National Veld and Forest Fire Amendment Bill: Committee staff briefing on public submissions received

Meeting report

National Veld and Forest Fire Amendment Bill [B 24B - 2021]: Summary of submissions

Ms Jeanie le Roux, Committee Researcher, said the purpose of the brief was to provide a summary of the comments and recommendations received through submissions on the National Veld and Forest Fire Amendment Bill [B 24B - 2021], in preparation for the deliberations on the submissions by the Committee.

A total of three submissions on the National Veld and Forest Fire Amendment Bill were received from the following stakeholders:

• Congress of South African Trade Unions (COSATU);
• The Western Cape Government; and
• The Lions River Fire Protection Association (FPA)

Since the amendments proposed by the Bill affected FPAs in various ways, it was noteworthy that only one FPA had submitted comments on the Bill. The Department of Forestry, Fisheries and Environment (DFFE) could be asked for a list of all FPAs that were consulted on the Bill, as well as whether all operational FPAs had been notified of the opportunity to submit comments on the Bill.

Key matters raised in the submissions included law enforcement powers granted to traditional leaders, the requirements and procedures involved in establishing FPAs, the requirements for fire breaks, the standardisation of fire risk categories, and the issuing of warnings and communication on fire dangers.

Some of the content of the submissions appeared to have been submitted on earlier versions of the Bill. In some of the submissions, clauses referenced concerning matters being raised, did not appear to correlate with the corresponding clauses on those matters in the version of the Bill. To avoid confusion, both the referenced clause (contained in the submissions) and the correct corresponding clause in the current version of the Bill, were provided in the summary.

Mr Jakobus Jooste, Committee Content Adviser, said that the National Veld and Forest Fire Amendment Bill was a section 75 Bill, and would not be processed through provinces. The submissions requested by the Committee would be forwarded to the DFFE. There was no need for provincial engagements and consultations on the Bill. The process would continue only between the DFFE and the Committee.

[See attached submissions for details]

Time limitations on the processing of legislation

Mr Jooste said the presentation had come about as a result of a letter the Chairperson had received from the Ministry of the Department of Mineral Resources and Energy (DMRE) indicating that the Electricity Regulation Amendment Bill had been submitted to Parliament for consideration. The communication was confusing since such a letter had not been sent to the Committee before. Normally, a Bill would be referred to the Committee through the House after the Bill had been tagged as either a section 75 or section 76 Bill. Usually, the National Assembly would start the process with consultations on the Bill. The National Assembly would then refer the Bill to the National Council of Provinces (NCOP), and the NCOP would then assign the Bill to the relevant Committee.

He said that in addition to being tasked with finding out the reason for the letter, he was also tasked with discussing the Electricity Regulation Amendment Bill and the way forward for the Committee.

The NCOP had clarified that the Electricity Regulation Amendment Bill had just been introduced in Parliament and had not been tagged yet. It was further explained that the reason behind the DMRE’s communication was merely for the informative purpose of introducing the Bill, and to alert the Committee that the Bill had been sent to Parliament.

The time period that the Committee had to deal with the Electricity Regulation Amendment Bill and other important Bills was a critical concern, and there were a couple of steps that the Committee had to consider in dealing with the legislation as it moved towards the end of the sixth parliamentary term.

A frequent topic raised when departments presented their budgets and annual performance plans (APPs) was the number of Bills that departments wished to introduce to Parliament in their current term, and the fact that those Bills had not been introduced to Parliament or made it far into the parliamentary processes in its current term.

Looking at the schedule of the Committee, he said that:

• Term two was fully allocated, and five meetings were still to take place. The Committee was currently processing one Section 75 Bill and one Section 76 Bill which had not yet reached the mandating phase. Both Bills would not be completed by the end of the term and would be completed in the third term.
• Term three commenced on 5 September, and allowed for four weeks of engagements. However, the NCOP had listed activities during that period. All four weeks in the third term were unlikely to be available for meetings. There was room for only three to four meetings.
• Term four had eight weeks, but included the listed plans of the NCOP. There was room for only six to eight meetings.
• There was no indication of how much time would be available in 2024, but it was unlikely to be more than eight weeks.

