The Department of Environmental Affairs (DEA) briefed the Committee on the amendment to provide for an administrative appeal process in the NEMLA Bill, specifically to do with the revocation of air quality licences.
After discussion of the new provision, the Committee adopted the NEMLA Bill with amendments.
The Committee adopted the Committee Report on Captive Lion Breeding for Hunting and Lion Bone Trade in South Africa.
National Environmental Management Laws Amendment (NEMLA) Bill
Mr Mongameli Kweta, State Law Adviser, said there was one outstanding matter, the administrative appeal provision, that the Committee instructed the drafters to include and he would like the Department to confirm the administrative appeal process.
Mr Ishaam Abader, DDG: Department of Environmental Affairs (DEA) referred the Committee to Clause 34 where it states New Clause in the C Bill. It should be remembered that there was a concern about appeals specifically appeals to do with the revocation of air quality licences. Thus in Clause 34 they have included a new section under 1(a) which inserts 1C into Section 43:
“Any person may appeal against a decision made by the licensing authority contemplated in section 36(1) or 47A of the National Environmental Management: Air Quality Act, 1998 (Act No. 39 of 2004), in the case of municipalities, to the executive committee or executive mayor, or if the municipality does not have an executive committee or an executive mayor, such person may appeal to the municipal council.’’
This was to cover Mr Makhubela’s concern about the appeal process. That clause inserts section 43(1C) into the NEMA Act. This will take care of the appeal if a person wants to appeal the revocation of a licence.
The Chairperson asked if the person making an appeal is not happy with that process what the next step is.
Mr Abader replied that if the person is not satisfied with the appeal process the next step is to approach the court to review the Minister’s original decision.
Mr S Makhubele (ANC) said that before approaching the court the applicant had first to appeal to the provincial or local sphere of government. Thereafter the applicant must just go straight to court rather than going through the other spheres of government.
Mr Abader replied that firstly there is the administrative appeal provision which is the one under discussion now and the purpose of this is to prevent the appeal going straight to court. What used to happen in the past is that once there was a decision, there was no appeal process attached to that decision and people had to go straight to court. They have introduced the administrative appeal provision, which is meant to give appellants a second bite at the cherry before they approach the court and incur expenses.
If then they have to extend it to a further sphere of government, they will have a situation which means that it will go on forever and ever, and that will not be in the best interests of justice. Therefore, the second bite at the cherry is the administrative appeals process provision. Once one has a decision by the original decision maker and one is unhappy with that process, the next step is to appeal to the higher authority. If the higher authority dismisses one’s appeal then one can approach the court. The court is the second attempt for one to remedy the situation.
Dr Z Luyenge (ANC) said that the reference to Executive Committee and Executive Mayor is unnecessary and they should merely refer to the Municipal Council.
Mr Makhubela said that at local government level both the executive power and the legislative power are in the same person, unlike at provincial and national government levels where they have the executive power separated from the legislative authority. Thus at the local government level it is difficult to separate those powers, which meant that the administrative appeal process is basically going to the same forum, that is, the Municipal Council.
The Chairperson asked should they not leave it to the Municipal Council because councillors could collectively receive an appeal, discuss it and take a decision in the Municipal Council.
Mr Abader replied in principle he has no objection, but they say in the case of municipalities the appeal must go to the Executive Committee or the Executive Mayor, which is the first option.
The Chairperson said the point is that it should be the Municipal Council itself that deals with an appeal and takes a decision.
The Committee agreed that the appeal should be taken to the Municipal Council.
Mr Kweta said that Members should have two documents in front of them: [B14C-2017] and [B14D-2017]. The C List contained the amendments agreed to by the Committee. The D Version of the Bill contained all the Committee amendments incorporated into the Bill.
Mr Kweta went through the C List:
- Clause 3 has a technical amendment due to a typo.
- Clause 4 as well had a typo which needed to be fixed.
- Clause 5 is the provision agreed to by the Committee in the last meeting on the consequences of unlawful activity. He referred the Committee to the D version of the Bill to show it had been captured properly.
- Clause 17 is a proposed amendment the Committee agreed to and it has been captured in the D version.
- Clause 34 is the administrative appeal process and the Committee has just agreed that the appeal should be made to the Municipal Council. This means that this has to change and the appeal to the municipal authority will be made to the Municipal Council itself as the Committee deliberated and agreed on.
- Clause 38, on page 23 of the D Bill, is a new clause which was explained by DEA at the last meeting and the Committee agreed to.
- Clause 54 contained a new clause inserting section 47A on the revocation or suspension of atmospheric emission licenses, which the Committee agreed to.
- There are consequential amendments to the Long Title and the Memorandum on the Objects.
The D Bill is the Bill that will go to the National Council of Provinces (NCOP) after the Committee and the National Assembly have approved it.
Mr R Purdon (DA) asked exactly where the appeal process in the Municipal Council would be included in Clause 34 of the D Bill.
Mr Abader replied it is going to be Clause 34(a).
Voting on NEMLA Bill
The Chairperson asked if the Committee agreed to B14D-2017.
The Committee agreed and adopted the Bill.
The Chairperson said the Committee Report captured all the amendments that were made.
The Committee adopted the report.
The Chairperson thanked Mr Abader and Mr Kweta for their inputs and assistance
Committee Report on Colloquium on Captive Lion Breeding for Hunting in South Africa
The Chairperson said they will go through the report page by page.
The Chairperson made a correction to page 4 of the report by including the words “and Lion Bone Trade” to the heading of paragraph 2, which should read as follows: “Parliamentary Colloquium on Captive Lion Breeding for Hunting and Lion Bone Trade”.
The Content Adviser referred to page 19 of the report and said the CEO of the Confederation of Hunters Associations of South Africa (CHASA) has sent additional information. It should be remembered that the CEO, Mr Stephen Palos, previously made an oral submission to the Committee, and the document is on the website of the Parliamentary Monitoring Group (PMG). It is just a narrative, nothing has changed and it should be incorporated into this report. The CEO made some suggestions during the colloquium.
The Chairperson said they will note those suggestions.
Mr Purdon said they should include the words “and lion bone trade” on page 22 of the report.
Mr Purdon said the Committee should consider adding the following point: “The Committee believes that the agreements between the Kruger National Park and the private reserves should be revisited and revised accordingly”. There was general agreement amongst Committee members about this but it is not captured in resolutions in this report.
The Chairperson said he thought they had resolved this in a previous Committee meeting where they asked SanParks to revise that. However, they can add it to the report for completeness. They can include that as 9.4 of the Committee resolutions.
The Chairperson said that in the Recommendations they have also included that the lion bone export trade must be relooked at. It should be remembered that the Department took the decision to increase in 2018 the quota of lion skeletons for export trading from 800 to 1500 lions from captive breeding operations in South Africa. They were told that the decision was based on the interim report of the scientific authority. The Committee had very intense discussions with the scientific authority SANBI, which is also reflected in the report. The Committee should agree in principle that it will come up with a formulation that the decision to increase the lion bone trade quota should be relooked at.
Mr Makhubela said what the Chairperson’s point is provided for in point 7.3 on page 20. The formulation needs to take into consideration what the scientists had done.
The Chairperson said what they will add what Mr Purdon said about hunting in the Kruger National Park and private reserves as 9.4 and put relook into the increased lion bone trade as 9.5 of the Committee resolutions.
The Committee agreed.
The Committee then adopted the report with amendments.
The meeting adjourned.