Climate Change Bill: consideration of public submissions

Meeting report

The Committee Secretary informed Members that the Chairperson would not be present at the meeting due to a bout of illness. As such, she called for Members to nominate a candidate to act as Chairperson for the meeting.

Ms H Winkler (DA) nominated Mr N Singh (IFP) to act as Chairperson.

Ms T Mchunu (ANC) nominated Ms N Gantsho (ANC) to act as Chairperson.

Given Mr Singh’s challenges with network connectivity, Ms Gantsho was nominated as the Acting Chairperson of the meeting.

The Acting Chairperson asked if any apologies were recorded.

The Committee Secretary indicated that the Committee received an apology from the Minister, who was attending a Cabinet meeting, as well as the Chairperson.

Ms Nomfundo Tshabalala, Director-General, DFFE, registered a written apology for the absence of the Deputy Minister (DM).

Mr Singh asked if both the Minister and DM had the chance to look through the Department’s presentation document.

Ms Tshabalala confirmed that both the Minister and DM had gone through the presentation and granted its approval.

The Acting Chairperson, thereafter, requested a mover for the adoption of the agenda.

Mr Singh moved for the adoption of the agenda.

Ms Winkler seconded the mover for the adoption of the agenda.

After that, the Acting Chairperson handed over to the department for its presentation.

Overview by the Director-General

Ms Tshabalala explained that the CCB was drafted to enable the alignment of the government’s policies and influence its climate change response. Doing so would ensure that South Africa transitions to a low-carbon and climate-resilient economy. The Bill also seeks to strengthen the coordination between national sector departments and also provide a policy setting and decision-making to enable South Africa to meet its commitments for the Nationally Determined Contributions (NDCs).

The Committee conducted physical and virtual hearings on the Bill from September 2022 to July 2023. 101 substantive written submissions and over 1000 composite emails from Dear South Africa were registered by the Committee.

The presentation summarised the comments and the responses that the department has processed. A comprehensive comments document, which records all comments, together with the responses, had also been submitted to the Committee.

There are three parts to the document, she said: Part A, which deals with the oral and written comments containing the recommended amendments; Part B, which deals with the oral and written comments containing no recommended amendments to the Bill; and Part C, which includes comments related to other stakeholders (other government department, municipalities, and Parliament).

Summary of the oral and written responses received on the CCB

The Committee was taken through a detailed document covering responses to various clauses of the CCB by Mr Tlou Ramaru (Policy Analyst: DFFE). Please see attached for the detailed responses.

(See Presentation)

Following the conclusion of the presentation the Chairperson opened the floor for discussion.

Discussion

Ms Winkler indicated that neither Clause 21 nor 22 (which speak to the sectoral emissions’ targets and the fact that the Minister may vary the targets of sectors and sub-sectors) made mention of how the sectoral emissions’ targets were aligned to the Paris Agreement commitments nor the objectives of the Intergovernmental Panel on Climate Change (IPCC), in terms of limiting the country’s warming to below 2 and 1.5 degrees celsius by 2025. They also did not indicate how the targets were aligned with the net-zero carbon emissions for 2050, and whether this (net-zero carbon emissions) would be used as a reference point when plotting the targets for the different sectors.

After, she reminded the Department that there was a submission made for the establishment of a separate scientific body to inform the work of the Presidential Climate Commission (PCC). This will be necessary, she argued, as climate change affects every single aspect of the government, and the implementation of climate initiatives is cross-cutting across the government. The body could monitor the government’s work on the climate change response.

Touching on the penalties and offences listed under Clause 32, she asked what would happen if an individual or an entity fails to implement or report on an already submitted mitigation plan at the requested periods.

After noting that Clause 31 referred to both the Promotion of Access to Information Act (PAIA) and the Protection of Personal Information Act (POPIA), she questioned how ordinary South Africans would be able to obtain data on the progress of the government’s implementation of the climate targets, given the difficulties of doing so through PAIA. All South Africans, she felt, had a right to access this data.

Referring to Clauses 8 and 9 in Chapter B (where a submission was made requesting for the establishment of an intergovernmental technical structural committee by the Provincial Forum on Climate Change), she asked how the department would enforce provisions of the Bill at the various levels of the government without a body that deals with issues relating to technical capacity. Establishing such a technical structural committee, she said, would assist in building the capacity of the provinces and municipalities, ensuring that they can implement the goals of the Bill.

