Rates & Monetary Amounts & Amendment of Revenue Laws Bill [B10-2012]: legal opinion, deliberations, adoption; Credit Ratings Services Bill [B8-2012]: legal opinion & deferral to third term

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Finance Standing Committee

05 June 2012
Chairperson: Mr D Van Rooyen (ANC) (Acting)
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Meeting Summary

Rates & Monetary Amounts & Amendment of Revenue Laws Bill
The Senior Parliamentary Adviser said he did not see any constitutional problems in the provisions of the Rates & Monetary Amounts & Amendment of Revenue Laws Bill [B10-2012]. Retrospectivity as to the tax rates and change in the withholding tax on dividends did not pertain to criminal offences. The Income Tax Act and other tax Acts allowed National Treasury to access information and funds which were due to it. The concern about retrospectivity was not so much a legal one as a practical one on how to collect certain taxes, such as customs and excise duties and the dividends withholding tax which might then suddenly be due from a taxpayer.

A COPE Member asked when the Income Tax Act would be amended, since the Act specifically stated 10% as the rate of the dividends tax. A DA Member asked what the legal and interest consequences were for taxpayers who complied with the law by submitting at 10% but then retrospectively were meant to have submitted at 15%. The Senior Parliamentary Legal Adviser replied that the necessary amendment was contained in Clause 6 of this Bill. A person would be liable to pay that additional 5% on the dividends tax if that was not withheld because the law would work retrospectively, but SARS might be advised to use its discretion not to require interest. National Treasury agreed that the necessary amendments to the Income Tax Act to change the rate of the dividends tax from 10 to 15% were included in Clause 6 of this Bill. The interest payments would be dealt with in accordance with the relevant provisions in the income tax legislation. The overall approach remained unchanged: the rates were announced in the budget and people were aware of what the proposed rates were going to be, and planned accordingly. An IFP Member argued that it was for Parliament to say what the rate was going to be. That the taxpayer should protect him or herself not only from what the law was, but also from what the law could be, was bizarre. 'We cannot have retroactive provisions when we make it worse for the taxpayer.'

Clause-by-clause deliberations were delayed by numerous disputes on points of order. An IFP Member moved that the tax rebates in Clause 2(1) be doubled. The Parliamentary Legal Advisor advised that under the Money Bills Amendment Procedure and Related Matters Act, Parliament firstly considered, rejected, amended or adopted the fiscal framework. Changes required a keyhole alignment with the fiscal framework and the Division of Revenue Bill and, without the Parliamentary Budget Office which would be primarily responsible for making sure that all these figures tallied; he would hesitate to change the figures in this clause. A DA Member asked what would happen if this Committee voted to decrease an equivalent amount of expenditure. Did the entire fiscal framework have to remain in balance or did it have to stay intact as originally voted by Parliament? National Treasury replied that Section 13 of the Money Bills Amendment Procedure and Related Matters Act also provided that the Minister must be given an opportunity of 14 days to respond to any proposed amendments. Parliament had already adopted the fiscal framework for this financial year, so that the expenditure side had effectively been settled. The only adjustments could be in the revenue collection process, like the rates and thresholds. This would be quite a complicated matter and would require analysis to assess appropriately the actual implications for the revenue collection and how other adjustments might offset them. Very careful consideration would be required before the Committee could propose any amendments. The ANC formally rejected the IFP proposal. A DA Member was comforted by an ANC Member's suggestion to note the proposal. An ANC Member said that the notion of voting on decisions was new in this Committee and had arisen on the arrival of the IFP Member who was completely out of order. An ANC Member said that the proposal must be noted as an IFP proposal not a Committee concern. The IFP recorded its objections to Clause 4(2), and wanted the figures in Clause 8(1) doubled. The DA objected to Clause 9. The IFP wanted it deleted. A COPE Member thought that the IFP Member was out of order. To delete the clause would be contrary to convention. His party objected to the increases, but, as representatives of parties, Members could not go beyond recording their objections. The IFP insisted on deliberating on the Appendices, and objected to portions of Appendix 1 and all of Appendix 2.

