United Phosporus Fire; Animal Welfare Act review; High Level Panel Report on captive animals; with Ministry

Environment, Forestry and Fisheries

23 November 2021
Chairperson: Ms F Muthambi (ANC)
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Meeting Summary

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Ministerial high-Level Panel report

The Portfolio Committee met virtually to receive an update on the investigations into the impact of the UPL chemical fire during the recent unrest in Durban. This was followed by a briefing by the Department of Forestry, Fisheries and Environment (DFFE) and the Department of Agriculture, Land Reform and Rural Development (DALRRD) on the Animal Welfare Act. A presentation was also made by the DFFE on the recommendations in the High-Level Panel's (HLP's) report on the management of South Africa's five iconic wild life species.

The DFFE reported that the investigation had found that UPL had not undertaken the necessary assessment required in terms of the Occupational Health and Safety Act, and had not obtained a scheduled activities permit from eThekwini Metropolitan Municipality. The fire at UPL had created a source of pollution for the environment and resulted in habitat destruction and loss of livelihoods for the local community. Members asked how this industry had been allowed to operate under the noses of the DFFE and DALRRD without proper certification? They asked if any criminal charges were laid against the instigators of the fire. They also questioned the preparedness of the eThekwini fire department to deal with fire disasters, and to equip their firemen with proper personal protective equipment during such events. Would UPL continue to operate such a facility?

The Committee asked the DFFE what action they were taking to ensure that incidents of this nature did not occur at any chemical storage facility in the whole country. Were they planning to visit other chemical storage facilities to make sure that consequence management was in place and that they complied with environmental regulations?

The Minister said that according to environmental law, the polluter had to pay. In this instance, clean-up operations were under way and were being financed by UPL at an estimated cost of R247 million. It would take up to 20 years for the environment to be restored to its former condition. The Committee agreed that it was essential to call other involved stakeholders, such as the National Prosecuting Authority and the police, to account for circumstances surrounding the fire.

The HLP advisory committee was set up by the Minister according to the National Environmental Management Act in October 2019 to address significant levels of public concern over animal welfare and wellbeing around the policies associated with elephants, lion, leopard and rhinoceros species. It had been established that the National Environmental Management: Biodiversity Act did not contain a regulatory mandate relating to wild animal welfare. Therefore, animal welfare was mentioned as one of the cross cutting areas that required deeper understanding in the HLP report. Sub-committees had been established to make recommendations on seven cross- cutting areas.

The Committee asked when the Animal Welfare Bill would be handed to them for consideration. It wanted to know what international legislation had been incorporated in the draft bill and if other national welfare organisations, apart from the National Society for the Prevention of Cruelty to Animals, were involved in the working group. How were the "One Welfare" approach and the HLP recommendations incorporated into the draft Animal Welfare Bill? They appreciated the fact that animal sentience was one of the anchors of the new Bill.

Meeting report

Minister’s introductory comments

Ms Barbara Creecy, Minister of Forestry, Fisheries and Environment, said that the presentation on United Phosphorus Limited (UPL) would be led by Ms Frances Craigie, Chief Director: Enforcement, and Mr Grant Walters, Director: Environment and Pollution.

She had visited the area about two months ago and had been shocked by the scale of the devastation that had been caused by the fire. She had also been interested in the clean-up operations under way, financed by UPL. She had had an opportunity during the visit to interact with the marine scientists that were sampling the water from the sea and lagoon. The DFFE would update the Committee on the beaches that were open, except the ones situated one kilometer from the exclusion zone on the other side of the lagoon. They had not yet opened for fishing, and were very mindful that this was a very difficult situation for fishermen and women that work in the affected areas. The Department was very concerned about the loss of livelihood involved.

The Minister said that the DFFE had set up a stakeholder forum to facilitate engagement and updating of information created by the UPL disaster. A level of transparency had been improved by the DFFE regarding the issue. They had also made sure that there was an online site where information could be posted. They were fully convinced that those who were impacted by the UPL disaster must be an integral part of understanding and participating in the solutions required. She suggested that the Committee should consider a joint meeting with the Health Committee where they could together interrogate the required relevant health actions. The DFFE could report only on the environmental matters that were taking place.

