NEMLA Bill, National Forests A/B & National Forest and Veld Fire A/B: stakeholder input & deliberations; with Deputy Minister
Forestry, Fisheries and the Environment
11 February 2022
Chairperson: Ms F Muthambi (ANC)
The Portfolio Committee on Environment, Forestry and Fisheries met on a virtual platform to deliberate on the National Environmental Management Laws Amendment Bill (NEMLA) and the National Forest and Veld Fire Amendment Bill. In addition, the Committee also received briefings from the South African Local Government Association (SALGA), Department of Agriculture, Land Rural Development, the South African Weather Service, the National Disaster Management Centre and the National House of Traditional Leaders, for further input on the two bills. Parliament's legal service also provided an overview of the possible course of action on the bills, per the Constitution.
During the discussion with the parliamentary legal service, Members were of the view that there needed to be a further review of the constitutionality of the NEMLA Bill, as well as a review of the amendments jointly by both Houses.
Members asked the Department of Forestry, Fisheries and the Environment (DFFE) whether there was an ombudsman office included in the NEMLA bill, and recourse available in the event of failing to issue s28 directives. They questioned the public participation process on the bill, and whether the amendments would negatively affect the public appeal process. They sought clarification on the difference between a "protected area" versus a "protected environment."
Other issues were related to the R10 million maximum fine, the logic for giving the Minister the power to change regulations for protected areas, the local councils' capacity to deal with National Environmental Management Air Quality Act (NEMAQA) licensing, and municipal managers’ powers under the amendment bill,
A Member was of the view that the Minister of Mineral Resources and Energy had been given too much power in the amendment bill, and expressed concern, given the Minister’s need to focus on mining activities and economic activities, rather than the environment. Another Member suggested that a time frame for declaring protected areas should be inserted in the bill.
The Committee resolved that they should table the amendment bill to the National Assembly.
During discussion on the National Forest Amendment Bill, Members enquired whether the vast amount of fynbos in the Western Cape would be included in the definition of woodlands, and asked about the financial implication of the amendments, its linkage to climate change and building a low-carbon, resilient just society, as well as the South African Defence Force’s involvement in fire protection associations.
In the interaction with SALGA, Members highlighted the lack of appropriate firefighting equipment in the smaller rural municipalities where fire incidents often occurred. They expressed concern at the misuse of firefighting-related funds which were diverted to other purposes and asked if SALGA was able to hold municipalities to account. The DFFE and SALGA were urged to consider a more equitable distribution of firefighting funds and equipment.
In the discussion on the presentation of the National House of Traditional Leaders, Members emphasised the importance of ensuring adequate firefighting resources, as well as the availability of fire detection and the use of aircraft. They asked whether the amendments would make it more cumbersome for municipalities to work with their own firefighting volunteers, and questioned the traditional leaders’ authority to enforce the amendments.
In the last round of discussions with the National Disaster Management Centre, Members wanted to establish what would happen if municipalities failed to issue by-laws and debated the constitutionality of the bill, and whether it should be a s76 bill affecting provinces. They urged the NDMC to assist the small, rural and ill-equipped municipalities and suggested there should be a memorandum of understanding (MOU) between the NDMC and the Department.
National Environmental Management Laws Amendment Bill (NEMLA) [B14F-2017]
Mr Siviwe Njikela, Senior Parliamentary Legal Advisor, explained why the National Environmental Management Laws Amendment (NEMLA) Bill had been referred to the National Council of Provinces (NCOP), and what was expected of this Portfolio Committee per the Constitution.
The bill had been tagged as a s75 bill by the Joint Tagging Mechanism, which was correct, as the environment fell within Schedule 4 of the Constitution. The bill was referred to the NCOP simply as a matter of procedure as required by s76(1) of the Constitution. When the National Assembly (NA) passed a bill, the bill must be referred to the NCOP.
As the NCOP had passed the bill with amendments, it had to be referred to the NA again. Once the Assembly passed the bill, it could then be referred to the President for assent.
The Committee had two options -- to either accept the amendments and pass the bill as it is, or if the Committee did not agree with the bill, it may refer the bill to the mediation committee. The mediation committee had 30 days to finalise the matter.
If the mediation committee agreed with the version of the bill that had been referred to it by the Assembly, it may refer it back to either the House or the NCOP for it to be passed before getting the President’s assent. If the mediation committee disagreed, then it must be referred back to both Houses again and be passed again before getting the President’s assent.
For now, this Committee could either pass the amended bill or reject the amended bill. In the former, it would be sent to the President for assent. In the latter, it would be sent to the mediation committee for its 30-day period.
