The Committee met to consider the South African Weather Service (SAWS) report on the reasons why the SAWS Board should not be held liable for fruitless and wasteful expenditure following its decision to terminate the employment contract of the former Chief Executive Officer. This report was followed by a briefing by the Department of Environmental Affairs (DEA) and Department of Agriculture, Forestry and Fisheries (DAFF) on its responses to the oral and written submissions raised during the public hearings on the Marine Spatial Planning Bill [B9-2017].
The SAWS report related to an eight months’ salary payment which was made to the former CEO after the premature termination of her contract. The Committee determined it as wasteful expenditure and requested the SAWS Board to draft written statements to the Committee providing reasons why the members of the Board should not be held personally liable, and thereby pay individually. The responses given to the Committee by the members of the SAWS Board were unsatisfactory and the Board members were invited to appear before the Committee to give individual accounts, since the decision reached was not unanimous. The Committee thereby made the resolution that those Board members who voted for the premature termination of the former CEO’s contract be held personally liable and should also be removed from acting as members of the Board
Members were concerned regarding resolution 5.2 of the report and stated that the Committee’s decision would affect the entire Board. They asked whether it would be legally possible to single out those members of the Board who voted in the meeting. Members asked whether there would be any inquiry where the members would be called upon to give their side of the story or whether the Board’s decision could be rescinded.
The Department of Environmental Affairs (DEA) briefed the Committee on public hearings submissions on the Marine Spatial Planning Bill. The Department stated that most of the issues were perceptional misunderstandings on the mandate of the Bill and its alignment with other sectorial legislations and international law. The Bill’s objective was to facilitate the management of activities in the ocean by different departments and therefore did not purport to allocate rights to anybody.
Members said that if a member of the Board who wanted to vote abstained, he/she would not be absolved from responsibility since the decision of the majority bound the whole institution. They felt that the Committee would be creating a wrong precedent that would allow some Board members to abscond from responsibility by missing meetings. Members highlighted that people should take responsibility and if the Board members were not satisfied with the decision made, they should have made their concerns noted and submitted alternative suggestions.
The Department of Agriculture, Forestry and Fisheries (DAFF) pointed out that most of the issues highlighted in the submissions were repetitive; however, some of the issues were that the DAFF Fisheries Laws were restrictive. There was a lack of government support, therefore licensing and catch limits should be scrapped. The Department also felt that there were poor working conditions at sea and the need for training and support of aqua culture was needed.
Members said that DAFF’s responses should be addressed to the people who made the submissions since there were previous complaints on the lack of feedback. They requested that DAFF provide the Committee with timeframes on the feedback and asked why the convention governing fishing that was dated 2007 was only coming into force in 2017; what was its relevance now? Members said that the strategy of the Department should be known, to the Committee, in terms of timelines. They felt that conditions of the fishermen at sea was very pathetic and should be addressed as soon as possible. DAFF should do more and not treat this as business as usual. Members suggested that the responses reach the Fishermen Associations in various regions to create awareness of the action taken on the issues raised. They also said that the ocean was a sacred resource to the African people and access rights should be protected.
SAWS Board Report
The Chairperson took the Committee through the report which related to a payment of R2 million, being eight months’ salary, made to the former Chief Executive Officer (CEO) of the SAWS after the premature termination of her contract, which the Committee determined as wasteful expenditure. The SAWS Board was invited to draft written statements to the Committee to provide reasons as to why the members of the Board should not be held personally liable, and thereby pay individually for the fruitless and wasteful expenditure which resulted from an ill-advised termination of the CEO’s contract five months before expiry of her contract. However, the responses given to the Committee by the members of the SAWS Board being unsatisfactory, the Board members were invited to appear before the Committee in order to give their individual account since the decision reached was not unanimous.
The Committee concluded that the Board failed to act professionally and in line with the requirements of good governance by failing to seek legal advice on the matter. The reason forwarded relating to the deterioration of the Board’s relationship with the CEO seemed as an afterthought, as it was not in the initial report given to the Committee by the Board. The Board also did not seek other possible options before the termination and there was no value derived from the R2 million settlement given to the former CEO.
