National Forest and Fire Laws Amendment Bill: Briefing

Water and Sanitation

12 June 2001
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Meeting report

WATER AFFAIRS AND FORESTRY

WATER AFFAIRS AND FORESTRY PORTFOLIO COMMITTEE
13 June 2001
NATIONAL FOREST AND FIRE LAWS AMENDMENT BILL: BRIEFING

Chairperson: Ms Sonjica

Documents handed out
National Forest and Fire Laws Amendment Bill [B14-2001]
Guide to the National Forest and Fire Laws Amendment Bill (see Appendix)

SUMMARY
The Committee was briefed by the Department on the National Forest and Fire Laws Amendment Bill. This Bill seeks to amend two pieces of legislation, namely the National Forest Act 84 of 1998 and the National Veld and Forests Fire Act 101 of 1998. The Bill was introduced by the Minister to the National Council of the Provinces on 6 June 2001.

MINUTES
In the time since the two Acts were promulgated, and in the process of their implementation, it has emerged that:
-Certain amendments are necessary to accommodate and facilitate the process of restructuring the control of forests;
-The wording of certain provisions could lead to misinterpretation, uncertainty or confusion;
- The omission or introduction of certain words would help to create certainty of meaning and, in cases to remove anomalies.

Amended sections of the National Forests Act
Section 2 - Definitions
The definition of "State Land" is inadequate. It is felt to be necessary to insert another definition to allow for land transferred to communities to remain a state forest in terms of a joint management agreement. The definition of "trust fund" recognises that the boundaries of state forests have changed over time

Section 7
The present position is that only trees may be protected, but not their products or produce. The Bill seeks to prevent people from freely dealing in produce or products of protected species or trees. In most cases people are found in possession of planks and processed wood coming from natural forests. The section as it stands covers only cases where "trees" are cut, disturbed, removed or destroyed. It does not deal with cases where products of these trees are possessed, removed or transported.

Section 10
This section is amended in order to bring the numbering into conformity with the proposed amendment to section 7(1)

Section 15
The prohibition is extended to "possession" and now includes products from protected trees.

Section 18
The amendment proposed introduces an ability to apply for the protection of species, and corrects language redundancies. The definitions "natural or juristic" are redundant as both concepts are included in the definition of person, and are accordingly omitted in the proposed amendment. The omission of "any" is a consequential improvement to the wording of the clause. As it stands, section 18 does not provide for the protection of a species. There is no logical reason why an application cannot be made for such protection in view of the fact that the Minister may declare a species to be protected in terms of section 12(1)(b).

Section 23
"He or She" is moved to eliminate the repetition which appears in the three succeeding paragraphs. A new paragraph, named (d) is needed because section 23(2) prohibits anyone from engaging in any activity in a State forest without a licence. For this reason, a contractor referred to in section 24 (4)(b) will also need a licence.

This gives rise to three problems:
-The efficiency of the licence holders, which will include successful bidders in the restructuring process, would be undermined with licences having to be obtained for every contractor they deal with.
-The need for licences for every contractor will increase the department's administration burden and costs.
-. An additional licence fee will be charged when the original licence has already paid the licence fee in respect of the activity concerned. The contractor should not be expected to pay an additional fee, but as the Act now stands this would be necessary.

Section 24
The amendment to section 2(a) is to correct the numbering. The new subsection 3(e) acknowledges that the Minister may introduce tariffs gradually over time.

The words "or affects" in s. 24(9) should be removed. Mining in State forests is not encouraged. The Department of Mineral and Energy Affairs will not issue a mining licence until the Department of Water Affairs and Forestry has given its consent and set its conditions. This suggests that the provisions of the Act will most certainly "affect" the granting of such a licence. The words being removed have a limiting effect. The insertion is to prohibit any activity in a State forest unless that activity is licensed. The new subsection 9(b) is inserted because of what has been said above. The granting of a prospecting or mining licence should be subject to the principles set out in section 3.

Section 28
Subsection 1
The words "or derived from" are to be inserted in order to recognise that sales may lawfully take place outside the State forest from which the produce or products came.

Subsection 2
Section 28 deals with long-term forestry supply contracts. Once-off sales are not dealt with in this section, or in fact, anywhere else in the Act. This is an oversight as the Department regularly sells forest produce and forest products in its management of State forests. Section 28(2) is incompatible with this type of sale because it provides for termination of notice, which is clearly inappropriate for a once-off sale by public auction or otherwise. The inserted sub- paragraphs are intended to provide for these sales.

As it now stands, section 28(2) refers to only one auction by a party to the contract, that is termination upon five years notice. This could be read as excluding the other possible actions by the parties e.g. (a) termination upon notice of a greater or lesser period, (b) failure to deliver timber or forest produce. This is clearly not the intention of the legislation, as it would mean that those other actions or omissions could be said to be breaches of the agreement. The new paragraph is inserted to include all the actions or omissions referred to in subsection 5 provided, naturally, that they comply with the subsection.

