Continuation of Negotiating Mandate Meeting on National Forest Amendment Bill

Meeting report

The Chairperson said the meeting was a continuation of the one that had taken place the previous week, at which the negotiating mandates of the North West Province and the Western Cape had not been voted on. Further, Members had not voted on clause 21 of Mpumalanga’s mandate either, because the voting process had been disrupted by load shedding. The Committee Secretary had therefore proposed that they return to Mpumalanga's negotiating mandate, which had been agreed to.

The Committee Secretary outlined the agenda of the meeting. The Select Committee needed to vote on the provincial negotiating mandates on the National Forest Amendment Bill [B11B – 2016] and to adopt Committee meeting minutes of 19 May and 1 June.

The Chairperson added that since many Members had not been able to be on the virtual platform due to load shedding in the previous meeting, the Committee Secretary would read out the negotiating mandate from the North West Province.

Mpumalanga Negotiating Mandate: Clause 21

The Committee Researcher read clause 21 of the province’s mandate on the bill.

Mr Sibusiso Kobese, Director: Law Reform, Department of Environmental Affairs (DEA), said the issue raised by Mpumalanga had been a recurring point that had been raised by other provinces as well. The Department’s view was that the part to which the province had made reference had been removed in the 2005 amendment process, so there was no need to amend the clause any further.

Ms Phumelela Ngema, parliamentary legal advisor, concurred with Mr Kobese’s explanation that there was no need for further amendment.

On clause 21, the Eastern Cape, KwaZulu-Natal, Limpopo, the North West did not support the proposed amendment. The Northern Cape province was not on the platform, and the Western Cape abstained.

Clause 21 of the negotiating mandate of the Mpumalanga province was not accepted by the Select Committee.

North West Negotiating Mandate

The Committee Researcher read the mandates submitted by the North West province.

Mr Kobese expressed the Department’s appreciation of the support that it had received from the province.

He agreed with the province’s proposal for the development of guidelines. He guaranteed that the Department would begin working on the guidelines once the bill has been finalised, and regulations would follow for implementation.

Commenting on the definition of ‘woodland,’ he said the Department’s view was that the definition in the current bill was adequate, but was open to a few adjustments. The Department had proposed alternative wording, and the wording of the definition of vegetation could be ‘declared by the Minister by notice in the gazette.’ The Minister therefore had the power to declare any vegetation type as woodlands. The Department did not support amendments to documents that were not under the Department’s control.

With regard to the proposed amendment to include ‘traditional leaders,’ he explained that s48 of the principle Act had already provided Minister the power to delegate certain authorities to traditional leaders.

Mr Kobese commented on the definition of the ‘destruction of natural forest,’ The Department supported the proposal that ‘resource use’ to be added to the end of the paragraph. However, he cautioned the Committee that the definition was not in the original bill, and it needed to decide on whether or not they would accept the proposed amendment.

Similarly, the wording ‘new land use’ was also supported by the Department, but as it did not constitute part of the original bill, it was up to the Committee to decide whether they would accept it, and subsequently request permission from the House Chairperson.

Mr Kobese did not support the specific definition on ‘exceptional circumstances.’ He observed that it was a recurring point in other provinces’ mandates as well. In his legal opinion, the term should not be defined because it was a generally used legal term.

He said that s12 had been removed in the 2005 amendment process.

He explained and justified the reason for the Minister’s unilateral declaration, stressing that it was circumstantial. In instances such as when the country faced some imminent threats to forest resources which would lead to the destruction of trees etc, the clause would give the Minister power to act immediately. He reminded Members that the Minister would still need to account to stakeholders after making a unilateral declaration.

Mr Kobese said there already bills in existence such as Biodiversity Act and Water Act that regulated species, so the Department did not believe that there was a need to re-introduce regulations in this bill. Hence, the Department did not support the proposed amendment.  

He commented on the last two points around penalties, indicating that since there was a range in penalties from R1 to a maximum amount of R10 million, the court could decide on a case-to-case basis. Hence, the Department did not support the proposed amendment.

