Plant Health (Phytosanitary) Bill: DALRRD, Parliamentary Legal Advisor & Committee Content Advisor input

Meeting report

The Chairperson welcomed everyone and said that the Committee will be receiving a briefing from the Department of Agriculture, Land Reform and Rural Development (DALRRD) on the Plant Health (Phytosanitary) Bill [B14-2021]. Thereafter, the Committee Content Advisors and the Parliamentary Legal Services (PLS) will have an opportunity to provide input.

DALRRD on the Plant Health (Phytosanitary) Bill [B14-2021]

Dr Julian Jaftha, Acting Deputy Director-General: Agricultural Production, Biosecurity and National Resource Management, Department of Agriculture, Land Reform and Rural Development (DALRRD), said that today's presentation was to update the Committee on what the Plant Health Bill seeks to achieve.

Key concepts/definitions

Phytosanitary measures refer to official measures, regulations or procedures aimed at preventing the introduction and/or spread of quarantine pests, and limiting the economic impact of regulated non-quarantine pests.

A quarantine pest refers to a pest of potential economic importance to the area endangered by it and was not yet present there, or present but not widely distributed and being officially controlled.

A regulated pest referred to a quarantine pest, or a regulated non-quarantine pest.

South Africa was a signatory member of the World Trade Organisation Agreement on the Application of Sanitary & Phytosanitary Measures (WTO-SPS Agreement), and the International Plant Protection Convention (IPPC).

The WTO-SPS agreement was important because it aimed to ensure that members apply the rules or phytosanitary measures that were science-based, non-discriminatory, and not trade-restrictive. The IPPC was also a standard-setting body that informs the phytosanitary measures.

Problem Statement

The introduction and spread of potentially damaging pests in South Africa could significantly negatively impact South African biosecurity, agricultural production, food security and market access. Deficiencies of the existing Agricultural Pests Act 36 of 1983 were that it:

• Predated the Constitution of the Republic of South Africa;
• Predated the IPPC, 1997;
• Definitions were not aligned with the IPPC standards;
• Made no provision for the National Plant Protection Organisation of SA (NPPOZA), in accordance with the IPPC (Article IV), and its functions; and
• Made no provision for export control, re-export and in-transit control (emphasis was on import and national control).

The importance of export control came from the need to ensure that when exporting goods, plants and products, that it reduces the number of interceptions within the territories of the trading partners. It would give the trading partners better insurance that the products were good, contributing to safe and fair international trade and maintaining those markets. It also helped to generate foreign revenue.

Timeline for processing the Plant Health Bill

Dr Jaftha said that the Plant Health Bill had been introduced in the National Assembly in July 2021, and referred to this Committee. The first briefing to the Committee was on 19 May 2023.

(Please see presentation for further details)

Proposed repeal of Agricultural Pests Act 36 of 1983

The Agricultural Pests Act provided for measures by which agricultural pests could be prevented and combated. The Act also included regulations on the import of controlled goods to prevent the introduction of plant pests and diseases, subject to import permits. There was also the importation of controlled goods without a permit, based on the low-risk goods, but subject to stipulated requirements.

It was proposed that the whole Agricultural Pests Act should be repealed, as the gaps would be addressed through the amendments to the Plant Health Bill.

(Please see presentation for further details)

Objective of the Bill

The objective of the Plant Health Bill was to provide for phytosanitary measures to prevent the introduction, establishment and spread of regulated pests to safeguard South African Agriculture and plant natural resources. In turn, this would support:

• Safe and fair international and domestic trade;
• Maintenance of current export markets and the establishment of new markets;
• Crop production/food security programmes;
• Economic growth and development; and
• Job creation.

In summary, the Plant Health Bill provides for definitions; establishment of the NPPOZA; import control; national control; export control, and re-export control.

Clause-by-clause analysis

Section one (definitions): In this section, certain terms and expressions were defined so that the contents of the Plant Health Bill may be more clear.

