WARBURTON ATTORNEYS MONTHLY SUSTAINABILITY LEGISLATION, REGULATION AND PARLIAMENTARY UPDATE

FEBRUARY 2010

SECTION A: ENVIRONMENTAL (NATIONAL)

Constitution of the Republic of South Africa, 1996

1. Transfer of administration, powers and functions entrusted by legislation in terms of the Constitution. Published in GG 32945 Notice Number 1 dated 10 February 2010.

National Water Act 36 of 1998

2. Publication of a notice calling for public comments for the purpose of updating the regulations on the use of water for mining and related activities aimed at the protection of water resources, in terms of Government Notice 704 dated 4 June 1999. Published for public comment in GG 32916 Notice Number 53 dated 5 February 2010.

3. Correction notice: Government Notice No. R. 77 published in Government Gazette No. 32935 of 12 February 2010 is hereby withdrawn. Published in GG 32965 Notice Number 138 dated 26 February 2010.

4. Invitation to submit written comments on the proposed construction of the Mooi-mgeni Transfer Scheme Phase 2 and the Environmental Impact Assessment relating thereto. Published in GG 32946 Notice Number 91 dated 12 February 2010.

5. Establishment of the Koue Bokkeveld Water Use Association: Western Cape Province, Olifants-Doorn Water Management Area No17. Published in GG 32934 Notice Number 84 dated 12 February 2010.

Water Services Act 108 of 1997

6. Disestablishment of the Albany Coast Water Board. Published in GG 32965 Notice Number 139 dated 26 February 2010.

National Ports Act 12 of 2005

7. Invitation to apply for a bunkering licence. Published in GG 32916 Notice Number 95 dated 5 February 2010.

Agricultural Pests Act 36 of 1983

8. Importation of controlled goods without a permit. Published in GG 32916 Notice Number 49 dated 5 February 2010.

9. Amendment to the Control Measures promulgated in terms of the Act. Published in GG 32935 Notice Number 74 dated 12 February 2010.

10. Amendment to the regulations dealing with fees payable in terms of the Act. Published in GG 32935 Notice Number 73 dated 12 February 2010.

Marine Living Resources Act 18 of 1998

11. Amendment to portions of the regulations dealing with chokka squid. Published in GG 32966 Notice Number 142 dated 26 February 2010.

Genetically Modified Organisms Act 15 of 1997

12. Regulations in connection with Genetically Modified Organisms. Published in GG 32966 Notice Number 120 dated 26 February 2010.

Genetically Modified Organisms Amendment Act 23 of 2006

13. Commencement date of this Amendment Act is 26 February 2010. Published in GG 32966 Notice Number 3 dated 26 February 2010.

Marketing of Agricultural Products Act 47 of 1996

14. Invitation to register as a directly affected group in terms of the Act. Published in GG 32965 Notice Number 137 dated 26 February 2010.

Fertilizers, Farm Feeds, Agricultural Remedies and Stock Remedies Act 36 of 1947

15. Amendment to the regulations regarding fertilizers, farm feeds, agricultural remedies and stock remedies, sterilizing plants and pest control operators, appeals and imports. Published in GG 32935 Notice Number 72 dated 12 February 2010.

16. Amendment to the regulations regarding farm feeds. Published in GG 32935 Notice Number 70 dated 12 February 2010.

17. Amendment to the prohibition of the acquisition, disposal or use of certain farm feeds. Published in GG 32934 Notice Number 78 dated 12 February 2010.

Electricity Regulation Act 4 of 2006

18. Regulatory rules for power purchase cost recovery. Published in GG 32964 Notice Number 119 dated 24 February 2010.

SECTION B: SAFETY AND HEALTH (NATIONAL)

Occupational Health & Safety Act 85 of 1993

19. Occupational exposure limit for Silica in Table 1 of the Hazardous Chemical Substances Regulations. Published in GG 32930 Notice Number 66 dated 5 February 2010.

Medicines and Related Substances Act 101 of 1965

20. Medicines Control Council: Conditions of registration of a medicine in terms of section 15(7) of the Act. Published in GG 32909 Notice Number 62 dated 5 February 2010.

21. Allied Health Professions Council of South Africa: Unprofessional conduct: use of injection therapy by chiropractors. Published in GG 32965 Notice Number 20 dated 26 February 2010.

Non-Proliferation of Weapons of Mass Destruction Act 87 of 1993

22. Regulations relating to the registration of persons in control of any activity with regard to controlled goods or who have controlled goods in their possession or custody or under their control. Published in GG 32891 Notice Number 16 dated 3 February 2010.

