Films and Publications Bill [B37B-2015]: consideration of submissions

NCOP Public Enterprises and Communication

05 September 2018
Chairperson: Ms E Prins (Western Cape, ANC)
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Meeting Summary

Submissions had been received from the media, religious groups and affected persons.

The concerns from the stakeholders included the definition of pornography. The submission was from a religious group which stated that the definition needs to be narrowed down to be aligned with the right to dignity.

Another concern, submitted by media stakeholders, was the distinction between the definitions of distributors. The concern was whether or not the definition included “non-commercial distributor.” There were also submission raised in terms of the definition of “commercial purposes.” It was submitted that the definition was not clear.

Other concerns were submissions requesting for an extension of the deadline to submit. Others included requests to have oral, instead of written submissions.

A major concern which was raised by the “Cause for Justice” was the matter of the tagging of the Bill. The submission argued that the Department was wrongly advised and that there is in fact a section 76 Bill and not a section 75 Bill as suggested by the Department.

The Department responded by saying that they have dealt with most of the concerns raised because the concerns have been raised before. They stated that they were in consultation with State Law and Parliamentary Advisors and they concurred that the Bill is correct tagged as a section 75 Bill. They stated that they have conducted public participation extensively.

The Members were concerned that is the Bill is incorrectly tagged it will not pass constitutional muster and will affect provinces. The Members suggested that the Legal Department be consulted on this matter.

The Committee resolved that they would hear oral submissions and that they would conduct their own public participation, as it is their role as the NCOP.

Meeting report

Opening remarks
The Chairperson began the meeting by asking everyone to introduce themselves. She informed the Committee that she had asked the Content Advisor to present a summary of the public comments.

Public comments on the Films and Publication Bill (B37B-2015)
The Committee Content Advisor presented a summary of the public comments on the Films and Publication Bill (FPB). He would provide a summary of the submissions but there were accompanying documents that went into detail as to what the concerns were.

The submissions came from different stakeholders, including the media, religious groups, and people who were generally concerned about the Bill and its impact on the sector in which they operated.

A religious group submitted that the definition of pornography seemed to have been narrowed down. Previously, the definition included the “violation and disrespect for the right to human dignity.” They submitted that it either remained as it was before, or that it be changed and aligned with the right to human dignity as enshrined in the Constitution. That was a submission by a number of people in the religious sector whose names were listed in the document,.
           
One submission was from Ryan Smit from Cause for Justice. He had initially engaged in a lot interaction with the Secretary with regards to extending the deadline for submissions, which the secretary had explained could not happen. The Committee had received the submission that morning.

Lazola Kati from “Right2Know” also requested that the deadline for submissions be extended. No comments had been received as yet. The organisation was probably waiting for the deadline date. The Secretary had communicated with all stakeholders, informing them that they should submit their public comments. 

Francis Antonie from the Helen Suzman Foundation had also requested an extension of the deadline, but she had not specified how long she needed.

There was also a single submission from media stakeholders, although they were from different media houses. The media stakeholders raised a concern with the online content. Before that Bill, all their members had been exempt from classification but when it came to online content, that exemption seemed to fall away. If a member of the press posted a video online, he or she was excluded; and that needed to be taken care of.

Further, they were concerned that the Department of Communications had not properly dealt with Hate Speech. There was a Bill on Hate Speech that properly dealt with Hate Speech and was more constitutionally aligned than what the Department was doing with the FPB.

The media stakeholders felt that “commercial purposes” was not clear enough. Instead The Bill should rather state that if something was posted online, then it had to be clear that a fee would be received. That will give it a sense that it is for commercial purposes. 

The definition of “distributor” was also a concern because the definition included “non-commercial online distributor” and their view was that, if that was included, then people who distributed content non-commercially were also affected. They gave an example of family videos that were uploaded online, but which might not necessarily be for commercial purposes. The definition of “distributor” had therefore to exclude “non-commercial online distributor”. Furthermore, they stated that “online distributor” was not properly defined. The Bill should just use “distributor” as that was more clearly defined.

