The Department of Agriculture, Forestry and Fisheries (DAFF) took the Portfolio Committee through the existing amendments and changes to clauses in the Plant Improvement Bill, in order to ensure the agreement of Members with the draft. The Parliamentary Legal Adviser assisted with the reading of the Bill, and each clause was agreed upon individually after discussion.
The meeting paid special attention to the potential effects of the legislation on small or emerging growers. Members stressed that compliance with the Bill’s requirements may limit emerging growers due to their limited initial resources and despite their possibly innovative knowledge. After debate, reference was made to existing legislation that took into account this concern. Further concerns about delays during the issuing of certificates were raised as an additional impediment for small growers. Regarding time frames, aspects of re-submission and the provision of requested documents by the applicants were discussed.
General clarification about inspection concepts, processes and circumstances were requested for Clauses 15 and 28. Serious concerns were expressed about the designation of inspectors, as well as the possibly corruptive or coercive behaviour of delegated officials (Clause 42). Members suggested limiting the capacity of the inspectors to copy and request documents, and for narrowing their actions to relevant documents. Legal Advisers were also asked to clarify under what circumstances growers’ premises could be inspected without warrant, and in or out of office hours.
Without the completion of the overview and approval of the Bills, the session had to be adjourned.
Ms Phumelele Ngema, Parliamentary Legal Adviser, reminded the Committee that the Plant Improvement Bill and Plant Breeders Bill had been amended and the amendments were those informed during the last meeting. The purpose of this meeting was to go through the Bills, clause by clause, in order to follow the procedure and ensure all incorporated changes and details of the Bill were covered.
She proceeded to summarize the clauses´ changes and the amendment list for both Bills.
Ms A Steyn (DA) pointed out that in order to be sure of the correct content for each clause, as well as any aspect that could be reconsidered, the Committee should read the document in its entirety.
Ms Ngema clarified that in terms of the rules, it was not necessary to read the document clause by clause once the amendments were included, but only those sections that had been amended. However, as indicated by Ms Steyn, perhaps the entire document should be read, and she would proceed accordingly.
The Chairperson left it up to the Members to decide whether they would like to read the entire document, or focus on the changes made.
Ms Steyn commented that although it was not her intention to disagree with the Legal Adviser, she had been told that the Committee was required to go over the entire document as had been done in the past
The Chairperson reminded the Members that the reading procedure had been designed so that parliamentarians could ensure the suggested changes were in fact included, according to their petitions.
Mr N Capa (ANC) disagreed, and suggested the Committee should focus instead only on analysing the amendments to the original version, as the Committee had already interacted with the entire Bill.
Ms Steyn insisted on following the procedure.
Mr S Mncwabe (NFP) blamed the Parliamentary Legal Adviser for involving the Committee in an undesirable debate about procedural matters. He argued that the procedure should be followed, to comply with the standard requirements of the Committee.
The Chairperson agreed on avoiding issues of compliance, and proceeded to read the Bill entirely.
Plant Improvement Bill changes: overview and discussion
Clauses 1 to 11 were read, and it was agreed they should be included.
Mr Mncwabe emphasized that the matter at hand was of a sophisticated nature, and the quality of the product should be the most important aspect. However, given that emerging farmers found difficulties when entering the market, maybe the prescription should somehow consider their initial position.
The Chairperson contributed by adding that this clause was challenging, given that many growers may have the skills for plant improvement, but may lack the equipment or premises (according to the Registrar´s prescriptions).
Mr H Kruger (DA) agreed, commenting that legislation should bear in mind that many small growers -- perhaps university students with great doctoral knowledge -- started with little more than their production, and complying with all the requirements prescribed by the Registrar could become challenging.
Ms Ngema clarified that this provision should be read together with Clause 58, which dealt with the regulation which related to those prescriptions made by the Minister, not by the Registrar. The importance of this point was that ministerial action complied with the Constitutional mandate. She explained the administrative responsibility also to comply with the applicable regulation in any instance, as well as the capacity of the Committee to leave certain aspects open for consideration before the Parliament. According to her expertise, looking at the drafted legislation, all the previous concerns were covered.
Mr Kruger commented that the Legal Adviser was probably right in her explanation. However, as legislators, Members should consider the bureaucratic red tape that could translate into problems when applying the legislation in the case of small growers.
Mr Capa pointed out that in this matter, the Committee should consider 5.8.1 PQR, which ensured that regulations should take into consideration the issues affecting small growers.
Ms Steyn referred to the issuing of certificates granted by the Registrar, and suggested the need for mentioning estimated time frames, given the problems it could cause for growers if the issuing of this certificate was delayed.
