Performing Animals Protection Amendment Bill [B9-2015]: Parliamentary Legal Advisor briefing, Departmental response to public consultation inputs, in presence of Deputy Minister

Agriculture, Forestry and Fisheries

26 May 2015
Chairperson: Ms M Semenya (ANC)
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Meeting Summary

The Parliamentary Legal Advisor briefed the Committee on the amendments being proposed by way of the Performing Animals Protection Amendment Bill, amending the principal Act (PAPA), since sections 2 and 3 had been declared unconstitutional and Parliament had been required to pass amending legislation. The Legal Parliamentary Legal Advisors suggested that a purpose clause was needed, in view of apparent conflict between the long title of the principal Act and that of the Bill; the Act had referred to the training of animals, and to the use of "dogs" for safeguarding. Certain dogs were excluded from the requirement for licensing, such as those used in police or security work. It had been noted that the licencing of dogs under this Bill might conflict with the licensing of dogs function that resided in local government, and Members had asked how the Bill was to treat other animals used for safeguarding apart from dogs. It was suggested that there not be separate mention of dogs but the full definition of animal be maintained. It would be necessary for the Department of Agriculture, Forestry and Fisheries (DAFF) to clarify its intention on use of animals in general for safeguarding. It was clarified that the NSPCA, although involved in the licensing process at one point, could not continue to be, as this had been specified as an executive function. It was noted that although the term “animal scientist” was not defined, it was probably wide enough. The appointment of public servants or experts to assist in the licensing process should be amplified. The Natural Scientific Professions Act listed “animal science” as a field covered by that Act. The Collins English dictionary defined a scientist as a person who studies or practices any of the sciences or who uses scientific methods.  DAFF had said, in its response to this query, that persons who had studied animal welfare were all included in the term “animal science", without any specifications or restrictions, so the term was all-encompassing and relevant. She would suggest that it could be supported. In fact it opened up the scope wide enough without any discriminatory or unfair arbitrary exclusions or preferences towards any specific profession in animal welfare or animal sciences. Both "animal scientist" and "veterinarian" were extensive and broad without any unfair restrictions." The advisors commented on the implementation of the new sections 3D to 3H and suggested changes for greater clarity. They amplified that the word "may" under the proposed new section 3H(3) was deliberate to allow for discretion.

The DAFF then gave a detailed explanation of its responses to the points raised in the public submissions process, noting that there were quite a number of changes between the original draft of the Bill and the version before the Committee now. Comments were categorised into five broad areas. It was explained that although the DAFF believed that a holistic change to animal welfare was needed it had, considering the short time frames available for the changes demanded by the Constitutional Court ruling, decided to focus on that first and then embark on a complete repeal and replacement of the PAPA and the Animal Protection Act (APA) by one consolidate Animal Welfare Act. Meantime the current concerns raised by the Parliamentary Legal Advisors and other comments were outlined. The comments detailed the Department's viewpoints on the reference to animal scientists, the inclusion of references to Animal Welfare Organisations in issuing of licences, and why this could not be done, but did say that it would be willing to consider a consultation process. It was prepared to consider other wording around the purpose. It was suggested that the definition of animal scientist be amended in this Bill,   definition of "animal scientist" in this Bill, to provide more clarity and address the concerns, and that the definition of an animal, although not necessary, should also be included in the Bill for greater clarity. It was also confirmed that the NLO would be designated in writing, and the names published on the DAFF website, 30 days was the time for making a decision on applications, that new draft regulations were being discussed as the old ones under sections 2 and 3 would be repealed, that coordination would take place centrally for the licensing process but the actual licenses issued in the provinces. It was considered impractical to insist upon police clearances, and to allow licenses to be valid only in the district where issued. Requests for exemption of guard dogs were not supported, as they were not presently exempt. However, the movement permit for guard dogs was being discussed, as significant logistical difficulties had been cited.

A DA Member and the Deputy Minister exchanged heated words about the progress of this Bill and the replacement legislation, with the DA saying that had the Committee's concerns being considered properly at the outset, this situation would not have arisen. The Deputy Minister assured the Committee of his and the Department's full respect for the Committee and did not take kindly to being "cautioned" to do its work in a certain way by the Member. Members asked what exactly had changed in the versions, whether provincial involvement would affect the tagging of the Bill, how international circuses would apply, and when the Animal Welfare Bill was likely to be brought to Parliament. They debated the "may" and "must" provisions and the options open to the Department for amendments, and how in practice the licensing and delegation would work. Further discussions took place on the purpose of the Bill. Members asked about the validity periods and how "dogs" would be defined in the future Bill.

The Committee adopted minutes of meetings on 14 and 28 April and 8, 12, and 15 May. They noted a request to nominate candidates to the Land Bank Board and would find out if the closing date had been extended, and an invitation to Members to attend the South African Poultry Association Conference.

Meeting report

Performing Animals Protection Amendment Bill: Parliamentary Legal Advisor's briefing
Ms Phumelele Ngema, Parliamentary Legal Advisor, said that when preparing this briefing she had looked at the Bill, the matters referred to the Committee and its response, and comments and Departmental responses on the public consultation process, submitted by the Department of Agriculture, Forestry and Fisheries (DAFF or the Department).

