REGULA-TION NUMBER

COMMENT

RESPONSE

Disaster Management Institute of SA (DIMSA) – Pat Reid

The response reads, "I have had a look at the regulations and in general do not have any comments."

South African Insurance Association (SAIA) - Linda du Plessis

The response reads, "It is our view that these regulations will not materially impact on the insurance industry or the cover we provide currently."

South African Lumber Miller’s Association (SALMA) – JH Mortimer

The response reads, "We acknowledge receipt of the documentation with regard to the above and confirm that we have no comment on the new regulations."

Drakenstein Municipality - Derick Damons

The response reads, "No comments as in my opinion important key issues were addressed by the draft regulations."

National Forests Advisory Council (NFAC) – Alan Dodson

1

"Footnotes" in paragraph (e) should all be in lower case.

Regulation so amended.

Mondi – S Joubert

2(1)(a)

The respondent would like to see "existing Fire Fighting Association/s" added in defining an "applicant" in the interpretation section.

The definition of "applicant" has been deleted, because the term does not appear in the final version of the regulations.

National Forests Advisory Council (NFAC) – Alan Dodson

2(1)(a)

The definition of "applicant" includes references to "a person, municipality or community". There is no definition of person in the Act or the regulations. A definition should be included to make it clear that "person" includes juristic and natural persons.

As above

AGRI Western Cape – JS Bothma

3

Comment on formation of FPAs. The respondent says all statutory bodies must be compelled to join FPAs.

The bodies mentioned by the respondent are all State landowners and are therefore covered by the Act as it stands.

City of Cape Town – Piet Smith

3(1)(a), 12(1), and Schedule 2 item 2

The respondent would like to see a single abbreviation used for all regulations. This is because Fire Protection Associations are abbreviated as "FPAs" in regulation 3 (1)(i) and 12 (1) and as "Association/s" in Schedule 2 item 2.

The regulations have been edited using "fire protection association" or "fire protection associations", terms which are consistent with the style of the Act. Schedule 1 which is a model constitution, and is thus a "stand alone" document, uses Association, as is explained in the text of that document.

National Forests Advisory Council (NFAC) – Alan Dodson

3(1)(a)

The regulation refers to "individual owners" and "categories of owner". What is the meaning of these terms and how do they link in with the definitions in the Act?

The terms "individual owners" and "categories of owners" have been deleted from the regulations. See further below.

National Forests Advisory Council (NFAC) – Alan Dodson

3(1)(a)

Comment: The regulations refer to "a substantial and representative proportion". The Act only refers in section 4(2)(b) to "representative", not "substantial". The regulations should not impose a further requirement which is not authorised by the Act. "Substantial" is a bit vague.

In the final draft, the term "representative" is used in regulation 11(2) in the context in which the Act uses it and the word "substantial" has been omitted throughout the regulations. There is thus no longer any discrepancy between the Act and the regulations in this regard.

SAESI and Kimberley Municipality - Riaan Janse van Vuuren

3(1)(b)

The regulation states that the formation of a FPA must take place in a properly constituted meeting after reasonable notice has been given to all owners, or as many of them as is reasonably possible. The respondent states, "A reasonable time for one person is not a reasonable time for another person. Built (sic) in a timeframe ie two weeks etc".

We assume that the respondent is referring to those regulations that use the term "reasonable time". Using the word "reasonable" allows for time frames to be determined according to what would be reasonable under the particular circumstances, which could vary from case to case. There is clear legal precedent on what constitutes a "reasonable time" and those implementing the regulations would be held to established legal standards.

National Forests Advisory Council (NFAC) – Alan Dodson

4 footnote 3

The page reference in footnote 3 is problematic. Often regulations are republished after promulgation in different documents, where the page references are completely different. This footnote should be deleted.

Footnote 3 and all similar footnotes have been deleted.

National Forests Advisory Council (NFAC) – Alan Dodson

5(1)(b) and footnote 9

Footnote 9 should start with the words "dealing with".

This footnote (now footnote 60) has been amended accordingly.

City of Cape Town – Piet Smith

5(2), 12(1), 12(2) and Schedule 1

The respondent would like to see a single abbreviation being used for "umbrellas." This is because the Act in s4(9) refers to them as umbrella associations and the regulations refer to them as Umbrella Fire Protection Organisation in reg 12(1), umbrella organisation in 12(3), umbrella in 12 (2) and Umbrella Fire Protection Association in 5(2)(a)(x), Schedule 1 point 8 and point 8 (2).

The term "umbrella association" is now used throughout the regulations and its schedules. This is consistent with the Act.

National Forests Advisory Council (NFAC) – Alan Dodson

5(2)(a)(iii)

Is it owners who are members or is it all owners?

This regulation has been deleted. It was intended to assist the Department to ascertain whether the FPA was representative of owners in its area, with the understanding the representivity does not necessarily require that a majority of owners have joined or will join the FPA. The demand for the names of all owners within the proposed area of the FPA is too onerous in most circumstances for the FPA to compile, is impossible in many areas, and serves no real purpose. Rather, the Minister now considers (as set out in regulation 11(2)(a)) what proportion of owners within the area of the FPA support its formation, and this information is requested in Form 1: Notification of intent to establish a FPA, which is not published in the regulations, but is available from the Department.

