The Committee adopted a resolution that the South African Sugar Association (SASA) and the South African Cane Growers Association (SACGA) should comply with the Department of Trade and Industry instructions as dated in letters dated 20 April and 20 October 2017. The Committee expected a report-back from DTI on its progress in resolving the non-compliance. In the event of SASA not beginning to implement the DTI instruction, the Committee would request suspending the levies with immediate effect. The Committee also resolved that the Minister should consider withdrawing the regulations and amending the Sugar Act. The Committee will have a follow-up meeting on 29 November 2017.
The Parliamentary Legal Adviser provided a status report on the Copyright Amendment Bill. The Committee was advised to group policy issues together for consideration. Submissions received had to be looked at and some people might have to be called back again. The most contentious matter, which was bound to be time consuming, was that of fair use versus fair dealing. It had to be ensured that there was no conflict with the intellectual property laws and the Indigenous Knowledge Bill that was being developed. There had to be agreement about terms of reference and a panel of experts who would assist with finalising the Bill. The number of members on the Copyright Amendment Bill Panel of Experts provisionally agreed on was five. The terms of reference were adopted with amendments.
The Parliamentary Legal Adviser reported on the process for the Debt Relief Committee Bill. The Bill was ready for publication. Parliamentary hearings would be held towards the end of January 2018. The Bill was proposed as a section 76 Bill but the Joint Tagging Mechanism would need to confirm that. There would be consultation with the Department of Justice, as the Bill touched on the functions and structure of a court of law, as well as tribunal, so it had to provide input based on the specific section in the Superior Courts Act. There had to be formal consultation with Nedlac, as the Bill attempted to change social issues through changes in the economy. The constitutionality of the Bill had to be considered and an external legal opinion had to be sought. Academic experts on property law had to be approached for submissions.
The First Term 2018 Committee programme was discussed but the Committee could not agree on dates for the hearings on the Debt Relief Committee Bill (provisionally end of January) and localisation inquiry.
The Chairperson noted the adoption of the resolution on sugarcane growers as an added agenda item. She thanked the Department of Trade and Industry Director General for bringing his legal team.
Resolution pertaining to South African sugarcane growers: adoption
The Chairperson said the resolution had to be in compliance with parliamentary rules and with the Constitution. There was no way MPs could take an unconstitutional resolution. The Parliamentary Legal Adviser had looked at it. There was some misunderstanding in that it was assumed that the South African Sugar Cane Growers Association (SASCA) had the power to lift or suspend levies. It appeared that the South African Sugar Association had those powers. She asked for a comment from the DTI Director General.
Mr Lionel October, DTI Director General, explained that the main body was the SA Sugar Association (SASA). The South African Cane Growers Association and the South African Millers Association Millers were the two member bodies.
The Chairperson told Mr October that the DTI would be brought in on 29 November. The resolution about SA sugarcane growers was put forward at the 10 November meeting. In terms of the resolution, in compliance with National Assembly Rules, SASA and the Cane Growers Association had to comply with the DTI instructions as set out in letters dated 20 April and 20 October 2017. The DTI had to report back on the resolution of the non-compliance. In the event of non-compliance, the Committee would request suspending the levies with immediate effect. The Minister had to consider reviewing the regulations and amending the Sugar Act. The Constitution required government to be fair and reasonable. If things went to a court of law, she noted that the phrase "with immediate effect" could be found to be unreasonable. The Legal Adviser’s opinion was sought about the matter. She asked that someone who was at the sugarcane growers meeting propose the adoption of the resolution.
Mr A Williams (ANC) said that stakeholders who attended the meeting on 10 November had to be informed. It had to be emphasised that it was not a decision, but that the Committee was obliged to do so in terms of the law. It would not do to say that "nobody would pay tax any more, with everybody clapping". It had to be highlighted what the situation was, and that the Committee was on top of it. He proposed adoption, and Ms Van Schalkwyk seconded.
The Chairperson asked the Media Liaison Officer to indicate in a press release exactly what had emanated.
Status report on Copyright Amendment Bill
Adv Charmaine van der Merwe, Parliamentary Legal Adviser, commented that the policy issues in the |Bill had to be considered. It was a big Bill that dealt with a lot. She advised that the Committee group policy issues together. Exceptions could be looked at, including fair use versus fair dealing; general and specific exceptions; the private copying levy and freedom of panorama, which could be looked at together. Some were not contentious such as freedom of panorama, whereas others could take longer.
The Chairperson interrupted to say that she was reminded by guests that one had to be seen to be applying one’s mind. She was hearing what was being said.
