ATC231017: Report of the Portfolio Committee on Transport on the Public Hearings Held on the Marine Oil Pollution (Preparedness, Response and Cooperation) Bill [B 10-2022], Dated 17 October 2023

INDUSTRY

STAKEHOLDER

Government Departments/Entities (Provincial Dept, Municipal Dept and SOE/Chapter 9)

Millicent Makoala – Directorate: Oceans Conservation Strategies:  Department of Forestry, Fisheries and the Environment

Bernice Labuschagne on behalf of A Bredell (MEC) – Western Cape Provincial Government:  Ministry of Local Government, Environmental Affairs and Development Planning

City of Cape Town – Ted (Edward) Knott

Head: Coastal Co-ordination, Centralised Operations & Programmes – Recreation & Parks

Soetwater Resort, Environmental Education Centre

Community Services & Health                                           

Industry Representative Bodies

SAPIA (SA Petroleum Industry Association) – Fatima B Shaik

Head:  Health, Safety, Security and Environment

Southern African Foundation for the Conservation of Coastal Birds (SANCCOB) – Monica Stassen

Academia, Research bodies, Other Companies and Private Individuals

Total Energies (TEEPSA) – Khuliso Mudau

Environmental Coordinator

Total Energies EP South Africa B.V. – on behalf of Eduard Groenewald, HSE Manager

Johan Herholdt

Marietjie Ferreira

Mike Watson

Henk Louw

Judith Lehman

Armand Adendorff

Kevin Alexander

Carol Hunt

Charzi G

Terence Ives

Percy Langa

Helen Seccombe

Wayne Murphy

Heinrich Kilian

Shaun Wallace

Marne Ludick

Mike Labuschagne

Mada Labuschagne

Lindy Duwe

Denise Kerr

Maretha Meyer

Neels Coetzee

CLAUSES OF THE BILL COMMENTED ON

  NAME OF PARTICIPANT

DOT RESPONSES

SANCCOB: It is a non-profit marine conservation organisation, with two centres situated in Cape Town (Western Cape) and Gqeberha (Eastern Cape). Its primary objective is to reverse the decline of seabird populations in southern Africa, the flagship species being the endangered African penguin that is endemic to the African continent.

General Comments

-SANCCOB welcomed the proposed Bill and held the view that this proposal was a significant step in improving South Africa’s preparedness to respond to marine oil pollution incidents.

-It was also pleased to see that a wildlife response has been included under several points of the bill.

-Although SANCCOB welcomed the proposed Bill, it for some reasons, expressed its hesitation to:

• raise a concern around the level of capacity (personnel and resources) within government to implement the various activities listed in the bill and;
• strongly urges that the government determines the capacity required to implement the bill successfully and plans for it accordingly.

The Department notes this observation from SANCOB and welcomes it. The Department wishes to further advise the Committee that a detailed implementation plan is currently going through the approval processes.

Clause 5(2)

-SANCCOB submitted the following in relation to clause 5(2)(a)-(g):

• that there is no explicit mention of the ship-to-ship fuel transfers will be included in the risk assessment,
• that there is broad mention of “high risk areas” and “oil and gas exploration, extraction or decommissioning applications” but nothing specific to this practice and
• that it is very important for the said activities to be specifically named in the bill given the risk involved. 

The Department notes the observation made by SANCCOB in relation to clause 5(2)(a)-(g).

• Firstly, there is no intention in how this part is drafted to leave out a risky potential pollution event and in our opinion the reading of clause 5(2)(b), must be with the understanding that the “…potential pollution event…” includes events such as the “ship to ship fuel transfers”. The Department will be open to suggestions if needed to clarify this point in the Bill.

Clause 5(4)

-SANCCOB welcomed this provision but recommends that any risk assessment methodology is defined and agreed on beforehand because “Internationally accepted risk assessment” can be very subjective as numerous methodologies exist and this leaves it open to interpretation. 

The Department notes the SANCCOB recommendation but wishes to caution against the danger of being too prescriptive more especially in areas purely heavily influenced by trends based on industry practices. We therefore wish to have the flexibility and guidance provided in 5(4) retained for the above reasons. By doing this we will provide the undertakers of the risk assessment the freedom to obtain the best solution that could be available on the market at the point of execution.

Clause 5(5)

-SANCCOB was of the view that this provision is not very clear and seeks clarity on whether or not it means that after two years the marine oil pollution risk assessment be undertaken by owner and operator of a port facility. 

All handlers of oil products operating in areas under the jurisdiction of this Bill have a responsibility to undertake risk assessment as per section 5 of this Bill. This is how it is intended to work; the Authority undertakes the national risk assessment; in 5(5) owners and operators of facilities are compelled to undertake site specific risk assessment; 5(10) compels proponents of new facilities to undertake risk assessments on their developments. Further details are provided for under section 7(1) SANCCOB is reading the section correctly indeed.   

Clause 7(1) and (2)

 -SANCCOB welcomed this inclusion. However, SANCCOB does want to caution that a simple paragraph on oiled wildlife response is not adequate and that an oiled wildlife contingency plan must be completed and included as an Appendix for all OSCP’s.

-According to SANCCOB, these plans must be developed in line with international best practice guidelines.  

We note this comment from SANCCOB but consider that SANCCOB will be part of the development of the OSCP. The response mechanism in the Bill promotes a greater cooperation and therefore it will be upon SANCCOB to ensure that response to oiled wildlife is well articulated and provided for in the OSCP. In the event that in the wisdom of the drafters of the OSCP, annexing the oiled Wildlife Contingency plan is the best solution, we recommend that it must be dealt with at that level of the OSCP development 

Clause 8(2)

-SANCCOB requires clarity on whether or not this provision include oiled wildlife response equipment and an oiled wildlife personnel.

“…personnel that are competent to deploy the pollution response equipment. This part must be read together with (5) this will be guided by the national administrative arrangement and standard operating procedure. Yes, it includes personnel as well.

Clause 9(1)

-SANCCOB requires clarity on whether or not a budget will be made available for training and exercises to take place.

Yes, training is part of the preparedness and response and therefore there will be training to be coordinated by the Incident Management Organization which will be funded and in addition individual parties will be expected to have their own budget for training of their personnel as per their risk assessment plan

Clause 9(2)(a)

-SANCCOB welcomed the inclusion of oiled wildlife response into the training requirements on the grounds that, it is fundamental that owners and operators have a basic understanding of oiled wildlife response and what it entails.

We note and welcome this comment and envisage that since SANCCOB will be a member and an active participant in the Incident Management Organization 

Clause 11(8)         

It is SANCCOB’s view that biannual period required in this provision is not often going to be enough and as a solution, suggests that meetings should be conducted quarterly to ensure activities are progressing and any challenges are addressed.

The Department welcomes the comment however wishes to point out that the manner the section is drafted is flexible enough to allow the Incident Management Organisation to meet more that it is stipulated here. To enable this, we have used words “at least.” 

Clause 15(5)

-SANCCOB required clarity on whether or not financial decision-making power is included in this regard.