23. Regulations regarding the application of provisions of the Weapons Convention. Published in GG 32892 Notice Number 17 dated 3 February 2010.

24. Declaration of certain chemical goods as controlled goods and controlled measures applicable to such goods. Published in GG 32893 Notice Number 18 dated 3 February 2010.

25. Declaration of certain biological goods and technologies as controlled goods and control measures applicable to such goods. Published in GG 32894 Notice Number 19 dated 3 February 2010.

26. Declaration of certain nuclear-related dual-use equipment, materials, software and related technology as controlled goods, and control measures applicable to such goods. Published in GG 32895 Notice Number 20 dated 3 February 2010.

27. Additional declaration of certain nuclear-related dual-use equipment, materials and software and related technology as controlled goods, and control measures applicable to such goods. Published in GG 32896 Notice Number 21 dated 3 February 2010.

28. Declaration of certain missile technology and related items as controlled goods and control measures applicable to such goods. Published in GG 32897 Notice Number 22 dated 3 February 2010.

Mine and Works Act 27 of 1956

29. Declaration of work in the national interest: Modikwa Mine. Published in GG 32965 Notice Number 140 dated 26 February 2010.

30. Declaration of work in the national interest: Zondagsfontein Colliery. Published in GG 32965 Notice Number 141 dated 26 February 2010.

SECTION C: SAFETY, HEALTH AND ENVIRONMENTAL
Draft National Legislation and Regulations

Agricultural Pests Act 36 of 1983

31. Proposed amendment of control measures. Published for public comment in GG 32916 Notice Number 48 dated 5 February 2010.

Agricultural Product Standards Act 119 of 1990

32. New draft regulations for the classification, packaging and marking of fat spreads intended for sale in the Republic of South Africa. Published in GG 32952 Notice Number 98 dated 19 February 2010.

2010 Draft Health Regulations

33. Invitation to submit inputs on the draft regulations relating to the accreditation of foreign medical contingents and approval of medicines, scheduled substances and medical devices. Published in GG 32966 Notice Number 124 dated 26 February 2010.

National Environmental Management Act 107 of 1998

34. Draft national guidelines on environmental impact assessments for facilities to be included in the electricity plan as well as for the strategically important developments of state owned enterprises. Published in GG 32970 Notice Number 162 dated 24 February 2010.

35. Draft regulations for the admission of guilt fines. Published in GG 32935 Notice Number 75 dated 12 February 2010.

National Environmental Management: Air Quality Act 39 of 2004

36. Proposed regulations regarding the application form and format for an atmospheric emission licence and matters pertaining to the implementation of the atmospheric emission licensing system. Published in GG 32962 Notice Number 141 dated 17 February 2010.

Fertilizers, Farm Feeds, Agricultural Remedies and Stock Remedies Act 36 of 1947

37. Draft amendment to the regulations regarding fertilizers, farm feeds, agricultural remedies and stock remedies, sterilizing plants and pest control operators, appeals and imports. Published in GG 32952 Notice Number 101 dated 19 February 2010.

38. Proposed amendment to the regulations regarding fertilizers, farm feeds, agricultural remedies and stock remedies, sterilizing plants and pest control operators, appeals and imports. Published in GG 32935 Notice Number 71 dated 12 February 2010.

Medicines and Related Substances Act 101 of 1965

39. Draft regulations. Published in GG 32974 Notice Number 145 dated 26 February 2010.

SECTION D: SAFETY, HEALTH AND ENVIRONMENTAL
Provincial Legislation and Municipal By-Laws

North West Province

40. Municipal Systems Act 32 of 2000: Fetakgomo Municipality: Cemeteries and Crematoria By-law. Published in PG 6730 Notice Number 20 dated 5 February 2010.

KwaZulu-Natal Province

41. National Environmental Management: Protected Areas Act 57 of 2003: Consultation process with the intention to declare the Red Desert Nature Reserve in terms of the Act. Published in PG 384 Notice Number 38 dated 25 February 2010.

Western Cape Province

42. Department of the Community Safety: Promotion of Access to Information Act 2 of 2000. Published in PG 6700 Notice Number 84 dated 26 February 2010.

