Plant Improvement Bill: DAFF response to negotiating mandates

NCOP Land and Mineral Resources

21 November 2017
Chairperson: Mr O Sefako (ANC; North West)
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Meeting Summary

The main agenda item for this meeting was a briefing by the Department of Agriculture, Forestry and Fisheries (DAFF) on comments emanating from the Provincial mandates on the Plant Improvement and Plant Breeders Bills. This would be followed by the Committee voting on the provincial amendments for the two Bills.

Due to time constraints only some of the provincial amendments of the Plant Improvement Bill (B8B-2015) were discussed and voted upon by the Committee, so the voting on this Bill was not completed and had to be postponed to the next Committee meeting. Other items on the agenda - voting on the Plant Breeders Bill, deliberation and approval of the Committee Study Tour and approval of Committee minutes were also postponed to the next Committee meeting.

DAFF responded on all the issues raised in the provincial mandates - these contained concerns on technical issues, some on policy aspects and others on legal issues.

In general, the DAFF responses were that the concerns raised by provinces were addressed in the Bill and that additionally, the Regulations following the Bill, would provide further clarity and resolution on the issues raised.

Some of the key concerns raised on definitions particularly on “sell” and “business” by the provinces - were that it would impact negatively on smallholder and small scale farmers was addressed by DAFF in that there would be exemptions for the latter. Clause 23 that dealt with exemptions was discussed at length and DAFF was asked to provide assurances that smallholder farming activities would not be harmed by the Bill. DAFF advised that the Bill would not lead to curtailing or harming smallholder farming activities - practices like seed exchanges, seeds for own use and other existing practices would be allowed to continue. In addition - to address a concern raised by provinces that the Bill seemed to favour large corporations in favour of small scale farmers - DAFF resounded that the Competition Commission would guard against unfair business practices by large multi-national corporations and prevent their dominance of the local industry at the expense of local food security and smallholder farmers.

The state and government legal teams present provided a briefing on the procedural process that had to be adhered on the provincial mandates - the Committee had to deliberate on the the provincial mandates as provided by the provinces, agree which amendments would be accepted in the updated Bill (with or without the provincial amendments). This had to be sent back to the provinces for their comment prior to finalising the Bill at NCOP level. 

After a period of lengthy debate on the voting procedure and other related issues (including additional clarity on the issue in respect of the NCOP procedures by the legal teams), the Committee then proceeded to vote on the provincial mandates for the Free State, Gauteng, KwaZulu-Natal (KZN) and Limpopo only.

Free State mandate - Various proposals for updated definitions to provide clarity on “sell , business” and non-commercial “ was accepted  by the Committee. A proposal to to omit “must” and to substitute “may” in clause 19(2) that would allow for the exemption of some types of business was also accepted.

However, some amendments were not accepted by the Committee, e.g.  an exemption that would allow easier use of seeds for private (non-commercial) purposes. 

Gauteng Mandate - Most of the of the amendments proposed by Gauteng were not  accepted by the Committee, however the following proposals were accepted - i.e. to make the administration of an oath or affirmation mandatory rather than discretionary, another one was to give the Minister a guided discretion by introducing a non-exhaustive list to take into account when determining exemption. 

KZN Mandate - A proposal that was accepted was to amend the clause limiting the use of seeds for own use and criminalising of exchange seeds, as it was not in the best interests of smallholder farmers. However a large proportion of amendments submitted was not accepted  - this included a proposal to strengthen the voice of smallholder farmers via direct representation on the Ministerial Advisory Committee.

Limpopo Mandate - Only one of the four proposed amendments submitted by Limpopo was accepted by the Committee, namely a proposal that the Registrar had to call for applicants to motivate for their plant improvement varieties for registration before they were rejected for national listing 

All the proposals by provinces that were accepted (as above) by the Committee now needed to be updated as new amendments to the Bill.

The Chairperson advised that the voting on the other provincial mandates would be concluded at follow-up meeting(s) before the year end parliamentary recess.

