Constitution of Western Cape First Amendment Bill: briefing & public hearings

Premier & Constitutional Matters (WCPP)

26 May 2021
Chairperson: Mr R Allen (DA) (Acting)
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Meeting Summary

Video: Public Hearing: Constitution of the Western Cape First Amendment Bill, 26 May 2021, 15:30

Constitution of the Western Cape First Amendment Bill

In the briefing on the Amendment Bill, the Department of the Premier explained its purpose is to amend the Western Cape Constitution to align it to the amendments effected to the National Constitution to avoid inconsistencies and difficulties with interpretation; and to repeal provisions on Commissioner for the Environment. The affected sections dealt with provincial legislature membership, calling election dates, Money Bills, local government interventions, taxes and loans.


The Department of Environmental Affairs and Development Planning noted that Section 71 of the Western Cape Constitution establishes the Commissioner for the Environment. Sections 72 – 77 deal with the powers and functions and related aspects. The Commissioner is binding on the provincial legislature and executive unless the relevant sections are repealed.

As subsequent national legislation already provide adequately for the protection of the environment, the Commissioner position is not desirable as it would cause a duplication of roles and functions provided for in national and provincial legislation; it will not address governance gaps; and it will consume scarce state resources. The Commissioner has very limited powers and would not have power to investigate complaints against national government and private entities. The Commissioner would not be a decision-making body on environmental authorisations, nor would it be an appeal body.

In the public hearings on the Amendment Bill, Concerned Federalists said the proposed amendments are vehemently opposed and it intends going to the highest court should the process be taken forward. Concerned Federalists is not in favour of setting up separate or independent states as proposed by some political parties and separatists movements in the Western Cape. South Africa is and can only be governed in terms of the RSA Constitution. The Western Cape constitution should be amended to increase the parliamentarian numbers. It is submitted that 42 parliamentarians cannot effectively monitor and consult with the population of the Western Cape.

Concerned Federalists stated the removal of Commissioner for the Environment would be a disaster from an environmental and federalist point of view. Arguments advanced for its removal are fatally flawed. The Western Cape has unique fauna and flora. Funding for conserving and protecting the environment cannot be emphasized. It is not a luxury but an essential. This should be a shared responsibility between the province, municipality and citizens.

Mr Mark Wiley also made a submission and said that many  in the Executive see the position of Commissioner for the Environment as a threat. The province needs the commissioner and it has scientific support due to its diverse natural vegetation. This province can already pride itself on being a good example of a well run regional government on par with best anywhere. This fact is borne out by empirical studies, audit reports, evaluation reports and investor confidence.

Informal settlements are mushrooming in every town and suburb, invariably occupying wetlands, common areas and reserves. The City of Cape Town has produced some 1008 environmental reports in the last 15 years.  The reports identify increasing threats across the environmental spectrum.  It is quite apparent that existing laws and their enforcement are not working as they should. Greater focus, more energy, new thinking and dialogue are urgently needed.

By being independent and an authority on the topic, the Commissioner for the Environment would give feedback with the credibility and gravitas that is so lacking in politics today. Reports to the legislature would cut across the narrow and existing limited department briefings to a small and overworked committee. This topic needs as wide an audience as possible given its importance. By engaging with a wide spectrum of government spheres and departments the commissioner will be able to advise the executive where gaps exist and where policy can be improved

Mr Ali Gwabaza made a submission stating the reasons for the removal of the Commissioner for the Environment are flawed. The Western Cape government created the post for the benefit of the province. Not going ahead with the appointment of the Commissioner suggests the interests of the Western Cape citizens are no longer needed or taken care of. The office of the Commissioner has not been activated. There has been only minimal public participation in this decision.

Meeting report


Constitution of the Western Cape First Amendment Bill: briefing
Ms Clara Williams, State Law Adviser: Department of the Premier, said the purpose of the Bill is to amend the Western Cape Constitution to align it with amendments effected to the RSA Constitution to avoid inconsistencies and difficulties with interpretation; and to repeal the provisions on the Commissioner for the Environment. The affected sections dealt with provincial legislature membership, calling election dates, Money Bills, local government interventions, taxes and loans.

