Disaster Management Amendment Bill [B10B-2015]: briefing

Meeting report

The Chairperson said that with respect to this meeting, the Select Committee was of the view that the Committee chairpersons of the various provincial legislatures should be brought on board before the Disaster Management Amendment Bill was dealt with by the respective provinces. It was felt that there should first be the formulation of a common understanding for purposes of negotiating a mandate before public hearings were embarked on.

The apologies of absent Committee members and chairpersons of the provincial Committees of COGTA were recorded.     The Chairperson put it on record that the delegation was supposed to have been led by the Minister of Cooperative Governance and Traditional Affairs (COGTA) and his Deputy, but the Ministry had submitted a written apology.

Briefing by COGTA on the Disaster Management Amendment Bill

Ms Ane’ Bruwer, Chief Director: Legislation Policy and Compliance Management for the National Disaster Management Centre (NDMC) provided a background to the Disaster Management Amendment Bill. Disaster management was a functional area listed in Schedule 4a of the Constitution, which implied that the legislative and provincial authorities had concurrent authority. The aim of the principal Act was to ensure implementation of an integrated and coordinated approach to disaster management across all spheres of government involving relevant stakeholders.  Some challenges had been experienced in implementing the principle Act, which required that the Act should be amended to make it simpler to implement, to strengthen certain regulatory provisions, to avoid ambiguity and to provide greater legal certainty. The Bill had passed through the relevant processes and the National Assembly had completed and passed the Bill to the NCOP.

Issues had been raised during the consultation process. Consultation had resulted in the drafting of the Disaster Management Amendment Bill, which was aimed at:

• clarifying terminology;
• the representation of traditional leaders in disaster management advisory forums;
• providing for the National Disaster Management Advisory Forum (NDMAF) to serve as the SA’s national platform for Disaster Risk Reduction (DRR), thereby incorporating the obligations set out in global commitments;
• clarifying the roles and responsibilities of organs of state to assist the disaster management structures;
• strengthening reporting on policy implementation using Inter-Governmental Relations (IGR) structures;
• expanding the contents of disaster management plans of organs of state to include expected climate change impacts and risks;
• reaffirming the role of municipalities (district and local levels) to establish disaster management committees (DMCs) and improve capacity for the development and coordination of DM plans; and
• granting the Minister authority to make regulations on education, training, research and the classification and declaration of disasters.

The National Assembly Portfolio Committee (NAPC) on Cooperative Governance and Traditional Affairs had considered and supported the DMA Bill after agreeing to some minor amendments being made. It had agreed that the Head: NDMC must report to the Minister; (Clause 4), the organ of state must report to the NDMC on the analysis of the impact of disaster in accordance with gender, age, disability and cultural perspectives, as seen in the recently adopted Sendai framework; and provide the NDMC with a list of the measures implemented in order to restore communities and the reconstruction and rehabilitation of infrastructure in a manner that made those communities less vulnerable to disasters and strengthened their resilience. The PC had agreed, in clause 11, that specific measures were to be taken to address the needs of women, children, the elderly and persons with disabilities during the disaster management process and that a major public entity, listed in Schedule 2 of the Public Finance Management Act (PFMA), must submit its DM plan prepared in terms of subsection (1) to the NDMC at the same time the major public entity submitted its DM plan to the relevant organs of state. It had also agreed in clauses 13, 17 and 18, that specific measures were     to be taken by provincial, and municipal organs of state to address the needs of women, children, the elderly and persons with disabilities during the disaster management process.

The two key issues highlighted by stakeholders throughout the review process entailed the notion that implementation challenges were being experienced due to the inappropriate location of disaster management centres within the organisational structures of provinces and municipalities, and that specific funding was not allocated for disaster risk reduction efforts across the spheres of government. 