Yes, including financial decision-making power in this regard

SAPIA: It is the voice of the petroleum industry in South Africa. The Association plays a strategic role in addressing a range of common issues relating to the refining, distribution, and marketing of petroleum products, as well as promoting the industry’s health, safety, security, environmental and socio-economic progress.

General Comments

SAPIA welcomes the Marine Oil Pollution Bill and views it as a key milestone in improving the institutional infrastructure and capacity to effectively manage marine oil spills in South Africa.

We note and welcome SAPIA’s acknowledgement of this Bill as a key milestone.

Clause 5(1) and (5)

-SAPIA was of the view that:

• there is an interdependency between the risk assessment conducted at a national level and a local operator level;
• in the current requirements entities will be working in silos and either contradicting or omitting information;
• this facility risk assessment will potentially need to be revised when the national risk assessment is released if there are omissions, etc. and
• this risk assessment will then need to form part of the NOSCP, etc. causing further rework.

-As a proposed solution to the raised issues, SAPIA proposes that;

• a staggered timeline is recommended. For example; national risk assessment within 24 months and facility risk assessment within 36 months to allow for amendments and alignment. 

We welcome SAPIA’s comments and respond as follows:

• yes, interdependency exists.
• Noted
• Yes
• Correct

Response to the proposals:

• Noted

Clause 5(2)(g)

-SAPIA was of the view that it is unclear what will determine high-risk referred to therein and as a solution to the dilemma herein created, proposes that “high risk” be defined or “risk determination methodology” be referenced.

These would have been identified in the NOSCP

Clause 5(8)

-With regard to clause 5(8), SAPIA submits that decommissioning is already covered in SA’s existing legislative framework with the DFFE being the competent authority with respect to decommissioning and remediation. 

-SAPIA proposes that reference to the existing legislative framework must be considered in this way;

• for “decommissioning”, reference must be made to the National Environmental Management Act (NEMA) - EIA regulations - Listing notice 1 and
• for “remediation”, reference must be made to the National Environmental Management Waste Act.

As long as this provision does not contradict the legislation referred to by SAPIA, there is no harm in providing for this obligation here;

Clause 7(1)

-SAPIA of the view that:

• the 9-months’ time period referred to therein is too short and some operators have multiple facilities across the country and will require multiple plans with site specific information and interventions;
• Operators may make use of international service providers as they may not have internal specialist capabilities. There are a limited number of competent service providers in this field and
• Specialist studies will be required on the various species and the interventions then adapted as required. The current national wildlife contingency plan is not site specific but references wildlife generically.

-In this regard, SAPIA proposes that recommended time period is 12 months instead of 9 months.

The Department notes this comment but is concerned about the generality of the statement. If it is considered doable to operators with single facilities, where do you draw the line. As a solution, we could suggest the following language: “…nine months and not later than twelve months after…”

Clause 8(6)(a)

-SAPIA proposes that this provision be reworded by replacing the word “any” with the words “‘oil pollutants” for the following reasons;

• the expectation is that ship owners and operators carry marine ‘oil’ pollution response equipment;
• such equipment which will not be suitable for ‘any’ pollutant, e.g. Ammonia and other materials that maybe on board a vessel and may require other forms of response equipment

The Department welcomes the SAPIA comment and the resultant recommended replacement of the word “any” with the words “oil pollutants” for the reasons advanced. Indeed, this Bill is about oil pollution.

Clause 9(2)(a)

-This provision requires owners and operators of port facilities, oil handling facilities and offshore installations to ensure through accredited third parties that an annual programme of training and exercises in marine oil pollution control etc., or relevant staff from their organizations.

-SAPIA is of the view that there are limited local suppliers to offer the said training and exercises and as a result proposes that this provision be reworded to include both local and international accredited third parties.

We note and welcome the SAPIA comment and recommendation to include “…both local and international…” We consider this proposed solution to be appropriate as a risk mitigation.

Clause 13(a)

-SAPIA proposes that this provision be deleted on the basis that’;

• Reporting incidents is a duplicate requirement because land-based spills are currently reported in terms of the National Environmental Management Act, Section 30 and incidents are managed via the DFFE. Where necessary DFFE will issue notices, directives, etc. and monitor the containment and remediation measures.

The comment is noted. However, the Department wishes to advise the Committee that this Bill regulates pollution preparedness and response, and reporting incidents constitutes the critical if not the enabler or trigger of response. The Department therefore does not support this recommendation of SAPIA.

Clause 14(2)(a)(b)(c)

-SAPIA proposes that the reference to NOSCP be removed as the Incident Commander will be able to mobilize equipment via the IMO. SAPIA’s proposal is based on the following;

• The tiers outlined are characterized by refence to the national capability in the NOSCP;
• Operators tend to characterise tiers by reference to capability that they have direct control over, and as such, can mobilise immediately and
• Operators may not be able to mobilize capability that is in the NOSCP and managed by another Operator/Authority.

The Department notes the comments. However, the Department does not consider the recommendation as improvement to the Bill. The purpose of section 14 is to clarify and regulate the activities of the Incident Command Team. The function and role of the Incident Commander are provided for in greater detail under section 15. Therefore, the Department does not agree with this recommendation.

Clause 15(1)(b)

-SAPIA is of the view that determination of the size of the incident management system will allow for the response team to be scalable and as a result proposes that this provision be revised to require determinate of the size of the incident response team.

The Department notes the SAPIA comments. The Department wishes to draw the attention of the Committee to the definition of the Incident Management System and advise that the size of response team be not regulated in this instrument as this may be counterproductive to be determined upfront. Let us allow the Incident Commander using the system deploy the required resources required as the situation unfolds.

Clause 16(1)

-SAPIA submits that there appears to be some words missing after the word “appropriate” therein.

The question from SAPIA is noted. However, the use of language here intends clarifying the fact that not all parties who have signed the Mutual Assistant Agreement may be appropriate to the support that the Incident Commander may be seeking hence the inclusion of the conditionality of “appropriate”.

Clause 17(3)(a)

-SAPIA is of the view that National resource damage assessment (NRDA) is a US concept that was set out in the Oil Pollution Act of 1990 that requires Federal Authorities (trustees) to allow the pursuit of financial compensation for damages/injuries to natural resources and proposes that in order to avoid confusion, reference to NRDA is removed and replaced with reference to ‘Assessment of damage and monitoring of natural resources.’ 

We note the comment but disagree that this will result in unintended consequences. The aim of these words is to empower the authorities to undertake follow up assessment and monitoring to determine the extent of damage (if any) to the country’s natural resources. The outcome of these assessments will help the country recover cost on the basis of the polluter pay principle.

Clause 30(2)

-SAPIA proposes that a new category for fixed operators be introduced with a threshold of 5 million rand and 1-year imprisonment on the basis that;

• for oil operators that have fixed facility and who are required to comply with a plethora of legal requirements to prevent any major incident from occurring, the threshold of the fines is excessive;
• in terms of the NERSA licensing requirements under the Petroleum Products Amendment Act this category of operators are required to have financial provisioning in place, should a major incident occur and it is part of their licensing requirements;
• these operators are also subject to fines under NEMA and
• the challenge is the inconsistency in the application of this clause to absent ship owners who will not be held to the same penalties by virtue of them being absent.

