Referral of Intellectual Property Laws Amendment Bill: briefing by Constitutional and Legal Service Office of Parliament on a second opinion

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Trade and Industry

29 January 2013
Chairperson: Ms J Fubbs (ANC)
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Meeting Summary

The Committee received a briefing from the Parliamentary Legal Advisers on the referral of the Intellectual Property Laws Amendment Bill and Section 18(1) of the Traditional Leadership and Governance Framework Act.

The briefing focused on the opinion which was received by Parliament looking at three main areas which included Section 18(1) of the Traditional Leadership and Governance Framework Act; the Classification of the Intellectual Property Laws Amendment Bill; and public involvement. The final part of the presentation was going to comprise of the recommendations of the Parliamentary Legal Advisers.

The Constitutional and Legal Services Office of Parliament recommended that the Joint Tagging Mechanism needed to be used by the Committee if the Intellectual Property Laws Amendment Bill had to be reclassified as a Section 76 Bill. It further recommended that the decision to pass the Bill as a Section 75 Bill should be rescinded. It held that the work done by the Portfolio Committee on Trade and Industry should be retained.

In the discussions that followed, Members asked what went wrong with the tagging process and what the financial consequences of redoing the process were. Members commented that the implications of whatever decision was taken was going to be very important.

The Chairperson suggested that Committee members reflect on the matter and a decision would be taken in a meeting still to be scheduled,. As Chairperson, she was would consult other legal opinion on the matter. Members could also do their own consultation as the matter on the table was not an ordinary one and was going to have serious consequences.

Meeting report

Introduction by the Chairperson
In November 2012, the Committee had received briefings by the Parliamentary Legal Advisers on the return of the Intellectual Property Laws Amendment Bill to Parliament. It was agreed that the Committee was only going to deal with it in 2013.

Referral of Intellectual Property Laws Amendment Bill by the President: Parliamentary Opinion
Adv Charmaine van der Merwe, Parliamentary Law Adviser, presented the recommendations of the Parliamentary Law Advisers on the referral of the Intellectual Property Laws Amendment Bill (IPLAB) back to Parliament by the President.

The Committee had already received a briefing on the

opinion which was received by the President so she was going to present only the opinion which was received by Parliament, looking at three main areas:
- Section 18(1) of the Traditional Leadership and Governance Framework Act;
- Classification of the IPLAB and
- Public involvement.
The final part of the presentation would be the recommendations of the Parliamentary Legal Advisers.

The President had received two objections. The first was from Dr M Oriani-Ambrosini and the second was from the South African Music Rights Organisation (SAMRO). The objections were that:

- The Bill was a section 77 bill (Money bill)
- The Bill should have been referred to the National House of Traditional Leaders in terms of section 18(1) of the Traditional Leadership and Governance Framework Act, 2003 (Act 41 of 2003)
- There was inadequate facilitation of public involvement.


The Presidency obtained an opinion from
Gilbert Marcus which stated that the Bill was not a Section 77 Bill. The Bill should have been referred to the National House of Traditional Leaders. It was a Section 76 Bill as it dealt with traditional leadership and cultural matters.

The Parliamentary Legal Office had sought further legal opinion on the three matters:

Section 18(1) Traditional Leadership and Governance Framework Act, 2003 (TLGFA)
This opinion stated that “traditional work”, “traditional terms and expressions” and “traditional design”  constituted “customs”. The definition of “indigenous community” (as defined in IPLAB) was wide enough to include “traditional communities” (as defined in the TLGFA). The object of section 18(1) was achieved as there was substantial compliance with section 18(1). The opinion however stated that caution was necessary thus a referral to the National House of Traditional Leaders could be made in any event as the referral was going to ensure legislative compliance.

The
Constitutional and Legal Services Office (CLSO) comment was that it was a question of interpretation whether “traditional work”, “traditional terms and expressions” and “traditional design” are “customs”.

Classification of the IPLAB
The opinion interpreted the phrase “cultural matters” in Schedule 4 to include literature, music, painting, sculpture and theatre.
IPLAB affects these aspects and thus Cultural Matters.

 This interpretation in the Counsel's opinion was very broad and did not consider culture simply as a way of life.

The CLSO commented that it was a question of interpretation of the test of “substantially affects”



Sufficient public involvement
The opinion stated that where a parliamentary committee redrafted or amended a Bill, the new provisions in the redrafted or amended Bill did not have to be resubmitted for public consultation (this was not reasonable). The Committee was seen to have complied as it did not have to resubmit a redrafted Bill for public participation. On the matter of in
sufficient public participation in the NCOP, the opinion stated that the NCOP rules dealing with section 75 does not require public participation. The Constitution requires facilitation of public participation. Therefore, Part 4 of the NCOP rules needs to be reconsidered to address this constitutional requirement.

