Explosives Bill: hearings

Meeting report

SAFETY AND SECURITY PORTFOLIO COMMITTEE
16 October 2002
EXPLOSIVES BILL: PUBLIC HEARINGS

Chairperson: Mr ME George (ANC)

Documents handed out:
Submission by the Animal Anti- Cruelty League (Appendix 1)
Submission by DENEL
Submission by the Chamber of Mines of South Africa
Submission by the Technical Production Services Association (TPSA)
Summary of written submissions by Information Services

SUMMARY
The Animal Anti-Cruelty League, DENEL, the Chamber of Mines and TPSA were given the opportunity to voice their points of view on the Explosives Bill. Mostly there was agreement that the Bill should replace the Explosives Act. There was some opposition to Clause 33(1), which if implemented, could cause job losses in the industry. The Clause seeks to restrict fireworks for use on special days only, such as Guy Fawkes Day. It was submitted that, instead of banning fireworks for use on certain days, the Bill should consider which types of fireworks should be restricted.

MINUTES
The Chairperson noted that the Bill has to be passed before Parliament adjourns in mid- November. The 25 October deadline was unrealistic and that they would have a better idea of where the bill is at after the hearings.

TPSA Submission
Mr Alan Muller:member of the TPSA and pyrotechnician, by way of introduction, said that the TPSA supports companies who do lighting, sound, staging, pyrotechnics, etc. The TPSA promotes safety, ethics and fair dealing in the industry. The TPSA supports the bill as far as it replaces the outdated sections of the Explosives Act. He agreed that control was necessary in this industry. He said that they wanted the Bill to be more stringent, but that they wanted clarity.

Mr Muller noted that that it was safer to transport chemicals as a mixture than as individual components and that at present they were already practicing international standards when they make their mixtures. He also stated that where the Act has other safety shortfalls, their conduct applies the international standards.

The major problem he said is with the clause which restricts operation to certain days of the year only. As it stands Clause 33(1)(o) reads, " the Minister may restrict the sale and use of fireworks, including organised fireworks displays, to certain periods and days". They would suggest that the word "including" be changed to "excluding". The reason for their suggestion is that 95% of their trade takes place on days other than the Guy Fawkes, 4^th July, Diwali and the like. Such a limitation would result in job losses. If one considered the purpose of the bill, which is to promote safety, then this restriction does not make the operation of fireworks any safer. Instead, the types of fireworks should be looked at and restricted.

Submission by the Pyrotechnics Guild of Southern Africa
Ms Kennedy for the Guild, noted that she deals with fireworks only, especially fireworks used in the movie industry.

She said that her involvement originally started with a meeting called by Justice and Constitutional Development and that the conclusion there was that fireworks could not be banned and could not be relegated to certain days because that would be unconstitutional.

She explained that Cape Town enjoys job creation through the movie industry and the way the bill is written will put a great strain on the industry. They would eventually lose the movie industry if the bill is accepted as it stands. It would be detrimental to enact this bill, which probably will not be policed properly. She said that when fireworks are sold in the shops it contravenes the current Explosives Act. One month ago a boat carrying 18x 6m containers of fireworks arrived from China and docked 50m away from SAFMARINE. This endangered the public because safety regulations were not followed, but the public are unaware of these incidents and once again the Act was contravened and not properly policed. Another example she gave was of the Pinelands bomb squad who took apart 4.5 tons of explosives in their garage, when the Act specifies where such activities should take place. She said that the public are being put at risk and she would like to see a move towards using the UN standards and that fireworks is regulated along the same lines as in Europe.

In her opinion the entire manner in which the bill was presented to parliament is unconstitutional; the guild wasn't approached or consulted about the bill before it was tabled.

She said that Section 28(3) of the Act is draconian and ludicrous considering that we are living in a democracy. All the definitions should be redone and she would gladly assist in this process.

In conclusion she pointed out that they were only given a copy of the bill after it had been tabled. However, the list at the back of the bill includes the Guild as a consulted party although they were not consulted.

Although they are separate entities, the TPSA and the Guild are linked by their common interest to ensure that the use and trade of fireworks are controlled, but not too restricted. Ms Kennedy also stated that she was only informed of the hearing by accident and was quite distressed that she nearly missed her opportunity to present.

Discussion
Mr Swart (DP) asked Ms Kennedy whether she had made a written submission to the drafters of the Bill and whether she had other problems with the Bill.

She said that she had not written to the drafters because she was unable to get into contact with the Minister and that she had many more problems with the bill.

Mr Swart told Mr Muller that they would consider his arguments.

Rev Meshoe (ACDP) asked Mr Muller, for clarity on whether he wanted fireworks to be used at any time and on any day.

Mr Muller said that that he is not against the restriction, but does not want the Bill to stipulate that "organised displays" can only take place on certain days of the year.

The Chair asked for more details on the loss of jobs that Mr Muller foresaw.

Mr Muller said that if they can only operate on certain dates then 95% of their business would be lost because most of their income comes from the days in between. An example would be putting on a display for a company which is launching a new product; if it does not fall on the date prescribed by the Bill then it is income lost because they will not be able to put on that display.

