Liquor Products Amendment Bill, National Forests Amendments Bill & National Veld and Forest Fire Amendment Bill: Parliamentary officials' briefing; Armyworm outbreak: Department briefing, in presence of Minister

Meeting report

Parliamentary Legal Advisory briefings
Liquor Products Amendment Bill [B10-2016]
Ms Phumelele Ngema, Parliamentary Legal Advisor, informed the Committee that the three bills that she would present were introduced to the Committee in 2016. Each of them is an amendment Bill that seeks to amend existing legislation.

The Liquor Product Amendment Bill is amending the Liquor Product Act No.60 of 1989. This Bill was introduced by the Department of Agriculture, Forestry and Fisheries (DAFF or the Department) as a section 75 Bill. She agreed that this appeared to be correct and explained that there is no specific schedule functional area that is mentioned in Schedule 4, which would indicate that the Bill should fall under section 76 of the Constitution.

The Bill seeks to provide definitions and provide for further requirements in respect of the liquor products that are purposely intended to fall into the market for trade purposes. Both this Bill and the principal Liquor Act define which liquor products the legislation deals with, and there are some amendments to previous definitions. Any product will only be covered by this Bill if it falls under one of the definitions and has a certificate, also referred to in the Bill.

Mr N Capa (ANC) asked whether the Bill seeks to ‘redefine’ the terms or if it ‘defines’ new terms.

Ms Ngema answered that there are redefinitions of existing terms in the Liquor Act as well as new definitions for further clarity.

She outlined the most significant. 'Beer' must now include the traditional African beer and other fermented beverages – and the definition is coupled with certain requirements of how beer is to be made for trade purposes.

The Bill also seeks to repeal some certain aspects of the principal Act.

Ms Ngema then highlighted how this change of definition might be seen as changing the tagging of the Bill, One view expressed that the Bill mentions something that could be regarded as relating to customs, traditions, customary law, or indigenous law, through the reference to traditional African beer. Ms Ngema had looked at section 18 of the Traditional Leadership Governance and Framework Act, which requires that “if the content of the Bill deals with anything that has to do with traditions, traditional law, indigenous law, customary law, it must be referred to the National House of Traditional Leaders by the Secretary to Parliament, with that House being given 30 days to consider and make input on the Bill. However, she felt that, taking clauses 5 and 6(b) of the Bill into account, which set out requirements for the African traditional beer, there was nothing that actually changed the way in which people make African traditional beer in customary law. The Bill only brings in requirements that 'traditional African beer' must meet if it is going to be put in the market for purposes of trading. For this reason, she did not believe that the Bill falls within the ambit of section 18 as it does not aim to change traditional African beer.

She then referred to clause 10, which seeks to amend section 18 of the Liquor Act. The amendment proposed relates to compliance; the DAFF must properly implement the Act and so it addresses issues of section 18(1) entry, seizure and the confiscating of goods that are not in compliance with the Liquor Act and its regulation. The proposed amendment seeks to empower the officers, as mentioned in the Act, to enter into premises - whether it is a private dwelling or a place where people are conducting business for the purpose of the Liquors Act. The main issue is whether the approach taken in the drafting of the Bill conforms to the provisions of the Constitution in relation to dignity. Some judgments have addressed the fact that entry into a private dwelling requires significant protection and consideration.

In order to ensure that the officers who are empowered by the Liquor Act to enter private dwellings do not abuse their power, the Department has now included subsections which provide for entry to a private dwelling only with the consent of the owner or of a person in charge. For anything not a private dwelling, the officers may enter upon reasonable suspicion that the person is conducting business falling under the provisions of the Liquor Act. For a private dwelling a warrant will be required. She said that clause 10 has been drafted in a manner that conforms to the Constitution.

Ms Ngema then pointed out that there is a Schedule in the Liquor Act that was already repealed, by Act 69 of 2003, which is still referred to in the Bill, and this refers to fermented spirits as well as traditional African beer.

Discussion
The Chairperson then said that the Committee will still call upon Ms Ngema whilst considering the implications of the Bill.