The CLSO agrees, saying the
Section 76 procedure would remedy this automatically

Recommendation of the Parliamentary Legal Advisers
The Joint Tagging Mechanism needed to be used by the Committee if the Bill had to be reclassified as a Section 76 Bill. Two possibilities were considered:  whether the JTM confirmed classification as a Section 76 or as a Section 75 Bill.

If it were classified as a Section 76 Bill by the JTM, Parliament was to confer with the Select Committee on facilitation of public participation.

 

The decision to pass the Bill as a Section 75 Bill would be rescinded. However, the work done by the Portfolio Committee on Trade and Industry would be retained. Also it would be deemed to have substantially complied with the TLGFA (by referral to the National House of Traditional Leaders).



Adv Johan Strydom (DTI legal adviser) commented that according to this opinion, if even just one clause dealt with a functional area in Schedule 4, the Bill had to be tagged as a Section 76 Bill. If the recommendation and principle from the Parliamentary Legal Advisers was considered, very few Bills introduced by the Department of Trade and Industry would be tagged as Section 75 Bills. Before the Committee considered the recommendation from the Legal Advisers, it was important for it to reflect on the implication of such a principle on the DTI. The Committee was not obliged to uphold the opinions it received.

Discussion
The Chairperson said that trade was a concurrent national and provincial competence yet for many years it has not been dealt with as a concurrent competence. There was a difference between trade and economic affairs. What was the implication on the national sphere’s competence of every province dealing with its own trade?

Adv Strydom replied that if a bill dealt with any concurrent matter, it had to be tagged as a Section 76 Bill. The way out was to look at jurisprudence as to what was the connotation to be given to trade. Trade had a broad meaning. It was important for the Committee to consider the narrow norm to be applied in respect of Bills introduced by the DTI.

Mr B Radebe (ANC) said that he was happy that the opinion by the Parliamentary Legal Advisers noted that the work which was done by the Committee was splendid and not flawed. The process could not be rushed as there was the risk that rushing it, could end up in the setting of a precedent which could haunt even the next Parliament. If there was the need for a constitutional amendment, the Committee could propose that. The Committee could also seek further legal and constitutional opinion on the matter.

Mr G McIntosch (COPE) said that it was important for the Committee to explore further avenues relating to constitutional advice.

Mr W James (DA) asked what went wrong with the tagging and what the financial consequences of redoing the process were.

The Chairperson said that because tagging had been done in a similar manner on previous pieces of legislation, it did not necessarily make it wrong or right.

Adv van der Merwe said that the Constitutional Court considered trade to be buying and selling. It did not mean commerce. Only legislation was affected by this process and not the other work of the DTI.
She said that she had very bad news for Adv Strydom because the existence of one provision substantially affecting an area in Schedule 4 of the Constitution was sufficient to render the whole Bill as a Section 76 Bill. This was set down in the case of Tongoane v Minister of Agriculture. The JTM had arranged for a workshop so that clarity could be obtained on the matter as there were too many opinions as to how and what related to tagging.

Adv Strydom replied that there was a good working relationship between himself and Adv van der Merwe but they were not always going to agree. He said that nobody could convince him that the legislative route of Section 76 was not much more onerous to the DTI than the legislative route of Section 75. If the process was to be more cumbersome, it was not for an individual to say. However, it was not good for the legislative process in Parliament to give so much room for divergent opinion on matters which could be so simple. That was not a good scenario. He gave an example of the BEE Bill which stated in its last paragraph that it was a Section 75 Bill but with the application of the principle recommended by Adv. van der Merwe, it was one day going to be considered as a Section 76 Bill.  

The Chairperson said that there could be as many opinions as there could be people. She was however concerned and was willing to hear other views and opinions.

Mr Gcwabaza (ANC) said that he was worried by what Adv van der Merwe said about the inability to change a law many years after it had been passed. She had wrongly stated facts. Parliament could not prevent a member from initiating the amendment or repeal of a law.

The Chairperson said that it was important for the Committee to take a position which would map the way forward. The issue of a constitutional amendment was a delicate one as South Africa was a young democracy. However, Parliament could not just wave off such proposals. The matter at hand was raising far more implications than it appeared to. The Committee was well aware that the counsels who had given opinions on the matter were highly reputable counsel. Members were not put in Parliament as legal people but as representatives of the people.

The Chairperson suggested that committee members should take the opportunity to reflect on the matter.  A decision would be taken on the matter in a meeting still to be scheduled. As Chairperson of the Committee, she was going to consult other legal opinion on the matter. Members could also do their own consultation as the matter on the table was not an ordinary one and was going to have serious consequences.

The Committee considered its Strategic Plan for 2013 – 2014. It agreed that, in addition to its usual meetings, it was going to consider additional meetings on Thursdays and Fridays so that the strategic plan could be implemented in time.

The meeting was adjourned. 

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