Adv van der Merwe continued that fair use and fair dealing could take longer. Quite a lot of people proposed for one or for the other. Orphan works could be dealt with separately or as part of a cluster. The Committee could look at submissions and call people back again where necessary. There were groups of items that could be lumped together, such as collecting society regulation and commissioned work; and royalties assignment and the functions of the Tribunal. The latter might have to be gone through clause by clause. Another grouping could consist of technology, the Copyright Act and the circumvention device. It could be done quickly, and the same applied to moral rights. Translation and reproduction licences would have to be gone through clause by clause, as it was quite new, to see that there was no conflict with IP laws. Some progress had been made with the Indigenous Knowledge Bill so at the end of the Bill process it had to be looked at to see that there was no conflict of laws.
Ms C Theko (ANC) remarked that the process was on track. The advice was taken about what was needed to finalise the Bill. For the process to unfold, there had to be agreement on the terms of reference and the panel of experts.
The Chairperson was of the opinion that it was not desirable for the panel to be huge. Three to five members would be sufficient. If a glitch was hit, the subcommittee could request someone to be brought on board. It might be necessary in the case of braille, for instance. Ms Theko had referred to terms of reference. It was not new, and had been adopted, but there were amendments here and there. She asked if all were agreement in principle.
Ms Theko proposed that the terms of reference be adopted with amendments. Mr DA Macpherson (DA) seconded that.
The Chairperson asked that names of proposed experts be put forward.
Ms Theko mentioned Prof Sadulla Karjiker, Adv Andre Myburgh, Adv Natasha Pather and Adv Zodwa Gumede.
The Chairperson noted that the Professor held the Anton Mostert Chair of Intellectual Property law at the Stellenbosch law faculty. There was no profile on Adv Natasha Pather and asked staff to obtain a written profile. Adv Myburgh was recommended by the Motion Pictures and Music Copyright Alliance. A profile was needed on Adv Zodwe Gumede. Adv Janice Nicholson represented libraries and education, which were important. She asked for written profiles by the following Monday.
Mr Williams advised that the Committee move forward to get proposals of names.
The Chairperson noted that it looked like there would be four or five experts. It was not to exceed five in principle. The principle of application of mind had to be respected. She agreed that the Committee members had to apply their minds visibly.
Process for Debt Relief Committee Bill
Adv van der Merwe said that the Bill was ready for publication. The NA Rules required a committee report, but advice also had to be sought from the Joint Tagging Mechanism, on classification. This was facilitated by the Constitutional and Legal Services Office. She had drafted an advice to the Joint Tagging Mechanism, on the final edited Bill. Members could gather from the front page that she proposed tagging it as a section 76 Bill, as it dealt with trade and consumer protection. The Bill could not be said to be customary law, hence it was not advisable to refer it in terms of section 18(1) of the Traditional Leadership and Governance Framework Act.
There had to be further consultation with the Department of Justice. The Bill touched on the functions and structure of a court of law, as well as a tribunal. It empowered a court of law and a tribunal to make further orders. It was not technically speaking a function, both could make orders any way. Yet the Bill had to be sent to the Minister of Justice, to ask for input based on the specific section in the Superior Courts Act. There had been consultations with the Department of Justice, but it had to be done formally, in case there was a challenge.
There had to be consultations with the National Economic Development and Labour Council (Nedlac). The Nedlac Act stated that Nedlac had to consider all changes to social and economic policy. The Bill affected social issues through bringing changes in the economy. There had to be formal consultation with Nedlac.
Constitutionality had come up in consultations. It was questioned if the way in which right to property was accepted was in accordance with the Constitution. She was convinced that the Bill was constitutional, but the Bill had national implications. It was not desirable for it to be challenged in court and criticised as biased. She had tried to be objective, but the fact that she was employed by Parliament could be challenged. An external legal opinion had to be sought. It had been hard to find an advocate who specialised in constitutional law and had a strong commercial practice. A suitable candidate to approach for an opinion could be Adv Anwar Albertus, who was an expert on both constitutional law and sequestration and liquidation. He was a member of the Cape Bar and had been a silk for 23 years. An understanding of sequestration and liquidation could help him get his mind around what the Bill wanted to achieve. Where the Bill differed from sequestration, it had to be seen if it was still within constitutional confines. Academics also had to be approached, especially experts on property law and expropriation. It could be textbook writers on property law. A formal opinion would not be sought. She would liaise with the Committee Secretary to invite them to comment. She was sure that they would submit. It need not be a formal request.
Mr Willliams asked if consultation with Nedlac and the Department of Justice would have to wait until public comments were finished with. He thought that it had to run concurrently.
Adv van der Merwe replied that public comments and other consultations had to run concurrently.
Mr Williams agreed to consultations with the Minister of Justice and Nedlac.
Mr J Esterhuizen (IFP) asked when and how long public participation would be.
The Chairperson answered that the Bill was gazetted. Actual comments would be after the return from the study visit. Members of staff could put the public comments into a matrix and categorise them. It would be undertaken like public hearings. Tagging had to be clarified. Advice was needed from a Senior Counsel.
