The National Disaster Management Centre, legal advisors from the Department of Cooperative Governance and Traditional Affairs (COGTA) and the State Law Advisors took the Committee through a detailed document setting out the latest proposals for the Disaster Management Amendment Bill, and the Department and Centre's responses to inputs from stakeholders during the public consultation process.
For each of the clauses, the amendments, original and / or amended wording, rationale for change and comments were detailed. The first discussion, and one that impacted later on whether there was a need to change the title of the Bill, related to the definition of disaster management; the Department was reluctant to change the wording to "disaster risk reduction" and pointed out that the definition was sufficiently all encompassing to deal with this issue already. The Department was also opposed to changing the short title of the Act to "Disaster Risk Reduction", pointing out that the present wording reflected the Constitution., as well as international treaty wording and wording in neighbouring countries (although one Member thought that it was function, not content that was important) and that it could be amended in a subsequent complete overhaul of the legislation, if necessary.
A substantial discussion was held on reporting lines. The Minister would in future be responsible for appointing the Head of the National Disaster Management Centre (NDMC). Members were concerned that there were not clear prescribed reporting structures and suggested that this might give rise to uncertainty and even conflict in lines of reporting. The Department was of the view that the Head was accountable to the Minister because the Centre was an assigned function of the President, and could be moved to another Ministry, and this was a suggestion of the Department of Public Services and Administration, since it might also be affected by establishment of a government component at a later stage. The Members were not quite happy with the responses and believed that it was necessary to be a little more specific on day-to-day lines of reporting, as well as during disasters. The Department was asked to re-look at the issues.
Members were also not happy with the wording of some clauses, saying that the intention was not clear. In particular, they did not like the reference to "build back better" to the clauses relating to recovery, rehabilitation and reconstruction after disasters, and other options were suggested.
Members also asked the Department to rework the wording in Clause 10 so that it was clear that issues relating to women children, the elderly and people with disabilities were also dealt with clearly in the clause - and the same comments applied later in similar clauses. They were concerned that these vulnerable groups suffered the most and their needs had to be catered for up front, and this was also in line with international treaty considerations.
Members were also not happy with the amendments in clause 14, which dealt with local government, saying that it was unclear what local capacity to establish a local disaster management centre. Members wondered whether this was a new function and if was, questioned whether funding would follow function. SALGA had also been particularly concerned on this clause, although the COGTA, Financial and Fiscal Commission and National Treasury had assured Members that there was "funding out there" and that it was not a new function. The Committee agreed to return to discussions on this at a later meeting. In the meantime, the Department was asked to continue working on amendments.
Members were satisfied that the amendments provided Traditional Leaders with a role in Disaster Management as Traditional Leaders played an important role.
Disaster Management Amendment Bill: National Disaster Management Centre responses to public hearings and deliberations
The Chairperson tabled and thanked the Department of Cooperative Governance and Traditional Affairs (COGTA or the Department) for the document that captured the views expressed by stakeholders, the community and traditional leaders on the Disaster Management Amendment Bill (the Bill). He reminded the Committee that this Bill was amending the Amendment Act, and not the original or principle Act.
Mr Ken Terry, Head: National Disaster Management Centre (NDMC), Department of Cooperative Governance and Traditional Affairs, introduced Ms Bruwer, who was coordinating the process.
Ms Ané Bruwer Executive Manager: Disaster Management Legislation, Policy and Compliance Management, NDMC noted that although the document did contain background information, she would go through the clauses (see attached document for details).
Clause 1: Amendment of section 1 of Disaster Management Amendment Act 57 of 2002
Ms Bruwer said the purpose of clause 1 was to amend some of the definitions of the Amendment Act (referred to for ease of reference as the Act), to bring them in line with the generally accepted definitions used in the international context and across sectors nationally.
The following changes had been challenged:
“Adaptation” was challenged by Dr Jordaan from the UFS-DiMTEC who suggested that the current definition of “Adaptation” was only linked to climate change as if there was no adaptation to other disaster risks and global change. He proposed that a definition for "Global change" be included. He suggested that population change, migration patterns, economic and market realities and others should be included in the definition.
Dr Jordaan had also suggested the definition for “Climate Change” should be replaced with “Global Change”.
“Disaster Risk Reduction” was challenged by Dr Holloway and Prof van Niekerk, who believed that the current definition of disaster risk reduction had been watered down from the original, as proclaimed by the United Nations International Strategy for Disaster Risk Reduction (UNISDR), 2009. They suggested that the definition be changed to read: “means the concept and practice of reducing disaster risks through systematic efforts to analyse and manage the causal factors of disasters, including through reduced exposure to hazards, lessened vulnerability of people and property, wise management of land and the environment, and improved preparedness for adverse events.”
Another definition challenged by Dr Holloway and Prof Van Niekerk was “Disaster Management" which they suggested must be replaced with “Disaster Risk Management”.