The Committee made the resolutions to the effect that the Board members who voted for the premature termination of the former CEO’s contract were personally liable and should also be removed from acting as members of the Board.
Mr S Makhubele (ANC) expressed his concern regarding resolution 5.2 of the report and stated that the Committee’s decision would affect the entire Board. He asked whether it would be legally possible to single out those members of the Board who voted in the meeting. He asked for clarification regarding the fate of Prof.
E Mokotong who confirmed her support for the Board’s decision but was not present for the voting. He enquired whether legally the Committee could single out the Board members who voted for the position from those who did not vote, since a Board’s decision bound its members.
The Chairperson asked Mr Makhubele to express his personal view on the matter.
Mr Makhubele said that legally the decision was for the entire Board, since a board decision could not be taken as if it was for some of the board members and not all of them.
Mr T Hadebe (DA) said that some of the Board members expressed concern regarding the haste in which the Board decision was taken and asked for a legal opinion on the issue. However, other members pressed on for the dismissal of the former CEO. He suggested that the Committee maintain resolution 5.2 as it was so that the Board members responsible be held accountable.
The Chairperson said that the reason for the resolution was to provide consequences for wrong decisions. The Board members who took due diligence and care and disagreed with the position would be subjected to the same consequences in the event of such change in the resolution. The reason for the Committee to summon the Board members to appear before the Committee was because the Board decision was not unanimous. The Committee’s decision could not extend to those who voted against the Board decision even though the decision was binding upon them since they did not contribute to the decision.
Mr Makhubele clarified that he was not enquiring as to whether the Committee could get to those who did not vote for the decision but rather, whether it was legally possible to separate the Board members even though the Board decisions were binding upon them, even those who supported the decision but were not present during the meeting.
Mr Z Luyenge (ANC) said that if a member who wanted to vote abstained, that member would not be absolved from responsibility since the decision of the majority bound the whole institution. The Committee would be creating a wrong precedent that would allow some Board members to abscond from responsibility by missing meetings. People should take responsibility and if the Board members were not satisfied with the decision made, they should have made their concerns noted and submitted alternative suggestions.
The Chairperson clarified that the dissenting Board members were present in the meeting and requested their dissenting opinions be reflected in the minutes. The Board made an ill-advised decision which made SAWS lose R2 million which the Committee held this expenditure as fruitless and wasteful. However, it would be extremely unfair for the minority members who objected to the decision and dissented, as reflected in the minutes, be met by consequences. Board members should exercise due diligence and care since they were dealing with public funds. The decision made was the most reckless decision ever made by the Board and the engagement of the Committee with the Board indicated that they were not up to the task and they did not understand good governance.
Mr Luyenge asked whether there would be any inquiry where the members would be called upon to give their side of the story or whether the Board’s decision could be rescinded.
The Chairperson explained that the Committee wrote to the Board early in the year asking for written statements as to why the Committee should not act against by making them pay, in their personal capacity. However, the Committee experienced difficulties in getting the report. Eventually, upon receiving the report, the Committee was not satisfied with it and that was why the Committee called upon the Board members to appear before the Committee to respond to questions from the Committee. The decision of the Board could not be rescinded since the CEO was already dismissed and the settlement amount was already paid. However, the tax payers should not bear the burden of the cost and the Board should bear the cost.
The report was thereby adopted without amendments.
Responses by the Department of Environmental Affairs (DEA) to the Marine Spatial Planning Bill [B9-2017] submissions
The Chairperson said that the Committee visited the coastal provinces of the country, from Port Nolloth to Durban, in one day, to listen to the public and stakeholders’ comments on the proposed Marine Spatial Planning Bill (MSP) Bill. In the previous meeting, the Chief Director was not present. However, she was available to the Committee today.
Ms Judy Beaumont, Deputy Director General (DDG), Oceans & Coasts Division, DEA, said that the Department would be responding to the public submissions made regarding the Marine Spatial Planning Bill.