Mr M Filtane (UDM) said that he was concerned about the specifications on the traditional African beer, because it is made in different ways in different areas. He asked who then could claim to have authority to certify what is 'traditional' African beer on behalf of the people from the different provinces, who will set the standards of production in respect of traditional African beer and what will those standards of production be based on.

Mr P Maloyi (ANC) asked whether the legal advisors are satisfied that the tagging is correct, and whether they are also satisfied that the Bill is constitutionally sound.
He asked if the legal advisors were certain that it is not necessary for the Committee to refer the Bill to the National House of Traditional Leaders. He took the point that it did not directly address traditions, customs and customary law but it did speak to traditional beer. Finally he asked if there was nothing else of concern that needed to be pointed out to the Committee.

Ms Ngema responded that clause 5 of the Bill sets out the requirements that the Minister will be looking for in an African 'traditional' beer. Beer that meets these requirements will be able to be sold in the markets for purposes of trade. However, this clause does not impact on how each area produced its own African beer for the purposes of culture or traditional law, or any event within the customary setting. The purpose of the amendment is to provide a uniform structure for liquor products that come into the market. The specification processes and requirements are only for the purposing of clarifying what is African traditional beer within the trade market.

Ms Ngema said that when a Bill is introduced to the Committee, there must already have been consideration of the tagging. The Committee thereafter considers the proposal of the Minister and analyses whether the suggested tagging of the Bill is correct. The legal advisors to the Committee are of the view that the Bill was tagged correctly.

In regard to a referral to the National House of Traditional Leaders, Ms Ngema repeated that the Bill does not seek to change how people make traditional African beer for their traditional events. However, for the purposes of protecting the country and the people, the Department has set a uniform standard that should be followed by any person who wants to enter the terrain of marketing any liquor product that will be used for the purposes of trading.

She conceded that the Bill does not only deal with the definitions but does contain other provisions, but she had highlighted the essential points in her presentation. It was the Committee who had asked for her comment; should the Department refer the Bill to her for comment, there might be other issues that might need to be considered at that stage. The Bill seems to be in order.

Mr Filtane expressed further concerns; he thought the Bill should be tagged as a section 76 bill. The process of tagging the Bill under section 75 ignores the fact that South Africa has many traditions that do not have the same practice method, and standard when it comes to African beer. Furthermore, he thought that the provinces should be given an opportunity to comment on the Bill. The effect of having only one acceptable standard of traditional bear will have significant social impact on the communities. He therefore proposed that the Bill be referred to the provinces for comments and that the tagging be reconsidered.

Mr Capa agreed with Mr Filtane. He said that the Bill did not appear to set out definitions for other products, and that some 'traditional' beer may be considered as traditional by communities although it did not comply with the definition.

Mr L Ntshayisa (AIC) agreed, adding also that the Bill does not make mention of how the beers will be tested to certify that they comply with the requirements set out by the Minister.

The Chairperson stated that the consumption of beer at home is a health concern, and that the definitions under the Bill only affect traditional beer that will be used for the purpose of marketing and trading.

Mr Maloyi then suggested that questions regarding the tagging of the Bill need to be answered by the Department directly, and not the legal advisor. He then suggested that further discussion be postponed pending a meeting with the Department.

The Chairperson agreed.

National Forests Amendment Bill [B11-2016]
Ms Ngema introduced the Bill and stated that there appears to be different opinions regarding the tagging of this Bill.

When the Bill was introduced to Parliament it was tagged as a section 75 Bill. However, the legal advisors and other stake holders have extensively considered the Bill and have come to the conclusion that the Bill was not correctly tagged. This is because the Bill affects forests, including indigenous forests, and it is thus considered that it should rather be tagged as a section 76 Bill.  The Bill also concerns matters under Schedule 4, which both the national and provincial Parliaments can legislate on. She was of the view that the Bill should be tagged as a section 76 Bill, and her view is supported by section 76(3) of the Constitution.