• Membership of the provincial parliament, Section 15 of the Western Cape Constitution is amended to be in line with section 106(3) of the RSA Constitution.

• In calling dates for elections, Section 17 of the Western Cape Constitution is amended by the insertion of the following subsection after subsection (2): ‘‘(2A) A proclamation calling and setting dates for an election may be issued before or after the expiry of the term of the Provincial Parliament.’’. This will be in line with section 108(2) of the RSA Constitution.

• On Money Bills, the following is substituted for section 30 of the Western Cape Constitution: ‘‘Money Bills
30. (1) A Bill [that] is a money Bill if it—
(a) appropriates money; [or]
(b) imposes provincial taxes, levies, [or] duties or surcharges [is a money Bill];
(c) abolishes or reduces, or grants exemptions from, any provincial taxes, levies, duties or surcharges; or
(d) authorises direct charges against the Provincial Revenue Fund.

A provincial Act must provide for a procedure by which the Provincial Parliament may amend a money Bill.’’ This will be in line with section 120 of the RSA Constitution.

•  On local government interventions, section 49 of the Western Cape Constitution has been aligned with section 139 of the RSA Constitution.

•  On taxes, Section 59 of the Western Cape Constitution is amended by the substitution for paragraph (b) of subsection (1) of the following paragraph:
‘‘(b) flat-rate surcharges on [the tax bases of] any tax, levy or duty that is imposed by national legislation, other than [the tax bases of] on corporate income tax, value-added tax, rates on property or customs duties.’’

•  On loans, the following section is substituted for section 63 of the Western Cape Constitution:
63. The Western Cape government may raise loans for capital or current expenditure, in accordance with [conditions determined by] national legislation, but loans for current expenditure[—
(a)] may be raised only when necessary for bridging purposes during a fiscal year[; and
(b) must be repaid within 12 months].’’

The Western Cape Constitution has been aligned with expressions used in the RSA Constitution.

Department of Environmental Affairs and Development Planning (DEA&DP) briefing
Mr Ayub Mohamed, Chief Director for Environmental Governance, Policy Coordination and Enforcement: DEA&DP, said that Section 71 of the Western Cape Constitution establishes the Commissioner for the Environment. Sections 72 – 77 deal with the powers and functions of the Commissioner and related aspects. The Commissioner is binding on the provincial legislature and executive unless and until the relevant sections are repealed.

The Western Cape Constitution may be amended if it is determined that the Commissioner is no longer desirable. DEA&DP is of the opinion that it is undesirable for the following reasons:
- The duplication of roles and responsibilities
- It will consume scarce state resources
- It will not address any governance gaps.

Mr Mohamed explained the historical background that led to the establishment of the Commissioner. In 2001, a draft Bill for Commissioner for the Environment was produced that included an organisational design; a definition of the “environment” – which was the same as in the National Environmental Management Act, 1998, and it also defined “environmental administration” as any action, omission or decision by an organ of state which significantly affects the environment in an adverse manner.

In 2009, an external legal opinion was obtained on the desirability of appointing the Commissioner. It confirmed the environmental legislative reforms that had occurred. However, it also indicated that a constitutional amendment should not be taken lightly, and that consideration should be given to amend the Constitution only when it is appropriate or desirable. Since 2010, the Amendment of the Western Cape Constitution proceeded on that basis. However in 2015 further analyses confirmed that duplication  exists and that Bill was withdrawn.

In 2019, the Fifth Western Cape Parliament dissolved and the Bill lapsed. So the Commissioner for the Environment has never been appointed. The current Provincial Parliament has introduced a Bill with the provision to repeal sections 71 to 77.