She then asked the Department to elaborate on its plan to capacitate and empower the different organs of the state, as well as provide the support and oversight to ensure that they implement the country’s climate goals.

Mr Jongikhaya Witi, Chief Director: Climate Change Monitoring and Evaluation, DFFE, responding to the question on the sectoral emissions’ targets, explained that they are instruments intended to support the implementation of and adherence to the department’s targets, as prescribed by the Paris Agreement.

Recently, the Department has proposed changing the text of the National Greenhouse Gas Emissions Trajectory, so that it refers to the current NDC targets that have been set, he said. The NDC is, in fact, compatible with both the 2 degrees celsius goal, in terms of the Paris Agreement, and the 1.5 degree celsius, in line with the IPCC report. He confirmed that the sectoral emission targets will be the instruments used to ensure that the country complies with the Paris Agreement and IPCC.

Referring to the question on what would happen if an individual or an entity fails to implement or report on an already submitted mitigation plan at the different requested periods, he said that the mitigation plans are intended to support the implementation of carbon budgets – thus, the two instruments are linked. The regulations currently in development, he continued, address the issue of non-reporting, the instruments and the extent to which the mitigation plans are assisting companies meet their carbon budgets. In this way, the department is avoiding applying double penalties on individuals or companies.

Mr Ramaru confirmed that all the instruments in the Bill are aligned with the international commitment that the country has made.

Regarding the suggestion that an intergovernmental technical structural committee be established, he reminded the Committee that before the drafting of the Bill, an inter-Ministerial committee (IMC) was established and operational. One of the points it considered was whether the normal government structures, such as the Cabinet and its clusters, would apply in terms of the implementation of this programme or that provision be made in the Bill for a standing IMC to be established.

In response to the recommendation of the establishment of a separate scientific body to inform the work of the PCC, it was made clear in one of the clauses that the PCC must establish technical committees with different expertise, to ensure that the advice it receives is scientifically-based.

On the question related to how the department would enforce provisions of the Bill at the various levels of the government without a body that deals with technical capacity, he highlighted that Clause 94 states that the municipal forum on climate change may establish an intergovernmental technical support structure at a local level. Further, a provincial forum may also establish a technical support structure.

In addition, he indicated that the department has been supporting the sectors, the provinces, and local municipalities to develop the various planning instruments, and will continue to do so. With the adoption of the Bill, he believed that greater focus would be placed on issues relating to climate change across all levels of the government. All nine provinces, he continued, have received support to develop their implementation response plans, including the districts, and their internal capacities.

Mr Sibusiso Kobese, Director: Law Reform, DFFE, added to the previous response related to the question of how the Department would enforce provisions of the Bill at the various levels of the government without a body that deals with technical capacity. He stated that the penalties are addressed in the proposed amendments to Clause 32 (1)(d) of the Bill. However, the Department may need to refine the wording of the amendments, in consultation with the State Law Advisor, to ensure that Clause 32 is aligned with Clause 27.

Touching on the concern raised on the difficulties of requesting information through the PAIA Act, he said that the Department measured the current proposals in the Bill against the Promotion of Access to Justice Act (PAJA), National Environment Act (NEMA), and the Specific Environmental Management Acts (SEMAs), and in the Department’s view, the Bill was in line with all three acts.

He felt that greater emphasis should be placed on better educating the public on the PAIA and PAJA Acts. For instance, most members of the public are not aware that only certain information is confidential or protected by PAIA, while other information is readily available –  as it must be availed by the government without the need for an explanation, he explained. Most of the information that is referred to in the Bill should be readily available without an application.

Ms Tshabalala underlined the importance of retaining the independence of the PCC as a body. To do so, the department, in Clause 10, has proposed that the PCC be established as a statutory body that has full legal capacity – currently, it acts as an advisory body.

She agreed that all nine provinces, including districts, have received support to develop their implementation response plans and their internal capacities. In addition, in line with Section 154 of the Systems Act, the department has a legal obligation to support the local government sphere in meeting the climate targets.

