The Committee deliberated on and finalised the Films and Publications Amendment Bill [B 37B – 2015].
Before proceeding with the clause-by-clause deliberations, a Member raised an objection about the tagging of the bill, saying that it fell under the ambit of consumer protection and should therefore go to the provinces. Others objected to this saying the matter had already been extensively dealt with. The Legal Advisor also advised that the Joint Tagging Mechanism had already settled the matter and the only other option was to go to court.
The Committee then went through the bill clause by clause. The EFF indicated that it would not vote in favour of any of the clauses.
DA Members raised concerns over the part of Clause 15(i)(b)(i) and Clause 15(i)(b)(ii) that would be deleted. It was pointed out that the text was tautologous. The legal advisors also indicated that should those words be retained it would mean that the bill would have to go to the National Assembly again. DA Members raised the issue of the disregard of the opinions raised during the public participation process. The Chairperson said that those opinions were taken into account. Members wanted more clarification of Clause 18H. Members said the period of two years in Clause 18J should be reduced. Members acknowledged that the definition of hate speech in the bill was in line with the Constitution, but the bill went further. Why was the bill going further than the Constitution on hate speech? Members did not want a case of infringement of freedom of speech. The DA Members wanted their objections to clause 18 noted.
Despite the DA leaving before the bill could be adopted, the Committee found an extra Member to vote and pass the bill. The Committee report on the bill was adopted with amendments.
The Committee further considered and adopted the Report on its Gauteng Oversight visit. Members raised points on the oversight visit. They said that there had to be a coordinated effort between Sentech and Transnet, so that the young people who had been trained could be drawn from. Members said Transnet had not taken the Committee into its confidence and had misled the Committee. Members noted that the report did not mention the R200m SABC owed Sentech. Members said USAASA had appointed 26 service providers, yet in the previous week the Minister had cancelled these appointments. The Committee should ask USAASA whether it knew about the cancellation of the contracts. Members proposed that the Committee call the Minister of Public Enterprises to a meeting for updates on SAA, SA Express, Mango, and the CEO of SAA as part of the Committee’s follow up on the oversight visit.
Report on Gauteng Oversight visit
The Chairperson tabled the document for consideration and the Committee went through it page by page.
Mr J Parkies (ANC, Free State) referred to the Sentech recommendations and said that there had to be a coordinated effort between Sentech and Transnet, so that the young people who had been trained could be drawn from.
Mr J Julius (DA, Gauteng) said the Committee had done oversight of Transnet’s business where Transnet had painted a picture of unity which had not lasted even 2 days! Transnet had not taken the Committee into its confidence and had misled the Committee. The report needed to reflect the Committee’s dissatisfaction on their cover up. He further noted that the report did not mention the R200m SABC owed to Sentech. In addition, USAASA had appointed 26 service providers yet in the previous week the Minister had cancelled these appointments. The Committee should ask USAASA whether it knew about the cancellation of the contracts.
Mr Parkies said he took exception to the fact that the Committee was not informed that an announcement would be made of a new board chairperson when they had met management. He proposed that the Committee call the Minister to a meeting for updates on SAA, SA Express, Mango, and the CEO of SAA as part of the Committee’s follow up on the oversight visit.
Mr Julius said almost all SOEs did not give the Committee proper information and gave information very slowly, but when their bills were placed before the Committee they expected it to be processed rapidly
Mr O Sefako (North West, ANC) proposed that the report - as a true reflection of the visit - be adopted and that the other matters that were raised by Members be recorded in the minutes and be dealt with by the Committee.
The Gauteng oversight report was adopted.
The Committee considered and adopted the minutes dated 10 October with amendments.
Films and Publication Amendment Bill [B37B-2015]
Mr Julius raised an objection to the tagging of the bill. He felt that the bill fell under the ambit of consumer protection because in dealing with the terms ‘child pornography’, ‘harmful’, ‘hate speech’, ‘prohibited content’, and ‘sexual conduct’, it dealt with matters relating to protecting the consumer.
Mr Parkies said the issue had already been dealt with.
The Chairperson asked the legal team what process Mr Julius should follow if he was not satisfied with the explanations that had previously been given on the reason for the tagging.
Mr Julius said Members had the right to put their case. The Committee had not taken a decision on the tagging; the bill had to do with consumers and should go to the provinces.
Mr Parkies suggested that Mr Julius go to the body with the authority to do tagging and make his case there.
Ms Phumelele Ngema, Parliamentary Legal Advisor, said the tagging decision was not for the Committee to make, it was done by the Joint Tagging Mechanism (JTM) which could be influenced by legal argument. Numerous organisations had raised concerns on the tagging and the JTM believed the tagging to be correct. The next step, if one was not satisfied was to take the process to court.
The Committee then went through the bill clause by clause.
Mr Julius said that the Committee had not gone through the bill clause by clause in the deliberations of the Committee
The Chairperson recalled an occasion when Mr C Smit (DA, Limpopo) had proposed the inclusion of something into a clause.
Clause-by-Clause consideration of Bill
Clauses 1-5 were adopted.
Ms N Koni (Northern Cape, EFF) said she would not vote in favour of any of the clauses.
The Committee asked that Clause 6 be cleaned up to make clear that the condition of 10 years experience was taken out. Clause 6 was adopted
Clauses 7-14 were adopted. At this point Ms Koni left.