The duties and function of the provincial Commissioner for the Environment is to monitor urban and rural development which may impact on the environment; investigate complaints about environmental administration; and recommend a course of conduct to any provincial organ of state or municipality whose activities have been investigated. The Commissioner must act in accordance with the principles of cooperative government and intergovernmental relations. Where the Commissioner has made recommendations to a provincial organ of state, that organ must report to the Commissioner on its actions within a reasonable time. The Commissioner must monitor the implementation of its recommendations by provincial organs of state.

The Premier appoints the Commissioner nominated by Committee of the Provincial Parliament. The nomination must be supported by a 60% vote of the provincial parliament. Civil society must be involved in the nomination process. The Commissioner may be removed from office on the grounds of misconduct, incapacity or incompetence. This can only happen if found to be so by a Committee of the Provincial Parliament; and a resolution of the Provincial Parliament calling for the Commissioners removal with a supporting vote of at least two thirds. The Premier may suspend the Commissioner whilst the parliamentary process is underway. The Premier must remove the Commissioner if Provincial Parliament so decides.

Since 1998, numerous laws, along with extensive subordinate legislation aimed at integrated environmental management and governance, spatial and land use planning, urban and rural development, and intergovernmental coordination and administrative oversight, has been enacted.
There is an overlap and duplication of the role and functions of the Commissioner as provided for in this national and provincial legislation. Numerous statutes related to the environment have been promulgated: National Environmental Management Act, 1998 and Specific Environmental Management Acts such as: Protected Areas Act, Biodiversity Act, Air Quality Act, Integrated Coastal Management Act, Waste Management Act. Planning Legislation include – Spatial Planning and Land Use Management Act (SPLUMA) and the Western Cape Land Use Planning Act (LUPA). For governance, there is the Public Protector Act, Promotion of Access to Information Act and the Promotion of Administrative Justice Act.

In the pipeline, there is draft legislation such as National Environmental Management Laws Amendment Bill, Draft Western Cape Biodiversity Bill, Protection and Development of Agricultural Resources Bill, Draft Integrated Planning Framework Bill. There are also strategic policies governing the environment. The function of Provincial Commissioner for the Environment is now catered for as follows:
- NEMA and Specific Environmental Management Acts establish various fora and structure to co-ordinate and promote integrated environmental management such as Advisory Committees.
- National Water Act: Catchment Management Agencies, Water User Associations and Tribunals
- SPLUMA creates Municipal Planning Tribunals
- LUPA requires Provincial Minister to monitor urban/rural development and biodiversity protection.

It is important to note that the Commissioner has no jurisdiction to investigate matters which do not constitute a provincial competence, such as water, forestry, fishing, and abalone. Also competence over municipal matters is unclear as there are no reporting obligations placed on municipalities, even though the Commissioner could investigate activities of a municipality.

The 2001 organisation design was extremely limited in comparison to the Western Cape Police Ombudsman and Children’s Commissioner, who have a staff complement of about 12 with the heads at DDG level. Based on these two bodies as a norm, the cost of establishing the Commissioner for the Environment amounts to: R12m in year 1 (R3m start up costs included); R9.9m in year 2; R10m in year 3.

Mr Mohamed stated that national and provincial legislation already provide adequately for the protection of the environment. The filling of the vacancy is not desirable as it would involve an overlap and duplication of functions now provided for in legislation; it will not address any governance gaps; and it will consume scarce state resources. The Commissioner has very limited powers. The previous public consultations have raised matters the Commissioner can deal with. The Commissioner would not have power to investigate complaints against national government and private entities; it would not be a decision-making body on environmental authorisations, nor would it be an appeal body.

Concerned Federalists submission
Mr Frank Raymond, partner at Raymond McCreath Inc, stated the Concerned Federalists are of the conviction that the federalist principles contained in the RSA Constitution do offer the opportunity to the Western Cape as well as other provinces to increase their level of autonomy and in so doing improve their level of service delivery. The Concerned Federalists are also of the firm belief that the devolution of powers to the lowest possible structure is the only way to build and preserve democracy and the rule of law in our country. The Federalists are of the opinion there is an urgent need to devolve and delegate more powers to provinces and municipalities to ensure decision-making can be taken at the lowest possible sphere of government.     