The Committee reported that it had agreed to the Bill.

Credit Ratings Services Bill [B8-2012]
The Senior Parliamentary Legal Adviser advised that the Credit Ratings Services Bill's definition of 'this Act' was unusually wide but was not unconstitutionally so. However, he advised reviewing this Bill to ensure that where there was provision for delegated legislation, it was specified that such should be made accessible to the public. Secondly, this Committee needed to decide whether this delegated legislation should be tabled in Parliament.

National Treasury broadly supported this approach.

The ANC proposed deferring consideration of the Bill to the third term to allow time to make changes to the definition.

DA, COPE and IFP Members agreed.

A DA Member asked what would happen if the definition of 'this Act' was changed to say that 'this Act' included the regulations. This extremely limited option was not on the table at present.

The Acting Chairperson deferred this question.

The Committee agreed to defer further consideration of the Credit Ratings Services Bill to the third term, when it would be added to the agenda of the Committee's workshop on the Financial Markets Bill [B12-2012]. The Senior Parliamentary Legal Adviser, National Treasury and Financial Services Board were to work together in the redraft of the definition.

Meeting report

Rates & Monetary Amounts & Amendment of Revenue Laws Bill: legal opinion
Retrospectivity of the rates and change in the withholding tax on dividends
Adv Frank Jenkins, Senior Parliamentary Legal Adviser, said that, in terms of Section 35 of the Constitution, an act could not prescribe that someone was committing an offence retrospectively. This was where the limitation on retrospectivity stopped. In other words, an act might work retrospectively, but it was not possible to convict a person of an offence which was not an offence at the time that it was committed. As far as the rates and monetary amounts were concerned, the retrospectivity did not pertain to criminal offences. However, what one would see in practice was that when this Bill became an Act and became operative one would then have legally applicable rates from a date in the past. The only issue which might arise was the practical one of how to collect certain taxes which might then suddenly be due, but were not due when somebody paid them. Personal income tax (PIT) was unlikely to be an issue. There might be issues concerning customs and excise if those rates applied retrospectively and somebody had already paid a certain amount of tax. There might of course be issues concerning the dividend withholding tax. It was a practical issue of how to collect those taxes. There were various provisions in the Income Tax Act (No 58 of 1962) and other tax acts which allowed National Treasury to access information and funds, which were due to it. Thus the concern about retrospectivity was not so much a legal concern as a practical one. He could see no constitutional problems in any of the provisions of this Bill.

Discussion
The Acting Chairperson observed that the above legal opinion was in concurrence with the approach of National Treasury. Therefore, unless Members had questions, he asked them to entertain the Bill Clause-by Clause.

Mr N Koornhof (COPE) asked Adv Jenkins when the Income Tax Act 1962 would be amended, since the Act specifically stated 10% as the rate of the dividends tax. Or would such amendment come with the Tax Laws Amendment Bills (TLAs) later.

Mr Harris understood Adv Jenkins' point. Clause 6 of this Bill expressed the intention to raise the rate of the dividend tax from 10% to 15%. What about the legal consequences for taxpayers who were complying with the law by submitting at 10% but then retrospectively were meant to have submitted at 15%? What about the interest payments on that differential? There would surely be some interest to be paid.

Adv Jenkins replied that the necessary amendment was contained in Clause 6 of this Bill; as such, amendment was necessary. It could not just remain as an intention. In this he agreed with Mr Koornhof.

Adv Jenkins replied to Mr Harris on the basis of his own experience with the South African Revenue Service (SARS). He was expected to pay some interest on an amount he owed to SARS. However, his explanation that the notice from SARS came quite late sufficed. So there was a provision whereby SARS could use its discretion. He advised SARS, unofficially, that in circumstances as indicated by Mr Harris, it would be inappropriate to charge someone criminally because that person had not paid his or her tax. When the assessment came that a person owed a certain amount, he would hesitate to say that his person should pay interest on that amount. If SARS charged interest in this situation, it would amount to a kind of penalty, as far as he understood income tax. It would be unfair to penalise the person for complying with the law. However, that being said, a person would be liable to pay that additional 5% on the dividends tax, if that was not withheld, because the law would work retrospectively. It was therefore a good place for SARS to exercise its discretion.

