National Environmental Laws Amendment Bill [B66B-08]; Provision of Land & Assistance Amendment Bills: Departmental briefings

NCOP Land Reform, Environment, Mineral Resources and Energy

13 October 2008
Chairperson: Rev P Moatshe (ANC, North West)
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Meeting Summary

The Committee gave consideration to whether it would be practically possible to deal with the National Environmental Laws Amendment Bill within the time prescribed, especially in view of the Committee’s other commitments. Some Members felt that even if this Committee could deal with the Bill there were practical problems at the provincial legislatures. Others felt that since the programme had already been drawn, incorporating these Bills, they should be finalised, even if only in January 2009. It was decided that the briefing would continue, and that the Department should make officials available to assist in briefing the provinces. It was stressed that the Department had in fact brought a number of Section 76 Bills to this Committee at a late stage and that the problems with time were not of the Committee’s own making.

The Department then tabled and explained the amendments being effected to a number of Acts by the National Environmental Laws Amendment Bill (the Bill). A number were quite technical in nature. One of the main aims of the Bill was to align the offences and penalties across a number of environmental Acts, and it had been reasoned that a fine of R1 million equated with the alternative of one year’s imprisonment, which was considered by the Interpol Pollution Crimes Working Group to be more in line with international legislation.

The Environmental Conservation Act was to be amended in Section 29, and would correct incorrect references and delete the requirement for gazetting of directions. The National Environmental Management Act would be amended in the definitions section, and by establishing new forums or advisory committees. Sections 15, 28, 30. 31(1) to (3) and Part 2 headings would be amended. A new Section 31A was to be added and section 31F, 31H, 31K, 31N, 31Q and 34 were to be amended to allow for more practical implementation. Sections 34D and 34H were now to make reference to “any of” the environmental management Acts, and jurisdiction was to be retained in the Magistrate’s Courts. The Protected Areas Act amendments sought to regulate ownership of animals in protected areas, and management and reporting of escaped animals. An amendment to Section 82 would allow expropriation of privately held rights in State land, and the fines issues were dealt with in amendments to Section 88. The National Environmental Management: Biodiversity Act was to have new definitions in relation to bio-prospecting. The National Biodiversity Agency was being given the obligation to monitor and report on environmental impacts arising from genetically modified organisms, so that it could exercise its functions more effectively. Botanical Gardens were to be brought under the Act. There was provision, with the added safeguard that another Act of Parliament would be required, for the Agency to be wound up, in the event that it managed to achieve Public Benefit Organisation status. An amendment to Section 45 sought to regularise the anachronism that this Act was presently subservient to subordinate Acts. Further amendments allowed for wider application of the Act, for a trustee to be appointed to manage the Bio-prospecting Trust, to exempt certain categories of research, and for regulations around international agreements. The Air Quality Act was to be amended to allow for payment of a processing fee for the licence, to include “juristic person” in the ambit of the Act and to deal with fines.

Members raised questions on the wording of the clauses around penalties and the Department conceded that the clauses should all be standardised in each Act to refer to fines “not exceeding” the amounts stated. Other questions related to the admissibility of photographs and videos, the broad wording and the reasons for it, whether there would be any restrictions of media freedom, responsibility of the State and the communities for escaped animals, a clarification of the privately held rights, the costs of compliance with the amendments, and the reasons for asking that the Magistrate’s Courts retain jurisdiction. Members agreed that negotiating mandates should be submitted by 11 November

In the afternoon session the Department of Land Affairs briefed the Committee on the Provision of Land and Assistance Amendment Bill. This Bill was intended to make the necessary changes to the Provision of Land and Assistance Act, which, having been promulgated in 1993, failed to cater adequately for the new policies and scope of land redistribution, and in which some problems of implementation had arisen. In particular, the Minister now needed the authority to acquire movable and immovable property or economic enterprises essential for sustainable land reform, and his authority to grant full subsidies and to administer economic enterprises acquired through land reform programmes also needed to be clarified. The Bill therefore would amend certain definitions and would also make the necessary provision for the government to acquire both land and movable assets that would make the farming enterprises viable. A detailed implementation plan would be drawn and approved by the Minister after the Bill was passed. The Tenure and Land Reform branch of the Department would manage the national functions and the current budget was sufficient to cope with the new implementation. National Treasury had made certain proposals in respect of staggering the appointment of new staff. Members asked about the difference between the previous proposals and those now made by National Treasury, suggested that aqua-culture be included in the areas covered by the Bill, and sought clarity on the hiring of new staff, and the efforts to develop post-settlement support also for those who had previously acquired land. Members agreed to consult with their parties and meet on 21 October to adopt the Bill

The Minutes of 23 September, as corrected, were approved.

