Agricultural Product Standards Amendment Bill: response to public submissions & motion of desirability
Agriculture, Land Reform and Rural Development
08 November 2022
Chairperson: Nkosi Z Mandela (ANC)
The Committee convened in a virtual meeting to hear the detailed responses by the Department of Agriculture, Land Reform and Rural Development (DALRRD) on the public comments on the Agricultural Product Standards Amendment Bill. A few of the comments were accepted or noted. The majority were not accepted with reasons given. It stated that some matters may be addressed by the Regulations after the Bill has been passed.
The Committee expressed its satisfaction with the responses to the public comments by the Department but asked it to engage the stakeholders further on the management control system as well as the definition of assignee as these were raised many times by industry stakeholders.
Some Committee Members questioned why some stakeholder concerns would be dealt with in the regulations rather than the Bill as Parliament would have no say over the regulations. A Member stated that a Bill should not be misunderstood and the Department had not addressing the request for clarity and definitions.
The Committee adopted the motion of desirability on the Bill after some discussion on when this should take place according to the National Assembly Rules. It will begin clause by clause deliberation on 15 November 2022.
The Chairperson welcomed the Department of Agriculture, Land Reform and Rural Development (DALRRD) to the meeting.
He noted that on 8 November 1952, 13 people were killed and 78 others wounded in what became known as the Mayibuye Uprising. The Mayibuye Uprising was a sequence of protests and demonstrations led by the African National Congress (ANC), South African Indian Congress (SAIC) and African People’s Organisation (APO) that took place in No 2 Location in Galeshwe, Kimberley. The uprising came in reaction to some laws put in place by the then apartheid regime that were deemed unjust and inhumane by numerous Members of the community and thus as part of their defiance campaign in Kimberley, Dr Arthur Letele, who was the ANC branch chairperson of the No 2 Location organized a group of volunteers to defy the apartheid laws, including:
- Native Labour Regulation Act of 1911, which resulted in the movement and renumeration control of the African that essentially established migrant labor and an average standard wage.
- 1930 Native Land Act, which was passed to allocate only about 7% of arable land to Africans and leave the more fertile land for whites. These laws incorporated territorial segregation into legislation for the first time since the union government of South Africa in 1910.
- Population Registration Act of 1950 which required each South African inhabitant to be classified and registered in accordance with their racial characteristics as part of the apartheid system.
- Group Areas Act of 1950, which assigned racial groups into different residential and business sections in white dominated urban areas.
- Pass Laws Act of 1952, which stipulated that all people of color above the age of 16 should always carry a passbook when outside their designated homelands.
The Chairperson raised this in the context of the public hearings and the lawmaking process engaged in by the Committee. “We must never take for granted that immense sacrifices were made so that we today can have a just and human rights-based system as enshrined in our globally celebrated Constitution of the Republic of South Africa and our Bill of Rights.
He urged Members to remember that it was ordinary people from various walks of life who took on the task of active citizenry by protesting unjust laws. Therefore in deliberations in public hearings and other forums of the people, generations of locations, villages, farm workers, labourers and others rose in protest then and even today they hold that right of protest as an important instrument of democratization – this must be celebrated.
He urged Members to be humble enough to acknowledge that not all public engagements interactions and other manifestations of active citizenry were going to be palatable or in agreement with what they as lawmakers envisaged. In such scenarios, Members ought to remember and remain true to the principle that it must always be the will of the people that reigns supreme. “Protests are about defiance, lobbying and making the voices of a segment of society heard. This is a fundamental right that we must protect with our lives".
“When protest is muffled and suppressed, our people lose their voice and social decay will set in. We must therefore remain vigilant and we pray for the souls of those who died in the Mayibuye Uprising and all others who paid the ultimate price on the long walk to freedom for us to sit here today”. He urged Members to proceed with the today's meeting in gratitude and conscious of the road ahead which was still long. They dare not to linger too long and dare not to fail.
Mr N Masipa (DA) was concerned that adoption of the motion of desirability for the Bill was included in the agenda of the meeting. He felt this could not be done without the Committee having engaged on the submissions by stakeholders. It was important for the Committee to follow the process stipulated and he quoted Rule 286(6)(a) of the National Assembly Rules:
“In the process of inquiring into a Bill, the committee must, where applicable, as far as possible apply the following separate formal stages:
(a) Informal discussion on the principles and subject of the Bill, including —
(i) a briefing by the department concerned and, in the case of a member’s Bill, by the member concerned, and
(ii) consideration of public comments that have been received;
(b) adoption of a motion of desirability, relating to whether the principles of the Bill and the need for the Bill are accepted;
(c) invitation for further public comment and submissions on the substance of the Bill, followed by the hearing and examination of such or other oral submissions if deemed necessary;
(d) deliberation by members, taking into consideration proposed amendments and comments and proposals received and evidence presented;
(e) formal consideration of the Bill, clause by clause, including amendments as formally proposed; (f) consideration and adoption of the committee’s report and adoption of the final version of the Bill as it is to be presented to the Assembly.
