Copyright & Performers’ Protection Amendment Bills (proposed E-list)

NCOP Trade & Industry, Economic Development, Small Business, Tourism, Employment & Labour

01 August 2023
Chairperson: Mr M Rayi (ANC, Eastern Cape)
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Meeting Summary


The NCOP Select Committee on Trade and Industry, Economic Development, Small Business Development, Tourism, Employment and Labour met on a virtual platform to consider the E-Lists of the Performers’ Protection [B24D-2016] (s76) and Copyright [B13D-2017] (s76) Amendment Bills.

The Committee began by discussing a point raised by a Member on the Constitutional Court judgement in the case of South African Iron and Steel Institute and Others v Speaker of the National Assembly and Others. It pertained specifically to a case where Parliament had allowed insufficient public consultation on Amendments to a Bill before processing the legislation. The Legal Advisor pointed out that the matter of Mohali v Mohali and Others similarly dealt with the issue of public participation in the legislative process but neither case changed the Constitution or the law and she was adamant that the Performers’ Protection and the Copyright Amendment Bills had enjoyed more than adequate public participation and that the point had been reached where Parliament could get on with its work and process the Bills.

The Committee began by adopting an Amendment to the Long Title of the Performers’ Protection Amendment Act to include the change made in two clauses to indicate that contracts should contain ‘standard elements’ and not ‘compulsory and standard contractual terms’. The Committee had overlooked the need to vote on the Long Title. The Legal Advisor briefed the Committee on the E-list on the Copyright Amendment Bill [B13D-2017] and the E-list on the Performers’ Protection Amendment Bill [24D – 2016]. Both E-lists were adopted by the Committee following a vote in which six provinces voted in favour of adoption. Three provinces abstained from voting on the grounds that the legislation was flawed. The E-lists were to be sent to provinces; the Committee would consider the final voting mandates on the Bills on 5 September 2023.

The Committee Third Term Programme, the Committee Strategic Plan and the Study Tour Report to Germany were all adopted by the Committee.

Meeting report

Opening Remarks

The Chairperson opened the meeting with a consideration of the agenda and then requested Mr Brauteseth to raise his concerns.

Mr T Brauteseth (DA, KZN) said that since the Committee’s last engagement, he had become aware of a Constitutional Court decision. He would share the full judgement on the Select Committee social media group: South African Iron and Steel Institute and Others v Speaker of the National Assembly and Others (CCT 240/22) [2023] ZACC 18 (26 June 2023). It pertained specifically to what the Committee was dealing with. The basic background to the judgments was that at the beginning of the Sixth Parliament, there was an adoption of a Bill called the NEMA Bill which went through various iterations from Cabinet to the Portfolio Committee which had made certain amendments that were put out for public participation and eventually was passed by the (NA) National Assembly and then referred to the NCOP (National Council of Provinces). It went through public participation as the Committee had done with the two current Bills and then after the negotiating mandates were discussed, various changes were made, specifically to one particular word: “waste”. The relevant committee considered the E-list and adopted the changes that came out of the negotiating mandates, and then referred the Bill back to the NA, noting that there were several amendments specifically on the word “waste”. The NA did not do any further public participation, neither did the NCOP and so the court found that after the NCOP had discussed the negotiating mandates and had decided to adopt the concessions (for want of a better word) made by the Department in response to the public input, that the Bill should have gone out, again, for public participation because the Bill was essentially different from the Bill that had gone out in the first round of public participation.

Mr Brauteseth was concerned that the current Bills had been changed in certain places where the Department, agreeing with the negotiating mandates, had introduced certain Amendments. If the Committee did not consider the issue of further public participation, certain parties might have the opportunity to challenge the constitutionality of the Bill simply because the Committee was adopting a different Bill to the one which was initially presented to the public. Surely the Committee had to open it up for another period of public participation?

Ms H Boshoff (DA, Mpumalanga) supported Mr Brauteseth.

