Plant Improvement Bill & Plant Breeders’ Rights Bill: DAFF response to submissions; Committee Report: MPRDA public hearing

NCOP Land and Mineral Resources

01 August 2017
Chairperson: Mr O Sefako (ANC, North West)
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Meeting Summary

The Committee met to be briefed by the Department of Agriculture, Forestry and Fisheries on submissions received on the Plant Improvement Bill [B8B-2015] and the Plant Breeders’ Rights Bill [B11B-2015], and challenges and issues of concern raised in them. It also considered the report on the Mineral and Petroleum Resources Development Amendment (MPRDA) Bill public hearings and submissions.

DAFF said that submissions on the Plant Improvement Bill had been received from the African Centre for Biodiversity, a non-governmental organisation (NGO) focused on genetic resources, access and benefit sharing. There had been comments from the South African National Seed Organisation (Sansor), a commodity organisation representing those involved in the seed industry, and from Sensako, a private seed company, and Bosman Organics. There had also been two submissions from private individuals.

During DAFFs consultation on the Plant Breeders’ Rights (PBR) Bill, there had been several industries which had urged it to consider extending the period of duration for plant breeders’ rights to 30 years. The reasons for such a request had been said to be the period it took to develop varieties of some of the plants, like sugar cane and potatoes. The DAFF had responded to that by extending the period of duration, as had been requested. The extension would not result in all crops growing in SA being protected, as the conditions of protection would still remain. The Bill did provide for compulsory licensing of crops that could be needed for food security, however. The distinctness, uniformity and stability (DUS) criteria would enable DAFF to say whether a variety qualified to get a plant breeder’s right or not.

Exceptions of farmers’ rights had been discussed at length during consultations, with stakeholders raising concerns about article 23 (6) (f) in the current PBR Act. Their contention had been that ‘farmer’ had not been defined in the current Act, and as a result there were commercial farmers who retained seed, which resulted in certain industries, such as the wheat industry, suffering. Because farmers were retaining seed, there were no sales or investment in industries such as wheat, and therefore other farmers were unable to develop new varieties of wheat. The same article also prohibited farmers from exchanging or selling seeds. Additionally, farmers who wanted to keep back seed had to be accommodated, though they would have to pay royalties.

Other issues discussed included the need for sanctions to protect the rights of small companies and individuals; the conservation and sustainable use of plant and genetic resources for food and agriculture; which stakeholders would be consulted when regulations were being developed; whether there was a need for a separate system for variety registration to be developed; who was responsible for the implementation of the phytosanitary norms and standards in SA law already; and whether DAFF could say on record that there was no undue influence on it from any of the big players in the seed industry.

The Committee also asked if DAFF collaborated with agricultural colleges in all the provinces of SA, what criteria would be used in the establishment of the advisory bodies for both laws, and whether they would include representation from the previously marginalised communities in their councils. 

Meeting report

Opening remarks

The Chairperson bemoaned the fact that the Minister, Deputy Minister (DM) and the Director-General (DG) had continuously been excusing themselves from Committee meetings through apologies, and commented that the trend continued to disappoint the Committee.

Ms Z Ncita (ANC, Eastern Cape) concurred with the Chairperson that it was disappointing that the entire senior leadership was missing from the proceedings.

DAFF response to submissions on Plant Improvement Bill [B8B-2015]

Dr Julian Jaftha, Acting Deputy DG (ADDG),Agricultural Production, Health & Food Safety, DAFF, said that the presentation from his delegation would be limited to the submissions and comments DAFF had received on the two bills before the Committee. Submissions had been received from the African Centre for Biodiversity, a non-governmental organisation (NGO) focused on genetic resources, access and benefit sharing. There had been comments from the South African National Seed Organisation (Sansor), a commodity organisation representing those involved in the seed industry; Sensako, a private seed company, and Bosman Organics. There had also been two submissions from private individuals.

Mr Thabo Ramashala, Director, Plant Production, DAFF, said that the Department had tried to consolidate all the inputs from stakeholders who had made submissions, so that the presentation had been divided into two columns -- one for public comment, and the other column where DAFF had responded to the comments. He then read through the presentation with the Committee.

Dr Noluthando Netnou-Nkoana, Director, Genetic Resources, DAFF, explained the acronyms as written in the presentation, and continued to read through the presentation with the Committee.