This Bill sought to amend the principal Act, The Protection of Animals Act No 24 of 1935. This Act stated that it would regulate “the exhibition and training of performing animals” and “the use of dogs for safeguarding”. Therefore there were two intentions behind the Principle Act. The first intention dealt with any kind of "animal", requiring its handler to acquire a license in order for it to perform or to be trained to perform at an exhibition. The other intention for the Act was to regulate licenses for "dogs" (only) that were used to safeguard. So the definition of an ‘animal’ read together with the exception in s 9 of the Act sought to address licensing of all performing animals, and dogs when they looked after people or property. 

The regulation of any performing animal applied, with the exception of those mentioned in section 9, which specifically provided an exclusion despite the fact that the animals mentioned there performed or were used as dogs for safeguarding. The long title of the current Bill failed to make this distinction, and in fact took it away, creating a confusion, because it stated that the Bill was seeking to provide for ."a procedure for the application for a licence to exhibit, train or use of an animal for safeguarding”.  Both purposes of the principal Act suffered a complete change by the current purpose stated by the Bill. It was therefore necessary to have a purpose clause. She explained that the long title of the principal Act would no longer apply once the new amendment Bill was enacted, for the long title of the Bill would state the new purpose, as the relevant sections of the the current Act would be replaced by the amendments. Therefore the choice of words and how they were phrased was crucial in order to eliminate confusion.

She repeated that the DAFF had stated the proposed long title as “to exhibit and train performing animals or use of dogs for safeguarding”. She suggested that the "use of dogs" was not contentious on its own, but it took the Committee back to the concurrent functional area, under the exclusive local government matters found in Schedule 5 Part B, which referred to “licensing of dogs”. The fact that this was now listed in the Bill meant that the Bill was liable to be contested as to whether it had followed the appropriate constitutional procedure (being introduced as a section 75 or 76 Bill). Furthermore, Members of the Committee had raised a question as to how animals used for safeguarding, that were not dogs, would be treated and how the exclusions from licensing might apply. Examples were cited as horses used by provincial police departments, together with these departments' dogs which were not covered under the section 9 exemptions. The Section 9 exclusion covered animals exhibited in the military or police tournaments or the safeguarding dogs, but not when they were working as safeguard “animals”.

She then said that the Parliamentary Legal team’s suggestion was to provide a procedure for application for a licence to exhibit and train “performing animals” and “animals used for safeguarding. The proposal was that the Bill should not mention "dog" as a separate class, but maintain the full definition of "animal". That suggestion would make for better clarity, in general and for purposes of the section 9 exemptions, and for tagging purposes.

She then looked at the definitions of "exhibit", "train" and "safeguard" from the principal Act. Safeguarding,in terms of the principal Act related only to dogs. If DAFF intended to change that position, then there was a need to change the definition for “use for safeguarding”, in order to include the other animals such as horses, and remove “of a dog” and replace it with “of an animal”. If not, then the proposal from the Department was fine, if it intended to restrict safeguarding to dogs only, without the inclusion of other animals. 

The Bill set out that in regard to animal scientists, the The National Society for the Prevention of Cruelty to Animals (NSPCA) must enforce the Act, ensure compliance for the purposes of the Act, and curb offences created by the Act in respect of protecting animals. However, she cautioned that the NSPCA cannot be a part of the licence-issuing process, despite the fact that was approved to do so in the interim agreement. She suggested that the proposal could only have an effect if proclaimed by the Minister to be the working process in case the Bill was not passed by 12 July 2015, and in case no extension had been requested to that date. However, that remained a Ministerial prerogative.

Neither the Animal Protection Act nor the Performing Animals Protection Act defined an “animal scientist”. The Natural Scientific Professions Act listed “animal science” as a field covered by that Act. The Collins English dictionary defined a scientist as a person who studies or practices any of the sciences or who uses scientific methods.  DAFF had said, in its response to this query, that persons who had studied animal welfare were all included in the term “animal science", without any specifications or restrictions, so the term was all-encompassing and relevant. She would suggest that it could be supported. In fact it opened up the scope wide enough without any discriminatory or unfair arbitrary exclusions or preferences towards any specific profession in animal welfare or animal sciences. Both "animal scientist" and "veterinarian" were extensive and broad without any unfair restrictions.

Ms Ngema moved on to explain the implementation of clause 3. The new section 3D  empowered the Director-General, at the request of National Licensing Officer, to appoint public servants or experts,  in terms of the Public Service Act, to implement the Act. In a way this clause does not depart from the actual mandate that it would be DAFF who had the obligation and power to implement this Act as the executive branch of national government. Indeed the expert would either be co-opted or appointed as a public servant, or in line with the laws regulating public service. The provision was legally sound, but she suggested, for greater clarity, that instead of using the phrase “implement the Act”, the Bill should actually qualify the task, and rather use “to assist when necessary in the implementation of the Act” .This proposal did not tamper with the constitutional and lawful mandate of DAFF.

