Hansard: NA: Unrevised Hansard
House: National Assembly
Date of Meeting: 29 Feb 2024
Summary
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Minutes
UNREVISED HANSARD
NATIONAL ASSEMBLY
THURSDAY, 29 FEBRUARY 2024
PROCEEDINGS OF HYBRID NATIONAL ASSEMBLY
Watch video here: Plenary
The House met at 14:00.
House Chairperson Mr M L D Ntombela took the Chair and requested members to observe a moment of silence for prayer or meditation.
CONSIDERATION OF APPROVAL OF MINISTER’S RECOMMENDATION FOR APPOINTMENT OF CANDIDATE ON COUNCIL OF INDEPENDENT COMMUNICATIONS AUTHORITY OF SOUTH AFRICA (ICASA) IN TERMS OF SECTION 5(1B) (A) OF INDEPENDENT COMMUNICATIONS AUTHORITY OF SOUTH AFRICA ACT, 2000
Mr B M MANELI: Hon House Chairperson, hon Ministers and Deputy Ministers, hon members, committee support staff, fellow South Africans. The Committee on Communications and Digital Technologies presented their report to this august House, why it recommended that the House consider Mr Mothibi Ramusi or Mr
Martinez Dimitri as candidates to serve in the Independent Communications Authority of SA, ICASA Council, in line with the provisions of the ICASA Act, Act 13 of 2000. That was to fill a vacancy created by the resignation of the council member. The report was presented, debated, and unanimously adopted by this House on the 31st of October 2023.
Hon House Chairperson, the Committee on Communications and Digital Technologies, having considered the letter of the Minister of Communications and Digital Technologies, recommended the appointment of Mr Mothibi Ramusi in terms of section 5 of the ICASA Act of 2000, referred to it by the of the National Assembly for consideration and report, now reports as follows:
A letter was received from the Minister of Communications and Digital Technologies, informing the National Assembly that after analysing the current skill set of the council alongside the qualification and experiences of the recommended candidates. He recommended, Mr Mothibi Ramusi for appointment as the ... [Inaudible.] ... requirement of section 5(1) capital letter B paragraph A of the ICASA Act of 2000.
On the 6th of February 2024, the committee met to consider and deliberate on the Minister’s letter and resolved to support the recommendations of the Minister to appoint Mr Mothibi Ramusi as a councillor of the ICASA in terms of the ICASA Act.
The ICASA an important regulatory role in the broadcasting, Information Communication and Technology, ICT, and postal services data.
Furthermore, with the coming 29 May 2024 national and provincial elections, the ICASA is tasked to enforce election related regulations. Therefore, its stability at council level cannot be overemphasized.
We plead to the Minister to move with speed in making this a reality, as provided for in the act to once the National Assembly has considered this report positively so.
This report is therefore presented House Chair, for the information, and approval of the House. I thank you, House Chair.
Declaration(s) of vote:
Ms N W A MAZZONE: House Chairperson, Members of Parliament and to the members of the committee online. It is indeed true that the parliamentary Portfolio Committee on Communications and Digital Technologies went through a rigorous process of choosing candidates and short listing the candidates for the vacancy in the Independent Communications Authority of SA, ICASA’s Board.
House Chairperson, one of the most important things that we have to understand is that Judge Raymond Zondo made it very clear, our job as Members of Parliament, MPs, is to hold the executive to account and to hold all entities that answer to Parliament to account. Because that is the way we stop any abnormalities and any maleficence, happening within our entities within our structures, within our government.
So, it is terribly important that when you make an appointment to a board like ICASA, you take the time and you take the necessary invigoration if I can use the word, to make sure that you interrogate each one of those curricula vitae, CVs as deeply as you possibly can.
So, House Chairperson, I’m very pleased to say that we found this to be a supremely uplifting round of interviews. We found candidates to really be patriots who had put their names forward.
And House Chair, why I mentioned this while in support of the candidate who is going to be nominated. I say this because it is indisputable that ICASA holds an immense amount of power, especially now. Five, what I mean 90 days, 95 days before the elections. Election regulations that deem the way we advertise, that deem the way we make ourselves known to the public, be it an independent candidate or a party, is now regulated by ICASA.
House Chair, I’m going to say something now and I can already hear the hackling. The Board of ICASA was one of the boards mentioned quite severely in the cadre deployment documents that we received. So, we as Members of Parliament have to stamp our foot down and say we will no longer turn a blind eye. We will keep a hawk’s eye. On these institutions that look after our democracy and look after fair and open transparent elections.
So, we wish the nominee great success. We wish him our strength. We tell him you have the support of our committee. Yes, it’s known he wasn’t the day's first choice, but he absolutely was in our top three of candidates going forward. But we send a very strong message to the board of ICASA. Now, we cannot sit around anymore ... [Interjection.]
Dr M M GONDWE: And I’ve not even rested the way I’m so tired.
Ms N W A MAZZONE: ... I’m very sorry to hear that you’re so tired, Dr Gondwe, but I’m sure my speech will uplift you a little bit. You see, I got a laugh out of a few of the hacklers there, which is it’s always a good thing.
But this is the time House Chair, that we truly act as South Africans. We see what was wrong in the past. We look at the way we can correct things in the future and the fact of the matter is this, we have the entire six series of the Zondo Commission report to use as our guidance. You don’t even have to make things up as we go along or, you know, think of the ways that we need to do things. The Chief Justice of our Constitutional Court has set down instructions for us. They are there. All we have to do is follow those instructions.
So, I cannot speak for any other party thankfully so, I speak on behalf of my party. And I can tell you that we will be adhering to every single word that Judge Zondo has instructed us to do, and we will be keeping a very close eye on ICASA and the way the entity operates and that it operates in a transparent, clear, and open fashion.
And that all the board members and commissioners act within the best interests of South Africans, especially in the lead up to the 2024 election. House Chairperson, we support the nomination. Thank you.
Mr M MANYI: House Chairperson, the EFF supports the recommendation of Mr Mothibi Ramusi to fill the vacancy on the Independent Communications Authority of SA, ICASA Council. Mr Mothibi Ramusi had a successful and informative interview.
Where there was an exhibition of his vast experience in the Information Communications and Technology, ICT, sector including forming part of the formation of the forums and structures that monitor and regulate the telecommunications sector.