Speaking to the content of the Bill, Ms Ngema stated that it is not affected by section 18 of the Traditional Leadership Framework and Governance Act, as it does not legislate on how the indigenous forests should be treated in customary or indigenous law. However, had the purpose of the Bill been to change or repeal the manner in which matters were traditionally dealt with, it would have fallen within the ambit of section 18. The aim of the Bill is not to legislate on how people should treat products that come from the traditional forests. For this reason, the legal advisors agreed with the Minister that it will not be necessary for the Secretary to Parliament to refer the Bill to the National House of Traditional Leaders.    

The legal advisors had specifically looked at clause 8 of the Bill, which seeks to amend section 17 of the National Forests Act, and which will give the Minister power to declare the affected forests as controlled forests. The legal team had to consider the provisions of Promotion of Administrative Justice Act (PAJA) as this is the legislation that deals with arbitrary administrative actions. Section 17(13) of the National Forests Act enables the Minister to make a declaration of a controlled forest area, without first consulting with the affected persons and without following proper administrative processes. However, section 17(14) of the National Forests Act provides that the Minister is only given this power when the matter is one of urgency. After such declaration has been made, then the Minister must consult with the affected persons and reassess the declaration after that consultation.

The legal advisors cautioned that the Department might be able to take advantage of section 4 of PAJA which outlines the avenues to be used in order to avoid a public administration action to be declared as an arbitrary action. The section mentioned would allow the Minister to quickly make the necessary declaration in order to halt any process that was causing degradation of the forests, without first consulting with the affected persons. She suggested that the Department should be encouraged to look very closely at the likely effect of this provision.

Clause 8(14) was also of concern in that it has the potential to start litigation, as if the Minister takes measures that are not in compliance with PAJA regarding forests, which would then affect an individual, this could lead to litigation. She suggested that the Department also should be asked to reconsider this provision to ensure that there were not shortcomings that might later become an issue.

Ms Ngema mentioned that the Bill also introduces an appeal process and sets out the procedure for such appeals. This is a new provision which was not in the principal National Forests Act. The provision only allows for an appeal against a decision of the officers, not the Minister, and this is one of the other things that the Department will need to clarify. The Department will also need to state whether it has internal procedures that any affected person may follow, or if an affected person needs to go to court in order to appeal the decision of the Minister.

Ms Ngema then emphasised that the provisions are not the only provisions that the Committee should consider, but they are the main ones that raised concerns with the legal advisers. The Committee is encouraged to carefully consider all of the provisions within the Bill.

Discussion
Mr N Paulsen (EFF) asked how would a person know if a forest was indigenous.

The Chairperson advised that lists were available.

Mr Filtane asked what the Minister would consider before intervening in relation to deforestation. He further commented that the Minister is not obliged to answer the question.

The Chairperson replied that the Minister will not be answering the question, but she wished to know if the legal advisors had considered any other legislation that might affect the Minister’s decisions under the Bill.

Mr Maloyi asked whether the Bill provides aggrieved persons with the right to appeal directly to the President, if they did not have access to the courts.

Ms Ngema responded that the definitions in the Bill do not cover what an indigenous forest is. She has not investigated whether there might be other legislation that might impact on the decisions of the Minister taken under this specific Act. She is not aware of any appeal process that provides for affected peoples to approach the President.

Mr Maloyi then suggested that the legal advisers must go and investigate any process that would allow for a direct approach to the President.

The Chairperson then requested that the White Paper on the National Forests Act must be made available to the Members.

Veld and Forest Fire Amendment Bill
 Ms Ngema noted that this Bill was introduced as a section 75 Bill but the legal advisors felt that it should have been tagged as a section 76 Bill. The Bill dealt with the administration of indigenous forests and also affected traditional leaders.

The Bill seeks to enable the Minister and the officials of the Department to facilitate the formation of fire associations in areas where they felt that the veld fires are occurring frequently and were destroying the forests. In considering the tagging, the definitions and the provisions of the Bill should be considered as this will ensure that the Bill is tagged correctly. Ms Ngema further referred the Committee to clause 2 of the Bill which empowers municipalities and traditional leaders to act in response to the veld fires. This was another reason why the legal advisors felt that this should rather be tagged as a section 76 Bill.  Furthermore, as the Bill seeks to administer traditional forests, this brings it within the ambit of the Traditional Leadership and Governance Framework Act. The Bill also falls within schedule 4 of the Constitution.

