Department on interventions to ensure compliance by ESKOM and SASOL with environmental laws; SANParks Quarterly Performance; KNP Land claimants; with Minister and Deputy Minister

Meeting report

Opening Remarks

The Chairperson welcomed everyone to the meeting, and introduced Mr B Joko (PAC) as a new member to the Portfolio Committee.

Ms Barbara Creecy, Minister of Forestry and Fisheries and the Environment, requested to be excused from the meeting at 10 am for other commitments. She delegated Ms Maggie Sotyu, the Deputy Minister, to lead the Department of Forestry and Fisheries and the Environment (DFFE), presentation.
Report of the Portfolio Committee on Environment, Forestry and Fisheries on its Oversight visit to Kwazulu Natal on 11 - 12 August 2021

After adoption of the agenda, the Chairperson asked the Committee to consider and adopt the oversight report of the Committee to Umhlanga, KwaZulu-Natal.

Mr Singh said that a fire had caused an explosion at the chemical storage of United Phosphorus Limited (UPL) during the unrest in KwaZulu-Natal.

Mr N Paulsen (EFF) said he did not like the notion that the cause of the fire at UPL was due to the unrest. The source was not known, because there was no camera footage that proved that the unrest had caused the fire. He argued that the report must highlight that the cause of the fire was unknown, as opposed to the fire having occurred during the unrest.

Ms S Mbatha (ANC) said the background of the report was not reflecting the status of UPL in South Africa, but that of an Indian UPL. The two did not match -- the one in South Africa was caused by fire.

Ms C Phillips (DA) said that the reference to Delhi must remain, because that set the history of the company. She stressed that they could not discount the eye witness accounts. They had been told the masses had moved up, and the Makro warehouse was defended, but the chemical company did not have enough staff to deal with the situation. She said the fire could be possibly related to the unrest, and until the investigation was completed, the witnesses’ accounts were still relevant.

Ms Mbatha said that the Delhi and Durban incidents were not related, even though it was the same company.  She added that the report must include that the environmental impact assessments (EIAs) of the company had not been conducted and approved by the DFFE, the Department of Health and provincial environmental health practitioners. The company did not comply with the licence that had been issued after being inspected by the Department of Health's environmental health practitioners.

Ms Phillips added that UPL had no risk assessment strategies, and were not using state-of-the-art facilities.

The Chairperson said the drafters would have to capture the correct information, particularly that pertaining to the unrest issues.

Mr Singh said there had been no looting at Makro, so he did not understand why it was referred to in the report.

Mr Paulsen said that it should be noted in the report that the measures used to stop the fire had not been appropriate. Instead of using water, they had used foam. He added that the fire department had been unprepared to extinguish the fire.

Ms Mbatha said that the owner of the UPL storage facility did not comply with the occupational health and safety requirements on fire extinguishers. Their fire extinguishers were supposed to be triggered in the event of fire and start working. She asked that the work inventory in the document be changed to material safety data sheets.

Mr Singh asked for the time frames to be included in the recommendations.

Ms Mbatha said that the Committee needed reports from different departments on the UPL fire issue.

Mr Singh said that the issue of the UPL site being a special zone must be captured. The way the company said it was a special zone implied that they did not have to comply with a number of requirements. The Committee needed to know what environmental exemptions were given to companies in “special zones.”

Mr Paulsen said that many necessary environmental regulations had been relaxed for the UPL facility as part of the government’s economic stimulation programme. UPL had been under the impression that because they had been relaxed at the initial stage, they never had to go and make sure they complied with the set environmental regulations. 

Ms Phillips said that UPL had three storage facilities in Durban which were located next to rivers. She recommended that these facilities must be inspected for compliance with the EIA, public health and safety, and dangerous goods requirements, before the end of the month. She would be happy to accompany the inspecting team at her own cost.

Ms Mbatha said she would accompany Ms Phillips, because this was part of her speciality.

Mr Singh said he adopted the report on Umhlanga with the provision that it would be circulated to the Committee with amendments.

Ms N Gantsho (ANC) seconded adoption of the report.

Adoption of minutes

The Chairperson called for the adoption of the minutes of the Committee's meeting on 17 August 2021.

Ms T Mchunu (ANC) moved their adoption, and Ms Mbatha seconded.

The minutes were adopted.

Adoption of third term programme

The Chairperson asked for the adoption of the third term programme for 2021.