Preliminary investigation into UPL compliance

The preliminary investigation had found that before the fire, the UPL’s operation involved the unlawful storage of chemicals classified and dangerous goods. UPL had not undertaken the necessary assessment required in terms of the Occupational Health and Safety Act (OHSA), and had not obtained a scheduled activities permit from the eThekwini Metropolitan Municipality. The occupation of the UPL by two different tenants was also not authorised by the eThekwini municipality.

It had been found that UPL had acted negligently and unlawfully, according to the National Environmental Management Act (NEMA) and the National Water Act. The fire at UPL had created a source of pollution in a residential area, the close to a river system, a sensitive protected area and the coastal environment. A criminal investigation, led by the Green Scorpions, had been initiated in September. Some of the interventions undertaken included liming, river cleaning, wetland de-sludging and ultra-violet (UV) treatments.

Discussion

Mr N Singh (IFP) said that he expressed himself in writing how disappointed he was that the DFFE and the Minister had not invited Members of the Portfolio Committee who resided in KwaZuluNatal (KZN) when the UPL report was made public earlier this year in Durban. They had had to read from the newspaper what had happened, and he was glad that the Chairperson had taken this matter up.

He said the non-compliance with the regulatory framework seemed to be emphasised, rather than over-emphasised. He was disappointed to note that while recommendations and corrective measures were required from a lot of role players, including the UPL group, there seemed to be no action taken or recommendations towards those within the city and the province who had been negligent in ensuring that the UPL company continued operating without the necessary regulatory framework. This was a serious omission, because there was a company running with all the highlighted risks, and there were provincial and city departments that did nothing but allow this to happen. What lessons had been learnt to ensure that the law enforcers enforced the law? How was this industry allowed to operate under the noses of DFFE and Department of Agriculture, Land Reform and Rural Development (DALRRD) without proper certifications?

Mr Singh said there was a need to look at the concessions that were granted in terms of environmental compliance in the special economic zones (SEZs). People seemed to be hiding behind special economic zones and not complying with environmental regulations”. He asked what was going to happen to the building that still stood there, and the closing of the beaches in KZN. He stressed that something serious had to be done.

Mr D Bryant (DA) echoed Mr Singh’s concern at the lack of oversight by the eThekwini Municipality. He asked when the Committee would get a report from the DFFE on how they would address the challenges encountered. Would it include steps taken in terms of consequence management for the officials who did not conduct the correct oversight to ensure compliance? Would there be a report on the preparedness and actions taken -- or lack of -- in the initial stages by the fire department? There had been chaos in the way the fire department responded, in particular the lack of availability of proper personal protective equipment (PPE) for some of the fire staff.

Mr Bryant asked if there were any criminal investigations into what had caused the fire. Why was this not mentioned anywhere in the report? He said there were discussions and deliberations around how the fire started. People did not want to point the fingers and say it was the rioters or looters. Were any criminal charges laid against the people who had started the fire? There was no doubt that there were issues of non-compliance. There would not have been this terrible situation if the warehouse itself had not been set on fire. He asked how long it would take for the freshwater system to reach pristine conditions, if ever. What had the impact on the riverine and wetland animals been? What had been the impact on their breeding patterns and the stability of the species that occupied the riverine habitat?

Mr N Paulsen (EFF) asked why the damage caused to the environment , especially to the water table and the surrounding river, had been omitted from the report. When the fire broke out, the municipality was not prepared to deal with the fire appropriately. Instead of using foam to distinguish the fire, they had used water, which was not the right substance to distinguish a fire of that nature. The use of water had encouraged the seepage of chemicals into the soil and the river. One of the reasons was that the ANC was in charge of eThekwini, so they were not ready to deal with events of this nature. Was the eThekwini municipality now able to deal with fires of this nature?

He asked if the UPL facility ‘s certification had been issued legitimately for operations in the area. He did not accept that the unrest could have caused the fire. Whatever threats there were to such a facility, it had the potential to create more damage if anything went wrong. The owners should be prepared for any eventuality. Would UPL continue to operate such a facility?