National Forests Advisory Council (NFAC) – Alan Dodson

5(2)(a)(iv)

Comment: The reference to "level of support" is a bit vague. Shouldn’t it rather require reference simply to the vote for and against at the meeting? It needs to read logically together with reg 5(2)(a)(vii) (which asks for a statement setting out the approximate number of owners in the area who would and would not be members).

Regulation 5(2)(a)(vii) has been deleted and is dealt with as set out directly above.

Mondi – S Joubert

5(2)(a) (viii)

The respondent would like to see the word "proposed" inserted in the regulation so that 5(2)(a)(viii) reads "the names and addresses of its proposed executive committee,"

A FPA, even if unregistered, is entitled to elect its Executive Committee. The Executive Committee does not require the approval of the Minister and is therefore final. We therefore do not support the use of the word ‘proposed’ in 5 (2)(a)(viii) (now 4(12(c)).

AGRI Western Cape – JS Bothma

5 and 6

Comment: The structure of Agricultural Associations is a suitable vehicle for the formation of FPAs as long as other role players participate.

We agree that this is the case in certain areas. This comment does not require any amendment to the regulations as they stand.

National Forests Advisory Council (NFAC) – Alan Dodson

6(1)

1. Why is the first letter of each paragraph capitalised here?
2. The word "the" seems to have been omitted at the beginning of a number of paragraphs.

These have both been corrected (now regulation 11(1)).

National Forests Advisory Council (NFAC) – Alan Dodson

6(1)

Comments 1 – 3 are therefore addressed.

Hans Merensky Holdings (Pty) Ltd - Chris Pienaar

6(1)

Comment: The regulation must be amended to read, "The Minister must judge capability" and not "may judge."

The regulation (11(1)) now reads: "In deciding whether the candidate fire protection association is capable within the context of that fire protection association of performing the duties imposed on it by the Act, the Minister will consider – " followed by a list of criteria. The Minister must register a FPA if he/she is satisfied that it is capable and representative of owners. Some criteria that the Minister will use in order to judge capability are set out in regulation 11(1) and representivity in regulation 11(2). The word "will" is used to indicate that the Minister will at least consider those factors set out in the regulations, but he or she also has the discretion to consider "any other relevant information." In other words, the Minister may add to this list. The regulations therefore provide a balance of factors which the Minister must look at, and a discretion to consider other factors. We consider this to be the most suitable approach.

Mpumalanga Emergency Services – FJ Bekker

6(1)(d)

Comment: It is clear that the District Municipality and Local Authorities have a responsibility towards the establishment of Fire Protection Services. You are referred to regulation 6(1)(d) towards the commitment of Municipal Services such as Disaster Management and Fire Emergency Services.

The point is taken. Regulation 6(1)(d) (now 11(1)(c)) has been amended accordingly to read "evidence of support from local government for the fire protection association", while regulation 11(1)(b) has been inserted, reading, "where there is a chief fire officer in the candidate fire protection association who is not the fire protection officer, evidence of existing or intended co-operation between the fire protection officer and the chief fire officer." Our assumption is that if the chief fire officer is the fire protection officer, such co-operation is clearly in evidence.

National Forests Advisory Council (NFAC) – Alan Dodson

6(1)(f)

Comment: Amend to read "whether the area for which the association has been formed is manageable."

This regulation has been deleted. The candidate FPA must fill in Form 2: Application for registration, in which the area of the FPA is described. The Minister can take this into account in deciding on capability. Regulation 11(1)(a) states that the Minister will take into account the contents of the FPA’s business plan. This is the document which will clearly indicate whether the area is manageable or not. By considering its plans and strategies for preventing and combating veldfires in its area as set out in the FPA’s business plan, the Minister will be able to assess whether the area is well-chosen and manageable. Thus although the regulation has been deleted, the principle of assessment of a manageable area remains in the final regulations.

Mondi – S Joubert

6(1)(g)

(g) Collective knowledge of the area with respect to fires and fire history."

The respondent’s concern is therefore catered for in the amended regulations.

National Forests Advisory Council (NFAC) – Alan Dodson

6(1)(k)

The word "and" should presumably appear at the end of paragraph (k).

Amended accordingly (now regulation 11(1)(d)).

National Forests Advisory Council (NFAC) – Alan Dodson

6(2)

The two comments for regulation 3(1)(a) set out above are repeated.

Please see response above .

National Forests Advisory Council (NFAC) – Alan Dodson

6(2)

Comment: The wording should read, "In deciding whether the applicant is representative of owners in its proposed area, the Minister will consider…"

The regulation (now 11(2)) reads, "In deciding whether the candidate fire protection association is representative of owners in its proposed area, the Minister will consider - …"

National Forests Advisory Council (NFAC) – Alan Dodson

6(2)(a), (b) and (c)

1. Sub-regulations (a) and (b) have been deleted.
2. The regulation (11(2)) now reads, "In deciding whether the candidate fire protection association is representative of owners in its proposed area, the Minister will consider -

Department of Housing and Local Government: Northern Cape - R Hoogbaard

6(2)(b)

The respondent would like to know what standardised tools would be used to measure this indicator. She states that without the above, the information would be unreliable.

Other factors the Minister will take into account also assist in determining representivity: objections to the formation of the FPA, evidence of the exclusion of any owner, evidence that vulnerable communities or assets have been unreasonably excluded from the FPA’s area.