Ms Bruwer then proposed a few options to address these issues. In relation to the issue of placement of disaster management in the organisational structure, careful consideration should be given to the placement of the DMC in the organisational structure to fulfil its role to effectively reduce the risk of disaster and be responsive to the needs of communities in the municipality. The head of the DMC should thus form part of the decision-making structure of the organisation, and should ideally report to the highest office within the municipality and province respectively. Such an approach empowered the executive leadership to ensure that the DMC was fulfilling its coordinating and strategic role to effectively reduce the risk of disaster within that particular sphere of government.

With regard to the issue of the funding arrangements for disaster management, the funding approach put forward by National Treasury was in line with the fiscal framework set out in the Constitution, the Public Funds Management Act (PFMA), the Municipal Finance Management Act (MFMA), the annual Division of Revenue Act (DORA), the Disaster Management Act of 2002, the Municipal Systems Act of 2000 and the National Disaster Management Framework of 2005. Enabler 3 of the National Disaster Management Framework flowed from section 7(2)(k) of the Disaster Management Act of 2002 and provided the framework within which organs of state may fund disaster management. It was agreed with NT that there was a need to review Enabler 3 of the National Disaster Management Framework of 2005 to bring it line with the contemporary fiscal arrangements within government. This process had already commenced with the identification of the stakeholder members to represent their organs of state in the task team. The first meeting was scheduled for 31 July 2015.

Disaster management was not funded from a single funding source. This concept had been explained by the NT in its presentation to the PC which had indicated that three main sources of funding for disaster management existed. These included own revenue, local government (LG) equitable share, and conditional grants for response and rehabilitation.

In light of the implementation of the Bill, the Chief State Law Advisor had suggested that the Bill be tagged as a Section 76 Bill, since it contained provisions affecting the interests of provinces. The NDMC would continue to support the parliamentary process. Once the Bill was passed into law, the Department would have sessions to engage with provinces and municipalities, including the SA Local Government Association (SALGA), on the substance of the Amendment Act. Circulars would also be distributed to provinces, municipalities and stakeholders. Regulations concerning the declaration and classification of disasters would be published before the end of the 2016/17 financial year.

Ms Bruwer then touched on the governance implications. There were no new organisational and personnel implications. However, the principal Act already required all organs of state to have capacity to develop and implement DM plans and perform the DM function. In many instances, especially in sector departments and local municipalities, little or no organisational capacity for DM currently existed. The Amendment Bill reemphasized the requirement to establish capacity to implement DM effectively. With regard to the financial implications in terms of current legislative provisions, organs of state across the spheres and sectors of government already had a responsibility to provide for developing DM plans and the implementation thereof. The Bill sought to affirm these responsibilities by having organs of state assign the required resources to perform its mandated functions. The communication implications were that once the Bill had been published, appropriate communication mechanisms would be activated through COGTA and the Government Communication and Information System (GCIS).The constitutional implications were that the Bill sought to give effect to the principles of co-operative governance set out in chapter 3 of the Constitution, through clear guidance on issues of DM across all spheres of government. Furthermore, by placing emphasis on reducing the risk of disasters, the interests of vulnerable communities and groups were protected through a focus on disaster risk reduction across all spheres and sectors of government.

Discussion              

The Chairperson opened the floor for discussion, and said that he particularly sought input from the various Chairpersons in attendance from the provinces and the NCOP members of the Select Committee.

Mr J Julius (DA, Gauteng) said that the Gauteng province had its own disaster issues, such us distressed mining towns, acid mine drainage and sink holes as a result of dolomitic conditions. He asked how far the ambit of disaster stretched, and whether these things and conditions were     included in the scope. It did not make business sense that there was more funding for disaster management than for disaster risk reduction. More emphasis should be put on the prevention of risk and its reduction, especially in the areas concerned in Gauteng, and he asked for further elaboration on this. He referred to a slide in the presentation which stated that “careful consideration should be given to the placement of DMC’s in the organisational structure to fulfil its strategic role to effectively reduce the risk of disaster and be responsive to the needs of communities in the municipality”. It did not make sense that there was no money to reduce the risk, as the local spheres of government were     not financially empowered to do so.