Ms C Phillips (DA) asked if the DFFE had investigated if UPL was operating in other warehouses. If so, had they been inspected for compliance? Had the DFFE checked on any other chemical storage facilities that were in the area? Were these chemical storage facilities checked for environmental compliance? What was the concentration of methylene in the air during different times? Were samples of methylene taken? Was this methylene measured in the urine or faeces of people who attended the clinic? Were the pregnant mothers being observed to check any anemia from which they might be suffering?

Ms A Weber (DA) asked about the impact of the chemicals on the community residing near the UPL facility. What had been their impact on sugar cane plantations, and the specific animals mentioned in the report? Would they die or stop breeding? What would be the impact of eating the fish that had been in the area and moved to another water system? Would the chemicals damage the skin of people swimming at the beaches? If they swallowed the contaminated water, what would happen to them? What actions were the DFFE taking to ensure that the incident that occurred at UPL did not happen at any chemical storage facility in the whole country? Was the Department planning to visit other chemical storage facilities in the country to make sure that consequence management was in place, and that they complied with environmental regulations?

The Chairperson asked which government agency or organ of state had authorised UPL to operate in the area. Who could accept this responsibility, because the Portfolio Committee Members had been asking this question? Why did the environmental officers and inspectors not do their work to prevent the illegality of UPL operations? How could this happen if the Green Scorpions were proactively doing their job? It was assumed that the state would bear the costs of the associated human health effects. How would these be internalised by the UPL or other entities in case of long term health impacts? Was there an established experience that could estimate such human health impacts?

DFFE's response

Minister Creecy apologised for not inviting the Portfolio Committee to the release of the oversight report in KZN.

She said that the preliminary investigations indicated that UPL was responsible, because it did not have the relevant compliance certificates. The reason no inspections were done was because the activities that were happening at UPL were not known by the authorities. An international company like UPL had to be aware of the legal environment in which it operated.

The Minister said that according to environmental law, the polluter pays. The cleanup operation that was taking place at the moment was being financed by UPL, and it was a very extensive and expensive operation. She said that in a situation where there were criminal investigations, there would be civil cases, which could include a class action by communities that had been affected. The UPL case was a long term issue, and many different parties would be going to court. She stressed that the DFFE had presented the findings only from preliminary reports.

Minister Creecy said that the Portfolio Committee Members were aware that environmental responsibility cut through three levels of government -- the city (eThekwini), the province (KZN), and the ministry. The DFFE should have received a request from the MEC of Environmental Affairs in KZN for assistance when the UPL incident happened. It was important for the Committee to note that the DFFE was there in a supportive capacity to ensure that there was scientific information to inform proper regulatory processes. However, it was not the DFFE’s role to be implementing consequence management. The Portfolio Committee, with its oversight powers, could write to different structures and ask questions that pertained to issues of consequence management. It was important that the Committee did not have expectations from the DFFE to attend to issues over which it did not have jurisdiction.

It was also important to note that significant lessons had been learnt from this incident. They were in the recovery phase of dealing with the clean up and scientific monitoring. In due course, she had no doubt that the Department would be coming to the Committee with either revised regulations or points for discussion. The Minister stressed that all of the issues still had to go through the courts, and everything was still a work in progress.

Ms Craigie said it was important to understand that the UPL warehouse had been operating at that particular site for only three months. At the time of the incident, the local environmental inspectors had not focused on monitoring the facility, because they had not realised that what was happening at UPL was actually happening. She said that when one dealt with criminal behaviour, which included chemical storage or drugs, one's whole nature was to hide that criminal activity. She acknowledged that the DFFE could have conducted its inspections and been informed, but sometimes this was difficult -- particularly for facilities such as UPL, which had been operating for such a short period of time. The preliminary investigation report indicated that evaluations should be done to the oversight process -- the steps taken to establish the failures and the challenges.

The DFFE was going to pioneer a project in 2022 that looked at the agro-chemical sector. The environmental inspectors across the national and local level had always focused on priority sectors like ferroalloy, iron and steel, and health care risk waste. The agro sector would be added to the list of the priority sectors so that they would be able to unpack the lessons learnt with regard to this particular situation. The Department would be able to understand where these warehouses were situated across the country, and would also do proactive compliance and enforcement work around the agrochemical sector.