She noted that the new section 3D must be read with the new 3E, and that an “Officer” was defined to include employees from the provincial government or Department, and that "other persons" would refer to those appointed in terms of 3D and other provisions where they were mentioned. This was a clause that had a bearing on the issue of lawful delegation to provinces arise. Her suggestion was that the initial clause needed to be qualified with a requirement that consultation must take place with the relevant authority to whom the person granted a delegation reported or was accountable. The cross-reference to section 3B was also still acceptable and lawful.

On the new sections 3F and 3H, the DAFF proposals had only effected a change of “this” to “the”, and this had not made any substantive difference. However, the Bill would have to clarify which Act was being referred to; the content was speaking to both the the Performing Animals and the Animal Protection Acts.

In relation to the proposals for the new section 3H, she noted that “any animal” should have been phrased as “an animal”, to bring it in line with the definition section in the principal Act. There was no need for a new definition in the Bill.

There were changes suggested to the new section 3H(3) and its use of "may". However, she submitted that the use of “may” sought to cover both the discretion of the National Licensing Officer (NLO) and the permission or consent of the Applicant. She thought that "must" was not intended, for this would have denoted an obligation and taken away the discretion. The use of "may" meant that the NLO could, in his discretion, visit the premises, either with or without the permission of the applicant, as long as it was done according to the law - in other words, with a warrant or investigation note from a magistrate, or consent from the applicant.

In relation to clause 5, she pointed out that the drafting standards would not permit the correction of the re-inserted 11A, as previously pointed out, and so a consequential correction would be necessary.

Department of Agriculture, Forestry and Fisheries: Response to public inputs on the Bill
The Chairperson noted an apology from the Minister and the Director General of Agriculture, Forestry and Fisheries, for their absence from the meeting. The Department had received public input and should present its response to the Committee.

Mr Bheki Cele, Deputy Minister of Agriculture, Forestry and Fisheries, explained that the Minister had to attend another important meeting.

Mr M Rahasobi, Acting Deputy Director General, DAFF, reminded the Committee that there had been discussions in May 2015 on the oral and written submissions in April. The Department has categorised the inputs into five areas, these being issues around general animal welfare, oral comments, and written comments, specific issues on clauses, and issues raised on the regulations.

Dr Tembile Songabe, Director: Veterinary Public Health, DAFF, said the presentation outlined the key issues. He explained some of the acronyms (see attached presentation) and gave a general background.

In relation to the general animal welfare, DAFF believed that even the principal Animal Protection Act was outdated, fragmented and difficult to manage in the current regulatory framework, and that it should be repealed when a modern and consolidated new Act repealed and replaced both it and the Performing Animals Protection Act. DAFF had already gone some way with a process to holistically address all issues pertaining to animal welfare, and believed that all issues raised under this category could be addressed in the draft South African Animal Welfare Strategic Framework, which would be published for public comments. In summary, he noted that the DAFF had at this stage not considered all animal welfare (AW) matters in the current Amendment Bill, but rather opted to these matters in the next phase of the DAFF regulatory review. The Department had had three options, which were:
1) to consider the technical amendments to the existing Performing Animals Protection Act (PAPA), focusing only on sections 2 and 3
2) to consider a total repeal of PAPA and its replacement with a new Animal Welfare Act
3) to consider a total repeal of Animal Protection Bill (APA) and PAPA, and consolidate them into one Animal Welfare Act.

Inputs had been made on specific points and concerns on the purpose of the Bill. DAFF believed that in principle many valid points were made, and these would be incorporated into future legislation. However, in the context of its current approach, DAFF was only intending “to insert certain provisions”. It was not suggesting that the current Bill was designed to provide holistic protection on the welfare of performing animals and dogs used for safeguarding, nor that it was confined to only providing “a procedure for the application for a license to exhibit, train or use an animal for safeguarding.”

He reminded the Committee that the DAFF had proposed possible improvements and amendments to the PAPA of 1935, to repeal certain sections, to insert certain definitions; to provide for the designation of a National Licensing Officer, to provide for a procedure for the application for a licence to exhibit and train performing animals or use of dogs for safeguarding. It was also to provide for the functions of a National Licensing Officer; to provide for the issuance of licences; to provide for an appeals process; and to provide for matters connected therewith. 

On the specific oral comments and concerns on the purpose of the Bill, the DAFF was proposing that the revised purpose of the Bill could satisfy the inputs from the stakeholders, if these minor amendments could be factored into the Bill. The DAFF would be prepared accept any proposed alternative wording on the purpose of the Bill, as this was unlikely to impact on the content of the Bill or practical logistics around administration. In relation to clause 3B, relating to use of the term "animal scientists" , DAFF was of the view that the concerns over the use of "animal scientists" could be based on “professional protectionism”, which was in favour of the veterinary profession.  DAFF was of the view that training of animal scientists was as inclusive in animal welfare matters as the training of veterinarians. If members of the veterinary profession were the only competent professionals to deal with matters of AW, then many members of the Animal Welfare Organisations would not be regarded as rendering AW work. DAFF held the view that “ethical obligations” of animal scientists towards animals were unquestionable. However, he pointed out that there is no specific training, course or module that leads to a qualification of “Animal Welfare Professional”, and that concepts of "animal welfare" are entrenched in all training, degrees and qualifications involving the handling of animals. He suggested that any objections to the use of the words "animal scientist" were not justified. Indeed, DAFF stressed that there could well be areas where animal scientists could be more knowledgeable, more experienced and better suited to pronounce on welfare of certain species that veterinarians. Therefore, DAFF proposed that the phrase "animal scientists" be retained, in relation to the issue of PAPA licences.

