World Cultural Heritage Bill and National Parks Amendment Bill: briefing by department

Summary:
The draft National Environmental Management Bill, the report on Thor chemicals and a progress report on the World Cultural Heritage Convention were discussed.

Detailed Minutes:
The Chairperson said that the Department would not be briefing the committee on the National Parks Amendment Bill, but the document had been made available.
The first item on the agenda was an update on the drafting of the National
Environmental Management Bill by 2 law advisors from the Department of Environmental Affairs, Mr Henk Smith and Ingrid Coetzee. Mr Francios Bois, from the Environmental Law Unit (UCT) assisted in the update. The bill was based on the White Paper on Environmental Policy.

The presentation on the White Paper was given by Ms Coetzee. The following points were given serious consideration. These points included:
1) the outlining of the integration of function
2) the issue of leadership and principles
3) the criteria that form the basis of management, with an emphasis on co-ordination
4) a provision for rehabilitation and remediation with regards to environmental damage 5) cooperation within communities with regards to the environment
An amendment on the conflict issue was also dealt with.

Mr Smith then proceeded to explain how the Bill was written and assured members of the committee that it was in accordance with the White Paper. He added that they attempted to ensure cooperative governance as well as making environmental implementation plans binding.

Mr du Bois spoke on the legal aspect of the Bill. He said that the Bill facilitated enforcement of both organs of state and society, which were important issues mentioned in the White Paper. He also said that it would be easier for civil society to enforce duties imposed by state and policy. This would be achieved by making the courts more accessible to the public. Provisions would then have to be made for those wishing to go to court on public and environmental interest. Recovering costs from their institutions as well as the option for the court not to charge the party, if they did not win their case, would be implemented. Public interest would then be promoted and assist people who might have financial constraints. This could be subject to exploitation and will be covered by the Bill. If the court ascertains that the case was brought forward for vexatious means, the winning party will be forced to pay the costs for the loosing party.

It also makes provisions for organs of state in that compensation orders can be made by the courts to make people pay for environmental harm if found to be guilty. This would deny any benefits gained by a certain party at the expense of the environment and compensate those who suffer as a consequence. Thus an employer would be held liable for damages and recovering costs of prosecution. Also parties will be held liable for rehabilitation and remediation (a farmer with terribly eroded land will be held liable for example).

Mr Smith said that they intended to publish the draft bill in the government gazette and ask for public comment and that if any comments result in the need to alter the Bill it would have to be approved by the committee. He did however stress that time was a limiting factor. As the members of parliament had not received the documents earlier, no detailed discussion could take place. However a few members expressed concern over certain issues in the draft.

Dr Benjamin (ANC) and Mr Smith (IFP) both expressed concern about the conflict that might arise when the interest of the people and the environment clashed. Mr du Bois stated that the section on principles in the draft bill dealt with such issues.

Mr Williams (NP) posed the question of what happens when people's health is
affected. Mr du Bois answered that the liability clause was designed to alleviate this problem. He did, however, mention that it might not be as effective and suggested that a compensation fund should probably be set up. Obviously the new problem would be of where to find the appropriate funds.

Mrs Van Wyk (NP) and Mrs Van der Merwe (ANC) both expressed concerns about public input. They were answered by Mr Smith who admitted that this draft bill was
based entirely on the White Paper and this was the reason for the intended publication in the government gazette.

Members of parliament did not fully understand the drafting process of the Bill, hence a workshop has been set up for 3 June 1998 to go through the Bill closely for a clearer understanding.

The next item on the agenda was the report on Thor chemicals. The Department of
Environmental Affairs and Tourism drafted an action plan which is going to be discussed on Friday, 29 May 1998 in Pretoria by the Project Steering Committee. This committee would finalise the plan as well as put a team of experts together to oversee the mercury recycling project. The committee was informed that presently the barrels being stored at the plant are being monitored by the Department of Labour. At this point the chairperson was changed from Mrs Mahlangu to Mrs Van Der Merwe.

Concern was expressed at the length of time the operation was taking. Suggestions were made as to a next action plan. Mr Mfayela (IFP) suggested that perhaps the portfolio committee should return to the sight and inform the department about their concerns. Mr Williams (NP) commented a subcommittee had already been elected to do that. Mr Mfayela's reply was that this had not occurred because of the financial difficulties experienced. Mrs Van der Merwe suggested that the researcher who had been asked to look into this matter, be asked to report back to the committee on the correct findings.