As things stand, ICASA is a critical regulator of the telecommunications and postal sector in South Africa, including the broadcasting space. There remains a need in South Africa for strong a regulation of private sector industries in protection of the public broadcaster and its outlets, as well as South African consumers.
As part of the ICASA Council, Mr Mothibi must make a meaningful contribution in reversing the monopoly of the private broadcasters such as MultiChoice in the acquisition of sporting rights for national, continental, and international events.
There must be a protection by ICASA of local content, particularly that which is produced by the public broadcaster, and this must include remuneration for legacy content that is bought privately and reused on different platforms. The EFF welcomes the report. Thank you, House Chairperson.
Ms M D HLENGWA: Hon House Chair, hon members, let me take this opportunity to say the IFP accept this report. The Independent Communications Authority of South Africa act as a watchdog of the telecommunications, broadcasting and post industry. The
authorities mandated to receive complain from the public about service providers by telecommunications, broadcasting and postal licenses. And therefore, need council members who possess the qualities of transparency, honest and accountability.
Far too often, we have to clean-up messes that have been made by individuals who lack this quality across governmental departments and entities. As a country, we have also learned some very costly lesson from individuals who act as proponents of fraud and corruption as they occupy very crucial positions.
Following this incident, we often find ourselves wondering how these individuals were even appointed of these positions in the first place.
It is going this mile, hon Chairperson, that the Portfolio Committee on Communications followed by the standard and respected, transparent process as we thought to fill the vacancy of the Council of Independent Communications Authority of South Africa. The principles of meritocracy are something the IFP hold that are dearly and saw the committee as we
unanimously shortlisted candidates best suited for the position.
As per the committee report on 13 October 2023, Mr Mothibi Ramusi were one of the two candidates recommended for appointed by the committee to the Minister following another round of interviews.
It is safe to say that, as a committee, we went above and beyond to do our duty diligence and thoroughly interview on all candidates until we reach only two. The IFP accept the report Thank you.
Mr S N SWART: House Chair, the ACDP support the report. Thank you.
Mr A M SHAIK EMAM: Chairperson, the NFP will support the report tabled here today. Having peruse through the report, we are quite satisfied that the department has done everything necessary in terms of shortlisting. And it is clear that those who were shortlisted appears to be in line with the requirements and we identified that some of the suitable
shortlisted candidates some which we identified Mr Mothibi Ramusi.
At the same time, Chairperson, we want to say that this particular department has 30 significant responsibilities in the communications in South Africa, which were to a very large extent appears to be monopolised particularly in the main stream communication sector in the country.
And we will call upon this particular department or the structure to ensure that this monopoly that exist particularly in institution in South Africa must come to an end.
Very important, you will find larger or greater abuse during the time of elections where some parties are preferred over others and whilst measures have been put in place based on the amount of time allocated to political parties. More often we find that it is not adhered to.
So, whilst we support, we call on the Independent Communications Authority of South Africa, Icasa, to play a greater role in ensuring that the media and communication
sector is monitored and that those that are violating are brought to book.
Lastly, before I support this, Chairperson, I want to draw the attention of this House that 81 people have just been massacred in Palestine waiting for food aid. They were just waiting in queues to receive this and they were massacred with over 700 of them in that queue having been wounded. The NFP will support this report. Thank you.
Mr S M JAFTA: Chair, the AIC support the candidature of Mr Ramusi to serve in the Council, Chair. Thanks very much.
Mr L E MOLALA: Hon House Chair, it is with a heavy heart that we take this platform as the Portfolio Committee on Communications and Digital Technologies. Moreover, as the ANC, we have enjoyed a great loss. We loss the member of the Committee, hon Alice Mthembu, on 26 December 2023 and went on to lose Bongani Mabuza, who was the PLO to the Minister on 21 February 2024. Both of these comrades dedicated their life to serving the people of this country and throughout their political life embodied the principles of the ANC, which envisages a United, Democratic, nonracial, nonsexist South
Africa. May the lord provide strength and healing to their families and loved ones at this difficult times. Our heartfelt condolences also go out to the families and comrades who lost their lives to a tragic bus accident when they were travelling from Limpopo on January 8th Statement festivity in Mpumalanga and those who again lost their lives while traveling from the manifesto launched in Durban last weekend. The organisation is shattered by this loses and wish those still in hospital a speedy recovery.
I am reminded of the famous word of Solomon Kalushi Mahlangu when he said, I quote: “My blood will nourish the tree that will bear the frits of freedom. Tell my people that I love them. They must continue to fight”.
As we mark 30 years into our young democracy, may your blood nourish the tree that will bear fruits of greater and brighter South Africa under the leadership of the ANC. Indeed, the fight for a better life continues.
Hon members, we meet today to consider the approval of the Minister’s recommendation for appointment of Mr Mothibi Ramusi into the Council of Independent Communications Authority of
South Africa in terms of section 5(1B)(a) of Independent Communications of South Africa Act, 2000. Icasa played a pivotal role in regulating the Telecommunications Broadcasting and Postal Industry in the public interest and ensuring affordable services of a high quality of all South Africans.
Throughout this term, we have seen good work done by the Council in regulating the industry working hand in hand with the Competition Commission. This work has gone a long way in ensuring that the prices of data are reduced and that the long awaited demand spectrum is finally auctioned thereby contributing R14 billion to the national fiscus.
We look forward to the economic contribution of the second round spectrum auctioning to the fiscus and we are of the believe that it will help immensely to fast track government development programmes that will benefit the broader society.
As we have been calling for transformation in this space, we want to believe that the Council heard our cry and will now also considers smaller players like SMMEs so that they too are able to place their bits.
Spectrum assignments must be informed by the need to transform the ownership and control in the sector to include wider participation especially for blacks, women, youth and people with disabilities. The use of spectrum should extend beyond exclusive holding by electronic communication licence. To this extend, consideration should include the use of spectrum by education, health, manufacturing, agriculture and new industry, just to mention a few.
Hon members, while we note changes and reduction in the data cost, we believe that more can still be done working with the Competition Commission and Telepost. South Africa want to see further reduction in data prices and more government subsidy sites for educational purpose. Equally, we also look forward to having more spectrum Fee Up to support DTT in the creation of more channels, which will in turn allow more competing content and creation of more jobs in the art and creative sectors. These are just a few areas that we are trusting Mr Ramusi to contribute towards and help fast track. We are confident that with his experience and skills set he is going to be compatible with the team and help the work of the Council.