Mr Noluthando Netnou-Nkoana, the Registrar, agreed it could become a challenge to send a certificate, although the issuing of documents was mostly on time, and maybe alternative delivery options could be explored. However, a time frame could be included.
Mr Capa asked the Legal Adviser if provision for re-submission was covered by any of the clauses, and suggested the inclusion of specifications, if not.
The Legal Adviser argued that with the existence of silence about re-submission, the possibility for the applicant was implicit following related legislation.
The Chairperson questioned why the clause specified that an investigation would be necessary if it was per se a requirement, according to the legislation.
Dr Julian Jaftha, Chief Director: Plant Production and Health, Department of Agriculture, Forestry and Fisheries (DAFF), clarified that sometimes there was no need for an investigation at some premises, but in certain cases an investigation was considered necessary.
Ms Z Jongbloed (DA) expressed concern about possible minor mistakes by the applicant during the application, which could slow down the issuing of a certificate.
Clause 26 (1)
The Legal Adviser pointed out the need to correct a typographical mistake, including “the” before “public interest”.
Mr Mncwabe asked for clarification about the use of physical address and residence, as he understood they were referring to the same concept.
The State Legal Adviser clarified that due to permanent and non-permanent residency, the two statuses may differ in some instances.
Ms Steyn expressed concern about the concept of “agent” through whom applications should
be channeled, as legislated.
The Legal Adviser explained the qualities of an agent as specified in the initial concepts described at the beginning of the Bill.
Mr Capa asked for clarity about the 21 days mentioned in the present clause, when a time frame of 14 days was always mentioned for petitions to the applicants.
Dr Jaftha informed the Committee that in that instance, the content referred to the administrative aspects of the process, rather than any for scientific reason.
The Chairperson supported Mr Capa´s question on the matter.
The Registrar defined the circumstances in which those 14 days were provided, as they related to ongoing processes where the applicant had been asked to bring additional documentation for reviewing.
The Chairperson asked why the Registrar was appointing advisors, as in her understanding it was the responsibility of the Minister to appoint personnel, especially in terms of selecting remunerated advisory professionals.
The Chief Director of the Department, answering on behalf of the legal experts and the Registrar, clarified that this provision intended to avoid duplications and unnecessary escalation of issues to the appeal process.
Dr Jaftha agreed with the Chairperson that in the beginning of the drafting, it had been clarified that those assisting with the process were to be recruited on a needs basis, and the Department foresaw that they would be selected from members of the Board of Appeals.
Mr Capa suggested that it would be necessary to establish indications of the Registrar’s utilization of the advisory personnel.
The Chairperson finalised the issue by stating that the Registrar would resource the expertise appointed by the Minister.
Ms Jongbloed expressed concern about the absence of a specific time frame with regard to what a “reasonable time” for advanced notices of hearing was.
The Chairperson asked for clarity about the profile of the individual entering the premises for inspection.
The Parliamentary Legal Advisor commented that clause 42 (1) was intended to enable the empowerment of officials designated, and those warranted, perhaps police officers.
Mr Mncwabe expressed a worry about non-inspectors carrying out inspections, given the sensibilities that searching properties implied.
Ms Jongbloed requested inclusion of a section regarding access to premises during office hours and those premises not occupied during office hours. She advocated limiting the capacity of the inspectors to copy and request documents, and for narrowing their actions to relevant documents.
The Legal Advisor explained that Clause 41 referred to premises that were registered, and they were inspected during office hours. Clause 42, on the other hand, had been put in place for when the Registrar had suspicions of non-compliant actions within non-registered premises, and in these cases of a specialised search, a warrant was required, with specific guidelines of procedure.
Mr Mncwabe said that with the existence of corruption and extortion, he considered the issuing of permission for inspection necessary.
The Chairperson closed the discussion by stating the only confusion arose from a paraphrasing issue, not necessarily about the correctness of the designated officials.
Mr P Maloyi (ANC) challenged the specifications about the designated officials as described in the initial definitions of the Bill, and mentioned as supporting evidence by the Chairperson.
The Chief Director of the Department referred to section 3 (1), to clarify that the Minister would appoint a qualified official for the task. She also referred to 3 (5), to explain how the Registrar may have to delegate competent officials who could fulfill the responsibilities of the Registrar. She added that no inspection would be carried out without identification.
Ms Steyn asked for a clear explanation of the interlink between the current Bill and Genetically Modified Organism (GMO) legislation.
The Registrar clarified that Clause 43 (1a) dealt with issues of importation and its compliance. At a practical level, he said, there was also a procedure for GMO approbation to be put in place in the Department.
Clauses 1 to 45 were read, and the Committee agreed to their inclusion.
Committee minutes adoption
The minutes of the meeting on 30 May 2016 were adopted.
The meeting was adjourned.
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