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AGRICULTURE PORTFOLIO COMMITTEE
05 June 2001
AGRICULTURAL RESEARCH AMENDMENT BILL: DELIBERATIONS
Chairperson: Adv P Holomisa
Documents handed out:
Agricultural Research Amendment Bill [B25-2001]
Marketing of Agricultural Products Amendment Bill [B26-2001]
The Committee debated whether or not the Minister had to consult with the members of the portfolio Committee in making an appointment of persons to the Council. It was generally agreed that this would restrict the powers of the Minister from making appropriate decisions. The Committee resolved to have a later meeting to discuss some of the proposed amendments to the Bill and also to discuss the Marketing of Agricultural Products Amendment Bill.
The Committee discussed the Committee's proposed visit to the IPAAF Forum in Korea. It was suggested that the Republic of South Africa was not ready to participate in this forum having recently joined the international arena. It was also suggested that a delegation be appointed with observer status.
One of the issues that came up for discussion was the issue of the planned visit by the Committee to Korea to attend the IPAAF International Conference. The Chairperson suggested that the delegation be sent to the conference, but inform the members of IPAAF that the Parliament of South Africa is still considering whether or not to join as a member of the IPAAF forum.
Mr Stewart suggested that the composition of the delegation should be all inclusive because the IPAAF forum deals with agricultural products, fisheries and other items.
Mr Bhengu (IFP) agreed with the Chairpersons view that South Africa has only recently joined the international arena. It was recommended that the Committee inform the IPAAF forum that the South African parliament is still considering whether it will become a signatory to this forum because South Africa has only recently emerged into the international arena.
Mr Masithela (ANC) suggested that the delegation be sent on an observer status. He added various decisions, including the resolution deciding whether South Africa should or should not be a signatory to the forum would be discussed after the forum.
A Member proposed that a delegation should not make any commitment to the signing of the Charter and that the Committee should not give the delegation any mandate to this effect.
Mr Maluleke asked which parties would make up the delegation.
Mr Botha recommended that the delegation should be small and that only one or two members should be sent.
The Chair suggested that there should be two members instead of a single person.
The Committee agreed on a maximum number of two persons. Mr Botha insisted that one of the members should be from an opposition party.
Mr Ngubane commented that the delegation would be making an investigation at this stage. Hence he argued that the Chairperson should attend the Forum.
Mr Kagiso agreed that one member of the delegation should be a member of an opposition party. Further , she said that the Chairperson should be a third member of the delegation.
Mr D Hanekom supported the idea that three persons (including the Chairperson) be sent as part of the delegation.
The Chairperson decided that a delegation of three persons would be sent and that he would be one of the members of the delegation.
A Member asked if there would be enough money on the budget to cover the Committee's expenditure for the rest of the year.
The Chair replied that the expenditure associated with the Forum formed part of the expenditure of the Committee for the year.
Agricultural Amendment Bill
Adv Ronel van Zyl (Head Legal Services, Department of Agriculture) presented the Bill to the Committee.
(a)(i) Clause 1 of the Amendment Bill amends s 9 of the Agricultural Research Act with regard to the manner in which the members of the Council responsible for managing the Agricultural Research Council are appointed. Part of the Act requires that Notices should be placed in National media in two newspapers. This has been replaced by a clause stipulating that Notices should be published in the media. The new clause does not stipulate what kind of media must be used for these purposes.
(a)(ii) The selection Committee must compile a shortlist from the nominations that have been submitted. This shortlist must be referred back to the Minister.
(b) In the past, Chairpersons of the respective Portfolio Committees had to be included in the selection Committee. This caused confusion between the different roles of the legislature and the executive. This role should not be played by the legislature but should be the responsibility of the executive which would subsequently report back to the legislature.
(c) This paragraph gives a time frame within which a Selection Committee has to refer the nominations back to the minister to enable him/her to make the appointment. The Minister shall then appoint such number of members as is required from the short-list of candidates recommended by the Selection Committee.
(d) This section was deleted. Reference to the Parliamentary Committees has been deleted because the Committees and the Minister may not agree on the members to be appointed. A Minister, as part of his executive function, has the authority to appoint the members of the Council.
(e) This section was deleted.
(b) (5) This is an addition which stipulates the requirements which applicants must comply with. These requirements are as follows:
(b) an unrehabilitated insolvent may not be appointed;
(c) people that have civil proceedings against them with regard to financial matters;
(d) people who have been convicted of certain offences involving an element of dishonesty or have been sentenced for any other offence committed on or after 27th April 1994 to a period of imprisonment without the option of a fine;
(e) a person of an unsound mind.
The Committee added (f) stipulating that "a person who has contravened or failed to comply with a provision of Chapter 2 of the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000" may not be appointed.
S 12 was amended and substituted with paragraph (4). This concerns situations where there is a vacancy and a person must be appointed to fill the vacancy. This enables the Minister to follow a shorter procedure.
It was also suggested that the same requirement be added to sub-section 2(g) so that the same words appear - "a failure to comply with the provisions of Chapter 2 of the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000".
Adv Van Zyl clarified the meaning of a "fit and proper person" in terms of the legislation, according to case law. She said that despite the contention that the phrase be given its ordinary grammatical meaning, case law interprets the meaning of the term in the context of the particular legislation.
The Chair suggested that the Committee pass a motion of desirability for passing the amendments. This motion read as follows : "In the opinion of the Committee legislation is desirable to amend the Agricultural Research Act 1990 so as to make further provisions for the procedures of appointment of the members of the Council and to provide for matters connected therewith and that the Bill referred to the Committee be taken as a basis". He asked if anyone moved for the adoption of the motion of desirability.
Mr Bhengu proposed for the adoption, seconded by Mr Kotwal. There were no objections to the adoption and the Motion was duly adopted.
The Chair suggested that the Committee examine the Bill clause by clause
Clause 1 (a) deals with a requirement that a Notice be placed in the media, inviting persons, stakeholders and the Premier of each province to submit to the Minister, within the period mentioned in the Notice, the names of persons who comply with the criteria referred to in s (2)(a).
Mr Botha asked for a definition of the word "media" as proposed in the amendment. He said that it could mean television or a local newspaper.
Adv Van Zyl replied that as with many terms used in legislation, the words must be understood in terms of their normal ordinary meaning. The normal meaning of media would be newspapers, radio and any kind of advertisement. The South African Constitution requires that an administrative action must be justifiable action and must address a justifiable purpose. Any suitable media could be used. The Department did not want to use the phrase "local newspaper" because radio is a very effective form of media that can also be used to invite nominations.
Mr Botha argued that the word "media" was too vague. He said he was concerned that the Government Gazette was not mentioned in the Amendment Bill. He suggested that it was more appropriate if the clause read "the Government Gazette and the media". He asked why this was not the case.
Mr Du Toit (Deputy Minister of Agriculture) replied that the point was one of purpose and that the matter should not be interpreted as a political one. He added that practically it was difficult to place an advert in 2 newspapers because there are many of them. Further, he said that the test should be whether the invitation reaches it's intended audience. Finally he supported the view that a notice should be place in the Government Gazette.
The Chair asked the Minister to comment on the Government Gazette issue.
Ms T Didiza (Minister of Agriculture) agreed that placing a notice in the Government Gazette may be a good idea.
The Chairperson proposed that the clause 1(a) be amended to read that the Notice would be placed in the Government Gazette and other suitable media. The formulation would be decided upon at a later stage.
Mr Botha suggested that the term "relevant media" be inserted.
Mr Van Niekerk suggested that the clause be amended to read :
(i) "The Minister shall, in consultation with the Parliamentary Committees of Agriculture publish in the Gazette and media a suitable procedure for the nomination, selection and appointment of a person to the Council".
(ii) By Notice in the Gazette and the media, invite persons in the manner that has been suggested in the Bill.
Clause (ii) of the Bill should thereafter become clause (iii) which establishes a selection Committee at the discretion of the Minister.
The Chairperson invited comments on the proposed suggestion.
Mr Maluleke replied that he agreed with the first suggestion, but was opposed to the others. He said that there should be a concession with the Committee and if the Committee could not agree such could not take place.
The Chairperson stressed that the purpose of the Amendment Bill was to remove the participation of Parliament in the selection of members of Council. If the Minister was required to act in consultation with the members of the Parliamentary Committee on Agriculture, this would in effect reject the Bill. The Chairperson suggested that there be no acceptance of any other amendment because the Committee was trying to avoid Parliaments involvement in the appointment of members of council.
A Member argued that the purpose of the Amendment Bill was to establish a procedure for the appointment of members to the Council. He added that it did not make sense for the Minister to dictate a procedure on how to select members of the Council. He said that for this reason the Committee could not agree with Mr van Niekerk's proposal.
Mr Ngubane contended that the Minister should not be disempowered from executing the necessary action. However, he added that if the Committee were to approve of Mr Van Niekerk's proposal, in effect the Portfolio Committee would be rejecting the Bill and reverting to the old procedure found in the Act.
The Minister asked Mr Van Niekerk what he meant by "in consultation with the Parliamentary Committee".
Mr Van Niekerk replied that the Minister, in the execution of her duties, must ask the department for the procedures which must be followed in nominating and appointing candidates. He said that his suggestion was in line with a recommendation that the Agriculture Portfolio Committee be informed of the process. The Minister must inform the Portfolio Committee of any intended action before performing the action. He added that a "good" Minister would do this anyway.
Mr D Hanekom (ANC) supported the other speakers that there was a dominant view to the effect that the procedure was already clearly spelt out in the Bill. He pointed out that the Minister may inform the Committee whenever the Committee wanted to be briefed. However, he said that requiring the Minister to consult with the Portfolio Committee before taking action was too onerous. In essence, he argued that the Minister should not be required to do anything over and above the procedure spelt out in the Bill.
Ms Didiza replied that she was not persuaded by Mr van Niekerk's explanation because his suggestion meant that the Minister would not be able to take a decision without prior consultation with the members of the Portfolio Committee.
A Member suggested that Mr Van Niekerk's view be disregarded because the majority of the members of the Committee disagreed with his suggestion that the Minister should consult with members of the Portfolio Committee before taking any decisions.
The Chairperson said that the Committee would not disregard a member's view simply because the overwhelming majority of members had a contrary view.
The Chairperson added that Mr Van Niekerk's view did not create any basis for an amendment. She appealed to him to withdraw the amendment. She said that Mr Van Niekerk was in fact recommending an already existing practice where if the Committee wants information on a particular issue then Minister and the Department have a duty to provide the information.
The Chairperson said that Mr Van Niekerk's comments were a subtle way of rejecting the Bill.
Mr Ditshetelo said that the Committee should avoid creating legislation stipulating that the Minister must consult with the Portfolio Committee because this may cast an aspersion on the ability of the Minister to interact with the portfolio Committee. He went so far as to say that this may result in a motion of no confidence in the Minister's ability to disseminate information.
Mr A Botha pointed out that the Council was a statutory body representing commercial and other interests of the people at large. He said that he did not understand why the elected representatives of the people should have an already diminished role removed completely.
The Chairperson asked if it was the purpose of the Council to advise the Minister.
Mr Botha replied that he just wanted to ensure that the oversight role of parliament was not diminished.
The Chairperson responded that the oversight role included monitoring the actions of the Minister in appointing the members of Council and the Council itself once appointed. In essence, the Portfolio Committee is always entitled to call on the Minister to give reasons for the Minister's decision.
The Minister agreed with the Chairperson's view. She contended that the Parliamentary Committee's oversight role was neither diminished nor removed but in fact was affirmed.
The Chairperson proposed that the Committee should discuss any further points of disagreement.
Mr Maluleke asked who would constitute the selection Committee and how many persons the Committee would consist of.
The Minister replied that when a Minister appoints a selection Committee for a particular statutory body, he/she must consider the function of the statutory body. Further, he/she must make sure that there is representation according to the demographics of the country and must also consider what skills are required and what skills are available.
Mr Van Niekerk asked if the Committee could consist of more than seven persons.
The Chairperson replied that this was possible. She assured Mr Van Niekerk that the role of the Premiers (taking into account the role of the Provinces) is not removed in the Act.
Mr Masithela suggested that the Minister should appoint at least three members.
Mr Swart argued that there should not be more than seven members.
Mr Botha contended that the amendments removed Parliaments role completely. He agreed with the suggestion that the appointment of members to the Selection Committee be in consultation with the Portfolio Committee.
Ms Didiza replied that she did not agree with this approach because it was entering into the executive purview of the administration of the matter. She did not see any reason or grounds for consulting with the Portfolio Committee in order to appoint members to the Selection Committee. She said that this insinuated that the Minister was incapable and needed assistance.
The Chairperson added that the Minister was indeed attempting to compromise with the Committee.
Mr Botha insisted that he was not casting any personal aspersion or doubt on the Ministers capability regarding the manner in which decisions were to be made. He added that there is similar existing legislation.
Ms Didiza pointed out that her response to Mr Botha's remarks were not intended to be personal. She said that she was raising a matter of principle and not one that was to be treated personally.
