Performing Animals Protection Amendment Bill B9-2015, Plant Improvement Bill & Plant Breeders’ Rights Bill: briefings

Meeting report

Protection of Performing Animals Amendment (PAPA) Bill: Legal and drafting issues
Ms Desiree Swartz, Parliamentary Legal Adviser, informed the Committee that the Constitutional Court had found that sections 2 and 3 of the Performing Animals Protection Amendment (PAPA) Bill of 2015 were inconsistent with the constitution, but it had suspended the order of invalidity for 18 months. The judgment that had been delivered on 11 January 2013 had remained valid until 10 January 2015. However, on 27 November 2014, the Constitutional Court had extended the period of suspension of the order until 12 July 2015, which was the deadline for the Amendment Bill to be passed and assented to by the President.

Clause 3 of Section 3F (1) (a) was found to be very broad. It was not clear how a National Licensing Officer would determine “the purpose of the Act” when there was no clause that set out the purpose. It was proposed there should be a clause in the Bill that set the purpose of the Act.

It was further proposed that Clause 3 of Section 3H (“Application for licence”) should be before Section 3F, which deals with the consideration and granting of applications for licences by the National Licensing Officer. It was also proposed that an amendment should be made to Section 7 in order to make provision that the Minister may prescribe fees.

With regard to Clause 4, it was proposed that the heading to this clause should also make reference to the other Acts that amended Section 11. It should read: “Amendment of section 11 of Act 24 of 1935, as amended by Section 7 of Act 7 of 1972 and Section 9 of Act 7 of 1991”.

Pertaining to Clause 5, Section 11A was to be repealed to Section 11B. It was reasoned that it was impossible to have the same section number given for a new section that dealt with “Appeal against decision or action by the National Licensing Officer”. It was proposed that Clause 5 of Section 11A should be broken down in more subsections, as the content of the section dealt with more than the heading to the section.

Subsection 1 of Clause 5, which dealt with making an appeal to the Minister against a decision, came under scrutiny on the basis of practicality, and it was stated it was better to appeal to the board because the Minister referred an appeal to the board and was not involved after that.

Lastly, she was of the view that Paragraph 11.5, bullet 3 of the Bill did not allow a delegation to officials of the provincial departments, so it was questioned if provincial officials would be involved in the administration of the Bill.

PAPA Amendment Bill Presentation
Mr Mooketsa Ramasodi, Deputy Director-General, DAFF, said that the Department had noted the Constitutional Court judgment and had initially considered the implications and explored three options. Option 1 considered the technical amendments to the existing PAPA and focused only on sections 2 and 3. Option 2 considered a total repeal of the Act and a replacement with the new Animal Welfare Act. Option 3 considered a total repeal of the Animal Protection Act (APA) and PAPA.

The Department had decided to go for Option 1, because it remedied the Constitutional Court judgment more quickly than the other options. Its implementation was adopted as it would assist Parliament to comply with the Constitutional Court judgment. In a nutshell, the Bill proposed that the functions of issuing licences, previously performed by magistrates, be delegated to the Provincial State Veterinary Office or any office of DAFF with animal scientists in the same magisterial area.

The technical amendments provide for:

• the designation of a National Licensing Officer;
• a procedure for the application for a license to exhibit, train or use an animal;
• the functions of a National Licensing Officer;
• the issuance of licences;
• the insertion of certain definitions; and
• an appeals process.

Clauses 1 and 2 of Sections 2 and 3 had been declared unconstitutional by the Constitutional Court on the basis that a member of the Judiciary should not be performing administrative actions that were supposed to be performed by the Executive.

Clause 3 set out a procedure for the granting and issuing of licences and matters connected with that so as to ensure compliance with the Constitutional Court judgment. This clause, amongst other things, provided for:

• the designation of a National Licensing Officer;
• the qualifications and functions of the National Licensing Officer;
• the appointment of experts to assist the National Licensing Officer;
• the delegation of powers and functions by the National Licensing Officer; and
• the procedure for the consideration and granting of applications for licensing.