The rule stated that in the process of enquiry as far as possible apply the following separate formal stages. He was concerned that the Committee was doing the deliberation with the Department, but was not affording itself enough time to engage on the matters raised by those that made submissions and it was short-circuiting the process. He appealed that the Committee allow itself enough time to deliberate on the stakeholder inputs before adoption of the motion of desirability.
The Chairperson said stakeholders were given an opportunity to make their oral and written submission and they did. The Committee also had an opportunity to engage the stakeholders by raising questions of clarity and comments which was a fruitful engagement with the stakeholders. This meeting was to afford the Department a chance to respond to the stakeholder submissions and the Committee would also engage with the Department on this. The Parliamentary Legal Advisors were present in the meeting and their input would be requested where necessary. The question of the motion of desirability would help the Committee know what steps it will need to follow in its following meetings on the Bill.
Mr Masipa asked if the Committee was changing the Rules by adopting the motion of desirability without having engaged on the public comments.
The Chairperson asked the Committee Secretary to assist Mr Masipa.
Ms Albertina Kakaza, Committee Secretary, said the Committee had already engaged with the stakeholders and the following step was to engage with the Department, which was the purpose of the meeting, so the adoption of the motion of desirability was the next logical step. She referred Mr Masipa to Rule 286(4)(i) of the Rules:
“after due deliberation, must consider a motion of desirability on the subject matter of the Bill and, if rejected, must immediately table the Bill and its report on the Bill”.
The Chairperson reassured Members that the Committee was following the correct process and urged Members to feel free to engage with the Department as they did with the stakeholders, and after that process, the motion of desirability would be considered.
DALRRD response to public comments on Agricultural Product Standards Amendment Bill
Mr Mooketsa Ramasodi, Director General: DALRRD introduced the Department delegation who would be presenting the responses to the submissions. The Department had considered all the comments and compiled a presentation that would respond to all the issues, ranging from the protection of interests to ensuring that the cost of recovery would not be a hindrance to the system. Pertinent matters were raised by stakeholders on the definition of ‘assignee’ as well as the inclusion of organic in the standards, which was a longstanding issue between the Department and stakeholders. The Department response would address those issues and more, including comments from Parliamentary Legal Services.
Mr Dipepeneneng Serage, Acting Deputy Director-General: Agricultural Production Biodiversity and Disaster Management, DALRRD presented the Department’s response:
- On the request to define ‘interest and ‘indirect’ in the definition of an assignee, the Department said there was no need to define both “interest” and “indirect” because that was already expressly prohibited in section 33 of the Constitution as supported by the Promotion of Administrative Justice Act (PAJA). By further defining the concepts, DALRRD would run the risk of attempting to be exhaustive which was not possible.
- On the request to clarify the span of control and the applicable industries governed by the management control system, the Department said the management control system addressed itself to the manner of production and claims associated thereto at the point of sale. The definition was applicable to regulated products which were either imported, exported, or produced in South Africa. In other words, claims of production could only be claimed if such claims followed prescribed substantiation in that respect.
- On clarification of the inclusion of audit in the Amendment Bill, audit pertained to the management control system. Management control systems would have to be audited to ensure they indeed were following correct production methods according to the prescribed specifications and claims.
Mr Serage went through the Department’s response to stakeholder’s proposed amendments to specific clauses in the Amendment Bill, as well as general comments (see document).
Mr Ramasodi said risk-based sampling was a default setting on current legislative arrangements because even if random sampling were conducted, the theoretical background would be based on the opinion that there was a risk within the sample chosen. On the question of engagements on the legislation, the Department was only limiting itself to engagements with the Portfolio Committee and the comments made by the industry stakeholders.
Ms M Tlhape (ANC) said the stakeholders were not against the Amendment Bill and appreciated the depth in which the Department dealt with the stakeholder comments. She was comfortable with the DALRRD responses as it allowed Members validation for the need for the adoption of the motion of desirability. Looking at the engagement with stakeholders and the response by DALRRD, the pertinent issues included quality, management control system and the possibility for the expansion of agricultural products.
