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SAFETY AND SECURITY PORTFOLIO COMMITTEE
23 October 2002
EXPLOSIVES BILL: IDELIBERATIONS
Chairperson: Mr ME George (ANC)
Documents handed out:
Explosives Bill [B43-2002]
Summary of Submissions by the Secretariat of Safety and Security
The Secretariat of Safety and Security responded to the submissions made during the public hearings on the Explosives Bill. The Committee had heard submissions from, inter alia, the TPSA, DENEL, the Pyrotechnics Guild, the Chamber of Mines, the Departments of Labour and Minerals and Energy Affairs. The Secretariat outlined the proposed amendments to the Bill, in line with various recommendations, working together with the State Law Advisors.
Submission by TPSA
Mr Armichand Soman started with the issues raised by TPSA. On the definitions issue, the Secretariat felt that they could not retain the current definitions as requested by the TPSA. The Secretariat felt that new definitions were necessary because of the gaps in the current definitions in the Act. Regarding "fireworks", there was a need expressed for a clear definition on "shop goods". Mr Soman said that Adv Strydom was working on a definition.
The TPSA also raised an issue on the transporting explosives; Mr Soman said that the Secretariat feels that Clause 10(2) adequately provides for this issue. The matter could be interrogated later if the Committee felt the need.
The Dept of Labour submitted that explosives should be classified. The Secretariat felt that this classification could be difficult because there is more than one standard of classification. That is, the United Nations and the South African Bureau of Standards. It may not be possible to bring the classification in line with all the standards.
Adv Strydom (State Law Advisor) said that the classification would be in the first chapter of the regulations and that the UN standard of classification would be used to bring the classification on par with the international standard.
Mr Swart (DP) asked whether the classification should be in an appendix or in the bill itself.
Adv Strydom said that the classification should not be in the Bill itself because then the law would have to be amended every time the classification changes and the classification will change all the time due to technical advances, amongst other things.
The Chair then asked when the Committee would receive a definition for "fireworks" because it is urgent that the term is defined soon.
Adv Strydom said that on the internet there are more than 6000 definitions; she intended having a definition by 25 October, but she needed to go through all the information which she has received regarding the definition.
Mr Swart then raised the issue that not only must fireworks be defined in terms of "shop goods" and "organised displays", but it must also be defined in relation to "pyrotechnics".
Mr Soman said that the definition will be based on further consultation with the Chief Inspector of Explosives and that they intend to have a definition by 25 October.
With respect to Clause 14(4), as pointed out by the TPSA, the Secretariat felt that most of the pyrotechnic work needs onsite mixing. No blanket license will be given, but once it is determined that the pyrotechnician- undertaking the mixing- is competent, then the pyrotechnician will be given a license for a period so that they do not have to apply for a license every week. Clause 14(4) will not be changed.
With respect to Clause 33 (1)(o), the TPSA felt that "including" should be changed to "excluding".
Mr Swart said that this again boils down to looking at the difference between an indiscriminate fireworks display and an organised fireworks display. He agreed with the proposal by the TPSA. The Chair asked for the other parties' points of view.
Mr Ferreira (IFP) said that he agreed with Mr Swart.
The ANC speaker said that they felt that the fireworks business should be able to go on normally.
Rev Meshoe (ACDP) asked what difference "excluding" would make.
The Chair then asked whether they agreed that the ANC would get back to the Committee on the "including/excluding" issue. The Chair asked Adv Strydom what their intention was when they worded the clause.
She said that it seemed to be a typing error because the idea, from the start, was to exclude pyrotechnics from this ambit. It was thus agreed that "excluding" would replace "including" in clause 33(1)(o).
Submission by DENEL
Mr Soman noted that DENEL raised the problem with the overlapping legislation in the Occupational Health and Safety Act, the Explosives Act and the Bill. They drafted a new versio of the Bill, which was drawn up in conjunction with the state law advisors. Clause 2 deals with the application of the Act and deals with matters where the Act does not apply. The suggestion was the insertion of Clause 2(d) and the insertion of the new Clause 3. All agreed with these insertions.