Advocate Radia Razack, Director: Law Reform & Appeals, DEA, said that the Department submitted the long form of responses to the submissions presented on the road show to the Committee. On the issue regarding sector legislation, there was a general lack of understanding on whether there was need for the alignment of the MSP Bill with the various existing sector legislations. She said that there was a common misconception that the Bill did not align with these legislations and hence created a potential risk for the Bill to undermine other pieces of legislation.
She explained that the Bill did not remove any existing sector mandates and did not undermine other pieces of legislation, as the mandate of each of the sectors remained unaffected by the Bill. The Bill only aimed to assist in the coordination of planning among the different departments and avoid silo planning. The mandates had to be exercised according to final marine area plans. She said that the amendments proposed to strengthen compliance clause 13.
Regarding the issue of potential conflict with other laws, there was a provision to the effect that where there was conflict with other legislations, the Act would prevail. This clause was misunderstood to undermine other laws; however, this was a standard clause that appeared in all legislation and did not replace any other sector laws since it only applied to marine sector planning.
Regarding the concern relating to the lack of an Oceans Act and the alleged neglect of the policy of ocean governance (National Environmental Management of the Ocean), she said that it was just a perception issue. There was ocean legislation; there was the National Environmental Management Act which was the overarching environmental Act, the Marine Protected Areas Act, the Biodiversity Act and the integrated Coastal Management Act. Therefore, ocean matters were covered sufficiently in other various pieces of legislation.
The Chairperson asked whether there was no merit in arguing for an Oceans Act since they were covered in other legislation. He asked why there was no Oceans Act at this time.
Adv Razack said that an Oceans Act would not be addressing anything new and said that the DEA prioritized on the MSP Bill.
Ms Beaumont said that the DEA was currently deliberating on the way forward. The critical thing was to have the MSP Bill processed and all focus and resources were dedicated towards this objective. The next process would be centered on the Oceans Bill.
The Chairperson said that he found the points for the Oceans Act during the discussions valid. The oceans played an important role in the South African economy, even though there appeared to be no legislation around that. Other countries had an all-encompassing legislation that dealt with the protection of the environment.
Mr Hadebe said that it was a bit confusing to deal with the DEA to postpone dealing with the Oceans Act to a later stage and prioritize on the MSP. He asked whether the Act would be relevant since all the legislative gaps were already considered in the MSP Bill.
Adv Razack said that the Ocean Act would only cover environmental ocean issues as a Specific Environmental Management Act (SEMA) since there were other sector legislations such as the Marine Living Resources Act and the South African Maritime Safety Authority (SAMSA) Act among others. The idea being mooted was for an Oceans Department where all the other issues being dealt by the different departments will be dealt with under one department.
The Chairperson asked how the ocean was being managed currently and whether there was a single reference point for someone to understand how the marine environment was protected and conserved or whether one had to consult various legislation to get such information.
Adv Razack replied that after the Bill was passed, there would be some reference point since there would be the development of a marine area plan which would be based on information from all sectors. The Bill would provide a summary overview of what each sector was contributing.
The Chairperson asked whether the oceans and coastal branch had a sector legislation that governed their mandate.
Ms Beaumont said that there was the Integrated Coastal Management Act drawn from the Coastal Management Policy and the National Environmental Management Act, also certain clauses of the Biodiversity Act and now the MSP Bill.
The Chairperson stated that there were numerous legislation covering all other issues, however, there was nothing on the oceans beside the various provisions in the mentioned pieces of legislation.
Adv Razack said that regarding the suggestion for the inclusion of municipalities and coastal planning bodies, this faced a practicality challenge since these structures were already set up in other legislation. The Coastal management structure was addressed in the National Environmental Management Act and the Integrated Coastal Management Act. If these structures were to be replicated in the MSP, it would cause complications in terms of cross representation. The MSP did not intend to focus on the near shore planning which was taken care of in the Integrated Coastal Management Act. This would inappropriately conflate the planning structure and bloat decision making.
Mr R Purdon (DA) asked whether the district municipalities and the provincial government were included in the consultative structures of the Bill.
Ms Razack confirmed that they were also included in the consultation process to ensure that there was alignment.