This Bill is about preparedness and response and in order to ensure full compliance these sanctions have been provided for the simple reason of ensuring that the Republic has a functioning preparedness and response regime that works. The test in section 30 is “willful” “gross negligence”. The State will have to prove without reasonable doubt their existence in any case of alleged offence.

Schedule of the Bill (Amendment of Laws)

-The proposal with respect to the establishment of the Maritime Pollution Preparedness and Response Fund is rejected and must be consulted on widely before any amendments are made with respect to this fund in the SAMSA Act of 1998.

-SAPIA’s rejection of the proposed provision is based on the following;

• the sector has made appropriate and adequate arrangements for oil spill preparedness and response including incidents via a wide range of financial instruments;
• the establishment of a Maritime Pollution Preparedness and Response Fund is a significant development and requires proper consultation and engagement via regulations;
• the activities with respect to prevent, prepare, respond and combat pollution needs to be clearly stipulated and ring-fenced to prevent mismanagement of funds;
• the quantum of this fund needs to be understood;
• the administrative processes with respect to management of monies need to be clearly articulated;
• processes with respect to levy determination and a SAEIS with respect to this, needs to be clearly articulated and agreed by stakeholders;
• Oil companies are already contributing to the IOPC levy as per the rates gazette by the Minister of Finance;
• Oil companies also have financial provisions in place for facilities should an incident occur;
• Oil companies also have agreements in place with service providers (local and international), may have their own equipment stockpiles and/or may have jointly managed equipment stockpiles;
• Facilities are also insured; and
• the ‘Polluter pays principle’ applies and the sector cannot be paying for cleanups associated with absent third-party operators

We note the rejection by SAPIA. But we consider this as being made from a misinformed position. The Department is not proposing the establishment a new fund but proposes the repurposing of an existing fund. There are no financial resources dedicated to preparedness and response and if we aspire to be the International Maritime Centre providing for preparedness and response is the right thing to do. The levy being paid for IOPC Funds does not provide for preparedness and response. States have to fend for themselves and the impact of not providing for appropriately will expose the Republic.

TEEPSA: It is a petroleum (Oil and Gas) company that holds exploration rights offshore South Africa for exploration and production under the Mineral and Petroleum Resources Development Act, 28 0f 2002.

Clause 5(1)

-TEEPSA is of the opinion that;

• Risk Assessment must be conducted in consultation with other stakeholders e.g. Oil & Gas industry, Biodiversity etc.;
• A definition of “new development” will need to be created as it is not clear as to what will constitute a new development within this context;

The Department notes the TEEPSA comment on Risk Assessment and their suggestion that it must be conducted in consultation. The Department wishes to assure the TEEPSA that stakeholders actively participate during the undertaking of risk assessment.

We offer the following definition for “new development: “new development” means whichever that alters the risk of marine oil pollution incidents in a port facility, oil handling facility or offshore installation, whichever comes first”

Clause 5(2)(b)

-TEEPSA is of the opinion that reference to lodged applications be removed as required to form part of risk assessment because this may become cumbersome for the Authority to include an application which has not yet been granted.

Noted and agreed

Clause 5(3)

-According to TEEPSA the phrasing of this section suggests that the approval or otherwise any proposed new port facility, new oil facility or new offshore installation is informed by the findings of the risk assessment and dependent thereto. For this reason, TEEPSA submits that, this would mean that if no risk assessment is undertaken by the Department, any decision on the approval or otherwise of any proposed new port facility, new oil facility or new offshore installation is not valid as the decision would not have been informed by that risk assessment.

We note TEEPSA comments under this section and wish to concur that future development will be approved contingent upon the undertaking of risk assessment.

Clause 5(5)

-In relation to this provision, TEEPSA raises the following clarity seeking questions;

• What are the criteria or definition of an oil-handling facility? and
• Are there any parameters that would qualify the defining/scope of the oil-handling facility to fit the scope of the risk assessment in terms of the Act? For example;

• Temporary storage of oil (less than 3 months) would be considered an oil-handling facility?
• Capacity requirements of oil-handling capacity, e.g., 80m3, 500m3?
• Location-is distance from marine/coastal area considered to qualify for the risk assessment?

-Furthermore, TEEPSA seeks clarity on whether or not the definition of “oil-handling facility” is restricted to pure oil or includes its other products e.g., diesel, petrol, gas, lubricants, etc.

-As an overall solution to the issues raised, TEEPSA recommends that, the definition and scope of an oil-handling facility be clearly provided, considering inter alia, the above comments.

Whilst noting this comment from TEEPSA, we draw the attention of the Committee that the Bill does define “seaports and oil handling facilities”. We wish to further clarify that the length of storage; the capacity does not matter. In terms of distance, it has to be only those facilities that are within boundaries of the port or anything that is offshore.

We wish to draw the attention of the Committee that, “oil” is also defined as follows: “…petroleum in any form including crude oil, fuel oil, sludge, oil refuse and refined products.”

The Department is of the view that the definition is all encompassing and to try and define to granular quality may just result in unintended consequences

Clause 5(7)

-Based on the fact that the definition of “offshore installation” includes, “(b) any exploration or production platform used in prospecting for, or the mining of, any substance; or (c) any exploration or production vessel used in prospecting for, or the mining of, any substance"; TEEPSA recommends that; there should a distinction between petroleum exploration and mineral prospecting, as these are two different sectors with different objectives and related activities.

-TEEPSA further submits that, the terminology used in the Bill is misplaced and terms do not mean the same thing. For example, in the oil and gas sector, exploration is used instead of prospecting while in the mining sector, prospecting is used instead of exploration. The same according to TEEPSA, applies for the terms “production” which is used in the oil and gas sector, and “mining” which is used in the mineral mining sector.

-It is therefore proposed that the definition of “offshore installation” be revised in consideration of the above raised issues.

In all these cases the focus of the Bill is not necessarily on the production process. The Bill follows oil handling. The platforms may handle oil as fuel used for production and or as produce from the operation of that facility. In the view of the Department the definition has been made tight for purposes of focusing on the ship or the platform. We however welcome the recommendation from TEEPSA to correct the terminology. We are therefore suggesting this matter be resolved as follows: In the definition of “offshore Installations” we will amend as follows.

“…(a) (ii), exploration, prospecting…

(b) any (exploration) in exploration oil; or in

(c) “any (exploration or)

Clause 5(8)

-In relation to this provision, TEEPSA submits that,

• Exploration activities of the oil and gas sector (Seismic and exploration drilling) are conducted over a short period of time, generally amounting to a period of up to three to four months per activity.
• For seismic activities, there are non-invasive activities, i.e., no physical contact with the environment-which would require rehabilitation at the end of the activity and as such, a risk assessment post cessation of the exploration would not be possible.

