The Select Committee had a joint meeting with the nine provincial legislatures and the South African Local Government Association (SALGA), to be briefed by the Department of Environment, Forestry and Fisheries on the National Forests Amendment Bill.
The Bill sought to amend the National Forests Act, 1998, the purpose of which was to promote the sustainable management and development of forests, and provide for the protection of certain forests and trees. The objectives of the Bill were to provide for clear definitions, for example, of natural forests and woodlands; to provide for public trusteeship of the nation’s forestry resources; to increase the promotion and enforcement of sustainable forest management; and to increase the measures provided for in the Act to control and remedy deforestation.
Members welcomed the report, but expressed concern on areas not addressed in the Bill. For example, the Constitution respected traditional beliefs, therefore it needed to consider them in regulations that would allow traditional healers to do their work. The inclusion of stakeholders such as traditional leaders and healers had to be clearly specified in the Bill. Military veterans and people with disabilities, as well as the youth and women, must also be considered for inclusion in the advisory council defined in the Bill.
Other matters discussed included the involvement of rural constituencies in community forests, taking into account their importance during this period of “climate change disaster;” the powers and grading of forest officers; the prevention of prospective mining in forests; and the meaning of “public trusteeship” in practical terms. Clarity was also sought on whether the amendments in the Bill were those that had been passed in the National Assembly, or were from the Department, or a mixture of both, as it was important to ensure the correct processes were being followed.
Mr C Smit (DA, Limpopo) suggested that the Select Committee (SC) hear from the legal team on the way that the meeting would be conducted.
The Chairperson said that the Bill was not being seen for the first time by the SC, and she hoped it was not the first time that the provinces were seeing it. The provinces had discussed the Bill “on their own”, which was why there was a joint meeting.
Mr Smit raised a point of order, saying that the SC could not continue with an illegitimate process. It was irrelevant if the SC had discussed the Bill in the previous term or not. The matter at hand was that the SC was a constitutional body, and there were certain processes that had to be followed. The way that the legislative process was run now was not legitimate, in his opinion. He insisted that the legal team come back with a response on exactly what exactly the legislative process was, because the SC would “get into trouble as a legislative body” with the courts on the way that it conducted its business. The Mamusa judgment was already against the National Council of Provinces (NCOP) and the process that had been followed previously.
Mr T Matibe (ANC, Limpopo) said that the point made by Mr Smit should not be dismissed. He was saying that the SC needed legal advice, not that the SC must not continue with the meeting. He was saying they should look at whether the meeting was constitutional. He suggested noting the issue that Mr Smit had raised, and continue with the meeting. The SC had legal advisers from Parliament who could deal with any matter related to legal issues.
Mr J Skosana (ANC, Mpumalanga) said that the Members’ concerns were acknowledged. South Africa was a unitary state, and not a federal state. As the SC and Provincial Legislatures (PLs) discussed the Bill, they would be listening to the presentation by the Deputy Minister. Then, for finality, it would still deal with the Bill at its meetings in the different provinces, and for those at the national level, there was no harm in that. If there was any need for legal advice, he thought that could be provided, but the meeting could continue with the discussion.
The Chairperson asked if anyone wanted to add or subtract from the agenda.
Mr Matibe moved the adoption of the agenda as it was.
Ms L Bebee (ANC, KwaZulu-Natal) seconded the motion.
Mr Smit said that he objected to the agenda as it was. The Chairperson replied that it was already seconded. Mr Smit then said that it “didn’t matter” that the agenda was seconded; he was sure that he would get a seconder for his opposing view.
Mr A Arnolds (EFF, Western Cape) asked that an apology from Ms M Mokause (EFF, Northern Cape) be noted.
There was also an apology sent from Mr V Shongwe (ANC, Mpumalanga).
Deputy Minister Maggie Sotyu sent an apology from Minister Barbara Creecy.
The Chairperson of the Portfolio Committee (PC) on Agriculture (Northern Cape) would be joining the meeting later.
Mr M Hlungwani, Councillor: South African Local Government Association (SALGA), said that SALGA would be observing in the meeting.
Mr Skosana said that Mr Smit had rejected the agenda, but the Members did not get to hear the contents of why he had done so.
The Chairperson said that the meeting would continue because there was no seconder.
Mr Smit raised a point of order; saying that the Chairperson had not given him an opportunity to finish. There was a possibility that someone would second his motion.
The Chairperson interjected to say that the matter of the agenda had been completed.
Mr Smit countered that the Chairperson could not operate like that. He said that there was an objection, and she did not want to hear the objection. She could not have just two Members agreeing to an agenda, and then “automatically throw out any objecting view”. The Chairperson had to hear him out on his objecting view.
Mr A Pillay (ATAP, Eastern Cape) said that Mr Smit was trying to say that a situation such as this one had not arisen before. There had never been video conferencing before. There was nothing wrong, and the Chairperson had already ruled on the matter. He asked to proceed with the meeting.
