The Committee presented the final mandates on two bills, as well as debating and accepting (with amendments) the minutes of meetings of 11 and 18 September.
In respect of the Intellectual Property Laws Amendment Bill, eight provinces voted in favour of the Bill, and Western Cape voted against. The North West put emphasis on the necessity for both the Department of Trade and Industry as well as the Department of Sports and Culture to ensure that the indigenous knowledge of communities was not exploited by institutions. This province further suggested that the NCOP should put more stringent measures in place to consult with traditional leaders and stakeholders in provinces, in order to get input from them. The question was raised whether the Bill had been correctly decided upon, in view of the fact that it was later brought to the attention of Members that perhaps using a formalised intellectual property protection process was not ideal in relation to indigenous knowledge, and it was noted that a Private Member’s proposal had been proposed to adopt a sui generis approach. The Parliamentary Legal Advisers noted that whether or not Members of this Committee wanted to delay a final decision pending that Private Member’s Bill was a political decision that must be made by the Committee. Members pointed out that the final mandates had been received from the provinces and the Bill should be adopted.
Members considered the final mandates on the Broad Based Economic Empowerment Amendment Bill an noted that seven provinces had voted in favour of the Bill. Free State and Gauteng did submit on time; although Gauteng had indicated that it was voting in favour of the Bill, the correct documentation was not sent through in time. The Parliamentary Legal Advisers confirmed that the deliberations and process were legally correct and the Bill was passed.
Members adopted minutes of 11 and 18 September.
Intellectual Property Laws Amendment Bill B8B-2010- Final Mandates
The Chairperson asked representatives to present the mandates of their provinces
Eastern Cape Legislature
Ms E van Lingen (DA, Eastern Cape) presented The Eastern Cape mandate, noting that it voted in favour of the Bill on 16 October 2013.
Free State legislature
The Chairperson presented the Free State final mandate, as Mr B Mnguni (ANC, Free State)was absent. The Free State had voted in favour of the Bill on 13 October.
The Chairperson presented the Gauteng final mandate. The date of deliberation was 08 October 2013, and this province was in favour of the Bill.
Kwa Zulu Natal Legislature
The Chairperson presented the final Mandate from Kwa-Zulu Natal (KZN) which had been deliberated on 8 October 2013. KZN voted in favour of the Bill
Ms M Dikgale(ANC,Limpopo) presented the final mandate of Limpopo. The date of deliberation was 8 October 2013, and this province voted in favour of the Bill
Mpumalanga Provincial Legislature
Mr E Nyambi (ANC, Mpumalanga) presented the Mpumalanga final mandate, noting that the date of deliberation was 13 September and this legislature had voted in favour of the Bill.
Northern Cape Legislature
Mr Sinclair (COPE, Northern Cape) presented the Northern Cape final mandate. The date of deliberation was 4 October 2013. The Northern Cape voted in favour of the bill.
North West Legislature
The Chairperson presented the North West final mandate. The date of deliberation was on the 2 August 2013. This province wanted to stress that the Department of Trade and Industry as well as the Department of Sports and Culture must ensure that the indigenous knowledge of communities was not exploited by institutions. North West also stated that the NCOP should put more stringent measures in place to consult with traditional leaders and stakeholders in provinces, in order to get input from them.
Ms Van Lingen stated that there seemed to be a technical error on the North West mandate. She noted that the meetings on the Bill in the NCOP took place in September, but the date of deliberation for North West was noted as 2 August and that could not be correct.
The Chairperson said that it might be a typographical error.
Western Cape Legislature
Mr F Adams(ANC, Western Cape) presented the Western Cape final mandate. The date of deliberation was 17 September 2013.The Western Cape voted against the Bill.
The Chairperson noted that the Intellectual Property Laws Amendment Bill [B8B-2010] was therefore passed, with 8 provinces voting in favour and one province voting against.
Ms Van Lingen wanted to raise concerns on a particular issue. When the Bill was discussed, the Intellectual Property (IP) policy was not raised. However, this had been done subsequently, and Chapter 4 of that Policy stated that in many circumstances, attempting to protect indigenous knowledge using the orthodox method of IP was possibly not the best vehicle for the protection of traditional knowledge. She asked if what was being done in this Bill was not in fact contrary to that document.
The Chairperson responded by saying that the Committee was just dealing with final mandates.
Ms van Lingen (DA) asked the Chairperson if he was willing to wait for the report on a sui generis system to be put together.
The Chairperson responded by saying he is a delegate from Kwa Zulu Natal and he would always do what he had been sent to do.
The Chairperson asked Adv Charmaine van der Merwe, Parliamentary Legal Adviser, for her comment.