The Department noted a number of different opinions on the definitions from the academic field as well as practitioners. In principle, COGTA used the United Nations terminology published in 2009, basing its definitions on that. It also looked at any new definitions from the International Panel on Climate Change, specifically in relation to disaster management, disaster risk reduction and climate change, using the most updated. The Department believed that “Adaptation” should remain as it was. New terms such as "global change" should not be introduced to the document because adaptation did not really talk about global change. It also felt it would prefer to continue using the definition of "climate change" because the suggestion was climate variability, and this definition for climate change was in alignment with the international terminology and South Africa’s terminology in the Climate Change Response White Paper. IT did not have strong views on “Disaster Risk Reduction”; the 2009 definition was a little more descriptive, but it also was comfortable with the definition in the 2012 document of the IPCC.
Ms Bruwer said a whole detailed explanation for the argument around “Disaster Management and Disaster Risk Management” was in the document, and Members may wish to discuss it further. In summary, the Department argued that the current definition of “Disaster Management” in the Act was very comprehensive and included all the elements around disaster management, disaster risk management and also emergency management and thus dealt with all the elements of disaster risk reduction.
The Chairperson checked that Members were following this and gave a summary of the Department's input so far. He noted that no Members seemed to hold any contrary view.
Clause 2(a): Amendment of section 5 of Act 57 of 2002
The original clause was that the Minister must establish a National Disaster Management Advisory Forum consisting of various representatives. What the Department had proposed in the amendments was to specifically refer to Traditional Leaders established by section 2 of the National House of Traditional Leaders Act of 2009, as recommended by the National House of Traditional Leaders (NHTL). The amendment would allow the NHTL to recommend traditional leaders to serve on the National Disaster Management Advisory Forum (NDMAF).
She reminded Members that Nkosi Mavunda had pointed out that the NHTL applauded the efforts of the Department to include traditional leaders, and also pointed out that traditional leaders could play a key role in preventing disasters from occurring on traditional land, suggesting that the development of disaster management plans should be consulted upon with the traditional council.
COGTA welcomed the views and support of the NHTL and agreed that the process to develop a disaster management plan should involve consultations with various stakeholders, including traditional leadership.
The Chairperson agreed, saying that traditional leaders played an important role.
Clause 2(b): Amendment of section 5 of Act 57 of 2002
The Department was proposing an addition of “the Forum serves as the South African National Platform for Disaster Risk Reduction” to section 5 of the Act. The purpose of the addition was to provide for the National Disaster Management Advisory Forum to serve as the South African National Platform for Disaster Risk Reduction to fulfil its obligations in terms of global commitments on disaster risk reduction.
Dr Jordaan had asked that the platform be called the "Disaster Risk Reduction and Response". The Department’s responded that this was only giving recognition to the formal international context where national platforms were established all over the world for disaster risk reduction. It was an official entry point for the United Nations system to talk about these matters to governments across the world.
Mr K Mileham (DA) commented that the use of the phrase suggested by Dr Jordaan would not be limiting the platform in any way. He thought the suggestion was a justifiable addition.
Ms Bruwer responded that the National Disaster Management Advisory Forum still remained as such, in terms of South Africa’s legislation. It was just an additional recognition to say that the forum already in existence would also be recognised officially as the national platform for disaster risk action. It was really just to give that international recognition to the existing platform.
The Chairperson commented that it seemed that all stakeholders were being considered, and he thought this was fine.
Clause 3: Substitution of section 8 of Act 57 of 2002
Ms Bruwer said the original section stated that “a National Disaster Management Centre is established as an institution within the public service” and that “the National Centre forms part of, and functions within a department of state for which the Minister is responsible”. The amendment proposed by the Department was to remove “within a department of state”. The only reason was to remove any legal restrictions to later providing for the possible establishment of the National Disaster Management Centre as a government component in terms of the Public Service Act.
Clause 4: Amendment of section 10 of Act 57 of 2002
Ms Bruwer said Clause 4 was a consequence of the previous Clause and just indicated that a person appointed as the Head of the National Centre would hold office in the Department on terms and conditions set out in a written employment contract, which must include terms and conditions setting performance standards. The words "in the Department" were to be removed. She confirmed that this Head would report directly to the Minister.
Clause 5: Substitution of section 11 of Act 57 of 2002
Ms Bruwer said again this was a consequence of the original Clause 4 amendment. The Clause was again making provisions for the Head of Centre to report to the Minister and also setting up a process for a person to act in the absence of the Head of Centre. The appointment would be made by the Minister.
Mr Mileham said he had no problems with the Minister being responsible for appointing the Head of the Centre or acting Head of Centre. He was, however, concerned that there were no prescribed reporting structures. The Act did not specify that the Head of Department should report to the Minister or be accountable to the Minister. Lines of reporting and structures were well contained in a departmental situation, but outside of that it was not clear.
Ms Bruwer responded that although the reporting mechanisms were not prescribed, it was automatically assumed that if a Minister appointed a person, then that person was accountable back to the Minister. The person would function under the jurisdiction of the Minister.
The Chairperson summarised the implications of the clause for the Members.
Mr N Masondo (ANC) thought issues such as this should be looked at carefully, to make sure that the accountability lines for day-to-day work were clear. There was no way a Minister would be able to do ongoing monitoring outside of the general organisation. In addition, a Minister could find himself or herself being held responsible for what was essentially an administrative task. He thought that it was a better idea to have a structure headed by a Director-General, rather than direct accountability.
Mr M Matlhoko (EFF) agreed with Mr Masondo.
