Labour tenant's applications & complementary support services after allocation of land; Animals Protection A/B: DALRRD input; with Ministry

Meeting report

Minister's overview

Ms Thoko Didiza, Minister of Agriculture, Land Reform and Rural Development, said the presentation illustrated how far the Department had gone with the settlement of labour tenants’ claims, in accordance with the Constitution, legislation on labour tenants and the court judgment. It also included the briefing by the Special Master, who would highlight the work he had done since being in office on his recommendation on how claims of this nature were to be resolved. The Special Master would also review what he had found to have been gaps in research which may have disadvantaged the beneficiaries of such claims. He would also indicate the systems he had put in place to ensure that the claims issue would be resolved in accordance with the court judgment.

She expressed hope that the briefing would give the Committee a sense of where the Department was with the issue. The direction was clear on the process moving forward. However, it may not be as fast as they wanted it to be.

Considering the previous discussions with the Committee, the Department had reflected on the Animal Protection Bill and had committed to engaging with Mr Steve Swart (ACDP), the sponsor of the Bill, but this had not happened. However, given what the Bill stands to achieve, there was a lot to reflect on in it, and she was confident that what was in the Bill was adequate.

Minister Didiza said that the proposed amendment looks “narrowly” at testing cosmetic products on animals. However, the subject of cosmetics and the “foodstuff” legislation lay with the Department of Health (DoH). The other issues proposed in the Bill concerned sales, manufacturing, and trade, which would lie with the Department of Trade, Industry and Competition (DTIC). Thus, one could not use an amendment or legislation in one section which would directly impact the others. They were concerned that the Bill looked only at the cosmetics side, but did not deal with the broader research being done on animals, nor did it investigate the issues of vaccine development where certain “efficacies” were tested on animals.

She said they did not believe that the current methods of testing were, in fact, harmful or cruel to the animals. Therefore, the Department did not believe that the Bill was desirable. However, should the Committee feel differently, the Department had made some recommendations that would be presented towards the end of the meeting.

DALRRD on Labour Tenants Act implementation plan

Mr Bonginkosi Zulu, Chief Director, Department of Land Reform and Rural Development (DALRRD), outlined a follow-up that emphasised the Minister's focus on the breakdown of annual operation targets (AOPs), the different budget allocations and expenditure, as requested by the Committee.

He said that the settlement of labour tenants ensued from the Labour Tenants Act (LTA), which provides for the security of tenure of labour tenants -- those persons occupying or using land because of their association with labour tenancy -- and for the acquisition of land and rights in land by labour tenants to secure their land tenure. He emphasised that the Act was very strict and procedural in what needed to be done.

The focus would be on section 16 of the LTA on the settlement of the labour tenants – which involved the notices extended until 31 March 2001. It also focuses on section 17 notices and section 18, which relate to the processes and procedures followed in the settlement of the labour tenants’ claims. All of these address the final resolution of these claims.

The Court had ordered the Department and the Special Master, once appointed, to develop a labour tenants implementation plan for the Director-General (DG) of DALRRD under the supervision of the Special Master by 31 March 2022. In compliance with this order, a plan had been prepared and approved by the Court on 3 September 2020.

See attached for full presentation

Discussion

Ms M Thlape (ANC) acknowledged the Portfolio Committee’s willingness to “play oversight” on matters close to their hearts, especially those affecting the vulnerable in the country. She said that the presentation by the Department indicated a “downward spiral”. There were no indications of achievements of the national development plan (NDP) or its operational plans. Neither the Department nor the Special Master had met their targets. Looking at the annual performances, including that of the 2022/23 year, only 5% of the targets had been achieved. As the pace at which the matter of labour tenants’ claims had not increased, despite monitoring by the land claims court through the Special Master, what plans had been put in place, besides those that were presented in the meeting? Fewer labour claims were being settled. There was no information provided about the quality of the settlements or how it had improved the lives of the labour tenants and their descendants. After all, the Special Master had just indicated the issues surrounding the quality.

Ms Thlape said that the report did not include information on how many people had benefited from the programme. She claimed that dwellers were being put together with labour tenants. While she had no qualms about this, it blurred the focus on the targeted people, which were the labour tenants. She asked the Special Master how this kind of reporting affected what he was overseeing. She expressed concern that Mr Zulu claimed that it was “very difficult to determine the hectares because there would be two households here, etc” and urged him to be transparent with the Committee about the numbers and the specifics, so it would know if the fight to settle the labour tenants was being won.

She said that the transformational agenda of the legislation was lost on her. This was especially concerning supporting the beneficiaries that were targeted. The Act provides that the Minister shall, from all monies appropriated by Parliament, grant advances and subsidies for acquiring land rights by labour tenants and developing land occupied.

What could the Special Master say about Limpopo, seeing that according to the presentation, the province showed no performance, and it was being said that the Treasury was still busy with a figure of about R8 million, where they had no guarantee that it would happen. She asked how many of the 28 farms came from Limpopo. According to the labour tenants’ settlements budget, she did not think this was a progressing matter, and needs an eye from this Committee. The Department needed to answer why it had not met the targets it had set for itself. It was concerning that Limpopo had settled only one labour tenant claim, despite the ongoing challenges faced by the people, who included the most vulnerable and the uneducated. She did not even want to think about what the joint oversight with the Department of Labour had found.

She directed her questions to the Special Master, and asked what could be done about the challenges of not getting quality because of the legal system, as the presentation claimed that he lacked support. What did the loss claim strategy seek to achieve? She noted that this was not yet in place and still needed to be achieved. She had indicated the lack of farms in the provinces so the Special Master could see how far he had got. Was this helping the whole country, or was it one-sided? She asked what requests the Special Master had, seeing as though his presentation indicated that the performance of the programme was unacceptable. What was the Department saying about the post-settlements being “remarkably” inadequate?

Ms Thlape asked whose approval was needed to implement the standard operating procedure (SOP) and practice note, so that the issue could be directly addressed with the person withholding the approval. She asked if there had been challenges or resistance from the Department, as it had been entrusted with supervisory monitoring and oversight responsibilities, so the Committee could intervene. She asked the Department to comment on the lack of officials present in the field to work on the famine situation. While the delays caused by the Covid-19 pandemic were acknowledged, the Department was not sending stuff, and the contract management was not done adequately. How long would this take to do, as it was what the Special Master had been appointed to do, if this was the “snail's pace” at which the process was going?

Mr N Masipa (DA) expressed his concerns with the presentations, saying that they just “throw in the numbers,” which they had received when they were on oversight. It was the same story all over again. The Department seemed to be telling the Committee what it needed to hear – the good story side -- and did not go deeper into the issues. He claimed that they were merely scratching the surface. During oversight, several issues had surfaced, which Ms Thlape had highlighted. It would have been understandable if the Department had at least spoken about the impact in the areas where the work had been done, since they had not been able to achieve the numbers they were supposed to. However, there was no quantity, quality or cooperation. Only the Special Master had mentioned something about the lack of cooperation with the Department's officials on the ground. However, the Department had not been transparent about this.

He said that the same issues had been highlighted when they met with the Minister and discussed the constitutional procedure on how to deal with the farm dwellers. The Special Master had raised this issue. What made it so difficult for the Department to work with the Special Master? How was the Minister intervening to ensure the resolution of this matter? The Department could not tell a good story to the Portfolio Committee, and this was not reflected on the ground. He admitted that this was a problem. The way it looked, the Court may be forced to resolve this area again.