Ms M Rosho (ANC, Chairperson, North West) said she would like to add to what Mr Julius had mentioned, and asked whether assessments had been made on the impacts of the plans that were in place, She wondered how they would be streamlined. In relation to issues of global warming and climate change, she had heard that the Department of Environmental Affairs had been part of the engagements, but it was a challenge to cascade that down to the local level of government. It was then suggested that the linkage between the strategic planning of the Department of Environmental Affairs and the rolling out of the disaster management plans be strengthened and emphasised at the local and municipal levels of government. This was an oversight function of the Department of COGTA, both at national and provincial government level. She referred to a slide in the presentation on the implications, and said that it had not made mention of issues of funding, and when one moved the function to a strategic level, then it did implicate the issue of funding and personnel. The Department should take a serious look at that. She asked whether the mentioned sources of funding, such as own revenue, equitable shares and conditional grants were being streamlined for local municipalities in order for them to utilise it. She suggested that when the Department went back, it should consider this when establishing the procedural guidelines. There were some municipalities in the North West Province that could not collect revenue and a blind eye should not be turned towards them. Issues like these should not be underestimated and should be looked into when rolling out the process to municipalities.

The Chairperson said that some of the issues being raised now had also been raised by the Select Committee in previous meetings, and should therefore be seen as an emphasis on them, and clarity should be provided from the side of the Department in this regard.

The Eastern Cape delegate said he would like to touch on the issue of funding.  The sources of funding, as mentioned, had their challenges as certain areas, and particularly those areas which were     prone to disaster in the Eastern Cape, did not get in any revenue. These challenges would be seen during the public hearings, especially on the eastern side of the Eastern Cape, such as the Transkei region, as most of these municipalities could not generate their own revenue. The amendment made mention of the regulations being introduced towards the end of 2016/17. In his view, this was very late as some municipalities would need guidance, and the guidance could come from the regulations if they were made available as soon as possible.  He would like to see those sorts of issues featuring more in the amendment, because in his view he agreed with what Ms Rosho had said about IGR being mentioned and emphasised more than funding challenges that were key to their own areas. He said that the provincial process and its timeframes were too short, and would take away from the effectiveness of setting up for public participation. He asked for more time so that consultations could be done properly and thoroughly.

Ms Bruwer responded that the Department was trying to fast-track the process, but there were already procedures, mechanisms and support. With regard to the regulations; there were regulations in place, but the Department was in the process of making it more formal. There were guidelines in place, such as the DORA legislation and every year these guidelines were distributed to the provinces and gave guidance on how to access the funding in terms of the declaration and classification of disasters. The regulations would then just be built up on those existing guidelines.

The Chairperson said that he would give the Committee Secretary an opportunity to explain the timeframes and why the cycle was what it was. He asked what the role and function was of the traditional leaders in the municipalities that had successfully implemented the disaster management functions.

Ms Bruwer said the successful municipalities had incorporated the traditional leaders when doing the assessments and when community awareness had been conducted, but she could not confirm that everyone was doing that already. However, it had been made compulsory in the legislation that the Disaster Management Advisory Forums in each sphere of government must include the National Council of Traditional Leaders. She confirmed that in some areas there were very good relationships between traditional leaders, the communities and the DM practitioners.

The Chairperson asked why one referred to it as “disaster management.” whereas the Hyogo Framework, to which South Africa was a signatory, refers to it as “disaster risk management.”

Ms Bruwer responded that there had been extensive debate about the terminology throughout the process, and in the current legislation, the DM Act had a very comprehensive definition of disaster management. The definition included prevention, preparedness, response, recovery and rehabilitation. It therefore encompassed disaster risk and response measures. There was no real international definition for DM. It talked about disaster risk reduction, but did not include the response and recovery measures that had been incorporated. The legislation was comprehensive and covered all of the disaster risk reduction measures, and took into account the global commitments. The definition needed to be read within the context of the Act.

