Transcript Document

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, Implement the
government departments laws and
and civil servants
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
Provincial
sphere
Provincial
legislatures
Local sphere
Local councils
(municipalities)
Passes Acts (also
called laws,
legislation or
statutes)
Pass provincial
legislation
(previously called
ordinances)
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
Bill goes to the National
Council 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.
AMEND
Once the both Houses of
Parliament have passed a Bill,
it is sent to the President for
assent and signature.
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.
REJECT
If Parliament rejects
the Bill, it usually
falls away, or a new
Bill may be drafted
from scratch.
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 courts
Supreme
Court of
Appeal
High Court Magistrates Constitutional
courts
Court
Highest
In every
court
province
Sits in
Presided
Bloemfon- over by
tein
judges
Presided
Head:
over by
Judge
judges
President
Head:
Chief
Justice
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
9 - 11
Chapter 3
What are
the sections
about?
Fire Danger
Rating
System
Why are they not
in effect?
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 coordinating 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
Also bind everyone.
everyone in South Africa 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.
