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AGRICULTURE AND LAND AFFAIRS PORTFOLIO COMMITTEE
2 September 2003
SECTIONAL TITLES AMENDMENT BILL; SPATIAL DATA INFRASTRUCTURE BILL; AGRICULTURAL PRODUCE AGENTS AMENDMENT BILL: CONSIDERATIONS
Chairperson: Mr Masithela
Documents Handed out:
AGRICULTURE AND LAND AFFAIRS PORTFOLIO COMMITTEE
Sectional Titles Amendment Bill [B43-2003]
Spatial Data Infrastructure Bill [B44-2003]
Agricultural Produce Agents Amendment Draft Bill as of 19 August 2003l
Telkom Presentation on Spatial Data Infrastructure Bill (Appendix)
Proposed Amendment by the Department of Agriculture on the Agricultural Produce Agents Amendment Bill (final version available shortly)
On the Sectional Titles Amendment Bill, the Committee spent much time on the practicality of obtaining a unanimous decision by the body corporate if an owner wanted to alter a commonly owned property. Eventually it was clear that there was a misunderstanding with what the Department meant by the word unanimous. The Bill was unanimously adopted.
On the Spatial Data Infrastructure Bill, the concern was that the Bill should provide for confidentiality and exemptions.
On the Agricultural Produce Agents Amendment Bill, the committee was concerned that the clauses on the composition of the Agricultural Produce Agents Council did not provide for representativity. It was agreed that the number of Council members should be increased. The Bill was adopted with amendments.
Sectional Titles Amendment Bill
Mr Dlali (ANC) was concerned about the powers of trustees in relation to those of the body corporate. He asked if trustees could make a decision on behalf of the body corporate if an individual owner wanted to make an alteration to a commonly owned building. Mr Geldenhuys, Registrar of Deeds from the Department agreed that trustees could act on behalf of the body corporate in such matters.
Mr. Schoeman (ANC) asked if it would not become cumbersome and take away the duties of trustees if the body corporate had to unanimously decide on a decision to such as changes to an atrium into a dining area. Mr Geldenhuys said that the Bill did not provide such a decision, instead, the Bill provides for change in the physical structure of the building.
The Chairperson felt that the Bill was causing more work for the courts. Mr Geldenhuys said that the courts would only be used if the body corporate was unable to convene within a reasonable time as stipulated by the Bill or if a unanimous decision was not reached.
There was a lengthy debate on the provision of unanimity for decision-making. The committee felt that there should be a quorum or two-thirds majority voting decision because unanimity was impossible. In the end it was clear that there was a misunderstanding and the Department explained that unanimous meant seventy percent of those present with eighty percent of the votes which would make the decision making process easier. The Department said that there were dead lock mechanisms provided in the Bill. The Deputy Minister explained that the Bill recognised that in a commonly owned property, every owner must be consulted if there was any physical alteration to the property. Property space could either be taken by expropriation or agreement and that South African law provided for agreement mechanisms only and not by expropriation.
The Chairperson put the Bill before the committee. The secretary read the motion of desirability and the motion to adopt the Bill. Mr Schoeman seconded the motions and the Bill was unanimously adopted.
Spatial Data Bill
The Deputy Minister of Agriculture & Land Affairs, Prof du Toit introduced the presentation by Telkom. He made the introduction by outlining the objectives of the Bill. The Bill sought to; establish technical standards for spatial information; appoint a committee for spatial information; appoint data vendors; outline responsibilities for different personnel.
Mr Makhake, Telkom Legal Executive, said that Telkom supported the objectives of the Bill and that spatial data was a national asset. Telkom felt that the Bill should be restricted to promoting the sharing and efficient use of information in the light of the individual's right of access to information. However, he warned that there would be unintended consequences such as private or individual abuse of the spatial information. He therefore maintained that some information of Telkom would be jeopardised because of the wide definitions of metadata. Specific exclusions should be created to safeguard company competitive and strategic information. Some government strategic information should also be safeguarded. He was also concerned about the possible benefits that might accrue to the Minister as the person who would determine fees for spatial information. He listed some specific and technical comments on the Bill's clauses.
Mr. Schoeman (ANC) asked if Telkom had concrete proposals from their comment on the amendments. Mr Makhake said that the proposals were available, however, they were not sure if it was proper to present them. However, the committee could request the proposals.
Mr. McIntosh (DA) said that spatial information was a very public domain and that it threatened confidentiality, which the Bill did not seem to deal with. Mr Makhake agreed. However, he explained that the Bill should not be understood in isolation with other legislation such as the Access to Information Act, which provided for confidentiality in certain aspects of access to information.