And maybe, lastly, hon House Chair, I must also appreciate that all the parties in our committee are agree and I don’t know if I to term this a collective deployment because in this instance everybody agrees to Ramusi. So, we appreciate the collective deployment that we have done. I hope we will not go to court again because this time we have deployed quality. I thank you.
Question put: That the recommendation of Mr Mothibi Ramusi for appointment to the Council of Independent Communications Authority of South Africa (ICASA) be approved.
Recommendation of Mr Mothibi Ramusi for appointment to the Council of Independent Communications Authority of South Africa (ICASA) accordingly approved in accordance with section 5(1B) of the Independent Communications Authority of South Africa Act, 2000 (Act No 13 of 2000).
COPYRIGHT AMENDMENT BILL
(Consideration of Bill and of Report thereon)
Ms J HERMANS: Thank you, House Chair. The Copyright Amendment Bill seeks to modernise the Copyright Act 98 of 1978. Given technological changes to rebalance rights between copyright authors and owners, to formalise the collective management of rights and to promote a fairer balance between the commercial rights of copyright owners and the right to access works by users, particularly creating new exceptions to allow the making of accessible formats of copyright protected works for persons with disabilities.
In the absence of these amendments, many works available on or in digital format is currently not protected or adequately protected by a South African copyright law, which leaves copyright owners open to exploitation without recourse.
Furthermore, it seeks to domesticate copyright international treaties, namely: The World Intellectual Property Organisation Copyright Treaty, Wipo Copyright Treaty; the Beijing Treaty on Audiovisual Performances; and the Marrakesh Treaty to facilitate access to publish works for persons who are blind, visually impaired or otherwise print disabled, to enable South Africa to accede to these.
The Copyright Amendment Bill also introduces the artist resale rights, which allow artists to earn a portion of the value of the ongoing commercial value of their art for a permissible period of time. This allows them to benefit from any accrual in the value of their works as art often becomes more valuable as the author’s reputation grows over their lifetime, and for
50 years after their death.
The Copyright Amendment Bill was introduced to Parliament in 2017. The Bill had been approved by both Houses and sent to the President for accent in 2019. However, the President referred the Bill back to the National Assembly in June 2020 with the reservations on the constitutionality of the Bill, in that it, “May not pass constitutional muster and may therefore be vulnerable to constitutional challenges.”
The Copyright Amendment Bill was adopted by the National Assembly on 31 August 2022, after resolving the President’s reservations. It was then referred to the National Council of Provinces to be considered as a section 76 Bill. On 26 September 2023, the National Council of Provinces passed the Copyright Amendment Ball and returned it to the National Assembly for concurrence. The Bill was subsequently referred
to the Portfolio Committee on Trade, Industry and Competition for consideration and report.
On 6 February 2024, the committee received a briefing from the department and Parliament’s Constitutional and Legal Services Office, respectively, on the amendments made by the National Council of Provinces. These amendments include the following: Adding equitable remuneration as an alternative to a share in royalties received by copyright ... [Interjections.] ... clarifying that the ... [Inaudible.] [Interjections.] ... was granted to the Minister in clause 35, to prescribe matters to be included in agreements, to not extend to matters that would limit contractual freedom.
In this regard, the word ‘standard elements’ is used instead of ‘compulsory and standard terms’, and the phrase, “To ensure the rights or protection afforded by this Act...”, are duly provided for. These are included to stress that the elements relate to the protection of vulnerable parties and is not intended to limit contractual freedom. This inclusion is to provide assurance to parties that the Bill does not intend to reduce contractual freedom between authors and copyright owner.
On 14 February 2024, the committee adopted the Bill and its report. However, there was no consensus, as it is captured in the report. The Portfolio Committee on Trade, Industry and Competition, therefore, recommends that the House adopts this report and that report be sent to the President for ... [Time expired.] Thank you.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon members, on the visual platform, please be careful of your gadgets. Take good care of your gadgets there. Watch and be on the alert. I now recognise the hon the Chief Whip of the Majority Party.
The CHIEF WHIP OF THE MAJORITY PARTY: Thank you very much, House Chair. I move that the Bill be adopted as amended and be passed. Thank you.
Declarations of vote:
Mr D W MACPHERSON: Thank you, House Chairperson, I want to confirm that my gadget is adequately protected and well taken care of. Let me say, Chair, that the Bill before us today is a complete disaster and has been a disaster from day one. It has been a Bill that has been years in the making and the governing party has had every opportunity to withdraw it and
fix it. Yet, they have continued with this approach of arrogance and belief that that they can fix the Bill and make it better.
The Bill will empower the Minister, amongst other things, to prescribe the standard element for agreement to be entered into in terms of new legislation. This replaces the much- criticised compulsory and standard terms wording in the earlier version. This power is unprecedented for any Minister in the democratic government. We are not told what will happen if a contract does not contain such a standard element.
Is the contract void? And, who decides so? Will contracts in creative industries be exposed to a risk of becoming void because they don't contain terms dictated to by the Minister in terms of some obscure regulation? Are we looking at publishers and film producers sitting with filing cabinets full of contracts with authors and performance that are void, just because of noncompliance with a dictate by a Minister?
If you want to kill publishing and film industries, the ANC, then all you need to do is pass this Bill? Perhaps that is their intention, because they have destroyed so much in this
country. They have made so many people unemployed. Millions and millions of people live in unemployment and poverty because of the ANC.
So, maybe the unemployment goal is actually 100%. And, if it is, they should rather just state it upfront. Maybe the goal is not to protect authors and performers, but rather to submit to the demands of big technology-based companies from America, paid for in U.S dollars. Maybe the ANC is just not being paid by Iran and China. Maybe they are being paid by technology companies in U.S dollars now for a ‘fair use’ clause that big companies like to use, like Google and the like.
We at least need answers to these questions and the mistakes in the Bill that have been raised. At the very least, the governing party should withdraw this Bill and should go back to the drawing board. It is what we have advocated from the very beginning. Fix the very errors that exist. However, this Bill before us is definitely not worth the paper it is written on, and the DA rejects it with the contempt it deserves. Thank you.