Meeting report

Briefing by Department of Agriculture, Forestry and Fisheries (DAFF) on Provincial Mandates on Plant Improvement Bill

Mr Thabo Ramashala, Director: Plant Product, DAFF, summarised the provincial responses as follows:

-Provinces that supported the Bill with no amendments - North West

-Provinces that supported the Bill with amendments - Free State (FS), KwaZulu-Natal (KZN), Gauteng, Limpopo and Mpumalanga

-Provinces that did not support the Bill - Eastern Cape (EC) and Western Cape (WC) 

-Provinces that were undecided - Northern Cape (NC) (at the Committee meeting held on 7 November 2017, the Chairperson advised that the Committee had received a letter from the NC, that indicated that the province supported the Bill without amendments. This was however disputed by Ms T. Koni from the EFF who represented the NC on the Committee)

DAFF responded on all the issues raised in the provincial mandates - these contained concerns on technical issues, some on policy aspects and others on legal issues. In the interest of time, it was agreed that common issues raised by provinces would only be dealt by DAFF once - i.e. concern with the definition of “sell” was raised by several provinces, but DAFF would only discuss their response once, when dealing with individual provinces. 

(DAFF responses to provincial mandates are shown below in italics). 

Some DAFF responses on EC Mandate:

-definition of the words “sell” and new”  - “sell” had been defined in the Bill and “new” had an ordinary meaning (i.e. as in new vs. old)

-definition of “sell” too wide and would impact negatively on small scale farmers - removal of parts of the definition would be problematic. The Bill did make exemptions for small scale farmers

-Bill is silent on indigenous plants - the Bill only covers plants that had been declared and may include indigenous plants if declared.

-concern that Bill is driven by commercialisation that would exclude small scale farmers - the Bill intends to regulate the propagation of (plant) material traded commercially. Clauses 19 and 23 provided for the exemption of small scale farmers. 

-lack of consultation with tradition leaders - the National House of Traditional Leaders were consulted

Some DAFF responses on Free State Mandate:

-definition of “business” should had allow for the exclusion of small scale farmers - current provisions in the Bill were to facilitate the participation of small scale farmers and SMME’s (Small Medium and Micro-sized Enterprises). Further details would be provided in the Regulations.

-creation of a market for emerging farmers so that they could compete with commercial farmers - these were addressed by government programmes on trade and marketing

-regulate import and export pricing on plants - prices were determined by market forces, government could not regulate prices.

At this stage the Chairperson suggested that as EC and WC were not in favour of the Bill, DAFF should conclude the briefing on those provinces before the Committee discussed the comments by other provinces that supported the Bill.

Mr E. Mlambo (Gauteng, ANC) and Mr L Gaehler (EC, UDM) supported this.

Some responses on WC Mandate:

-clear definitions required for “commercial, non-commercial were required to enable the exemption of small scale farmers - DAFF responded that these terms were never defined in (our) law. Interpretation of the Bill was in the ordinary grammatical sense, unless it led to absurdity. According to DAFF, these ordinary meanings were adequate and clear enough.

-the seed industry was dominated by multinationals and by implication the country’s food security was in the hands of these companies compromising the constitutional right to food and nutritional security - In situations like these, the Competitions Commission was mandated to ensure that market dominance did not lead to unfair competition and collusion.

-requirement for listing (seed) varieties were to too stringent and would discourage small scale farmers. A secondary provincial varietal listing that would enable small scale and emerging farmers to exchange seeds. - exemptions in Clause 23 would enable small scale farmers to continue their practices of seed exchange.

The Chairperson asked if members wanted other inputs of if it was appropriate for the parliamentary legal teams to brief the Committee.

Members agreed that the latter was in order. 

Ms Phumelele Ngema, Legal , Advisor, Parliament, advised they she wanted to brief the Committee on two aspects - on the procedural mandate and on some aspects in the Bill.

On the procedure relating to the provincial mandates she commented that in terms of the law the negotiating mandate (NM) was where provinces imposed their influence on parliamentary issues, especially with section 76 Bills such as these before the Committee. The provinces had interrogated the Bill and comments by the Committee and had now made their own pronouncements. The Committee could now debate these responses from the provinces (provincial mandates). Once the Committee made its final decisions on the Bill based on the provincial mandates, these comments would go back to the provinces as final mandate on the Bill.

Ms Ngema raised two aspects in the Bill that she felt needed further input from DAFF. SEIA’s (Socio-Economic Impact Assessments) had now become a standard process for each and every Bill in Parliament, DAFF had to provide a briefing on this in terms of the Bill.  In addition, she felt that the definition of “sell” was too broad as raised by provinces and that perhaps justification for DAFF to review it.