Mr E Mthethwa (ANC) suggested that the Minister should still have the appointing function but the appointed person should report to the Director General, otherwise conflicts could emerge between the Head of the Centre and the Director General.
Ms Bruwer said the process of establishing a government component would be dealt with under the Public Service Act. COGTA had had discussions with the Department for Public Service and Administration (DPSA) which had suggested this change because of the government component implications. Even with the current structure there was a government component as it reported directly to the Minister. All the detail of the reporting would become clear once the government component was formally established, by another piece of legislation. There were certain provisions in the Public Service Act which say the Head of the Centre should not report directly to the Director General. That was why the section was taken out, although for practical purposes necessary reporting would be done.
The Chairperson said that was precisely the point that was raised by stakeholders. In other countries, the Head of such a centre was based in the President's or Premier’s office. He thought more weight was being given to how the person responsible should be reporting.
Mr A Mudau (ANC) asked if Clause 4 and Clause 5 were to be read together, because Clause 4 was talking about the contract and Clause 5 was talking about appointment. Clause 4 (2) talked about “a person appointed as the Head of the National Centre.. holds office in the Department on terms and conditions set out in a written employment contract which must include terms and conditions setting performance standards”. He said he was just linking the two.
Mr Mileham said it was not quite correct to regard the Municipal Infrastructure Support Agency (MISA) as a comparable example. MISA was not established in terms of an Act, but by way of a Presidential proclamation in terms of the Public Service Act. This new institute was being established or governed by its own legislation, and it had to be looked at in terms of those lines and legislation guiding the structure of the organisation. Something similar might be the National Prosecuting Authority, whose Act had a section which specified that the Minister was automatically accountable for the operations, which he read out, stressing that this was just one example, worded: “The Minister shall exercise final responsibility over the prosecuting authority in accordance with the provisions of this Act “. He or she was ultimately responsible for the entity and to enable him to perform his responsibility, the NPA must, at the request of the Minister furnish that Minister with information or a report with regard to any matter or subject, provide reasons for decisions, give information with regard to policy directives, submit reports, arrange meetings with the Minister and so forth. This defined the role of the Minister in relation to the entity. He reiterated that he was not suggesting that the NDMC should be an independent Chapter 9 institution, or even the same as the NPA, but there were some useful points around the reporting structure and Ministerial responsibility.
Mr Terry said there was an administrative and functional responsibility. Administratively, the Director General was the accounting officer in terms of the Public Finance Management Act, and that was clear on accountability. The Head of the Centre would, on administrative responsibility, have direct lines of reporting to the Director General. The difficulty was that the prescribed disaster management function was assigned by the President. The President could, in theory, decide to move the NDMC to the Department of Justice and assign it to another Minister. That was why the DPSA had suggested removing the limitations, to make its mobility compliant.
He added that there were clear indicators of roles and responsibilities in the business plan to create the government component. In the case of disaster management, the Minister could say all functions related to finance or supply chain would be on a shared basis. Then obviously the administrative and logistical functions would report to the Director General as the controlling officer of the finances. However the functioning side would report directly to the Minister. For instance if there was a disaster in Malawi, it would be the Minister who would authorise a team to go there, and the Minister would speak directly to the President, so there were political dynamics involved. He confirmed that these amendments would not affect the role of the Director General in the department where the function had been assigned.
Mr Masondo said it would be useful to get a practical indication of what would happen when disaster struck. Also, he wanted to know about reporting on the day-to-day functions when there was no disaster. Who reported to whom? - if these issues were not clarified now there was a risk of having a very complex structure later on, with possible confusion and lack of clarity on accountability. The structure could actually become a very big burden to government or add unnecessary tension when things could be done differently. The Department should clarify to give a clearer idea to the Members.
Mr Terry responded that in terms of section 26 of the Disaster Management Act, responsibilities were clearly spelt out, in the event of a national disaster. The National Executive was primarily responsible for coordination and management of a national disaster, irrespective of whether a national state of disaster had been declared in terms of the Act. If a national disaster occurred, there were a couple of national committees mandated to handle the situation. The first committee was headed by the Minister of Cooperative Governance, who would call together the political principals. The other committee was headed by Mr Terry, and this committee would deal with the administration and actual operations around the disaster, as the formal structure. Externally, any country calling for South Africa's assistance in a natural disaster would approach the Department for International Relations and Cooperation, who would speak to the President, who would in turn speak to the Minister of Cooperative Governance, who, after this consultation, would issue instructions. This was similar to the way the disaster affecting South Africans in Nigeria had been handled.
Mr Masondo said he could relate to the international situation, but was more interested in hearing the process if there was a local disaster.
The Chairperson outlined that the principal Act had assigned functions to the Director General but the Department was later advised not to limit this as the function was one assigned by the President, and could be assigned to any Minister, which was why there was a suggestion by the NDMC for Ministerial accountability. The Committee might decide to reinstate the reference to the Director-General, but he suggested that if the Committee wanted to consider this, it would be wise to meet with the Director General of the Department of Public Service and Administration to hear the views. He noted the views expressed on the position in other countries.
Mr Matlhoko said that the person appointed to head the NDMC would based in the Department, but the Head and Director General should not be put in a position of possible conflict.
Mr Mthethwa repeated the question how the reporting lines would be when there was no disaster.
