Veterinary and Para-Veterinary Professions Amendment Bill [B25-2012]: Deliberations

Agriculture, Forestry and Fisheries

20 August 2012
Chairperson: Mr M Johnson (ANC)
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Meeting Summary

The Department of Agriculture, Forestry and Fisheries (DAFF), the South African Veterinary Council (SAVC), and the State Law Advisors were present at the meeting, which was held to deliberate on the Veterinary and Para-Veterinary Professions Amendment Bill (the Bill). Because of time constraints and Members’ dissent, the deliberations did not progress beyond the third clause of the Bill. The State Law Advisors commenced taking Members through the Bill, clause by clause. Members had no concerns with the Objects Clause and clause 1. However, they were concerned with the requirements, in clause 2, around the experience of the chairperson and members of the ad hoc appeal committee, firstly questioning why ten years’ legal experience was a requirement for the chairperson, and secondly questioning why the same did not apply to the other members of the committee. The DAFF explained that the other members were not intended to be lawyers, but would be drawn from the veterinary or para veterinary profession and should be specialists in the subject under review. Members were also very concerned with the wording of clause 3, which inserted a new section 20A, dealing with the compulsory community service (CSS) that formed the cornerstone of the Bill. Firstly, they questioned whether the word “may” (which was currently used) or “shall” must be used in relation to the Minister prescribing regulations, questioned what would happen if the South African Veterinary Council was dysfunctional and the Minister could not consult, suggested that a prescribed time period be inserted for comment from that Council, failing which the Minister could proceed to make regulations, and asked why the Bill required graduates to perform CSS, when the conditions for that CSS may not have been made. There was no clear framework on when and how CSS would be implemented. The DAFF said it had used this wording to allow for some flexibility in when and how operational and administrative matters were finalised, and cautioned that it wanted to ensure that the Minister had consulted with the Veterinary Council before making regulations. The DAFF noted that it had not initially included the wording of the new section 20A(2) and (3) in the Bill, but these were inserted to answer the concerns of other stakeholders. Members suggested that the DAFF must re-draft that clause, and also asked for a copy of the draft regulations.

Members noted that a meeting with the Minister was scheduled for 28 August to discuss transformation in the fishing sector, and also suggested that other meetings be arranged where the DAFF could inform the Committee
what measures had been taken to assist the people affected by veld fires, and food security issues in light of the need to find alternative maize imports, following crop failures in America.



Meeting report

Chairperson’s opening remarks
The Chairperson reminded Members of the prayer session around the Marikana mining matter, due to begin at 12:30.

Apologies were tabled from the Minister
of Agriculture, Forestry and Fisheries, Ms Tina Joemat-Pettersson, and from two Members.

The Chairperson
reminded Members that in the previous week, during the public hearings, there had been no fundamental objections to the content of the Veterinary and Para-Veterinary Amendment Bill (the Bill), and the grammar and content now needed to be checked. The Bill, once passed, would be a product of this Committee.

Veterinary and Para-Veterinary Professions Amendment Bill: Deliberations
The Chairperson asked Members if they wished to speak to any alterations in the Bill, following the public submissions.

Ms A Steyn (DA) said that the discussion at the last meeting had been very thorough. She suggested that officials from the Department of Agriculture, Forestry and Fisheries (DAFF) take Members through the Bill word for word, and that Members should raise points for deliberation on each clause.

The Chairperson agreed to take this approach. He asked the officials from DAFF to clarify if there had been any suggested changes to the wording of the Bill since the last meeting.

Dr Botlhe Modisane, Deputy Director General, DAFF, thanked the Committee for the opportunity to present the Bill. He said that all comments and concerns from both members and from the general public had been taken into consideration, and the Bill would sufficiently address these areas of concern. He said there had been no fundamental changes to the draft Bill.

Mr Barry Beukes, Legal Advisor, DAFF, read through the Bill.

Objects
Members raised no objections or concerns with the objects clause of the Bill.

Clause 1: Amendment of section 12 of Act 19 of 1982
Mr Beukes read the first clause. Members raised no objections or concerns. The Chairperson said that at a later stage there would have to be a discussion about the composition of the South African Veterinary Council (SAVC).

Clause 2: Insertion of section 12A in Act 19 of 1982.
Mr Beukes noted that clause 2 dealt with the establishment of ad hoc appeal committees.

