Finalisation of Marketing of Agricultural Products Amendment Bill [B26-2001]

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AGRICULTURE AND LAND AFFAIRS PORTFOLIO COMMITTEE
31 August 2001
FINALISATION OF MARKETING OF AGRICULTURAL PRODUCTS AMENDMENT BILL [B 26-2001]

Chairperson: Adv S P Holomisa

Documents handed out
Additional Amendments to Marketing of Agricultural Products Act: Simplified Version (See Appendix)
Marketing of Agricultural Products Amendment Bill [B26 – 2001]

SUMMARY
The Bill was unanimously passed with amendments.

Appendix
EXPLANATORY MEMORANDUM TO ADDITIONAL AMENDMENTS OF
MARKETING OF AGRICULTURAL PRODUCTS AMENDMENT BILL
[B26-2001]

CLAUSES 1,2 AND 3
(Clause 2 of the Bill)
(Section 4 of the MAP Act)
This amendment is effected to introduce the requirements that members of the National Agricultural Marketing Council have to conform to in order to be eligible for appointment to the Council and to bring this Act in line with the amendment of the Agricultural Research Act, 1990 for the sake of uniformity.

CLAUSE 4
(Clause 4 of the Bill)
(Section 8 of the MAP Act)
The national Department of Agriculture inserted clauses 4 and 5 into the amendment Bill to amend sections 8 and 8A of the Marketing of Agricultural Products Act, 1996 in order to bring the last mentioned Act line with the Public Finance Management Act, 1999. The Department of Finances however objected to the amendment of section 8 of the MAP Act. The concurrence of the Minister of Finance is still required for approval of the system in accordance with which the employees of the Council are paid remuneration, allowances, subsidies and other benefits. In terms of the PFM Act, concurrence of the Minister of Finance is no longer required for the approval of the Council's budget or supplementary budgets in terms of section 8A.

CLAUSE 5
(Clause 10 of the Bill)
(Section 15 of the MAP Act)
Section 188 of the Constitution deals with the functions of the Auditor-General. Section 188(2) of the Constitution determines as follows:
"In addition to the duties prescribed in subsection (1), and subject to any legislation, the Auditor-General may audit and report on the accounts, financial systems and financial management of-
(a)…
(b) any institution that is authorised in terms of any law to receive money for a public  purpose."
In terms of this provision the Auditor-General may therefore audit and report on the accounts of any institution or body of persons that collect levies under the MAP Act as that would constitute receiving money for a public purpose as contemplated in section 188(2) of the Constitution. A legal opinion obtained by the Office of the Auditor-General however indicated that the amendment of section 15 of the MAP Act might affect the Auditor-General's powers under section 188(2) of the Constitution as section 188(2) is made "subject to any legislation". It was never the intention of the national Department of Agriculture to diminish any of the Auditor-General's constitutional powers by means of this amendment. To clarify the matter beyond any doubt the Department is therefore proposing an amendment to clause 10 to ensure that the amendment of section 15 does not affect the Auditor-General's constitutional powers.

CLAUSE 6
(Clause 11 of the Bill)
(Section 22 of the MAP Act)
Members of the deciduous fruit industry expressed concern with regard to the proposed amendment of to the Portfolio Committee for Agriculture and Land Affairs through Gaby Gess Attorneys. It appears that the crux of the concern is the possibility that directly affected groups may not be properly consulted before the Minister imposes a prohibition under section 22 of the Act. To address this concern, a compulsory consultation procedure similar to the consultation procedure described under section 11 of the Act (with regard to statutory measures and levies) is introduced in the MAP Act.

MARKETING OF AGRICULTURAL PRODUCTS AMENDMENT BILL
[B26-2001]
CLAUSE I
1.         On page 2, in line 12, after "other" to insert "appropriate"

CLAUSE 2
2.         On page 2, in line 8, after "amended" to insert "- (a)".

CLAUSE 3
3.         On page 3, after line 13, to add "; and".
4.         On page 3, after line 13, to add the following paragraph:
(b)        by the addition of the following subsections:
"(13)     A person may not be nominated or appointed as a member of the Council if such person-
(a)        Is not a South African citizen or permanently resident in the
            Republic;
(b)        is an unrehabilitated insolvent in respect of whom the trustee
            of the insolvent estate has not certified that the insolvent is a
            fit and proper person to serve as a member of the council;
(c)        has failed or is unable to comply in full with a judgement or
            order, including an order as to costs, given against such
            person by a court of law in civil proceedings;
(d)        Has been convicted of an offence involving an element of
dishonesty or has been sentenced for any other offence
committed on or after 27 April 1994 to a period of
imprisonment without the option of a fine;
(e)        is of unsound mind; or
(f)         has contravened section 7 of the Promotion of Equality and
Prevention of Unfair Discrimination Act, 2000 (Act No.4 of
2000), and it has been so determined by an equality court.

(14)       A member of the Council shall vacate his or her office if that member-
(a)        is declared insolvent or surrenders his or her estate
            voluntarily;
(b)        is found guilty of an offence and sentenced to a period of
            imprisonment without the option of a fine;
(c)        resigns as a member
(d)        is nominated as a candidate for election as a member of
            Parliament, a Provincial House of Traditional Leaders, the
            National  House of Traditional  Leaders,  a  provincial
            legislature or the council or other governing body of a local
            government body or is appointed as an official of a political
            party and whose functions as such are incompatible with the
            functions of a member;
(e)        is removed from office under subsection (15); or
(f)         has contravened section 7 of the Promotion of Equality and
            Prevention of Unfair Discrimination Act, 2000 (Act No.4 of
            2000), and it has been so determined by an equality court.

(15)       The Minister may at any time remove a member of the Council from office if such member is incompetent to fulfil his or her duties or is guilty of misconduct.".

CLAUSE 4
5.         On page 3, to delete clause 4.

CLAUSE 5
6.         On page 4, in line 14, to substitute "subsection" for "subsections".
7.         On page 4, after line 24, to add the following subsection:
"(6)  The provisions of subsection (5) will not affect any powers of the Auditor-General under section 188 of the Constitution of the Republic of South-Africa Act, 1996 (Act No.108 of 1996)."

CLAUSE 6
8.         On page 4, in line 28, after "22." to insert “(1)”.
9.         On page 4, after line 34, to add the following subsection:
"(2)       Before the Minister impose a prohibition contemplated  in subsection (1), the Council shall-
(a)        publish a notice setting out particulars of the prohibition and an explanation in connection therewith in the Gazette and such magazines and newspapers as may be sufficient in order to bring the request to the attention of directly affected groups, and inviting such directly affected groups to lodge any objections or representations relating to the request within a specified time;
(b)        if necessary, appoint a committee in terms of section 7, which shall consider such objections or representations and advise the Council
;
(c)        consider the options and representations from, and level of support among, directly affected groups, and the advice of the committee, if applicable; and
(d)        report on its findings and make a recommendation to the Minister within 60 days or such longer period as may be approved by the Minister.".


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