Clause 1 (b) (5)
This clause concerns the criteria for appointment. A Member asked for clarity on subclause (e) which stipulates that a person may not be appointed if he/she is of an unsound mind. He asked whether this meant that a person's mental competence or incompetence must be determined by a court since this is usually the case.
The Deputy Minister of Agriculture replied that in fact a person must be of an unsound mind. This fact would not be based on the opinion of the Minister or any other person. A Minister would be able to use this ground to exclude someone provided the Minister has a court order.
Dr Schoeman proposed an amendment that was circulated on a loose page and titled subparagraph (f). Sub-paragraph (f) reads "has contravened or failed to comply with the provisions of Chapter 2 of the Promotion of Equality and Prevention of Unfair Discrimination Act 2000." In effect a person would not be appointed if the prospective member failed this requirement. Dr Schoeman argued that his proposed amendment was necessary to send a clear message that racism will not be tolerated.
The Chair asked if Dr Schoeman was suggesting that racist persons be disqualified from appointment. Dr Schoeman agreed.
Mr Botha commented that it was necessary to eradicate racism in the country if it were possible. However, he added that the amendment in subclause (d) covers the amendment suggested by Dr Schoeman. Hence he said that it was unnecessary to add subclause (f).
Dr Baloyi (IFP) said he was unaware of the time stipulation in Act 4 of 2000 relating to contraventions of provisions of Chapter 2 of the Promotion of Equality and Prevention of Unfair Discrimination Act. He asked what would happen if a person has been converted since the contravention. Further he asked if their was a time stipulation relating to contraventions of the Promotion of Equality and Prevention of Unfair Discrimination Act.
The Chair asked if Dr Baloyi's suggestion did not also apply to subclause (c).
Dr Schoeman replied that the Act was promulgated in 2000 and is a recent piece of legislation. This being the case, he argued that persons would escape the effect of the clause. He added that he did not understand how racism and dishonesty could be equated with one another and he insisted that these were two separate issues.
The Chairperson agreed that dishonesty and racism do not necessarily amount to the same thing.
The Chairperson proceeded to address the issue of the time period within which these contraventions may have been committed or occurred.
The Deputy Minister said he had not examined the provisions of Chapter 2 at any great length, but it was clear that the Act could only apply from the year 2000 onwards. He suggested that the Department obtain advice on the matter.
Dr Baloyi asked how the provisions of Chapter 2 in the Prevention of Discrimination Act relate to reasons for which a person may not be appointed as a member of the council. The Deputy Minister requested that the Department seek advice before continuing to discuss the matter.
Dr Schoeman commented that in terms of other criteria, such as when a person is an unrehabilitated insolvent, this does not reflect on his skills to serve as a member of the council. The only factor impeding the persons capacity to serve is his/her insolvency status.
Mr A Botha commented that contravention of Chapter 2 of the Act may not be relevant to whether or not a person is a racist or not.
The Chairperson agreed that only the courts would be able to determine this matter.
The Chairperson asked if any member would be comfortable with the appointment of council members having past convictions of patent acts of racism. Most of the members indicated that they would not be comfortable.
The Minister pointed out that the Prevention of Unfair Discrimination Act criminalises racism. She agreed with Mr Hanekom's proposal that a clause excluding applicants on this basis must be clear that a person must have been convicted of an act of racism in order to be disqualified from appointment.
The Deputy Minister said that he presumed subclause (f) was properly drafted by the State Law Advisers and that they must have checked the clause against the provisions contained in Chapter 2 of the Prevention of Unfair Discrimination Act.
The Chairperson asked if the Deputy Minister meant that the formulation should be accepted as it stood. The Deputy Minister replied in the affirmative.
The Chairperson asked what the difference was between the formulation of subclause (f) and subclause (d) regarding "a person that has been convicted" of an offence.
The Deputy Minister replied that the term stipulating "a person that has been convicted" is only used in criminal matters. Subclause (d) deals only with specific offences such as those involving dishonesty. Racism is different because it includes both a criminal element and racist practices.
The Chair suggested that a discussion of the matter be postponed until State legal advisors formulate a proper clause dealing with the exclusion of persons convicted of racism or acts of racism. He said that it was necessary that all Members of the Committee agree to the formulation of the clause.
Adv van Zyl explained that the clause concerns s12 of the Agricultural Research Act. The section stipulates the grounds for terminating the office of a current member. She said that she had been requested to extend the grounds to persons who have been convicted of acts of racism after a member has been appointed to council.
The meeting was adjourned.