Expansion of duration of plant breeders’ rights

During DAFFs consultation on the Plant Breeders Rights (PBR) Bill there had been several industries which had written to the Department to consider extending the period of duration for plant breeders’ rights to 30 years. The reasons for such a request had been said to be the period it took to develop varieties of some of the plants, like sugar cane and potatoes. The DAFF had responded to that by extending the period of duration as had been requested.

Extending PBRs to cover all crops

DAFF had responded that the extension would not result in all crops growing in SA being protected, as the conditions of protection would still remain. For example, the genus solanum had more than 1 500 species, though the only developed edible species were solanum tuberose (potato) and solanum melogenum (egg plant). Most recently, the DAFF had received an application for solanum rantonnetti -- an ornamental plant; those three species were the only developed species and not all varieties of the developed species were protected under PBR.

The Bill, moreover, did provide for compulsory licensing of crops that could be needed for food security.

Distinctness, uniformity and stability (DUS) criteria

She said the criteria would enable DAFF to say whether a variety qualified to get a plant breeders right, or not. In cases were varieties were of public interest, the PBR provided for compulsory licensing. Alternatively, small holders were allowed to use varieties without paying the necessary royalties.

During consultation, there had been farmers who had asked DAFF why there had been a need to date in order to protect varieties, as their anxiety had been that protection would result in regulation, which seemed to be something the farmers were averse to. Alternatively, NGOs were in favour of the protection of farmer varieties.

Exceptions of farmers’ rights

Dr Netnou-Nkoana said section 10 (2) had been discussed at length during consultations, and stakeholders had also raised concerns about article 23 (6) (f) in the current PBR Act. The contention had been that ‘farmer’ had not been defined in the current Act, and as a result there were commercial farmers who retained seed. This had resulted in certain industries suffering -- for example, the wheat industry. Because farmers were retaining seed, there were no sales or investment in industries such as wheat and therefore other farmers were unable to develop new varieties of wheat. Secondly, if commercial farmers retained everything, there were crops such as the potato, which were susceptible to diseases and which posed a threat to the disease status of the entire SA. The same article also prohibited farmers from exchanging or selling seeds. Additionally, farmers who wanted to keep back seed had to be accommodated, though they would have to pay royalties. The DAFF had then revised article 23 (6) (f) and produced section 10 (2) of the PBR Bill.

Criminal sanctions

The DAFF’s response to the comment on sanctions had been that it had been asked to encourage new entrants into the system, and because there were small companies and individuals that were protecting their rights within the same system, and if the rights were to be infringed, those small enterprises and individuals would not have the resources to afford the expensive civil cases. Therefore section 52 (1) (b) was for the protection of such breeders.

Bill promotes interests of foreign companies (Monsanto) over local farmers

DAFF said that from its register and database, there were South African varieties which were already protected and that if the numbers were added, there were 2 894 valid plant breeders’ rights in the country as of December 2016.

Conservation and Sustainable use of Plant and Genetic Resources for Food and Agriculture (PGRFA)

Dr Netnou-Nkoana said that DAFF had a national gene bank situated at Roodeplaat, Tshwane, which was DAFF’s programmatic response to the sustainable use of PGRFA.

Discussion

Ms C Labuschagne (DA, Western Cape) asked how the removal of part (b) in the definition of ‘sell’ in the Plant Improvement Bill changed anything. Did the DAFF have an idea who would be the consulted stakeholders when regulations were being developed, and how would DAFF determine those stakeholders? From her knowledge, the Minister developed regulations, but she felt that regulations for section 76 bills had to be reviewed by Select Committees, as those bills affected provinces.

From what had been presented on variety registration, she felt that small scale farmers were included at one moment and then were suddenly excluded the next moment, in terms of the response to public comments by DAFF. Did DAFF think there was a need, or it was justifiable, for a separate system for variety registration to be developed? What would be the reason for such a development, and could that not potentially cause more confusion? Who would determine what and how the registrar would evaluate the doubtfulness of the value, cultivation and use (VCU).

Ms Labuschagne also felt that the issue of restriction possibly being stipulated in the regulations was not clear enough. There either had to be restrictions stipulated in the regulations, or there should be not. She wanted to know whether there were phytosanitary norms and standards in SA law already.  Who was responsible for the implementation of such norms and standards?

