|
RELATIONSHIP BETWEEN THE NATIONAL VELD AND FOREST FIRE ACT AND OTHER STATUTES (Extract from Guide to interpreting and implementing the National Veld and Forest Fire Act, 1998)
The Constitution of the Republic of South Africa
The Bill of Rights in the Constitution applies to all law and binds the legislature, the executive, the judiciary and organs of state (i.e. any department of state or administration in the national, provincial or local sphere of government, or a party to which legislated powers or duties have been delegated or assigned).
Freedom of association (section 18) is a right that affects the provisions of the Act in that membership of fire protection associations (FPAs) by ordinary land-owning citizens must be voluntary.
Section 24 gives everyone the right to an environment that is not harmful to their health or well-being, an important consideration for veldfire management as well as disaster management.
The right to just administrative action (section 33) gives everyone the right to administrative action that is lawful, reasonable and procedurally fair, and everyone is entitled to a written explanation in cases where their rights have been adversely affected. This means that official actions and decisions must be carefully considered and all relevant principles and obligations taken account of in decisions affecting individuals.
The chapter on co-operative government requires all spheres of government to adhere to the principles of co-operative governance. These include (i) providing effective, transparent, accountable and coherent government for the Republic as a whole (ii) respecting the constitutional status, institutions, powers and functions of government in the other spheres (iii) not assuming any power or function except those conferred on them in terms of the Constitution (iv) that organs of state will exercise their powers and duties in a manner that does not encroach on the integrity of government in another sphere and (v) organs of state will co-operate with one another in mutual trust and good faith.
Schedule 4 determines that fire fighting services is a functional area of competence in the local government sphere.
Powers to enforce the National Veld and Forest Fire Act must respect human rights as provided for in the Constitution.
Forest Act No. 122 of 1984
Sections of the Forest Act relating to veldfires are currently still in force because of a savings clause in the National Veld and Forest Fire Act. This Act requires landowners to prevent and control the spread of veldfires by maintaining firebreaks on their common boundaries, and by taking other appropriate precautions.
The Act empowers the Director-General to declare a prohibition on fires in the open air when required as an extraordinary precaution. During the period of prohibition, no person may make a fire in the open air except within a demarcated picnic or camping area or caravan park or holiday resort, with the further proviso that this type of fire must be properly extinguished when the user is finished with it. Residential and industrial stands within proclaimed townships are excluded from this prohibition, because local authorities have their own permit systems and rules within these areas.
Fire Brigade Services Act No. 99 of 1987
The Fire Brigade Services Act provides for the establishment, co-ordination and standardisation of fire brigade services. Local authorities are empowered to establish and maintain a fire brigade service, intended to be employed for the following purposes:
- preventing the outbreak or spread of a fire
- fighting or extinguishing a fire
- the protection of life or property against a fire or other threatening danger
- the rescue of life or property from a fire or other danger
- subject to the provisions of the Health Act, the rendering of an ambulance service as an integral part of the fire brigade service
- the performance of any function connected with any of the matters referred to in the paragraphs above.
Each fire brigade service must only be employed inside the area of jurisdiction of the local authority concerned, unless the local authority is requested or in terms of a co-operation agreement has agreed to perform those services outside its area.
Section 12 deals with entering into mutual co-operation agreements between controlling authorities, in terms of which the parties co-operate on conditions agreed upon, including the rendering of its service inside or outside its area or inside or outside the province in which its area is situated. A controlling authority may also enter into an agreement with other persons in terms of which the controlling authority undertakes to make available its service to that person, or in terms of which that person undertakes to make available material or equipment to the controlling authority.
This Act enables local authorities, after consultation with the Board, to make by-laws or regulations for its area of jurisdiction regarding any matter that the local authority deems necessary or expedient to the effective employment of its service.
The Disaster Management Act, No. 57 of 2002
The Disaster Management Act establishes a National Disaster Management Centre, with the objective to promote an integrated and co-ordinated system of disaster management, with special emphasis on prevention and mitigation, by organs of state in different spheres, statutory functionaries, and other role-players involved in disaster management and communities. Other relevant duties and requirements are that it:
a. must operate within the national disaster management framework
b. guide disaster management plans and strategies
c. manage the coordination and management of national disasters.
The Act requires sectoral Departments to develop strategies and plans for disaster management within their spheres of competence. It establishes provincial and local disaster management centres, the latter in Districts, whose purpose and function are similar to those of the National Centre, but with the obvious difference of geographical scope. They are to develop disaster management frameworks, as well as strategies and plans, on the same lines as those of the National Centre, and consistent with the national disaster management framework.
