A summary of this committee meeting is not yet available.
LAND AND ENVIRONMENTAL AFFAIRS SELECT COMMITTEE
6 August 2003
NATIONAL ENVIRONMENTAL MANAGEMENT BIODIVERSITY BILL; NATIONAL ENVIRONMENTAL MANAGEMENT 1st AMENDMENT BILL: BRIEFING
Acting Chairperson, Mr V Windvoel, ANC (Mpumalanga)
Documents handed out;
National Environmental Management: Biodiversity Bill:Powerpoint Presentation
National Environmental Management: 1st Amendment Bill: Powerpoint Presentation
Summary document, National Environmental Management: Biodiversity Bill (Appendix 1)
Summary document, National Environmental Management: 1st Amendment Bill (Appendix 2)
NEMA Amendment Bill - Memo from Johan de Waal (Appendix 3)
The Committee was briefed on the National Environmental Management Biodiversity Bill and the National Environmental Management: 1st Amendment Bill.
National Environmental Management: Biodiversity Bill
Members expressed concern that relevant stakeholders should be consulted, but Ms Yako,, DDG Biodiversity and Conservation assured them the Department of Environmental Affairs and Tourism consulted widely with a whole range of stakeholders.
The bill seeks to: provide a framework for the sustainable management of biodiversity and the equitable sharing of benefits derived from biological resources affect international obligations into national legislation.
Please refer to attached Powerpoint Presentation.
National Environmental Management: 1st Amendment Bill.
This bill seeks to strengthen the inadequate law enforcement instruments, inadequate compliance monitoring mechanisms and inadequate sanctions.
Please refer to attached Powerpoint Presentation
Mr Windvoel (ANC) said the meeting was only to assist members gain more clarity on the respective bills.
Mr K Durr ACDP (Western Cape) asked if local governments could produce their own legislation on matters raised in the bill.
Ms Yako said the bill would create a legislative framework. Once norms and standards were established, provinces would not be allowed to deviate therefrom. Provinces would however be able to tailor legislation where specific regional needs require.
Mr Windvoel asked which civil society groups were consulted by the National Department.
Ms Yako said a wide range of groups were consulted ranging from traditional leaders, environmental NGO's, Youth groups and others.
Mr Windvoel asked for more clarity on the phasing in of this legislation.
Ms Yako said a report would be presented on the phasing in of the bill after the 3 October 2003.
Mr M Sulliman ANC (Nothern Cape) asked if the Department considered all the written comments submitted.
Ms P Yako said she had only highlighted some of the major comments raised in the presentation. She assured the committee that all written reports were considered and volunteered to forward a list to the committee of all comments received and the responses to them.
Ms Yako said the bill stated that the National Minister was responsible for monitoring compliance with international conventions such as Cites.
Mr Sulliman asked if municipalities will have to amend their by laws in accordance with this bill.
Ms Yako said where by laws were in conflict with the new legislation it had to be amended accordingly, she added the Department would assist local government where possible in this regard.
Ms A Versfeld DA (Western Cape) asked what provisions where made in the legislation to counter the catching of protected marine species.
Ms L Sello, Director Biodiversity Management said if a person was deliberately targeting protected species there would be a sanction but the accidental catching of protected species were not sanctionable.
Meeting was adjourned.
11 June 2003
National Environmental Management: Biodiversity Bill, 2003
The proposed Bill was introduced to provide for the establishment of a National Biodiversity Institute to replace the current National Botanical Institute. The Bill also sets out an enabling regulatory framework for the integrated management of South Africa's biodiversity.
Hence, the principle behind this Bill was firstly, to provide, within the framework of the National Environmental Management Act, for the management and conservation of biological diversity within the Republic. Secondly, to provide for the use of indigenous biological resources in a sustainable manner. Thirdly, to give effect to international agreements relating to biodiversity which are binding on South Africa as well as providing a regulatory framework for co-operative governance in biodiversity management and conservation.
In fulfilling the rights contained in section 24 of the Constitution, the State through its organs is required to act as the public trustee of South Africa's biological diversity and its genetic resources.
