The meeting did not form a quorum so no substantive decisions on issues could be taken, but the Committee needed to discuss procedure on the Fertiliser and Feeds Bill (the Bill). The Committee had earlier expressed some severe reservations about several aspects of the Bill that were not clear or seemed to be contradictory. Previously, the Committee had indicated its intention to reject the Bill, but it was later pointed out that this had not in fact happened through the official channels as yet, and that in addition this was in fact not the only option available. The Committee could indicate to the House that it believed the Bill needed to be withdrawn and redrafted, that it could alternatively introduce a Bill itself as a Committee Bill, or make substantive changes (with the permission of the House) arising from the public submission process. It was clear that the Department of Agriculture, Forestry and Fisheries (the Department) had not been given enough opportunity to comment and respond on both the written and oral submissions on the Bill and this too needed to be corrected.
The Parliamentary Legal Advisors and Office of the Chief State Law Advisor made suggestions on how the Committee needed to deal with the Bill. Apart from the difficulties with the content of the Bill there was also a difference of opinion about the tagging. The Parliamentary Legal Advisor, and the Joint Tagging Mechanism (JTM), were of the opinion that because Chapter 4 of the Bill dealt with trade issues, which fell into Schedule 4 of the Constitution, the Bill should have been tagged as a section 76 Bill, and that was how it was currently tagged. However, the State Law Advisors said that the mere fact that it dealt with Schedule 4 topics did not mean it had to be a section 76 Bill, and that the essential point was how it would affect the provinces. There was little that the Committee itself could do to change this, other than report its concerns to the House. Some members felt that this was the most important matter that must be sorted out before anything was done, but the legal advisors pointed out that the tagging did not substantially affect the procedure and that the Department could be asked to respond in the meantime to all issues raised in the public submission, while the tagging was questioned. The State Law Advisors were asked to submit a written opinion. the submissions. In relation to the tagging, she noted that she had previously provided a legal opinion on the issue, to the Department, and would also provide a written opinion on this to the Committee.
Fertiliser and Feeds Bill [B41 – 2012]
The Chairperson said when the Committee previously met, it had had some serious concerns about the Fertiliser and Feeds Bill (the Bill)and had expressed the view that the Bill perhaps needed to be re-drafted to correct the numerous anomalies. The Committee had attempted to get an opinion and some advice from the Committee Content Advisor and legal unit, as well as guidance on the bureaucratic processes, but the process was rushed, and the only option proferred was that this Committee could reject the Bill and have it redrafted. There were, however, other options. For instance, the Committee itself could take over the drafting of the Bill, and present a Committee Bill. The Committee had now been advised that it should have gone through an entire process, to engage with the submissions by the industry, and have summaries and responses by the Department on the public submissions. The Department was not given sufficient time to formulate its response to the submissions, and that was another shortcoming, whilst there was another point that the Committee should have referred the whole Bill back to the Department.
The Chairperson asked the Parliamentary Legal Advisors to outline the processes to move forward, and the Committee would then engage on a discussion.
He noted that there was not a quorum, but none was needed for deciding how to proceed.
Mr Gary Rhoda, Parliamentary Legal Advisor, said that, following the discussion with the Chairperson and Committee Secretary, the Legal Unit felt that the best way forward for the Committee would be to allow a presentation setting out the Department of Agriculture, Forestry and Fisheries’ (the Department’s) responses to both the oral and written submissions, and to any other issue that was raised by the Committee. Once there had been discussion around the critical issues, the Committee could then finalise whether they needed anything more to be incorporated into the Bill, and if so, how this would be done. It may be that the Committee also decided to amend the existing provisions. However, if there were other concerns that fell outside the scope of the Bill as submitted, then permission would have to be sought from the House before the Committee could proceed. If the Committee was of the opinion that the Bill needed to be redrafted altogether or split, that could also be done.
He outlined these in more detail. The first option was for the Committee to amend certain clauses of the Bill – and for that, it would need permission from the House. The second option would be for the Committee to report to the House that it was of the opinion that the Bill had to be redrafted. This would follow a separate process, including the redraft of the Bill, with input from the State Law Advisors, the Parliamentary Legal Advisors, the Department and the Content Advisor. The new clauses would then be presented to the Committee, and the Committee would then say if it wanted anything else to be included. All this input and change would emanate from the public hearings and the issues discussed there. The Committee would then also have to decide whether to hold new public hearings on the new version.
The second issue that the Chairperson had enquired about was the tagging of the Bill. There was no consensus between the State Law Advisor and the Parliamentary Legal Advisor on this point as they could not agree on the tagging. The Parliamentary Legal Advisor, and the Joint Tagging Mechanism (JTM), were of the opinion that Chapter 4 of the Bill dealt with trade issues, which fell into Schedule 4 of the Constitution, and that for this reason the Bill should have been tagged as a section 76 Bill. The JTM had tabled the Bill to the National Assembly on 31 January 2013, as a Section 76 Bill. The State Law Advisors felt it should have been a section 75 Bill. Members had an opportunity to give an opinion on the tagging of the Bill, whether it was a Section 75 or Section 76 Bill prior to 31 January 2013. At most, the Committee could now report to the House that it was of the opinion that it should be a Section 75 or Section 76 Bill, after taking into consideration all the issues. However, there was very little that the Committee could do to change it, now that the JTM had already made a decision, but it could still write to the JTM setting out its views.
Ms A Steyn (DA) said the issue of tagging was also a very important part of what the Committee needed to get clarity on. An incorrect tagging may well be found, later, to have constitutional implications. She thought that the Committee should take the two processes simultaneously, to discuss how to deal with them. The Committee could possibly keep rejecting the Bill as a result of the tagging issues and not the presentations. She suggested that a decision was needed on the tagging first.
