National Forests Amendment Bill: Negotiating Mandates

NCOP Land Reform, Environment, Mineral Resources and Energy

01 June 2021
Chairperson: Ms T Modise (ANC, North West)
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Meeting Summary

Video: Select Committee on Land Reform, Environment, Mineral Resources and Energy, 01 June 2021

In a virtual meeting, the Committee met to receive the negotiating mandates from provinces on the National Forests Amendment Bill [B11B-2016] (s76). The Select Committee needed at least five provinces to support the Bill. Poor internet connectivity amongst the Members ultimately resulted in the Committee’s loss of a quorum. This meant that it was unable to go through all the provinces’ mandates, so it was decided to vote on the remaining two provinces in the Committee's meeting the following week. Those two remaining provinces were the North West province and the Western Cape.

Meeting report

The Chairperson opened the meeting, and asked who would be leading the proceedings from the Department’s side.

As Ms Nomfundo Tshabalala, Director-General, Department of Environment, Forestry and Fisheries (DEFF), had another commitment and could not avail herself on the virtual platform, Mr Sibusiso Kobese, Deputy Director, would lead the delegation in her stead.

The Chairperson laid out the Committee’s agenda and proposed that the Committee went through the mandate of each province and vote to support, oppose or abstain, province by province.

Mr Asgar Bawa, Committee Secretary, confirmed that all the provinces had submitted their negotiating mandates on the  National Forests Amendment Bill [B11B-2016] 

Eastern Cape

Dr D Bese (ANC, Eastern Cape Legislature) asked the Committee Secretary to read the negotiating mandate which his province had submitted.

Mr A Nyambi (ANC, Mpumalanga) suggested the Department to respond and comment on the provinces’ negotiating mandates.  

Mr Kobese said the Department agreed with the Eastern Cape on point 1 in its negotiating mandate. The Department’s position was that it must maintain references to existing leases, as the Department had quite a few lease agreements, including the South African Forestry Company Ltd (SAFCOL). The Department’s alternative suggested wording was, "No person may engage in prospective mining activity in a state forest, except those of the existing lease agreements." The intention of the Department was to prohibit illegal mining activities using state forestry areas without a licence.

Overall, he remarked that the submission inputs made by the Eastern Cape were inter-related, and all aimed to prohibit mining in state forest areas. Hence, the Department supported the removal of the wording "any existing contracts," but the wording "existing leases"’ needed to be retained.

Ms Phumelele Ngema, parliamentary legal adviser, said that she had noted the Department’s alternative solution to the removal of wording, and commented that it was unfortunate that the legal service and the Department had had no prior discussion on the matter, but she believed that they would reach an agreement.

Referring to Clause (b), she said she was under the impression that valid contracts validated the lawfulness of the contracts. If the Department was certain that the removal of "valid contracts" would not result in any changes, she would not have any issue with that.

Members then voted on Eastern Cape’s negotiating mandates.

The Eastern Cape supported all the clauses in its own province’s negotiating mandate.

With the exceptions of the Northern Cape and the Western Cape, whose National Council of Provinces (NCOP) Members were not on the virtual platform, all other provinces voted in favour of Clause 9(a).

With the exceptions of the Northern Cape and the Western Cape, and the Member from Limpopo province who could not participate due to poor internet connectivity, all other NCOP members present supported Clause 9(b).

Clauses 9(c) and 9(d) were also supported.

All four clauses of the negotiating mandates submitted by the Eastern Cape were accepted by the Select Committee.

Free State

Mr I Ntsube (ANC, Free State) agreed that Committee Secretary may read the negotiating mandate of his province on his behalf.

Mr Kobese commented on Clause 1, section 2, of the negotiating mandate. The Department’s view was that government should not fix things that were not broken. For more than two decades of implementing the Act, the Department had not experienced any challenge with the term "reasonable access." That term did not exist specifically on its own in this bill. The Department’s view that in terms of the bill, reasonable access referred to access to recreational, educational, cultural or spiritual use of state forests.  

