Legal Metrology Bill [B34-2013]deliberations: Draft version B

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Trade and Industry

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

The legal drafters from the Department of Trade and Industry, the Parliamentary Legal Advisers and the Office of the Chief State Law Adviser had together worked on a new version (a “mock B” version of the Legal Metrology Bill. The amendments were also summarised separately in the amendments document. The legal advisers took the Committee through the amendments, page by page. In general, there were only some suggestions on formulations that would add greater clarity.

Electronic scales were to be added in as a measuring instrument, on page 4. Supplementary words “ or an inaccurate measurement” were added to supplement short-measure, and it was indicated that an inaccurate measurement might include short measure, but the reverse did not apply. One Member questioned the use of idiomatic language “a level playing field” but the drafters and other Members agreed that as long as it was a clearly understood term that made the Bill for accessible to the general public, there would be no problem in using it. An insertion was made on page 7 to clarify that the Minister’s powers to make regulations could not be delegated. It was suggested that perhaps clause 6’s subclauses could be combined for greater clarity. The National Regulator for Compulsory Specifications explained that the Regulator did not want private market surveillance inspectors to inspect, only a state body. Actual intention, not mere negligence, was required as an essential element of a statutory offence. However, this would not apply to those to whom a certain duty applied, such as market surveillance inspectors, verification officers or persons responsible for repairs. Members asked for clarity on whether there was room to accept certain deviations and the National Regulator confirmed that nothing was ever fully correct. There were certain changes to the packaging requirements, to cover the situation where goods might be ordered either by exact weight, such as foodstuffs, or mass, such as building sand. Members took issue with some of the language used and suggested that better phrasing might be found. One of the major concerns about release of information was now being addressed by the fact that confidential information could not be provided, other than on the direction of a court.

It was noted that up to page 21, the legislation was written in the form of a Bill, but subsequent to that there was a schedule which in fact was an Amendment Bill, and one Member likened this to a baby kangaroo in a pouch. The reason for couching it in this way was explained, to overcome cumbersome and expensive processes in amending other Acts.  
 

Meeting report

Legal Metrology Bill B34-2103: Deliberations on draft B-version
Adv Charmaine Van der Merwe, Parliamentary Legal Adviser, noted that the Department and Parliamentary Legal Services had prepared a document that summarised the amendments proposed so far to the Bill (see attached document, entitled “LMB 2013/15”). However, a “mock” B-version of the Bill, essentially a working draft, had also been prepared and she suggested that this be the document used for considerations.

Adv Johan Strydom, Law Adviser, Department of Trade and Industry, noted that the LMB 2013/15 was a collective document prepared collectively between the Parliamentary legal advisers, the Department of Trade and Industry (dti) legal advisers and the Office of the Chief State Law Adviser (OCLSA).  He explained that in the new draft, the text amendments were highlighted in red.

Adv Strydom proceeded to read through the amendments.

On page 4, the word “software” was inserted to cover the use of digital scales that did not rely on weights, but on electronic functioning based in software. This change was intended to add electronic scales as a measuring instrument.

On page 5, line 9, the phrase “and includes a legal metrology technical regulation” was omitted, as it was redundant with reference to the definition of a legal metrology technical regulation, as found on page 4, line 25.

On page 6, line 30, the phrase “or an inaccurate measurement” was added to supplement short-measure. An instrument that indicated a higher speed travelled by a motor vehicle than was actual, was an inaccurate measurement, but of a kind different to a short measure.

Dr W James (DA) remarked that it seemed that an inaccurate measurement could include a short measure, but not the other way round.

Adv Strydom agreed.

Mr G Hill-Lewis (DA) had reservations about the use of idiomatic language like “a level playing field for industry” in a legal document (page 6, line 13).

Adv Van der Merwe replied that this was part of the effort to draft the legislation in understandable language, and said that this was not vague.

The Chairperson told Mr Hill-Lewis that during the early days of the new democracy, the legislature had resolved to use language that was accessible. The bottom line was whether the language used would be acceptable in a court of law.

Adv Strydom continued that on page 7, line 7, the phrase “except the power to make regulations” was inserted. The Minister had the power to regulate in terms of the Act, but although certain functions could be delegated by the Minister, this would ensure that the Ministerial powers to regulate could not be delegated to the Chief Executive Officer.

On page 7, line 17, the phrase “with the prescribed qualifications referred to in subsection (1)” was inserted.

Mr Hill-Lewis commented that clause 6(2) repeated 6(1). Both referred to prescribed qualifications.

Adv Strydom replied that there was a difference. Clause 6(2) could include anyone, including private persons.

The Chairperson remarked that it was more precise. She asked about the intention.

Mr Jaco Marneweck, Senior Inspection Manager, National Regulator for Compulsory Specifications, explained that clause 6(1) stated that anyone with the prescribed qualification could be appointed as a market surveillance inspector, and clause 6(2) then curtailed it to the public sector.

The Chairperson agreed that subclause (2) placed a restriction, but still repeated the prescribed qualifications.

Mr Marneweck replied that the Regulator (NRCS) did not want private companies to inspect. This had to be done by a state body.

The Chairperson said that it was too vague. The door had been opened too wide.

Mr Hill-Lewis suggested that the two should be combined into one clause.

