Tobacco Products Control Amd Bill: Negotiating mandates & Departmental responses; Prevention of & Treatment for Substance Abuse Bill: Negotiating Mandates

NCOP Health and Social Services

09 September 2008
Chairperson: Mr M Sulliman (ANC; Northern Cape)
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Meeting Summary

The Committee received the Negotiating Mandates of the provinces in respect of the Tobacco Products Control Amendment Bill. All the provinces generally supported the Bill. Provinces held had public hearings and provinces included the inputs received in their negotiating mandates. A suggestion was made that the definition of ‘advertising’ be extended so that communication from the tobacco industry could be extended to include consenting adults that were smokers by choice. Many public inputs held the view that the sale of single or loose cigarettes should be banned. The Northern Cape was concerned with the growing proficiency of the ‘okka pipe’ and wondered if there was anyway to induce some sort of prohibition. The Department was able to provide responses to all the questions and concerns that the provinces had. The Department indicated that in the Bill presented to the Portfolio Committee on Health there was a clause that gave the Minister the power to determine the quantity of cigarettes sold per packet, however, the Portfolio Committee on Health indicated that it was not practical and unenforceable and removed the clause. The Department felt that extending exemptions would be unnecessary, as exemption of certain retailers would interfere with the principle of the Bill. The Department agreed to provide written responses so that these could be taken back to Provinces.

The mandates from all provincial legislatures in relation to the Prevention of and Treatment for Substance Abuse Bill were then tabled. Most had indicated their broad support for the Bill, subject to certain changes, but it was not clear from all the mandates which of the suggestions emanated from public hearings and which from the provincial committees. This was particularly so of the Western Cape mandate. Members expressed their concern on the nature of the mandates, suggested that some provinces had not done their work properly, and asked whether there was not a standard form in which to submit the mandates. The Chairperson clarified that this was under discussion at the moment. It was noted that the Department of Social Development had not yet had an opportunity to prepare responses, and was given time to prepare a consolidated response for an extended Negotiated Mandate meeting in the future. In the meantime the Chairperson would communicate with the provinces to ask them to collate all the findings and provide specific mandates in the correct form.

Meeting report

Tobacco Products Control Amendment Bill (the Bill): Presentation of Negotiating Mandates
Mr M Sulliman was nominated and thereafter elected as Acting Chairperson.

The Acting Chairperson asked the provinces to present their negotiating mandates.

Eastern Cape Negotiating Mandate
Mr D Mkono (ANC; Eastern Cape) presented the negotiating mandate. The Provincial Committee on Health in the Eastern Cape resolved to support the Bill and conferred the following mandate. In respect of Clause 1 of the Bill, it was proposed that the definition of ‘advertising’, be amended so that it included “and consumers where such communication is restricted to communication with existing individual adult, consenting tobacco users.” The definition of ‘package’ should also be amended so that it excluded the words “wholesale or”. It was proposed that there should be an insertion of a clause after Clause 3(9) that gave the Minister power to exempt certain retailers from the provisions in Section 3(9)(a), (b) and (10) if compliance proved uneconomical for such retailers. Further proposals included that the tobacco industry not be allowed to make charitable contributions as this still promoted the sale and use of tobacco products in an indirect manner, and that displays of tobacco products at the point of sale should be prohibited as this was nothing but advertisement and promotion.

Free State Negotiating Mandate
Ms F Mazibuko (ANC; Gauteng) read the mandate.  The public input was that there should be advertisement to remind people of the dangers of smoking, sellers of the tobacco products should be licensed and monitored, selling through the internet should not be allowed, there should be inspectors to monitor compliance with the legislation, and manufacturing of tobacco products should be regulated. The Provincial Committee recommended adoption of the Bill.

Gauteng Negotiating Mandate
Ms Mazibuko presented the negotiating mandate for Gauteng. She explained the process that was followed and the interaction with the stakeholders, as well as the concerns that were raised during the public hearings. The Provincial Committee of Health in Gauteng resolved that the preamble of the Bill should be revised to read “to extend the restrictions in respect of free distributions of tobacco products” and “to provide for new restrictions for the sale of tobacco products by means of vending machines.” In the definition of ‘advertisement’, it was proposed that there be an insertion of ‘brand element’ and that the phrase ‘likely effect’ be deleted as it gave rise to interpretation problems. The Gauteng legislature supported the principle and the detail of the Bill.