Mr E MTHETHWA: Thank you, Chair. The Copyright Amendment Bill as it stands, it lacks the revolutionary voice, the mind and the political will that one would have expected from a political party that boasts of a revolutionary history. It failed the very real owners that these amendments were meant to salvage and protect.
These failures can be tabled as follows. It misses the opportunity to address the revolutionary imperatives that informed the post-1994 dispensation: That is the need for restorative and transformative justice that speaks to the restitution of intellectual property rights, the land that was stolen from us, our tragic and painful creative land dispossession and forced to remove us.
It is for this reason that the EFF manifesto speaks to the imperative by calling for expropriation of intellectual property rights without compensation. It further lacks decisiveness towards restoring the dignity of our artists, composers and independent publishers which they deserve enshrined in the Constitution of South Africa, by denying them the retrospective benefit we should have been treated in the
same manner as reparations for the sufferings experienced by our creative sector during colonial and apartheid era.
It is an indictment to our hard-earned liberation that the very President who participated in the drafting of the Constitution of this country becomes the very traitor today who uses the Constitution to protect the proceeds of the stolen goods, by sending the Bill back, citing the unconstitutionality of the retrospectivity part of the Bill.
Reassuring colonial and apartheid thieves of intellectual property rights the lifetime retention of arbitrary ownership of copyrights, contrary to the restitution of Mbube, Wimoweh and The Lion Sleeps Tonight of Solomon Linda. The insertion of ‘fair use’ is a total disaster, a disaster that deserves to be outrightly rejected as it is subjective to cause misinterpretation due to its ambiguity.
What may seem fair to another, we know that it might not be fair to another, and we all know that Copyright Tribunal has no capacity to deal with the traffic that would be caused by this Bill. This, by virtue of the legal costs’ implications, it shall deny the poor authors, composers and producers
justice in favour of the giants, such as the Googles of this world.
Therefore, for these reasons, EFF rejects the Copyright Amendment Bill, in its current form. Thank you, Sir.
Ms M D HLENGWA: Hon Chair and hon members, this is a very crucial Bill indeed. We should understand and think about our people down there. In almost every sitting of this House the IFP urges the current government to be more proactive in the processing of laws and lawmaking. Therefore, we are delighted that after more than 50 years, we are finally at this point of making conclusive effort to protect the right of the creators who are making a living in the creation of art industry.
To think of that these people have continued to entertain us on our television screens and various events on other platforms without the comfort of knowing that the right to their work are duly protected. We have listened to the submission made by various organisations and we sympathise with their plea to make this Bill a priority. However, we have to concur that the hurried nature of this Bill consideration must like most of the other pieces of legislation up for our
consideration, could invite unnecessary flaws such as ambiguity and generalisation that can be harmful.
House Chair, while we can understand the minority views as set out in the Report, the IFP is not a party to throw the baby out of the bath water while the Bill is partly not quite perfect. We have to acknowledge that it seeks to provide access to copyrighted works by persons with disability, a group with people overlooked and marginalised in our society. Some might say that the development of the Bill still has a long way to go for consideration in light of the fact that it looks over 50 years to get to this point. The IFP accept, and I stress, accept the Report. Thank you.
Mr F J MULDER: Hon Chair, the intellectual property is the wealth of the creators and as such should be protected at all cost. The government that supports the creative industry especially all of this would never ever pass the Copyright Amendment Bill in its current form. These are the words of the well-known author Sihle Khumalo. The acclaimed author ... [Inaudible.] ... now as before the stories of ordinary people have tremendous power to help us alter the course of our beautiful biodiverse country.
Any legislation such as the proposed Copyright Amendment Bill that has a potential to shrink our local publishing industry has a direct threat. Let us makes sure that any attempt to open access to knowledge does not innovatively rob the next generation of South Africans and the writers of their livelihoods and of their opportunity to write the new future that we so desperately need. These are only two of many stakeholders who shared their inputs. The people who we should protect, the people who were ignored and who we will fail today if this Bill is accepted.
The FF Plus expresses the concern in the committee that the power given to the Minister to determine the regulation, the standard elements for agreements to be entered into in terms of the Act to ensure that the rights of protection afforded by the Act are duly provided for is unprecedented, that opportunity should be given to the public to comment on this amendment and that the failure to do so leaves the Bill section 39C(g) open to be challenged for its constitutionality. This concern was ignored.
Afrikaans:
Die Wysigingswet op Outeursreg was veronderstel om ons Outeursregwetgewing te moderniseer en ons kreatiewe bedryf meer inklusief en winsgewend te maak. Dit is egter so swak opgestel dat die uitwerking daarvan die teenoorgestelde effek sal het.
Regskenners is dit eens dat die gebreke so omvangryk is, dat voorleggings hieroor in die Parlement reeds duisende bladsye beloop. Indien die wetsontwerp ’n wet sou word, sal Suid- Afrikaners die swakste Outeursreg-beskerming in enige land in die wêreld geniet.
Die VF Plus lede versoek dus die lede van die Huis vandag om nie die wetswysiging te steun nie, en indien wel, dat President Ramaphosa die wet nie sal onderteken nie en dit na die Grondwethof verwys. Dankie.
Mr W M THRING: Last year this House voted on the Copyright Amendment Bill which was sent back to Parliament because of reservations by the President on its constitutionality and the compliance with international treaties. While appreciating the tremendous amount of work done by the committee members, the
legal department and all of the committee officials involved, the ACDP voted against this Bill.
The ANC used its majority to support the Bill and it was sent to the National Council of Provinces for concurrence. The National Council of Provinces made amendments to the Bill and it was sent back to the Department of Trade, Industry and Competition Portfolio Committee for approval. At our last portfolio committee meeting dealing with the Bills, the ACDP did not support the Bill due to challenges relating to inadequate consultation as well was the introduction of and lack of comprehensive market research on the impact of fair use provisions.
The ACDP understands that this Amendment Bill seeks to modernise our copyright legislation as a template for standardisation in our region as well as to bring them in line with international treaties and best practice. However, we do not believe that this has been achieved by the Amendment Bill. We share the concerns as the a ACDP which have been raised by certain interest groups believing that the introduction of fair use as opposed to fair dealing could potentially plunge the South African online market for creative works into legal
uncertainty, increasing the risks of litigation as well as creating entry barriers for new services and creators.