Hans Merensky Holdings (Pty) Ltd – Chris Pienaar

6(2)(b)

Comment: If the Minister refuses to register an Association the reasons for such a refusal must be given.

Regulation 6(10)(b) covers this comment. The regulation (now 11(3)) has been amended to read, "If the Minister refuses to register the candidate fire protection association, he or she must state in writing within a reasonable time the reasons for the refusal, and steps that can be taken by the candidate fire protection association to meet the requirements for registration."

National Forests Advisory Council (NFAC) – Alan Dodson

6(3)

Comment: Save for the final sentence in (c), this sub-regulation is unnecessary. It restates, in effect, the Act, and should be excluded. The final sentence of (c) should be retained. Regulation 6(3)(c) states, "The Minister will refuse to register an association if within its boundaries there exists or will exist the whole or part of another association." The rest of the regulation states that the Minister may decide to register, conditionally register or refuse to register a FPA.

This regulation has been deleted. Regulation 6(3)(c) has now been included as part of the criteria the Minister will use to determine whether to approve Form 1: Notification of intent to establish a FPA. Regulation 3(4)(e) states that the Minister will approve the candidate FPA’s notification of intent if he or she is satisfied (inter alia) that no other fire protection association exists or is planned within the area or a part of the area proposed for the candidate fire protection association.

National Forests Advisory Council (NFAC) – Alan Dodson

6(4)

1. This amendment has been made in what are now regulations 11(5) and 11(6).
2. The equivalent of this regulation is now 11(7) which reads, "If the fire protection association fails to fulfil the conditions specified in terms of sub-regulation (6) within the specofied period, it will, after being given a reasonable time to remedy its failure, be deregistered by the Minister in terms of section 8 of the Act."

National Forests Advisory Council (NFAC) – Alan Dodson

6(5)

Comment: We are of the view that this should be omitted. It may have the effect of preventing the Minister from taking into account other relevant information.

Such a provision has been omitted from the final regulations.In addition, under the criteria the Minister may use to judge capability and representivity (regulations 11(1) and 11(2) respectively), the clause "any other relevant information" has been added.

National Forests Advisory Council (NFAC) – Alan Dodson

6(6), 6(8) and 6(10)

Comment: Section 4(4) of the Act provides for both conditional registration and conditional non-registration. The regulations need to be consistent with this. It must be clear which of the two is contemplated. Wherever possible, use the wording of the statute rather than a new concept such as conditional registration.

The comment received from the NFAC gave the drafting team pause. We have subsequently scrapped the concept of "conditional registration" and decided that the concepts set out in the Act will be used: registration (regulation 11(4)); registration after fulfilling conditions (regulation 11(5)) and registration before fulfilling conditions (regulation 11(6)). Powers and duties fall to the FPA only after registration has happened, and this can only be when the Minister is of the opinion that the FPA is capable and representative. The veldfire management strategy is critical in judging capability, and therefore the final regulations insist on its being completed and submitted with Form 2, Application for registration, along with the constitution.

National Forests Advisory Council (NFAC) – Alan Dodson

6(6)(a)

The words "within a reasonable time" should be inserted so that the regulation reads, "In the case where the Minister registers an association conditionally, he or she must in writing within a reasonable time explain to the applicant association which criteria have not been met in the application and how the applicant can meet these criteria."

The concern is noted and the words "within a reasonable time" have been inserted (see above, regulation 11(3)). The concept of reasonableness is judged according to the circumstances prevailing and may differ from case to case.

Mondi – S Joubert

6(6)(a)

The respondent would like to see a time limit being imposed on the Minister to finalise the application. He or she says that this is because there are various time limits placed on the applicant and it is thus not unreasonable to expect the same from the officials.

See directly above.

National Forests Advisory Council (NFAC) – Alan Dodson

6(7)

Comment: Surely a constitution must always accompany an application for registration?

The regulations have been so amended. Regulation 10(2)(f) requires a copy of the constitution to be attached to Form 2, which is the application to the Minister for registration.

Mondi – S Joubert

6(9) and 6(10)

The respondent would like to see a time limit being given for these regulations as for 6(6)(a).

The words "within a reasonable time" have been inserted throughout the regulations wherever there is similar wording.

Mpumalanga Emergency Services – FJ Bekker

6(11)

1. No tariffs have been set as yet.
2. Tariffs will be paid to the Department, and will go to Treasury. FPAs cannot claim the money, this tariff will be for the Department’s administration costs.

AGRI Western Cape – JS Bothma

7

Comment: Support is given to the principle expressed in the regulations that an Umbrella Association can appoint a common FPO for a number of FPAs falling under it. (Umbrella Associations are dealt with in regulation 12)

The regulations in their latest form do not deal with umbrella associations. Regulation 12 of the draft regulations have been deleted and will be published once further policy formulation has been done on umbrellas.

Mpumalanga Emergency Services - FJ Bekker

7(1)

Comment: Under regulation 7, a FPO may be appointed for a term of three years. This FPO may perform certain duties but nothing is mentioned about any remuneration that such a person will receive, and how will the Labour Relations Act and the Basic Conditions of Service Act going to affect these appointments and employees?

It is for the FPA to work out the details of remuneration for themselves and to fulfil the requirements of the applicable Acts.

National Forests Advisory Council (NFAC) – Alan Dodson

7(1)(a)

The word "or" should be inserted at the end of regulation 7(1)(a).

