The Committee heard submissions from various stakeholders on the Disaster Management Amendment Bill.
The Global Network of Civil Society Organisations for Disaster Reduction (GNDR) raised key issues such as the fact that fifty percent of disaster losses are not recorded, the importance of devolution and placement of the function at a local government level, the essential need that legislative terminology should be clear and unambiguous and it mentioned a few areas in the Act where it is. It noted that training and capacity building were key and noted the regional responsibility of South Africa as the most developed country in the region.
The submission by the National House of Traditional Leaders (NHTL) suggested that a definition for ‘traditional council’ should be provided for in the Bill. It was recommended that the NTHL be one of the institutional role players that should be involved in disaster management
The South African Local Government Association (SALGA) said that it was never consulted by the National Disaster Management Centre (NDMC) and the department during the drafting phase of the Amendment Bill. The Department however said they were consulted. SALGA clarified that it was referring to the funding of this mandate. The Department suggested that this was not a new mandate. SALGA noted the Disaster Management Act already puts some obligations on districts and local municipalities. Nevertheless, in the Amendment Bill there are new functions being given to local government such as the amendment to section 43: ‘Local Municipalities must establish the capacity amongst other things to manage and implement the disaster management function’, this means a new function is being put on local municipalities. The amendment to section 53 of the Act also provides additional functions for municipalities. SALGA pointed out that Section 9 of the Municipal Systems Act has very clear criteria to be met with regard to legislative assignment of functions to Municipalities and one of these is that the Financial and Fiscal Commission (FFC) must assess the financial implications thereof and the financial and physical arrangements. SALGA has not seen such an assessment done as required by the Systems Act, therefore SALGA is very concerned about the financial implications the amendment will have on local municipalities. The Committee agreed that another meeting with the leaders of SALGA and the Department of Cooperative Governance and Traditional Affairs (COGTA) should be held to discuss this concern so that the Bill can move forward.
Global Network of Civil Society Organisations for Disaster Reduction (GNDR) submission
Mr Michael Murphree, GNDR Regional Coordinator, gave a brief background about the GNDR and its history of involvement. What brings the members of GNDR together is a single purpose of enabling civil society to connect globally and speak with a collective voice that drives action to increase the resilience of the most vulnerable.
GNDR noted that fifty percent of disaster losses are not recorded and are unsupported. He mentioned the various types of hazards that the world faces such as environmental, anthropogenic, socio-economic, socio-political, socio ecological and technological hazards.
Many of the proposed amendments GNDR would like to see made to the Amendment Bill have already been addressed by Prof van Niekerk of the African Centre for Disaster Studies. The following suggestion therefore addresses some of the wider conceptual needs that this Committee needs to consider. On the devolution and placement of this function, it is important to recognize that mitigating and managing disaster management risk can only effectively be done at local levels. Creating a policy and legislative framework that devolves authority and decision making ability to empower accountable units is not only cost effective but operationally efficient. It is essential to create a clear and enabling legislative framework that avoids ambiguous non-binding terminology that allows for non-compliance and responsibility avoidance.On the point of regional responsibility he said that as South Africa is the most powerful and developed country in the Southern African region, it has a responsibility to provide leadership and support to its regional partners. This can be done through various mechanisms such as SADC. The Act currently makes no provision for regional engagement and this will increasingly become an issue as the nature of many of the disasters will not be confined to national boundaries. Lastly, there is an urgent need for the government of South Africa to invest in training and capacity building.
Mr K Mileham (DA) asked how the local level will be managed.
Mr Murphree replied that the coordination will be easier to manage at local level as it directly relates to the implementation of disaster management measures. Various other departments and entities will also be more willing to give assistance as it is more centrally located.
Mr M Hlengwa (IFP) referred to the issue raised on language and terminology and asked if there are specific areas in the Bill that are ambiguous.
Mr Murphree replied that the Amendment Bill currently does not have many ambiguous areas specifically but referred to the term ‘hazards’ that should be more clearly defined as it encompasses a number of aspects and is highly important. He supported the move from Disaster Management to Disaster Risk Management as it is in line with changing times. The name of the Act could even change from Disaster Management to Disaster Risk Management.
