Films and Publications Amendment Bill: Legal Opinion & Socio-economic Impact Assessment

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Communications

13 October 2016
Chairperson: Mr H Maxengwana (ANC)
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Meeting Summary

The Department of Planning, Monitoring and Evaluation (DPME) briefed the Committee on the Socio-economic Impact Assessment System (SEIAS) and on whether the Films and Publications Amendment Bill (FPAB) complied with the SEIAS. The DPME noted that the National Development Plan (NDP), Medium Term Strategic Framework (MTSF), and Outcome Four priorities included a reduction in the burden placed on inclusive growth resulting from unintended consequences of government actions as well as inefficient and/or inappropriate regulations. There was a need to improve compliance burden, complexity of policy development, laws and regulations as well as removing unnecessary obstacles to growth and development. In light of this, SEIAS was introduced by Cabinet in February 2015, to replace the Regulatory Impact Assessment (RIA) and to assess policies, laws and regulations in line with the NDP priorities. The primary objective of the SEIAS was to assist departments to better formulate policies, legislations and regulations to ensure they were aligned with the NDP in promoting inclusive growth, addressing inequality, spatial imbalances, and environmental degradation. Proposed new Bills or amendment of existing legislation, initiated from 1 October 2015 had to be subjected to SEIAS for the initial impact assessment. Available was assessment templates to apply the SEIAS and these templates were distributed to departments.

The SEIAS unit was established within the DPME. 136 officials were provided with training in respect of legal services, policy development, monitoring and evaluation and research. As at 31 March 2016, 117 prescripts were subjected to SEIAS. These prescripts included bills, regulations, policies and plans. 

Members stated that they were not yet familiar with the SEIAS and sought clarity on whether the FPAB was subjected to the SEIAS. The DPME responded that it was prepared to work together with the Department of Communications to improve the content of the Bill and to align it to the constitutional principles. Members sought clarity on whether the role of the DPME included minimising the conflicts between departments; on whether each proposed Bill should subject to the SEIAS requirements, clarity on consultation process on policy, on what would be the costs if the FPAB could be submitted as it was, on the cost benefit analysis in respect of consultants and, with regard to the Bill, on whether the RIA or SEIAS  was considered, on whether  SEIAS had the capacity to deal with influx of the policies, on whether trained officials were employees, on 117 prescripts subjected to the SEIAS, and on whether there was a timeline allocated to the Department of Communications to address concerns raised by other stakeholders.

The Parliamentary Legal Advisor briefed the Committee on the constitutional concerns which the FPAB failed to address. There was also a concern over the applicability of section 18 of the Traditional Leadership Framework Act and what pertains to customs, traditions or customary in respect of the FPAB and the Print Media judgment. More attention was paid on the content and context of the Bill in respect of section 16 of the Constitution and clause 16 of the FPAB. It was noted that the FPAB was initiated by the Department of Communications and the Committee was ceased with the question whether the FPAB was constitutionally and legally sound. 

The Parliamentary Legal Advisor stressed that there was nothing in the FPAB concerned with traditional matters and therefore it could not be referred to the National House of Traditional Leaders for comments. Alluding to the Print Media judgment, it was noted that the Print Media judgement confirmed that section 16(1) and 16(2)(a) of the Films and Publications Act (FPA) were constitutionally invalid because their effect was to unlawfully infringe on the right to freedom of expression and hamper democracy without a lawful limiting justification. Any administrative imposing prior justification in the scheme suggested by the FPA was a problem because it was vague and had an overbreadth that could not be contained. However, self-classification with a proper criteria on the requirements and self-imposed to ensure protection of all concerned was admissible; hence constitutional invalidity arise from the vagueness and overbreadth of the classification. There ought to be a balancing of scales between the right to express yourself and the state’s right to protect its citizens and regulate them where necessary. There ought never to be a drastic interference with freedom of expression especially in a democratic country.  