This has been done. Regulation 8(1) now reads, "A fire protection officer – (a) is appointed for a period of not less than two years and may, at the end of this period, be re-appointed; or (b) if he or she is a chief fire officer, is the fire protection officer for a period not less than the period for which he or she remains a chief fire officer."

Mondi – S Joubert

7(1)(b)

Comment: A proviso regarding removal from office in case of negligence or misconduct would not be out of place here.

Misconduct and negligence are now covered by regulation 8(3)(c) (see below under 7(2) for wording).

Mondi – S Joubert

7(1)(b)

The definition of a chief fire officer in the definitions section is suggested.

We agree and a definition has been inserted in regulation 2.

SAESI and Kimberley Municipality - Riaan Janse van Vuuren

7(1)(b)

Concern: What happens in the event where there is a person in a FPA who has the potential to be a FPO but needs to be trained further and in the interim a FPA appoints the CFO to be a FPO?

Thus, it is clear that the CFO who has been training the future FPO and acting as a FPO in the interim can resign as a FPO and not as a CFO under regulation 8(2). A FPA would then be in a position to appoint the trained individual as FPO. The concern raised is therefore addressed through the new regulation 8(2), previously regulation 7 (2)(a).

Department of Planning, Local Government and Housing: Western Cape - SW Carstens

7(1)(b)

The respondent would like to see the underlined words added in the regulation. "A FPO if he or she is a CFO, for a period not less than the period he or she remains a CFO for that municipality in whose area the Fire Protection Association is situated.’

The definition of a Chief Fire Officer in regulation 2(1)(d) of the amended regulations makes it clear that the Chief Fire Officer must be from the municipality in whose area the FPA is situated. The proposed amendment is therefore not necessary.

Hans Merensky Holdings (Pty) Ltd – Chris Pienaar

7(2)

Comment: The regulation must provide for a fair way in dealing with a situation where a FPO, even if it is a CFO, is not fulfilling his obligations satisfactorily. It must be possible to replace him or her before the end of his or her term of appointment.

Where the FPO is an employee of the FPA, the Labour Relations Act, 1995 will apply.

National Forests Advisory Council (NFAC) – Alan Dodson

7(2)

1. Who is the chairperson?
2. Surely the fire protection officer should be placed under a duty to resign on notice of a specified period.

(See directly above for the wording of the regulation)

Department of Planning, Local Government and Housing: Western Cape – SW Carstens

7(2)(b)

‘A FPO is no longer a CFO for that municipality in whose area the FPA is situated.’

As above for regulation 7(2)(a)

CMC - Donald Sparks

Respon-dent wishes this to be regulation 7(4)

"Where the area of operation of a FPA falls within or impinges on the area of jurisdiction of a municipality where the Chief Fire Officer of the municipality is not a Fire Protection Officer, the Chief Fire Officer should not be precluded from exercising his or her powers in terms of the Fire Brigade Services Act, 1987 (Act 99 of 1987) if he deems it necessary in the execution of his duties."

It would be impractical for the regulations to spell out the relationship between CFO and FPO for effective veldfire prevention and management. FPOs and CFOs should discuss regularly their roles and relationships and if possible include this in a memorandum of understanding. However, an additional criterion for the registration of a FPA in regulation 11(1)(b) has been inserted which reads, "In deciding whether the candidate fire protection association is capable … of performing its duties, the Minister will consider where there is a chief fire officer in the candidate fire protection association who is not the fire protection officer, evidence of existing or intended co-operation between the fire protection officer and the chief fire officer".

City of Cape Town – Piet Smith

8(1)

1. All references to election of FPOs have been removed from the regulations.
2. The use of the word "delegation" was an error. It should have read "designation", to cover the case where the Director-General designates an official or employee from the Department to act as the FPO if the FPA does not have the means to appoint one. Regulation 8(1) has been amended. The procedure for the registration of a fire protection officer has been completely redrafted. It now consists of regulation 9 – application for the registration of a fire protection officer and regulation 13 – registration of a fire protection officer. All FPOs, no matter whether they are is appointed or delegated must apply for registration.

National Forests Advisory Council (NFAC) – Alan Dodson

8(2)

The word "and" at the end of (iii) should be moved to the end of (vi).

The amendment has been made in what is now regulation 9(4).

SAESI and Kimberley Municipality - Riaan Janse van Vuuren

9

The respondent wishes to insert the underlined words into regulation 9(b) states, "Whenever there is in the area, a municipality with a service or a designated service, the Minister must invite the Chief Fire Officer of the municipality, or a designated service, or an authorised officer, to attend the meeting."

The insertion of the words "designated service" is not required because the term "municipality" is referred to previously in the regulation, and includes the meanings "with a service or a designated service."

AGRI Western Cape – JS Bothma

11

The respondent says that Agricultural Unions should contribute towards the veldfire management strategy (VMS) so that their practices are included. They raise the concern that the VMS should not be impractical and unreasonable, thereby hampering normal farming practices.

All members of the fire protection association will contribute towards the drawing up of the veldfire management strategy. In this way, both the concerns will be dealt with. No amendment is necessary to the regulations.

National Forests Advisory Council (NFAC) – Alan Dodson

11(1)

Regulation 11(1) repeats regulation 6(8). Both require the FPA to submit its veldfire management strategy to the Minister within 12 months of being conditionally registered.