Mr B Bhanga (DA) asked for further elaboration on capacity and training building.
Mr Murphree responded that capacity building and training is highly important and cannot be emphasized enough. It is most important at local level as the people and important positions must have the training and capacity to implement various risk reduction measures at the grass root level.
National House of Traditional Leaders submission on Disaster Management Amendment Bill
Inkosi Themba Mavundla said that the National House of Traditional Leaders (NHTL) has studied the Bill and deliberated upon it, and the view of the House is that there is a need for the Disaster Management Act to be reviewed.
The issues raised by the House were that Traditional Councils should be defined in the Bill as they are structures which are legally established in terms of the Traditional Leadership and Governance Framework Act and should be consulted by the municipal organs of state in the province when preparing a disaster management plan for the province, and must form part of disaster management structures. With regard to the National Disaster Management Advisory Forum, the House commended the department in involving the House in the appointment of traditional leaders who will serve on the National Disaster Management Forum and coordinate their actions on disaster management issues. Reference was made to section 16 of the Principal Act which relates to communication links with disaster management role players. The House recommended that traditional councils should be one of the institutional role players involved in disaster management, especially for local traditional communities. The House commended the Department for involving the participation of traditional leaders in the advisory forums (Provincial Disaster Management Advisory Forum and Municipal Disaster Management Forum) in section 37 and 51 of the Principal Act.
Mr Hlengwa asked for clarity on municipalities consulting the traditional councils.
Mr Mavundla responded by saying that the traditional council engages with the community and therefore they provide a link of communication between the community and the municipality. They can raise issues on behalf of the community which often feels disempowered.
Mr Bhanga asked why traditional leaders should be included as there are a lot of technical issues to be dealt with.
Mr Mavundla responded quickly by saying that the National Traditional House of Leaders has to be included as it is mentioned in the Traditional Leadership and Governance Act, mentioned in the Constitution and therefore is an organ of state and it is mentioned in Section 81 of the Municipal Structures Act.
South African Local Government Association (SALGA) submission
Ms Lorette Tredoux, SALGA Executive Director: Governance and Intergovernmental Relations, said that they definitely support the suggestion on the devolution of the function to local municipalities. As indicated yesterday by Mr D van Niekerk, a joint study by North West University and SALGA concluded in 2011 found that in terms of managing the risk there is a lack especially at a local level. However, if you look at the Constitution and disaster management, the municipalities do not have executive sovereignty. The Disaster Management currently already puts some obligations on districts and local municipalities. Nevertheless, in the Amendment Bill there are new functions being given too local government such as the amendment to section 43 says that ‘ Local municipalities must establish the capacity amongst other things to manage and implement the disaster management function’, this means that there is a new function put on local municipalities. The amendment to section 53 of the Principal Act also provides additional functions for municipalities. Section 9 of the Municipal Systems Act has very clear criteria to be met with regard to legislative assignment of functions to municipalities and one of these is that the Financial and Fiscal Commission (FFC) must assess the financial implications thereof and the financial and physical arrangements. SALGA has not seen such an assessment done as required by the Systems Act, therefore SALGA is very concerned about the financial implications the amendment will have on local municipalities.
In the Memorandum of Objects accompanying the Bill it states that it will be funded by grants, equitable share and other funding. Apparently the equitable share does not have a component for disaster management and this was confirmed by the Chief Director of the National Treasury yesterday. The grants are mostly conditional grants and this is concerning as these grants on disaster management only relate to when a disaster occurs and is usually very slow in responding. It has also been widely noted that the equitable shares of some municipalities have held back fifty percent in terms of the payment that was due to be made on the March 20th which has serious implications on existing service delivery especially basic services. Therefore, if you put an additional function on municipalities without providing for the funding and how it will take place, this is a very big worry. In terms of devolution it is said that ‘funding must follow the function’ and SALGA believes that the Bill must not be proceeded with until the issue of funding has been dealt with and committed to local government. Otherwise we will once again end up with an unfunded mandate.