Mr M Mmoiemang (ANC, Northern Cape) stated, with regard to the process unfolding, that the Committee took public consultation very seriously. The judgement had to be considered but he believed that Parliament and its legal team were on top of the issues and whenever there was any judgement concerning legislation passed, Parliament and its legal advisors examined the court judgements. There was no better teacher than a court judgement. He believed that, at some point, the parliamentary legal team would process the judgement, making it much easier for both Houses to troubleshoot the ideas behind the judgment.

The Chairperson explained that the reason the Committee had representatives from the Office of Constitutional and Legal Services (OCLS) in the meetings when dealing with legislation was to provide guidance on the legislative process. He asked Advocate van der Merwe if she would like to comment.

Adv Charmaine van der Merwe, Senior Legal Advisor, OCLS, stated that she was aware of the SA Steel matter. Her Office was also aware of a more recent matter where the court discussed public participation in the matter of Mohali v Mohali and Others (39683/2019) [2023] ZAGPJHC 44 (24 January 2023). Public participation had been in the spotlight but Members would recall when going through the proposals from the provinces, she had pointed out that if a specific Amendment was accepted, it would have to be advertised. So she could assure the Committee that whenever an Amendment was considered, she had kept her eye on it and would have advised the Committee if it required further public participation.

She added that the law had not changed. The SA Steel judgement did not change how the law worked on public participation, nor had the Mohali judgement.  Parliament started from the Constitution, in which sections 52 and 79 required both Houses to involve the public in its legislative and other processes. So in all such matters, the public had to be involved. And the court had provided a few more criteria that, to some extent, expanded on the meaning of those sections of the Constitution. And what the courts had found in all the cases, was that Parliament did have discretion on when and what and how it did public participation. The courts looked at all the factors that Parliament has taken into account when it conducted public participation, specifically in respect of the NCOP and the provincial legislatures working together. The courts had found that the NCOP could not simply assume participation in the provinces; the NCOP had to make sure of that participation.

Adv van der Merwe stated that what had happened was that Select Committees in the NCOP had started undertaking their own participation on which they reported to the provinces. That could be a bit challenging because it made the mandates very difficult to interpret, but the Committees also received feedback from the provinces on their consultations. The Select Committee had fully complied with that. The Committee needed to consider new and material Amendments. It was accepted that, at some point, a Committee needed to stop advertising and proceed with legislation. So it was not a requirement that any change made should go back to the public. The criteria are whether they were material amendments to something that the public had not been asked to comment on at any stage. So for instance, there were proposals for several new inclusions in the Bill, any of which the Committee would have advertised, even though a member of the public had proposed the Amendment because the rest of the public had not had an opportunity to comment. But no such Amendments had been made to the list before the Committee.  In the National Assembly, at the outset of the Bills, there had been extensive public participation because there was almost a redrafting of the Bills.  

Adv van der Merwe stressed that the redraft was published for public comment and she assured the Committee that there was nothing to be concerned about. The public had been fully consulted on all changes made.  She reiterated that she would have advised the Committee had there been a need for further advertising.

Consideration of Minutes

The minutes of 30 November 2022, 21 February, 2 March, 14 March, 25 April, 9 May, 23 May, 30 May and 14 June 2023, were adopted by the Committee with no amendments, objections or abstentions.

The minutes of 18 April 2023 were amended to include the attendance of Mr M Dangor (ANC, Gauteng), following which the minutes were adopted by the Committee.

Mr J Londt (DA, Western Cape) raised concerns about flaws in the legislation. He had left his concerns to that point because it was the first set of minutes in which the Members of the Select Committee had the opportunity to receive input from the different provinces. At that meeting, he had made the comment that a province like Gauteng had presented so many suggestions for Amendments, it seemed it did not support the Bills. Unfortunately, throughout the process, members of the ANC had used their numbers to steamroll him and all inputs from stakeholders that they did not agree with, and all advice given, even where it was sound, because it would prolong the process. Committee Members had received advice from internal people advising the Committee. That advice was often that a submission was good input, but the Committee should not include it because it would lengthen the process; there could be an amendment the next time the legislation was reviewed.

