Performing Animals Protection Amendment Bill [B9-2015]: deliberations; Committee Support Officials on Plant Improvement Bill [B8-2015] and Plant Breeders’ Rights Bill [B11-2015]

Meeting report

Plant Breeders’ Rights Bill

Ms Phumelele Ngema, Parliamentary Legal Advisor, briefed the Members about issues that had arisen from the public hearings and the response the Department of Agriculture, Forestry and Fisheries (DAFF) had given to the processing of the Plant Breeders’ Rights and Plant Improvement Bills before the Committee, and touched on proposed clauses that required a new look for drafting purposes.

With regard to the International Union for the Protection of New Varieties of Plants (UPOV), she said that Section 231 (5) of the Constitution explained the status of the 1978 UPOV and its binding effect. The DAFF had informed the Committee that only the 1978 UPOV had been ratified and it was the only one that was binding, and not UPOV 1991. However, it should be kept in mind that the 1991 UPOV was the revised version of the 1978 one.

The Committee heard that both these conventions related to plant breeding and plant varieties, and that was why the relevant Bill linked to them was called the Plant Breeders’ Rights Bill. This Bill had, for example, adopted word for word all the definitions of the UPOV 1991. In the light of this, there was no need to argue either for the ’78 or ’91 UPOV incorporation, as other objectors had done.

Clause 10 (2) (a), when read with UPOV ’91, made provisions for the Minister to prescribe regulations on categories of farmers that may use protected varieties. Looking at articles 14 to 17 of the UPOV ’91, she saw no restriction or problem created by clause 10 (2) (a). In fact, the Bill defined “protected variety” as a variety in respect of which a plant breeder’s right had been granted, and that definition was aligned with the purpose of the Convention as well as the intention of the Bill.

Article 5 of the ’91 UPOV stipulated that the breeder’s right should be granted where the variety was new, distinct, uniform, and stable. The protected variety was that which met the criteria set out in article 5 and the definition in the Bill. UPOV ’78 provided in article 2 (2) that each member state may limit the application of this Convention within a genus or species to varieties with a particular manner of reproduction or multiplication or certain end-use.

Articles 5, 6, 7, 8, 9, 10, 13 and 14 of the ’78 UPOV addressed the protection and rights for breeders with protected varieties. These provisions were also not in contradiction with clause 10 (2) (a). Clause 11 dealt with the exhaustion of plant breeders’ rights. Objectors had indicated this was a restriction to the breeder’s right and confined the extent of the protection of the breeder’s right.

The protection and limitation in Clause 11 did not extend to the breeds that were already in the market. It also excluded the breeder’s rights for varieties mentioned in Clause 7 (3) and those which were already in the market at the commencement of this Act.

Article 6 (2) of UPOV ’91 had paraphrased what had been covered in UPOV ’78 article 6, when it was read together with articles 12 and 13. What article 6 (2) of UPOV ’91 did was to bring clarity in draft form and opted for simple English that was precise. The Bill complied fully with the obligations conferred and expected of member states, as depicted in article 30 of UPOV ’78, as well as the concern raised in respect of Clause 13 of the Bill.

Clauses 19 and 21 dealt with how the application of a breeder’s right was rejected. The response from DAFF in respect of the Clause 21 objection did not provide clarity, in that they had not offered a way forward, and this was a technical and policy concern.

Clauses 51 (3) and 52 (1) (b) empowered the Minister to determine administrative penalties for contravening the regulations, and set limits for such penalties. Such a provision may be intended to create consistency and guide the courts when deciding sentences on these matters, while the courts were inherently empowered to consider each peculiarity and circumstance of each case upon conviction. Both these clauses were empowering provisions stemming from the main legislation, and that was what the law required.

Clauses 52 (1) (b) and 52 (1) (a) created a statutory offence. However, the offence required no further policing capacity as suggested by the submission. Instead, the contravention would easily be detected through appropriate administrative functions of the Registrar or DAFF systems, and would be taken through the prosecuting processes where necessary.