The ACDP also argues that the absence of a regulatory impact assessment on the economic impact of the Copyright Amendment Bill is a material deficiency in the legislative process. The ACDP does not support the Copyright Amendment Bill. Thank you, Chair.
Mr A M SHAIK EMAM: The NFP notes the Report on the ... [Inaudible.] ... Copyright Amendment Bill Tabled here today. Now, one of our major concerns is that, with the number of objections and opposition we have to this amended Bill, despite this there appears to be an urgency from what I see in being able to deal with this. The question that arises is, is this particularly of interest to those that are opposing these things? Clearly, they made their case as to why they believe it will have a negative impact on them.
However, we do also acknowledge that at some stage that this whole process started sometimes in 2017, it went back to the President and it has come back again. However, it appears that not enough is being done in this particular Amendment Bill to
give that added protection of royalties and copyright works, particularly to those that will be impacted and then in this case we are talking about the smaller performers in this industry.
Now, the question is, is this not to a very large extent being done to create an atmosphere of protecting particularly those copyrights that forms, I think, decades some of them have enjoyed not only locally but internationally and ended up exploiting new entrants into this particular market? The NFP appears to be very concerned about this that while we believe a lot has been done and the committee has done extensive work into this, there is also from our view that there might be a 33% decline in book sales just as a result of passing this particular Bill. So, the NFP wants to raise its concern and will not support this particular Bill as amended. Thank you very much.
Mr M D MONAKEDI: House Chair, the ANC supports the adoption of the Copyright Amendment Bill. The adoption of the Report is part of the ANC efforts to provide support and growth to the creative industries and ensure that artists are valued for their creativity and their intellectual property is protected.
The SA copyright-based industries contribution to the GDP is around 4%, which is more than the contribution of other sectors such as agriculture and food beverages and tobacco.
As far as employment is concerned an estimated 4,08% of the workforce is employed in copyright-based industries. The logical application of the mind dictates that this is an industry and we therefore, need to harness and this is exactly what the Bill aims to achieve by expanding and protecting those involved in this industry and to enhance transformation and growth. With this understanding in mind the ANC-led government has identified the sector as a key driver for sustainable economic opportunities and livelihoods for local communities whilst expanding business opportunities for small, medium and micro enterprises.
The Bill is aligned with the Constitution and human rights conventions and other progressive copyrights regimes that are meant to transform the lives of the creatives and to demonstrate the point more succinctly. The Bill will increase access to information for all South Africans through fair use rights and exceptions that the many developed countries have tried, tested and benefited from for many decades. It will
empower authors, musicians and other creators to have more control over their work and ensure better contractual protection as many artists are misled into signing away their rights to their work to record labels and multinational companies simply because they are desperate to make it as artists and creatives. These are usually artist ... [Interjections.] ...
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Haibo!
Mr M D MONAKEDI: These are usually artists from very poor backgrounds who are taken advantage of. Today we want to say to these artists that this has come to an end. This Bill empowers you to have fair and equitable remuneration emanating from royalties of the work that you produce and are involved in. Some of the collection societies that collect royalties on behalf of artists have failed to pay these royalties over to artists since 2002. With the introduction of a needle time in the Act, we want to say to those who have been victims of such exploitation that this comes to an end today. These collecting societies will now be held accountable.
Some in the House argue that the fair use clause would be problematic and a damage to our creative industry. However, there is no scientific basis that informs such views. There is no evidence anywhere in the world that fair use has caused any damage to creative industries. More than a dozen countries enjoy fair use in their copyright laws and more than 14 other countries include fair use factors in their copyright laws.
The USA boasts the largest and wealthiest publishing entertainment and information technology, IT, industries in the world. Fair use certainly has not caused catastrophic damage to its economy.
On the contrary, fair use contributes trillions of dollars annually to its GDP. My question to those who object to this Bill is, where is the empirical evidence to support such claims? Hon House Chair, from a developmental perspective this Bill is even more transformative as it will allow libraries including legal deposit libraries, archives, museums and galleries to serve their users as per their statutory mandates and to digitise and preserve their collections in order to protect our cultural heritage and documentary records.
The fair use principle further allows books and other works to be used for public interest purposes as long as it is fair to the creators and they do not lose any income. Had our current copyright law permitted digitisation, some of the devastating losses to our archives we experienced here in Parliament could have been avoided. Huge collections have been destroyed forever. A loss not only to South Africans but to researchers, historians, politicians, lawyers and many other around the globe.
Therefore, the Bill makes critical intervention to ensure that valued material is digitised and kept for generations to come. More critically, is the benefits for the blind as the Bill will allow blind South Africans to make real copies of books to ensure that those with visual impairment can learn, live and prosper like everyone else. With this Bill the ANC-led government is opening the door to research and new technologies. The opposition today wants us to reject this Bill in favour of multinational companies and collecting societies without considering the spirit and purpose of what the Bill seeks to achieve, that is developmental and transformative.
Unfortunately, unlike them we have a contract with the people of South Africa to transform their lives for their better.
House Chair, without our creatives our lives would be meaningless. Their activities keep us going ... [Interjections.] ...
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Ntate Monakedi, sorry. The information and communication technologies, ICT, just help hon Kota out of the House. Just help her out of the platform, please.
Mr M D MONAKEDI: Their creativity keeps us going. By adopting this Bill will demonstrate how much we feel with them. We are enjoined by the Constitution and our commitment to change the lives of our people, to support and protect this industry. The ANC supports this Bill. I thank you.
Motion agreed to.
Bill, as amended, accordingly passed.
CONSIDERATION OF PERFORMERS’ PROTECTION AMENDMENT BILL AND A REPORT OF PORTFOLIO COMMITTEE ON TRADE, INDUSTRY AND COMPETITION THEREON
Ms J HERMANS: Thank you, house Chairperson, the Performers Protection Amendment Bill seeks to modernise the Performers Protection Act 11 of 1967 and re-emphasises the economic and moral rights of performers in sound recordings, as well as in audiovisual fixations such as phones or TV series in alignment with the World Intellectual Property Organisation performers and Phonogram Treaty and the Beijing Treaty on audio visual performances. These amendments would allow South Africa to accede to these treaties. In the absence of this Amendment Bill, performers may not be able to legally enforce their economic rights in relation to the use of their performances in digital formats and on digital platforms, as this is currently not protected by South Africa Law.
