Disaster Management Amendment Bill: Stakeholder engagement

Meeting report

The Chairperson said that the Committee was in the process of allowing further public engagements on the Disaster Management Amendment Bill, which had been conducted from 19 to 26 July. Some stakeholders felt that they wanted to make oral submissions, which was why they had been invited to present to the Committee.

Freedom of Religion South Africa (FORSA)

Adv Nadene Badenhorst, Legal Counsel: Freedom of Religion South Africa (FORSA), provided background information on FORSA, and said it had been involved in discussions with government and Parliament since the COVID-19 regulations were established according to the DMA, and the Act's impact on the religious sector in South Africa. She outlined the various engagements that had been held with the government by FORSA, and said it supported amendments to the Amendment Bill.

Ms Daniella Ellerbeck, Legal Advisor: FORSA, provided the recommendations to the Amendment Bill, as suggested by FORSA.

In essence, FOR SA believes that the regulations have unreasonably and unjustifiably limited the fundamental rights of religious people and organisations, and in particular:

-The right to equal treatment, and to not be unfairly discriminated against on grounds of religion and belief (section 9(3))

-The right to human dignity (section 10)

-The right to freedom of religion and belief (section 15)

-The right to peaceful assembly (section 17)

-The right to freedom of association (section 18)

-The rights of religious communities to collectively exercise their faith (section 31).

In view of the aforegoing, FOR SA respectfully requested the Committee, in its role as a custodian of the DMA, its regulations and directions, to:

-Hold the COGTA Minister to account with a view to ensuring that the regulations and directions pertaining to religious gatherings issued by her, are rational, reasonable and justifiable in terms of section 36 of the Constitution. In particular, the regulations and directions should be based on scientific data, and go no further than what is absolutely necessary to achieve government’s stated health goals.

- Require the COGTA Minister to state on record whether the regulations of 30 March 2021, which were subject to review within 15 days (i.e. by 14 April 2021), had indeed been reviewed and considered, as it was incumbent on her to do. If yes, on what basis (given the scientific data) was it decided not to review and amend the regulations pertaining to religious gatherings? If no, why were the regulations not considered?

See submission attached for further details

SA Hunters and Game Conservation Association

Mr Fred Camphor, Chief Executive Officer (CEO): SA Hunters and Game Conservation Association, provided the background information on SA Hunters, and said that the total contribution of hunting to the economy was R12 billion per annum. The lockdown had forced the hunting sector to stop operating, which had resulted in half of the hunting season being lost, while agriculture in general was deemed to be an essential service and other agricultural activities were largely allowed to continue with self-regulation with defined protocols to manage safety. Hunting is often seen as a sport or cultural activity. This is actually a completely incorrect view. There are an estimated 300 000 people living as citizens in RSA who annually hunt with the primary objective to collect venison for personal use as healthy meat. Only when the hunting industry succeeded to make the relevant Minister understand that the primary objective of hunting is to collect meat for personal consumption and as part of food security, was hunting allowed with the appropriate strict protocols applicable during the latter part of the lockdown period.

He outlined the impact of the lockdown regulations and pleaded for a more inclusive process in the DMA, and more representation in the sector.

SA Hunters supported amendments to the Act that would ensure proper oversight by the National Assembly and Parliament of any such process or implementation of any Act, to ensure there are balanced views taken into consideration when a decision is taken to apply the available legislation. The implications of the decisions taken were clearly disasterous to the economy of the country and the lives and wellbeing of a large number of citizens. This is clearly illustrated by the loss of economic contribution that was not mad as consumptive hunting was closed down. In this process, the intention was certainly to protect the poorest of the poor, while they were most likely the same ones that were hit hardest by the economic impact of the decisions taken. Without any doubt, there should have been a process where more and better thought were given to the economic impact of the decisions taken. This is the key driving force for SA Hunters to support the draft amendment bill as it should ensure more balanced views taken into consideration with proper oversight before any similar decision is taken in future

See submission attached for further details

National Union of Metal Workers of South Africa (NUMSA)

Ms Melanie Roy, Research Manager for Economic Research & Policy Institute: NUMSA, outlined the union's concerns over the amendments and the effect of the lockdown on workers and socio-economic issues. The amendment to Section 27 of the DMA was not supported by NUMSA. It should be limited because it infringed on the rights of citizens and did not include consultation with other stakeholders.

