Stakeholder engagement on Disaster Management Bill; with Minister

Meeting report

Adoption of minutes, Committee annual plan and programme

The Chairperson asked Members to provide suggestions on the Committee annual plan and its first term programme.

Mr C Brink (DA) asked whether the suggestion of bringing Inter-Governmental Monitoring Support and Intervention was included. It was confirmed that it had been included.

Mr K Ceza (EFF) said that there were biases in dealing with the issue of crime that is escalating at a traditional community level. He used the issue of gender-based violence as an example. The public showed solidarity in protest as a result of the Department not putting the right people to account.

Mr Brink emphasised that inter-governmental monitoring support and intervention should be included in each term. Time periods should be provided for each term. In each term, there should be reports on the status of inter-governmental interventions, especially municipalities and what is being done to improve situations such as water, electricity, and finance.

Ms H Mkhaliphi (EFF) said it is wise to have once-in-a-while meetings with the NCOP for updates.

The Chairperson agreed especially with oversight and the issues of intervention.

The Committee annual plan was adopted.

The Chairperson informed Members that the Portfolio Committee asked Parliament for more time for oversight. This was reflected in the first term programme, which is now three days -Tuesdays, Wednesdays, and Fridays.

Ms Mkhaliphi agreed more time was needed for oversight.

Mr Brink said one engagement each term should be included with the Department of Cooperative Governance and Traditional Affairs (COGTA) about the status of Section 139 and Section 100 Interventions.

Mr I Groenewald (FF+) suggested the Committee ask the Hawks and the Legal Practice Council to make a presentation on the Municipal Council’s Pension Fund. He was interested in the investigation of fraud and corruption of the fund.

Mr Ceza did not agree with Mr Groenewald stating that the wrong format of reporting is used, and this affects the Auditor-General’s findings.

The Chairperson acknowledged the comment made by Mr Ceza and stated that the Committee is not an Executive and there are instances that such findings could be reported.

Ms Mkhaliphi recalled that in certain instances a matter between a service provider and municipality, the court cases are dragged, and the issue becomes unresolved. She asked how to get a report from the Special Investigating Unit (SIU). She also asked that follow-up meetings be held on oversight that was done before the elections.

The Committee programme was adopted with the amendments.

Stakeholder engagement on the Disaster Management Amendment Bill [B2-2021]

Cogta submission

Dr Nkosazana Dlamini-Zuma, Minister of COGTA, mentioned that the Department of Health is almost towards the end of amending its own regulations which will assist to manage the pandemic. She emphasised that disasters cannot always be foreseen, and no one saw this pandemic coming. Shifting the management of disasters to Parliament is not a sufficient way of handling it as suggested by Members of the Portfolio Committee. There are checks and balances and oversight by Parliament even on the Disaster Management Act limitations. The Department does not agree with the amendments.

Dr Mmaphaka Tau, Head: National Disaster Management Centre (NDMC), mentioned that consultations with stakeholders regarding the text of the Bill have been done. Also with international benchmarking on how disaster management is applied based on the need to secure the well-being of the people and sustaining development.

Ms Ane Bruwer, Chief Director: Legislation and Policy & Compliance Management, National Disaster Management Centre, outlined the content of the Department’s submission. The submission contained their reasons for not agreeing with the amendments: see submission for details

She said that having considered the proposals and the effect the Bill may have on the Disaster Management function, having considered the court findings and other affirmative cases and their effect on the Bill, provides the following position and response to the Portfolio Committee tasked to process the Bill:

- The DCOG believes the proposed amendments will significantly hamper the efficiency of acting when needed expeditiously to advance the objectives listed under Sections 27 of the Act. Limiting the initial period to 21 days as proposed in the Bill would therefore be counterproductive.

- To insert Section 27A is not recommended as it is already implied by Sections 27(3) of the Disaster Management Act, 2002 that once the basis no longer exists on which the decision has been made to declare a national state of disaster- or to extend it- any regulations or directions made to deal with the disaster is no longer needed and as such would cease to be in force.

- The amendment of Section 41 is not recommended as it also fundamentally shifts the responsibility to extend a Provincial State of Disaster and alters the process of making Regulations and Directions.

- The amendment of Section 55 is not recommended as it also fundamentally shifts the responsibility to extend a Local State of Disaster and alters the process of making Bylaws and Directions.

See submission for further details

The Department recommended the Portfolio Committee did not support the Bill.

Agri SA submission

Ms Andrea Campher, Manager: Risk and Disaster, Agri SA, said that they have noticed that COVID-19 is being discussed as a disaster, but Members should also take notice of other disasters like floods and human-made disasters.