Meeting report

Procedural issues
The Chairperson asked the Committee to give consideration to whether it was able to deal with the Section 76 National Environmental Laws Amendment Bill within the time allowed, and have the negotiating mandate for 28 October. It was not possible to hold briefings in this week, and this would already push the briefings back to the following week. The constituency period would begin on 27 October. The other option was to have the briefings now, and complete the matter next year.

Mr L van Rooyen (ANC, Free State) agreed that there was a problem. The Free State was already flooded with legislation and it was more and more difficult to deal with Section 76 Bills because of the time allowed. He would support dealing with this next year and suggested that all Members should check with their provinces whether they could do that.

Mr F Adam (ANC, Western Cape) noted that all members also had a registration week on 8 and 9 November. The three weeks prior to that were identified as constituency periods. Subject to what was to be decided today, there would be further discussion also needed on the Bills. He was worried that even if this Committee did deal with the Bill, it would lie with the provinces for a while. Furthermore there was also still a commitment to Parliament to the People, and this added to the workload. He would support Mr van Rooyen and the Chairperson that this should stand over to the next term, or the next Parliament. He did not see any particular urgency in getting this through.

A provincial delegate from Natal also expressed his support for the views expressed.

Mr Nguni (Eastern Cape delegate) felt that to debate this matter on 28 October seemed to be unworkable.

Ms M Oliphant (ANC, Kwazulu Natal) noted that the Department was called in to brief the Committee. She suggested that the briefing continue, and that the response of the provinces should then guide the Committee.

The Chairperson pointed out that already the provinces had complained that they were overloaded with numerous Section 76 bills. He had asked for their comment.

Mr A Watson (DA, Mpumulanga) noted that if this was only to be considered in the next year, he was not sure that the briefing today would bear much relevance. He had been asked by his province to do a briefing tomorrow, but there were three other matters being dealt with.

Mr Adams said that even if the provincial briefing was done the following day there would still not be sufficient time – at least in his province – for the province to deal with the matter.

Mr van Rooyen said he was faced with the same dilemma. Practically speaking, he did not feel that any justice would be done to this Bill if attempts were made to push it through now This was quite an involved matter.

The Chairperson said that he had hoped to have a meeting on 28 October. He agreed that the time was very tight in view of the other commitments.

Ms B Dlulane (ANC, Eastern Cape) heard the contributions, but pointed out that this matter had not suddenly been placed before the Committee, and the Department was in attendance in accordance with a programme drafted by the Committee. It was possible that account had not been taken of the other commitments. Some provinces had not even asked for their delegates to brief them. Public hearings would also be required. The Parliament to the People would require special delegates. With due respect to the Department, she said that perhaps the Bill should not be pushed through. She asked for input from the Department.

The Chairperson noted that this Committee had been inundated with numerous bills from different departments, and had done its best. There were also other stakeholders involved. As much as the Committee would like to deal with the matter, he thought that it simply would not be possible. He pointed out that in the following year the election load would be too heavy, and in this term there was simply no space for the cycle. He did not think that the Committee had made mistakes, but that it was faced with a problem in implementation. There were other matters impinging on the programme, with which it still had to comply. The Committee was willing to do the work, if it had the space to do so.

Mr van Rooyen added that there were 29 bills before the Committee, of which 14 were Section 76 Bills and eight lay within this cluster.

Mr Ishaam Abader, Deputy Director General: Corporate Affairs, Department of Environmental Affairs and Tourism, noted that this was not a controversial Bill. The purpose of it was largely to make editorial changes, align fines, and increase some jurisdiction, as well as adding more powers of search and seizure. He noted that only Chapter 1 and 2 contained substantive issues. It might be possible to attach this to another Bill to be dealt with, and he offered to make himself available for discussions at any time. However, he would be guided by the Committee.