Dr Songabe then discussed, in relation to section 3B, the inclusion of a reference to Animal Welfare Organisations (AWO) in issuing PAPA licences. DAFF believed that members described in section 3B had knowledge, expertise and/or experience in the field of animal welfare and animal rights. There was absolutely no evidence, justification or rationale for a contrary view. It did, however, view the proposal to include "welfare animal rights activists" in the issuing of licenses as “unconstitutional”. The Northern Gauteng High Court had specifically rejected the plea by the NSPCA to be involved in the issuing of PAPA licenses, when the matter was first brought before the court in 2012. The founding rationale was that this was a function of the Executive. The judgment specifically ruled that the NSPCA was not part of the Executive and therefore could not be party to the issuing of any licences. For that reason, DAFF advised against any attempt to include any AWOs in any compulsory formal issuing of PAPA licenses. Unfortunately, the submission by NSPCA appeared to propose similar inclusions of Animal Welfare Organisations in the process of issuing licenses, but again, DAFF advised against this. Furthermore, he pointed out that there were over 235 animal welfare organisations, and it would be hard to give a satisfactory justification for selecting one or two animal welfare groups to be part of the process. The issuing of PAPA licenses would be informed by scientific principles and sound animal welfare considerations. DAFF had consulted extensively with the Office of the Chief State Law Advisor (OCSLA) to come up with text that might satisfy AWOs of the possibility of giving them a role, and believed that possible consultation was the answer. This was provided for in the proposed new section 3C(1)(i) which said that the NLO "may request, from any person or organisation, subject to the Promotion of Access to Information Act, 2000, (Act No. 2 of 2000) any information that may be required to enable the National Licensing Officer to consider an application for a licence.”

Speaking to the insertion of a new section 3D, relating to the appointment of experts,  DAFF wished to clarify that such experts would have to be, as set out in section 3B, an animal scientist or a veterinarian. They would become “part of the executive” once appointed in terms of the provisions of the proposed new section 3D. They would be acting in that capacity, not as representatives of AWOs.

In relation to the proposed new section 3E(1), on delegation of powers and functions, the DAFF proposed that the Committee could reconsider the wording and factor in additional groups to those mentioned in section 3D. It was proposing to insert the phrase "an officer" in the new section 3E, and he pointed out that the proposed re-wording was initially captured in the Draft Amendment Bill that was published in April 2014. This would allow the delegation to other existing officers appointed in terms of the Public Service Act. He read out the revised proposal for the new section 3E(1), that the NLO may delegate any of his or her functions under this Act to: “(a) An officer, and” (b) An expert appointed in terms of section 3D". The section would then continue:
" (2) A delegation in terms of subsection (1) must—(a) be in writing; and (b) state the nature and extent of the delegation.
(3) Person(s) contemplated in subsection (1) shall comply with provisions contemplated in section 3B”.

Dr Songabe said that the wording of the new section 3F(1)(a) had been questioned since it made reference to the ‘purpose of the Act’, and stakeholders had said that the purpose was unclear. DAFF proposed, therefore, that the Committee consider re-wording this section to eliminate any ambiguity on the purpose, and this was consequential to the discussion on the purpose of the Bill, as discussed earlier. He suggested new wording that could refer to information furnished by the applicant, as contemplated by section 3H(2), that was:

” in accordance with the purpose of the Act”;
(2) the premises, accommodation, equipment and facilities that are utilised for the training, exhibition or performance of the animal are safe and will not cause harm to the animal". ~

Dr Songabe then moved on to clause 3H(1)(a) and (1)(b). DAFF proposed to re-word this section to remove  “any animal”, and replace it with "an animal" he also proposed that a specific definition of “an animal” should be included in the current Amendment Bill, even if this may be perceived as “superfluous” as the definition was already in the APA. He read out the revised clauses.

In relation to clause 4, dealing with the revision of section 11(a), Dr Sonwabi noted that there was no specific term pertaining to “animal scientist” in the Natural Scientists Professions Act. However, the use of this term in the PAPA Bill was intended to specify natural scientists registered in the field of animal science, in terms of the Natural Scientists Professions Act. In view of the ambiguity, DAFF proposed that Members should amend the definition of "animal scientist" in this Bill, to provide more clarity and address the concerns. He suggested that this definition should be incorporated as follows: 'Animal Scientist' means a person registered as a Natural Scientist in the field of ‘Animal Science’ in terms of the Natural Scientist Professions Act, 2003 (Act No. 27 of 2003).