See submission attached for further details

Disaster Management Institute of Southern Africa (DMISA)

Mr Owen Becker, Deputy President: Disaster Management Institute of Southern Africa (DMISA), said that the amendment bill contradicted the DMA because it was related to the post-disaster response, and he proposed recommendations.

The Institute was concerned that the proposed amendments will add to bureaucratic processes and result in delays which hampered rapid response. Any amendment should strive to unblock blockages that could result in delays while maintaining the necessary oversight. The more effective functioning of the Intergovernmental Committee on Disaster Management, as envisaged in section 4 of the Act, could perhaps provide an opportunity for the exercise of parliamentary oversight.

See submission attached for further details

African Centre for Disaster Studies (NWU)

Prof. Dewald van Niekerk said extensive measures needed to be in place to amend the DMA bill to bring it into alignment with the Constitution. More oversight needed to be included, even though the bill was welcomed. He provided recommendations at a local government level.

He said government should learn from the COVID-19 disaster that failure to implement the Act properly, also during times of no disasters, lead to an uncoordinated response to the disaster. Government should ensure that the structures that are provided for in the Act are functioning and working as they should. This is perhaps not a legislative weakness but an implementation weakness. The suggestion to be placed under the Presidency is also a governance issue rather than a legislative amendment issue. As far as legislative weaknesses are concerned, he made the following suggestions:

• Parliamentary oversight mechanisms are formally included in the Act for the extension of at least the extension of a state of disaster and the regulations promulgated in terms of section 27

• The institutional protections (Parliament and the courts) should be included in the preamble.

• The provisions for a state of emergency foresee the possible harmful effect of declaring an SOE and the impact that this will have on human rights. Yet, the DMA is silent on human rights protections (in, for instance, the preamble).It would be advisable that an amendment indicates that it takes cognisance of the dangers when a state of disaster is declared and that any response remains within the parameters of the Bill of Rights.

See submission attached for further details

Helen Suzman Foundation

Mr Anton van Dalsen, Legal Counsellor: Helen Suzman Foundation, provided an introduction and outlined the Foundation's issues with Section 42 and Section 55 of Constitution. The amendment bill was supported in addressing the oversight role of government and the extension of the national state of disaster.  

HSF said the principles involved in the Bill will add a very necessary element to the existing legislation - concerning that of parliamentary oversight (and similar oversight, in the provincial and local government spheres). It is not acceptable in a constitutional democracy, that the declaration of a national state of disaster, with the very extensive executive powers that it grants government, can be extended indefinitely by way of ministerial discretion without any form of parliamentary involvement. In addition, it is not acceptable that the National Assembly, in particular, is under no specific legislative obligation to oversee the executive’s actions in a national state of disaster in a clearly defined manner. This refers particularly to regulations and directions that may be issued. It is important to note that the implementation of these additional provisions to the Disaster Management Act will not impede urgent executive action that may be required in a national state of emergency, but they address what is required in terms of the National Assembly’s constitutional oversight obligations. It can be expected that litigation will ensue in due course on the constitutionality of the existing provisions of the Disaster Management Act, if its provisions are not amended to cater for explicit oversight obligations on the part of the National Assembly on national level, and by the relevant bodies on provincial and municipal levels. For these reasons, the HSF supports the enactment of the Bill, subject to the above comments on changes that should be made to the majorities proposed for approving extensions to a state of disaster

See submission attached for further details

Solidarity

A representative of the Solidarity Union's legal services outlined the purpose of the submission and how the bill acted as a limitation on human rights. He said that the DMA was constitutional, and outlined the duration, the termination and the extension challenges of the state of emergency. The proposed amendments to the amendment bill were outlined.