She said that the DFFE had been engaging with the South African Police Service (SAPS), but there had been no consequences or charges or any arrest made in relation to those who had started the fire at the UPL facility. The DFFE would continue to work with the police to see what evidence (including video footage) there was of a potential fire instigator. The investigation was looking at the wider issues of who should be criminally liable for what happened at that site. The authorisations that were required in order to certify the warehouse were not in place. She added that the DFFE was not aware of other UPL facilities.

Mr Walters said that the building had been demolished to ground level, and they had instructed the UPL to take a core sample of the platform before it was broken down. The platform was still intact, but the remainder of the building was gone.

He reported that the riverine system had been altered, as there was no visible life of any animal or aquatic species within the freshwater system, as well as in the Umhlanga Lagoon Estuary. The methylene concentrations had been monitored during the fire incident. The concentrations were recorded and set out in the UPL report.

He said that there were armed guards situated at various points around the riverine system on a round-the-clock basis. Access to the affected riverine system was prohibited at the moment.

Follow-up discussion

Mr Bryant asked when the report from the eThekwini municipality would be available. It was sad to learn that 237 species had gone from around the area. He asked what the estimated costs were of the remedial actions that had been taken so far.

Mr Paulsen said he needed his question to be answered -- was eThekwini municipality now in a position to deal with disasters of this nature?

The Chairperson said that the Portfolio Committee needed to call other involved stakeholders, such as the National Prosecuting Authority (NPA) and the police, to come and account for the event. The DFFE was making it look like the UPL had been operating under the legal radar. Who had failed to do their work because UPL was allowed to operate undetected? What message was being passed on to potential law breakers that in South Africa one could operate without the relevant authorisation?

Minister Creecy responded that the Chairperson, as an attorney by training, needed to understand that the DFFE had put out a preliminary report that indicated that it had prima facie evidence that the UPL company was acting without the necessary authorisation. The company was entitled to present its side of its story in a court of law. The court would ultimately determine the rights and wrongs of the situation and the consequences of the situation. She pleaded with the Portfolio Committee to allow the court process to take its course. She sincerely hoped that having done the work and laying this case with the police, the matter would not end up going nowhere. Should there be evidence that anyone was not doing what they were supposed to do, this would come out in the course of the court case.

Referring to the eThekwini fire mandate and capacity, she believed it was the Portfolio Committee’s duty to call them. Her understanding was that they could have responded appropriately had they known what was there, because they usually fought fire with foam rather than water. When she visited the estuary, she had seen that the UPL event affected a protected area that had been in a very pristine condition. She had spent a lot of time discussing the situation with the scientists, and they had said that once the water was restored to a standard at which life could be sustained, the species that were inhabitants of the estuary would be able to migrate back. The only question that arose from this statement was, how long would it take for the species to migrate back? The estimated riverine system restoration time was given as between three to 20 years.

The Minister pleaded with the Portfolio Committee to not probe this issue any further until the court case offered conclusions.

The Chairperson said that they agreed with the Minister’s plea, but her questions had been misunderstood. Her issue was that it was a fact that UPL had been allowed to operate without a licence. It was about time to call the provincial government and the eThekwini municipality so that the Committee could probe this matter further when they got an updated progress report. She re-phrased her question -- how did it happen in a democratic state that an international company could come and operate without any licence, and nobody had detected it? She added that if there had been no accident, it would not have been detected that UPL was operating without proper authorisation.

Ms Craigie said that a question like ‘how did we allow them to operate,” was always asked. She said that according to the preliminary investigation, there were seven regulatory bodies involved. For example, the Department of Health had given the permissions and the licence according to the Hazardous Substances Act. Why had they not then communicated with the other departments? The permission protocols of different government,  provincial and local departments also needed to be examined. She added that it was very hard to hide in a criminal investigation, and thought that what they were going to see coming out of that process would be quite interesting, if the NPA decided to prosecute UPL and any other entities.