-It is therefore recommended that, the risk assessment be restricted to invasive activities, or activities that will have a physical impact on the environment.

Noted, we would explore this point

Clause 5(9)(e)

-TEEPSA is of the view that, it is not clear whose responsibility it is to make available as public reports, as prescribed.

-TEEPSA recommends that this responsibility must be assigned to the DOT.

-Furthermore, TEEPSA proposes that in order to ensure centralization of reports and that any issues around the reports, can be directly reported to the DOT, clause 5(4) and 5(11) reports must be reported to the DOT.

We note the comment. However, the reporting will be prescribed in regulation. It must be noted that the Risk Assessment belongs to the one undertaking it and as such the responsibility of publishing will remain with the owner of the report.

Clause 7(1)

-TEEPSA is of the view that nine months after the publication is an indefinite period because it could be any period after nine months. It is therefore proposed that this clause be revised to be more specific e.g., by changing the wording to “within 18 months of the publication”.

Within 9 months of publication is preferred reformulation

Clause 14(1)

-In relation to this provision, TEEPSA seeks clarity as to whether or not there are reporting requirements for marine oil pollution incidents outlined in the Bill, including thresholds, timeframes, and communication.

Reporting requirements will be detailed in the NOSCP guidelines and procedures

Clause 18(1) and (2)

-TEEPSA requires clarity as to what is the applicability scope of the Merchant Shipping (Civil Liability Convention) Act, 2013 in terms of cost recovery and compensation, for example;

• Would the Act cover recovery and compensation for oil spills case by pipeline ruptures, well blow out during drilling activities or related to production activities?
• An oil spill that starts onshore e.g., from an onshore oil handling facility, would it be covered by the Act?
• Any other scenario that is not shipping?

-TEEPSA also seeks clarity if the IOPC covers all scenarios described above.

-TEEPSA proposes that in order to address the unclear issues raised above, the Bill must define the applicability of the Oil & Gas majors, who are not covered by the Merchant Shipping Act.

TEEPSA should refer to the relevant Act as cited under this part to have a better understanding of the scope of that Act. The polluter has to be a ship to trigger a claim under that Act.

The basis of this Act is ships and off shore oil handling facilities

Clause 20(1)

-With regard to this provision, TEEPSA proposes that there must be an inclusion of a provision that mandates regular review and assessment of the effectiveness of the measures taken under clause 19.

Agreed and it should be stated that the Incident Commander works with the Incident Management Committee under the framework of the NOSCP. The NOSCP system depends on reviews, exercises, and assessments etc.

Ministry of Local Government, Environmental Affairs & Development Planning (Western Cape Government)

General Comments

-The Bill must be clear on how provincial governments and municipalities will be involved when an oil pollution incident has occurred.

-It is submitted that clear communication structures must be in place to ensure that provincial governments and municipalities are informed about incidents and the actions taken to deal with the incidents.

The Incident Management Organization provides the platform of engagement between stakeholders in different spheres

Explanatory Note

-Submits that, the Bill is not an amendment Bill and the General Explanatory Note at the top of page 2 regarding insertions in existing enactments is therefore unnecessary and must be deleted.

Agreed will be removed

Clause 1 (Definitions)

-Western Cape Government provided comments in respect of the following definitions:

• “Authority”

-according to the Western Cape’s observation, the definition of “Authority” refers to the South African Maritime Safety Authority Act, 1998 (Act 5 of 1998). There are frequent references to this Act throughout the Bill.

-It is therefore recommended that a definition be inserted for this Act as follows: “South African Maritime Safety Authority Act” means the South African Maritime Safety Authority Act, 1998 (Act No. 5 of 1998); then the Act can be referred to in the Bill without citing it in full as is currently done. The same applies to the Marine Pollution (Control and Civil Liability) Act, 1981 (Act No. 6 of 1981).

• “Centre for Sea watch”

-no explanation is provided for the meaning of “SAMSA” and as a result proposes that a definition should be inserted in the Bill for SAMSA to provide for clarity.

• “flag state”

-the definition of “flag state” refers to “the vessel”. It is submitted that it would be more appropriate to refer to “a vessel” here. 

-Furthermore, it is not clear what is meant by “vessel” as the word is not defined. The word “ship” is defined to mean “a vessel of any type”.   

Consider.

-Consider replacing the definite article with an indefinite article i.e., “a vessel”.

-Consider replacing “vessel” with “ship” as ship is defined and refers to any vessel.

• “incident command course”

-It is submitted that in the definition reference should be made to who offers the compulsory course and in terms of what.  

• “incident management system”

-Western Cape Government proposes that, this definition be reworded as follows: “the safe and efficient management of response to, and the command and deployment of all type of resources for, marine pollution incidents”.

• “International Maritime Organization”

-Western Cape Government does not support the use of “z” in this definition on the basis that South Africa adheres to Commonwealth legislative drafting practices and the word is therefore spelled “Organization” with an “s”. See also the definition of “Incident Management Organization” in this regard.

• “offshore installation”

-It is submitted that for the sake of consistency and clarity, the reference to “internal waters, territorial waters or the Exclusive Economic Zone” in the definition of “offshore installation” should also be linked to the Maritime Zones Act, 1994.

-Alternatively, a definition should be inserted in the draft for these terms which refers to the relevant sections in the Maritime Zones Act, 1994. Furthermore, the definition of “offshore installation” refers to “Exclusive Economic Zone” in upper case. In the definition of “South African waters” this term is spelled with lower case. It is submitted that consistency in wording is important in legislative drafting. 

• “Republic”

-It is submitted that the Interpretation Act, 1957 (Act 33 of 1957) provides a definition for “the Republic” and that since the Interpretation Act, 1957, has application to all laws, the definition for “Republic” can be omitted from this Bill.   

• “ship”

- it is submitted that this definition is identical to the definition for “ship” used in the International Convention on Oil Pollution, Preparedness, Response and Cooperation, 1990 (OPRC Convention) and that  since the introductory wording of clause 1 pertaining to definitions reads: “In this Act, unless the context indicates otherwise, any meaning ascribed to a word or expression in the OPRC Convention bears the meaning so ascribed…”, the definition of “ship” can be omitted from the Bill.  

We will consider the suggested drafting style.

It was considered unnecessary to define this term because it is used infrequently in this Bill

The approach in defining a ship is borrowed from the Convention and has not been problematic in other instrument and the interchangeable use is tradition in the maritime industry. Therefore, we do not see the need to change this definition as it does not add any particular value.

The Course will be coordinated by the Incident Management Organisation under the framework of the NOSCP.

We welcome the inclusion of the preposition, “to”. We consider it appropriate.

South Africa as Member of the International Maritime Organisation is bound by the IMO founding treaty. When South Africa ratified and presented its instrument of accession, no reservation was made as to the use of “z”.

We note and welcome to the suggestion to align the definition with the Maritime Zones Act, 1994

We note this observation and will review as we finalize the text in the final stages.