Solidarity said its submission in this regard must not be interpreted as a dismissal of the proposed amendments, but merely as a necessary precaution that must be left within the required procedures and timelines of Parliament to be dealt with. It found the proposed amendments to be sufficiently founded.

See submission attached for further details

Beer Association of South Africa (BASA)

Ms Patricia Pillay, CEO: Beer Association of South Africa (BASA), applauded the Committee for the work that had been done during the pandemic, which had been stressful for everyone. She outlined the job contribution of the beer industry in South Africa and its contribution of 1.53% to the economy's gross domestic product (GDP). The impact of the DMA was indicated, as well as how the beer industry was not consulted during the lockdown period. The industry had suffered the most as a result of the regulations, and many young black entrepreneurs had been forced to shut down. The impact of the ban on the sale of alcohol was grave with the following impact:

- total loss in retail sales revenue of R45.1bn, equivalent to 15.8% of the sectors projected sales for 2020 and 2021;

- 248,759 jobs are at risk across the industry, which accounts for approximately 1.59% of the national total of formal and informal employment for 2020;

- Estimated cost to the country’s GDP is an estimated R64.8bn, or 1.3% of the GDP;

- 30% of craft breweries have already closed their doors, and 90% of the balance are at risk

BASA believed that in its current form, the Act does not provide sufficient legislative accountability, oversight, and consultation with affected parties regarding the regulations published in terms of the Act. The amended Act needs to ensure that accompanying regulations and directions published do not have severe unintended consequences on businesses and their value chain, as well as communities they seek to protect. BASA is of the view that parliamentary oversight is required, and all actions taken by bodies established under the DMA be subject to parliamentary processes and procedures

See submission attached for further details

 Christian Indian Indigenous Council of South Africa

Bishop Bernard Coopasamy, Executive Council Member, eThekwini: Christian Indian Indigenous Council of South Africa, outlined the challenges on the religious sector in KwaZulu-Natal in relation to the amendment bill. The sector could be a strong arm for the country, and he pleaded that the religious sector be taken seriously.

Discussion

Mr C Brink (DA) said that interactions with stakeholders were very important, especially when new information was presented. To FORSA, he noted the recommendation for compulsory public consultation, and requested more information on the case laws that had been mentioned. He asked where the public consultation process would fit in -- either after the Minister had issued regulations for the national state of disaster, or when consultations have taken place. The recommendation was reasonable in terms of the extension of the national state of disaster.

He noted that NUMSA did not support the three months' extension of the national state of disaster, and asked what would be an appropriate alternative time period. On the recommendation for consultations to be held with different representative bodies such as the National Economic Development and Labour Council (NEDLAC), he asked whether the consultations would be with NEDLAC specifically, or other representative bodies for broad public consultation.

To DMISA, he noted that the presenter had mentioned that the amendment bill was not aligned with the DMA, and he asked whether it was the intention of the legislation to be used as it was currently being used, because for over a year South Africa had been governed by the national state of disaster, and Parliament had no say in its extension. He asked if a more democratic process would be implemented instead of a bureaucratic system. Most organisations had highlighted that there was no scientific evidence for some of the regulations that had been implemented, and it could not be expected of South Africans to constantly go to the courts to establish their validity. He asked whether the DMISA had conducted research on other democratic jurisdictions where a Parliament or the legislature had no say in the declaration of a national state of disaster or state of emergency, and the content of the regulations. On the statement of inadequate preparation for disasters, he asked whether the National Disaster Management Centre would have been more prepared to take action instead of depending on making decisions.

To NWU, he noted that a provision of the DMA was said not to have been used, and he asked for clarity on the section of the Act. He also asked for clarity on how oversight would be improved if the NDMC was placed under the Presidency instead of COGTA.

To the Helen Suzman Foundation, he asked whether a state of national disaster was similar to a state of emergency, because the law-making powers of Parliament were considered for a period of time by the executive.