Mr Walters said that the estimated cost that had been spent by UPL was around R247 million. The cost always escalated when contaminated material was taken from the site. He added that it would cost much more when the rehabilitation plans were executed and health protocols were implemented per patient. He committed to making the eThekwini municipality's report available latest by lunchtime on Thursday.

The Chairperson recommended that the Green Scorpions should start to do their work proactively, to prevent the illegality of operations. What had happened at UPL should not happen again. She appreciated the feedback on progress, and the efforts of the DFFE.

Mr Paulsen added that a whole group of people had failed to do their work. No matter what happened, they needed to be prepared for any eventuality. He stressed that UPL had been allowed to operate illegally, given that the city was not ready, and had not put in proper measures to deal with a catastrophe of this nature. He stressed that if there was a facility like UPL in a populated area, extra caution and regular inspections needed to be conducted.

Animal Welfare Legislation

Ms Skumsa Ntshanga, Chief Director: Biodiversity Planning and Management, DFFE, said the National Environmental Management: Biodiversity Act (NEMBA) did not contain a regulatory mandate relating to wild animal welfare. Animal Welfare was mentioned as one of the cross cutting areas that required deeper understanding in the High Level Panel (HLP) report. Sub-committees had been established by the HLP to make recommendations on the seven cross- cutting areas. The seven specific recommendations were:

  1. One welfare approach;
  2. Clarity on animal welfare mandates for the National Council of Societies for the Prevention of Cruelty to Animals (NSPCA);
  3. Considerations of delegation of powers for welfare inspections to a broader group of suitably qualified people;
  4. Development of minimum standards as norms for animal welfare relating to the five iconic species;
  5. Management of the five iconic species;
  6. Hunting of the five iconic species;
  7. Live export of the five iconic species.

Discussion

The Chairperson acknowledged the presentation from DFFE, and asked the DALRRD team to submit its presentation to the Portfolio Committee by Friday at the latest. She apologised for the omission by the Portfolio Committee’s secretary in not giving the DALRRD team ample time to prepare their presentation. She was glad that they had availed themselves despite the short notice, to respond to the issues that would be raised by the Portfolio Committee. She asked the DALRRD team to introduce themselves to the Committee.

Dr Botlhe Modisane introduced himself as Acting Deputy Director General (DDG) for Agricultural Production, Health and Food Safety.

Dr Mphane Molefe introduced himself as the Director responsible for Veterinary Public Health and the Animal Welfare mandate.

Mr Bryant said that the DFFE had mentioned that a draft of the Animal Welfare Bill was currently being circulated and had been submitted to the DALRRD. How far along was the DFFE in reviewing the Animal Welfare Bill? Were there any specific timeframes? Was there any confirmed meeting date? If the DFFE had an opportunity to review the Animal Welfare Bill, could they comment whether the Bill was adequate in terms of jurisdiction and the recommendations of the High Level Panel (HLP) report? When would this draft Bill be presented to the Portfolio Committee? The most important aspect of this endeavor was to ensure that the Bill was not only left with DALRRD, but it must get inputs and be challenged by the DFFE and other relevant stakeholders during the consultation phase to ensure that the welfare and well-being of animals was maintained.

How would the DFFE ensure that the Animal Welfare Bill takes into consideration the HLP recommendations and the principles set out in that paper? In finalising the legislation, how would the norms and standards for the various species in the HLP be consolidated within the drafting of the Animal Welfare Bill? When would there be an opportunity for public participation? What form would that public participation take? What was the composition of the working group at the DALRRD that had been tasked to draft the Animal Welfare Bill? Was the National Society for the Prevention of Cruelty to Animals (NSPCA) included? What other animal welfare organisations had been included in the process? What was the full process that was going to be followed for drafting the Act? What provisional aspects of the model Animal Welfare Act developed by the World Animal Net for guidance on best practice in animal affairs and legislation, had been incorporated in the Animal Welfare Bill? Could they please expand on how they defined animal welfare? Was animal sentience recognised in the draft Animal Welfare Bill in terms of the improved scientific knowledge of animal suffering? With which international legislation was the drafted Animal Welfare Bill mostly aligned? What was that country’s rating in the animal protection index?