Clause 46 (6) and Section 24a (6) enabled entry into premises without a warrant, but with consent of the owner or authorised person.

Discussion

Mr T Ramokhoase (ANC) indicated that the presentation had made it clear that Members should not be bothered about UPOV 1978/1991. It could be concluded that UPOV 91 was the upgrade of UPOV 78.

Dr Tembile Songabe, Director of Veterinary Public Health: DAFF, further informed the Committee that the DAFF had taken a strong stand over the destruction of imported good without compensation. It was an offence to import goods without following import procedures.

Plant Improvement Bill

Ms Ngema pointed out that Clause 38 of the Bill, on variety value, cultivation and use (VCU), did not contend with the view of the objectors. What the Clause sought to do was to enable the Registrar -- when there was doubt and for the benefit of the public -- to intervene and make an evaluation that determined properly what the value of that variety should be. This was because the Registrar possessed the expertise and knowledge that could be used comparatively to reach a fair value and know if the variety was harmful.

Clause 43 dealt with import rules in respect of plants brought into the country and the consequences for failure to comply. However, there was a concern over the destruction of the imported goods without compensation, as this amounted to unfair deprivation and there was no qualifier as to whether such material would be harmful to the Republic or have any other repercussions.

The submission seemed to be premised on the view that the importer would be different from that of the buyer or seller. Clause 43, in the manner it was phrased, seemed to cater for all such eventualities, and determined with whom the final responsibility of compliance lay.

Clause 44 dealt with exports. It stated that if the Republic expected quality imported products, the same standards should be applied to products that the Republic exported. This would not only boost economic relations, but would also give the country a reputable status and international standing.

She also pointed out that in Clause 49 (10), there was a point that needed to be considered. This was around whether the remuneration of the Advisory Committee members should not be prescribed after consultation with the Minister of Finance. Clause 47 (2) (b) stated that the prescription of the remuneration of the members of the Appeal Board could have consistence if made after consultation with the Finance Minister.

The role played by the Minister during Clause 47 appeals must be clear. For instance, it was stated that the aggrieved person filed the appeal with the Minister, but the Minister did not make any decision on the appeal. The Board made the decision, and the Minister did not even get to be informed of the decision of the Board. It was also not clear to whom the Board was reporting. The Minister became a kind of a post box. She suggested that Clause 47 should be re-drafted.

Performing Animal Protection Amendment (PAPA) Bill

Adv Yolandé van Aswegen, Office of the Chief State Law Adviser, took the Members through the proposed Performing Animal Protection Amendment (PAPA) Bill working document, page by page.

Page 3

The Chairperson, on 3D, wanted to know why it was not the Minister that appointed the experts.

Ms Ngema responded that it was the duty of the Director-General to appoint officials.

Page 4

Ms A Steyn (DA), on 3F2(d), suggested the line to be rephrased, and the word ‘equipment’ be inserted.

Adv Van Aswegen, on 3F2(d), suggested that ‘living quarters’ be replaced with ‘accommodation’.

Dr Songabe, on 3F2(d), proposed the insertion of ‘when performing and not performing’.

The Chairperson, on 3F2(c), proposed for the insertion of ‘full’ before ‘description’.

Mr N Paulsen (EFF) suggested the Bill should be prescriptive and state clearly the type of animal that was going to be used for safeguarding and exhibition.

The Chairperson said it was not only dogs that were used for safeguarding. There were also other animals that were used for exhibition. That was why the Committee had decided to use the word ‘animal’ and not be specific. The Chairperson further noted that Members should be aware that the Act was going to be read with the Protection Animal Act.

Ms Steyn, on 3F2(d), said there was nothing that spoke about the issue of travelling.

The Chairperson referred Members to Section 10 (c) and (d) of the Regulations. She said the things that Members wanted could be included in the Regulations.

