Tobacco Products Control Amendment Bill: Province's final mandates, Prevention of & Treatment for Substance Abuse Bill: Department’s responses to issues raised in negotiating mandates

NCOP Health and Social Services

23 September 2008
Chairperson: Ms J Masilo (ANC, North West)
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Meeting Summary

The Committee heard mandates from provinces on the Tobacco Products Control  Amendment Bill. All provinces voted in favour of the Bill except for Kwa-Zulu Natal and the Western Cape. Kwa-Zulu Natal had not received the Bill with amendments, and therefore was not prepared to confirm its mandate until it had done so. The Western Cape had not sent a final mandate and did not make a written submission to this effect. A Member from the Western Cape tried to explain the situation but the Chairperson stated that a written mandate or explanation should have been sent. The Department of Health addressed the Committee briefly on the purpose of the Bill, and then went through some of the amendments proposed. The changes to Clause 1 were described as technical corrections of a printing error and omission, rather than an actual amendment. Amendments to Clause 2 were affected by the deletion of subclause (7) and the subsequent moving up of subclause (8).  M embers were critical of the way in which the Bill was presented, and of the fact that the mandates given at this meeting were not based on the final version of the Bill. The Committee accepted the motion of desirability, but would still go through the Bill clause by clause. The Department and the Committee discussed the regulations, and confirmed that the Department, although attending to the technical drafting, did not have power to pass regulations and that drafts were always checked for consistency with the Act by the State Law Advisers.

The Department of Social Development then briefed the Committee on the comments raised by provinces in their negotiating mandates, and the Department’s response, in respect of the Prevention of and Treatment for Substance Abuse Bill. Members stated that it was not the competence of the Department to decide on these issues, but it was clarified that the Department was merely indicating its views on the matters raised. Northern Cape’s suggestion that reference be made to the old Act could not be acceded to, as this Act had been repealed. KwaZulu Natal had suggested some further definitions, but the Portfolio Committee had already considered and had not supported similar suggestions. Issues raised around treatment centres were matters of policy. The Department said their further suggestion to insert inhalants into the definition of substances was not necessary as the definition was already broad enough to encompass them. Mpumulanga had proposed combining the new Sections 2(b) and (g) but the Department pointed out that these dealt with different issues. KwaZulu Natal’s proposal to replace the word “ensure” with “promote” in clause 4 was supported. A further suggestion to also include special needs in this clause was not supported by the Department, as the clause was intended to refer specifically to the special needs of people with disabilities, but this issue would be further discussed by the Committee. Gauteng had proposed the substitution of the word “may” with “must” in Clause 12 and Members were divided in their views whether it was desirable to force provinces to comply. They also discussed whether “in consultation” in Clause 12 should be changed to “after consultation” and once again Members agreed to discuss this issue further. The Central Drug Authority pleaded that the Committee should consider favourably KwaZulu Natal’s suggestion to include that Authority under clause 8, but a Member thought that the Authority could not be included in consultations separate from the Minister. Members discussed the meaning of “fit and proper” in Clause 53(2) but did not think it should be defined. The Department asked that Clause 12(5) be amended to reflect clearly that any organisation registering should not, by that fact alone, qualify for funding.

Meeting report

Tobacco Products Control Amendment Bill (the Bill): Final mandates from provinces
Mr R Morewane, Chief Director National Department of Health, stated that he would summarise the Bill briefly for the Committee in preparation for the legislative mandates. He stated that the intention of this Bill was to amend the Tobacco Products Control Act (the principal Act), in order to close some loopholes that had been identified as being exploited, and to address certain problems of implementation. He emphasised that the amendments would assist in aligning the existing Act with the Convention on Tobacco Control.

The Chairperson stated that there were seven final mandates from provinces, but mandates from the Free State and Gauteng were still outstanding.