Ms Bruwer said that the DM legislation was enabling legislation, and would like to create an enabling environment applicable to all provinces within the country. It should be noted that provinces also had legislative competence to create legislation applicable to their particular province. Therefore the provincial legislatures should be encouraged to look at the things affecting the province and deal with them through legislative measures. However, the DM Act and the amendment made specific provision that a risk assessment must be undertaken by each organ of state, such as the municipalities. Issues such as the mining towns and acid drainage that had been mentioned should be taken as a risk in that municipality when it conducted the risk assessment, and should be included in the Integrated Development Plan (IDP), as the DM plan was a core component of the IDP. There was also a provision that the province and municipalities must map those risks so that they were aware of where there were vulnerabilities and what measures were being put in place to reduce them.

The issue of funding for disaster risk reduction was a common theme that had come up throughout the consultations, and was a matter that was being dealt with across government. Through the Department’s process of “back to basics,” the use of the funding mechanisms was being looked at to make them more effective and available. In terms of disaster risk reduction, there were various funding streams and there was a specific grant fund for responses, so if a disaster happened and it was declared a disaster, there were already mechanisms and procedures in place for municipalities and provinces to access that pool of funding, which was taken from the contingency reserve of government, very quickly.

In terms of risk reduction, she agreed with the notion that one should prevent disasters from happening, and that was what was being emphasised throughout the Act and the Bill, but it was not the sole function of the DMC. It was the responsibility of every department within a particular municipality to look at the risks in their environment and how they would be addressed. The entire budget of the municipality should keep in mind how it could reduce the risk. She made an example of storm water drains, and said that if the engineering department in a municipality had appropriate storm water systems in place, it could significantly reduce the risk of flooding for a community, but there was no particular funding for this and it had to form part of the integrated planning. Each line function needed to also contribute to that process. In addition to this, due to the fact that funding was such a contentious issue, the Department had also agreed with SALGA, the Financial and Fiscal Commission (FFC) and the National Treasury to put together a task team that would look at ways of optimizing the funding mechanisms. In terms of DM, there was an entire chapter dealing with funding. The Department would look at that chapter in preparation for a meeting on Friday to look at innovative ways of addressing the funding issue. Hopefully this would be a parallel process which would help the implementation of the legislation later on.

Follow up

Mr S Thobejane (ANC, Limpopo) said that there were natural challenges that were confronting the country, and there were those that were manmade. He asked whether issues such as poor sanitation in schools in rural areas should also be classified as a risk for disaster in the conducting of the assessments. He asked whether, in the context of geographical location and disaster risks, bushy, dense areas and livestock were also considered in the classification of risk. He said that there were     areas where there were perennial rivers where naturally the rural areas became vulnerable areas, where one would not find bridges going across anywhere and in some cases, such as in KZN, children would be unable to go to school for half the year because the river could not be crossed. He asked how this was classified so that there could be a prompt response.

Ms Bruwer responded that those were every day risks that were faced, but the intention of DM was not to take over the responsibilities of the line function. There was a line function department that should look at that specific risk and in terms of the DM Act, each organ of state which included sector departments had to include a disaster management plan, and a part of this plan was to identify the risks within the particular sector. What should happen ideally was that the Department of Water and Sanitation should say that Limpopo had risks such as schools that did not have sanitation, and this could contribute to a health risk and an outbreak of disease. The role players would then need to be identified and in this case it would be the Departments of Basic Education, Water and Sanitation and Health, which would help to address the risk before it became a disaster. It was important to note that it was the line function department’s duty to implement plans to reduce the risk of it becoming a disaster.

The Chairperson said that it was important not to get into a blame-shifting mind set, as there were     deficiencies that were being observed in the inter-departmental approach. The question that could be in the back of the mind was enforcement against the failure of other departments. He asked whether the Act catered for penalties and consequence management, as the Auditor General had been emphasising the fact that there should be consequence management. He said that these issues would be raised in the public hearings and it would be good to gain a common understanding now on these sorts of issues.