Mr Kobese commented on Clause 2(a). The province recommended one needed to be mindful of the Gonqose v Minister of Agriculture, Forestry and Fisheries case, to recognise the rights of people who practised customs and traditions that might be hampered by the amendment. He explained that the concept of state custodianship of land or forests was an internationally recognised principle. He made reference to the United Nation’s Resolution No 1803, which affirmed the state's sovereignty over state natural resources. Hence, the state had the ultimate authority to exercise its rights on its natural resources. In addition, the bill recognised customary practices, such as clause 26(4), which provided classes of persons exempted from requirements of the Act if the intended activities were for domestic, cultural, health or spiritual purposes. Furthermore, s39(3) of the Constitution also protected people’s customs and traditions. The Department’s view was that the case, as referred herein, may not be relevant to this context.

Clause 4 which recommended the definition of the term "conservation." The Department’s view was still that it should not fix something which was not broken. and it had not experienced any challenges in the past. Also, the term was not specifically used in the bill and was mentioned only a few times in the bill. In law, if a term was not specifically defined, it should be assumed that the meaning of the word was the dictionary meaning.

Mr Kobese commented on Clause 7. The Department did not support the proposal, because it was not a consequential amendment. In the Department’s view, a consequential amendment meant that a change in one clause would affect the outcome of the subsequent clause.

Clause 8(b) was about the emergency clause. The Department’s view was that the approach was not new. The general principle was that one should not enter the premises without a search warrant. However, there was exception to that because a police officer may enter a property without a search warrant. Hence, this clause served to ensure that purpose. This clause provided the Minister the right to issue emergency orders, such as to stop the cutting of a certain type of trees -- but then the Minister may always revoke the order after consultation. The Department was of the view that the Minister should have the authority to issue such orders.

Mr Kobese commented on Clause 10 and expressed the Department’s support without any reservation.

Ms Ngema said that she was in total agreement with the views of the Department and explanations.

She said that in case of the definitions on "reasonable access" and "conservation," if the Committee deemed it necessary, it would then invoke NCOP rule 1 691(b) for the Select Committee to request permission of House, as it had not been part of the bill that had been introduced.

She agreed with the Department’s view on Clause 8 and its justification. She said that the Minister should have the authority to issue emergency orders within a restricted period of time, but needed to provide justification for the order. She further confirmed that it fell within ambit of the Promotion of Administrative Justice Act.

Commenting on Clause 10, she said that if the Committee agreed to add people with disabilities to the bill, then it would be only clause to request permission from the House.

Members then voted on the proposed mandates submitted by the Free State.

On Clause 1, the provinces of the Eastern Cape and North West did not support the mandate. The provinces of Northern Cape and the Western Cape were not on the platform. The NCOP member represented Limpopo could not participate in voting due to poor internet connectivity.

On Clause 2, the Eastern Cape did not support the clause. Mpumalanga and North West abstained. The Northern Cape and the Western Cape were not on the platform.  

On Clause 4, Mpumalanga and North West abstained. The Northern Cape and the Western Cape were not on the platform.

On Clause 7, all provinces supported, other than the Northern Cape and the Western Cape who were not present on the virtual platform.  

On Clause 8(b), all provinces supported, other than the Northern Cape and the Western Cape who were not present on the virtual platform. 

On Clause 10, all provinces supported, other than the Northern Cape and the Western Cape who were not present on the virtual platform. 

Of the six proposed amendments submitted by the Free State, Clauses one, two and four were not recommended by the Select Committee. Clauses 7, 8(b) and 10 were accepted.

Gauteng

Ms W Ngwenya (ANC, Gauteng) allowed Committee Secretary to read the negotiating mandate of her province in her stead.