Mr Le Roux (NP) asked Mrs Mahlangu to enlighten him on the Port Elizabeth situation. She answered that Waste Tek was situated 5km from the community and they have a waste dumping site there. They are also operating an incinerator without a permit which is causing serious health problems and even leading to the death of some people. She also suggested that members of the committee should be present at the Friday meeting to show their concern about the situation. All the other waste plants that are causing problems should also be discussed at that meeting so that they can be dealt with simultaneously rather than one at a time to prevent any further serious contamination. This was agreed upon by members present.

The last item was the progress report on the World Cultural Heritage Convention by Mr Makhulu. He said that they established a committee with Dr Abrahams as the chairperson. Delegates went to the various provinces to hold workshops and look for potential sites as prescribed by the World Heritage committee. All provinces were visited and various sites were found. As a result of the statement by the Minister, only three sites per year would be submitted. St Lucia , Robben Island and Sterkfontein were chosen on the basis of readiness of paperwork. They hope to submit them on or before the closing date which is 1July 1998, however they will only be declared as World Heritage sites by December 1999. Although there was some disappointment by various members of parliament that certain sites were not chosen, the report was well received.

REPUBLIC OF SOUTH AFRICA

NATIONAL PARKS AMENDMENT BILL

(As introduced)

(MINISTER OF ENVIRONMENTAL AFFAIRS AND TOURISM)

GENERAL EXPLANATORY NOTE

Words in bold type in square brackets indicate omission from existing enactments

Words underlined with a solid line indicate insertions in existing enactments

BILL

To amend the National Parks Act, 1976, so as to provide that the board of South African National Parks may with the approval of the Minister granted after consultation with the Minister of Public Works and the Minister of Minerals and Energy receive a donation of and or a mineral right to land for the purposes of a park; to provide that land or a mineral right to land received as a donation shall be registered in the name of the board; to provide that the board may with the approval of the Minister, granted after consultation with the Minister of Minerals and Energy, exchange land or a mineral right to land which has been acquired by the board; to extend the scope of activities which may be carried out by any person on the authority of the board; to make it an offence to be in unlawful possession of any animal or any part of an animal within a national park; to include in a higher penalty category, the existing offence of removing from a park any animal or any part of an animal and to include, In the same category, the newly created offence 0, being in unlawful possession within a park of any animal or part of an animal; to substitute a provision of the Act which places the burden of proof on the person charged with an offence under the Act, which placing is unconstitutional; to bring the Act into line with a recent Constitutional Court decision pertaining to limitation of actions; to authorise the board to delegate any of its powers to the chairperson or to a committee or to an officer or employee of the board; to provide for the transfer' of control over the Knysna National Lake Area to an authority in the government of the Western Province; to provide that the Act shall apply throughout the Republic; and to provide for matters connected therewith.

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows :-Amendment of section 3A of Act 57 of 1976, as inserted by section 5 of Act 52 of 1992

1. Section SA of the National Parks Act, 1976 (hereinafter referred to as the principal Act), is hereby amended -

(a) by the substitution for subsection (1) of the following subsection:

"(1) Notwithstanding the provisions of section 3 the board may, with the approval of the Minister granted after consultation with the Minister of Public Works and the Minister of [Mineral] Minerals and Energy [Affairs], purchase or receive a donation of land or a mineral right to land for the purposes of a park.";

(b) by the substitution for subsection (3) of the following subsection:

"(3) Land or a mineral right to land purchased or received as a donation in terms of subsection (1) or expropriated in terms of subsection (2), shall be registered in the name of the board."; and

(c) by the substitution for subsection (4) of the following subsection:

"(4) The board may, with the approval of the Minister granted after consultation with the Minister of Minerals and Energy, sell or exchange land or a mineral right to land which has been acquired in terms of subsection (1) or (2).".

Amendment of section 12 of Act 57 of 1976, as amended by section 7 of Act 43 of 1986, section 2 of Act 60 of 1987, section 7 of Act 23 of 1990 and section 6 of Act 52 of 1992

Section 12 of the principal Act is hereby amended by the substitution for subparagraph (x) of paragraph (b) of subsection (2) of the following subparagraph:

(x) authorize any person to carry on, subject to such conditions and the payment of such charges as it may think fit, any activity, other than the sale of liquor, which may in terms of [subparagraph (v), (vi) or (vii)] this subsection be carried on by the board.".