Noted

Clause 2(c)

-Western Cape Government submits that the International Convention on Oil Pollution Preparedness, Response and Cooperation, 1990, has been defined as “OPRC Convention” and as a result it will be appropriate if the defined term is therefore also used in clause 2(c)

Noted

Clause 3(2)

- This clause refers to “article 14” but there is no indication that it is an article of the OPRC Convention and as a result it is Western Cape Government’s submission that the clause should be reworded as “article 14 of that Convention.

Noted and agreed

Clause 4(2)

-Western Cape Government is of the opinion that the Bill must provide guidance and clarity as to what would constitute an “emergency” as some emergencies are sudden and unpredictable, while others have a slow onset, possibly due to gradual equipment failure resulting from a lack of maintenance.

-According to Western Cape Government, these two situations require different responses and as a result a definition for “emergency” should be inserted.

The following definition is proposed: “emergency” means, an unforeseen combination of circumstances or the resulting state that calls for immediate action.[1]

Clause 4(4)

  -It is submitted that clause 4(4) be reworded: “Notwithstanding subsections (1), (2) and (3) …” as opposed to “Notwithstanding all the above”

-It is also submitted that the use of the phrase “this Act will apply to” must be changed to “this Act applies to”.

-Clarity is also required whether “marine casualty” should be used in subclause (4).

 -it is also submitted that “naval base” should be spelled with lower case letters.

Noted and agreed

The naval base is always on Water and therefore not necessary to qualify the location of casualty under this part

Clause 5(1)

-Concern is raised with regard to the use of the words “the envisaged Marine Oil Pollution (Preparedness, Response and Cooperation) Act”. In this regard, the Western Cape Government proposes that It is accepted legislative drafting practice to draft in the present tense and for that reason this clause should be amended to refer to “this Act” as opposed to “the envisaged Marine Oil Pollution (Preparedness, Response and Cooperation) Act”.

-The use of the phrase there is “new development” is problematic according to the Western Cape Government because of the following two reasons:

• It is not clear who will determine what constitutes a “new development.”
• Whether a new terrestrial development, such as an industrial park, that results in increased shipping be regarded as a “new development”.

-As a proposed solution, the Western Cape Government submits that, the indefinite article “a” should be inserted so as to read “…there is a new development…”. See subclause (7) in this regard. Consider the proper use of definite and indefinite articles throughout the Bill.

Noted but prefer the current formulation.

“new development” means whichever that alters the risk of marine oil pollution incidents in a port facility, oil handling facility or offshore installation, whichever comes first”

Clause 5(2)

-Western Cape Government submits that this clause states: “The risk assessments undertaken under subsection (1) must be reported to the Director General…”. It is accepted drafting practice to draft in the active tense.  -It is also submitted that, it is not clear who must do the reporting referred to therein. 

-As a solution to the raised concern, Western Cape Government proposes that this clause should be reworded to read; “The Authority must report on the risk assessments undertaken under subsection (1) to the Director-General…”.

-It is further submitted that, it is accepted legislative drafting practice to confer duties and powers on an individual within an entity such as the Authority. Consider rewording this so that the Chief Executive Officer, as defined, must report to the Director-General.  

Noted and the redrafting accepted as improvement as follows:

“The Authority must report on the risk assessments undertaken under subsection (1) to the Director-General…”.

Clause 5(5)

-Western Cape Government is of the view that, the way in which this clause is drafted is that it refers to an action by the Director-General while on the other hand it appears, however, that the intention in clause 30(1)(b) is to penalize the owner and operator.

-It is therefore proposed that a positive obligation should be placed on the owner and operator to undertake a marine oil pollution risk assessment and a failure to uphold this obligation will be the basis for the offence contemplated in clause 30(1)(b). 

Noted and recommendation to strengthen this part is supported

Clause 5(13)

-It is submitted that the establishment and composition of the review panels referred to therein is not clear and as a result the proposed solution is that, the Bill needs to include further details regarding the establishment, composition etc. of the review panels.

Noted and in order to deal with the issues raised, the Director General will appoint review panel in “prescribed manner”

Clause 6(3)

-It is proposed that words “Government Gazette” must be italicized simply because it is accepted drafting practice to do so.

Noted and agreed

Clause 7(1)

-It is submitted that the wording of this clause is illogical and does not flow smoothly. The clause states that owners or operators of designated marine protected areas and marine bird and mammal colonies must develop a site-specific pollution contingency plan which is appropriate to the level and type of risk of marine oil pollution incidents “resulting from their activities”. In this regard, the Western Cape Government is of the view that, it is unlikely that the activities of a marine protected area or marine bird and mammal colony will result in a marine oil pollution incident.

 -It is submitted that “their activities” refers to the owners and operators of existing port facilities, oil-handling facilities or offshore installations.

- Western Cape Government also holds the view that, while it is agreed that owners or operators of marine protected areas and marine bird and mammal colonies must develop a site-specific pollution contingency plan, the plan cannot be appropriate to the level and type of risk of marine oil pollution incidents “resulting from their activities” and the wording of this clause needs to be reconsidered in order to deal with the dilemma created.

-Lastly, the Western Cape Government submits that this clause refers to “designated” marine protected areas but it is not clear who will do the designating or in terms of what the designation will be done.

Noted. However, stakeholders impacted by this provision were part of the richening of this and no concern from them has been received. We therefore do not see value in redrafting this part.

Clause 7(2)

-Western Cape Government is of the view that, since this clause refers to the National Oiled Wildlife Contingency Plan, it is necessary to also provide further details regarding the plan so that it can be accurately identified, and those details must cover matters such as who compiled the plan and in terms of what powers or provisions.

The NGOs active in this space including SANCCOB will be key in the drafting of the plan. In any event the Regulations will further provide clarity in this area.

Clause 7(3)

-In relation to this provision, Western Cape Government is of the view that, the sentence “The plan so submitted must be approved by the Authority within 60 days of submission.” should be inserted as a separate subclause reason being that, it is accepted legislative drafting practice to daft in the active tense, and therefore this subclause may be redrafted as follows: “The Authority must approve the plan contemplated in subclause (3) within 60 days of the plan being submitted.”

-Furthermore, is submitted that, as pointed out elsewhere, duties and powers should be undertaken by individuals and the subclause must be redrafted so that the Chief Executive Officer or another official must approve the plan instead of an entity such as the Authority.

Noted and are agreed to the redrafting proposed.

Agreed that the CEO must approve the plan acting for the Authority

Clause 8(1)

-It is submitted that this clause (and the heading of clause 11) refers to “National Marine Oil Pollution Preparedness and Cooperation Incident Management Organization” and since the term “Incident Management Organization” is defined, it is proposed that the defined term should be used.

Noted

Clause 8(1)(d)

-Western Cape Government submits that there should be a semi colon before the “and” at the end of the draft paragraph.

Noted

Clause 8(6)

- It is submitted that this clause refers to “the MARPOL regime” and it is not clear what this means as no explanation has been provided in the Bill. Therefore, as a solution, the Western Cape Government proposes that a definition should be inserted for this term.