Ms C Labuschagne (DA, Western Cape) said that she had been in the Fifth Parliament. The National Forest Amendment Bill had been referred to the SC in the Fifth Parliament. Due to the number of bills it dealt with at that stage, there had been a bottleneck of bills. The Committee had decided that it would not be able to deal with the Bill, and it was revived in the Sixth Parliament. It was “wrong” to say that the SC had dealt with the Bill before. This day, 2 June 2020, was the first time that the SC was dealing with the Bill in the NCOP. The Bill had not been dealt with by the provinces. If the Bill was sent out to the provinces, that was the process that happened when the Bill was referred to the NCOP. The Bill was being sent out to provinces to take note. Parliament had to wait until the NCOP referred the Bill to it, after the SC had dealt with it. The decision to invite the provinces had been done in the whips and programme committee, and she did not agree with the process.
The SC was getting the presentation from the Department for the first time. The SC had not dealt with the Bill yet. The assumption it had dealt with the Bill was wrong. She had received the presentation and a lot of other documents – where was the B11B-2016 Bill? The SC had received the report from the PC, but the SC could not take it into consideration because it had come before the Sixth Parliament. She wanted to know where the report from the National Assembly (NA) was, stating that “this was the B Bill with the memo; this Bill had been passed by the NA, and the following amendments had been done to this Bill.” Was the SC dealing with the Bill as it was received from the NA, or was it dealing with a Bill that was coming from the Department, where the Department had put in some things that were not there before. The SC had gone through something similar in the previous term, and that Bill had been blocked in the NCOP.
The Chairperson said that the Department would answer those questions when it presented. She said that the points made by Mr Smit and Ms Labuschagne were noted, and that the Department must answer Members’ questions when it presented
Ms Labuschagne raised a point of order, saying the Department was giving input on what it wanted in the Bill, so it could not comment on the process of the Bill. The SC was now the “Bill maker.” This was the Committee’s process -- the table staff, the legal opinion, or the processes of the NCOP. The Department could not come and tell the SC why the provinces had joined, and could not tell the SC what Bill it was. Was it the Bill as the SC had received it from the NA? Was the input from the Department in that Bill, or had there been another process involved as well? A lot of time had elapsed between when the Bill was referred to the NCOP and when the SC was currently dealing with it.
Ms B Mncube (ANC, Gauteng) said that if the Bill lapsed in the previous administration, the Department was now briefing the SC, and this was the beginning of the process of the Bill.
Deputy Minister’s introductory remarks
Ms Maggie Sotyu, Deputy Minister of Environment, Forestry and Fisheries (DEFF),
was joined by Mr Ishaam Abader, Acting Director-General (DG), and Ms Morongoa Susan Leseke, Acting Deputy Director General (DDG), Forestry Branch, responsible for forest management in the Department. The previous DG had left the Department on 1 June 2020.
Deputy Ministee Sotyu said the Bill was an amendment to the National Forest Act, which was promulgated in 1998. The Department was responsible for the management of forests in the country. Its mandate was backed by the National Forest Act, whose purpose was to promote sustainable management and development of forests for the benefit of South African citizens. The Act provided for special measures for the protection of certain forests and trees, and promoted the use of forests for environmental, economic, educational, recreational, cultural, and health purposes. It was the responsibility of the Department to create a comprehensive regulatory framework for policies and legislation, to improve sustainable forest management in South Africa. Many poor people and vulnerable groups who were located in rural areas relied on agriculture and forests for their livelihoods.
Members were correct about the issue of processes followed after the Act had been presented to the National Assembly (NA). When the Department did a briefing in the NA with regard to amendments to the Act, the NA followed the processes and adds what it wants to add. After the Department had done that, the NA approves, and says that it would take the Act to the SC. What was being presented in the meeting was what the Department had presented in the NA. There was nothing new added by the Department, unless there was something that the NA had requested the Department to add. However, this Bill had been approved by the NA, therefore the Department was correct in coming to the SC so it could follow the processes that it was supposed to follow.
National Forests Amendment Bill [B11B-2016]
Ms Leseke said the National Forests Amendment Bill [B11B-2016] sought to amend the National Forests Act (NFA), 1998 (Act No. 84 of 1988). The purpose of the NFA was to promote sustainable management and development of forests and provide for the protection of certain forests and trees. One of the reasons given as to why amendments were necessary was to make the legislation more responsive to the operational realities, and challenges on the ground. One of the objectives of the Bill was to promote equity by inclusion of youth and women in the National Forests Advisory Council (NFAC). The Council’s power was to advise the Minister with regard to issues that were related to forestry in the whole sector.
