Legislative Mandate of DAFF: Committee Staff briefing; Progress report on Performing Animal Protection Amendment Bill: Department briefing; Feedback on Land Tenure Summit

Agriculture, Forestry and Fisheries

16 September 2014
Chairperson: Ms M Semenya (ANC)
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Meeting Summary

The Parliamentary legal adviser briefed the Committee on the National Society for the Prevention of Cruelty to Animals (NSPCA) judgment on the Performing Animals Protection Act. The Act gave power to magistrates to issue licenses to people that used animals for performing and security purposes. The NSPCA had taken the legislation, which was passed in 1935, to the Constitutional Court. The Court had said that giving a magistrate the power to issue licenses and certificates was invalid, as it should be an executive function rather than judiciary function, so it violated the separation of powers. The court had declared Sections 2 and 3 of the Act invalid, but had suspended the invalidity for 18months. The judgment had been handed down on 11 July 2013, so the Department had been instructed to remedy it and bring amending legislation that would be passed by 10 January 2015. A large number of operations involved in the training and exhibiting wild animals, as well as security dog companies, depended on annual licences to operate, so it was important that this amendment was processed in time.

The time frame left was short, and the legislation had not yet been introduced. The Committee had an oversight function and could ask the Department to report on what was happening about the legislation. A Committee Bill was an option, but it involved a lot of suspension of rules, and the processes involved in a Committee Bill may not be met before January 2015.  The Department had the option of going back to the Constitutional Court to ask for an extension of the deadline in order to enable Parliament sufficient time to consider the Bill.

The Committee expressed displeasure with the slow rate at which the Department was handling the amendment Bill, and asked if there was any other outdated legislation with court orders, and their time frames.  The Committee asked whether the Department and the Committee faced penalties for failure to meet the deadline.

The Committee Support Official gave an overview of the legislative mandate of DAFF. The Department had over 30 pieces of legislation, but she focused on the agricultural and food market cluster. She briefed the Committee on four pieces of legislation. These were the Agricultural Produce Agents Act of 1992, which controlled the Agricultural Produce Council, related to produce agencies like wholesalers, brokers, and export and import agents; the Agricultural Product Standard Act of 1990, which controlled the sale and exports of certain agricultural products, as well as the packaging, labeling and microbiological standard of products; the Liquor Products Act of 1989, which applied to the wine and spirits sub-sector; and the Marketing of Agricultural Products Act of 1996, which gave effect to the National Agri-Marketing Association (NAMA) to establish markets, comparative advantages, levies and administration of bodies. 

There had been slow progress by the Department to finalise the Bills, and since 2009 only two had been brought to Parliament and finalised.

The Committee said that there was need to confirm where the delays in the legislative amendment process had arisen, and requested a list of outstanding documents to be sent to the Committee. Members said there was a need to enforce the implementation of these laws, and asked for the status of the public comments and how to fast track all the processes.

 

Meeting report

Opening Remarks

The Chairperson welcomed everyone to the meeting and commented that the Land Tenure Summit feedback would be added to the agenda of the day.  Ms D Carter (COPE) apologized for the fact that she would have to leave the meeting early for another meeting. Ms A Steyn (DA) commented that she was not sure if Ms Z Jongbloed (DA) had written an apology to arriving late.  She apologized that she would be leaving by 12noon as well.

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The Chairperson commented that the meeting was important in order for the Committee to know the legislation that governed the sector, and to see if the Department was ensuring there was enough legislation for the sector.  This was necessary because she had been informed by the Parliamentary legal department that the previous Committee had been dealing with a court order that was due for hearing in January 2015.

Briefing by Committee support officials on DAFF legislation

Ms Desiree Swartz, Parliamentary Legal Adviser, briefed the Committee on the National Society for the Prevention of Cruelty to Animals (NSPCA) judgment on the Performing Animals Protection Act (PAPA). The Act in Sections 2 and 3 gives power to the Magistrate to issues licences to people that use animals for performing purposes and security purposes. Section 3 dealt with the issuing of certificates.  The NSPCA had taken the legislation, which was passed in 1935, to the Constitutional Court. The Court had said that giving a magistrate the power to issue licenses and certificates was invalid, as this should be an executive function, rather than a judiciary function, hence it violated the separation of powers. The Court declared Sections 2 and 3 of the Act invalid, but suspended the invalidity for 18 months. The judgment was handed down on 11 July 2013. The Department had been instructed to remedy it and bring legislation that would be passed by 10 January 2015.