Mr Raymond said the amendments to the Western Cape Constitution are vehemently opposed by the Concerned Federalists and they intend going to the highest courts should the process be taken forward. Concerned Federalists is not in favour of setting up separate or independent states as proposed by some political parties and separatists movements in the Western Cape. South Africa is and can only be governed in terms of the RSA Constitution. The Constitution should be amended to increase the parliamentarian numbers. It is submitted that 42 parliamentarians cannot effectively monitor and consult with the population of the Western Cape.

The removal of the environment commissioner would be a disaster from an environmental and federalist point of view. Arguments advanced for the removal of the environmental commissioner are fatally flawed. The Western Cape has unique fauna and flora. Funding for conserving and protecting the environment cannot be emphasized. It is not a luxury, but is essential. This should be a shared responsibility between the province, municipality and citizens.

An environmental ombudsman is not uniquely Western Cape. It exists in Canada, Australia, and other countries. A lot of money is not needed to create it. The environmental commissioner is an independent (not an official) and is appointed by the Provincial Parliament. The commissioner should report to parliament and nobody can interfere. The commissioner can request steps to be taken to rectify matters and can subpoena any person to obtain information or evidence. A retired judge or professor with environmental knowledge could be appointed to do the job for a lesser salary and the staff complement could be minimal. The commissioner does have the power to focus on environmental issues outside of provincial powers, for example, gathering information on sea fisheries, marine resources, nuclear energy (Koeberg / Greenpeace) defence and others.

At the time of the certification process of the Western Cape constitution, the framers of this constitution knew that the National Environment Act was in the drafting process as the green paper was published in 1995 and the white paper was published in 1997. Therefore, it is clear the framers of the constitution wanted an independent environmental commissioner to be appointed. The principle in this matter is that of environmental justice, where the commissioner should enforce socio-environmental justice. Decision-making should be close to the people in the federalist approach. Western Cape parliament should rethink removing the environmental commissioner.

Mr Mark Wiley submission
Mr Wiley stated there are three very important elements that life works on for survival: natural environment, built environment, and living environment. If you take out one of these elements, life would cease to exist as these elements are interdependent. It is unfortunate that when talking about the environment, some people choose to be selective and refer to only one or the other element and choose not to see the whole topic as interdependent.

The neglect of and devastation of the natural environment has now got the attention of world leaders and significant political weight is being channelled into measures to mitigate the effects of climate change, global warming and the reckless stripping of natural resources. World leaders have now pledged to protect humanity. The threat crosses all borders and nationalistic divides. The Western Cape government has more to benefit from this debate. The post of the environmental commissioner has not been filled by successive provincial governments for some 24 years, which in itself is tragic and remiss.

Many in the executive see the position of the environmental commissioner as a threat. The province needs the commissioner and it has scientific support as it has diverse natural vegetation. This province can already pride itself on being a good example of a well run regional government on par with the best anywhere. This is borne out by empirical studies, audit reports, evaluation reports and investor confidence.

Mr Wiley pointed out the Western Cape has a population of nearly 7 million – a massive increase. The truth is the success of governance in the Western Cape has also become its greatest liability. The constant stream to the Western Cape is well documented. These artificial population shifts, in most cases a result of the collapse of built and living environments in their original provinces, have had a serious effect on the provincial and local governments in the Western Cape, and their ability to continue to provide quality services. These huge increases in population are neither planned nor budgeted for.  The effects on the holistic environment are staggering and cannot be sustained.

 Informal settlements are mushrooming in every town and suburb, invariably occupying wetlands, common areas and reserves. The City of Cape Town produced some 1008 environmental reports in the last 15 years.  The reports identify increasing threats across the environmental spectrum.  It is quite apparent that existing laws and their enforcement are not working as they should. Greater focus, more energy, new thinking and dialogue are urgently needed.   