The process followed to date in amending the NFA had been:
- Stakeholder consultation in 2012/13;
- Publication of the draft Bill in the Government Gazette in May 2013 and March 2015 for public comments;
- Stakeholder re-consultation in 2014/15;
- Consultation with government structures, such as the National Economic Development and Labour Council (NEDLAC) and the economic cluster, and internal committees within the Department of Agriculture, Forestry and Fisheries (DAFF);
- Pre-certification of the Bill by the State Law Advisers;
- Engagement with the Department of Public Monitoring and Evaluation (DPME) for a socio-economic impact assessment (SEIA). Ms Leseke commented that the SEIA begins to address the questions that the Chairperson had asked at the beginning about the Bill being implementable, if it would benefit the poor, and if it was economical. If it did not pass those criteria, then the Department would not be where it was with this Bill;
- The Bill was introduced to Cabinet in April 2016, and referred to the Portfolio Committee (PC) on Agriculture Forestry and Fisheries in May 2016;
- Publication of an explanatory summary of the Bill in the Government Gazette, in terms of Rule 241 (1)(b) of the Rules of the National Assembly, in July 2016;
- Publication of the Bill for public comment and public hearings by the PC on Agriculture, Forestry and Fisheries in August 2017, which initiated the extended public hearings in various provinces with communities living in and around forests;
- Various deliberations on clauses of the Bill arising from the outcome of the various consultations were held with the PC on Agriculture, Forestry and Fisheries, leading to the adoption of the Bill for further processing in May 2018;
- The Bill was tabled and adopted by the National Assembly in August 2018;
- The Bill was currently in the NCOP, and had been published for comment on 6 December 2019 until 24 January 2020.
Clause by Clause Analysis
(See presentation for proposed amendments, and full explanation of the gaps addressed by the proposed amendments)
Insertion of a definition of “Assignment” under section 2, where the gap addressed was to assist in the interpretation of terms in the Act. This was a new insertion, as “Assignment” was currently not defined in the Principal Act. There were also proposed amendments in section 2 of the definitions of “Appeal committee” and “natural forest,” where the latter definition was broadened.
There was also amendment of the definition under section 2 of “woodland,” where the gap addressed was to simplify and broaden the definition in order to cater for situations where a woodland may be degraded.
Insertion of Public Trusteeship of the nation’s forestry resources as Section 2A -- a new insertion -- where the gap addressed was to clarify where the nation’s forestry resources were to be managed.
Amendment of Section 7(1), to broaden the provision under section 7 (natural forest), to include all vegetation within the natural forest (grassland, thicket, shrubs and understorey).
Amendment of Section 7, with the new insertion of subsection (5), to provide for a directive by the Minister to rectify damage in the case of non-compliance with the provisions of section 7(1), dealing with the prohibition of destruction of natural forests.
Amendment of Section 7(6), also a new insertion, to provide for steps to be taken in case of non-compliance with the directive issues in terms of section 7(5).
Insertion of new subsection 8(3), where the gap addressed was to prohibit any activity in a protected area, so that the purpose of the protected area was not defeated.
Amendment of section 14(6) by insertion of subsection 6, to provide the Minister with powers to stop/terminate any activities, such as cutting of trees, that may need to be protected while still conducting investigations.
Amendment of section 15(3), to minimise the costs for compliance promotion incurred annually through publication of a declared national list of protected trees.
Amendment of section 16(1), to provide for the registration with the deeds office when a state forest, or part of it, had been declared to be a protected area. This was to align with other environmental legislation, such as the National Environmental Protected Areas Act, No. 57 of 2003.
Amendment of section 17(2), where the gap addressed was the syntax around natural forests or woodlands being threatened with deforestation or being deforested.
Amendment of section 17 by a new insertion of subsection (13)(c), to provide the Minister with emergency powers to declare a controlled forest area in order to prevent continued deforestation. For example, most of the time a forest would be deforested prior to declaration due to the process being lengthy.
Amendment of subsection 17(14) by a new insertion, where the gap was to provide the Minister with powers to issue a directive in the case of noncompliance.
To insert a new subsection, 23(4) to prohibit mining activities in a state forest in order to promote sustainability within the forest. Ms Leseke added that everyone was aware that South Africa was steadily losing forestry and agricultural land to other land uses, and mining was one of them.
(Clause 10 was not part of the analysis.)
Amendment of section 34 to provide for the constitution of Council, where the gap addressed was to include youth and women in the Council composition.
Amendment of section 35(4), which was to include both committees -- sustainable forest management and forest access.
Amendment of section 35(4), to address the issue of remunerating NFAC members when attending Council meetings.
Amendment of section 36(6), which deals with the functions of the Committee on Forest Access, to provide for the committee to also advise the Council and the Department, not only the Minister.
Amendment of section 37(3), to provide for an extension of the time period that the Council needs to advise the Minister on issues emanating from its meetings.
Amendment of section 47(1), where the gap addressed was to ensure that provisions under section 47 (assignment of powers and duties) in the principal Act were done in accordance to section 99 of the Constitution, 1996. Paragraph (a) includes a province or other organ of state. Ms Leseke commented that the meeting had included Members from the provinces, because the Bill affected everyone, including the rural constituencies.
Insertion of section 57A, which was a new insertion, to provide for the appeal procedure against a decision taken by a delegated officer, such as the issuing of a licence by a forest officer. The current form of the principal Act was silent on this matter, and there was no provision for appeals, according to Ms Leseke.
(Clause 15 was not part of the analysis.)
Amendment of 58(6) was to strengthen enforcement, specifically for offences committed in relation to major developments such as mining, and to align with other environmental legislation e.g. section 35 of NEM:BA, Act 10 of 2005. Ms Leseke commented that the Department kept on experiencing non-compliance in the face of climate change, where it was known full well that forests and forest-related products were “a carbon sink,” and were very instrumental and crucial to the environment.
