Legal Metrology Bill [B34-2013]: deliberations; Trade Workshop Committee Report

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Trade, Industry and Competition

23 October 2013
Chairperson: Ms J Fubbs (ANC)
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Meeting Summary

The Department of Trade and Industry went through the list of proposed Portfolio Committee amendments. They deliberated on the following matters:
- Role of a market surveillance officer
- Shortage of staff
- Difference between a verification body and a verification officer
- Difference between ‘regulations’ and ‘technical regulations’
- De-registration of officers who committed an offence
- Rehabilitation versus disqualification.
The Committee completed its deliberations on the Bill and requested that a final B version be provided for approval at the following meeting.

Members were briefed by the Committee Content Advisor on the key issues emerging from the Trade Workshop held on 1 August 2013. The agricultural sector played a major role in the economy, but South Africa was tending to develop a trade deficit in this sector. Further, the majority of SA’s raw agricultural products were used as intermediary products in other sectors and South African farmers were not as protected as their overseas counterparts. Issues were also raised about tariff and non-tariff barriers such as environmental tariffs. Members raised concerns that the African Growth and Opportunity Act (AGOA) unilateral trade treaty was being turned into a bilateral treaty by the United States.

Meeting report

Legal Metrology Bill: deliberations
Advocate Charmaine van der Merwe, Parliamentary Legal Advisor, presented the Committee with the latest proposed amendments to the Bill:

Clause 6 Appointment of market surveillance inspectors
Adv van der Merwe explained that 6(1) and (2) were very similar in nature; so 6(2) was deleted with the following amendments to 6(1):

The Chief Executive Officer may appoint any person an employee of the National Regulator or any organ of state, with the prescribed qualifications, as market surveillance inspector, in general or for a specific purpose.

Given the deletion of 6(2), then 6(3) became 6(2).

Mr G Hill-Lewis (DA) noted that there were many different roles outlined in the Bill such as surveillance officers, repair officers, verification officers. He asked for clarity on what a market surveillance officer was.

Mr Jaco Marneweck, Senior Manager: Inspections, National Regulator for Compulsory Specification (NRCS), replied that a market surveillance officer was employed by the National Regulator to ensure that regulations were equally enforced in the market. This officer had the power to inspect measuring instruments used in the field.

The Chairperson raised concerns about the shortage of staffing in both the public and the private sectors; when was DTI going to operationalise and hire the necessary staff?

Mr Marneweck replied that from the beginning of the processing of this Bill, preparations had been conducted on the matter of staff. The National Regulator had already employed 11 new qualified candidate inspectors who were being prepared for the new areas established by the Bill once operation began.

Clause 8 Appointment of verification officers
Adv van der Merwe noted that 8(1) and (2) were repeating one another; so 8(2) was deleted and 8(3) became 8(2). The following amendments were made to 8(1):

The Chief Executive Officer many, in the prescribed manner, appoint any person an employee of the National Regulator or any designated verification body, with the prescribed competencies, as a verification officer to verify instruments of any particular kind in accordance with this Act.

Clause 10 Registration of person responsible for repairs
Adv van der Merwe explained that this was a consequential amendment. There was a realisation that nowhere in the Bill did it state that the person responsible for repairs must be employed by a designated repair body. As such, the following addition was made:

10(1) The Chief Executive Officer may, in the prescribed manner, register any person with the prescribed competencies and who is employed by a designated repair body, as a person responsible for repairs of any particular kind in accordance with this Act.

Clause 36 Manner of selling products
Adv van der Merwe said the last change was a minor word deletion in Clause 36(1)(e).

The Chairperson asked if any of the members had any outstanding concerns.

Mr Hill-Lewis went back to clauses 7 and 8 and asked what the difference was between a verification body and a verification officer. What was the point of designating a body when any officer could be appointed?

Mr Marneweck replied that the verification body was appointed by the regulator to fulfill the functions of verification in the market; whereas the verification officer was appointed by the CEO based on their competencies. The verification officers worked for a designated body to fulfill the verification role.

Mr Hill-Lewis asked if the verification body was then a company.

Mr Marneweck replied that yes, the verification body was just that. He provided the example of the South African Council of the Scale Industry (SACS) who was an appointed verification body and was responsible for various verification roles.

The Chairperson in reference to Clause 5(1) pointed out that there were two types of legislation: primary and secondary. Secondary legislation was referred to as regulations. Given that explanation, she was unclear why this clause referred to ‘legal metrology technical regulations’ and not just ‘legal metrology regulations’.

Adv Johan Strydom, Legal Advisor, explained that Clause 5(1) dealt with the ministerial power to assign or delegate duties or functions to the CEO that were conferred by the Bill on the Minister. It would be ill advised to allow the Minister to delegate this power to make such important regulations to the CEO. As such, Clause 5(1) stated that regulations of a technical nature were limited to the power of the Minister.

Adv van der Merwe explained the differentiation between regulations and technical regulations was this Bill had also a more operational type of regulation; hence the differentiation.

Dr W James (DA) suggested that perhaps it was the phrasing of the sub-section that caused the problem. He suggested changing the following rephrasing: ‘except the power to make regulations, including those metrological technical regulations.’

Adv Strydom replied that there appeared to be no justifiable reason why, in a legal sense, there should be a distinction between ordinary ministerial regulations and technical regulations, as they were both regulations that held the same power in the law.

The Chairperson pointed out that in the definitions section, the definition of ‘regulation’ included legal metrology technical regulation; however, that inclusion was deleted during discussions.

Adv van der Merwe explained that this was done because the two types of regulations were seen as different. If they were to be looked at as the same, then the amendment to the definition should be withdrawn and Clause 5(1) should simply refer to regulations.

