Structure of the National Veld and Forest Fire Act, 101 of 1998

As amended by the National Forest and Fire Laws Amendment Act, 2001 Input 3

South Africa’s legal system

Where does South Africa’s law come from? We find our law mainly in

– legislation (statutes or Acts or laws)– precedent (court decisions)– common law– indigenous law– the Constitution

The three arms of government According to the Constitution, there are

three separate arms of government:

Legislature Parliament, provincial legislatures and local councils

Represent the people of SA Make laws

Executive The President, Ministers, government departments and civil servants

Implement the laws and policies

Judiciary Courts: magistrates’, High, Appeal and Constitutional

These try cases and administer justice

The legislature

The legislature passes Acts (legislation) (called by-laws in the case of municipalities).

The National Veld and Forest Fire Act, Act 101 of 1998 is an example of legislation which has been passed by Parliament.

There are three organs of state which have the power to pass legislation (that is, they have legislative powers). Each has a different sphere in which it operates.

The legislature

National sphere

Parliament Passes Acts (also called laws, legislation or statutes)

Provincial sphere

Provincial legislatures

Pass provincial legislation (previously called ordinances)

Local sphere Local councils (municipalities)

Pass by-laws

Parliament

Parliament is the highest organ of state that can pass legislation on the national level.

Parliament consists of two houses: the National Assembly and the National Council of Provinces (NCOP).

The NCOP is there to give provinces a say about legislation that affects provinces.

The legislative process: How a Bill becomes an Act (simplified) (1)

The Bill is drafted

The Green Paper may be drafted. This is a preliminary discussion document on government policy. The public gives feedback on the Green Paper.

The White Paper may be written. The public gives comment on the White Paper. This helps government to finalise its policy.

The Bill (draft law), is written. This is usually done by the government department under the direction of the Minister.

The Bill goes to Parliament

The Bill is introduced in the Parliament. The Bill is handed out to all MPs and explained, usually by the Minister. This is called the first reading.

The Bill is referred to a parliamentary committee that specialises in the subject of the Bill. For fire, it would be referred to the Portfolio Committee on Agriculture, Water and Forestry.

Parliament considers the Bill for the second time (the second reading). The Portfolio Committee makes a recommendation to Parliament about whether to pass, amend (change) or reject the Bill. Parliament votes on the Bill.

The legislative process: How a Bill becomes an Act (simplified) (2)

Parliament votes on the Bill

PASS AMEND REJECT

Bill goes to the NationalCouncil of Provinces

(NCOP)

The NCOP considers the Bill and votes on whether to pass, amend or reject it. Bills on provincial matters may go through the NCOP first.

Once the both Houses of Parliament have passed a Bill, it is sent to the President for assent and signature.

If Parliament rejects the Bill, it usually falls away, or a new Bill may be drafted from scratch.

The Bill becomes an Act of Parliament. It is placed on the statute book and held in safekeeping by the Constitutional Court. It is published in the Government Gazette for information.

The importance of legislation Legislation is a very powerful source of

law. It binds the whole of society. It is the quickest and most effective way

to change old laws and create new ones.

Large parts of our law are found in legislation, for example, company law, forestry law, parts of the law of marriage and divorce.

Precedents (court decisions) Courts apply the law on a daily

basis when they hear cases. When people cannot solve their

disputes themselves or when people are suspected of having committed criminal offences (for example, murder or rape), such cases may end up in court.

Types of courtsSupreme Court of Appeal

High Court Magistrates courts

Constitutional Court

Highest court

Sits in Bloemfon-tein

Presided over by judges

Head: Chief Justice

In every province

Presided over by judges

Head: Judge President

Lower courts, can only hear certain cases

Widespread Presided

over by magistrates

Highest court for constitutional matters

Johannesburg Presided over by

judges Head: President

What does precedent mean? Courts must take account of their

previous decisions in similar cases. In certain cases a court must follow

what a previous court has decided. Previous judicial decisions are

therefore a source of law called precedent.

Examples of judicial precedent All lower courts must follow the

Supreme Court of Appeal’s decisions. All courts, including the Supreme

Court of Appeal, must follow the Constitutional Court with regard to decisions on constitutional matters.

Magistrates’ courts must follow the High Court

No other court needs to follow a decision in the Magistrates’ Courts.

Common law When a specific matter is not governed by

legislation, the common law usually applies.

Our common law is mainly the 17th and 18th century Roman Dutch law that was brought to the Cape when the European settlers arrived there.

Many of the general legal principles we know and according to which we live come from the common law, for example: the status of murder, robbery and rape as crimes.

If we can’t find a legal rule in an Act, it has usually come to us from the common law.

Indigenous law Many African communities live according

to indigenous law, that is unwritten, traditional African law recognised by the community as the law.