Ms Oliphant noted that the cycle would start when the Committee would have a briefing. She said that provinces had already set aside dates for briefing and there were also delegates from some of the provinces. She did not know why Members were suggesting that this could not be dealt with. The Committees could meet at other times and there was no reason why they could not meet during the Parliament to the People process. She suggested that the briefing continue, and that the meeting should not be cancelled now as it had already been put on the programme.

Mr Adam reiterated that Western Cape had a serious difficulty. It had communicated with him yesterday, saying that they had re-looked at their programme. He stressed that the Bill would simply lie in the provinces, even if it went through this Committee. He pointed out that he was representing interests in local government.

A provincial delegate from Kwazulu Natal pointed out that his presence at this meeting showed commitment by the provinces.  He proposed that the briefing continue.

Ms H Matlanyane (ANC, Limpopo) said that consideration must also be given to what Members would do after the briefing today. She noted that Limpopo would have a meeting on Friday, but said that even after that, they would not be able to continue with public hearings. Everyone was aware that the provinces were busy. She asked how the Committee should best prioritise. There was no point in taking the briefing now, if the provinces would not be able to process the legislation.

The Eastern Cape delegate said that both arguments had merit. He felt that there should be meaningful public participation, and he agreed that stakeholders must have the chance to be included. He wished to propose a compromise; namely that the briefing be heard, and the provinces should then look at the possibility of centralising their hearings, instead of taking the hearings to various places. The elections were a reality, and the Departments should not keep pushing legislation to the Committees. He said that this could probably not happen this year.

Ms Oliphant asked if an extension of the deadline could not be obtained. She still thought that the Committee should get the briefing, and then be guided by the provinces as to whether they needed to get extensions. Many of the members were also part of the Joint Programming Committee.

The Chairperson then suggested that the briefing should commence.

Mr van Rooyen stressed that the problem was not the making of the Committee. In the past three months the Department had sent through five Section 76 Bills. The Department must also accept some responsibility for this bottleneck. He however agreed that the briefing should be taken, and if the provinces could not deal with this, then so be it.

Mr Watson asked that it be minuted that this meeting was in fact taking place within the constituency period, which was scheduled to last till 20 October. The rules governing Members said that if meetings were held during the constituency period, then the Committee must pay the expenses of delegates. The framework was decided by the Joint Programming Committee and the Programming Committee of the NCOP could not change that. He felt quite strongly about this matter.

National Environmental Laws Amendment Bill (the Bill) :Department of Environmental Affairs and Tourism (DEAT) briefing
Mr Abader noted that four of the bills before the Committee were in fact in the process from last year.

Mr Abader then moved directly to the National Environmental Laws Amendment Bill (the Bill), which was not very controversial and which sought to amend a number of different Acts, in particular concentrating on standardisation of offences and penalties. He set out the background to this Bill. In October 2007 amendments were first discussed with those working with the legislation. The first draft Bill was drawn in November 2008, and the Bill had been circulated to national and provincial departments, the State Law Advisers, and the Cluster.  The Bill was published in May 2008 with a period for comment, which had also been extended. In July 2008 the Bill was split into the Section 75 and 76 bills. It had been approved by the National Assembly in September.

He then detailed the specific amendments being effected by the Bill (see attached presentation for full details). He explained that in relation to the penalties, it was generally agreed that the ratio between the fines and the periods of imprisonment were that a R1 million fine would equate to an alternative of one year of imprisonment.

The Atmospheric Pollution Prevention Act was to be amended by increasing the penalties, following the ratio that he had just described. The total penalty had been increased to R5 million, with a period of imprisonment being increased to five years. The Interpol Pollution Crimes Working Group had advised the Department that the penalties in South Africa for environmental crimes were out of line with international standards, and that was one of the reasons for the increase, as also to emphasise the seriousness of the crimes.

The Environment Conservation Act was to be amended, in section 29, to deal with amounts of fines and imprisonment. These were to be raised respectively to R5 million, R100 000 and five years. A new offence was being created of operating a disposal site without a permit.