Furthermore, the Bill seeks to address the plight of performers and performances in audiovisual fixations are often rebroadcasted reproduced or used in other formats without any economic benefit to the actors. The Bill would therefore give them legal standing to negotiate royalties and or other
equitable remuneration for the use of their fixed performances. It also allows them to object to the manner in which their performances in audiovisual fixations or sound recordings are modified if this is prejudicial to their reputation and dignity.
The Performers Protection Amendment Bill was introduced to Parliament in 2016. The Bill had been approved by both Houses and sent to the President for assent in 2019. However, the President referred the Bill back to the National Assembly in June, making reservations on the constitutionality of the Bill in that it “may not pass constitutional muster and may therefore be vulnerable to constitutional challenges”. He specifically was concerned that the Bill may not comply with international treaty obligations specifically in relation to the world Intellectual Property Organisation, Performance and Phonograms Treaty.
Performers Protection Amendment Bill was adopted by the National Assembly on 31st of August 2022 after resolving the President’s reservations. It was then referred to the National Council of Provinces to be considered as a Section 76 Bill. On the 26th of September 2023, the National Council of Provinces
passed the Performance Protection Amendment Bill and returned it to the National Assembly for concurrence. The Bill was subsequently referred to the Portfolio Committee of Trade, Industry and Competition for consideration and the report. On the 6th of February 2024, the committee received a briefing from the Department of Trade, Industry and Competitions, Parliament’s Constitutional and Legal Services Office respectively, on the amendments made by the National Council of Provinces.
These amendments include the following clauses: The definition performer was expanded to explicitly exclude extras, ancillary participants, or incidental participants. The latter would eliminate any uncertainty of who is considered a performer in line with the interpretation of existing international treaties. The inclusion of a prescribed standard element that protect the rights of performance rather than compulsory and standard contractual terms. This is intended to ensure that certain aspects are addressed within written contracts but does not restrict the ability of the parties to negotiate the details thereof. On the 14th of February 2024, the committee adopted the Bill and its report. However, consensus could not be reached, and the amendments made by the National Council of
Provinces. The concerns expressed were captured in the report. So, the portfolio Committee, therefore, recommends that the House adopts this report and approves the Performers Protection Amendment Bill for submission to the President for assent. Thank you.
The HOUSE CHAIRPERSON (Ms M G Boroto): May I now recognise the Chief Whip of the Majority Party.
The CHIEF WHIP OF THE MAJORITY PARTY: Thank you, House
Chairperson, I move that the Bill be passed as amended. Thank you.
Declarations of vote:
Mr D W MACPHERSON: Thank you, Chairperson, let me greet the Whips of the Democratic Alliance and the members in the House today and I’m so glad that the hon Hermans gave us a date-by- date account, of how many times the ANC has messed up and ruined this Bill. I’m so glad that she documented it date-by- date of how many times they've got it wrong. So, thank you very much hon Hermans for giving us that.
Chairperson, this is a consequential Bill going forward and it is still nothing other than a matzo pudding, because it is such a disgrace and doesn’t even still meet the constitutional master and I’m very much looking forward to both bills being overturned by the Constitutional Court and hopefully the Constitutional Court will also hold ANC members personally liable for costs, for actually not listening to anyone in the committee or industry experts for the opposition to the Bill.
This is nothing other than an electioneering bill. It is nothing other than a point-scoring bill. It is nothing other than sloppy work by the ANC and to try and find favour with artists and performers, which ironically, would do exactly the opposite. It will make them poorer. It will make them more destitute, and it will leave them without any rights, because the ANC will have sold their rights to American Content Companies who will expropriate ironically artists’ rights without any compensation. So, the ANC will have truly fulfilled its expropriation of compensation ideology, but at the back of artists and performers in South Africa. I really hope that the ANCs are going to take that to every town and village when they campaign in this election, because the DA certainly would be telling everyone that message on the ANC’s
behalf. The Democratic Alliance rejects this Bill. Thank you very much.
Mr E MTHETHWA: Thank you, House Chairperson, it is quite disheartening that as an artist who has apparent experience, I keep on hammering these things to deaf ears of the ANC government. It is quite puzzling that when the Bill has dealt with in the amendments, it is made as Siamese twins of the Copyright Amendment Bill. But when it is presented here for the declarations, the two Bills are presented separately.
The tagging of the two Bills has been an unfortunate, illogical approach that continues to pitch artists against actors where actors are saying, Mr President, sign the bill into law now. Whilst the artists and producers, on the other hand, are saying not in its current form considering the flaws that were caused in the copyright. The EFF supports the amendment on Performers Protection Amendment Bill with confidence that as the incoming government, the EFF will be able to expedite the corrective measures in the current totally absent compliance and enforcement or accountability.
The impartiality and conflict of interest between CIPC and SAMPRA the Minister of Trade and Industry should have long
investigated, will be history under EFF’s government and in line with the EFF manifesto. This nonpayment of duly deserved royalties to certain musicians will never be experienced again, as we shall nationalize the royalty collection and distribution under the EFF government and capacitate the state to provide professional and reliable services.
The glaringly abuse, currently witnessed by artists whereby Infra and SAMPRA fat cats use royalties due to artists as they wish and even living luxury lifestyles at the expense of impoverished artists will come to an end. Mismanagement, corruption, maladministration, self-enrichment, misappropriation of artist’s royalties occur with impunity, not even the Hawks have acted against these regulated institutions. But again, we know not under the ANC. If you are an artist, actor, producer, go all to your social media platforms today and encourage your friends to come out in numbers on the 29th of May to vote for EFF in order to stop the pauper’s deaths and experience economic freedom in our lifetime. The EEF supports the Performers Protection Amendment Bill because we know that ANC won’t be there to manage it and see to it that it is complied with properly. I thank you, Chair.