Mr S Makhubele (ANC) said that the reasons for the municipalities’ concerns may have arose due to either a lack of understanding by their legal institutions of the mandate of the MSP or it would be an issue of jurisdiction. It was an issue of national competence and municipalities did not have the necessary capacity or competence. Municipalities should have been consulted prior to the public hearings.
Adv Razack said that the municipalities were not targeted for the responses. However, there were a lot of stakeholder forums for consultations on the ground. The MSP was just a planning Bill seeking to regulate the activities of the sector departments. This was explained to all the provinces during the DEA’s interaction with them and the stakeholder summit. The Department conducted a stakeholder summit and engaged different interest groups.
Mr Luyenge said that on the regulation of the MSP, it was meant for coordination of departments and local government structures ensuring that they were part of the consultation process. This was in line with objective of the Bill which was to ensure that previously overlooked stakeholders were brought into the consultative process. He asked whether there were any mechanisms to ensure that all the other stakeholders and the provincial government was participating and could be held accountable.
Ms Razack said that the broad consultation framework was covered in clause 8 (1) (c) and when it came to consultation, the Promotion of Administrative Justice Act applied for guidance. The DEA was in the process of developing a stakeholder engagement strategy without being too prescriptive.
Regarding the call for inclusion of the civil society and the public in the institutional structure of the Bill, it provoked the question on the practicality of management capacity. She said that since we were not a homogeneous society and had different views, if everybody was to be included in the decision-making structure, diversity might hinder the decision process. A consultation process would work better for the MSP and could be reflected in the regulations of the Act.
On Economics versus Ecosystem protection, there were concerns that the basis of decision making should be science and not economics. The Bill sought to balance these objectives by amending the principle of the precautionary approach, in the environmental management, to be more prominent in the Bill by changing the wording of the Bill.
The Chairperson asked whether the DEA would be defining what a precautionary principle was or whether it was universally accepted terminology in the scientific community.
Adv Razack confirmed that the principle was universally accepted and there was no need to define it further. There were concerns regarding the link between Spatial Planning and Land Use Management Act (SPLUMA) and the MSP. Land use spatial planning and marine spatial planning had different considerations. SPLUMA worked up to the high-water mark and the MSP worked from the high water mark up to 200 nautical miles in the sea. SPLUMA would have the municipalities and the provinces in the governing structure; however, the MSP was about ocean resources where there were a lot of challenges. Therefore, there could not be any possibility of overlap.
The Chairperson asked on clarification on whether the principles of spatial planning were not limited to terrestrial land or also extended in application to the sea.
Adv Razack said that it was already recognized, at presidential level, that marine special planning could not have the same principle base as terrestrial planning and that was why it was dealt with separately and in separate Bills.
Regarding the concerns of alignment of the Bill with international conventions, South Africa’s international obligations were already reflected in the sector laws and it was not necessary to add them further to the principles.
The Chairperson suggested that the misunderstanding might have occurred due to the lack of a clear link of the international conventions such as the Benguela Current Convention to the Bill.
Adv Razack said that the underlying principles of the conventions were reflected in the Bill. However, it might not be wise to state every convention in the Bill as this may result in the exclusion of some conventions and therefore be restrictive.
The Chairperson clarified that the conventions did not need to be listed in the Bill, but the Department could highlight how they were incorporated into the Bill.
Adv Razack said that the conventions were incorporated in the sector laws but moving forward, the DEA would see how better to highlight its inclusion.
Mr Hadebe suggested that considering clause 4 of the Bill, which gave the Bill priority in the event of a conflict with other legislations, there should be a provision relating to international agreements to give assurance that South Africa would comply with international conventions.
Ms Veounia Grootboom, Chief State Law Advisor, DEA, said that clause 5 of the Bill recognised international conventions.
The Chairperson stated that even though the international conventions were incorporated in other legislations, the Bill would be taken as priority in other legislations where there was conflict.
Ms S Williams, Principal State Law Advisor, Office of the Chief State Law Advisor, suggested that the assurance of compliance with international instruments could be included in the preamble of the Bill.