Mr J Parkies (ANC, Free State) said whatever treaties or trade agreements SA had signed had to be under constant review, and though inputs from stakeholders could have been duplicated ,DAFF could not simply dismiss them as being irrelevant because Monsanto was a huge player in the seed industry, and sought to dominate that sector. Politicians, individuals, people with influence and organisations were under constant manipulation from monopoly industrial players so that the monopoly status quo could be maintained. He proposed that the Select Committee had to have a session when all the stakeholders who had submitted inputs which had been responded to by DAFF could present their inputs to the Committee so that it could engage with the stakeholders directly, especially if Parliament was to be said to partake in direct democracy. The issue was that, opinion or not, some Members of Parliament (MPs) were being ‘bought’ to articulate a particular view as long as legislation under development could threaten a monopoly or the interests of multinational companies. Additionally, the DAFF had to detail whatever adverse effects the pieces of legislation which had been presented could and would have, besides the fact that SA was signatory to the International Union for the Protection of New Varieties of Plants (UPOV).

Any conformity and uniformity had to be subordinate to SA’s national interest; which had to be the sustainability of the livelihoods of South Africans. He wanted elaboration on the protection of new entrants into the seed industry, specifically if DAFF referred to economic benefits. When the interests of monopoly companies were threatened, seed producing countries -- for example, Brazil and many others -- would be forced to decrease the level of their exports into the global seed market, though they were dependent on that market.. To that extent, financial aid would be used as a sjambok on developing countries to regulate their exports into the global market. His view was that seed laws did not guarantee quality, so he wanted to know if there was a possibility that SA could submit the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) as an alternative to UPOV.

Mr J Julius (DA, Gauteng) asked if the small scale farmers which would be exempted by the legislation would be allowed to sell seeds in bulk eventually, or if they would be prohibited. It sounded from the presentation as if the DAFF was defending Monsanto instead of farmers and the government’s money, and he wanted more information on the seed industry behemoth, together with Syngenta. Would the seed industry behemoths gain no benefit from the two pieces of legislation? Could DAFF say on record that there was no undue influence on it from any of the big players in the seed industry in having the two bills passed by Parliament?

Ms N Mokgosi (EFF, Northern Cape) asked how DAFF determined which communities would host community seed banks. Who was responsible for the monitoring of the seed bank programmes, and did they have timeframes for completion? What challenges had there been in establishing the seed banks, and what positives had there been derived since their establishment in the provinces where they were located to date?   

Ms Ncita asked if DAFF collaborated with agricultural colleges in all the provinces of SA.

The Chairperson asked what the criteria would be in the establishment of the advisory bodies for both laws, and whether they would include representation of the previously marginalised on these councils.

Dr Jaftha said an overview of the development and stakeholder consultations on the bills had been presented to the Committee previously. This information was available, including comments from those stakeholders who had influenced the bill. DAFF contended that from all that information, the Committee could make a value judgement on whether there had been undue influence in the development of the legislation.

Regarding phytosanitary standards and norms, as had been inquired by Ms Labuschagne, SA did currently have legislation that dealt with plant pests and diseases. The standards were captured in the Agricultural Pests Act. The systems set up through that Act were linked to border control and management systems, and to the International Plant Protection Convention (IPPC) as well.

DAFF’s attempt to show the PBRs held by Monsanto had not been an attempt to promote a particular company, but to exhibit the scope of rights holders in SA, as there were international, multinational and local breeders, together with local research institutes.

In terms of the piracy of SA resources, there was other legislation managed by the Department of Environmental Affairs (DEA), where DAFF also participated specifically, which dealt with an advisory board which had been appointed by the DEA Minister to focus on where indigenous biological resources were used.

SA was a member of the International Seed Testing Association (ISTA) through which the relevant standards for various types of seeds were set, so that all certified seeds sold in SA adhered to these standards.

Dr Jaftha said that although some of the Acts were still referred to as 1976 Acts, they had been amended in 1996, but for some odd reason the year number of the amendment had not changed. The current amendments were to consider what had unfolded since 1996, especially new international and local obligations, and to ensure the constitutional soundness of the laws.