The negotiating mandate from Gauteng did not contain any newly proposed amendments, so the Chairperson asked the Department to make its inputs. However, she said that there was no need for Members to vote on Gauteng’s negotiating mandate.

Mr Kobese agreed that with point one of the province’s mandate. He listed the clauses in the bill that showed the Department was doing exactly what the province suggested in its mandate. S19 of the principle Act made provision for access to state forests for recreation, culture and spiritual fulfilment. S46(4) was a clause that exempted certain classes of persons from getting the requisite licences if their activities were for their domestic use, or for cultural and spiritual fulfilments.

Mr Kobese fully agreed with point two of the province’s negoitiating mandate. In the bill, s17 gave the Minister the power to declare an area a controlled area if necessary.

The Department fully agreed with point three of the province’s mandate.

Since there was no proposed amendment for this province, the Chairperson did not think that there was need for Ms Ngema to provide any inputs.

KwaZulu-Natal

Ms L Bebee (ANC, KZN) designated the Committee Secretary to read the province’s negoitiating mandate.  

Mr Kobese summarised that the proposed amendments of KwaZulu-Natal were mainly about definitional issues.

On definition of woodlands, the Department’s position was that the current definition in the bill was adequate. The Department noted the proposed amendment was referring to certain documents which were not under the control of the Department. For instance, the National Vegetation Classification and the Specialist Botanical Survey Report were not under the Department’s control. Therefore, the Department could not support the proposed amendment to that extent. However, it had come up with an alternative definition which addressed the concern raised by the province. The Department’s proposed definition was: "Woodland means a group of indigenous trees which were not a natural forest, but whose crowns cover more than at least five percent of the area they occupy; OR be any vegetation type declared by the Minister to be a woodland by notice in the gazette."

Mr Kobese referred to Clause (b) of the negoitiating mandate, and said the Forestry Act had been amended in 2005 and that the s12(1) referred to was no longer was in the Act since the 2005 amendment.

He commented on the destruction of natural forests, and welcomed the proposal on behalf of the Department. The Department had suggested a few minor changes to the amendment and proposed the insertion of "resource use" at the end of the definition. The concern was that the definition was not in the bill, so the Committee may need to request permission from the House again.

The Department supported the proposed definition of "new land use," but he reminded Members that the term had not been contained in the current version of the bill.

Ms Ngema had no further additional comment on the province’s negoitiating mandate.

Members then voted on the proposed mandates submitted by KwaZulu-Natal.

On Clause a, the Eastern Cape did not support the proposed mandate. The NCOP Member from Limpopo had network problems, so he could not participate. The North West province abstained. The Northern Cape and the Western Cape were not present on the virtual platform. Others supported the proposed mandate.

On Clause b, the Eastern Cape and the North West province did not support the negoitiating mandate. Mpumalanga abstained. The provinces of the Northern Cape and the Western Cape were not on the virtual platform. Others supported the proposed mandate.

On Clause c, Limpopo province had some network issues, so the NCOP Member could not participate. The North West province and Mpumalanga abstained. The Northern Cape and the Western Cape were not present on the platform. Others supported the proposed mandate.

On Clause d, the NCOP member from Limpopo had some network issues, and was thus unable to vote on the platform. Mpumalanga and the North West Province abstained. The Northern Cape and the Western Cape were not on the virtual platform. Others supported the proposed mandate.

Of the four proposed mandates submitted by KwaZulu-Natal, none of them was accepted by the Select Committee.

Limpopo

The Committee Secretary read the negoitiating mandate submitted by Limpopo Province.

Mr Kobese said that the Department thought the three definitions were almost identical to those that had been proposed by Mpumalanga. The Department supported the proposed amendments, but expressed its concern that the new definitions were not from the original content of the bill. He left that discretion to the Committee.

He repeated the Department’s proposed definition on woodland.

He supported the proposed amendment on the "destruction of natural forests," and repeated the Department’s proposed insertion of "resource use” at the end of the amendment. He expressed his concern again that it was not part of the bill.