Amendment of section 58(8)(b), where the gap addressed was to strengthen enforcement. Previously section 15 (protected trees) was excluded.
Amendment of section 61 was to provide for new offences in respect of non-compliance with instructions in terms of sections 7(5), 14(6) and 17(3) of the Act.
Amendment of section 62(1)/(3), where the gap addressed was to strengthen enforcement and ensure that the amended provisions under section 7 were catered for. Ms Leseke added that the Department had been observing non-compliance, with citizens not taking the provisions of the Act seriously. It had been trying to strengthen the enforcement part of the Act.
Amendment of section 63 was to strengthen enforcement by the inclusion of natural forests and protected trees.
Amendment of section 65, which was to strengthen enforcement and to provide for the grading of forest officers, depending on ranks. This amendment made sure that the appointment of forest officers could take place at the provincial or local government level.
Ms Leseke then presented the implications of the Bill on the NCOP mandate.
The Chairperson called on provincial representatives in the following order: Eastern Cape, Western Cape, Gauteng, Limpopo, Northern Cape, North West, KwaZulu-Natal, and Mpumalanga.
Mr F Bese (ANC, Eastern Cape), Chairperson: PC on Rural Development and Agrarian Reform, said he was happy that the presenter had referred to the rural constituencies. If one wanted to sustain rural development, one had to put rural constituencies up front. He wanted to bring to the Committee’s attention the issue of community forests. Community forests could assist many people, especially those in rural areas, and especially during this period of “climate change disaster.” Community forests could also address drought, as forests in the rural areas could attract rainfall. He did not hear anything in the presentation in connection with community forests, which were supposed to be taken to the rural areas.
Mr A van der Westhuizen (DA, Western Cape) had no questions.
Mr J Radebe (ANC, Free State), Chairperson: PC on Agriculture, Rural Economic Development, Small Business, Sport, Arts and Culture, had no questions. He said that Free State Members were content with the presentation itself, as it had covered a number of areas which had been identified as gaps, some of which were of great concern to them.
Ms B Mncube (ANC, Gauteng) asked about national forest protection and licences. The Constitution respected traditional beliefs, religion, etc. For example, if one’s ancestors said one had to go to a place and cut down a tree, how did the Act apply in that case? The Department would need to look into that area, because the Act could be undermining that practice. Traditional practices were allowed under the Constitution. Would one then be guilty of a transgression under the Act? She said there was an omission of people with disabilities on the advisory committee. Women and youth were included, but people with disabilities were left out, and perhaps also military veterans. The government must not be against the Bill of Rights, which recognises people’s practices. The advisory committee also needed a representative of traditional healers. The traditional healers’ complaint was that they were going to other countries such as Zimbabwe, because South Africa had rigid legislation.
Mr S Selamolela (ANC, Limpopo), Chairperson: PC on Economic Development, Environmental Affairs and Tourism, expressed appreciation for the Department’s work, and said that the Limpopo representatives were clear in terms of the presentation, and they looked forward to participating in the process as it unfolded.
Mr D Coetzee (FF+, Northern Cape) said that everyone had to recognise that they had only this one planet, and this Bill would help them to protect it. He said the Bill must be supported.
Mr S Mshengu (ANC, KwaZulu-Natal), Chairperson: PC on Agriculture and Rural Development, said they still had to interact with some relevant stakeholders. There were a number of traditional healers who were recognised as stakeholders in the forestry industry, as well as financial entities and so on. KZN would then have to give its report, having interacted with all of the relevant stakeholders and interested parties. As it stood, KwaZulu-Natal welcomed the presentation, and looked forward to further consultations with stakeholders, so that it could give input to the comprehensive outcome of the Bill.
Ms K Lenkopane (ANC, North West) was not available due to network issues.
Mr J Skosana (ANC, Mpumalanga), Chairperson of SCOPA, said that Mpumalanga welcomed the Bill, which addressed the flaws in the previous version. He also appreciated the manner in which the Bill presented the mandates of stakeholders and different spheres of government. On the activities in protected areas, he asked where one put traditional activities that were the practice of traditional leaders. There also needed to be comments about traditional healers. Mpumalanga would participate in the Bill’s process as a province, and take the matter forward with its constituencies.
Mr A Arnolds (EFF, Western Cape) said that in the past, economic, social and environmental benefits of forests were distributed unfairly. It was important to strengthen the Bill further with the proposed amendments. He thought that it was important to note that the amendments would not affect the current provincial mandates. On the proposed amendment of section 23(4), he said everyone knew about the destructive nature of mining in some of South Africa’s forests, so that amendment was needed and long overdue. South Africa needed the amendment that said that no person may engage in prospective mining activities in forests. He needed the Department to give more information on the powers of forest officers in terms of the proposed amendment to section 65. He asked for a brief explanation of forest officers’ powers, the qualifications needed, and the determination of the levels of office. This had also been one of the concerns raised previously when the Bill went to Parliament. The strengthening of enforcement was a very important aspect.