The Chairperson agreed and Clause 5(1) was therefore changed along with the definition.

Mr Hill-Lewis noted that there was no provision in the Bill to address the de-registration of officers. There were provisions on offences and penalties, but neither addressed de-registration.

Mr Marneweck replied that this concern was addressed during the drafting process. An understanding was reached that the power to de-register an officer went hand in hand with the power to register them.

Adv Strydom explained that the functionary had the power to both appoint and de-appoint. The negative power to de-register was implicit in the positive power to register.

Mr Hill-Lewis noted dissatisfaction with the reasoning as he viewed this to be completely discretionary. It was in the discretion of the functionary, but it should rather be compulsory that if one was found guilty of an offence in the Act, one should be de-registered. Furthermore, several discussions were taking place in the Supreme Court on this topic – the fact that the positive power did not equate the negative power.

Following internal deliberations, the legal team made a suggestion to resolve the issue. Adv van der Merwe proposed the addition of a second sub-section to Clause 39, which stated the following:

39(2) A person convicted of an offence under this Act becomes disqualified from performing any duty or function provided for in this Act and any applicable appointment, designation or registration will be deemed to be null and void from the date of being disqualified.

Adv van der Merwe stated this provision was perhaps broader than what the Committee was seeking. In addition, the title for this clause was suggested to change from ‘Penalties’ to ‘Penalties and effect of conviction and an offence.’

Mr B Radebe (ANC) said that this provision addressed the issues raised and even went above and beyond.

Mr Hill-Lewis still had some concerns. He was concerned with the permanency of the disqualification. He argued that a person’s offence required punishment, but disqualification prohibited the person from ever returning to their career despite the possibility of rehabilitation. He provided the example of those in the medical profession that would never be able to return to their work if they were disqualified.

The Chairperson noted that the discussion was about intentional offences and often offences made in the medical profession were not deliberate.

Dr James further explained that the medical profession had its own board to assess the nature of the offence. He asked if there should be a schedule of penalties.

Mr Werner Barnard, Committee Member from SACS, asked what happened in the interim period of committing an offence and being tried in a court of law; was the person still able to operate?

The Chairperson replied that the process did not have to reach a court of law in order for a suspension to take place.

Adv van der Merwe stated that this sub-section simply took away the discretion and was now saying that if an offence was committed, there was no discretion in the matter and the person would be disqualified.

The Chairperson noted that the implications of this clause must be carefully understood as it excluded all potential for rehabilitation. Were penalties such as fines or imprisonment enough or was disqualification necessary?

Mr G McIntosh (COPE) stated that while South African prisons may not be a deterrent, they were certainly not very nice places. He agreed that if a person was convicted of an offence and penalised accordingly, then that person should be given the opportunity to reintegrate.

Mr Z Wayile (ANC) argued that offences must have consequences and the key was to ensure that the law was properly explained to the employees. He provided the example of police officers and asked if a police officer committed a crime, can they be allowed to re-enter the system?

Mr Radebe commented that evident from the deliberations, Legal Metrology was a very important aspect to the South African economy and it was preferable to be more tough than lenient about offences.

The Chairperson agreed that the Bill should act as a deterrent and encourage best standards. He requested that a clean final version of the Bill would be considered for adoption at the following meeting.

Committee Report on Trade Workshop
Ms Margot Herling, Committee Content Advisor, briefed the Committee on the main issues raised in the trade workshop held on 1 August 2013. Firstly, in terms of agricultural trade, the issue was raised with regards to the importance of agriculture in creating jobs. In addition, 70% of agricultural products were used as intermediary products in production industries. Another issue was that South Africa was not receiving as much producer support as other competition countries, which placed pressure on declining farming units because they now had to produce at lower costs while keeping up with their competitors. With regards to the agriculture trade balance, imports were now exceeding exports.

In terms of trade policy, Ms Herling stated that in general, business was in favour of South Africa’s trade policy; however, there was over emphasis on tariffs and little focus on other trade policy rules. As for new emerging trade issues, there were climate related trade measures, which were a potential threat, as well as private standards and unfair global value chain practices. Moreover, trade agreements were being implemented far too slowly. Despite that, there was a benefit from a shift in global values and new procedures would be needed regarding technology, skilled labour and efficient and affordable services.

The Chairperson explained that the challenge faced was the non-tariff barriers not tariffs. South Africa had never been tried at the World Trade Organisation in matters relating to tariffs.

Mr Hill-Lewis argued that there needed to be specific reference to the DTI and the Department of Agriculture working together to address these issues. He was concerned with the ways in which the Americans were turning the African Growth and Opportunity Act (AGOA) into a bilateral treaty, when the original was a unilateral trade treaty. South Africa’s point of view was that this treaty was mutually beneficial for both American and South African jobs; however, this point was not made adequately in the report. As for the new generation trade issues, the key point for him was the fact it was nothing but protectionism under a different name. He argued that developed countries were not actually concerned about the environment but were looking for a way to protect their industries using new kinds of tariffs, i.e. environmental tariffs.

Mr McIntosh commended the work of Ms Herling on the report. She was able to touch on every aspect addressed in the workshop very well.

Dr James stated it needed to be pointed that the South African High Court found that the dumping duties for chicken imports from the United States, to be illegal.

Mr Radebe appreciated the report as the first draft but the report needed to be more explicit on the support that other countries were receiving for agriculture. When one reads 20%, one would not register the same reaction when reading 60 billion Euros, which was equivalent to R1.3 trillion. The percentages clouded the significance of the figures.

Consideration of Minutes
Minutes from the following meetings were adopted: 11 & 18  September, 2, 9  & 10  October 2013.

The meeting was adjourned.


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