Nadene Badenhorst from Freedom of Religion SA submitted that the definition of “Hate Speech” was contradictory to the one enshrined in the Constitution and it needed to be changed in accordance with the Constitution.

Cause for Justice
Mr Boskati briefed the Committee on the submission or memorandum from Cause for Justice. The main concern of the submission was the incorrect tagging of the Bill. The organisation presented a case to explain why the tagging of the Bill was incorrect. The submission explained how the law was applicable, suggestions were made and a remedy proposed. The main concern was that the Bill should be a section 76 Bill and not a section 75 Bill. The Bill had been incorrectly tagged, meaning that the procedure followed, in tagging the Bill, had been incorrect, and it was not procedural.   

The organisation also raised a concern with X-rated material and state that the definition had been narrowed, resulting in the right to human dignity being excluded.

In the opinion of Cause for Justice, the Committee has been misled by advisors. That was why some of the issues had to be addressed. The organisation also provided the cases that the legal advisors had referred to.

Mr Bosakti said that the memorandum contained proposals in which Cause for Justice explained in detail how each clause could be re-written. In terms of the classification of X-rated material, the organisation suggested what could be included in the clauses. The main concern was that the definition led to unconstitutionality and unintended consequences.

The Chairperson enquired whether the Department would like to say anything before the Members were allowed to comment and ask questions.

Mr Tshegofatso Kgarabjang, Director, Department of Communications, stated that the comments had been received before the meeting and the Department was ready to respond to some of them and that some had already been attended to. An example was the matter concerning the tagging of the Bill, which had been raised in the previous Committee meeting. The Department had been in consultation with the State Law Advisor as well the Parliamentary Advisor who had confirmed that the Bill had been correctly tagged.

The Department was ready to clarify most of the comments as they had received them before the meeting. One such comment was with regards to public participation, which had been extensively undertaken.

The Chairperson opened the floor to the Members.

Ms N Koni (Northern Cape, EFF) suggested that the Chairperson allow the Department to first clarify and respond to the concerns that it was ready to respond to before the Members were given a chance to comment and ask questions.

Briefing by the Department of Communications
Mr Kgarabjang stated that the Department would give high-level clarity. With regards to the consultation matter, there had been an initial perception, when the matter had first arisen before the Committee, that no prior consultation had been undertaken. However, there were oral submissions made by members of the public. The Department had been instructed by the Portfolio Committee to do more than that. The Department had conducted a workshop in late 2017, which had been attended other sectors of the public, media and religious groups.

There were concerns about the Hate Speech Bill, as well as the Cyber Security Bill, which had been dealt with. The State Law Advisor had been contacted, particularly the drafters of the Hate Speech Bill and the Cyber Security Bill.  Some of the penalty conditions contained in the Bill had been recommended by the State Law Advisors. There was a submission that the provisions of the Bill were not in line with the Constitution. The Department put it to the Committee that Members had been consulted and the Department had even had a meeting with the South African Law Commission, as it was conducting research on child pornography, and it had made contributions to the Hate Speech Bill.

The Bill had been looked at for accordance with the Constitution. It was not the Department’s mandate to go into detail in defining the Hate Speech Bill but when hate speech was perpetrated online, then the Department had to intervene. That was why the Department had made reference to the Hate Speech Bill, in terms of defining hate speech, and that had been done so in consultation with the State Law Advisors and according to the Constitution.

With regards to child pornography, initially many recommendations had been made, and many  definitions suggested. Now the Department was trying to harmonise South African law with other law. The Department had tried to harmonise the statute with regards to Film and Publication together with the Sexual Offences and Related Matters statute. There was also an Act that regulated pornography and provided for criminal sanctions. As a Department it did not have jurisdiction over sexual offences and related matters but the Bill had to have a definition and there was already a definition in terms of the Sexual Offences and Related Matters statute. Legislation needed to be harmonised and there had to be a single definition.