In terms of National Assembly rule 311, this Committee was free to consult with either the Chairperson of the corresponding committee in the NCOP or the full Committee on this bill.
Mr Njikela cautioned Members that there might have been the chance that the bill had been changed to a s76 bill during the amendment process. Hence, there was a provision that the Committee could consult the Joint Tagging Mechanism for the review of the classification.
Mr D Bryant (DA) sought clarity on whether a decision to adopt the amendments needed to be made in the meeting or after Members had reviewed the amendments.
Mr N Paulsen (EFF) suggested that Members should go through those amendments and consult with the NCOP before reaching its own decision.
Ms C Phillips (DA) wanted to know what had transpired during the debate on the bill in the NCOP. She wanted to understand the constitutionality of the bill. She requested that the review of the amendments should be done jointly by both Houses.
The Chairperson agreed with her colleagues on reviewing the constitutionality of the bill, as well as jointly reviewing amendments.
Legal advisor's response
Mr Njikela described to Members the normal procedure of how a bill was introduced to Parliament. When a bill was brought to the House, it had already been certified by the Office of the State Law Advisor for the bill’s constitutionality. This was also the process where the Joint Tagging Mechanism (JTM) happened. However, there would be changes that may affect the constitutionality of the bill in the course of the NCOP’s consideration. Hence, he asked Members to review the bill. So far, he did not notice any concern for flagging the bill’s constitutionality from Parliament’s legal office.
He agreed with the Members’ view that a decision could not be made without Members deliberating on the amendments. He also informed the Committee that the National Assembly rule 311 applied to the Committee’s consultation with the NCOP.
Briefing by the DFFE on NEMLA
Ms Frances Craigie, Chief Director: Department of Forestry, Fisheries and Environment (DFFE), briefed Members on the National Environmental Management Laws Amendment Bill.
An overview of the bill’s parliamentary process was provided. The specific functions of the amendment bill were outlined.
The changes to the bill made during the B and D versions of the bill were provided to Members.
The NCOP process resulted in the F version of the bill. The main changes were explained to Members.
The key functions of the amendment bill were summarised.
See presentation attached for details
Mr Paulsen enquired whether there was any form of ombudsman to whom ordinary people could raise concerns. He believed that this ombudsman's office should be clearly stated in the bill.
Ms Phillips noted the bill’s intention to grant both the Director-General and municipal managers power to issue s28 directives. She thus asked what the recourse in the event would be when neither took action and who should be held responsible.
She was concerned that the amendments had given the Minister of Mineral Resources and Energy too much power in an area that was related to the protection and preservation of the environment. She said that the Minister did not have a very good record on environmental protection, given the recent 3D seismic blasting, etc. In those events, the Minister of the DMRE had clearly demonstrated that he did not always have the interests of the environment at heart, because all he cared about was exploring minerals.
Ms Phillips referred to the coal dam collapse in KwaZulu-Natal (KZN) and the litigation. The spillage from the collapse had polluted the water of the Umfolozi River and disrupted the farming of inhabitants. Given the severity of such incidents and the damage to the environment, she suggested that the bill should consider taking a percentage of a company’s profit or revenue as a method of fine, instead of having a fixed amount. She added that R10 million might be a slap on the wrist for a large company, but be too much for a smaller one.
She said clause 48 and slide 19 of the presentation suggested that a protected area could be changed by Minister’s regulation. She found it very concerning, as a protected area had been designated as such in the first place due to the nature of the area.
Ms Phillips sought clarity on slide 21, which referred to inclusion of a section into NEMA to enable appeals to a municipal council on decisions taken by a NEMAQA licensing authority. She was of the view that there might be capacity issues at some local councils which should be taken into the bill’s consideration. A better proposal would be to create a process that enabled appeals to be escalated to the national level, where there was sufficient capacity to deals with such issues.
She pointed out that slide 24 might be suggesting the legalising of illegal operations. The conundrum was to draw the line in the sand, and it would be difficult to draw that line in the implementation stage.
She remarked that the amendments seemed to be giving Municipal Managers more power. However, Members needed to note that municipal managers served only at the pleasure of the mayor and the ruling party. The consequence of such an intricate relation meant that municipal managers sometimes could not be impartial on environmental issues, and were more likely to be influenced by the political head -- the mayor and the ruling party.
Mr Bryant raised concern on the public participation issue. His concern was that the Department had allowed members of the public sufficient time to comment on the amendments. He noted that some non-governmental organisations (NGOs), as well as other sectors, had complained about the lack of time to consider the amendments.