Ms Jeannine Bednar-Giyose, National Treasury Director: Financial Sector Regulation and Legislation, said that the necessary amendments to the Income Tax Act 1962 to change the rate of the dividends tax from 10 to 15% were included in Clause 6 of this Bill. The interest payments would be dealt with in accordance with the relevant provisions in the income tax legislation. The overall approach, 'in this Act', in relation to these tax changes, was similar to how it had been conduced in these past many years, where the rates were announced in the budget and people were aware of what the proposed rates were going to be, and planned accordingly. So this was not a substantial change in approach.

Dr M Oriani-Ambrosini (IFP) would ask Members to listen carefully: there was a constitutional prohibition on penalising people for doing things for which, at the time when they did them, were not sanctioned as a crime. He did accept that this was not a criminal aspect. However, people were sanctioned with interest, and not only with interest, but with administrative penalties for non-compliance with tax laws. The language implied that the change was deemed to come into operation. There was no escaping this. The amount of payment which should have been made in terms of the law was the payment that was going to be decided by the law afterwards. Confronted with this, the National Treasury gave the answer that the taxpayer should have known that because it had already told the taxpayer that it was going to change the law retroactively. Therefore people should have paid what was not due in anticipation of what Parliament was expected to do. This kind of thinking made Dr Oriani-Ambrosini anxious. It was for Parliament to say what the rate was going to be.

Dr Oriani-Ambrosini said, secondly, that the notion that the taxpayer should protect him or herself not only from what the law was, but also from what the law could be, and be subject to speculation on the law, was bizarre. 'We cannot have retroactive provisions when we make it worse for the taxpayer.' He had no problems with the rebates, as there taxpayers were being given a tax break. 'But you can't increase it.' Even if the Chairperson wanted it to happen to his family, how could Members impose it on everyone else?

The Acting Chairperson noted Dr Oriani-Ambrosini's point.

Rates & Monetary Amounts & Amendment of Revenue Laws Bill [B10-2012]: further deliberations
The Acting Chairperson asked if Members were content with the first page.

Dr Oriani-Ambrosini, on a point of order, requested voting Clause-by-Clause.

Ms Z Dlamini-Dubazana (ANC) thought that Dr Oriani-Ambrosini was out of order. He should have been recognised by the Acting Chairperson before he, Dr Oriani-Ambrosini, switched on his microphone.

Dr Oriani-Ambrosini, on a point of order, objected that Ms Dlamini-Dubazana had not been recognised.

The Acting Chairperson asked Dr Oriani-Ambrosini if he intended holding the meeting to ransom or if he had any intention of assisting the meeting to conclude its deliberations on the Bill. If Dr Oriani-Ambrosini wanted Clause-by-Clause voting, that was fine, but the Acting Chairperson feared that Dr Oriani-Ambrosini would not have the time to attend all the other committees to which he was assigned by his party.

Clause 1(1)
Members, by their silence, indicated their agreement.

Clause 1(2)
Members, by their silence, indicated their agreement.

Clause 1(3)
Members, by their silence, indicated their agreement.

Clause 1(4)
Members, by their silence, indicated their agreement.

Clause 1(5)
Members, by their silence, indicated their agreement.

Clause 2(1)
Dr Oriani-Ambrosini moved that all the figures be doubled. People were hurting 'out there' and Members must decide whether they were serious about helping them or not. He had enormous problems with the calculations on inflation. There was a huge gap between inflation (about 6%) and the cost of living (about 15%).

The Acting Chairperson asked Members to consider this motion, as apparently, they had 'all day' to deliberate on the Bill.

Ms Dlamini-Dubazana asked why.

Mr Koornhof said that it was easy to oppose and score political points, and asked Adv Jenkins if Members legally could double the amounts.