Mr Ramashala said that in the definition, to delete the wording ‘exchange’ would create a loophole. DAFF had introduced ‘exchange’ in response to stakeholders’ input that ‘sell’ was defined mostly as an exchange for monetary value. That would exclude a large section of small holder farmers in terms of trade, as there was a lot of exchange of seed amongst small holder farmers. The removal of ‘exchange’ would effectively nullify the original purpose, as had been suggested by stakeholders.     

The stakeholders to be consulted when developing regulations would include the entire DAFF client database on propagation material, from the small scale farmers and operators to the big seed producing companies. Indeed, Ms Labuschagne’s proposal that section 76 bill regulations be reviewed by the Committee was something the Committee could decide on, as DAFF was guided by what the Committee would agree on.

It had been mooted that there was a justifiable need for the development of a separate system for farmers’ varieties in terms of variety registration, as there were those in favour of a separate system and those against, with the perception that a separate system had the potential to exclude. However, the intention was the same, as government only sought to accommodate everyone in the business of propagation material, seed production and seed sales. Because there were still outstanding comments on variety registration from the provinces, DAFF would still need to ensure that only one direction was taken after those comments had been ventilated with the Committee.  

He said the registrar would be guided by complaints or suggestions from stakeholders as to how the registrar would go about determining the doubtfulness of VCU. However; the suggestions would be used against compliance with international membership bodies’ regulations.

Mr Ramashala added that chapter four of the Plant Improvement Act, dealt with seed quality requirements. Therefore seed produced in SA for export or local use would be to the best standards and quality as DAFF could get it to be. As far back as 1955, ISTA had been auditing SA seed every three years. The seed testing was on internationally accredited testing protocols, especially for seed that was to be exported.  Regarding what happened on the local market, DAFF inspectors -- according to a list that they would have developed randomly -- went to companies that kept seeds to take samples and submit them to the testing facility at Roodeplaat.  Because seed was expensive, DAFF wanted to avoid farmers buying seed that did not germinate and cost them money.

On whether the exempted small holders would be prohibited or not, the idea was that when DAFF built in provisions for exemptions throughout the bill, smallholders would not be excluded. Only in instances where there were serious transgressions would DAFF prohibit.

Mr Julius interjected that his question had been whether small holder farmers would be allowed to sell seeds in bulk eventually.

Mr Ramashala replied that bulk sales of seeds by small holder farmers would not be problematic, as long as the seeds were of acceptable quality. Acceptability of course would be treated on a case by case basis.

DAFF could submit in writing the numbers of small holder farmers with PBRs, though the numbers were quite low because most small holder farmers participating in farming were producing commodities for the food market. Therefore producing for seed was new terrain for small holder farmers, and DAFF wanted to change that as the food market was saturated, so if more small holders pushed to be food market producers there would be price takers there. Sometimes the money that such small holders would get for their food production could even be below their production costs, resulting in debt accumulation. Producing seed could give such farmers better value, provided they moved to that production stream.

All stakeholders had been treated the same during consultations, to the extent that the biggest contributions came from NGOs working with small holder farmers and small scale producers.  Big industry players had attended fewer meetings according to DAFF’s register.

Regarding collaboration with agricultural colleges, DAFF had a unit within its structure dedicated to collaborative work between DAFF and the 12 colleges in SA. Historically, DAFF had piloted community seed production schemes where the cleaning and processing facilities had been located at the colleges. The collaboration therefore would be ongoing, especially since DAFF would need to locate critical infrastructure somewhere for its community development efforts.

DAFF had stipulated that the advisory committee would be representative of all stakeholders, and during consultations it had also been requested to include particular groups of stakeholders, which DAFF had duly stipulated provisions for.

Dr Netnou-Nkoana said that in the PBR Bill, all would be treated the same. This meant that a Monsanto application would be treated equally to that which would be submitted by a Mr Netnou. During DUS testing, Monsanto varieties would be planted the same way as would those of Mr Netnou.

New entrants meant a new plant breeder, but because copying of unique varieties was easy, the protection offered through the PBR Bill was contained in the criminal sanctions section.

The ITPGRFA dealt with conservation and sustainable use of PGRFA, as well as the fair and equitable sharing of benefits arising from their use. The national gene bank and community seed banks were how SA was responding to the ITPGRFA treaty. Additionally, DAFF had a programme as outlined in the presentation, which spoke to further responses by SA to the treaty. DAFF also wanted to develop a policy on farmers’ rights, as they were not treated holistically. ITPGRFA could not be used as an alternative to UPOV, because the latter dealt only with Intellectual Property (IP), whereas the ITPGRFA dealt with broader issues of beneficiation. SA was a member of the Commission on Genetic Resources for Food and Agriculture (CGRFA), which also addressed the issues raised in the ITPGRFA.