Mr Bryant enquired whether the amendments would negatively affect the public from launching appeals.
Ms Craigie indicated that she was at the meeting in place of the Department’s Deputy Director-General on regulatory compliance, so she might not have all the information to answer all of the Members’ questions.
She said there was no ombudsman structure in the bill, and the issue had not been raised in the past. The Department was working closely with both the South African Human Rights Commission (SAHRC) and the Office of the Public Protector. Those two institutions were generally where the general public took issues to.
She highlighted that s28 was linked to the principal duty of care. People must not intentionally cause harm to the environment. If harm had been caused, it was the view of the Department that the authority should be able to issue a directive to prevent further damage to the environment. S28(12) made provision for a notice to be issued in the absence of any directives from the Department’s Director-General and Head of Department. Further, Members of the public could also approach attorneys to request the Office for a directive.
Ms Craigie explained that the thinking of this bill was to give the Minister of the Department of Mineral Resources and Energy (DMRE) more power under a one environmental system. The Minister of the DMRE already had the mandate to issue environmental authorisations and to take compliance and enforcement actions through mineral and petroleum inspectors. S28(12) was to give the Director-General and municipal managers the tool to issue directives for enforcement.
The R10 million maximum fine amount was specifically referring to a 24(g) fine. It applied to scenarios where somebody started work illegally without environmental authorisation. She indicated that the Department could always deny environmental authorisation, as well as initiate a criminal investigation.
Ms Linda Garlipp, Chief Director: Law Reform and Appeals, DFEE, said that s48 of the Protected Areas Act prohibited mining activities within a protected area. The only way to make changes to the activities taking place in such an area was when the Minister of Environmental Affairs was in concurrence with the Minister of Mineral Resources and Energy. She clarified that the DMRE Minister already had the mandate for issuing environmental authorisation, so what this bill did was to remove the concurrence, but the Minister of Environmental Affairs still had to consult with the DMRE.
The appeal process was currently taken by municipalities in terms of the Air Quality Act. However, the current Air Quality Act did not have an appeal process, which had resulted in municipalities having to use the Municipal Systems Act. This bill had added the appeal process.
Ms Garlipp said that the Department’s publication of the notice on 31 December had been unintended. Its administrative process had taken too long. Although the publication was intended for the consultation process, it had made some amendments to the existing regulation. The intention was to professionalise the environmental assessment practitioners' provision.
Follow up questions
Ms A Weber (DA) recommended that a time frame should be inserted in the bill. She explained that many areas across the country were protected areas, but were not certified. The usual time frame was five to six years before an area could be certified. She expressed concern that mining activities could happen during such a long period.
Mr Bryant asked whether the appeal process, particularly a clause in the bill, would affect people and communities who were passionate about protecting the environment being excluded in the process. He sought clarity on the tasks performed by the registered environmental practitioners, and whether those tasks were related to government itself, or tasks related to the appeal process.
He asked the Department to confirm whether the comment period had been extended to 23 February 2022.
The Chairperson said that she was happy with the amendments proposed by the NCOP.
She asked the Department to distinguish the difference between protected areas versus protected environments. Did the difference mean that one permitted mining activities to take place, and the other did not?
Ms Craigie commented that the increase in the fine from R5 million to R10 million was linked to the 24(g) process. The difficulty with the 24(g) fine was that it was linked to listed activities. This was why the Department had decided to increase the fine to R10 million. She gave an assurance that it still had a specific fines committee that evaluated those fines on a case-to-case basis. The Department may even issue a fine, and then still deny environmental authorisation.
Ms Garlipp clarified that the difference between a protected area and protected environment was that a protected environment was an area around a protected area, such as a buffer zone or where one intended to declare an area as a protected area. There were specific provisions in the Act that provided a process for the declaration.
She stressed that the s24(h) regulation amendment did not relate to the bill, so it was a separate issue. She said that the Department had agreed to extend the public comment process to 21 February, so it was still in the process of receiving comments. If it decided to retain the regulation on appeal, it would definitely need to break it down to activities.
She explained that the Department’s public participation process had taken place before the parliamentary process. Usually, Cabinet conducted a public participation process when a bill was introduced. To her understanding, each House of Parliament also conducted its own public consultation. Although she could not comment on the adequacy of Parliament’s public consultation, there would be three opportunities in total for the public to comment on the bill.
Ms NomfundoTshabalala, Director-General (DG), DFFE, confirmed the Department’s extensive engagement and involvement in the amendment process. She commented that it was generally happy with all the amendments, but added that there might be further inputs arising from the engagement in this Committee.