One member asked if the private sector would have copyright over spatial data collection. Mr. Makhake said that independent contractors that were employed by the state would collect the information and copyright would subsist in favour of the State.
One member asked why Telkom was concerned about the Minister determining fees for spatial information. Mr Makhake said that Telkom was not questioning the Minister's ability but rather asking for a consultative process in fees determination.
Ms Ntuli (ANC) said that the definitions such as metadata were too wide. The Deputy Minister said that the definitions were intended to be wide so that they could also provide for exemptions and unintended consequences.
Ms Ntuli also suggested that the Minister should not be bound by advice before deciding or acting on a matter and suggested that the clause be deleted. The committee and the delegates agreed. Mr Schoeman (ANC) added that the Ministry had a structure and implicit in the Bill was that the Minister worked hand in hand with other officials in the Ministry.
Mr. McIntosh (DA) said that clause 4 provided for Minister to have extra-ministerial powers and that it should be changed.
Agricultural Produce Agents Amendment Bill
A representative of the Department read the proposed amendment to the Agricultural Produce Agents Amendment Bill.
Mr. Botha (DA) asked for clarity on the provision that the Minister should appoint two people who in his opinion represented producers of the agricultural products to form part of the Agricultural Produce Council. The reply was that representativity was a complex issue which could not be neatly dealt with on paper and that the Minister would better decide on representativity after consultation.
Ms Ntuli (ANC) observed that the constitution of council did not provide for the representation of small producers and in particular, black emerging producers.
Mr Ngema (IFP) also noted out that consumers were not provided for in the constitution of the Agricultural Produce Council.
Mr. Schoeman and the Chairperson commented that the Department should increase the numbers for greater representativity - a necessity for transformation. The Deputy Minister agreed that more numbers could be budgeted for.
The Bill was agreed to with amendments.
The meeting was adjourned
SUBMISSION BY TELKOM ON THE SPATIAL DATA INFRASTRUCTURE BILL, 2003
(Government Gazette 25217 of 25 July 2003)
1. Telkom SA Limited would like to express its appreciation for the opportunity to comment and make representations with respect to the Spatial Data Infrastructure Bill, 2003.
2. Telkom would like to take part in any oral hearings that the Department or Parliament may hold, and would require a timeslot for presentation of 30 minutes.
GENERAL OBSERVATIONS AND COMMENTS
3. Structure of the Submission
3.1 Telkom will, in this section, offer general comments on overall aspects of the Spatial Data Infrastructure Bill.
3.2 Specific comments will then be offered, where necessary, on relevant sections in the Bill.
Subject matter of the Spatial Data Infrastructure Bill
4. The Bill seeks to provide for the establishment of the South African Spatial Data Infrastructure (SASDI), the Committee for Spatial Information, and an electronic metadata catalogue; to provide for the determination of standards and prescriptions with regard to the facilitation of the sharing of spatial information; to provide for the capture and publishing of metadata and the avoidance of duplication of such capture.
5. The objectives of SASDI are to facilitate or promote the capture, management, use and sharing and access to spatial information, the prevention of duplication, universal access to spatial data and the protection of government's copyright in works relating to spatial information.
6. The Minister may prescribe standards and measures for the sharing and integration of spatial information, determine fees payable for spatial information and other records and must maintain an electronic metadata catalogue as a component of SASDI.
7. The committee must advise the Minister, the DG and organs of state on spatial information related matters referred to it, matters regarding the capture, maintenance, integration and distribution of spatial information and any matter deemed necessary or expedient for achieving the objects of the Act.
8. In addition it must promote an environment conducive to the capture, maintenance, integration and distribution of spatial information; monitor the functioning of SASDI; support the functioning of any structure or measure established in terms of the Act; promote awareness of its activities and submit an annual report concerning its activities to the Minister.
9. It may print and distribute the publication of any material relating to spatial information and do anything necessary for the proper performance of its functions.
10. Spatial data is a national asset, of considerable value to the whole economy. Telkom supports the objectives of the Bill in so far as they seek to promote access to baseline spatial information. In other words, the information provided should form the "foundation layers of the data framework, providing a sound base for the important themes which include transportation, hydrography, utilities, soil classification, valuation, climate and land use". This is the approach followed in the United States of America as well as Malaysia.
Key Concerns for Consideration
11. Objects of the Bill
11.1 The underlying objectives of the Bill as per its Memorandum on the Objects of the Spatial Data Infrastructure Bill, 2003 (Memorandum) is to promote the sharing and efficient use of the State's spatial/geographic resources and to give effect to the constitutional right of access to information; inter alia the right of access to information held by private persons to the extent that it may be required for the protection and exercise of fundamental personal rights.