This was followed by a prolonged period of debate and discussions on various aspects of the Bill and the provincial mandate procedure. There was some confusion of the process going forward and the voting procedure. Only after these issues were clarified did the meeting proceed with the voting on the provincial mandates. Some of the key aspects discussed were:

Ms E Prins (WC, ANC) said that DAFF had to put something in the Bill to give “us” the assurance that certain organisations would not be able to dominate the industry and prevent food security concerns.

The Chairperson agreed and responded that the most vulnerable had to be assured that they are protected (against market abuse).

Mr Gaehler said that smallholder farmers in the Eastern Cape voiced concern about the exchange of seeds and feared confiscation of seeds and prosecution. He felt the definition of “sell” was too broad.

Ms C Labuschcagne (WC, DA) said she supported Mr Gaehler and Ms Prins and asked that DAFF brief the Committee on how the exclusion in Clause 23 would protect small scale farmers.

Mr Kobus Jooste, Committee Content Advisor, said that small scale and subsistence farmers occasionally sell some seeds and sometimes exchanged seeds. He wanted to know how DAFF rules would allow for this as UPOV (the International Union for the Protection of New Varieties of Plants) did not exempt small scale farmers.

Mr Ramashala responded that the Constitution allowed DAFF to “use” the Competition Commission (CC) to ensure that were no market transgressions. However members had to be aware there was a global trend of larger corporations buying up smaller companies. The CC was there to ensure there was no market dominance that led to unfair business practices. He further advised that in relation to the issues raised by Mr Jooste and Mr Gaehler, small scale farmers would be exempted.

Dr Julian Jaftha, Acting DDG: Agricultural Production, Health and Food Safety (APHFS), DAFF, responded that UPOV related to the Plant Breeders Bill and had no impact on the Plant Improvement Bill being discussed currently.

Mr Ramashala then briefed the Committee on the exemption as it related to Clause 23 in the Bill, i.e: 

Exemptions regarding certain plants and propagating material

(1) This Act does not apply to—

(a) propagating material intended for purposes other than the cultivation thereof;

(b) the cleaning and conditioning of propagating material for private and

non-commercial purposes by the producer thereof for own use;

(c) the sale of propagating material by the producer thereof to the person in whose 

name the certificate of registration in respect to a premises was issued: Provided that—

(i) in the case of propagating material certified under a scheme, the containers of the material must be sealed and labelled or marked in accordance with the provisions of the scheme; and 

(ii) in the case of propagating material not certified under a scheme, the name and address of the producer, the kind of plant and the denomination of the variety concerned must be clearly and legibly marked on the container thereof or on a label attached thereto or on

an accompanying invoice; or 

(d) non-commercial varieties of the kinds of plants regulated by this Act.

(2) For the purposes of subsection (1)(d), ‘‘non-commercial variety’’—

(a) means an unprotected variety of any kind of plant regulated by this Act that is available for cultivation and sale on such non-commercial scale as may be prescribed; and 

(b) in the case of any kind of plant of which seeds are regulated by this Act, means any open-pollinated variety of that kind of plant.

He said these provisions provided adequate protection for small scale farmers and that the regulations would further clarify the exemption of small scale farmers and businesses. The issue was discussed extensively in the National Assembly where assurances were given that small scale farmers would be protected. He asked if the legal teams present could comment on the issue. 

Dr Jaftha said that the Bill was excluded from the provisions of SEIA’s as it was promulgated before this became law.

Ms Kanthi Nagiah, Chief Director: Legal Services, DAFF, said that the definition of sell in the Bill was to enable smallholder farmers to participate in the see trade business.

Mr Alan Small, Senior State Law Advisor supported this.

Mr Asgar Bawa, Committee Secretary, reminded Members that they had to proceed with the Free State mandate to allow them to vote on the proposed amendments, clause by clause.

Ms Labuschcagne wanted to know what the procedure was regarding voting on the clauses - which would be included and which would be excluded.

Mr Bawa advised that once DAFF had responded on the various provincial mandates, the Committee had to vote on the amendments, note the changes as these would become new amendments to the Bill if approved by Committee (during voting).