The Chairperson said that she did not think that there was any need for Members of the Committee to consult with their counterpart Members of the NCOP.
Ms T Mchunu (ANC) agreed that the Committee should table the amendments to the National Assembly.
Mr Bryant suggested moving this matter to Parliament’s mediation committee, as suggested by legal practitioners. His two colleagues, Ms Phillips and Ms Weber, also agreed.
The Chairperson asked Mr Bryant, Ms Phillips and Ms Weber to demonstrate why they believed the amendments should be referred to the mediation committee.
Mr Bryant responded that there were a number of issues that Ms Philips had raised that remained outstanding. He expressed concern over the efficacy of those amendments, given that the amendment process had been undertaken between two administrations.
Ms Phillips said that she was very concerned that this Committee had never had the opportunity to receive a briefing on the amendments. This Committee was not privy to the discussions of the previous administration on the amendments.
Ms Mchunu recognised this disadvantage, as Members had not been part of the Committee at that time. However, Members were familiarising themselves with the content. The issue here was an inter-governmental challenge that required a framework to specifically deal with any legacy issues or bills that spanned across two administrations. She argued that the Committee could not refer the bill to the mediation committee simply because Members were not part of the Committee at that time.
Mr P Modise (ANC) understood the issues and inputs raised by Mr Bryant and Ms Philips. Since the public comment process was still open till 23 February, Members still could make an input on issues that they felt might be left out. His view on the amendments was to engage and rekindle those unclear areas, as well as discuss a way to move forward.
Ms N Gantsho (ANC) supported Ms Mchunu and Mr Modise’s proposal.
Ms Weber asked if the outstanding issues on those amendments were not resolved by the end of the day, whether the Committee would still be allowed to refer the amendments to the mediation committee.
Ms Tshabalala clarified the issue of the registration of environmental practitioners. The public comment process which was currently underway was on the regulations, not the bill. Those were two separate processes, and the comments sought on the regulations did not affect the bill.
Mr Bryant asked the Department how long the process of the mediation committee would take, and what the potential of further delay would be.
Ms Philips reiterated her concern over the potential power that those amendments would give to the DMRE Minister on decisions affecting the environment. Minister Mantashe’s focus had been on mining, exploration and getting investment, as well as creating more jobs. She did not think that the protection and preservation of the environment seemed to be his top priority. Hence, she wanted to see the Department having overriding authority over the DMRE on decisions involving environmental affairs.
The Chairperson summarised the two views held by Committee Members. The one side supported the motion to table the amendments to the National Assembly, whereas some other Committee Members favoured referring the bill to the mediation committee.
Ms Philips sought clarity on point 3 in slide 9, which stated empowering the Minister to prescribe the code of conduct. She wanted to know which Minister it referred to.
Ms Craigie replied that it referred to the Minister of Environment, Forestry and Fisheries.
She indicated that she needed to discuss the amendment to s31(d). The clause used to state that if a complainant wanted officials from the Environmental Management Inspectorate (EMI) to get involved in issues about mining, what happened next was that there needed to be consultation with the DMRE. The current legislation stated in consultation with, which meant that if the Minister of the DFFE wrote to the Minister of the DMRE and there was no response, the DFFE could not get involved. This bill changed that to after consultation with, which strengthened the authority of the Minister of the DFFE. This meant that even if the Minister of the DFFE got no response, the EMI could get involved in those mining-related matters.
Ms Philips wanted to know which Minister the bill's preamble referred to.
Ms Tshabalala responded that this was an issue where clarification could be looked into by both the Department’s and Parliament’s legal teams.
Mr Bryant said that his main concern was around the specific wording of the bill. If those wordings could be amended, then he would consent to tabling the amendment bill to the National Assembly.
Ms Garlipp commented that the powers of the various ministers in terms of the Act were very clear. She suggested those Members who felt confused should read those amendments together with the original Act.
After the Department’s response, Ms Phillips and Mr Bryant both indicated that they were happy to table the amendments to the National Assembly.
DFFE: National Forest Amendment Bill [B11C-2016]
Ms Pumeza Nodada, Deputy Director-General, DFFE, briefed the Committee on the National Forest Amendment Bill.
She provided an overview of the process of the amendment bill, and the processing by the NCOP.
The status of the proposed amendments on the bill by the NCOP was provided to Members.
See presentation for details
Mr Paulsen commented that the amendments were self-explanatory.