Noted this part will be redrafted to reflect the intention to refer to “Parties to the MARPOL Convention”

Clause 8(7)

- It is proposed that the official to undertake the auditing must be delegated but not appointed.

Noted and agreed

Clause 9(2)(b)

- Western Cape Government is of the view that this clause is incomplete because it is not clear what the action is in the sentence and therefore proposes as a solution that the owners and operators must ensure that the training and exercises are undertaken by the relevant staff.

At the end of section 9 (2) a) to insert “…is undertaken” sub 2 (b) will be retained as is

Clause 10(1)

-Western Cape Government notes that this clause refers to the “Centre for Sea-watch and Response” and the “Centre for Sea-watch” has been defined band proposes that the defined term must be used or amended to accommodate the text in the Bill.

 -According to the Western Cape Government, this clause is also incomplete. It states that the Head of the Centre for Sea-watch and Response must conduct an assessment to determine the capability of the immediate-incident-responding-party and monitor the effectiveness of the immediate-incident-responding-party. It is submitted that this should be done to determine the immediate-incident-responding-party’s ability to deal with the incident. There must be a link between the assessment of the capability and effectiveness of the immediate-incident-responding-party and the incident. As a result, the clause must be amended accordingly. 

Noted

Clause 10(4)

-It is proposed that this clause must be amended to refer to “oil pollution incident” as opposed to “oil spill incident”.

Noted and agreed

Clause 10(5)

-It is submitted that it is not necessary to upper case when referring to “Incident Command Course or equivalent Disaster Management Course” because the definition of “incident command course” uses lower case.

-Western Cape Government also submits that, in this clause the course is referred to as being “approved” whereas in the definition the course is “compulsory”. As a solution, it is proposed that the wording needs to be aligned. 

Noted and agreed

Clause 10(8)

-This clause states that the Authority “shall” develop and submit for approval…. It is accepted legislative drafting practice to indicate a duty with “must” and as a proposed solution, “shall” must be amended to “must”.

Noted and agreed

Clause 10(9)

-This clause states that the Director-General may appoint a Deputy Incident Commander to respond to a marine incident. It is not clear why the Director-General is not able to appoint an Incident Commander. It is therefore proposed that rewording of this provision be considered.

-The clause also refers to “Senior Manager”. It is submitted that this can be written in lower case. Furthermore, Western Cape Government is of the view that “Senior Manager” is an undefined term, so it is not clear who this individual is. Clarity is required if this person is the same as the “senior technical appointee” contemplated in clause 11(2)(a)?  It is further proposed that a definition should be inserted for this term.

Noted and agreed

Clause 11(1)

-It is proposed that the heading of this clause should be amended to “Incident Management Organization” as this is the defined term.

-It is also submitted that this clause refers to the “Incident Management organization” and the proposal is that “organization” should be spelled with an upper case ‘O’.

Noted

Clause 11(2)(a)

-Clarity is required as to who the “technical appointee” is because it is not clear from the Bill who this individual is or how he or she is appointed.

`noted

Clause 11(3)

-It is submitted that this clause should be reworded to state that “the Authority may invite” the representatives to be members. This will also identify who is doing the inviting.

Clause 13

-It is submitted that the heading of this clause refers to “incidents” and the proposal is that it should be amended to “oil pollution incidents” as this is a defined term.

-Western Cape Government is of the opinion that although this clause provides for the duty to report incidents, there is no clarity on when an incident must be reported and whether or not an incident be reported immediately when an incident occurs or within a specified timeframe. As a solution, it is proposed that timeframes must be provided with regard to the reporting of an incident.

Noted and agreed

Clause 13(a)

-It is submitted that the term “incidents” must be defined in relation to the spillage of a specific volume of oil that would trigger a response from the Authority because it may be difficult to report and capture small volumes of oil that are spilled into the environment, for example, would spillage amounting to a can of oil warrant a response from the Authority? The proposed solution is that consideration should be given to including thresholds that would warrant a report and a response from the Authority.

Noted

Clause 14(1)

-Western Cape Government submits that, this clause refers to the “NOSCP guidelines”. and “NOSCP” is defined in the Bill but there is no reference to guidelines. As a solution to the dilemma created, it is proposed that “guidelines” can be deleted.

-It is further submitted that the wording of this clause states that “the first actions of the Authority must be to report to the Incident Commander” and the proposal in this regard is that, this can be rewritten in the active tense as “the Authority must report to the Incident Commander”.

-It is also submitted that this clause refers to the Incident Commander “appointed as such by the Minister under section 10(3)” while on the hand Clause 10(3) states that the Minister must appoint a panel of competent persons who may act as Incident Commander or Deputy Incident Commander. In this regard, Western Cape Government is of the view that, this clearly refers to the Minister appointing more than one person to a panel and given that clause 14(1) refers to a marine oil pollution incident, it is submitted that it would be more correct to refer to clause 10(4) where the Authority must appoint from the panel an Incident Commander or Deputy Incident Commander in the event of an oil spill incident.  

Noted and agreed

Clause 14(2)(a)(b) and (c)

-It is submitted that draft paragraphs (a) and (b) refer to “spills” whereas draft paragraph (c) refers to “oil spills” and the proposal is that the wording therein need to be aligned to retain consistency.

-It is further submitted that, these draft paragraphs refer to “small” spills, “medium” spills and “large” spills but there is no guidance given as to what constitutes a small, medium or large spill and no definitions are provided. It is therefore proposed that clarity regarding the classification of the size of the spill is required.   

Noted and agreed

Clause 14(2)(b)

-This clause states that the response and clean-up must be controlled with support from the Incident Response Team “and the parties”, as required. The Western Cape Government is of the view that, it is not clear from the provision who these “parties” are and what their role is in the response and clean-up. Clarity is therefore required.

“parties” in this case could be the polluter

Clause 14(2) and (3)

-It is submitted that subclause (2) states that the tier level is determined by the Incident Response Team whereas subclause (3) implies that it is determined by the Incident Commander and in this regard, it is proposed that the wording needs to be clear in this regard.

-It is also proposed that “Tier” need not be spelled with uppercase.

Clause 15(1)

-It is submitted that this clause states that the Incident Commander must perform certain functions in response to “any oil pollution incident”. Western Cape Government is of the view that This appears to contradict clause 14(2)(a) where the response and clean-up of tier one spills are conducted by the owner or operator. The proposes solution is that clause 15(1) should be made subject to clause 14(2)(a) so that clause 15(1) does not apply in the case of small spills.

Clause 16

-It is submitted that the heading of this clause is “Support of disaster forums” whereas in the Arrangement of Sections it is referred to as “Support of disaster structures” and the proposal is that the wording needs to be aligned.

We welcome this comment and the language will be aligned appropriately

Clause 16(1)

-Western Cape Government submits that, this clause states: “…the Incident Commander, in line with a formal Mutual Assistance Agreement entered into between the relevant bodies and appropriate, may request the support…”. and according to its observation, there is wording missing after “appropriate” which needs to be inserted.