Agri SA is of the view that when national disasters (either natural or human-induced) are declared, the management (Executive and legislative powers), including the NDMC, should be bestowed upon the Office of the President as it has cross-cutting delegation authorities to ensure integrated multi-sectoral and multidisciplinary management as envisioned by the Disaster Management Act (DMA). They are of the view that when national disasters (either natural or human-induced) are declared, the management (Executive and legislative powers) including the NDMC, should be bestowed upon the Office of the President as it has cross-cutting delegation authorities to ensure integrated multi-sectoral and multidisciplinary management as envisioned by the DMA.

The National Assembly, provincial legislature, and council of a municipality should also be in a position to call for a special meeting to extend a disaster declaration. Agri SA is of the opinion that 21 days, given practical experience on drought declarations, are insufficient to manage a National State of Disaster. Declaring a National State of Disaster follows a bottom-up approach which evidently means that a local state of disaster and thereafter a provincial state of disaster must first be declared before it is considered by the NDMC. The NDMC will after due consideration and investigation declare a national state of disaster.

Mr Willem Symington, Chairperson: Natural Resources Centre of Excellence. Agri SA, said to implement the Act correctly, the objectives of the Act and the criteria for which declarations should be made, should be clearer. He suggested more definite strategies and plans should be in place to avoid subjective opinions when a declaration is made. There is room for improvement for accountability.

See submission for further details

National Employers’ Association of South Africa (NEASA) submission

Ms Rona Bekker, Senior Policy Advisor, NEASA, took the Portfolio Committee through their submission. The rationale of this Amendment Bill is clearly in no way meant to completely remove the power of the Minister to declare a national state of disaster. It merely sought to bring balance between the Executive’s power in limiting fundamental rights by means of the provisions of the declaration of a state of disaster, extension thereof, consequent regulations and providing for the necessary restrictions in order to mitigate any form of national disaster. It furthermore envisions parliamentary and legislative oversight in the making of regulations in order to give effect to the declaration of a state of disaster without arbitrary or irrational restrictions on the fundamental rights of the country’s citizens.

This Bill must be passed and enacted in order to ensure accountability and transparency with regard to fundamental right-limiting directives issued by the Executive, should our beloved country ever be struck by disaster again.

See submission for further details

African Policing Civilian Oversight Forum (APCOF) submission

Mr Sean Tait, Director, APCOF, took the Members through their submission. APCOF welcomed the Amendment Bill. Especially, the provisions that sought to reserve the obligation to extend a national, provincial, or local state of disaster for legislative bodies within the three spheres of government, and to allow legislative organs to exercise oversight and accountability functions during a state of disaster. ‘We observe that this will foster inclusive and representative democracy and engagement strengthen the Constitution’s vision of a representative and participatory democracy'.

The lapsing of national, provincial, or local state of disaster and the termination of any regulations, directions, and by-laws made under it are necessary to ensure that the declaration of a state of disaster is time-bound, has a specific duration, and only invoked on a temporary basis. APCOF supports the Bill; however, the proposed amendments should go further and address other gaps and deficiencies that are contained in the Act.

See submission for further details

Council of Charismatic Churches (COCC) submission

Pastor Lucas Nkosi presented the submission. He said that they were grateful for Parliament to consider amending this Act from its current form after they had suffered a lot in how it was implemented by the Executive in this COVID-19 season. The COCC endorsed the proposed amendments and believed that it will be a victory for the religious sector and other sectors at large who felt aggrieved by how the DMA was handled through issuing of - in many instances- irrational lockdown regulations. The COCC also made recommendations. He said that people cannot be governed without their consent.

See submission for further details

South Africa Local Government Association (SALGA) submission

Mr Tshepo Motlhale, Senior Manager: Fire, Emergency Services & Disaster Management, SALGA, said that SALGA conducted a survey in municipalities to ascertain a position at the local government level on the proposed matters. The data collected suggested that amendments should not be made. SALGA does not support the Bill.

See submission for further details

Sakeliga submission

Mr Tian Alberts, Legal Officer, Sakeliga, took the Portfolio Committee through their submission in support of the Bill. They supported the requirements that extensions of a state of disaster be placed under authority of the National Assembly (NA), provincial legislatures, and municipal councils, that the NA may reject any regulations and directions issued under the DMA and the provisions that a state of disaster may be cancelled before it lapses. Sakeliga also made recommendations.

(See submission for further details)

Discussion

Mr Ceza (EFF) asked how the proposed amendments linked with the capital losses experienced during lockdown from March 2020 until now and how do the amendments seek to correct the fact that the army was sent to defenceless people resulting in people dying. It is important to protect the public.

He asked the Minister whether there was scientific or empirical evidence at the time the different regulations were. He asked this because he wanted to know what the different regulations for sectors were based on. He asked for clarity about the status of the Disaster Management Centre in terms of Sections 8, 9 and 10. ‘What actions/measurements are in place for early warning signs/drills for preparedness to disasters’?