Mr Bryant referred to the amendment made to the definition of woodlands on slide 9. He specifically wanted the Department to indicate where a fynbos forest would fit in under the new definition, and whether it would be covered by the amendment or under different legislation. He emphasised the vast amount of fynbos in the Western Cape which required additional protection and preservation, such as that in the Table Mountain National Park.
The Chairperson remarked that as one went through the memorandum of objects of the bill, she had found reference was made to the financial implications of the bill. She sought more clarity on the cost of the implementation of the bill. She wanted to know whether the Department itself had established a likely cost estimate of the legislation to determine the impact of the amendments on the government fiscus. She emphasised the importance of preparing such a cost estimate because sometimes a lack of resources could be the cause of some wonderful projects not being thoroughly rolled out.
She asked whether the amendments considered, and would contribute to, climate change and Vision 2030 in building a low-carbon, resilient just society as espoused in the National Development Plan.
Was the South African Defence Force being compelled to join the fire protection associations? If not, she wanted to know why not.
Ms Nodada responded that the National Forest Act was structured with the definitions of three types of forest. Those three forms were plantations, woodlands and natural forest. Those three forms of forest were often natural and South African indigenous forests. They were already protected by the Act. In addition, there were protection measures declaring woodlands, to strengthen their protection. For instance, all areas surrounding plantation forests were protected. Conservation area permits and certificates to trade always looked at the compliance issues surrounding such areas.
She assured the Committee that the Department had sufficient funding for the implementation of the Act -- the amendments would not place an additional burden on the fiscus. For instance, one of the amendments was the inclusion of women and youth in the participation of the council which functions as an advisory body to the Minister. This function, such as the appointment of council members, already had funding. The implementation of the amendment only needed the Department to be more targeted on its nomination and selection process to ensure that more women and youth were included. Giving the example of the protected trees, she said protected trees were being gazetted on an annual basis. If there was no change to the list of the protected trees, then the Department did not need to gazette again.
Ms Nodada recognised the need to align the Veld Fire Act to climate change.
She confirmed that the SANDF was part of the fire protection association group, as the SANDF owned vast tracts of land which were susceptible to fire.
National Veld and Forest Fire Amendment Bill [B24-2021]
South African Local Government Association (SALGA) briefing
Ms Dorah Marema, Portfolio Head: Environmental Sustainability, SALGA, briefed the Committee on SALGA’s position on the National Veld and Forest Fire Amendment Bill.
Ms Marema emphasised that firefighting service was a key responsibility of local government, as stipulated in the Constitution. Given that huge responsibility, SALGA’s view and inputs on the bill became very important.
SALGA’s assessment study findings were outlined to Members. Among those findings were many challenges and gaps in firefighting services among some municipalities. Funding remained a key challenge to firefighting service delivery. Some municipalities also failed to provide adequate by-laws related to fire issues.
SALGA’s proposed amendments were included in the presentation slides.
Overall, SALGA supported the amendment bill, with the following recommendations:
· The Ministry of Environment, Forestry and Fisheries must introduce measures and mechanisms to support municipalities on awareness, prevention, mitigation and management of veld and forest fires.
· That the Portfolio Committee on Environment, Forestry and Fisheries should note that this was a SALGA preliminary submission that still needed to be taken through internal mandating leadership structures that were currently being established.
Mr Paulsen remarked that there was a common perception in South Africa that government's beautiful policies on paper could not be equally translated into reality. The slow response to eThekwini municipality’s recent fire showed that there was a lack of appropriate equipment in some fire departments. For instance, the eThekwini fire could have been extinguished more effectively with foam, but instead, firefighters had to use water, which had caused further damage to the environment. He emphasised the importance of ensuring that all fire-fighting facilities had the correct equipment to deal with any disasters should they arise.
Ms Philips was concerned that SALGA did not have the mandate to enforce municipalities to implement regulations should a municipality be found to be in contravention of regulations. She indicated that more than 738 000 hectares of land in the North West province to the value of R4.5 billion had been lost from 1 May 2021 to 15 November 2021. Although some of those regulations were funded, in reality, the fund was not used for what it was supposed to be. Hence, she recommended holding municipalities more to account by binding them to different regulations and acts.
Mr Bryant commended SALGA's work and said he could see that consultation had indeed taken place with all the relevant municipalities.
He raised concern over funding and resource distribution. For instance, some metro municipalities had better firefighting equipment. This could be seen in the Cape Town metro as well as Overstrand region, where fires had broken out in the past. The firefighting team showed brand new fire engines, as well as excellent coordination with firefighting volunteers. However, he pointed out that rural municipalities were ill-equipped. He agreed with the concern raised by SALGA, as the same firefighting responsibilities could not be expected of a small rural municipality.