Advocate van der Merwe told the Chairperson that an official from the Department of Trade and Industry who answer on the question of policy. However, she noted that the sui generis system had been proposed in a Private Member’s Bill, and whether or not Members should wait for this would be a political decision.
Ms Zodwa Ntuli, Deputy Director General, Department of Trade and Industry, said that the policy was still a draft in its consultation phase. The policy on the Bill, however, had been adopted already, and was quite clear.
Mr Adams said that the report had been accepted, as well as the final mandates from provinces .He said that policy was a different issue.
Mr Sinclair said that although Mr Adams was correct, it was important to respect the process.
Broad Based Black Economic Empowerment Amendment Bill - Final Mandates
The Chairperson called upon Members to present their mandates.
Ms Van Lingen presented the Eastern Cape final mandate. The Eastern Cape supported the Bill.
The Chairperson presented the Gauteng final mandate. Gauteng voted in favour of the bill. However, he noted that the Committee had an incorrect version of the mandate and that the Gauteng legislature had been informed of this.
Ms Van Lingen said that she was trying to get hold of Ms B Abrahams (DA, Gauteng) to try to get the correct version sent through. Later, she reported back that she received a text message from Ms Abrahams, who said that she would request the liaison officer to send it through.
The Chairperson suggested that the other provinces proceed.
The Chairperson presented the Kwa Zulu Natal final mandate, noting that the KZN legislature voted in favour of the bill.
Ms Dikgale presented the Limpopo final Mandate, which said that Limpopo voted in favour of the Bill.
The Mpumalanga final mandate was presented by Mr Nyambi. Mpumalanga voted in favour of the Bill.
Mr Adams presented the Western Cape mandate, which had voted in favour of the Bill.
Northern Cape Legislature
Mr Sinclair presented the Northern Cape final mandate, which was in favour of the Bill.
North West Legislature
The North West final mandate was presented by The Chairperson. The North West voted in favour of the bill and emphasised that the Department should fast track the establishment of the BBBEE Commission to promote transparent business practices.
Ms Van Lingen pointed out that there was a problem with the declaration date.
The Chairperson responded by saying that the Committee Secretary had been sent out to check out the inconsistencies of the date.
Mr Adams said that since the majority of provinces had approved the Bill and had handed in their final mandates, the Committee could continue to take a decision.
The Chairperson confirmed that since seven provinces had approved of the Bill, the Committee could finalise the bill without Gauteng and Free State, which submitted their mandates late.
The Broad Based Black Empowerment Amendment Bill B42D-2012 was approved by the Committee.
The Chairperson emphasised that members from the National Assembly were not allowed to speak in the NCOP. The Chairperson reminded the Members that in order to have influence in the NCOP, NA members should consult provinces if the bill in question was a section 76 Bill.
Mr Nyambi proposed closure of the matter.
The Chairperson asked, and received confirmation from the Parliamentary Legal Advisers, that the deliberations and the process were done in a legally accepted way.
Adoption of Committee Minutes
11 September 2013
The Chairperson reminded the meeting that the minutes did have some grammatical errors and that if the meeting approved of the content of the Minutes, it should nonetheless be noted that the approval was “subject to correction”. He asked Members to note if they believed any points had been omitted.
On page 3, Ms van Lingen pointed out an error in the wording, second line of page 3.
She also reminded Members, in regard to page 4, that the Deputy Director General and an Advocate were present. She questioned whether it was correct to say that communities were juristic persons. This was a point that she wanted to raise with the Parliamentary Legal Advisers, but was not sure if she could do this at this meeting.
She also reminded Members that Mr October, Director General, Department of Trade and Industry, had explained to the Committee that currently there was no mechanism that had been put in place to take the indigenous knowledge further, other than via the Intellectual Property Laws Act. However, she was not sure if that was exactly what he had said.
The Chairperson responded that if Ms Van Lingen was not sure exactly what Mr October had said, the statement could not really be corrected.
Ms van Lingen responded that the meeting had been recorded, and suggested that the matter be checked from the recording.
Ms van Lingen asked the Chairperson to note the paragraph on the middle of page 5.
Mr Adams pointed out that the minutes that were being discussed reflected minutes on the negotiating mandates. His problem was that they did not reflect what the provinces were saying, but only what was being discussed at the meeting. Ultimately, the minutes should reflect what had been said by the provinces. The final decisions were taken by the provinces, and not the Deputy Director General or the State Law Advisor. What they had said were merely recommendations and if the provinces wanted to take those recommendations, they should do so.
Mr Adams proposed the acceptance of the minutes and said that the grammatical errors would be dealt with at a later stage.
