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PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE
30 August 2001
DISASTER MANAGEMENT BILL: DELIBERATIONS
Draft Disaster Management Bill
The Committee informally considered Clauses 1 to 4. There was discussion about whether the definition of disaster was too broad. It was recommended that the programme on disaster management should spread to rural areas as well where there was a need to monitor the building of houses, many of which are not up to standard. This piece of legislation does not apply if a state of emergency is declared or where specific legislation exists for certain types of disasters such as related to mining. This legislation will prevail over any provincial legislation.
The Chairperson noted that at this stage of the deliberations, there would be no debate as to what clauses should be included or excluded in the Bill. Members should only ask points of clarity. After the meeting they could go to their caucuses to ask for mandates.
Presentation by the Department
Mr Louis Buys, Chief Director: Disaster Management, noted that he is directly involved in the drafting of the Bill and asked the Committee to raise questions where they experience problems in interpreting the Bill. The Chairperson added that if members have clauses that they think need further clarity they must not hesitate to raise those issues. He assumed that members know almost all the definitions except some technical terms that could require clarity. Mr Crome was told to read the clauses that he thought are important for the Committee to understand.
Clause 1 Definitions
Mr Gerrit Crome, a legal consultant hired by the department, noted that the definition of a disaster is in line with international practice. He acknowledged that there would be questions about this definition of a disaster.
Mr P Smith (IFP) said he was concerned that the definition of a disaster is so broadly captured that it could include too much. Moreover, it is not clear as to what the obligations of the organs of state are.
Mr Buys replied that the definition of disaster was widely captured as the comments that they had received on the initial definition was that it was so focussed that it would exclude a number of incidents. There was even a debate on what is the difference between an incident and a disaster or when does an incident become a disaster. Based on the comments that they had received, they were told not to limit their definition hence it appears too broad to some members.
Mr F Van Deventer (NNP) asked what is the state doing to prevent people living in vulnerable areas as it is the case in some areas of Cape Town. He said state departments should prevent people from living in such areas otherwise the state will encounter similar disasters in future.
Mr Buys replied that what they can do in such situations is to is to remove people quickly from such areas if, for example, heavy rainfall is expected. Weather prediction is very important in this case. They could look at the statistics of how many people would be affected and how to remove them. The policy focus should be to try to prevent a disaster and unnecessary loss of life.
Mr Van Deventer asked about the damage to property in clause 1 (a)(ii). What happens when private property is damaged because the clause says nothing about that. Who would be responsible for the restoration of damaged private property? Mr Smith asked the same question. He noted that Clause 52 states that the state will be responsible for the rehabilitation of public sector infrastructure, but the Bill does not say anything about the rehabilitation of private property in the event of a disaster.
Mr Buys replied that a line has to be drawn between insured property or to whether an owner will have recourse to the law allowing a claim against the state. The state, through its organs, has always accepted responsibility in restoring the widely defined concept of public infrastructure such as bridges, roads or public buildings. Otherwise for private property, a person has to insure that property or have a valid case against the state.
Mr Mshudulu (ANC) wanted to find out if in their definition of disaster management, they had looked at the question of planning and resource management? He argued that these two aspects are very important when dealing with disaster management.
Mr Buys agreed that they certainly see planning and organizing resources as an integral part of disaster management. This is the most important part especially when they get to the policy framework. The framework says planning and organizing should guide the development of disaster management on an integrated countrywide basis.
Mr Mshudulu asked what is meant by emergency preparedness as guidelines are needed to know what is meant by being prepared. As a government, how could they explain their preparedness to ordinary people?
Mr Buys replied that emergency preparedness means that the state has all the mechanisms in place to prevent a disaster before it erupts or deal with it whenever it occurs. As he mentioned earlier, weather predictions of four to five days can enable them to evacuate vulnerable people before any disastrous situation occurs. However, Mr Buys noted that it is not always possible to predict a disaster.
Mr Smith asked if there is a legal obligation on people to behave in a certain way in response to a disaster if a disaster is defined so broadly. Is the Bill not cutting the definition of disaster into incidents, not disasters?
Mr Crome replied that this might apply to other definitions as well. He said these are questions that can only be answered once they have gone through the Bill and can see the context in which these concepts are used. There might be limitations in the context in which these terms are used. He suggested that the Committee should come back to these questions, once they have dealt with the entire provisions of the Bill.
Mr J Kgarimetsa (ANC) asked if the department monitors the building of houses in rural areas, because if the houses are not built properly this could result in a disaster. He said this monitoring would help prevent or reduce the risk of disaster. Some of the houses in rural areas are not up to standard. How can the department assist these communities?
Mr Buys said there is no effective monitoring system in rural areas at the moment. Nevertheless, in terms of building regulations there is monitoring in other municipalities, but not in rural areas. He said it is up to the Committee to set up regulations that would enable them to monitor the building of houses in rural areas.