The following are some of the potential threats looming large: ongoing effects of climate change; increased renewable energy developments; shale gas prospecting; increase in sand mining; shortage of landfill space; declining pollinator population. These matters need to be monitored closely and plans to mitigate have to be well thought through.

By being independent and an authority on the topic, the Commissioner for the Environment would give feedback with the credibility and gravitas that is so lacking in politics today. Reports to the legislature would cut across the narrow and existing limited department briefings to a small and overworked committee. This topic needs as wide an audience as possible given its importance. By engaging with a wide spectrum of government spheres and departments the commissioner will be able to advise the executive where gaps exist and where policy can be improved

The Commissioner could report back on longstanding concerns like the Table Mountain National Park (TMNP) and make recommendations. A commissioner should have similar powers like the Public Protector and would likely succeed where others have not.

It has also been claimed that more recent legislation has overtaken events and the post of environmental commissioner is therefore redundant. One aspect  missed in all the environment reports was a report back on how many cases or appeals, with specifics, have been lodged by civil society against departments, or vice versa, or alternatively by departments against another sphere of government. Annual reports generally only report on the amount of legal fees expended.

This province created a much needed Police Ombudsman into provincial law precisely because the existing IPID law left so many gaps in areas that affected ordinary citizens the most – service delivery. The information gathered and the actions stemming from this additional post have justified its existence and expense.

Lastly, as far as cost is concerned, if only a fraction of the revenue that the Financial and Fiscal Commission (FFC) should determine should be given to the province, based on legitimate claims, and if SanParks returned a portion of its profits, then the cost of the environmental commissioner would be justified beyond measure for the allied benefits. An amended form of the environment commissioner can be debated given the time lapse since its conception 24 years ago. Much has changed since and the commissioner’s role should be broadened to cover the full environmental spectrum and reference to only provincial departments should be revised to any source that impacts the Western Cape environment – as identified in its own departmental reports as being areas of concern and threat.  In addition a term of three years is impractical and should be extended to seven years to ensure continuity bridging two legislative terms. He was of the firm belief that to remove this post completely would be sending the wrong message at this critical time.

Mr Ali Gwabaza submission
Mr Gwabaza said the reasons for the removal of the Commissioner for the Environment are flawed. The Western Cape government should explain why the post was created for the benefit of the province. Not going ahead with the appointment of the Commissioner suggests the interests of the Western Cape citizens are no longer needed or taken care of. The office of the Commissioner has not been activated. There has been only minimal public participation in this decision. According to the law, public participation should be encouraged and promoted by educating the public. Ordinary people have not been empowered and educated about the matter of the environmental commissioner. The advancement of profit is what is important at the expense of the environment. Government should revisit the powers and functions of the environmental commissioner. He also made a comment on Money Bills.

Discussion
Mr C Dugmore (ANC) remarked that Mr Wiley came with a very interesting perspective and he advocated that the current functions of the Commissioner for the Environment should stand as they are. Mr Dugmore indicated he agreed with the idea of the Concerned Federalists that the environmental commissioner should advise the executive on matters of climate change and how that would socially affect people, farmers and other stakeholders. Two more powers of the environmental commissioner should be considered and added. He also said that there should be legislation that governs and changes Money Bills.

Ms D Baartman (DA) informed the committee that the Budget Committee has been working on the Money Bill legislation and would be holding workshops on it to ensure it is the best, not only in SA but in the rest of the world so that the world could come to SA for lessons.

Mr Gwabaza wondered if the Western Cape government does monitor prime land in the province, including the coast line that is being given to the developers. It is important for the environmental commissioner to get information about this from all the municipalities.

Mr Dugmore proposed that the public should make submissions on how the environmental commissioner can be empowered.

Mr G Brinkhuis (Al Jama-ah) expressed support for the appointment of the environmental commissioner.

The meeting was adjourned.

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