Ms Bruwer said that the Act provided for reporting to the Minister, but the Department had not gone to the extent of punishment, as it preferred to promote cooperative governance. In terms of the Department’s “back to basics” programme, it wanted to ensure accountability where people failed to meet their obligations stemming from various pieces of legislation.

Ms Rosho said that the local sphere of government was the core sphere of government when it came to the impact on the people, and said that there had to be way to bring harmony between the oversight function/monitoring and the sector departments. Once protest action took place, the ward councillor would take the grant, and not the sector department.

Ms Bruwer responded that in terms of oversight and monitoring, the Act was quite clear on strengthening the reporting requirements and had made sure that there was reporting of disaster risk reduction and response and recovery. These had to be reported to the IGR structures that had been formulated in terms of the Act, which provided that the reports had to be part of the agenda at every meeting, and what had happened in terms of the money.

The Chairperson asked whether the Act provided a timeline in which the challenges had to be addressed.

Ms Bruwer said this was addressed through DORA, as it made specific provision for the grant funding, and there were specific provisions which provided for the amount of days allowed. It stated that the timeframe was within 30 days after the declaration of a disaster that the money had to be made available.

Mr Jurgens Dyssel ; Senior Manager: Policy Legislation and Compliance Management, NDMC, referred to some of the root causes of the problems that the country was facing. An example of this was the sanitation issues. A lot of the time one tended to focus only on the root causes and how to solve those root causes as the first line in dealing with the sanitation problem, but sometimes the cost of dealing with those issues were beyond the means of the State. This did not mean that one should give up because it could not be afforded. This was where key mitigation issues came into effect. This made DM so difficult and different, as there were simple solutions of mitigation that could go very far in dealing with and mitigating those problems. He gave an example in the Philippines and their pit toilets, where structures had been designed to mitigate the root cause -- it had not solved the sanitation issue, but had saved lives. Those types of innovative things could only come from an understanding of what the risk was. This meant that the line function departments must establish their particular risk and then discuss inter-departmentally how the risk would be alleviated, and this was where the IGR component was so crucial in DM. He then gave a few examples where innovative mitigation measures had been undertaken, such as in the case of unregulated housing being built on non-demarcated land and the educating of people on the prevention of fires in townships. He reaffirmed that often the State could not afford to deal with the root causes, but there were various short and medium term solutions that could reduce the risk. The country was vast and had various sorts of risks in different areas, such as the mentioned dolomite issues and the perennial rivers, and therefore there should be a local disaster management centre to which all the line departments could report with their risks so that they could be dealt with holistically.

The Chairperson asked whether there were any provisions in terms of the Act which dealt with dysfunctional municipalities and possible interventions. He said that the answer given as to whether there were consequences for failure to fulfil obligations was not clear enough.

Ms Bruwer responded that the Act did not make provision to the extent that someone had to take direct causal blame for a disaster, as this would lead to a very lengthy court case. In terms of the DM Act, there was no provision to impose punishment on anyone. The punishment referred to in the Act was in relation to the provision of information, and not in terms of acting wrongfully.

The Chairperson said that South Africa faced the challenge where people deliberately misled and ultimately shifted the blame. He suggested that there should be consequences for instances that had not been catered for. There should be further engagement on this issue.

Mr Julius said he understood that there was a pool of funding when disaster did strike, but that there was no pool of funding when it came to disaster risk reduction. He suggested that this may be a problem which would be raised by the various provinces, and suggested that the creation of a pool of funding for risk reduction be strongly considered.

The Chairperson asked the Committee Secretary to outline the process and cycle itself for the coming weeks. Thereafter, the confirmed dates would be outlined to the provinces and then how the dates would be approached.

Mr Moses Manele, Committee Secretary, said that the Bill was a Section 76 Bill. The management of this Committee had been informed of a six-week cycle, meaning that this was the first week of the cycle where the Committee had invited the chairpersons from the provinces with the purpose exposing them to the objects of the Bill. Week two dealt with briefing sessions, which meant that a Member from this Committee, accompanied by a Departmental official, would brief each legislature on the Bill. As the Chairperson had said, after this the chairpersons of the provinces would give dates for their provincial briefing sessions. Week three provided that public hearings would be scheduled. Week four was the week wherein mandates would be negotiated in the provinces. In week five, the final mandates of the respective provinces would be completed. The sixth week dealt with the voting on the mandates from the provinces.

