The Committee adopted its Report on the Upgrading of Land Tenure Rights Amendment (ULTRA) Bill. The final version of the B-List was adopted last week.
The Committee then received a briefing on the President’s reservations on the 2016 Liqour Products Amendment Bill – the Bill was passed by Parliament in 2018 but was referred back to the legislature by the President. The President has reservations related to lack of compliance or referral in terms of s 18 of the Traditional Leadership and Governance Framework Act. The President was of the view that the Bill should have been referred to the National House of Traditional Leaders (NHTL). Any parliamentary Bill pertaining to customary law or customs of traditional communities must, be referred to the NHTL for its comments before being passed by the house of Parliament. The President has drawn the attention of Parliament to the definition of “beer” citing word “traditional” within the definition of “liquor product”. Parliament did not refer the Bill to the NHTL as the State Law Advisor was of the opinion that traditional or African beer made for trading purposes does not pertain nor affect people’s traditions
Members debated their options and the implications of having the Secretary to Parliament refer the Bill to the NHTL. After consideration, the Committee decided to have the Secretary refer the Bill to the NHTL so as to cover all bases and err on the side of caution. This was more so as there was no time constraints on the processing of the legislation – “Considering what was happening during the hard lockdown when people were making home-brewed beer…it is better to play it safe and refer the Bill back to the NHTL because the Committee was more aware of what was happening with home brewed beers”.
Report of the Portfolio Committee on Agriculture, Land Reform and Rural Development on the Upgrading of Land Tenure Rights Amendment Bill [B6 – 2020] (National Assembly – Section 76)
The Chairperson welcomed Committee Members to the virtual meeting and highlighted the agenda for the meeting. He requested that Members go through the Committee Report on the Upgrading of Land Tenure Rights Amendment (ULTRA) Bill page by page. The Bill was adopted last week
The Committee Report on the ULTRA Bill was adopted by Members.
Liquor Products Amendment Bill
The Chairperson then explained the Liquor Products Amendment Bill seeks to regulate, among other things, the composition and production of traditional African beer. He mentioned that s79 of the Constitution provides the basis for how Parliament, or the National Assembly (NA) in the case of the return of a Bill, deals with such matters and that parliamentary Rules provide further guidance and the Committee had to deliberate on the Bill.
Ms Phumelele Ngema, Parliamentary Legal Advisor, said that on 2 June 2020, the President wrote a referral letter in terms of s79 of the Constitution. The President, in terms of s79(1), has referred the 2016 Liquor Products Amendment Bill back to the NA for reconsideration. The President has reservations related to the lack of compliance or referral in terms of s18 of the Traditional Leadership and Governance Framework (TLGFA), Act 41 of 2003.
The reservation makes further reference to the following inserted sections of the Bill:
- s6A (requirements regarding beer) and
- s6B and s6C(requirements for any other fermented drinks)
The President did not assent to the Bill which was passed by Parliament but instead returned it to Parliament for reconsideration. Section 6B presents requirements for traditional beer for commercial purposes or selling it but not pertaining to customs.
Ms Ngema explained that any parliamentary Bill pertaining to customary law or customs of traditional communities, must be referred, by the Secretary to Parliament, to the National House of Traditional Leaders(NHTL) before it is passed by any house of Parliament, either the National Council of Provinces (NCOP) or the NA, where it was introduced.
As per the tagging and certification opinion of the State Law Adviser, this Bill was not referred formally to the NHTL in terms of s18 of the TLGFA. Reading and interpreting this provision, it was not necessary to comply with this provision since the traditional or African beer made for trading purposes does not pertain to nor affect people’s traditions.
The Bill does not regulate nor address anything that has to do with customs, customary practices or customary law. Section 18 requires a referral of any parliamentary Bill to the NHTL if the content of the Bill pertains to custom or customary law.
The Bill does not dictate nor regulate the making of homemade or traditional beer where the context is for traditional customary purposes. The purpose of the Liquor Product Act is to provide for control over the sale of certain alcoholic products, the composition and properties of such products and the use of certain particulars in connection with the sale of such products. Another mentioned purpose of the principal Act is for control over the import and export of certain alcoholic products for commercial or economic purposes inside and outside the country. The purposes of the principal Act should not and cannot be sidestepped for all legislative processing of this Bill including the referral.