We note the comment of the Western Cape government. However, the use of language here intends clarifying the fact that not all parties who have signed the Mutual Assistant Agreement may be appropriate to the support that the Incident Commander may be seeking hence the inclusion of the conditionality of “appropriate”.

Clause 19(2)

-It is proposed that, the “or” at the end of draft paragraph (b) should be amended to an “and” because, this clause provides for an open-ended list of actions that the Authority may take.

The comment is noted and the suggested solution accepted as proposed.

Clause 19(3)

-It is submitted that the “or” at the end of draft paragraph (e) should be amended to an “and” because, this clause provides for an open-ended list of actions that the Authority may take.

The comment is noted and the suggested solution accepted as proposed.

Clause 21(1)

-It is submitted that, this clause states that the Authority must consult with other States affected by the marine oil pollution incident, particularly with the flag state or other States, as appropriate. According to Western Cape Government, it seems that the Authority is obligated to consult with “other States” twice. It therefore proposed that this duplication can be removed.

Noted and to solve this perception, we would recommend that we remove the following text “(1) Before taking any measure under section 19,” The section will then compose, The Authority…

Clause 21(2)

- This clause states that the Authority “must take into account any inputs made” but there is no obligation on the Authority to specifically request comments and it is submitted by the Western Cape Government that, the wording should be amended to compel the Authority to call for comments from persons who are affected by the measures taken by the Authority, in those instances where the case is not urgent and where measures must be taken immediately as contemplated in subclause (4).

 This comment is welcomed and the “Incident Commander must make an endeavor to consult those who might be affected by that decision”

Clause 22(2)

- This clause refers to “subsection (1)(a) or (1)(b)”. It is therefore, submitted that this can be amended to “subsection (1)(a) or (b).

The Comment is welcomed, and the proposed amendment accepted.

Clause 25(1)

-It is submitted that, this clause provides for the appointment of inspectors. The proposal in this regard is that, there should be a definition in clause 1 for “inspector” as the word is used frequently in the Bill.

-Furthermore, it is Western Cape Government’s point of view that, draft paragraph (c) refers to a delegation of duties, but it is not clear how this relates to the appointment of inspectors as contemplated in the title of this clause.

Comment is welcomed and the inclusion under clause 1 of definition of “inspectors” is accepted.

This comment is welcomed. The Department offers this solution:

Heading of Section 25 will read: Appointments.

The section will be re-ordered as follows:

25(1) present (a) to remain

Present (c) will become (b)

Present (b) and (d) will become (c) and (d) respectively

Clause 25(2)

-This clause refers to “…all persons that are appointed…”. and it is proposed that the wording should be amended to “…all persons who are appointed…”.

Noted and welcomed

Clause 26(1)(a) and 2(b)

-Subclause (1)(a) refers to “territorial waters of the Republic” and subclause (2)(b) refers to “South African waters”. It is therefore submitted that consistency in wording is important, and the wording should be aligned accordingly. 

We welcome the suggestion even though the words mean one and the same thing and used interchangeably. We will ensure the suggested alignment.

Clause 27(2)

- The wording in this clause refers to “performance the functions”. It is therefore proposed that, this should be amended to “performing the functions”.

Comment and the suggested correction are welcomed

Clause 28(2)

-It is submitted that, this clause states that an inspector may cause any hold, compartment, container or other receptacle to be opened by any necessary means where the owner or operator has refused to open such hold etc.  Western Cape Government is of the view that, an inspector will only be able to accomplish this with a warrant issued by a magistrate as contemplated in clause 27(2) and as a result consideration must be given to inserting a reference to such a warrant.

Comment welcomed and the suggested solution accepted.

Clause 30(1)

-It is submitted that providing a false statement or account of events related to a pollution incident that attempts to hide or conceal the extent of the oil pollution incident must be included as an offence.

Comment welcomed and the inclusion of ‘providing a false statement or account of events related to a pollution incident that attempts to hide or conceal the extent of the oil pollution incident’ as an offence is accepted.

Clause 30(1)(b)

-It is submitted that the sections contemplated in this clause are references to sections in a previous version of the Bill. Clause 5(4) in the current version of the Bill states that the risk assessment must use internationally accepted risk assessment methods and that the Director-general must publish the risk assessment as a public report. It is not clear how a failure to comply with this clause constitutes an offence. The risk assessment contemplated here relates to a risk assessment undertaken by the Authority in terms of clause 5(1) of the Bill. It is therefore proposed that, the correct references here are to section 5(5), (7), (8) and (10) and not “section 5(4), (5), (6) and (8)”.

-Furthermore, it is proposed that the cross references in clause 30(1)(b) must be checked for accuracy.

Comment and observation welcomed. Cross referencing will be checked thoroughly as recommended.

Clause 30(4)

-Western Cape Government is of the opinion that this clause seems to mean that, if a penalty of less than R15 000 is imposed then it cannot be appealed. Clarity is therefore required on the following:

• Does this only apply if an administrative penalty is imposed as contemplated in subclause (3)?
• What happens if a person does not admit to contravening a provision as contemplated in subclause (3)(a). Presumably then he or she will be prosecuted.

Comment noted and the following solution is provided:

Insert in 30 (4) “…subsection (1)(c) (d) (e) and (f)”

The penalty only applies on offences as listed above.

Clause 30(5)

-It is submitted that, this clause states that the imposition of a penalty under subsection (1) shall not be deemed to be a conviction of a criminal offence but presumably this only applies if the person admits to contravening a provision of the Bill as contemplated in subclause (3)(a). If he or she does not make such an admission then presumably the matter will be pursued in a court of law. The Western Cape Government is of the opinion that, this needs to be clarified in the Bill. 

That is correct and the solution has now been provided as in the above comment.

Clause 31(a)

-It is submitted that the cross references in this clause are incorrect e.g., section 5(7)(c) and (e) does not exist in the current version of the Bill.  Therefore, cross references must be checked and reflected correctly.

Comment welcomed and cross referencing to be thoroughly checked throughout the Bill

Submission by Armand Adendorff

-Does not support the draft Marine Oil Pollution (Preparedness, Response and Cooperation) Bill [B10-2022] as is and at the same time citing clause 2 (Objects of the Bill) as his or her top concern.

Noted but advises that since the Republic is party to the Convention it is obligated to give effect to it by introducing an enabling legislation and beside that the Department has a constitutional duty to have a mechanism to prepare and respond to any threat of oil pollution of the marine environment.

Submission by Charzi G

-Does support the draft Marine Oil Pollution (Preparedness, Response and Cooperation) Bill [B10-2022] as is and his/her top concern is clauses 18 - 24 which deal with Cost recovery and compensation, intervention, liability.

Noted, however wishes to bring to the attention of the Committee that without the provisions under 18-24, the objects of the Bill may not be met fully.

Submission by Johan Herholdt

-Does support the draft Marine Oil Pollution (Preparedness, Response and Cooperation) Bill [B10-2022] as is and his or her top concern is No concern.