Mr D Bryant (DA) proposed that the presentation planned for 21 September on the preparedness for the COP26 climate summit be rescheduled. They would be sitting at a very important time regarding the state of climate change, and since the COP 26 summit was taking place at the end of October, he proposed that the presentation should be rescheduled to 31 August. The Committee had only two presentations for that day, while the meeting on 21 September was full of non-complementary presentations, and was also a long time ahead.

He proposed the adoption of the third term programme, and was seconded by Ms Mbatha.

He added that there was an outstanding request to review the Great Limpopo Transfrontier Park agreement which was discussed during the Committee’s visit to the Kruger National Park (KNP). He asked for this outstanding request to be included at the end of the term programme.

DFFE interventions at SASOL and ESKOM

The Chairperson asked the Deputy Minister to introduce the presentation on the Department's interventions to hold SASOL and ESKOM accountable for environmental law compliance.

Deputy Minister Sotyu introduced the DFFE team, and allowed them to present. The presentation was delivered by Dr Thuli Khumalo, Deputy Director-General (DDG) for Climate Change; Mr Jongikhaya Witi, Chief Directorate, Climate Change and Mitigation; and Ms Frances Craigie, Chief Directorate, Enforcement.

(Please see the attached presentation for details.)

Discussion

Mr Bryant thanked the DFFE for its presentation, but pointed out that it would been better to have received it it last week, when ESKOM and SASOL were presenting. He asked at what level the Department would hold ESKOM accountable for its 57 % compliance. What steps was it taking to make this target more ambitious in the current climate crisis? The Committee could not be content and accept 57 % compliance -- it should be aiming for 100 % compliance.

Mr Singh agreed with Mr Bryant, and said ESKOM was getting away with the bare minimum of emissions standards. He was concerned about the postponements from ESKOM due to its financial issues. If one juxtaposed health risks and finance, something had to be done somewhere. He stressed that the DFFE had to enforce compliance through the legislation. To what extent were the environmental management inspectors (EMIs) fully capacitated? He asked about environmental enforcement at big companies, especially ESKOM and SASOL, and whether there were any prosecutions regarding non–compliance with environmental regulations. It seems as if this was a never-ending problem, and the most affected parties in all of these problems were the surrounding communities in the highveld region.

Mr Paulsen asked who advised the Minister on what the target levels should be. Were there any intermediate targets for monitoring organisations' long-term planned targets?

DFFE's response

Dr Khumalo said that the legal framework regarding the 57 % compliance by ESKOM was clear -- it required 100% compliances from all the industries. She said that ESKOM’s applications were under consideration, and they would be communicated after consideration.  The Minister was advised by a Departmental team of experts and legal frameworks. The legal frameworks were clear on the stage at which an area could be classified as a priority. The first requirement was that the ambient air quality standards were being exceeded, or there must be a sufficient evidence for the Minister to believe that the standards could be exceeded in the future. Secondly, that MECs had the same provisions within a province as the Minister. If the boundary of an area crossed provinces, the Minister could declare it as a priority area. When an MEC makes a request to the Minister to declare a priority area within a particular province, with enough resources, a Minister could declare that area. She stressed that the declaration of a priority area was a highly resource-intense mission.

Mr Witi said that the DFFE had a web-based system that monitored annual emissions from industries. The industries were expected to report by the end of March every year on the previous year. This system had been running for the past five years.  The DFFE had carbon budgets as instruments to set emission targets. The carbon budgets were the assigned amount for companies to reduce emissions. However, the DFFE was challenged, because the carbon budgets were voluntary. The Department needed to have a Climate Change Act in order to mandate the targets. The DFFE, through the Climate Change Bill, was proposing developmental sectoral emissions targets informed by greenhouse gases emission reduction policies, such as the Integrated Resource Plan.

Ms Craigie said there were a fair number of EMIs across the country. The EMIs went through training to understand the legal frameworks, as well as the powers and functions of being an inspector. The DFFE was busy with a project to capacitate local authorities within priority areas and other communities. National authorities got involved only when they were invited to lead the investigations, such as the ESKOM Kendall criminal investigation, for example. She said that this was a test for the Department, because it was crucial to provide concrete evidence for negligence.

Mr Singh stressed that regular updates would be necessary from the DFFE as to whether the companies were meeting their targets so that they did not wait for 2025. He suggested that quarterly or bi-annual updates would be ideal.

