Copyright & Performers’ Protection A/Bs: deliberations; Process regarding the appointment of the NLC Chairperson

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Trade, Industry and Competition

17 May 2022
Chairperson: Ms J Hermans (ANC)
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Meeting Summary

Responses to Proposed amendments DTIC and CLSO

Proposed Amendments: Copyright Amendment Bill

Media Statement: National Lotteries Commission

In this virtual meeting, Parliament’s Office of Constitutional and Legal Services and the Department of Trade, Industry and Competition continued their combined response to the public submissions on the Copyright Amendment Act.

The Senior Legal Advisor began by presenting the five issues that were outstanding from the previous meeting. The discussion included the definitions of Technological Protection Material and Technological Protection Material Circumvention Device which were critical for moving the Copyright Act into the modern digital era. As it was a completely new field for copyright law in South Africa, the challenge had been getting the balance right so that the work of originators was protected, but so were the rights of consumers and digital developers who might wish to produce accessories or to service digital devices.  A second issue was related to certain phrases with specific meaning in copyright law: “fair practice” as opposed to “extent justified by the purpose”. Thirdly, was a discussion related to whether or not to allow for mentioning the name of the author only as far as is practicable or whether to insist on the naming of the author whenever the author’s name appeared on work, or whether there was an obligation to track down and name the author. The final two issues related to offences and obligations. Because contravention of the Copyright Act was criminalised, decisions about whether a non-commercial contravention would be criminalised and whether negligence could lead to charges being laid or whether only in cases of intent, had to be very carefully considered.

The DA stated that the Bill was fatally flawed and that there was no point in attempting to make amendments.

Members asked about details, such as the issues of “wire” versus “wireless”. What were the implications of taking out the word “wire”? Should “lawfully acquired” not be retained because the private copying section, was too broad and could apply to copies that were unlawfully acquired? Did the latest amendments meet constitutional muster? Had the latest amendments not gone beyond the ambit of the President’s concerns? Was the definition of Technological Protection Measures in the remit of the President?  Would the National Council of Provinces not take up many of the matters as it was now a section 76 Bill? Why were the matters not raised by the Council instead of the Portfolio Committee? How did Facebook deal with matters such as copyright?

Members asked about the rights holders. Would the Technological Protection Measures clause offer greater protection to the originators than to the multi-national record companies? What about those originators whose rights had been taken by the record companies previously? Should the Bill not expropriate the copyrights previously taken by the international companies? How was the Committee addressing the non-constitutionality raised by the President?

The Committee moved on to the issue of the Chairperson of the National Lottery Commission. The National Assembly had revived the report on the matter of the Lottery Commission chairperson which had expired on the last sitting day the previous year and had referred the report back to the Committee for consideration. The Committee was required to report on the process it would follow on the matter going forward. Subsequent to recommendations being made, one of the candidates recommended to the Minister for consideration as chairperson had passed away. The Committee could add an additional name and submit the revived report or, having considered the developments since the initial report was published, could resolve to inform the National Assembly of its intention to initiate a new process. A Legal Advisor from the parliamentary Office of Constitutional and Legal Services confirmed that within the terms of the Lotteries Act, shortlisting was the Committee’s domain and the Committee had the two options on the table. It was within the Committee’s purview and domain to determine how to manage the shortlist.

Members expressed concern that the Report had been delayed in Parliament for nearly a year and a half. It was determined that parties would consult their caucuses and the matter would be addressed the following week.

Meeting report

Opening Remarks
The Chairperson indicated that the Committee would be continuing the deliberations on the proposed amendments to the Copyright Amendment Bill as advertised for the second time and the responses of the Office of Constitutional and Legal Services (OCLS) and the Department of Trade and Industry (dtic). She stated that Members needed to be mindful of the fact that the Committee would be letting South Africans down if they did not come to decisions on the matters before them so that they could conclude the process. They should seek to address the outstanding matters that required discussion as indicated by the dtic and Adv Charmaine van der Merwe from OCLS.  Adv van der Merwe from the OCLS would make the initial presentation and Dr Evelyn Masotja, DDG: Consumer and Corporate Regulations at dtic would add comments on behalf of the Department.