Ms Ngema noted that it was found that the Minister has already considered the impact of section 20 of the Traditional Leadership Governance and Framework Act and has conducted the necessary consultations prescribed; any outstanding consultations will also be done. As a result, the legal advisers are of the view that it is not necessary for the Bill to be referred to the provinces in terms of section 18 of the Traditional Leadership Framework Act.

The Chairperson then asked that questions be reserved for the Department.

Outbreak of Fall Armyworm (FAW):  Impact on crop yield and food security: Minister and Department of Agriculture, Forestry and Fisheries briefing
The Chairperson noted that the DAFF had been asked to address the Committee on the recent outbreak of Fall Armyworm (FAW), whether the Department was managing with the current resources, and whether further interventions by the Committee will be needed.

Mr Senzeni Zokwana, Minister of Agriculture, Forestry and Fisheries, stated that when the Department was first made aware of the infestation, its scientists, working together with the University of North-West, had been able to identify the pest as Fall ArmyWorm, but then faced the challenge in finding out if there were pesticides available to address the issue. It discovered that although pesticides had been developed, they were not yet registered. DAFF then worked really hard at trying to ensure that the pesticide is registered and made available to the farmers.

Mr Mooketsi Ramosadi, Deputy Director General, DAFF, introduced the team from the Department.

Mr Jan-Hendrik Venter, Manager: Early Warning Systems, DAFF, noted that the FAW is a migratory species that infests an area, multiplies and then migrates to another area. Its scientific name is Spodoptera frugiperda. The FAW originated from Central and South America. In Africa, the FAW was first identified in Nigeria during January 2016, in December 2016 it was identified in Zimbabwe and in early February 2017, it was identified in South Africa and Botswana. One of the main reasons that makes it hard for the FAW to be detected is that it seems to be attacking different plant species in the different countries, and the reports that are being circulated in the media show different types of worms.

Mr Venter said that the main current problem that the Department is facing was the delay in the detection of the FAW. The FAW is very small pest and it is difficult for most farmers to know that the caterpillars on their crops are part of the FAW species or not. In South Africa the FAW has been identified as attacking mostly maize, sorghum and soybeans. However, there is fear that the FAW also attack other crops such as sugar cane, spinach and potatoes.

FAW has been identified in the following provinces: Limpopo, Gauteng, North-West, Mpumalanga, Free State and Northern Cape. The specific areas within these provinces that are currently under attack were shown in the presentation slides (see attached presentation for full details). Other provinces have not yet responded as to whether such a pest has been identified by the farmers.

As mentioned previously, when the Department discovered the FAW in South Africa, it did not have any registered pesticides that could be readily available to the farmers. This further aggravated the damage done to the crops.

Mr Venter said that at the moment farmers who suspect that their crops might be under attack by the FAW need to get the worms identified, in order for them then to get the correct pesticides. Using incorrect pesticides can result in the FAW becoming more resistant to pesticides and there is also a risk of having the residue of the pesticides on the crops themselves, which will obviously result in unintended health issues. Although the lifespan of the pest is approximately 40 days, the Department fears that it could spread wider especially since the pest travels by wind and through pollination. This attack by the FAW has been reported to international bodies.

Discussion
Mr Capa asked how “new” is the FAW? He mentioned that he had heard of the term ‘armyworm’ around 2012 and is wondering whether it is the same pest. There had been media reports, although nothing from the Department, and asked what the Department was doing to inform the public. He asked if there was any way to combat the pest at egg stage. He asked whether the researchers had any idea whether pesticides could be produced that could stop the pest reproducing. He wondered what information was given to farmers on who they could contact when they discovered that their crops were affected by FAW, and when was the best time to combat by spraying.

Mr Ntshayisa asked how long it took for the FAW to move from America to Africa and whether the Department is inspecting the pesticides to ensure that the manufacturers are selling the correct pesticides to the farmers.