The Committee proposed and approved Senior Counsel Anwar Albertus.
The Chairperson remarked that it was to be hoped that the financial resources authority agreed on the importance of using a Senior Counsel for an important Committee Bill.
Committee programme for 1st Term 2018
The Chairperson remarked that it was interesting times to live in, as regarding the global economy and events in Africa. The study tour in the first quarter of 2018 was not to be regarded as a gastronomic excursion. (The remark evoked some laughter). It was highly important, and would cover Germany, Geneva, Switzerland and England.
Mr Hermans stated that it would commence on Saturday 13 January.
The Chairperson added that if it was approved, the Committee would return on 24 January. Public hearings on the Debt Relief Committee Bill were scheduled for 30 January. There had to be a press briefing. She asked if the matter had to be handled by the Management Committee.
Ms Theko said that Mr Williams had to advise the Committee.
Mr Williams opined that it had to be done when it was gazetted. Prior to that it did not legally exist.
The Chairperson agreed.
Mr Macpherson stated that his party could not attend.
The Chairperson remarked that people had to be able to express their views in safety. As soon as the Bill went to Mr Frolick, she wanted to see venues.
Mr Williams remarked that public hearings were bound to be large. It could either be the Old Assembly Chamber or the V454 venue upstairs.
The Chairperson said that she found the Good Hope Chamber intimidating, especially from the Chairperson’s position. It had to be considered a last resort.
Mr Macpherson asked when the programme would be confirmed.
The Chairperson replied that it was important that it be expedited. The new electronic email system had teething problems. She suggested that a WhatsApp group be created, in addition to the electronic system. There would be deliberations on the Debt Relief Committee Bill on 16 and 21 February, until the end of February. On 2 March there would be a workshop on trade related matters as trade was of the essence. There would be a formal consideration on 6 March. There would be a briefing by the Minister on SONA. 7 March was reserved for the subcommittee on the Copyright Amendment Bill. She told Mr October that when the Committee was done with the Debt Intervention Bill, it would move on to copyright and localisation. The two matters could run concurrently.
Mr Macpherson commented that he was concerned. He had been led to believe that the localisation inquiry would start in January, but currently only two days were allocated in the first quarter. It could not be only two sessions. There had to be long and robust engagement. He could not accept that. The inquiry had to start in January. The programme was flawed. What was promised was not being done.
The Chairperson responded that it could be discussed with Committee Secretary. A week could be brought in during January or February, when it was Committee week. Until 2 February there were whole days and afternoons.
The Committee Secretary noted that 30 and 31 January were available until 16h00. The Committee could stop on 2 February and continue into the second quarter.
Mr Williams said that he had thought that 30 and 31 January would be used for the localisation inquiry, and that public hearings would start on 2 February.
Mr Macpherson protested that it could not go into the second or third quarter. It had to start when the Committee got back from the study tour, so that it could have a solid week under its belt. He suggested that Monday to Friday of the first week be dedicated to the inquiry.
The Chairperson proposed that 30 January be used all day for the Debt Relief Bill public hearing, and that localisation be done on that Wednesday, Thursday and Friday.
Mr Williams proposed that the full day for the hearing be moved to 6 March, so that the week before that could be used for the inquiry.
The Chairperson insisted that the Committee Bill had to move forward along prescribed lines.
Mr Macpherson suggested that on account of it being a committee week, that Monday 29 January be used to get the Bill public hearing out of the way. The 30th to the 2nd could then leave four full days free for the inquiry.
Mr Williams disagreed, his suggestion was for the Debt Relief hearings to be on the 30th, with the rest of the week devoted to the inquiry.
The Chairperson asked for opinions from other parties.
Adv A Alberts (FF+) said that he liked the schedule as it was.
Mr Esterhuizen replied that his party had other matters set up on the 29th.
Mr Macpherson reiterated that for the Committee to be serious about the inquiry, time and energy had to be committed to it. Two days here and one day there would not do. Four or five days were needed.
Mr Williams held to the view that public hearings could take place on the 30th, with the rest of the week devoted to the inquiry.
The Chairperson said that it would be challenging for any party, having visited Germany and other destinations, to meet on the 29th. She was occupied on the 29th anyway. It was not advisable to use Mondays. 9 and 16 February could be used to deal with a Bill. One had to remember that it was also the SONA period. Parliament would be on a different schedule. She agreed that local content was very important, but disagreed with the DA about how it was to be done. The different parties represented important constituencies. Those constituencies had to be told what the Committee was dealing with. The Committee Secretary and herself would have a final look. She thanked the DG for being present. It was important for him and his team to be briefed about the matters of the day. She noted that she wrote poetry, and there would be a book launch of her poems at 18h00 in the library.
The Chairperson adjourned the meeting until Tuesday 28 November, at 9h00 in e249.