Issues raised by SALGA in previous discussions with the Committee include the placement of functions in municipalities. This should rather be left up to the municipalities to decide where it wants to place the function as the Systems Act says that the Council must have its organizational structure and SALGA was of the opinion that it might not be a ‘one size fits all approach’. There was a lot of discussion regarding ‘may’ and ‘must’. The only ‘may’ picked up in the Amendment Bill was the choice of the local municipality and whether they would like to establish a Disaster Management Centre. Therefore, it reads that municipalities have an option to establish a Centre but not where the function is placed. The ‘may’ maybe appropriate as we know that a lot of municipalities have shared services and for an example if one looks at a district, the call centre is based on the principle of shared services. If one forces municipalities to establish a Centre, then once you want to create a shared service in terms of the current legislation, the process in section 78 might need to be followed and one needs to enter into service level agreements which is a very expensive governance model for municipalities. Whereas, if one leaves it in a accordance to the ‘may’ that is currently there, service level agreements still have to be concluded but their own governance structures can be determined without the strict compliance with the Systems Act. This is because a shared service is not deemed an internal service in terms of the service delivery options available to municipalities.
In terms of the definitions, the amendment to section 52 of the Principal Act refers to ‘Preparation of disaster management plans by Municipal [entities] organs of state other than municipalities’. One does not understand the amendment from entities to municipal organs of state because the entities are the only other ‘form’ of local government. Even if the Municipality establishes a municipal entity the Municipality still remains responsible for delivering that function and there are concerns as to the cross implications and costs that it might have. If a Municipality is responsible for a disaster management plan it will cover the services itself or that it will provide services through any external entity. Therefore, there is no need to distinguish between the Municipal entities and the municipalities itself.
Mr Bhanga said that we must be helped by the legal experts or advisors about the issue of ‘may’ and ‘must’. It has been argued by other departments that when ‘may’ is used in legislation that it is still an instruction and therefore you do not have to include a ‘must’. He suggested that the legal experts explain the use and meaning of ‘may’ and ‘must’ before concluding the amendment of the Bill. There is also a recurrent theme relating to the placement of the function in local government and he asked how suitable is this location in the context of this legislation and what the view of SALGA is on the issue.
Mr Hlengwa agreed with Mr Bhanga’s suggestion on getting legal clarification on the ‘may’ and ‘must’ issue as last year the Chief Justice said that ‘may’ means ‘must’. He asked what the process of interaction between SALGA and the Department is like in terms of this Bill because SALGA states that it has consulted them. Halfway through their submission, they said that the Bill should not be proceeded with until such time that the issue of finance have been dealt with. He asked when the question of funding will be resolved because SALGA said they only spoke to the Chief Director yesterday. He was concerned about the length of time it might take to get it resolved.
Mr E Mthethwa (ANC) said that he understands the issue raised on grants and equitable shares but picked up a contradiction in the SALGA submission where they indicate resistance to the Bill totally. He is raising this issue because they say first that they have an issue with location and then talk about the establishment of such centres being an unfunded mandate. He suggested that the Committee has a debate with the Executive Officer of SALGA on this in another meeting to get to the underlying issues.
The Chairperson said that the issue of ‘may’ and ‘must’ is a serious one that needs to be clarified.
Mr M Mapulane (ANC) said he is concerned by the submission by SALGA that there has been no consultation with SALGA. He referred to section 9 of the Municipal Systems Act which talks about the assignment of powers to local government and that a cabinet member or deputy minister initiates the assignment of function by way of national legislation to municipalities. Before the assignment is introduced, the Minister of Finance is consulted. He was very concerned as to whether this process has been followed and its implications for the Committee proceeding with the Bill.