He asserted that, as he had said at the beginning, it was badly worded legislation. It was not going to have the necessary or intended impact because valid and proper inputs were not considered. Committee Members had shrugged off his concerns as “the democratic process”. One of the critical flaws raised and which the Department had acknowledged was that it had shared the socio-economic impact assessments with only one province, despite numerous requests. Also, the impact assessment assessed the impact on the government and not on the industry. But the ANC would use its numbers to push the Bills through. He wanted to put it on the record that it was bad legislation, badly worded. The Chairperson could note his abstention from the vote on all aspects of the process because of how it had been handled.

Mr Londt requested that the socio-economic impact assessment be shared with all provincial legislators so the legislators could consider the documents before they submitted the final mandate. He had exhausted all the channels to try and make colleagues on the Committee see that it was not in the best interest of the industry.

The Chairperson clarified that the purpose of considering minutes was about adopting a true record of proceedings and should not be seen as an opportunity to open a debate.

The minutes of 13 June and 20 June 2023 were amended by Mr M Mmoiemang (ANC, Northern Cape) to include the amendment made during the meetings to equitable remuneration. The Committee Secretary made a technical amendment to the minutes of 20 June 2023 and both sets of minutes were adopted by the Committee.

Inputs by Parliamentary Legal Advisor on the Long Title

Adv van Der Merwe stated that the change to the Long Title of the Performers’ Protection Amendment Act, based on clauses 3 and 6, had not been voted on. She had neglected to add it to the list of clauses on which Members had to vote.  The concept of the long title was not new. The Long Title presented the content of the Bill itself. She requested Members to consider a change to the Long Title of the Performers’ Protection Amendment Bill so that the words “compulsory and standard contractual terms’, be removed and the phrase “standard elements to be included in agreements” be inserted. It was necessary for consistency purposes as two clauses, 3 and 6, had referred to ‘compulsory and standard contractual terms” but that had been amended to “standard elements”.

Clause 3:

“(3)       The written agreement contemplated in subsection (2)—

  1. must at least contain the [compulsory and] standard [contractual terms] elements, as may be prescribed, to ensure that rights or protection afforded by this Act and the Copyright Act are duly provided for;”

Clause 6:

“(3)       The Minister must make regulations prescribing [compulsory and] standard [contractual terms] elements [to] that must be included in agreements to be entered into in terms of this Act, to ensure that rights or protection afforded by this Act and the Copyright Act are duly provided for, which contractual terms must include—;”

As the change had to be reflected on the F Bill, the matter of the long title had to be addressed before the Committee moved onto the whole of the E-list.

The Amendment to the Long Title of the Performers’ Protection Amendment Act was proposed, seconded and voted on by the Committee:

In favour – Gauteng, Northern Cape, Eastern Cape, Limpopo, North West, Free State

Against – Nil

Abstention – Mpumalanga, KwaZulu-Natal, Western Cape

The Chairperson declared that the Long Title on the Performers’ Protection Amendment Bill [24D – 2016] had been adopted by the Committee.

Mr Brauteseth informed the Chairperson that the DA would be abstaining from all votes on the Bills.

The Chairperson asked that the DA Members raise their hands on the virtual platform for record purposes.

Consideration of E-list on the Negotiating Mandate of the Performers Protection [B24D-2016] (s76) and Copyright [B13D-2017] (s76) Amendment Bills

Adv Shamara Ally, NCOP Procedural Officer, Parliament, explained that the Committee could adopt each E-list as a single item as the votes on individual clauses had been recorded in the minutes.

Adv van der Merwe briefed the Committee on the E-list on the Copyright Amendment Bill. She stated that the E-list followed the normal format on the cover page. The Bill being amended was version 13D. The document belonged to the Select Committee and contained Amendments to the Copyright Amendment Bill as agreed to by the Select Committee on Trade, Industry Economic Development, Small Business Development, Tourism, Employment and Labour in the National Council of Provinces. The Amendment list was called 13D of 2017 and had been allocated an ISBN and Copyright. She highlighted that in clause 1, the change was in respect of the 'authorised entity’ to provide for the BlindSA case. The second Amendment was in respect of omitting the definition of ‘broadcasting’; clause 5 dealt with the addition of equitable remuneration when speaking of royalties and the same in respect of clauses 7 and 9. In clause 15, after the word assignment, it was agreed that the words 'of ownership' should be removed. The whole of clause 22 dealt with the BlindSA Amendment. The Amendments to clause 24 were the same as in respect of clauses 5 and 7 respectively of ‘equitable remuneration’ being added to royalty; the same in clause 26; the same in respect of clause 27. Clause 29 dealt with offences and two sub-paragraphs had been combined, omitting 2 and 3, combining them in a new clause 2. The agreement was to add the words ‘by law’, after the word ‘permitted’ and omit subsection 2 simply because it dealt again with the issue of BlindSA and then subsection 3 became the new subsection 2.  Clause 33 dealt with equitable remuneration; clause 35 dealt with regulations and the issue of the ‘standard elements’ for agreements instead of the ‘contract terms’.