The position remains as it was explained during the processing of the Bill in Parliament and canvassed by the State Law Adviser’s opinion.
The use of the term “traditional beer” does not immediately result in everything about it relating to custom or customary law. An example is the “ijuba” a very old known fermented drink sold at supermarkets. Such an alcoholic drink does not pertain to custom but is produced, distributed and consumed like any alcoholic drink and that is why the Bill comprehensively seeks to cover all liquor products within the domain of commercial purposes.
There is no legal justification for the reconsideration by Parliament as per the confined reservations of the President. In terms of the way forward, Ms Ngema said that both Committees of Parliament, the Portfolio Committee on Agriculture, Land Reform and Rural Development and Select Committee on Land Reform, Minerals and Energy, canvassed this constitutional and legal issue thoroughly in the appropriate application of s18 to the Bill.
After a full explanation, both Committees accepted the legal advice and took a resolution on the lack of justification to invoke s18 of the TLGFA. However, the NHTL could still bring its input as an interested stakeholder. The Committee should consider the letter from the NHTL and adopt a report for submission to the NA House and its approval that after considering the views of the NHTL as per the President’s reservations, the NA still holds the view that the regulatory space in terms of the Liquor Products Amendment Bill is not as such that it pertains and impacts on cultural practices.
The Chairperson thanked Ms Ngema for her input and asked Ms Nokuzola Mgxashe, Committee Content Advisor, to give her input.
Ms Mgxashe thanked the Chairperson for inviting her to brief the meeting. She informed the Committee that the term “African Traditional Beer” already exists in the Liquor Act.
The Chairperson then asked Members to engage on the Bill and presentation delivered by the Legal Advisor.
Ms M Thlape (ANC) said that when she listened to the presentations from the Legal Advisor, she understood that all processes were followed and the required compliance was attended to. She wanted to know about the issue of the President being concerned about the Secretary not referring the Bill to NHTL and what will it mean for the Committee, if they agree, that the Secretary should draft the letter? Does it mean that another process would be opened? What will the implications be on the Committee if the letter was to be written? She was concerned about how the process was going to continue.
Mr N Capa (ANC) said that if it does not cost any time, the letter of compliance must be written by the Secretary so as to avoid any issues arising in the future. It would also deal with the requirements of the President. He re-emphasised that the letter will eliminate any future problems.
Ms A Steyn (DA) was concerned that the definition of African traditional beer had been disputed before and there was a presentation made. Considering what was happening during the hard lockdown when people were making home-brewed beer, she suggested that it is better to play it safe and refer the Bill back to the NHTL because the Committee was more aware of what was happening with home brewed beers.
Ms B Tshwete (ANC) said that it was a straightforward issue and she proposed that the Bill be referred back because of the issue of definitions.
Mr R Cebekhulu( IFP) was of the view that the Bill should be referred to the NHTL. There is a big challenge when it comes to what is defined as African traditional beer and the state had to take a closer look at the ingredients that are used. Some of the ingredients that are used are not good for African traditional beer.
Ms T Breedt (FF+) was in support of Ms Tshwete and Mr Cebekhulu that the letter should also be written and the Bill should be referred so as to improve it. The NHTL should be given another opportunity to look at the Bill.
Ms N Mahlo (ANC) was in agreement with the decision taken by the President. The Bill has a duplication of commercialisation of traditional beer and most African traditional beers lose their indigenous systems. The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL) should be engaged as it has raised concerns about the African traditional beer. The Bill should protect the interests of communities. She also said that the Committee should take into consideration the certification of the beer and the interests of the communities at large.
Ms T Mbabama (DA) and Mr N Masipa (DA) were in agreement with Ms Steyn.
The Chairperson thanked Members for their input and handed over to both the Legal and Content Advisors, to add their input in addressing the concerns that were raised by Members.