Ms L Bebee (ANC, KwaZulu-Natal) wanted to know from the Department why public consultation on the Bill indicated significant support for improved forestry management, but “major distrust” of DA and EFF forestry management officials. Even people who supported the Bill were unhappy with the competency of staff, and had stated that the current legislation was not properly enforced. How did the Department plan to improve the implementation of legislation and regulations? The Department had inherited the Bill from the DAFF – was the public consultation that had taken place with the Bill new, or had the new DEFF retained the past consultation outcomes? Many individuals that responded to the Committee’s request for input on the Bills had stated that there was insufficient consultation. There was significant support for the need to expand indigenous forests through reforestation, and to limit forestry activities to certain levels. How would the Department balance these opposing targets? The forestry sector needed to be sustainable, but climate change targets required massive reforestation efforts. What community upliftment and business development opportunities could the Department identify, where reforestation efforts were suggested for land belonging to previously disadvantaged communities? How would the Department improve on the management of commercial forestry projects which had been handed over to previously disadvantaged communities? These were poorly supported, and most were failures. It put the Department in a bad light, and was part of the reason why management of the Forestry Department was seen as problematic.
Ms C Labuschagne (DA, Western Cape) wanted to know if the proposed amendments dealt with in the meeting were those done by the NA in the Fifth Parliament, or whether the amendments were those that the Department was currently proposing, or a mixture of Fifth Parliament and current amendments? On the new proposed section 2A regarding trusteeship and public trusteeship, she asked why, in the Principal Act, there was no uncertainty that the Minister was the sole trustee of this Act? She wanted clarity about the board of trustees, and the relationship there. When this Bill was out for public participation in the provinces, there had been uncertainty around the board of trustees, and she thought that that needed to be clarified so that the public understood what it was commenting on.
She suggested that on sustainable utilisation, the Department should perhaps look at what the Bill’s intention was -- was there a set of criteria, or a policy, to help the public when it had to comment on this? The question also applied to the Committee. She referred to clause 3, section 7, which was about the destruction of indigenous forests. This topic had come up in the public participation from the previous term, and she wanted to know if the Department took into consideration the Supreme Court case in September 2017 in the amendment of this clause.
Ms Labuschagne asked about clause 7, section 16, on the registration of title deeds and protected areas. The way the clause had been written, she did not think anyone would understand and be able to comment on it. What did that clause mean in real life? She thought that this clause would be to the benefit of communities, but communities needed to understand what the benefit would be, and why that clause had been brought in. Clause 13, section 37, provided for the extension of the time period that the Council needed to advise the Minister on certain issues, where the time period had been extended from two weeks to one month. She did not understand that section -- what did it really mean? Was there a limited time that the Council could assist or consult the Minister, and now it had been extended to one month? What was the practical implication? One of the aims of the Bill was to improve sustainable forest management. Within this Bill, when it puts all these clauses in, was there an existing policy within the Department to say there would be sustainable management? In her opinion, it was very difficult to put legislation in place and state that one had to adhere to it, but when the competency within the Department and the staff available for oversight was lacking, one “could have 700 Bills -- it would not happen.”
Referring to the appointment of forest officers, she asked how many the Department had, and if there was a clear job description. She did not have a problem with there being various levels, and had heard that this Bill would make provision for the DG to ensure that there were forest officers at the local government level. In theory, this was wonderful, but in practice, local governments were struggling at the moment with everything that they needed to deal with, with the budget that they had. After COVID-19, local governments would struggle more. She questioned whether the DG, at the provincial level, could decide that a local government should appoint five people, and this was what the salary scale was, and the local government had to adhere to that. What kind of powers did the DG really have in this regard?
Mr M Nhanha (DA, Eastern Cape) said that Ms Labuschagne had largely covered what he wanted to raise. He wanted to raise a concern about the manner in which an objection by Mr Smit had been handled. He thought that the Members should be considerate, and welcome dissenting views.
Mr T Matibe (ANC, Limpopo) said the presentation had been able to clarify a number of issues. On section 34, regarding the composition of the Council, he fully agreed with the view that the inclusion of a number of stakeholders needed to be looked into. In dealing with issues around forests, one would realise that one had to take account of traditional leaders and traditional healers. If youth and women were included, then the Department must also be considerate of the forests that were under traditional leadership.
The Chairperson called on Mr Smit to speak, but he was unavailable at the time. She then called on any Members from the provinces that needed to do any follow-up.
Mr Pillay had a question on section 32, where small-scale land had been made available to communities for farming. Since it was a land issue, was the Act or amendment clarifying how that portion of land would be distributed? Since the introduction of the Bill, there was a worry about the people living in the palm forests, and also the community councils of the areas. He thought that the Bill was taking care of that aspect, but it also said that South Africa needed to protect its indigenous knowledge systems. There was not much deviation from the principal Act in the current amendments. Was the Act covering the area of indigenous knowledge?