Clause 4 dealt with the amendment of Section 11. This clause sought to incorporate additional definitions into the Act that were consequential to the revised procedure adopted for the granting and issuing of licences. The following definitions had been inserted: “Animal Scientist”, “Officer”, “National Licensing Officer” and “Veterinarian”.

Clause 5 provided for an appeal process by the insertion of section 11A, which provides for the establishment of an ad hoc appeal board by the Minister, the appointment of members, and appointment of the chairperson and functions of the chairperson and the board.

Clause 6 provided that the short title of this Act, upon its enactment, should be the Performing Animals Protection Amendment Act of 2014, and this would come into operation on a date fixed by the proclamation in the Gazette.

Parallel to this, Mr Ramasodi said a holistic Animal Welfare Strategic Framework had been drafted in response to the short-term and long-term animal welfare matters, and was currently undergoing formal Departmental approval processes. A comprehensive “modern” Animal Welfare Bill was envisaged and it would repeal and substitute all old Animal Welfare laws.

In view of the time constraints, the Department had also successfully approached the Constitutional Court to request an extension up to 12 July 2015. DAFF continued to interact with stakeholders on PAPA, and a media statement had been issued. Radio and television material was in the production phase. The draft bill had been published in the Gazette for public comment on 19 April 2014 and written comments had been received from various stakeholders, such as the Humane Education Trust, the Dog Club, Love South African Circus, the Animal Anti-Cruelty League, the SA Dog Academy and the South African Federation of Sledding Sports.

A stakeholder consultative workshop had been held on 16 May 2014 and was attended by representatives of various stakeholders, including the DAFF, Animal Action, the film industry, Wet Nose, Boswell’s Circus, Linda Security, McLaren’s Circus and the Commercial Producers’ Association.

Finally, looking at the financial implications, DAFF and its provincial departments would in the short-term reprioritize the existing resources in order to accommodate the new functions. The departments would be encouraged to utilize existing state veterinarians and animal scientists in different municipal districts. However, the future years would have to cater for the new component on Animal Welfare, and an estimated budget of R54m had been envisaged to carry the operations and the structure of the National Licensing Officer; technical staff; and administrative staff.

Plant Improvement Bill Presentation
Ms Noluthando Netnou-Nkoane, Director of Genetic Resources, DAFF, told the Committee the purpose of plant improvement legislation was to regulate the quality of plants and propagation material intended for cultivation and sale by means of the registration of types of businesses and premises involved in this field. It would also cover the national listing of plant varieties, the import and export control of plants and propagation material, and improvement schemes.

In the development of the Plant Improvement Bill, experiences and constraints in the implementation of the Plant Improvement Act of 1976 had been considered, including other relevant national legislation, strategies and policies. The Bill recognised the importance of quality propagating material to support sustainable agricultural production and the important contribution of the seed trade to the economy. It also recognised the important role of quality standards for plants and seeds, as well as the standards for the types of businesses dealing with plants and seeds, towards food security.

At the time it was being developed, consultation and national workshops were carried out with key stakeholders. A notice had been published in the Government Gazette for public comments. Talks had been held with the affected Departments of Science and Technology, Trade and Industry and Environmental Affairs, including the National House of Traditional Leaders. The inputs had been incorporated and the draft Bill had been finalised. The State Law Advisors had made comments on the Bill, and it was not in conflict with the Constitution and other government legislation. The final Bill had been certified by the State Law Advisors.

Because the current Act dated from 1976, it had been found it did not cater for recent developments. Its penalties and enforcement procedures were not effective. The structure of the current Act was too cumbersome and difficult to read, and it posed difficulty in facilitating the participation of small-holder farmers in current certification schemes.

Section 2 of Chapter 1 dealt with types of crops covered and how to extend to more crops. Sections 3-8 of Chapter 2 looked at the designation and functions of the Registrar, discretionary powers, registers and inspection of documents. Sections 9-21 of Chapter 3 dealt with the types of businesses requiring registration, application and registration procedure, requirements and termination. Sections 22-23 of Chapter 4 looked at the requirements for plants and propagating material and exemptions for certain plants and propagating material.