Mr Kgarabjang requested that his colleagues take over.

The Chairperson stated that she would hand-over to the Members but Mr E Mlambo (Gauteng, ANC) stated that there had been a request from the Director to allow his colleagues to respond to other matters raised.

Adv Lufuno Nevondwe, Council member, Film and Publication Board, said that, in relation to the concern regarding the definition of “distributor,” on page two of the Bill, a distinction was made between a “commercial distributor” in the definition. On the same page a “distributor” is defined. On page three, a “non-commercial distributor” is defined. There was already a distinction between the types of distributors, throughout the Bill.

Ms Abongile Mashele, Chief Operations Officer, Film & Publication Board, stated that a lot of the submissions would be given clarity when the Committee went through the Bill clause by clause. For instance, concerning the issue of the Press and online content, the exemption also included material that was of a bona fide newspaper or platform that was regulated by the Press ombudsman which also had an online presence. Therefore it should extend to them. The Committee could check if additional clarity needed to be included in the clauses. 

The issue of commercial purposes could be discussed, as well people who were “influencers” on social media, because that was a commercial purpose. That was probably why clarity was needed. The aim of the Department was not to regulate social media accounts for people who were “influencers” but rather someone who was trading in the distribution of films, games and certain material online.

The issues of participation and tagging had already been dealt with and the Department had dealt extensively with them. It was up to the Committee to have their own deliberations on those issues.

Discussion
The Chairperson stated that, apart from their input in the discussion, Members needed to decide whether they were going to allow the written submissions. The Committee had to ask the Department or the Content Advisor to give them a list of new submissions and the list of previous submissions. That was so that they could see which submissions had been dealt with, and which were new. The NCOP also had a role to ensure that public participation was undertaken and they did not want to exclude people from taking part. 

Ms C Labuschagne (Western Cape, DA), stated that she needed clarity on the matter. There was a list dated 31st August 2018, Public comments on the Films & Publication Bill which was the summary of the submissions that they received. If one read through the list, there were requests for oral submissions from some people. She stated that she agreed but asked that if the Committee decided on hearing oral submissions, whether Members were going to hear new ones? They already had the list of submissions.

The Chairperson stated that the Members needed to decide whether they would allow the old ones as well. The Department could explain where the submission was in the Bill and where it was protected. The officials needed to explain to the Committee. How was the Committee going to do it? Were they going to go through the whole process again and re-do submissions that had already been heard? What did Members suggest? The Committee could decide if they even wanted to have oral submissions.

Mr J Julius (DA, Gauteng) stated that the purpose of the meeting was to hear from the Department in terms of submissions and their response. The Department had to deal with issues of stakeholders extensively. Officials Count not state that they had already dealt with them. Those submissions were new submissions to the NCOP. The Department could not act as if that Committee had sat in the Portfolio Committee. That was a Select Committee with its own role and function.

With regards to the tagging of the Bill, did officials have their own legal advice or did they only use Parliamentary resources for advice? When one looked through it, it would not pass constitutional muster. Any legal argument could be taken to court and they did not want that to happen. The Bill has to be thoroughly reviewed and decisions taken as to what should be done in accordance with the Constitution. Members needed to do what was provided for in the Constitution and not what they think. All these Amendments were about consumer protection, therefore the Bill, in terms of schedule four is a section 76 Bill. The Bill cannot be tagged as a section 75 Bill. He stated that he was aware that it was not good to deal with tagging at that late stage, but that it was better than not doing it at all.

Members had been elected to be legislators and they had to safeguard society against legislation like that. The Department wanted the Committee to rubberstamp the wrongdoings of the Portfolio Committee. The Department wanted to rush this Bill, but it was a contentious Bill and there are so many submissions. What was with the rush? Why do Members need to get it through in the fifth Parliament if it was such a contentious Bill? There was saying in Afrikaans: “There is a snake in the grass.”