He reiterated DAFF's view that the definition of "an animal" was not affected by the Constitutional Court judgment and so DAFF was not proposing any amendments to this. He repeated that, for ease of reference, DAFF suggested that the definition could be added into the current Bill, but would remain entirely consistent with APA. He added that reptiles were excluded, as set out in section 9 of the PAPA, so that "an animal" would mean any equine, bovine, sheep, goat, pig, fowl, ostrich, dog, cat or other domestic animal or bird, or any wild animal or wild bird which is in captivity or under the control of any person.

Dr Songabe noted that comments and concerns had been raised on the regulations. One question asked how the Minister would designate the NLO, and DAFF responded that this would be in writing, published on the DAFF website.

Another comment was that it was unclear whether the Draft Performing Animals Regulations would replace the current regulations, and DAFF responded that the repeal of sections 2 and 3 in the current Amendment Bill implied that the regulations issued in terms of these sections would also automatically be repealed, unless expressly specified otherwise. This would then mean that new regulations were needed, and draft regulations had been published on 2 April 2015.

Another comment was that the Bill should set out the time allowed for the NLO to make a decision on an application. DAFF responded that this would be clearly defined in the regulations, as 30 days.

NSPCA had suggested that issuing of licenses should be centralised with the NLO, not delegated down. DAFF responded that the coordination for PAPA licenses would be done at DAFF, but that all the delegated officers would be able to issue licenses on behalf of the NLO in their respective provinces, and would send monthly reports to the NLO for monitoring and auditing purposes.

Another comment was that South African Police Service (SAPS) clearance should be a requirement in the processing of a license. DAFF responded that stakeholders had indicated that such a request to SAPS might take three months, delaying the issuing of the licence.

Another suggestion was that the licence should be valid only in the district where the application took place. DAFF responded that this was considered operationally impractical, as it meant that every time circuses, guard dogs or the film industry moved to another district, they would have to apply for a new licence.

The SA Dog Academy had suggested that guard dogs should be exempted from the PAPA licensing requirements, as they were already regulated by the Private Security Industry Regulating Authority. DAFF noted that they were not excluded from the principal Act and there was no reason to do so now.

Another submission suggested that all licences should be published in the Government Gazette, but DAFF pointed out the significant costs, up to R1000 for one page, and felt that the DAFF-maintained database was a better option, and it would periodically be issued for perusal.

The final submission was that the movement permit of guard dogs was impractical, as thousands of security dogs were moved on a daily basis, and asked how this would be achieved without compromising the security of the public or public assets. DAFF responded that this was under consideration by the Technical Team. DAFF had conducted a workshop with stakeholders on 4 May 2015, focusing specifically on regulations, and this raised genuine logistical and operational concerns.

Dr Songabe concluded that the DAFF had considered all matters raised in the public submissions. Anything not covered specifically here was considered to be either generic in nature or the response was included in other responses. DAFF hopes that stakeholder concerns captured by DAFF are consistent with those captured by the Portfolio Committee and that responses provided by DAFF will assist the Portfolio Committee.

Discussion

The Chairperson asked why a reference had been made to the Director General, rather than the Minister, in the new section 3D.

The Deputy Director General explained that this would be retained as a reference to the Director General since that person retained administrative authority when it came to certain actions within the Bill, although the Minister retained executive authority.

Ms A Steyn (DA) strongly suggested, to the Deputy Minister, that the reason why this Committee was now tasked with trying to fix "an unfixable Bill" was that the comments of the DA, made right at the start, had not been taken seriously, and it necessary to take Committee comments seriously so that Parliament could positively affect the lives of the people. In the last meeting, at which the Deputy Minister was not present, the Committee made it clear to the Director General that it was not possible to hurry through this Bill. The deadline had already been k known to the DAFF for eighteen months, and the Constitutional Court case already postponed once. She was "nicely cautioning" the Deputy Minister to ensure that the executive did its work in a manner that would enable the Committee to do its work. All outstanding legislation must be brought forward to this Committee. She cited the example of the Red Meat Industry taking the Department to court because no inspections were taking place, and that had delayed the Committee working on this Bill, and put unnecessary time constraints on the Committee. Another Bill, relating to fisheries, at the end of the Fourth Parliament, had also not yet been brought to this Committee.

Ms Steyn asked what had been changed in the draft Bill sent out for public comment in April 2014, either in principle or in fundamental wording, besides the paragraph and definitional changes. She asked if the DAFF had taken the submissions seriously or if it had merely been indulging in "a tick-box exercise" around the public participation.

The Chairperson interjected that Ms Steyn should be specific in her comments, so that the Department would be in a position to respond to specifics.
 

Ms Steyn responded that she could not ask specific questions on what stakeholders said to the DAFF, as the Committee was not a part of that process, but would like to know if any significant changes were made to the Bill after that process.

The Deputy Minister said that he was trying to "be as cool as possible" but asked for the Chairperson to protect him from "the howlers". He said that he had listened to Ms Steyn and requested that she now sit and listen to him. He had not been able to be present at the last meeting, but had apologised, explaining that since the Minister was travelling, the Deputy Minister had deputised for him. He was here today precisely because the DAFF took this Committee seriously. To be told that he does not take this Committee seriously made him really livid. Whilst he conceded that English was not his first language, being "cautioned" made him feel undermined and he stressed that "you are not a Missus, and I am not a 'garden boy' who would be cautioned". He demanded respect as much as he accorded respect to the Committee where due. He would try to be present at Committee meetings as far as possible, but Members must understand that there were other matters that took the executive members away, in which case he would apologise and send other officials to deputise at the Committee.