Mr M Basopu (ANC Special Delegate from the Eastern Cape) read the mandate from the Eastern Cape, who voted for the adoption of the Bill, but expressed the view that the tobacco industry should at least be allowed to make commercial contact with individual consenting adults by way of advertising.

Ms F Mazibuko (ANC, Gauteng) read the mandate from Gauteng who voted in favour of the Bill.

The Special delegate from KwaZulu Natal read the mandate from the province. This Provincial Legislature noted the agreed amendments, as set out in the draft Minutes of the Select Committee dated 9 September 2008, but said that no amended Bill containing these amendments had been received for their consideration. Therefore, this legislature unanimously agreed not to confer its final voting mandate until receiving a draft of the Bill that reflected agreed amendments as presented to the Committee.

Mr M Thetjeng (DA, Limpopo) noted that his province of Limpopo had conferred a vote in favour of the Bill for Limpopo.

Mr B Tolo (ANC, Mpumalanga) noted a vote in favour of the Bill for the province of Mpumalanga.

Mr T Setona (ANC, Free State) noted that the Free State had mandated him to vote in favour of the Bill.

Mr M Sulliman (ANC, Northern Cape) noted that he too had a mandate conferring on him the right to vote in favour of the Bill. 

The Chairperson said that there was no mandate from the Western Cape.

Ms H Lamoela (DA, Western Cape) proceeded to try to explain why there was no mandate from the province.

The Chairperson refused to allow Ms Lamoela to explain why there was no mandate.

Ms Lamoela interjected and said that there were problems with two issues in the Bill, which were being dealt with by independent advocates, and she presumed that this was why the mandate had not arrived.

The Chairperson asserted that the explanation from the Western Cape was off the record because the mandate was not at the meeting.

Mr Thetjeng raised a point of order, and said that he found it unacceptable that the Chairperson did not allow a permanent delegate from the Western Cape to present issues from that province, and to explain why the mandate was not here. He said that the issue should be put on record, and the Member should be given the right to speak on behalf of her province.

The Chairperson said that the Member should have given a written explanation as to why the mandate was not presented to the Committee.

Mr Setona also said that he considered the view of the Chairperson too harsh. He agreed that the Committee should have been allowed to listen to the Member, and on the basis of her presentation then make a judgment or ruling. Mr Setona added that Ms Lamoela had said that there was a presumption regarding the status of the mandate from the Western Cape, but asked whether the Committee was supposed to make a decision based on a presumption. He agreed, however, that a formal submission should have been made in writing to the Committee, and he noted that it should be placed on record that no mandate had been submitted from the Western Cape.

Mr V Windvoel (ANC, Mpumalanga) said that it was unfortunate that the Committee was looking at an explanation why a province had not presented a mandate, instead of being able to consider their mandate. This, however, was not Ms Lamoela’s fault and it was certainly not a problem of her making. Whatever was the situation between this Committee and the Western Cape legislature should be done in a formal manner with a submission, so that it could be addressed.

Mr Thetjeng proposed that the delegate be given the opportunity to explain the position formally, as a permanent member representing the province, so that the matter could be recorded and put to rest.

Mr Tolo appealed to the Chairperson to give the Member a chance to speak.

Ms Lamoela said that when she had wanted to speak, the Chairperson had refused to afford her the opportunity. She said that the meeting should proceed.

The Chairperson said that Clauses 1 and 8 required discussion.

Mr Tolo proposed that the matter of Kwa-Zulu Natal should be discussed first as the province had not voted in favour until amendments were effected and a new draft provided. He asked the State Law Advisors to assist the Committee with this matter.

Ms Xoliswa Mdludlu, State Law Adviser, Office of the Chief State Law Adviser, said that it had been conveyed to the Committee that certain of the amendments were submitted after the Committee had adopted the amendments that were reflected in the B-version. These later amendments would be incorporated in the C-version of the Bill.

The Chairperson asked Members to discuss the clauses that reflected amendments.

Mr Setona asked for clarity on Clause 1.