Sister B Ncube (ANC) believed that the Bill provides a broad framework to address various occurrences. As wide as it is, it gives the department more room to maneuver within the specifics explained in the Bill. The wider it is, the greater chance for them to interpret it in different ways. She did not have problems with the way the Bill has been formulated thus far.
Mr Buys fully supported this comment and said it confirms what he had said earlier about the many initial submissions requesting that the definition not be too focused and exclusionary. Thus they had made it broad to encompass most aspects.
Mr Mshudulu noted that in some rural areas, people are living in areas which are inhabitable. In times of disaster the government can easily be held responsible for damages because the houses are not up to standard.
Mr P Bouwer, Director: Legal Services in the Department, said if one looks at the Preamble it says "an integrated approach to disaster management". Incidents such as that of building of houses would be addressed in that manner. The basis of this integrated approach is first of all to identify the need for a vulnerability study at grassroots level. This Bill tries to link with all other development plans on the ground and this means it is also developmental in approach.
Mr Kgarimetsa said that for the sake of prevention, monitoring the building of houses in rural areas should be instituted as this would cost the government less than responding to a disaster.
Mr Buys replied that the integrated approach says that all areas are under municipal jurisdiction. Their assistance in terms of monitoring and inspection and giving advice to people in rural areas would be a step in the right direction.
The Chairperson commented that this Bill would assist them in dealing with the issue of traditional leaders. Hopefully the powers that the traditional leaders have will not be threatened if they are included. He added that of all the inter-governmental structures included in the Bill, the House of Traditional Leaders is not mentioned and he thought it should be added.
Mr A Lyle (ANC) agreed that the Chairperson's point on traditional leaders is very important. For example, if they are looking at the voluntary component, traditional leaders are crucial because they can organise their communities very fast.
Mr Crome agreed that there is no doubt that the House of Traditional Leaders is a very important organ of state. Organs of state do have disaster management functions in terms of this legislation but that depends on the national disaster management framework and also at provincial level.
Ms Southgate (ACDP) asked, if traditional leaders are an organ of state, why are they equated with volunteers?
Mr Bouwer said there is a difference between organisation, institution and individual volunteers. He said they were not equating traditional leaders with volunteers as the House of Traditional Leaders is an organ of state. Volunteerism was being discussed in the context of organised community involvement in times of disaster. Volunteerism is an individual involvement in any activity without prospect of remuneration. In some situations a traditional leader can also be a volunteer if he so desires.
Mr Crome said the question was whether there is a need for a definition for a volunteer. He believed that there was no need for a special definition as it is used in its ordinary sense here.
Clause 2 Application of the Act
Mr Crome said certain occurrences will fall outside the scope of this legislation. This clause is a kind of limitation for the definition of a disaster. If the occurrence is subject to or declared in terms of 'state of emergency' legislation, this Act will not apply. The other instance where the Act will not apply is where there is specific legislation dealing with disasters of a particular nature such as accidents in mines.
Mr Crome suggested that a provision should be inserted in Clause 2(3) that all the frameworks in terms of this Bill should be submitted to the NCOP for approval.
Mr Smith wanted to clarify that that every provision of this Act falls away if a state of emergency is declared.
Mr Crome agreed that this Act in its totality would not apply. They would have to rely on the Act and regulations issued under the state of emergency.
Mr Mshudulu noted that it should state that if a judgement about whether an incident qualifies as a disaster or not is made at provincial level, it must be consistent with the Constitution.
Mr Bouwer replied that it is not technically necessary to state that in the Bill, but it is important to point out that this piece of national legislation prevails over provincial legislation.
Clause 4 Inter-governmental Committee on Disaster Management
The Chairperson noted that Clause 4(1)(c) mentions the Local Government Association. With the new system of local government, he felt that Executive Mayors should be included so that they would impact heavily on the composition of the Inter-governmental Committee on Disaster Management.
Mr Buys said there was no specific reason for excluding the Executive Mayors. It is still a question as to whether to include Executive Mayors or the executive of the South African Local Government Association (SALGA). They thought SALGA as an umbrella body should be included.
Sister Ncube said that consultation with all structures is important. She did not see any problem because SALGA represents local government.
Mr Bouwer said that what the clause merely states who should be on the committee but it does not prescribe the numbers. The committee will be appointed by the President. What is required is to have people from the national, provincial and local spheres. The President should decide who should be there on a national level as the Head of the Executive. In the provinces the Premiers should decide which MECs would be responsible for disaster management. At the local level, SALGA, as the representative of local government, are surely in a better position to identify people at the local level.
In concluding the meeting, the Chairperson reminded the Committee that they are merely considering the legislation at this stage without engaging in debate on how to change it.