Mr Terry clarified that the Act did not only deal with actual physical disaster on a day to day basis. There was also a huge emphasis on disaster risk reduction, which covered a whole spectrum of activities, such as in the policy section responsible for the framework. Other sections dealt with fire services.
The Chairperson suggested that the Committee return to the issue.
Mr Mileham said he did not think the Committee was arguing for the reference to the Director General to be re-instated. The Committee was arguing to have clear lines of reporting, where the Minister could request the Head of the Centre to submit reports, furnish information, and account for what the Centre was doing. At the moment, an annual report was specified, in terms of section 4 of the principal Act, but he was concerned about other reporting structures.
Mr Terry said that this did not relate to the NDMC only, but also to all senior officials who had clearly defined performance agreements. The performance agreements signed with the Minister stipulated clear outputs, reporting structures and responsibilities. Many issues were prescribed in the performance agreements. They would not normally be included as part of legislation. Regulatory frameworks also dealt with the issues. Individual performance and reporting were clearly covered by these regulations and policy frameworks.
Mr Mthethwa said that this was not clear and it was not in the legislation. The Committee needed to see clear reporting structures outlined.
Mr Masondo proposed that the matter be deferred, and Members come back to it at a later stage. The Committee was not going to debate performance agreements with the Minister. The present focus was on how the structure would work, and it was important to have clarity on accountability.
Clause 7: Amendment of section 15 of Act 57 of 2002
Ms Bruwer said this new Clause read that the NMDC may, “in any event of a disaster, or a potential disaster, call on the South African National Defence Force, South African Police Service and any other organ of state to assist the disaster management structures”. The word “and” was added at the end of the paragraph. The purpose of the amendment was to detail how the sectors and spheres of government might cooperate in respect of disaster management. The clause specifically made provision for the NDMC to call on other structures.
Dr Jordaan had remarked that the inclusion of the SANDF and SAPS as important stakeholders in disaster management in South Africa was an important improvement to the Act. The Department welcomed the views and support of the stakeholders.
Clause 8: Amendment of section 22 of Act 57 of 2002
Ms Bruwer said this clause was consequential to the amendments of clause 4.
The Chairperson thought with Clause 4 there were no issues apart from reporting issues.
Mr Mileham said the Committee did not have a problem with the Minister being the appointee. The Committee just wanted structural clarity.
Ms Bruwer said Clause 8 was a proposed amendment of section 22 of the Principal Act by substituting paragraph (f) to refer to acting in any other way approved by " the Minister” rather than the Director General..
Clause 9(A): Amendment of section 23 of Act 57 of 2002
Ms Bruwer said this was also a new clause. Section 23 of the Principal Act was being amended. The purpose of the amendment was to deal with the details of how the three spheres of government might cooperate in respect of a disaster and disaster risk reduction. It basically required the NDMC to inform the relevant Provincial Disaster Management Centre of the decision on the classification of a disaster. The section compelled the NDMC to communicate with Provinces. There were no stakeholder inputs.
Clause 9(B): Amendment of section 23 of Act 57 of 2002
Ms Bruwer said the section, in paragraph (iii), talked about a cross-boundary Municipality, but these had been abolished after promulgation of the Cross-Boundary Municipalities Laws Repeal and Related Management Act.
There were no issues raised on this clause.
Clause 10: Amendment of section 24 of Act 57 of 2002
Ms Bruwer said the Department was substituting the heading of the Principal Act, which presently referred to annual reports, although the Department wishes to use a more generic "reporting". Sub sections had been included. In terms of sub-section (4), each organ of State must, following the declaration of a disaster, report quarterly to the National Centre on various kinds of information. She asked for and received confirmation that the Committee did not want her to go through all the specifics.
Mr Mileham noted the Departmental response that there was a proposal that additional elements should be included to address aspects of the Sendai Framework. This had not really been considered. He said he did not have a problem with subsection (4)(c) but had a problem with (4)(d) as it referred to a specific programme of an international framework. He felt the Department should be cautious about limiting itself in that regard, and should not be making specific references to things like "Build Back Better" and the like. He asked how “Build Back Better” facilitated the recovery, rehabilitation and reconstruction, and pointed out it was someone else's programme.
Mr Jurgens Dyssel, Senior Manager, NDMC, said that after a loss, the causes of the loss must be considered when planning the reconstruction programme, to avoid a future similar situation. For instance, if a river washed away a bridge, engineers must consider what the main cause of that was, and "Build Back Better" might need to consider that essential maintenance may not have been done. A better word could perhaps be found.
Mr Mileham suggested that “list measures to prevent the facilitation of similar disasters in the future during the recovery, rehabilitation and reconstruction process” was perhaps a better formulation, rather than referring to a specific programme. He asked if this was to be included as an approved change.
Ms Bruwer thanked Mr Mileham for his suggestion. The Department had agreed, after hearing the stakeholders, to make a minor amendment. The “Build Back Better” programme was only adopted in March and talked about priorities for the world, and this was committed as a 15-year programme. The revised section also dealt with age, gender and disability perspectives, which the Department thought should be incorporated here. The Committee would have to consider whether this was appropriate.