Mr L Gaehler (Eastern Cape, UDM) said that as the NCOP they had the right to have public participation. The Committee had to open for those who were taking part because they wanted to participate at NCOP level. Those who wanted to participate could not be excluded and deprived of their right to take part at NCOP level.

Mr O Sefako (North West, ANC) said that there had been a cut- off date at the end of May and wanted to check when the Bill had come to the NCOP?

There was indeed doubt in terms of the tagging of the Bill. They needed to be very careful, from the onset, as they had learnt the hard way with the Bill with  the other Committee. He suggested that someone from the legal services needed to make sure that the tagging was indeed section 75, because it might affect the provinces.

Response

Department of Communications

Ms M Mangena, Council Member, Film and Publication Board, enquired whether or not it would be possible for the Portfolio Committee and the Select Committee to come together and go through the Bill to try and sort out all the concerns raised. The Bill had been there for many years and there had been no progress. She did not think that the Department was rushing the process.

Mr Kgarabjang said that he had indicated that they would just do a high level summary. The Department   had the responsibility, to respond to each submission extensively and they would do that. Officials had responded to all the comments made by Members in the previous meeting. They would submit, to the Committee, their responses to all the submissions raised, so that the Committee was well-positioned to apply its mind.

The role of tagging is the role of the State Law Advisor and was not in the jurisdiction of the Department. The State Law Advisor was not there that day but had made contributions with regards to the tagging of the Bill.

The issue of consumer protection was a matter that the Department had to respond to comprehensively, when it responded to each and every submission. The Department would respond to all the submissions made and to all the instructions by the Committee. Direction from the Committee was welcome.

Ms Mashele stated that with regards to the public participation point raised by Honourable Member Parkies, in their last presentation, the Department had gone into great detail outlining the consultative steps taken, not only by the Department itself but also by the Portfolio Committee as well. Members could refer to page 15 of the last presentation, where the Department had outlined which consultative steps it had taken and which entities had made inputs, what those inputs were and how the Department had responded to them. It is not their intention to undermine the Committee by any means. The Department  gone into detail about those concerns, but if there were any other questions, officials were willing to engage with the Members.

On the issue of tagging, in the minutes of the last meeting, Adv Kweta from the State Law Advisors had outlined what informed the tagging in terms of the Constitution. As Mr Kgarabjang had indicated, that was the terrain of the State Law and Parliamentary Advisors.

Mr E Mlambo (Gauteng, ANC) stated that if the Bill was correctly tagged as section 75, that Committee could have its own public meetings through the provinces that they represent. The Portfolio Committee had done the work, it was currently the job of the Select Committee to take the Bill forward, using its own ways and procedures as a Select Committee. Those processes would go forward. The Select Committee could not be rushed to quickly round up the Bill. They would apply their minds and do the right thing.

Mr Gaehler stated that he agreed with the Member. The Select Committee would hold its own public meetings. He was pleased with the Department’s response and he was sure Members would appreciate the written responses to the submissions.

Mr Julius stated that when he had asked the question about tagging, he was asking whether they had relied only on the State Law Advisor’s advice.

Had the extension for public participation, that had been granted in the last meeting, and published and, if so, where? Was the invitation for submissions published? Had the Department limited the invitations for submissions?

The Film and Publications Board had invited stakeholders to give written comments on the classification guidelines. How did that fit in with the Committee’s process? Were they jumping the gun because everything had to go through the Select Committee; because the Bill was with them? The notice by the board further states that input had to be submitted by the 26th of October 2018, the commencement date of the classification guidelines.

Mr Kgarabjang stated that his colleagues would respond to the questions.