Ms Gantsho said the Tsitsikamma plantation within her constituency was affected by veld fires. She pointed out the lack of firefighting resources, such as trucks dispatched to the mission, that were not even firefighting trucks. She therefore highlighted the necessity to categorise municipal areas where plantations were affected the worst.
Ms Marema said she had mentioned the capacity challenges within the fire service function in SALGA’s presentation. There existed several instrumental partnerships that SALGA had cultivated with the National Disaster Management Council (NDMC), as well as with private sector and non-governmental organisations. Those partnerships were starting to bear fruit. Some struggling municipalities and fire services were starting to receive training for their volunteers, as well as getting the appropriate firefighting equipment, etc. Also, SALGA had engaged with National Treasury on funding to purchase more firefighting equipment. It had also urged municipalities to disclose their firefighting budgets, and how they were spending these budgets.
She had heard and noted Members’ comments on the non-enforcement role of SALGA. The Department could attest to SALGA’s work in following up with municipalities whose firefighting services were not fulfilling their required functions. SALGA had identified non-complying areas and engaged officials, including municipal managers, as well as supported heads of departments in various provinces, including Members of Executive Councils (MECs) to ensure that municipalities were being fully supported. If there was no improvement, SALGA also took action to engage with those municipalities through bilateral meetings, talking to the administrative and political leadership. The message that SALGA sent to those people was that by not complying they were not only compromising municipalities but compromising the whole of South Africa. It had noted that there had been some improvements on those issues.
DFFE briefing: National Veld and Forest Fire Amendment Bill
Ms Nodada’s explained the alignment of the amendment bill to government’s priorities. Those three priorities were transformation, job opportunities and food security.
The proposed amendments were discussed at length in the presentation slides.
During its review, the amendment bill had been aligned to the constitution and other relevant legislation to ensure effective enforcement. It further compels the state to participate actively in the different aspects of integrated fire management. The Department had set aside resources for the enforcement of the Bill and would rely on collaboration with other government institutions for enforcement.
National House of Traditional Leaders briefing
Ms Nkosikazi Ngonyama, representative from the National House of Traditional Leaders, briefed the Committee on the traditional leaders' collective inputs on the National Veld and Forest Fire Amendment Bill.
The areas in which inputs were given were the definitions, the purpose of the bill, the formation of fire protection associations, and enforcement.
Ms Ngonyama highlighted the unique role that traditional leaders could play in raising awareness and educating community members to prevent fires.
She recommended the building of dams in rural communities for firefighting purposes. Rural communities simply could not rely on municipalities, as the rural areas were vastly scattered. The resources which municipalities had could not cover all the areas under their jurisdiction.
She highlighted that certain functions, such as searching a person without a warrant, were among the concerns for traditional leaders. She recommended the Department should allow traditional authorities to embark on such functions and requested training to be provided, with necessary paperwork to effect the changes.
Mr Bryant reiterated the importance of ensuring adequate resources were factored in going forward. He asked whether the amendments would make it more difficult for municipalities that needed their own firefighting volunteers. In raising this, he specifically referred to clause 3 s4, which deals with the registration of fire protection organisations. He enquired what constituted a fire protection organisation and what the minimum criteria were.
He agreed that the presentation had highlighted the important issue of enforcement. Traditional leaders had asked the right question on whether they were empowered to effectively enforce those requirements.
He asked whether the responsibility for regular burns and the cutting of fire breaks would still be the sole responsibility of the municipalities or a shared responsibility between organs of state.
Ms Phillips raised the concern where fire protection associations had to rely on a by-profit company instead of a non-profit company, as in the case of the North West province. She wanted to know how that issue was going to be addressed.
She echoed Ms Gantsho’s view that not all firefighting vehicles were suitable for entering certain terrains where fires occurred. That needed to be considered.
She stressed the need for the availability of aircraft to put out a fire. In a recent fire that occurred in the Pringle Bay area, the early dispatch of firefighting aircraft had certainly helped to bring the fire under control.
Mr N Singh (IFP) commented that this Act applied to areas outside of the urban space and highlighted that ensuring adequate funding was key to the implementation of those functions. The amendment bill seemed to have proposed a lot of new responsibilities, so he wanted to know where the funds would be coming from and whether the national government was going to provide the funding.
He emphasised the importance of collaboration, such as liaising with other departmental programmes such as the expanded public works programme (EPWP), as well as the use of intergovernmental regulations. Sometimes fire incidents were also caused by socio-economic factors. In rural areas where there was no electricity, fire was used to cook and for other purposes. He therefore asked to what extent EPWP workers were working to clear fire breaks in informal settlements to strengthen the government’s capacity to help those in rural communities.