Ms Mdludlu said that the amendment in Clause 1 was not really an amendment, but a correction due to a printing error, which had resulted in the omission of a required paragraph in the B-version of the Bill. This paragraph now explained the matter and was suggesting that what was originally reflected must be corrected by the addition, which was in the B-version.

Mr Mukesh Vassen, Parliamentary Law Adviser, clarified the difference between an amendment and a correction. He said that the National Assembly had not passed something that was not in this Bill. It was merely a typing error and not an actual omission.

Ms Mdudlu referred to Clause 2(8) in the B-version of the Bill, and said that the clauses for amendment needed to be explained. The Portfolio Committee had made an amendment to delete subclause (7) of Clause 2. This then necessitated a renumbering, so the reflection now of subclause (8) was incorrect; and the proposed amendment was essentially corrected the numbering to make it clear which clause was being amended. 

Mr Vassen, asked for clarity whether the National Assembly had passed the Bill in that form. If so, then there could not be a correction at Committee level, but would need to be a formal amendment.

Ms Mdudlu said that anything that was proposed by the Committee took the form of an amendment.

Mr Tolo asked if the Bill came from the National Assembly, and if provinces had had the opportunity to raise issues of concern to them.

Mr Sulliman said that provinces had had the opportunity to send final mandates.

Mr Setona said that the Committee should not be expected to deal with this kind of a mess. He said that he did not agree with issue of a printing problem and that the persons responsible for this should sort it out, as this practice was unacceptable.

Mr Sulliman stated that the final version of the Bill should be communicated to provinces as soon as was possible, as the mandates at this meeting were not based on the final version of the Bill.

The Chairperson asked the Secretary of the Committee to explain the situation.

The Committee Secretary said the Committee was already in possession of the B-version of the Bill.

The Chairperson read the Motion of Desirability. 

The Chairperson said that the meeting would go through the Bill clause by clause to check for agreement on all amended clauses.

Mr Tolo noted that the House was agreeing to the amendments so that they would be included in the C-version of the Bill.

Mr Setona noted that, for purposes of integrity in Parliament, ‘any notice or regulation issued by the Minister prior to the coming into operation of this Act remains in force until amended, repealed or replaced’. He said that the notices or regulations were done in terms of the Principal Act, and he would like to have an assurance how far the drafting of regulations had gone, and that they would be consistent with that Act.

Ms MK (Nthari) Matsau, Deputy Director-General, Department of Health, reassured the members that whilst technically the Department did draft regulations, the Department had no legal authority to pass them. After attending to the drafting, the Department would then embark on the process with the State Law Advisers, to check that the regulations were in compliance with the principal Act. It was not possible to pass regulations that were inconsistent with the principal Act. Regulations could also not make amendments to the principal Act.

The Chairperson read the Report.

The Committee concluded its deliberations on the Bill for this session.

Prevention of and Treatment for Substance Abuse Bill: Further Deliberations on the negotiating mandates
Mr Pusoletso Loselo, Chief Director: Legal Services: National Department of Social Development, stated that the purpose of the Prevention of and Treatment for Substance Abuse Bill (the Bill) was to provide a comprehensive national response to drug abuse problems in the country, and to provide for treatment and skills development for substance abuse. Mr Loselo said he would confine himself to the suggestions made by provinces for amendments to the Bill.

The Chairperson stated that a page by page approach to the document submitted by the Department would be used, to allow for Members to respond directly to the matters raised.

Mr Loselo said that the Northern Cape suggested that reference should be made to the old Act in the long title of the document. The Department asserted that this could not be done as the old Act had been repealed, but the matter was adequately covered in Clause 66 of the Bill.

Kwa-Zulu Natal had requested definitions for ‘early intervention’, ‘harm reduction’ and ‘harm prevention’. This had not been supported by the Portfolio Committee, as Clause 10(4) set out clearly what constituted early intervention and Clause 3(1)(b) described ‘harm reduction’. Mr Loselo stated further that Kwa-Zulu Natal also proposed that a definition of ‘detoxification’ should be inserted.