43. Western Cape Disaster Management Framework. Published in PG 6698 dated 22 February 2010.

44. Municipal Health By-law for the Cape Winelands Municipality. Published in PG 6696 dated 15 February 2010.

45. Swellendam Municipality: Notice related to the repeal of a by-law. Published in PG 6697 dated 12 February 2010.

Eastern Cape Province

46. Promotion of Access to Information Act 2 of 2000: Notice in terms of section 14. Published in PG 2284 Notice Number 2 dated 19 February 2010.

47. Local Government: Municipal Systems Act 32 of 2000: Buffalo City Municipality: Advertising and the Disfigurement of the Front or Frontages of Streets By-law. Published in PG 2279 Notice Number 23 dated 10 February 2010.

Northern Cape Province

48. Mineral and Petroleum Resources Development Act 28 of 2002: Notice regarding consultation with interested and affected parties in terms of the Act. Published in PG 1384 Notice Number 8 dated 22 February 2010.

Gauteng Province

49. Gauteng Transport Infrastructure Act 8 of 2001: Proclamation of a provincial railway line in connection with the Gautrain Rapid Rail Link between Pretoria, Johannesburg and the OR Tambo International Airport. Published in PG 19 Notice Number 442 dated 16 February 2010.

50. Gauteng Transport Infrastructure Act 8 of 2001: Proclamation of a provincial railway line in connection with the Gautrain Rapid Rail Link between Pretoria, Johannesburg and the OR Tambo International Airport. Published in PG 19 Notice Number 441 dated 16 February 2010.

SECTION E: SAFETY, HEALTH AND ENVIRONMENTAL
Draft Provincial Legislation and Municipal By-Laws

Eastern Cape Province

51. Publication of the White Paper on the Management of Tourism, Conservation and Protected Areas in the Eastern Cape. Published for public comment in PG 2277 Notice Number 3 dated 5 February 2010.

52. Eastern Cape Parks and Tourism Agency Bill, 2010. Published for public comment in PG 2278 Notice Number 4 dated 10 February 2010.

Northern Cape Province

53. Northern Cape Nature Conservation Act 9 of 2009: Draft nature conservation regulations for public comment. Published in PG 1385 Notice Number 9 dated 24 February 2010.

SECTION F: PARLIAMENTARY MONITORING

Introduction:

The Constitution describes four kinds of bills, namely:

Section 74 bills: constitutional amendments.
Section 75 bills: ordinary bills not affecting the provinces. Once a Section 75 bill has been passed by the National Assembly (NA), it is referred to the National Council of Provinces (NCOP). If the NCOP amends the bill or rejects it, it is referred to the NA, which may pass the bill again, with or without amendments, and submit for the President's assent. In other words, the NA can pass a Section 75 bill even if the NCOP disagrees.
Section 76 bills: ordinary bills affecting the provinces. The NCOP and the NA both consider Section 76 bills.
Section 77 bills: money bills (must be introduced by the Minister of Finance in the NA).
Each type of bill has a different passage to becoming law and usually fits into only one category. If a bill does not fit clearly into one category, or if it fits into more than one category, it is usually redrafted or split into more than one bill, e.g., the NEM: Biodiversity Bill which was split into the NEM: Biodiversity Bill and NEM: Protected Areas Bill. Both of these have now been enacted.
(http://www.pmg.org.za/)

Sustainability Related Legislative Programme: Parliament of South Africa

BILLS BEFORE PARLIAMENT: (as of 28 February 2010)

• Before National Assembly Committees

- Land Use Management Bill (B27 of 2008)
- Prevention of Illegal Eviction from Unlawful Occupation of Land Amendment Bill (B8 - 2008)
- National Health Amendment Bill (B65 - 2008)
- Medicines and Related Substances Amendment Bill (B44 - 2008)
- Prevention of and Treatment for Substance Abuse Bill (B12 - 2008)
- Built Environment Professions Bill (B53 - 2008)
- South African National Water Resources Infrastructure Agency Limited Bill (B36 - 2008)
- Cross Boundary Municipalities Law Repeal Bill (B3 of 2009)

BILLS TO BE PROVIDED TO CABINET AND PARLIAMENT IN 2010 (Provided by the Leader of Government Business on 10 February 2010)

