Disaster Management Amendment Bill: deliberation

Meeting report

Deliberations on Disaster Management Amendment Bill
Mr K Ceza (EFF) rejected the amendments. The arguments made were not convincing enough for one to support the Disaster Management Amendment Bill. The arguments were un-researched, unprepared and ill-prepared. There was a lot of mimicry of the existing legislation. There were certain stakeholders -- white representative stakeholders -- that came to the Committee only to count their own losses, without taking into account COVID-19, the national state of disaster and regulations that not only affected them but also other sectors of society. They came to masquerade about unemployment, but no responses were given when asked about transformation. It was true that this Bill did not initially attract the attention of the public. This happened only when the Portfolio Committee took up the Bill for public comments.
He said the public had had the opportunity to comment on the Bill for three weeks. Although submissions from different stakeholders had been received, he was of the view that stakeholders had not tracked the root causes of these amendments. The proposed 21 days, taking into consideration the effectiveness of communication, for getting the necessary information to the Department of Cooperative Governance and Traditional Affairs (COGTA) from districts, communities, and municipalities, among other things, was very questionable. There was nothing to support how all this would be achieved within 21 days.
Section 8 of the Act provides that a National Disaster Management Centre (NDMC) be established as an institution within the public service. Section 9 of the Act sets out the purpose of the NDMC. Section 10 states that the head of the NDMC should report to the Minister. These sections do not clarify if the NDMC could hold officials to account due to a lack of response about the damage caused by the national state of disaster.
He said the agility, sufficiency and effectiveness of the management within 21 days was quite questionable. There must be a plan available on how this would be achieved. He saw this as a federalist approach -- the self-seeking retainment of everything that was temporarily still within their power. The simple majority of 60% of votes required for adopting extensions of the national state of disaster was viewed as something perpetuating decisions -- and urgent decisions -- regarding damage caused by the disaster.
The Presidential Coordinating Committee, the NDMC and the National Command Council should lobby each other on decisions such as unleashing violence, or any kind of violence, as alternative means of dealing with the community were available. People had a right to life, as enshrined in the Bill of Rights. There was a way to enforce the law without violence. There were better ways to correct situations than perpetuating problems and ending up with people dying.
The 500 WhatsApp messages received were quite ambiguous, but if there was non-support from the public, there was non-support from the EFF.
Mr C Brink (DA) said it was important to look at the desirability of these amendments. The Portfolio Committee should not look at specific provisions but should consider whether considering these provisions at all was merited by the circumstances and the input of stakeholders. The research had shown that 11 out of 15 organisations supported the amendments. Three out of five individuals who were experts in constitutional law supported the amendments. 500 WhatsApp messages had been received, and this should also be looked at.
He suggested that the desirability of the amendments should first be established. Thereafter there could be a debate about whether the national state of disaster should be for three months or 21 days, or whether votes should be 50%, and other aspects. Prof Thuli Madonsela and the Helen Suzman Foundation had expressed support for the idea of placing great procedural constraints on the power of the executive under the national state of disaster but imposing a simple majority of votes and not 60%. There was a need for the amendment not only now for COVID-19, but also the future.

A diversity of stakeholders had given their input, and it had not been based on white supremacy. Even submissions from church leaders and metal workers had been received.

Mr I Groenewald (FF+) agreed with Mr Brink. He said that the Bill was for Parliament to hold the Executive accountable and to do oversight. Currently, this could not be done. If it was established that the Bill was not desirable it would mean that the Committee did not agree with oversight and the accountability of the executive.

Mr Ceza said he had made it clear that the EFF was in support of oversight and the accountability of the Executive. He acknowledged that diverse submissions had been made, but no details were provided on how they were going to resolve the situation within the 21 days that were proposed. The children were unable to go to school last year in January due to the interventions between the farm owners and the departments. AgriSA had asked how they could work together with the NDMC, but this had not been answered.

Mr Brink said that the closing of schools had not been discussed with the public. It was these types of powers that must be constrained.

The Chairperson asked the Members to deliberate.

Dr P Groenewald (FF+) said that the Bill a Private Member's Bill [Dr Groenewald is the sponsor of the Bill] and when the decision was taken to ask for public comments, it was in the possession of the Portfolio Committee. The purpose of the Bill was never to take away powers from the Minister to declare a national state of disaster. The central issue of the Bill was accountability and oversight. 80 countries did not use a Disaster Management Act because they did not have one. 75 000 members of the National Defence Force had been deployed although it was a national state of disaster but in practice, it was like a national state of emergency.

The Disaster Management Act created a situation where one could have used the State of Emergency Act. There was an outcry from the South African public to say that there should be more accountability and oversight from Parliament. South Africa had been in a national state of disaster for two years, and this was proof that Parliament had no power in this situation. Members should ask themselves about contingencies and what was being done currently. It should be asked if the national state of disaster was still effective, and why one could not intervene.