She added that clause 35 addressed royalty resale rights; clause 37 dealt with equitable remuneration. Clause 40 was the actual commencement clause which provided for there not being an unrestricted period during which the Bill could be in effect without it becoming operational. So once the President had assented to the Act, then there was a period of 24 months to make it operational, except for the matters that dealt with BlindSA. The Long Title Amendment in the list simply added equitable remuneration.

The E-list on the Negotiating Mandate of the Copyright Amendment Bill was proposed, seconded and voted on by the Committee:

In favour – Gauteng, Northern Cape, Eastern Cape, Limpopo, North West, Free State

Against – Nil

Abstention – Mpumalanga, KwaZulu-Natal, Western Cape

The Chairperson declared that the E-list on the Copyright Amendment Bill [B13D-2017] had been adopted by the Committee

Adv van der Merwe very briefly presented the E-list on the Performers’ Protection Amendment Bill [24D – 2016]. She said that the briefing would go much faster because she had explained what an E-list looked like. It contained the Select Committee's Amendments to the Performers' Protection Amendment Bill. The Bill being amended was the 24D version. It belonged to that Select Committee and would be called the E-list 24E of 2016. It had been given an ISBN, and the amendments that had been agreed to in clause 1, were the omission in respect of the definition of broadcast and the addition of the definition of ‘performer’ ; both clauses 3 and 6 related to the ‘standard elements’ instead of ‘compulsory contract terms’. And then the Long Title, as already discussed, spoke to clauses 3 and 6 and reflected the changes in the Long Title. That was the E-list for the Performers' Protection Amendment Bill.

The E-list on the Negotiating Mandate of the Performers Protection [B24D-2016] (s76) Amendment Bill was proposed and seconded, and voted on by the Committee:

In favour – Gauteng, Northern Cape, Eastern Cape, Limpopo, North West, Free State

Against – Nil

Abstention – Mpumalanga, KwaZulu-Natal, Western Cape

The Chairperson declared that the E-list on the Performers’ Protection Amendment Bill [24D – 2016] had been adopted by the Committee.

Adv Ally explained that the E-lists would be incorporated in the Bills as F-Bills and adopted by the Committee and then sent to the provinces for their final mandates.

Mr Brauteseth queried whether a report should accompany the Bills to the provinces.

Adv Ally agreed that a report would accompany the F-Bills to the provinces but that would be an internal matter.

The Chairperson asked Ms Solomons whether Ms W Ngwenya, a Member of the National Council of Provinces representing Gauteng, could vote on behalf of Mr Dangor.

Ms Solomons, Committee Secretary, explained that Ms W Ngwenya, although a Member of the NCOP representing Gauteng, could not vote in the Committee as she was neither a full Member nor an Alternate Member of that Committee.

Mr Dangor agreed to delay his departure until all matters that required a vote had been addressed.

Consideration and adoption of Committee Third Term Programme

The Chairperson informed Members that the month of September was very congested. The House Chairpersons of Parliament would be embarking on an International Study Tour in September 2023. That limited the days available for meetings in the month.

5 September - Consideration and adoption of the two Bills currently consideration and adoption of minutes.

26 September – Briefing by the Department of Trade, Industry and Competition on the African Growth and Opportunity Act (AGOA).

A constituency period commenced the following week.

The Committee unanimously adopted the Programme.