It was also noted that clause 17 of the FPAB sought to amend s18 of the FPA so as to align it with the Print Media judgement. With regard to section 16 of the FPA, she noted that the impact of the limitation or restriction as it was explained by the Constitutional Court should be read together with section 24A of the FPA. This was so crucial because what was not classified in line with section 16 of the FPA was either prohibited or became on offence susceptible to a penalty if as a publication it was distributed, exhibited or made a film, game or some form of publication. The FPAB ought to be aligned with the Print Media judgement because the content of the FPAB breached the principle of legality and unjustifiably limit the right to expression and the right to equality. The FPBA failed to address the constitutionality problems arising from s 16 and 18 of the FPA.

Members felt that the Department of Communications should be given more to address constitutional matters. Accordingly the FPAB ought to be returned. This decision was followed by suspending the briefing of the Department of Communications. In response, the Department of Communications stated that it would be guided by the Committee on how to proceed. It noted that the FPAB had gone through the SEAIS and it was approved. Still, it would respond to outstanding constitutional issues given that the FPAB was important. The sustainability of the communications sector was dependent on the FPAB.
 

Meeting report

Opening of meeting
The Chairperson opened a meeting by announcing that on 14 October, there would be a funeral service of Mr Bonisile Alfred Nesi (ANC) who passed away. A delegation composed of Members of Parliament would attend. The delegation included the Chairperson.

The Chaiperson pleaded with presenters to be straight to the point in order to save time. He noted apologies from the Minister of Communications as well as her Deputy Minister.

Apologies were also noted from Mr M Ndlozi (EFF) and Ms P Van Damme (DA) who were on study leave and Mr R Tseli (ANC) who had provincial commitments. He remarked that Mr Tseli was wrong in committing his time for provincial work, instead of prioritising national commitment. Moreover, he requested the DG to advise the Deputy Minister to apologise in writing.

Brief by the Department of Planning, Monitoring and Evaluation (DPME) on Socio-economic Impact Assessment System (SEIAS)
Ms Pulane Kole, Chief Director: SEIAS, DPME took the Committee through the presentation. She noted that the National Development Plan (NDP), MTSF, and Outcome 4 priorities included a reduction in the burden placed on inclusive growth resulting from unintended consequences of government actions as well as inefficient and/or inappropriate regulations. There was a need to improve compliance burden, complexity of policy development, laws and regulations as well as removing unnecessary obstacles to growth and development. In light of this, SEIAS was introduced by Cabinet in February 2015, to replace the Regulatory Impact Assessment (RIA) and to assess policies, laws and regulations in line with the NDP priorities. The primary objective of the SEIAS was to assist departments to better formulate policies, legislations and regulations to ensure they were aligned with the NDP in promoting inclusive growth, addressing inequality, spatial imbalances, and environmental degradation. Proposed new Bills or amendments of existing legislation, initiated from 1 October 2015 had to be subjected to SEIAS for the assessment of initial impact assessment. Available was assessment templates to apply the SEIAS and these templates were distributed to departments.

The SEIAS unit was established within the DPME. 136 officials were provided with training in respect of legal services, policy development, monitoring and evaluation and research. As at 31 March 2016, 117 prescripts were subjected to SEIAS. These prescripts included bills, regulations, policies and plans.

Discussion
The Chairperson sought clarity on whether there was conflict between departments in respect of mandates, roles and responsibilities.

Mr M Kalako (ANC) remarked that the presentation was very interesting and sought clarity on whether the role of the DPME included minimising the conflicts between departments; on whether each proposed Bill should be subject to the SEIAS requirements.

Ms N Tolashe (ANC) welcomed the presentation and sought clarity on the consultation process on policy and remarked that she wanted to hear more in relation to its procedural process.

Mr M Gungubele (ANC) welcomed the presentation and remarked that it was enlightening. He felt that there were conflicts between departments because the tools of communications were undermined. The DPME was not doing enough to ensure that all departments spoke the same language. He sought clarity on what would be the costs of the Film and Publication Amendment Bill and if it could be submitted as it was. Did the Bill have a serious impact on socio-economic aspects? He understood that the amending of the Bill was about rectifying all wrong things that were applied previously. He acknowledged that the Committee had rational obligations to ensure that the Bill was an appropriate instrument.