While the presentation from the Department looked good with the vacancies being filled, there was a concern that when the time came for the employment contract to end, the training of those staff members would be lost. What was the Department doing to address this gap with the employment contracts? He asked the Special Master to elaborate a bit more on the fraudulent R150 million transaction. In which province was this? What kind of activities was happening on the farm? Was there a possibility of recourse from the Department to ensure that the dignity of the people affected by this could be restored?

Ms B Tshwete (ANC) said that there was no cordial working relationship between the Department and the Special Master, and this was of great concern as it was an issue that affected the most vulnerable. She asked the Special Master what the difference was between what the problem was then and what the problem was now, with his presence, because the process of settling labour tenants’ claims was still very slow. The Special Master, after all, had been brought on board to assist the Department in fast-tracking the process of these settlements. While she understood the problems that the Special Master faced, she did not see an attempt to seek solutions. The claims were lost. It had been over a year since the systems had been put in place. It was not acceptable to put the systems in place for over a year to trace labour tenants' claims that had been lost. What were the remedial actions proposed to ensure that peoples' claims were restored? The labour tenants were still waiting for the Department to finalise their claims. The Special Master had also reported that these were old people, and some of them were dying. How many must die before their claims were finalised? Certain societal issues could not be overlooked by ticking boxes.

She said there were pending cases in the Mpumalanga province that were currently in Court regarding land. Were these the same cases that had been reported? She echoed Mr Masipa in asking for more elaboration on the details of these cases. Lastly, she asked the Special Master what challenges he should address, given that there was no time, and he had been appointed to resolve these cases. While they appreciated the problems and the need to assist and do oversight work, they wanted solutions.

Mr N Capa (ANC) asked the Department if there was an interaction and relationship with the Department of Employment and Labour (DEL), or a need for it, in this process since it was usually present in dealing with land processes. What was the cause of the delay in the approval of the standard operating procedure, which was necessary and important for the Special Master to do his work? Were there any programmes supporting the process that benefited the people on the land, such as the food security programmes, and were they being implemented?

He asked what the mode of interaction between the clients mentioned by the Special Master was. Given that there had been a reaction by the landowners, which could be expected to be an obstacle in the process, did this mean there must be a process of revoking section 25 of the Constitution to fast-track or overcome the involved processes encountered with the landowners in the area?

Lastly, he asked if there were processes to recover the amount lost in the fraudulent transaction. Were there any people accountable for the loss of this amount?

Ms T Mbabama (DA) said that in December 2023, The Special Master would have finished four years of his tenure, and in 2024, would be ending. She said she was worried about the amount of work that had not been done during the time he had been in office. However, she commended The Special Master on uncovering the fraudulent activities and on his work on the ground despite not having many people supporting him. She asked if the Department had considered why certain provinces like the Free State and Northern Cape had no applications lodged. Why did they think they had not received any applications from the provinces because there must be labour tenants in the farms in provinces as well. She said that they did go into the provinces, and she could not understand why there were not any labour tenants’ applications from them.

Ms Mbabama referred to slide 15 of the presentation from the Department. She noted that the Special Master was playing an important monitoring and oversight role on behalf of the land claims court. She noted the explanation on the slide about the discrepancy of the targets of the Department compared to those in the implementation plan, and that the Department had said that this would be addressed in the next land claims court (LCC) meeting on progress with the implementation of the court order. She believed the explanation provided by the Department -- to choose to explain itself in the Court -- undermined the accountability and oversight function of Parliament. She reminded the executive that they accounted to Parliament. Parliament, after all, appropriated the funds for the implementation plan through the Department. While the Department was welcome to address the Court, it must not undermine the oversight role of Parliament.

She echoed the concerns over the lack of performance against the targets. Why would the Department have separate operating targets from their initial targets? She referred to the target of 4 000 from 2020 to 2023, which they should have had, but they had a target of 2 416 in the operation plan. Lastly, she asked the Minister what the cause of the delay in approving the SOP was, as she assumed it was lacking her approval. She commended the Special Master for highlighting that there were problems between him and the Department, and asked the Minister to resolve the problem.

Ms N Mahlo (ANC) concurred with Mr Masipa and Ms Thlape on the issues they had raised. The office of the Special Master and the Department needed to address the issue of cooperation as an urgent matter. They could do this by developing a working tool that would allow for the evaluation of everyone’s performance in the office of the Special Master and the Department. There should also be a bookkeeping system implemented that would allow for the law makers and oversight Committee to do their work and track what had been done, instead of hearing about cooperation issues between the two parties. The office of the Special Master existed to help the Department in the implementation of certain things. The bookkeeping system was the basis of accounting and contained the proper records of the work done by the officials in both offices. This would then allow for classification and a proper check on who was not doing their work. Were there any documents with details and evidence of how the Department was not cooperating? She reiterated that these were not the issues the Committee wanted to hear about. It needed concrete information from both the office of the Special Master and the Department, as they were not working for themselves but for the benefit of the communities. During oversight of the nine provinces, it had been noted that things were not going well, and the Committee was lamenting the issue all the time.

Mr M Montwedi (EFF) referred to slide 8 of the presentation by the Department, which had claimed there were challenges in processing cases to Court, and that this was slow due to capacity issues in the state attorney’s office. He asked why there were still capacity issues. He referred to a court order dated 29 October 2019, which had instructed that the implementation plan to be submitted to the LCC should include an assessment of the skills pool and other required infrastructure. Did this mean the court order was not complied with, so there could be a proper intervention to deal with the issue? He asked the Special Master to indicate what capacity they needed for the office to be able to deal with the work at hand, for quicker finalisation and the processing of matters as they came before him.

Mr Montwedi asked what the planning was around dealing with the issue of lost claims and unreliable data. This meant that the Special Master may still go back to the claimants, or the claimants to the Special Master, for data. Did this allow for people who could not submit their claims by 2001 to still submit their claims?

He also asked what would happen should the tenure of the Special Master come to an end before the finalisation of these claims. Could the Department provide a list of the 28 farms with 577 labour tenants identified as being in the pipeline for implementation?

Lastly, he posed a question from a Mr Sefotselo Mogagabe (sp), who wanted to know when the land claims of Bakwena ba Mare a Phogole were due to be finalised and settled. This was a community due for relocation, and this matter had been submitted to the Court around 2009.

Mr S Swart (ACDP) expressed his concern at the comments of the Special Master on the state attorney's office and the legal aid board, given the importance of litigation on these issues. The Committee should consider a briefing by the Department of Justice, the office of the state attorney and the legal aid board at some stage. Establishing legal precedents was at the heart of the issues, and it posed constraints for both the state attorney’s office and the legal aid board.

The Chairperson asked the Special Master to confirm if indeed he had been given a five-year tenure. In his opinion, would the Department be able to finish all labour tenant claims within the timeframe, as directed by the Court. If not, what was needed to achieve this? He noted that it had been eight months since the Committee had requested the budget for the awards made to settle labour tenants’ claims. However, Mr Zulu had reported that the process was still in place. He said that during consideration of the 2022/23 budget, there was no reason for that. The Department had not addressed this question. He asked the Department to explain why it took more than eight months to separate the budget for labour tenants’ applications from the general tenure budget, as this was important given the court order in this regard. He asked the Special Master if he thought the Department had complied with the court order on the budget allocation for the awards made to settle labour tenants’ claims. The Committee was concerned because this was lumped together with all the tenure reform projects, and they were not able to do their oversight work on this aspect, as they had been told it included other tenure legislation.