Limpopo and Mpumalanga land claimants

The Chairperson had invited the land claimants from Limpopo and Mpumalanga to present their complaints during the Committee's oversight visit to the Kruger National Park.

Mr Perry Sambo, a representative of the claimant communities, made the presentation on the Limpopo and Mpumalanga land claims.

(See the attached document for details of the claims.)

Discussion

Mr Paulsen asked how many land claimants there were, and added that attention needed to be paid to the conditions under which some of the communities at KNP were living.

Adv Zwelithini Sono asked Mr Sambo who was he representing in the presentation. Who had authorised him to do so? Where had he got the power to be a representative of all the chairpersons? He asked how they had one to Phase 2 without finalising the land claimants’ payments at Mpumalanga. Was Mr Sambo a chairperson of the land claimant committee or community property association? In what capacity was he speaking?

Mr Sambo replied that he had been delegated by the chairpersons of each land claimant community.

Mr Richard Guvazwivi said Mr Sambo had been given the honour of representing them, and he did not understand why Adv Sono was asking this question. He said Adv Sono had his own agenda, which could not be allowed at this meeting.  If he wanted a meeting, he should arrange it and they would come, but not today.

Ms Mbatha said Adv Sono had been representing some of the communities during their KNP oversight visit.  She said the Committee first needed to verify the community delegates who came to represent their communities.  It should note that not all the communities were represented in the presentation, because some had pulled out. She said that the land claimants fell under the Department of Agriculture. She recalled that during their visit, the land claimants had said that there were decisions from which they had been excluded. They had claimed that most of the benefits went to the officials.

She also asked about the update on the revamping of the low standard housing at KNP.

Mr Singh asked what had happened to the withdrawal of the facilitator, as referred to by the DFFE.

Deputy Minister Sotyu said that Cabinet memorandums were strictly for the Cabinet, and were secret documents.

SANParks' response

Dr Luthando Dziba, Acting Chief Executive Officer (CEO), SANParks, expressed his appreciation to the community delegates who were presenting. He said SANParks took the matters related to the claimant beneficiation organisation very seriously, because they needed to be dealt with equitably and justly. SANParks acknowledged that these matters were very complex, and he asked to be given the opportunity to study the matters raised by the communities and share his views with the Committee at a later stage.

Mr Ngcali Nomtshongwana, Acting Head: Social Transformation, SANParks, re-emphasised the complexity of the land claimants' issues.  He said that the KNP covered almost two million hectares, and the land claims from the 15 claimants involved some 500 000 hectares -- a quarter of the park -- excluding the Makuleke Contractual Park situated in the northern part of the KNP, which covered 29 000 hectares. He said that only seven of the 15 claimants had signed the settlement agreement, and that the number of beneficiaries was close to 1 500.  

The nature of these settlements was at two levels -- pre-settlement and post-settlement. The pre-settlement stage was led by the Land Claims Commission, while the post-settlements were facilitated by the KNP and the DFFE through settlement implementation. The intention for post-settlement activities by SANParks had always been to develop a beneficiation scheme that would be in line with the Cabinet memorandum of 2008 and the designed settlement agreements. SANParks had established a project management unit informed by the settlement agreement (Section 6.1) to design and develop the beneficiation scheme. After there were disagreements on the beneficiation scheme by a joint committee, led by the commissioner and the CEO of SANParks, an independent facilitator had been appointed for a period of six months. The independent facilitator’s contract had expired without him concluding his objectives.

Further discussion

The Chairperson said that SANParks needed to come up with comprehensive responses to issues raised by the representatives of the land claimants.

Mr Bryant said that the alleged intentional prejudice of the land claimants should be considered and investigated.

Ms Mbatha advised the Committee to include the legal representatives of the communities to avoid dissatisfaction by the communities over the whole settlement process. She stressed that the time frame for a meeting by the Department of Agriculture, Land Reform and Rural Development with the community, the land claimants' legal representative and the DFFE was required.

Mr P Modise (ANC) said that it would be better to hear the views of Adv Sono so that the Committee could make a comprehensive decision. He proposed that before the end of the week, the Committee should agree on a date for a joint portfolio meeting with the Department of Agriculture, Land Reform and Rural Development.

Adv Sono said that claims were settled under the National Environmental Management  Act (NEMA) , including all the community chairpersons involved that claimed to have a dispute. The chairperson had no powers to represent, according to the legislative procedures of NEMA. They were allowing chairpersons to present a new option, without any resolutions from the communities. Mr Sambo had never been to the village of Muyexe and met with the community to represent them.