Presentation on the Five Outstanding Matters in the Copyright Amendment Bill
Adv van der Merwe appreciated the time given to her Office and the dtic to undertake research and to come to an agreement upon recommendations to the Committee.

She presented the five outstanding issues on the Copyright Amendment Bill following the second advertisement in terms of the section 79 process.

The first issue related to the Technological Protection Material (TPM) and Technological Protection Material Circumvention Device (TPMCD) definitions, which could not be too strict or they would compromise three freedoms. Her concern was that unless a nexus with an infringement was clear the following three freedoms would be compromised:
-the freedom to arrange our conduct to our own benefit rather than that of the shareholders of the companies whose products we purchase (to use the product as the consumer wants to);
-the freedom of third parties to offer accessories, consumables, services and repair for the products we own; and
-the freedom of auditors to uncover and publicise defects in the products we rely on (there had been threats that any disclosure could jeopardise the TPM).”

The proposed amendment: to tighten up the allowed use of circumvention devices so as to protect the rights of the copyright owners in that technology.
Adv van der Merwe also recommended adding “product” in TPM and “services” in TPMCD.

The second issue related to the use of the phrase “fair practice” as opposed to “extent justified by the purpose”.  Adv van der Merwe noted that the Copyright Act used “fair practice” in respect of quotations, illustration for purposes of teaching and programmes carrying signals.

The recommendation was to use both fair practice and extent justified by the purpose in:
Section 12B(1)(a): Quotations;
Section 12B(1)(b) [now 12D(9)]: illustrations for teaching;
Section 12D: reproduction for education and academic activities;
Section 12B(1)(e): use only extent justified by the purpose;
Section 12B(1)(f): Translations and Section 12B(1)(i): Personal copies: use only use fair practice.

The third issue related to whether or not to allow for mentioning the name of the author only  as far
as is practicable, noting that the Copyright Act does not use this phrase at all. The recommendation was not to include “as far as it is practicable”, but to include the name of the author without exception in
Section 12A(c): fair use;
Section 12B(1)(a): quotations;
Section 12B(1)(b) [now 12D(9)]: illustrations for teaching;
Section 12B(1)(e): and reporting on current events, etc.;
Section 19D(4)(a): exceptions in respect of persons with a disability.

However, in Section 12D(8)(a): reproduction for educational and academic activities, it was recommended that “as far as is practicable” be included.

The fourth issue regarded offences. Due to the serious nature of infringements, the Bill criminalised both commercial offences and offences conducted for non-commercial purposes. To retain that meaning “and for commercial purposes” was to be deleted.

The fifth issue also related to offences, and whether negligent actions would be criminalised. The recommendation was that negligent actions not be included as an offence which would mean that the wording in sections 28O and 28S would revert to “has reason to believe”.

Adv van der Merwe stated that she wished to make a correction to one recommendation made the previous week. In section 12B(1)(f) [NB: moving 12B(1)(b) would make the paragraph 12B(1)(e)], she had indicated that the conjunctive “or” be used but in fact, all of the sub-clauses had to be adhered to as all three factors were a requirement for the exceptions regarding translations. That meant that the conjunctive “and” should be used:
“the translation of such work by a person giving or receiving instruction: Provided that such translation is—
(i)done for non-commercial purposes;
(ii) used for personal, educational, teaching, judicial proceedings, research, the furtherance of language and culture, or professional advice purposes only: Provided that such use shall be compatible with fair practice; and
(iii) communicated to the public for non-commercial purposes.”.

Adv van der Merwe stated that the document with the tables had been updated and sent to Members.

Input by dtic
Dr Masotja stated that she and Adv van der Merwe had worked together on the proposals and so she could do no more than reiterate what Adv van der Merwe had said. However, she wished to explain why the dtic had agreed to a different approach to Technological Protection Measures. The dtic had wanted to retain the advertised version as it seemed to create a balance, but when the dtic had reviewed the unintended consequences that could arise from that version and had looked at international practices, together with the fact that they were new measures in a developing country, the dtic had decided not to be too harsh. The issues were complex and it was difficult to maintain a balance. She understood that some members of the public had asked to include strict protective measures, but it was not the time to be over-protective.