The Chairperson said he thought Mr Mileham was merely suggesting a better way to capture the intention. He asked if this was an international obligation; if so, then it was strange for the country to make a commitment and not adhere to the requirements of the international Treaties, although if the treaties had been signed, this would enhance the Bill. Cultural and gender issues would need to be considered; they were important internationally but he was now sure about including them here.
Mr Mileham suggested that the Committee should accept the new subparagraph (4)(c) and provisionally accept (4)(d), subject to rewording. He understood what the Department was trying to say but it should be in clear and more accessible wording.
The Chairperson agreed with Mr Mileham that the wording should be clear without reference even to the international treaties.
The Chairperson agreed that age, gender and disability were important. It was a well-known fact that during disasters, it was women and children who suffered the most - such as flooding in Malawi and Mozambique, and sometimes people would flee from floods leaving a disabled person behind. Perhaps the Department was suggesting that it was important to have these subsections, but with better wording, and the principle behind "build it better" was sound.
Mr Masondo asked if it was possible for the wording to reflect that work could continue even if there was not ideal quality - for instance, if a bridge was washed away, there should not be any suggestion that it would not be replaced until there was something better than the original available. He would be the first to say that there should be quality infrastructure, which should last for many years to come, but would also accept that sometimes there was a need for a makeshift arrangement, for instance to allow children to get to school. Interventions should not stifle creativity and prevent people from returning to normal life as soon as possible after a disaster.
The Committee agreed that the Department needed to rework the wording, and he took the point, but the Chairperson added that it was important to find the right balance to avoid constantly constructing temporary bridges.
Clause 11(A): Amendment of section 25 of Act 57 of 2002
Ms Bruwer said the clause was about Disaster Management plans for organs of state, and it was trying to ensure that a logical sequence of events would be followed. There should be risk assessment planning, and Disaster Management planning for organs of state should indicate where the concepts and principles of Disaster Management plans were implied in specific functional areas. The plans should provide clarity on the roles and responsibilities of organs of state. An important amendment was extending the content of the plan to include Disaster Risk Assessment for functional areas, mapping areas of disaster risk and communities vulnerable to disasters. Plans should also provide measures and indicate how the risk for disasters would be reduced through adaptation to climate change and developing early warning systems.
She noted that Professor van Niekerk acknowledged the significant emphasis of climate change and climate change adaptation within the responsibilities allocated to the various spheres of government and organs of state. He recognised that disaster risk reduction, sustainable development and climate change adaptation were inseparable, and fully supported the inclusion of this concept.
The Financial and Fiscal Commission (FFC) had also specifically welcomed the incorporation of risk assessments into disaster management plans, as well as the mapping of risks and communities vulnerable to disasters.
Dr Jordaan of the University of the Free State stated that the elevation of risk assessment as the foundation tool for all disaster management activities and plans was praiseworthy.
Ms Bruwer referred to the recent global adoption of the Sendai Framework for Disaster Risk Reduction, which emphasised paying particular attention to women, children and the disabled in disaster management policies, plans and programmes. A small amendment had been made in terms of the plans.
The Chairperson noted that public participation processes enabled good ideas from the public to be incorporated in order to refine the law-making process.
Mr Mileham fully agreed with the amendment. However he suggested a further amendment, into section 25(1)(c)(vii), adding the word "specific" before "measures taken to address the needs of women and children, the elderly and persons with disability". At the end of the sentence "in the event of a disaster” should be added, to specify that this must be done in a disaster situation - this might include special provision of sanitation, water, with a focus on the relevant issues, to decide what specific measures were being taken for women and children, the elderly and people with disabilities in the event of a disaster.
Mr Dyssel agreed there was a need to focus, but he thought that it should not be limited to the actual disaster happening. Preparation for disasters and prevention of disasters were important, and individuals had to be coached in advance. Maybe the Department needed to look for wording that incorporated the prevention, planning and the event.
Ms Vuyokazi Ndau, Executive Manager: Legal Services, COGTA ,agreed with her colleagues that the heading of section 25 spoke to the preparation of Disaster Management plans and this might be too narrow, taking into account the original content of section 25.
The Chairperson suggested that the Department should reconsider this and try to find wording that reflected the content.
Clause 11(b): Amendment of section 25 of Act 57 of 2002
Ms Bruwer said the original Clause read that “a national organ of state must submit a copy of its disaster management plan and of any amendment to the plan to the National Centre”. This current amendment was substituting the paragraph, and was also including the wording: “provided a copy of a disaster management plan by a major public entity listed in Schedule 2 of the Public Finance Management Act was also submitted to the National Centre” This included entities such as Telkom and Eskom, and all other entities which had a big impact on Disaster Management issues.
The Chairperson asked for a definition of "organ of state". People tended to think of this as Parliament. There were many which would need to prepare for disasters.
Mr Mileham asked what would happen if an organ of state listed in Schedule 2 did not submit Disaster Management plans; the wording implied that if this had not happened, then it would also not submit to the national centre, and this was clearly a loophole. He suggested that the section should refer to a national organ of state as well as any major public entity listed in Schedule 2 of the Public Finance Management Act, and say that it must submit a copy of its Disaster Management plan and any amendments to the National Centre.