The criteria for seed bank hosting by communities was that the National Gene Bank had records of what seeds had been collected over the years. Therefore DAFF had an idea of the diversity of seeds in the country and could identify which crops had been formerly cultivated in specific communities. Using that information, DAFF identified communities to host seed banks, but also after having consulted whether communities would prefer to cultivate what seeds and crops. DAFF officials and extension officers at the gene and seed banks monitored the activities at the community seed banks.

DAFFs plan in having seed banks established in Limpopo and the Eastern Cape (EC) was to have at least one seed bank in each of the nine provinces. The challenge was the resources, and therefore DAFF was not certain how fast it could establish seed banks across the nation, though sometimes it did receive donations. DAFFs major achievement had been the handover of the Gumbu community seed bank in Limpopo.

Dr Jaftha said that SA was not a contracting party to the ITPGRFA, though its objectives were carried through in DAFFs programme on conservation.

The Chairperson asked how DAFF balanced donor funding with fending off undue influence when it rolled out some of its programmes. Which other players did DAFF collaborate with in protecting farmers’ IP? How was it collaborating with the Department of Science and Technology (DST), which was processing the Indigenous Knowledge Systems (IKS) Bill, for example?

Mr Parkies said he wanted DAFF to send the list of seed companies on the DAFF database to the Committee. Could Mr Ramashala elaborate on price takers, as Mr Parkies held that this space should not be left unoccupied and allow monopoly to continue unchallenged. What was DAFF’s calibrated strategy to produce black-owned seed producing companies, as that was related to food security and sovereignty in SA? It was problematic that everyone would be treated equally legislatively, when in terms of resources and capacity not everyone was equal, because then there would never be transformation as SA’s legislation was not cognisant of new entrants and those small-holders who were weak.

Mr Julies asked what DAFF’s response was to those small scale farmers who had said that the PBR Bill was a ‘Monsanto Bill.’

Dr Jaftha asked whether the Committee wanted information on seed companies or information on PBR holders, as PBR holders would not necessarily all be companies. In terms of the plant improvement law under review, there were of course registered businesses.

He agreed that not all would be equal in terms of the full scope of the groups that the legislation would be regulating, and therefore as far as the PBR were concerned, there was a policy which the DAFF had not presented to the select Committee, although it had consulted the Portfolio Committee on Agriculture. In that policy, it had been stated that DAFF were to develop a support mechanism for new entrants and weaker plant breeders. The Plant Improvement Bill had made an allowance for special dispensations and exemptions to be granted. DAFF would go through the Plant Improvement Bill and summarise the intention of each exemptions, which were the tools DAFF had aimed to use in bringing in new players who would have previously been excluded. However, those would still need further refinement, as they would be contained in the regulations.

Dr Jaftha said that as he had earlier pointed out, the slide on current PBR holders had been to emphasise that it was not just multinational companies that owned rights. It would be useful to look at what the Agricultural Research Council (ARC) owned in terms of rights, which spoke to why DAFF did not see the immediate concern raised by stakeholders regarding a Monsanto monopoly. The confusion often originated around the bio-piracy of indigenous resources, and DAFF had indicated that this was managed by the DEA.

Regarding collaboration with the DST and others, there was an inter-departmental forum, where DAFF and the Department of Arts and Culture (DAC) engaged with the DST on IKS.

Mr Ramashala said that when DAFF was looking for donor funding for whatever purpose, donors could not impose terms, as this would be contrary to the mandate of DAFF as part of government. DAFF simply rejected donations which had conditions which were contrary to its mandate.

DAFF had been fully involved in the conceptualization of the IKS Bill, in as far as agricultural crops were concerned, because it already had a programme on indigenous food crops produced by communities in SA.

DAFF already had a register on all businesses involved in seed production, from cultivation to point of sale, in terms of the Plant Improvement Bill. On the strategy for developing black-owned seed companies, DAFF had provided for reducing the cost of doing business. For example, sometimes the cost of doing business would involve compliance costs, operational costs and the market for sales, so DAFF had removed the red tape involved.