The Chairperson asked Members whether they accepted the five recommendations and one correction from Adv van der Merwe, noting Dr Masotja’s comments on the TPM and TPMCD.

Mr D Macpherson (DA) asked for a repeat of the first recommendation as he had had to deal with a constituent and so had joined the meeting a little late.

Adv van der Merwe repeated the recommendation and Mr Macpherson stated that at some point earlier in the process, it had seemed that some very serious considerations had been put on the table and the Committee had to decide which way to go and a discussion of the Bill was the way to go. That discussion was not happening and the Committee appeared to be forging ahead in a specific direction. He believed, with apologies to the officials, that the Members should be looking at political decisions without officials. It seemed that if recommendations were being made and the Committee was being asked to approve them, the Committee was just going ahead with what in the DA’s opinion, was a fatally flawed Bill.

He wished to put it on the table that the DA would reserve its right to decide at a later stage how to deal with the issue. One could not unscramble a scrambled egg and that egg had been scrambled so long ago that it was difficult to work out if it was still an egg. The DA reserved its rights.

The Chairperson noted the point made by Mr Macpherson.

Mr M Tshwaku (EFF) asked if he could have a meeting with the advocate for her to take him through the Bill as the terms were complicated and one had to apply one’s mind to the issues. He needed such an opportunity before he could take a position.

The Chairperson requested that he ask questions of clarity in the Committee meeting as that might help other Members. He could later decide whether the EFF needed more time to consider the matter.

Mr Tshwaku asked the advocate to take him through all of the proposals again, but slowly so that he could apply his mind.

Mr S Mbuyane (ANC) noted one issue was that of broadcast but he did not know if that had been presented. He added that the Committee had to look at the issues of “wire” versus “wireless”. What were the implications of taking out the word “wire”?

He also asked about “lawfully acquired” because the private copying section, 2B1(a), was too broad and could apply to copies that were unlawfully acquired and did not meet the three-step test. He had a recommendation in that regard.

Regarding the TPM clause, he agreed with dtic to retain the amendments to the definition and welcomed the inclusion of “product”. Regarding the TPM definition, he agreed with the recommendation to retain the amendment but, for clarity, he wanted to add “performed” to the list of activities to reflect the list of services in the definition of the TPM.

Mr Mbuyane said that he would come back to clause 29(section 28P).

Mr C Malematja (ANC) said on mentioning the author, to be specific, one should recommend that the author be mentioned at all times to protect the author’s rights. Concerning the TPM and the third point that gave third parties the freedom to offer services, he agreed with the point but it had to be clearly stated that it would create jobs because if it did not benefit the masses, it would be a fake and would allow things to be done in the backyard where a guarantee would be questionable. The Bill had to ensure that one person could not be doing everything. Otherwise, he agreed with the recommendations.

Mr W Thring (ACDP) asked if the amendments would meet constitutional muster. Secondly, in respect of the guidance of the President and the reasons that the President sent the Bill back, there had been concerns that the amendments went beyond the ambit of the President’s instructions. What was the legal response?

The Chairperson stated that the question regarding those clauses under discussion for amendments had to be clearly dealt with as it was a recurring concern. For example, was TPM in the remit of the President?  However, she asked that Dr Masotja and Adv van der Merwe remained within the bounds of the five points on the table.

The Chairperson asked Adv van der Merwe and Dr Masotja to be clear about why the Committee was looking at things like TPM. Mr Mbuyane’s question on communication went beyond the five areas that they were covering for the moment.

Mr Z Burns-Ncamashe (ANC) said his question related to that already raised about the constitutionality of the issues under discussion. The Committee’s response ought to have been limited to the reservations expressed by the President but one issue was tagging of the Bill. What were the implications for issues additional to the President’s concerns? What about when the National Council of Provinces (NCOP) took up the process as it was now a section 76 Bill? Why were the matters not raised by the NCOP, instead of the Portfolio Committee? He wanted to be consistent in approach as well as methodology.

Mr Tshwaku asked about the TPM: how did Facebook deal with those matters such as copyright? Will the TPM clause offer more protection to the originators than to the multi-national record companies? Would they be stopped from stealing rights? What about those whose rights had been taken by the record companies previously? Should they not expropriate the copyrights previously taken by the international companies? How was the Committee raising the non-constitutionality raised by the President?