Ms Bruwer responded that the principal Act already spoke to the situation where this plan was not submitted, in section 25(3)(b). In this case (a) said that the National Centre must report the failure to the Minister, who must then take necessary steps to secure compliance, including reporting the failure to Parliament”. The purpose of the latest inclusion was to also make sure that the usual communication and liaison respected the public entity's parent department, so that both this parent department and the National Centre would get copies, to ensure better alignment of all plans.
Mr Mileham said he did not have a problem with the intention of the communication, only with the way that it was worded. Section 25(3)(b) of the Principal Act made no mention of a major public entity, and spoke only to national organs of state. The current wording meant that if Eskom did not submit any plans to the Department of Public Enterprises, it would not have to submit them to the NDMC, as no obligation was being created.
Mr Gideon Hoon, Principal State Law Advisor, Office Of the Chief State Law Advisor, said perhaps subsection 3 could be amended to specifically refer to "the office contemplated in the section" to direct the references.
The Chairperson suggested that this would cover Mr Mileham's concerns.
Clause 11(c): Amendment of section 25 of Act 57 of 2002
Ms Bruwer said Clause 11 (c) was a new insertion that said that the National Centre must make available, to relevant Provincial and Municipal Disaster Management Centres, the disaster management plans of organs of state. This clause was thus again giving the National Centre responsibility for sharing information across all spheres of government, and improving coordinating arrangements.
Mr Mileham asked how this related, again, to major public entities, citing the example of Koeberg. There was a need for coordination at municipal level.
Ms Bruwer thought that major public entities were also organs of state.
Mr Mileham said that if this was so, then why were they being separately defined.
The Chairperson also thought that "organ of state" meant everything covered by the state, including all the transport, water, air and other entities. The purpose of the amendments was to improve implementation.
Clause 12: Amendment of section 37 of Act 57 of 2002
Ms Bruwer said the clause was very similar to a previous one, including input from the National House of Traditional Leaders. Here, the NHTL could recommend traditional leaders to serve on Provincial Disaster Management Advisory Forums.
Clause 13: Amendment of section 38 of Act 57 of 2002
Ms Bruwer said this clause was similar to the one on national plans. It was, again, only the Provincial plans with a similar sequence, but similar additions in terms of taking into account concerns around women, children, and the elderly.
Clause 14(3): Amendment of section 43 of Act 57 of 2002
Ms Bruwer said the amendment would add a new subsection (3) to section 43 of the Principal Act. This new subsection read that: “a local Municipality must establish capacity for the development and coordination of a Disaster Management plan and the implementation of a Disaster Management function for the Municipality which forms part of the Disaster Management plan, as approved by the relevant Municipal Disaster Management Centre” (the District Disaster Management Centre).
The purpose of the amendment was to re-affirm the function of municipalities. They were responsible for establishing capacity for development and implementation of the Disaster Management plans for the municipal area. The amendments in the Bill sought to clarify and strengthen roles and responsibilities of local municipalities in relation to disaster management.
Stakeholders had made input. Professor van Niekerk alluded to the varied interpretation of the Disaster Management Act and uncertainties of roles and responsibilities between district and local municipalities. He welcomed the legal clarity and certainty that the Bill sought to provide. An extensive research project for the South African Local Government Association (SALGA) had concluded that local municipalities felt left out and disempowered from the Disaster Risk Management debate, indicating that they were never or rarely consulted by their District Disaster Risk Management structures. He believed that disaster risk management could only be effective at local levels.
The Chairperson interjected and said that perhaps the stakeholder inputs could be referred to if they did not agree with proposals.
Mr M Mapulane (ANC) asked how the Department was going to deal with the issues raised by SALGA.
Ms Bruwer responded that this was not a new function, as it had been provided for since the promulgation of the principal Act. This was providing clarity on disaster management plans, already dealt with under the Municipal Systems Act (MSA), which stipulated that disaster management must be a core component of the Integrated Development Plans (IDPs) of municipalities. This clause was confirming that local municipalities must ensure that disaster management plans were put in place.
The Chairperson said the engagement with SALGA was continuous. FFC and National Treasury also raised questions around the finances. He suggested that COGTA and SALGA should continue to meet to ensure that they finalised issues.
Clause 14(4): Amendment of section 43 of Act 57 of 2002
Ms Bruwer said the clause added wording, providing that “a local municipality may establish a disaster management centre, in consultation with the relevant district municipality, in accordance with the terms set out in a service level agreement between the two parties, in alignment with national norms and standards”. It was not contentious and merely provided a mechanism whereby a local municipality may establish a Disaster Management Centre, in consultation with a district.
Mr Mthethwa asked for clarity on the way the Department was using "may" and "must", asking if "must" was regarded as a definite instruction and "may" as a choice.
Ms Bruwer said that "must" created an obligation whereas "may" gave a body an option.
Mr Mapulane asked what level of capacity the Department was envisaging the local municipalities to have.
Ms Bruwer responded that it would depend on the risk and size of the municipality. Currently, many municipalities had structures around disaster management - such as Polokwane. The municipality must take responsibility for all its departments coming together to decide how to deal with disaster management in that municipality, which was a multi-sectoral function. For instance, it must decide how it would deal with storm water floods, or ensure that people did not settle in disaster-prone areas, and identify the risks and solutions.