The Chairperson said it was almost five years since the Department had said they were finalising a “fit for purpose” structure. When was the structure going to be implemented? Why was it not being implemented? He asked the Special Master about his observations on the “fit for purpose structure” for tenure reform. Did it conform to his skills audit outcomes? He reiterated that the pace for settlements was not satisfactory. Further, in the last year, they had visited two families in the Limpopo province, and Mr Zulu had been present on both occasions. The officials from Limpopo had said that the claims for the families were to be settled by end of the 2023 financial year. However, looking at the statistics for Limpopo, only one of the families’ claims had been settled. What about the Mahlaela family, whose claim's standing had been at a convincing stage during the visit to Limpopo in June 2022?

The Chairperson asked about the number of lost or untraceable claims the Department knew of. To date, what has it done about the lost claims?

DALRRD's response

Mr Zulu said the Department had finalised the fit-for-purpose structure to try and close the gaps identified, including the capacity required to implement the labour tenants’ programme. This was currently available, and since it had to go with finalising the fit-for-purpose structure for the entire Department, the Director-General (DG) would add more to it. They had written to the Department of Public Service and Administration (DPSA) to get authorisation for the National Programme Manager recently appointed in March 2023, but the only approval they could obtain was for a 12-month duration. They were still waiting for the approval to get the National Programme Manager for labour tenants for a longer period, or at least in line with the tenure of the Special Master. He said they had initially struggled to appoint the National Programme Manager. In Mpumalanga, they were allowed to appoint contract positions for only a 12-month period while the finalisation of the “fit for purpose” structure was under way, together with the creation of these positions in the establishment of the Department. However, they were not going to sit back while waiting for the approval of the entire structure for the Department, including the tenure reform, but had to do something with the existing contract positions, and their human resources (HR) department was handling the matter.

Mr Zulu said that maybe he could add more to the case the Special Master had referred to, but this case was currently with the internal audit department. However, the case that the Department was aware of was not related to the implementation of labour tenancy, but to the farm worker's skill at the time. It had also been discovered that some farm workers were labour tenants, and the Department was still obliged to settle that labour tenant claim.

Mr Zulu said the Department would return to advise the Committee on the annual performance plan (APP) targets. They understood that they had to appraise the Court of what they had approved in the implementation plan. The current reality did not allow the Department to align its annual targets for now with what was approved in the implementation plan.

He said that they agreed with the Special Master on the process surrounding the SOPs, and they had already embarked on this process. One of the processes was to take the SOPs and work for the provincial officials implementing the labour tenants, which the Department had done and finalised. As per the agreement with Deputy Director-General (DDG) responsible for operations in the office of the Special Master, they were going to have a final workshop on the SOPs, because there were areas the Department had flagged that affected the administrative functions of the DG and needed clarification, because the DG had to answer should anything go wrong. He mentioned that they were trying to align the delegations of the Minister and the Deputy Minister in accordance with the Act as they were amending the SOPs, and this would be finalised after the final workshop, as agreed with the office of the Special Master.

Mr Zulu reported that there was a campaign which had consolidated all the applications received per province. Service providers were appointed across the country to collect the information from the campaign being run on farms. These service providers received the applications. The Department had noticed that, at the time, the service providers were not using a standard application form to lodging the claims applications. The Department's figures came from the database, which was the basis for the numbers they had, and thus they to be settled. The Department was working against these numbers. One may find that there was another database which contained the consolidated numbers, but one might not find the section 17 notices, which were the applications of the people reflected on the database.

He explained that there were some technical discrepancies in the database, but this was not because the information on claims had been lost. He gave an example of a farm that had 44 applications. Upon verification, it was found that the applications were, in fact, 45. However, when one checked the database, the extra name of the applicant was available. Therefore, the information was not lost, but may not be found in the section 16 notices. He claimed that the numbers of the applications whose claims were lost or untraceable were not significant, and they had come up with a process that would allow them to deal with these problems without opening a re-lodgment, as this period had passed in accordance with the Act. Now was the time to settle the outstanding claims and not open new ones. The figures would see slight changes only in cases where applicants produce evidence of the lodgments of their claims.

Mr Zulu responded that the issue of settlements on the farm in Limpopo had been prioritised for 2023/24, with 70 labour tenant claims prioritised for the province. Only the 70 claims had received a positive response, and the balance of 345 other cases would have to be referred to Court, following the new processes that the Special Master had touched on. The skills assessment had been done, but the Special Master would add more on this.

The separation of the budget matter had been raised to the Department's CFO, to investigate how to deal with this issue. They would create a responsibility item concerning the labour tenants, which needed the help of the CFO and the “finance people” to advise in creating this responsibility in the budget. The issues with the budget were not about expenditure, but involved the alignment of the awards to labour tenants.

Mr Terries Ndove, DDG: Land Redistribution and Tenure Reform, DALRRD, said that he would not claim everything was well in their working relationship. However, he did not know of any issues warranting serious concern in the Department’s relationship with the office of the Special Master. He personally worked in close proximity to the office of the Special Master, and he would not claim that some operational challenges did not exist. However, it was not a bad relationship, and the Department was cooperating in supporting the work of the Special Master.

He asked if the Special Master had elaborated on the areas of difficulty between his office and the Department. However, with all the issues that had emerged in the field or required support for the work of the Special Master, the Department had always been cooperating. He admitted that there had been some challenges with issues relating to capacity, and that this could not be quickly sorted out, but they had assured the office of the Special Master and the Court about these difficulties and the efforts put in place to address them. The Department had committed that there would be lack of capacity at no point in time, and the Special Master had accepted this commitment. This would be ensured in the form of contracts or full-time employments, and what had happened previously where some contracts had lapsed would not happen again, as HR was also working on maintaining this capacity. In some areas, contract workers have been transformed into full-time employment.

This work would demand a certain capacity level, and it was continuously being addressed. The Department had conducted its own analysis, informed by the needs of labour tenants. They were not going to wait until the fit-for-purpose structure had been finalised -- they were ensuring that they had the capacity, as the need to address the challenges was immediate.

He did not know how to respond to the allegations that there was no cooperation between the two offices, unless it was explained to him differently. The Special Master and the Department had gone together to Court to understand to what extent the oversight and monitoring function should be done, as there was sometimes a difference in understanding. This did not mean there was a problem, but it was important that both parties had a clear understanding, and that this had been a mutual decision. He concluded that he did not think that quality assurance was something that could be disputed, as the rules guided it. It could not be characterised as an issue over which the two offices differed, and one which negatively affected their relationship.

Mr Mooketsa Ramasosi, DG, DALRRD, said the Special Master was working on a project, and there were three determinants applicable: the scope looking at the areas around labour tenants, the number of claims outstanding, and the budget and time issue. A possible way forward would either be to extend the time or the budget. However, he admitted that he did not foresee the completion of their work with the Special Master within the stipulated time. There must be an engagement about availing resources to ensure the work was completed within a particular time frame, and they had not reflected on this with the Special Master. It would not be wise to throw all the permanent resources at the project, as it had a definite end-time, because when it was done, one would have to reskill and re-trade. It was always best to have a hybrid system that would allow one to deal with the issues around capacity and flexibility by looking to the end of the project so one was not left with resources one may not necessarily need. One could then focus the resources on areas where the Department would require them.