When one was a price taker, the price of one’s produce was determined by market forces instead of one determining a sale price. In SA, agricultural commodity prices were determined under the South African Futures Exchange (Safex) through an agricultural markets division (AMD) for the trading of agricultural derivatives on the Johannesburg Stock Exchange (JSE).

To add to experiences during the consultation, DAFF had encountered hostility from stakeholders towards the big players like Monsanto, Syngenta, Beyer and others in the seed industry. The perception was that big players were there to swallow smaller players, and internationally, mergers and amalgamations were the current trend. DAFF was there to ensure that small players were protected from being exploited by being charged impossible prices for seed for the production of crops.

Mr Parkies said that he wanted to know the different categories of business in the seed production value chain.

Ms Siphumelele Ngema, Parliamentary Legal Advisor, said it was important that in the preamble to the legislation, that amongst things DAFF sought to do was ‘to provide for the sale and conditions of sale of plants and propagating material’. In part B, where most stakeholders had had a concern as presented in the Plant Improvement Bill presentation, it had to be noted that the new provision was open-ended as it had said ‘it had been to exchange or otherwise dispose of propagating material in any manner.’ In the existing Plant Improvement Act, there had been a qualification of the disposal manner through writing in, ‘for any consideration.’

Secondly, if the Committee read the relevant clauses that related to the regulations for both bills, which were clauses 54 and 58, those enabling provisions to delegate powers to the Minister to deal with regulations were interrogated, and there was no provision speaking to the terms of section 101 of the Constitution of SA -- for instance, who would be the consulted stakeholders. Section 101 enabled Parliament to decide, in terms of the delegation of power, how involved it would want to be in the regulation process. Therefore it was up to DAFF to decide how much it wanted to involve Parliament in the regulation-making process, and also up to Parliament to decide how involved it would get.

Mr Julius commented that the issue of multinationals had been clarified, but there seemed to be a perception that the particular multinational companies involved in the seed sector had bought their way in, even going as far as buying influence regarding the direction in which legislation went, and that had to be guarded against. This was the point of his input.

Dr Jaftha said DAFF would elaborate its written responses to address to some of the later inputs from the Committee. He wanted to know whether the Committee would want the DAFF to respond to provincial inputs on the call for comments on the two bills, since the comments had not reached DAFF yet.

Committee minutes

The Committee considered its minutes for the 6 June 2017.

Mr Julius said that the third resolution from those minutes lacked the qualification which spoke to the Minister of the DAFF updating the Committee on the status of agricultural colleges. He then moved for the adoption of the minutes.

Ms E Prins (ANC, Western Cape) seconded the adoption of the minutes.

Dealing with matters arising from the minutes, Mr Julius wanted to about the progress in getting an update from DAFF on the status of agricultural colleges.

Mr Asgar Bawa, Committee Secretary, replied that he had contacted DAFF twice on the matter, and that it would respond in time to the Committee. Additionally, the Management Committee (MANCO) would have consider where a meeting could be arranged for that update briefing.

The minutes were adopted with amendments

Mr A Singh (ANC, KwaZulu-Natal) moved the adoption of the minutes for 13 June.

Ms Prins seconded the motion.

The minutes were adopted without any amendments.

The Committee also considered its minutes for 20 June 2017. 

Ms Labuschagne said that as reflected there, that day the DAFF had presented its annual perfomance plan (APP) and strategic plan (SP), where the Committee had proposed not one recommendation. What would the Committee do with a briefing on an annual report (AR)? She requested that in future such a waste had to be avoided.

The minutes were adopted, with the concern noted.

The Committee also adopted its minutes of 28 June with no amendments.

Report on Mineral and Petroleum Resources Development Act submissions and public hearing

Mr Kobus Jooste, Content Advisor, said the report which the Committee had had to submit eight days after the public hearing had not included the feedback from the Department of Mineral Resources (DMR), or a legal opinion. However, over the recess period, the support staff had been processing the inputs for finalisation -- not for submission, but for having a comprehensive report, which could also be sent to the provinces. Currently inputs could be forwarded to the support staff, as the report before the Committee was a draft report.