Mr Paulsen said that there were many organisations involved in animal welfare, and only the NSPCA had been mentioned, probably because they were involved in enforcing the animal laws and regulations. Were other animal welfare and rights programmes included in terms of ensuring the more humane treatment of animals?

Ms Phillips said that the European Union already had a standard for agriculture. Were the DFFE and DALRRD aiming for that in terms of animal welfare equivalence, as mentioned in the presentation? Would it be implemented? If not, what was meant by "animal welfare equivalence," and how was it going to be defined? Would the provisions of the Animal Welfare Bill provide greater powers to the NSPCA or any other responsible authority regarding inspections and animal welfare contraventions?  Would all the respective set and upcoming standards regarding animal welfare be made applicable? Would they be complied with? Was there any other role intended for these standards under the Act? If not, why were they not included? She asked if there would be a colloquium on animal welfare, where various stakeholders could attend.

Ms Weber asked how the Animal Welfare Act took into account the HPL recommendations and the principles set out in the resultant policy paper.  When would DALRRD and the DFFE coordinate to give effect to the HPL recommendations across biodiversity, animal welfare and environmental legislation? How had the working group applied the principle of "One Welfare," as emphasised in the draft policy position paper as a guiding principle in developing the Animal Welfare Bill? How would the DFFE make sure that the One Welfare principle would be applied? Did the Animal Welfare Act make provisions for the NSPCA to continue to be the primary enforcement body? If so, what steps would be taken to make sure that the NSPCA would have adequate resources to fulfill its functions? If not, who would take over the enforcement of the Animal Welfare Act when it came into force, and where would the necessary resources be provided from? Did the new bill envisage a ban on animal testing as it pertained to cosmetic products?  What aspects of international animal welfare-based practice legislation were being pushed by the DFFE for inclusion in the Animal Welfare Act, to ensure that South Africa remained a conservation leader?

Mr Bryant asked for the copy of the memorandum of understanding (MOU) between DALRRD and the DFFE that had been mentioned. He assumed that it was a public document, so he did not understand why it would be confidential. He also asked for a copy of the standard operating procedure (SOP) between the NSPCA and environmental management inspectors that had been mentioned in the presentation. He also wanted the details of the composition of the intergovernmental welfare working group, including their names, department and relevant qualifications and experience

The Chairperson said that it would be critical for the Committee to be furnished with the MOU between the DALRRD and DFFE so that they could see how the two departments were jointly implementing the legislation. She asked for clarity from the DFFE and DALRRD on their concurrent functions. How did one capture and transport wildlife from one protected area to another if animal welfare issues reside only in the other department? How did the DFFE export or trade wildlife now, under the circumstances? What welfare issues would be considered when certain people argued against hunting with dogs? How many welfare considerations had been taken into account when deciding on the fate of confiscated wildlife species in a foreign country -- especially repatriating or keeping them?

Department's response

Minister Creecy said it was a pity that this presentation had been made before the HPL report, because most of the questions asked were clarified there. A policy paper had been drafted for public comment which dealt with some of the direct recommendations of the HPL report. The DFFE had received an overwhelming number of comments -- more than 7 000 -- from the public. She had been asked to extend the time for comments due to the public interest. They were in the process of going through the comments and drafting the White Paper, which would go to the Cabinet before coming to the Portfolio Committee.

Ms Ntshanga said the intention of the engagements with DALRRD were to show that they worked together on the broader principles of the One Welfare approach suggested by the HLP. They made sure they harmonised their mandates, so they had reported the recommendations of the HLP in detail at the technical level so that the DALRRD could use them for the development of animal welfare policies and other departmental systems. The DFFE could not comment on the Animal Welfare Bill, but their colleagues at DALRRD had assured them that they would mainstream the recommendations from the HLP into the draft Bill. The DFFE would interface with the Animal Welfare Bill once it became available to ensure that the recommendations of the HLP had been captured. They had also shared the draft policy provisions so that the DALRRD could familiarise themselves with the policy on the many issues other than animal welfare. She added that currently, according to the protected species regulations developed within the NEMBA, the hunting of top listed species with dogs is prohibited, except for the purpose of issues related to tracking wounded animals.