Adv Jenkins replied that, since 2009, under the Money Bills Amendment Procedure and Related Matters Act (No 9 of 2009), the sequence was that first Parliament considered, rejected, amended or adopted the fiscal framework, which was the balance between revenue and expenditure, and what the percentage of surplus or deficit was. So if Members started changing these amendments but without affecting the fiscal framework then it was in order so long as certain other principles of tax collection, as set out in Section 11 of that Act, were respected. In other words, if as a result of Dr Oriani-Ambrosini's proposal, less revenue would be collected, it would be necessary to ensure that it did not affect the fiscal framework. Perhaps other taxes might have to be increased. The procedure specified in the Money Bills Amendment Procedure and Related Matters Act 2009 required this keyhole alignment with the fiscal framework, the Division of Revenue Bill, appropriations, how much money was to be spent, and the tax laws. With the lack of the Parliamentary Budget Office which would be primarily responsible for making sure that all these figures tallied, he would hesitate to change the figures in this Clause. There might also be the chance that it would be out of line with the Money Bills Amendment Procedure and Related Matters Act 2009.

Mr Harris accepted Adv Jenkins point. However, if this Committee did vote to increase the rebate, as proposed by Dr Oriani-Ambrosini, this would result in a tax loss, as Adv Jenkins had warned. What would happen if this Committee voted to decrease an equivalent amount of expenditure? Did the entire fiscal framework have to remain in balance or did it have to stay intact as originally voted by Parliament.

Mr Mthethwa cautioned against 'gambling' with the tax rebates, otherwise Members might reap unintended consequences. He proposed that there was nothing that Members could do for now to change the rebates.

Ms Bednar-Giyose said that Section 13 of the Money Bills Amendment Procedure and Related Matters Act 2009 also provided that the Minister must be given an opportunity of 14 days to respond to any proposed amendments before the report containing the proposed amendments could be submitted to the National Assembly.

Parliament had already adopted the fiscal framework for this financial year, so that was a fixed matter at this stage. Thus the expenditure side had effectively been settled. The only adjustments could be in the revenue collection process, like the rates and thresholds. This would be quite a complicated matter and would require the kind of analysis that Adv Jenkins had mentioned in order to assess appropriately, as required by the Money Bills Amendment Procedure and Related Matters Act 2009 what the actual implications for the revenue collection were and how other adjustments might offset them. Very careful consideration would be required before the Committee could propose any amendments.

Mr Ross fully understood that it was a very complicated process. It was a bit late to turn the wagon around. However, he did have some sympathy with Dr Oriani-Ambrosini's proposal.

Dr Oriani-Ambrosini thought this a fundamental point worthy of discussion. He sympathised with Adv Jenkins enormously, as Adv Jenkins could not be expected to give a legal opinion without the full information. The National Treasury was right to say that the matter was complicated, but it was part of what Members of Parliament did. What was not emerging was that the matter started with Parliament. The first part of the process was for the Committee to decide on changes. The [fiscal] policy framework was exactly that: it was a framework; so if Members took the first step in the Committee, then it should take the second step of balancing it through giving the Minister the opportunity to respond and by making adjustments. However, the Committee would not be assisted by the delay in establishing the Parliamentary Budget Office. 'We are the beginning and the end of this process.' He thought that his proposal was a good one, as people were hurting. He stood by his proposal.

Adv Jenkins said that if one wanted to decrease tax revenue one had to decrease governmental expenditure. The procedure for that was something that had to be worked out. It was of course the Standing Committee on Appropriations that dealt with expenditures. The establishment of the Parliamentary Budget Office was central to this. An expert from the Development Bank of Southern Africa was now beginning to manage the project of establishing this Budget Office.

Mr Harris sought Adv Jenkins' advice. Dr Oriani-Ambrosini's proposal was before the Committee. Mr Harris understood all the knock-on effects. However, the Committee needed to understand the impact of this proposal. Hypothetically, if the Committee supported Dr Oriani-Ambrosini, the Committee could accept his proposal, as the Committee was considering the Bill Clause-by-Clause, and double these rebates. If this were the case, what would the implications be? Would the Committee be in breach of the Money Bills Amendment Procedure and Related Matters Act 2009?