Sections 24-26 of Chapter 5 looked at the content, maintenance and publication of the National Varietal List and the removal of varieties. Sections 27-32 of Chapter 6 were about varieties eligible for listing, and the procedure for application, documentation and objection. Sections 33-34 of Chapter 7 dealt with the requirements for denominations. Sections 35-37 of Chapter 8 looked at requirements for testing and decision-making and evaluation for distinctness, uniformity and stability (DUS).

Section 38 of Chapter 9 looked at optional evaluation for cultivation and use. Section 39 of Chapter 10 was about the procedure for hearings by the Registrar. Section 40 of Chapter 11 covered the National Varietal List Journal and its content. Sections 41-42 of Chapter 12 covered procedures for inspections and inspection on grounds of warrant, while Sections 43-44 looked at the requirements and procedures for the importing and exporting of plants and propagating material.

Sections 45-46 of Chapter 14 looked at the types of schemes and procedures to establish. Section 47 of Chapter 15 dealt with the procedure for appeals against decisions by the Registrar or authority of a scheme. Sections 48-51 of Chapter 16 were about the purpose, composition and procedures of the Advisory Committee. Sections 52-63 of Chapter 17 looked at the request for tests by other authorities, disclosure of information, regulations, offences and penalties, evidence, liability, delegations and repeal of laws.

In implementing the Bill, the National Authority for performing tests for variety listing was in place and it included two evaluation farms in Roodeplaat and Stellenbosch. The Official Seed Testing Station, which was internationally accredited by the International Seed Testing Association, was also in place at Roodeplaat. The appointment of an Advisory Body would follow the process of calling for nominations and appointment by the Minister. The systems for registration of premises and national inspection services were also in place for enforcement.

Plant Breeders’ Rights Bill
Mr Thabo Ramashala, Director of Plant Production, DAFF, informed the Members that plant breeders’ rights in South Africa were protected under the Plant Breeders’ Rights Act of 1976. The Act provided for the requirements for the grant, the scope of protection of plant breeders’ rights, the granting of licences and other matters.

When the Bill was drafted, consultation with stakeholders had been carried out and national and provincial workshops had been conducted in the Eastern Cape, Free State, Limpopo and Western Cape. The state law advisors had made inputs to the Bill and pre-certified it. The Competition Commission, Economic Cluster and Economic Cabinet Committee had also forwarded inputs in 2014. The Bill received a certificate in February 2015.

The Plant Breeders’ Bill, when it was developed, had taken into account the principal legislation, the Plant Breeders’ Rights Act of 1976, and the experiences and constraints in the implementation of the Act and available options to protect intellectual property rights concerning plant varieties. It had also considered relevant international obligations and other relevant national legislation, policies and strategies and programmes.

The Bill recognises the importance of new plant varieties to support sustainable agricultural production, the important role of breeders in developing new plant varieties and the importance of an effective plant variety protection system. It further acknowledges the considerable investments needed to develop a new variety, the need to provide incentives for breeders of new plant varieties and the importance of balancing the needs of farmers and breeders.

Section 1 of the Bill defined the breeder as:

• the person who bred, or discovered and developed, the variety;
• the employer of the person contemplated in paragraph (a), if that person was an employee whose duties were such that the variety was bred, or discovered and developed, in the performance of those duties;
• the successor in title of the person contemplated in paragraph (a), or the successor in title of the employer contemplated in paragraph (b).

Sections 2-6 of Chapter 1 looked at the designations and functions of the Registrar and the Register of the Plant Breeders’ Rights. Sections 7-9 of Chapter 2 dealt with the protection given to the holder of plant breeders’ rights, the duration of the plant breeders’ rights, and the period of sole rights and exceptions to plant breeders’ rights. Exceptions to the scope of the plant breeders’ rights were around breeding other varieties, acts done for experimental purposes, acts done privately and for non- commercial purposes and farm-saved seed.