Adv Sono said he represented the communities of Muyexe, Nwadzedzeku, Madonsi and Ndindani. He had legal documents to prove that, and feasibility studies that informed the beneficiary schemes on how the communities of Limpopo were supposed to benefit. He was questioning Mr Sambo’s submission, because he was about to confirm the non-signing or non-participation of communities he had represented during the settlement process. Mr Sambo had never attended any community meeting in Limpopo, or spoken or asked permission from him regarding this settlement.

Adv Sono said he had all the resolutions from 2012 on claim settlements, investments, sustainability, and the development of the Shangoni Gate. He added that the facilitator had withdrawn after his appointment had been opposed due to his irrelevant qualifications. They had written a letter to the Minister, and she responded indicating that she would refer to land reform on the appointment of the facilitator.

Adv Chauke, speaking on behalf of the Madonsi community, said he would dispell what he described as the "myths" from Adv Sono. They had project management unit (PMU) mechanisms that had been established in terms of the settlement agreement and signed in 2016 by communities, SANParks and other departments.  He said that Adv Sono had never been chosen to represent anybody. Adv Chauke lived in Madonsi. Any documents Adv Sono claimed he would send to them, they would see that he never got a mandate from anybody. He had no documents to prove it, although he had requested him on several occasions to produce them, but he never did.

Adv Chauke said that the independent facilitator had left because his contract had expired, as Mr Nomtshongwana had explained. He asked Adv Sono who was he representing today, and said that his intention had been to disrupt the proceedings.

Ms Mbatha said that there was a problem and confusion as to who was representing the land claimants. This needed to be investigated.

The Chairperson said any documents from Mr Perry Sambo and both Adv Sono and Adv Chauke must be submitted to the Portfolio Committee, to provide some clarity.

Mr Modise urged the Chairperson to exclude the advocates from the meeting because they were confusing the Committee with their legal jargon. The Committee should give the DFFE five working days to submit a comprehensive report on this land claim matter. Next week, it would be joined by other Portfolio Committees, by which time the DFFE must have presented its findings. The matter could not be clouded by a political land battle surrounding the KNP.

Dr Dziba said that  SANParks had not intentionally prejudiced the communities that were part of the land claimants. SANParks welcomed any independent investigations to establish whether there was prejudice from any staff members or management of SANParks. It wanted the communities to benefit significantly. When SANParks got the opportunity to reply, it would present the proposed beneficiation scheme from its viewpoint.

The Chairperson said that they needed a comprehensive response from the DFFE that took the SANParks accounts into perspective.  It would offer clarity on who represented who, and what the areas of contestation were.

SANParks fourth quarter performance and financial report

Dr Dziba and Mr Dumisani Dlamini, Chief Financial Officer (CFO), SANParks, presented the fourth quarter performance and financial report.

(Please see the attached presentation for detailed information.)

Discussion

Ms A Weber (DA) asked what the difference was between black and white rhinos. Could the Committee get the population statistics on black rhinos? How could they make sure that the rhinos did not become extinct in the KNP? She said the KNP had had a private doctor at Skukuza for many years, and asked how it could let this doctor go and propose a new doctor with no equipment. Where was the money for the equipment coming from? Where was the budget for a new doctor coming from? They had had a private doctor who was costing them nothing for either salary or equipment. Why would they hire a new doctor if they were struggling financially?
 
Ms Phillips asked who oversaw the setting of key performance indicators (KPIs) at the KNP. She commented that the set KPIs were too soft and seemed very easy to achieve. She asked how many hectares of degraded land (referred to on page 9 of the presentation) needed to be rehabilitated. What was the actual size of the wetlands that needed to be rehabilitated, as indicated on page 11?

Mr Bryant said that after listening to the SANParks presentation, it seems that it had accepted that rhinos would become extinct in the KNP. There was a refusal by SANParks to set a zero target for the number of rhinos to be poached. The fact that it was fine to set a target of less than 250 rhinos to be poached was apparent. He said that private farms and reserves have zero targets for critically endangered animals, and stressed that the target for poached rhinos should be zero. If SANParks could not meet that target, they must mark it in red. He asked for an update on the polygraph test as a measure to curb rhino poaching. How would the Rhodes Memorial tearoom be restored after the Table Mountain fires?  He added that the target for schools to have access to a SANParks facility in the presentation was very low.

