Meeting SummaryThe Committee considered the President’s letter, dated 27 January 2009, which stated: “I have perused the Bill accordingly, however, I am concerned that clause 12 of the Bill may not survive constitutional scrutiny.” As this was a Section 75 Bill, this concern had been attended to by the National Assembly.
This Committee directed its attention to the concern noted in the letter from the President about the lack of public participation on the second revised Bill, B31D-2008, before it was passed by both Houses of Parliament.
On this point, the Legal Advisor from the Department of Trade and Industry argued that if each and every proposal and amendment had to be re-submitted to the public, the parliamentary legislative process would become too cumbersome to be practicable. The Parliamentary Legal Advisor agreed and highlighted the
The Committee agreed with the legal advisors and unanimously accepted the Bill without amendment.
The Chairperson welcomed the Chairperson of the Portfolio Committee on Trade and Industry in the National Assembly, Mr B Martin (ANC), who was present by special invitation.
He reminded the Members that the Competition Bill had a long history, having been initiated in the National Assembly (NA), having thereafter proceeded to the National Council of Provinces (NCOP), returned to the NA and then submitted to the President for signature and proclamation. It was at this stage that further representations or submissions had been made. As a consequence of which, the Bill had been referred once more to the NA and now the NCOP Committees.
The letter from the President raised concerns in submissions made to the Office of the President:
- The introduction of complex monopoly provisions in Clause 4 that were vague and in conflict with Section 1(c) of the Constitution
- The question of the reverse onus occasioned in Clause 12 that was in violation of Section 35(3) of the Constitution
- The question of (adequate) public participation.
Legal opinion concluded that only Clause 12 might not survive constitutional scrutiny.
The National Assembly, particularly with regard to the aspect of public participation or the adequacy thereof, had referred the Bill to this Committee. He particularly wished to have the opinions of the Parliamentary and State Law Advisors on the matter of public participation.
As far as public participation at the NCOP stage, he was of the view that there could be no public participation unless the stakeholders and the NCOP had raised it voluntarily. Indeed this Committee could not prevent public participation or ensure it. Usually, public participation came through written submissions addressed to the Committee on aspects of a Bill or occasionally there might be only oral submissions made by an interested party.
He placed on record that, with regard to this Bill, there had been three letters received from Webber Wentzel Bowens, all in August 2008, being one of the 22nd, another of the 26th and a third on the 28th. In addition today there was a submission from Bowman Gilfillan on behalf of Business Leadership of South Africa (BLSA) and from further discussions it was clear that Webber Wentzel represented Mastercard. Thus he found it strange that the letter from the President indicated that there might have been no public participation on the Bill. This was an unjust conclusion. For the time being, he was only addressing the public participation issue and wished to hear from the Law Advisors to controvert this opinion, if possible.
Accepting the invitation, Mr Johan Strydom, Law Advisor, DTI, stated that he thought it important to remember that this was a (Constitutional) Section 75 Bill in respect of which the National Government had exclusive competence. The National Assembly sends all Section 75 Bills to the NCOP as a matter of course. However, his response was to the letter from the President dated 27th January 2009 addressed to the Speaker, more particularly to page 2 thereof, the penultimate paragraph reading “I have perused the Bill accordingly, however, I am concerned that clause 12 of the Bill may not survive constitutional scrutiny.” This pertinently refers the Bill to the National Assembly.
He pointed out that the Bill had come before the National Assembly as B31-2008 and in that Bill there had been a substantive clause relating to “complex monopoly” conduct. The National Assembly had held initial briefings and had called for public participation. To this call there had been what he described as a “huge” response and a variety of stakeholders had made written and oral submissions. The process had taken a number of days to complete and there was testimony and opinion about what was or was not a “complex monopoly” situation. After the public hearings, the Portfolio Committee, which had held further discussions with the DTI, had attended to the Bill. Eventually the Committee had formally agreed upon some proposed amendments (B31A-2008). These amendments were incorporated into the Bill (B31B-2008) which was approved by the National Assembly and then referred to the NCOP.
He suggested that if the submissions and opinions were not consolidated at some stage but there was constant reference back to the Committee/s after each submission, Government business would never be completed for the legislative process would become bogged down in constantly repeated minutiae. He submitted that the allegation did not gainsay the constitutional requirement that there was public participation. He suggested that there be a focus on what had occurred, the factual issue of the public participation.
The B31B-2008 version reflected the amendments as a consequence of public participation. Thereafter, the B31C-2008 version reflected the amendments proposed by the NCOP Committee and this incorporated the submissions made by Webber Wentzel on behalf of their clients (including Mastercard). This submission had been made available to them all - it was a fairly lengthy letter full of legalese. The NCOP amendments had been incorporated in the Bill which was the version, B31D-2008, that was before them. B31D-2008 had been before the NA and the NCOP and their Committees on numerous occasions at which the proposals had been agreed upon.
Mr Strydom commented that if each and every proposal and amendment must be re-submitted, the parliamentary legislative process would become too cumbersome to be practicable. He pointed out that ‘complex parallel conduct’ had been defined in the very first version of the Bill. It had been the subject of much attention and had it not then the discussion on and definition of ‘complex parallel conduct’ would not have arisen. The term ‘complex parallel conduct’ was not a new issue which had crept into the Bill. In fact it had been defined in order to provide clarity in the Bill. Submissions had been received from the public, considered and where acceptable, drafted appropriately and included in the Bill, and the process was not lacking in any way.
Ms K Beja, Parliamentary Legal Advisor, said that she wanted to note a reference to the Constitutional Court judgement in the Doctors for Life case, which she conceded could be read and interpreted in several ways, but in short it did not prescribe to Parliament the method of public participation, merely that Parliament should have public participation. This could be by way of written submissions, or written and oral submissions, or solely oral submissions. Even if there had been participation from the public, such participation need not be incorporated into the Bill for it was anticipated that the vision of Parliament might well be wider than the vision of an individual stakeholder. Parliament had the right to prescribe its internal arrangements and procedures and she submitted that in the light thereof, the Webber Wentzel submission had received both acknowledgement and sufficient attention.
The Chairperson thanked the Legal Advisors and explained to the Committee that they now had the opinions of two legal teams and that there was agreement that there had been, firstly, no lack of public participation and, secondly, Clause 12 (5) of the Bill was not unconstitutional. He added that representation from the stakeholders had been very good, and was to be encouraged. However, those making representations had to be aware that not all their submissions might be accepted. If a submission or proposal met with approval it would be incorporated at the Committee stage of either the NA or the NCOP, and that thereafter any person was still free to raise an issue.
He asked the committee members if they felt that all was in order with the Bill and he received no opposing view.
He thanked the Chairperson of the Portfolio Committee on Trade and Industry, Mr Martin, for taking the time to be present at that meeting.
Mr Martin stated that he agreed with the accounts given by the Legal Advisors from the State, Parliament and the Department.
Voting on Competition Amendment Bill
On the proposal of Mr D Mkono (ANC) with the seconding by Mr D Gamede (ANC), the Competition Amendment Bill was accepted without amendments.
With the thanks of the Chairperson, the meeting then adjourned.
- Letter from President of South Africa to Speaker: Referral of Competition Amendment Bill
- Opinion by I A M Semenya SC Johannesburg Bar on Competition Amendment Bill [Part 2]
- Opinion by I A M Semenya SC Johannesburg Bar on Competition Amendment Bill [Part 1]
- Bowman Gilfillan submission on behalf of Business Leadership of South Africa
- We don't have attendance info for this committee meeting
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