Section two (responsibility of the administration of the Act): The Minister was responsible for the administration of the Act.

Section three (power of the Minister): This section provides for the power of the Minister to make regulations and control measures to further the objectives of the Act.

Section four (prescribing of the control measures): The Minister may prescribe control measures which must be complied with by users of land to achieve the objectives of the Plant Health Bill. These control measures may include quarantine measures and restriction of movements of infested material.

Section five (designation of the executive officer): This provides for the designation of the executive officer, wherein the Minister must designate the director in the Department responsible for phytosanitary measures as the executive officer.

Section six (power of the executive officer): This section empowers an executive officer to instruct a user of land by written order to comply with a control measure in respect of a quarantine area or regulated area determined in that order. These powers include confiscating and destroying of the controlled goods.

Section seven (order with regard to land): This provides for orders with regard to land which must be served in the prescribed manner. The order may include quarantining areas, restricting movement, and that something must be destroyed.

Section eight (power of entry, search, inspection and seizure): This provides that an authorised person may, on the authority of a warrant, enter, search and inspect any land to combat pests or to carry out a control measure.

Sections nine, 10 and 11 (establishment of the NPPOZA): These sections provide for the establishment of the NPPO and the composition of the NPPOZA, and the functions of the NPPOZA in accordance with the IPPC.

Section 12 (import regulations): This section provides for the import regulations to prevent the introduction and spread of regulated pests.

Section 13 (import of regulated articles): This section provides that regulated articles may be imported only on the authority of a permit and under certain conditions. The Minister may make provision for certain exceptions by notice in the Gazette.

Section 14 (export of regulated articles): This section sets out the conditions for exporting regulated articles. Therefore, a person exporting shall comply with the import requirements of the importing country.

Section 15 (re-export): This section provides provisions for re-exporting consignments imported into the Republic for further export to another country.

Section 16 (In-Transit): This section sets out the requirements and/or conditions that should be adhered to by a person transiting a consignment of regulated articles through the Republic to another country.

Section 17 (declaration of regulated pests): This section provides for conditions under which the executive officer may declare regulated pests (quarantine pests or regulated non-quarantine pests).

Section 18 (compulsory notification of quarantine pest): This section provides provisions for compulsory notification of the presence of certain pests by a user of land. It requires that individuals report any occurrence of a quarantine or suspicious occurrence of a quarantine pest.

Sections 19, 20 and 21 (declaration of quarantine areas and pests-free areas, places and sites of production: These sections set out conditions under which the executive officer may declare quarantine areas on the basis of pest infestation. Further, the executive officer may declare certain areas as pest-free areas, or pest-free places and sites of production.

Section 22 (assignment of power): This section gives the Minister the power to assign certain powers conferred upon him or her, or to assign any duty imposed upon him or her by the Act, to a juristic person or organ of state.

Section 28 (offences and penalties): This section prescribes penalties for certain offences to any person who violates the provisions of this Act and related regulations.

Section 30 (regulations): The Minister may make regulations regarding certain matters.

Section 31 (compensation): This section provides for compensation by the Minister regarding certain matters.

Section 32 (assistance and cooperation): This section provides for assistance and cooperation to the executive officer by different authorities and parties in order for the executive officer to perform his or her functions.

Departments/stakeholders consulted

The following departments and stakeholders had been consulted:

• National departments, such as the then Department of Trade and Industry, and the Department of Environmental Affairs.
• State Law Adviser.
• Provincial Departments of Agriculture.
• Perishable Products Export Control Board (PPECB).
• Research institutes.
• South African Local Government Association (SALGA).
• National House of Traditional Leaders.
• Agricultural industry: deciduous, citrus and sub-tropical industry, etc.
• South African National Seed Organisation (SANSOR)
• Grain SA
• Importers and exporters
• Trading partners
• General public.