 

The time frame left was short and the legislation had not yet been introduced. The Committee had an oversight function and could ask the Department to report on what was happening about the Legislation. A Committee Bill was an option, but it involved a lot of suspension of rules, and the processes involved in a Committee Bill may not be met before January 2015.  The Department had the option of going back to the Constitutional Court to ask for an extension of the deadline in order to enable Parliament sufficient time to consider the Bill.

Discussion

Ms Carter expressed concern that the Department had not been working on the legislation and had rather pushed the blame elsewhere. She asked for the guidelines in the processes to be followed, and what should have been followed.

Ms Swartz replied that the court had not given guidelines in the judgment on what was required, so it was difficult for the Committee to come up with legislation without the assistance of the Department.

Ms Steyn asked if there were other pieces of legislation outstanding with court cases, and the stipulated time frame to finalise them. She asked if the Department would be penalised if it did not implement it, as the only option left was to ask for an extension beyond January 2015.

Ms Swartz replied that the Parliamentary legal department monitored the Constitutional Court judgments and would alert the Committee where necessary. The legal office was capacitated to receive judgments from the Court to see if any piece of legislation was declared invalid.

The Chairperson asked if the Committee would be penalised if the deadline was not met.

Ms Swarts replied that there was no penalty in the court judgment.

The researcher commented that the internal processes of the legislative schedule plan within the directorate should have been completed by 1 August.  Process with the state law advisers should have been completed as at 1 September.  Work at the DG’s office should have been completed by 1 October. Bills to be submitted should have been completed as at 1 November, and Parliament as at 1 December. There had been a shortcoming within the Department, so the deadline of 10 January 2015 would not be met.

Ms Carter commented that it was important to see where the delays had come from, as the first draft had been completed in November 2013.

Ms Steyn expressed concern that the Department had not included Performing Animal Protection Act Amendment Bill to the list of outstanding court cases requested by the Committee from the Department last year.

The Chairperson commented that the Committee was not pleased by the Department’s response, as the Department should have been the first to brief the Committee about the Court judgment, and not vice versa. She asked the researcher to brief the Committee on other legislations and policies that needed to be tackled.

Legislative Mandate of the Department of Agriculture, Forestry and Fisheries (DAFF)

The Committee Support Official gave an overview of the legislation mandate of DAFF. The Department had over 30 pieces of legislation, but she focused on the agricultural and food market cluster. She briefed the Committee on four pieces of legislation.

 

The Agricultural Produce Agents Act of 1992, which controlled the Agricultural Produce Council, related to produce agencies like wholesalers, brokers, and export and import agents. The Department had proceeded to publish a Bill to change councils into an agency and empower an agency to approve new markets, for public comment. The new Bill would control new markets like abattoirs. There seemed to be a direct move to have more regulations to control the activities of the market. The Act sought to ensure that the food safety requirements were enforced by using various collaborating bodies. The Bill also gave the Department power to source funding for market infrastructure.

The Agricultural Product Standard Act of 1990 controlled the sale and exports of certain agricultural products, as well as the packaging, labeling and microbiological standard of products.  This involved role players like the Department of Health, which tested for contaminants like E.coli and salmonella, which are managed in certain ways. The Department had used the proposed amendment to harmonise the standards. The maximum residue level of pesticides used on agricultural products was monitored by some private companies too. The Department had introduced a draft Bill for public comment.

The Liquor Products Act of 1989 applied to the wine and spirits sub-sector. The Bill had been published for public comment.

The Marketing of Agricultural Products Act of 1996 gave effect to the National Agri-Marketing Association (NAMA) to establish markets, comparative advantages, levies and administration of bodies.  The draft Bill, which sought to shift the function from NAMA to the Department itself, had been published by the Department for public comment.. The Department was given the power to be the sole custodian of agricultural and food market.

There had been slow progress by the Department to finalise the Bills, and since 2009 only two had been brought to e Parliament and finalised.

Discussion

Ms Steyn commented that she would like to see a list of what the Department was planning to do this year, and what it was working on. Legislation did not stop people from finding loopholes, so it was important to enforce the implementation of these laws. She expressed concern about the outdated or outstanding legislation, which should be followed up with the Department.

