Disaster Management Bill: deliberations

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Cooperative Governance and Traditional Affairs

19 August 2002
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Meeting report

PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE

PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE
20 August 2002
DISASTER MANAGEMENT BILL: DELIBERATIONS

Chairperson:
Mr Y Carrim

Documents handed out:
Disaster Management Bill Proposed Amendments (Appendix 1)
Draft Committee Report on the Disaster Management Bill (Appendix 2)
Telkom's Submission: Re: Suggested Amendments
Summary of Telkom's Submission on the Bill (Appendix 3)
Disaster Management Institute of Southern Africa Comments on the Bill (Appendix 4)
Letter from Ms Ailsa Holloway, DiMP
Letter from Mr M Morobe, Chairperson of FFC
[for these letters, email
info@pmg.org.za]
Disaster Management Bill [B21-2002]

SUMMARY
The Committee went through the proposed amendments prepared by the Department as well as those from Telkom, Disaster Mitigation for Sustainable Livelihood Programme, Disaster Management Institute of Southern Africa and the Financial & Fiscal Commission. It finalised its report on this Bill and the Committee will pass the Bill at a 3 September meeting. The Bill is up for debate in the House on 18 September 2002.

MINUTES
Proposed Amendments to the Bill
The Committee went through the proposed amendments that the Department had prepared as a result of previous deliberations on Clauses 4, 5, 17 and 56 of the Disaster Management Bill [B21-2002].

Mr P Uys (NNP) expressed his disapproval of the inclusion of the new provision in Clause 56 (2)(a). He said that the Minister would be given irregular powers and proposed that the Minister should be required to consult first.

Mr P Smith (IFP) said that a consultation from the Minister is not necessary since the Minister is required in terms of Clause 6(1) to Gazette any contemplated action.

The Chairperson noted the argument and held that Clauses 56(2)(a) and 6(1) should then be read together.

Dr P Bouwer (DPLG Director of Legal Services) stated that the consultation the Minister should be required to have is with the Minister of Finance.

The Chairperson accepted this. He asked the Department to look at the technicalities of the matter and bring that information back to the Committee for discussion.

The Committee noted that the Minister should prescribe the framework in consultation with the National Disaster Management and that Clauses 56 and 6 be read together.

Proposed Amendments: Disaster Mitigation for Sustainable Livelihood Programme
The Committee then looked at the three suggestions for minor technical amendments to Clauses 39(2)(e) and 53(2)(e) and 49 from Ms Ailsa Holloway of Disaster Mitigation for Sustainable Livelihood Programme (DiMP). The Committee agreed to her proposition for Clause 49 but felt the other two clauses are fine and should not be amended.

Proposed Amendments: Financial & Fiscal Commission
The Committee agreed that the concerns raised in the letter from Mr M Morobe, Chairperson of FFC, regarding the definition of 'post-disaster recovery and rehabilitation have been dealt with before and would not be entertained.

The Committee accepted the suggested amendment for Clause 56(2)(a) which would now read: "National, provincial and local organs of State may financially contribute to response efforts and to post-disaster recovery and rehabilitation."

The Committee agreed that Clause 7(2)(k) is perfect as it stands and no amendment should be entertained.

Proposed Amendments: Disaster Management Institute of Southern Africa
Clause 58
Mr Uys stated that there are outstanding issues in Clause 58 that should be dealt with, especially with regard to reservists.

The Chairperson noted that there are five different experts who were consulted on the issue of reservists and all of them had agreed that the reservist issue should not be entertained. Therefore Clauses 58(1), (5)(a), (5)(b) and (5)(d) would not be amended as the Bill is clear on those provisions.

Dr Bouwer also noted that Clause 58(5)(g) should not be amended to include a provision for loss or damage to personal/private equipment belonging to a volunteer. He said that the inclusion of such clause would create a legitimate expectation which may result in an unbearable situation for the Minister.

Mr B Nobunga (ANC) contended that there are certain unforeseen expensive expenses which one may suffer in response to a disaster. Since no one is expected to suffer when responding to a disaster a provision should be made for such situations.

Mr J Dube (DPLG Senior Legal Officer) said that the Bill takes care of such unforeseen situations in paragraph (f) of Clause 58. He contended that what should be regarded as necessary in the circumstances should be left to the discretion of the Minister.

The Chairperson accepted this argument and stated that paragraphs (g) and (f) should be read together.

