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ECONOMIC AND FOREIGN AFFAIRS SELECT COMMITTEE
4 November 2002
INTERNATIONAL TRADE ADMINISTRATION BILL: NEGOTIATING MANDATES
Chairperson: Mr MW Moosa (ANC)
Documents handed out:
International Trade Administration Bill [B38B-2002]
Negotiating Mandates from Nine Provinces (please email firstname.lastname@example.org for a copy)
The Provinces presented their negotiating mandates to the Committee. However, the Department indicated that they would be loathe to accept amendments which made the Bill even more complex. The Department had already undertaken extensive discussions with key constituencies and so many of the issues the Provinces were bringing as amendments had already been discussed in depth. Certain provinces proposed amendments and the Department responded to these, although they had difficulty with many of the proposed changes.
The Department was represented by Mr Tshediso Matona: Deputy Director General of the International Trade and Economic Development, (DTI), Ms Nomonde Maimela: Chief Executive Officer of the Board on Tariffs and Trade (DTI), Dr Johan Strydom, DTI Legal Advisor. Mr Brink: International Trade Administration, was also present.
Negotiating mandates had been received from all Provinces apart from the Northern Cape and North-West. The Northern Cape had initially experienced problems getting a mandate but undertook to have one available by Wednesday.
Adv Lever (DP-NorthWest) said that he understood the negotiating mandate was to be forwarded to the Committee but, nevertheless, Mr Moosa had been told by the Chief Whip of the Province that there were no proposed amendments so the meeting could proceed without it.
Mr Moosa asked the Provinces to present their mandates to the Committee. Following this, Mr Matona, Deputy Director General, said that it was important to note that the Bill was very complex as it stood so the Department would be loathe to accept amendments which made it even more complex. The Department had undertaken extensive discussions with key constituencies and so many of the issues the Provinces were bringing as amendments had already been discussed in depth.
Dr Bhengu (IFP-KZN) reported that the Provincial Standing Committee supported the Bill and would also support any minor amendments, provided they did not alter the substance of the Bill. If any substantive amendments were to be adopted, these should be forwarded to the Province for their approval.
Mr Matona noted said that, whilst the presenter said that KwaZulu-Natal had no amendments, their document in fact contained many. Especially the comments that 'confidential information' need not be incorporated as the Promotion of Access to Information Act (POATIA) proceeded and so superseded the current Bill. Therefore, no explicit reference to the Act needed to be made. Indeed, the companies were aware of the terms of POATIA and would bring it to the Department's notice on their own.
Mr Matona said the Province also proposed an amendment to Clause 38(3)(b) that the investigating officer was obliged to show the Certificate he or she was conducting a search under. However, he said that the Bill provided that the certificate had to be shown to whoever was affected by it, and by anyone else who asked to see it.
Dr Bhengu (IFP-KZN) said that these were not amendments but merely requests for clarification.
Adv Lever (DP-NW) said that he could not agree with the explanation offered by Mr Matona with regard to the requirements of the sub-clause. A plain reading showed that the investigator was only required to show the certificate to the affected persons if they requested it. Dr Strydom, the Legal Adviser to the Department, said that it was important that people did not have an ability to request to see a certificate on purely inquisitive grounds. Ms Maimela, CEO of the Board on Tariffs and Trade, said that it was not such a great administrative burden for the investigating officers to show the certificate, so the 'and' linking sub (I) and (ii) should be changed to an 'or'. However, the Committee disagreed.
Dr Davies, Chairperson of the Trade and Industry Portfolio Committee, was concerned that there may be a problem with the certificate being invalidated if there was no-one affected at the premises when the investigating officer wanted to enter. The Committee had a brief discussion on the various ways to proceed and decided to include a provision, similar to the Sheriff's power, to pin a warrant to the door of the premises to effect service if no-one was there to receive it.
Ms Themba (ANC-Mpumalanga) said that the Province supported the terms of the Bill but had a few additions. Clause 1, the definitions clause, should include in its definition of 'dumping' a reference to 'imports' and not simply 'exports'.
Mr Moosa also found this definition confusing. Mr Matona said the definition made use of internationally acceptable terminology. Dr Davies asked if it could be altered to read 'at export price as defined in s32(2)(a)'?
The Province pointed out that there was a grammatical error in Clause 6(1)(h) which included a superfluous 'or'. The Committee accepted this.
The Province also asked whether the Bill facilitated a strengthening between the Department and businesses of those previously disadvantaged.
Mr Matona said that the Bill regulated horizontal relationships, so it was not an appropriate case for special treatment for previously disadvantaged persons and companies. However, Ms Maimela, CEO of the Board on Tariffs and Trade, said that it was important to visit the Provinces. Companies led by those previously disadvantaged were made aware of its provisions and effects.
Mr Moosa said that the objects of the Bill had also been amended to include economic development.
The Western Cape supported the Bill and any grammatical changes, for example, which did not substantively alter the terms of the Bill.
The Eastern Cape supported the Bill in its aims and terms but had a few amendments. These took the form of political and legal amendments. Many of the legal amendments were consequential to the political amendments.
The Province wished to consolidate communication between the DTI and the Provinces, so it proposed that Clause 5 be amended to include a consultation with the MECs. In addition, there was a proposal amending Clause 15, that the Minister should designate one Commissioner per Province to liaise and consult with. Clause 21 should be altered so that the Minister was obliged to consult with 'a regulatory agency or organ of state' which at present was discretionary. The final amendment was a legal consequential amendment following on from the other politically motivated ones.
Mr Motana said that the requirement that the Minister must consult with the Provinces was fraught with difficulty. International trade was a dual-competence power. The Department had taken account of the need to communicate with many institutions and organisations and the result of these deliberations could be seen in the terms of the Bill. If the Provinces insisted that they be consulted, then business and labour organisations would feel slighted. Mr Moosa said that whilst this was a concurrent power as per Schedule 4, there was no historical or legislative precedent that Policy Directives or similar documents required consultation with the Provinces. If a national norm or standard was to be set, then it was the role of the Department to do this.
The Province also proposed that 'organs of state' should also be covered by the affected parties to a Notice issued under the terms clause 6(3).
Mr Matona said the Department were not happy with this amendment. However, Mr Moosa said that he thought it was a good amendment. The amendment would ensure that, if the Minister said no-one was allowed to import doughnuts, then Telkom would also not be allowed to import doughnuts.
There was a discussion on why the Act specified 'person' and 'firm or organisation' separately as this appeared to be leading to a situation where the terms of the Bill had to be very specific. The Departmental representatives said that the terminology of the Bill reflected other Acts, such as the Competition Act, and they would rather it remained as it was. The Committee were quite happy that the terms of any Notice issued from the Minister would apply to state owned companies as well as privately owned ones. Dr Strydom, Legal Advisor to the Department was asked to suggest an amendment.
The Province supported the Bill with no amendments.
Dr Conroy (NNP-Gauteng) supported the content of the Bill and supported the NCOP amendments with no additional amendments to propose.
There was no delegate from the Free State so Mr Moosa asked Mr Strydom, Legal Advisor to the Department, if he could ascertain whether any of their proposed amendments had already been dealt with by other amendments. Mr Strydom confirmed that the Province's suggested amendments to Clause 6(2) and (3) had been accommodated but he would familiarise himself with the document and inform the Committee in a few moments.
Those Members who had proposed amendments were asked to report back to their Provinces on the Committee's deliberations. Dr Strydom was asked to draft a report of all the amendments the Committee had proposed.
The meeting was adjourned.
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