Concerning its scope and application, this Bill applies in the whole of the Republic including its territorial waters, exclusive economic zone (EEZ), and continental shelf as described in the Maritime Zone Act of 1994. It further binds all the organs of State in the national, provincial and local spheres subject to section146 of the Constitution.
Chapter 2 defines the functions and powers of the National Biodiversity Institute, which inter alia, includes a duty to monitor and report regularly to the Minster on the status of the Republic's biodiversity; the conservation status of all listed threatened or protected species. The Institute may also act as an advisory and consultative body on matters relating to biodiversity to organs of state and other biodiversity stakeholders. Chapter 2 also sets out the criteria for the selection and appointment of a governing board as well as the procedural operations thereof.
For the purposes of the Public Finance Management Act (29 of 1999), the Bill provides that the Institute is a public entity and must to that end comply with the provisions of this Act. Clause 30 provides that the funds for the Institute will consist of income derived by it from the performance of its functions and the exercise of its powers including grants received from organs of state, voluntary contributions, donations and bequests.
Chapter 3 seeks to provide for biodiversity planning, monitoring and research as well as for the co-ordination and alignment of biodiversity planning with other environmental and sectoral planning. Clause 37 instructs the Minister to prepare and adopt a national biodiversity framework within three years from the date in which this Bill took effect and also requires that the Minister monitor and review implementation of the framework. Furthermore, the Bill requires the contents of the national biodiversity framework to provide for an integrated and uniform approach to biodiversity management by organs of state in all spheres of government, non-governmental organisations, the private sector, local communities and the public. The contents of the bio-regional plans should also contain measures for the effective management of biodiversity in the region in which the plan applies as well as measures for the monitoring of that plan.
Chapter 4 provides for the protection of species that are threatened. The Minister may by notice in the Government Gazette prohibit carrying out any activity, which may negatively affect the survival of a listed, threatened or protected species.
In ensuring that there is equitable sharing of benefits arising from commercialisation through the bioprospecting of traditional uses, the Bill provides that no holder of a permit may, for the purpose of bioprospecting, apply or exploit any traditional uses or knowledge of any specific indigenous biological resource unless that permit holder has entered into a benefit-sharing agreement with the person or community practising that traditional use or knowledge.
The Bill also intends to repeal the Forest Act of 1984 and as from the date of repeal, all the assets and liabilities and all rights and obligations of the National Botanical Institute will be vested in the proposed National Biodiversity Institute.
11 June 2003
National Environmental Management Amendment Bill, 2003
The proposed Bill seeks to provide for co-operative environment governance by establishing principles for decision-making on matters affecting the environment, institutions that will promote co-operative governance and procedures for co-ordinating environmental functions exercised by organs.
It further seeks to provide for national and provincial supervision of environmental management functions as well as creating a framework for the delegation of powers by the Minster, the MEC's for environmental affairs and municipalities. It also provides for the designation of environmental management inspectors by the Director-General or the provincial HOD as well as for judicial matters of compliance and enforcement. Reference can be made to clause 47B (1), which provides that when any provincial organ of state cannot or does not fulfil an obligation in terms of a specific environmental management Act, the Minister may in terms of section 100 of the Constitution intervene by taking any appropriate steps to ensure fulfilment of that obligation.
The insertion of a new Chapter 9A provides for the administration and enforcement of specific environmental Acts and to enable the Director General or the provincial HOD to designate environmental management inspectors to implement this function. The powers of these inspectors, inter alia, include the power to arrest, to enter and search premises, land, waters and other places and to seize certain articles that are suspected of being in an offence.
Judicial matters, such as offences relating to environmental management inspectors, the cancellation of permits and the forfeiture of items and the issuing of infringement notices are dealt with in part 4 of the Bill.
Finally, the Bill exempts, the State from liability for any damage or loss caused by the exercise of any power or performance of any duty under this Act or any specific environmental management Act unless to exercise that power was unlawful, negligent or in bad faith.
Memorandum from Johan de Waal to Chairperson of the Parliamentary Committee: Owen Rodgers SC
Subject: NEMA amendment Bill
Date: 23 July 2003
I was asked to provide a brief memorandum on the National Environmental Management Amendment Bill ("the Bill") from the perspective of its impact on the administration of justice and the legal profession and, in particular, to assess whether sections 31H to 31K are constitutionally valid.