Dr Modisane said that DALRRD had received an audit from many trading partners on animal welfare issues and animal legislation -- for example, diseases and control. Despite the fact that the legislation was old, it was found to be effective and acceptable in terms of the Animal Protection Act. He added that the issue should be incorporated into the existing legislation, and the One Welfare approach should be incorporated into the new legislation.

He added that the DALRRD had had a discussion about the HLP report and felt that there were issues that needed to be included in the legislation. He believed that the animal welfare working group was incorporating the HLP recommendations into the new proposed Animal Welfare Bill, which had to go through DALRRD's internal systems. They would definitely have consultative meetings with their colleagues from the DFFE to ensure that the issues raised in the HLP recommendations had been taken into consideration. Stakeholders would also be given an opportunity to give an input. The Committee should note that despite the DALRRD having the Animal Protection Act and the Performing Animals Protection Act, there was also the NSPCA Act that gave the NSPCA powers to act on issues of animal welfare.

Dr Modisane said that animal sentience was one of the anchors of the new Animal Welfare Bill, which emphasised the guidelines provided by the World Organisation for Animal Health regarding animal welfare. The DALRRD also participates in the setting of standards with all other international organisations in making proposals for the legislation that it would be coming up with.

The DALRRD and DFFE had been collaborating very well in respect of the capture and transport of animals, considering that veterinarians had been placed at the Kruger National Park to look at the animal diseases and welfare issues. There had been debates in the past between the two departments on how to manage the translocation and capture issues. International standards were applied when it came to animal capture and the translocation of wild animals. There were always issues when it came to the transportation of animals, irrespective of whether they were wild or domestic, and they would find themselves caught between having to look at animal welfare issues, whilst at the same time trying to consider economic reconstruction issues. This was a sensitive matter that the country needed to reach agreement on, because animals were transported over long distances, often under extreme temperature conditions. There were always emotional confrontations when it came to animal transportation.

Dr Molefe said that the drafting of the Animal Welfare Bill was still internal, meaning that it was still being drafted by a working group that consisted of the DALRRD and the provincial departments of agriculture. It had been agreed that going forward, representatives from the DFFE would be included in the working group. The working group consisted of comprehensive veterinarians and people with many years of experience in dealing with animals. The team would cover mostly the technical aspect of animal welfare, not the legislative part. The technical draft would be sent to the legislative department within DALRRD to check for compliance with the legislative framework for a bill. Afterwards, the draft would go out for public consideration. They would definitely engage all the relevant stakeholders, including the NSPCA and other animal welfare organisations, before the process ended up with the Cabinet and Parliament. There were no timelines set yet, because of the complexities of the issue.

Dr Molefe said that the Animal Welfare Bill would not cover specifics, but would deal with general provisions of animal welfare. The current Animal Protection Act was considered to be good enough in terms of general provisions. He stressed that the DALRRD wanted to avoid drafting a bill that had specifics, as there were hundreds of animals that required different protection and welfare approaches. It would be highly impossible to put all those required specifications into a parliamentary Act. Avoiding the animal specifics would prevent continuous amending of the Act, as in the case of scientific evidence and justifications. With all the specifications from the HLP on dealing with the five listed animals, the ideal would be to make regulations for the handling those specific animals. He was advising that the issues pertaining to specifics should be dealt with under regulations, but not in the draft Act.

He said that the Animal Welfare Bill would open space for animal welfare organisations other than the NSPCA to enforce the Act. The option of authorising or assigning animal welfare organisations would be done through a defined process, which would guide the DALRRD on how to rate an animal welfare organisation’s fitness to authorise and enforce the Animal Welfare Act once it was enacted by the President. At this point, the law allowed only the NSPCA outside of Parliament to enforce the Act. There were also considerations on whether one could make regulations to authorise others to enforce the Act, but that was something where they were still engaging with the legislative department and legal services for guidance.

Dr Molefe said the testing of animals for cosmetics was very specific, and the Animal Welfare Act did not address that. In principle, the DALRRD agreed that the testing of animals for cosmetic purposes was contrary to animal welfare, and therefore should not be allowed.