Section 50
Subsection 1 seeks to clarify the situation of the reservation of State land for forestry. The section as it stands seeks to provide for the reservation for forestry "State land" which is not a State forest and then goes on, in the succeeding paragraphs, to refer to "State forests" and "trust forests." It is anomalous to state that the Minister may reserve the State land for forestry when the land is already State forest. Section 50 is amended by the substitution for subsection 1.

Section 54
Subsections 2 and 3 Subsection 2 of section 54 has caused confusion and has been misrepresented. It seems to refer to the publication in terms of subsection 1(a). But these regulations are only drafts. The amendment is intended to set out clearly that the regulations are only effective when they have been published in final form.

Section 55
This amendment is required to accommodate the restructuring of State forests. As the section now stands, it could be read as requiring successful bidders leasing State forests only to sell their products at tariff prices. The amendment seeks to correct this situation, by specifically referring to licensed activities.

Section 62
Subsection 2 is a consequential amendment arising from the proposed amendments in section 7 and 15 with respect to the product of trees.

Amended sections of National Veld and Forest Fires Act:
Section 5
Subsection 1(b) The amendment seeks to omit a portion of clause (b) in order to cater for a co-ordination of actions with adjoining fire protection associations even if a fire does not cross boundaries.

Subsection 1(f) The amendment to paragraph 1 provides for the situation where the chief fire officer of a municipality does not wish to perform the functions imposed on the fire protection officer in the fire protection association, which are imposed in terms of the Act. Compelling the chief fire officer to be a fire protection officer of an association, which is essentially voluntary, and to require him or her to perform duties over and above his or her employment duties, has no justification in law

Section 6
Subsection 2 The amendment is necessary because of the amendment to section 5, to bring the sections into conformity

Section 9
Subsection 4 It is felt that it is impractical to require a fire danger rating system to take into account all the factors listed in this section of the Act, as this may not always be possible. The amendment seeks to introduce the element of reasonableness in terms of the expectations of the fire danger rating system.

Discussion
Mr Sigwela (ANC) said that he had a problem with the provision of the Bill that a person may voluntarily be a member of the fire protection association. He suggested that every landowner should be a member of the fire protection association.

Ms Swanepoel replied that the voluntary nature of the association is emphasised because of freedom of association as it is stipulated in the Constitution. In terms of the Constitution one cannot compel people to be members of the association.

Mr Sigwela argued that in his opinion there was a conflict between communalism and individualism. He stated that in the rural areas, where he comes from, people have always perceived preventing/extinguishing fire as their collective responsibility and he felt that the proposed amendment may discourage this commitment.

Ms Sonjica, said that she believed that Mr Sigwela was trying to bring the attention of the Committee to the Batho Pele principle, which is the policy of government. However, the Department is introducing an element of professionalism in extinguishing fire.

Ms Swanepoel argued that the aim of the association is to bring in some resources and that the Bill does not do away with the traditional way in which fires have been fought. What the Bill seeks to do is to empower the communities.

Ms Ngwenya (ANC) wanted to know whether there is any provision dealing with safety measures in a case where a member of the fire protection association gets injured.

Mr Swanepoel informed the Committee that she was not sure whether compensation would be available, but she believed that the members of the association would be catered for.

The Chair said that it would be investigated if the Disaster Management Fund could assist in that regard.

Ms Ngwenya asked who will train the members of fire protection association.

Mr Swanepoel responded that in terms of the new demarcation the municipalities will assist with training.

Mr Phala (ANC) had a concern that some of the municipalities do not have the necessary resources, for example, the rural municipalities.

Mr Gininda (ANC) wanted to establish to what extent the amendments benefit those who are said to be historically disadvantaged. The amendments contained in the Bill are largely of a technical nature.

Ms Swanepoel replied that the Department is not reducing any policy that was introduced by the state.
Mr Masala asked whether the provinces can make regulations which cover communities, as far as fire fighting is concerned.

Adv. Muller (State Law Adviser) said that fire fighting can be regulated by the Provincial and Local governments.
The meeting was adjourned.

Appnedix
GUIDE TO THE NATIONAL FOREST AND FIRE LAWS AMENDMENT BILL
(As introduced in the National Assembly as a section 76(1) Bill; explanatory summary of Bill published in Government Gazette No. 22065 dated 16 February 2001)

(MINISTER OF WATER AFFAIRS AND FORESTRY)

INTRODUCTION

The National Forests Act, 1998 (Act 84 of 1998)
The National Forests Act, 1998 (Act 84 of 1998), ("the Act"), was promulgated in October 1998, and was put into effect in stages. All sections except section 18 have now been put into effect. Section 18 requires regulation and will be put into effect in the near future.