Ms Van Lingen did not support that proposal.
Ms van Lingen referred Members to Minutes of 18 September, and said that it was important to be consistent whenever drafting minutes. (DA) said that she does not support the proposal raised by Mr Adams
Ms Van Lingen (DA) referred to the minutes of the 18th of September and stated that when drafting the minutes, it was important to be consistent. She believed it was important that provinces get a detailed description of how the decisions were taken, and what was considered before taking the decisions.
The Chairperson reminded the Members that the meeting was actually discussing the minutes of 11 September.
The Chairperson concurred with Mr Adams, and said that the purpose of the meeting of 11 September was to consider the negotiating mandates given by the provinces .The main focus should be what was said by the provinces, which was captured in the resolution. The Chairperson also reminded the members that the Committee had already voted, and all that the Members were asked to do was check whether there were any errors. Recommendations by the legal advisers were included to show how the deliberations and decisions were done. There was no need to vote; the resolutions had already been voted upon.
Ms Van Lingen did not understand the Chairperson. He had noted that the Committee looked at the provincial negotiating mandates. However page 6 said that the Bill was agreed to by the Committee, without amendments. The provinces needed to be sure whether their mandates were discussed or not. Ms Van Lingen also said that a record of what each province said was kept. The minutes of 18 September contained clear explanations. She suggested that the minutes of 11 September be rejected, and re-drafted.
Ms Dikgale supported Mr Adams.
Mr Adams reminded the Members that the provinces would have received the minutes prior to this meeting and would have indicated if they had problems.
The majority of Members accepted the minutes, with the necessary grammatical and changes.
18 September 2013
Ms Van Lingen pointed out a wording error on page 3, in relation to clauses which were referred to by the Free State.
The Chairperson agreed. Provinces were told that they need to specify if they had any proposals or recommendations on amendments. Free State province did not have any specific request or mandate. the wording needed to be changed.
Ms Van Lingen then read out that the Free State had voted in favour of the amendment bill, with these provisions:
She noted that the portion citing 13.0 should be amended to read “a person commits an offence if they knowingly or willingly”. These terms had been debated upon.
Mr Sinclair suggested that the statement should be read as “Those amendments reflect upon…”
Mr Nyambi asked why his name had not been noted as attending the meeting; he had engaged with Ms Lingen on these issues.
Ms van Lingen confirmed that he was indeed present: Mr Nyambi, the Chairperson, Ms Dikgale and Mr Mnguni all voted in a manner against the mandates of their provinces.
Mr Nyambi took exception to this, saying it was a very serious matter and this statement should not even be made in jest. The meeting was being recorded and must reflect what actually was done.
The Chairperson agreed with Mr Nyambi.
Mr Adams asked if the issues in question were amendments or recommendations, saying that if they were the former, they could be accepted. The Committee had not considered the points from the Free State, as they were not actually specific amendments.
The Chairperson said that Mr Adams was correct and that the Committee should take the approach which Mr Adams had proposed. He agreed that the Free State did make clear recommendations and reflections, but no clear proposals.
Ms Dikgale asked if the meeting which was held in Johannesburg was recorded, because she did not recall herself voting against her own province. Ms Dikgale then asked Ms Van Lingen to withdraw the statement made earlier, as it was incorrect.
Ms Van Lingen withdrew her earlier statement.
The Chairperson confirmed that the meeting was recorded. He reminded the Committee that it was the meeting that would have to decide whether to accept amendments.
Ms Van Lingen thought the wording of page 4 was incorrect regarding the amendment.
Mr Adams asked the Committee to check if the sentence in question dealt with proposed recommendations, or proposed amendments
The Chairperson reminded the Committee again that it was not re-debating the issues; only considering the minutes. The focus should be on the content.
Ms Van Lingen pointed out a typographical error on page 5. The Chairperson reminded the committee that the committee is discussing the content of the minutes.
Mr Nyambi asked if the Committee was trying to review the decisions taken on that day, and believed that the Committee could only deal with anything that was contrary to what had already been agreed on that day. He gave an example; at the meeting in Mpumalanga the first amendment had been rejected because it would have required an amendment to the Constitution. If this was wrongly reported in the minutes, the Committee would have to deal with that issue.
The Chairperson agreed with Mr Nyambi.
Mr Sinclair pointed out an issue with the semantics in paragraph 7 on page 6.
The Chairperson stated that page 6 referred to an issue raised by the Western Cape, around the meaning of a “trading entity”. The proposal had been accepted.
Members proposed, seconded and adopted the minutes, subject to the necessary amendments.
The meeting was adjourned.
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