On section 47, where the Minister could get a competent authority to deal with the assignment of powers and duties, he thought that this particular item was “good enough,” but there was also a loophole there. There were three spheres of governance -- national, municipal, and provincial -- so was the Bill explicitly explaining how this authority would be delegated? If this was not clearly explained, there could be an abuse of power which could lead to deforestation. Certain areas of the Act were trying to clamp down on this, but that particular area was not well explained. He asked if the Department could give clarity on the powers of the governance levels.
A Member of the Limpopo PL said the South African Local Government Association (SALGA) welcomed the presentation.
Mr Matibe asked about the assignment of powers. He thought what was important was that whenever there was an assignment of power to a province or local government, it must also be accompanied by the funding, so that an assignment of powers would not be an unfunded mandate to another sphere of government. He thought that it was an area that should be looked into. He welcomed the amendments relating to forest officers. He added that if that area was to be assigned to the local government or provincial level, national government must not only be able to assign powers, but also assign resources that would cater for that area. He asked about public participation after the SC’s engagement and the report that it had received. Government should be able to look into the way in which it dealt with public participation, so that it was not found wanting in terms of the laws on public participation, bearing in mind the Mamusa judgment. How did the SC assist provinces to reach different stakeholders? How would it ensure that participation took place before it finalised the report?
Deputy Minister Sotyu thanked the Members and provincial delegates for their comments and support, especially the questions raised on empowerment. She had noted the issues raised, especially those around the issue of the competency of the National Advisory Council that had to do with advising both the Minister and Deputy Minister with regard to forestry in the country. She would ask the Acting DDG to respond to some of the questions. Perhaps during her response, she should also try to explain the issue of management of the forests, especially as per the White Paper of 1996, to address some of the weaknesses. The Department knew that there were some organisations that had been given a mandate to do with issues of forest management, such as Sappi, Mondi, the South African Forestry Company Limited (SAFCOL), and Amathole. The Acting DDG would also explain the role that the Department was playing.
Mr Abader commented that the Department’s delegation had been having difficulty with their internet connection, so some of the questions may not have been heard. He asked that Ms Leseke respond to the questions she had managed to note. He requested that the Department be allowed to make written responses to the questions that the delegation had not heard.
Ms Leseke began with the issue of the management of commercial plantations, and said some of the commercial plantations had been leased out to the private sector, some since 1991. The state had been left with certain plantations that it was still managing.
She commented that there was much interest in the Bill by the Members, and that was why the Department would not rush anything. There had been a re-consultation at the request of the PC members, and at times by the NCOP.
The Department was taking a strong stance with the proposals related to the destruction of forests. The powers of the forest officers would be outlined in the regulations, in terms of section 66. The Department currently had the old regulations, but now that it was proposing these amendments, it would enhance the powers of forest officers so that such powers were in line with the current Bill.
Regarding the public consultation during the time of the DAFF, the question was on how the Department would improve the implementation of the legislation. It was trying to strengthen the parts of the Bill on enforcement, which had not been the case in the past. It would put forward good legislation, but it had not been putting much emphasis on compliance and enforcement. With these amendments, the Department was trying to strengthen that.
She said the Department had retained the previous consultations, and some of the amendments that the Department had inserted included those that were proposed by the NA and the Department. The amendments were based on experiences on the ground.
On whether there was a policy on sustainable utilisation, she said such a concept was a global phenomenon. When the Department talked about sustainable utilisation, it was talking about the fact that a forest should not only be a jungle, but should meet the following criteria: it should be economic, it should benefit people socially, and it must be environmentally beneficial. Those were the three principles of sustainable utilisation.
There was a question on whether the Department had taken into account the Supreme Court ruling of September 2017. The Department would look into that. For now, she could not say whether the Department had taken that into consideration.
Regarding the composition of the National Forestry Advisory Council, in the previous Council the normal term of office was three years. In the previous term, the Department had included traditional leaders, but it took note of the proposal of Members to include people with disabilities, military veterans, traditional healers and traditional leaders.
There was a question on whether the Department catered for the use of medicinal forest products. There were different uses in terms of section 19 (uses of forests) -- they could be for traditional, religious, medicinal or recreational uses. Ms Leseke suggested that the Department should be making sure that communities were aware of the different uses of forests.
To balance reforestation and deforestation, the Department had a greening programme. When the Department did greening, the process was related to trees outside of commercial forests. Reforestation was what happened in a commercial setup. The latter involved the art of planting commercial trees. The Department did greening to create balance -- it did this every year, and heightened its activities around September. That was why the Department had “Arbour Month” across the provinces, where the Department indicates how far it has come as a Department with planting trees. The Department understood that it was not only about planting trees, and had changed its strategy for greening to include fruit trees, because it was aware that it needed to advance the issue of food security.
Ms Phumeza Nodada, Chief Director: Forestry Development and Regulations, DEFF, referred to the role of the Department in the plantations leased to four companies. On a day-to day basis, the Department looked at the lease agreements that such companies had signed, and considered whether companies were dealing with the management of the forests in the lease agreement. It then did monitoring based on the undertakings that were listed in the lease agreement. The Department tried to make sure that each year, it went out and checked if the areas were still being managed in the right way. It would keep records of monitoring, and redo maps if there was a need to remap, and also make sure that companies consulted with communities that were in the area.