Telkom is of the considered view that the right of access to information held by private persons is adequately provided for in legal precedent and in the Promotion of Access to Information Act. Consequently we propose that the objects of the Act be restricted to promote the sharing and efficient use of the State's spatial/geographic resources.
12. Right of Access to Information Held by Private Persons
12.1 Telkom believes that the extension of the Bill's application to the domain of access to information held by private persons will have unintended consequences for the entities potentially affected thereby. Quite apart from unnecessary duplication and consequent complication of processes and procedures, Telkom submits that the matter is adequately provided for in the Promotion of Access to Information Act. According to the Memorandum it was apparently not the legislature's intention to provide a way of tapping into spatial information compiled by private persons.
In order to achieve the actual intent of the legislature it is suggested that the Bill be confined to only those matters necessary and essential for effective and efficient governmental governance, planning and decision making. That accords with the object of the Bill, which is essentially to regulate inter-governmental relations in connection with the sharing and exchange of spatial information.
13. Telkom has been exempted from the Public Finance Management Act. Even though Telkom is mentioned in Schedule 2 as a Major public entity, it has been exempted due to the conflict between Telkom's private company status and that of an organ of state.
23. Section 6 - Powers and functions of Committee
23.1 Section 6(2)(d) makes provision for the committee to, inter alia, print, circulate, sell and administer the publication of any material relating to spatial information.
Again there are issues of confidentiality that come into play with regard to the proprietary and strategic nature of information.
Section 6(2)(g) gives the discretion to the Committee to do anything necessary for the proper performance of its functions or the achievement of its objectives.
This is too wide and needs to be narrowed down.
24. Section 7 - Term of office
25. Section 8 - Disqualification as a member of Committee
Section 8(1)(g) stipulates that the Minister may not appoint a person to the Committee who is not, in the Minister's opinion, a fit and proper person to be appointed.
This provision gives a wide discretion to the Minister and does not give criteria for the disqualification of appointment.
26. Section 9 - Meetings of Committee
27. Section 10 - Establishment of Sub-committees
28. Section 11 - Spatial information standards and prescriptions
Section 11(1) gives the Minister the power to determine standards and prescriptions to facilitate the sharing and integration of spatial information.
It is proposed that a consultative mechanism be put in place.
According to Section 11(2), no standard or prescription determined by the Minister shall take effect unless it has been published in the Gazette at least one month before the effective date specified in the notice.
This provision does not provide a mechanism for public participation. It merely gives a time frame for when it will take effect but no procedure/ mechanism for public comment.
29. Section 12 - Capture and publishing of metadata
Section 12(2)(a) &(b) places an obligation on data custodians to make its metadata available in a prescribed format for inclusion in the electronic metadata catalogue; as well as to include its functions in a manual as described in section 14 of the Promotion of Access to Information Act, 2000.
This section places an unwarranted burden on data custodians. Presently each data custodian keeps records based on their business requirements. This provision seeks to change this situation with the consequent need for costly adjustments.
30. Section 13 - Access to and distribution of spatial information
31. Section 14 - Appointment and accountability of data vendors
The heading refers to data vendors. However, according to the content of the section, it should actually refer to the accountability of data custodians.
32. Section 15 - Agreements on utilization of spatial information
33. Section 16 - Collaborative maintenance
34. Section 17 - Reporting on data quality
35. Section 18 - Security of spatial information
36. Section 19 - Delegation of powers
37. Section 20 - Regulations
38. Section 21 - Liability
39. Section 22 - Short title and commencement
Executive: Telecoms Policy and Licensing Development
Definitions of metadata (Content, Quality, Condition and Other Characteristics of Spatial Information) and spatial information (Information about Spatial Objects or Features and their Attributes)
13.1 These definitions are so wide that they would include the most detailed of information, for example network layout, main switches, customer information, revenue per customer, and the like. If such information for a commercial entity like Telkom is included in a metadata catalogue that is universally accessible, its competitive business proprietary information shall be severely jeopardized. Furthermore, if information held by Telkom, such as infrastructure and network rollout, were to fall into the wrong hands, it could result in a national security risk.
13.2 Although the proposed approach of the Bill may be a pragmatic and cost-effective solution to the problems of duplication of information and excessive spending by government departments, if not handled cautiously, it may give rise to additional problems as already canvassed above and articulated below. One means of overcoming this problem may be to apply different categories to the classification of spatial information, such as, base line/ public, private, confidential, secret.
14. Application of Bill to Organs of State
14.1 Telkom is concerned that the confidentiality of its customer confidential records and competitive company information will be jeopardized since the Bill applies to organs of state.
14.2 Although no post listing precedent exists, the High Court has, since the decision in the Directory Cost-cutters case, consistently held that Telkom was for all intents and purposes an organ of state.