Sections 11-14 of Chapter 2 were about the exhaustion of plant breeders’ rights, joint holders of plant breeders’ rights, transfer of plant breeders’ rights and the State being bound by plant breeders’ rights. Chapter 3 dealt with the varieties in respect of which plant breeders’ rights may be granted. It may be granted in respect of any variety of all plant genera and species, excluding fungi and algae, if it was new, distinct, uniform and stable and had an acceptable variety denomination.

Sections 15-22 of Chapter 3 looked at the application for the grant of a plant breeder’s right, priority and redating of applications, provisional protection, rejection of application, acceptance and registration of application, amendment of application and objection to application for the grant of a plant breeder’s right. Sections 23-25 of Chapter 4 dealt with the denomination of variety, amendment of denomination and marking of labels and containers. Sections 26-28 of Chapter 5 scrutinised the examination of variety and grant of plant breeders’ rights.

Chapter 6 covered the hearing of objections. Sections 30-31 of Chapter 7 looked at the payment of annual fees and maintenance of propagating material. Sections 32-33 of Chapter 8 dealt with the infringement of plant breeders’ rights and remedies in respect of infringement of plant breeders’ rights. Chapter 9 covered licences – the hearing of applications for and issuance of compulsory licences.

Sections 37-39 of Chapter 10 considered the expiry of plant breeders’ rights, the cancellation of plant breeders’ rights and voluntary surrender of plant breeders’ rights. Chapter 11 was about the enforcement of plant breeders’ rights, while Chapter 12 dealt with appeals against decisions or actions by the Registrar. Sections 42-45 of Chapter 13 considered the establishment of an Advisory Committee, the appointment of its members and termination of membership, disclosure of interests by members and meetings of the Committee.

Sections 46-58 of Chapter 14 dealt with general provisions like offences and penalties, correction of errors, repeal of amendments, jurisdiction of magistrate courts, prohibition of trafficking by officers, disclosure of information, entering of premises for inspection, regulations and delegation.

Mr Ramashala concluded by saying the National Authority to manage the Plant Breeders’ Rights systems was in place, and included two evaluation farms situated at Roodeplaat and Stellenbosch. The appointment of an Advisory Body would follow the process of calling for nominations and appointment by the Minister, and an awareness programme on the Plant Breeders’ Rights would be developed during the 2015/16 period.

Discussion
Legal and drafting issues identified in the Protection of Performing Animals Bill were first up for discussion.

Ms D Carter (COPE) wanted to know the definition of ‘any animal’ as stated in the Bill.

Ms Phumelele Ngema, Parliamentary Legal Advisor, explained that the definition of animal was covered by the Animals Protection Act 71 of 1962 and meant any equine, bovine, sheep, goat, pig, fowl, ostrich, dog, cat or other domestic animal or bird or any wild animal, wild bird or reptile, which was in captivity or under control of any person.

Ms A Steyn (DA) asked for clarity regarding the tagging of the Bill.

Ms Ngema said the Performing Animals Protection Amendment Bill had been tagged as a Section 75 Bill by the Joint Tagging Committee. She said it was a very complex matter to tag a Bill, especially where the subject of the Bill did not fall squarely in a functional area that was listed in schedule 4 or 5 of the Constitution.
 
She said there were a few functional areas which they considered could be involved in the content of the Bill. These included the consideration of “animal control and diseases,” which was a schedule 4 concurrent functional area. Considering the definition of “animal”, one could also argue that under schedule 5, few functional areas called for one to apply one’s mind to the “licensing of dogs” facilities for the accommodation, care and burial of animals.

One Member of the Committee suggested the Bill should be referred to the National House of Traditional Leaders, because some rural communities made use of wild animals for their traditional activities.

Ms Ngema informed the Committee the referral of the Bill to the National House of Traditional Leaders in terms of Section 18 of the Traditional Leadership and Governance Framework Act 41 of 2003 was not applicable because the content of the Bill did not contain provisions that pertained to customary law, indigenous law or customs of traditional communities, or did not regulate nor seek to alter the traditional customs or customary law.

