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HOME AFFAIRS PORTFOLIO COMMITTEE
29 May 2007
FILMS AND PUBLICATIONS AMENDMENT BILL: DELIBERATIONS
Chairperson: Mr H Chauke (ANC)
Documents handed out:
Working draft of Films and Publications Amendment Bill Part1 & Part2
Films and Publications Amendment Bill [B27-2006]
Films and Publications Act of 1996
Members heard an explanation for the Democratic Alliance’s walkout of the Committee’s last meeting. It was agreed that that party would make its submission on the Films and Publication Amendment Bill as soon as possible.
The Committee received a working draft of the Amendment Bill which included the proposals agreed to at the previous meeting. Members accepted the drafted changes and only requested that compliance officers be empowered to "instruct" rather than merely "advise" distributors in compliance related matters. The Committee hoped to finalise and adopt the B version of the Bill by Thursday 31 May.
The DA explanation for their walkout the week before
The Chairperson said that the Committee Secretary had informed him that either Ms Sandy Kalyan or her party, the Democratic Alliance, was unhappy about comments that had been made at the previous Friday’s meeting. He was not sure what comments they were referring to. He requested Ms Kalyan to explain whether the DA had walked out of that meeting or whether they were simply not prepared to make their submission.
Ms Kalyan said that she and her DA colleague did not inform the Committee of the DA’s intention to leave the meeting because, in her considered opinion, the Chairperson had been behaving in a prejudiced manner. The DA was entitled to make the comments on Bill that they had made that day. The Chairperson had however "chastised" them and had accused them of not being prepared. In addition other members of the Committee were then also allowed to add "their two cents worth". Eventually the meeting had turned into an ANC study group. She was prepared to sit in a Committee that allowed freedom of expression and was objective. She and Mr Marius Swart then decided to leave the meeting. She added that the DA’s written submission had since been circulated.
The Chairperson said that he had no knowledge of such a submission.
Ms Kalyan said that the submission had been sent later on the 25 May.
The Chairperson said that members had left Parliament by early Friday afternoon and that was probably why they had not received the submission. He thought it unfortunate that some still operated by getting angry and walking away. If the DA members had felt that their comments were not being taken seriously they should have raised the matter instead of walking out. He was not pleased with the manner in which the DA had chosen to handle the situation. He emphasised that it was not his intention to antagonise anyone. As Chairperson he always tried his best to accommodate everybody. He added that members should always simply indicate when they were unprepared, so that they could contribute when they were ready.
Mr F Beukman (ANC) commented that that meeting on Friday 25 May had been "a proper portfolio committee meeting". If the DA had remained in the meeting they would have seen that major amendments had flown from the African Christian Democratic Party (ACDP). He added that should the Committee’s proceedings be taken on review, that review would consider what happened in the meetings. What happened outside of the Committee’s meetings could not be taken into account and therefore it was important for all parties to make their contributions in the meetings. That way they could all work together to improve legislation.
Mr M Sibande (ANC) thought it important that the DA’s submission be discussed so that the Committee would not later be accused of not taking certain members' input into consideration.
The Chairperson assured Members that the DA’s input, which the Secretary had distributed, would be discussed after the legal drafters had presented the latest working draft of the Bill.
He noted that the drafters had been tasked with drafting a working draft of the Bill that incorporated the changes the Committee had agreed upon during their discussions in the past week. Some members felt that they still needed time to discuss the latest version of the Bill with their parties. Such time would be allowed, but meant that the Committee would not be able to discuss the finalised version of the Bill the following day.
Presentation by legal drafters
The Department of Home Affairs’ Acting Chief Director Legal Services, Adv Deon Erasmus explained that the drafters had as per their discussions at the last meeting, made changes to S16 (1), S16 (2)(d), S16 (4)(a)(ii), S16 (4)(c), S18 (3)(c)(ii) and (iii), S24A(2) and S24A(3). These changes had resulted in certain consequential changes. Adv Erasmus then proceeded to take members through the changes.
Mr Steve Swart (ACDP) drew the drafters’ attention to S16 (4)(a)(ii) which he thought should include the word and so that it read "advocacy of hatred based on any identifiable group characteristic and that constitutes excitement to cause harm"
Adv Erasmus verified that the Constitution included the word ‘and’. The drafters would include it in the draft bill.
Mr Swart noted that the words bestiality, rape and incest did not appear in the draft at all. He wondered whether there was a reason for their exclusion from S16 (4)(b).
Mr Tsietsi Sebelemetje, DHA Acting Director Drafting, explained that bestiality and incest were considered conduct or acts which were degrading of human beings and were provided for under S16 (4)(b)(ii).
Mr Swart requested that bestiality, rape and incest be mentioned in the provisions.
The Chairperson and other Committee members concurred.
The Chairperson felt that the draft reflected the views Members had raised.
Mr Beukman appreciated the DHA for their hard work in preparing the draft. He wondered whether the state law advisors and the parliamentary legal advisors might be able to consider the draft and comment on its constitutionality.
The Chairperson found it peculiar that the state law advisors had allowed the unconstitutional aspects of the 1996 legislation to slip through. The Committee now had to address those matters.
Mr Swart also appreciated the DHA’s efforts and was grateful for the consideration of the ACDP’s comments throughout the process. Drawing the Committee’s attention to S15 (2)(d) he pointed out that the compliance offers should retain the powers they carried under the 1996 Act. They should be allowed to order rather than merely advise that inappropriate or harmful material be removed.
The Chairperson agreed that the compliance officer had been rendered toothless.
Mr Beukman recalled that Mr Chetty had indicated that there were difficulties in getting compliance and that advised was suggested bearing that in mind.
Ms Kalyan had a problem with the word order. The compliance officer was neither an inspector nor an officer of the court and the word order would afford them undue authority. Compliance officers were meant to ensure that classification and certification was met with.
The Chairperson was not convinced that powers to advise would be sufficient and wondered whether there was possible middle ground between ordering and advising.
Mr Swart reiterated that the principal act allowed compliance officers to order.
Ms Kalyan pointed out that that was not the case.
Mr Sebelemetja confirmed that the section dealing with compliance officers was a new addition.
The Chairperson: alternative…that would empower them…
The Parliamentary legal advisor Ms Refilwe Mathabathe suggested that advise be replaced with instruct.
The Chairperson felt that the suggestion was worthy of consideration. He felt that compliance officers should have some powers.
Adv Erasmus explained that S15A (2)(d) gave compliance officers the opportunity to give advise. Should that advice not be followed they could request the assistance of a police officers who had investigative etc authority. He felt that changing the wording would make little if any difference.
The Chairperson preferred that the wording be changed because he felt that advise carried too little authority.
Mr Swart pointed out that the compliance officers were given the powers to examine and to inspect, yet they could only issue advice. In addition they visited many, many distributors and could not make regular inspections to verify compliance with their advice. He felt that they could even be given powers to seize unauthorized materials.
The Chairperson suggested that the Committee interacted with the Justice Portfolio Committee on the matter. At some point compliance officers might be given powers similar to those of peace officers.
Ms Kalyan pointed out that compliance should not be seen as the enemy. They were there to engage the distributor and to ensure that they were upholding the law. There was no need for them to become antagonistic.
As Ms Kalyan excused herself from the meeting, the Chairperson reminded her that the following day’s meeting would be aimed at interacting with the DA’s submission and he expected to get much input from them. The Committee hoped to accept the draft the following day so that they would be able to get the finalised version for voting on (the "B version") by Thursday 31 May. If the IFP and the DA failed to give any input the following day, the Committee would have no choice but to continue.
The meeting was adjourned.