As discussed in the comment on 6(6), 6(8) and 6(10) above, the concept of conditional registration has been scrapped, and the veldfire management strategy must now be submitted by the FPA as part of its plan to undertake its duties (known as the business plan) with Form 2, which is the application for registration. Both regulation 11(1) and 6(8) in the draft regulations have been deleted.

National Forests Advisory Council (NFAC) – Alan Dodson

11(2)

Comment: Plain language prefers "must" or "will" in place of "shall".

"Shall" has been replaced throughout the regulations by "will" or "must", depending on the context.

National Forests Advisory Council (NFAC) – Alan Dodson

12

15 comments were made by the NFAC on regulation 12, which dealt with umbrella fire protection associations.

The regulations in their latest form do not deal with umbrella associations. Regulation 12 of the draft regulations have been deleted and will be published once further policy formulation has been done on umbrellas. The NFAC will be asked to comment on these regulations when they are published for public comment.

Mpumalanga Emergency Services – FJ Bekker

12(2) and 12(3)

Comment: Mention is made under regulation 12(2) regarding Disaster Management Centres and Umbrella organisations. No financial provision is made for these centres and no staff is presently available for such centres, and what about the funding of these centres?

The concern is noted, and will be addressed during the policy formulation stage prior to the drafting of regulations on umbrella associations. The public will have a chance to comment on these regulations when they are published for public comment.

City of Cape Town – Piet Smith

12(3)

Comment: Regulation 12(3) mentions that any group of people or organisations may initiate the formation of an umbrella association. This should be the sole initiative of FPAs.

As above

Mpumalanga Emergency Services – FJ Bekker

12(5)

Comment: Regulation 12(5) refers to assistance to these Associations and in 12(5)(d) mention is made of training. Again the role of District Municipality must be properly described, as these Associations will have no financial base. To implement regulation 12 as a whole, financial support is needed.

As above

Mondi – Mr Joubert

12(5)(j)

Comment: Duties which may be assigned to Umbrella may include, management and maintenance of aerial support. As phrased this could imply that Umbrella FPA will foot the bill for aerial support.

As above

SCHEDULE 1 – DELETED IN THE FINAL REGULATIONS

Mondi – Mr Joubert

Clause 2

The respondent would like to see the words "or maps" to be added.

In Form 1, a map is requested from the candidate FPA. Substantial discussion was had about the scale of the map and where it could be obtained. After research, it was agreed that a 1:250 000 topo-cadastral map would suffice, and that where the FPA could not obtain such a map, the Department would be able, through its Geomatics section, to provide such a map to candidate FPAs.

National Forests Advisory Council (NFAC) – Alan Dodson

Clause 8

Comment: Doesn’t the area also need to be specified, as well as the other intended FPAs?

As stated above, Schedule 1 has been deleted. The question about umbrella associations is included in Form 2. It is not necessary to have a description of the area of the umbrella, since the chief executive officer of the umbrella must sign a declaration that the umbrella has agreed to provide the services specified in the form. In so doing, it is assumed that the chief executive officer will be alert to any possibility that the FPA does not fall within its area. However, even if this is the case, the umbrella can provide services to whoever it likes. As for the names of the other FPAs, Form 2 requires this information.

National Forests Advisory Council (NFAC) – Alan Dodson

Clause 9

Comment: Section 4(3) of the Act does not provide for "attachment" of an FPA, but rather for recognition of an existing organisation as an FPA.

As stated above, Schedule 1 has been deleted. The question about the FPA being a currently existing organisation which is applying for recognition is now included in Form 1, and is worded as follows: "Is this an existing organisation such as a Farmers’ Association, Fire Control Committee, Nature Conservancy or Disaster Management structure that wishes to be recognised and to register as a Fire Protection Association?"

SCHEDULE 2 (SCHEDULE 1 IN THE FINAL REGULATIONS)

Mondi – S Joubert

Clause 2

Comment: Insert the words "or maps".

This clause now reads, "Describe the area of your Association in a way that your members can understand." The reason for this is that this is a constitution that will bind the members of the FPA, and it should be drafted in such a way that it is accessible to the members and easily understood by them. The constitution is not there for the benefit of the Department. The area of the FPA has already been described for the Department in Form 1. Therefore, the constitution needs to describe the area of its jurisdiction in whatever way will make the most sense to its members, and could include a map if the FPA so desires.

City of Cape Town - Piet Smith

Clause 6(2)

Comment: Clause 6(2) still mentions "in the event of a fire crossing boundaries" although these words have been deleted in the National Forest and Fire Laws Amendment Act, 2001 (No. 12 of 2001).

Clause 6(2) now reads, "provide in the strategy for agreed mechanisms of co-ordinating actions with adjoining fire protection associations," as per the Amendment Act.

City of Cape Town - Piet Smith

clause 6(9)

Comment: Section 5 of the Act and the clause 6(9) of the constitution state that the Minister must be supplied with statistics about veldfires every 12 months. Is it possible to add into the regulations a schedule of information requiring standardisation of the statistics countrywide?

We agree with this in principle but are not in a position to do so currently. Policy formulation on this is currently ongoing. Once policy has been formulated, it is likely that regulations requiring standardisation of statistics will be published.