The DG said that there was quite a lot of work that needed to be done around the area of tenure in the Department. He admitted to being oblivious to the engagements they needed to be dealing with to capacitate this area, leaving a lot of capacity to deal with the other areas. The Minister had previously indicated in their internal engagements that in their fit-for-purpose structure, they needed to deal with this area.

He said that any restructuring in government had to be done within the confines of their framework. The framework includes the involvement of labour and the representations from the unions, where they would ensure that the framework on transformation or the restructuring of the Department considered every issue. Any mistake that happened in the process would reel the work backwards. The framework would also need to provide for the case where the endgame would lead to the deployment of, and finding alternative employment for, some colleagues. The workers had some issues they needed clarity on, and this had been done. The process would move forward as per the engagements at the Departmental bargaining chamber. This would mean that the timelines for the fit-for-purpose structure needed to be compressed. However, based on the delays, the DG admitted that he did not think the fit-for-purpose structure would take effect before 1 April 2024.

Mr Ramasosi said that he did not have issues working with the Special Master. However, he acknowledged that there had been areas where issues had arisen, which he had to respond to and address. This was part of the system that was not available in the past – a form of intervention that the course of the project had brought into the Department. He admitted that the Department was not beyond reproach. They ensured that the Special Master could perform his functions within the Department without any drawbacks. Perhaps the issue with the working relationship between the two offices might have been brought forward, but currently, there have been some changes.

Ministry's response

Mr Mcebisi Skwatsha, Deputy Minister of Agriculture, Land Reform and Rural Development, said he agreed with the DG, the DDG and the Special Master that the issues were not at a level of antagonism. He acknowledged that the issues reported by the Special Master existed, and he had been asked to address them. At the end of March, he had therefore convened a meeting with the Special Master, the DG, the DDG and the Department's senior management to deal with the matter. This was considering the importance of the task as indicated by Ms Tshwete, and so as to not be side-tracked by the issues.

Minister Didiza recalled that in the fifth administration, following engagements with the land claims court, the judges had felt that the quality of legal support given by the Department was inadequate. In an engagement with the Department of Justice, there had been an agreement that this facility must move to the mainstream within the Department of Justice. The DALRRD had been working with them, giving support to the land beneficiaries (farm workers or labour tenants). She admitted that the Department was having problems at the moment, but they had been meeting with the five judges of the land claims Court during the past two weeks. They had raised the issue of quality with the presentations in the Court by the legal representatives with the Department of Justice. This was so the Solicitor-General could look at the briefings of attorneys having to undertake the task. She assured the Committee that these issues were being investigated.

The Minister agreed that the matters of capacity needed fast-tracking within the broad context of the wage bill in government. Government had been considering ways to repurpose and ensure a structure that would have adequate capacity to do the work that it should do, without “bloating” the structure so that the compensation of employees (COE) becomes more than the resources available for the operation. She expressed satisfaction with the responses received so far. She noted the concerns about how the Department and the Special Master needed to move with the necessary speed to resolve the matters involving the labour tenants.

Special Master's response

Mr Reginald Khanzi, Special Master for Labour Tenants, said the combination of farm dwellers' and labour tenants' matters reflected in the budget structure was a problem. Although the issues on the ground might reflect the fact that they were combined in budgetary terms, labour tenants had specific rights in land which he believed could be quantified, and this was what they were doing. It was not complicated, and did not need to be long. The National Geo-Spatial Information. (NGI) needed data capturing capacity to achieve this. However, combining the labour tenants and farm dwellers diluted these labour tenants’ rights. This also played to the whims of the farmer. He had seen this, and could give several examples. This was a situation where a farmer wanted to solve the issue of people on the farm. This leads to a case where the labour tenants’ claims are resolved, farm dwellers’ issues are dealt with, and many people are combined in one Communal Property Association (CPA) on the farm. This was a major problem, as it diluted the rights of the labour tenants. The Special Master had spoken to the DG about this, and he claimed that if they were to use land acquisition to speed up the process, then they needed to be cautious in the way they did this.

In 2005, a non-governmental organisation (NGO) made a presentation to Parliament indicating that 4.2 million farmer workers had been dislocated or removed between 1994 and 2005. While the Special Master admitted that he could not speak to these numbers, they must have reflected the reality on the farms. This was another problem of combining different categories in the law, as defined. People had been moved from land with high agro-ecological potential, to rocks. He referenced Ladysmith Black Mambazo’s sihlal’emaweni, and reiterated that people lived on rocks. He argued that if one settled people on rocks, and gave them however many hectares of land, one was not resolving the land claim when people historically had access to high potential land for cropping and cattle rearing. These were the realities that needed to be concerned about. They needed to put landowners in the picture during these discussions, to get a different analysis. He urged the members of the Committee to consider this.

Given the extraordinary intervention of the Special Master, he recommended that they ring-fence part of the existing budget for legal support. This should be managed by the Department and himself, to engage in the impact litigation until a time when they see a greater readiness. This intervention did not exist in South Africa before, and they had looked at international practices to draw on the way to best approach the matter. He could give individual cases, and gave the example of the labour claimant he had picked up in Utrecht, and together they had submitted the application form. However, it took five weeks to get an acknowledgement that nothing had been done at that point to process the application. This stemmed from a court ruling in 2014, where a gentleman had over 200 herds of livestock and had been residing on about 28 hectares of land, waiting for the conferment of the complete order that the full extent of the land is agreed upon by the Department and the landowner for allocation. They had now seen that land, and stressed that they really needed to move on with the matter. The claimant was still struggling to get an interaction with the lawyer allocated by legal aid, despite having met him in a group meeting where they had agreed on the maps produced by the NGI. He said that this was one example of the kind of challenges faced by the land claimants. Hence, he had recommended that they take a portion of the budget and, together with the DG, devise a mechanism for managing the money to get a proper legal team in place that would accelerate the processes of land claims resolution.

Mr Khanzi said he had briefed the DG, who had answered all his questions on the Mpumalanga matter and was aware of the forensic investigation. However, he could not elaborate on this until the investigation was complete. It was in the Middelburg area, and it involved a large company by the name of Alzoo.

Regarding the SOPs, the essence of what had been discussed was not relationship issues between the office of the Special Master and the Department, but the delays in the SOPs. He had an excellent relationship with the DG and the DDG, and there were no problems he would like to put before the Committee on that front. The issue was the delays in the implementation of decisions. They submitted the SOPs on 31 May 2022. It was about to be a year, and time had been lost. He did not deny the process had been discussed in a meeting, but this matter should have been implemented immediately. He had been told that it would be completed a month ago. He claimed that these were operational management issues, and admitted that he had not intervened to speed up the process. These were unnecessary, and needed to be resolved. Mr Khanzi said that he had compiled a compliance register and looking at the times when the Court gave the directives and how long it took to implement them by the Department, it had already doubled the time of his initial term.

Mr Khanzi said that in some provinces, he was aware that the number of claims recorded had been low and dubious. He did not have answers as to why this was so. However, he did not think looking at the past and pointing fingers at service providers was helpful. As a former accounting officer of 16 years, he knew that if a service was outsourced, the DG and an accounting officer could not blame anyone else if they did not take remedial action before paying for the service being delivered. Whatever happened, this was a situation where many claims had been lost, even though they could not quantify them at this point. The only way to get to the bottom of it was on the ground, or to make a facility available, which the lost claims strategy suggests, at district level for people to come forward and enquire whether the claims they believe to have lodged were being processed. The process would be in place to determine the validity of these allegations, to help people whose claims were genuinely lost.