Adv van der Merwe referred to Mr Macpherson’s comment and said that was where the document with the table would be useful in discussing the questions that he had as it set out all the amendments since the remittance of the Bills. That document would also provide some answers to Mr Mbuyane’s questions.

Adv van der Merwe stated that she would not go through the ‘table document’ but she went through her presentation again stressing the recommendations made in the presentation. She said that, although the Bill was trying to give a fair deal to creators and copyright owners, creating a strict balance played a role in constructing the Bill and that was where the difficulties lay.

Adv van der Merwe informed Mr Mbuyane that at a previous meeting, it was recommended that “wire” be retained but that “lawfully acquired” be removed. In the majority of cases, authors’ rights were retained and it was only in the case of material for educational or academic purposes that practicability could be considered.
The position was that the moral rights of authors should always be protected, but it was recognised that it might not always be possible.

Adv van der Merwe stated that in respect of constitutionality, she had said that she would raise constitutional concerns during discussions on the Amendments, which she had done, e.g. in the discussion on the strict liability of offences, she had advised that it was unlikely to be constitutional. None of the recommendations were unconstitutional, nor required House permission or further advertisement in her legal opinion.

Regarding the President’s reservations, Parliament’s processing of a section 79 Bill was governed by Joint Rule 203 which recognised two types of amendments that could be made in respect of the President’s reservations:  substantive and procedural. Substantive amendments were limited to clauses noted by the President. Procedural concerns related to potential issues such as there was not a quorum in the House when the Bill had been passed or that there was insufficient public participation or, or tagging was incorrect.
The referrals before the Committee were both substantive and procedural. An example of substantive clauses was the retrospective clauses. She explained to Mr Tshwaku that where an author was not the copyright owner, even though there was a profit still to be made, the Bill had wanted to allow compensation as some authors had received only a pittance when handing over copyright. However, the President had said that it was not constitutional because the law was too vague about the process of doing that fairly: the process needed more consideration. The Bill had suggested that the Minister of Trade, Industry and Competition would decide how that process would happen, but it was not constitutional for a Minister to make those decisions because plenary matters could not be delegated to a Minister. Her proposal was although the concept of protecting authors had merit and would pass constitutional muster, there was work to be done in respect of the processes and so she had advised the Committee to delete those clauses/sections and bring them back later. That had been a substantive issue and therefore consideration was limited to the three clauses that dealt with that matter.

The President has also said that there was not sufficient public consultation on ‘fair use” and all the clauses that spoke to fair use and the exceptions proposed had to be considered. Those were the clauses that she had recommended be advertised. Adv van der Merwe had warned the Committee that some comments could not be considered as they did not touch on fair use.

Another procedural issue raised by the President was the compliance of the Bill with international treaties and in that case, all clauses relating to treaties had to be considered and tested against the treaties.

Adv van der Merwe pointed out that a number of clauses were not open for discussion.

Regarding the question on Facebook and expropriation of copyright from owners, she said that Facebook was not about TPM but more about the use of a photograph or song taken or sung by someone else. She was not fully au fair with the rules of Facebook but she knew that it was trying to block content where one was clearly not the owner and did not have permission to post the material. She could not say if that was sufficient but it would require an in-depth legal opinion, or the question would have to be posed in relation to specific Facebook posts.

She explained that copyright was, in fact, intellectual property (IP) and fell under section 25 of the Constitution, and was protected from arbitrary deprivation. She could not give an opinion but she could explain that a person could be deprived of property if it was in terms of a General Law of Application. The law did not allow for arbitrary deprivation. If property was expropriated, it had to be for a public purpose or in the public interest. There was also the matter of compensation, although it could be nil compensation. It was possible to expropriate, but it would have to comply with the criteria in section 25 that she had mentioned.

Adv van der Merwe said that there had been a question about the constitutionality of the Bill. What the Committee had to keep in mind was that section 25 did not only refer to the rights to IP. The section also referred to the rights to equality, human dignity, freedom of expression and other rights. The Constitutional Court had considered the rights of persons with disabilities, especially in terms of sight, and with making books available for those persons. The Bill was attempting to balance all the other rights with IP rights. It was a balancing act as all of the other rights also had to be taken into consideration, as well as IP, and it was not easy.