Mr B Thomas (ANC) proposed an extension of time for consultation before the court could proceed with its work in terms of finalising the Bill, because he felt consultation with traditional leaders was still needed. They were going to be affected by the legislation, irrespective of what the law said, because the majority of animals were in rural areas.

Ms Carter referred to the DAFF presentation, and asked how the Department was going to finance PAPA with a budget of R54m, in the light of the budget cuts the Department had experienced, because it appeared that some of the problems raised last year in September had not been resolved.

Professor Edith Vries, Director-General: DAFF, explained the Department was dealing with the ruling of the Constitutional Court, whether it had a budget or not. The Department had made financial projections and she indicated this branch of DAFF generated R120m per annum. The Constitutional Court had made sure Parliament would get the law enacted, and DAFF had explained to the Constitutional Court about the cause for the delays.

Ms Steyn intervened, saying it was the Department that had been delaying matters because it had been informed immediately after September last year, but had failed to report to the Committee by November 2014. It was not the Committee that had been delaying the process.

Ms Carter commented that the Department was arrogant and not willing to listen to the Committee, and that was why it was failing to do its work.

Mr M Filtane (UDM) asked if the issuance of a notice regarding consultations in the Government Gazette was sufficient. He then wanted to establish if there were not minimal limitations with security companies in terms of regulating the issuance of licences.

Dr Tembile Songabe , Vetrinary Public Health, DAFF, said the consultation was not enough and that was why they were making use of radio and TV advertisements. Concerning security companies, he said there were few who had responded and they were thinking of starting road shows.

Ms Steyn asked for clarity on the delays for the passing of the Amendment Bill.

Mr Ramasodi stated that the Bill had to go through the economic sector infrastructure development unit, outside of the Department, and had now been approved by the economic sector infrastructure DG Cluster.

Mr Filtane suggested that the Department should go back and act on the concerns of the Committee and those of the stakeholders in putting the law together, and should report back to the Committee before 21 April 2014.

Plant Improvement Bill
Mr Filtane referred to the variety of persons classified as breeders, and suggested the use of the words “legal persona” if the intention was to incorporate everyone instead of listing different types of breeders, as this could unintentionally exclude other people even though they might meet the requirements. Further, he wanted to know what determined the termination of the plant breeders’ rights. He enquired if medicinal plants were covered in the Bill.

Ms Netnou-Nkoane, referring to the variety of persons, said the definition was going to be left that way so that it could be understood by everyone. On the termination of rights, she said the protection was on the variety itself, not on the owner. Concerning medicinal plants, she explained that they checked if one complied with the Biodiversity Act and Indigenous Knowledge Systems Act. One had to provide proof of the application and show that the process had been followed.

Ms Carter wanted to establish if the Department was starting to modify products, and where genetically modified organisms (GMOs) were fitting into the process.

Ms Netnou-Nkoane stated that DUS standards were equally applied to GMO crops, and none of the fruits and vegetables produced in South Africa were genetically modified. Only 85% of maize, 99% of cotton and 95% of soya were genetically modified.

Adoption of minutes
Minutes of 10 March 2015
The Chairperson took the Members through the document, page by page, and said the document reflected the concerns raised and resolutions taken by the Committee.

Ms Steyn proposed acceptance of the minutes. Mr P Mabe (ANC) seconded.

Minutes of 13 March 2015
The Chairperson took the Members through the document, page by page. The Chairperson said the document reflected the concerns raised and resolutions taken by the Committee.

Mr Mabe stated the resolutions did not say anything about the invitation sent to the Trust to come and make a presentation to the Committee.

Mr Filtane commented that no responses from Members were reflected in the minutes. It was only the concerns and questions that were reflected.

Ms Steyn proposed for the acceptance of the minutes. Mr Filtane seconded.

Minutes of 17 March 2015
The Chairperson took the Members through the document, page by page. The Chairperson said the document reflected the concerns raised and resolutions taken by the Committee.

Ms Steyn proposed acceptance of the minutes. The Chairperson seconded.

The meeting was adjourned.