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LEGAL OPINION
[Confidential]

TO: 	Mr V Smith, MP
	The Chairperson of the Interim Joint Committee on Scrutiny of Delegated 
	Legislation 

DATE:	30 April 2013 

SUBJECT:	Alien and Invasive Species Regulations, 2012

Background

1.	The Minister of Water and Environmental Affairs (the Minister) submitted the draft Alien and Invasive Species Regulations, (the draft Regulations) to the Chairperson of the National Council of Provinces (the NCOP) on 5 February 2013.The draft Regulations were tabled in the NCOP and referred on 25 February 2013 to the Select Committee on Land and Environmental Affairs and the Interim Joint Committee on Scrutiny of Delegated Legislation (the Committee) for consideration and report (ATC, 25 February 2013). 

2.	Our Office was requested to comment on the draft Regulations.

Regulatory framework

3.	The draft Regulations were submitted to the NCOP for approval in terms of section 8(3) of the National Environmental Management: Biodiversity Act, 2004 (Act No.10 of 2004) (the Act) read with section 146(6) of the Constitution of the Republic of South Africa, 1996 (the Constitution). Section 146(6) of the Constitution provides that “A law made in terms of an Act of Parliament or a provincial Act can prevail only if that law has been approved by the National Council of Provinces”.

4.	Section 8(3) of the Act provides that “...the Minister must, in terms of section 146(6) of the Constitution, submit all subordinate legislation issued in terms of this Act which affects provinces to the National Council of Provinces for approval”.

5.	Section 97(1) of the Act gives powers to the Minister to make regulations and section 97(3) provides that “Before publishing any regulations in terms of subsection (1), or any amendment to the regulations, the Minister must follow a consultative process in accordance with section 99 and 100 of the Act”.

6.	Section 99 and 100 of the Act require the Minister to follow an appropriate consultative process before exercising a power which must be exercised in accordance with both sections of the Act.     

7.	The Committee must, amongst others, scrutinise delegated legislation that requires approval by Parliament in accordance with the criteria set out in the interim Rules applicable to the Committee (ATC, 20 September 2011, Rule 3(2)(ii) read with rule 4(1)).  

Advice

8.	The draft Regulations deal with the issues provided for in section 97(1) of the Act. It is necessary to compare the provisions of the draft Regulations with the criteria set out in interim rule 4(1).

9.	The draft regulations have no provisions imposing levies, taxes or duties. 

10.	The draft Regulations appear to comply with the procedural aspects insofar as submitting the Regulations to Parliament for approval is concerned which is the process at hand. We have received a written confirmation from the Department of Water and Environmental Affairs detailing a step by step consultative process that was followed in compliance with the provisions of section 99 and 100 of the Act. We are therefore satisfied that an appropriate consultative process was followed.

11.	The draft Regulations do not impinge on the jurisdiction of the Courts.

12.	There is no provision for retrospective operation of the draft Regulations. Draft regulation 40 provides that the Regulations “take effect on a date to be determined by the Minister by notice in the Gazette”.

13.	The draft Regulations conform to the objects of the Act.

14.	The provisions of the draft Regulations do not appear to make unusual use of powers conferred by the Act.
The Act confers powers on the Minister to make regulations. The Minister is   doing so in respect of section 97(1) of the Act as stated in paragraph 5 above. In addition to the specific provisions of section 197(1) (a) to (f), paragraph (g) provides that the Minister may make regulations regarding, “any other matter that may be prescribed in terms of this Act” and paragraph (h) further provides for the Minister to make regulations on any matter that may be necessary to facilitate the implementation of this Act.  
None of the regulations seem to be outside the powers conferred upon the Minister. 

15.	Subject to the comments below, the draft Regulations are properly drafted.

Regulation 1 which deals with definitions states that the meaning of words in the Regulations is the same as the meaning assigned to those words in the Act unless the contents indicates otherwise.
‘Listed invasive species” and “MEC” are defined in the Act and in the draft regulations. We recommend for both words to be deleted in the draft regulations.      

16.	 The draft Regulations do not trespass on personal rights and liberties, including those set out in the Bill of Rights, in a manner inconsistent with the Constitution.

The draft Regulations do not amount to substantive legislation.