Mr Paulsen asked if the Department was trying to ensure that any pesticides were produced locally rather than by foreign companies and whether there was any certainty whether they would be able to meet the demand for pesticides. He wondered if the Department was looking at ways to assist the farmers in spraying the crops with the pesticides, and was considering alternative methods to spraying, such as drones.

Ms A Steyn (DA) expressed concern at how the Department had reacted. If it had known about the FAW as early as January 2016, what was it doing about the issue up until February 2017? She further asked about the cost implications of acquiring the pesticide and assisting the farmers. She asked whether the Department had enough funds to deal with the matter, and whether the Department needed the Committee to approach the National Treasury with requests for more funding to deal with the outbreak.

Mr P van Dale (DA) also asked questions about whether the Department had enough funds to cater for the issues that have already been mentioned by the other members, and for research in the provinces.

The Minister responded that DAFF has arranged to meet with the Department of Rural Development and Land Reform to discuss a strategy on how the two departments can assist the rural farmers, and how to communicate to the provinces. The Department had already started to use surplus funding, to deal with the problem, and Limpopo had raised around R8 million. Farmers who had reported the FAW are being assisted. However, the Department encouraged farmers to work together and share resources in order to reduce the amounts of money needed to combat the FAW. The equipment and methods of combatting FAW would be developed once funding is available.

Dr Roger Price, Research Team Leader, DAFF, provided answers to other questions. He noted that pests like the FAW seem to attack every five to ten years, and it was possible that the FAW could have been on the African continent for some time but only started spreading within the last year. The Department is hopeful that the FAW will be destroyed soon, but was at the same time worried that if it did manage to survive the winter season, it might return in a more virulent form that was more resistant to pesticides.  The current breed of FAW appears to be attacking organic crops more than it attacks the GMOs. A pamphlet had been created but it is currently only available in English, and still needs to be translated to the other languages. It was expected that farmers may have to pay between R600.00 and R1000.00 per hectare, to obtain pesticides.

Ms Alice Baxter, Director: Plant Health, DAFF explained about the use of flying devices to spray the crops. Using objects such as drones had not been tested and that the Department does not know how effective this will be in dealing with the FAW. The Department also still needs to investigate  biological methods of controlling the FAW.

Mr Venter concluded that the Department is indeed discussing the pesticides with the manufacturing companies.

The Chairperson said that the Department still needs to provide more clarity on  availability of funds. She further said that she is concerned by the approach taken by the Department, as she was still not sure how the FAW got to South Africa, and was also concerned about the DAFF's attempts to control it now that it was in the country. She wanted to know whether drought-resistant maize was being grown, and suggested that the DAFF must encourage farmers to use this maize.

Mr Capa asked if the FAW could pose a risk to the livestock.

The Minister reiterated that the Department is pulling in funds that had not been utilised in the past to deal with it. He said that the delay in having to obtain the registration of the pesticides had contributed to the spread of the FAW. DAFF needed to work with the Department of Home Affairs so that stricter measures can be imposed to control the spread of pests, particularly to ensure that pests would not enter the country in passengers' luggage.

Mr Ramosodi supported the view of the Minister and stated that no attacks on livestock by the FAW had  been detected anywhere.

Dr Price also emphasized on the answers that had already been provided by the Minister and Mr Venter.

The Chairperson concluded by reiterating her concern that the DAFF responded poorly to the first detection of the FAW in 2016. She added that climate issues need to be taken seriously and that such issues need to be included in the Committee’s meetings. Communication to the provinces is important and there must be workshops to educate the farmers, as this will also encourage farmers to raise issues about the detection of the pest. Lastly, she emphasized that the Minister must speak to the pesticide manufacturers about the prices of the pesticide; there should not be any increase in the cost as they were not new. Food security is vital and must be treated as a priority.

Minute adoption
The following minutes were adopted:

- Minutes of the meeting dated 15 November 2016
- Minutes of the meeting dated 22 November 2016
- Minutes of the meeting dated 25 November 2016, with an amendment to the penultimate sentence of paragraph 2
- Minutes of the meeting dated 29 November 2016.

The meeting was adjourned.