Mr Swart asked the State Law Advisor, Mr Hoon, whether the Department saw the amendments and whether the amendments would solve all the problems. Mr Hoon said that he was not in a position to answer that question.
Mr Soman noted that Adv Strydom had said that the Department of Mineral and Energy Affairs knew about these amendments and that the amendments should solve the problems which were raised. The grey areas were a big concern, but with the insertion of subclause 3(a) and (b) the problems were solved.
Mr Soman then went on to say that the problems DENEL raised with the definitions were unsubstantiated. The SLA said that if it is not necessary to define something then it should not be defined because defining it would serve no purpose.
Chair asked if this suited everyone and all said Members agreed.
With respect to Clause 5, Mr Soman said that this had been addressed in terms of the new draft which had been presented. The Chair said that it seemed as if DENEL was trying to close the scope of the police, while they were trying to open it.
On Clause 8, Ms A Van Wyk (UDM) said that the heading should not be changed to include "forfeited" because the clause also deals with "expired" explosives.
Adv Strydom also pointed out that Clause 7 already deals with forfeiture and that Clause 8 deals with the destruction of explosives. Everyone agreed that these clauses would remain unchanged.
All Members were happy with Clause 8(1) and there was no further discussion.
The Chairperson asked how the State Law Advisor had dealt with Clause 8(3), the Chair asked the SLA to deal with it. The SLA read the new wording. The old wording put an unreasonable burden on the owner of explosives, which were destroyed beyond his control. Everyone had previously agreed that Clause 8(3) had to be changed. Everyone seemed happy with the new wording, but Mr Swart asked for permission to go over the wording in his own time and to raise any problems with the Committee at the next meeting, if he had any.
The chair agreed to this; he too felt that the wording was still slightly problematic, but at least the principle that they were after had been more clearly established and was correct.
On Clause 9(3) it was decided that a court order would not be necessary for bodily samples to be taken.
Ms Van Wyk also made the point that it would only be in exceptional circumstances anyway that bodily samples would be taken.
Mr Swart agreed with her.
The Chair also agreed. The clause may be unconstitutional, but it is a cruel world with crazy people bombing places like restaurants and nightclubs. It would therefore be ridiculous to have to wait on a court to give permission first before bodily samples may be taken which may help towards finding the person/s responsible for the bombing.
With respect to Clause 10(6), Mr Swart said that it made no sense in this part of the chapter and that it did not fit in there. The SLA said that it would be easy to move the subclause to Clause 28 where it would fit in with the rest of the clause.
Adv Strydom said that Clauses 12, 13, 15 and 17 are not unclear.
The Chair said that he thought that DENEL were looking for a way out. He agreed with Adv Strydom and said that he did not understand why DENEL wanted these clauses changed.
Mr Swart said that he saw no problem with leaving the clauses as is and everyone agreed that they would not be changed.
Mr Soman said that Clause 15(1) was very broad and the SLA said that admittedly this was dealt with in Clause 14. Mr Swart said that manufacturers would have a permit to manufacture explosives and so they would be included in Clause 15(1), but because they have permits it would not create a problem for manufacturers.
Adv Strydom said that Mr Cloete from DENEL had wanted "used for blasting" included in the clause, but in her opinion this would be superfluous. The Chair agreed.
With respect to Clause 18, DENEL had indicated that their clients may want their explosives marked in a certain way. Adv Strydom said she had indicated that the Bill allows for exemptions in certain cases, but that it was imperative that SAPS could investigate and identify explosives through the markings on them.
Adv Strydom said that DENEL's comment here seems inappropriate because this clause talks about the packaging of explosives and not the markings on the explosives. The Chair asked whether DENEL was being offside again.
On Clause 20, DENEL raised the issue of their trade secrets.