The Chairperson wanted to know if all members were clear about the process going forward.

Ms Ngema said that exclusion of section (b) of the definition of “sell” should now be clearer to members given the feedback from DAFF. If members approved the changes as suggested by, for example, the Free State (exclude section b of definition), Members had to vote based on the response given by DAFF.

The Chairperson concurred.

Ms Labuschcagne said she was still not clear about the voting procedures.

Other Committee members nodded their heads in agreement.

Ms Ngema responded that the Committee now had to deliberate on the provincial mandates to arrive at a “new updated Bill” given the input received from provinces.

Mr Small said that DAFF had provided responses on all the issues raised by provinces in their mandates. The Committee now had to revert to provinces on their mandates (given the responses by DAFF) and had to negotiate a final mandate with provinces.

Mr Gaehler advised that it was now clear to him on the way forward regarding voting on the provincial mandates. Ms Prins agreed.

Mr Bawa said that all the Committee was doing via this process was to comply with the Constitution and NCOP rules. Members had to vote in line with their own mandates when assessing input by other provinces on the Bill.

The Chairperson confirmed by indicating that members were now voting on the various provincial mandates based on the input given by DAFF on these mandates. It was a simple yes/no whether there was agreement with provincial mandates. 

Initially there were six provinces present during the voting procedure - EC, KZN, Gauteng, Limpopo, NW and WC. The EC Committee member left during the discussion on the Free State mandate so only five provinces were present afterwards. Those provinces not present during the voting were Mpumalanga, NC, FS (and EC who left the meeting during the voting process).  At least five provincial votes were needed for an amendment to be accepted by the Committee.  

Voting on Free State Mandate, Clause by Clause:

-The definition of “business” had to provide for exemption of small scale farmers - ACCEPTED, all Committee members voted in favour.

-The definition of “sell” had to omit section(b) to allow for sees exchange between small scale farmers - ACCEPTED all Committee members voted in favour.

-Amendment of the definition of  “non-commercial” as a person “not making or attempting to make profit from the activity contemplated in section 19(1) , “commercial” had a corresponding meaning - ACCEPTED all Committee members voted in favour.

-Proposal to omit “must” and to substitute “may” in clause 19(2). The amendment would also allow the Minister to exempt types of business from the application of sections 19(2) or 10 without the application for exemption - ACCEPTED all Committee members voted in favour. 

-Clause 23(1)(b) provides for private and non-commercial exemption, and its current form only allowed for exemption of cleaning and conditioning of propagating material from the application of the Act for private purposes if it was done for non-commercial purposes. Proposal is that after “private” to omit “and” to substitute it with “or” to allow “private” use of seeds. - NOT ACCEPTED, only the KZN Committee member voted in favour whilst members from WC, EC, NW and Limpopo voted against.

-Proposal that the requirement for seed in clause 27 had to include “variety” to promote genetically uniform seeds for industrial farming systems and to allow farmers’ varieties. - NOT ACCEPTED, Gauteng abstained, while KZN, Limpopo, NW and NC agreed, only 4 supporting votes

This concluded the voting on Free State amendments.

It was agreed by Committee members that where votes had already been cast on clauses that were common across provinces (e.g. definition of “sell”) that the vote would carry through and that therefore was no need to vote on the issue again.

Voting on Gauteng Mandate, Clause by Clause:

-The terms “agriculture, industrial and forestry” had to be defined - NOT ACCEPTED, only three provinces supported the amendment (Gauteng, KZN and NW), Limpopo and WC voted no.

Mr Bawa requested a short break to clarify an issue on voting procedure with the NCOP Procedural Officer, Ms Shahida Bowers (not present), on whether provinces could vote on their own mandates. He was concerned about NCOP rules now that only five provinces were present (Gauteng, KZN, Limpopo, NW and WC). He returned later confirming that provinces could vote on their own mandates.

The voting on the Gauteng mandate then continued.

-Proposal to amend Clause 15(1)1(d) regarding the date reflecting registration date of certificates - NOT ACCEPTED, only four votes in support (Gauteng, KZN, Limpopo and WC), NW voted no.

Ms Labuschcagne wanted to know why some provinces were not in support of provincial amendments that even DAFF were in agreement with. 

The Chairperson responded that it was the prerogative of each province to decide on its own mandates.