Kwazulu Natal Negotiating Mandate
Mr Govender (member of the KwaZulu Natal legislature) presented the province’s negotiating mandate. This province proposed some amendments. Firstly, the definition of advertisement should be amended to include ‘consumers where such communication is restricted to communication with existing individual adult, consenting tobacco users’. The Bill should contain a definition of a ‘package insert’ provided in the Bill. A new clause was proposed, Clause 3(10)A, that allowed the exemption of certain retailers, with a notice by the Minister. It was proposed that the age be amended to eighteen years or younger, and that a new section be inserted. The proposed section 6(1)(bB) should read “Information that must be displayed on containers or receptacles, utilised for distribution at wholesale only”. The province supported the Bill, provided that the comments and proposed amendments were considered and consolidated in the Bill.

Limpopo Negotiating Mandate
Mr J Sibiya (ANC; Limpopo) noted that there were public hearings in Limpopo. The inputs made at the public hearings included that there should be consideration for the economic position such as loss of employment when advertisement and promotion by tobacco companies was cut, there should be a provision that tightened border control to curb tobacco trafficking, that stringent penalties should be imposed on those that violated the Bill, that vending machines should be located in the smoking areas, and that sales of loose cigarettes, smoking in front of children and smoking in public places should be prohibited. The province was in favour of the Bill.

Mpumalanga Negotiating Mandate
Ms N Madlala-Magubane (ANC; Gauteng) noted that the public generally supported the Bill but read out the inputs made. There was input that the warnings signs on tobacco packaging should be changed on a periodic basis, preferably after every seven months, and that the definition of package should be re-defined so that it would read ‘package means the container, receptacle or wrapper in which tobacco products are sold, supplied or distributed at retail.’ Their Portfolio committee had noted that the definitions contained in the Bill were already contained in the Principal Act, and it also noted that although the wording was changed, the effect remained the same. The Bill was examined and considered, and the basic principles were supported.

Northern Cape Negotiating Mandate
The Acting Chairperson presented the province’s negotiating mandate. The oral input received at the public hearings included that tobacco products should include smoking an ‘Okka Pipe’, there should be specific guidelines in the Bill on how perpetrators of the Bill would be prosecuted, the use of tobacco should be abolished completely, selling of loose cigarettes should be banned, the public should be part of the initial drafting stages of legislation and not only be consulted when amendments needed to be affected on existing legislation, and that foreign nationals who owned shops should be encouraged to attend public hearings to enable them to adhere to South African law. The public generally supported the Bill, and after the public’s input, the Provincial Committee on Health supported the Bill.

North West Negotiating Mandate
Ms Mazibuko presented the province’s negotiating mandate. This province supported the Bill. The public inputs included that no one should advertise or promote tobacco products, no person should manufacture or produce tobacco products unless they complied with the relevant standards, an owner or person in charge should ensure that no person under the age of 18 should handle tobacco products, and that the sale of tobacco products from vending machines should be restricted to places where purchases of such products were inaccessible to persons under the age of 18. Many of those making submissions were not happy with the amendment regarding fines and penalties, and noted that there should be protection for people in restaurants, cars and public places.

Western Cape Negotiating Mandate
Ms H Lamoela (DA; Western Cape) presented the negotiating mandate for the province. Most of the submissions that were received supported the Bill. Some proposed stringent measures in enforcing and monitoring of the policy on smoking in public institutions or places and even at private homes. The international companies mentioned in the mandate, Japan Tobacco International and British American Tobacco, were not opposed to the Bill but had tried to advance their corporate agendas above the public health interests.  The provincial Committee on Health conferred in support of the Bill.

Department of Health (DOH) response and discussion
Mr Thami Mseleku, Director-General: Department of Health, thanked the Committee for their mandates. He was pleased that the public wanted the Bill to be more stringent. He went through the comments province by province.

Mr Mseleku’s response to the Eastern Cape on Clause 1 noted that making an allowance for communication with consenting adults could cause problems. Firstly, the Department’s major role was to protect all people, including those who smoked, from the harm of tobacco, and therefore the Department could not take the view that it would be acceptable to continue to advertise to people who of their own accord took up the habit. The Department did not see how it could make an exception for smokers. Such an amendment would contradict why it was trying to pass an amendment Bill. The second problem was that the Department would find it practically very difficult to make decisions on who was a consenting adult. He suggested that this amendment be reconsidered.