Mr Mileham said to Mr Mthethwa that stakeholders are allowed to have differences of opinion with each other and this is part of the reason why we sit as a Committee to hear those differences of opinion and come to a reasoned outcome that can be put forward to Parliament. He did not hear SALGA reject the Bill; but rather it had concerns. He agrees with those concerns particularly the funding aspect of it. If we look at local municipalities many of them do not have the capacity, they lack financial resources and rely on financial support from National Treasury to provide certain functions. If the equitable share does not provide for disaster management, where will that money come from? The point is justly made that there are conditional grants available for disaster management but this usually comes by way of disaster relief after the fact rather than for disaster risk reduction as it provides no resources for capacity building and the like. He would like COGTA’s input on how they would involve the capacities of municipalities that are financially constrained. Secondly, in terms of the schedules in the Constitution, disaster management is a national and provincial shared competency and is not a local competency. In Schedule 4 part B it refers to firefighting services and that is the only reference to disaster management or a disaster management function for local municipalities. With that in mind he asked COGTA whether the Bill would imply a need for a constitutional amendment to Schedule 4 of the Constitution to delegate some of this function or if this function can be delegated through legislative assignment and how the funding will follow that function.
Ms Tredoux responded that with regard to the ‘may’ and ‘must’ issue, SALGA supports the Bill. The problem lies with the funding. On the issue of consultation there has been consultation on the merits of the Bill such as the devolution and structure. As indicated section 9 of the Municipal Systems Act, it provides that in terms of a legislative assignment, the FFC must do an assessment. SALGA has not seen what the financial implications are and has not received information as to how it will be funded. In the accompanying Memorandum to the Bill it states that the current financial fiscal regime is adequate. She responded to Mr Bhanga’s question that, with regard to the location, if this becomes a local government function, it has to be addressed by the Integrated Development Plan (IDP). Therefore the location within the Municipality will not be a challenge because the IDP includes plans from all directorates by the way it is positioned in the Municipality.
Ms Ane Bruwer, COGTA Chief Director: Legislation Policy and Compliance Management (LPCM), said that she was surprised to hear that SALGA was saying there was “no consultation”. Fortunately SALGA has clarified that now as it was actually part of the committee that analysed the public comments and joint workshops were held with SALGA to introduce the proposed amendments from various provinces, and even sent a letter that they support some of the aspects of the Bill. It specifically refers to the devolution of the function to the municipalities and this has never been an issue that has been discussed or raised by SALGA. She conceded that there are numerous debates on funding as it is a contentious issue and they have to work with existing monies as there is no new money to support new initiatives. COGTA has had various consultations with National Treasury and it has a letter from the FFC supporting the Amendment Bill on the Disaster Management Act because COGTA was aware of the implications. After discussions with National Treasury, COGTA agreed that this is not a new function that has been given to local government because in the Principal Act every organ of state and every municipality are already required to develop a disaster management plan. What the department has tried to put emphasis on the Amendment Bill is that municipalities have the capacity and must ensure that they have a disaster management plan available and implement it so that it is taken seriously. This is no new responsibility on local government to develop a disaster management plan and this should already be part of the operational business. From that perspective it is not a new function but the problem lies with the implementation thereof. Support will be welcomed from National Treasury to come up with financial support to local municipalities and they have committed to come up with some frameworks. This is not necessarily directly related to finance as this could not be raised in the Bill because if finance is involved, it becomes a money Bill and needs to be addressed by the Minister of Finance. In the consultations, SALGA was also represented there. With regard to the other issue raised by SALGA is that they ‘may’ establish a Centre and it must be in agreement with the district and take advice from Treasury. Funding only will follow the function after that agreement has been reached. That is the clear guidelines of the process to be followed.
The Chairperson said that he appreciated that some work has been done on the matter regarding funding as it was a recurrent issue. However, finance cannot be finalized right now as there needs to be more discussion by SALGA and they may set up another meeting at a future date.
Mr Mileham referred to a comment made by COGTA and asked if the Committee could have sight of the correspondence from Treasury and the FFC as it could give insight into the way they see this funding.