The passing of the Act represented a complete revision of the law as it existed before 1994, and introduced new approaches to forestry by the State. These included :

The reaping of the rewards of the commercial plantation forestry sector and the timber products industry was opened to all entrepreneurs;

Communities which live on land surrounding forests now had the opportunity to become stake-holders in the management of the forests;

A clear framework was provided for the restructuring of the state’s role in forestry, including its role in the future management of those forests formerly managed by the erstwhile homelands;

A recognition that the Department of Water Affairs and Forestry needs to play the role of regulator in forestry, rather than its traditional role as an industry participant; and

A recognition of the constitutional right to legislation that secures the conservation and sustainable development of resources.

The National Veld and Forests Fire Act, 1998 (Act 101 of 1998)
The National Veld and Forests Fire Act, 1998 (Act 101 of 1998) ("the Act"), was promulgated in November 1998. Chapters 2 and 3 are not yet in effect, because chapter 2 requires regulation, and chapter 3 compels the Minister to prepare a fire danger rating system for all parts of the country. Both of these matters are currently being dealt with by the department, and will be finalized as soon as possible after the passage of the Bill.

Former enactments dealing with veld and forests fires were inadequate for the prevention and combating of these fires, and did not treat all persons in a democratic manner. For example, they treated neighbours of differing means and resources inequitably, exposing the landowner of lesser means to an ever present threat of legal liability should a fire spread to the property of a neighbour of better means. Fire control committees and other protective structures were also not representative, and only a small number of these committees still exist. In addition, modern approaches to fire danger rating systems were not provided for.

The Act aims to remedy these shortcomings by recognising that the only way fires can be effectively prevented and combated is through the involvement of all interested parties. It provides for the creation of Fire Protection Associations, which are voluntary bodies of all landowners on a defined area, the formation and activities of which are based on democratic principles.

THE NECESSITY FOR THE PROPOSED AMENDMENTS EMBODIED IN THE BILL
In the time since the two Acts were promulgated and in the process of their implementation it has emerged that :
Certain amendments are necessary to accommodate and facilitate the process of restructuring the control of forests;

The wording of certain provisions could lead to misinterpretation, uncertainty or confusion; and

The omission or introduction of certain words would help to create certainty of meaning and, in cases, to remove anomalies.

THE AMENDMENTS
THE NATIONAL FORESTS ACT, 1998 (ACT 84 OF 1998)

Amendment of Section 2:

Definitions
The present definition of "State land "is :
"State land " means land which vests in the national or a provincial government –
including land held in trust by the Minister of Land Affairs or the Ingonyama referred to in the KwaZulu Ingonyama Trust Act, 1994 (KwaZulu Act No. 3 of 1994); but
excluding land belonging to a municipality; "

Reason for the amendment :
The definition of "State land" is not adequate. It is felt to be necessary to insert another definition to allow for land transferred to communities to remain a state forest in terms of a joint management agreement. Accordingly the underlined words below are added to allow for this.

Proposed definition of "State land "is :
"State land" means land which vests in the national or a provincial government –
including -
land held in trust by the Minister of Land Affairs or the Ingonyama referred to in the KwaZulu Ingonyama Trust Act 1994 (KwaZulu Act No. 3 of 1994) ; and

land which is not owned by the State but is managed by the national or a provincial government exclusively or jointly with the owner in terms of an agreement : but

excluding land belonging to a municipality;

Present definition of a "trust forest" is :
"trust forest" means State land which –

was reserved for forestry or declared as demarcated State forest or a similar status in terms of any previous forest legislation ; and

has at any time vested in –
the South African Development Trust established by section 4 of the Development and Trust Act, 1936 (Act No 18 of 1936)

the government of any area for which a legislative assembly was established in terms of the Self-governing Territories Constitution Act, 1971 (Act No. 21 of 1971); or

the governments of the former Republics of Transkei, Bophuthatswana, Venda and Ciskei,

despite any subsequent withdrawal, retraction or amendment of the status of the forest as reserved or demarcated, the boundaries being those which applied when the forest was first demarcated, or failing demarcation, first reserved for forestry ; (xxxvi)

Reason for the amendment :
The definition of "trust forest"recognises that the boundaries of state forests have changed over time.

Proposed amendment :
"trust forest" means State land which –

was reserved for forestry or declared as demarcated State forest or a similar status in terms of any previous forest legislation ; and

has at any time vested in –

the South African Development Trust established by section 4 of the Development Trust and Land Act, 1936 (Act No. 18 of 1936);

the government of any area for which a legislative assembly was established in terms of the Self-governing territories Constitution Act, 1971 (Act No. 21 of 1971) ; or

the governments of the former Republics of Transkei, Bophuthatswana, Venda and Ciskei,

despite any subsequent withdrawal, retraction or amendment of the status of the forest as reserved or demarcated, the boundaries being those which [applied when the forest was first demarcated or, failing demarcation, first reserved for forestry] were most recently surveyed or otherwise accurately described;"

AMENDMENT OF SECTION 7 OF ACT 84 OF 1998
Present section 7 of Act 84 of 1998 :
7.(1) No person may cut, disturb, damage or destroy any indigenous, living tree in, or remove or receive any such tree from, a natural forest except in terms of –
a licence issued under subsection (4) or section 23; or
An exemption from the provisions of this subsection published by the Minister in the Gazette on the advice of the Council.