He said that they would make more progress if they focused on quality, rather than the quantity of people dedicated to labour tenants, which led to diluting people’s responsibilities and involving different tasks on different programmes. He expressed his commitment to working on the ground and having a back office dealing with the data and project management system. This was his recommendation on the issue of capacity.

The supervisory, monitoring and oversight powers of the land claims court would be there until the final labour tenant claim had been resolved. He recommended that the problem of the expiration of the Special Master’s initial term be taken to the next court hearing. This was an initial term linked to a specific request he had made. He had not foreseen the challenges that had arisen.

He agreed with the colleagues from the DALRRD that these were not relationship issues, but problems to do with the nature of the work. The Special Master was an opportunity for the Department to have a dedicated high-level focus on this critical project. This was what everyone needed to remember, and jointly commit to dealing with the project. Looking at the court judgments, the Court had in mind that the statutory functions performed by the DG on the legal framework were taken over by the Special Master. This did not mean that the Special Master would be the person responsible, but he would collaborate with the DG, and this was the relationship they had established together.

In conclusion, he said that if his recommendations were followed – that was, getting the targets right and understanding the meaning of the farm targets by working through the initial macro targets together for the remainder of the financial year -- he believed that they would be able to achieve some good work and deliver more than the targets. This would require dedicated officials, as it was impossible for him and his office manager to do all the interviews when they got 108 applicants for one farm. Hence they were currently in training, and they had commitments from the Gauteng and Mpumalanga provinces. As a result, Gauteng had a high number of recorded claims and was confident that by walking out of the meeting with the Department officials, they could increase the delivery of this programme.

Animal Protection Amendment Bill

Dr Mphane Molefe, Director: Veterinary Public Heath, DALRRD, presented the document in response to the draft Animal Protection Amendment Bill that had previously been brought before the Committee. The purpose of the presentation was to respond to the Bill itself, and to the issues raised at the meetings held on 21 and 24 February.

At the meeting of 21 February, it was reported that South Africa had been scored a category E by the Animal Protection Index (API), which was an index of the World Animal Protection organisation. This was a low score, and South Africa should aim to score higher than this. However, this was a private organisation, and it had privatised standards for which the Department may not influence how these standards were set, or the outcomes resulting from them. South Africa used standards from recognised international standard generating bodies, such as the World Organisation of Animal Health.

Dr Molefe said that what was concerning was that in the scoring of level E, they had found that the organisation put out inaccurate statements in its assessment of the country. One of these statements was about the Minister of Justice being responsible for the Bill. The Act still had the Minister of Justice as responsible for the Bill, but this had been proclaimed and was now under the Minister of Agriculture, Land Reform and Rural Development. This was a minor mistake, but they could not know how their methodologies affected this scoring, and whether the Act was under the right ministry according to their methodology or scoring criteria.

The issue raised by the organisation on the lack of the definition of sentience meant that the Act itself was limited. Dr Molefe said they argued that while the definition of animal sentience might not be in the Act, the content of the Act provided enough measures to protect animal welfare. Therefore, it was unfair to score a country less because of the definition, without checking if the content of the Act covered the area. It was also not fair to rate a country on statements the organisation was not clear about without writing to the country to get clarity and updated information. Had this been done, the scoring may have been different.

Compared to the other countries in Africa and around the world, South Africa was not too far from the mark, as most countries were rated a D level, and some even less. Some countries were rated above this, and these were mostly European countries, and India at a C score.

At a previous meeting, it had been mentioned that an ideal would be to move towards vegan or cruelty-free cosmetics. This would mean that the product did not contain animal products. However, it did not mean that they were not tested on animals. Cruelty-free products meant that the final product at hand was not tested on animals, but it may be possible that separate ingredients may have been. This may also have been long ago, as one still had products tested 30 years ago. Dr Molefe felt that it was necessary to explain these terms, and should the decision be taken towards that route, the Committee Members were clear on what this meant.

In the previous meetings, it had been noted that the Department had not responded to the Members of the Committee in 2017 when the amendment was first introduced, and in the introduction of the current amendment. In response to this, the Department had been notified that it would be called to make a presentation to the Committee, but this had never happened. The Department had always been ready for the invitation.

Dr Molefe said the legal advisor had issued a statement that milk from South Africa could not be exported to the Netherlands because something had to be added to it, implying that the Department was not complying with this requirement. He felt this needed to be clarified, as it could also affect international trade. He said no substance was required to be added to the milk. Doing so would change the dilution of the milk and it would be a completely different product. Additionally, the exportation of milk revolved around the requirements of the importing country, which could be animal disease control, growth promoters, or other control functions. However, he maintained that this milk issue had nothing to do with animal welfare. They were surprised that this issue had been introduced, and had to clarify it as the meeting was about animal welfare.

The Department received a contribution from the Cosmetic, Toiletry and Fragrance Association (CTFA). They added this to the presentation to show the landscape of the cosmetics industry. The industry contributes to 0.1% of the gross domestic product (GDP) and employs 60 000 people directly. However, the total size of the industry was about R25 billion in aggregated value, and R19 billion of this was at the manufacturing level. In addition, further down the value chain, the industry finances about 150 000 stores, which multiplies the livelihoods that depend on the industry. Over the past two years, the industry has experienced an estimated compound annual growth rate of 4.6%, and was expected to grow further in the future. The composition of small and medium enterprises (SMEs) –companies with an annual turnover of between R1 million and R50 million -- was 80% of the industry. Companies were 35% manufacturers, 16% importers and 25% exporters, respectively. The CTFA’s membership was about 85% of the industry, so when the Department received these figures, they took them seriously, because they were confident that they represented the industry.

There was currently no technology or expertise in South Africa regarding alternative methods. Therefore, the Department was advising and warning that if there were to be a total ban on cosmetic testing on animals, and there was no alternative, they may find themselves in a situation where there was nothing they could do. This may cause South Africa to not be competitive, as other countries may have alternatives before they approve the ban. This may also result in South African companies having to test the products outside South Africa. The cost of this may fall more on South African companies, compared to multinational competitors.

The amendment may not achieve its intended purpose if it also does not cover imported components. Mr Swart had said that the Bill was limited only to the ban on testing in South Africa, but not on the sale of the imported products that would have been tested on animals. This may disadvantage local companies when they could not test locally on animals, but the multinational companies could test internationally and then flood the South African market with their products. This may cause unfair competition and trade balances in favour of multinational companies. The DALRRD had no evidence of the international trade protocols being linked to cosmetics testing on animals. In the previous meeting, it was mentioned that international trade may be affected because of the testing of cosmetics on animals. Dr Molefe said they were unaware of this, and that no trade partner had made contact to require a statement on the ban of animal testing to trade animals or other products. The international trade protocol on animals had nothing to do with cosmetics and testing of them on animals, but everything to do with general animal welfare aspects.

The DALRRD used other countries to benchmark how they handled animal testing. They looked at the European Union, and in agreement with what Mr Swart had said, they had banned the marketing and testing of cosmetics on animals. However, they had made a provision in the law that member states could apply for exemption from the ban in exceptional circumstances. Currently, they have proved two instances where a member state could do this, such as where an ingredient could not be replaced by another ingredient, or where there was a human health risk. A member state could then apply for a concession under these circumstances or other exceptional circumstances, and the state could be allowed to conduct limited testing.