Ms Ngema said that all was in order.

On Clause 1, all provinces supported it, other than the Northern Cape and the Western Cape, that were not on the virtual platform. Others supported the proposed mandate.

On Clause 2, the NCOP member from the Eastern Cape had some network problem. Both the Northern Cape and the Western Cape were not on the platform. The province of North West abstained. Others supported the proposed mandate.

On Clause 3, the NCOP member from the Eastern Cape had some network problem. Both the Northern Cape and the Western Cape were not on the platform. Others supported the proposed mandate.

All three proposed amendments submitted by Limpopo were accepted by the Select Committee.

Mpumalanga

The Committee Secretary read the negoitiating mandate submitted by Mpumalanga province.

Mr Kobese commented on Clause 1, section 2. The Department noted the suggestion, and agreed that guidelines needed to be developed to support the implementation of the bill.

He reiterated the Department’s proposed stance on the definition of "woodland."

Referring to Clause 8, section 17, he explained that s12(1) had been removed in the 2005 amendment process.

Mr Kobese commented on Clause 3, section 7, and reiterated the Department’s proposed amendment on the “destruction of natural forests."

He supported the province’s proposed amendment on "land use," and expressed concern that the term was not contained in the current bill.

On point 18 of the mandate submitted by Mpumalanga, the Northern Cape and the Western Cape were not present on the virtual platform. The Eastern Cape had some network problem. The rest of the provinces voted in favour of the mandate.

On point 19, the NCOP member from Limpopo had some network issue. Neither the Northern Cape nor the Western Cape was on the platform. Other provinces supported.

On point 20 submitted by Mpumalanga, the NCOP member from Limpopo had some network issue. Neither the Northern Cape nor the Western Cape was on the platform. All the other provinces supported.

On point 22(i), neither the Northern Cape nor the Western Cape was on the platform. All the other provinces supported.

On point 22(ii), neither the Northern Cape nor the Western Cape was on the platform. All other provinces supported the proposed mandate.

All the proposed amendments submitted by Mpumalanga were adopted.

Northern Cape

The Northern Cape Legislature did not put forward any proposed amendments, and supported the bill with no amendment.

North West

Mr Kobese said that the Department agreed with province’s definition of "natural forest," and guaranteed that a guideline would be developed to support the implementation of the bill.

He reiterated the Department’s stance on the revision of the definition of "woodland."

Commenting on the inclusion of "House of Traditional Leaders," he said the Department’s view was that the bill had already made provision for the Minister to make a delegation of power to traditional leaders in s48.

He reiterated the Department’s stance on the definition of "destruction of natural forests" and its support for the definition on "new land use."

Regarding the definition of "exceptional circumstance," he said the Department was of the legal view that the concept could not be restricted, as otherwise it would render the Act unimplementable.

He referred again to the removal of s12(1) in the 2005 amendment process.

Mr Kobese commented on section 17 of the bill, and explained the need for an emergency clause. He emphasised the importance of the Minister having the power to make an emergency decision without engaging in consultations. It should be examined on a case-to-case basis.

With reference to clause 16, section 58, on the proposal regarding commercial forests, the Department’s view was that the proposed concepts had already been sufficiently addressed in the bill.

He explained that s58 of the bill made provision for reduced sanctions on disadvantaged citizens. The set fine range was between R1 to R10 million, depending on the merits of each case. For disadvantaged citizens, there was accommodating space for them to advance their cultural needs in the bill.

Ms Ngema added no further additional comments.

On point 1, the NCOP member from the Free State had some network issue, and was thus unable to vote. The Northern Cape and the Western Cape were not present on the virtual platform. Others supported the proposed mandate.

Due to poor connectivity of Members, there was no longer a quorum on the platform. The Chairperson therefore proposed to deal with the two remaining negoitiating mandates the following week.

The meeting was adjourned.

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