The Bill has no unusual or problematic impact on the legal profession. The "administration of justice" is of course a broad concept. I take it that the function of the Parliamentary Committee is to comment, in particular, on laws which may adversely impact on the functioning of the Courts. With two minor exceptions, the Bill has no such impact. I deal with the two sections which may impact on the functioning of the Courts last. Before doing so, I discuss the constitutional validity of some of the Bill's provisions dealing with the duty to answer questions, search and seizure powers and the functus officio principle. I also include a list of questions regarding certain other provisions of the Bill, the meaning of which are, in my view, not clear as they are presently formulated.
There are three constitutional concerns with the Bill:
3.1 The duty to answer questions and the right to silence;
3.2 The power to perform so-called "regulatory" searches and seizures without a warrant;
3.3 The power of an authority to confirm, vary or revoke any decision taken by a delegatee.
Duty to answer questions
4. Section 31H(1)(a) provides that an environmental management inspector ("an inspector") may question a person about any act or omission in respect of which there is a reasonable suspicion that it might constitute an offence or a breach of certain laws or permit conditions. If the person refuses to answer, a written notice may be issued in a prescribed format requiring the person to answer specified questions, either orally or in writing, and either alone or in the presence of a witness and may require that questions are answered under oath or affirmation (section 31H(2)).
5. Section 31H(3) imposes a duty to answer all questions, notwithstanding that they are incriminating, but provides for a direct use immunity in subsequent criminal proceedings in respect of incriminating answers.
6. The constitutionality of statutory duties to answer self-incriminating questions has been considered on two occasions by the Constitutional Court. Recently Van Heerden J, also comprehensively analysed the issues in a Cape High Court decision. It will serve little purpose to analyse the cases in detail here save to say that, read together with the Constitutional Court's decision in Bernstein v Bester NO, these judgments are authority for the following three propositions:
6.1 A person may be required to produce any book, paper or document and to answer any question put to him or her at an investigative examination, notwithstanding that the book, paper or document or the answer to the question might tend to incriminate him or her.
No incriminating evidence given pursuant to statutory compulsion may be used in criminal proceedings against the person who gave such evidence other than when that person stands trial on a charge relating to the administering or taking of an oath or affirmation, or the giving of false evidence, or a failure to provide books, papers or documents, or a failure to answer lawful questions fully and satisfactorily.
6.3 The presiding judicial officer in criminal proceedings has a discretion to exclude evidence derived from evidence given under statutory compulsion where the admission of such (derivative) evidence would make the trial unfair.
On the face of it, the cases seem to support the constitutional validity of provisions such as the ones contained in section 31H. What the cases suggest is that the right against self-incrimination may be abrogated in a statute and that an examinee may be compelled to speak in a pre-trial investigative enquiry provided that a direct use immunity is given to the examinee. However, in my view, one should be slow to jump to the conclusion that the Courts would sanction legislation that generally compels persons, in particular those suspected of offences, to co-operate with the investigators of crime, in exchange for a direct use immunity in respect of incriminating answers. Section 31H comes close to imposing such a general duty to co-operate. On closer analysis, the Courts have not previously dealt with such a general abrogation of the right to silence and have merely sanctioned the limitation of the right to silence for specific purposes and subject to certain procedural safeguards. I say this for the following reasons:
None of the decisions concerned the examination and duty to answer questions of "an accused" or "an arrested person". The examinees in section 417 Companies Act (Act 61 of 1973) enquiries and section 205 CPA (Act 51 of 1977) enquiries are not accused or arrested persons and they may therefore not rely on the constitutional right to silence, entrenched in sections 35(1) and (3) of the Constitution, in the enquiry itself. On the reasoning in S v Sebejan, the examinee in the situation envisaged by section 31H may be entitled to rely on the constitutional right to silence, as such a person is clearly a "suspect" in the sense that a criminal investigator has decided to focus the investigation on him. In Sebejan it was held that "a suspect" is entitled to rely on the constitutional rights of an "arrested person". In terms of section 31H(1)(a) there must be a "reasonable suspicion" that the examinee committed an offence or another unlawful act before he may be compelled to answer. Where the suspicion is that the examinee committed a criminal offence, the Courts may rule (and should, in my view, rule) that such an examinee should be treated the same as an arrested person, thus entitling him to rely on the constitutional right to silence.