Department of Housing and Local Government: Northern Cape - R. Hoogbaard

clause 6(9)

The respondent states that the frequency of reporting is not specified, eg whether it is supposed to be quarterly.

Section 5(1)(i) of the Act as well as clause 6(9) of Schedule 2 set out a 12-month period for reporting statistics.

AGRI Western Cape - JS Bothma

clause 7(1)

The respondent asks why membership of FPAs cannot be made compulsory so costs can be distributed fairly. He or she says that the non-members will then have to pay a much higher tariff for a service rendered to them by a FPA.

We agree that non-members may be charged a higher tariff for a service rendered by a FPA than members.

Mpumalanga Emergency Services – FJ Bekker

clause 7(1)

Comment: Regarding the membership on point 7, it must be noted that every municipality or State organ must become a member. Again the question is asked what is going to happen to small farmers or farmers that is upcoming and would not be able to afford the membership fees?

A FPA has the discretion to set its own fees and tariffs (see clause 12 (previously clause 11) of the constitution), which may vary according to the means of a member. Clause 12(3) allows the FPA to exempt any member from the payment of fees and charges. Membership fees will also depend on the requirements of services needed by the member. This means that different fees and charges can be set by the FPA for different members. In addition the Minister will not register a FPA if it is unrepresentative in terms s4(2)(b). If unaffordable membership fees is the way in which small and upcoming farmers are excluded, registration will not take place.

National Forests Advisory Council (NFAC) – Alan Dodson

Schedule 2 clause 8(1)(a)

Comment: A title deed does not always have a survey diagram attached to it. Isn’t this what you are really after?

The clause has been amended to read, "Every member must give the Secretary the name of his, her or its property or properties, and where necessary, a sketch map of the boundaries of the property." It was felt that the problems with obtaining title deeds outweighed the benefits of having them. The purpose of the requirement is to have knowledge of which properties are owned by members, and this can usually be determined through the property names. Since the FPA will already have a map (as it is part of its requirement for Form 1), a sketch map is only necessary where the map would not adequately identify the property boundaries.

Mondi – S Joubert

Clause 8(1)(b)

The respondent would like the inclusion of the words "radio frequencies" in clause 8(1)(b).

Clauses 8(1)(b) and (c) have been so amended.

Mpumalanga Emergency Services – FJ Bekker

Clause 9(1)

Comment: There is no mention made of the kind of membership fees payable.

A FPA will determine membership fees payable. This is done in terms of clause 12, which can be structured to meet the FPA’s particular needs and requirements. See further above under clause 7(1).

AGRI Western Cape – JS Bothma

clause 10(1)

Comment: What is the position existing costs have been incurred, or even if costs arise thereafter, and how will those costs be recovered from the member who has resigned?

The concern is covered by the common law. The procedure available to any person in law to recover debts from a third party is available to the FPA in respect of one of its members, even if such member has resigned.

National Forests Advisory Council (NFAC) – Alan Dodson

Schedule 2 clause 10(3)

Comment: It is unclear as to the actual date for payment.

The FPA must decide on the number of days within which such fees, charges or interest must be paid and fill it into the appropriate space.

National Forests Advisory Council (NFAC) – Alan Dodson

Schedule 2 clause 10(4)

Comment: In our view this clause is unnecessary and confusing. The definition of owner in the Act would seem to take care of the situation.

Clause 10(4) (now clause 11(4)) has been deleted from the final regulations.

Department of Housing and Local Government: Northern Cape - R. Hoogbaard

clause 11(1)(a)

Comment: The respondent thinks it will be convenient if suggestions or upper limits for fees are included (instead of fixed charges). He or she feels that this could relate to the membership or area e.g. rural or disadvantaged groups.

See further above under clause 7(1).

Emergency Services – FJ Bekker

clause 11(1)(a)

Comment: Clause11(1)(a) refers to fees payable for services. These fees should be determined for all Associations in order to standardise it through the whole country.

See above and under clause 7(1).

AGRI Western Cape – JS Bothma

clause 11(1)(b)

Comment: What is the position if the member has already resigned?

The concern is covered by the common law. When a FPA member resigns without paying fees or charges owed by him, her or it, the law allows interest to be charged on the amount owing. The procedure available to any person in law to recover debts from a third party is available to the FPA in respect of one of its members, even if such member has resigned.

Mondi – S Joubert

clause 12

Comment: The respondent would like to see the words "as owed by them in their individual capacity as a member" being added to clause 12.

The clause was amended accordingly.

Mondi – S Joubert

clause 13

Comment: Surely this refers to the normal administrative office and associated assets i.e. radios, faxes etc. and not to vast tracts of land. Where would the limit be on Fire Fighting Equipment?

The right to acquire and dispose of any asset should not be limited. Clearly FPAs should acquire assets that they can afford.

Mondi – S Joubert

clause 14(5)

The respondent would like to see the inclusion of a FPO in clause 14(5) so that it reads "If the Chairperson, FPO, Secretary or additional member resigns, dies, becomes incapacitated or disqualified, or is removed from office by a majority vote of the Association, this position becomes vacant."

A fire protection officer is not an executive member of a FPA and is dealt with in regulation 8.

Mpumalanga Emergency Services – FJ Bekker

clause 15

Comment: Clause 15 refers to that if an organisation employs staff members to carry out certain functions, surely provision will have to be made for remuneration of the said members as well as to cover all administrative expenses.