The Committee was extremely unhappy with the use of military concepts in the Bill, especially in Clause 58(5)(h) and (i). The Chairperson advised the Department that whilst it is important and acceptable to create uniformity, it should guard against creating militarism in the process.

Mr Smith noted the provisions of Clause 58(6)(a) and (b). He asked whether person falling under Clause 58(6)(b) are also covered under Clause 59(1).

Mr L Buys (DPLG Chief Director: Disaster Management) replied that the Department does not discourage people from responding to a disaster. However, it also does not encourage all people to jump up and respond to disastrous situations since that could lead to more disaster. He said that the difference between persons falling in Clause 58(6)(a) and those falling in Clause 58(6)(b) is that the former are protected by law whilst the latter are protected ex grata.

The Co-Chairperson, Mr B Solo, said that in a disastrous situation it would be unrealistic for one to expect only registered people to participate. He said that during disaster management people always respond in different ways especially in squatter areas. The only thing that should be done is to educate people on how to be able to deal with an imminent disaster in their areas.

The Chairperson noted Clause 58(6)(b) needed to be further discussed since it would not be fair to leave such persons unprotected in law.

Clause 63
The Committee agreed that the provisions of Clause 65(2) also complement those of Clause 63(1). Therefore there is no need to amend this Clause.

Proposed Amendments: Telkom
Telkom delegates requested that the Committee should discuss the document "Telkom's submissions RE: Suggested Amendments" and not the one entitled "Summary of Telkom's submission on the Disaster Management Bill".

Ms Singh, one of the Telkom representative, expressed her frustration with the Bill since it does not clearly define certain concepts relating telecommunication organs in Clause 1. She said these concepts, when widely defined, also include other telecoms structures. Because of that they would like these structures to be brought on board regarding disaster management.

A Department official responded that the fact that Telkom is listed in the Public Finance Management Act (PFMA) as a public sector body makes it different from other telecoms structures.

The Chairperson also noted that there are different procedures applied to public or parastatal structures and to the private sector.

The Committee rejected all the proposed amendments made by Telkom in its submission. Telkom delegates stated that their intentions were to raise these concerns with the Committee as it would be difficult to do so when the Bill is in place.

The Chairperson noted that, in principle, the Committee does not disagree with Telkom but feels that the concerns raised are addressed in the Bill.

Committee Report on the Disaster Management Bill
Whilst Clause 43 requires the establishment of the Municipal Disaster Management Centre, the Committee took note that it would be difficult to fund these Centres. The Chairperson undertook to consult the Minister of Finance so as to discuss the possible funding of these Centres.

Dr H Fast (FFC) noted that to prescribe for provincial government and municipalities to make contributions for funding the Centres from their respective budgets and central contingency reserves might be unconstitutional.

The Committee undertook to research this issue and also seek for legal advice.

The Chairperson acknowledged that there are flaws in the report. When Dr Bouwer had made the report, Mr Carrim had been on official leave and could therefore not make his contribution as required. He asked the Committee to afford him time to look at the report together with Dr Bouwer and thereafter make a proper draft report. That draft would be sent to all Committee members as soon as possible.

Further Amendments
There was consensus amongst the Committee members that Clauses 28 - 30 and 32 - 36 should not be amended.

However some members believed that the powers and duties of the Provincial Disaster Management Centres should be similar to those of the National Disaster Management Centre.

The Chairperson said that this would be discussed in the next meeting.

Ms G Borman (DP) requested that the discussion on Clause 37(1)(e) be flagged since there are other important role players that have been left out of the Provincial Disaster Management Advisory Forum. Above all the provincial forums should be similar to their national counterparts.

The Chairperson said that this would be discussed in the next meeting and thanked all those had participated in the discussions. He noted that the Committee should be prepared to finalise the Bill in the next meeting since most of the clauses were agreed to during the informal deliberations and only a few were left to deal with during the formal voting meeting.

The meeting was adjourned.

Appendix 1
DISASTER MANAGEMENT BILL [B21-2002]: PROPOSED AMENDMENTS

CLAUSE 4

On page 12, from line 1, to omit paragraph (c) and to substitute:

(c) representatives of organised local government who are members of a municipal Council and selected by the South African Local Government Association.

On page 12, in line 7, to omit "coordination" and to substitute "co-ordination".

CLAUSE 5
On page 12, from line 26, to omit paragraph (d) and to substitute:

(d) representatives of organised local government with technical expertise in the field of disaster management.