Ms F Mazibuko (ANC, Gauteng) noted a concern regarding the content of the document. She said that the Department had indicated next to the issues that some responses were “not supported” and others were noted as “supported”. She pointed out that it was not for the Department to tell the Committee what it should support or not support; it was up to the Committee to make legislation, and therefore to decide what should be supported or not supported.

The Chairperson stated that the document merely was stating what the Department’s response was to recommendations made by provinces.

Mr Setona said that he was not sure how this augured for power relations, as he agreed that Parliament were the law makers, and it was the task of the Department to merely clarify legal aspects of the responses by provinces. This Committee had to support or not support recommendations made by provinces.

Ms J Vilakazi (IFP, KwaZulu Natal ) supported Mr Setona’s view.

Mr Thetjeng stated that he had interpreted this document as an indication of the Department’s views and reflections on what they found.

Mr Malusi Ncolo, Senior State Law Advisor, Office of the Chief State Law Adviser, noted that when the drafters were doing the briefing, they fully acknowledged that Parliament had the final word, but set out the document in this way to show what their position and recommendations on the matter were. He said, however, that this document was not prepared by the State Law Advisors.

Mr Loselo said that there was a need to advise this Committee of what the Portfolio Committee had agreed upon, and it became difficult if this could not be indicated clearly. The position of the Portfolio Committee in regard to treatment centres was that detoxification must comply with the provisions of the National Health Act, as the Bill did not regulate health-related services, and therefore should not deal with matters such as this.

The Chairperson asked the State Law Advisers if they wanted to comment on the inputs.

Mr Mukesh Vassen said that the issues around treatment centres were policy matters and that he could not comment on them.

Mr Loselo continued to comment on the mandates. He said that KwaZulu Natal proposed that inhalants should be inserted into the definition of ‘substances’,. The Department did not support this as it considered that the definition of ‘substances’ was broad enough to make provision for all types of substances, and that it already thus included inhalants.

Mpumalanga had proposed that the new Sections 2(b) and (g) should be combined. In response to this he indicated that the Department did not believe that these had the same meaning, as 2(b) referred to programmes and services, and 2(g) referred to facilities, and that there was therefore no sense in combining them.

Mr Loselo stated that Kwa-Zulu Natal proposed that in Clause 4(b) the word “ensure” should be replaced with “promote”. The Department supported the use of the word “promote”.

KwaZulu Natal had further proposed, for Clause 4, the insertion of “recognises the special needs of…for people with disabilities… and those with special needs”. This was not supported by the Department as the clause referred specifically to the special needs of people with disabilities, and all other categories of people were covered elsewhere in the Bill.

Mr Setona commented on the distinction made in Clause 4(g) between people with disabilities and people with special needs. He said that his understanding was that there was a vast difference between people with disabilities and those with special needs. Persons suffering from chronic diseases were not “disabled” and there were variations, which determined references. He asked why the Department was conflating the two concepts, as persons might have special needs and yet not be classed as having disabilities.

Mr Sulliman asked if this issue could be flagged for the moment, and if the Committee could continue to work with points that had been agreed upon.

Mr Tolo asked what the intention of this clause was.

Mr David Bayer, Deputy Chairperson, Central Drug Authority, said that this Clause was talking to the environment in which the special services were issued. That environment made reference to persons with  special needs, and persons with disabilities. The distinction had nothing to do with any other medical concerns that were dealt with in the Bill.

Mr M Kalaemodimo, Director: National Department of Social Development, stated that the Department was attempting to place a special emphasis on people with disabilities.

Mr Loselo said that Mpumalanga had proposed the inclusion of related illness such as cirrhosis of the liver and other pathologies such as family violence and sexual abuse. The Portfolio Committee had asserted that the Bill could not list all the illnesses.