The way in which the clause is drafted does not exclude the FPA from making provision for remuneration of employees, and no amendment is needed. The fees and charges which may be paid by members in terms of clause 11 (now 12) could theoretically cover the remuneration. The FPA is free to determine its fees as it wishes.

Mondi – S Joubert

clause 16(1)

Comment: The respondent would like the inclusion of ‘only if pre-approved at a suitable meeting or defined in the constitution’

This comment is covered in clause 17(2) (now 18(2)) which states that whenever the executive committee wants to raise a loan of more than R…, it must call a meeting of all members, with at least 21 days’ notice, to get a mandate to raise the loan.

National Forests Advisory Council (NFAC) – Alan Dodson

clause 16(3)

Comment: "make a loan" usually means to lend money to another. I think this clause is meant to refer to the FPA borrowing funds from another.

The clause (now 17(3)) has been amended to read "The Executive Committee cannot raise a loan…"

AGRI Western Cape – JS Bothma

clause 16 (3)

Comment: In the situation where members resign, what is the position and who will be held responsible for the repayment of the loan?

The concern is covered by the common law. When a FPA member resigns without paying fees or charges owed by him, her or it, the procedure available to any person in law to recover debts from a third party is available to the FPA in respect of one of its members, even if such member has resigned.

National Forests Advisory Council (NFAC) – Alan Dodson

Clause 17(1)

Comment: Isn’t it better to make this uniform for all FPAs?

The clause has been amended to state that the financial year runs from 1 April to 31 March. Regulation 14 also states this.

Mondi – S Joubert

clause 18(2)

The respondent would like the clause to read, "The items for annual general meetings are set out and should only include the items listed", thereby restricting the agenda of the meeting to the four items listed in clause 18(2)(a) – (d).

The concern is noted, but the constitution is a model constitution and can be changed to incorporate suggestions by individual FPAs. The Department’s view is that the AGM agenda should be flexible enough to deal with other items besides the ones set out in clause 18(2). The suggested amendment has therefore not been accepted.

Mondi – S Joubert

clause 18(4)

The respondent would like the words in bold to be inserted into clause 18(4) so that it reads, "If there is no quorum, all the absent members of association and members present must be given notice that a further meeting will be held at least 7 days later".

The clause (now 19(4) has been amended to read, "If there is no quorum, members must be given notice that the meeting is adjourned for at least seven days."

Mondi – S Joubert

clause 19(2)(c)

This clause reads, "A quorum [for a special general meeting] will be …% of all members". The respondent would like to see this figure tallying with the one the FPA will set in clause 18(5) for second time the annual general meeting is called.

We see no reason for the quorum for a special general meeting to tally with the presumably reduced quorum for an annual general meeting that is being called for the second time due to not meeting the original quorum in the first place. Even if the respondent had meant the quorum in clause 19(2)(c) to tally with the quorum in clause 18(3) (which is the original quorum set for the first attempt at holding an AGM), we see no reason for the two figures to tally. An annual general meeting and a special general meeting are separate categories of meetings, with specific purposes. There is nothing in the constitution that prevents these two figures from being the same, but we will not require it.

National Forests Advisory Council (NFAC) – Alan Dodson

Clause 21(2)

Comment: We do not understand the double barrel procedure envisaged.

Clause 21(2)(b) (now clause 23 (2)(b)) has been deleted. We view the safeguard of two-thirds of the quorum as sufficient to ensure that the FPA is not recklessly dissolved.

SCHEDULE 3 (SCHEDULE 2 IN THE FINAL REGULATIONS)

National Forests Advisory Council (NFAC) – Alan Dodson

Title of Schedule 3

Comment: The Act refers to a "veldfire management strategy". Rather use the language of the Act.

The final regulations use the following title for Schedule 3 (now 2): "Information required in the business plan of a fire protection association to meet the requirements of section 5 of the Act." Regulation 6 states that the candidate FPA must develop a plan for undertaking its duties set out in s5, which will be the business plan of the fire protection association. The business plan must contain the information indicated in Schedule 2.

National Forests Advisory Council (NFAC) – Alan Dodson

Schedule 3

Comment: Too much bureaucracy, forms and detail may discourage formation of FPAs. Doesn’t this schedule ask for too much.

We received no comments whatsoever on Schedule 3 other than from the NFAC. This in our opinion goes to show that FPAs and interested parties did not perceive its demands as too onerous. Schedule 3 has changed substantially in its demands since this comment was made. The current schedule has been extensively workshopped and checked with stakeholders. The business plan plays a very important function both in ensuring that the FPA understands its duties in terms of the Act, and has a plan for undertaking them, and as evidence of capability during the Minister’s enquiry into registration. Bearing this in mind, it is our belief that it is logically and succinctly constructed. We have canvassed local and overseas opinion on it, particularly from Australian experts in the field, and its requirements are the norm for most Australian states. In addition, the Department has designed a guideline to assist FPAs in completing Schedule 2, as well as a model of Schedule 2.

National Forests Advisory Council (NFAC) – Alan Dodson

Schedule 3 clause Aa

Comment: What is the "local IDP"?

The final version of Schedule 3 (now 2) no longer makes reference to this requirement.

National Forests Advisory Council (NFAC) – Alan Dodson

Schedule 3 clause Bn

Comment: What is NQF?