CLAUSE 17
On page 22, from line 34, to omit paragraph (b) and to substitute:

(b) classifying parts of the database as restricted areas in consultation with the Minister, and limiting access to those parts to persons authorised by the Minister.

CLAUSE 56
On page 56, in line 39, to insert the following after the words "contribute to": "a response and"
On page 56, after line 42, to insert the following subsection, to follow subsection (2):

The Minister may prescribe a percentage of the budget, or any aspect of a budget, of a provincial organ of state or a municipal organ of state, as the case may be, as a threshold for accessing additional funding from the national government for response.

Appendix 2:
PORTFOLIO COMMITTEE ON PROVINCIAL AND LOCAL GOVERNMENT

REPORT ON THE DISASTER MANAGEMENT BILL [B21-2002]

1. Having considered the Disaster Management Bill [B21-2002], the Portfolio Committee on Provincial and Local Government reports as follows:

1.1 The original Disaster Management Bill was introduced into Parliament during 2001. The Committee conducted comprehensive public hearings on that Bill and deliberated extensively on its provisions. However, the Bill was withdrawn in order for the Department of Provincial and Local Government to comply with section 9 of the Municipal Systems Act, in particular to allow the Financial and Fiscal Commission to make an assessment of the financial implications of the Disaster Management Bill, and for the Department to consider that assessment.

1.2 The present Bill was introduced into Parliament during the first half of 2002, and reflected all the amendments proposed by the Committee in respect of the Bill that was withdrawn during 2001.

1.3 The following essential assessments were made by the Financial and Fiscal Commission:

  • There is already capacity within certain municipalities to attend to various requirements of the legislation.
  • The availability and the accessing of funding should be addressed as a priority.
  • The national contingency reserve should be accessible to all spheres of government, and should ideally be referred to as the "central contingency reserve".

2. The Committee notes that the Financial and Fiscal Commission has, in addition to its assessment, also offered the following proposals regarding the funding of disaster management:

  • Emergency preparedness: Consideration should be given to the establishment of conditional grants from national government that are administered for a limit period till capacity is developed at local government level.
  • Increment of equitable share: Such an increment must be informed by a study of specific financial implications.
  • Prevention/mitigation funding: Provinces and municipalities should apply for funding of specific projects on the budget of a national department.
  • Immediate response funding: The contingency reserve should be set aside for immediate response to emergencies.
  • Infrastructure rehabilitation funding: National departments, provinces and municipalities should submit requests for reconstruction funding to the national government.
  • Funding of relief to individuals: The three existing relief funds should be combined and administered centrally. The funds could be made available to provinces, municipalities and non-governmental agencies for payment to individuals.

The Committee requests the Ministry for Provincial and Local Government to apply its mind to these proposals.

3. Following exchanges with the Department, the Committee wishes to make the following recommendations regarding funding for disaster management:

3.1 The Head of the National Disaster Management Centre should have the power to commit funds from the central contingency reserve up to a determined limit for immediate relief efforts. It acknowledged that this financial assistance is not to be confused with the longer term social assistance provided by government.

3.2 Provincial governments and municipalities should be obliged through treasury prescripts to dedicate a certain percentage of their respective budgets for disaster management.

3.3 Clear principles should be determined for provincial governments and municipalities to access funding from the central contingency reserve.

3.4 Consideration should be given to the establishment of an Establishment Grant similar to the Transition Grant that was established for the newly elected municipalities after the 2000 municipal elections. The purpose of the Establishment Grant is to facilitate the establishment of municipal disaster management centres, and to provide an incentive for municipalities to get involved in disaster management.

4. The Committee urges the executive to expedite the setting up of the National Disaster Management Centre (which includes the provision of adequate funding) and the appointment of its Head with a view of having the national disaster management framework in place as soon as possible.

Appendix 3:
PARLIAMENTARY INFORMATION SERVICES: RESEARCH
(Researcher: Chris Sibanyoni)

SUMMARY OF TELKOM'S SUBMISSION ON DISASTER MANAGEMENT BILL [21—2002]


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.

Thus, the Bill affects Telkom by:

  • Imposing a number of obligations on "organs of state" to participate in disaster management processes.
  • Requiring communication facilities to be installed and maintained during times of disaster

Obligations: Telkom is of the view that it is inappropriate to burden parastatals with the same obligations as government department regarding disaster management. The reason is that Telkom, as an organ of state, will be regulated differently from the soon-to-be established second national operator and mobile telecommunication operators.