Ms M Pilusa–Mosoane (ANC) sought clarity as to what the Committee should do after getting the responses from stakeholders and/or the Department.
The Chairperson thought that the Committee had been correct when it indicated that it was intending to reject the Bill, otherwise it would have gone through lengthy deliberations and submissions from public hearings and entities in the private sector and industry. The Department had not been given enough time to respond to all the issues raised, some of which were substantial, whilst other issues hinged on the constitutionality of the whole process, and especially the consultations. In fact, the Committee could only go through a line-by-line deliberation once all those preliminary processes had been done. He thought that it made more sense to hold public hearings only after some of the issues in the Bill had been sorted out.
The Chairperson also stressed the lack of consensus between the Parliamentary and the State Law Advisors on the tagging of the Bill. The State Law Advisor had indicated that she could submit a legal opinion regarding the tagging issue.
Ms Pilusa–Mosoane asked what would happen after the Department was approached by the Committee, since the Bill had already been referred back to the Department.
Ms Yolande van Aswegen, Principal State Law Advisor, Office of the Chief State Law Advisor, said the Department would have to prepare answers to all the submissions, especially the crucial and substantive issues raised, and present those to the Committee. Her Office would also give inputs on the submissions. In relation to the tagging, she noted that she had previously provided a legal opinion on the issue, to the Department, and would also provide a written opinion on this to the Committee.
She noted that the Office of the Chief State Law Advisor (OCSLA) took the view that even if a Bill related to certain areas listed under Schedule 4, it did not mean the Bill had to become a Section 76 Bill, because it could be a section 75 matter, to be dealt with under National Assembly processes, if it did not affect the provinces. She was of the view that this Bill did not impact on the provinces, but more on the national sphere of government. The National Assembly (NA) could also go through the same process as the National Council of Provinces (NCOP), in terms of public participation, amending the Bill or rejecting it. The NA was also mandated by the Constitution to pass laws where some areas could fall within schedule 4. Therefore, the test used was not what the Bill was about, but rather its impact on the provinces.
The Chairperson said the Committee had already indicated to the Department that it must bring its responses back to the Committee in writing, as it had not previously had enough time to do this.
Mr Rhoda wanted to comment on the views of the OCSLA. He cited case law, and said that it was not sufficient only to look to the impact of the Bill on the provinces. It was also necessary to look at what the impact would be, the areas where there would be an impact, and to decide whether the provisions of the Bill fell into those areas set out in Schedule 4. He cited other case law example and said that trade, by definition, was not inter-provincial. Page 13 of the Bill had an entire portion that dealt with trade and regulations, and how the product should be transported and packaged, so it was obvious that the Bill was dealing with the buyers and sellers of the product.
The Chairperson said that there could be no resolution on the differing legal opinions in a meeting of this nature. The State Law Advisor should prepare her legal opinion in writing, so that the Committee had something specific to refer to at the next meeting.
Ms Steyn repeated that in her view the tagging issues needed to be sorted out first. In light of the differing opinions, it seemed that the Committee could be faced with a problem. She suggested that perhaps the Committee could ask the JTM to have a look at the Bill again, before the Committee proceeded further.
The Chairperson agreed that a letter had to be written to the JTM, as this discussion would not solve the issues.
Mr Rhoda said a decision had already been taken by the JTM, and according to the NA Rules there was very little the Committee could do to change that. It could write to the House expressing its view that the Committee believed that the Bill should be tagged not as a Section 76, but rather as a Section 75 Bill. The JTM would then have to take this viewpoint into consideration.
Ms Steyn reiterated that the Committee had to decide how to tag the Bill. She noted, however, that there was no quorum.
Ms Pilusa–Mosoane asked if the Committee needed a quorum to make that decision.
The Chairperson said the topic remained a discussion point only at this stage, and no decisions would be taken until there was a quorum. Due to the urgency of the matter, the issue would have to be decided on at the following meeting.
Ms N Twala (ANC) pointed out that the Bill had not been sent back yet. In accordance with procedural rules, when a Committee rejected a Bill, it would have to write a formal report, to be presented to the House. From there, the Bill would be sent back to the Minister, not to the Department. The decision that was taken previously was in fact not an official rejection of the Bill.
The Chairperson reiterated that the tagging issue would need to be discussed in the next meeting of the Committee, resolved there, and the matter referred back to the JTM. It was important for this Committee to get clarity on the tagging situation before continuing with other processes.
The Chairperson suggested that the way to move forward was that the Committee should allow the Department enough time to respond to the issues raised in all the submissions, and then embark on a process to incorporate some of those in the Bill. The Committee would have to then deliberate on the redrafted clauses in the Bill. This would mean that the Committee may need to rework its programme to accommodate all the changes.
Ms Steyn reiterated that the Committee should finalise the tagging process first, before asking the Department to come back to the Committee with any changes and submissions.
The Chairperson said he was highlighting the process to follow after the tagging matter had been resolved.
Mr Rhoda said it usually took two or three weeks for the tagging process to be sorted out. However, the way in which this Bill was tagged would not substantially impact how this Committee would deal with it. The Committee could, therefore, in his view, proceed with discussions with the Department and do some preliminary work on the Bill whilst the tagging issue was being finalised.
Ms Yolande van Aswegen said the only difference between Section 75 and Section 76 procedures would be the voting, but other than that all the other procedures around participation, rejecting and amending the Bill all remained the same.
The Chairperson said two processes would then be running parallel to each other; the tagging process and the other processes previously mentioned.
The meeting was adjourned.
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