Mr K Ceza (EFF) said that a state of disaster was when there was a serious risk to citizens' health, and commented that the presentations were reactionary from a predominantly white representation, much like the tourism representatives who had presented to the Committee a few weeks back. He asked about an the ideal solution for the post-disaster situation, and said that the current situation in the country was abnormal. There should be power from the ministry to implement regulations in an attempt to protect the health of the citizens. Soldiers were sent to townships and rural areas to enforce the regulations which would have been avoided had the government dealt with the issues before a national state of disaster was announced. In Phoenix, black people had been killed while searching for food, and wrong vaccines had been procured from India. There was a lack of personal protective equipment (PPE) in restaurants, and the working-class was being exposed to the Coronavirus. These were examples of the inequalities that existed in South Africa, and the population was still expected to vote in the local government elections.

He said that there would be no changes to the economic situation of the majority population because there were capitalist groups and divisions. He asked how the proposed extensions would be improved by the presenters, because a capitalist society thrived on the labour of the majority population. The expropriation of land should be enforced, because the concerns of some of the presenters were not inclusive. To the SA Hunters, he asked how transformative action would be implemented, and how many black people were part of the 300 000 consumptive hunters. On skills development and access to land, he asked how many small, medium and micro enterprises (SMMEs) had access to land and skills development,  and if not, why not. On the secondary contributions, he said that the reaction by the various sectors needed to consider the scientific evidence of their proposals, and asked why the issues of the DMA had not been noted earlier.

Ms D Direko (ANC) said that COVID-19 had affected many industries and the economy, because people had lost their jobs and companies had closed down. Disasters were unique and the amendment of the DMA was applicable not only to COVID-19, but to other disasters that may take place in South Africa. The government had to enforce regulations to strike a balance to protect the public, to provide relief and to prevent other events from happening. Although the economy had been affected, it could still be recovered, but lost lives could not.

She commented that oversight had been the main area of discussion by the presenters, and asked about the kind of oversight that was being referred to, because in Parliament there were committees that were responsible for holding the executive accountable. She noted that the lack of inclusive consultations was a concern, and asked for a solution to the issue. Addressing FORSA, she asked whether a recommendation for Parliament to debate the proposed regulations was rationally related to the scientific data, and whether the debate should be held before or after the regulations had been published. To DMISA, she observed that concerns had been raised on the amendment on the 60% majority, and she asked for a possible solution to deal with disasters that would complement the DMA, instead of over-regulating it.

Ms E Spies (DA) said that it was understandable that transformation would always be an issue. The issue was that every presenter had emphasised the impact of COVID-19 on their industries which had led to unemployment and had affected people who were not part of the white race. People were losing jobs regardless of their race, and that should be the bottom line.

Responses

Freedom of Religion South Africa (FORSA)

Ms Ellerbeck said that the public participation process did not have to be in the form of written submissions, and could be between the declaration of disaster and the effect of the regulation. She said that details of the case had been sent to the meeting's chatline with a link. On the debate by Parliament, she said that the written submission stated that the debate should be held whenever Parliament was considering an extension of the national state of disaster.

On the reason for the issues not being raised beforehand, Ms Badenhorst explained that FORSA had on three occasions raised and petitioned the issues with the Portfolio Committee on Cooperative Governance and Traditional Affairs -- in May 2020, November 2020 and April 2021. The Committee had encouraged FORSA to return to the Committee if the issues still persisted. On the issue of representation, she said that in the past year FORSA had been mandated in writing for 11.5 million people who belonged to different races and denominations. On the kind of oversight that was expected, she said that oversight was expected from the Committee, and a system of checks and balances was expected from a constitutional democracy by the executive to ensure that the legislations that were passed were lawful and rational.

NUMSA

On the alternative time period, Ms Roy said that the consultation process had to be considered, which would inform a suitable timeframe. On the issue of NEDLAC, she said that the stakeholders were from various organisations, not just NEDLAC. Civil society organisations, the Centre for Inequality Studies, student-based organisations and the informal sector had been included among the stakeholders.