Mr F Mulder (FF+) had noted Adv van der Merwe’s comments on fair use and various other aspects of the Bill and asked if there were, stakeholders in the SA industry that had made requests to the Committee, suggesting that the flaws in the Bill were so extensive that it should be substantially redrafted. What would the view of the Committee be? He understood that the way forward would be discussed at a later stage but he just wanted to know what Adv van der Merwe’s view was on the matter. He was referring to role players or stakeholders such as Netflix, the South African Institute of Intellectual Property Law, and others that had asked for a SEIAS and a redrafting of the Bill.

Dr Masotja responded to the Facebook issue. Not all content infringed copyright. Some contracts allowed for that content to be on Facebook. There had been issues with conglomerates that dealt with information and so some people viewed Facebook negatively. There were issues about how content was used. Not all content online was unlawful and there were rules in terms of how Facebook applied copyright but Adv van der Merwe was correct in that the Bill was trying to address the rights of owners. The Bill still contained provisions that talked about how contracts should be addressed. She believed that much of the issues about rights holders' rights had to do with contractual issues. However, amendments did not touch on the issues of contracts. When the Amendment Bill was passed, issues of contracting would be strengthened and the bargaining of rights would be strengthened. The role of the Copyright Tribunal would be a mechanism for dealing with some of the unfair and complex rights issues. In totality, the Bill was strong in terms of protective measures. The use of licencing also played a part, so even though the retrospective clause had been removed, the Bill still contained protection measures.

The dtic believed that all the issues that had been debated by the Committee were within the allowance of the President’s concerns. Where the debate appeared to be moving outside of the scope, such as with the Marrakesh Treaty, the alignment with treaties was a presidential concern. The public had also raised issues in the call for public input, as stipulated by the President, and those concerns raised by the public were, therefore, also valid and incorporated if the points raised strengthened the Bill.  The point about including an “authorised entity” came from public input. There was now a definition of ‘authorised entity” and of “Technological Protection Measures” and they were actually treaty issues. Creating alignment was a requirement of drafting practice. Regarding the suggestion to use the phrase “unlawfully acquired” had come from the public response following the first advertisement, as was the reference to ephemeral rights when looking at alignment with treaties.

Dr Masotja added that when the Minister had brought in a group of experts to look at constitutionality issues, the group had agreed with Adv van der Merwe that there were no constitutional concerns in the rest of the Bill and that the issues that were being addressed, were in line with the President’s remittance.

There was a question about the TPM and the accessories. The question was whether it would offer consumer protection and protection for the companies that were responsible for the accessories. The Bill spoke to consumer protection and consumer freedom because if only one company could develop the accessories, there could be issues of dominance in development and in the marketplace and issues of access for consumers. By addressing the definitions of TPM and TPMCD, the Bill provided fairness and balance and there would be a fair market environment. The Bill had to ensure a level playing field to a create free and fair market environment. The definition also ensured that there would not be unintended consequences. It was very important to consider dominance and constraint as the Bill must be viewed in light of consumer law and competition law.

Dr Masotja added that there was much more protection for authors compared to the current legislation that was not digitally inclined. The Amendment Bill provided a much better situation. SA would be protecting digital rights. One had to remember that digital rights were new terrain and so there would be learning as they went along. Reducing the constraints by adding products and services would broaden rights but still protect authors.

She noted that Mr Mbuyane had recommended adding “performed” but those issues had been taken into consideration and had been covered by the amendment. The moral rights of authors were always very important.

Adv van der Merwe informed Mr Mulder that Joint Rule 203 dealt with the process in the Assembly regarding remitted Bills. Sub-rule (3) indicates the three things that a Committee might do if it agreed with the recommendations (which that Committee had said it did): a) recommend in its report how any procedural defect can be corrected, if the reservations relate to a procedural matter; (The Committee had recommended calling for public comment.)
 (b) present with its report an amended Bill correcting any constitutional defect in the substance of the Bill, if the reservations relate to the substance; or
 (c) recommend that the Assembly rescind its decision to pass the Bill and reject the Bill, if it regards the Bill as being procedurally or substantively so defective that it cannot be corrected.

