The Office of the Chief State Law Adviser tabled the Performing Animals Protection Amendment Bill before the Portfolio Committee on Agriculture, Forestry and Fisheries for consideration.
The Committee heard that the purpose of the Bill was to amend the Performing Animals Protection Act (PAPA), to insert certain definitions, provide for the designation and functions of a National Licensing Officer, provide a procedure for the application for a licence to exhibit, train for exhibition or the use of an animal for safeguarding, and provide for the issuance of licences and an appeals process.
The Committee was informed the Bill would have implications for departments involved in wildlife. This included the Departments of Environmental Affairs and Tourism and Science and Technology, because they were directly and indirectly involved in the issues around licences issued in terms of the PAPA.
The Department of Agriculture, Forestry and Fisheries (DAFF) would, by implication, manage the National Licensing Officer and had to source funds from the fiscus to reimburse the National Licensing Officer, delegated officers and other administrative costs.
There would be minimal implications for the provincial governments. However, because nature conservation was a provincial function, there could be some involvement in the monitoring of the activities of individuals in the province who trained and exhibited wildlife, or who owned security dog companies.
Members raised a concern about the word “animal scientist,” because it could mean a person who was working in a laboratory, or it could be interpreted differently. It was suggested that the publishing of the application, re-application and granting of licences should be included in the Bill so that people could make appeals. Members wanted to know how many days it took to make a decision about the granting of a license, and what happened to the existing animals if an application was not renewed.
Advocate Yolande van Aswegen, Chief State Law Adviser, said that the Performing Animals Protection Amendment Bill (PAPA) sought to amend sections 2 and 3 of the PAPA because these sections had been declared constitutionally invalid in so far as they related to magistrates deciding on and issuing licences to persons intending to train and exhibit animals, and to persons who used dogs for safeguarding.
Clauses 1 and 2: Repeal of sections 2 and 3 respectively
These clauses dealt with magistrates issuing licenses for the exhibition and training of performing animals and for the use of dogs for safeguarding. The Constitutional Court declared these clauses as unconstitutional on the basis that a member of the Judiciary should not be performing administrative actions that were supposed to be performed by the Executive.
Clause 3: Insertion of section 3A to 3L
This clause sets out the procedure for the granting and issuing of licences, and matters connected with it. It ensured compliance with the Constitutional Court judgment. This clause further provides for the designation of a National Licensing Officer, the qualifications and functions of the National Licensing Officer, the appointment of experts to assist the National Licensing Officer, delegation of powers and functions by the National Licensing Officer, the procedure for the consideration and granting of applications for licensing, the duration of the licence, the process for the application of a licence, the hearing of applications if the National Licensing Officer can not make a determination on the documents provided, the process for the issuing of licences, the process for the withdrawal of licences and the validity of a licence anywhere within the Republic of South Africa.
Sections 3A, 3B, 3C and 3D remained the same.
On section 3F (a), (b) and (c), “an” had been changed to “any”.
Concerning “Regulations” under the Amendment of section 7 of Act 24 of 1995, the underlined sub-sections (dA to (dC) had been inserted to amend section 7.
Paragraph (e) dealt with the penalty of the fine, which had been increased from R4 000 to R20 000.
Clause 4: Amendment of section 11
This clause sought to incorporate additional definitions into the Act that were consequential to the revised procedure adopted for the granting and issuing of licences. The following definitions had been inserted: “Animal Scientist”, “officer”, “National Licensing Officer”, “head of department”, “use for safeguarding” and “Veterinarian”.
The heading had been amended to read as: Amendment of section 11 of Act 24 of 1935 as amended by section 7 of Act 7 of 1972 and section 9 of Act 7 of 1991.
Section 11 of the principal Act had been amended by inserting: “(a) by the substitution for the definition of ‘animal’ of the following definition:”
Clause 5: Insertion of section 11A
This clause provided for an appeals process by the insertion of section 11A. Section 11A provided for the establishment of an ad hoc Appeal Board by the Minister, the appointment of members, the appointment of the chairperson, and the functions of the chairperson and Board.
Sections 11B to 11E had been inserted in Act 24 of 1935.
11B provided the “Right to appeal”.
11C dealt with the Appeal Board, composition and membership.
11D provided for the investigation and consideration by the Board.
11E dealt with the consideration of appeals by the Minister.
Clause 6: Short title and commencement
This clause provided that the short title of this Act, when it is enacted, would be the Performing Animals Protection Amendment Act, 2015, which comes into operation on a date fixed by proclamation in the Gazette.
Ms A Steyn (DA) raised a concern about the word “animal scientist,” because it could mean a person who was working in a lab or it could be interpreted differently.
Dr Botlhe Modisane, Chief Director: Animal Protection, DAFF, explained that this was based on the issue of competence and qualifications in order to be called an animal scientist. The term referred to a natural scientist involved in the welfare of animals.
Ms D Carter (COPE) wanted to know to whom “officer” referred in 3D.
Dr Modisane said an officer could be a provincial or a national officer.
Ms Steyn said there was no definition of the word “expert” in 3E(b).
Advocate Van Aswegen said the definition was in sub-section 3, which states that “A person contemplated in subsection (1) must comply with the qualifications set out in section 3B.” Another definition could be found in 3E(b), which states “a person appointed in terms of section 3D.”
Ms Steyn suggested that the publishing of the application, re-application and granting of licences should be included in the Bill so that people could make appeals.
Ms Carter said the issue should be mentioned in the regulations and be on the website of the Department, because media costs for publishing were very high.