Ms Dlamini-Dubazana said that Adv Jenkins had highlighted that the proposal required understanding of other provisions. Moreover, as the National Treasury had pointed out, the Minister needed 14 days notice to decide what the proposal would do to the fiscus. The ANC formally rejected Dr Oriani-Ambrosini's proposal.

Ms J Tshabalala (ANC) proposed noting the suggested change for discussion but rejected the idea of voting on it at this stage, in view of Section 13 of the Money Bills Amendment Procedure and Related Matters Act 2009 which required giving the Minister 14 days notice. To do otherwise would hold the processing of this Bill to ransom.

Mr Ross felt much better after hearing Ms Tshabalala's view that Mr Harris and Dr Oriani-Ambrosini's views should be noted. However, he would recommend, subject to Section 13 of the Money Bills Amendment Procedure and Related Matters Act 2009, that the rebates be doubled.

Dr Oriani-Ambrosini had said what he had to say. The Committee had the power to double the rebates, subject to taking a collegiate decision to begin the process.

Dr Luyenge said that the Committee needed to agree that at this stage there was no recommendation to be forwarded to the Minister. What the Committee sought was clarity. The notion of voting on decisions was new in this Committee and had arisen on the arrival of Dr Oriani-Ambrosini, who was completely out of order. The Committee could not be held at ransom on each and every aspect of the Bill. Each Member was representing Parliament, not, in this Committee, political parties. Parliament was relying on this Committee's considerations, so it was not fair for individual Members to try to score political points. To do so was most unhelpful.

Mr Mthethwa’s concern was covered by Dr Luyenge. He wanted to find a better way to say 'noted'. If the IFP wanted its concern noted, it must ask on behalf of the IFP not the Committee, as it was not the Committee as a whole that had a problem, since it agreed unanimously on most of the issues.

Ms Bednar-Giyose noted Members' concerns on these particular thresholds. In terms of Section 11 of the Money Bills Amendment Procedure and Related Matters Act 2009 the Committee would need to consider, in proposing any amendments and including them in its report, how the total amount of revenue that would be raised in light of the amendments proposed would be consistent with the approved fiscal framework and the Division of Revenue Bill. Since those had already been enacted, any amendments would have to fit within those guidelines. The Committee would also have to take account of principles of equity, efficiency, certainty and ease of collection, and consider the impact of the proposed change on the composition of tax revenue including the balance between direct and indirect taxation. It would also have to consider regional and international tax trends, and also consider the impact on development, investment, employment, and economic growth. So the Committee in its report, if it was considering amendments, needed to indicate that it had taken all those factors into consideration and should show how those amendments were consistent and in line with those factors and the implications. This was to ensure that Parliament, in passing any such amendments, was appropriately informed and guided in deliberating on any amendments that might come from the Committee.

Adv Jenkins agreed with Ms Bednar-Giyose in terms of the procedure. However, the Money Bills Amendment Procedure and Related Matters Act 2009 required that any amendments needed to be motivated. For this the Parliamentary Budget Office was required. There was also need for proper engagement with the Standing Committee on Appropriations. This matter applied only to taxpayers. It did not apply to the most vulnerable or to those who were below the level at which a person was required to pay tax. So what the Committee might take away might be taken from the most vulnerable. The constitutional principles that an amendment should be developmental and directed to social justice were repeated in the Money Bills Amendment Procedure and Related Matters Act 2009. So it was not a quick decision that the Committee could take.

The Acting Chairperson said that the Committee needed to improve its capacity to make determinations in good time on such issues. Members' submissions on Clause 2(1) were noted. This Bill was specifically to be fast-tracked, as requested by National Treasury.

Dr Oriani-Ambrosini sought clarity, for the record, on the status of his motion.

Mr Koornhof suggested that the Acting Chairperson rule Dr Oriani-Ambrosini's motion out of order.