Ms Nomfundo Tshabalala, Director-General, DFFE, said that the MOU between the DFFE and DALRRD regarding the animal welfare policy, referred to in the presentation, had not been finalised. The MOU was currently going through legal vetting, and would be shared once the two departments had signed it.

Further discussion

Mr Bryant said that some of the responses received were pointing towards his first concern -- that the consultation between the DALRRD and DFFE had not been extensive enough. The HLP team had gone through a long process to get to the conclusions stipulated in the report. He was sensing that the DALRRD preferred a more general Animal Welfare Act that did not include any specifics. What happened in instances where one was not including specifics, especially those that had been developed by a team of professionals? Did one allow the legislation to be open to the abuse of wild animals because it was too vague? He was uncomfortable with the sentiment that the DFFE was not being included in the process dealing with animal welfare aspects. Why was it not included in that working group? Could they have a confirmation that the DFFE would be invited to join that working group?

He said it was good to hear that animal sentience was being recognised and would be a cornerstone of the Animal Welfare Bill. He echoed Ms Phillips' need for a colloquium to bring in various stakeholders to encourage proper consultation, rather than rushed public participation regarding the Animal Welfare Bill.

Ms Phillips said that the NSPCA and the other people who had been chosen to enforce the old Animal Welfare Act, had not been given enough resources. It seemed to her that the DALRRD, when making the legislation, knew that it would look good, but the people who were entrusted with enforcing animal welfare would not be capable of enforcing the Act. The colloquium was very important to ensure that the people who were meant to enforce the law were empowered and were given the resources they need.

Department's response

Dr Molefe said that the concerns of the Committee Members were appreciated. He stressed that he had explained the reason why the DALRRD had chosen not to include the specifics in the Animal Welfare Bill. He requested that the Portfolio Committees should look at section 2 of current Animal Protection Act to familiarise themselves with the long list of offences in terms of dealing with animals. He said that there had never been any submission from anybody, local or international, to indicate that section 2 had deficiencies in its regulations. He believed that the current legislation was compliant and adequate, and only needed guidance on how to handle animals.  

He said that academics and research institutions continuously conduct research to advise on different issues. If one was to include that in an act, the next year one would find that there was a research article that advises otherwise. Then one would have to change the act again in light of the current scientific findings. One could also compare this to a generic National Health Act, which was not specific in terms of the health aspects, but provided guidance on how to approach issues. The DALRRD had chosen a generic approach that would be guided by international benchmarks from the World Organisation on Animal Health regarding the general areas that could be accommodated in the Act.

Dr Modisane said that the DALRRD would definitely look into the colloquium request and arrange it. The colloquium might not necessarily include wildlife animal welfare. The problem was that if they included everything, they might end up talking about a lot and achieving nothing --“with animals you start with a rat, and end up with an elephant!” At what point would one limit the discussion? He said he would appreciate the guidance of Parliament on how best to convene the colloquium. He stressed that he had mentioned that the DFFE would be part of the working group. The bill would address why the NSPCA was enforcing acts, but was not funded.

Dr Modisane added that all the outstanding issues would be responded to in a written format.

HLP recommendations for review of policies, legislation and practices on elephant, lion, leopard and rhinoceros management

Ms Ntshsanga said there was a significant level of public concern in terms of animal welfare and wellbeing around the policies associated with elephants, lion, leopard and rhinoceros species. An HLP advisory committee had been established by the Minister according to the NEMA on 10 October 2019. The HLP report was released to the public on 2 May 2021.

The HLP report consisted of 18 goals and 60 recommendations. A consensus could not be reached on two of the 18 recommended goals. These involved the keeping of rhinos in captivity and lion breeding.

Due to time constraints, the Chairperson asked Members to submit their questions regarding the third presentation through the Committee secretary. She expected the responses by Friday. She asked if Members agreed to this proposal.

The proposal was supported by Ms Weber, who added that the Committee must ensure that their questions for the DFFE were submitted to the secretary by Wednesday.

Ms Phillips seconded the proposal.

The Chairperson asked the Portfolio Committee to consider the adoption of the previous meeting's minutes during the meeting on Friday.

The meeting was adjourned.

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