The purpose of the section 417 examination and the section 205 examination is not to gather evidence against the examinee. The main purpose of the section 417 enquiry is to determine why the company failed and to locate and recover its assets for the benefit of creditors and shareholders whereas the purpose of the section 205 enquiry is to gather evidence against a person other than the examinee. The purpose of the examination under section 31H appears to be to gather evidence against the examinee and others (it is difficult to see what other purpose it serves). In my view, Courts may insist on more procedural safeguards when the purpose of the examination is to gather evidence against the examinee (section 31H) as opposed to some other purpose (sections 417 and 205 enquiries).
There are a number of procedural safeguards that exist in the section 417 and 205 proceedings which are not present in section 31H enquiry. First, section 31H envisages that the decision to compel a person to testify is made by an ordinary policeman or inspector. In contrast, the subpoena to attend a section 205 examination must be authorised by a Director of Public Prosecutions. Secondly, the section 417 and 205 enquiries take place in a controlled environment in the presence of an independent person with legal training. This is not the case with section 31H where it appears that the inspector conducts a sort of "on-the-spot" enquiry. The possibility for abuse is thus far greater. Thirdly, an examinee in a section 205 or 417 enquiry may refuse to answer questions on providing a just excuse, such as that the question concerns a private and personal matter. No similar caveat exists in section 31H. Fourthly, an examinee in a section 205 or section 417 enquiry may be assisted by a legal representative. It is not clear whether an examinee in section 31H may insist on legal advice before he answers. The difficulty is that it is not clear whether, under section 31H, a person may be required to answer there and then ("one-the-spot") or whether he may seek legal advice (and whether he should be warned of this right) before answering. Fifthly, and perhaps most importantly, the examinee in the section 417 and 205 enquiry will have some prior knowledge of the reason for the examination and the scope of the examination. If section 31H envisages an "one-the-spot" enquiry the examinee will be afforded no opportunity to prepare for the examination.
For these reasons I do not believe that the existing jurisprudence is decisive. The closest a Court has come to dealing with a situation which approximates the section 31H enquiry, is the 1995 decision of the Cape High Court in Park-Ross v Director: Office for Serious Economic Offences In Park-Ross the Court upheld the constitutional validity of provisions of the Serious Economic Offences Act 117 of 1991 which provided the Director with the power to summon and compel a person to answer questions relating to serious economic offences. The case was decided before Sebejan and the judgment was largely based on the (in my view) artificial distinction between the rights of arrested and accused persons and those of pre-trial examinees. The Court held that the former may rely on the constitutional right to remain silent and the latter not. In my view, such a "bright line" distinction should not be adopted, and the suspect should in some circumstance be afforded the right to remain silent and warned about his constitutional right to remain silent, as was held in Sebejan. If this is correct, section 31H does limit the right to silence. The next question is whether the limitation is justifiable under section 36. This will require an analysis of whether the procedural safeguards contained in the Act are sufficient. In my view, as presently formulated, the safeguards are not sufficient, if only because the provisions are unclear. A considerable improvement would be to make clear that the examinee is entitled to know why he is questioned, then be allowed to complete the questionnaire with the assistance of his legal representative and in the presence of a third party, even if this third party is only a senior officer.
9. It is of course possible that a court may uphold the provisions of the Bill by employing the distinction between the rights of arrested and accused persons and those of pre-trial examinees, especially in the present climate where there are considerable pressure on the judiciary to adopt a more limited interpretation of so-called "criminals' rights". However, in my view, the provisions are not defensible in their present form. In order to pass constitutional muster, Parliament should give some consideration to improving the "procedural safeguards" in the section 31H, perhaps along the lines suggested above.
10. Section 31K provides that an inspector may, within his or her mandate, at any reasonable time, without a warrant, enter and inspect any building, land or premises for the purposes of ascertaining compliance with certain legislation and permit conditions. A residential premises may not be searched without a warrant unless there is consent, or the delay would defeat the object of the search and there are reasonable grounds to believe that a warrant would on application be issued.