Regarding the scheduling of meetings like those for annual performance plan (APP) and strategic plan (SP) briefings, he was struggling with supporting the Committee on the basis that it had extensive plans, but there seemed to be very little thinking going into the number of days the Committee had to do oversight work. Therefore, if there was anyone with a concern for him take to planning meetings, his opinion was that the Select Committee should not duplicate work already done in the portfolio committees. There were 24 to 28 meeting days a year, which was not a significant amount of time for the business of the Committee, which was overseeing four separate departments.

Ms Prins agreed that the Committee had to deal with the matters raised by Mr Jooste.

Ms Labuschagne agreed that during the strategic session it had emerged that there was a disjuncture between what happened when the programme of the National Council of Provinces (NCoP) changed, and what occurred in Select Committees. Though members could not control that, her plea was that the Chairperson and the whip communicate changes freely so that the disjunctures could be avoided. Secondly, she agreed that Select Committees should not duplicate what had already been done by the National Assembly (NA), as Select Committees were not ‘rubber stamps.’ There were issues that Members picked up during oversight tours and constituency work which the Committee could bring to bear on legislation, focusing on those which needed priority. Though the Committee did not have to adopt the report that day, the Committee had to decide on how it would proceed with the information from the public hearings on the MPRDA.

Ms Ncita concurred that there could be time constraints regarding the finalisation of the MPRDA.

Ms Prins said she recalled that the advice was that the provinces had to be given the Committee’s report before they submitted their final mandates.

Mr Bawa said the idea at the time had been that the Committee did not need to have held hearings and received submissions. Since those hearings had been held anyway, the Committee had decided to ask provinces to withhold submission of their negotiating mandates on the MPRDA, which had happened. The Committee had also decided to invite stakeholders to make presentations. Once the Committee had considered all the information, the final report would be sent to provinces. However, as there would be periods of provincial and oversight weeks, taking Parliament to the people, provinces would have time to consider the Select Committee’s report. However, as pointed out by Ms Labuschagne, looking at the Committee’s programme and the nature of the NCoP and its constant programme changes, the Committee had to adopt the MPRDA report sooner rather than later.

The Chairperson asked whether two weeks was a reasonable time for Members to scrutinise the report.

Ms Labuschagne asked how the process of input submission from Members would work. Who would decide what would be included in the report needing adoption? She proposed that there needed to be a meeting after inputs were made so that the Committee could agree on what would be included in the report for adoption. Would the adopted report be sent to provinces with a request that the provinces hold public hearings on it?

Mr Bawa replied that the report would inform the negotiating mandates which would be sent to the Committee.

Ms Labuschagne asked how negotiating mandates would be informed without public participation.

Mr Jooste said ‘inform’ did not mean that the MPRDA report would have been the only information available to the provincial committees, as they had held their own public hearings on the MPRDA. The support staff was currently struggling with the veracity of some of the claims from the inputs because if the Committee were simply given the opinions from some of the Non-Governmental Organisation (NGOs), there would be about 20 separate lawsuits against Parliament on major constitutional transgressions.  Once the support staff was done with the NCoP table staff, legal opinion and the DMR, most of the transgressions fell away. It would be useful to temper some of the more serious public concerns with a balanced view from the DMR, Parliament and legal opinion. What would be given to the provinces was additional information as part of working through those mandates which would have had public participation.

In remitted bills, there were substantive changes and errors. The support staff with the DMR were in the process of identifying issues where the DMR agreed were errors. Many of those had the potential to change -- that is, if the NCoP required a mandating phase from provinces at that time, there could be 20 matters which were considered errors, fixed by the time the provincial mandates were received. What would be more useful was for provinces to be given a report where public input would have highlighted errors, and therein areas were to be found where it had been agreed that the errors were being repaired and where substantive changes were being made. Provinces could then analyse those areas instead of finding the same errors again, and there would be the foresight that a particular area had been considered an error, and the DMR had been proposing a particular repair.

The draft before the Committee was for it to see whether things had been left out or misstated by the Committee, and nothing else.

Ms Labuschagne said she had found nothing left out or amiss with the draft MPRDA report. She felt that what had occurred with the remitted bill should not be seen as setting a precedent, and Parliament had to promote the correct procedure with all remitted bills.

Ms Prins said that she was looking forward to a similar exercise as the Committee had held with the DAFF on submissions on the MPRDA.

Mr Bawa said he had to schedule a Vimba application training session, which was for Members to cut down on using paper documents for meetings and minutes, using technology as an alternative.  

The meeting was adjourned.     

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