Mr Smit said that Clause 15 might open up the door for more graphic material and wanted Ms Ngema to clarify possible unintended consequences of the Clause.
Ms Ngema said publishers would self regulate by presenting to the classification Committee their publication. This would provide greater clarity to those that must comply with the law and those that enforce it before it even comes to the market.
Mr Smit said he was worried about the part of Clause 15(i)(b)(ii) that would be deleted.
Ms Ngema said one must not lose sight of the changes to the definitions of what sexual conduct was.
Mr Smit repeated that his concern was the words that would be removed from the act.
Ms Ngema said that the words to be deleted were tautologous of the words in the clause.
Mr Parkies said that if Mr Smit believed the words should be kept, even though they were tautologous, then the words should be kept in the bill so as to tighten it.
Mr Smit said it would apply to both Clause 15(i)(b)(i) and Clause 15(i)(b)(ii).
Ms Ngema said that in addition to the definitions, and with the direction of the Committee, the words in bold which should be deleted could be retained. Procedurally, the bill had come from the National Assembly and such a change would mean that the bill would have to go to the national Assembly again. If the Committee wanted it, the words meant to be deleted, could be left as is.
Mr Smit noted that the same case applied to Clause 15(i)(b)(iv)
Ms Ngema said that conduct had been defined in the definitions and it was broad, so the Clause was not limiting the scope of what was right or wrong. If, according to common law, bestiality was a crime, this did not say that bestiality was no longer a crime, it was for purposes of the classification of publications. It did not change the common law definitions of crimes its restricted to the classification of publications. She said the legal advisors needed the guidance of the Committee on the issue of inclusion or deletion of the bold letters.
Mr Smit said he understood that it could be found in the definitions but where in the Act was there protection against sexual violence.
Ms Ngema said the provisions sought to guide classification. She referred to the case of the reclassification of the film Inxeba as a case in point. It was not about saying sexual violence will be streamed; it was about what belonged in different categories of publication.
Mr Smit conveyed his concern that classifications would be opened up. He felt the wording that was proposed to be deleted in Clauses 15(i)(b)(i); (ii) and (iv) should remain.
Adv Mongameli Kweta, State Law Advisor, said sexual violence in Clause 15(i)(b)(iv) was covered in Clause 15(i)(b)(i).
Mr Smit acknowledged this explanation but was still concerned by Clause 15(i)(b)(i) and Clause 15(i)(b)(ii).
Mr MJulius apologised for his earlier behaviour and then raised the issue of the disregard of the opinions raised in the public participation process.
The Chairperson said that those opinions were taken into account.
Mr Julius asked whether the input made by the public and stakeholders were taken into account when deliberations were taking place. Public submissions had to be considered and it was not done when the definitions were deliberated.
The Chairperson said that the Committee did do that.
Clause 15 was adopted with amendments.
Clause 16 was adopted.
Mr Smit said that as in the case with Clause 15, Clause 17(b)(i) and 17(b)(ii) should retain the bold words earmarked for deletion.
Clause 17 was adopted with amendments.
Mr Smit wanted more clarification of Clause 18H.
Mr Parkies said the period of two years in Clause 18J should be reduced.
Mr E Mlambo (ANC; Gauteng) proposed one year but asked for guidance from the legal people.
Ms Ngema said that nothing had been changed that the Constitution prohibited.
Mr Smit said the definition of hate speech in the bill was in line with the Constitution, but the bill went further. Why was the bill going further than the Constitution on hate speech? He did not want a case of infringement of freedom of speech.
Ms Ngema said section 9.3 of the Constitution spoke to national legislation to prevent unfair discrimination, which was the Equality Act. In section 10 of the Equality Act hate speech was defined. Sections 7, 10, and 12 of the Equality Act were looked at for purposes of the amendment bill. There was nothing unconstitutional or unlawful to be found in the definition of hate speech in the amendment bill.
Mr Julius asked if the legal advisors could explain through an example how it would work in practice. If he made a statement that all Christians were drunkards, would that be classified as hate speech or freedom of speech, or would this be advocating hate speech?
Mr Parkies said things could not continue like this, that this would be the fourth session the matter would be discussed.
Mr Pandelis Gregoriou, Manager: Legal and Regulatory Affairs, Department of Communications, said the definition of hate speech in the amendment bill was essentially the same as that in the Equality Act and the latter act went to great lengths to explain different scenarios and provided a clear line of when utterances became hate speech and what speech was protected. The high court -in three cases - considered these scenarios and provided judgements. The amendment bill was as the law stood currently.
Mr Julius asked for one example.
Mr Gregoriou gave three judgements as examples, SA Human Rights Commission vs Molapi Khumalo; SA Human Rights Commission vs Bongani Masuku; and SA Human Rights Commission vs Jon Qwelane. These cases were examples where utterances amounted to hate speech and the judgements unpacked what hate speech was in great depth.
Messrs Smit and Julius wanted their objections to this clause noted.
Clause 18 was adopted.
Clauses 19 -22 were adopted. At this point Messrs Julius and Smit left and there was a pause in proceedings to find a member to make a quorum so that the meeting could proceed.
Upon resumption Clauses 23-34 were adopted.
Ms Ngema reminded the Committee that the Committee had discussed other amendments which would appear in the Committee report.
Committee Report on the Bill
The Committee report on the bill was adopted with amendments.
The meeting was adjourned.
No related documents
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