A redraft would affect the whole Bill and that option was not open to the Committee at that time. Adv van der Merwe stated that there were 38 clauses in the Bill and the Committee was dealing with nine clauses. That meant that 29 clauses were not open for discussion or amendment. In addition, there were some technical amendments but those were not open clauses. One clause that was not open for comments actually inserted two schedules into the Bill, so a large majority of the Bill was not open to the Committee. Redrafting was not a possibility, but if the Committee felt that it could not address the procedural requirements, it had to advise the rejection of the whole Bill. However, the Committee had already sent a report to House to say that it was procedurally possible to correct the Bill.

She repeated that if all 38 clauses were so substantively defective that the Bill could not be processed, the Committee could reject the Bill. In that case, the Committee would have to reject all nine open clauses but while a few had been rejected, The Committee’s recommendation was to retain or amend most of them.

Mr Macpherson asked if the Committee was at a point where parties should put their positions on the table.

The Chairperson indicated that the Committee was not at that point but they could discuss matters that were discussed the previous week.

Mr Macpherson said that he had put the position of the DA on the table but he would wait for the following day.

Mr Malematja said that the manner in which the Committee had dealt with TPM, especially the freedom of the third party, was understandable in the explanation. He was pleased that the third party could develop accessories and that was good for the market. One could not understand … be jealous of the good work done … (connectivity breaking up). He was very happy with the explanation.

Mr Tshwaku said that there was some clarification on some issues. He stated that the explanation of the alienation of the material of the originators could have been done before he had joined the Committee. It was a huge concern if that was removed from the Bill. There were creators and originators in SA who had been exploited and who had been locked into complicated contracts. It was unfortunate that those clauses had been removed from the Bill because it would have prevented a situation where artists in SA were dying poor. He hoped to persuade the Committee to consider bringing those clauses back as that was what the artists were crying for.

He noted the Facebook explanation but the Committee could deliberate that further.  He raised the point that there seemed to be a situation where the Regulator was too lenient to one of the collection societies, SA Musicians Support Association (SAMSA), and overly strict with the other, Independent Music Performance Rights Association (IMPRA).  Would the Bill be able to open up the industry to allow other collection societies and would the Bill ensure that Regulator was able to take care of the fairness of the operations of the two current societies?

Mr Tshwaku suggested that the Advocate could be asked to explain the 28 clauses that the Committee was not discussing as he did not understand them, although his only real concern was giving redress where the copyright had been taken from artists.

Adv van der Merwe did not see a legal question in Mr Macpherson’s question. She suggested that the dtic address the question.

Ms Masotja said Mr Macpherson was asking about procedure and that was for the Committee to determine. She was not going to talk about the merits of the two collection societies as certain matters were subject to litigation. She informed Mr Tshwaku that the previous Committee had spent a lot of time on societies and that the Bill opened up the space to allow freedom of choice as well as both registration and accreditation of societies. It also prescribed issues such as management and how each society had to interact with its members. The debates had discussed the challenges with societies and how royalties were paid. The current Regulator was doing the best possible with the current Act but the Amendments would strengthen the hand of the Regulator. She added that if Members had specific issues of concern, they could be provided directly to the Regulator to attend to, but she warned Members that the Regulator worked from actual documents and facts sometimes differed from stories in the media as the media did not always have all the information at hand and so there might be different views of the situation.

The Chairperson asked that issues discussed that day be put in the ‘table document’ and then the Committee could go through the amendments clause by clause, beginning the following day.

Deliberations on the Chairperson of the National Lottery Commission (NLC)
The Chairperson said that on 22 March 2022, the National Assembly had revived the report on the matter of the NLC chairperson and had referred the report back to the Committee for consideration and report. The Committee was required to report on the process it would follow on the matter going forward.

The Committee Secretary took the Committee through the process from the start. The Committee had resolved to report to the National Assembly on the process that it had undertaken to ensure an open and transparent process as required by section 3 (3) of the Lotteries Act. The report was on the recommendations for the position of Chairperson of the NLC and had been published in the ATC (Announcements, Tabling and Committee Reports) of Parliament on 17 March 2021. However, in terms of National Assembly Rule 351(i), the report lapsed on the last day of the sitting of the year. In addition to the report lapsing, the Committee had also received information that, subsequent to recommendations being made, one of the candidates recommended for the Minister’s consideration, Dr M A Madzivhandila, had passed away.