Ms Ngema said that there are definitely going to be implications in responding to the question asked by Ms Thlape and this is because of the concerns raised by the President on the use of the term ‘African traditional beer’. A question to be asked is if a difference would have been made if the term was not used. The Lamosa judgment can be used as a guiding benchmark to explain a procedural issue, even though the Committee is saying it is a procedural issue because of s75.
She said that there was no error by the advisor. If the matter is referred by the Committee, it means that there will be both negative and positive impacts. The negative impact being that the Committee will be setting precedence on how these matters would be dealt with in the future. It would be better to change the term to homemade beer because there will be an impact on the content of the Bill.
It all depends on what the Committee decides which is not an easy process to take. Technically and legally speaking, once the decision is made it must be complied with. Ms Ngema also mentioned that cultures are not static and during the lockdown, people were brewing their own beer and when interpreting the terms everything should be taken into consideration.
Ms Mgxashe said that according to her understanding, a referral to the NHTL was only if the Bill is considered to be dealing with traditional communities and customs and in this scenario the Bill was not referred because it was not dealing with customs. She asked if it would still make sense to refer the Bill back in terms of s18 or if there were any other alternatives available?
Ms Ngema responded to Ms Mgxashe by saying that if the Committee decides to refer the Bill back then there are deliberations that should be taken. If the process is agreed on, then the Joint Tagging should be informed and they will also have an input. The decision of the Committee will show that it agrees with the reservations that were raised by the President, hence it will admit that the input of the President was of paramount importance. It will be a difficult situation but everything will be a matter of interpretation. The Committee must make the decision and bear in mind that there are implications but without a court judgment, the Legal Advisor can only provide interpretations to the Committee. She also said that there are no limits on the legislative process unless there is a court order. Therefore the process should run its course and the Committee should not feel pressured into making a decision quickly.
The Chairperson responded saying that the Committee had to decide on whether to refer the Bill back to the NHTL or not and also make sure that the Secretary writes the letter so that the procedure is followed.
Ms Thlape suggested that the Bill be taken back to the Secretary of Parliament so as to allow her to write the letter and if the same inputs are raised, the Committee would have complied with the requirements. She was of the view that compliance was the most important thing.
Mr Capa reiterated that he was still in agreement with referring the Bill back. He also mentioned that there are many processes involved in brewing African traditional beer and if these can be brought together it would be helpful. He advised the Committee to be conscious of the concerns that need to be addressed in terms of the making of African traditional beer.
Ms Steyn was of the view that it was going to be difficult for the Committee to make a decision because there was some documentation missing in order for it to make a guided decision. She suggested that a decision not be made as it would result in long term effects.
The Chairperson said that the procedure that was supposed to have been complied with what was not followed and this was why Parliament had asked the Committee to have another look at the Bill. He mentioned that it is helpful to receive the documents but one matter should not hold back the work of the Committee. It is a procedural matter and Members had to agree if they are in support or not so that he would be in a position to know what the Committee thinks.
Ms Mahlatsi aligned herself with previous speakers about writing to the Secretary of Parliament and taking the matter to the NHTL. She was of the view that Members should familiarise themselves with the contents of the Bill so that the process could continue smoothly.
Ms Tshwete said that she could not over emphasise what previous speakers had said and as a Committee, it should refer the Bill to the National House of Traditional Leaders.
Mr Cebekhulu said that there was no urgency to complete the process without following the proper procedures as highlighted by the Legal Advisor.
Ms Breedt concurred with other Members saying that there was no rush. There was a need to get proper documentation and the Committee should act in due diligence in doing its work and do it swiftly.
Ms Mbabama was in support of the previous speakers.
Ms Mahlo said that the Bill must be referred back to the relevant structures but wanted to know about the issue on public participation i.e. who will be affected by the Bill.
The Chairperson reminded Members that the letter from the President was going to be made available to Members so that they could engage on its contents.
Mr Masipa said that previous speakers had covered the matter in depth and the procedure should be followed.
The Chairperson thanked the Legal and Content Advisors for their input to the Committee. He said that the Bill would be sent to the Secretary so as to follow due procedure as required of Members. He also mentioned that the documentation would be sent to Members so that they could read it.
The meeting was adjourned.
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