Mr Swart asked how the restriction on sale would impact and Mr Muller said that if they can only sell or trade on certain days then once again they will lose income. Mr Muller also said that "sale" in the bill is ambiguous.

Rev Meshoe asked Ms Kennedy whether she thought it appropriate that anybody has access to literature explaining how to make explosives, especially in light of acts of terrorism.

She said that she understood his concerns and that she most definitely would not like to be blown up, but kids are exposed to this type of information in their science classes and the internet. She was aware of the problem, but does not know how it can be overcome, but that this type of information cannot be disallowed.

The Chair requested that she returns at the next meeting because she has made strong statements. The Chair noted that there would be instances where our constitutional rights have to be limited.

Ms Kennedy made one further comment, saying that the Act makes reference to "display goods" and "shop goods". "Shop goods" are defined as items which do not explode violently, but cherry bombs, indian kings and others are cheap goods which are available off the shelves and they do explode violently. This contravenes the Act, but is not being policed. This is what creates the problem for the industry; it gives them a bad name and it offends people. The Chair asked that this be included in her submission.

DENEL submission
Mr Petrus Cloete, safety and health manager at DENEL, was accompanied by Mr Fourie- an explosives expert.

Mr Cloete said that the Bill was an improvement, but seems largely geared towards the commercial industry rather than the arms industry. There seemed to be a great deal of overlapping with the Occupational Health and Safety Act, SAPS and the Labour Department's regulations. Please see the full submission attached.

The Chair asked whether DENEL had been consulted during the drafting of the bill because they are also on this list attached to the Bill.

Mr Cloete said they had not been consulted.

Mr Swart asked whether the Department had made contact with DENEL during the drafting process and whether DENEL made written submissions before the bill was tabled.

Mr Cloete said that they were never formally given a chance to respond to the draft bill.

The Chair expressed his disappointment with the Department for misleading the Committee. He asked how they could possibly have drafted a bill on explosives without consulting DENEL.

Mr Swart said that he was also concerned with the overlapping and that they will need assistance in correcting the situation. The chair said that he wanted all those overlapping regulations withdrawn because there will be definite problems and confusion regarding which Act has the final say. The chair said that the legal team must sit with the various departments so that everyone knows who is responsible for safety regulations and they must make sure that explosives is dealt with by this act only. The chair also said that it looks like they may need to go through the bill from scratch because DENEL was not consulted.

Chamber of Mines submission
Mr van Achterbergh: legal department, started by saying that their written comments were submitted to the Department in which draft amendments were proposed. Apart from the issues raised in their submission, the Chamber was happy with the bill.

Discussion
Mr Van Achterbergh said that he had discussed the latest proposals with Advocate Strydom and that she did not have a problem with the wording of the proposals because she understood their intentions.

Mr Swart asked whether the proposals made by the Chamber made would also address the occupational safety issues raised by DENEL.

Mr Cloete said that they could not answer at the time, but that they would look at the Chamber's proposals and give their answer shortly.

The Chair expressed concern with the many exemptions the Chamber had suggested because the Minister still has to act within that law.

Mr Van Achterbergh said that this power could be qualified.

The Chair then asked whether the Chamber envisaged giving foreigners the same rights as South Africans and Mr Van Achterbergh said that they had many foreigners working for them now and that they did not have a problem with giving them the same rights.

Mr Swart said there will need to be some kind of balance because there may not be a problem in the mining industry, but there may very well be a problem in the arms industry or the pyrotechnics industry. The Chair added that they do not want to discriminate against foreigners, but in light of the events of September 11, there is a need to protect the country.

The Chair also agreed that the overlaps in the legislation are unacceptable.

Animal Anti-Cruelty league submission
Mr Maxworthy (Director) explained that they are the second largest animal welfare organisation in South Africa and that they are affiliated to the RSPCA of the UK. They are an independent organisation although they do work closely with the other animal organisations in South Africa. He also stressed the point that they are a welfare organisation and not a rights organisation.

Discussion
The Chair asked whether they agreed with Clause 33(1)(o) (as raised by the TPSA) as it stands and Mr Du Ploy said they did agree.

Mr E Ferreira (IFP) asked whether the League would support a total ban on days like Guy Fawkes.

Mr Maxworthy said they would not support total prohibitions, but that they advocate control. Prohibitions are difficult to police and if not policed, they are a total waste of time. He said that the Animal Cruelty Act is not policed and that the SAPS do not understand the Act. In South Africa, by definition, animals have as many rights as a chair and this is where the problem lies when trying to enforce the law.

Mr Swart wanted to know what causes the biggest problem for the league, the organised displays or the indiscriminate firework displays?

Mr Maxworthy said that both aspects have huge effects on the animals, but in different ways.

The Chair asked whether the League thought that there would be many job losses if Clause 33(1)(o), as written in the TPSA's submission, was implemented.

Mr Maxworthy said that they were not in a position to answer that question, but that he would ask the industry to work closely with the league so that they can achieve maximum protection for the animals. The Chair then rephrased his question and asked the league how they would feel about the clause if it was implemented and if, for example, 100 jobs were lost as a result. Would they be in support of the section?