The Chairperson said that the letter might be general and they should not bank on it but will be made available. Not too much expectation should be taken on that. However, the engagements have been going on and everyone should support that.
Mr Mthethwa said that an additional meeting with SALGA is needed as the contradictions that are happening are not assisting the Committee. Mr Hlengwa raised a very important issue about consultation. The first submission by SALGA said that there was no consultation and therefore one has to assume that they have rejected the Bill. The executive of SALGA should be brought in to clarify the matter of funding.
Mr Mileham on a point of order said that that is wrong. If a Bill is fundamentally flawed, it is part of the Committee’s oversight function to intervene and identify the problem and refer it back for consultation or addressing what is incorrect. It is procedurally correct that the Committee determines if the Bill has followed the correct processes and it should hand it back to the department to rectify it, if not. It is therefore incumbent on the Chairperson to say that it needs to be considered if it has been correctly dealt with.
The Chairperson said that the point should be noted but it is not a point of order.
Mr Mileham disagreed and said that it is a point of order.
Mr A Mudau (ANC) referred to the comment made by Mr Mthethwa on setting up another meeting with SALGA as the Bill might not have followed proper procedure. SALGA in their submission rejected certain parts of the Bill due to this and this means that the Bill should be sent back to the department. He suggested that they have the meeting and everything will be sorted out.
Mr Mapulane said that there are many recurrent issues and that the Committee should be alive to them. When SALGA made their submission everyone got the impression that SALGA never engaged in the consultation, which was later clarified. SALGA could have raised section 9 of the Municipal Systems Act so that the department could have been alerted to the wording in the Bill which suggests that it is a new assignment, as if it is a new assignment, it needs to follow section 9 with regard to the FFC. He supported the suggestion of a meeting as it is clear that SALGA and the department are not on the same wavelength. Already municipalities were expected to do certain things in terms of the Principal Act but that was limited to the districts as the Act talks about ‘may’ where there is a service level agreement with the district. Therefore there is some form of expectation and the leadership of SALGA and the department should be engaged as a matter of urgency so that this procedural hurdle can be passed.
The Chairperson suggested that anyone who wants to make an additional point should do so in writing. There will be a meeting with SALGA and the Department.
Mr Bhanga said that SALGA is a stakeholder and the Committee should consider its views as well even if the views are incorrect and the Committee is rushing to reach a conclusion. Whilst a meeting is being set up the Committee can follow the parliamentary procedures that are allowed and can consult the state law advisor. He suggested that usually in other committees, the department reflects on all the submissions and gets back to the Committee on its reflections and the department should follow this procedure.
The Chairperson said that in this meeting the Committee is not concluding on anything and the Committee is not giving SALGA special treatment but rather indicating that a meeting will be set up with SALGA and the Department which will, in the bigger picture, take the process forward.
Committee Programme 2015
The Committee considered the Committee Programme for members to give input on amendments to the programme.
Mr Mileham said that he does not have any changes to the amendments, bar one as it is generally a good programme. The one item that is way too early in the programme is the SALGA briefing on the readiness/plan of action for new councillors on 25 August 2015 considering that they will only be elected at the earliest on 8 May 2016. This should rather be pushed to 2016 than dealing with it in the 2015 programme and being locked into a programme where no emergency issues can be raised. Two items that he did not see on the programme was the cutting of electricity to municipalities which should be included in the programme and this should be a joint sitting with the Portfolio Committee on Public Enterprises and with Treasury as it has enormous implications for those municipalities. The other items not seen on the programme was on the Mogalakwena and Modimolle protests both of which were promised to this Committee in November last year and should be included in the programme.
Mr Mthethwa requested that the secretary indicate what was shifted from the original programme so that the committee can focus on that first.
The Chairperson said that the amendments have taken place over many meetings and that he expects at the end of this meeting there needs to be some form of acceptance of a programme to be followed.