Adv Strydom said that what is of utmost importance is the safety and security of the public and not the keeping of trade secrets. She also said that besides that, the forensic labs are secure environments.
The Chair said that DENEL needs to be told in no uncertain terms that they cannot have secrets from the police and that their trade secrets are not going to be kept at the expense of the safety of the public.
Mr Swart added that a specimen is a completed product anyway.
DENEL argued that Clause 25 creates a presumption which is unconstitutional. This presumption is borrowed from the Firearms Control Act.
Mr Ferreira said that the original presumption, on which this one is based, was unconstitutional because it created the presumption that innocent people could be found guilty. That presumption was changed. He commented that presumptions are always touchy subjects, but that the one created in Clause 25 was very fair.
Mr Swart said that he was more conservative when it comes to presumptions. With this clause, they are attempting to ensure that people who are in control of premises, as reasonable persons, do not contravene this Act. He said that he could not understand why the Clause needs to mention "ownership" too because the owner would be the one in control of the premises and so wouldn't the same result be achieved if only people in control of premises was mentioned.
Ms Van Wyk disagreed with Mr Swart. She said that if one looked at organised crime, very often the owner of the property will allow others to stay there while he is away. The owner orchestrates the crimes being perpetrated from the premises, but is not in control of the premises and the intention of the legislation is to catch the perpetrators as well as the organiser of the crime, being the owner. Mr Swart conceded and all agreed that the clause's wording would not be changed.
Clause 28(3) creates an offence. Mr Soman said that he was not quite sure what DENEL's problem with the clause is.
Mr Swart said that the clause creates an offence for everyone. There should be an exclusion in the clause so that persons who are legally entitled to carry such information may do so without being in contravention of this Act.
Mr Swart suggested that this is done by adding something along the lines of, "with a permit"
Adv Strydom noted Mr Swart's concern, but she would prefer to limit the clause with something along the lines of, "with intent to commit a crime".
Ms Van Wyk said that the clause should not be over-analysed. If DENEL were to have in their possession this type of information, it would be acceptable, but if pyrotechnicians had explosives literature, which could cause loss of life, in their possession, then that would be unacceptable because there is no reason for them to have this kind of information.
The ANC thought that the clause should be left as it is.
Mr Swart said that this clause, which is all-inclusive should not be passed. Intent needs to be defined and as it stands, the clause is unpoliceable.
Someone asked whether this clause was to be read in isolation or whether it could be read in conjunction with another clause.
Ms Van Wyk said that this clause should be read with Clause 28(1), which sets out conditions when one can or cannot be in possession of this type of information.
Clause 28(3) is clear as it stands. Mr Swart said that he agreed with what everyone said, but that the clause was sloppy and as it stands it makes even DENEL guilty of a crime for carrying this type of information.
The SLA said that for legal certainty they could put "manufacturers" in the clause. The ANC then suggested that Mr Swart puts the clause in terms that he would be happy with and present it to the Committee for deliberation.
Mr Soman then suggested that it may be appropriate to add "it is an offence for anyone who is not authorised in terms of the Act toâ€¦"
Mr Swart liked this suggestion and said that if he were to rewrite the clause then he would steal Mr Soman's wording.
The Chair said that just because someone is authorised does not necessarily make that person trustworthy and the suggested rephrasing was quite dangerous.
Mr Kgauwe (ANC) agreed with the Chair.
Adv Strydom was also not happy with Mr Soman's suggestion. There was a possibility that someone who works for DENEL, for instance, could carry this information in his personal capacity and then he would be covered by the bill when he should not be.
Ms Van Wyk firmly said that the clause is correct as it is. The Clause was written in the context of the whole bill and could not be read out of context. Mr Swart said that the clause would not make him vote against the bill, but that he still thought it was sloppy. The Chair said that the Clause would be retained as is.