Consideration of Committee Strategic Plan

The consideration of the strategic plan was led by Mr Mmoiemang as Acting Chairperson as the Chairperson was not involved in the development of the strategic plan. He noted that the Committee had reached a consensus on the key areas of focus in terms of the strategic plan before the workshop had been abruptly halted, as well as the key performance indicators and activities and legislation that Members would be focusing on as well as the extent to which the Committee involved the public in the legislation to be passed, and the issues of oversight of international agreements. He requested that the Content Advisor to brief the Committee on the strategic plan and the budget.

Mr Ludumo Sishuba, Committee Content Advisor, briefed the Committee on the strategic plan, highlighting key issues, including the addition of the Zondo Report. He had made an addition to the strategic plan, following the unexpected early ending of the workshop - the issue was the responsibility of the Committee to track the implementation of the Zonda Commission Report. That was on page 24 of the document. The Zondo Commission Report was highlighted by the Presiding Officers of Parliament as one that Committees needed to focus on.  The Committee would need to look at convening a meeting to track the implementation of the recommendations of the Zondo Commission. The recommendation was to have meetings with the relevant departments or entities identified as needing to respond to the recommendations of the Zondo Commission on a quarterly basis. He noted that the Committee could work independently, but it might be helpful to work in close collaboration with the relevant Portfolio Committees in the National Assembly to determine how far the entities or the departments were in terms of the implementation of the recommendations. Noting that for most of the second  and third quarter, the Committee had been dealing with legislation, a slight change to some of the targets might be advisable.

On the budget, he explained that Committees planned, but they were not given the budget at the time of planning. The budget came at a later stage. In Parliament, Committees were not given an opportunity to engage in the strategic plan and at the same time align the plans to the budget because they did not have control over the budget; it was simply given to Committees. That was why he had been unable to populate the strategic plan in terms of resources. The Committee could certainly not even try to project a budget for the two outlier years.  

The Strategic Plan for the Committee was adopted by the Committee.

Consideration of Study Tour Report

Dr Anneke Clark, Committee Content Advisor, presented the Study Tour Report on the joint tour by the Committee to Germany in September 2023. The report started with the objectives, the German country profile, the delegation that attended and then the profiles for each entity engaged with, as well as the observations and recommendations.

The first engagement was with the German Cooperative and Raiffeisen Confederation (DGRV) the national apex organisation and top-level auditing confederation of the cooperative sector in Germany. The recommendation was to establish a similar kind of federation or organisation that would then be responsible for cooperatives in South Africa and for a supportive legislative and regulatory framework to be provided. The second recommendation was that during the banking crisis of 2007 and 2008, no banking cooperatives in Germany had to request financial injections commonly known as bailouts as a result of the deposit and protection system through which the risk profile of member banks was continually evaluated and interventions put in place. The Cooperative Banking Development Agency was established in South Africa to regulate, promote and develop cooperative banking and should encourage a similar practice of the deposit protection system in South Africa. The third recommendation was that the Select Committee undertook oversight visits to some of the co-operatives supported by the DGVR in KwaZulu-Natal and the Eastern Cape.

The next engagement was with Germany Trade and Invest. Recommendations were as follows: the Department of Trade, Industry and Competition entity, InvestSA, should be guided by a strategic focus on attracting business opportunities that increased the resilience of local markets by complementing, reinforcing and strengthening local markets and the local value chain. The second recommendation was that the GTI delegation to visit SA in 2024 should be encouraged to extend the visit to include delegation visits to former coal mining areas to identify areas of mutual interest in respect of the economic transformation of such areas, including the possible transition to hydrogen generation and provision. The third recommendation was that the GTI cautioned that in developing countries the Special Economic Zones model had been shown to exacerbate market and socio-economic inequality and the parliamentary data section should be requested to prepare a research paper on international experiences of SEZs in developing countries.

The third engagement was with the City of Hamburg Agency for Geo-Information and Surveying. The recommendation was that the Innovation Centre should be referred to the City of Hamburg Agency for Geo-Information and Surveying information data portal to explore the possibilities of replicating the data portal system in South Africa. The second recommendation was that the Department of Basic Education should ensure that coding was offered as early as primary school level and, especially, girls should be encouraged to learn to code as there was currently a shortage of female coders. The third recommendation, the operation of the online portal, was informed by the German Digital Strategy 2025. Any replication of the data portal in South Africa should demonstrate tangible usefulness and benefits, such as relieving the burden on people or solving concrete problems.