Indigenous law is applied by the courts, when the parties so choose.

But the courts cannot apply indigenous law if it is in conflict with the Bill of Rights in the Constitution. For example, the indigenous law that women cannot inherit from their husbands contradicts the principle of equality in the Constitution.

The Constitution (1) The Constitution is an Act of

Parliament, and it is the supreme law of South Africa.

Any law or conduct which is inconsistent with it is invalid.

The Constitution contains a Bill of Rights which has rights such as:– Everyone is equal before the law– Everyone has the right to have access

to adequate housing– No one may be subjected to slavery

The Constitution (2) Legislation which contradicts the

Constitution will be struck down by the courts. This means that the courts will declare the law invalid.

For example, the Boxing Act states that women may not become boxers. But this contradicts the right to equality in the Bill of Rights. Therefore, the Boxing Act will have to be changed to allow women to box, or it will be struck down as invalid.

Sources of law applied to NVFFA The National Veld and Forest Fire Act

is an example of legislation passed by Parliament. It applies to the whole country.

A court may interpret words in the NVFFA and give them a specific meaning.

The Cape High Court interpreted what a “veldfire” is. All lower courts must follow its decision, but the Supreme Court of Appeal could find differently.

Progress with the NVFFA

Is the NV&FFA in operation yet? Although the Act was published for

general information on 27 November 1998, it did not come into operation on that day.

This is because s38 states that it will come into effect on a date specified by the President in the Government Gazette.

Different sections of the Act have come into operation at different times and some are still not in effect.

Which sections are in effect? (1)

Date and sections

1 April 1999:– sections 1 - 2– sections 14 - 16– sections 17 - 19– sections 20 - 23– sections 24 - 25– sections 26 - 29– sections 30 - 38

2 July 1999:– sections 12 and 13

What are the sections about?– Introductory provisions– Firebreaks– Fire fighting– Administration– Offences & penalties– Enforcement– General

– Firebreaks (not brought into effect on 1 April due to error)

Which sections are in effect? (2)

Date and sections 5 August 2003

– sections 3 - 8

What are the sections about?– Fire protection

associations

Which sections are not in effect and why?

Sections What are the sections about?

Why are they not in effect?

9 - 11 Chapter 3

Fire Danger Rating System

Need to decide on fire danger rating model

Amendment Acts Sometimes an Act needs to be changed. This could be because of errors in the Act,

new situations that need to be dealt with, or something that was left out of the Act.

An Amendment Act is passed by Parliament, and it changes the original Act.

The National Forest and Fire Laws Amendment Act was passed on 18 July 2001. It changes some parts of the NFA. An example of some of the amendments follow.

National Forest and Fire Laws Amendment Act

What the law used to say

Where a municipality is a member of a FPA, the Chief Fire Officer must be the Fire Protection Officer (s6(2))

What the law says now

Where a municipality is a member of a FPA, the Chief Fire Officer will be the Fire Protection Officer unless he or she declines the position

National Forest and Fire Laws Amendment Act

What the law used to say

Where the FPA has more than one CFO, the FPO must be elected by the FPA (s6(2))

What the law says now

Where the FPA has more than one CFO who is willing to be the FPO, the FPA must appoint a FPO from amongst the willing CFOs

National Forest and Fire Laws Amendment Act

What the law used to say

The veldfire management strategy of a FPA must have strategies for co-ordinating actions with neighbouring FPAs if a fire crosses boundaries (s5(1)(b))

What the law says now

The veldfire management strategy of a FPA must have strategies for co-ordinating actions with neighbouring FPAs

Regulations

An Act can’t deal with every single thing that needs to be covered, especially the administrative procedures required to implement the Act. – For example, s4(1) of the NVFFA says that a

FPA must apply for registration in the prescribed way.

– The regulations set out what this way is. Regulations are therefore published to

fill in the details left out of the Act.

Regulations

The regulations for Chapter 2 of the NVFFA (on FPAs) were published on 16 May 2003. Chapter 2 could have been brought into effect at this time, but due to error, it was not. The Chapter came into effect on 5 August 2003.

Chapter 3 regulations (on the National Fire Danger Rating System) have not been published yet.

Differences between the Act and regulations

Act Regulations

Law which binds everyone in South Africa

Also bind everyone. They fill in detailed procedures left out of the Act

Passed by Parliament Published in Government Gazette by Minister

Delegations

The Act states that the Minister and the Director General will undertake all of DWAF’s responsibilities under the Act.

For example the Minister will register FPAs.

Most of their powers will be delegated to officials within DWAF.

Delegations In the previous example, the

Director: Forestry Regulation is delegated the duty to register FPAs.

DWAF has published delegations tables, which are currently being revised.

This is because we have a new structure for DWAF, with different posts and responsibilities.