Mr T Ramokhoase (ANC) said that the situation had reached the point where concerns should be raised and addressed. The Committee should look at the best measures to put in place to make sure that it fulfilled its mandate and ensured that agriculture in South Africa became part of the survival platform for the people.

The Chairperson commented that it was disturbing to look at what the Department was supposed to have done, and its progress in closing the gap. Concerns had been raised on the Bills, and these should be raised with the Department. There was a need to get commitments from the Department on the status of Bills sent for public comments, and the need to fast track all the processes. It would have to work with the legal unit to make sure that the Bills were implemented.

Mr B Joseph (EFF) asked about the possibility of getting all the legislation that governed the sector.

The Chairperson replied that it was possible.

Mr C Maxegwana (ANC) said that it was important for the Committee to get the legislation in order to identify the pieces of legislation to be dealt with.

The Chairperson suggested that the legislation be considered piecemeal, as the support officials could give an overview on it. The officials would make sure that Members received the legislation.

Ms Steyn said the Department should be asked to provide a list of each section of legislation which could assist the Committee.

The Chairperson welcomed the Deputy Minister of Agriculture, and invited the Department to give the Committee its programmme regarding the court order that would expire in January 2015.

Mr Bheki Cele, the Deputy Minister thanked the Chairperson and Committee Members, and read an apology from the Minister, who would join the meeting later.

Progress report on the Performing Animal Protection Act (PAPA) Amendment Bill

Mr Moketsa Ramasodi, Acting Deputy Director General: Agricultural Production, Health and Food Safety, DAFF, briefed the Committee on issues relating to the Performing Animals Protection Amendment Bill. The Department was in the process of reviewing the legislation when the judgment had come to the Department. He gave a brief background to the Amendment Bill.

 

The Constitutionality of Section 2 and 3 of the Performing Animals Protection Act (PAPA) of 1935 (Act No 24 of 1035) had been challenged by the National Society for the Prevention of Cruelty to Animals (NSPCA) during 2012.  It gave power to magistrates to issue licenses for performing animals to respective industries.

On 11 July 2013, the Constitutional Court of South Africa had declared sections 2 and 3 of the PAPA unconstitutional, as the Court found that the issuing of licences was an administrative function that should be performed by the executive, and not by the judiciary. The judgment also ordered Parliament to remedy the defect within 18 months from the day of the judgment, to expire 10 January 2015.

The judgment affected a large number of operations involved in training and exhibiting wild animals, as well as security dog companies that depended on annual licences to operate, hence the need for the amendment to be processed without delay.

The review process included the consolidation of the PAPA and the Animal Protection Act of 1962 (Act 71 of 1962) into one Animal Welfare Bill for consideration by Parliament. A holistic animal welfare policy in response to short and long term animal welfare matters had been drafted, and was currently undergoing formal Departmental processes.

The DAFF had considered two options following the court judgement.  The first was to consider technical amendments to the existing PAPA, focusing on Sections 2 and 3, while the second was to consider a total repeal of the PAPA Act and a replacement with new Animal Welfare Act.

The Department opted to consider the first option, focusing on sections 2 and 3, because it was the only quick option, considering the time constraints. The consolidation of the envisaged amendments to sections 2 and 3 would not be concluded within the expected timeframes.

Mr Ramasodi described the chronology of events. The Department had deliberated on the issue since the judgement and completed the first draft of the Bill in November 2013. This draft was referred to the Office of the State Law Adviser (OSLA) on 7 January 2014. The OSLA had reverted to the Department on 13 February, with comments regarding the workability of the bill due to incomplete processes and infringements of section 14 of the constitution, and alerted DAFF that the Bill was not in line with the principles of the Promotion of Administrative Justice Act (PAJA).

The draft amendment Bill was gazetted on 9 April. The Department considered all written and oral inputs and engaged OSLA in June and July 2014. The OSLA considered preliminary certification of the draft Bill on 5 September, and recommended that the Department should take care of a few minor issues. The memorandum was provided on 8 September and the Bill was preliminarily certified by the OSLA on 11 September.

The OSLA returned the document with minor tracked changes, which were dealt with by the Department, and the final document was submitted on 12 September.  The Bill was ready for tabling at the October 2014 Economic Sectors and Employment and for Infrastructure Development (ESEID) cluster meeting.