• Department of Agriculture, Forestry and Fisheries
- Marine Fisheries Bill
• Department of Energy
- Electricity Regulation Act Amendment Bill
- Petroleum Products Act Amendment Bill
- Electricity Distribution Industry Restructuring Bill
- Radioactive Waste Management Fund Bill
• Health
- National Health Amendment Bill
- Health Pricing Commission Bill
- National Health Insurance Bill
- Health Laws Amendment Bill
• Labour
- COIDA Amendment Bill
- Occupational Health and Safety Amendment Bill
• Mineral Resources
- Mine Health and Safety Amendment Bill
- Geoscience Amendment Bill
- Diamond Amendment Bill
• Transport
- Merchant Shipping (Civil Liability Convention) Bill
- Merchant Shipping (International Oil Pollution Compensation Fund Contributions) Bill
• Water & Environmental Affairs
- Marine Protection Bill
- South African Weather Service Act Amendment Bill
- National Environmental Management Amendment Bill
- Integrated Coastal Management Amendment Bill
- World Heritage Convention Act Amendment Bill

SECTION G: CASE LAW UPDATE

Jacobus Petrus Christiaan Monstert SNR v The State

This matter is an appeal against a decision in the North Gauteng High Court, which decision concerns the unauthorised abstraction of water from the Lomati river in the Baberton district. The Appellants appealed the decision on the grounds that the Complainant in the matter before the court a quo (the Complainant), a state-authorised water board, had exceeded its authority derived from the Water Act 54 of 1956 (1956 Water Act).

The Complainant has the function, amongst others, of controlling the water held in the Lomati River, as well as regulating the amount of water abstracted by farmers within its irrigation district. To achieve these functions the Complainant requires farmers to register their water pumping stations and to have a water flow monitoring system (WAMS) fitted to such stations. The Appellants duly registered one pump, station 46, with the Complainant. However, in 2004, the Complainant became aware of a second, unregistered, pump station constructed by the Appellants, namely station 46.1. In 2006, on the basis of the unregistered pump, the Appellants were charged with seven criminal offences, namely the common law offences of fraud, theft and certain contraventions of s151(1) of the Water Act of 1998 (1998 Water Act). The court a quo found the first Appellant guilty of all the charges while the second Appellant was convicted on six of the charges. On appeal the Appellants challenged the validity of all the criminal charges, inter alia on the grounds that the Complainant drew its authority, as a water board, from the 1956 Water Act but the charges were brought under the 1998 Water Act and, consequently, the Complainant had exceeded its authority in bringing the charges. The 1998 Water Act did away with the notion of irrigation districts and associated water boards and replaced them with "catchment management agencies" and "water user associations".

Section 98(4) of 1998 Water Act provided a six month transitional period from the date of the enactment of the 1998 Water Act, for the transformation of an irrigation board into a water user association, subject to the approval of the Minister. Section 98(2) provides that a water board established in terms of the 1956 Water Act continues to exist with all its original functions and duties intact, until such board is declared to be a water user association or is disestablished. The Complainant was not, within the transitional period, transformed into a water user association, nor was it disestablished. Accordingly the Complainant remained intact, as a water board, after the repeal of the 1956 Water Act by virtue of section 98(2) of the 1998 Water Act. In addition the 1956 Water Act did not remain in force, thereby leaving the Complainant, as a result of its continued existence, with the obligation to act in terms of the 1998 Water Act as opposed to its empowering Act.

The Appellants alleged that, by virtue of the operation of the 1998 Water Act, the State was barred from charging them with the common law criminal offences of theft and fraud. The appeal court, however, found that there is no provision in the 1998 Water Act which specifically disbars common law criminal offences relating to water misuse and that such a disbarring cannot be found by implication. The court went on to note that this finding does not mean an inference can be drawn that the Appellants committed the common-law offences of theft and fraud. The court continued that, with regards to the common law charge of theft, public water is recognised as res communes and is, therefore, incapable of being owned and, consequently, of being stolen. However, with respect to the current South African statutory position, if a person abstracts more than they are legally entitled to in terms of statute, they have committed a statutory offence under the relevant legislation and not the common-law offence of theft. This view is supported by the current water legislation in South Africa.

The Appeal court duly upheld the convictions of fraud against both Appellant as the information provided by the Appellants to the Complainant, of the amount water abstracted from the river, was intentionally represented to be less then what was actually abstracted, and this deception caused prejudice to the Complainant. The Appellants were sentenced to a fine of R20 000 or 12 months imprisonment each, the sentence to be suspended in its entirety for five years. The convictions of the common law offence of theft were overturned. The statutory criminal offences, in terms of section 151(1)(e) and (j) of the 1998 Water Act, were upheld.

This Legal Brief should not be regarded a comprehensive discussion of the topics addressed and, in particular, should not be taken as legal advice or relied upon. For further information please contact: admin@warburtons.co.za