PROGRESS REPORT ON THE PERFORMING ANIMALS PROTECTION (PAPA)

AMENDMENT BILL 2014

PORTFOLIO COMMITTEE ON AGRICULTURE, FORESTRY AND FISHERIES

16 SEPTEMBER 2014

BACKGROUND

The constitutionality of sections 2 and 3 of the Performing Animals Protection Act, (PAPA), 1935 (Act No. 24 of 1935) was challenged by the National Society for the Prevention of Cruelty to Animals (NSPCA) during 2012;

Sections 2 and 3 provides power to Magistrates to issue licenses for performing animals (animals used in circuses, movies, dogs for safe guarding etc.) to respective industries;

On the 11th of July 2013, the Constitutional Court of South Africa, in the matter of National Society for the Prevention of Cruelty to Animals v Minister of Agriculture, Forestry and Fisheries and Others 2013 (5) SA 571 (CC), declared sections 2 and 3 of the PAPA to be unconstitutional;

The Court’s finding was that the issuing of licences is an administrative function that should be performed by the Executive and not by the Judiciary;

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BACKGROUND….

The judgement also ordered Parliament to remedy the defect within 18 months from the day of the judgement (that is by 10 January 2015);

As this affected a large number of operations, training and exhibiting wild animals, as well as security dog companies that depend on an annual licence to operate, it is important that this amendment is processed as soon as possible;

The judgement happened during the time when the Department of Agriculture, Forestry and Fisheries (“DAFF”) was through its legislative review process, reviewing and repealing some of the legislations. The review process included the consolidation of the PAPA and the Animals Protection Act , 1962 ( Act No. 71 of 1962) into one Animal Welfare Bill for consideration by Parliament; and

A holistic Animal Welfare Policy in response to the short-term and long-term animal welfare matters has been drafted and is currently undergoing formal Departmental approval processes.

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DAFF’S APPROACH

The Department noted the Constitutional Court Judgement and initially considered the implications and explored two options: Option 1: Considering the technical amendments to the existing PAPA focusing on

Sections 2 and 3. Option 2: Considering a total repeal of the aforementioned Act, and a replacement

with new Animal Welfare Act.

  The Department opted to consider technical amendments to the existing Performing

Animal Protection Act, 1935 (Act 24 of 1935) focusing on sections 2 and 3 – the advantage of this option is that it became the only quicker option considering time constraints. The Department felt that the time was not adequate to consider the entire Act.

The Department regrets that even with the option chosen [Option1], the consolidation of the envisaged amendments to Sections 2 and 3 and the complementary consultations could not be concluded expected timeframes.

 

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CHRONOLOGY OF EVENTS

The Department deliberated on the issue since judgement, and after following due processes, the Department completed the first draft of the Bill in November 2013. This draft was referred to the Office of the State Law Adviser (OSLA) on 7th January 2014;

The OSLA reverted to the Department during 13 February 2014 with comments regarding the workability of the bill due to incomplete processes and infringements of section 14 of the constitution alerted the DAFF that the Bill was not in line with the principles of Promotion of Administrative Justice Act (PAJA);

The Department considered the inputs from the OSLA; and

The Draft Amendment Bill was subsequently gazetted on 9th April 2014. The Department also held a stakeholder workshop in May 2014. The Department considered all written and oral inputs, and engaged the OSLA in June and July 2014.

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CHRONOLOGY OF EVENTS….

 The OSLA considered preliminary certification of the Draft Bill on the 05th September 2014 and recommended to the Department to take care of a few minor issues. [The conditions for the preliminarily certification of the Bill were finalised on 5th September 2014 but required the finalisation of Memorandum on the Objects of the Bill]

The Memorandum was provided on the 08th September and the Bill was preliminary

certified by the OSLA on 11th September 2014;

The OSLA returned the document with minor tracked changes which were dealt with by the Department and the final document was submitted on the 12th September 2014; and

The Bill is ready for tabling at the October 2014 Economic Sectors, Employment and Infrastructure Development (ESEID) cluster meeting.

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TECHNICAL AMENDMENTS: PURPOSE OF BILL

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Provide for the designation of a National Licensing Officer;

Provide for a procedure for the application for a licence to exhibit, train or use an animal;

Provide for the functions of a National Licensing Officer;

Provide for the issuance of licences;

Insertion of certain definitions; and

Provide for an appeals’ process.

