Intellectual Property Laws Amendment Bill: Committee report

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Trade and Industry

04 March 2013
Chairperson: Ms J Fubbs (ANC)
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Meeting Summary

The Committee met to adopt its draft Report on the Intellectual Property Laws Amendment Bill (the Bill). It was noted that after the Bill had been adopted, as a Bill in terms of section 75 of the Constitution, and sent to the President, he had received objections to the Bill, on the questions of whether it was a money bill, the tagging, and whether this Committee, in terms of section 18(1) of the Traditional Leadership Governance and Framework Act (TLGFA) should have, and actually did refer the Bill to the National House of Traditional Leaders (NHTL) for its consideration.

The Committee expressed the view, and this was stated in the draft Report, that it was not its function to deal with the tagging. The Joint Tagging Mechanism had again considered the matter and had now agreed with the President that this was a section 76 Bill as it substantially affected “traditional leadership” and “cultural matters”, as listed under Schedule 4 of the Constitution. An opinion had been obtained from two Senior Counsel on compliance with section 18(1) of the TLGFA, who concluded that there was “substantial compliance” with that section. This was challenged by an IFP Member, since, firstly, the letter addressed to the NHTL came from the Committee, and not from the Secretary to Parliament, and secondly on the basis that the call for “comment” did not indicate that all traditional leaders should meet as the collective NHTL to debate the issues. The letter had been written by the Chairperson, because at that stage the Committee did not believe that the NHTL had to debate the matter, but thought that input would be useful. In fact, input had been given both in writing and by way of an oral submission, by a delegation of more than one person. The majority of the Committee believed that “substantial compliance” with the intention of the Act, even if it was not strictly in terms of that section, was obtained. The IFP Member suggested that the Report should not be adopted until the matter had been officially referred in line with section 18(1) to the NHTL. Two ANC Members suggested stronger wording for the report, to reflect that the Committee concurred with the views of the President that the Bill was not a Money Bill, but suggested also that paragraph 5 must be worded to reflect the Committee’s views more firmly. The IFP and DA Members wished to have their minority view on this point recorded, and the Committee agreed to incorporate it into the Report.

However, there was also another point raised, which the Chairperson ruled should not be included in this Report. A DA Member had, that morning, submitted a Private Member’s Bill to the Office of the Speaker, which proposed a sui generis
approach to the commercialisation of indigenous knowledge. The IFP Member believed that this too should be mentioned, since it went to the essence of earlier objections to the current Bill. However, the Chairperson ruled that not only had the Private Member’s Bill not yet been sent to the Committee, it was also irrelevant to the current matter, namely to answer the President’s concerns and recommend that the House rescind its earlier rulings (in view of the referral as a section 76 Bill to the NCOP. The draft Report was then adopted, with amendments, by the majority of members, with the DA and IFP noting their objections.

Meeting report

Introductory remarks
The Chairperson said that there were two matters before the Committee; the meeting of the subcommittee, which was noted on the agenda, and a letter that had been sent to this Committee by the Speaker of the National Assembly, in regard to the tagging of the Intellectual Property Laws Amendment Bill (the Bill). Although this Bill had been passed by both houses, the President had subsequently referred it back to Parliament, without signing it, in view of some concerns raised, particularly on the tagging.

Mr Andre Hermans, Committee Secretary, stated that in terms of Joint Rule 203 this Committee was required to confer with the NCOP Select Committee, on matters of procedure that had also involved the NCOP. This Committee had communicated with the NCOP and Select Committee requesting a joint meeting, although it was also possible that if other commitments prevented that, the NCOP Committee could respond in writing. The Committee had received advice that if there had been no correspondence received by the time set for this meeting, this Committee could proceed to adopt its report.

Dr M Oriani-Ambrosini (IFP) asked for clarification on the Rule, saying that everything would, in practice, “concern the Council” (NCOP) because every piece of legislation passed through it at some stage. That seemed to him to indicate that the matter could not be handled by this NA Committee, which he felt was not the case. The President had referred the Bill back to his Committee, questioning if the Committee should not have acted in terms of section 18 of the Traditional Leadership and Governance Framework Act of 2003 (TLGFA) to seek the opinion of the National House of Traditional Leaders (NHTL). He did not think that any more had to be done than to deliver the Bill to the NHTL and give a deadline for comment. After that date, the NA needed to debate the matter and only then send it to the NCOP.