Reason for the amendment :
The present position is that only trees may be protected, but not their products or produce. The Bill seeks to prevent people from freely dealing in produce or products of protected species or trees. In most cases people are found in possession of planks and processed wood coming from natural forests. The section as it stands covers only cases where "trees" are cut, disturbed, removed or destroyed. It does not deal with cases where products of those trees are possessed, removed or transported.

Proposed amendment :
By the substitution of section 7, subsection (1) of the following subsection:

(1) No person may –

cut, disturb, damage or destroy any indigenous, living tree in [or remove or receive any such tree from] a natural forest; or

(b) possess, collect, remove, transport, export, purchase, sell, donate or in any other manner acquire or dispose of any tree, or any forest product derived from a tree contemplated in paragraph (a)

except in terms of –

[a](I ) a licence issued under subsection (4) or section 23; or

[b](ii) an exemption from the provisions of this subsection published by the Minister in the Gazette on the advice of the Council.";


By the substitution of Section 7, Subsection (4) of the following subsection :

Present section7, subsection (4) is :
7(4) The Minister may issue a licence to cut, damage or destroy any indigenous, living tree in, or remove or receive any such tree from, a natural forest.

Reason for the amendment :
The present position is that only trees may be protected, but not their produce or products. The Bill seeks to prevent people from freely dealing in produce or products of protected trees or species.

Proposed amendment :
(b)(4) The Minister may [issue a licence to cut, damage or destroy any indigenous, living tree in, or remove or receive any such tree from, a natural forest] license one or more of the activities referred to in paragraph (a) or (b) of subsection (1).

Amendment of section 10 of Act 84 of 1998
Present section 10, subsection (1) :
10.(1) No person may cut, disturb, damage or destroy any forest produce in, or remove or receive any forest produce from, a protected area, except –

in terms of the rules made for the proper management of the area in terms of section 11(2)(b);
in the course of the management of the protected area by the responsible organ of State or person;
in terms of a right of a servitude;
in terms of the authority of a licence granted under section 7(4) or 23;
in terms of an exemption under section 7(1)(b) or 24(6); or
in the case of a protected area under land outside a State forest, with the consent of the registered owner by reason of another right which allows the person concerned to do so,
subject to the prohibition in section 7(1).

Reason for the amendment :
This is to bring the numbering into conformity with the proposed amendment to section 7, subsection (1).

Proposed amendment :
The substitution in subsection (1) of paragraph (e) of the following paragraph:

in terms of an exemption under section [7(1)(b)] 7(1)(b)(ii) or 24(6); or…..

Amendment of section 15 of Act 84 of 1998
Present section 15, subsection (1) :
15.(1) No person may –

cut, disturb, damage, destroy or remove any protected any protected tree; or
collect, remove, transport, export, purchase, sell, donate or in any other manner acquire or dispose of any protected tree,
except under a licence grated by the Minister.

Reason for the amendment :
The prohibition is extended to "possession" and now includes products from protected trees.

Proposed amendment :
The substitution for subsection (1) of the following subsection:
No person may –

cut, disturb, damage or destroy [or remove] any protected tree; or
possess, collect, remove, transport, export, purchase, sell, donate or in any other manner acquire or dispose of any protected tree, or any forest product derived from a protected tree,
except under a licence granted by the Minister.


Amendment of section 18 of Act 84 of 1998
Present section 18, subsection (1) :
Right to apply for protection

18. (1) Any natural or juristic person or any organ of State may apply to the Minister to protect a forest, tree or group of trees in terms of this Chapter.

The applicant must apply in the prescribed way.

Reason for the amendment :
The amendment proposed introduces an ability to apply for the protection of a species, and corrects language redundancies. The definitions "Natural or juristic" are redundant as both concepts are included in the definition of person, and are accordingly omitted in the proposed amendment. The omission of "any" is a consequential improvement to the wording of the clause.

As it stands, section 18 does not provide for the protection of a species. There is no logical reason why an application cannot be made for such protection in view of the fact that the Minister may declare a species to be protected in terms of section 12 (1)(d).

Proposed amendment :
Section 18 is amended by the substitution for subsection (1) of the following subsection (1) of the following subsection:

Any [natural or juristic] person or [any] organ of State may apply to the Minister to protect a forest, species of tree, tree or group of trees in terms of this Chapter.

Amendment of section 23 of Act 84 of 1998
Present section 23, subsection (2) :

23. (2) No person may engage in any activity in a State forest for which a licence is required without such a licence, unless-
he or she is exempted under section 24(6);
he or she is acting in the scope of his or her employment or mandate as an officer, employee or agent of the Department;
He or she has a right to engage in the activity in terms of the Interim protection of Informal Land Rights Act, 1996 (Act No. 31 of 1996).

Reason for the proposed amendment :
"He or she" is moved to eliminate the repetition that appears in the three succeeding paragraphs.