To amend Sections 2 and 3 of the PAPA to :

OBJECTS OF BILL – CLAUSES 1 AND 2

These clauses will repeal sections 2 and 3, respectively and deal with:

Magistrates issuing licenses for the exhibition and training of performing animals and for the use of dogs for safeguarding.

These clauses were declared unconstitutional by the Constitutional Court on the basis that a member of the Judiciary should not be performing administrative actions that are supposed to be performed by the Executive.

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OBJECTS OF THE BILL – CLAUSE 3 – INSERTION OF SECTIONS 3A TO 3L

This clause sets out a procedure for the granting and issuing of licences and matters connected therewith, thereby ensuring compliance with the Constitutional Court judgment.

It further provides for: The designation of a National Licensing Officer; The qualifications and functions of the National Licensing Officer; The appointment of experts to assist the National Licensing Officer; Delegation of powers and functions by the National Licensing Officer; The procedure for the consideration and granting of applications for licensing; The duration of the licence; The process for the application of a licence; The hearing of applications if the National Licensing Officer cannot make a

determination on the documents provided; The process for the issuing of licences; and The process for the withdrawal of licences and the validity of a licence anywhere

within the Republic of South Africa.

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OBJECTS OF THE BILL – CLAUSES 4 AND 5

Clause 4 seeks to incorporate additional definitions into the Act that are consequential to the revised procedure adopted for the granting and issuing of licences. The following definitions for the following have been inserted: “Animal Scientist”,

“Officer”, "National Licensing Officer" and "Veterinarian".

Clause 5 provides for an appeal process by the insertion of section 11A.

Section 11A provides for: The establishment of an ad hoc appeal board by the Minister; The appointment of members; The appointment of the Chairperson of the Appeal Board; and Functions of the Chairperson and the Appeal Board.

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OBJECTS OF BILL - Clause 6: Short title and commencement

Clause 6 provides for the short title of this Act, upon its enactment The Performing Animals Protection Amendment Act, 2014,This will come into

operation on a date fixed by proclamation in the Gazette.

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CONSULTATION

The draft bill was published in the Gazette for public comments on the 9th of April 2014 and written comments were received from the following stakeholders:

The South African Institute for Advanced Constitutional, Public, Human Rights and International Law: A Centre of the University of Johannesburg (“SAIFAC”);

Western Cape Government, Directorate: Legislation; The Humane Education Trust; The Dog Club; Love South African Circus; The Licensed Animal Trainers’ Association; The Animal Anti-Cruelty League; The South African Federation of Sledding Sports; Commercial Producers Association of South Africa; SA National Bird of Prey Centre; SA Dog Academy; and The National Society for the Prevention of Cruelty to Animals.

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Stakeholder consultative workshop

Held on 16 May 2014 and was attended by representatives of the following stakeholders:-

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IMPLEMENTATION PLAN

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FINANCIAL IMPLICATIONS

Due to the urgency regarding the Bill, the DAFF will realign its structure to accommodate the new designation;

The budget for the new unit will be in the short term be reprioritised within the current budget;

Provincial Departments will be encouraged to utilise State Veterinarians and Animal Scientists in different municipal districts;

However, the outer years will have to cater for the new component on Animal Welfare and a budget of R54 million to carry the operations and the structure of the: National Licensing Officer; Technical Staff (State Veterinarians, Animal Scientist); and Administrative Staff.

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CONSTITUTIONAL IMPLICATIONS / PARLIAMENTARY PROCEDURE

The OSLA and the Department of Agriculture, Forestry and Fisheries are of

the opinion that this Bill may only have to be dealt in accordance with the procedure

established by section 75 of the Constitution of the Republic of South Africa, 1996

(the “Constitution”). However Parliament can further guide on the tagging of this Bill.

The OSLA and the Department of Agriculture, Forestry and Fisheries are

further of the opinion that it may not be necessary to refer this Bill to the National House of

Traditional Leaders in terms of section 18(1)(a) of the Traditional Leadership and

Governance Framework Act, 2003 (Act No. 41 of 2003), since it does not contain

provisions pertaining to customary law or customs of traditional communities. However Parliament’s guidance will be highly appreciated.

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Thank you

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