THE PERFORMING ANIMALS PROTECTION (PAPA)AMENDMENT BILL

DEPARTMENT OF AGRICULTURE, FORESTRY AND FISHERIES

28 APRIL 2015

PRESENTATION TO THE PORTFOLIO COMMITTEE ON AGRICULTURE, FORESTRY AND FISHERIES

OUTLINE

Acronyms

Introduction

Specific inputs/ concerns from Portfolio Committee and DAFF

responses

Comments made during public consultations and DAFF responses

Exemption of PAPA licence (Section 9 of the Principal Act )

Capacity of State Veterinarians and Animal Scientist

Summary of the State Law Advisor's comments (Section 75 v/s 76)

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ACRONYMS

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INTRODUCTION

On the 14th of April 2015 DAFF presented the Performing Animals Protection Amendment Bill to the Honourable Members of the Portfolio Committee.

Honourable Members and other parties made some inputs, expressed some concerns, asked additional information and offered some suggestions.

DAFF’s technical team has considered all issues raised by the Honourable Members, and wishes to use this opportunity to respond to some of those matters raised.

The responses offered are not necessarily fixed, they are rather an indication as to how DAFF thinks about the Bill. It must however noted that DAFF is also seeking suggestions from Honourable Members.

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Specific inputs/ concerns from Portfolio Committee and DAFF responses

There was a concern raised on the “Objects of the Bill” as being inconsistent with original Bill.

DAFF has considered the concern and has tried to reword the Objects of the Bill as follows:

Revised Objects of the Bill:-

• To amend the Performing Animals Protection Act, 1935, so as to insert certain definitions; to provide for the designation of a National Licensing Officer; to provide for a procedure for the application for a licence to exhibit and train performing animals or use of dogs for safeguarding; to provide for the functions of a National Licensing Officer; to provide for the issuance of licences; to provide for an appeals process; and to provide for matters connected herewith.

DAFF is hopeful that this concern has now been addressed with the new revision. However, DAFF requests that the team of State Law Advisors, Parliamentary Legal Services and DAFF Legal Services have a dialogue and re-word this to the satisfaction of everyone.

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Specific inputs/ concerns from Portfolio Committee and DAFF responses

There was a concern raised on the use of the term “Any Animal” used in the Bill without qualifying on which animals are involved.

DAFF has considered the concern and wishes to clarify as follows:

-Because the current amendment deals with only section 2 and section 3, all other sections in the Principal Act remain unchanged as they were not the part of the Judgement. In this regard, the definition of an “Animal” remains the same definition as in the Principal Act, i.e.:

Definition of an Animal (Section 11 of the Performing Animals Protection Act (PAPA), 1935, (Act No. 24 of 1935) read with Section 1 of the Animal Protection Act, (APA),1962, Act No. 71 of 1962 ):-

• “Animal” means any equine, bovine, sheep, goat, pig, fowl, ostrich, dog, cat or other domestic animal or bird, or any wild animal or wild bird which is in captivity or under the control of any person.

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Specific inputs/ concerns from Portfolio Committee and DAFF responses

There was a concern raised on Section 3D and 3E of the current Amendment Bill

The concern related to the potential loop-hole that can open a route for the appointment of “malicious persons” to potentially use their appointment to “victimise” certain industry stakeholders. DAFF has considered the concern and wishes to clarify as follows:

Section 3D and 3E of the Bill are intended to:

• Assist DAFF and/ or Provinces where there is a lack of specific expertise, experience and knowledge within government to inspect a particular premises of certain animals in order to make a decision on issuance of a licence. DAFF is specifically concerned that there may be a shortage of skills within government when it comes to Wild Animals.

• In this regard, the National Licensing Officer (NLO) may approach the Director General and request appointment of such experts.

• Experts will be delegated by the NLO for such circumstances, consultation and also where there is an appeal process that may require certain expertise.

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Specific inputs/ concerns from Portfolio Committee and DAFF responses

There was a concern raised on the Section 3H of the current Amendment Bill. The concern related to the entering of the premises. DAFF wishes to indicate that:

Inspection of premises will form integral part of the application process – this will enable the official to gather adequate information so as to enable such official to apply his/ her mind regarding issuance or a decline of a licence.

All applicants must have their premises inspected – the issuance of PAPA licences cannot be paper-based only. The inspection of facilities will assist the official to demonstrate due diligence if issuance of such licence is questioned.

Entering of the premises by the National Licencing Officer will be subject to the consent of the applicant.

It must also be noted that before issuance of a licence there will be minimum standards to be met i.e. on-site inspection is a prerequisite for licence.