Regarding the process going forward, the Committee could add an additional name and submit the revived report or, having considered the developments since the initial report was published, could resolve to inform the National Assembly of its intention to initiate a new process and its resolve to inform the Minister that it would be initiating a new process in terms of section 3 (3) of the Lotteries Act.

Adv Thiloshini Gangen, Parliamentary Legal Advisor, OCLS, stated that the Committee had two options. She confirmed that within the terms of the Lotteries Act, shortlisting was the Committee’s domain. The Committee could look at the list in the light of the passing of one of the candidates; alternatively, the Committee could consider starting the process de novo, i.e. afresh. It was within the Committee’s purview and domain to determine how to manage the shortlist.

The Chairperson proposed that the report be taken to the party caucuses and be deliberated in the Committee the following week. Thereafter a report could be prepared for the National Assembly.

The Committee Secretary stated that the item was on the agenda for the following Tuesday.

Mr Mbuyane seconded the proposal of the Chairperson that the parties consult their principles on the matter of the two options.

Mr M Cuthbert (DA) stated that he had intended to ask for a legal opinion on the matter, so he appreciated the information provided by Adv Gangen as it gave guidance and ensured that the Committee was acting within the prescripts of the law. His concern was that the report had been stuck in the House for close to a year and a half. It was unacceptable that it had been allowed to expire and had to be revived. The NLC had been without formal leadership for a long period of time and all Members understood the challenges of the NLC in terms of corruption and maladministration. The NLC was rudderless and the matter should be resolved as soon as possible.

He asked that the Chairperson writes to the Presiding Officer in the National Assembly to expedite the process. The Committee could not allow for the report to expire or to lapse again. The Committee owed it to South Africans to make sure that new leadership was installed at the entity so that it could begin the turnaround process. The NLC had been hanging in limbo for the past year. He asked if the Chairperson as the presiding officer of that Committee knew why it had taken so long for the matter to be discussed in the House. He had imagined that it was a mere formality for the House to adopt the report and to send it on to the Minister for him to make his appointment. He asked for clarity from the Chairperson or the Committee Secretary regarding the unacceptable delay.

Mr Burns-Ncamashe noted that the proposal was to refer the report to party caucuses and he urged Members not to fall into the temptation of discussing the merits or demerits of what had happened or to seek to open a debate around that. It was a matter of record that the matter had been put before Parliament and only after the parties came back to the discussion the following week, could those issues be discussed. He urged that there not be a discussion at that time.

Mr Cuthbert said Mr Burns-Ncamashe should not talk to something that he did not know anything about because he was talking nonsense as he was not involved in the process. He had selective amnesia because South Africans had been waiting a long time for the matter to be concluded.

Mr Mbuyane raised a point of order because Mr Cuthbert was taking the matter out of hand. Even if Mr Burns-Ncamashe had not been part of the Committee, he was not talking “nonsense” and Mr Cuthbert should withdraw his statement.

The Chairperson asked that Mr Cuthbert withdraw his statement as factually he was incorrect as Mr Burns-Ncamashe had been a Member of the Committee at the time of the process.

Mr Cuthbert did not agree but he withdrew so that the meeting could proceed.

Mr Burns-Ncamashe said he had been part of the interview process so he knew exactly what had happened. He understood the trauma of Mr Cuthbert but he should not become hysterical every time he spoke. Mr Cuthbert should hold his horses as he, Mr Burns-Ncamashe, was convinced of the facts.

This resulted in some banter between Members.

Closing remarks
The Chairperson stated that the NLC matter would be discussed the following week. She stated that the deliberations that day had been very fruitful.

The Committee Secretary informed Members that the next meeting would be the following day and Adv van der Merwe would lead the Committee through the amendments to the Copyright Amendment Bill. The Committee had been scheduled to consider the Oversight Report but that was not yet ready for presentation to Members.

The meeting was adjourned.


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