Ms R Van Schalkwyk (ANC) welcomed the presentation and remarked that it was very informative. He sought clarity on the cost benefit analysis in respect of consultants and, with regard to the Bill, on whether the RIA was considered. Do the SEIAS have the capacity to deal with influx of the policies and what is the time frame for reviewing a policy?

Ms M Machoba (ANC) welcomed the presentation and sought clarity on two issues – were the trained officials employees and what 117 prescripts were subjected to the SEIAS.

Ms V Van Dirk (DA) welcomed the presentation and felt that the Bill should be returned to the Department for addressing stakeholders’ constitutional concerns.

Mrs C Dudley (ACDP) sought clarity on whether training provided was in-house training.

Mr L Mbinda (PAC) sought clarity on whether there was a timeline allocated to the Department of Communications to address concerns raised by other stakeholders.

In its responses, the DPME noted that there were concerns expressed over the Films and Publications Amendment Bill. When the submission of the SEIAS was made by the DPME to the Cabinet, there was an agreement that all legislation should be submitted to the SEIAS. The DPME had assessed 117 prescripts and it was facing a high demand. Any piece of legislation ought to comply with the SEIAS’s procedural processes irrespective whether it was a draft or initiated Bill. Initial impact assessments ought to determine actual risks and actual economic consequences. The question of whether the capacity to mitigate risks existed also ought to be determined. The DPME was prepared to work together with the Department of Communications to improve the content of the Bill.

The DPME noted that there were departmental conflicts in regulating certain matters. This usually happened when concerned departments did not sit together when drafting a Bill. Key learning points included the fact that the drafters of bills were experts in theories who were not aware of complications of matters they were assigned to regulate.

The Chairperson sought clarity on the implementation of SEIAS in respect of capacity, coordination, quality assurance and interdepartmental consultations.

The DPME replied that it had established a SEIAS’s assessment template. When reviewing a policy, the DPME requested all units to come so that they could be able to make their contribution to a proposed or initiated Bill. The DPME did not trust that a department would comply with the SEIAS by just being guided by the template. If the report was submitted, it had to be reviewed. In the first quarter, 40 days were allocated to processing the report and these days were reduced to 16 days in the second quarter. Days were reduced because the DPME did not want to delay the process. It was noted that only officials were trained. It was not external people.

The Chairperson recalled members that there would be two funeral services on the 14th October 2016: Mr Nesi’s and the former ANC Chief Whip’s mother. All funeral services would be held in Eastern Cape. They were not far from each other.

Brief on the Films and Publications Amendment Bill (FPAB)

Ms Phumelele Ngema, Parliamentary Legal Advisor, took the Committee through presentation. She focused on the RIA implications to the legislative process. These included s18 of the Traditional Leadership Framework Act and what pertains to customs, traditions or customary law in respect of the Bill, constitutional concerns raised by stakeholders and the Print Media judgment. More attention was paid on the content and context of the Bill in respect of s16 of the Constitution and clause 16 of the FPAB.

Ms Ngema noted that the FPAB was initiated by the Department of Communications and the Committee was ceased with the question whether the FPAB was constitutionally and legally sound. There was nothing in the Bill concerned with traditional matters and therefore it could not be referred to the National House of Traditional Leaders for comments.

The Print Media judgement confirmed that s 16(1) and 16(2)(a) of the Films and Publications Act  (FPA) were constitutionally invalid because their effect was to unlawfully infringe on the right to freedom of expression and hamper democracy without a lawful limiting justification. Any administrative imposing prior justification in the scheme suggested by the FPA was a problem because it was vague and had an overbreadth that could not be contained. However, self-classification with a proper criteria on the requirements and self-imposed to ensure protection of all concerned was admissible; hence constitutional invalidity arose from the vagueness and overbreadth of the classification. There ought to be a balancing of scales between the right to express yourself and the state’s right to protect its citizens and regulate them where necessary. There ought never to be a drastic interference with freedom of expression especially in a democratic country. 