In respect of the proposal to delete the word ‘wholesalers’, he said that the reason for the deletion was not clear. The definition of package could not exempt wholesalers without further motivation. There was a long discussion on the issue and the Department could not exclude that package because they had to know what it contained.

In response to Clause 3(9), he noted that this dealt with a retailer that was selling to the public, so the notice would contain where the product was available and how it could be obtained. If it was set out that information shall be displayed where the product was sold, then no retailer could be exempted from that provision. The Department was not sure of the rationale as to why it was being suggested that there be any exemption, especially if they were protecting people.

Mr Mkono said that when the province had taken the Bill to the public, it had taken the view that it was dealing with adults, who would be in a position to take an independent viewpoint, and therefore did not need protection.

Mr Mseleku replied that if adults’ choices were going to have an impact on others, then the State had a responsibility to protect even those adults from themselves.

Mr Mkono noted that the wholesalers sold products in bulk.

Mr Mkono noted the exemption issue and said that it seemed as if the Department was making exceptions for big business. He asked what would be the position with the businesses in the informal settlements.

Mr Mseleku replied that the amendment did not mention anything about areas. It simply mentioned “the retailer”. The principle that the retailer had to ensure that no one handled cigarettes themselves was a principle that must be applied across the board. The wholesalers themselves actually packaged cigarettes.

Ms Lamoela asked if these provisions were infringing on free enterprise.

Mr Mseleku replied that they were not. The Constitution provided for certain rights and limitations.

Ms Xoliswa Mdulu, State Law Advisor, Office of the Chief State Law Adviser, noted that the Bill was attempting to close loopholes.

Mr Mseleku went on to respond to the points raised by Gauteng. He noted the comment on the wording, but said that the definitions should not include an objective, as that would be inappropriate. It should rather be done in the Objects of the Bill. The Bill was not dealing with the Tobacco industry; it was dealing with tobacco as a product, and what needed to happen in order for this product to be handled. The other suggestions were basically elaborations in support of the Bill and provided for the definitions that were also in the principle Act.

Ms Mazibuko asked if the State Law Advisor could comment on the fact that the definitions seemed to be repeated.

Ms Mdludlu replied that it was the intention to provide for definitions additional to the wording contained in the principal Act.

Mr Mseleku responded to the concerns of Kwazulu-Natal. He replied that the clause was a very important clause. He suggested that it was already provided for in the Bill, as the Minister had a right to ask for an insert, as was stated in Clause 7(b). There was no need to elaborate further on the definition of advertisement, as it was clearly defined. Both proposals of the provinces were already dealt with adequately in the Bill.

Mr Mseleku then responded to Limpopo’s proposals. He replied that trafficking was not in the ambit of the Bill; it would rather relate to illegal tobacco products and that was the responsibility of the Department of Trade and Industry, National Treasury and Safety and Security. All the other amendments that were suggested were already in the Bill. 

Mr Govender asked whether, if the trafficking was in other legislation, it would not be better to have something also in this Bill – perhaps in the Regulations – listing all the applicable legislation. This would ensure that people would understand immediately what the consequences were of trafficking.

Mr Mseleku replied that the issue was already covered in other legislation so it did not need to be placed in the Bill. It could perhaps be placed in an information section, and a cross-reference could be provided.

Ms Mazibuko asked if the Department was now setting a precedent that each time there was other legislation having a bearing on or implications around the subject matter of a Bill, then that legislation must be listed also in the Bill.

Ms Mdludlu replied that the jurisdiction of this Department was related to health issues. Other issues within the broad scope fell under other jurisdictions. If this Department were to include references to other jurisdictions it would encroach on other jurisdictions. In addition, it was not the norm and there might be unintended consequences

Mr Mseleku replied that he had not meant to imply that there must be a cross-reference. Usually when there was a cross-reference, it had to do with the supreme law of the country. There was no need to make that reference.