Ms Steyn asked how the ad hoc appeal committee would be established. She wanted to know whether people would be notified or invited to submit nominations.

Ms Shikshah Dowlath-Singh, Director: Legal Affairs, SAVC, responded that the SAVC would recommend veterinary professionals whom the SAVC deemed fit to deal with disciplinary matters and inquiry procedures. SAVC would also invite nominations for suitable members for a panel, not for every appeal session. The matter of appeals could not be held back and the body would have to be comprised shortly after the appeal had been received.

The Chairperson was concerned with the wording contained in subclause 2(a), which stipulated that the chairperson of an ad hoc appeal committee should have had knowledge in the practice of law for a cumulative period of at least ten years. He asked whether a candidate with nine years of knowledge would be considered. 

Mr S Abram (ANC) thought it important to specify a time frame, whether it was more or less than ten years. He added that it was important that the chairperson of an ad hoc appeal committee had sufficient experience, and he believed a time frame of ten years sounded reasonable.

Mr P Van Dalen (DA) highlighted the fact that the chairperson would be the head of an appeal committee, and therefore it was vital that the chairperson be ranked higher than the person lodging the appeal. If the chairperson was too young or had too little experience, then s/he would lack the capacity to assert his or her authority.

Mr L Gaehler (UDM) said he was uncomfortable with the ten year time frame. He said a young candidate may still have valid experience, and it amounted to discrimination if such a candidate was disallowed.

Mr B Bhanga (COPE) said he did not have a problem with the intention of including a time frame. He agreed with Mr Gaehler that it would be discriminatory to disallow a candidate solely on the basis of his/her age.

The Chairperson said the intention of including a time frame was noble, but the object of the time frame should be reconsidered. He said that any candidate for the position of chairperson should definitely have sufficient experience, but it was unclear how this experience should be measured, whether, for instance, by the number of years in the practice of law, or by the skill in approaching a particular issue.  

Ms Dowlath-Singh responded that the purpose of inserting this wording was not to exclude any particular person, but to set a yardstick. It was important that the chairperson had sufficient experience, particularly in the appeal process. The chairperson should not be new to the profession of law, to avoid any hindrance to the appeal process. Depending on the number of candidates, the SAVC would also consider the type of experience that each applicant had accumulated, so the appointment of a chairperson would not be solely based on years of experience.

Mr Bhanga said that if the SAVC was intending to consider factors other than the years of experience, then those factors should be included in the Bill, to avoid SAVC appointing a member for reasons other than those stipulated in the legislation.

Mr Abram said the ad hoc appeal committee could not consist of anyone who did not have the relevant knowledge and sufficient skills to adjudicate a matter that was specific to a particular profession. He suggested that no changes be made to the current wording, which were sufficient safeguard against the appointment of an incapable appeal committee.

The Chairperson asked why the appeal committees would be ad hoc.

Mr Monwabisi Nguqu, Senior State Law Adviser, Office of the Chief State Law Advisor, said the procedure for appointing the appeal committee would be published by the Minister in the form of regulations. The Portfolio Committee would be allowed to review the regulations. The appeal committee was considered “ad hoc” because each committee dealt only with one appeal against a particular instance of misconduct. There was no guarantee that appeals would be lodged on a regular basis, and for this reason, to avoid unnecessary cost, the appeal committee was not being established as a permanent body. 

Dr Modisane said that the person who lodged the appeal would also be consulted in the process of appointing an ad hoc appeal committee.   

Mr Bhanga was concerned with the wording in the new subsection 2(b). He said that the other two persons serving on the ad hoc appeal committee should be regulated in the same way as the chairperson, and they should be required to have the same number of years experience as the chairperson, to avoid a newly qualified law graduate being appointed.

Mr Beukes said the chairperson of the ad hoc appeal committee would be in charge of organising the hearing and ensuring that due process was followed. The other two members of the appeal committee would be drawn from the veterinary or para-veterinary profession, and they would have to act as witnesses and explain why the individual had been found guilty of misconduct.

Dr Modisane added that the ad hoc appeal committee would deal with highly specialised procedures. In addition to the experience that was required of the chairperson, the other members of the appeal committee should be able to make fair judgment calls. If the other members of the appeal committee lacked the ability to judge properly, then it would jeopardise the outcome of the appeal process.  