The Chairperson thanked Dr Oriani-Ambrosini for this point of view. She recalled that the Committee had sent a letter to the Speaker after its last deliberation on the matter. It was indicated that the Committee had accepted a particular position, referred the Bill back and indicated that the Committee did not have the authority to tag. She noted, for the record that the Committee had received a letter, dated 19 September 2012, noting that the President was sending the Bill back to the NA for reconsideration in terms of section 79(1) of the Constitution. The President was of the view that the Bill was incorrectly tagged as a section 75 Bill, and was also concerned that the Bill was not referred to the NHTL for comment as required by section 18(1) of the TLGFA.

The Joint Tagging Mechanism (JTM) had considered the matter. The Speaker of the National Assembly and the Chairperson of the National Council of Provinces were in agreement with the President that the Bill was a section 76 Bill, as it substantially affected certain items listed in Schedule 4 to the Constitution, such as “traditional leadership” and “cultural matters”. For that reason, the JTM had held the view that the Bill should have been dealt with in terms of section 76 of the Constitution.

With regard to the referral of the Bill to the NHTL, the Speaker of the National Assembly and the Chairperson of the NCOP were of the view that the Portfolio Committee on Trade and Industry had actively solicited the views of the NHTL when processing the Bill, so that there had actually been substantial compliance with section 18(1) of the TLGFA. For that reasons they did not believe there was a need to re-submit the Bill to the NHTL for further comment.

The Chairperson called upon Adv Charmaine van der Merwe, Parliamentary Legal Advisor supporting this Committee, for further comment.

Dr Oriani-Ambrosini interjected to say that he thought Members should firstly be given the chance to comment.

He reiterated his earlier remark that he thought the onus was now on this Committee, that it did not have to wait for the NCOP. The September letter made it clear that the President had recommitted the Bill to the National Assembly, and only when this Portfolio Committee had completed its task, would the Bill be required to go to the NCOP.

Dr Oriani-Ambrosini thought that the third paragraph of the letter concerning referral of the Bill to the NHTL was incorrect, and there was no such thing, in law, as “substantial compliance” with a procedural step. If something had to be submitted to an organ of state, it simply had to go to that organ of state. The fact that the Traditional Leaders had addressed the Committee was completely different to having the Bill officially tabled before the NHTL. The solicitation of inputs from leaders and communities, and this Committee’s subsequent deliberation on those inputs, was quite difference from the NHTL process. He thought that whoever had given advice that the procedure had been “substantially complied with” was wrong. He reminded the Committee that he had previously raised this point, and had questioned the danger that this Bill might be ultimately declared as unconstitutional if the procedure was not followed. He thought that this Committee should get an opinion from a constitutional expert or Senior Council on that point, to prevent any further mistakes. The NHTL had originally indicated that it wanted to deliberate on the Bill. This Committee could not “pull rank” or have any policy to prevent that.

Mr B Radebe (ANC) said the letter had placed the Committee in a precarious situation, as it was made clear that the JTM had agreed with the President. He reiterated that the tagging of the Bill was not the responsibility of this Committee, and was disappointed at the failure of the JTM to correctly execute its duties. The only issue that he thought remained was for this Committee to refer the Bill to the NCOP, as the Committee had executed its mandate. The main issue, to his mind, was the tagging. He recommended that this Committee should refer the matter back to the NCOP, to allow for re-tagging, so that then the procedures under section 76 would be followed. He thought there had been adequate consultation with the NHTL, through this Committee soliciting input. If the NHTL wished to make further engagement, that avenue was available to it during the NCOP processes.

Adv van der Merwe said she would speak to both comments at the same time. She prefaced her answer with some background information. Initially, the Speaker of the National Assembly had requested a legal opinion from two senior constitutional and administrative law experts. Two Counsel had stated, in a joint opinion, that the object of section 18(1) of the TLGF had been achieved, so there was “substantial compliance” and there was no need to refer the Bill to the NHTL. They had also addressed the tagging and gave the opinion that it was a section 76 Bill. The JTM’s response was thus in line with the Senior Counsels’ opinion. This opinion was shared with the Committee after the Speaker’s office had signed off on it. The National Assembly Table Staff then advised the Committee that it was not required to make any final decision on the tagging or referral of the Bill, as that was indeed a function of the JTM. The JTM, when approached by the Committee, again gave an opinion in line with the Senior Counsels’ earlier written opinion. The Committee then was required, by the Joint Rules, to confer with the NCOP.