Financial implications

The implementation of the Plant Health Bill had no additional implications in terms of human and financial resources, since the NPPOZA had already been established and was funded. Key activities such as surveillance and response would be catered to under the current medium-term expenditure framework (MTEF) allocation and would receive further prioritisation over multiple MTEFs. The branch had received an additional MTEF allocation (2020 to 2023) to respond to biosecurity threats, strengthen inspection services at points of entry, and revitalise laboratories and quarantine stations. Reprioritisation of allocations continued to support the phytosanitary system.

He said that he hoped the Committee would consider the Plant Health Bill. He said there were other technical people available for any questions the Committee may have.

Input by Committee Content Advisor

Ms Nokuzola Mgxashe, Committee Content Advisor: Agriculture, said there were no specific issues involving policy matters. An existing policy on plant health had already been approved in 2014. The questions were not policy-related, but more on the implementation side.

At this stage, the specific comments on each clause, which were mainly editorial in nature, could be raised when the Committee was processing the Plant Health Bill. Those comments would relate to communication, where notices were published only in the Government Gazette.

She said this was a Section 76 bill and would affect this kind of land user. One of the constraints in the social economic impact assessment (SEIA) report had been budgetary constraints and inadequate resources. Dr Jaftha had indicated that there would not be any financial challenges, as it was reprioritising. The NPPO already existed, and would be legally established through the Plant Health Bill. It would bear the cost of implementing the phytosanitary measures, so there might be additional costs in this respect.

The existing legislation did not necessarily cover exports. In 2015, the SEIA report indicated that an additional R15m per annum would be required for the NPPO to execute its functions as envisaged in the Plant Health Bill, and mandated in the IPPC, to which the country was a signatory. It would be helpful for the DALRRD to inform the Committee if there was enough budget to carry out the functions. If not, how would it generate additional funding for the Plant Health Bill to be effectively implemented? Currently, there were concerns regarding the small budget for biosecurity over the medium term of R4.5m per annum, which was far less than the R15m that was required.

Some of the functions of the NPPO that would be established, was to conduct pest risk analysis, and in the SEIA report, the DALRRD had indicated that the required skills for the pest risk analysis were scarce. How was the DALRRD planning to address this issue to ensure that the Plant Health Bill and its policy were effectively implemented? Was there enough capacity when it came to border management for all these imports, exports, in-transit, re-export and phytosanitary certificates? Were there enough resources for inspection at the ports of entry like land, sea and air? This legislation was long overdue. South Africa was mandated as a signatory to the WTO-SPS agreement and the Convention, to have this legislation and the NPPO that would be established.

Dr Tshililo Manenzhe, Committee Content Advisor, said he had no further input.

Discussion

Dr M Tlhape (ANC) agreed that this kind of legislation was long overdue. There were major questions about phytosanitary issues, and they had to be dealt with. She had no issues with the presentation, but would find comfort if responses came from the DALRRD on the questions raised by Ms Mgxashe around capacity and skills. What would make the budgeted funds insufficient? She would be satisfied with responses to these questions.

Mr N Masipa (DA) said the International Treaty on Plant Genetic Resources for Food and Agriculture had been signed and passed. He asked whether this had been considered when signing the treaty. The country was battling with phytosanitary issued, especially when it came to animals. The country was managing well on the plant side, but legislation would enhance the DALRRD's ability to ensure pests were controlled properly and timeously.

Ms T Breedt (FF+) said that Ms Mgxashe had covered everything well and raised very important matters. When dealing with bills, it was important to look at the implementation, the necessary personnel that would be used, and the resources. It was a step in the right direction if these questions were answered.

DALRRD's response

Dr Jaftha thanked the Committee for their input. It showed the evidence assessment had been detailed. The 2015 SEIA was updated in 2020, and had referred to financial implications. There had been additional funding for the NPPO to assist with its functions. There was a detailed breakdown which could be provided to the Committee. The section should have been updated when the SEIA was submitted to the Presidency. At the moment, the DALRRD was not asking for anything additional. He said that when engaging with other developed countries, since this field was so complex, these countries had complained about resources. One needed highly specialised individuals to assist.