In order to pass constitutional muster, legislation authorising a search of private property or private possessions must comply with three requirements. First, the authorising law must properly define the scope of the power to search and seize. Secondly, prior authorisation by an independent authority is usually required. Thirdly, there must be reasonable grounds for conducting the search. Section 31K avoids incorporating these requirements by relying on the notion of a "regulatory inspection" for purposes of ascertaining compliance with the Act. This appears to be premised on a distinction made by Sachs J, who wrote for the Constitutional Court in Mistry v Interim Medical & Dental Council of SA. As the distinction is crucial, I quote the relevant passages from the judgment in full. Sachs J stated the following:
 For the purpose of the present case it has not been necessary to determine whether or not regulatory inspections should be regarded as searches and seizures as contemplated by s 13. Yet, even if one were to accept in favour of the applicant that there were situations where they did so qualify, it would be necessary to decide on a case by case basis how invasive any such regulatory inspections would be. The more public the undertaking and the more closely regulated, the more attenuated would the right to privacy be and the less intense any possible invasion. In Bernstein and Others v Bester and Others NNO Ackermann J posited a continuum of privacy rights which may be regarded as starting with a wholly inviolable inner self, moving to a relatively impervious sanctum of the home and personal life and ending in a public realm where privacy would only remotely be implicated. In the case of any regulated enterprise, the proprietor's expectation of privacy with respect to the premises, equipment, materials and records must be attenuated by the obligation to comply with reasonable regulations and to tolerate the administrative inspections that are an inseparable part of an effective regime of regulation. The greater the potential hazards to the public, the less invasive the inspection. People involved in such undertakings must be taken to know from the outset that their activities will be monitored. If they are licensed to function in a competitive environment, they accept as a condition of their license that they will adhere to the same reasonable controls as are applicable to their competitors. Members of professional bodies, for example, share an interest in seeing to it that the standards, reputation and integrity of their professions are maintained. In Almeida-Sanchez v United States Stewart J, writing for the majority, highlighted well the expectations of privacy involved in the modern world of closely regulated enterprises:
'The businessman in a regulated industry in effect consents to the restrictions placed upon him. As the Court stated in Biswell:
'' . . . (W)hen a dealer chooses to engage in this pervasively regulated business and to accept a federal license, he does so with the knowledge that his business records, firearms, and ammunition will be subject to effective inspection. . . . The dealer is not left to wonder about the purposes of the inspector or the limits of his task.''
 Had s 28(1) confined itself to authorising periodic inspections of the business premises of health professionals, such inspections would accordingly have entailed only the most minimal and easily justifiable invasions of privacy, if they had qualified as invasions of privacy at all. Indeed, all legitimate health professionals can only welcome such regulatory inspections. It is clear however that s 28(1) does not limit itself to authorising regulatory inspections of the premises of doctors and chemists. It expressly empowers inspectors to enter not only 'premises', but also any 'place, vehicle, vessel or aircraft'. There can be no doubt that the word 'place' is meant to have a wider meaning than 'premises', otherwise there would have been no need to put it in. The description is accordingly so broad as to authorise the inspectors to enter private homes, whether they be the dwellings of health professionals or of other persons. Similarly, the vehicles, vessels and aircraft that inspectors may search are not limited to ambulances, hospital ships or the planes of flying doctors, nor could they reasonably be confined to such. Although it has become almost a judicial cliché to say that the object is ' . . . (to protect) people, not places', that is to safeguard personal privacy and not to protect private property, there can be no doubt that certain spaces are normally reserved for the most private of activities. The section is so wide and unrestricted in its reach as to authorise any inspector to enter any person's home simply on the basis that aspirins or cough mixture are or are reasonably suspected of being there. What is more, the section does not require a warrant to be issued in any circumstances at all.
Whether the desired ends could reasonably be achieved through other means less damaging to right in question.