Mr Loselo continued with the comments on the provincial mandates. Gauteng had proposed that the word ‘may’ should be replaced with the word ‘must’ in the Clauses 12(3) and (4). This proposal was supported, and furthermore the insertion of “listed in sub-section 4” would be inserted after the word departments.

Mr Tolo said that the Committee was not sure if they wanted provinces to do what was stated in this new Clause, as some provinces might have their own strategies and the Committee would not want to force them to comply.

Mr Setona said that this proposal seemed to be based on an assumption that South Africa was homogeneous, and he said that the role that cultural factors played should be considered. The necessity for an MEC to adapt the National Drug Master Plan (NDMP) should be assessed. He saw the proposed insertion of the word “must” as problematic, because flexibility was needed in cases where provinces could not comply fully with the NDMP.

Mr Thetjeng asserted his support for the word “must”, to ensure that provinces would be obliged to implement the national strategy as outlined in Clause 15(1) .

Mr Setona asked for clarity regarding the phrase ‘must in consultation with’ because experience had shown that the capacity of the State to deliver was often undermined.

Mr Loselo said that during deliberations with the Portfolio Committee it was stated that if ‘may’ was replaced with ‘must’ in Clause 12(3), then it should also be changed in Clause12(4) as to ensure uniformity.

Mr Loselo said that “in consultation with” meant that there had to be agreement,  as the law required agreement before a strategy could be developed. He added that “after consultation” meant that the parties had to be consulted, but that there did not have to be agreement reached.

Mr Tolo proposed that Clause 12(3) should be left as it was, to allow provinces to proceed with issues over and above the agreement.

Mr Thetjeng proposed that the words “after consultation” be used so as not to compromise implementation, for instance in the case of Sports and Recreation, where substance abuse could occur. A mechanism was needed to compel provinces to perform so better wording was required to cater for situations where funding was needed.

The Chairperson said that this issue would be taken further in the Committee.

Mr Ncolo voiced his agreement with Mr Tolo. He did not think it would make much difference whether “may” or “must” was used. He supported that the clause be left as presently worded. 

Mr Vassen concurred that the word “may” should be kept in the Bill.

Mr Bayer drew attention to the recommendation from KwaZulu Natal for Clause 8(1), asking that the Central Drug Authority be included. He appealed to Members to give this serious consideration, and said that the powers and duties of the CDA should be included to give support to the powers and duties of the Authority under Clauses 56(f) and (i).

Mr Thetjeng said that the CDA could not be included in consultation, because the CDA was  an advisory body to the Minister, and therefore by implication automatically included already.

Mr Loselo said that Gauteng, in respect of Clause 53(2), had asked for clarity with regard to what constituted a “fit and proper person”. The Department had recommended that the Minister should prescribe what this constituted.

Mr Setona proposed that the State Law Advisors answer this question. He suggested that there should be a standard definition because all government departments used such a term.  

Mr Vassen responded that the word “fit” related to the moral character of the person, and “proper” meant having the proper technical competence to fulfil the requirements of the task.

Mr Hennie Kleynhans, Legal Services: Department of Social Development, said that it was not advisable to define a fit and proper person, as Ministers might disagree amongst themselves as to what precisely it meant in different circumstances.

Ms Nomathembu Kela, Chief Director, Department of Social Development, referred to Clause 12(5), and said there was an omission on the part of the Department, as the Department could not be committed to funding any organisation registered with it. This lay in the discretion of the Department and all services should be registered. There were some who did not need funding, and the current wording could imply that if an organisation was registered it would automatically qualify for funding. Ms Kela said that her colleague had a proposal to correct this clause.

Mr Thetjeng proposed that using the word “may” before “qualify” could solve the problem.

Mr Ncolo agreed with this suggestion.

The Chairperson stated that the final version of the Bill would be sent to all provinces, and the next meeting would be held on 21 October 2008.

The meeting was adjourned.

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