He asked whether the Department had a database that indicated the types of the more flammable vegetations. He also wanted to know if there was anyone who had been convicted of contravening the Act in the past five to ten years.
Ms Nodada shared the Members' view that the Department needed to look at the existing resources versus the resources which would be needed. Clause 26 of the amendment bill did provide some insights into the types of support that the Department provides. For instance, when traditional authorities were included in assisting enforcement, the Department would provide them with training as well as make sure that there was sufficient funding.
The purpose of establishing fire protection associations was to bring together all the different landowners to collaborate on how to manage fire incidents in their areas of jurisdiction. The Act explicitly stated that landowners were responsible for putting out fires in their areas. Assistance could be sought from the Department, municipalities, and the National Disaster Management Council (NDMC), as well as fire protection officers employed by municipalities. The Department also ensured that fire protection associations underwent regular training. Those were the aspects that were outlined in Chapter 2 ss4 and 5 of the principal Act.
Ms Nodada confirmed that the Department produces its own veld fire risk map that outlines the areas of high risk so that fire protection associations could be aware of them.
She confirmed that the Department did collaborate with the NDMC. It had had some discussions with it through the Forestry Master Plan, where fire had been identified as a major issue. S46 of the NDMC Act dealt specifically with training, which was an opportunity for collaboration between the DFFE and the NDMC.
She reiterated that the DFFE was getting accredited institutions to provide training for traditional authorities.
Ms Nodada confirmed that the Department was providing support to fire protection associations, and had been developing a strategy on how to provide support, such as whether to assist in training or equipment.
The Chairperson alerted the Department that its legal service team had been sleeping on the job, as the team had referred to a bill that had already been repealed. She believed that it was uncalled for that a senior officer in the Department’s legal team was not privy to such amendments. She wanted the Department’s legal team to comment on that.
Ms Garlipp acknowledged that it was unacceptable for the DFFE to be referring to a repealed bill, but explained that some of those bills were old bills.
The Chairperson interjected and said that it was not a valid excuse. It was the bill that Members had just been briefed on. The point that she was trying to make was that people must exercise due diligence, and must not submit for the sake of compliance.
National Disaster Management Centre (NDMC) briefing: National Veld and Forest Fire Amendment Bill
Dr Mmaphaka Tau, Head: NDMC, represented Dr Nkosazana Dlamini-Zuma, Minister of Cooperative Governance and Traditional Affairs (COGTA), and Ms Avril Williamson, the Department’s Director-General, in this meeting.
Ms An Bruwer, Chief Director: Legislation and Policy Management, NDMC, briefed the Committee on the role of the Centre on fires within the context of the National Veld and Forest Fire Amendment Bill.
The main issues that were discussed were the NDMC’s mandates in relation to the Disaster Management Act, as well as the Fire Brigade Services Act.
The NDMC’s enforcement measures were discussed.
Various other aspects that the NDMC wanted to be included in the Amendment Bill were provided.
See presentation for details
Department of Agriculture, Land Reform and Rural Development briefing
The Department indicated that it would make a short presentation on its role in dealing with disasters, in particular the consequence of veld fires and the destruction of soil.
Dr Ikalafeng Kgakatsi, Director: Climate Change and Disaster Risk Management, DALRRD, said that the management of fires was dealt with in three broad areas -- awareness, prevention and mitigation.
At both the national and provincial levels, the Department conducts inspections at the farms to identify the risks that would lead to the start and spreading of veldfires before the season. This includes looking into the frequency of fires in the area, fuel loads, the existence of firebreaks and the ability of the farming communities to fight a fire should one start. This was also done to identify farmers and landowners who needed support with the creation of firebreaks to prevent and mitigate the impact of veld fires.
South African Weather Service (SAWS) briefing
Dr Mary-Jane Bopape, Senior Manager: Research, SAWS, briefed the Committee on its role in terms of the National Veld and Forest Fire Act. Its responsibilities were outlined mainly in Chapter 3 of the Act. Its main responsibility was communication of fire danger ratings.
She outlined the various mediums through which the SAWS communicates to members of the public on weather services, including fire warnings. She also outlined the various degrees of fire danger across the country.
(Details can be found in the presentation slides.)
Ms Phillips understood that municipalities may make by-laws, but what she wanted to know was and how to hold them accountable if they did not make the necessary by-laws.
