Liquor Bill: finalisation

Share this page:

Meeting Summary

A summary of this committee meeting is not yet available.

Meeting report

ENOMICS AND FOREIGN AFFAIRS SELECT COMMITTEE

ECONOMICS AND FOREIGN AFFAIRS SELECT COMMITTEE
8 October 2003
LIQUOR BILL: FINALISATION

Chairperson: Mr B J Tolo (ANC)

Documents handed out:
Liquor Bill [B23B - 2003]
Kwazulu Natal Final Voting Mandate Proposed Amendment (Appendix 1)
Western Cape: Comments on the Liquor Bill (Appendix 2)
Departmental Proposed Changes on the Liquor Bill (Appendix 3)

SUMMARY
Provincial final mandates were presented on the Liquor Bill. All Nine provinces supported the Bill. KZN and Western Cape Provinces supported the Bill with proposed amendments. The Committee approved the Bill, with amendments, however the ACDP representing the Western Cape abstained. The Liquor Bill was adopted.

MINUTES
Chairperson pointed out that the aim of the meeting was to finalise the Bill. However before going to the final stage, he requested the provinces to table their final mandates and thereafter the department would provide a synopsis of the Bill.

Eastern Cape

Voted in support of the Bill with amendments.

Free State
Voted in support of the Bill with its amendments

Gauteng

Voted in support of the Bill.

KwaZulu Natal
KwaZulu Natal was in support of the Bill with amendments. Please refer to Appendix 1.

Mr Durr (Western Cape) pointed out the Western Cape had similar proposals to those made by KZN and therefore would like to table its final mandate.

Western Cape
Mr Durr (Western Cape) concurring with the amendment as proposed by KZN Mr Durr pointed out that clause 4(7) would render it difficult to police and monitor retail sellers, and furthermore the clause could amount to unintended consequences.

Clause 4
Ms Ludin (Deputy Director General) responding to the issues raised above pointed out that the intention of the Bill was to introduce a three-tier system with separate activities. She pointed out that the issue at stake was whether selling of liquor from retail to another retail constituted distribution? The proposed Bill was attempting to recognise those kinds of activities as distribution rather than retail. Therefore a sale of liquor by another registered person to another registered would be recognised by the Bill a legitimate activity.

Ms Ludin further pointed out that the department had proposed the insertion of a new clause 45(a) that would allow the Minister to delegate powers to a member of the Executive Council of a province authority to exercise all or part of the Minister's powers, discretion and responsibility under the Act with respect to the registration of persons within that province as distributors of liquor.

Dr Conroy (NNP) (Gauteng) asked whether selling of liquor by a retail seller to a restaurant or a bread and breakfast would constitute distribution.

Mr Durr (ACDP) (Western Cape) was concerned that the proposed amendment in respect of clause 44 (2) by the department was attempting to achieve what they were objecting to through other means. He pointed out that granting discretionary power to MEC's to license for distribution was not attractive, especially in the liquor industry.

He further noted that the clause 4(7) as it stood could lead to every retailer applying for a distribution license and it would be difficult to know whether a person was acting in his/her capacity as a retail seller or a distributor.

KwaZulu Natal requested to be furnished with a copy of the proposed amendment by the department in respect of clause 45(2).

Chairperson pointed out that the committee would have to vote in respect of the amendment proposed by the department.

Mr Durr (Western Cape) pointed out that it would be unfair for the committee to vote on the proposed amendment by the department by the department without the members getting mandates from their respective provinces as the amendment was new to them.

Mr Nogumla (ANC) (Eastern Cape) explained that the amendments proposed by the department were among the issues that were raised during the negotiating mandates and members were requested to brief their provincial committees about these possible amendments.

Chairperson concurred and pointed out that there was a need to finalise the Bill as soon as possible.

Mr Durr (Western Cape) was of the view that the proposed amendment by the department in respect of clause 4 was a radical departure and he did not have the mandate from his province to vote on the amendment.

Chairperson proposed the proposal by the department be deferred and asked if members agreed with the amendments proposed by KwaZulu Natal and Western Cape.

Eastern Cape, Gauteng, Mpumalanga, Limpopo, North- West Province disagreed

The voting results were: two against five and therefore the proposals by KwaZulu Natal and the Western Cape in respect of clause 4 were rejected.

Clause 8
Ms Ludin pointed out that the provinces had proposed the age limit of 16 because it was in line with the labour legislation. She further noted that age limit of 18 could prevent young people from working in the hospitality industry. Hence she proposed that the age limit of 16 be retained.
Members unanimously agreed on that proposal.


Clause 20(6)
Members agreed with the proposals made by KwaZulu Natal in respect of this clause

*The committee continued with the final mandates from other provinces:


Mr Durr (Western Cape) noted that the committee would vote on the Bill as it stood and not the new proposal made by the department in respect of clause 4.

Mpumalanga
Voted in Support the Bill with amendments.