The purpose of Bill required technical amendments to Sections 2 and 3 of PAPA to provide for:

-  the designation of a National Licensing officer;

-  a procedure for the application for a license to exhibit, train or use an animal;

-  the functions of a National Licensing Officer;

- the issuance of licenses; and

- the insertion of certain definitions and provision for an appeals process.

 

The objects of Bill were covered in Clauses 1 and 2, and would repeal sections 2 and 3, which dealt with magistrates issuing licenses for the exhibition and training of performing animals and for the use of dogs for safeguarding.  These clauses were declared unconstitutional by the Constitutional Court on the basis that a member of the judiciary should not be performing administrative actions that were supposed to be performed by the Executive.

Clauses 3 sets out a procedure for the granting and issuing of licences and matters connected therewith, thereby ensuring compliance with the Constitutional Court judgment.

Clause 4 seeks to incorporate additional definitions into the Act that were consequential to the revised procedure adopted for the granting and issuing of licenses. Definitions for “Animal scientists”, “Officer”, ”National Licensing Officer” and “Veterinarian” had been inserted.

Clause 5 provides for an appeal process by the insertion of section 11A, which provides for the establishment of an ad hoc appeal board by the Minister, the appointment of members, the appointment and functions of the chairperson of the appeal board.

Clause 6 provides for the short title of this Act upon its enactment.  The PAPA 2014 would come into operation on a date fixed by proclamation in the Gazette.

The draft Bill was published in the Gazette for public comments on 9 April 2014, and written comments were received from stakeholders like the SA Dog Academy, the NSPCA and the Animal Anti-Cruelty League.

The implementation plan encompassed the Identification of service points and coordination of the change management process to be completed by October 2014, in collaboration with provincial Departments of Agriculture.  The delegation of functions would be finalised after the promulgation with the National Licensing Officer.  The development and harmonizing of standard operational procedures would be done between September and December, along with the provincial Departments of Agriculture.  By September, there would be research and development by the Departments of Environmental Affairs, Tourism and Science and Technology, the Agricultural Research Council (ARC) and other strategic stakeholders. Monitoring and evaluation would be completed by January 2015, along with the DAFF, the NSPCA and other relevant stakeholders.

The financial Implications were that the DAFF would realign its structure to accommodate the new designation. The budget for the new unit would in the short term be reprioritized within the current budget. Provincial Departments would be encouraged to utilize state veterinarians and animal scientists in different districts. A budget of R54 million would be required to carry the operations and structure of the National Licensing Officer, technical and administrative staff.

The OSLA and DAFF were of the opinion that this Bill may have to be dealt only in accordance with the procedure established by section 75 of the Constitution. Parliament could further guide the tagging of this Bill. The OSLA and DFF also believed that it may not be necessary to refer this Bill to the National House of Traditional Leaders in terms of section 18(1)a, since it did not contain provisions pertaining to customary law or customs of traditional communities. Parliamentary guidance would be appreciated.

 

Discussion

The Chairperson said that the Department had submitted a list of Bills that must go to Parliament and there should be clarity in terms of the letter from the President. She expressed concern over the proposed Bill, which had not reached the Cabinet by September, as it still had to go through other processes before the set date. She asked if the target of January 2015 would be met, since the Bill had not yet reached Parliament.

Ms Steyn said that the Committee had been informed about the Bill by the state law adviser, so it was aware of the Court order. She said there was other outstanding legislation that the Department had not brought to Parliament. She asked for a list of outstanding court orders in the Department and the implications of these court orders against the Department. She said that tagging should be done for the right reasons, and proposed that provinces should help with the tagging procedures. She expressed concern that the Department had opted for the first option, as it was a short legislative process that could be followed. She asked if the Department was following the right legal steps, without having to repeat the legislation, in order to meet the deadline.

The Deputy Minister replied that it was important to have thoroughly prepared legislation, without having to undermine the contents of the legislation and the court’s timeline, so there was a need for an extension to the deadline.

Ms Carter expressed concern about how to set up the appeal process and the implications of the court order on the Department and provinces. She added that the 1935 Act had been specifically for circuses (performing animals) so she was worried about how to factor animal activism into the Bill process, as there should be a balance between animal activism and performing animals.

The Deputy Minister replied that it was important to put in our best efforts into animal activism.