Consultation: Unlike in the case of the national framework (see clause 4), the Bill does not require the provinces, district and local municipalities to seek public comment or consult with the relevant role-players first before implementing their own frameworks (see clauses 28 and 42). The Bill should make it mandatory for provincial and local governments to seek public comment before promulgating their framework documents.

In addition, Telkom asserts that it is inappropriate for government to unilaterally determine who the members of the fora should be without consulting with the role-players (see clauses 5(1), 37(1) and 51(1)). Thus, it is suggested 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 plan for this in advance.

Furthermore, in the declarations of states of disaster, a relevant government official has the power to order the supply of temporary communication facilities (see clauses 27(2)(j), 41(2)(j) and 55(2)(j)). However, Telkom submits that the Bill should make provisions for the consultation of Telkom beforehand.

Disaster management plans: Since the overall co-ordination of disaster management is a government competency, it is inappropriate to require parastatals to draw up their own disaster management plans (see clause 25(1)).

Communication links: The term "communication links" in unclear and thus needs to be defined in section 1 of the Bill. In addition, the Bill should clarify the basis on which communication links must be supplied and whether any compensation is payable.

Funding: Clause 56(2)(b) of the Bill states that national, provincial and local organs of state may financially contribute to post-disaster recovery and rehabilitation. However, Telkom believes that it is inappropriate to burden parastatals with this responsibility.

Appendix 4:
Disaster Management Institute of Southern Africa
Comments on the Disaster Management Bill 2002

On behalf of the Disaster Management Institute of Southern Africa I take the opportunity to once again express satisfaction with the Bill and in particular commend the Portfolio Committee, the department and other role players for the thorough manner in which they applied their minds to ensure a final product of such a high standard.

It is not our intention to comment again on those aspects of the Bill already addressed in the Public Hearings however, we do have some suggestions which we believe will improve Chapters 7 and 8. These suggestions are therefore submitted for consideration as follows:

Chapter 7

The content of the Chapter is excellent and relevant however the context is considered to have too strong a military connotation which is not conducive to civilian volunteers. Experience has shown that many prospective and existing volunteers are very sensitive to the creation of what could be perceived as a military-type organisation.

Accordingly, in order to 'soften' the context we suggest as follows:

Differentiation could be made between the two categories of volunteers by referring to 'organised' volunteers as reservists as opposed to general or casual volunteers. For example the two categories would then be referred to as:

· Disaster Management Reservists Disaster Management Volunteers

Section 58(1) the words 'unit of volunteers' should be substituted with one of the following: "reserve of volunteers" or "contingent of volunteers"

Section 58(5)(a) would then be changed to read "the structure of the volunteer reserve/contingent for management and control purposes"

Section 58(5)(b) should read "components of volunteer reserves/contingents"

Section 58(5)(d) should read, " member of a volunteer reserve/contingent is to be activated

After Section 58(5)(g) provision a clause should be added to make provision for loss or damage to personal/private equipment belonging to a volunteer which has been rendered in response to a disaster

Section 58(5)(h) replace "uniforms" with "protective clothing"

Section 58(5)(i) replace "insignia" to read: "Means of identification and distinguishing devices to be worn by

(i) different volunteer reserves/contingents;

(ii) different components (or teams) within a volunteer reserve/contingent

(iii) different positions of "seniority" or "responsibility" in place of the word "command"

Chapter 8

Section 63(1) should be amended as follows:

"…a disaster management plan for the special event which plan must include:

(a) a hazard and risk assessment

(b) prevention and mitigation strategies to address the hazards and risks identified in the assessment undertaken in terms of (a) above

(c) time frames and possible limiting factors for the implementation of the strategies identified in (b) above

(d) identification of all possible role players, their primary and secondary roles and their acceptance of responsibility therefore"

the plan must at least provide for the following:

(a) first aid assistance

(b) evacuation procedures

(c) fire fighting procedures

(d) crowd control measures

(e) security measures

(f) communication links with the relevant disaster management centre

(g) sufficient personnel to give effect to the execution of such a disaster management plan; and

(h) emergency drills

General Comments

1. Unless we have missed it, it appears that there is still no provision to retain Regulation No R 2461 to cover existing volunteers should they suffer death, injury or disablement in the interim between the repeal and the making of the new regulations. Section 65(2) only makes provision for death, injury or disablement which has already occurred.

  1. Considering could also be given to adding a sub section in Chapter 2 stating that the Minister may call for a Commision of Inquiry/Investigation into a disaster (eg. The Ellis Park disaster)


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