A new paragraph, named "d" is needed because section 23(2) prohibits anyone from engaging in any activity in a State forest without a licence. For this reason a contractor referred to in section 24(4)(b) will also need a licence. This gives rise to three problems:

The efficiency of the licence holders, which will include successful bidders in the restructuring process, would be undermined with licences having to be obtained for every contractor they deal with.

The need for licences for every contractor will increase the department’s administrative burden and costs.

An additional licence fee will be charged when the original licensee has already paid the licence fee in respect of the activity concerned. The contractor should not be expected to pay an additional fee, but as the Act now stands this would be necessary.

Proposed amendment :
Section 23 is amended by the substitution for subsection (2) of the following subsection:

No person may engage in any activity in a State forest for which a licence is required without a licence, unless he or she

[he or she] is exempted under section 24(6);

[he or she]
is acting in the scope of his or her employment or mandate as an officer, employee or agent of the Department;

[he or she] has a right to engage in the activity in terms of the Interim Protection of Informal Land Rights Act, 1996 (Act No. 31 of 1996); or

performs the activity in terms of a contract contemplated in paragraph (b) of section 24(4).

Amendment of section 24 of Act 84 of 1998
Present section 24, subsection (3) :
A licensee must pay the licence fee, unless –

he or she has entered into a lease agreement under section 26;
he or she is a purchaser in terms of an agreement referred to in section 28(1);
it is a community which has entered into an agreement under section 30; or
the licensee is unable to pay in terms of criteria set by the Minister.

Reason for the amendment :
The amendment to section (3)(a) is to correct wrong numbering.

The new subsection (3)(e) acknowledges that the Minister may introduce tariffs gradually over time.

Proposed amendment :
Section 24 (3) is amended by the substitution for subsection (3) of the following subsection:

"(3) A licensee must pay the licence fee, unless-

he or she has entered into a lease agreement under section [26] 27;

he or she is a purchaser in terms of an agreement under section 28(1);

it is a community which has entered into an agreement under section 30; [or]

he or she [the licensee] is unable to pay in terms of criteria set by the Minister; or

the tariff referred to in section 55 (a) does not prescribe a licence fee for the activity concerned.


Section 24, subsection (9)
Present section 24, subsection (9) :

"(9) Nothing in this Act prohibits or affects the grant in terms of any law of a right to prospect for, mine or dispose of any mineral as defined in the Minerals Act, 1991 (Act no. 50 of 1991), or any source material as defined in the Nuclear Energy Act, 1993 (Act No. 131 of 1993), in a State forest but the holder of such a right may not cut, disturb, damage, destroy or remove any forest produce without a licence.

Reason for the amendment :
1. The words "or affects" should be removed. Mining in State forests is not encouraged. If mining is envisaged, the Department of Mineral and Energy Affairs will not issue a mining licence until the Department of Water Affairs and Forestry has given its consent and set out its conditions. This suggests that the provisions of the Act will most certainly "affect" the granting of such a licence.

2. The words being removed have a limiting effect. The insertion is to prohibit any activity in a State forest unless that activity is licensed.

The new subsection 9 (b) inserted because of what has been said in 1 above. The granting of a prospecting or mining licence should be subject to the principles set out in section 3.

Proposed amendment :
Section 24 of Act 84 of 1998 is amended by the substitution for subsection (9) of the following subsection:
"(9) Nothing in this Act prohibits [or affects] the grant in terms of any law of a right to prospect for, mine or dispose of any mineral as defined in the Minerals Act, 1991 (Act 50 of 1991), or any source material as defined in the Nuclear Energy Act, 1993 (Act 131 of 1993), in a State forest, but –

the holder of such a right may not [cut, disturb, damage, destroy or remove any forest produce] do anything which requires a licence in terms of section 23 without such a licence;

the grant of any such right after the commencement of the National Forest and Fire Laws Amendment Act, 2001, must be made subject to the principles set out in section 3(3) of this Act.

Amendment to section 28 of Act 84 of 1998
Present section 28, subsection (1)
28.1. (a) The Minister;
(b) a person who has entered into a lease agreement under section 27;
(c) a party to a community forestry agreement entered into under section 30;or
(d) the South African Forestry Company Limited
may enter into an agreement to sell timber or any other forest produce in a State forest to any other person.

Reason for the amendment :
The words ""or derived from" are to be inserted in order to recognize that sales may lawfully take place outside the State forest from which the produce or products came.

Proposed amendment :
28. (1) (a) The Minister
(b) a person who has entered into a lease agreement under section 27;
(c) a party to a community forestry agreement entered into under section 30;or
(d) the South African Forestry Company Limited,
may enter into an agreement to sell timber or any other forest producer in or derived from a State forest to any other person."