 It is difficult to see how the achievement of the basic purposes of the
Medicines Act requires that inspectors be allowed at will to enter private homes and inspect private documents. If only periodic regulatory inspection of the premises of health professionals was in issue, then a requirement of a prior warrant might be nonsensical in that it would be likely to frustrate the State objectives behind the search. Once the investigation extends to private homes, however, there would seem to be no reason why the time-honoured requirement of prior independent authorisation should not be respected. Whether that would require a prior warrant from a judicial officer in all circumstances where homes were being searched need not be decided now. If, however, the circumstances were in fact such that even trained police officers would be required to get such a warrant, all the more reason for medical inspectors to do so; it would be odd if the law allowed personnel who might be medical experts but forensically untrained to rush in where even experienced police officers must refuse to tread. Furthermore, even a subjective belief of the investigator that some offence or another was being committed might not be enough - here not even that is required. Inspectors, like any other persons exercising power on behalf of the State, are as entitled as the public to know the precise framework within which they can lawfully and effectively carry out their functions. The statute gives hardly any guidance. All is left to the discretion of the inspectors and their superiors. The fact that the Medicines Act is manifestly in the public interest in no way diminishes the need for the powers of inspection to be exercised according to constitutionally valid criteria and procedures. Lord Acton's famous statement about all power tending to corrupt and absolute power corrupting absolutely was made in the context of power being exercised by the most worthy people, not the least. It follows that the desired and permissible ends of regulatory inspection could easily be achieved through means less damaging to the s 13 right.
There is no doubt that environmental management inspectors may be afforded the right to inspect places such as fish processing establishments, vessels and other business premises, for purposes of ascertaining compliance with the relevant laws and permit conditions and without a warrant and without reasonable grounds for the inspection. The reason is that nobody can hold a reasonable expectation of privacy in respect of these places, particularly insofar as they are used to harvest or process a scarce resource in terms of a right granted by the State. The point is that public resources are at stake and the State should be afforded the right to ensure that these resources are lawfully exploited and in terms of the conditions laid down in permits. The question is whether the Bill goes far enough to define the types of premises and places which may be inspected or whether it circumvents the requirements imposed by section 14 of the Constitution (the right to privacy) by simply labeling what would normally constitute a search a "routine inspection".
13. The main problem with the statutory instrument in Mistry, which was that the inspectors were afforded the power to search a private home without a warrant and without reasonable grounds, has been addressed by the drafters of section 31K. There is a risk that a court may require that the nature, purpose and scope of the power to conduct regulatory inspections be defined with more precision than is the case with the power conferred by section 31K. However, and having regard to fact that the types of activities at stake (fishing, waste management etc) are in any event highly regulated, and that there is little if any expectation of privacy in respect of those activities, I conclude that section 31K is not unconstitutional as presently formulated. The invasion of any expection of privacy which may exists is tempered by the requirement that the inspection must be conducted at a "reasonable time". A court may further ensure that the right to privacy is not undermined or that the power conferred by the statute is not abused by excluding, in terms of section 35(5) of the Constitution, evidence obtained in violation of the right to privacy.
Functus officio principle
14. Section 42(2B) provides that the Minister may confirm, vary or revoke any decision taken in consequence of a delegation or sub delegation, subject to any rights that may have accrued to a person as a result of the decision.
15. While the principle of providing expressly for a power to vary or revoke a decision made is not unknown, the idea of providing for a delegation of a power coupled with a power to "confirm, vary or revoke" any decision taken in terms the delegation, is to the best of my knowledge a novel one.
16 The functus officio principle is not expressly entrenched in the Constitution and the Promotion of Administrative Justice Act 3 of 2000. In my view, it forms part of the constitutional right to reasonable administrative action. It would be unreasonable to alter an administrative decision for no good reason. This is particularly the case with the alteration of decisions in terms of which rights are granted. The statute attempts to deal with this problem by providing that a decision made may be changed "subject to any rights that may have accrued to a person as a result of the decision".
17. It is not 100% clear what this means. It appears to mean that any variation or revocation of a decision may not affect rights granted. If so, the provision will not be open to a constitutional challenge. I suggest that the Legislature spell out explicitly that existing rights may not be affected by the variation or revocation of a decision.
18. Section 31D(3): it is not clear whether the notice in writing must specify the powers necessary for the inspector's mandate or whether the notice may specify and thereby confer further powers, which may be exercised by an inspector.