Mr Singh asked if SANParks was aware of any cases pending before the courts. How many staff members were implicated? What were the disciplinary procedures for those who had been prosecuted for poaching? He asked if there was any incentivisation to increase the number of public visits to the parks, like discounts.  What had SANParks done with the additional COVID-19 funding? Had they been able to achieve the objectives the funds were granted for?

SANParks' response

Deputy Minister Sotyu commented that the performance in terms of number of people living with disabilities in the employ of SANParks remained marked in red because the government required official documents to prove that a person was living with a disability, and this process was very slow.

Dr Dziba said that the number of black rhinos was much lower than those of white rhinos. South central black rhinos were found only in the KNP, while the other SANParks had other sub-species. The number of both white and black rhinos was increasing in the other SANParks, even though the numbers were generally very low. SANParks was aware that the challenge of rhino poaching was big in the KNP, and it was reflected in the past annual report that the number of rhinos in KNP had been declining over the last decade. The decline was not due to a lack of effort or investments from the government, but because of the enormity of the challenge SANParks was facing, including the role of syndicates that facilitated the poaching. SANParks had acknowledged that the proximity of high-density human settlements creates a challenge, because poachers disappear into these communities. SANParks would create sanctuaries at the KNP and other parks to change the declining trajectory of the rhino population outside the KNP.

He said a zero target for rhino poaching at KNP was over ambitious, not attainable, and non-realistic. Poaching was rife in the KNP, and it was only during the Level 5 lockdown when poaching incursions were reduced. He emphasised that the rhino population growth was increasing significantly in the other parks that were comparable to private reserves. Only five rhinos had been lost at the other SANParks over the past five years. There were 287 rhinos in other SANParks in 2012, and the number had increased to 679 in 2020.  

He said that the school visitation targets had been revised and reduced in the annual performance plans because of the lockdown, as group activities were not allowed in SANParks. It was doing its best to market visits to the national parks. Interestingly, it had observed that visitors appreciated camping and engaging in activities with family members. He hoped that after vaccination, SANParks could expect a recovery in the number of visits.

Ms Lize McCourt, Chief Operating Officer (COO), said SANParks was an implementing agent of the national natural resource management programme that formed part of the Expanded Public Works Programme (EPWP) in South Africa. The scientific work that informed the yearly objectives of SANParks was run by the South African National Biodiversity Institute (SANBI) and the DFFE, which maps all the areas that require rehabilitation prioritising. She did not have exact size of the land that would be rehabilitated -- the numbers would be quantified in the medium-term strategic framework for SANParks. The resources made available through the EPWP and labour-intensive methodologies determined the targeted hectares in prioritised areas.

She said that in terms of the legislative framework, polygraph tests could be conducted only on a voluntary basis. SANParks had some information regarding the court cases through the SANParks investigative team, but they did not have the full court roll. Regarding staff involvement in rhino poaching, SANParks had a dedicated process to prevent, detect and investigate poaching. She added that the criminal investigations were complemented by a just and fair disciplinary process for alleged involvement in rhino poaching.

The Chairperson said that they should stop at this stage, and prepare for a plenary session later in the afternoon. Committee Members should find other means to continue the discussion with the SANParks team.

Mr Bryant said that the answers to the questions posed during the meeting format were never responded to in writing. He asked the Chairperson to allow Mr Gareth Coleman, Managing Executive, KNP, to respond to questions directed to him.

Mr Coleman said that every single ranger and employee at SANParks was seized with the challenge of rhino poaching. The Portfolio Committee Members did not appreciate the challenges they faced. In 2020, they had over 1 600 incursions, so they could imagine how many incursions occurred daily. SANParks was also challenged by a shortage of funding, especially in the areas where rhinos were concentrated in the KNP.

He said that SANParks was finding ways of making integrity and polygraph testing mandatory.  The issue of integrity testing was complex, and they did not want to implement something that would backfire. He assured the Committee that everybody within the leadership of SANParks was committed to dealing with the integrity testing issue.

SANParks had always paid their medical doctors within the KNP for certain services, such as emergency and occupational support. Nothing had changed, except that the previous doctors who were providing the same services were no longer providing them. SANParks was going on a five-year process to revise the manner at which it looks at the provision of medical services in the KNP for the well-being of its staff members. It had a short-term doctor while it finalised a longer-term procurement process.

The meeting was adjourned.