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.
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.
Mr D Mkono (ANC;
Ms F Mazibuko (ANC;
Ms Mazibuko presented the negotiating mandate for
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
Ms N Madlala-Magubane (ANC;
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.
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.
Ms H Lamoela (DA;
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
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
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
Mr Mseleku then responded to
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
Mr Mseleku responded to the
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
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.
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.
A representative from the Eastern Cape Legislature briefed the Committee on the response. The Legislature supported the Bill without further amendments. (see attached document)
Ms F Mazibuko (ANC,
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
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,
However, she noted that the Committee in
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.
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)
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)
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
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
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
The meeting was adjourned.
- Tobacco Products Control Amendment Bill: Negotiating mandates & Departmental responses [Part 1]
- Consideration of Negotiating Mandates on Tobacco Products Control Amendment Bill;Prevention of &Treatment for Substance [Part 2]
- Prevention of & Treatment for Substance Abuse Bill: Negotiating Mandates [Part 3]
- Consideration of Negotiating Mandates on Tobacco Products Control Amendment Bill;Prevention of &Treatment for Substance [Part 3]
- Tobacco Products Control Amendment Bill: Negotiating mandates & Departmental responses [Part 2]
- Negotiating mandates on Prevention of & Treatment for Substance Abuse Bill:Western Cape
- Negotiating mandates on Prevention of & Treatment for Substance Abuse Bill:North West
- Negotiating mandates on Prevention of & Treatment for Substance Abuse Bill:Northern Cape
- Negotiating mandates on Prevention of & Treatment for Substance Abuse Bill:Mpumalanga
- Negotiating mandates on Prevention of & Treatment for Substance Abuse Bill:Limpopo
- Negotiating mandates on Prevention of & Treatment for Substance Abuse Bill:Kwazulu Natal
- Negotiating mandates on Prevention of & Treatment for Substance Abuse Bill:Gauteng
- Negotiating mandates on Prevention of & Treatment for Substance Abuse Bill:Free State
- Negotiating mandates on Prevention of & Treatment for Substance Abuse Bill:Eastern Cape
- Negotiating Mandates on Tobacco Products Control Amd Bill:North-West
- Negotiating Mandates on Tobacco Products Control Amd Bill:Northern Cape
- Negotiating Mandates on Tobacco Products Control Amd Bill:Mpumalanga
- Negotiating Mandates on Tobacco Products Control AmdBill:Limpopo
- Negotiating Mandates on Tobacco Products Control Amd Bill:Kwazulu-Natal
- Negotiating Mandates on Tobacco Products Control Amd Bill:Gauteng
- Negotiating Mandates on Tobacco Products Control Amd Bill:Eastern Cape
- Department of Health responses to the provinces
- We don't have attendance info for this committee meeting
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