SECTION 5: A NATIONAL DISASTER MANAGEMENT ACT

This section outlines the reasons for introducing a new National Disaster Management Act. It suggests the process to be used in drafting the legislation and puts it in a constitutional context.

5.1.  RATIONALE FOR A NATIONAL DISASTER MANAGEMENT ACT

Existing South African legislation does not deal adequately with disaster management. The major shortcoming is that it focuses on dealing with disasters after they have happened and largely ignores prevention and risk reduction.

In addition, the current legislative framework is extremely confusing because of the many levels at which decisions can be taken. There is no clear delineation of authority and no appropriate process or criteria for disaster declarations.

The Civil Protection Act No. 67 of 1977 empowers the Minister for Provincial Affairs and Constitutional Development to declare a "state of disaster" but it does not instruct other relevant ministries of the actions they should take.

The Fund-raising Act, No. 107 of 1978, also provides for the "declaration of a disaster" by the President in order to provide relief to victims of disasters.

New national legislation needs to streamline and unify disaster management and promote a risk reduction approach, particularly at provincial and local levels. The legislation should also eliminate the confusion around disaster declarations and address current legislative gaps.

5.2.  PROCESS

The following process should precede the drafting of the proposed legislation:

• All the relevant role players should be canvassed for their opinions and ideas. These would include communities, NGOs, the public and private sectors.

• International experience in disaster legislation should be taken into account.

• A comprehensive audit of the legislation dealing with disaster management and relief should be undertaken. The legislation to be audited should include statutes and national regulations, provincial ordinances and regulations and municipal by-laws in the following categories:

• Development planning.
• Resource management.
• Resource conservation.
• Transportation.
• Pollution control.
• Waste management.
• Hazardous substances.
• Emergency response.
• Health.
• Welfare.
• Labour.

An institutional audit should be undertaken - in tandem with the legislative audit - by the Disaster Management Centre.

5.3.  LINKAGES WITH OTHER LEGISLATION

The proposed Disaster Management Act should not conflict with or duplicate any other legislation. Existing legislation should be made to conform with government policy outlined in the White Paper on Disaster Management.

Processes and mechanisms should be created to prevent duplication and conflict. Relevant government agencies and other stakeholders should be involved in designing these processes and mechanisms.

5.4.  LIMITATIONS

The proposed legislation should not be used to control civil disorders or industrial disputes.

5.5.  CONSTITUTIONAL CONTEXT

With the exception of certain provisions of the Civil Protection Act, most of the existing legislation on disaster management has been assigned to the provinces in terms of section 235(8) of the Interim Constitution of 1993. Also, disaster management and many related issues are defined as concurrent national and provincial competencies.

This means that the proposed Disaster Management Act can only prevail over provincial legislation if the requirements of section 146 of the Constitution are met.

In terms of Section 156(1) of the Constitution, local government has authority in the matters listed in Parts B of Schedules 4 and 5 of the Constitution. These include air and noise pollution, fire-fighting services, storm-water management, water and sanitation services, health services, municipal planning and waste disposal.

The legislation should make a distinction between these municipal responsibilities and responsibilities that should be assigned to local government in the event of a disaster.

The assignment of disaster management responsibilities to local government should comply with section 156(4) of the Constitution.

5.6.  SCOPE

The proposed legislation should include:

• Disaster declarations.
• The establishment of the National Disaster Management Centre.
• The establishment of provincial and local disaster management structures.
• The preparation and compilation of disaster management plans by all spheres of government.
• Volunteers, their usage and insurance cover.
• Other relevant provisions.

5.7.  DISASTER DECLARATIONS

The proposed legislation should replace the relevant provisions of the Fund-raising Act and the Civil Protection Act that deal with disaster declarations.

It should provide for different levels of disasters. This would include, for instance, the declaration of a major incident at local government level by the Chief Municipal Officer, the declaration of a provincial disaster by the Premier and the declaration of a national disaster by the President.

The reasons for declaring a local, provincial or national disaster should be clearly spelt out and be drawn from the rationale outlined below.

5.7.1.  Rationale for disaster declarations

The reasons for the declaration of a disaster should include the following:

• Facilitating quick response to emergencies.

• Facilitating the speedy release of funds.

• Ensuring the rapid mobilisation and deployment of resources.

• Granting special powers to the Chief Municipal Officer, the Premier or the President, and other relevant officials so that they can take appropriate action.