Mr Ramokhoase said there was need to prepare for consequences that may come from the judgment. He asked if the Department had prepared for any consequences.  He asked if the Department had tried to change Section 75 to 76, and if there were risks involved by exposing the Department to failure after such a loss of time..

The Chairperson welcomed the Minister, Mr Senzeni Zokwana, and the Director General of DAFF, Prof Edith Vries.

Mr Maxegwana asked if it was possible to delay the court judgment beyond 10 January, and what the implications of delaying it were.

The Deputy Minister replied that the Minister could ask for an extension of the deadline.

Ms Steyn asked for the background to the court case, and asked if there had been dealings between the NSPCA and DAFF before the legislation was taken to court.

The Chairperson commented that the deadline would not be met, so the Department solicit an interaction with the Constitutional Court to get an extension.

Ms Swartz said that legislation gave a legal framework for policies, so from January 2015 that sector would not be regulated anymore. The ideal option was to approach the Constitutional Court for extension.

The Deputy Minister replied that the Department could request an extension.

The Minister said that situation confirmed that people could still go to Court hence the department would ask for an extension. He added that the Department would be constitutional as animals would be at risks if shortcuts were taken.

Ms Steyn commented that the discussion of this legislation review spanned almost two years and expressed concern about other outdated legislation that needed to be reviewed. She asked the Department to provide a list of legislative reviews that were unconstitutional, and asked if there was an office within the Department that reviewed legislation. The Department should talk about pieces of legislations whenever it came to present to the Committee.

Ms Carter commented that it was important that the Department should apply for an extension within the timeframe.  However she advised the Department to continue to work on the review process as though there were no extension.

The Chairperson agreed that the Department should ask for an extension and inform the Committee. Department should work with the Parliamentary legal unit in order for the Committee to monitor progress on the legislation. The outstanding documents requested from the previous Committee had not been received to date. The Department should always respond promptly when requests were made by the Committee. A letter would be sent to the Minister from the Chairperson of the Committee outlining all the outstanding issues, and responses should come on time as the Committee had penalty measures that would be applied for late response.

Adoption of Minutes

Mr Z Mandela (ANC) moved for the adoption of the minutes of 9 September. Ms T Tongwane (ANC) seconded the motion. The minutes were adopted.

 

Ms Steyn moved the adoption of the minutes of 11 September.  Mr Mandela seconded the motion. The minutes were adopted.

Oversight visit to Ncera Farms

Ms Albertina Kakakza, Committee Secretary, said that the visit to Ncera Farms had been approved for 23 September. The Portfolio Committee would meet with the provincial committee before proceeding to Ncera Farms to meet with the stakeholders and the chiefs of the two communities. Buffalo city municipality would participate in the meeting.

Feedback on Land Tenure Summit

Mr Ramokhose briefed the Committee on the Land Tenure Summit held by the Department of Rural Development and Land Reform which was attended by the Chairperson, Mr M Filtane (UDM), the Committee Secretary, the content adviser and himself.  He read the objectives of the summit, which was aimed at soliciting the views of stakeholders. The summit was a national event, attended by directly affected stakeholders and people from the grassroots.  Legislators, national executive authorities, organisations, farm workers and many others attended. It was opened by the Minister of Rural Development and Land Reform.

The summit focused on communal land tenure policy, communal land tenure security, and property association etc. There were eight venues with different presenters, and it was an open summit. Issues raised by different commissions were highlighted, as people expressed concerns over the implementation of their ideas. Reports would be finalized and sent to different stakeholders.  It was a successful summit.

Mr Filtane said that the representatives had attended different commissions on the commission day. The Commission on Communal Land had considered whether land should be handed over to traditional or municipal councils, as there were opposing views. There was a suggestion that traditional leaders were not the most competent institutions to own land. People were anxious to have matters resolved and the Government had a responsibility to fast track the implementation of the views.

The Chairperson read an invitation from the Standing Committee on Finance to a workshop on 19 September on the issue of monitoring the zero rating of agricultural inputs.  He urged Committee members to be present at the workshop and apologised that she would not be present, as she would be attending a National Executive meeting.

Mr Ramkhoase apologised for being absent at the workshop.

The Chairperson announced that a joint workshop with Rural Development, Water and Sanitation had been approved. The Content Adviser said that contact had been made with some experts to make presentations.

The meeting was adjourned.

 

 

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