Dr Rebone Moerane, President, SAVC, said that the new subsection 2(b) applied to both veterinary professionals and para-veterinary professionals. If the charge of misconduct and the subsequent appeal had to do with wildlife, then the members of the appeal committee should be recognised, registered specialists in wildlife. He cautioned that if the wording of the new subsection 2(a) was changed to state that members of the appeal committee were appointed on the basis of years of experience, then there was a risk that they may not have the specialist knowledge that was required for a particular appeals case.
 
Ms A De Vos, Vice-President, SAVC, added that members of the appeal committee were not necessarily required to be specialists, but that the yardstick required them to be reasonable professionals. When a veterinary professional was brought before a tribunal for malpractice or negligence, the members of the tribunal or appeal committee should be peers of the individual who had been charged.

Clause 3: Insertion of section 20A in Act 19 of 1982.
Mr Beukes read the third clause of the Bill, which dealt with the compulsory community service (CCS) that would be required of any newly registered veterinary or para-veterinary professional. The clause also included the conditions of CCS, as prescribed by the Minister.

Mr Abram said that he understood clause 3 to be a framework for CCS. He was concerned with the new subsection (2), which stated that “the Minister may…prescribe the performance of CCS”. If the overall objective was to implement CCS, then the wording should read “the Minister shall… prescribe”. He asked whether there was any compelling legal reason that this was worded as “may” instead of “shall”.

Ms Steyn was also concerned with the word “may” and said that if this remained, the Minister could decide not to prescribe the conditions of the performance of CCS. She asked if DAFF had arranged a contingency plan in case the Minister failed to prescribe the conditions of CCS. She said that her understanding of the clause was that a prescription mechanism should be in place, and that only in exceptional circumstances may the Minister prescribe otherwise.
 
The Chairperson wanted to know what would happen if a student was unable to perform CCS, due to circumstances beyond his or her control. He asked whether the conditions of CCS would be prescribed in regulations, and, if so, when the regulations would be put in place. 

Mr Nguqu said that the word “shall” did not necessarily mean that something was imperative or mandatory, as there had to be careful consideration of the context of the statutory provision. He said that if “may” was replaced with “shall”, students would only be obliged to perform CCS once the Minister had prescribed the conditions of CCS. The intention was that students would be compelled to perform CCS even if the Minister did not prescribe the conditions of CCS.

Mr Abram countered that it would be unfair to expect students to perform CCS if there was no framework that outlined how CCS should be executed. He urged that the new subsection (2) be amended to compel the Minister to prescribe the way by which persons should register for CCS, and what the conditions of their employment would be. If the Bill was passed in its current form, veterinary students would not have a sense of security, and they might decide to leave the country.  

Ms M Pilusa-Mosoane (ANC) agreed that the word “may” did not carry enough weight, and implied that the Minister would be allowed to choose whether or not to prescribe the conditions of CCS.

Mr Bhanga agreed with previous comment, saying it made no sense to compel students to perform CCS, if no conditions were laid out. He reminded DAFF hat the students should be the main priority.

The Chairperson said that at a later stage there would have to be a discussion about the regulations of the Bill.  

Dr Tembile Songabe, Director: Veterinary Public Health, DAFF, said that DAFF had been in close consultation with the Department of Health (DOH) to get advice on how to legislate and implement CCS. These particular clauses around CCS were taken directly from the National Health Act (NHA). The NHA stated that all newly registered medical professionals were required to perform CCS in a prescribed manner. There were various medical professions registered under the NHA, and each profession had different terms and conditions for CCS. This Bill also allowed for the details surrounding the manner in which students should perform CCS to depend on whether the individual was involved in a veterinary or para-veterinary profession. The CCS conditions in the Bill would be supplemented by regulations, which would become clear once the operational infrastructure and resources had been finalised. He said that if the word “may” was changed to “shall”, then it would imply that all veterinary and para-veterinary professionals should immediately perform CCS. This was not the intention, as DAFF wanted to ensure operational flexibility in the process of regulating CCS.  