The Chairperson said it had been recorded that there had been a request from the Eastern Cape chairperson, as they had a conflicting programme. This was a legislative requirement which all had agreed upon, and thus all were expected to adhere to it.

Mr Manele said that the six week cycle was supposed to take into account all of these challenges. If there were any problems from provinces with the dates in the six week cycle, then the Committee may amend the programme to accommodate all of the provinces. A note would be written for political approval for the changes in the six week cycle.

The Chairperson asked for further clarity on the process.

Mr Julius requested that the process be submitted in written form.

The Chairperson agreed and said that everyone would have a copy of their dates in the six week cycle before Members left. The Committee Secretary was then asked to go through the confirmed dates.

Mr Manele said that the confirmed dates were Western Cape, 29 July; Free State and North West, 30 July; Gauteng and Limpopo, 31 July. However, the Eastern Cape, Northern Cape, KZN and Mpumalanga had not confirmed their dates.

The Chairperson requested that the provinces adhere and honour the dates.

Ms Bruwer said the Department had been invited to the meeting with the Western Cape on 29 July.

Mr Thobejane said that the date for Limpopo’s public hearing was scheduled for 4 August.

Ms Rosho said that the North West province’s public hearing was scheduled for 6 August.

The Chairperson noted that some provinces had not confirmed dates for public hearings, and said that he awaited timeous confirmation in this regard.

Ms Patricia Mahasa, Free State Chairperson, said that her briefing meeting of week two was scheduled for 31 July. She gave various dates and locations for four public hearings.

The Chairperson asked whether these could be made into one public hearing, and whether this was a trend from other provinces as well.

Ms Rosho responded that Members had already been allocated to the public hearings for the four districts. This was the trend followed In the North West province and it would be unrealistic to try to get them under one roof. The Department should engage with their provincial counterparts.

The Chairperson asked whether this was practical for the Department.

Ms Bruwer responded that the Department would support this as far as possible, and would engage with its provincial counterparts. From the national perspective, the Department would not be able to be everywhere.

The Chairperson said that it should be undertaken where practical for provinces, but timelines should be kept in mind.

Mr Julius sought more clarity on week six. He asked whether it was compulsory to attend the public hearings, as this would have a major bearing on time in terms of taking leave from Parliament and going to the provinces. He added that in order to negotiate on final mandates, one had to know what had happened in the public hearings.

The Chairperson responded that it was advisable for the Members to attend because they were the ones that were presenting the mandate on behalf of the province. The national Department should also be taken on board for the briefing sessions. It was only Members of this Committee that were     going to negotiate a final mandate on behalf of their respective provinces, and they were thus expected to attend the public hearings.

Mr Thobejane said that he had noted a spread of dates for public hearings, and suggested one date for public hearings in the provinces.

The Chairperson agreed that each member of this Committee needed to attend at least one public hearing in their province.

The Eastern Cape delegate said that from past practice it was most important for the Committee Member representing the province to be present at the first meeting because of the presentations to be made, so that he could brief the entire committee on what had occurred at the meeting.

The Chairperson said that that was just a view. Before they were a NCOP member, Members were     a permanent delegate from a particular province and represented the aspirations of the province. Members should be flexible, but where this was impractical it would be understood. However, Members should strive to be there. The Constitution only provided that Members must be in attendance when it concerned voting.

The Eastern Cape delegate asked what the last date in the six week cycle was, because of the tight schedule of provinces and their activities.

Mr Manele said that in terms of the Committee programme, the date for negotiation on final mandates had been approved for 1 September.

The Chairperson said that this issue could be further engaged upon, but where there had been confirmations then Members would have to stick to them.

The meeting was adjourned.