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Legal Notice No.10 of 2000

Gazetted as VOL. XXXVIII MBABANE, Friday, September 22nd., 2000 [No. 606]

Presented by the Minister for Agriculture and Cooperatives

MEMORANDUM OF OBJECTS AND REASONS

The purpose of this Bill is to repeal and replace the Flora Protection Act No. 45 of 1952 so as to provide for more effective protection of flora and to provide for matters incidental thereto.

P. M. DLAMINI

Attorney General

A BILL entitled

An Act to protect indigenous flora and to provide for matters incidental thereto.

ENACTED by the King and the Parliament of Swaziland.

Short title and commencement

1. This Act may be cited as the Flora Protection Act, 2000 and shall come into force on such date as the Minister may, by notice in the Gazette, appoint.

Interpretation

2. In this Act, unless the context otherwise requires:-

• Authority means the Swaziland Environment Authority established by the Swaziland Environment Authority Act No. 15 of 1992;
• cultivate means to promote, stimulate or foster the growth of a plant, or plant material (including seed) obtained lawfully in terms of this Act, and "cultivated" and "cultivation" have corresponding meanings;
• endemic flora means any flora whose natural distribution is restricted to the boundaries of Swaziland;
• flora reserve means a reserve established in terms of Section 3;
• indigenous flora means any plant whose natural distribution is Southern Africa including Swaziland;
• land includes land with or without buildings thereon;
• Minister means the Minister responsible for Flora;
• plant means any vegetative or reproductive growth including fungi, algae, mosses, lichens, liverworts, ferns, fern allies or seed plant whether living or dead;

owner means:-

• in the case of Swazi Nation Land, the Ngwenyama in Trust for the Swazi Nation;
• the registered owner of a holding, whether it is a plot, lot, erf, portion or farm;
• the lessee or lawful occupier of a holding in the case of a lease of ten or more years;
• in relation to land concession, the concessionaire;
• a legal representative in the case of an insolvent estate, a company in liquidation, a deceased estate, a minor, a person of unsound mind or otherwise under any disability;
• protected Flora means a plant included in schedules A, B, C or growing in a flora reserve or special habitat or botanic garden;

a public road means-

• any road established, proclaimed or recognised under the provisions of any law and includes bridges over which such roads pass;
• any road or thoroughfare, however created which, before and after the commencement of this Act has been in the undisturbed use of the public or which the public had the right to use during a period of not less than three (3) years and includes bridges over which such roads pass and include;
• any street or thoroughfare and any public place whatever open to use of the public for purposes of vehicular traffic;
• rare flora means flora included in schedule C and whose populations are at risk should an unforeseen threat come up;
• sell includes offering or exposing for sale, delivering pursuant to sale, bartering, hawking, peddling or any other form of trading in any plant or part thereof;
• a special habitat means a piece of land containing plant species of ecological, aesthetic or socio-economic importance or concern and declared as such under Section 3 of this Act;
• specially protected flora or "endangered flora" means flora included in Schedule A and in danger of extinction if casual agents continue to be unchecked;
• vulnerable flora means flora included in Schedule B and likely to be in danger if the casual agents continue to operate.

Establishment of flora reserves, botanic gardens and protection of special habitats

3. The Minister may from time to time by notice in the gazette:-

• with effect from a date specified by him in each case, establish one or more flora reserves and/or botanic gardens at the same time defining the boundaries thereof and restricting and prohibiting the doing of any act which may destroy protected flora therein;
• with effect from a date specified by him in each case, declare certain portions of land as 'special habitats' at the same time defining the boundaries thereof and restricting and prohibiting the doing of any act which may destroy protected flora therein;
• extend the boundaries of any flora reserve, botanic garden or special habitats established in terms of paragraphs (a) and (b) or alter such boundaries or disestablish any such flora reserve, botanic garden or special habitat with effect from a specified date. Inclusion of plants in a Schedule

4. The Minister may from time to time by notice in the gazette:-

• include or delete from the Schedule A, B or C the name of any species or kind of plant or group of plants;
• amend the Schedules.