Adv van der Merwe, the Secretary of the Staff of the NA Table and the Bills Office had discussed the matter on 1 March to ensure that they had a common understanding of the position whether this Committee would have complied with the Rule, if it had sent out an invitation to the Select Committee, but the latter was unable to attend. There was precedent to stated that although a full meeting was preferred, a sharing of opinion would suffice where this could not happen. This Committee now needed to file its report with the NA Table. The Table Staff had noted that although there would be a request to the House that the final decision be rescinded, for procedural reasons, the work done on the Bill by this Committee would still be recognised.

The Chairperson noted that there were no other questions or remarks from the Members. She then reiterated that the purpose of this meeting was to find a way forward. The decision taken in a previous meeting was to await the re-tagging, and she did not want to go into that again. The Report from the Committee had already addressed the question around the NHTL, in point number 5, and she stressed that it was now up to the House to deal with the matter. Although the report had not yet been formally adopted, she wanted Members to be fully aware of the wording and she read it out, noting that it stated quite specifically that the Committee believed that section 18(1) of the Traditional Leadership and Governance Framework Act, 2003, had been substantially complied with, and that it was not necessary to refer the Bill to the National House of Traditional Leaders (NHTL) as per the procedure stipulated in section 18(1) of the TLGF Act. The Committee therefore rejected the President’s reservation that section 18(1) of the TLGF was not complied with. However, if the House, notwithstanding the Committee’s opinion, preferred that the Bill should be referred to the NHTL, then it should do so.

Dr Oriani-Ambrosini asked who was getting the legal opinions. He thought it extremely surprising that legal opinions were supposedly given to Parliament yet Members did not see them.

After it was pointed out that the opinion had been circulated, he apologised and said that he had not seen it. This notwithstanding, he maintained his position that the legal advice given was wrong, on the basis that the Committee had not, to the best of his recollection, met with the NHTL. The NHTL was a collegiate body in which the smallest clan had a right to voice its position. The whole of that collegiate body had not come together to deliberate the Bill, and so there remained the possibility that there may have been a difference of opinion within the body. He was concerned that a constitutional procedural step was being skipped over, and reiterated his view that the notion of “substantial compliance” with regard to a constitutional procedural step was unacceptable.

During the deliberations on the Bill, the DA, IFP and COPE had all insisted upon referral to the NHTL, to place before this House, for consideration, the possibility of a sui generis Bill. He reiterated that there had been no deliberation by the NHTL on that point. This Committee was essentially a “board” of the National Assembly and made recommendations to the NA, which retained the right to reject the recommendations in any report if it had deliberated otherwise. This report now under consideration showed no strength of conviction. He advocated that this Committee should send the report to the NHTL, giving it a strict time limit within which to respond, as this would give every leader in the NHTL an opportunity to comment. That would circumvent any claims that the process had been violated or was unconstitutional.

The Chairperson said that Dr Oriani-Ambrosini must have been under pressure, as he appeared not to have studied the documents that he had received. The opinion in fact clarified that the Chairperson had referred the Bill to the NHTL and the NHTL had made submissions both orally and in writing at a public hearing; accordingly there was compliance. The Chairperson stated that she did not want to debate what was already a factual account.

Mr Radebe concurred with Dr Oriani-Ambrosini’s point that the current draft Report only gave a lukewarm recommendation. He was of the opinion that the Committee had strong convictions regarding their work and had some reservations on the way the recommendation was worded. Secondly, he also had issue with the Committee’s statement that it had rejected the President’s recommendation. He believed the President had a right to hold reservations around the issue of tagging, and the Committee could not totally “reject” that. He suggested that these points be reworded.

Mr G Selau (ANC) stated that no one could aver that resolutions were not arrived at, if that person was not actually at the relevant meeting.

Dr W James (DA) wanted to inform the Committee that he had submitted a Private Member’s Bill to the Speaker’s Office on that morning, 5 March. This was entitled “The Protection of Indigenous Knowledge Bill. It was a sui generis piece of legislation that he had introduced in line with some concerns that the commercialisation of indigenous knowledge was best dealt with through a dedicated Bill. It had been drafted in the correct manner, and met all the requirements in terms of the memorandum on private legislation. Although nobody had yet engaged with the merits of that Bill, he submitted that it was substantially better than the current legislation. He had asked that the Speaker send the Private Member’s Bill to the JTM for tagging, and it was likely then to be referred to the Committee, although the Speaker would obviously make the final decision on that point.