Mr T Ramokhoase (ANC) supported Ms Carter, saying the Act encompassed regulations and no Minister could change that after it had been agreed to by the Committee.
The Parliamentary Legal Advisor responded that the National Licensing Officer would use his or her discretion to let the public know if there an application had been made, but that should be included in the Bill.
Ms Steyn stated that the appeal must be made before the licence was approved. The application of a licence must be published before it gets approved in order to allow time for an appeal and to shorten the process.
The Chairperson reminded the Committee that it had deliberated on this matter before. The welfare of the animals could not be solved only through this Bill, because there were some people who used animals for rituals or cultural activities. This meant there was a need to consult many people about their culture. This issue of the animals’ welfare was going to delay the passing of the Bill, because it was a very long process.
Ms Steyn insisted that if the Department received an application, it had to publicise it on its website and indicate timeframes for the public to comment.
The Chairperson said the issue was whether this idea should go in the Bill, or in the regulations.
Dr Tembile Songabe, Director: Veterinary Public Health, DAFF, informed the Committee that there were provisions contained in the draft Bill published in April last year regarding the suggestion of Ms Steyn. The Department feared there would be never-ending objections. The issuing of licences was the determination of the executive, not on the approval or refusal from another person. This was a ruling that had been made by a judge in the Gauteng High Court.
Ms Carter suggested that the Department should consider defining the word “exhibit” in 3F1(a).
Advocate Van Aswegen said that the definition was contained in the old Act and could not be introduced in the Bill. Once the Bill became the law, these provisions would be incorporated into the Act.
Ms Carter said the definition was not sufficient, because the military used rats for safeguarding.
Advocate Van Aswegen said these were exceptions, and were covered in the old Act.
Mr Ramokhoase explained this had been discussed before, hence the insertion of “and others” to cover animals like rats.
The Chairperson reminded the Committee not to advance their personal issues, but to debate the inputs that had been received from the public.
Ms Steyn, concerning 3F sub-section 3, suggested that “may” be changed to “must”.
Advocate Van Aswegen said that “may” had been inserted because the visit of the National Licensing Officer depended on the consent of the applicant.
Dr Modisane elaborated that the insertion of “must” would take away the issue of consent. It also introduced a condition -- that before being granted a licence, the premises of the applicant should be inspected and this would delay the licensing process.
Mr L Ntshayisa (AIC) suggested the retention of “may”.
Ms Z Jongbloed (DA) proposed that the 21 days the National Licensing Officer should take to inform the applicant about the granting, refusal and amendment of a licence, should be reduced to 7.
Dr Songabe explained that once the National Licensing Officer received an application, he or she would have to consider issues like research and consultation before granting or refusing a licence. This meant before talking to the applicant, the National Licensing Officer had to look at the implications of his or her decision. The 21 days was reserved for such considerations.
The legal team of the Department said there was no reason why this could not be revised. It noted that the word “within” before “21 days” suggested that this could be done in three to seven days.
Ms Carter, on 3J, wanted to know how many days it took to make a decision about the granting of a licence.
Dr Songabe said that in the regulations, it was proposed to be 30 days.
Ms Carter suggested that the turnaround time be incorporated into the Bill.
The Chairperson said that should be parked for the decision of the Committee.
Ms Jongbloed, on 3K, wanted to know what happened to the existing animals if the applications were not renewed.
Dr Songabe said this meant the National Licensing Officer had denied one the right to use them for performance, but one could keep them. He further mentioned there were certain reasons why a licence was not renewed. For example, it could be due to a disease. However, the Animal Protection Act would kick in and one would remain the owner of the animals.
Ms Carter, concerning “Regulations” under the Amendment of section 7 of Act 24 of 1995, enquired who decided on the application fees, because they had been increased from R50 to R350.
The Chairperson informed the Members that the Committee had not yet received a presentation from the Department regarding “Regulations”.
Advocate Van Aswegen told Members that some of the “Regulations” they had seen from the Department were invalid, which was why the legal team was still discussing them with the Department.
Dr Modisane indicated that the Department would be guided by the Committee as to when it would like the Department to come make a presentation about the matter.
Mr C Maxegwana (ANC), regarding “Penalty” under the amendment of section 8 of Act 24 of 1998, suggested the deletion of “he,” which was a reference to the magistrate, as he reasoned that there were also female magistrates.
Advocate Van Aswegen agreed to the suggestion.
Ms Steyn, on 11E, suggested the deletion of “dog”, and for it to be replaced by “animal”.
Dr Songabe indicated that in the final proof-reading of the document, it would be taken out.
Ms Jongbloed, concerning 11 under the insertion of sections 11B to 11E in Act 24 of 1935, wanted to find out why the road to appeal was so long, and why one could not rather go direct to the Appeal Board.
Dr Songabe informed the Committee that the Minister designated a person. If that person failed, the Minister then had to approach the Board. The Board then advised the Minister on determinations. If the person went direct to the Board, the matter may end up in court, and the Minister could be sued.
Ms Steyn then asked if one could still go to court if one was not happy with the appeal.
The Parliamentary Legal Advisor said one had to exhaust internal processes first and then go to court if the matter could not be solved internally.
Ms Steyn wanted to know what the timeframes for an appeal were.
Dr Songane said the proposed draft regulation stipulated 60 days.
Adoption of the Committee’s Annual Performance Plan
Ms Steyn went through the document page by page.
The Chairperson asked for a proposer for the adoption of the Plan.
Mr Maxegwana moved for the adoption.
Ms Steyn seconded him.
The Annual Performance Plan was adopted.
The meeting was adjourned.