Present section 28, subsection (2) at present :
28. (2) An agreement referred to in subsection (1) must-
allow for termination of the contract at any time after it comes into effect by either party on a period of notice which it is not more than five years, unless the Minister agrees to a longer period;
not oblige the seller to provide a quantity of timber or other forest produce which is greater than that which the forest to which the agreement relates, yielded on a sustainable basis during the period of the contract, or a cycle within a contract, unless any shortfall was due to negligence by the seller;
not confer rights in conflict with the lease or community forestry agreement referred to in subsection (1)(b) or (c) or an agreement referred to in section 77(2) with the South African Forestry Company Limited.

Reason for the amendment :
Section 28 deals with long-term forestry supply contracts. Once-off sales are not dealt with in this section, or in fact, anywhere else in the Act. This is an oversight as the Department regularly sells forest produce and forest products in its management of State forests. Section 28(2) (a) is incompatible with this type of sale because it provides for termination on notice, which is clearly inappropriate for a once-off sale by public auction or otherwise. The inserted sub-paragraphs are intended to provide for these sales.

As it now stands section 28(2)(f) refers to only one action by a party to the contract, that is termination upon five years notice. This could be read as excluding the other possible actions by the parties e.g. (a) termination upon notice of a greater or lesser period, or (b) failure to deliver timber or forest produce. This is clearly not the intention of the legislation, as it would mean that those other actions or omissions could be said to be breaches of the agreement. The new paragraph is inserted to include all the actions or omissions referred to in sub-section (5), provided, naturally, that they comply with they subsection.

Proposed amendment :
Amended by the substitution in subsection (2) for paragraph (a) of the following paragraph:
allow for termination of the contract at any time after it comes into effect by either party on a period of notice which is not more than five years, unless-
the Minister agrees to a longer period of notice;
the contract endures for a total period of five years or less
including any periods for which the contract may be renewed;
the contract is a once-off sale of timber or other forest produce which has been harvested at the time of the sale" and

Present section 28, subsection (5) paragraph (f) :
The termination of the agreement in terms of subparagraph (i) of paragraph (a) is not a breach of agreement".

Reason for the amendment :
The subsection requires amendment for the reasons stated above.

Proposed amendment :
By the substitution in subsection (5) for paragraph (f) of the following paragraph:

"(f) [the termination of the agreement in terms of subparagraph (I) of paragraph (a)] an act or omission by either party in terms of this subsection is not a breach of the agreement".

Amendment of section 50 of Act 84 of 1998
Present section 50, subsection (1)
Reservation of State land for forestry

50. (1) The Minister may reserve State land which is not a State forest for forestry if-
in the case of State forests other than trust forests, the Minister of Public Works agrees; or
in the case of trust forests on land held in trust by the Ingonyama referred to in the KwaZulu Ingonyama Trust Act, 1994 (KwaZulu Act No. 3 of 1994), the authority with the necessary power in terms of that Act agrees; or
in the case of trust forests other than those referred to in paragraph (b), the Minister of Land Affairs agrees.

Reason for the amendment :
The amendment seeks to clarify the situation of the reservation of State land for forestry. The section as it stands seeks to provide for the reservation for forestry of "State land which is not a State forest and then goes on, in the succeeding paragraphs, to refer to "State forests" and "trust forests". It is anomalous to state that the Minister may reserve State land for forestry when the land is already a State forest.

Proposed amendment :
Section 50 is amended by the substitution for subsection (1) of the following subsection:

50. (1) The Minister may reserve State land [which is not a State forest] for forestry if –
in the case of State land held in trust by the Ingonyama referred to in the KwaZulu Ingonyama Trust Act, 1994 (KwaZulu Act No. 3 of 1994), the authority with the necessary power in terms of that Act agrees;
in the case of State land, other than land referred to in paragraph (a), which has at any time vested in –
the South African development Trust established by section 4 of the Development Trust and Land Act, 1936 (Act No.18 of 1936); or
the government of any area for which a legislative assembly was established in terms of the self-governing Territories Constitution Act, 1971 (Act No,21 of 1971); or
the governments of the former republics of Transkei, Bophuthatswana, Venda and Ciskei,
the Minister of Land Affairs agrees;
in the case of State land which is not owned by the State but is managed by the national or provincial government exclusively or jointly with the owner in terms of an agreement, the owner agrees:
in the case of State land, other than land referred to in paragraphs (a), (b) and (c), the Minister of Public Works agrees".

Amendment of section 54 of Act 84 of 1998
Present section52, subsection (2) and (3) :
52.(2) The regulations are in effect from the date the Minister publishes them in the Gazette.

52. (3) The Minister must table the regulations in Parliament, together with any written comments and advice received on them pursuant to subsection (1) –
within 30 days after publishing them; or
if Parliament is not then in session, within 30 days after the next session starts.

Reasons for the amendment :
Subsection (2) of section 54 has caused confusion and has been misrepresented. It seems to refer to the publication in terms of subsection (1)(a). But these regulations are only drafts. The amendment is intended to set out clearly that the regulations are only effective when they have been published in final form.