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Comments made during public consultations and DAFF responses

In the Draft Bill that was gazetted, a term National Executive Officer (NEO) was used. Stakeholders felt that this must be changed to the National Licencing Officer . DAFF concurred

In the Draft Bill appointment of experts was originally proposed to be the function of NEO. Stakeholders felt that this must be the function of the Director General at the request of the NLO.

There was also a request from Stakeholders to insert Section 3L “Validity of the licence.”

There was also a request from Stakeholders to make the following deletions:-

•Section 3F “Renewal of licence”

•Section 3J “Notices and Summonses”

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Exemption of PAPA licence (Section 9 of the Principal Act )

The following Animals are exempted from PAPA licence:• Animals for military training• Animals for police training• Animals for sporting purposes• Animals for agricultural shows• Show horses• Show dogs• Show caged birds• Military or police tournaments/exhibitions• Gymkhanas• Safeguarding dogs by the South African Defence or the South African

Police or the Prisons Service• Public Zoological Gardens

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Location of State Veterinarians and Animal Scientist

There was a concern on the capacity of DAFF to carry the functions and the location of State Veterinarians and Animal Scientists.

Unfortunately, the current DAFF database on State Veterinarians and Animal Scientists does not contain details of GPS coordinates.

The available map is of 2010, and just for State Veterinarians only.

An improved map of the location of the capacity will be provided later which will reflect the status quo.

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Location of State Veterinarians (as in 2010)

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Capacity of State Veterinarians (current numerical numbers)

Province

State Veterinarian

AHTAnimal Health Laboratory Import & Exports Epidemiology VPH VET

Eastern Cape 29 5 2 0 3 303Mpumalanga 20 4 0 1 5 90Gauteng 5 1 5 1 5 24Free State 10 2 0 0 2 54Limpopo 23 4 5 0 4 160North West 21 3 0 0 1 121Northern Cape 8 2 2 0 0 30Western Cape   4        KwaZulu-Natal 15 5 0 2 0 126Total 131 30 14 4 20 908

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Outcome of Stakeholder Consultations

Other concerns raised include: • Mandate to issue licenses DAFF or NSPCA?• Who are the authors of the revised Bill?• Impartiality of DAFF (NSPCA v/s Industry)? • Exemptions for a PAPA licence?• Capacity within DAFF to implement licencing?• Valid of the licence (1year v/s 5yrs)?• Selection and expertise of the appeals board? • Turn around time for PAPA licences? • Purpose of PAPA?

Details about these concerns are included in the minutes of the Stakeholder Workshop that have been submitted to Portfolio Committee.

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Summary of the State Law Advisor's comments (Section 75 v/s 76)

The State Law Advisor’s (SLA) opinion that the Bill is a Section 75 Bill is based on the following: The test to determine whether a Bill is a S75 or S76 Bill is whether the provisions of

the Bill substantively fall within a functional area listed in Schedule 4 of the Constitution of the Republic of South Africa (the Constitution) (Tongoane case).

The impact of every /all the relevant provisions of the Bill ( not just one ) must be assessed in determining whether the Bill substantially affects the Province.

When applied to PAPA, the following is apparent:

I. The only reason PAPA is being amended, is as a result of the Constitutional Court judgement. The major issue was who is responsible for the issuing of the licence?

II. The Bill places this responsibility on the National Licencing Officer (NLO). The NLO is an official from the National department. The NLO may in his /her discretion delegate this function to the Province.

III. No provision in the Bill compels the Province to perform any such function. Therefore no provision in the Bill significantly/substantially impacts the Province.

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Summary of SLA continued…

IV. It may be submitted that PAPA falls under the concurrent functions listed in Schedule 4 of the Constitution; namely the functional area of Animal Control and Diseases and Nature Conservation. This would be incorrect for the reasons mentioned below:

o The purpose of the Bill is to protect animals against abuse and is not for the control of animals and diseases. Further, the Bill cannot fall under the functional area of nature conservation (which refers to amongst other the protection of wildlife). The animals subject to the Bill will be under the control and in possession of the applicant for the licence. Such animals cannot be considered “wildlife” or wild animals.

In conclusion, the SLA found that the Bill does not fall within Schedule 4. Given the responsibility for the issuing of licences and all other relevant provisos flowing therefrom resides with the national department, the Bill also does not substantially affect the Provinces. The SLA also found that it would not be necessary to refer the Bill to the National House of Traditional Leaders as the Bill does not contain provisions relating to customary law or customs of traditional communities.

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Thank you

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