Ms Winkler expressed her concern about the fact that the legislation only states that the provinces or local municipalities ‘may’ enlist the support of a technical task team. She called for this to be changed to ‘must’. Given the inability of local municipalities to meet their core service delivery objectives, this will be pivotal, she stressed. She asked if there was a way, from a legal standing, to include a provision in the Bill that requires it to be mandatory for local municipalities to implement or adopt a technical task team to assist with capacitation and training expertise.

While she was pleased with the response given about the PCC, she was concerned that the Bill also states that the PCC ‘may’ establish a technical task team. As with provinces and local municipalities, she believed that the PCC ‘must’ establish a technical task team to inform its decision-making, so that its decisions are not only based on politics, but science as well.

She asked for information on sectoral plans and how far the government is to meeting its climate commitments. Furthermore, she asked whether it should not be incumbent upon companies or entities to publish the data and make it publicly available.

Mr Kobose highlighted that earlier the department clarified that the Intergovernmental Relations Framework Act (IRFA) states that provinces and municipalities ‘may’ establish technical support committees. Due to this provision, the department could not change the wording from ‘may’ to ‘must’, as requested, in the Bill, as it would be in conflict with the IRFA. The ideal solution, he believed, was to affect amendments in the IRFA first.

On the recommendation that the Bill prescribe that the PCC must establish a technical task team, he said that one of the clauses in the Bill enabled the PCC to set up committees and sub-committees. For that specific clause, the Department might consider changing the wording from ‘may’ to ‘must’, to make it compulsory for the PCC to establish the committees and subcommittees to complete its work.

In response to the question for the department to provide information on the sectoral plans and how far the government was in meeting the commitments, he repeated that much of the government information is readily available. In certain clauses presented, it provides that the Minister and authorities must make sure that the sectoral plans are publicly available.

While sectoral plans must be made available to the public, confidential information specific to individuals and entities cannot be disclosed unless consent from the information holder is obtained, he added.

Ms Vanessa Bendeman, Deputy Director-General: Regulatory Compliance and Sector Compliance, DFFE, explained that Section 15 of PAIA makes provision for an entity to provide a list of information that is voluntarily disclosed and automatically available. There is a provision for certain information that will be provided to the PCC to be included in that list. Whichever entity or company submits the information will be made aware that it will automatically be a part of the Section 15 list.

Moreover, the Department will need to ensure that PAJA requirements are met, with regard to information that is not on the Section 15 List, she said. Data provided by the companies will be checked to see if the information will be part of the automatically available information. Companies, she added, will need to detail what information they consider to be commercially sensitive. Regardless, PAIA makes provision to assess whether the information is commercially sensitive.

Ms Winkler asked why the Section 15 List could not be available to the public without having to request it, allowing interested members of the public to follow the progress on the implementation of climate mitigation plans.

Ms A Weber (DA) felt that it did not assist the Department to entrust the execution of the climate mitigation plans to the local municipalities if they did not have the necessary capacity to carry them out. She asked if the word ‘may’ could be changed to something else which will require municipalities to establish the technical task teams.

Ms Tshabalala advised that some of the matters addressed by the Committee could be considered by the parliamentary legal team.

Ms Bendeman assured Members that the department will look into the wording and how it could be addressed without conflicting with other legislation.

In response to the question on why the Section 15 List could not be available to the public without having to request it, she explained that the Section 15 List stipulated information that is automatically available, which meant that a PAIA process was not required to obtain the information.

Mr Singh asked if the department had calculated the financial impact of implementing the provisions of the Bill and if so, if it could share it with the Committee at some stage.

Ms Tshabalala indicated that the Department has been in consultations with the National Treasury to ensure that the Bill is adequately funded. However, at this stage, it could not provide a detailed breakdown of the costing of the Bill.

Mr Maesela Kekana, Deputy Director-General: Climate Change and Air Quality Management, DFFE, reminded the Committee that the local municipalities and provinces had called for the drafting of the Bill due to the challenges they have had in coordinating their response to climate change.

Ms Bendeman said that at this stage the department would not be able to indicate what information will be published on the DFFE website. The Section 15 List will be determined by the PCC. 

The Acting Chairperson thanked the officials for their responses to the questions posed by the Committee.

The meeting was adjourned.