With respect to Clause 29, DENEL said that the penalties were too harsh and gave as an example in their submission the café owner who may go to jail if a packet of crackers is found in his shop. Mr Soman said that maximum penalties are provided for without interfering with the discretion of the courts to impose lesser sentences depending on circumstances. Mr Swart said that he was happy with the clause as it was, but wanted to know whether they would be inserting what the maximum fine would be because the bill does not do that.
The SLA said that there was another piece of legislation which would provide for that. He also said that Clause 29(1)(a) does not give the option of a fine because they were under the impression that this was what the Department wanted.
There was general consensus that the proposal made by DENEL on Clause 30(1) was unnecessary.
Submission by Chamber of Mines
Mr Soman went on to address the issues raised by the SA Chamber of Mines.
The first issue was the distinction to be made between the security in the country and the safe use of explosives. Mr Soman said that the revised draft of Clause 2 addresses this issue.
There were lengthy discussions around Clause 15(2). The Chair said that he did not understand why the bill should include "juristic persons".
Ms Van Wyk said that she could see why they would want to include "juristic person". If, for example, DENEL as a company wanted to test an explosive device, it would need a license/permit to do so. The actual person who was pushing the button to set off that device would also need a license/permit.
Mr Swart said that the Committee needed to think about the amount of licenses and permits which would be issued. He asked whether it meant that if a film crew came from Hollywood and brought its own pyrotechnician, that the technician would need to get a permit/ license before operating any fireworks.
Ms Van Wyk agreed with Mr Swart and gave as an example the Dunhill Symphony of Fire. International performers may see these duties as too onerous and then take their business elsewhere.
The chair pointed out that these are special events. Adv Strydom said that in those circumstances certain exemptions would apply.
Ms Van Wyk agreed with Adv Strydom and then asked whether the foreigner would then have to get a permit from the Department of Home affairs. If this is the case then should there not be a clause in the Bill covering such a situation to ensure co-operation between the Departments?
Adv Strydom said that a foreign pyrotechician would have to get a permit for whatever he wants to do in SA and so the Departments cannot act in isolation any way. It was agreed by the Committee that it is not necessary for "juristic persons" to be included in the clause.
With regard to the question of setting up a committee to advise the Minister, the Chair said that this is unnecessary and that the Chamber cannot tell the Minister what committees must be set up. He asked what the function of this committee would be. They are dealing with the safety and security of the country and that there therefore has to be certainty. This Department is not like other Departments, such as Education.
Adv Strydom said that she could see the need for this committee because it would serve to inform the Minister of grey areas where occupational safety may affect national safety.
Ms Van Wyk then expressed her concern about Adv Strydom's admission that there may be a need for this committee. If this need exists, why was provision not made for this committee in the Bill from the start. She also asked whether this meant that there were things not in the Bill which should be there.
Rev Meshoe added that the Min already has the power to establish a committee if the need arises, so it would be redundant to make provision for this committee in the Bill. The Chair said that the status quo should be retained.
The preamble issue raised by the Chamber seemed to be a non-issue because there is no preamble in the latest draft bill.
With regard to Clause 21, Mr Soman said that the Chamber's proposals were not consistent with the current draft.
It was agreed that the Animal Anti Cruelty League did not raise anything of major significance, to be addressed.
Mr Soman's address on the Department of Labour's submission prompted the Chair to offer his opinion that some of the issues which the DL raised were irrelevant and that the manner in which they raised their issues made it seem as if they were entering a turf war. The Committee agreed that all the clauses had already been addressed and would not be discussed again.
The Committee also agreed that the issues raised by the Department of Minerals and Energy were similar to that of Labour and so these were also not repeated.
Submission by the SA Fireworks Guild
Mr Soman only addressed the definitions issue raised by the SA Fireworks Guild. The definitions proposed were no different to the definitions in the Bill; the implication being that the definitions would not be changed.
The Chairperson asked the State Law Advisor to go back to the drawing board to rewrite, in legal terms, what the Committee agreed to.
The meeting was adjourned.
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