• Expediting the implementation of disaster management plans.

• Expediting or waiving tender procedures.

5.7.2.  Determining the magnitude of the disaster

Agencies at all spheres of government should play a role in deciding on the magnitude of the disaster and defining it as a local, provincial or national disaster. This is particularly important because currently local government can only administer certain limited functions if a disaster has been declared. Furthermore, a national disaster should only be declared under extraordinary circumstances.

The legislation should therefore outline the criteria that will trigger the declaration of disasters at local, provincial or national levels. These criteria should include the possibility of any level of disaster being upgraded to a greater level of severity.

The legislation should outline the role of the Disaster Management Centre in determining such criteria, as the Centre will have all the necessary information relating to different levels of disasters.

Consideration should also be given to the possible employment of independent assessors to evaluate disasters on site.

5.8.  THE ESTABLISHMENT OF THE DISASTER MANAGEMENT CENTRE

The legislation should provide for the establishment of the National Disaster Management Centre, its structure, powers, functions and funding.

Particular attention should be paid to the implications of the two-phase approach to the centre's establishment, and how this will affect its functions, structure and staffing.

In particular, the centre should be given the necessary powers to carry out its information management function as set out in this White Paper.

The legislation should also clearly set out the relationship between the centre and provincial and local disaster management structures to promote integrated and coordinated disaster management.

5.9.  ESTABLISHMENT OF PROVINCIAL AND LOCAL DISASTER MANAGEMENT STRUCTURES

The legislation should, subject to the availability of government funds, provide for the establishment of provincial and local disaster management structures (see organogram in Section 3). This will ensure that disaster management is dealt with in a coordinated and efficient way at provincial and local levels.

The legislation should provide for the composition, functions and funding of these structures, in consultation with the relevant stakeholders.

5.10.  DISASTER MANAGEMENT PLANS

The legislation should provide for the preparation of detailed disaster management plans at all spheres of government. It should define the action to be taken to prevent and mitigate disasters.

The plans should also deal with preparedness, response and recovery. The legislation should provide for the reviewing and updating of these plans.

These requirements should not, however, conflict with or duplicate the existing responsibilities of government. Particular attention should be paid to the pressures on and complexities of municipal planning that are imposed by various pieces of legislation.

The proposed legislation should include mechanisms to coordinate the efforts of various government agencies in emergency situations even when a disaster has not been declared.

5.10.1.  Rationale

The compilation of disaster plans is essential for:

• Anticipating the types of disasters that might occur and their possible effects.

• Identifying prevention and mitigation strategies (and areas and communities at risk) and how much they will cost.

• Coordinating disaster response among all role players.

• Procuring essential goods and services.

• Identifying weaknesses in capacity and training so that plans for disaster management and relief operations can be made in advance.

5.10.2.  Incentives and punitive measures

The legislation should provide for incentives to encourage government agencies to comply with the provisions relating to the preparation and review of disaster management plans.

The legislation should also provide for incentives to encourage government agencies to comply with requests by the centre for information it needs to perform its functions in relation to such plans.

However, provision should also be made for appropriate penalties in the case of non-compliance with such requests.

5.11.  OTHER RELEVANT PROVISIONS

5.11.1.  Immunity from liability

The legislation should provide protection against third party liability to any employee or volunteer authorised to perform a role or discharge a responsibility in accordance with any disaster management plan.

5.11.2.  Minister responsible

The legislation should appoint a minister to assume responsibility for the establishment and management of the Disaster Management Centre. This minister should be accountable to Cabinet for the activities of the centre and the administration of the proposed legislation. He or she should also be empowered to establish the National Disaster Management Advisory Committee (see organogram, Section 3).

Delegation by minister responsible
The legislation should include provisions that allow the Minister responsible to delegate powers and functions.

Making regulations
The minister should be empowered to make regulations to support the provisions of the legislation.

5.11.3.  Definitions

The proposed legislation should clearly define words and phrases that have a particular meaning in the field of disaster management and, where possible, keep them consistent with recognised disaster management terminology.

How to read the White Paper | Foreword by the Minister of Provincial Affairs and Constitutional Development | Section 1: Introduction | Section 2: Setting the context  | Section 3: The National Disaster Management Centre | Section 4: Funding disaster management | Section 5: A national Disaster Management Act  | Section 6: Training and community awareness | Section 7: Conclusion | Appendices | The drafting team and acknowledgements 

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