A further amendment was made to correct a previously incorrect reference to the Minister of Water Affairs and Forestry. In addition, in the past, both regulations and directions had needed to be gazetted, and a Court judgment had stated that the way in which the Act had previously been worded in fact had imposed a direct obligation to gazette directions. The whole purpose of directions was to deal with emergency situations and the requirement to gazette was counter-productive. This requirement for gazetting in respect of directions was being specifically removed, although all regulations would be gazetted before promulgation.

The National Environmental Management Act (NEMA) was to be amended by deleting definitions of “Committee” and “Forum”. The National Environmental Advisory Forum and Committee for Environmental Coordination were to be abolished, as they were too prescriptive and expensive, and there had been too much duplication. Now, a new Section 3A would allow for establishment of fora or advisory committees, which would address specific needs under the Act. The removal of the previous Forum and Committee for Environmental Coordination then required consequential amendments to delete references to them, in Sections 11, 13 and 22(2) (a) and (b).

In Section 15 of the NEMA, there was to be substitution of wording relating to the requirement for submission of an environmental implementation plan and management plan.

Amendments to be made to Section 28 were not really substantive but contained provisions making it easier for the Department to undertake its work. The Director General was now being empowered to recover costs for remedial measures, before the remedial measures were actually taken, as well as all costs incurred by reason of acting under section 28(7). The Department wanted to be able to determine all costs prior to doing remedial work, as they put a heavy burden on the State. The requirement was, however, that the costs recovered must be reasonable, and objectively determined. There was provision for retrospective application in respect of the recovery. 

Section 28(14) was to be amended to include the words "significant pollution" and "a significant manner". The Portfolio Committee had also insisted upon adding a requirement that the anticipatory costs had to be reasonable. A new offence had been created, with a penalty of R10 million or 10 years imprisonment, but Mr Abader stressed that the maximum penalty would obviously only be imposed if the pollution was of a very serious nature.

Section 30 was also to be amended, by changing the amount of the fine and imprisonment period.

Sections 31(1) to (3) were redundant and therefore the Bill sought to delete them, as the provisions relating to access to information were now dealt with under the Promotion of Access to Information Act, and their continuing existence would create confusion.

The heading of Part 2 was to be amended to cover the application and enforcement of “any Act”

A new Section 31A was to be added, and an editorial correction had been made to this, as set out in the presentation.

Section 31F would remove the requirement for environmental management inspectors to carry their letter of designation with them at all times. This was not always practically possible and the DEAT felt that the identity card alone was sufficient. He pointed out that this was one of the suggestions that had been received from the provincial departments, and which highlighted practical difficulties in the application of the Act.

Section 31H now would be amended by including an authorising provision to allow inspectors to take photographs or audio visual recordings. Their inability to do so in the past caused practical problems in relation to evidence.

Section 31K was intended to allow inspectors to carry out searches, and the search powers were to be extended to vessels aircrafts, pack-animals, containers, bags, boxes, items, and the like.

Section 31N proposed amendments relating to the non-compliance reports. At present they were given to the Minister or MEC but this was an administrative rather than an executive function, and should be dealt with by the Director General or Head of Department. It was not necessary to have a legislative requirement to report to the Director of Public Prosecutions and this requirement was removed.

Section 31Q was amended to give protection to persons who had to disclose information on the environment, and the types of information that may be disclosed were now set out.

Section 34 contained a number of amendments. Mr Abader concentrated on the new subsection (b) which allowed the Court to determine that the person convicted must take remedial action. The Department would bear a heavy financial burden if it had to undertake the remedial action itself, and the costs could not be budgeted for.

Sections 34D and 34H now contained reference to  "any of the specific environmental management Acts" In addition, Section 34H dealt with jurisdiction of the Magistrate's courts. The fines were previously limited to the Adjustment of Fines Act. The DEAT wanted to ensure that the Magistrate’s Courts, despite the raising of the fines, continued to have jurisdiction.

Schedule 3, parts (a ) and (b) were to be substituted with new parts. Schedule 3 related to all offences, and because they had been updated it was necessary to make the substitution.

The National Environmental Management Protected Areas Act of 2003 was also to be amended by the Bill. This particular amendment sought to regulate ownership of animals in protected areas, management of escaped animals, duty to report escaped animals and allowance for an animal to be killed if it endangered human life. Ownership and trust were to be given to the State, which must manage escaped animals. People becoming aware of escaped animals should report them. There was an exemption in relation to the management authority when it came to liability, except if the management authority was negligent.