Mr N Gcwabaza (ANC) said that there was a special kind of surveillance not available in the public sector.

Adv Strydom replied that the structure would be collapsed.

The Chairperson said that experience could certainly be found in the public sector.

Adv Strydom continued that two commas had been added on page 7, line 46.

On page 8, line2, the phrase “with a balance of interests” was omitted. The context established the interests, in this case.

On page 9, line 56, “in such a manner as the National Regulator may direct in writing” was inserted.

On page 10, line 35, the word “may” was inserted.

On page 13, line 42, the spelling of “willfully” was corrected to “wilfully”.

On page 13, at line 46, the word “intentionally” was inserted. Intent would be required for the proving of any breach of a statutory offence. One example might be the owner of a petrol station, who intentionally tampered with a mechanism inside a petrol pump to sell less petrol for more money. This would constitute an offence. However, no offence would be created if, through negligence, there was an alteration of the readings.

The Chairperson asked what the situation would be if a person accidentally removed a verification mark whilst busy with repairs. She also indicated that lay people who worked on cars could turn down the mileage when they wanted to sell at a better price, and it was therefore not only qualified repairmen who were in a position to do that.

Adv Strydom replied that the intentionality requirement did not apply to market surveillance inspectors, verification officers or persons responsible for repairs.

Adv Strydom continued that on page 16, the insertion of “wilfully” and “or a measurement value” into lines 12 and 13 respectively, provided motivation for the omission of the whole of subclause (3).

Mr Marneweck added that what was involved was the measurement value at the time of sale.

The Chairperson agreed that subclause (3) was confusing.

Adv Strydom continued that on page 17, line 13, the phrase “manner prescribed for packaging” was inserted.

Mr Marnewick added that it referred to packaging error.

The Chairperson said that she found the term “tolerance level” to be used in a confusing manner. She asked if the tolerance range was being covered.

Mr Marneweck replied that nothing was ever one hundred percent correct. There was always tolerance for error.

Adv Strydom said that page 17, line 13, made it sound as if the prescribed manner related to the packaging, which was why “manner prescribed for pre-packages” was inserted into line 20 of page 17.

Mr Marneweck said that line 36, where clause (1)(e) was stated, made clear that it was not when delivered.

The Chairperson asked if “delivery” could be excluded.

Adv Van der Merwe replied that it was not repeated in subclauses (a), (b) or (c). There was no reason to have it stated differently. It could be retained in (e)..

Mr Hill-Lewis asked why “sold by such person” (line 22) was needed.

Dr James drew attention to the phraseology in line 23, “otherwise than in prepackaged form”.

Mr Marneweck replied that it referred to ordering 1.9 kg of mince, for instance, that had not been prepackaged.

Dr James remarked that it was a strange use of English.

The Chairperson asked if he wanted better English to be used and asked for suggestions.

Dr James replied that it was the phrase “other than” that was the problem.

Mr Marneweck noted that it referred also to higher quantities not prepackaged, like sand ordered by mass.

Mr Hill-Lewis suggested that “by such person” be removed.

Adv Strydom moved on to page 17, line 52, where “and employed by a repair body” was omitted.

Adv Strydom noted that on page 18, the convoluted and cumbersome language previously used in clause 38(1)(l) had been broken down.

On page 19, at line 44, the phrase “evidence in any” (court of law) was omitted, and “required by a” (court of law) was inserted into line 45. On the current reading, someone who litigated in court could request that certain information be divulged. There was a fear, however, that this opportunity could be abused to obtain confidential information. This latest amendment was saying that it could not be the norm that information be disclosed, and it could only be divulged where the Court had so ordered.

Adv Van der Merwe added that no disclosure law was being excluded.

Adv Strydom referred to page 20, line 7, where “of the National Regulator for Compulsory Specifications Act” was inserted.

Adv Strydom noted that on page 22, “for one additional term of five years” was inserted, into clause 6(2). He drew attention to the fact that from page 21, the remainder of the Bill was written in a schedule format. It was in fact a new bill. The Amendment Bill was contained in the schedule. The new proposed law was a separate bill.

On page 23, under item 11(1), the word “appoint” was replaced by “establish”. Under 11(2) “the members of” was removed.

On page 24, under (5) “specialist” was inserted to form “specialist committee”. Items (6)(a) and (b) were rephrased.

The Chairperson noted that the Bill provided protection against short or inaccurate measure. It was a fresh bill that contained an amendment bill within it. It was brand new, but half of it was then amended. She asked what would happen if only 10% of it were still new some day.

Adv Strydom replied that the legislative process was cumbersome and expensive. The amendments that were set out in the Schedule had consequences for other Acts of Parliament. Consequential Acts could not be amended in Parliament. The Schedule had been chosen as the correct vehicle because it actually amended other Acts of Parliament. The Bill was a fresh one,. The consequence of certain amendments to the Bill were contained in the schedule.

Mr G McIntosch, (COPE) remarked that he was puzzled greatly to find “a kangaroo in the pouch” of the Bill. However, a careful reading of section 42(3) indicated why this was being done, but he still found it very strange.

The Chairperson remarked that the original would kick in when there was a memorandum and cleanup. She asked the legal drafting team to clean up the Bill, and allow the Committee to go through it again, after which it would go to the printers.

The meeting was adjourned.

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