The Committee was required to plan for the most effective manner in which the remaining 25 meetings (considering only Tuesdays were available) would be utilised. The Parliamentary Monitoring Group (PMG) had listed 13 Bills that had been submitted to the National Assembly. Without elevating some Bills above the others, he highlighted six section 76 Bills and the recently introduced Electricity Regulation Amendment Bill as Bills that needed a significant amount of public engagement to prevent any issue regarding the due diligence performed on public participation. He presumed that a six-week cycle would not be enough to process each of the seven Bills.

The Electricity Regulation Amendment Bill was important for implementing the numerous State of the Nation Address (SONA) commitments made in previous years. It revolved around the national energy transmission system, independent energy supply and purchasing, matters related to the restructuring of Eskom, and broadening the number of individuals or companies that could become energy suppliers, etc. It was possible that there would be a significant push for and against the publishing of the Bill by the end of 2023.

Highlighting the other legislative processing challenges, he said there were also risks involved in calling for public participation during the December/January recess period. In theory, there were about 25 weeks available, which allowed for the processing of four Section 76 Bills without running concurrent processes.

Referring to the immediate needs of the Committee, he said it needed a clear indication of the estimated completion time of Bills within the National Assembly committees. The Secretary of the Committee had developed a letter requesting the secretaries of other National Assembly committees to indicate which Bills were close to being finalised and referred to the Committee. The Committee needed to liaise with the provinces to determine each province’s programme and capacity for processing Bills. The Committee’s leadership needed to consider liaising with the NCOP Presiding Officers to determine whether there was a need to further engage their National Assembly counterparts on the completion of pending legislation, or alternatively to provide a cut-off date when the Committee would stop processing new Bills.

There was a concern about the National Assembly taking too long to finalise Bills and subsequently rushing them, resulting in poor consultation on those Bills. Legal action was subsequently taken and directed specifically at the NCOP and not the National Assembly, where Bills had sat for years before they were rushed at the end of the term. There could be a need to communicate that Bills sitting in the National Assembly could not, from a certain point, be processed by the NCOP in a manner that allowed for fair and efficient/sufficient public engagements.

[See the attached presentation for details]

Discussion

The Chairperson asked the parliamentary legal advisers and/or state law advisers in attendance to give their legal opinion on the National Veld and Forest Fire Amendment Bill.

Ms C Labuschagne (DA, Western Cape) said she was unsure whether the parliamentary legal advisers or state law advisers could express a legal opinion on the National Veld and Forest Fire Amendment Bill, as she presumed that they were not directly involved with the Bill once it had been introduced in Parliament. Typically, various committees and departments liaised with the parliamentary legal advisers and state law advisers on the constitutionality of a Bill. It was best for the Committee to seek the legal opinion of the NCOP. However, she admitted that she could be mistaken.

She said she had repeatedly raised the issues surrounding the processing of Bills in the NCOP’s Whip meeting and the programming meeting since 2022. She had raised concerns over the number of bills that needed to be finalised, the time spent processing each Bill, and the lengthy process of taking the Bill to the provinces. She had previously requested that the NCOP select a cut-off date by when committees stopped processing Bills for public participation, and put in place other measures implemented in the Fifth Parliament. However, the matter was still an ongoing discussion yet to be finalised. She supported Mr Jooste’s recommendation of addressing the concerns raised with the Presiding officers. The Whips had already escalated the matter, and the Chairpersons of various committees also needed to follow suit so that a decision could be made.

While it was a bit late in the term, the NCOP needed to look at the issues surrounding the Mandating Act and the provinces processing the Section 76 Bills when they went out for public participation. The Committee was doing its part of public participation as the Constitution allowed for it. What then happened when the Bills went out to provinces while provinces were busy with their own public participation process? This had created some confusion which had never been resolved. Had the Electricity Regulation Amendment Bill been tagged and tabled?

The Chairperson said the Committee usually invited state law advisers, NCOP legal advisors and departmental legal teams when processing Bills, and it was unfortunate that they had not joined the meeting.

Ms W Ngwenya (ANC, Gauteng) asked if the Committee had invited stakeholders, through advertisements, to make submissions on the National Veld and Forest Fire Amendment Bill. If so, which media platforms were the advertisement made on, and did the invitation reach all the provinces? What was the status of the Section 76 Bills presented to provinces? Had provinces been briefed on the Bills, and were they monitored? How many provinces were yet to be briefed? Following the introduction of the section 76 Bills, was there a timeline for the Committee to finalise them?

Ms Labuschagne asked what the way forward was with the submissions received on the National Veld and Forest Fire Amendment Bill. Would the submissions be sent to the provinces?