Proposed amendment :
Section 54 of the National Forests Act, 1998, is to be amended –

by the substitution for subsection (2) of the following subsection :

"(2) (a) After complying with subsection (1), the Minister may-
amend the draft regulations; and
subject to subsections (3) to (8), publish the regulations in final form in the Gazette.
The regulations are effective from the date the Minister publishes them in the Gazette in terms of paragraph (a).


(b) by the substitution for subsection (3) of the following subsection:

The Minister must table the regulations in Parliament, together with any written comments and advice received on them pursuant to subsection (1)-

within 30 days after publishing them in terms of subsection (2): or

if Parliament is not then in session, within 30 days after the next session starts."

Amendment of section 55 of Act 84 of 1998
Present section 55 :
Tariffs and charges
55. The Minister may, with the consent of the Minister of Finance –
in respect of any State forest, issue a tariff of licence fees which may vary according to circumstances;
issue the tariff of charges to be paid for any product or service rendered by an officer or employee of the Department or by a member of the panel referred to in section 45.

Reasons for the proposed amendment :
This amendment is required to accommodate the restructuring of State forests. As the section now stands, it could be read as requiring successful bidders leasing State forests only to sell their products at tariff prices. This could seriously undermine the restructuring process. The amendments seek to correct this situation, by specifically referring to licensed activities.

In the interests of clarity, paragraph (b) is split to differentiate between tariffs for produce or products and those for services.

Proposed amendment :
The following section is proposed to be substituted for section 55 of the National Forests Act, 1998:
"Tariffs and charges
The Minister may, with the consent of the Minister of Finance –

in respect of [any] State [forest] forests, issue [a tariff] tariffs of [licence] fees [which may vary according to circumstances] for licenses issued in terms of this Act:

issue [the tariff] tariffs of charges [to be paid] for [any]

[product] forest produce or forest products derived from State forests and sold by an organ of State: or

[service]
services rendered by [an officer or employee] officers and employees of the Department or by [a member] members of the panel referred to in section 45."

Amendment of section 62 of Act 84 of 1998
Present section 62, subsection (2) :

Offences relating to protection of forests and trees
62. (2) Any person who contravenes –
the prohibition on the cutting, disturbance, damage or destruction of forest produce in or the removal of forest produce from a protected area referred to in section 10 (1) is guilty of a second category offence;
the rules referred to in section 11(2)(b), is guilty of a second category offence;
the prohibition on –
the cutting, disturbance, damage, destruction or removal of protected trees referred to in section 15(1)(a); or
the prohibition on the collection, removal, transport, export, purchase or sale of protected trees referred to in section 15(1)(b),
is guilty of a first category offence.

Reason for the amendment :
This is a consequential amendment arising from the proposed amendments to section 7 and 15 with respect to the products of trees.

Proposed amendment :
Section 62 of the national Forests Act, 1998 is hereby amended by the substitution in subsection (2) for paragraph (c) of the following paragraph:

"(c) the prohibition on –

the cutting, disturbance, damage or destruction [or removal] of protected trees referred to in section 15(1)(a); or
[the prohibition on] the possession,, collection, removal, transport, export, purchase or sale of protected trees, or any forest product derived from a protected tree, referred to in section 15(1)(b),
is guilty of a first category offence."

Amendment of section 77 of Act 84 of 1998
Present section 77, subsection (2) (b) :
The South African Forestry Company Limited does not own or have aright to acquire ownership or ninety-nine leasehold of any State forest.

Reason for the amendment :
Agreements entered into in terms of the repealed section 4 of the Management of State Forests Act, 1992, remain valid by virtue of section 77(2). However, those agreements provided for the ultimate out and out sale of the land on which there were State forests to SAFCOL. Government has decided against this model for restructuring in favor of a model based on the leasing of State forests. Hence the introduction of paragraph (b) in the proposed amendment. Firstly, there may be good reason for SAFCOL to buy some parcels of land in State forests independently of the agreements and this should not be prevented. Hence the inclusion of the words "by reason of the agreements". Secondly the paragraph is too wide in referring to State forests. The definition of ""State forest" includes, for example, the timber in the State forests. Section 77(2)(b) as it now stands could be interpreted to mean that SAFCOL does not have a right to this timber in the forests which it controls. This could not have been the intention of the Legislature because this timber and certain other assets which –

the Company lawfully owns in terms of agreements between itself and the State, and

for the core of the business.

This amendment is intended to clarify the position by substituting "State land" for "State forest".

Proposed amendment :
Section 77 of the National Forests Act, 1998 is proposed for amendment by the substitution in subsection (2) for paragraph (b) of the following paragraph:

"(b) the South African Forestry Company Limited does not, by reason of the agreements, own or have a right to acquire ownership or ninety-nine year leasehold of any State [forest] land."

Amendment of Schedule 1 to Act 84 of 1998
Present Schedule 1 to Act 84 of 1998 :
Section 36 in the third column.

Reason for the amendment :
This amendment is merely aiming to correct incorrect numbering.

Proposed amendment :
The substitution for the expression of "section 34" in the third column of the expression "section 35".