The Department had increased the time that the NFAC had to respond to the Minister after their meetings. It realised that in previous years, because the Council was engaged with other institutions, and because it was nominated in most cases by different institutions and organizations, when it met it sometimes had to go back and get information from constituencies. The NFAC would then need more time to make sure that whatever it had discussed and agreed on was in line with what the people it was representing would want. When the NFAC wrote to the Minister, it was a response to the Minister that was “beefed up,” but also conveyed the views of the people it was representing. Two weeks was a problem, because the NFAC would fail in terms of complying with that part of the legislation.
Ms Leseke said that with the other issues that the Department had not managed to capture correctly, it would provide a formal response that would try to address them.
Ms Labuschagne asked if the Department had been able to hear the question about public trusteeship. There might be a different interpretation of that term by the public, and maybe it would be good to have the Department’s idea of what a board of trustees was, so that when the public commented, it could be explained to them beforehand. Otherwise, a lot of information would come in, and the committees would not be able to use it. She asked how section 2A would change public trusteeship, and what kind of improvement the Department thought would be the end result.
Mr Abader said that what the amendment proposed was that the national government would be the public trustee of the nation’s forestry resources. The Minister, acting on behalf of the government, therefore had to ensure that forestry resources, together with the land and the related ecosystems which they inhabited, were protected, conserved, developed, regulated, managed, controlled and used in sustainable and equitable manner for the benefit of all persons, and in accordance with the constitutional and developmental mandate of government. The idea was that section 2A made it peremptory for the Minister to ensure that the resources were protected, and that the land and the related ecosystems were also protected and conserved, etc. The section placed that responsibility specifically on government, through the Minister, to ensure that the constitutional as well as the developmental mandate of government was carried out.
Ms Labuschagne said that when the Bill went out for public participation, people who knew more about forestry and bills than she did, had interpreted “public trusteeship” as being one form of trusteeship, although the Minister was the sole trustee, and it was the responsibility of government to make sure that resources, etc, were protected. How was it going to be done? Would this be solely in the hands of officials, or would there be boards of trustees? This was unclear to her, because it was impossible for the Minister and all the staff in the Department to control everything at the grassroots level. What form of management or structures were there to make sure that this was happening? The public interpreted it as there being a form of public trusteeship. This term needed to be clarified to the public when the Bill was going out to the provinces so that people had the right idea, otherwise the SC would sit with pages of comments that it was not going to use.
The Chairperson asked if a member of the Parliamentary legal advisory team could give clarity.
Ms Linda Garlipp, Chief Director: Law Reform and Policy Coordination, DEFF, said the principle of trusteeship was not uncommon, as it was also in the Biodiversity Act. It was more how government and the Minister, when the two exercised their functions, were given the trusteeship over the nation’s forestry resources. It was more how one exercised one’s powers and functions in terms of the Act. It did not require a trust to be created. It was more how the Department exercised its function, measured against the principle that was introduced in the Act. The term “public trusteeship” was also found in the Biodiversity Act, the National Environmental Management Act, and in other international legislation, so it was quite a common provision to have in terms of natural resources. It was about how one exercised one’s powers and functions in terms of the Act, rather than the creation of a physical trust with trustees.
Ms Labuschagne asked for clarity on section 16, which was dealt with registration against title deeds. Could the Department give an explanation of what section 16 meant at a practical level?
Deputy Minister Sotyu did not have anything to add, saying she thought that her team had tried its best to respond to most of the questions. She agreed that if there were some questions that were not heard, then it would be better if they could be submitted in a written form.
The Chairperson asked if Members had any follow-up questions.
A Member from a provincial legislature said that the questions had been covered.
Ms Labuschagne wanted to clarify a question that had been answered, and asked the Chairperson if the Committee could deliberate on it when it was finished with the presentation. The question was on whether the amendments were those that had come from the NA, as it had accepted it, or if it was a mixture of amendments as accepted by the NA, together with new amendments from the Department. She wanted to make sure that she understood that correctly -- was it a mixture of amendments, or was it only the Bill as it had been amended by the NA? The SC could then deliberate on the processes going forward in the Committee.
Ms Phumelele Ngema, Legal Adviser: Parliament, also contributed to answering questions. The first question that she addressed was on the processes, the content, and the extent of the Bill. The Bill that was supposed to go before the Committee was the Bill version, which meant that it was the one that had taken into account the proposals, suggestions and amendments that were dealt with in the PC, and passed and adopted by the NA. This Bill was the version known as B11B of 2016. That meant that all of the proposals from the PC had been inserted into the Bill, and been passed by the first House.
In the PC, the measures that the Minister had followed when looking into the issues of trusteeship had been addressed by using the example of the Ingonyama Trust, and the related Act. There were a number of trusts that were legislatively established, or others that were established as per agreement. If one looked at section 45 of the principal Act, that was another method which the Minister could be using to look into the issues around trustees and trusteeship.