North-West
Voted in Support the Bill with amendments.

Limpopo
Supported the Bill with its amendments

Northern Cape
Voted in support of the Bill with amendments.

Departmental Proposed Amendments
Chairperson requested the department to address the committee on any miscellaneous issues arising out of the recent amendments. Please refer to Appendix 3.

Ms Ludin explained that there were certain changes that were effected after the deliberations with the Portfolio Committee. However department had later realised that some of those changes could have unintended consequences. To remedy that, department would like to propose the following amendments:

Clause 3(2)
Ms Ludin (DDG) pointed out that after discussion with the Portfolio Committee, the words "sale from" were excluded to the effect the clause could be read as follows: "This Act does not apply to a private collections". The implication of that could mean that a private collector could produce a concoction and be exempted from the Act. To remedy that anomaly she proposed that the words "from a" be re-inserted because it was not the intention of the Act to exempt a private collection from the whole of the Act, but only in respect of clause 4. Hence clause 3(2) would be changed to read as follows "Section 4 of the Act does not apply to a sale of liquor from a private collection".

Clause 6(2)
She pointed out that the problem with sub-clause 6(2) was that one could produce sorghum and add battery acid and argue that s/he was not producing it for consumption. That would made the clause difficult to enforce. She then proposed that sub clause 6(2) be formulated to the following effect: "A person must not add an importable substance to liquor, or sell or supply any liquor to which an importable substance has been added".

Clause 10

In Clause 10(1) and 10(4) she proposed the insertion of the word "supply" after the word "sell" so that the clause could be read to the following effect "a person must not sell or supply liquor or methylated spirits to a minor". To prevent minors from producing liquor, she proposed an insertion of a new clause 10(5), which would prohibit a minor from producing and selling liquor.

Mr Durr (Western Cape) proposed that clause 10(1) be further amended to insert the following "provided the liquor is consumed for religious purposes".

Mr Strydom (State Law Advisor) pointed out that in terms of the Interpretation Act one could not give an absurd interpretation to any provision of an Act, however he agreed that there was a need to craft a provision that would be in line with the Child Care Act so as to prevent the abuse of children.

Ms Ludin pointed out that the department would further consult with the State Law Advisors on how to best draft clause 10(1).

Clause 11(2) (e)
Ms Ludin pointed out that the sub clause as it stood was not clear and therefore proposed the insertion of the words "the elements of" to the effect that clause 11 (2)(e) could be read as follows: "Any person may be registered as a manufacturer or distributor of liquor, or both, except a person who……….has been convicted, under applicable legislation, of the elements of an offence which is inconsistent with the objects and purposes of this Act".

Clause 36(1)
She proposed the deletion of the word "a registered person"


*The committee reconsidered the proposed amendment by the department in respect of clause 4(5)(b)(ii)


The committee considered the proposal that was made by the industry during the negotiating stages, in that there was a need to insert the words "to the extent" in clause 4(3)(b)(ii) to the effect the clause the could be read as follows: "Subject to the conditions of its registration, any manufacturer may distribute the liquor that it had manufactured to a retail seller, to the extent permitted by the conditions of registration".

Mr Strydom (State Law Advisor) pointed out that the above formulation could confer an automatic right to the manufacturers.

Ms Ramodibe (ANC) (Gauteng) concurred with the state law advisor that the clause be retained as it was.

Ms Ntwanambi (ANC) (Western Cape) asked the State Law Advisor to explain a distinction between the use of the following words "if permitted" and "to the extent permitted".

Mr Durr (ACDP) (Western Cape) argued that the current formulation as stood would amount to an invasion of the existing rights of the manufacturers; hence he was in support of the proposal by the industry.

Mr Strydom (State Law Advisor) responding to the question posited by Ms Ntwanambi pointed out that if clause 4(3)(b)(ii) was retained, it would mean that the manufacturers did not have an inherent right to distribute the liquor they produce to the retail sellers. However if the proposition by the industry was endorsed, it would mean that manufactures had an inherent right to distribute liquor and the conditions as contained in the licence permit could only regulate the extent to which a manufacturer exercises his/her right. Hence the insertion of the words "to the extent permitted" would take away the Ministers discretion to grant permission to a manufacture to distribute to retail sellers.

Ms Ludin (DDG) concurred and proposed that the committee to adopt the amendments as proposed by the department, that "subject to the conditions of its registration, any manufacturer may distribute the liquor that it had manufactured to a retail seller, if and to the extent permitted by the conditions of registration". Further more clause 13(b) to read as follows: "The Minister, having regard to the objects and purposes of this Act, the circumstances of the application, the declared wishes of the application in terms of section 11(1)(b) and the criteria set out in subsection may propose any reasonable and justifiable conditions on the registration of any other applicant, including but not limited to, conditions that determine whether, or the extent to which, the applicant may distribute liquor to retail sellers".