Ms M D HLENGWA: Hon Chairperson, Inkatha Freedom Party supports this Bill. The Inkatha Freedom Party acknowledges the process made with the Performers Protection Amendment Bills as the significant step in the safeguarding the right and creation of the creative art industry. However, it is crucial to highlight our concern about the rush nature of the Bill consideration ensuring the broader trend in the legislature process. It is true that compared to the other parts of the world, South Africa has taken a consideration amount of the time to address the economy and moral rights of the performers. The international standards set by the legislation and threatens in other regions highlight that the importance of recognising performer’s redistribution of their performance. Moreover, the acknowledgement of the actors’ rights to publicize their work, the performers gain is a vital aspect that ensures their compensation. The actress for Florence Masebe aptly articulated in her submission to Parliament in 2018 that the persistent challenge of poverty in the arts where performers find themselves on the disadvantage and ...
IsiZulu:
...nami ngingufakazi nje waloku. Sike sangcwaba laphaya, niyabona ama-Sisters. Kukhona owayengenalutho samhlanganisela. Ngakho ngiyakuthokozela ukuthi namhlanje sikhuluma ngalo Mthethosivivinywa ukubanaka nokubazi ukuthi bakhona. Hhayi, ukubabiza nje emcimbini kodwa sibanake, sibakhokhele, sibenze mama babe wutho nabo emhlabeni.
English:
As we move forward with the Performers Protection Amendment Bill, we must show that there is no duplication or contradiction to provision of the Copyright Act. A harmonised legal framework is an essential guarantee that effective protection of performer’s right without creating unnecessary complication. The IFP supports the Bill.
Mr F J MULDER: Hon House Chair, the FF Plus is concerned that material mistakes have been made in the F-Bills adopted by the NCOP.
The first is the unprecedented and unheard of regulatory power given to the Minister to determine standard elements for agreements, known to lawyers as essentialia of a contract. No other statute we know of grants any Minister this power. What
happens if a contract relating to a performer does not contain a standard element prescribed in some obscure regulation? Will this contract be void? That is the question. There are no answers for that.
The amendment for the definition of performer to the exclusion of extras from the definition will lead to unanticipated consequences of excluding certain performers from rights they already had in terms of the Act. The purpose of the exclusion was to exclude extras from certain new rights in the Bills, not to exclude them from all rights.
The passing of this law will have the result that the least paid performers in music and film will be cut out from their existing protection because of a simple mistake. The view of the department on this is patently wrong and needs to be corrected.
Afrikaans:
Ten spyte van herhaalde waarskuwings deur die VF Plus en ander opposisiepartye, belanghebbendes, skrywersgilde en uitgewers tydens die openbare verhore, het die ANC die verslag in die komitee met sy meerderheid onnadenkend deur forseer.
Die VF Plus doen vandag ‘n beroep op elke lid teenwoordig in hierdie Huis om volgens sy of haar eie logiese oortuiging te stem en nie blindelings volgens ‘n koukus besluit nie.
Verder doen die VF Plus ’n beroep op President Ramaphosa om die wet wat hy in 2020 na die Parlement terugverwys het vanweë die ongrondwetlikheid daarvan nie te onderteken nie maar om dit eerder na die Konstitusionele Hof te verwys. Die VF Plus steun nie die komitee verslag voor die Huis vandag nie.
English:
Mr S N SWART: House Chair, the ACDP won’t support this report and Bill. Thank you.
Dr J C NTWANE: In the same spirit as the Copyright Amendment Bill, the Performers’ Protection Amendment Bill is not merely a legal formality. It is a beacon of hope for the artists who enrich our lives with their talent, creativity and dedication. Allow me to reflect on the journey of one of our iconic and veteran actresses, Mrs Marah Louw, who, when she accepted the role of Dolly in Taxi to Soweto in 1991, had to dash from the Mandela tribute concert at Wembley Stadium, where she had performed alongside Patti Labelle. She weas a rising star and
very excited to be in a South African movie. Thirty years later in 2021, M-Net aired the film repeatedly to help boost the mood of a nation depressed by COVID-19. The companies that have rights to this movie made a fortune from the airing of this movie, except for Ms Marah Louw. It was in a very despondent tone of voice that she said, “Someone is making money from my performances ... just not me.”
This is a story that resonates with many actors and actresses and is at the heart of the problem in the creative sector in South Africa, where performers have no rights to royalties when their work is reused. The rights of these actors are horrifically abused. On the one side, South Africa has a very progressive labour legal framework. So, if one lost one’s job, one was entitled to unemployment benefits. If one was injured at work, one was entitled to compensation. There’s a limit on how many hours one might work a week, how many overtime hours and so on. However, none of these laws apply to actors. This is a very bleak picture for our actors.
According to the SA Guild of Actors, the minimum hours of work in a day has gone from 10 to 12 hours, the pay was reducing, compliance with on-site safety regulations was slipping and
actors were routinely called upon to provide additional services such as free marketing, readvertising and social media promotions, free product endorsements and free script translations, all the while being told that they had to be grateful for the privilege of being allowed to work, then living and dying hungry.
Some of these actors are household names, like Shaleen Surtie- Richards, a famous actress who died three years ago when she had cancer but who had no medical aid because actors did not work consistently and she did not get royalties for the reuse of her performances. In a world where entertainment is increasingly pivotal to our daily lives, it is crucial to acknowledge the immense impact that performers have on shaping our collective experiences. Whether on stage, on screen or behind a microphone, performers pour their hearts and souls into their craft, breathing life into characters and narratives that captivate and inspire us.
Yet, despite their undeniable importance, performers have long been vulnerable to exploitation and unfair compensation practices. The Performers’ Protection Amendment Bill seeks to rectify this injustice by ensuring that performers receive
equitable remuneration through royalties for their work. No longer will they be left to languish in the shadows while others profit from their talents and without just compensation. Countless actors, actresses and other performers have seen their hard work go unrewarded as they struggle to make ends meet in an industry that often exploits their talents for financial gain.
Furthermore, the amendment provides for the protection of the rights of producers of sound recordings, recognising the collaborative nature of the creative process and the importance of ensuring that all parties involved receive fair and just compensation for their contributions. This provision serves to foster a more equitable and sustainable ecosystem for the production and distribution of sound recordings, benefitting both performers and producers alike.
The Performers’ Protection Amendment Bill represents a seismic shift in our approach, protecting performers rights and ensuring that they receive the recognition and compensation they deserve by establishing clear guidelines for the payment of royalties and holding accountable those who seek to exploit performers for their own gain. This Bill sends a powerful
message that we value and respect the contributions of our artistic community.