Section 82 was also to be amended, so that the Minister could expropriate a servitude or a privately held right in or to State land. This effectively extended the powers of expropriation.

Under Section 88 the R5 million and 5 years imprisonment penalties were again being picked up.

Section 89 created the new offence of the failure to report escaped animals and dealt with fines.

The Bill then dealt with the National Environmental Management: Biodiversity Act, which contained substantive amendments under Section 1. New definitions were being added for “commercialisation”, “commercialisation phase of a bio-prospecting project” and “discovery phase of a bio-prospective project”.

The revised Section 11 would now require the South African National Biodiversity Agency (SANBI) to monitor and report on environmental impacts and all categories of genetically modified organisms (GMOs), and post-commercial release, based on research that identified and evaluated risk. The monitoring by SANBI should be able to identify unforeseen GMOs and to allow it to exercise its functions more effectively, by allowing for general surveillance and reporting on all GMOs.

Sections 33 and 34 of this Act were further to be amended to incorporate the list of national botanical gardens under the Biodiversity Act. A name must be assigned to each garden and it must be included in he Schedule. The Minister was to be given the power to amend those Schedules.

The revised Section 36A was requested by SANBI, as they wished to become a Public Benefit Organisation. If this was to happen, then it was necessary to provide for the winding up or dissolution of the Institute, and to prescribe for the transfer of remaining assets or processes to another body. The Portfolio Committee had been worried about this, and had insisted upon including a further sub clause to the effect that SANBI could not be wound up without a specific Act of Parliament to this effect.

Section 45 was to be amended in relation to drafting of Biodiversity Management Plans. The Act was presently forced to be compliant to subordinate acts, and the proposed amendment sought to correct this situation.

Section 57 was to be amended by empowering the Minister to give exemption for restricted activity.

Section 58 contained a technical correction, to allow for the amendment or repeal of certain notices, and included the new notice to be issued under section 57(4).

Section 78 was to be amended because when GMOS were released into the environment a full environmental impact assessment must be carried out.

The amendment to Section 81 was necessitated by the insertion of a new Section 81A, and would now include references to the commercialisation phase of bio-prospecting. Section 81A was intended to give a notification requirement before engaging in discovery phases of bio-prospecting indigenous biological resources. There would have to be agreement to comply with requirements. The idea was to tighten the protection of indigenous biological resources, to prevent their exploitation.

Section 82 was to be amended to include a specific individual as well as a community. The present wording of the section did not take into account an individual's knowledge and the amendment would expand the scope of the knowledge.

Section 85 was to be amended to allow for a trustee to be appointed to manage the Bio-prospecting Trust Fund, instead of the Director General. The latter would still retain accountability for the money in the Fund.

Section 86 was to be amended by the insertion of a new subsection (b) to declare that the Minister could exempt certain categories of research involving indigenous biological resources and commercial exploitation.

Section 92 had contained an incorrect cross-reference, which was now being corrected.

Section 93A was now to include a new subsection (3) to allow for renewal and amendment of permits, which had in the past led to administrative problems.

Section 97 was at present restrictive to the implementation and enforcement of an international agreement, but the amendment was intended to allow for regulations to be made in this field. Furthermore, provision was also being made for regulations relating to the hunting industry, and for the requirements of notification in respect of the new section 81A.

Section 98 was to be amended in relation to offences, fines and imprisonment, similar to the other Acts.

The Bill then sought also to amend the Air Quality Act, in Section 45. At present there was no provision for the payment of a processing fee for the licence, and the amendment would allow for this, and bring the Act in line with other licensing requirements.

Under Section 49, the reference to a "juristic person" was to be included. This had initially been mistakenly left out and the amendment would not only correct the error but widen the scope of enforcement. 

Section 52 related to fines and the amendment also dealt with a similar issue as other Acts, in relation to the Magistrate's Court having jurisdiction to impose this penalty.

A reference to Section 31Q was removed under the Schedule, but this was a technical correction.

Mr Watson noted that a number of the clauses related to amendments of the fines and periods of imprisonment. The clause in relation to the Air Quality Act, however, contained the words “not exceeding a fine of…” and he suggested that this wording be included in all the other relevant clauses, rather than attempting to set the precise amount of the fine.