Mr Bhanga said that the programme be finalized once and for all and the management team should put dates on it. The Mogalakwena protests must be noted today as it is not the first time that it has been mentioned in this committee. The second issue related to the Minister as he said that municipalities should be called in and the committee is not doing that at the moment. Not calling in municipalities means future problems will arise as a result. The Committee should also invite critical municipalities to table their concerns. There is also an omission in the programme of the Minister coming in to give a report back.
Mr Mthethwa said that the Minister briefed the Committee on his intention to deal with the agency of infrastructure of COGTA and wanted to make it part of the department as it was a component on its own. He asked for a briefing on that by the Agency about some of their activities. He asked for briefings by the various department entities on their Annual Performance Plans (APP) if possible. The programme should include a discussion with the NHTL as the Committee has committed itself to it and they should also provide a briefing on their APP and on issues that affect them. He was glad though that the discussion on the Integrated Urban Development Framework is scheduled for 9 May 2015. It was suggested that in every quarter if possible the Committee could engage on topical issues that affect society and it should focus on migration and settlement patterns and not about the framework as it is already there.
Mr Hlengwa said that the Committee has already called in departments and agrees that municipalities that are not performing be called in instead to table there matters because the lack of irregular expenditure and of accountability is on the rise. Briefings are nice but do not have the impact that calling in municipalities to discuss issues would have.
Mr Mthethwa said that he does not really have a problem with the Bill but if a meeting date is shifted all the members should be noted about it.
The Chairperson said that the comments made have been noted and the next management committee meeting will finalize the dates and amendments to the programme will be included and he wants all the members to agree that it will be final.
Mr Mileham said that on an issue of clarity he wrote to Mr Mdakane in November 2014 on what authorizes a ‘management committee’ of this committee and there is nothing in the Rules of Parliament that permits such a body. The programme should be discussed by the committee as a whole and he has received no response to it. He therefore did not agree that it be left to a management committee to decide as there is no statutory provision enabling it to do so. It seems that it is a quasi-judicial body that has appointed itself as the Committee itself has never elected that body.
The Chairperson asked if a special meeting should be called to resolve that issue. He asked if Mr Mileham feels that the Committee is not ready to finalize the programme.
Mr Mileham responded that he agrees that a special meeting be called and that the Committee is not ready to finalize the programme. He felt that the Committee is locking itself into something that is far too rigid as Mr Bhanga, Mr Hlengwa and himself has raised. There are often times when emergency issues need to be dealt with and having the programme too rigid will provide no flexibility to deal with these emergency issues.
Mr Bhanga said that the Committee needs to talk about these things and resolve it. The Committee researcher and content advisors should advise the committee on key critical issues that should be focused on. These people need to do their job by looking into the programme and see whether the programme responds to the current challenges facing local government and develop a programme to be adopted once and for all. He agreed that it should not be finalized today but at the beginning of the next meeting.
Mr Mudau suggested that the programme get adopted today as it is better to have structure. Emergency issues will always pop up and affect the programme causing one to postpone other meetings.
The Chairperson said that the programme is being adopted subject to emergency issues being raised as the programme unfolds.
Mr Hlengwa suggested about emergency issues that the Committee makes a decision today that if these do arise, the Committee will hold a meeting on a Wednesday as well because it might end up disrupting briefings by stakeholders on the Tuesday by postponing these.
The Chairperson asked whether the Committee agreed.
A very strong majority of the Committee agreed to it.
Mr Bhanga did however not agree with this.
The Chairperson said that this is the only viable option considering all the input and suggestions made by members.
[Also present at the meeting were: Mr K Kekana (NHTL); Mr J Deyssel representing the National Disaster Management Centre (NDMC) and the department, Dr Johan Minnie, President of the Disaster Management Institute of South Africa (DMISA)]
The meeting was adjourned.
- Global Network of Civil Society Organisations for Disaster Reduction Inputs into Draft Disaster Management Amendment Bill (2015)
- National House of Traditional Leaders Inputs into Draft Disaster Management Amendment Bill (2015)
- SALGA Inputs into Draft Disaster Management Amendment Bill
- SALGA Local Government Inputs into Draft Disaster Management Amendment Bill (2015)