Ms Ngema noted that clause 17 of the FPAB sought to amend s18 of the FPA so as to align it with the Print Media judgement. Withs regard to section 16 of the FPA, the impact of the limitation or restriction as it was explained by the Constitutional Court should be read together with section 24A of the FPA. This was so crucial because what was not classified in line with s 16 of the FPA was either prohibited or became an offence susceptible to a penalty if as a publication it was distributed, exhibited or made a film, game or some form of publication.

Ms Ngema noted that the FPAB ought to be aligned with the Print Media judgement because the content of the FPAB breached the principle of legality and unjustifiably limit the right to expression and the right to equality. The FPBA failed to address the constitutionality problems arising from s 16 and 18 of the FPA.

Discussion
The Chairperson requested members to go through the Bill bearing in mind what they have learned from the presentations.

Mr Gungubelere remarked that, in order to remove anxiety of contravening the right to freedom of speech, the Committee ought to intervene. He cited an example of the difficulties which the Committee faced with regard to adoption of the Choice of Termination of Pregnancy Bill due to its complex issues, which was finally resolved. The Committee should intervene in such a way of ensuring that the Bill does not undermine the rights in the Bill of Rights. Certain aspects should not be resolved in the political sphere, rather in legal sphere. It was true that Bills were more often initiated by the executive and therefore political aspects could not be avoided. In order to finalise the Bill, he stated that all those individuals/offices dealing with legal technicalities should meet, discus and agree on one thing that could tabled before the Committee.

Mr Mbinda expressed his concern over the absence of contributions from the traditional leaders. The Bill was grounded in the western moral values and customs as it would not affect black South Africans. The Bill should also speak to African values, traditions and customs. It ought to be noted that the traditional leaders were custodian of African culture. By virtue of their role, they should get involved in amendment of the FPA. They had legitimate interest in the FPAB to protect African morals especial in this time and era in which South Africa was challenged by moral degeneration.

Ms Ngema responded that there was no right in the Bill of Rights which is absolute. All rights in the Bill of Rights were subject to limitation. The FPAB was intended to correct the mischiefs contained in the FPA and, accordingly, any limitation imposed on the constitutional right to freedom of expression ought to be rational and reasonable. The Department of Communications should engage with other stakeholders so as to draft a Bill which took into account their concerns.

On the question of contribution of traditional leaders, Ms Ngema responded that in order to submit the Bill to the Committee, the Department published the Bill and invited the public to comment on it. All people – whether individuals or organisation – were afforded the opportunity to express their views. Public participation was broad enough to include everyone and in this context, the traditional leaders could have submitted their comments if they were issues affecting traditions and culture or customary law. The Bill could not be halted because the National House of Traditional Leaders did not comment on it.

Ms Van Dyk supported an argument holding that concerns expressed in submissions should be taken into consideration and seconded Mr Gungubele on the position that the Committee bore rational responsibilities to consider whether or not the Bill was an appropriate piece of legislation.

Ms Van Schalkwyk sought clarity on contradictions between the FPA and the Constitution. She felt that the FPA was not aligned to the principles of the Constitution because the Constitution was adopted in 1996 and the FPA was adopted in the same year. The Bill should therefore be aligned with the Constitution by addressing the constitutional issues arising from the FPA. She suggested that the Bill be returned to adapt to constitutional norms and principles.

The Chairperson stated the media should report that the Committee had not yet taken the decision to approve the FPAB. It ought to be returned. What was transpired from discussions and engagement with presentations was that the Department of Communications should be advised to respond to the submissions and brief the Committee on its direction.

Mr Kalako, in line with presentations, stated that the Bill could not go further. The Committee should clearly state why the Bill should be returned. He suggested that the Committee should go through the Bill clause by clause and thus underlined those mischievous provisions.

The Chairperson stated that the Department of Communications would not brief the Committee as planned; rather, it should engage with other departments to determine how the Bill should be processed.

Mr Ndivhuho Munzhelele, Director-General, Department of Communications, stated that his Department would be guided by the Committee. The FPAB had gone through the SEAIS and it was approved. The Department would respond to outstanding constitutional issues given that the FPAB was important. The sustainability of the communications sector was dependent on the FPAB.

The meeting was adjourned. 
 

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