Ms Ngema agreed with Mr Kobese’s explanation on the ‘destruction of natural forest.’

She pointed out that Clause 4 expanded the Minister’s discretion, and acknowledged that it was an acceptable standard in law for the Minister to explain to stakeholders or hold consultations at a later stage.

On Clause 1, the Free State and the Western Cape abstained. The Northern Cape and Mpumalanga were not on the platform. All other provinces supported the proposed mandate.  

On Clause 2, the Free State and the Western Cape abstained. The Northern Cape and Mpumalanga were not on the platform. All other provinces supported the proposed mandate. 

On clause 3, the Free State and the Western Cape abstained. The Northern Cape and Mpumalanga were not on the platform. All other provinces supported the proposed mandate. 

On clause 4, the Free State and the Western Cape abstained. The Northern Cape and Mpumalanga were not on the platform. All other provinces supported the proposed mandate. 

The negotiating mandate of the North West province was accepted.

Western Cape negotiating mandate

The Committee Researcher read the negotating mandates submitted by the Western Cape.

Mr Kobese commented on Clause 2 of the province’s submission, which related to the issue around a forest that was prone to fires. The province had suggested the inclusion of ‘long-term.’ Mr Kobese said the Department did not support this proposal, explaining that the wording suggested by the Western Cape mainly pertained to policy documents, but was not applicable to law. Terms such as ‘short-term’, ‘long-term’ or ‘immediate term’ were not usually used in a bill or an Act. Furthermore, the Department viewed sustainable forestry management as a long-term principle by nature. He also pointed out that there was separate legislation that dealt with the issue of forest fires, so the Department believed that there was no need for such an insertion.  

The Department did not support the inclusion of Clause 6 of the province’s submission in the bill, but would accommodate it by including it in its subsequent regulations. The reason that the Department did not support the reference to amend s15 and to include reference to the use of electronic and social media in the Act was because the proposed amendment mainly related to how communication was conducted. Usually in law, the "how" part was answered by regulations.

Mr Kobese indicated that the Department supported the province’s proposal on Clause 9, to delete the reference to applicable legislation. The Department had provided alternative wording: ‘except in the instance of existing lease agreements.’

On Clause 15, he said the Department did not support the province’s suggestion to insert wording such as ‘timeframes of the appeals process.’ The Department was of the view that timeframes could not be ascribed to an Act, but it would accommodate the proposed amendment in its regulations.

Ms Ngema commented on Clause 6. She reaffirmed that the Department was correct that the "how" part of a law was usually explained and provided for in its regulations. She further informed the Committee that with reference to s15 and Clause 6, it could be done in the government gazette, as well as in newspapers that were circulated nationally.

Ms Ngema said that she was fine with what Clause 9 stated on the removal of applicable legislation. Her issue was on the wording ‘existing agreements’ or ‘valid agreements,’ but she was optimistic that the Department and Parliament’s legal team would find common ground should the final mandates be adopted.  

The Select Committee proceeded to the voting on the Western Cape negotiating mandate.

On Clause 2, the Eastern Cape, KwaZulu-Natal and the North West provinces did not support the amendment. Limpopo abstained and Mpumalanga and the Northern Cape were not on the virtual platform. Clause 2 was not adopted.

On Clause 6, the Eastern Cape, KwaZulu-Natal, the North West provinces did not support the proposed mandate. Gauteng and Limpopo abstained. Mpumalanga and the Northern Cape were not on the platform. Clause 6 was not adopted.

On Clause 9, the Eastern Cape, the Free State, Limpopo and the North West abstained. Gauteng and KwaZulu-Natal did not support the proposed amendment. Clause 9 was not accepted.

On Clause 15, the Eastern Cape and KwaZulu-Natal did not support the proposed amendment. Gauteng supported. The Free State, Limpopo and the North West abstained. Clause 15 was not accepted.

The negotiating of the Western Cape was not accepted.

Committee minutes

The meeting minutes of 19 May and 1 June 2021 were duly adopted.

The meeting was adjourned.