The Acting Chairperson did not accept Mr Koornhof's suggestion, and ruled that he had noted Dr Oriani-Ambrosini's motion for later consideration in so far as Dr Oriani-Ambrosini was recommending that the rebates be linked to inflation.

Clause 2(2)
Members, by their silence, indicated their agreement.

Mr Mthethwa, since Adv Jenkins' advice could be construed as having application to all the Clauses, wanted to dispense with Clause-by-Clause voting.

The Acting Chairperson disagreed. Having accepted Dr Oriani-Ambrosini's request for Clause-by-Clause voting, and wanting him, since he had missed many meetings, to have the opportunity to add value to the meeting, the Acting Chairperson preferred to continue with the Clause-by-Clause process.

Clause 3
Members, by their silence, indicated their agreement.

Clause 4(1)
Members, by their silence, indicated their agreement.

Clause 4(2)
Dr Oriani-Ambrosini recorded his objection.

Clause 5
Members, by their silence, indicated their agreement.

Clause 6
Members, by their silence, indicated their agreement.

Clause 7
Members, by their silence, indicated their agreement.

Clause 8(1)
Dr Oriani-Ambrosini wanted the figures doubled.

The Acting Chairperson noted his submission.

Clause 8 (2)
Members, by their silence, indicated their agreement.

Clause 9
Mr Harris recorded the DA's objection to Clause 9, since the increase in the inclusion rate on capital gains tax was a tax on savings in a country which had a chronically low level of savings. He would have wished to delete it, but to do so would have contravened the Money Bills Amendment Procedure and Related Matters Act 2009.

Dr Oriani-Ambrosini thought that the Committee had the power to amend a bill. He formally moved that Clause 9 be deleted.

Mr Koornhof said that Dr Oriani-Ambrosini was out of order. To delete the Clause would be contrary to convention. It could not be done. His party objected to the increases, but, as representatives of parties, Members could not go beyond recording their objections.

Ms Dlamini-Dubazana said that Mr Koornhof had covered her point. Dr Oriani-Ambrosini was out of order.

The Acting Chairperson noted Dr Oriani-Ambrosni's submissions, but the Clause would not be deleted.

Mr Mthethwa agreed. The Committee could not amend the Bill at this stage. He again expressed his preference not to continue Clause-by-Clause.

Clause 10
Members, by their silence, indicated their agreement.

Clause 11
Members, by their silence, indicated their agreement.

Clause 12
Members, by their silence, indicated their agreement.

Clause 13
Members, by their silence, indicated their agreement.

Clause 14
Members, by their silence, indicated their agreement.

Clause 15
Members, by their silence, indicated their agreement.

The Acting Chairperson thought that he could conclude this portion of the meeting at this point.

Dr Oriani-Ambrosini, however, insisted on deliberating on the Appendices.

The Acting Chairperson said that this would entail going back to the Clauses already discussed.

Mr Koornhof proposed putting Appendix 1 and Appendix 2 to the Committee, then proceeding to the Motion of Desirability.

The Acting Chairperson appreciated Mr Koornhof's compromise.

Appendix 1
Dr Oriani-Ambrosini objected to certain portions of Appendix 1 but for the sake of progress, he would not identify them.

Appendix 2
Dr Oriani-Ambrosini, as a connoisseur of wine, objected to this Appendix.

The Acting Chairperson noted Dr Oriani-Ambrosini's objections.

Rates & Monetary Amounts & Amendment of Revenue Laws Bill [B10-2012]: Committee's Report – adoption
The Acting Chairperson read the Motion of Desirability that the Committee reported that it had agreed to the Bill.

He noted that the Committee would have to deal with the issues raised in due course.

Dr Oriani-Ambrosini, on a point of order, asserted the right to tea.

The Acting Chairperson allowed a break.