Responding to the question whether there had been significant changes between the first draft and this one, he noted that various paragraphs and pages have been completely taken out after the public consultation process and suggested that Ms Steyn had not done her job by comparing the original draft and the current version, which displayed her ignorance.

The Chairperson asked that the Members of the Committee use acceptable language. She told the Deputy Minister that she was sure that the Member did not intend to undermine him or the DAFF. She would like to apologise on behalf of the Member. She conceded that the word "caution" was indeed open to different interpretations, but the intention in using that was to try to hasten the work of the Department and thus of the Committee.

Ms Steyn then asked if the provinces would play a role and what the impact would be of the Bill on the provinces, also whether this would affect the tagging of the Bill.

Mr Rahasobi responded  that the legal advisors of the Department and Parliament had tried to provide guidance on this matter when it was first raised. He noted that the main concern was whether the NLO "may" or "must" do things, but referred to the Parliamentary Legal Advisors' earlier points, and believed that it would not be necessary to alter the current section 75 tagging, but this would be subject to confirmation.

Ms Steyn asked how the licensing of animals in international circuses would be dealt with.

Mr Rahasobi responded that international circuses visiting South Africa would be subjected to the laws within South Africa, and basic international law would be applied in the local agricultural sphere.

Ms Steyn asked when the Animal Welfare Bill would come before Parliament.

Mr Rahasobi referred to Ms Steyn's earlier comment, and said that the Department had also conceded that the Bill was "unfixable". However, the Department was faced with having to make amendments in light of the Constitutional Court judgment. It had therefore looked to the relevant sections, 2 and 3, to try to amend those within the time frames. It was aware of the expectation by the Committee that the DAFF must then also come up with an Animal Welfare Bill that would encapsulate both PAPA and APA provisions. One of the presentation slides provided the key points. Everything would have to be evidence-based and respond to general animal welfare issues.

Mr T Ramakhoase (ANC) said that as far as the Constitutional Court judgment was concerned, he had noted great improvements towards finalising the Bill. The Committee was aware that the total revision would be a more lengthy process, as stakeholders would raise wider issues outside the narrow confines of the Constitutional Court matters, and he suggested that the Committee deal with those once the Constitutional Court responses were out of the way.

Mr Rahasobi responded that the Department was thankful for the guidance it had received in getting to its current position, and where it was headed, and he agreed that other issues would be dealt with in terms of a holistic new Act.

Mr Rahasobi then said he would like to detail the points raised by Ms Steyn, and compare the April 2014 draft with the current Bill before the Committee today. After consultation with the stakeholders, all the proposed sections 3F, 3G, 3K and 3L were deleted. Definitions were also amended, following consultation. Various other sections deleted included wording around the Appeal board, the delegation of officers and the issues regarding National Executive Officers. In addition revised sections 11(a),(b),(c) up until 11(2) had been deleted.

He summarised that there were thus significant changes. During public input, the stakeholders had confirmed that all their inputs were taken into consideration, but there was a difference in the degree to which each one's submission resulted in changes. At some stage, DAFF had stressed that this was a question of autonomy and on the one side there were views of animal rights activists, and on the other the views of the users of animals. The Department had to be given space and provide clarity in policy, taking all of the science, administration and legal issues into perspective. The Bill as it stands was not weighted in favour of one side or the other. It looked at what would be legally feasible for the country.

The Chairperson then asked why the revised section 3H referred to "may" and not "must".

Mr C Maxegwana (ANC) asked for clarity on the reasoning behind option one in slide 13. He also asked for further elaboration on slide 34, in relation to section 3F(1) in the current version and the proposed versions.

Dr Songabe elaborated further on the three issues raised and on the operational and practical stances. Slide 13 accepted that there was a Constitutional Court judgment with which DAFF must comply; the point was merely now it would move forward. After discussion, it was decided that DAFF would, for the moment, concentrate on amending sections 2 and 3 that were specifically dealt with in that judgment.  Further consequences would be handled elsewhere. This was option one in slide 13 of the presentation. Option 2 was to consider whether the DAFF could, now, take the opportunity to redo the entire principal PAPA, to look at the gaps within that principal Act, and come up with a new Animal Welfare Act to fix what that Act had been seeking to achieve. Principle Act was seeking to do. Option 3 was to work on the both the PAPA of 1935 and the Animal Protection Act of 1962, repeal both and reassemble them into one holistic Act that responded comprehensively on everything that deals with animal welfare.