Amendment of section 21 of Act 57 of 1976, as amended by section 12 of Act 43 of 1980 and section 9 of Act 52 of 1992

3 Section 21 of the principal Act is hereby amended by the substitution for paragraph (h) of subsection (1) of the following paragraph:

"(h) within a park be in possession of or remove from a park any animal (other than an animal lawfully introduced into that park), whether alive or dead, or any part of an animal;".

Amendment of section 24 of Act 57 of 1976, as amended by section 6 of Act 23 of 1983, section 8 of Act 23 of i990~ section 2 of Act 33 of 1997 and section 4 of Act 70 of 1997

4, Section 24 of the principal Act is hereby amended by the substitution in subsection (1) for the words preceding paragraph (a) of the following words:

"(1) Any person who contravenes the provisions of section 21(1)(c) or (h) with reference to;'

Substitution of section 26 of Act 57 of 1976

5, The following section is hereby substituted for section 26 of the principal Act:

"Proof of facts recorded in any record, book or document kept by officer

26. In any prosecution under this Act, any record, book or document kept by an officer in the course of his or her duties shall on its production by any officer be prima fade proof of the facts recorded therein: Provided that the court in which any such record, book or document is adduced in evidence, may in its discretion cause the person who made the entries therein, to be summoned to give oral evidence in the proceedings in question.".

Substitution of section 28 of Act 57 of 1976 as amended by section 61 of Act 68 of 1996

6. The following section is hereby substituted for section 28 of the principal Act:

"Limitation of liability

28. The board shall not be liable for the recovery of any damage caused by any animal in, or from a park, unless such damage is caused by the negligent or intentional act or omission of the board or an officer or employee of the board.";

Substitution of section 30A of Act 57 of 1970 as inserted by section 2 of Act 13 of 1982

7. The following section is hereby substituted for section 50A of the principal Act:

"Delegation of powers

30A. (1) The Minister may delegate any power conferred upon him or her by or under this Act to the Director-General: [Environment] Environmental Affairs and Tourism or any other officer in the Department of [Environment] Environmental Affairs and Tourism.

(2) The Minister may at any time revoke any delegation under subsection (1), and no delegation of any power shall prevent the exercise of that power by the Minister himself or herself

(3) The board may-

(a) delegate to the chairperson of the board or any committee of the board or any officer or employee of the board, any power conferred upon the board by or under this Act, on such conditions as the board may determine; or

authorise the chairperson or any committee or any officer or employee of the board to perform any duty or function assigned to the board by or under this Act.

(4) An officer designated for this purpose by the board (in this section called the designated officer) may

(a) delegate to any officer or employee of the board who is subordinate to the designated officer any power conferred upon the designated officer by or under this Act; or

(b) authorise that officer or employee to perform any duty or function assigned to the designated officer by or under this Act.

(5) Any delegation under subsection (3) or (4) does not preclude the exercise of the power in question by the board or the designated officer, as the case may be.

(6) The board may, if it deems fit, do all things necessary to ratify or cause to be ratified anything done or purported to have been done, and any contract concluded or purported to have been concluded, by any officer or employee on behalf of the board which on account of the absence of authority for its conclusion does not bind the board."

Substitution of section 300 of Act 57 of 1970 as inserted by section 12 of Act 52 of 1902

8.(1) The following section is hereby substituted for section 30C of the principal Act:

"30C. The powers, duties and functions of the Lake Areas Development Board established by section 3 of the Lake Areas Development Act, 1 075 (Act No.39 of 1975), are hereby transferred to [the board] an authority in the government of the Western Province, designated by the Premier of the province, in respect of the Knysna National Lake Area which was declared to be a lake area by Proclamation No, R224 of 13 December 1985.",

(2) Subsection (1) shall take effect on a date to be determined by the President by Proclamation in the Gazette.

Insertion of section 30D in Act 57 of 1976

9. The following section is hereby inserted in the principal Act, after section 30c:

"Application of Act

30d. This Act and all amendments thereof and all regulations and notices made or issued thereunder, shall apply throughout the Republic.".

Amendment of Act 57 of 1976

10. The principal Act is hereby amended by the substitution for the word "hairman" wherever it occurs, of the word "chairperson".