Credit Ratings Services Bill [B8-2012]: Senior Parliamentary Legal Adviser's opinion
Adv Jenkins advised that in the definition of 'this Act' specific provisions were usually set out, for example, as in the definitions in the Public Finance Management Act (No 1 of 1999). This Bill's definition of 'this Act' was very wide and this was unusual. However, it was not unconstitutional to be so wide.

Section 101 of the Constitution did, implicitly, allow Parliament to delegate its legislative authority to make laws to the Executive, namely, as in the case of Clause 1 of this Bill, to the Minister as well as to the Registrar. Clause 1 said that those rules, decisions, exemptions, and findings that the Registrar made would be considered as law.
 
However, Section 101 of the Constitution, as he pointed out in paragraph 3 of his notes [to be circulated to Members only] required that these instruments must be accessible to the public. There were provisions in most of the instruments referred to in the Bill for them to be published on the website of the Financial Services Board (FSB) or in the Government Gazette. However, there were a few on which the Bill appeared to be silent. However, the Bill's definitions indicated that where the Minister must prescribe regulations, it meant that the Minister must also publish them in the Government Gazette. This was in fact the usual thing that one saw in legislation, when there was a delegation of legislative authority. However, the Bill was somewhat silent on the rules when it came to the powers delegated to the Registrar, although 'prescribed' also meant publication of the rules in the Government Gazette. There was perhaps need to align Clause 24, because there it said that one must 'make' the rules, not 'prescribe' them. This left uncertainty as to whether there was an obligation to publish these particular rules and make them accessible to the public. This was an unintended consequence of the way in which the Bill had been drafted. This was something that must be corrected. He had highlighted other directives that must be published in the Government Gazette. Some of the approvals granted by the Registrar were required to be on the FSB website. Here there was a second unintended consequence of making the definition of 'this Act' so wide. When making legislation there was a presumption that it applied generally and not to particular instances. That presumption was basically taken up in Section 91 of the Constitution which said that everybody must be equal before the law. When one included into law decisions which affected specific individuals, one was effectively saying that this law applied only to that particular person. Here there might be a challenge as to why that person was obtaining an exemption and another person was not. These decisions and exemptions by the Registrar which applied to individual cases should not be subordinate legislation. The Bill itself, correctly, said that all these decisions and exemptions must be taken in terms of the Promotion of Administrative Justice Act (No 3 of 2000). It was an administrative decision taken in terms of legislation that affected someone's rights specifically. There was an interesting piece of jurisprudence around that legislation. So the definition should be limited to those instruments of delegated legislation which applied generally in terms of regulating credit rating service agencies rather than those individual decisions. However, it was still correct to publish individual decisions on the FSB website.


Adv Jenkins advised looking at this Bill to ensure that where there was provision for delegated legislation it was clearly specified that it should be made accessible to the public. Secondly, this Committee needed to decide whether this delegated legislation should be tabled in Parliament so that Parliament could be made aware of this legislative function and exercise its oversight mandate over implementation of legislation, since regulations and delegated or subordinate legislation was part of the implementation of legislation. Individual decisions should not be part of delegated legislation but should remain administrative decisions, while being published, as appropriate, on the FSB website. It was advised to review implicit references to publication to ensure accessibility to the public.

Adv Jenkins would provide, at a later date, opinions on liability (Clause 19) and the issue of limitation on the right to freedom of expression

Mr Koornhof asked for a copy of Adv Jenkins' notes and that Adv Jenkins draft the necessary amendments.

Ms Bednar-Giyose appreciated Adv Jenkins' opinion, which would be of great assistance to National Treasury, in particular on the appropriate manner of publication of subordinate legislation and other types of decisions by regulatory authorities. This was an issue that had not always been explicitly and clearly addressed in National Treasury's legislation. National Treasury acknowledged that it was important to develop a consistent while practical and appropriate approach to publication of subordinate legislation in line with constitutional requirements of transparency and accountability. She thanked the Committee for recommending that the advice be provided. However, she noted that it was the final intention that the rules be published in the Government Gazette. The definition of 'prescribed' referred to this. However, National Treasury would ensure clarity on this point. It would also ensure that notices would be published, when appropriate, on the website, and it would also ensure that, when a notice must be published in the Government Gazette, this was made clear.