The Act defines 'disaster management' to mean a continuous and integrated multi-sectoral, multi-disciplinary process of planning and implementation of measures aimed at:
a. preventing or reducing the risk of disasters
b. mitigating the severity or consequence of disasters
c. emergency preparedness
d. a rapid and effective response to disasters; and
e. post-disaster recovery and rehabilitation.
This means that disaster management is the integrated management of the whole cycle, from prevention to recovery.
The National Disaster Management Framework, which the Minister will prescribe as a set of regulations, is a key instrument relevant to veldfire management, in that it will, among other things:
a. provide a transparent, coherent and inclusive policy on disaster management appropriate for the Republic as a whole
b. set out an overall approach to measures that reduce the vulnerability of disaster-prone areas, communities and households, that is, it is essentially a risk assessment and management framework.
Key co-operative government arrangements in the provisions of the Act include:
a. the Intergovernmental Committee on Disaster Management, which is accountable and must report to Cabinet on the co-ordination of disaster management among the spheres of government; and must advise and make recommendations to Cabinet on issues relating to disaster management and on the establishment of a national framework for disaster management
b. the National Disaster Management Advisory Forum, which must make recommendations concerning the national disaster management framework to the Inter-governmental Committee on Disaster Management
c. equivalent structures in the provincial and local spheres.
The Department of Water Affairs and Forestry will need to fulfil its role in the new disaster management system through representation on these structures and by contributing to the National Disaster Management Framework, as well as the preparation of the strategy and plan for veldfires.
Disaster management centres are required to assess and to invoke the contingency and emergency plans in the local disaster management plan if any emergency becomes or threatens to become disaster. Note that disaster management plans can and often must take effect before a disaster happens, that is, when the authorities judge that there is a threat of a disaster. Veldfire management strategies and plans will need to contain these contingency and emergency plans for veldfires.
Note also that the disaster management centre will not fight fires. Its job is to ensure that disaster management plans are in place, to set the plans in motion, and to see to co-ordination. Owners of land, fire services, and the capacity in FPAs fight the fires.
The Department of Provincial and Local Government, which administers the Disaster Management Act, has not yet deployed the Act fully. A key step is to formulate the National Disaster Management Framework, which will give consistency to the deployment of the disaster management function. Without this there is for example no consistency between municipalities in the assessment of veldfire risk in each municipality's integrated development plan (IDP).
In the meantime, provinces and district municipalities are in different stages in the deployment of disaster management, some quite far advanced. In certain regions, a close working relationship between disaster management, fire services and the Department of Water Affairs and Forestry has been established and has led to substantial progress in the early steps for the institutionalisation of veldfire management, especially stimulating and guiding the formation of FPAs. However, the situation overall varies, from districts where this in progress, to others, with high fire risk, where there is little or no action.
Click here for information on the framework elements for veldfires in the National Disaster Management Framework. Click here to view the Disaster Management Act.
The Conservation of Agricultural Resources Act No. 43 of 1983 (CARA)
This Act is the principal piece of legislation regulating the conservation and use of soil, vegetation and to some extent, water, outside declared mountain catchment areas and urban areas. It provides for the control over the utilisation of natural agricultural resources in order to promote the conservation of the soil, the water resources, and the vegetation and the combating of weeds and invader plants. New regulations on invasive alien plants are stringent and affect veldfire management.
The Act contains specific provisions dealing with the prevention and control of veldfires. Land users are prohibited from burning veld or grazing burnt veld without the written authorisation of the executive officer. An application for such permission must set out the burning or grazing motivation and be accompanied by an acceptable management plan. Click here for more information.
The Mountain Catchment Areas Act No. 63 of 1970
This Act provides for the conservation, use and management of soil, vegetation and water within land declared as a mountain catchment area. The Minister may establish fire protection committees for any mountain catchment area. The Director-General may establish a fire protection plan for any mountain catchment area. These plans must include provisions relating to the regulation or prohibition of veld burning, the prevention, control and extinguishing of veldfires and the powers and functions of the fire protection committee in relation to the execution of the fire protection plan. The Department of Environmental Affairs and Tourism administers this Act, but management is assigned to the relevant provinces.
The Atmospheric Pollution Prevention Act No. 45 of 1965
Different local authorities have declared smoke control zones in terms of Section 20 of this Act. Although the Act does not apply to the emission of smoke caused by natural veldfires, it is applied when that smoke is caused by the use of fire as a management practice for example, when the fire is used to burn slash in forest plantations.
If any occupier of premises makes representations to a local authority regarding smoke emissions that cause a nuisance, the local authority is obliged to serve an abatement notice on the person responsible for that nuisance. Failure to comply with the provisions of the notice constitutes an offence.
The Air Quality Management Bill is intended to replace the Atmospheric Pollution Prevention Act. The Bill provides for a national framework for achieving the object of the statute, which will bind all organs of state. It requires from each national department or province that must submit environmental implementation plans and environmental management plans in terms of the National Environmental Management Act to prepare air quality management plans. It provides for the listing of activities that result in atmospheric emissions, which would then require emission licences.