The next engagement was with the City Science Lab. The first recommendation was to explore how to use City Science Lab tools for municipal decision-making. The second recommendation was to explore how the tools might be extended to allow for the verification of a state-owned property register. The second last engagement was with the United Nations Innovation Technology Accelerator for Cities. The recommendation was that the Smart City Playbook and guides on shaping co-creation and collaboration in smart cities should be brought to the attention of the Department of Cooperative Governance and Traditional Affairs for consideration during the review of its South African Smart Cities framework. The second recommendation was that the Minister of Cooperative Governance and Traditional Affairs should arrange a presentation about citizen tools at a MINMEC meeting for consideration on how the tools might be applied in municipal participatory planning processes. The third recommendation was for the Committee to hold follow-up engagements in respect of any research that had identified the regulatory policy or legislative gaps in respect of public transport and public infrastructure.

The last recommendation was that, although relations between executive-level leadership in South Africa and Germany were sound, a space should be created by the House Chairpersons for strengthening the relationship in the form of a German-South African working group. Lastly, the Office of the Coordinator was to be requested to provide a copy of the International Tourism Strategy when an English version of the document became available upon completion of the strategy; at present it was only available in German.

Mr Mmoiemang asked Members for reflections on the recommendations. 

Mr Rayi commented on the recommendations made in the Report. He was happy with the recommendations, particularly on the issue of the cooperatives as per DGRV and also the recommendation about establishing a federation organisation that would then be responsible for cooperatives because, in South Africa, co-operatives were lumped together in a focus on small enterprise development. There was no cooperative agency. It could be a recommendation that in South Africa, one had a separate agency for small enterprise development as well as a cooperative agency. He liked the idea of such a recommendation.   

Mr Mmoiemang was also happy with the role played by the organisation that assisted municipalities. He had wondered earlier whether, instead of having one or two municipalities being involved, like Nelson Mandela and a few other municipalities, perhaps the South African Local Government Association (SALGA) could be engaged. However, he was happy with the recommendation that the Department of Cooperative Governance and Traditional Affairs should be the one engaged. He was worried about the piecemeal approach of municipalities approaching Germany.

The Report was adopted by the Committee.

The process going forward in respect of final mandates

The Chairperson asked Adv Ally to clarify the procedure. A point was raised by Mr Brauteseth concerning the process going forward about in respect of the conferring of final mandates by the provinces as the process was not over. For now, a Select Committee list would be sent to the provinces. He asked whether the report would be sent to the provinces as well. It was not usually the case that the report was sent to the provinces to accompany the list. He wanted to be clear about the procedure.

Adv Ally said that what would go to provinces would be the F version of the Bill and a copy of the minutes of the day's proceedings of the Committee meeting. The report was for the House to consider, not the provinces. The report, together with the F version of the Bill and the final voting mandates, would serve before the House.

The Committee Secretary, Mahdiyah Solomons, stated that, in addition to what Adv Ally had mentioned, the Committee secretariat would be sending all the minutes that dealt with negotiating mandates, from May up until the 20th of June and including that day's meeting, to the provinces along with the E-list and the F version of the Bill. 

The Chairperson said that was the situation, except that they would not send minutes that had not yet been adopted. Reports were sent to the House, not to the provinces.

Closing Remarks

Ms M Moshodi (ANC, Free State) expressed her gratitude to the Chairperson and the Acting Chairperson for leading the Study tour. She had found them particularly supportive: they had shown leadership and had treated Members as if they were their own children.

Mr Mmoiemang reminded Members that the Committee had intended to visit the United Kingdom during the Study Tour of July 2023 but that had been impossible owing to the holiday programme of the UK legislature. He had raised the possibility of visiting the UK in early October but again the UK was in recess at the time and thereafter the legislature did not receive any visitors prior to the “State of the Nation” Address in November. He assumed that the second leg of the tour would have to be set aside.

Mr Mmoiemang declared the meeting closed.

The meeting was adjourned.

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