard to their role in disaster management and with regard to the supply of communication facilities.

Specific comments

Is Telkom an organ of state?

8. The Bill distinguishes between national, provincial and municipal organs of state.¹

9. From the way that the Bill is worded, parastatals appear to qualify as national organs of state. Section 1 of the Bill defines a "national organ of state" to include both national government departments and public entities as they are defined in the Public Finance Management ("the PFMA")

Although Telkom has been exempted from some of the provisions of the PFMA, the company nevertheless appears to be covered by the definition of a public entity in the PFMA.

10. Given that government bears the primary responsibility for disaster management, Telkom believes it is not appropriate to burden parastatals with the same obligations as government departments in relation to disaster management for the following reasons:

10.1. The government has stated that Telkom must list before March 2003, which will result in Telkom becoming fully privatised. A second national operator ("SNO") is soon to be licensed which will compete with Telkom in the fixed line telephony market. If the SNO is licensed before Telkom is listed then this will have the effect that both companies will be regulated differently for disaster management purposes.

10.2. Moreover, Telkom's status as an organ of state means that it will be regulated differently from mobile telecommunication operators in the private sector.

Disaster management framework

11. The Bill requires the national, provincial and local spheres of government to draw up their own disaster management framework documents.

12. At the national level, the responsible minister must prescribe a national framework by notice in the Government Gazette, taking into account comments received from the public.

13. At the provincial level, each province must establish its own framework which must be consistent with the national framework. Unlike in the case of the national framework, the Bill does not oblige the provinces to seek public comment before implementing their own framework.

14. At the municipal level, each district and local municipality must establish its own framework that is consistent with the national framework and the framework of the province that it falls under. District municipalities can only establish their disaster management frameworks after they have consulted with the local municipalities in their area. However, the Bill does not require wider consultations with other role-players to be held.

15. The Bill requires that all the disaster management frameworks make reference to measures to facilitate co-ordination between the various role-players, including the various organs of state.

16. However, except in the case of the national framework, it is not necessary to obtain public comment first before implementing the framework. Nor is it obligatory to consult with the relevant role-players beforehand.

17. It is submitted that the Bill should make it mandatory for provincial and local governments to seek public comment before promulgating their framework documents.

Disaster management plans

18. The Bill obliges the national disaster management centre to guidelines for the preparation of disaster management plans. In turn, organs of state in all three levels of government are required to their own disaster management plans.

19. At the national level, all national organs of state implicated in the national framework are required to prepare disaster management plans. This probably includes parastatals like Telkom, depending on whether the company falls within the definition of a "national organ of state" in the Bill.

20. All the provincial level, all the provinces are required to prepare provincial disaster management plans. The provincial plans must make provision for (amongst other things) the allocation of responsibilities to role-players during disasters (which could potentially include Telkom) and the establishment of strategic communication links. The Bill mandates the provinces to co-ordinate and align their plans with those of other organs of state and institutional role-players. This seems to imply that the provinces must consult with these entities first before drawing up their plans, but this is not clear.

21. All municipalities are required to prepare disaster management plans for their area. The municipal plans must make provision for the establishment of strategic communication links during times of disaster. All municipalities that are implicated in national, provincial and local plans must co-ordinate their plans with other organs of state and institutional role-players. District and local municipalities may only prepare their disaster management plans after consulting with each other. However, there is no explicit requirement that the municipalities should consult with the public or the relevant role-players.

22. The purpose of having disaster management plans is to allow the government to plan for disasters at a practical level. Telkom has no objection to participating in government-led disaster management initiatives. However, Telkom believes that the overall co-ordination of disaster management is a government competency. It is accordingly submitted that it is not appropriate to require parastatals to draw up their own disaster management plans.

23. The Bill makes reference to the supply of 'communication links" during times of disaster. However, this term is not defined in section 1, although this presumably includes telecommunication facilities and services. This needs to be clarified in the Bill.

24. The Bill also not expressly require operators to be consulted about the provision of communication links. Neither does the Bill state on what basis communication links must be supplied and whether or not any compensation is payable. These issues also need to be clarified in the Bill. In this regard, Telkom believes that prior consultation in order to enable operators to plan for this in advance.

Disaster management advisory fora

25. The purpose of the advisory fora is to give role-players a platform to consult with each other and to co-ordinate their activities. As the name suggests, the fora serve purely as advisory bodies, and do not have any decision-making powers.

26. At a national level, the responsible minister must establish the National disaster management advisory forum. At a provincial level, the responsible MECs must establish provincial fora in each of the provinces. At a municipal level, local governments may establish their own municipal fora.

27. In all cases, the minister, the MECs or the executive mayor of a municipality may designate "experts" to belong to the fora. This could potentially include Telkom.

28. The Bill makes no provision for the designated "experts" to be consulted before they join the fora. Telkom believes that it is inappropriate for government to unilaterally determine who the members of the fora should be without consulting with the role-players first.

29. The Bill is otherwise silent about how the other members are appointed onto these fora. In particular, it is not clear whether the power of the government to establish the fora includes the power to appoint the other members. To the extent that this may be the case, it is submitted that the member entities should have the right to choose their own representatives to sit on the fora.

Disaster management centres

30. The purpose of the disaster management centres is to integrate and co-ordinate approaches to disaster management at all three levels of government.

31. One of the mandates of the centres is to facilitate prevention and mitigation strategies by organs of state and role-players involved in disaster management.

32. Telkom submits that the Bill should require the centres to consult with role-players about their role in disaster management initiatives in order to enable them to budget and otherwise plan for this in advance. (This is currently not expressly provided for in the Bill).

Declarations of states of disaster

33. The Bill makes provision for the declaration of disasters at the national, provincial and municipal levels.

34. At the national level the responsible minister must declare a national disaster by giving notice in the Government Gazette. If a national disaster has been declared, then the minister may make regulations directing (amongst other things) the release of personnel or facilities by a national organ of state and the installation and maintenance of temporary lines of communication. The regulations must be made after consultation with the responsible Cabinet member.

35. At the provincial level, the premiers must declare a provincial state of disaster by giving notice in the Provincial Gazette. The Bill states that this must be done only after consultation with the other MECs. If a provincial disaster has been declared, then premiers may make regulations relating to the installation and maintenance of temporary lines of communication.

36. At the local level, the council of a municipality must declare a local state of disaster by notice in the Provincial Gazette. If a local state of disaster has been declared, then the municipal council may make by-laws relating to the installation and maintenance of temporary lines of communication.

37. In all cases, the relevant government official has the power to order the supply of temporary communication facilities. However, the Bill does not require operators to be consulted about this beforehand, which Telkom submits the Bill should make provision for.

Funding of post-disaster recovery and rehabilitation

38. The Bill states that the costs of repairing and replacing public sector infrastructure must be borne by the organ of state that is responsible for maintaining the infrastructure. This is not necessarily problematic, as this is a cost that Telkom would ordinarily bear.

39. However, the Bill also states that national, provincial and local organs of state may financially contribute to post-disaster recovery and rehabilitation.

40. These latter provisions are problematic for parastatals because they impose positive obligations on organs of state for funding post-disaster recovery and rehabilitation. Telkom believes that it is clearly inappropriate to burden parastatals with this responsibility. For this reason, it is submitted that the Bill should exempt parastatals from this obligation.