In the past 18 months, many vacancies in the NPPO have been filled. There have been key collaborations with other departments, such as the Department of Higher Education, Science and Innovation, and universities, to strengthen the field of biosecurity research, which would support the capacity in terms of pest risk analysis. There were ongoing attempts to strengthen capacity, not only for domestic pest assessment, but also the capacity to influence the standards within the standardisation bodies. These bodies informed the phytosanitary measures. It was important to ensure that no standards were developed that were beyond what was required to ensure an adequate level of protection.

The DALRRD would share with the Committee where it was in terms of the budget and other measures it had implemented to strengthen its capacity. He appreciated Dr Tlhape's comment that this was overdue legislation. The DALRRD really hoped that this Plant Health Bill could go through during this administration. The absence of legal force to manage exports was creating a problem. It was being done at the moment, but if somebody questioned the legal force behind it, they would succeed. The current legislation did not provide for export control. It was not that it was not doing it, but it was an extension beyond what was provided for within the legislation.

He said he understood Mr Masipa’s question to be around what the link was between the treaty versus the Plant Health Bill. The treaty dealt with the resources overall, and could include kinds of plants like fruits and vegetables. It had the intention to provide for the conservation of biological diversity. The Plant Health Bill supported the conservation of biological diversity by ensuring that biological diversity was not wiped out by threats such as plant pests and diseases. There was this co-support, but there was no contradiction between the two. There was no obligation under the treaty that affected the Plant Health Bill at the moment.

Mr Jan Hendrik Venter, Director: Plant Health Early Warning System, DALRRD, said that the Border Management Authority (BMA) had been in action since April 2023, and it also dealt with the import of plants and plant products. It was currently using the Agricultural Pests Act, and authority was provided to them in terms of the Plant Health Bill. There were already 245 border guards across the borderline and sea and airports that would be able to execute functions in terms of imports.

The existing inspection services were already dealing with exports. South Africa had moved to an e-certification system, which was a much more secure system and was already budgeted and paid for. This provided a fraud-proof certificate which was a large step forward in managing the integrity and need for export certification. The existing inspection services had adequate personnel to continue with their national control. Where there was a need for additional resources to be provided could be assessed in consultation with the BMA. This impacted the budget, but Dr Jaftha had indicated that the budget had been ring-fenced for the DALRRD. The budget was now adequate.

Paleontologists and entomologists were scarce skills. They fall under the occupational dispensation allowance for the DALRRD, which had managed to keep most of its scientists. Most of the vacancies had been filled now, and it currently did not need to establish new posts. It was following the internships of the DALRRD. It gave students who came into the marketplace an opportunity to gain some experience. This had been expanded to the University of Pretoria, to give experience to an additional three interns. There were currently five interns per year, which gave a better turnaround time in case an experienced scientist resigned or retired.

Inputs by Parliamentary Legal Service

Mr Lehotlo Moshokoa, Parliamentary Legal Service (PLS), said a week ago, it had distributed a tagging opinion which the PLS division prepared. It had commented on the Plant Health Bill as it was introduced the first time. The Plant Health Bill was constitutionally and procedurally in order within the ambit of the law. At this stage, there were no issues to address regarding the legality of the Plant Health Bill. The PLS would form part of the deliberations with the Committee to provide assistance when legal issues arose.

The Chairperson asked Mr Siviwe Njikela, Parliamentary Legal Advisor, if he had anything to add.

Mr Njikela said that Mr Moshokoa had covered him well. The tagging opinion had been circulated. It was in line with what the Office of Chief State Law Advisor had said. This was a section 76 Bill, and he was comfortable that this was the correct tagging. If legal matters arose, the PLS would be here for deliberation for interventions when needed.

The Chairperson said the Committee would look into the Plant Health Bill with the management committee, for further processing.

The meeting was adjourned.