The voting on the Gauteng mandate then continued.

-Amendment of Clauses 39(4)(b) and 49(4)(b) to make the administration of an oath or affirmation mandatory rather than discretionary.  - ACCEPTED, supported by all members present (Gauteng, KZN, Limpopo, NW and WC)

-Amendment of Clause 60 to remove six year imprisonment for offences (felt it was too harsh) - NOT ACCEPTED, only two members supported (Gauteng and KZN), Limpopo, NW and WC did not support amendment.

-Proposal to amend Clause 64 to include a clause to address the issue of new applications lodged after the application of the Act. NOT ACCEPTED, only three members supported (Gauteng, KZN and NW), whilst Limpopo and WC did not support amendment.

-The issue on “Clerical Errors” reported by Gauteng was not voted upon, as the province had to provide more information on the matter.

-Proposal to amend Clause 19(1)  to give the Minister a guided discretion by introducing a non-exhaustive list that he/she may take into account when determining exemption. - ACCEPTED, all committee members voted in favour.

This concluded the voting on Gauteng Mandates.

Voting on KZN Mandate, Clause by Clause:

-Proposal that the scope of the law in its current form had to only apply to seeds produced on large scale by the formal seed sector - NOT ACCEPTED, only supported by KZN, while Gauteng, Limpopo, NW and WC did not support amendment.

At this stage Mr Mlambo reminded members that they needed to be fair and honest when voting. Some of them never engaged with their own provinces. Members could not vote against their provincial mandate.

The voting on the KZN Mandate then continued.

-Amendment to clause 23(1)(b) that limits the use of seeds for own use and criminalising of exchange seeds. This clause was not in the best interests of smallholder farmers. - ACCEPTED, all Committee members voted in favour.

-Amendment to Clause 23(2)(a) and (b) as current provisions in the amendment would impact negatively on farmers using unprotected seed varieties for cultivation or exchange. - NOT ACCEPTED, Gauteng abstained, while only for supported the amendment (KZN, Limpopo, NW and WC)

-A proposal that one of the two members in Clause 52(1)(b) had to specifically represent the interests of smallholder farmers on the Ministerial Advisory Committee.

Committee members asked for clarification from DAFF and legal advisors present on Clause 52(1)(b) regarding the appointment of ministerial advisors that would look after the interests of smallholder farmers.

Dr Jaftha said DAFF was satisfied that there was enough provisions in Clause 52 to ensure smallholder farmers were accommodated

Ms Ngema commented that once the Minister engaged stakeholders in terms of Clause 52, smallholders farmers should be accommodated.

The voting on the KZN Mandate in terms in Clause 52(1)(b) as above then continued. The proposed amendment was NOT ACCEPTED - only supported by Gauteng and KZN, while Limpopo, NW and WC did not support. Ms Labuschagne made an additional comment, that although she understood why smallholder farmers had to be represented on the Ministerial Advisory Committee, there would be practical problems of how such person person would be selected and from where he/she would come. 

This concluded the voting on KZN Mandates

 Voting on Limpopo Mandate, Clause by Clause:

-Proposal to amend Clause 2(1) to ensure that all crops were covered for certification including traditional crops and crops not listed in Clause 24(2) - NOT ACCEPTED, only Limpopo supported, while KZN abstained and Gauteng, WC and NC did not support the amendment.

-Proposal that the Registrar had to call for applicants to motivate for their plant improvement varieties for registration before they were rejected for national listing - ACCEPTED, all committee member present voted in favour

-Proposal that the Bill had to make provision, encourage and support plant improvement schemes by local communities, especially traditional crops - NOT ACCEPTED, only Limpopo and NW supported, while KZN, Gauteng and WC abstained.

-Proposal to amend Clause 60(1) in order to quantify the Rand value of fines or to indicate how the fine would be determined for enforcement of penalties - NOT ACCEPTED, as Gauteng, KZN, Limpopo and NW supported the amendment but WC did not support.

This concluded the voting on Limpopo amendments.

At this stage Mr Singh advised that he had to leave the meeting for another scheduled meeting.

The Chairperson advised that the proceedings had to be adjourned as a quorum was therefore no longer present - only four of the nine provinces represented in the meeting.

The meeting was adjourned at about 13h05.

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