Mr Mseleku then responded to the concerns of Mpumalanga. He noted that most of the proposals were presented as submissions, and it was not clear if the Committee had supported the public input. The public argued for stringent measures to prevent the sale of loose cigarettes. The Portfolio Committee on Health was concerned with that clause’s practicality. It was somewhat ironic that the public itself was calling for the banning. Perhaps they needed to educate first and then find alternatives for those that were selling loose cigarettes.

Mr Mseleku  responded to the Northern Cape. He thought that it was a contradiction that they were trying to restrict the selling of tobacco, yet the tobacco industry was making contributions. There were mostly general comments from that Province.

The Acting Chairperson reiterated the province’s mandate question about the ‘okka-pipe’.

Mr Mseleku replied that if it concerned a tobacco product, then it fell automatically under the jurisdiction of the Bill.

Mr Govender noted that there were a number of children in schools that were over the age of 18.

Mr Mseleku  replied that there was a clause that dealt with a place of learning.

Mr Govender noted that if Mr Mseleku was trying to link the prohibition on smoking by children under the age of eighteen years of age, and the fact that loose cigarettes were allowed to be sold, then this was an anomaly.

Mr Mseleku  replied that the Bill prohibited any selling of tobacco products in a place of learning, and that would ensure that children did not smoke while at school.

Ms Mazibuko noted that the tobacco industry would see a loophole in the fact that single cigarettes were not prohibited. The tobacco industry could decide to directly supply the retailers of single cigarettes.

Mr Mseleku  replied that the original Bill that was presented to the Portfolio Committee on Health allowed for the Minister to make regulations relating to the quantities of cigarettes to be sold. That was meant to give some power to the Minister to prescribe quantities. The Portfolio Committee had engaged on the issue but had decided to remove that clause. It was important that this was taken to the public.

Mr Mseleku responded to the North West submissions. He noted that the main argument was about the age. He noted what was being suggested, but said it could raise some constitutional problems.

Ms Mazibuko noted the comments regarding fines and penalties, and asked if there were ample time to consider those fines and penalties.

Ms Mseleku replied that in respect of any offence that was in the Bill, discretion was given to the courts to decide on a penalty.

The Acting Chairperson asked for the responses in document form, so that these could be submitted to the Provinces.

Technical Corrections to the Bill
Ms Mdludlu noted some technical corrections to the Bill, as follows:

- Page 2,after line six, there was a paragraph missing, as the printers omitted it from this version of the Bill.
- Page 7, line 15, the numbering must change since a clause was removed, but the numbering had not changed. That number change would have to be dealt with in the form of an amendment, because it was not passed by the Portfolio Committee on Health.

Prevention of and Treatment for Substance Abuse Bill (B12B - 2008) (the Bill): Provinces Negotiating Mandates
The Chairperson asked for the provincial mandates on the Prevention of and Treatment for Substance Abuse Bill to be read to the Committee.
Kwazulu Natal:
A representative from the KwaZulu Natal Legislature read out the Mandate, outlining the changes to definitions and clauses in the Bill. Definitional changes that were considered important included ‘harm reduction’ and ‘harm prevention’, where definitions were required to clearly illustrate the differences between the two concepts. The representative  recommended insertions in Clause 4(b) of  ‘ensures and promotes’, and Clause 4(g) of ‘recognises the special needs of people with disabilities’, to provide more clarity for disabled persons. The Bill was supported, provided that the comments by the Portfolio Committee and proposed amendments were considered and consolidated into the Bill. (see attached document)

The Chairperson asked if the Department of Social Development had prepared any responses to the mandates.

Ms Nomathemba Kela, Chief Director: Social Worker Services Transformation: Department of Social Development said that the Department had not received all the inputs, so was not prepared for responses. She added that the Department would be guided by the Committee, but would need time to prepare a comprehensive, consolidated response.

The Chairperson made a ruling to first hear all the provincial mandates, and thereafter give the Department quality time to work through them. The Committee would then reconvene at a later date to deal with responses.

Eastern Cape:
A representative from the Eastern Cape Legislature briefed the Committee on the response. The Legislature supported the Bill without further amendments. (see attached document)

Free State:
Ms F Mazibuko (ANC, Gauteng) was asked to read the  Mandate from the Free State Legislature. Their Portfolio Committee recommended that authority be conferred to the Free State Delegation to vote for the adoption of the Bill (see document).

However, the Legislature had a special concern regarding Item 4 of the Mandate, which dealt with the Minister of Social Development  delegating functions and powers to provinces, without due consideration of the cost implications for this.