However, it was realised that between 11 July 2014 and January 2015 there was little time, and it was evident that it would take more time to identify and fill the gaps, based on new information. In some cases, the DAFF did not have welfare indicators. Mr M Filtane had raised a point previously that more research was needed on whether an animal was stressed beyond tolerance, so based on these factors, the Department considered whether option 2 might work, but again, bearing in mind that issues raised around sections 9 and 7 of the principal PAPA would also take more than the time available to fix. It was then decided that the DAFF would focus and opt for option 1, purely because of time considerations. Once the Department was done with the Constitutional Court issue, it would go back to the drawing board and pursue option 3.

He explained slide 34, and said that the main proposal set out there was that if the information furnished by the Applicant, as contemplated by section 3H(2), is in accordance with the Act, it would also be considered to be in accordance with the purpose of the Act. Both this morning and in previous meetings there were concerns that the purpose of the Act was not clear. For this reason, the Bill had deleted the phrase "and is in accordance with the purpose of this Act". The purpose of the Act was a matter under discussion. The proposal was that the Bill shoulread merely " the information furnished by the applicant as contemplated by section 3H(2)."

The Chairperson noted the question raised by Ms A Steyn regarding the delegation to provinces. A suggestion had been made to in order to avoid making an unlawful delegation to provinces, that clause may need to be qualified with a requirement that consultation with the relevant authority to whom the person granted a delegation reports or is accountable must take place. He asked if the DAFF agreed.

Dr Songabe said that he would touch on the issue responded to by Mr Rahasobi in relation to the point about the appointment of the Director General in section 3D. The draft Bill of April 2014 had provided that those appointments would be done by the NLO. However, after an extensive consultation, it was decided that the powers must be given to the accounting officer of the Department, where the budgets were done. Now, the NLO would have to approach the Director General and say that he needed expertise in a certain area that could not be found within government. Because of the financial implications, the Director General, in consultation with the Chief Financial Officer, would assist the NLO with appointments, and these people would be appointed in the same way that all other public officials where the administrative function normally resided with the Director General.

The Chairperson made the point, for clarity, that in terms of the Public Services Act, the only person who had power to employ was the executing Authority which could then delegate.

Dr Songabe said that this was something that could be considered and rectified if need be.

Dr Songabe then responded to the question raised by Ms Steyn on the role of the provinces. At present, the work done by the Veterinary Services was such that there were norms and standards developed at national level. Some of the work in the field was directly done by the national officials, and some work was done by the provincial officials. Because of the urgency of the matter, it was indicated that use would be made of the field officials, who were provincial veterinarian officials, when considering those delegations. The DAFF presentation had proposed that the phrase "an officer" be added. Revised section 11(a) described that officer as a person appointed in terms of public health. DAFF took the view that the officer would be employed on national or provincial levels, as long as s/he was an officer employed in terms of the Public Services Act and complied with the provisions of section 3D of the Bill. In that way the provinces would be involved. This would be in place until the DAFF had managed to achieve what it hoped for, namely to have a whole Animal Welfare Team, but the cost of that had been mentioned to the Committee previously.

Dr Songabe also amplified on the use of "may" as opposed to "shall". If the Bill were to be worded that the delegation might be to a person who was not necessarily part of the executive, it would fall foul of the decision in the North Gauteng High Court, which stressed that since this was a function of the executive, the executive must fulfil that. "May" opened up an option, but the function would remain an executive one. If the Bill had used "must" it would formally bring people who were not members of the executive into the process of issuing the licenses, leading to the same situation where the licensing was deemed unconstitutional because it had been done by magistrates, rather than people forming part of the executive. He wanted to stress that this was a viable option, particularly for AWOs. If a licence had been issued and a body or individual was unhappy about that, it would be possible to appeal the decision.

He referred to the Chairperson's proposals on wording to be added, particularly in relation to consultation prior to delegation to provinces, and said this seemed acceptable. The DAFF did actually already work "in consultation". The development of this Bill and subsequent regulations, as well as work on the Draft Animal Welfare Strategic Framework had been done by a team of officials from DAFF and all the nine provinces, so the provinces were already involved and their role could be further enhanced by this proposal.

The Deputy Minister agreed that the proposal seemed acceptable, but would be subject to further consultations and discussions between DAFF and the Committee.

The Chairperson reminded the Deputy Minister that the Bill was in front of the Committee right now.

Ms Steyn referred to slide 34 and said the deleting of sections would not fix the Bill. She still believed that the purpose of the Act must be changed, but it must first be established with certainty. ill not fix the Bill and suggested that the purpose of the Act should be changed to something else. Actually, the purpose of the Bill was to bring the legislation in line with the Constitutional Court judgment but one should not make laws like that. She did not want to fight with the Deputy Minister, which was why she raised the points she had. She did not expect him to be at every meeting; everyone here was capable of working on their own, but issues like this did make her upset.

The Chairperson abruptly stopped Ms Steyn and said that this matter had been closed earlier and she would not allow it to be re-opened and disrupt the meeting.

Ms Steyn apologised. She said that if the Committee could not agreed on the purpose of the Bill then it could not be fixed by deleting that section; the purpose would have to be changed, or some other solution found from the proposals, but the Committee and Department could not move forward if they could not agree. She had looked at the 2014 Draft Bill and knew that certain sections were deleted, but the purpose or the implementation had stayed exactly the same. She asked about the removal of the renewal of licenses in the Bill, and how this would be done now.