Noted

Submission by Kevin Alexander

-Does not support the draft Marine Oil Pollution (Preparedness, Response and Cooperation) Bill [B10-2022] as is and his/her top concern is other.

-Went on to express his view as follows: “What a big joke when the current bunch of thieves don't and couldn't care about sewerage polluting our rivers and dams at great consequences to nature you must wake up”

Noted but consider the language and matters raised herein as misdirected and therefore we provide no response to Kevin Alexandar

Submission by Maretha Meyer

-Does not support the draft Marine Oil Pollution (Preparedness, Response and Cooperation) Bill [B10-2022] as is and his/her top concern is clauses 3 – 7 which deal with Law, application, risk, contingency planning.

Noted and we are confined to the provisions of the Convention hence the provisions under 3-7.

Submission by Marietjie Ferreira

-Does not support the draft Marine Oil Pollution (Preparedness, Response and Cooperation) Bill [B10-2022] as is citing clauses 18 - 24 which deal Cost recovery and compensation, intervention, liability as his/her top concerns.

Noted, however wishes to bring to the attention of the Committee that without the provisions under 18-24, the objects of the Bill may not be met fully.

 Submission by Neels Coetzee

-Does support the draft Marine Oil Pollution (Preparedness, Response and Cooperation) Bill [B10-2022] as is.

-States further that, he/she agrees with a number of concerns already listed, but is wary of the efficient control of this (and other) legislation, as our government has already shown a propensity for new laws, but a major lack of enforcement.

Welcome the concern but the Department withes to assure the committee that already SAMSA is undertaking detailed implementation planning and as previously mentioned that the Incident Management already exist on interim basis.

 Submission by Terence Ives

-Does not support the draft Marine Oil Pollution (Preparedness, Response and Cooperation) Bill [B10-2022] as is and his/her top concern is clause 2 Objects of the Bill.

Noted. However, wish to bring to the attention of the committee that the objects are strictly aligned with the Convention.

 Submission by Helen Seccombe

-Does not support the draft Marine Oil Pollution (Preparedness, Response and Cooperation) Bill [B10-2022] as is and her top concern is clause 2 Objects of the Bill.

-Further submits that, when the government of this country fixes Eskom, sewage waste disposal and a plethora of other problems which have not been fixed yet, then they can start on marine pollution, this was in place many years ago in all ports but somehow during the last 30+ years has become redundant.

-According to her the Government is not doing its job and is stealing from the resources of our country. Time for change she calls.

Noted However wish to bring to the attention of the committee that the objects are strictly aligned with the Convention.

The other matters are not directly related to the Bill being considered.

Submission by Henk Louw

-Does support the draft Marine Oil Pollution (Preparedness, Response and Cooperation) Bill [B10-2022] as is with his/her top concern being clauses 18 – 24 which deal with Cost recovery and compensation, intervention, liability.

-Proposes that polluters must be sued.

Noted and the department and SAMSA working with other agencies of the State will pursue the polluters to ensure that they are held accountable

Submission by Judith Lehman

-Does not support the draft Marine Oil Pollution (Preparedness, Response and Cooperation) Bill [B10-2022] as and her top concern is clause 2 Objects of the Bill.

-Further pleads with the Government to first fix all of the raw sewerage pouring into the oceans, before you try and tackle another project.  Fix what the government has broken first, then go for this project.

Noted However wish to bring to the attention of the committee that the objects are strictly aligned with the Convention.

The other matters raised fall outside the jurisdiction of the Department.

Submission by Mike Watson

-Does not fully support the draft Marine Oil Pollution (Preparedness, Response and Cooperation) Bill [B10-2022] as is and his top concern is clauses 12 – 17 which deal with Cooperation, reporting, response, support.

-According to him, nothing is ever done properly in South Africa.

Noted However wish to bring to the attention of the Committee that clauses 12-17 are crucial to deal with the perception of ‘nothing ever done properly in South Africa’.

 Submission by Wayne Murphy

-Does support the draft Marine Oil Pollution (Preparedness, Response and Cooperation) Bill [B10-2022] as is and his/her top concern is clauses 3 – 7 which deal with Law, application, risk, contingency planning.

Noted and unfortunately, we are confined to the provisions of the Convention hence the provisions under 3-7.

-Proposes protection of our ocean before it’s too late

Submission by Percy Langa

-Welcomes the Bill and does not have any major concerns with it.

-Further request that the word “emergency” be defined so as to provide clarity clause 4(2).

emergency” means, an unforeseen combination of circumstances or the resulting state that calls for immediate action.[2]

First Comments Directly on the Bill

Definitions

• marine casualty

- Suggested that the term environment used therein be defined.

-Also proposes that the term severe used in the definition of is subjective, and need to find ways to define it better

Noted but disagree with the proposal

Clause 5(2)(f)

-Proposes that this provision be reworded to "Protected and environmental sensitive sea areas"

Noted but disagree

Clause 17(2)

-It is proposed that Department of Environment, Forestry and Fisheries must be referred to as “Department responsible for the environment” - in the case the names of the Department changes

Noted and agreed to reword as recommended

Clause 28(1)

- Consider the samples and/or photographic from an oiled wildlife which may not necessarily be from an installation, oil-handling facility or port facility

Comment welcomed and suggestion accepted

Second Comments Directly on the Bill

Clause 5(1)

-What is defined as a new development?

-What of such as it relates to the Oil industry in general?

-Should include ‘…that alters the risk of marine oil pollution incidents by ships/fleet etc.

“new development” means whichever that alters the risk of marine oil pollution incidents in a port facility, oil handling facility or offshore installation, whichever comes first”

Clause 5(2)

-Add species most at risk, in order of classification by international conservation status.

Add (g) species most at risk, in order of classification by international conservation status.

Clause 5(3)

-Proposed new fleet?

-The higher the number of ships, the greater the risk of oil pollution, in theory.

New shipping Corridor

Clause 5(5)

-Should include the owner and skipper of vessel, surely?

Add “…owner and skipper”

Clause 5(10)

-Include new shipping Operator, for lack of better word?

Covered under 5(5)

Clause 6

-There should be time frame and deadlines provided.

Include under 6(1) “…timeframe)

Clause 7

-Where is the responsibility and liability for ship-owners? All of this cannot be on facilities, colonies etc. when the ships themselves are the greatest contributors to the problem of oil spills. 

The civil liability is provided for under the Marine Pollution Prevention (Civil Liability) Act

Clause 7(2)

-Prevention and/or Mitigation Measures should be a component to these plans

Noted

Clause 7(4)

-As well as any new ship or fleet.

Add

Clause 8(1)(d)

-And ships and / fleets

Add

Clause 8(2)

-And all shipping companies.

Add

Clause 8(3)

-And shipping companies.

Add

Clause 8(6)

-(d) adequate sufficiently-trained personnel.

Add

Clause 9(2)(a)

-As well as personnel of any ship operating within the vicinity of a colony.

Add