Adv Razack said that regarding the appeal process, considering the level of decision making process, it was difficult to have an internal administrative appeal process. Usually, administrative appeals took place at the highest level to ensure independence and impartiality. However, in this case, there would be several Ministers making decisions and hence it may be difficult to have such a process other than an administrative review. The best course of action would be judicial review in the courts of law to secure impartiality.
The Chairperson expressed concern that the MSP set up structures but there was not sufficient oversight mechanism for the structures of the executive institutions. He suggested that Parliament be included as an oversight body to review the decisions made.
Mr Luyenge asked about the status of the traditional institutions, since it was now common practice for issues on the ground to be dealt with at that level.
Adv Razack said that at the moment, the existing oversight structure was Parliament and the courts. The DEA would need to craft provisions to include traditional leaders and the Portfolio Committee could consider them when it would be dealing with the Bill clause by clause. She said that the traditional leaders were predominantly concerned with coastal issues which were covered under the Integrated Coastal Management Act. However, in the event of an overlap there would be consultation with the indigenous people, the municipalities and provinces. On the issues regarding the enforcement of compliance, the MSP would incorporate penalty clauses to give it teeth. However, this would be done in a consultative process.
The Chairperson said that during the presentation of the Bill, there was an argument that the Bill did not allocate any rights to anybody but only sought to set up the structure which would regulate the activities in the ocean. However, there were contradicting views stating that as this would allocate rights.
Adv Razack said that this was part of Clause 13 of the Bill and would be addressed once the DEA got to the clause by clause discussions on the Bill.
Mr Makhubele said that there were issues regarding capacity of the civil society to engage the DEA at a national level regarding the MSP and they requested some form of representation in the governing institutions so that they would not be ignored in the event they needed an audience.
The Chairperson said that during the public hearings, a common issue raised was the need for consultation in the MSP. Although it may not be possible to include all public bodies in the decision-making process, there was a need for structured engagement, with local government and the traditional leaders.
Ms Beaumont said that the point was well taken, and the DEA was considering how to tackle the issue and come up with a structure that was not necessarily a single centralized structure to ensure functional decision-making.
Ms Williams said that other legislations usually prescribed that consultations would take place; however, it did not prescribe on how those consultations would take place or with whom they would be with. The Committee could be assisted in coming up with such a provision for the MSP.
Mr P Gcobani, Director, DEA, said that the DEA considered all the stakeholders, however it proved to be so many and it was decided that the MSP should not be prescriptive as to who the advisors should be since this might end up excluding other institutions.
The Chairperson said that the DEA should have moved forward with the Oceans Act before dedicating resources to the MSP. The DEA should provide timeframes as to when the Act would be processed since it was the overarching legislation.
Responses by the Department of Agriculture, Forestry and Fisheries (DAFF) to the Marine Spatial Planning Bill [B9-2017] submissions
Ms Zimosa Jike, Acting Director, Sustainable Aquaculture Management, DAFF, took the Committee through the presentation. She pointed out that most of the issues highlighted in the submissions were repetitive; however, some of the issues were that the DAFF Fisheries Laws were restrictive. There was lack of government support and licensing and catch limits should be scrapped. There were poor working conditions at sea and the need for training and support of aqua culture was needed among other issues.
She said that in response to the issues raised, DAFF policies on fisheries allowed for access for all South Africans if the applicants displayed a right to access a suitable vessel for harvesting. DAFF also amended the Marine Living Resources Act, 1998 (Act No 18 of 1998) to recognize small scale fishers and was now implementing the Small-Scale Fisheries Policy, the scope of which included capacity development of small scale fishers.
She said that the Rights Application Fee was not a refundable fee, it was charged by the Department for the costs incurred during the development and/or review of the General Fisheries Policy, the Sector-Specific policies, the distribution of application forms and collection thereof, advertisements and gazetting of policies as well as employing independent entities to audit and advise on FRAP processes. The management of Marine Fisheries resources through legislation and licensing was an international best management practice that was tested for years in the fishing industry. Because marine natural resources were exhaustible and sought after, some were prone to poaching and over harvesting. DAFF had to ensure that constitutional provision to conserve these natural resources for present and future generations whilst ensuring socio-economic beneficiation was upheld.