Mr Ramokhoase suggested the Committee should proceed to the next item, because the Chairperson had explained everything.

Ms Steyn proposed that the age of the animal that was going to be used for exhibition or safeguarding should be stated.

Dr Songabe explained that the issue Ms Steyn was raising was contained in the Bill 3F2(a).

Ms Steyn wanted to know which Act covered the methods of training for safeguarding and exhibition.

Dr Songabe stated that the Animal Protection Act covered that aspect.

Ms Steyn proposed that information on whether the applicant had ever held, or had been previously refused a licence, should be stated in the Bill.

Mr Ramokhoase said that that information would be covered and verified when one made an application.

Ms Ngema reported that this was already covered in Section 3H (a), (b) and 3I.

The Department agreed that the suggestion of Ms Steyn should be inserted as (i) in 3F2.

Ms Steyn, on Subsection 3, suggested that ‘may’ be changed to ‘must’.

The Chairperson indicated that that was not possible, because the legal practitioners had explained to the Committee about the use of ‘may’.

Ms Steyn then suggested that 3G should fall under 3J

The Department agreed.

Page 6

Ms Steyn proposed that 3L should come before ‘Suspension, withdrawal or amendment of licence’ on Page.5.

The Department agreed to place 3L after ‘Duration of licence’.

Mr R Cebekhulu (IFP), on 3N (4), wanted to know who prescribed the remuneration of Board members.

Ms Ngema said it was the Minister who prescribed.

Professor Edith Vries, Director-General: DAFF, indicated that the process followed Treasury guidelines.

Page 7

Ms Steyn, on 3P, regarding the consideration of appeal by the Minister, remarked that there was too much power on the hands of the Minister in terms of the final decision, because it was indicated in the original Bill that it should be the Appeal Board that had the final say.

The Chairperson explained that the Minister was responsible for the implementation of the Act. The Board was helping the Minister with the appeals.

Ms Steyn wanted to know how many days the Minister could take to hear the appeals. There were no timeframes stated in the Bill.

A legal advisor from the DAFF said that the Minister must do so within a reasonable time, and this meant 90 to 100 days. This could be further extended if there was a need. This information was going to be contained in the Regulations.

Page 8

Ms Steyn, on Section 5, regarding the ‘obstruction of the police officer’, proposed the provision of ‘both’ on penalties and sentencing.

Ms Ngema said that was not a problem. Provision would be made for the magistrate to use discretionary powers regarding this, and this would be included in the final draft of the Bill.

Mr C Maxegwana (ANC), on Regulation (c), asked for clarity on ‘animal class’.

Dr Songabe said ‘animal class’ referred to ‘breed’.

Page 10

The Chairperson, on Section 11 (b), regarding the definition of ‘an animal scientist’, asked for clarity on the use of both ‘professional’ and ‘certificated’.

Ms Nokuzola Mgxashe, Committee Researcher, said that this provided for the different categories of qualifications – those with a professional practice number and those who had a diploma or a BTech. That was why both words were used. Under ‘Certificated’ there were two levels. Level A comprised those with a diploma, plus one to three years’ experience. Level B consisted of those who did not have a three-year diploma and the necessary experience.

Dr Songabe added that the consideration was based on the expertise the practitioners possessed. Those who had diplomas did qualify to carry out the duties of an Animal Welfare Scientist, but Animal Welfare Assistants did not necessarily have to have a diploma.

The Chairperson suggested that ‘certificated’ be removed and ‘professional’ be retained.

Adoption of Minutes

The Committee adopted two sets of minutes.

The Chairperson took Members through the minutes of 4 August 2015, page by page.

Mr Ramokhoase moved their adoption and Mr S Mncwabe (NFP) seconded him.

The Chairperson took Members through the minutes of 11 August 2015, page by page. Ms T Tongwane (ANC) moved their adoption. Ms Steyn and Mr Paulsen seconded her.

The meeting was adjourned.