The Committee considered the negotiating mandates from all provinces on the Protection, Promotion, Development and Management of Indigenous Knowledge Bill [B6B-2016].
The Free State, Gauteng and Mpumalanga voted in favour of the Bill without amendments, while KZN, North West, Western Cape Eastern Cape, Limpopo supported the bill subject to amendments. The Northern Cape did not forward its mandate to the Committee and this would be dealt with on 20th June 2018.
The Department of Science and Technology responded to the recommendations and proposals from the provinces.
The Chairperson said that the Minister tended her apology for her absence. Only the Northern Cape had not sent their Negotiating Mandate.
Negotiating Mandates from Provinces
KwaZulu-Natal (KZN) Legislature
Ms M Ntuli, Chairperson Portfolio Committee on Arts and Culture, Kwazulu-Natal (KZN), said that all parties supported the Bill except the Democratic Alliance (DA). A member of the public had raised the following concern which the Kwazulu-Natal Provincial Parliament felt needed to be addressed by the Select Committee. The concern was as follows:
‘…at time indigenous knowledge gets undermined to the point that those opposed to it may misrepresent its existence negatively and urged that such conduct should be reflected as an offence in clause 28 of the Bill’.
The Chairperson agreed that the concern would be considered at the end when all amendments were being considered.
Mr A Nyambi (ANC, Mpumalanga) said the Province provided the mandate to negotiate in favour of the Bill without any proposed amendments.
North West Legislature
Mr O Sefako (ANC, North West) said that the North West Province provided the mandate to negotiate in favour of the Promotion, Protection, Development and Management of Indigenous Knowledge Bill [B6B – 2016], considering the attached proposed amendments. [See attached mandate from North West Province with proposed amendments]
Western Cape Legislature
Ms C Labuschagne (DA, Western Cape) said that the Western Cape conferred the authority to support the Bill with the attached proposal. The Legislature further proposed the following:
‘That the intellectual Property Laws Amendment Act, 2013 (Act 28 of 2013) be repealed as it does not appear to be compatible with the Promotion, Protection, Development and Management of Indigenous Knowledge Bill [B6B – 2016] (NCOP) (S76)’
Eastern Cape Legislature
The Chairperson said that the Eastern Cape Provincial Legislature voted in favour of the bill and mandated the delegate to negotiate within the following parameters: [See attached mandate from the Eastern Cape Province with parameters]
Free State Legislature
The Chairperson said that the Free State Provincial Legislature voted in favour of the bill with no amendments.
A representative from the Gauteng Provincial Legislature said that it supported the principle and detail of the Bill and therefore voted in favour of the Promotion, Protection, Development and Management of Indigenous Knowledge Bill [B6B – 2016].
Mr Nyambi said that the Limpopo Provincial Legislature mandated the delegate to negotiate in favour of the Bill with the proposed amendments:
‘Clause 28 (page 13 line 11) insert the phrase “imprisonment and or” between the words “to and pay”. Delete the word “pay”.’
Mr Yohah Seleti, Chief Director: Science Missions, Department of Science and Technology (DST), asked if the Department could have an opportunity to respond.
Mr Seleti expressed appreciation of the support and cooperation received. With regards to the issues from KZN, the Bill was very clear in that it had given the Minister the responsibility to publish and develop the regulations. It was assumed that this would be done after the Act had come into existence. The mandates from Mpumalanga and Gauteng were clear. On the North West, the Department would take the input on the advisory panel under advice. And this would come out much clearer in the regulations.
Mr Seleti referred to Chapter 4: The protection of indigenous knowledge and commented that this question referred to the annual registers of indigenous knowledge. It has to be understood in the context that other provinces have stated that the National Indigenous Knowledge System Office (NIKSO) had to have offices in all the provinces. So this context it was assumed that the registration offices and public awareness would be done and people would understand. This would be taken under consideration and the Department would look into it. However if people chose not to register indigenous knowledge, one could not protect what was not registered. The question placed at the bottom of page four was an implementation issue and would be revealed in the Regulations. It should be noted that a pilot of the same thing was going to be run in KZN, so the regulations, when they came out would be based on the actual work that had been done in the province of KwaZulu-Natal.
The question on page 2 was about the issue of the ‘practitioner’, and whether his or her livelihood would be affected. The actual quotation was the definition of the word practitioner and whether the family would be affected. The answer was ‘no’ it was only the practice of being a professional member that would be affected.
On Chapter 6, Mr Seleti said that this has been a general issue that has come out in most of the provinces. This was a Section 76 Bill. In terms of the legal provision there would have to be NIKSO offices.
With regard to the Registration of indigenous knowledge, there was a presence in every province. There would be formal offices in every province where the knowledge would be registered. This would be in line with the Section 76 provision.
The Department had a different understanding around the issue of the ‘Curator’. There was a suggestion that ‘Curator’ should be changed to ‘Researcher’. Mr Seleti said that each of the two words had different responsibilities attached to them so the word ‘Curator’ would remain.
Mr Seleti commented on the Eastern Cape submission. Around the issue of ‘trustee’, the traditional leader had come up in the consultation process and it would be left up to the community to decide who they might want as a trustee.
The phrase ‘broad stakeholder base’ was marked for further clarification.
The issue of the Minister was raised in Clause 6 to make sure that there were offices in all provinces. This issue has been spoken about and Department had already started with the IKS Documentation Centre. Because this was a Section 76 kind of legislation it would compel the Department to consider it, so that matter was being taken care of by the nature of the Bill.
It was suggested in Clause 7 that the word ‘relevant’ should be included. This was considered an acceptable suggestion.
In Clause 12 4(a), this area around how trustees behaved was already covered in trust laws.
In 4(b) (3) it was proposed that custodianship be limited to a two year period. This would assume that the situation would always be solvable, but it was known that as one moved further into the future, one was preparing this as heritage for the future generation. Limiting the period to two would then put this knowledge in the public domain where everyone had access to it and could exploit it.
Mr Seleti commented on the Limpopo submission. The proposed amendment would be taken under advisement whether the criminal penal code could be used in this context.
Mr Seleti commented on the Western Cape submission. With regard to the proposal, the Minister of Science and Technology could not have that responsibility, as it was the responsibility of Parliament and therefore the matter had to be dealt with as part of the parliamentary processes.
The Chairperson said that the issues that the North West had was understandable because the Department was not there to explain certain matters to them. It was just the Northern Cape that had not been dealt with yet. She asked that the Department send two people to the meeting next week where the Northern Cape Province’s mandate would be dealt with.
Ms Ntuli said that the other plea from the community was that whenever there were public hearings communities were given a very short time in which to prepare themselves. The plea was that more time would be given in preparation for public hearings.
The Chairperson thanked the Department for their endeavours with regard to the Bill and for providing opportunities for indigenous people to reclaim and treasure their knowledge.
The meeting was adjourned.
- Western Cape Provincial Legislature
- North West Provincial Legislature
- Northern Cape Provincial Legislature
- Mpumalanga Provincial Legislature
- Limpopo Provincial Legislature
- KZN Provincial Legislature
- Gauteng Provincial Legislature
- Free State Provincial Legislature
- Eastern Cape Provincial Legislature
- Protection, Promotion, Development and Management of Indigenous Knowledge Bill [B6B-2016]