Ms Bednar-Giyose said that directives and exemptions were an important area for consideration, as they might have a general application or apply to a specific entity. It was necessary to distinguish the two. It was especially important to ensure that the general types of directives and exemptions were made available publicly.

Ms Bednar-Giyose said that National Treasury generally supported Adv Jenkins' approach. Inclusion of wording at the end of the definition of 'this Act' in so far as this was intended to apply generally could be of assistance particularly in the case of addressing directives and exemptions to ensure that those general directives and exemptions which needed to be brought to the attention of the public would be duly publicised. So National Treasury would support inclusion of such wording in a potential amendment to the definition of 'this Act'.

Certain other aspects which had been included in the definition of 'this Act', such as the requirements, conditions, and other decisions of the Registrar, were clearly more of an administrative nature. Others, for instance, some requirements or conditions, were set out in rules or subordinate legislation, which would be published in the Government Gazette. So National Treasury would not necessarily be opposed to removing the references to those particular terms from the definition of 'this Act'.

Credit Ratings Services Bill [B8-2012]: deferral to third term
Ms Dlamini-Dubazana proposed deferring the Bill, because a number of inclusions, arising from Adv Jenkins' recommendations, needed to be made, and to allow more time for National Treasury to consult and apply its mind to the definition and make changes to the wording to specify clearly that delegated legislation was published appropriately.

Mr Harris conveyed the DA's support for Ms Dlamini-Dubazana's proposal. It would be useful, as Mr Koornhof had suggested, that Adv Jenkins formulated the implications of his proposals so that he actually drafted the proposed changes.

Mr Harris understood that Adv Jenkins had advised deletion of the words in the definition 'approval or exemption granted ... any other decision of the Registrar'. He wanted to ask a question.

The Acting Chairperson interrupted Mr Harris to allow Ms Tshabalala to put a point of order.

Ms Tshabalala asked why Mr Harris wanted a discussion when he supported Ms Dlamini-Dubazana's proposal. She wanted to await a redraft of the Bill before entertaining Mr Harris's question.

Mr Koornhof seconded Ms Dlamini-Dubazana's proposal but wanted more information on 'this credit rating animal' and the need for this legislation.

Dr Oriani-Ambrosini also supported the proposal of Ms Dlamini-Dubazana.

The Acting Chairperson supported Ms Dlamini-Dubazana's proposal. The Committee had deferred its workshop of on the Financial Markets Bill [B12-2012] to the third term. He proposed adding the Credit Ratings Services Bill to this workshop after Adv Jenkins had gone through the Bill comprehensively in consultation with National Treasury and the Financial Services Board. Ms Tshabalala's point of order was in order.

Mr Harris wanted to make his point; it was legitimate. The definition of 'this Act' was broader than anything that he had ever seen before. The proposal from Adv Jenkins went some distance towards meeting his concern. He asked what would happen if the definition of 'this Act' was changed to say that 'this Act' included the regulations. This extremely limited option was not on the table at present.

The Acting Chairperson deferred this question to the workshop.

Dr Oriani-Ambrosini wanted Adv Jenkins' opinion on liability and the issue on limitation of the right to freedom of expression; he also wanted copies of the Dodd-Frank Wall Street Reform and Consumer Protection Act 2010 (H.R.4173) and the European Commission Proposal for a Regulation amending Regulation (EC) No 1060/2009 on credit rating agencies.

The Acting Chairperson agreed, but suggested that National Treasury might provide summary versions of the latter two documents, as they were voluminous, highlighting the sections which in particular guided National Treasury's work.

Ms Bednar-Giyose had forwarded the above documents the previous night to the Committee Secretary, but would consider providing summary versions of the Dodd-Frank Act and the European Commission Proposal.

The Acting Chairperson said that the rapid changes in the financial markets globally were a clear call on Members to be ready for more regulations to ensure that investors were protected and that the development agenda was not derailed by external shocks. He adjourned the meeting.

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