Dr Boitshoko Ntshabele, Director: Food Safety & Quality Assurance, DAFF, cautioned that a change of wording from “may” to “shall” would mean that as soon as the Act was passed, the entire group of veterinary and para-veterinary students who qualified in 2013 would be obliged to proceed immediately with CCS. This would leave DAFF with too little flexibility in managing the administration around CCS. The use of “may” acted as a safeguard against unintended consequences that may arise due to resource constraints. If the Minister, in some or other instance, decided that the implementation of CCS should be delayed or halted altogether, the word “may” would allow for this.

Mr Abram said that page 12 of the Bill explicitly stated that funding for the implementation of CCS had been included in DAFF’s Medium-Term Expenditure Framework. He said that unless the Bill was incorrect, the issue of resource constraints could no longer be used as an excuse.

Mr Beukes said that clause 3, in lines 35-36, set out that students were required to perform CCS “in the prescribed manner”. He said that if there were no regulations, there would be no prescribed manner, and students would no longer be legally obliged to perform CCS.

Ms N Phaliso (ANC) said it was unfair that the Bill made it compulsory for students to perform CCS, but did not compel the Minister to implement CCS. She was worried about the planning and time frame of implementing CCS; it seemed that DAFF was still unsure of the resources that would be available.

Mr Gaehler acknowledged what was said in lines 35 and 36, but pointed out that in terms of lines 37-39,  graduates would only be entitled to practise after completion of CCS, which implied that they must perform and complete it.

Mr Abram said that the Bill should contain clearer time frames for the implementation of CCS. He questioned the necessity of the new subsection (3), which stated that the Minister may prescribe the circumstances under which a student may be exempted from performing CCS. He said that if a student had, for example, severe epilepsy, then there were already other laws in place to cater for this. He noted that persons with a severe disability should be exempt. He did not support the way in which the Bill was currently drafted.

Mr Bhanga said that in future there would be different people working for DAFF, the SAVC, and the state law advisors, who might interpret this legislation differently, and for that reason, the wording must be quite clear.

Ms Lynette Havinga, Acting Registrar, SAVC, said that the SAVC was the watchdog of all veterinary professions. SAVC would advise the Minister on when and how to implement CCS, taking into account the specific circumstances or the condition of facilities at a particular time. The Minister would have discretion, but there was a requirement for prior consultation with the SAVC.

Dr Modisane said that DAFF’s financial framework had not made provision for the implementation of CCS for para-veterinary professionals. He assured members that the funding plan, as contained in the Medium-Term Expenditure Framework, certainly included the implementation of CCS for veterinary professionals. DAFF could consider removing any mention of para-veterinary professionals from the proposed new section 20A, and then, once the funding had been finalised, return to Parliament to make the necessary amendments for inclusion of para-veterinary professionals.

Dr Modisane returned to the point of “may” and “shall” and cautioned that if the latter was used, the Minister might abuse his/her discretion and prescribe the conditions of CCS without consulting the SAVC.

Mr Nguqu pointed to the possibility that the SAVC may, in the future, become dysfunctional, meaning that the Minister could not convene a meeting with it. If the word “may” remained, then the Minister would be able to exercise discretion not to consult with SAVC.

Mr Abram suggested that, to cater for this, it would make more sense to state, elsewhere in the Bill, that the SAVC had to respond to the Minister’s proposals within a certain time frame, failing which the Minister would be allowed to proceed without consulting the SAVC. He stressed that this piece of legislation should, first and foremost, serve the student community who planned to practise as veterinarians in South Africa.

Mr Nguqu said that foreign veterinary professionals with years of experience in their own countries might want to practice in South Africa. Whilst they would be registering for the first time in South Africa, under this Act, it would be absurd to expect them to also perform CCS. That was the reason behind the new section 20A(3), as it allowed the Minister to exempt foreigners with sufficient veterinary experience from performing CCS.  

Mr Bhanga said he understood that the Minister should be able to exercise discretion. He was still worried that, if the Minister failed to prescribe the conditions by regulations, students would not have clarity on the conditions under which they would be required by law to perform CCS.

Dr Ntshabele said that students would be consulted before any regulations were finalised.  ,

The Chairperson was unsure of what Mr Nguqu was saying, and asked whether the substitution of “may” would impact upon whether or not the Minister consulted with the SAVC before making regulations.