The members of the committee unanimously agreed with the aforementioned proposition with the Western Cape disagreeing.

Chairperson put the Bill to the members with the amendments.

It was agreed upon.

The opposition by the Western Cape was noted and recorded. Chairperson read the committee report adopting the Bill. It was agreed the Bill was formally passed.

The meeting was adjourned.

Appendix 1
Final Voting Mandate Agreed to by the Kwazulu-Natal Standing Committee on National Council of Provinces Matters on the Liquor Bill [B23B-2003]

Clause 4
Proposed deletion of clause 4(7) and new sub clause 4(7) be inserted to the effect that "the holder of a liquor licence issued in terms of the law of one province may not sell liquor to the holder of a retail license issued in terms of the law of one province.

The clause 4(8) as it stood seem to encroach on the provincial competency and therefore proposed that in sub clause 4(8), the following words be deleted "person, whether registered or unregistered" and to insert after "any" the words "unregistered person".

Clause 8

Proposed that after the words "age of" delete the number "16" and insert the number "18" because the aged limit was too low.

Clause 20(6)
Proposed the deletion of the words "cancels the certificate" and insert the words "notifies the former registrant of the cancellation".

Clause 26(2)(f)(1)
Proposed the deletion of the words "produce and bottled" and to insert the word "manufactured".

PROVISO

1) the amendment/s does not alter the essential element of the Bill and

2) consensus is reached on the proposed amendment/s by the KwaZulu-Natal delegation

Mrs. L G Ngcobo

CHAIPERSON : KWAZULU-NATAL STANDING COMMITTEE ON NATIONAL COUNCIL OF PROVINCES MATTERS


Appendix 2
WES-KAAPSE PROVINSIALE PARLEMENT

WESTERN CAPE PROVINCIAL PARLIAMENT

IPALAMENTE YEPHONDO LENTSHONA KOLONI

29 September 2003

Dear Mr. Tolo

RE: COMMENTS ON THE LIQUOR BILL [B 23B-2003)

The Standing Committee on Finance and Economic Development in the 'Western Cape Provincial Parliament considered the above-mentioned Bill today and comments as follows

In our negotiating mandate, certain amendments were proposed in the meeting of the Select Committee on Economic and Foreign Affairs of Tuesday 23 September 2003 at 11:00 The State Law Advisor, Mr. T Hercules, indicated that the amendments proposed by the Western Cape would be incorporated in the Bill

In a letter from the Department of Trade and Industry (DTI) to you dated 26 September 2003, we regrettably noted that the DTI had a change of mind and decided not to incorporate the proposed amendments and thus did not address the arguments identified by the Western Cape.

The Western Cape still stands by the proposed amendments as noted in the negotiating mandate and our final mandate thus re-emphasizes our negotiating mandate.

It is also request that this matter be investigated as a matter of urgency and we await your response.

Regards

S L ANDERSEN

CHAIRPERSON


Appendix 3

The table below contains an explanation of the changes that are proposed by the Department on the Liquor Bill

Section

Proposal

3(2) - Application of Act

Change to read"

"Section 4 of the Act does not apply to a sale of liquor from a private collection."

4(5)(b)(ii) - Distribution authority.

Amend the provision to read:

"to a retail seller, if and to the extent permitted by the conditions of registration"

Amend s. 13 (3)(b) to read:

" . . . conditions that determine whether, or the extent to which, the applicant . . ."

6 (2) - Impotable substances

Add the following words to the end of ss(2):

" . . . add an impotable substance to liquor, or sell or supply any liquor to which an impotable substance has been added."

10 -Protection of minors

Re-insert 'or supply" in clause (1) and (4), and "or supplying" in clause (2).

Insert a new clause (5):

"A minor must not -

  1. produce liquor;
  2. import liquor; or
  3. supply liquor to any other person."

11(2)(e) - disqualification for offences under provincial law.

Insert the following words in s. 11 (2) (e) after the word "offence":

"the elements of which are".

Delete the word "is".

26(2)(f)(i)

Change "produced or bottled" to "manufactured".

34(1) - Offences

Alter s. 34 as follows:

In (1)(a), delete "any provision of this Act", and substitute "section 4(2), 5(1), 6,7,8,9 or 10, or subsection (2)".

36(1) - Imputed criminal liability

Delete the word "registered" in line 1, 3, and 5, for a total of 4 deletions.

General Comment

To achieve this, insert the following s 45 (2):

" The Minister may delegate to the Member of Executive Council of a province authority to exercise all or part of the Minister's powers, discretion and responsibility under this Act with respect to the registration of persons within that province as distributors of liquor."

Audio

No related

Documents

No related documents

Present

  • We don't have attendance info for this committee meeting

Download as PDF

You can download this page as a PDF using your browser's print functionality. Click on the "Print" button below and select the "PDF" option under destinations/printers.

See detailed instructions for your browser here.

Share this page: