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AGRICULTURE PORTFOLIO COMMITTEE
29 May 2001
MARKETING OF AGRICULTURAL PRODUCTS AMENDMENT BILL; AGRICULTURAL RESEARCH AMENDMENT BILL: BRIEFING
Chairperson: Advocate S P Holomisa
Documents handed out:
Agricultural Research Amendment Bill [B25-2001]
Marketing of Agricultural Products Amendment Bill [26-2001]
The Ministry and Department presented the Agricultural Research Amendment Bill. It proposes to remove the power given to the relevant parliamentary committees for making recommendations to the Minister on whom to appoint to the council responsible for managing the Agricultural Research Council. The reason for this is that this power is deemed unconstitutional in terms of Section 42 of the Constitution. Instead the Minister will constitute a selection committee.
The Marketing of Agricultural Products Amendment Bill was read through. However members were advised to study it first before discussing it at the next meeting.
Agricultural Research Amendment Bill
Deputy Minister of Agriculture, Mr du Toit, explained that the Bill amends the procedures for the appointment of the council responsible for the management of the Agricultural Research Council (ARC). The current procedure involves the Portfolio Committee on Agriculture together with the corresponding Select Committee making recommendations to the Minister as to which candidate should be appointed to the council. However the appointment of members to the council is an executive decision. The function of the parliamentary committee should be to oversee executive function.
This follows a historical background dating back to the Government of National Unity era and even before then. The problem is that the functions of Parliament both in the National Assembly as well as the NCOP have been circumscribed by section 42 of the Constitution. Section 42 gives an oversight role over executive actions to the Portfolio Committee. If the Portfolio Committee is involved in executive appointments, it is not possible for it to scrutinize and play the role of oversight over its own executive action.
The Deputy Minister illustrated this by asking if the Agricultural Research Council (ARC) decides not to take action in support of research, would it be possible for the Portfolio Committee to stand up and challenge the Minister? He felt they could not because of their involvement in appointing the councillors.
This is "neither in line with the separation of powers of the legislature, the executive and the judiciary envisaged by the Constitution nor with the accountability measures provided for in the Constitution for the various branches of government. This Bill therefore aims to address the appointment procedures of the council to bring it into line with the Constitution."
Mr du Toit noted that the role of Parliament comes into play after the executive has taken a decision, that is, someone has been appointed to the council. Parliament will call the Minister to account if any unqualified person has been appointed.
The State law adviser, Adv R van Zyl, pointed out further amendments to the Agricultural Research Act (No 86 of 1990):
Â· Clause 1 changes Section 9(3)(a)(i) of the Act to provide for notice for nominees to be given in the 'media' rather than 'two national newspapers'. The Department is no longer obliged to advertise in national newspapers when other cheaper and broadly used forms of media are available.
Â· The nominees referred to in Clause 1have to comply with the appointment criteria. These criteria are that they should be experienced in agriculture, marketing, business and financial management, law, environment, technological transfer and technology in agriculture.
Â· Section 9(3)(a)(ii) provides for a selection committee to be established by the Minister.
Â· Section 9(3)(b) has been deleted. This provided for the relevant parliamentary committees to be involved with the selection. She said that the Deputy Minister had already explained that this did not permit a "separation of powers".
Â· Section 9(3)(c) now becomes 9(3)(b).
Â· Clause 1(b) is a new subclause that has been added to Section 9. This deals with the kind of person who would not be appointed (not a SA citizen or permanent resident; unrehabilitated insolvent; has not complied with a civil judgement order; has been imprisoned without the option of a fine for an offence involving dishonesty after 27 April 1994).
The Chairperson asked if there were any other bodies related to the Department of Agriculture whose council appointments were done with the participation of the parliamentary committees?
The Minister of Agriculture, Ms T Didiza, said there were such bodies even though they may be constituted differently either as part parastatal, independent commission or independent statutory bodies. The Committee would be seeing further amending legislation concerning these bodies during the second half of this year or next year.
Dr A van Niekerk (NNP) asked if it was ethical for Portfolio Committee members to present the Minister with names of nominees since the committee members interact with the public and the private sector.
The Minister replied that they would have to check the legal implications of this. The old Act was specific on parliamentary committee participation in the appointment process. In the past even if the Minister did not agree with the recommendation for appointment, this recommendation would go back to the parliamentary committee where further discussion took place - but this takes time.
Dr van Niekerk commented that this Committee was being sidelined in terms of any nominations. Now everything was being centralized to the power of the Minister. The whole objective of the new democratic government was the participation of the people in decision-making. The centralization of power ignores the input of the people.
Adv Holomisa said that Dr van Niekerk should take note of the input on the principle of the separation of powers and the important principle of Parliament monitoring the work of the Executive. If the Committee is going to participate in the appointments, how is it going to call these people to the Committee and criticize their work? How are they going to deal with a situation where they find themselves monitoring their own work?
Dr van Niekerk admitted there are certain limitations but nevertheless participating in the process was also essential.
Mr Maphalala (ANC) commented that he understood the concerns raised by Dr van Niekerk but the issue lies with the division of power. He repeated the point that the Committee needs to stick to the role of overseeing and monitoring the Department and institutions related to it rather than involving itself with the appointment of people to various bodies whom they would have to monitor again.
The Deputy Minister said that it was not true that they were centralizing power because the nominations would be open for public scrutiny and comment. The second point was that the parliamentary committee could not act like a selection committee and influence the process. If it does that, it was no longer objective in terms of oversight.
Mr P Ditshetelo said that the Bill was not clear as to whether the Minister was to appoint a suitable person to the council from the list of nominees or if the Minister would come with that person from elsewhere. That process should be captured in words.
Mr du Toit said that this was a substantive point. The Department would consider this input.
Dr van Niekerk asked what role does the Minister have in mind for the Committee to assist her in appointing people?
Adv Holomisa replied that it is stated in the Bill. The Committee will assist her in evaluating the work of the appointees in executing their duties.
Dr S Abram (UDM) asked how the selection committee would be put together.
The Minister replied that no specific criteria have been prescribed as to what kind of person should be on the selection committee. She said it is generally accepted that they should have broad skills. The Committee could suggest criteria.
Dr Abram asked if the law advisers could provide the Committee with a formulation of what a proper and fit person is. He said the members of the selection committee should have certain skills and felt that this should be included in the Bill. Otherwise the Minister could decide that two or three of her friends could be the selection committee. The law should prescribe who those people should be.
Mr D Maluleke (DP) asked what process would be followed if a council member resigns five months before the term of office. Would the Minister advertise the vacant position?
Adv van Zyl replied that according to Clause 2, the Minister has the right to appoint another person for the remaining term of office.
The Director General, Ms B Njobe, commented that they have noted the concerns of some members and that the Department would look into the matter.
The Minister remarked on the issue of separation of powers, asking what form of separation of powers do we want in South Africa. She said in the past there was co-governing by the executive and the legislature where this question of the oversight role of Parliament would have been appropriate because previously no Minister could exercise her executive position with regard to such appointments. Even if they were not qualified in the Minister's mind, there was nothing the Minister could do. She said it was not that the Executive wanted to usurp power.
Marketing of Agricultural Products Amendment Bill
The State Law Adviser, Ms van Zyl, read through the Bill's Explanatory Memorandum and the Bill. It was then suggested that committee members look over it and discuss it when the Committee next meets.
Dr van Niekerk asked the Minister to explain the statement made by her spokesperson in connection with land invasion in the Mpumalanga region.
The Minister said the statement was true and it was about communities living in the Ermelo area in the Mpumalanga province. She said her Department was in contact with the communities involved and other stakeholders, in this case, the farmers themselves.
There have been discussions taking place with everyone concerned and agreements in certain areas have been reached involving 'willing seller - willing buyer'. She said she was also surprised to hear threats of invasions being made after such a lengthy process of discussion and that is the reason her spokesperson made that statement.
The Chair informed the Committee that they were supposed to have undertaken a trip to the Far East to study agricultural products and development but that the trip has been placed on hold through a recommendation from the Department of Foreign Affairs.
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