Mr Maxworthy said that they would be because animals are very poorly protected in South Africa and something drastic has to happen to change this.

The hearings were adjourned for the day.

Appendix 1:
PUBLIC HEARING: EXPLOSIVES BILL (PARLIAMENT)

PRESENTATION BY THE ANIMAL ANTI-CRUELTY LEAGUE

ON THE 16^TH OF OCTOBER 2002

INTRODUCTION

The Animal Anti-Cruelty League advocates the 5 (five) internationally recognized precepts of Animal Rights:

1. Freedom from hunger and thirst.
2. Freedom from physical discomfort and pain.
3. Freedom from injury and diseases.
4. Freedom from fear and distress.
5. Freedom to conform to essential behavioural patterns.

Humans should always consider their animals, especially when using fireworks. A dog's hearing is five times more sensitive than a human's, while a cat's hearing is even more sensitive than a dog's. With fire crackers being let off, resulting in loud noises, the psyche of animals is tortured.

An animal's hysterical reaction to a fire cracker is induced by the fact that it doesn't comprehend the unfamiliar bang. Fear of an unknown noise is a normal behaviour pattern, but should this fear become excessive, it may lead to abnormal or unacceptable behaviour. Animals, when exposed to these noises, will often act unpredictably as they cannot place and comprehend the sound. They appear terrified, tremble, pant and have dilated pupils. In addition to this, they may appear skittish, nervous, try to hide away and may bite.

Physical injuries to animals occur directly when there is a careless use of crackers by people, such as tossing an ignited cracker and letting a dog or cat run to it. In unfortunate cases, it's plain cruelty as in the case of the dog owner who stuck a lit firecracker into the anus of the dog. The firecracker went off and killed the dog. Just recently we had to put a chameleon to sleep when it was so badly injured as a result of a small firecracker that was placed in its mouth, which ripped open its mouth. There are many such cases.

The physical harm to animals is not always directly caused by the firecrackers themselves, but occurs when the animal attempts to escape from the strange noise. Their reactions may result in physical injury to themselves and others. It may occur indirectly when the animal, in fear, tries to flee the noise and for example, runs into a window pane.

Psychological harm from the noise of especially firecrackers, can cause animals to attack each other and even their owners. Reported cases show that birds in cages break into a frenzy, and that some have died of shock. Some cats and dogs end up roaming the streets as strays because of firecracker-induced disorientation. Animals with a fear of thunder, suffer from similar physical and psychological trauma.

LEGISLATION

Whilst the Animal Anti-Cruelty League is not in favour of the use of fireworks generally, it is not our policy to advocate for total prohibition, (taking into consideration the rights of various ethnic groups and human rights), but rather for the restricted and controlled use of fireworks only.

The Animal Anti-Cruelty League is therefore in favour of the proposed Explosives legislation surrounding the Explosives Bill: Regulation 33(1) (O) - Minister may restrict the number of days for the use and sale of fireworks as well as organized displays.

The biggest problem the Animal Anti-Cruelty League foresees in the enactment of this legislation, however, is the policing of this practice and particularly that of the sale of fireworks, which has in the past, been easily available to the public via many retailers. Furthermore, if penalties imposed for non-compliance with this legislation are not sufficiently harsh, this could weaken the effectiveness of same.

STATISTICS & RECORD KEEPING

Insofar as statistics of animal casualties/strays arising from the use of fireworks at our branches, it is true that no specific records are kept at any of our branches. However, our Durban office has an enormous problem, especially around Diwali.

The Johannesburg branch of the League also does not keep specific record of all firework-related injuries, however, there has been an easing off over the last three years or so, of the number of strays and casualties arising from fireworks. This can be attributed to a number of reasons, for example:

1. It is the League's (and others) policy to lobby throughout the year, against the indiscriminate use of fireworks. In other words, this could be as a result of increased awareness on the part of the public.
2. Given the downswing of the economy, this might also have affected the overall sale of fireworks.

The Cape Town Branch of the League has to deal with firework-related injuries and also with animals that go astray or are lost as a result of disorientation when fireworks explosions occur.

SUMMARY

The Animal Anti-Cruelty League recognizes that both animals and humans have rights. The senses of animals are much more heightened than those of humans. This heightened sensitivity leads to traumatic changes in animal behaviour and result in both physical and psychological injuries.

Whilst the Animal Anti-Cruelty League is not in favour of the use of fireworks generally, it is not our policy to advocate for total prohibition, but rather for the restricted and controlled use of fireworks only. The Animal Anti-Cruelty League is therefore in favour of the proposed Explosives legislation surrounding the Explosives Bill.

The problem the Animal Anti-Cruelty League foresees in the enactment of this legislation, however, is the policing thereof, and particularly that of easy availability of fireworks. Penalties imposed for non-compliance with this legislation should be sufficiently harsh, which will strengthen the effectiveness thereof.

The Animal Anti-Cruelty League would like to thank you once again for allowing us the opportunity to make this presentation.

MR. J. DU PLOOY