Other alternatives available included volunteers, where human beings would be willing for the products to be tested on them so researchers could make a finding and a decision be taken thereafter. There also existed computer modelling and human tissues sourced from hospitals after surgery. For example, when skin tissue is removed in surgery, it may be used for cosmetic testing. Another one would be a reduction in the number of animals used. Dr Molefe admitted that this was not an alternative, but addressed the issue of reducing the ultimate number of animals used in testing.

The DALLRRD also looked at the Organization for Economic Corporation and Development (OECD), whose member states include Australia, New Zealand, and the United States of America. The organisation had made a statement on the testing of cosmetic products on animals, claiming that the welfare of novelty animals was important, and that it would continue to influence the work in the testing of chemical products. However, they recognised that some testing could not be eliminated, but every effort should be made to discover and validate alternative testing systems. A complete ban on the testing of animals left few options to use, and thus the option would still be used under limited circumstances. The manufacturers of cosmetic products should use whatever appropriate methods are available, including animal testing. They recommended, however, that guidelines on the use of animals must be developed and few animals used to ensure scientifically justifiable reasons. Finally, the OECD had asked that before approval was given for cosmetic animal testing, there must be evidence of alternative methods being considered.

Dr Molefe said that looking at this, one could tell that the OECD advocated the ban of cosmetic animal testing. However, they did acknowledge that there would be situations where alternative methods would not be available, and some considerations would have to be made.

The definition of cosmetics in the Bill followed that in the Foodstuffs, Cosmetics and Disinfectants Act. It was a broad definition which included all products that could be termed as cosmetics, so the Act was able to control the products. However, using the definition for the ban on animal testing leads to the problem previously highlighted, as the definition was a broad one. The cosmetics could include products used in the external genital organs for cleansing and conditioning. Dr Molefe argues that the products could not be classified as the baseline definition of products involved in the general sustenance of people.

Dr Molefe said toothpaste was regarded as a cosmetic under the broad definition. Should toothpaste testing on animals be banned, and there were no alternative methods, the country may find itself in the situation of having no areas to test a product necessary for personal care. The Department, therefore, cautions against using the broad definition for the ban of cosmetic testing on animals to include personal care and well-being products. Beautifying products, however, were different. Sub-section one states that testing a cosmetic ingredient on an animal, for purposes unrelated to the use of a cosmetic, would not be an offence. The Department argues that this may create a loophole. Companies may bypass this provision by applying to test an ingredient as medicine, while the intention was to extrapolate the result to apply them to the beauty or cosmetic industry.

As it stood, the Bill was not desirable. Thus, the Department recommends the “three R” approach -- Replace, Reduce, Refine. Replacement was the gold standard: the goal was to replace all animal testing completely. However, this may not be possible. Hence, reduction, where we strive to use fewer animals in the testing. Lastly, refining the methods used and considering alternative methods available. This was the recommendation from the Department, should Parliament decide to implement or amend the Bill or the Act itself. Parliament could allow for limited testing on animals instead of a total ban. A company would have to apply to the Minister before conducting the test. This must be strict, so only serious research could be done. There would be an independent panel of animal ethics experts in the Minister’s employ to look at individual submissions. The applicant would have to provide reasons as to why alternative methods were not desirable. This was in line with the “three R” approach.

The other option recommended by the Department was that instead of amending the Bill, the Minister may make regulations according to her power to make these reasonable and necessary requirements to prevent cruelty to any animal. The Act provides the necessary assurances and measures to implement animal welfare in the country. Animal welfare organisations and other countries have also acknowledged and appreciated that the Act was strong and sufficient. Should there be a need to regulate a particular area, such as cosmetics, one may consider making regulations about the specifics of the area, instead of changing the principal Act. It was not ideal to change the Act for every situation that exists. The Act makes provisions for other situations that may need regulation.

Finally, Dr Molefe said that the regulation of cosmetics was primarily under the jurisdiction of the Department of Health (DOH) under the Foodstuff, Cosmetics and Disinfectants Act. Therefore, if any regulation must be done on cosmetics, it had to be done under the DoH.

He alluded to not having enough information on the engagement level between the DoH, Mr Swart and the Portfolio Committee. However, the DALRRD approached the DoH to get their view on the matter upon preparing the presentation. The DoH had agreed with the approach of the DALRRD on this legislation.

See attached for full presentation

The Chairperson said it was indicated in the correspondence to the DALRRD that this was an opportunity for the Department to make clear policy inputs about the Animal Protection Amendment Bill. The Committee felt this had not been sufficiently addressed in the previous meeting’s engagements. It had been suggested that the meeting be held again, but in the engagements with Mr Swart, it was said that this was unnecessary as the Bill was now before the Committee. Hence, any inputs by the Department and those raised by the Members of the Committee previously, would help with the decision on the desirability of the legislation. There would be no further presentations by the Department on the matter moving forward. The Committee must determine how to proceed with the legislation, to avoid wasting time.

Discussion

Ms Thlape appreciated the issues raised by Members previously. She noted that the Bill had narrowed its focus to cosmetic testing. The presentation by The Department indicated that this fell under the Department of Health, and the other stakeholders impacted were the Department of Trade, Industry, and Competition. Hence, the DALRRD did not have an absolute mandate over the matter. Was there no legislation that covered the protection of animals? She had read up on this to figure out whose responsibility this was. She found that the council of the Society for the Prevention of Cruelty to Animals (SPCA) sits on the national ethics committee on animals to ensure that animals involved in research are not abused. Therefore, she echoed Dr Molefe's view that they could not afford to ban animal testing, even if it was within their limits.

South Africa was a developing country. As a developing country, it was not tragedy that they had been put under category level E. Furthermore, considering the alternative testing methods listed, how big was the problem with animal testing in South Africa? She agreed with the presentation on how banning animal testing would harm SMEs, highlighting unfair competition. This would defeat the purpose of the Bill. Even the European Union did not impose a total ban. As a developing country, could South Africa afford to reach alternative testing standards? She assessed that the scale of the animal testing in cosmetics of the member states of the European Union was huge, while here, in a developing country, she could not determine how big the problem was. Therefore, considering that they were a developing country and with the standards in place, being at level E was not a big problem. They had legislation protecting the use of animals and the national council of the SPCA, but the Portfolio Committee did not have an absolute mandate over this. She was satisfied with the recommendations, and supported that they should work with what they had.

Ms Thlape also agreed with Dr Molefe that they should not amend the Bill to deal with every situation. She reiterated that SA did not have a big problem. Therefore, the Bill was sufficient. If it were up to her, she would argue for a total overhaul of the piece of legislation that would include everything, with all the stakeholders involved. However, she felt that the request to amend the Bill was not totally desirable.

Mr Masipa asked Dr Molefe when the DALRRD had last met with the World Organisation for Animal Health (OIE), and if the way they had categorised South Africa had been raised in the meeting. Further, he asked if the heartwater disease vaccination issue was raised in the Bill, as they often encountered the heartwater vaccination challenge with sheep. They now had issues with animal diseases, leading to challenges in exporting these animals. He agreed with Ms Thlape that SA might have a big problem if its exports were not compliant with its regulations. The amendment of the Bill, therefore, could find the country consuming everything produced elsewhere while SA was not able to produce for itself. This was what he thought about the Bill, but he was not for or against it. He would have to consult extensively to decide on the matter.