Unlawful picking of protected flora

5. (1) Subject to Section 5 (2), 5 (3), 5 (4) and 6 (1), no person shall pick, pluck, gather, cut, uproot, injure, break, process or destroy any protected flora or part thereof, including seeds of such protected flora.

(2) Any owner or occupier of land may pick, pluck, gather, cut, uproot, process or destroy:-

• protected flora that has been lawfully cultivated by the owner or occupier of any portion of land specially set aside for such purposes;
• protected flora that is growing on land which is bonafide required for agriculture, building or other development and who has at least eight weeks prior to commencement of such operations applied in writing with full particulars of his intentions to the Minister for permission to do so:

Provided that the owner or occupier shall be entitled to proceed should the Minister fail to grant or refuse permission within eight weeks.

(3) The holder of the permit issued under section 6 (1) may pick, cut, uproot or dig out such protected flora as specified in such permit.

(4) Nothing in this Section shall be construed as permitting the plucking, picking, cutting, uprooting, digging out, injuring, breaking, processing or destroying any specially protected flora, save in the case of a permit issued by the Minister in which such specially protected flora is specified.

Permits to pluck, cut or uproot protected indigenous flora

6. (1) The Minister may issue a permit authorising the holder thereof to pick, pluck, cut, uproot or dig out the species and quantities of protected flora specified in such a permit, in a locality and during a period likewise specified, subject to other conditions as may be specified in such a permit;

Provided that:

• when the plucking, cutting or uprooting or digging out takes place on land which the applicant is not the owner, such permits may only be issued if the written permission of the owner of such land has been obtained;
• the permit may not be issued for plucking, cutting, uprooting or digging out of protected flora on land along either side of a public road within a distance of 45 metres in width measured from the centre of such roads, unless the Minister or the person authorised by him finds that there are exceptional circumstances including obstruction of vision, traffic, telecommunication or power supplies, which justify the issue of such permit.

(2) The permit issued by the Minister shall be as specified in Schedule D to the Act.

Prohibition of export

7. (1) No person shall export or attempt to export from Swaziland any protected flora, except upon or subject to the conditions of a permit issued by the Minister;

(2) The Minister may, at his discretion, issue or refuse to issue a permit for the exportation of or removal of protected flora from Swaziland, and may insert in such a permit such conditions as he considers desirable.

(3) A permit issued in terms of this section shall only be available for use by the person to whom and in whose name it is issued and shall be made available to officers mentioned in (4) as long as the stated protected flora is dealt with.

(4) A Police Officer, Customs Officer or any Public Officer authorised by the Minister in that behalf who on reasonable grounds suspects that any protected flora which is in the possession of any person, or in or on a vehicle is being exported unlawfully, may arrest the person in possession of such protected flora and the vehicle for the purpose of proceedings to be instituted against such a person in connection with such protected flora.

(5) Any person who hinders, obstructs or interferes with an officer mentioned in subsection (4) in the execution of his duties imposed upon him under this section, is guilty of an offence and liable on conviction to the penalties set out in section 17.

Unlawful entry into flora reserves, botanic gardens and special habitats

8. (1) Any person who destroys fencing material, enters into, sets fire onto or willfully destroys or digs, cuts and uproots plants in a flora reserve, botanic garden and special habitat, established in terms of Section 3 without a permit is guilty of an offence and on conviction, liable to the penalties set out in Section 17 of this Act.

(2) Any police officer, custom officer or any public officer authorised by the Minister on that behalf, who on reasonable grounds suspect that a person is contravening subsection (1), may arrest the person and confiscate vegetative and/or reproductive material or the container or the vehicle in which the plant material is carried for the purposes of proceedings to be instituted against such person.