Mr T Ramakhoase thought that the issue of Local Government had been clarified, and should not arise when dealing with the issue of Provinces and the spheres of government.

Ms A Steyn then asked how far the Animal Welfare Bill had gone.

The Chairperson said that the issue of the Animal Welfare Bill should not be brought up in this meeting. The Committee must deal with issues of concurrency. She suggested that within the next six months the Committee must get a report and feedback on how far the DAFF had gone, because the Animal Welfare Bill needed to be understood by everyone in the same way. Cultural and traditional aspects had to be dealt with to reach a common baseline understanding, to gain consensus and to avoid unnecessary fighting. Within those six months, the Department should start that process by engaging with communities to establish a baseline and deal with the legislation.

Dr Songabe said that the purpose of the Bill had been deliberated by the DAFF, but it would be prepared to consider other suggestions. The amendments dealt with sections 2 and 3, and there would not necessarily be practical operational or administrative effects. The Department remained open to suggestions.

In relation to licences, he explained that the license would remain valid for a period of 12 months. Once that period lapsed, that license would cease to exist. The regulations did say that prior to the expiry, an applicant may apply for a new license, valid from the date of expiry. This was because it had, during the discussions, become clear that there was an expectation that because of the inspection and requirements complied with in the first instance, this meant that the renewal would be automatic, without further inspections taking place. People did not expect to approach the NLO in advance, and would carry on under an expired license. It was stressed that the the validity was one year, with renewal applications having to be made in advance, and all the compliance and inspection procedures being the same for every renewal.

The Chairperson agreed that the Department had attempted to define the purpose, as set out on slide 16. However, the problem was that the Bill had referred to "dogs" for safeguarding and stakeholders had raised the point that there were also other animals used for this purpose. She asked how the Department intended to define this.

Dr Songabe responded that there were two aspects. Firstly, the PAPA referred to dogs for safeguarding. Secondly, section 9 contained exemptions for dogs such as military and police dogs doing safeguarding work. The Department had yet to come up with a creative way to reconcile one section that applied to dogs and one that excluded certain groups of animals. The Department would be dealing with that as it moved forward. Stakeholders had suggested that an AW matter remained precisely that, no matter whether the dog was used for police or any other type of work, and that no exclusions should apply. The Department had agreed to consider that. At the moment, though, the animals were exempted, and that section had not been challenged. The Department would deal with the definition of animals for safeguarding and the exclusions in the holistic review.

The Chairperson said that the Parliamentary legal advisors had suggested that the word ‘dogs’ should be removed and the word ‘animals’ be inserted, to cover all animals that are used for safeguarding in the long title.

Dr Songabe responded that that was a very good suggestion and will be considered.

Mr Ramakhoase asked if the local government authority provisions were repealed, so as not to cause problems at a later stage.

Mr Songabe responded that this was not really discussed. The Department's focus was primarily on sections 2 and 3, which had been specifically cited in the Constitutional Court judgement, whilst issues not mentioned there were not being considered at the moment.

Ms P Ngema clarified and said that the point basically came about on the basis of the Schedule, and how the legal team had been instructed to tag. The current order had been explained. However, it was necessary now to decide which sphere was regulating what matters. Those in Schedule 5 Part A were matters dealt with by provinces. Schedule 5 Part B set out those reserved for local government, unless there was a matter being dealt with before Parliament under section 44(2). She thought that the issue only arose on that point, not the broader spheres.

The Chairperson noted that no deliberations would take place on the Bill today, as Members were preparing for the Presidential Budget vote.

Other Committee business
Adoption of minutes

Minutes of the meeting on 14 April 2015 were adopted.

Minutes of the meeting on 28 April 2015 were also adopted. Ms Steyn made the point that the bullet point on page 6 relating to the workshops that the DAFF held on the Bills had to be considered.

The Chairperson responded that this would be considered on 9 June. She suggested that the Committee must look at extracting points from the minutes, so that they did not drop off the table.

Minutes of the meeting on 8 May, 12 May and 15 May 2015 were adopted.

Invitations to nominate candidates for Land Bank Board

The Chairperson said that the letter received from the Minister of Finance said that there were three vacancies on the Land Bank Board. However, this letter was signed on 1 March, and the nomination should have been made by 20 April. She was following up on whether nominations were still required, to prevent Members forwarding C Vs unnecessarily.

Mr P Mabe (ANC) suggested that before members engage in a laborious exercise of tabling CVs ,the Committee must establish if they would be accepted.

The Chairperson agreed, but thought that the CVs should be forwarded to the Committee Secretary in the meantime, in case an extension had been allowed.

Invitation to the Committee to attend the South African Poultry Association (SAPA) AVI Africa 2015 Conference
The Chairperson noted that an invitation was extended to Members to attend the SAPA AVI Africa 2015 Conference. Not everyone would be expected to attend, but the Committee would delegate two or three to attend, after having received expressions of interest from Members. Anyone attending would be expected to give good feedback to the Committee. There was nothing on the Committee schedule for that week, although this must still be confirmed.

The meeting was then adjourned. 

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