Presentation to the PC on Agriculture, Forestry and Fisheries Legal and drafting issues identified in the Protection of Performing Animals Amendment Bill, 2015 [B9B-2015]. 14 April 2015: Desiree Swartz – Parliamentary Legal Adviser

Background NSPCA v Minister of Agriculture and Others, 2013 (5) SA 571 (CC) – Constitutional Court considered whether section 2 and 3 of the Protection of Performing Animals Act, (Act No. 24 of 1935) is consistent with the Constitution. – Section 2 – The Magistrate may issue a licence for exhibiting and training of performing animals and for use of dogs for safeguarding. – Section 3 – Certificate i.r.o licenced animals. – The Constitutional Court examined the “doctrine of the separation of powers” under the Constitution.

Background - Cont Constitutional Court order - sections 2 and 3 were inconsistent with the Constitution, but suspended the order of invalidity for 18 months. The judgement was delivered on 11 July sections 2 and 3 thus remained valid until 10 January However on 27 November 2014 the Constitutional Court extended the period of suspension of the order until 12 July The deadline for the Amendment Bill to be passed and assented to by the President is 12 July 2015.

Questions of clarity and proposals on the Bill - Clause 3 Clause 3 - Section 3F(1)(a) – Section 3F(1)(a) provides that: “the National Licensing Officer may grant an application for any licence if he or she is satisfied that the information furnished by the applicant as contemplated in section 3H(2) is in accordance with the purpose of this Act”. – My view: “in accordance with the purpose of this Act” is very broad. – Question: How will a National Licensing Officer determine “the purpose of the Act” when there is no clause that sets out the purpose? – Proposal: should include a clause in the Bill setting the purpose of the Act.

Questions of clarity and proposals on the Bill - Clause 3 Clause 3 - Section 3H – Proposal: Section 3H (“Application for licence”) should be before section 3F (“Consideration and granting of applications for licences by National Licensing Officer”)? – Section 3H(2)(e) refers to a prescribed fee. View: The regulations section (Section 7) (which is not amended in the Bill) does not make provision for the Minister to prescribe fees. Proposal: An amendment to section 7 to make provision that the Minister may prescribe fees.

Questions of clarity and proposals on the Bill - Clause 4 Clause 4 – Proposal: The heading to this clause should also make reference to the other Acts that amended section 11. It should read as follows: “Amendment of section 11 of Act 24 of 1935, as amended by section 7 of Act 7 of 1972 and section 9 of Act 7 of 1991”. – Proposal: Reference is made in the definition of “Animal Scientist” to the South African Natural Science Professions Act, 2003 (Act No. 27 of 2003). The correct citation of the Act is the Natural Science Professions Act, 2003 (Act No. 27 of 2003) - (South African is omitted). – Proposal: include a definition for Board – Proposal: The definition for “prescribed” sets out the ordinary meaning of the definition. The definition does not extend or limit the ordinary meaning and it therefore does not warrant having a definition thereof in the Bill.

Questions of clarity and proposals on the Bill - Clause 5 There was previously a section 11A (clause 5 in the Bill) which was inserted by section 8 of Animal Protection Amendment Act, 1972 (Act No. 7 of 1972) and then repealed by section 10 of the Protection of Animals Amendment Act, 1991 (Act No. 7 of 1991). – We can therefore not have the same section number given for the new section that deals with “Appeal and against decision or action by National Licensing Officer”.

Questions of clarity and proposals on the Bill - Clause 5 Clause 5 (Section 11A) deals with the following: – The right to appeal against a decision or action (ss (1)) – The referral of the appeal to the Board - subsection (1). – The appointment and remuneration of the Board - ss (2)(a)(ii)(aa) and ss (2)(b) and the designation of the chairperson - ss (2)(a)(ii)((aa). – The appeal processes and formalities ss (3) to (4) and (7) to (10). – The procedure to be followed should the investigation be interrupted by a vacancy – ss (5) and (6) Proposal: this section should be broken down in more subsections as the content of the section deals with more than heading to the section i.e “Appeal and against decision or action by National Licensing Officer”.

Questions of clarity and proposals on the Bill - Clause 5 Ss (1) provides that a person who feels aggrieved may appeal to the Minister against such a decision action. – However ss (2) provides that the Minister must thereafter refer the appeal for investigation and decision to the board. – Ss(7) provides that board may confirm, vary or set aside a decision or action and may order the National Licensing Officer to execute the decision. Question: If the Minister only does a referral of the appeal and is thereafter not involved, what practicality would there be in appealing to the Minister, as opposed to appealing directly to the board?

Questions of clarity and proposals on the Bill - Memo on the Objects Para 11.5, bullet 3 provides that “The provincial department becomes involve in the licensing process if the National Licensing Officer delegates any functions to officials of the provincial departments”. – Clause 3 (section 3E) provides that the “the National Licensing may delegate any of his or her functions under this Act to an expert or other person appointed in terms of section 3D”. – Section 3D provides that “the DG may, at the request of the National Licensing Officer, and subject to the laws regulating the public service, appoint such experts or other person as may be necessary to implement this Act”. My view: the Bill does not allow a delegation to officials of the provincial departments. Question: Is the intention therefore that provincial officials will be involved in the administration of the Bill?