She was concerned about what would happen if the agro-processing masterplan was not controlled and quality was not ensured because agricultural enterprises were geared towards agro-processing, which made the Bill important. Agro processing was very broad and would need control. Management measures would need to be put in place for audit and inspections to be possible. There was some consensus between the Department and stakeholders in some respects. There was also an indication that the underlying gaps could be addressed. The Bill was balanced in terms of consumer protection and fair trade.
Ms T Mbabama (DA) felt that the Department had dealt in detail with each concern raised by the stakeholders and she was satisfied with the presentation.
Ms N Mahlo (ANC) was also satisfied with the presentation by the Department.
Mr Masipa was satisfied with the Department engaging with the sector to educate them about the Bill and providing assurance on the concerns raised, especially on the definitions of terms in the Amendment Bill. He asked DALRRD to engage the stakeholders further on the management control system as well as assignee as these were raised many times by industry stakeholders. The Department needed to ensure there was no language complexities in the Bill or regulations.
The management control system was defined as the manner or method of production which may be claimed by using a name, word, or expression. Was this also trying to address organic producers who named their products ‘vegetable burgers’? He asked if the definition went to the extent of consumer protection and asked how the Bill was connected to the Consumer Protection Act (CPA). He asked if the Department received similar comments and concerns during the public consultation on the draft Bill.
Mr N Capa (ANC) was comfortable with the explanations provided by the Department.
Mr M Montwedi (EFF) was concerned about whether the matters deferred to the regulations would include the stakeholder comments. His concern was that regulations did not get tabled in Parliament, so there would little room for the Committee to ensure that these would be covered in the regulations. What would be the problem of including some of these issues in the Bill? What guided the Department on what items should be included in the regulations and not in the Act? He said for the Bill that would be passed to be clear and not ambiguous with the gaps that existed.
Ms T Breedt (FF+) agreed with Mr Montwedi about the issues that would be included in the regulations because she feared that Parliament would have no insight on those regulations. What would be the impact of including those in the actual Act instead of the regulations? All the submissions had concerns with the assignee. Why did the Department not want to add the definition to the Bill to avoid further misunderstanding?
She was also concerned about the number of times the Department said the stakeholders “misunderstood” certain things in its response. This created the impression that the wording of the Bill was not right, as every interested party was ‘misunderstanding’ its contents. A Bill should be clear in its intention and its meaning. Not addressing the requests for clarity and the definitions would not do any justice to the Bill. There was also a lot of confusion between ‘inspection’ and ‘audit’' and what was meant by each. Would it be possible to include a definition or was it already included in the principal Act?
Mr H Kruger (DA) said the challenge for all small businesses in South Africa was the ease of doing business. It was mentioned in the hearings by the stakeholders that red tape in the Bill would make it much more difficult for small businesses to trade. The other concern was that the Socio-Economic Impact Assessment System (SEIAS) was done in 2015. Such an assessment needed to be done again before the finalisation of the Bill, especially the red tape assessment impact on small business and small-scale farmers and on agri-businesses. Where in the Bill did the Department address red tape or where would they reform it?
Mr Masipa said the new Border Management Authority (BMA) was in place and asked the Department if the BMA changes were incorporated in the Bill.
The Chairperson said there was not much to raise since the Department had responded to all the items extensively. The main issue that remained related to having a more harmonised system that would have no duplication which would not only be beyond the scope of the Bill, but rather on the food safety regulatory system in its entirety. Some of the issues could only be dealt with in the way the legislation would be implemented.
What was the average volume of the 190 products handled by the Perishable Products Export Control Board (PPECB)? Could DALRRD provide a breakdown by produce type and by region or province? Could the Department comment on the products and regions that had room for further growth and expansion, especially for new entrant farmers? Lastly, based on the enactment of the Africa Continental Free Trade Area, what was the potential for growth in that market and what were the key enablers required for this?
Mr Billy Makhafola, Director: Food Safety and Quality Assurance, DALRRD, replied that most of the submissions did not necessarily relate to what was contained in the Bill, including the issue of the assignee and its appointment, which were in the principal Act but not in the Amendment Bill. The central issue introduced was the management control system and auditing. The appointment of the assignee was linked to that, as the assignee would be able to undertake auditing of the management control system. All those issues were in the Act and the central focus of the Bill was the management control system and how the claims related to production auditing would be authenticated by the assignee.
The management control system was not related to the issue of organic farmers and vegetable burgers because burgers were a class of products and not necessarily methods of production. The management control system pertained to methods of production, whether organic, free range, etc. There was indeed an overlap with the Consumer Protection Act (CPA) and that had to be the case because the legitimate government purpose of the Act was to ensure that there was fair trade among traders, meaning the minimum standards of a specific product needed to be complied with by all businesses selling that product. That standard would also in turn provide protection to consumers by ensuring the product they bought was compliant with the standards and regulations.