14.3 If applied to the instant case, the Bill could potentially have disastrous consequences for Telkom in respect of obligatory feeding of spatial data information to the electronic metadata catalogue administered by the Minister.
14.4 Whilst Telkom would be more than willing to share or sell basic spatial information as outlined in paragraph 12.2, as Telkom perceives it, the real danger exists that company competitive and confidential information could leak out to competitors not subject to similar obligations. In Telkom's case, as a listed company, it could amount to a contravention both of the rules of listing and its obligations to shareholders.
14.5 Even if Telkom were not classified as an organ of State, it would still not be exonerated from the dictates of the Bill due to the ambit of the Bill which extends to persons who exercise a public power or perform a public function in addition to capturing or using spatial information.
14.6 Consequently, it is proposed that specific exclusions be created to safeguard company competitive and strategic information.
14.7 It is submitted that it would be inappropriate for Telkom to be affected by the prohibitions of the Spatial Data Infrastructure Bill, because Telkom is a purely commercial entity that has acquired its spatial information at great cost. To argue otherwise would amount to surrendering information that is of a proprietary, strategic, business nature and not simply sharing basic spatial information.
15. Universal Accessibility of Spatial Information
15.1 In so far as the promotion of universal access to spatial information (apparently in the form of access to the electronic metadata catalogue) is concerned, Telkom proposes a layered approach. In terms of such an approach the citizen's right of access to the foundation layer of general geographic data only will be protected. In so doing strategic information concerning water, gas and petroleum reticulation as well as company competitive information would also be protected.
16. The Beneficiary Minister Determines Exemptions and Charges
16.1 Telkom finds it problematic that the Minister who will benefit from the capturing and exchange of spatial information in terms of the Bill will also determine the fees payable, as well as exemptions there from, for spatial information.
17. Circulation of Pooled Information
17.1 It is felt pertinent to suggest some prescript aimed at limiting the free and discretionary publication and distribution of "any material relating to spatial information". Evidentially certain detailed levels of spatial information, even in Government's possession, will be of such a strategic nature that it should not be divulged and must be protected.
SPECIFIC COMMENTS ON PROPOSED BILL
18. Section 1 - Definitions
Section 1 of The Spatial Data Infrastructure Bill, 2003 provides several definitions as follows: -
18.1 'data custodian
an organ of state; or
an independent contractor or person in the exercise of a public power or performance of a public function which captures, maintains, manages, integrates, distributes or uses spatial information;'
The term "data custodian" is very broad and could include many competitive telecommunications service providers and commercial entities. This definition is likely to attract unjustifiable interference in the private activities of business. It should be narrowed down.
18.2 'organ of state' means an organ of state as defined in section 239 of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996);
As explained under general comments above, in paragraph 14, a narrow meaning needs to be applied to the term "organ of state". (In line with the Memorandum. Also see comments under General)
This definition is too broad. As it stands, entities from whom the information is requested run the risk of surrendering all their information as long as it satisfies the needs of the requestor.
18.4 'spatial information'
This definition does not clearly define what spatial information is. As such, the definition is too wide as the word spatial could include very detailed information about a thing, including attributes and extraneous factors in relation to the locality of a thing. (Refer to General Comments, point 13 above)
19. Section 2 - Application of the Act
According to this section, the Bill seeks to apply to organs of state as well as to users of spatial information.
The application of the Bill to users of spatial information makes the extent of the Bill very wide and unwieldy. Consequently, the application of the Bill should be circumscribed to remain within the parameters of the Bill's clear objective.
20. Section 3 - Purpose of South African Spatial Data Infrastructure
Section 3(2)(a): This section outlines the objectives of SASDI; one of which is to facilitate the capture of information.
Unlike the State in its various capacities, Telkom has specific business related requirements in so far as the manner and format in which it captures data is concerned. As a result, it will be difficult to include Telkom in government's facilitation of data capture in the public interest.
21. Section 4 - Powers and functions of Minister
The powers granted to the Minister are too wide and open-ended.
According to Section 4(1)(b) the Minister may determine the fees, costs, price or charges attendant to the access or acquisition of spatial data.
The provision amounts to the granting of an unbridled discretionary power for the Minister as to the determination of cost. Telkom proposes that reasonable cost related compensation be payable to data custodians and that data custodians be consulted in the process of determining fees. Furthermore, the reference to "and other records" is too wide and in Telkom's view unjustifiable.
22. Section 5 - Establishment of Committee for Spatial Information
22.1 Section 5(2)(h): means information about spatial objects or features and their attributes; means the degree to which spatial information which has been captured or collected satisfies stated or implied needs and includes geographic information about lineage, completeness, currency, logical consistency and accuracy of spatial information;
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