Ms Mbabama said the Department had reported that there was currently no technology or expertise in South Africa for alternative cosmetics testing. Did this mean that animal testing was a common practice in the country? She mentioned that alternative methods should be considered, even if unavailable in the country. What other alternatives were there? In the absence of alternative methods in the country, did this mean that the testing of cosmetics on animals should be allowed, regardless of the way it was being conducted or the impact on the welfare of animals?

Mr Capa said that in the process of these discussions, the Committee had always wanted to know if there was no legislation that covered the situation. The discussion indicated that the Bill had been brought to the Committee because the Department takes too long to conclude any legislation that would cover the Bill's purpose. However, he now appreciated the Department for coming to the Committee with the input, which he believed made them “wiser.” He had moved them in the direction necessary for the country. The Members were for the interests of the people of South Africa and themselves. At the same time, they did not want to stifle any process of research which was in the interest of the Department and society. Therefore, it was evident from the presentation that the fear that existed around these matters was covered in the legislation. As there was no disaster, and the Bill proposed to preempt any further threats, the conclusion was that there was no desirability for this piece of legislation at the moment.

Ms T Breedt (FF+) said the Bill needed to be considered. She reminded them of the first interaction with Mr Swart, where he said that the Bill was preemptive, to ensure that animal testing did not occur in the future. She recommended that the Committee be proactive, instead of being reactive. She saw the Bill as being proactive towards the legislation on the welfare of animals. Therefore, there was desirability. She expressed frustration with the Department, and said that the presentation did not differ from the first one. She accused the Department of misunderstanding the Bill, and said that they do not see it as what it was. They purposefully misunderstood it. She cautioned against misleading the Committee in what was said about animal testing. She noted that there were currently no laboratories in South Africa testing on animals. There were also no cosmetics in South Africa that were being sold that were tested on animals. Therefore, there was no threat to the international market or negative implications on jobs, as they were just for South African use. There were also no laboratories in the country that conduct testing of ingredients on the animals. Hence, the stance from the Department was incorrect.

Ms Breedt said that the Bill had nothing to do with hartwater disease and vaccination, but was about testing cosmetics on animals. They needed to look at what their international counterparts were doing. In March 2013, the European Union announced a total ban on the sale and imports of cosmetics tested on animals or contained ingredients tested on animals. Therefore, if the Bill was to be adopted, it would enhance the South African export market. The law had been developed in 2010 already, but was introduced in 2013. She noted that South Korea had started a five-year plan for animal welfare, including implementing the ban on animal testing in the cosmetic industry and marketing such products. The United States of America and Canada had also just announced that they were starting programmes and introducing legislation that forbids animal testing for products made in the country, and the sale of imported products. The Bill speaks to what the country needs, and Ms Breedt reiterated the stance that the decision could not be made at the moment. The Committee must be proactive, consider the long term implications for the country, and consider the Bill.

Mr Swart reminded Members that the Bill was a narrow and a proactive one. There is currently no testing of cosmetic products on animals in South Africa. He reminded the Chairperson of what he had said about how important the drive was to criminalise the testing of cosmetic products on animals. He quoted the former president, Mr Nelson Mandela, who had said: “there can be no keener revolution of a society’s soul than the way in which it treats the most vulnerable”. This was considered a progressive and positive piece of legislation, given that almost 100 million animals were used in research worldwide.

At the moment, there was no planned legislation. Mr Swart appreciated the work done by the Department's officials, but many elements were missing. Looking at how narrow the Bill was, it could bring many positive benefits to SA's stance on animal testing of cosmetic products, not only from developed countries, but particularly from developing countries. The Bill was a “win-win” for everyone as it was narrow, proactive, and followed other countries like New Zealand, which were proactive in this approach. He reiterated that the Bill was narrow and allowed for exemption in the narrowness, which the Department had picked up. 45 organisations were pleading for change, which was thousands of people. He added that 7 000 registered ingredients already worldwide that could be used.

He implored the Committee that the Bill be referred for comments, as there had not been comments from the Department of Trade, Competition, and Industry from 2020, when the Bill was presented. This would allow The Committee to satisfy all the organisations waiting for answers for six years. He welcomed the possible alternatives presented by the Department, and would like to engage further on the issues on behalf of the organisations that had approached Parliament.

He urged Members to reflect on and consider the Bill. It was premature to decide on the desirability of the Bill at the moment. He recommended that they look at the memorandum of the Bill again, and consider the countries in the world that had moved in that direction, then align it with the statement by the Department and engage with the other departments. He urged against disappointing the organisations at this early stage.

The Chairperson said he did not understand why the Department had raised the Bill from 2017, as they were interested in the current Animals Protection Amendment Bill of Mr Swart. This was an opportunity for the Department to raise policy issues on the Bill. In their presentation, the Minister and the DALRRD had raised other issues that they felt the current Bill did not address. Yet, they were not showing their plans on how they would address these shortcomings. It was to be noted that this was a private Member’s amendment bill, and he had explained that the Bill was narrowly and specifically focused on the testing of cosmetic products and their ingredients on animals. The protection of animals was the responsibility of the DALRRD. The Minister was concerned about the impact of the Bill on the legislation, and unfortunately, the presentation did not provide specific details on the legislation and its impacts. He therefore wanted the Department to elaborate further on the issue.

The Chairperson reminded the Members that through the legacy report of the fifth Parliament, the Department had brought to Parliament an amendment to another old piece of legislation -- the Performing Animals Protection Amendment Bill, known as “PAPA”. On the proceedings of the PAPA bill, similar issues to the ones raised by the Department on the private Member’s Bill, including more animal welfare matters, had been raised. When this Bill was presented in 2015, the DALRRD promised to develop a comprehensive animal welfare bill to address all animal welfare matters. Without this, and until the DALRRD brought forth the comprehensive Bill to address shortcomings in the existing legislation, there would always be a need for amendments to old and outdated legislation.

In their denial of the scoring by the animal’s protection NGO, the Department had mentioned that the organisation had referenced the Minister of Justice instead of the Minister of Agriculture, and this was possible when one had ancient legislation with numerous amendments. He asked for an update on the development of the animal welfare bill that was promised eight years ago.

Finally, as Mr Swart had said, the legislation under discussion did not extend to testing for medicinal and pharmaceutical purposes under which vaccines fell, but had everything to do with the testing of cosmetic products in the advisory that the Department had presented from OECD. What legislative instruments existed to address the cases where a welfare organisation finds inhumane cases on the use of animal testing for cosmetic products?

Department's response

Dr Molefe said they had referred to the 2017 bill to answer questions raised previously. The Portfolio Committee had mandated them to respond to the questions raised in previous meetings. He admitted that some of the questions were not related to cosmetics or the testing on animals, but they felt that they needed to respond to them since they had been raised at that point. They also felt the need to respond to the question about the heartwater vaccines, and the cruelty thereof, because Parliamentary meetings were public. If these issues were not corrected, inaccurate information would spread.

The OIE had standards on animal welfare. There existed a terrestrial animal health code whose chapter seven refers to animal standards that a country must comply with. The country uses these standards, and not the Animal Protection Index (API). The OIE has its own set of standards, which do not reflect on the country’s ratings. They also do not reflect on what other organisations were saying, unless those organisations specifically requested a set of standards that the organisation wanted the OIE to set. The OIE was open to international bodies to propose to them the generating of different sets of standards.

