THE NATIONAL VELD AND FOREST FIRE ACT AND HOW IT FITS INTO SOUTH AFRICA'S LEGAL SYSTEM
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:
- The legislature: Parliament, provincial legislatures and local councils. These represent the people of South Africa and make laws
- The executive: The President, ministers, government departments and civil servants. These implement the laws and policies
- The judiciary: The courts: magistrates’ courts, High Courts, the Supreme Court of Appeal & Constitutional. These try cases and administer justice
- 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 (the national legislature).
- 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:
- 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 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)
[See the attached document for a flow chart]
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: Highest court; sits in Bloemfontein; presided over by judges; Head: Chief Justice
- High Court: In every province; presided over by judges; Head: Judge President
- Magistrates’ courts: Lower courts, can only hear certain cases; widespread; presided over by magistrates
- Constitutional Court: Highest court for constitutional matters; sits in 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.
- 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.
- 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 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.
- 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 the National Veld and Forest Fire Act
- 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 has interpreted what a “veldfire” is. All lower courts must follow its decision, but the Supreme Court of Appeal could find differently.
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 section 38 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 sections are not yet in effect.
Which sections are in effect?
Date of commencement and sections
1 April 1999:
sections 1–2 (Introductory provisions)
sections 14–16 (Firebreaks)
sections 17–19 (Fire fighting)
sections 20–23 (Administration)
sections 24–25 (Offences and penalties)
sections 26–29 (Enforcement)
sections 30–38 (General)
2 July 1999:
sections 12–13 (Firebreaks – not brought into effect on 1 April due to an error)
5 August 2003:
sections 3–8 (Fire protection associations)
Which sections are not in effect and why?
section 9–11 (Fire danger rating system) – need to decide on a fire danger rating model
- 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 NVFFA. 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
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
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 FPA.
- 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.
- 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 was brought 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
- An Act is a law which binds everyone in South Africa. It is passed by Parliament.
- Regulations also bind everyone. They fill in detailed procedures left out of the Act and are published by the Minister in the Government Gazette.
- 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.
- 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.
Note: Open these files by clicking on an icon. You can save them to your hard drive by going 'save as' from the file menu. Alternatively, right click on an icon and choose 'save as' or 'save target as'.