The final version of Schedule 3 (now 2) no longer makes reference to this requirement.

GENERAL COMMENTS

National Forests Advisory Council (NFAC) – Alan Dodson

1. Generally, "must" or "will" should be used instead of "shall".
2. There is inconsistent use of "acronyms" in relation to "fire protection association" and "fire protection officer".
3. Schedules will need to be amended, where appropriate, in line with the above comments.

1. This has now been done.
2. The full terms are now used, consistent with the Act ie "fire protection association" and "fire protection officer".
3. Schedules have been appropriately amended, although Schedule 1, which is a model constitution for a fire protection association, uses the term "association" rather than "fire protection association" consistently for the sake of convenience. Since the constitution is a document that stands alone, and also, that can be changed by the FPA to suit its needs and circumstances, the drafting team felt that it did not need to use the full term as set out in the Act.

City of Cape Town – Piet Smith

Section 3(3)(c), 3 (4) and 7 of the NV&FFA

Comment: No regulations have been drafted for applications for financial or other grants of assistance.

We recognise the importance of this, but we are not yet in a position to draft such regulations and we believe that these regulations and Chapter 2 of the Act can be brought into effect without the regulations providing for financial and other assistance from the Minister.

City of Cape Town - Piet Smith

Section 6(7) of the NV&FFA

2. According to section 6(6)(b), the Director-General will only register a FPO if he or she is satisfied that the person will be able to enforce the Act in a responsible manner. Regulation 13 sets out the criteria the D-G will use to decide this, which makes it clear that the FPO must have the necessary competence him or herself, or be able to acquire such competence "within a reasonable time".

City of Cape Town - Piet Smith

Section 5(1)(c)

Comment: The Act makes it clear that the rules of an Association will bind its members. As this is one of the most important aspects of enforcement within the Association which must also be lodged with the Minister, should there not be some specific mention and guidelines contained in a Schedule to the regulations as well?

Schedule 2 of the final regulations indicates that the FPA must develop rules. The Department of Water Affairs and Forestry has developed a guideline to Schedule 2 which is available at any of its offices (as indicated in the regulations), which goes into the development of rules at length. In addition, a worked example of a business strategy has been developed by DWAF, which gives examples of such rules.

AGRI Western Cape – JS Bothma

Involve-ment of SAFCOL, Nature Conserva-tion and Parks Board

This is clearly good practice; the Act does not make this provision compulsory. However, the Act makes it a requirement in section 18(1)(b) that any owner who has reason to believe that a fire on his or her land or the land of an adjoining owner may endanger life, property or the environment must immediately do everything in his or her power to stop the spread of the fire.

AGRI Western Cape – JS Bothma

Firebreaks

AGRI Western Cape is of the opinion that veldfire prevention through firebreaks and other precautionary measures should also apply to Safcol, Nature Conservation and Parks Board.

The Act already makes provision for this in section 12(1) which states that every owner on whose land a veldfire may start or burn or from whose land it may spread must prepare and maintain a firebreak.

The Department of Housing and Local Government: Northern Cape – R Hoogbaard

Farm labourers and com-munities

The respondent feels that the regulations do not spell out where the farm labourers or community fit in.

The Act makes it clear that an owner includes the executive body of land controlled by a community, therefore every regulation which refers to an owner refers to a community. Where farm labourers qualify as "owners", the Act applies to them in terms of those sections that refer to owners. Other sections such as 18(2) enable any person, including farm labourers to enter land to put out a fire that threatens life, property or the environment. Farm labourers, if they are able-bodied persons between the ages of 16 and 60, may be called upon by the fire protection officer or a forest officer to assist in the fighting of fires, just like any other person.

The Department of Housing and Local Government: Northern Cape – R Hoogbaard

Monitor-ing body

No mention is made of a monitoring body in the regulations and we are therefore unclear on what the respondent is referring to.

Mpumalanga Emergency Services – FJ Bekker

Financial assistance

The respondent feels that there is no financial commitment from the Department of Water Affairs and Forestry to ensure that the regulations can be implemented successfully.

The Department of Water Affairs and Forestry is absolutely committed to ensuring the successful implementation of the regulations. It is in the process of developing its policy on financial assistance. There are other sources of funding for FPAs, namely through the Integrated Development Plan for district municipalities and through fees and charges levied on FPA members, as well as by fund-raising.

City of Cape Town - Piet Smith

Financial assistance

The respondent states, "It is imperative that the establishment of Associations not be an unfunded mandate and that some form of financial support be pledged to established Associations even if it is in terms of a percentage of the funds that as Association have managed and proved to secure in terms of annual subscriptions from its members. … I strongly recommend that this issue be addressed in the regulations."

See directly above. We believe that these regulations and Chapter 2 of the Act can be brought into effect without the regulations providing for financial and other assistance from the Minister and that the priority is to do so.

National Water Act No 36 of 1998

The respondent claims that the in Chapter 8, the National Water Act makes provision that where the majority of owners in a geographical area are members of a water management agency, the minority are compelled to become members. He wants to know why we can’t apply the same principle to the NV&FFA.

In our research, we could not find such a provision. The guarantee of freedom of association in the Constitution makes it almost impossible to effect such a change to the legislation. In addition, it is the experience from previous fire control legislation that compulsory schemes generally do not have the desired effect. Owners need to take responsibility through their own desire and efforts for fire prevention and management.