(3) Any person who hinders, obstructs or interferes with any Officer mentioned in subsection (2), in the execution of his duties imposed upon him under this section, is guilty of an offence and liable on conviction to the penalties set out in Section 17.

Unlawful sale of protected flora

9. (1) No person shall sell any protected flora unless such person holds a permit issued in terms of the Plant Control Act 1981:

Provided that the holder of a permit issued in terms of the Act may sell protected flora as prescribed in such permit.

(2) No person shall purchase protected flora other than from a nursery registered in terms of the Plant Control Act, 1981 or from a person possessing a permit obtained from the Minister authorising him to sell the protected flora.

Permits to sell protected flora

10. (1) The Minister may issue a permit authorising the holder thereof to sell protected flora.

(2) The permit shall specify the species, or kind of protected flora which may be sold by the holder, and the locality where and the period during which such protected flora may be sold, and other conditions which the Minister may prescribe.

(3) A person contravening or failing to comply with any condition contained in a permit issued under Section (1) is guilty of an offence and liable, on conviction, to the penalties set out in Section 17.

(4) The holder of a permit shall furnish the Minister with a list stating the species, quantity and price of flora and name and address of a customer, whenever called upon to do so.

Cancellation of permits

11. The Minister may cancel any permit issued in terms of Section 6 (1), 7 (2) or 10 (1), if he has reason to suspect that the holder of such a permit does not comply with the conditions of such a permit.

Search for and registration of protected flora

12. (1) Any Police Officer, Customs Officer or a Public Officer authorised by the Minister in writing in that behalf may at any reasonable time enter upon any land for the purpose of searching for or inspecting any protected flora.

(2) Any Officer referred to in subsection (1), may enter upon any land, premises or vehicle for the purpose of arresting any person suspected on reasonable grounds of having committed an offence in respect of any protected flora and of seizing the protected flora in respect whereof of the offence in the opinion of such officer has been committed.

(3) Any owner or occupier of land where specially protected flora are cultivated shall, within six months from the commencement of this Act, register such flora in the form prescribed by the Minister in Schedule E of this Act.

(4) Any person who fails to comply with subsection (3) or who obstructs or hinders a Police Officer, Customs Officer or any Public Officer in terms of subsection (1) in the execution of the duties imposed on such officer under this section, is guilty of an offence and on conviction liable to the penalties set out in Section 17 of this Act.

Persons in possession of protected flora in reserve, botanic garden or specially protected habitat to give names and addresses

13. (1) If a person is found in possession of protected flora or plants within the boundaries of a flora reserve, botanic garden or special habitat, established under Section 3 (b) of this Act, the owner of such land or any person appointed in writing by him or any other officer referred to in Section 12 (1) of this Act, may call upon such a person to furnish his full name and address.

(2) Any person who when called upon under Subsection (1), to furnish his name and address, fails or refuses to do so, or furnishes a false or incorrect name and address, is guilty of an offence and liable on conviction to the penalties set out in Section 17 of this Act.

Presumption

14. A person who has or had custody of or who is or has been in possession of or who has handled, carried, conveyed any protected flora shall, if there is reasonable suspicion that such protected flora have been plucked, gathered, cut, uprooted or dug unlawfully, be deemed to have plucked, gathered, cut, uprooted or dug out such protected flora in contravention of this Act, unless the contrary is proved.

Collection for research or scientific purposes

15. Any person wishing to collect protected species of plants for research or scientific purposes shall apply for a permit from the Minister in the case of Swazi Nation Land or Title Deed Land and to the Swaziland National Trust Commission in the case of any areas protected under the Swaziland National Trust Commission Act No. 9 of 1972 and such person shall abide by the conditions set out in the issued permit.