South African imports were currently complying. This did not refer to cosmetics testing on animals, but about whether there had been violations of the current Animals Protection Act. If it became aware of violations of the Act on a product, the Department would have to take the product off the market, or even litigate against it in Court. This was in accordance with section two of the Act. The Department was confident that the animal rights and welfare legislation included provisions for almost all possible instances.

He agreed that the Bill was preemptive and there were currently no laboratories testing on animals in the country. However, if the need should arise that animal testing was used and SA banned it, the presentation identified the implications that it would have. These were also preemptive responses to the Bill presented.

Responding to the allegation that the Department did not understand the Bill, he said that they were clear as to what the Bill served to address, and what they had presented was on the basis of them understanding the Bill. They were reacting to what would happen if the Bill were to be put in place, and not purposefully misunderstanding it. He agreed that the EU had imposed a ban. However, it was to be acknowledged that they had also made provisions for exemptions from it by the member states. There may not be animal testing, but it was in the legislation in case it was needed. He noted that it may not be necessary, but in the absence of the provision, one may not have a tool to address the matter should it arise.

Legislation took a long time to change. While this was a proactive approach to a ban, it must be balanced with the effects that arise from having the ban. Hence, the presentation recommended a provision for exceptional circumstances. In this case, this would mean the Minister has power to allow the testing after having been advised by a panel of experts. The panel would be comprised of experts from different disciplines. The animal ethics committee would do a good job advising the Minister about the alternatives and their use.

Dr Molefe assured the Committee that the DALRRD understood the narrowness of the Bill. While it might suggest the amendment of even one sentence, that sentence may have repercussions on other legislation. Therefore, the standing of the DALRRD was not on the narrowness, but on the impact of the amendment.

Responding to the Chairperson, who had asked about the plans of the DALRRD to address the shortcomings by saying that there was a provision in the Bill on the relevant sections to create regulations, he said it was relatively easier to create regulations when one needs them than to create an Act around them. Further, if an amendment was to be made to legislation that affected other departments, then the respective departments must be present to have a coherent approach to the matter, because it may be approved in one department, but there could be a different approach in the other. This may lead to a conflict of legislation. He reiterated that all relevant departments must be brought forward to decide on the desirability of the Act on different legislations.

He admitted that the promise of a presentation and clarity on the PAPA had been made. The DALRRD had reported to different Portfolio Committees that they were in the process of developing the legislation. This had taken a long time because there were a lot of areas that needed to be extensively investigated. Currently, the legislation was under development, and the DALRRD was engaging with relevant institutions that assisted in scientific research and advising the Department before taking the Bill to Parliament.

Minister's closing remarks

Minister Didiza said that the Department was not deliberately trying to misunderstand the narrowness or intention of the Bill, nor to mislead the Committee. The Department maintained that currently they did not think that the relevant legislation was not adequate to address the concerns in the Bill. Also, because this was preemptive legislation, consulting with other government structures that would be impacted was important.

She admitted that the Bill had been made public, and that the DoH and the DTIC had not “come to the party.” However, it was still true that if they were to have even a minimal amendment, its impact would not be limited to animals, but also the functions of the two departments, and this must be considered. Therefore, one could not look at the legislation as one element. One also had to look at other factors surrounding the capability of alternative testing. There must also be a consideration of ethics, seeing that some alternative testing methods involved human volunteers. She therefore agreed with the stance that this must be intensively reflected upon, even though it was meant to be a preemptive approach. What would the impacts be for the country?

The Chairperson told the Committee Members that they did not have to decide on the motion of desirability today. The purpose of the meeting today was to get the policy issues from the Department. This was why he had invited the legal services department to advise on the procedure to approach the Bill.

Input from legal services

Adv Charmaine van der Merwe, Senior Parliamentary Legal Advisor, said that the process was set out in the Assembly rules. This was what had to be considered. After the day’s briefings, certain things had become clear. It was important that the DoH be given an opportunity to comment on the Bill, as they were directly affected in the schedule. Considering the briefings from the Department, it may also be important to give this opportunity to the DTIC. She quoted rule 286, sub-law 4E, which reads, "if a bill is introduced by a member in his individual capacity, give the relevant department in a national executive authority sufficient opportunity to make submissions to the Committee on the objects and particulars of the bill.” She noted that initially, she thought it would be sufficient to just have the Department discuss the desirability of the Bill. However, there was a concern that piecemeal amendments would put all Members of Parliament in a difficult position.

There was also some indication by the Department that there could be desirability in the Bill, so she recommended that the Committee invite the other two departments to comment on the desirability of the Bill proposed by the Member. She confirmed that there was enough legal precedent for a bill before one committee to affect the legislation in other committees. This was partly why the rules provided for the committees to consult with each other. Therefore, this was still part of the legislative process, and there was no concern in this regard. The process was complying with the rules and the Constitution.

Sub-rule six of rule 286 sets out certain stages the Committee must follow. So far, they have done 6a (1) and (2), which state that there must be informal discussions on the Bill, the principles and subject of the Bill, and a briefing by the department and the Member. Number two becomes very important, as it was the consideration of the public comments received. She was aware that the secretary of the Committee had provided the Members of the Committee with a very high-level summary that she had done on the submissions. It was a guideline that had considered, in her experience, what other committees had done when the rules had just come out in the fifth Parliament. The committees were likely to consider the submissions made. Sometimes they held hearings, but other times they simply looked at these submissions. This also depended on the type of submissions. The SPCA had made a submission on the Bill. Therefore, if a public hearing was considered, she recommended that an SPCA representative be called to participate in that. However, there were thousands of submissions, and it would not be possible for the Committee to hear them all. There were sub-standard submissions, and if the Committee decided on these hearings, this was where they should start.

Adv Van der Merwe noted that in addition to this, other committees in the Sixth Parliament had made their own call for comments. The call for comments on the Member's Bill was made only in the Government Gazette, and the average person did not read this document. Further, she asserted that she had seen a growing number of committees make their own calls for comments on a private Member’s Bill. Only after considering these comments do they consider the motion of desirability on the Bill. This, then, would be the next step.

In summary, she recommended that the Department call the DTIC and the DoH to address them on the Bill. The Committee must also consider the public comments that have been made. They could do this by considering the submissions as they were, or calling public hearings and inviting some people who had submitted. The Committee could make their own public comments, and this was the process that the Committee was used to. Thereafter, the next step would be to adopt the motion of desirability on the Bill.

She said the Department had made two proposals. Should the Committee find the Bill desirable, this might be a better proposal for the Bill’s wording. In this regard, she confirmed with the Committee that a private Member’s proposal works the same as an executive proposal. The wording of the Bill was not for the consideration of the Committee currently. However, the policy proposal was. Did they want to restrict the ban on cosmetics testing on animals? If this was the case, the Committee could adopt the motion of desirability. Anything that needed amendment could be done after this process. For example, it could be easy to add exceptions, as the Bill currently had one provision to make them. The Department had also asked for a different process, and Adv Van der Merwe said that would be easy to do if the Department worked with the Committee on implementing this process.

The Chairperson said they should consider the recommendations from legal services, and the secretary must note them. The Committee would engage further on the matter and see how best to proceed with the desirability of the Bill.

The meeting was adjourned.