Mr Abader conceded that his point was quite valid and agreed that the wording should be amended to "not exceeding"

Mr van Rooyen referred to the amendment in relation to allowing inspectors to take photographs and videos, and asked if the video recordings and photographs were admissible in Court.

Mr Abader said that these were admissible, provided that the person taking the photograph was present to confirm that he took the photograph. The intention was to make it easier for the inspectors to describe what they had found, or how the activities were being carried out.

Mr van Rooyen questioned the wording of "item and the like" in the amendments to the National Environmental Management Act, Section 31.

Mr Abader said that this broad wording had been deliberately used. He noted that people were using all sorts of modes of transport for illegal goods, and the idea was to try to make this section as inclusive as possible, to expand the ability of the environmental management inspectors to conduct a thorough search.

Mr van Rooyen also asked if a person could be searched.

Mr Abader said that police were entitled to search but those requirements would include a reasonable suspicion that the person had committed an offence.

Mr van Rooyen questioned Clause 21 and expressed his concern as to whether this would impact upon media freedom.

Mr Abader responded that the purpose of this Clause was not to restrict media freedom but rather to give protection to informants. If a person supplied information in relation to the state of the environment, or risks posed to it, or contraventions, then he would be given protection, similar to the whistle blowing provisions. It was aimed to encourage people to come forward. It was not to restrict any media freedom.

Mr van Rooyen noted that the Protected Areas Act provided for the State's responsibility in relation to escaped animals. He asked what the financial implications would be of this, pointing out that the Bill said there would be none, but he doubted this could be correct. He also questioned the capacity to deal with this.

Mr Abader noted that this amendment had emanated from a suggestion by the national and provincial departments. It was mostly the State animals that were escaping, and the amendment sought to impose some responsibility where there had been negligence. The State had had to deal with these animals in any event, so that the matter would have been included in the budgets. This was in the nature of a more formal confirmation that there was responsibility. If an animal escaped, the identification of that animal could be problematic. There was also a need to have the legislative backing for capturing any animals posing a threat.

Mr van Rooyen referred to clause 27 and asked what was meant by the exclusions of "privately held rights in State land".

Mr Abader explained that servitudes such as rights of way could be expropriated. However, other rights, such as 99-year leaseholds, were not formerly covered. He stressed that although the land belonged to the State, the right would be held by an individual, and it was that right that needed to be expropriated. This would happen under the Expropriation Act, and would involve the process of valuations and agreements that pertained to any other type of expropriation.

Mr van Rooyen referred to the amendments to the Biodiversity Act, and asked again what the costs would be and whether the Department had the capacity to deal with the matters.

This question was not specifically answered.

An Eastern Cape delegate questioned the rationale behind the equating of one year's imprisonment to the R1 million fine, and asked if this had been checked with the Ministry of Justice. He asked whether this was realistic in relation to poor people who lived in the environmental catchment areas – for instance in relation to their obligation to report escaped animals.

Mr Abader said that the main reason for the increase in the penalties was the Interpol comment that South Africa's fines had been too low. The rationale of setting the ratio had been discussed and agreed upon. The question of an undue financial burden was raised at the Portfolio Committee, but he stressed that each case would depend on its merits, and the offence in relation to escaped animals did not carry a large fine.

The Eastern Cape delegate also asked about the jurisdiction question. He requested whether it was correct that this Department should determine the issue or whether this did not fall within the Department of Justice.

Mr Abader said that the general intention was to try to free up the High and Regional Courts, which had heavy caseloads, and this issue had been canvassed with the Department of Justice, in relation both to the fines and jurisdiction. That Department’s own legislation was rather outdated, which was the reason for the inclusion of the jurisdiction. The discretion of the Magistrates would be to impose fines up to the maximum as stated in each Act. There had previously been some problems with the prosecution of environmental matters, and this was an attempt to make this more uniform.

Mr van Rooyen asked if the Department could assist in the briefings to Provinces.

The Departmental representatives confirmed that they could, and that more than one person could make themselves available.

The Chairperson indicated that the final mandates should have been submitted by 11 November. He suggested that instead the negotiating mandates be submitted on 11 November and the final mandates be submitted early in January 2009.