Adv Nevondwe stated that the Bill had been tabled in 2015 and they had been working with the State Law and Parliamentary Advisors in the process and they concurred that the Bill was a section 75 Bill. They wanted to assure the Committee that in all the processes, they had worked with them and have gone through all the provisions with the State Law Advisors. They had engaged with them extensively.

With regards to the classification of guidelines, those guidelines were used to regulate films and publications. In terms of the law, the guidelines be drafted by Council in consultation with the Minister. What Council was doing was that, before the Minister could sign off, the Council would like to consult the industry and all affected persons. That was so that when the Minister signed off, the views of the public and stakeholders were incorporated. It was a separate process from the process that they were engaging in with the Committee. The guidelines were operational and were what guided the classifiers; they regulated the space. The guidelines were in line with the Films and Publication Act, the norms and standards of the country as well as the Constitution of the Republic.

Ms Mashele stated that Adv Nevondwe had answered the question regarding the guidelines. It was a completely separate process. It was in line with section 4(a) of the current Act, which spoke to the powers of the Council to formulate classification guidelines which would be used by classifiers when they regulated material. As part of the classifiers’ guidelines, the public had to be consulted so that the guidelines were aligned to the country’s norms and standards. That was the purposes of the invitation.

Mr Julius stated that he understood that it was a separate process but it was part of the Bill, it was part of the amendment. How did they know that the Bill was going to be passed? The Department was running ahead of itself because Guidelines form part of the Bill and the guidelines should be brought to the Select Committee, as the Bill was before the Committee. Members had to engage on the guidelines. Could the Department please clarify that? They were the legislators, not the Department. The Department was the enabler. The Board was doing something in the public domain about the Bill but did not inform the Committee.

Mr Kgarabjang stated that the Advocate would clarify the matter.

Adv Nevondwe said the classification guidelines had nothing to do with the current Bill. The Act required classification guidelines to be developed to regulate the space. Initially, every two years they would review the guidelines, it had been decided to review the guidelines after every four years.  They were reviewing the guidelines and it had nothing to do with the Bill before them, it was a separate process. The powers lay with the Council, as the accounting authority, in consultation with the executive authority, the Minister. What the Council was doing was to hear the views of the public before it reviewed the guidelines.

The amendment of the Bill before the Select Committee had nothing to do with the guidelines: that was informed by the Films and Publication Act. The matter in relation to the amendment of the Bill had nothing to do with the classification guidelines and did not affect the reviewing. Members could rest assured that it was a separate process and The Film Board was required by law to involve the public. It did not have to be subjected to the parliamentary process.  

Ms Mashele said that the Committee also welcomed participation in the process and made inputs and submissions that they will be having with ordinary South Africans. The Act was currently operational and they had to fulfil their mandate, they could not stop because there were provisions that were being currently amended. The powers rested with the Board. The consultation with the public would be done across all nine provinces and they would share the schedule with the NCOP.

Mr Julius stated that it was a bit clearer now and that he is grateful for the invite, but it would have been better to have been invited before Members had insisted on being involved.

He requested that the Department provide the previous adverts and the submissions made on the classification guidelines for 2014, 2010, 2006, 2002, 1998 and 1994. That was so that Members could be on the same page as the Department and the Board. He stated that they needed to put a timeline on it, because he did not know how accessible the information was. He wanted the adverts and submissions over all those years mentioned because he wanted to know what the public had been saying with regards to the classification of guidelines.

Adv Nevondwe stated that all the information would be submitted to the Committee.

The Chairperson stated that the Committee had to have its own public participation. It had received two requests to do oral submissions. Did the Committee agree with doing oral submissions?

The Committee Members agreed on hearing oral submissions.

The Chairperson explained that questions were asked for purposes of clarity, and not to attack the Department.

Mr Gaehler stated that the Department has to be part of the oral submissions process.

The Chairperson agreed that the Department would be part of the hearings; it had to be.

The Chairperson made a few closing remarks.

The meeting was adjourned

 

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