Mr Mapulane said the department did not specify the meaning of local level capacity. He asked whether regulations would be used to deal with the issues. There should be some specified minimum level of capacity. This was a new requirement for municipalities, and it meant that some processes would be needed to establish that capacity. Some municipalities had the capacity, but others did not, and they would have to start from scratch in order to meet the new requirement.
Mr Dyssel responded that the Department would first be looking to how the disaster management plan would be achieved. It would then look at the monitoring and evaluation methodology introduced by government in various documents, emphasising the importance of the outputs rather than the processes. It would thus use an outcomes-based approach, requiring plans, rather than saying that it wanted set norms and standards. The Department was not saying the municipalities should have a certain number of offices, but merely that they must follow the broad processes for establishing plans. Section 76 of the MSA required municipalities to give details how they would produce a service. They may use multiple mechanisms to do so - internal, external, consultation. The principle was that the municipality must apply its mind. It might decide to look at the fiscal situation, organisational systems or draw from already existing services or assign this to another office. It was important for the Department to provide space for the municipality, rather than dictating how it should be done, which would be limiting the executive function of the municipality.
Mr Mapulane disagreed with Mr Dyssel. He read out the wording: “a local Municipality must establish capacity for the development and coordination of a disaster management plan and the implementation of a disaster management function for the municipality”, and said this was a new requirement. There was, in his view, a need to determine the extent of the new requirement, and SALGA was also arguing that because this was a new requirement, a minimum was needed. He said the Department should not assume that because this had been included in the MSA, anything was done about it. The Committee would want to see it done now.
Mr Terry said that establishing capacity did not necessarily imply the building of a new structure, but rather re-arranging how existing rules would apply in the future. He thought that there was already capacity in municipalities, such as fire officers, risk officers and others. This was really a question of getting them to do necessary things. Individuals were to be assigned to specific functions that already existed.
The Chairperson said if there were new ideas then the matter could be discussed again at an executive level.
Clause 15: Substitution of heading to Part 3 of Chapter 5 of Act 57 of 2002
Ms Bruwer stated that the original clause was about powers and duties of municipalities and municipal entities. The new clause referred to "powers and duties of municipal organs of state”. This was consequential to the insertion of the new definition of "municipality" in Clause 1 of the Bill, referring to the preparation of plans by municipalities in terms of section 52.
There were no specific inputs from stakeholders on this clause.
Clause 16: Amendment of section 51 of Act 57 of 2002
Ms Bruwer said the clause was similar to clauses on the national and provincial organs of state, and again would include Traditional Leaders in the vital programme. The suggestion was welcomed by the Department.
The Chairperson said the Committee had already agreed that Traditional Leaders should be involved.
Clause 17(a) & (b): Amendment of section 52 of Act 57 of 2002
Ms Bruwer said this was another example of the substitution of "municipal organs of state". The purpose was to provide for municipal organs of state to bring their plans in alignment with the sequence of the provincial national plans, as discussed earlier.
Mr Mileham repeated earlier concerns about women and children.
Ms Bruwer said she thought Clause 17(c) had already been dealt with. This was a wording change only.
Clause 18: Amendment of section 53 of Act 57 of 2002
Ms Bruwer said the amendment was intended to include the whole of the municipality in planning, and this related to the sequencing of what was discussed with the provincial and national disaster management plans and also municipal organs of state. Once again issues of women and children and Build Back Better would be provided for.
Mr Mileham asked if Build Back Better was supposed to be included in the section; it was not included.
Ms Bruwer apologised for the oversight and said it was unintentional.
The Chairperson said the Committee had agreed the Department would rework the wording.
Clause 19: Amendment of section 59 of Act 57 of 2002
Ms Bruwer said the amendment was allowing the Minister to regulate on certain matters; here, the focus areas of the NDMET Framework, and matters concerning the declaration and classification of disasters. It was an enabling clause.
Clause 20: Substitution of long title of Act 57 of 2002
Ms Bruwer said the new long title included the various issues dealt with by the amendments.
Clause 21: Short Title and Commencement
Ms Bruwer said Clause 21 was the short title and commencement of the Act.
Mr Mapulane said he was of the view that the short title would be amended to read “Disaster Risk Reduction”.
Ms Bruwer responded that this had been discussed under definitions. The Department felt that the current definition of "disaster management" in the principal Act was very comprehensive. She referred Mr Mapulane to page 14 of the document, detailing Disaster Management vs Disaster Risk Management. In terms of the principal Act, “disaster management” meant a continuous and integrated multi-sectoral, multi-disciplinary process of planning and implementation of measures aimed at preventing or reducing the risk of disasters, mitigating the severity or consequences of disasters, emergency preparedness, a rapid and effective response to disasters and post-disaster recovery rehabilitation. Because this definition was so comprehensive, the Department did not feel it necessary to change the title of the Act to also reflect all of that. Interestingly, the Namibian legislation used "disaster risk management" and defined it in exactly the same way as the South African version. Furthermore, the Constitution referred to "disaster management" so this would be consistent. The document also had analysed each concept and related it back to the UN terminology and Members might find it instructive to study that.
The Chairperson said the Committee had accepted the definition, and there was no need to change the title.
Mr Mapulane said this was acceptable; he had remembered that analysts had agreed that the terminology was outdated and suggested that new terminology was needed. If the only thing stopping this was the Constitution, they perhaps it should be changed, particularly if the definition was moving in line with international standards.