Ms S van der Merwe (ANC) thought it was instructive that the Committee was considering its report now. She had two comments on it. Firstly, in regard to the point that the Committee did not believe this to be a Money Bill, she suggested that it be stated clearly that the Committee concurred with the views of the President that the Bill was not a Money Bill. That had been the view of the Committee all along, the President had held that view when presented with an objection by the opposition, and had thus affirmed the position of the Committee.

She had no problem with paragraph 4, as it was accepted that the JTM was going to retag the Bill. However, she suggested that paragraph 5 be redrafted to state that the Committee had taken note of the President’s reservation that section 18(1) of the TLGF Act had not been complied with, but that the Committee believed that section 18(1) of the Traditional Leadership and Governance Framework Act, 2003, had been substantially complied with, and that it was not necessary to refer the Bill to the National House of Traditional Leaders (NHTL). She concurred with her colleagues that a decisive recommendation was needed in this Report to guide the House. She agreed with the content of paragraphs 6.1 and 6.2.

The Chairperson then put the Report, with the suggested amendments, to the Committee.

Dr Oriani-Ambrosini wished the Report to reflect his minority views. Firstly, he required clarification on whether the Committee was acting on the basis of an understanding that substantial compliance had been achieved, as stated by Counsel. He wondered if this opinion understood the difference between referral by the Chairperson and not referral by the Secretary of Parliament, and whether this was in line with section 18(1) of the TGLFA. This raised the question also of whether the NHTL had met, as a body, to debate the Bill. Those who wrote the opinion did not appear to have appreciated the important point that the Bill had not been referred in line with section 18(1), but was merely referred “for comment”, and that the Chairperson’s request did not trigger the mechanisms which required the NHTL to have met and deliberated.

The Chairperson asked for some time to confer with the legal advisors. She wanted to confirm exactly how the Committee had corresponded with the NHTL, and to check also on what exactly section 18(1) said.

Adv van der Merwe read out section 18(1) of the TLGF Act of 2003. Subsection (a) stated that any parliamentary Bill pertaining to customary law or customs of traditional communities must, before it is passed by the house of Parliament where it was introduced - in this case the National Assembly – be referred by the “Secretary of Parliament” to the National House of Traditional Leaders for its “comments”. She expounded that that was the only requirement on Parliament. The only aspects where there was any difference was that the Bill was sent to the NHTL by the Chairperson, and not the Secretary of Parliament.

Paragraph (b) pertained to the Traditional Leaders. It provided that the National House of Traditional Leaders must, within 30 days from the date of such referral, make any comments it wished to make. There was no requirement of the NHTL either to meet or to confer. All that the NA had to do was send out a request for comments. The onus was then on the House of Traditional Leaders to make any comment. The letter that she had been provided with to the NHTL clearly stated that the NHTL was “requested to comment”. She believed that the section had been complied with, and this was confirmed by the two Counsels’ opinion.

Dr Oriani-Ambrosini reiterated that his question pertained to whether the request had been made in terms of section 18(1). The NHTL, as a collegiate body, had to participate according to rank, according to the rules governing that section.

The Chairperson believed that the Committee had made every effort to comply with that section. Although perhaps the Secretary of Parliament should, in the first instance, have made the approach, this did not detract from the substantial compliance with that particular clause.

Mr Hill-Lewis asked why the referral was not done by the Secretary, and why the Chairperson had attended to it.

Adv van der Merwe answered that the initial opinion on this Bill was that section18 (1) did not apply at all, as it was believed that the Bill did not deal with any customs. However, when the Committee met, it had decided that although the section did not apply, the Traditional Leaders’ comments would be valuable.

The Chairperson recalled that there were several other opinions given at the time, but they were not upheld by the majority of the Committee.

Mr Radebe asked what had followed the Committee’s request for comments from the NHTL.

The Chairperson recollected that the NHTL had responded in writing, in addition to having made oral representations to the Committee, with a delegation of more than one individual.

Dr Oriani-Ambrosini concluded that his queries were answered in the negative. The request had not been sent in terms of section 18(1) as the prevalent opinion, at that time, was that this was not necessary. The request was actually couched as an invitation to comment, which bore different legal considerations. The legal opinion had stated that the provision was peremptory, so he concluded that there was no compliance. Secondly, he had also asked specifically whether the NHTL had met to deliberate. Often, when the House was asked to comment, only a designated committee attended to this. He had not received an absolute answer.

For these reasons he requested, in terms of Rule 251(3)(b)(ii), that his minority view be recorded, that there was no basis to conclude that the requirements of section 18(1) of the TLGFA had been complied with.