Ms Labuschagne thanked Ms Ngema, and said that that had helped her in understanding the trusteeships. The process of the B Bill that had been explained was how she had understood it. When the Department had answered the question on whether the Bill had new proposals or amended proposals, the Department had said it did. The reason she had been asking was because everyone knew that this Bill had been with the DAFF, and it was now with the DEFF. The SC had to make sure of the process, since the Bill had been around for quite some time. If there were new proposals from the Department’s side, then the SC needed to know that so that it could sort out how to handle it. As a Member of the SC, she had not received the B format of the Bill and the memo that normally came from the NA that stated that this was the format of the B Bill, and they had amended the following sections. The SC had got the Bill from the Department that morning, and she trusted what the Department was saying, but it was her job to ask for clarity, as a Member of Parliament taking responsibility for giving input in this process. Could the SC get the B format of the Bill, and the referral from the NA saying what they had amended?
The Chairperson said that she would request the Department to give written answers to questions raised in the meeting by not later than 9 June, so that the SC could send the questions and answers to the provincial legislatures and to SALGA, to enable these groups to deal with the Bill. If Members of the SC or from the provinces still had questions, they should send them to the SC Secretary, who would forward them to the Department.
Deputy Minister Sotyu commented on the issues raised by Ms Labuschagne, specifically what had been agreed upon by the NA versus the NCOP. She said that the role of the NCOP was not just to endorse everything that came from the NA. The NCOP had a responsibility to scrutinise the legislation, so that if there were issues that it did not agree with, then it could say that it does not agree and send the legislation back. It was the responsibility of the NCOP to make sure that everything contained in that piece of legislation would be implementable by the provinces.
Mr Abader said that the Chairperson had given the Department until Tuesday next week, but had not given an indication of when the final questions would be submitted to the Department. She had asked Members to submit additional questions, and for the Secretariat to send the questions to the Department. Could the Chairperson give an indication of when that would happen, so that the Department could plan when to respond?
The Chairperson responded that the questions must be sent to Department before the following afternoon. The Members agreed with this deadline.
The Chairperson emphasised that the Department must not forget the issues that had been raised by Members from other provinces, such as including traditional leadership, women, and people with disabilities. On the time frame for forest officers, the SC must be given an opportunity to learn what powers were given to those officials before it could get out, or the community was aware of the issue. She wanted to ask about trusts, because there were a lot of trusts that the government had established, but it did not monitor them to check if what was going on was aligned with the legislation. She asked the Department to monitor such trusts, because the SC did not want to see it failing like other trusts, or misusing funds or powers. Monitoring was very important.
The Chairperson thanked the Members from the provinces, the SC, and the officials of the Department. It was the first time that such a joint meeting had taken place. She deemed the meeting a success. She added that members from SALGA were also welcome to ask questions.
Adoption of Minutes
The Chairperson asked if SC Members had received the Committee’s minutes for 22 and 26 May.
Mr Matibe moved the adoption of the minutes of 22 May, and Mr Nhanha seconded.
Mr Matibe moved the adoption of the minutes of 26 May, and the Chairperson seconded.
The budget vote report from the Department of Mineral Resources and Energy (DMRE) also needed to be adopted. The report had been discussed during the meeting on 22 May. Mr Matibe moved to adopt the report, and Ms Bebee seconded.
Ms Labuschagne asked to receive the report on the B bill as the NCOP had received it from the NA. She had heard the comment that the NCOP was there to amend the Bill, which was correct. She did not want the NCOP to go through the same process that the previous Parliament had gone through. The Department was the custodian of the Bill. It decides that it wants to change the Bill, or make a new Bill, etc. Then it starts the process with a green paper, a white paper and then a Gazette. The moment the Department gives the Bill to the Parliamentary processes, Parliament becomes the custodian of the Bill. First, it was the NA. When the NA amended that Bill, and it adopted the Bill in the House on the second reading, it sent the Bill in an amended form to the NCOP. The NCOP had its own public participation processes on whatever it decided, and the Bill had to go out to the provinces. The Bill could only be amended by those processes. This B Bill could not be amended by the Department now. The Department could not amend the Bill in the process halfway between the two Houses. She had asked three times that day about that question, and she still did not have clarity. When she raised the question, the Department’s person had said that it was amendments from the NA and proposals from the Department. Then the legal adviser had come and given her the process as she understood it. However, the legal adviser had not said in her answer what the right thing was. The only way for the NCOP to know the right thing was to find the report and get it. If there were new proposals that the Department decided it should take on board, in spite of the fact that the NA did not do so, then the NCOP must make sure that those proposals came though the public participation processes in the province. There were some valid proposals made to the PC that had not been taken into consideration, which the NCOP should take into consideration. She also asked when the NCOP would determine the dates for negotiating mandates, etc -- or was that something the Chairperson did?
The Chairperson said she did not do anything without the Members of the Committee. Members had to be aware of anything that happened in the Committee, and she was not going to do anything alone.
She thanked the Members for participating in the meeting, especially when they were dealing with legislation, because legislation was a guiding tool for the Members of Parliament. As Ms Labuschagne had said, the NCOP was the custodian of the legislation.
The meeting was adjourned.
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