Ms Mazibuko stated that the document gave a long explanation in relation to item 5 of the Mandate, and suggested that the Committee work through this area on its own.

Ms Mazibuko noted that the Social Development Portfolio Committee of Gauteng supported the Bill in principle, subject to certain key issues in clauses 12(3), 17(2), 53(2), 65(1) and 58(k) being reviewed. (see attached document)

Mr M Thetjeng (DA, Limpopo) read the Mandate from the Legislature in Limpopo. Their Portfolio Committee conferred a negotiating mandate to the NCOP Permanent Delegates to negotiate in favour of the Bill, but subject to the following areas being included: standard opening and closing times for liquor outlets; the regulation of collaborative approaches between government departments and stakeholders involved in substance abuse; the imposition of a sentence exceeding ten years for those found guilty of substance abuse; and the Bill providing a minimum percentage of alcohol allowed at ceremonies. (see document)

Mr Thetjeng said that it was clear from this Mandate that the province had not done its work properly.

Ms Mazibuko raised a point of order and asked the Chairperson to call Mr Thetjeng to order.

Mr Thetjeng said that he had found reading the Mandate an embarrassment as it was clear that the provinces had not done their work as they should have.

Ms H Lamoela (DA, Western Cape) read the Mandate from the Mpumalanga Legislature. Ms Lamoela said that she could not read everything in the Mandate because it referred to different Acts. She added that it would appear that some provincial Committees were not aware of what the Bill was about.

However, she noted that the Committee in Mpumalanga recommended negotiation in favour of the Bill. (see attached document)

The Chairperson said that there had been agreement in principle to allow the Department to work through all the responses from provinces, in preparation for an extended Negotiated Mandate Committee meeting on 23 September 2008.

Mr Thetjeng expressed concern that provinces were not submitting relevant responses to items on this agenda. He asked if there was not a standard format for responses that provinces could follow. He added that some responses were from the Committee and others from public hearings and were not relevant to the Mandate.

The Chairperson said that a Bill would be passed soon that would stipulate how Negotiated Mandates should be dealt with. He asked that Committee members not make sweeping statements and rather deal with the business at hand.

Northern Cape:
The Secretary of the Committee read the Mandate from the Northern Cape Legislature. The legal technical inputs on the Bill were emphasised as it was felt that Clause 12(3) was not explicit enough regarding relevant provincial departments tasked with developing an integrated strategy for community based services. The Northern Cape Legislature supported the Bill. (see attached document)

North West:
A representative from the North West Legislature read the Mandate. The North West Legislature supported the Bill, but raised concerns regarding the shortage of social workers in the province; the lack of a period of stay for people at treatment centres, and disciplinary measures against centres who refused admission to persons in need of treatment. (see attached document)

Western Cape:
Ms Lamoela read the Mandate from the Western Cape Legislature. She stated that she could not be held accountable for this Mandate as it had annexures regarding public participation, included concerns from the public, and provincial concerns were also noted. (see document)

The Chairperson said that provinces should have worked through the concerns raised by public stakeholders and then made their  recommendations. This matter would be taken up with the provinces. The Chairperson asked if the Department wanted to make any comments about the submissions so far.

Ms Kela concurred with the views expressed by Committee Members that provinces should have concentrated on issues relevant to the Bill.

Mr Puseletso Loselo, Chief Director Legal Services: Department of Social Development asked the Committee for clarity regarding the very long table of public participation included with the  Western Cape Mandate, and whether the contents of that table would have to be dealt with. He was not sure what had come from the provincial Committee and what from the public.

The Chairperson said that it was unclear if the recommendations from the Western Cape dealt with the public hearings or contained recommendations from their Committee.

Ms Mazibuko recommended that the Chairperson write a memorandum to provinces, requesting them to work through their inputs and then make available to this Committee specific  recommendations from their respective provincial committees.

Ms Kela said that the Department had problems in understanding the Western Cape mandate, as it was difficult to distinguish between responses from the Committee and those from the public.

Mr Thetjeng reiterated that provinces had not done a good job of developing mandates, and that they should be given more time.

The Chairperson said that the Committee would liaise with the Western Cape and take up the issues with relevant provinces.

The meeting was adjourned.


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