Dr Oriani-Ambrosini postulated also that the Committee had a constitutional duty to consider the Private Member’s Bill introduced by Dr James before finalising the draft Report on the Bill.

Mr Radebe warned against conflating the separate issues of the current Bill and the Private Member’s Bill introduced by Dr James. The current issue addressed the reservations of the President on the current Bill. The Private Member’s Bill was yet to be referred to the Committee by the Speaker’s Office and only at that stage would the Committee have any duties in relation to that bill.

Mr Radebe believed that the Committee had exceeded expectations in soliciting the views of the NHTL of its own volition, and the NHTL had not raised any complaints regarding the process followed.

The Chairperson requested that Dr Oriani-Ambrosini put his minority view in writing, so as to prevent any misrepresentation of his views.

Dr James was concerned at the neglect of the role of custom in the matter. The intellectual property question came into play when custom or cultural practice became distilled in material objects. Custom was thus relevant and he believed that the Bill should have been referred to NHTL in terms of section 18(1)(a). He suggested that the Committee should still adhere strictly to section 18(1)(a).

The Chairperson said that the issue had been dealt with repeatedly. The divergent views were noted, and would be encapsulated in the minority view, in terms of the Rule.

Mr Herman read out the minority view held by Dr Oriani-Ambrosini, in terms of Rule 251(3)(b)(ii). He noted the comment that the Committee had reached a different opinion with respect to compliance with the NHTL Act, on the basis of a legal opinion which had stated that the only difference from the peremptory formalities required by statute was that the Bill was proposed to the NHTL by the Chairperson rather than the Secretary of Parliament. The facts were different, the Chairperson did not request comment in terms of section 18(1) of the Act, but invited NHTL’s comments. Hence the NHTL did not deliberate formally as a collegiate body. Secondly, it was noted that Dr James he had introduced a Private Member’s Bill on the same subject matter, but offering a different approach. The minority view on this was that the Committee could not reach the conclusion that its deliberations were satisfactory on the current Bill, without having applied its mind to the new Private Member’s Bill.

The Chairperson expressed her reservation as to whether there should be reference to the Private Member’s Bill, given that it had only just been handed in to the Speaker’s Office but had not yet been referred to the Committee. The Committee could only deal with Bills once they were referred to it. She requested a legal opinion on the status of the private member’s bill, and maintained her view that it should not be mentioned when stating the minority views.

Dr Oriani-Ambrosini raised a point of order that this was his opinion and it could not be edited by anyone else.

The Chairperson held that the argument was relevant to what had to be included, in line with the NA rules. She felt that the only minority view needing to be captured to be included was in relation to the interpretation of section 18(1) of the TLGFA, on which she had asked for clarification.

Dr Oriani-Ambrosini maintained that the rest of the view pertained to the rest of the report, which related to Bill under current consideration.

Mr Radebe observed that the opposition was subtly endeavouring to reintroduce the matter of sui generis legislation in relation to the matter, and that this issue had been dealt with in the first report to Parliament. The salient issue was the referral of the President, and that did not engage with the substance of the Bill.

The Chairperson emphasised that the NA Rules required that the references to the referrals had to confine themselves to the reservations of the President. For that reason, she believed that it was relevant to confine the statement of the minority opinion only to that point.

Dr Oriani-Ambrosini objected.

Mr Hill Lewis doubted that it was the right of any committee to edit a minority view.

The Chairperson stated that the Committee had to abide by its own rules. The House had adopted rules, and a separate process was needed to change those rules. Until that had been done, the minority view must confine itself only to matters relevant. Members had other recourse if they wanted to take matters further than the Chairperson had ruled.
Mr Hill Lewis objected to the ruling, on the basis that it was not procedurally correct to edit the minority view.

The Chairperson said that the minority view was not edited, insofar as it related to the matter in hand – the reference to section 18(1). Mr Hill-Lewis’ objection was in relation to the second point of the minority view, and for that reason would not be noted.  

Dr Oriani-Ambrosini commented that the Chairperson was censoring an objection to her previous censoring.

The Chairperson said she did not appreciate that comment.

Dr James indicated that he would second the minority view, on the first point.

The Chairperson put the draft Report to the Committee for adoption.

The majority of Members adopted the Report, but the DA and IFP noted their objections.

The Chairperson announced that the report was adopted and would be sent to Parliament.

The meeting was adjourned.


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