19. Section 31H(f): it is not clear how a specimen or a substance is used "in committing an offence". Is the specimen not rather seized as proof or evidence of the commission of such an offence? A further problem is that the Bill does not explicitly provide a power to seize a vessel or vehicle although the exercise of such a power is envisaged by sections 31I(2) and section 31J(5).
20. Section 31H(h): the power to "dig or bore into the soil" should perhaps be better described. Does this include the power to dig or bore on private land?
21. Section 31H(i): the same applies to the power to "take samples". It must be better defined. May an inspector take a blood sample?
22. Section 31L(5) and section 31M(2)(b): this section is not 100% clear. If the person who receives a compliance notice must motivate for the suspension of the notice pending an objection, why is the Minister or the MEC then allowed to specify a period within which the person who received the notice must comply when a decision is confirmed or modified. This power of the Minister or MEC to determine a time period only make sense in cases where the implementation of the compliance notice was suspended under section 31(L)(5).
23. Section 31N(2)(b): if a person fails to comply with a compliance notice, the Minister or the MEC may "take any necessary steps and recover the costs of doing so from the person who failed to comply". This power to take steps needs to be better defined. Does it only apply to steps specified in the notice? Or may the Minister or the MEC take any steps in order to rectify or prevent damage caused by non-compliance with the notice?
24. Section 31O(2): I think the last words should read "sections 31K to 31N" and not 31K to 31O as section 31O does not confer any powers.
25. Section 31P: it is surprising that no mention is made to a right or permit issued under the Marine Living Resources Act 18 of 1998. All commercial fishing rights are, for example, granted in terms of the MRLA.
26. Section 34A: it will lead to greater certainty if contraventions of particular sections are made offences. As it is presently worded, certain forms of conduct (and not the contravention of certain sections) are made an offence.. For example, it would be better to provide that the failure to comply with a request of an environmental management inspector in terms of section 31H is an offence.
Administration of justice
27. Section 34B provides that a court which imposes a fine for an offence may order that a sum of not more than one-fourth of the fine be paid to the person whose evidence led to the conviction or who assisted in bringing the offender to justice. The Courts have reacted negatively over the years to the giving of evidence for remuneration. For example, in Van Aswegen v Lombard 1965 (3) SA 613 (A) it was held that:
"Op grond van ons gemene reg en die instelling deur die Wetgewer van die hierbo genoemde tarief van getuiegelde moet gekonkludeer word dat 'n ooreenkoms om 'n getuie te vergoed vir die aflê van getuienis, of om 'n getuie meer te betaal as die vasgestelde tarief, contra bonos mores geag moet word."
28. In my view it would reflect negatively on the administration of justice if the perception is created that courts "reward" witnesses and informants after the conviction of an offender. I do not suggest that the provision is unconstitutional in its present form. A judicial officer will in my view be able to ensure that an accused is given a fair trial despite the fact that a possibility exists that a witness or informant (other than an inspector or police officer) will receive a reward at the conclusion of the trial. I merely wish to draw attention to section 165(4) of the Constitution, which provides as follows:
"Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts."
29. In my view it will be better to provide that the fine (or part of the fine) be paid into a fund, to be managed by the Department of Environmental Affairs and Tourism and that the Department pays witnesses or informants out of this fund rather than to involve the Courts .
30 Section 34C provides that the court convicting a person of an offence in terms of the Act may withdraw permits or other authorisations issued in terms of the Act or disqualify a person from obtaining a permit and issue an order that all competent authorities be notified of any disqualification. The basis on which this power should be exercised is not clear. I have no difficulty with a Court withdrawing a permit as part of punishing an offender (as is done with a driver's licence, for example). The normally triad of factors should then be used in order to determine whether such a form of punishment is appropriate. The problem is that a similar discretion exists, in terms of section 28 of the Marine Living Resources Act 18 of 1998, to withdraw rights, licenses and permits issued in terms of that Act. This discretion is exercised in terms of policy considerations, for example, a right of a person convicted in terms of the Act may sometimes not be revoked in order to keep such a fisherman "in the regulatory net". It would be inappropriate to expect of a court to apply such policy considerations in order to determine whether rights or permits should be revoked. In my view it should be made clear that a Court may, as part of imposing punishment, withdraw any permit or other authorisation â€¦."
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