Ms Dowlath-Singh said that the Minister would consult with the SAVC irrespective of whether “may”, “shall” or “must” was used. The first mention of “shall” in subsection (1) referred to the manner in which CCS was prescribed. CCS would be performed only as prescribed in the regulations. The second “shall” in subsection (1) referred to the registering of the student once s/he had completed CCS.

She added that the Minister would be able to prescribe conditions other than those mentioned in subsection (2)(a), (b), (c) and (d). If “may” was replaced with “shall”, then the Minister would be compelled to constantly think out of the box, whilst the use of “may” allowed the Minister some discretion depending on the circumstances at the particular time. She understood Members’ concerns, but said that the change of “may” to “shall” would not achieve what they thought it would.

Dr Modisane said that Members had vast experience in the forming of legislation, and proposed, as a way forward, that DAFF could consider a change in wording, unless this was to hinder the Department’s preparation for implementation of the Bill. It was also possible to consider removing subsections (2) and (3) altogether, and then merely wait for regulations. He was not sure, however, if his colleagues would agree.

Dr Songabe said that, in the initial draft, the new section 20A(2) and (3) were not included. DAFF had thought subsection (1) was sufficient to address the conditions of CCS, by merely mentioning “in the prescribed manner” in line 36. However, stakeholders had insisted that the “prescribed manner” be elaborated on, which then gave rise to the new (2) and (3), and whilst DAFF would not have a problem with the removal of these new subsections, the stakeholders would not agree.

Mr Bhanga said that Members of Parliament had the responsibility to ensure that members of the public were comfortable with legislation. He dismissed Dr Modisane’s proposal to leave out (2) and (3), as he thought they added value, but suggested that DAFF reconsider the phrasing of the whole of clause 3, to provide the Minister with a proper mechanism to implement CCS.

Ms Steyn understood and supported the intentions of clause 3 of the Bill, but did not like the wording, particularly the use of the word “may” in (2). She asked DAFF to consider placing the word elsewhere in the clause.

Mr Abram asked DAFF to provide the Committee with copies of the inputs that were submitted by students during consultations. He asked DAFF to provide the Committee with the draft regulations, pointing out that the regulations were subservient to the Act.  He urged that the new legislation should strike a balance between achieving the overall aim of government and satisfying the needs of the people. He believed that the State Law Advisors should propose changes that answered the concerns raised by members. 

The Chairperson said the Bill was still a work in progress, and thanked Dr Modisane and other departmental officials for their time and effort. A follow-up meeting would be scheduled as soon as possible. He suggested that any important concerns or questions be put into writing.

Other business

The Chairperson noted that the Speaker had notified the Committee of the need to submit nominations for two vacancies in the National Agricultural Marketing Council (NAMC) by 31 August, and the Committee would discuss the matter in the following week.

The Chairperson reminded Members of the meeting with the Minister on 28 August to discuss the public hearings on the transformation of the fishing sector, which had taken place in June 2011. There were plans to organise monthly or bi-monthly briefing sessions with the Minister. He urged members to come prepared with specific questions or queries that they wished to bring to the attention of the Minister.
 
Mr Abram noted the disastrous veld fires that had recently caused damage across the country, and said that DAFF needed to tell Members what measures had been taken to assist the people affected. He also noted that, owing to the drought in the USA, South Africans had had to find alternative maize imports, causing a sharp rise in the price of food in general. He said the Committee needed to consult urgently with DAFF to discuss mitigating plans.

The Chairperson said the issue of food security in the country was important, and he agreed that a dedicated session between the Committee and DAFF be held to address the issue.

Mr Van Dalen reminded the Chairperson of his remarks at a recent press conference around the dispute over the fishing licenses and quotas of Meermin Fisheries. He asked when the Committee would convene to discuss this matter.

Mr Bhanga said that the Minister should tell the Committee about the true state of the Department, so that Members would not have to jump to conclusions based on media statements. If DAFF planned to transform the fisheries sector, it must be established whether the Department had the right vehicle to do so.

Mr Van Dalen asked whether he would be allowed, at the meeting on 28 August, to ask the Minister about the suspension of Sue Middleton.

The Chairperson said the meeting on 28 August was intended to deal specifically with the transformation of the fisheries sector. Any other issues should be communicated via the Committee Secretariat.

The meeting was adjourned.

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