Ms Verna Benjiman, Legal Adviser, KZN Legislature, asked for clarity on whether the National Veld and Forest Fire Amendment Bill was a section 75 or section 76 Bill. She said the KwaZulu-Natal (KZN) legislature was under the impression that the Bill was a section 76 Bill, based on the NCOP programming report. KZN had arranged a briefing engagement with the DFFE for the next day, as they believed that mandates would be required as per the Amendment Bill.

Responses

The Chairperson thanked Ms Benjiman for her input, because the Committee had heard the legal opinion on legal representatives from other provinces. She asked Mr Jooste if the National Veld and Forest Fire Amendment Bill was a section 76 Bill, or if he was referring to the Electricity Regulation Amendment Bill.

Mr Jooste said that advertisements for public input were handled by Mr Asgar Bawa, Secretary to the Committee. He confirmed that the Committee had called for public submissions on the Bill. Normally, a standard parliamentary procedure for advertising was followed, and it entailed a mix of media and online advertisements which reached all provinces. For the specific detail of which media outlets/platforms were used to call for submissions on the National Veld and Forest Fire Amendment Bill, Mr Bawa would be requested to clarify the matter to the Committee.

The provincial delegates present at the Committee meeting were briefed on the National Veld and Forest Fire Amendment Bill. From that point, the Bill followed a provincial scheduling process, a process which he was not involved in.

The Committee currently had one section 76 Bill to finalise. As per the parliamentary rules on processing a section 76 Bill, a committee had six weeks to finalise a Bill. However, a committee could apply for an exemption, which was usually granted. He presumed that Mr Bawa had applied for the extension, as it had almost become standard practice for the Committee to request an extension. However, an inquiry would be made. The extension waived the six-week rule, and allowed the Committee to finalise the Bill without prescribing a new deadline.

Regarding the section 75 process, submissions received would be communicated to the DFFE. A consultation process, including inputs and issues raised by the Committee, would commence. Provincial participation would not take place at that point, as the consultation process would be exclusively between the Committee and the DFFE. The DFFE would most likely be familiar with the issues and inputs raised from the Portfolio Committee meetings, and would be able to rapidly address the Committee’s concerns accordingly. The consultation process would continue until the Committee was satisfied that the DFFE had dealt with its concerns and considered its inputs.

The Chairperson said when the DFFE presented the National Veld and Forest Fire Amendment Bill, all provincial delegates were invited. The provincial delegates were then responsible for briefing their provinces on the Bill. If the delegates had not yet briefed the provinces, they were required to do so immediately. Delegates needed to check how far their provinces were in processing the Bill. When the time came to discuss the mandate, all provinces needed to be briefed by then.

Mr Jooste apologised for the confusion he had caused. He said the Electricity Regulation Amendment Bill had not yet been tagged. The online resources he had visited tagged the National Veld and Forest Fire Amendment Bill as a section 75 Bill. However, the Bill might have been originally tagged as a Section 75 Bill, and subsequently retagged as a Section 76 Bill. He would look into the matter and communicate with the relevant stakeholders.

Ms Labuschagne confirmed that the Bill was originally tagged as a section 75 Bill, but was subsequently retagged as a section 76 Bill at the programming meeting.

Mr Jooste apologised for his error, and said he had not cross-checked his information against the changes made to retag the Bill. He clarified that the Committee currently had two section 76 Bills to process.

The Chairperson said the KZN legislature should continue with its briefing engagement with the DFFE, as the Committee would soon request the submission of all the provincial mandates. Ms Le Roux and Mr Jooste had been invited to the Committee to highlight the limited time it had to process Bills. With the assistance of the Secretary to the Committee, she would prioritise only four significant Bills for the Committee to finalise. Other Bills would not be processed due to time constraints.

All Committee members were requested to set aside one week in their constituency leave to perform their oversight functions on provincial committees, or to attend a public hearing on the National Veld and Forest Fire Amendment Bill in their provinces. To benefit provinces, she would communicate with Mr Nyambi, House Chairperson for Committees, to allow for that.

Committee Matters

The Chairperson informed the Committee that Mr Bawa had not been able to attend the Committee meetings since January, as he was ill. Although he had attended some meetings, he was unable to communicate verbally. She requested the Committee to reach out, encourage and support him, as he was currently facing a difficult time.

The Committee considered and adopted the minutes of 9 May.

The meeting was adjourned.