Short Title

11. This Act shall be called the National Parks Amendment Act, 1998.

MEMORANDUM ON THE OBJECTS OF THE NATIONAL PARKS AMENDMENT BILL, 1998

The first object of the Bill relates to the power of the South African National Parks (the board") to acquire land or a mineral right to land for the purposes of a park.

The National Parks Act 1 976, currently provides that only land acquired through purchase and expropriation may be registered in the name of the board. The Act therefore precludes the board from accepting donations of land. Presently, donated land is registered in the name of the Department of Public Works as the custodian of all state land. This deficiency discourages potential donors from donating land to the board. Recently, in two cases the board lost out on the opportunity to acquire land offered on donation.

Clause 1(a) and (b) seeks to remedy this shortcoming in the Act.

The Act furthermore provides that land which has been acquired by the board may only be sold. No explicit provision is made that the land may also be exchanged for other land. This was apparently an oversight at the time of the drafting of the Act in view of the fact that provision is made for state land to be exchanged for other land. There are various examples where an exchange of land is the most suitable option to the parties' concerned such as in the case of the Karoo National Park and Augrabies National Park. The amendment proposed in clause 1(c) will provide for a ampler and cheaper process between agreeing parties.

Clause 2 further provides for greater discretion on the part of the board on the type of services it wants to put out on contract,

At present there is no restriction on possessing a carcass or parts of a carcass within a park. The presumption that has been applied up to now is that a person caught in possession is deemed to have killed the animal unless such a person can prove the contrary. This is in conflict with the new constitution which places the onus of proof on the state. Clause $ explicitly regulates the unlawful possession of animal parts.

Clause 4 includes in a higher penalty category, the existing offence of removing from a park any animal or part of an animal and includes, in the same category the newly created offence of being in unlawful possession within a park of any animal or part of an animal. This clause specifically targets the unlawful possession of elephant and rhino parts.

The Bill also provides for the substitution of section 26 of the Act which places the onus of proof on accused persons, which placing is unconstitutional, and brings the Act into line with the constitutional presumption of innocence. Clause 5 is intended to introduce a new provision which contains the remainder of the present section 26 and which is judged not to be unconstitutional.

Furthermore provision is made in clause 6 for the substitution of section 28 in such a way that the unconstitutional provisions of the present section relating to limitation of actions against the board (section 28(2) and (3)) which encroach on the rights of individuals to institute legal action to protect their interests, are omitted. (See the Constitutional Court decision in Mohomi v. Minister of Defence 1997 (1) SA 124 CC dealing with a similar provision in the Defence Act, 1957).

The purpose of clause 7 is to provide that the board may delegate its powers to its chairperson and officers and employees and that it may authorise such chairperson, officers and employees to perform any duty or function assigned to it, The National Parks Act does not at present contain an explicit provision for the board to delegate any of its powers to the various levels of management within the organisation. The lack of a clear authority to delegate powers has never been mentioned and no dispute has ever arisen. The board has acted under the authority of Section 5(2) of the Act which provides that it is a "body corporate" and thus entitled to "perform all other acts as bodies corporate may by law perform..". Through the years the board has thus delegated various responsibilities to the management of the organisation. In a recent opinion by a senior advocate, the concern was raised that the board does not have any clear legal basis for delegating any of its responsibilities to management. The proposed amendment also legitimises these unauthorised delegations.

Clause 8 seeks to substitute section 30C of the Act, which authorises the board to control the Knysna National Lake Area established in terms of the Lake Areas Development Act, 1975 (Act 39 of 1975). As the Knysna system does not comply with the international criteria for national parks, the board wishes to have the administration of the lake area transferred to the Western Province or to the local authority. Clause S therefore provides for the transfer of administration to the provincial government, which may in turn assign its powers and functions to the local authority in terms of section 126 of the Constitution.

Another object of the Bill is to extend the application of the Act throughout the Republic. In terms of section 229 of the interim Constitution, all laws which immediately prior to the commencement of that Constitution applied in any part of the area which constitute the national territory of the Republic as it existed immediately prior to 27 April 1994 continued to apply in that part. It is therefore necessary to extend the application of the Act throughout the present national territory of the Republic. See clause 9,

Clause 10 seek to substitute the word "chairman" in order to make it gender-neutral.

In the opinion of the State Law Advisers and the Department the Bill should be dealt with in accordance with section 75 of the Constitution.

The following were consulted on the Bill:

Department of Public Works

Department of Minerals and Energy

Department of Constitutional Development

Western Province