She asked if the Department had a formula for the distribution of funding resources to the fire protection associations in each province, and sought more details on this budget for the 2020/21 financial year. She observed that some provinces were more well-equipped than others, which seemed to be disadvantaging the poorer provinces.
Ms Gantsho asked the NDMC whether there was an intention to adequately equip small district municipalities, as some small municipalities did not have suitable firefighting fire trucks. They were also ill-equipped to deal with other natural disasters, such as floods.
The Chairperson asked whether the National Forest and Veld Fire Amendment Bill should be classified as a s75 bill, despite the consent of the Chief State Law Advisor. She believed that it was problematic as the content of the bill affected provinces and municipalities. She felt that the bill should be tabled as a s76 bill, and be consulted with the NCOP.
She noted the transfer of the water and forestry portfolio to the Department of Agriculture. She also mentioned COGTA’s disaster management grant and said that COGTA did not deal with fire-related incidents. In light of that, she asked whether it necessary to enter into a memorandum of understanding (MOU) between the NDMC and the Department.
She said that the 49-page submission on the National Veld and Forest Fire Act 101 of 1998 had been very eloquent on what needed to be done. Her understanding was that the Department was going to need a memorandum of objects to explain the text, as the current version was shallow.
Ms Nodada said the DFFE was working together with the NDMC to ensure that the implementation of the amendment act was strengthened. She agreed with the Chairperson’s view that there was an absolute necessity for the Department to be entering into an MoU with the NDMC. She believed that the MOU would assist the implementation of the forestry master plan.
She had taken note of all the inputs from the discussions, and agreed that the DFFE would strive to do its best to cover everything in the information of the bill.
Ms Garlipp explained that the preliminary legal opinion on the classification of a bill -- whether it should be a s75 or s76 bill -- had been determined by whether the subject being dealt with in the bill fell predominantly within Schedules 4 or 5 of the Constitution. For that reason, the Chief State Law Advisor had certified the amendment bill as a s75 bill. She had also checked that the bill was also tagged by the tagging committee of Parliament as a s75 bill. If there was still uncertainty, the issue could be dealt with by the parliamentary law advisor.
She said that every bill had its own memorandum of objects to explain texts in the bill. Since this bill aimed to do alignment, she suggested that maybe those could be explained in the memorandum of objects, the preamble, as well as the purpose of the bill.
Dr Tau responded to Ms Phillips on the question around municipal by-laws. He said that the Disaster Management Act aimed to ensure that municipalities, based on their risk profiles, must adopt certain mitigation strategies. Once the mitigation plan was in place and implemented, the assurance risks would be managed. As for the adoption of by-laws related to fire matters, the NDMC had adopted Fire Safety and Prevention Strategy in 2014. Its current annual performance plan had identified municipalities’ capacity in relation to the Fire Brigade Service Act. Municipal by-laws focused on the areas which the Act assessed.
He confirmed that indeed some municipalities had no fire safety by-laws. The NDMC formed part of the support to provide feedback, as well as to bring on board other support measures such as training. The NDMC also had an MoU with Fire Protection SA and had established partnerships with the private sector to provide firefighting equipment.
He agreed with Ms Gantsho that fire incidents were a serious issue for some rural areas, and firefighting was a district function. He clarified that all municipalities were required to ascertain in their disaster risk whether it was a geological, biological, or epidemiological hazard. The Department needed to build partnerships in rural areas with district municipalities to ensure that firefighting capacity was being built in those much needed areas.
Mr Tau assured the Committee that there was strong collaboration between the NDMC and municipalities. However, grey areas remained on how fire incidents should be addressed, as well as whether the disaster grant was being used to deal with fire incidents, as it was still mainly being used for other non-fire related disasters such as drought, sinkholes, etc.
Mr Singh asked whether Parliament’s own legal team could work with the DFFE, given the number of issues arising from this meeting. He recommended advertising the bill for further comments and suggested the Department should review some of the issues which Members had raised during this engagement.
The Chairperson and Mr Singh both felt that the Committee should consult with its own legal team on whether the bill should be classified as a s76 bill.
Ms Makhotso Sotyu , the DFFE's Deputy Minister, agreed with Mr Singh’s suggestion.
Ms Garlipp welcomed the suggestion to review the bill in light of the comments from this meeting before the bill was published for public comments.
The meeting was adjourned.
Muthambi, Ms AF
Bryant, Mr D W
Gantsho, Ms N
Mchunu, Ms TVB
Modise, Mr PMP
Paulsen, Mr N M
Phillips, Ms C
Singh, Mr N
Sotyu, Ms MM
Weber, Ms AMM
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