There were different departments earmarked for certain functions that would fall under the BMA and the Executive Officer would be responsible for the inspections that would be happening at the borders – and that would not be the responsibility of the assignees. This Act would not necessarily be impacted by the BMA, as the Act would be enforced as it normally had been enforced and the only change would probably be the umbrella organisation.
On what informed the regulations, all legislation normally stated the prescribed actions and how to implement those was contained in the regulations. The management control system referred to the prescribed manner of production and the regulations would then explain how that would be implemented. All regulations set out time limits for consultations and what could be done to ensure that the regulations do not offend the Constitution. He reassured Members that none of the published or gazetted regulations would go beyond the scope of the Act or not be in line with the Constitution. In essence, the Act informed the regulations.
On the differentiation between ‘auditing’ and ‘inspection’, the Act set out in section 3 the manner and circumstances under which inspections ought to be carried out, so it did not make sense to redefine the word because it could have potentially countered the already existing definition that was explained in detail in the Act. ‘Auditing’ was explained as pertaining to the management control system because it needed to be specific to the processes of the management system, which had different facets.
Ms Tshepo Mahlaela, DALRRD Legislation Specialist, replied that they had agreed with Parliamentary Legal Services to meet up and clean up the Bill on the language complexities and uncertainties that came up. The Department had also made several concessions on clauses that needed to be fixed and words that need to be removed to ensure that the language would not be open to interpretation and cause any confusion.
Mr Serage reiterated that DALRRD did not expect any challenges about the confines and scope of the Amendment Bill and the principal Act as there would be no conflicts with the current arrangement. The Department was participating in the BMA process and was drafting service level agreement with it. He reassured Members that the Department would engage all the role players and stakeholders who made comments on how their comments would be captured in the final text when the process was finished.
Mr Ramasodi said he did not see the Act as excessive bureaucracy related to compliance. It needed to be looked at from two sides, the cost of compliance and the cost of non-compliance. Any reference to the cost of compliance by the Department must look at the opportunity costs that lie within the credibility of its system and the cost to consumers. Any level of non-compliance to quality standards would imply that consumers were not receiving what they were paying for. The stage of development when it comes to a regulatory system in a country was also important and the stage of the growth of the country. Government needed to have sole responsibility for minimum regulatory standards because if the country would go for self-regulation at this stage, it would be doing a disservice to its own regulatory system.
He agreed that the country needed to have a harmonised system and there were deliberations around the food control system like the Border Management Authority (BMA) where there could be a Food Safety Authority or Food Controls Authority to ensure a harmonised food safety regulatory system. When the time was right, the engagements would realise the implementation of those systems.
The PPECB had a good system in its different regions and the Department would have to request information on the products from them. Such products would find room for growth within the agriculture and agro-processing masterplan, the sugar masterplan, and the poultry masterplan. On the African Continental Free Trade Area (AfCFTA), there was potential for growth, but because technical barriers to trade (TBT) and sanitary and phytosanitary measures (SPS) were core to the engagements in the Africa Continental Free Trade Area, there were different annexes in the agreement that dealt with matters having an impact on important areas such as quality issues. The groundwork on the frameworks in all those areas had been done in line with the AfCFTA agreement and such markets would be accessible.
He thanked the Committee for the fruitful engagement and said if there were any outstanding matters they had missed in the meeting, they would respond in writing.
The Chairperson thanked the Department for their presentation and responses to questions and comments. The Committee was empowered by the Department’s approach to the Bill and were happy to have been taken into confidence on the matters raised.
Adoption of the motion of desirability
The Chairperson read the motion of desirability .
Ms Mahlo moved for the adoption of the motion of desirability and was seconded by Mr Capa.
The Chairperson said the Committee would proceed with its deliberations on the Bill as required of them. The Committee would invite Parliamentary Legal Services and the State Law Advisor to deal with the Bill sentence by sentence. The Committee would await notice of its 15 November 2022 meeting to deliberate on the Bill.
He thanked Members, Department, Committee Support Staff, the media, as well as guests who were part of the meeting and adjourned the meeting.
Mandela, Nkosi ZM
Breedt, Ms T
Capa, Mr N
Cebekhulu, Inkosi RN
Kruger, Mr HC
Mahlo, Ms NP
Masipa, Mr NP
Mbabama, Ms TM
Montwedi, Mr Mk
Tlhape, Ms ME
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