Environmental impact assessment and mitigation plans

16. (1) Any organisation, public or private, or owner of land wishing to implement any activity that would impact in indigenous flora shall be required to assess indigenous flora that would be affected stating the location, total land area in square metres or square kilometres, or the distance in kilometres, the kinds of flora to be affected and their category in the schedule of protected flora and such organisation or owner shall ensure that proper mitigation measures are followed in accordance with the Swaziland Environmental Authority Act 1992.

(2) Any person who fails to comply with the provisions of subsection (1) hereof is guilty of an offence and liable on conviction to a fine of not less than two thousand five Hundred Emalangeni or a minimum prison term of three (3) months but not exceeding fifteen thousand Emalangeni or five (5) year prison term per hectare of land destroyed. In addition, the court may order that destroyed flora be replaced or compensated for.

Penalties

17. (1) Any person who contravenes the provisions of Section 7 or 8 or unlawfully cuts, picks, plucks, gathers, uproots, injures, breaks and process any flora in schedule A is guilty of an offence and on conviction liable to a fine of not less than six hundred Emalangeni and not more than two thousand five hundred Emalangeni or a term of imprisonment of not less than three months and not more than two years.

(2) Any person who contravenes the provisions of any other part of this Act, except Section 16, is guilty of an offence and if found guilty be liable to a fine not less than three hundred Emalangeni and not more than one thousand Emalangeni or a prison term of not less than one month and not more than one year.

(3) Any person who has previously been convicted for contravening any section of this Act shall, if convicted be sentenced to two years imprisonment at the second and subsequent convictions.

(4) In addition to such penalty the court may:-

• order that any protected or indigenous flora in respect of which the offence was committed be forfeited to the Government; cancel a permit issued to the person in terms of Section 6 (1), 7 (2), 10 (1);
• order that a vehicle, object or animal used in the commission of an offence under the Act be forfeited to the Government and such object, or animal to be redeemed at 10% the total cost of the vehicle, object or animal used.

Exemption of Swazi rural dwellers

18. Nothing contained in this Act shall operate to restrain bonafide Swazi rural dwellers from collecting and processing plants outside flora reserves for their personal and domestic use and not for sale or delivery to any other person pursuant to any cause whatsoever.

Prohibition of sale of indigenous plants

19. (1) No person shall pick, pluck, cut, uproot or dig out any indigenous flora for the purpose of sale or offering for sale or for export or delivery with intent to export whole or parts of such flora without a permit from the Minister.

(2) Any driver and owner of a vehicle found loaded or transporting whole or parts of indigenous flora without a permit from the minister shall, unless the contrary is proven, shall be deemed to have done so in contravening of this Act and shall, if found guilty be liable to the penalties set out in Section 17.

Prohibition of cross boarder trade

20. No person shall, without the authority of the country of origin, carry or trade in any plant listed in the Red Data List of Southern African Plants (1997) or any other plant listed under the auspices of the International Union for the Conservation of Nature (IUCN).

Relation with Other Acts

21. This Act shall be read together with:-

• the Swaziland Environmental Authority Act No. 15 of 1992;
• the Forest Preservation Act No. 14 of 1910;
• the Plant Protection Act No. 10 of 1959;
• the Wild Mushroom Control Act No. 31 of 1973;
• the Grass Fires Act No. 44 of 1955;
• the Natural Reserves Act No. 71 of 1951;
• the Game Act, 1953;
• the Swaziland National Trust Commission Act No. 9 of 1972.
• Supremacy of the Act

22. Whenever conflicts arise between this Act and any other legislation on matters pertaining to the flora, this Act shall assume supremacy over the other legislation.

Regulations

23. The Minister may make regulations for the better carrying out of the objects of this Act.

Repeal

24. The Flora Protection Act No. 45 of 1952 is hereby repealed.

SCHEDULE A

ESPECIALLY PROTECTED FLORA (ENDANGERED)

SCHEDULE B

VULNERABLE FLORA

SCHEDULE C

RARE FLORA

SCHEDULE D

PERMIT FOR PROTECTED FLORA

(see pdf file)