She said that South Africa ratified the Working in Fishing Convention (2007), Convention 188, which would come into force internationally on 16 November 2017. The Convention would improve the living and working conditions for all fishermen working on-board all South African Fishing vessels or vessels fishing in South African Waters. This would prevent the further exploitation of workers at sea. The Department had a Demonstration Centre for Aquaculture in Gariep, Free State, for the training of young professionals, aspiring farmers and farmers. However, DAFF would have to create and improve awareness about this centre to ensure improved beneficiation.
She said that on the call to allow small scale fishers to fish offshore, the allocation process was open for applicants to apply for rights in both near shore and offshore fisheries. However, it was important to add that FRAP was very competitive and there was set criteria for each fishery.
Finally, the DAFF was drafting the Aquaculture Development Bill which sought to promote aquaculture development in South Africa and ensure that the sector contributed to government priorities such as food security, economic growth and addressing historical imbalances in accessing aquaculture opportunities.
The Bill would support the recognition and support of small scale and subsistence farmers through registration for activities; financial assistance; veterinary support services; extension services, and access to markets.
Ms H Nyambi (ANC) expressed a concern that was raised regarding the fact that people were forced to park their cars very far and would sometimes be vandalized. She asked what action DAFF would take regarding that.
Ms Jike said that there was legislation regulating off road driving, since driving on beaches might have detrimental effects to the nesting birds and certain flora and fauna. Security could be given to the vehicles; however, the convenience of closer parking had to be superseded with the need for conservation.
Mr Gcobani said that the prohibition of vehicles driving along the coast went against the DAFF’s mandate of the protection and conservation of the living resources that resided there.
Mr Makhubele said that DAFF’s responses should be addressed to the people who made the submissions since there were previous complaints on the lack of feedback.
Ms Jike said that there were serious capacity challenges which affected the rendering of services. However, DAFF was making efforts to go back and engage with the people to provide feedback.
Mr Purdon requested that DAFF provide the Committee with timeframes on the feedback and asked why the convention governing fishing that was dated 2007 was only coming into force in 2017. He asked about its relevance now.
Mr Mandisile Mqoqi, Acting Director Offshore & High Seas Fisheries Management, DAFF, said that the labour issues became an international concern and DAFF was currently in discussions with the Department of Labour to look at how the safety and working conditions of the fishermen at sea could be improved.
Ms Jike said that the ratification and domestication of a convention required that certain conditions had to be met and a process be followed.
Mr Mqoqi said that for international conventions, there needed to be certain number of countries to ratify so that it could become operational.
The Chairperson said that the ratification process took time and that was why the operationalization of the Convention might have taken this long.
Mr Hadebe requested for an explanation on how DAFF was going to deliver the responses, presented to the Committee, to the people on the ground.
Mr Luyenge said that the strategy of the Department should be known to the Committee in terms of timelines. The condition of the fishermen at sea was very pathetic and should be addressed as soon as possible. DAFF should do more and not treat this as business as usual.
Mr Makhubele expressed concerns that were raised by some communities who said that they were being restricted from accessing the sea to conduct religious rites and perform rituals.
Mr Mqoqi said that the documents would be circulated to all responsible parties.
Mr Hadebe said that DAFF should consider using the councilors on the ground to ensure effective transfer of information to the people on the ground.
The Chairperson suggested that the responses reach the Fishermen Associations in various regions to create awareness of the action taken on the issues raised. He also said that the ocean was a sacred resource to the African people and access rights should be protected.
Mr Gcobani said that the Department made it clear that people needed to have access to the ocean and should not be unduly denied access to it.
Adv Razack said that the Integrated Coastal Management Act promoted access and made it an offence to block access where people had a legitimate right for access.
The Chairperson asked who bore the final responsibility regarding the ministerial sub-committee formed by the MSP.
Adv Razack said that the decision of the Committee applied the same way as that of a Board and hence they would be held accountable collectively.
The Chairperson said that an accountability and oversight mechanism needed to be developed in the Bill and that Parliament needed to be involved as an oversight body.
The meeting was adjourned.