Since smoke form veldfires is a concern in some municipalities, this Bill once enacted would require from the Department of Water Affairs and Forestry its effective participation in the development of the national framework and its preparation of an air quality management plan for veldfire emissions that together provide a fair and workable regulatory environment for veldfire management.
The National Environmental Management Act No. 107 of 1998
The National Environmental Management Act (NEMA) lays down 20 principles and eight constituents of the principle of sustainable development which must be considered by an organ of state (and therefore any official) when making any decision concerning the protection of the environment and must guide the interpretation, administration and implementation of any law concerned with the protection and management of the environment (section 2 of NEMA). Clearly, this includes the National Veld and Forest Fire Act.
Of these principles, those requiring special attention in veldfire management include those that:
a. require avoiding, minimising or remedying (a) disturbance to ecosystems or loss of biodiversity, (b) pollution or degradation of the environment, (c) disturbance of landscapes and sites that constitute the nation's cultural heritage and (d) require caution when negative impacts on the environment and on people's environmental rights are possible
b. require integrated management of the environment
c. require responsibility for the environmental health and safety consequences of a policy, programme or project
d. require participation by stakeholders in environmental governance
e. require special attention to sensitive, vulnerable highly dynamic or stressed ecosystems.
Section 30 of NEMA deals with emergency incidents, which are defined as 'an unexpected sudden occurrence…including a fire… leading to serious danger to the public…' NEMA Act imposes certain obligations on the person responsible for an incident and he or she is strictly liable for taking measures to contain or minimise the effects of the incident, undertaking clean-up procedures and remedying the effects of the incident.
It requires public authorities to authorise or oblige the taking of specific measures to reduce, minimise or rehabilitate harm caused. It provides for a hierarchy of persons who can act to respond to an emergency. A Director-General of a national department may only take steps if the Director-General of the Department of Environmental Affairs and Tourism or the relevant municipal authority or provincial government has not taken them. Therefore, NEMA charges the municipality with jurisdiction as the principal public agency responsible for directing measures to remedy the effects of an emergency incident, such as a fire. This is subject to two provisos: first, that the local authority has jurisdiction over that area and second, if it is necessary to do so in the circumstances and no other public agency has yet taken such steps to avoid jurisdictional conflict.
However, the relevant authority may remedy the effects of the incident only under certain circumstances. These include failure of the responsible person to comply with a directive ordering him or her to do so, or if there is uncertainty as to who the responsible person is or if any immediate risk of serious danger to the public or of potentially serious detriment to the environment arises because of the incident. In these circumstances, the relevant authority is entitled to claim reimbursement of all reasonable costs incurred. Relevant authorities are also required to prepare comprehensive reports on the incident and these must be made available to several role-players, including the relevant fire prevention service and the provincial Head of Department or municipality.
NEMA gives effect to the environmental right in the Constitution. It codifies principles of sustainable development, which must be considered in any official decision; the Minister must apply these principles when applying the National Veld and Forest Fire Act. Section 30 deals with emergency incidents, which are defined as 'an unexpected sudden occurrence…including a fire… leading to serious danger to the public…'. The Act imposes certain obligations on the person responsible for an incident and he/she is strictly liable for taking measures to contain or minimise the effects of the incident, undertaking clean-up procedures and remedying the effects of the incident. It obliges public authorities to authorise or oblige the taking of specific measures to reduce, minimise or rehabilitate harm caused.·
The subordinate statute on biodiversity, now the Biodiversity Bill, has a key place in determining the way the National Veld and Forest Fire Act is implemented. The Department of Water Affairs and Forestry will need to ensure that biodiversity planning (Chapter 3 of the Bill) takes account of veldfire management requirements, and that the veldfire management strategies of FPAs and the veldfire management elements of disaster management frameworks, strategies and plans comply with biodiversity planning.
Compensation for Occupational Injuries and Diseases Act No. 130 of 1993
Section 25 of this Act provides for compensation to an employee who meets with an accident during training for or performance of any emergency service, including fire-fighting, if he or she is acting with the consent of his or her employer. This implies that FPAs should obtain standing consent from owners to engage employees in fire-fighting. This Act also requires employers to register with the Compensation Commissioner (Section 80).·
Occupational Health and Safety Act No. 85 of 1993
This Act requires employers to meet minimum standards of occupational health and safety, including safety procedures and safety clothes and equipment.
Criminal Procedure Act No. 51 of 1977
This governs the powers of FPOs to enter, search and seize.
Local authority legislation
There are many by-laws administered by local authorities that have a bearing on veldfire management.
 |  |
|