Disaster Management Institute of Southern Africa (DMISA)

On the intention of the legislation in relation to the DMA, Mr Becker said that the spirit of the Act was focused not only on the post-disaster response, but on the pre-planning, disaster risk, vulnerability and capacity assessments to be conducted before a disaster could happen. In the 20 years of the legislation, very little had been done in terms of pre-planning, which was why decisions were made in a hurry to make amendments. The planning needed to cover what was stated in other legislation, and consultations needed to take place to ensure that there was alignment. He said that the use of the word "bureaucratic" was complex, and it could not be used carelessly.

On the research conducted on other democratic jurisdictions, he said that of all the countries where research had been conducted, India had adopted the South African Disaster Management Act. Most European countries did not have disaster management legislation in place. The USA legislation was covered in a state of emergency, but it was not specific to disaster management. The legislation that was used in South Africa was similar to that of the United Nations, which considers pre- and post-disaster management. He said that disasters had a long term socio-economic impact which needed to be addressed, and the economic impact affects the fiscus of the country.

On a possible solution to deal with disasters that would complement the DMA, he said the intention was not to over-regulate, but to emphasise the need to pre-plan. The plans could be forwarded to Parliament for pre-approval. Legislation was an enabling tool that allowed action to be taken rapidly, but going through long public consultation processes and approvals was not effective.

African Centre for Disaster Studies (NWU)

Mr Van Niekerk said that although this was the disaster "management" act, the emphasis was on disaster "risk management and reduction," so if there was a long term focus on risk, then it would safeguard development because it ensured that natural or man-made hazards did not result in disaster. The emphasis of the DMA had always been on cooperative governance.

On the section of the Act to be clarified, he said that it was Section 4 and Section 5 of the amendment bill. Within the ICD, there were structures that must be implemented by the President, and the idea was to ensure the focus on cooperative governance. This also includes provincial, local and other government officials. He said that the advisory forums were also important in involving other civil society stakeholders in disaster management issues and requirements.

On how oversight would be improved if the NDMC was placed under the Presidency instead of COGTA, Prof Elmien du Plessis, Associate Professor: Faculty of Law (NWU), said that the aim of the bill was to provide for an integrated and coordinated disaster management policy, so the assumption was that the bill would be forwarded to the Presidency, because it made oversight easier instead of having a specific ministry.

She said that the court cases had been noted, and that committees was supposed to conduct oversight. When the bill was brought forward, the issues that were problematic had been raised because the DMA was development legislation, with a strong social justice focus. One of the suggestions in the written submission had been that human rights be clarified and involved in disaster management so that a hazard did not turn into a disaster. She said the DMA demanded that vulnerable people be taken into consideration, and for the citizens and Parliament to ensure that there was proper implementation.

Helen Suzman Foundation

On the national disaster being similar to a state of emergency, Mr Van Dalsen said that a state of emergency required 60% support for an extension in terms of the Constitution. The state of emergency provisions infringed the Bill of Rights, so the 60% majority should be limited to the state of emergency for serious situations.

SA Hunters and Game Conservation Association

On the 300 000 hunters, Mr Camphor said that the number had been taken from research that was conducted by NWU, and it did not have any race categories. In the first three months of the lockdown, 18 000 jobs had been lost in the game and hunting industry, and the majority of those who had lost jobs were black and other non-white people, which was why wider consultations had been emphasised.

The Chairperson thanked all the presenters for attending the meeting, and said that besides the discussions on the bill, the views shared would be a learning curve for the Committee. It was still in the process of assessing the impact of COVID-19, and had noted that assessments needed to be made on the management of disaster. There were lessons to be learnt, considering that the pandemic was global, so the Committee could not admit that the matter had been dealt with appropriately. Accountability and consultation would never be enough, because the impact would be different in each sector. He said that the Parliamentary process would guide the process of the bill.

The meeting was adjourned.