NATIONAL VELD AND FOREST FIRES ACT, 1998 (ACT 101 OF 1998).

Amendment of section 5 of Act 101 of 1998
Present section 5, subsection (1), Clause (b) :
Section 5. (1) A fire protection association must at least –
develop and apply a veldfire management strategy for its area;
provide in the strategy for agreed mechanisms for the co-ordination of actions with adjoining fire protection associations in the event of a fire crossing boundaries ……

Reason for the amendment :
The amendment seeks to omit a portion of clause (b) in order to cater for a co-ordination of actions with adjoining fire protection associations even if a fire does not cross boundaries.

Proposed amendment :
Section 5, subsection (1) clause (b) of Act 101 of 1998:

Section 5. (1) A fire protection association must at least –
develop and apply a veldfire management strategy for its area;
provide in the strategy for agreed mechanisms for the co-ordination of actions with adjoining fire protection associations [in the event of a fire crossing boundaries]

Present section 5, subsection (1), clause (f) :
Section 5, subsection (1), clause (l)
5. (1) A fire protection association must at least –
…….
appoint a fire protection officer, unless a municipality is a member.".

Reason for the amendment :
The amendment to paragraph (l) provides for the situation where the chief fire officer of a municipality does not wish to perform the functions imposed on the fire protection officer in the fire protection association which are imposed in terms of the Act.

Compelling the chief fire officer to be a fire protection officer of an association which is essentially voluntary and to require him or her to perform duties over and above his or her employment duties has no justification in law.

Proposed amendment :
5. (1) A fire protection association must at least –

appoint a fire protection officer, unless [a municipality is a member] there is a chief fire officer as contemplated in section 6(2)(a) who is willing to assume the powers and duties of a fire protection officer."

Amendment of section 6 of Act 101 of 1998
Present section 6, subsection (2) :
6(2) Where-
a municipality is a member and has a service, or where a designated service is a member, the chief fire officer is the fire protection officer;
a fire protection association has as members more than one entity having a chief fire officer, the fire protection officer must be elected as prescribed.

Reason for the amendment :
This amendment is necessary because of the amendment to section 5, to bring the two sections into conformity.

Proposed amendment :
6. (2) Where –
a municipality is a member and has a service, or where a designated service is a member, the chief fire officer is the fire protection officer unless he or she declines the position;
a fire protection association has as members more than one entity having a chief fire officer willing to assume the powers and duties of the fire protection officer, the fire protection officer must be [elected as prescribed] appointed from among those chief fire officers."

Amendment of section 9 of Act 101 of 1998
Present section 9, subsection (4) :
Fire danger rating system
The fire danger rating system must –
take into account the relevant peculiarities of each region, including –
the topography;
the type of vegetation in the area;
the seasonal climactic cycle;
typical weather conditions;
recent weather conditions;
where reasonably possible, current weather conditions;
forecasted weather conditions; and
any other relevant matter.
incorporate the formula or formulae needed to –
take into account all factors affecting the fire danger for each region;
calculate the indicators needed to rate the fire danger;
rate the fire danger in each region for an appropriate period or periods."

Reason for the amendment :
It is felt that it is impracticable to require a fire danger rating system to take into account all the factors listed in this section of the Act, as this may not always be possible. The amendment seeks to introduce the element of reasonableness in terms of the expectations of the fire danger rating system.

Proposed amendment :
9. Fire danger rating system
The fire danger rating system must –
take into account the relevant peculiarities of each region, including, where reasonably possible –
the topography;
the type of vegetation in the area;
the seasonal climatic cycle;
typical weather conditions;
recent weather conditions;
[where reasonably possible,] current weather conditions;
forecasted weather conditions;
any other relevant matter;
incorporate the formula or formulae needed to-
take into account [all] factors affecting the fire danger for each region;
calculate the indicators needed to rate the fire danger;
rate the fire danger in each region for an appropriate period or periods;"

Amendment of section 21 of Act 101 of 1998
Present section 21, subsections (2) and (3) :

Procedure for making regulations
The Minister makes the regulations by publishing them in the Gazette.
The Minister must table the regulations in Parliament together with any written comments and advice received on them pursuant to subsection (1)-
within 39 days after publishing them: or
if Parliament is not then in session, within 30 days after the next session starts.

Proposed amendments :
(2)(a) The Minister makes the regulations by publishing them in the Gazette

"(2)(a) After complying with subsection (1), the Minister may-
amend the draft regulations; and
subject to subsections (3) to (8), publish the regulations in final form in the Gazette.

(
b) regulations are effective from the date the Minister publishes them in the Gazette in terms of paragraph (a) of this subsection."

Section 21 (3) of Act 101 of 1998 is to be amended by the substitution of the following subsection :

"(3) The Minister must table the regulations in Parliament, together with any written comments and advice received on them pursuant to subsection (1)-

within 30 days after publishing them in terms of subsection (2); or

if Parliament is not then in session, within 30 days after the next session starts.

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