Mr Mileham said that if "Disaster Reduction Act" was used, this focused on only one aspect - perhaps the more correct was "Disaster Risk Reduction and Disaster Management". The definition did incorporate disaster risk reduction, and it was the content, rather than the name, that was important. Perhaps, when the Act was amended again, this might be changed, but for the moment he suggested that it should be left as it was, and be aware of which Act was being amended.
The Chairperson said that the point he had raised earlier on was that all the concerns that had been raised by the submissions were covered in the definition. There was a need to adapt to international standards and he agreed this might be done over time - at the moment, risk reduction and other matters were being dealt with. This was a very comprehensive piece of legislation.
Mr B Bhanga (DA) said that he was not convinced that the title could not be changed because of the Constitutional wording. He suggested that the Constitution was prescribing a function, and the defining of the legislation would not have any Constitutional connotations.
Mr Bhanga said that the argument that about climate change should not be downplayed. The world could not manage climate change, but it could reduce its effects, and that was the reason for the educational approach. Risk reduction was not a question of semantics, but was actually elevating a function to reduce risk, and he did not see why that could not be incorporated in the title. He would support the title change and did not think it would detract from the Constitution. He suggested that the Committee should not undermine the contributions from institutions of higher learning. There was good reason and intention in including risk management and disaster management in the title.
e was raising the point again because he was amongst those who wanted to change the title.
The Chairperson referred Members to page 14. Risk reduction was already covered in the definition, and this was why other Committee Members felt the title did not have to change. Points raised by the Members were covered in the clause. He agreed that the legislation could be re-written or even repealed in future, and this could take any new developments into account.
The Chairperson noted that the Committee had now been through the whole document, from page 14. He asked that the drafting team re-work the clauses where necessary, and the State Law Advisors should verify any changes.
Mr Mapulane made a request that since the State Law Advisers were present, they should clarify for the Committee whether the functions being given to local municipalities were new assignments or not. If they were, then the municipalities would have to consult with the FFC and organised local government and that might hinder the process.
Mr Mileham said that he had understood that there had already been consultation with SALGA and FFC. SALGA had raised the concern that this was an assignment of function, and in such a case, funding should follow but SALGA argued that this had not happened. During its discussion with the Committee, the impression was created that there was "money out there". However, from his own experience in working with municipal councils, he doubted that there was indeed much money "out there". It was also said that the money was in the equitable share, but this was not true, as the equitable share was under funded by R3.56 billion, on just electricity alone, its biggest component. He was not sure that there was actually any money. He was very concerned, and gathered that although there had been consultation, actual funding had not been put in place.
Mr Mudau said that at the last meeting with the FFC and COGTA, it was mentioned that COGTA's Director General had held several meetings with SALGA and the meetings would continue. In addition there was also an assurance that this was not a new function, and that it was already happening in districts and municipalities. This was not the last meeting with the NMDC so he suggested that perhaps the Committee should agree to discuss the issues again once there was more information available. MPs should know that these were not new functions. Only some parts of the legislation were being amended.
Mr Mthethwa said that COGTA was repeating what had been said when SALGA was present. Nothing much had changed despite the department having consultations with SALGA, and the Committee was not hearing anything new. Any issues with SALGA should be resolved now, to assist the Committee in moving forward. COGTA should also find a way to resolve the issues of function and funding. He was aware this was not a money Bill but he did not think it would help if the Committee were not to consider how municipalities would be funded.
Mr Mapulane said the main issues that the State Law Advisers needed to advise on was whether it was a new assignment or not. If it was a new assignment then it had to be done so that money would follow the function. If it was not, and that was something agreed upon by COGTA, SALGA and the FFC, then it was not a problem. The level of consultation would not affect the money requirement aspects of the function. There would be no obligation on the part of the Department to allocate more funding, whether through equitable share or in any other way.
Mr Bhanga said that it would not be possible to drive this legislation forward when the legislators remained confused. At the previous meeting the Committee had been informed by National Treasury that money was "out there", but he repeated that he did not know how municipalities would manage the function without funding.
The Chairperson said that Mr Bhanga was right on the principle but the point being raised was that this was not in fact a new function. That was what National Treasury and the FFC, who were both dealing with money matters, had said. SALGA took the opposite view, and had requested money to cater for what it believed was a new function. The COGTA and SALGA simply did not agree, so it was not a matter of confusion. Consultation with SALGA must continue after the Bill was passed, to resolve the old / new function disagreement. National Treasury had already specified that there would be no additional funding for this, as municipalities already had ambulances and fire trucks. ~
Mr Hoon suggested that the State Law Advisors could provide an opinion to the Committee, and added that this could be produced by next week.
The Chairperson said consultation and communication with SALGA should continue. It would be necessary to implement the Bill, but agreed that this could not be done if there was no money.
The Chairperson concluded that the Committee had agreed on the definition and it had been amended accordingly. It had also been agreed that the Department would work on the suggestion to capture better the issues of women and children, people with disability and the elderly. The issue of Build Back Better would also be worked on. The Committee would meet again to agree on the amendments and finalise the Bill.
Mr Masondo added that issues of accountability also needed to be worked on by the department.
The meeting was adjourned.
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