He asked what happens in decision-making to bring security that prioritises communities. He wanted to know from Agri SA what action they were taking together with the NDMC to ensure that road infrastructure does not cause a problem. There are many instances where children cannot attend school as a result of roads being unusable for school transport. Custodians and other transport contribute to ruining roads and resulted in some children not attending school, and this was apart from the fact that farmworkers are terrified of the landowners who are evicting them.

He said to NEASA that the alcohol ban during the lockdown did help. It helped people to understand what was happening instead of escaping with alcohol. The unemployment was there before the lockdown. He asked what their concerns were because in an article it was said that they were celebrating how they were fighting with the Congress of South African Trade Unions, the National Union of Metalworkers of South Africa, and the South African Federation of Trade Unions. ‘How genuine is their concern’?

Mr Brink (DA) had a problem with the presentation and policy statements, especially the differences that were pointed out for national states of disaster and national states of emergency. He argued that although it was interesting, they are less relevant than the similarities. As far as national states of emergencies were concerned, there were procedural constraints to the exercise of executive power. As far as national states of disasters were concerned, Executives enjoy similar powers, but there is no significant procedural constraints exercise of that power. Therefore, legislation and proposals say that what is done for states of emergencies should be done for states of disaster.

The definition of what amounts to a national state of disaster is poorly defined in existing legislation and amounts to more or less discretion by a single office bearer, in this case, the Minister. Under Section 27, the office bearer decides what a national state of disaster is and then obtains by virtue of that declaration powers that are usually reserved for Parliament to make regulations and issue directions. The office bearer is the only person with the power to extend the national state of disaster or allow it to lapse without consulting anyone.

He stated that the problem is not consulting anyone, but the delegation of powers by Parliament. Parliament has no power; it can only make suggestions. It loses its ability to recall delegations, make amendments to the regulation, or exercise significant checks or balances.

This lack of accountability is not only a risk to freedoms and the legislative competency of Parliament but leads to irrational and unreasonable decisions. The public has to take the government to court to find out what scientific evidence there is for restrictions. This costs money. People do have recourse, but at what cost?

The disaster management powers should not be exercised by Parliament. This is what the Bill says. The power of the Executive should be constraint by the body that represents ordinary people that is Parliament. Parliament should have a role in constraining the existing power of the Executive to manage disasters and to not abuse it.

Although courts have established this, it is only partially true. The Democratic Alliance case is currently before the Constitutional Court. The Constitutional Court has not had the opportunity to determine the constitutionality of Section 27. Even if Parliament is in recess, it should be called upon to reconvene on an emergency basis. If it can happen under the National State of Emergency, why can it not happen under the national state of disaster?

It is not about taking powers away from government. It is simply constraining them and making them subject to the oversight of Parliament. This will allow the public to know what the regulations are and will allow them to have input.

Ms D Direko (ANC) said that she understands that this is a new normal which resulted in some uncertainties. There is the good and the bad that the government has done. It cannot be ignored that the government had to strike a balance between the lives and livelihood of people. In doing so, some of people’s constitutional rights had to be articulated further to cater for the disaster.

A disaster can happen at any time, and the Constitution provides guidance on who is responsible, when and how. The proposed bill raised some concerns as it does not provide solutions to challenges. Instead, it created confusion and more challenges. The solutions to challenges are more laws for entities most of the time.

NEASA spoke about oversight which is something Ms Direko agreed with. Oversight is crucial. Oversight is already happening; it was done before COVID-19 up until today. The Portfolio Committee is playing oversight where different provincial governments and municipalities were called. The issue of corruption was dealt with. She emphasised that there must be a balance between life and livelihood. The collapsed economy, at whose interest is this? If someone dies they cannot be brought back, but a business can be fixed.

Government had unfortunately made an unpopular opinion for the religious sectors. The situation was uncertain at the time and the country did not know how to handle it. Information came in along the way, and the Department and its entities tried to handle each and every situation. She asked the COCC who they trust if they do not trust the court or executive. She said that there was always public participation involved in any process.

Responses

COGTA

Dr Tau (NDMC) said that one should be mindful that this is a piece of legislation that Parliament in its wisdom and international practices taught to be suitable to manage risk especially risk reduction, separation of powers, oversight, and accountability. It will assist or empower the Minister and the executive in making decisions to protect lives and the public. Decisions like these should be made in a speedy manner so that no further damages occurred. The COVID-19 pandemic is a new experience. The Department ensured that when decisions were made, it followed the three principles of rationality, reasonableness, and procedural fairness. Government has, in a way, made balanced decisions. The court cases confirmed the decisions made by the national executives.