The Chairperson appreciated the clarity provided and agreed that as soon as desirability had been established, other aspects about the Bill could be debated.

Mr Brink said the competence of disaster management could not be taken away from the Executive and then given to Parliament. This would create insufficiency in responding to disasters and cause undue delays. The Bill did not aim to take away the competence of disaster management from the executive. It merely sought to give Parliament a greater role in what happens under the national declaration of national disaster and the decisions that government could take.

In the absence of proper accountability, bad and insufficient decisions are made. If decision-makers were not to account to Members of Parliament and the public upfront as to the reasons why a particular decision was made, it places an onus on the members of the public. The public had to run to court, which was expensive, and it causes disruptions that could have been avoided had proper reasoning and proper evidence been applied in the first place. He used the alcohol ban as an example.

There was a need for Parliament to have greater powers in decisions made about the national state of disaster. This went beyond COVID-19. There should be procedural constraints to prevent an abuse of power.

Ms D Direko (ANC) said it was fundamentally important that the National Assembly maintain oversight over the declaration and extension of the national state of disaster. The National Assembly already had the necessary tools to ensure that proper oversight was done. It did not require any amendment of the Disaster Management Act to do so. The COVID-19 regime under the current act had been implemented exceptionally well by the Minister and the National Coronavirus Command Council (NCCC). There was no need for overregulation -- it would yield undesirable results. There was a need for Parliament to work closely with the executive to identify where lessons could be learnt. The necessary tools were there -- oversight just needed to be strengthened.

Mr Ceza said the EFF still had not changed their minds. He could not see a plan being brought forward on how everything -- such as how risks were being reduced, how to contain the virus, and the damage caused by the disaster -- could get done within 21 days. The amendments were not desirable.

Dr Mmaphaka Tau, Head: National Disaster Management Centre (NDMC), said that the Bill was not supported. He clarified that Section 26 of the Disaster Management Act states that the national executive was primarily responsible for the coordination and management of national disasters, irrespective of whether a national state of disaster had been declared in terms of Section 27. Therefore, any decision that was made was a collective decision based on reasonableness, rationality, and procedural fairness. This piece of legislation was regarded as a most progressive piece of legislation. Countries such as India had used it as a module to develop their own piece of legislation. South Africa’s legislation was development-focused. It emphasises risk reduction, which was characterised by preparedness, prevention and mitigation. Responses and recovery aspects were important. Saving lives, livelihood and property was important. The extension of the national state of disaster should comply with bylaws, and take into account the farming communities, etc.

Desirability always had to be balanced with adequacy, rationality and reasonableness. The amendments might be desirable, but the adequacy of the amendments had not reached the standard that they should have reached. There needed to be a thorough investigation as to whether legislation was still effective in the areas of prevention, mitigation and responsiveness. All aspects of the legislation should be considered, not just one. Therefore, the Bill was not supported.

Mr Andile Sokomani, Committee Researcher, agreed with Mr Brink -- the majority of the submissions received had expressed a need for the Bill. The 500 WhatsApp messages were about people referring to the adjusted lockdown levels, and not the Bill itself.

Mr Ceza said oversight in South Africa was defined as a constitutionally mandated function of legislative organs of the state to scrutinise and oversee executive action and any organ of state. The functions of oversight such as detecting and preventing abuse, were there to hold the government accountable for how taxpayer’s money was used, to ensure policies announced by the government and authorised by Parliament were actually delivered, and to improve the transparency of government operations and enhance public trust in the government. He asked if strengthening of oversight was available. He said the 60% or simple majority that was proposed, without proper interrogation, could not be accepted.

Ms Direko agreed with these comments.

Dr Groenewald said he understood that a collective decision was made, as Dr Tau had pointed out. However, there was a constitutional obligation on Parliament to ensure that there was accountability and oversight, which was not available at this moment. This was the essence of the Bill. If the desirability of the Bill was established, the Department could give its input. If the desirability of the Bill was not accepted, the Department could come forward with an amendment Bill. If the desirability of the Bill was accepted now, it could start functioning. It would not be possible to wait on the Department to take action.

Concluding remarks

The Chairperson said Members had agreed that there was a responsibility to conduct oversight over the Executive. The Bill proposed that there were gaps regarding oversight. The focus was on oversight. The Portfolio Committee should identify the gaps and compare those with the gaps of the Minister, and then see what could be done immediately for improvement. The issue of accountability and oversight was accepted, but desirability needed to be established. He suggested that a decision on the desirability of the Bill be established on a later stage.

The decision was postponed to 1 March.

The meeting was adjourned.