The Eastern Cape delegate supported this proposal.

Ms Oliphant suggested that if some provinces could not deal with the matter by 11 November, then the Committee might have to reconsider.

Mr Watson asked how the changes that the Department had agreed to in respect of the wording would be conveyed to the provinces.

The Committee Secretary noted that the Minutes of this meeting would be sent to all provinces, and that Mr Watson and other delegates must draw this to the attention of their provincial legislatures.

The Provision of Land and Assistance Amendment Bill (the Bill): Department of Land Affairs (DLA) Briefing
Mr Thozi Gwanya, Director General, Department of Land Affairs, briefed the Committee on the Provision of Land and Assistance Amendment Bill. The principal Provision of Land and Assistance Act of1993 (the principal Act) was promulgated prior to the Interim Constitution coming into effect, and it did not any longer contain sufficient scope for land redistribution. In addition, the implementation of the Proactive Land Acquisition Strategy (PLAS) of the Department during 2006 had revealed several interpretational problems with the Act. Currently, Sections 10 and 11 in particular of that Act were not sufficient to give effect to policy developments, and the Minister could not, under this Act, acquire movable and immovable property or economic enterprises essential for sustainable land reform. There was no provision for the acquisition of shares in, or the right, title or interest in any entity that controlled or administered property. There was also some doubt as to the scope of the Minister’s authority in respect of granting full subsidies and his authority to administer economic enterprises acquired through land reform programmes.

The Bill therefore sought to amend the Act to ensure not only that government could acquire land, but also movable assets (such as farming implements, irrigation pipes and the like) that would make the farming enterprises viable.

Mr Gwanya described the objects of the Bill, noting that it also intended to contribute to poverty alleviation and promote economic growth. A more detailed implementation plan would need to be drawn and approved by the Minister for implementation by the Department once the Bill was passed. The Department’s branch of Tenure and Land Reform would continue to manage the national functions, and implementation would be accommodated within the current budget. He set out the Medium Term Economic Framework allocations across the different programmes (see attached presentation.

Mr Gwanya touched on the implications of the Bill for vulnerable groups and the consultative meetings the Department had held with the relevant stakeholders. There were no Constitutional implications, but the Bill would promote the land and related reform obligations of the State. He mentioned that the National Treasury had contributed by proposing amendments with regards to the funding of the implementation of the Bill. He stated that the main amendments had to do with inserting new definitions, and with providing for trading entities under a new Section 10A.

Mr Watson asked about the difference between the Treasury proposals and the previous proposals.

Mr Adams pointed out that the Committee was now busy with a Section 76 Bill and the previous proposals were contained in the Section 75 legislation.

Mr Van Rooyen asked for the reason that aqua-culture was not included in the areas that were to be covered by the Bill. He also asked for clarity on the hiring of new staff for the implementation of the Bill.

Mr Gwanya replied that Treasury had been focusing on inland fishing, but he did concede that aquaculture was more inclusive and the Department would make sure that it would be mentioned.

Mr Gwanya then noted, on the question of staff, that National Treasury had suggested that the Department should gradually appoint 15% of the required 11 00 required personnel each year, and thus increase the contingent on an incremental basis.

Ms Oliphant asked what would happen to the people who had already had land, but were not covered by the previous Act, and what specific provisions in the Bill would help the land reform recipients

Mr Gwanya replied that the Department had a map and list of all properties and was busy devising a strategy to address the problem of post-settlement support, in conjunction with other departments such as Agriculture, Housing and Provincial and Local Government.

Van Rooyen asked how would the co-operation work.

Mr Gwanya replied that integrated planning was appropriate for such matters.

The Chairperson asked Members whether they were ready to move for adoption of the Bill.

Mr Watson mentioned that he still needed to consult his own party.

Mr van Rooyen said that he had no problem with the Bill.

Ms Oliphant suggested that Members be given some time to consult their political parties.

The Committee unanimously agreed to meet on Tuesday 21 October to finalise the Bill.

Approval of Minutes and Programme
Members approved the Minutes of the meetings of 23 September, subject to the correction of Mr van Rooyen's initials.

Ms Oliphant noted that if there was to be any other Section 76 legislation coming through, this should be discussed by the Committee before it was put on the programme.

The meeting was adjourned.

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