Decisions were based on the need to continue or amend the contingency arrangements and other legislation that was utilised to manage the COVID-19 pandemic. Section 8 of the Act provided that a NDMC be established as an institution within the public service. Section 9 of the Act sets out the purpose of the NDMC. Section 10 stated that the head of the NDMC should report to the Minister. The issue of the institutional form and location of the NDMC is a matter that received attention. It is an issue that will in due course be supported by the Minister to update Parliament to ensure NDMC improves agility and effectiveness.

As far as preparedness and measurements, the Department works from a basis that every season brings with it various risks and hazards. He used the 2014 National Indicative Risk Profile as an example. The profile was used to indicate areas that are susceptible to certain hazards. The profile is then updated. The South Africa Weather Service sends reports to the Department, the Department analysis it for a profile, short-term focus for areas and contingencies plans for sectors. Teams are activated for each season; areas are identified and drills are put in place. There is a common alert protocol; once warning is received training is provided. This is monitored to deal with it effectively.

Minister Dlamini-Zuma declared that it is not correct to say that there is only one minister that deals with the national state of disaster and does everything as an individual. She emphasised that Section 26 of the Disaster Management Act states that the National Executive is primarily responsible for the cOordination and management of national disasters irrespective of whether a national state of disaster has been declared in terms of Section 27. It says the National Executive as a whole and not just a National Minister. The President established the National Coronavirus Command Council (NCCC), and each province is consulted. The Department does not make decisions. According to the law, the Executive does.

Security forces act in the best way that they can whether there is a national disaster or not. She said that what is currently happening is not necessarily due to the national state of disaster. There are laws that allow the police to get the defence force. When these laws are applied, the relevant institutions should ensure that it is applied correctly. They should take care of the population. The Minister was of the view that what happened was not a general occurrence on the whole of the security measures. However, it was unforgettable and regrettable.

She emphasised that this is the first time in a century that South Africa had to deal with a pandemic of such a nature. The decisions that were taken were taken within the available information, evidence, experiences, and the advisory committee. As far as the religious sector is concerned, there was a church internationally where it was a super spreader. She used the Free State as an example. There were many consultations with the religious sector and its leaders. This pandemic is not something that has a lot of information and experience. The country learned along the way, especially lessons from the Spanish flu. With the Spanish flu, South Africa did not handle it properly and lost 6% of its population. If 6% of the population had been lost now during the COVID-19 pandemic, the economy would not have survived. However, government was proactive this time and saved livelihoods and lives. It is not so much the restrictions that would have destroyed the economy. If we allowed people to die, the economy would have gone down without the restrictions. There were instances where the economy was restricted by other countries. The national state of disaster is not yet extended without any consultation. Cabinet meets every month to see whether it should be extended or not. The national state of disaster is not indefinite.

Agri SA’s response

Ms Campher said the road infrastructure was severely damaged before the disaster because of heavy rainfall, storms, and hail. The fixing of the road infrastructure is a cross function with other departments. Agri SA is still in the process of doing impact assessments. A list of roads will be made to the NDMC to put them in the position to reprioritise money for road infrastructure to be repaired.

NEASA’s response

Ms Bekker said that NEASA fully understands the difficult task government had in mitigating the COVID-29 predicaments, curbing the infections, and saving lives and jobs. The problem is that the regulations, lockdown levels, restrictions and directives that were issued through the extensive power given to them through the DMA as is, are disproportionate. It sets to achieve a certain purpose, which it did not achieve and was more harmful to the economy. It exacerbated the unemployment figures. People were not allowed to work, and support from the government was not granted to all Small, Medium, and Micro Enterprises (SMMEs).

COCC’s response

Pastor Nkosi clarified the issue of trust. ‘When one’s voice is silenced, things are done in your name without your involvement then how do you trust’? The religious sector spoke to the ministry, but attention was not given.’ If the executive does not want to listen to the people that they claim to be serving, and then who do you run to’? There is an issue with competence. The ministry is clueless on the matters of the religious sector and are dealing with the sector based on assumptions. There is an issue with participation. ‘Who decided to choose that churches should be closed’? Was it the religious sector? Or was it just willy-nilly? What evidence was this based on’?

Sakeliga’s response

Mr Alberts said that the responses of the Portfolio Committee assumed that government must be balancing risks on behalf of everyone in the country. This is not a given.  Government should not have the power or burden of managing the risks on behalf of millions of people and businesses. Therefore, the amendments are necessary so that government can only intervene when it is strictly necessary to do so. The national state of disaster has recently been extended which assumed that government should be mitigating, managing, and taking delegation from people of the country. However, nothing points to government needing to do this.

The Chairperson thanked all Members and stakeholders.

The meeting was adjourned.