Perhaps most importantly, the amendment to the Bill provides for royalties or equitable remuneration to be payable when a performance is sold or rented out. This represents a significant victory for performers as it ensures that they are fairly compensated for the use and exploitation of their work, regardless of the medium or platform through which it is accessed. No longer will performers be left to rely solely on the goodwill of others for their livelihoods. Instead they will have the assurance of receiving a fair and just share of the profits generated by their performances.
Through this Bill, actresses like Marah Louw can be at peace that even if they don’t work, royalties will be paid to them whenever they become due. Her family will continue to benefit from her work and the high rate of actors and artists dying poor will come to an end. The ANC supports the Bill.
Question put.
Motion agreed to (Democratic Alliance, Freedom Front Plus and African Christian Democratic Party dissenting).
Bill, as amended, accordingly passed.
NATIONAL ROAD TRAFFIC AMENDMENT BILL
(Consideration of Bill and of Report thereon)
There was no debate.
The Chief Whip of the Majority Party moved: That the Bill, as amended, be passed.
Motion agreed to.
Bill, as amended, accordingly passed.
ECONOMIC REGULATION OF TRANSPORT BILL
(Consideration of Bill and of Report thereon)
There was no debate.
The Chief Whip of the Majority Party moved: That the Bill, as amended, be passed.
Motion agreed to (Democratic Alliance dissenting).
Bill, as amended, accordingly passed.
CONSIDERATION OF REPORT OF POWERS AND PRIVILEGES COMMITTEE ON ALLEGATIONS OF CONDUCT CONSTITUTING CONTEMPT OF PARLIAMENT BY MR M J ZWANE, MP
Ms G K TSEKE: Hon House Chair, greetings to the hon members present in the House and connected on virtual. On the 12 September 2023, the Speaker referred an alleged contempt of Parliament by Mr M J Zwane to the Powers and Privileges Committee for investigation and report. This follows the failure of Mr Zwane to present himself to the House and enter an apology as required by a resolution of the House adopted on the 2 May 2023. The resolution approved the report of the Joint Committee on Ethics and Members Interest, which contained findings against Mr Zwane that he had contravened the Code of Ethical Conduct and Disclosure of Members’ Interest for Assembly and Permanent Council Members, and
imposed penalties specified in the report. One of the penalties imposed on Mr Zwane was that he must enter an apology in the House.
Before the sitting of the 2 May 2023, the Chief whip of the majority party, Ms Castelina Pamela Majodina arranged with Mr Zwane to present himself to the House and enter apology on that day. But he was absent from the sitting. On the 30 August 2023, the Speaker wrote to Mr Zwane highlighting that his failure on the 2 May to be present in the House and enter an apology as per the resolution of the House, was unacceptable conduct on his part. She requested him to present himself in the House on 6 September 2023 to enter the apology. On the 6 September 2023, Mr Zwane again failed to present himself to enter the apology in the House.
Hon members, on the 8 November 2023, Mr Zwane was served with a notice of the hearing and charges deferred against him. He was informed that the hearing would be held on the 24 November 2023. However, the hearing was postponed on two occasions and was held on the 30 January 2024. There were two charges preferred against the affected member, which were that:
Firstly, he wilfully and intentionally failed and or refused to obey the resolution of the House at its sitting on the 2 May 2023 to enter an apology as ordered. Secondly, he wilfully and intentionally failed and/or refused to obey the resolution of the House and an order of the Speaker to present himself to the House at its sitting on the 6 September 2023 and enter an apology as ordered.
Hon members, the committee engaged with the evidence presented by the initiator, including the unrevised Hansard and correspondences from the Speaker to Mr Zwane. The committee found the evidence and arguments presented and put forward by the initiator persuasive. It found Mr Zwane guilty as charged. It must be noted that Mr Zwane had ample opportunities between the 2 May and the 6 September 2023 to approach the Speaker or the Chief Whip of the Majority Party to make the necessary arrangements to enter the apology in the House.
On recommendations and on penalties, the Powers and Privileges Committee recommends that the National Assembly impose the following penalties with respect to Mr M J Zwane: Firstly, an order to apologize in person in the House as determined by the House on the 2 May 2023. Secondly, reduction of half of his
monthly renumeration effective from the 1 March 2024 as set out in section 12(5)(f) of the Powers and Privileges Act.
Setswana:
Ke a leboga.
IsiXhosa:
UMBHEXESHI OYINTLOKO WEQELA ELILAWULAYO: Sihlalo weNdlu,
ndiphakamisa ukuba le ngxelo ibekwe apha yamkelwe yile Ndlu. Enkosi kakhulu.
Declarations of Vote:
Ms D VAN DER WALT: House Chair, every five years, the people of our country elects 400 Members of Parliament - honourable members. Members of Parliament that will govern well, provide and enhance freedom, fairness, opportunities and a better tomorrow for them. Members of Parliament that make laws, they expect the millions of South Africans to respect and adhere to, but they themselves don’t. Why not? Members of Parliament make laws, legislation, Rules. We pass them in this House. It goes through a whole system and yet we prefer not to abide.
Today we are also not dealing with the case of a newcomer or
an inexperienced person, but a person of knowledge. A previous MEC in the Free State and a Minister from this House.
On 2 May 2023, this House approved the report of the Joint Committee on Ethics and Members Interest on the Contravention of Code of Ethical Conduct and Disclosure of Members’ Interests for Assembly and Permanent Council Members, which impose the following penalties: A fine of the amount of five- day salary which was affected in May 2023. Secondly, the suspension from participation in any parliamentary debate for the parliamentary term, which was also in effect from 29 August to 22 September 2023. Thirdly, an apology to be entered into the House. Although arrangements were made to ensure Mr Zwane present himself to this House and enter his apology on 2 May and 6 September 2023, he was absent on both days.
The Speaker therefore on 12 September 2023, referred allegations of conduct constituting contempt of Parliament against Mr Zwane to the Powers and Privileges Committee for consideration and report. Assembly Rule 214 prescribes that the committee must deal with the contempt matter in accordance with the procedures contained in the schedule to the Rules of the National Assembly and must table a report in the assembly
on its findings and recommendations. If the committee find the member guilty of contempt, it must recommend an appropriate penalty or penalties from those contained in section 12 (5) of the Powers, Privileges, and Immunities of Parliament and Provincial Legislatures Act 4 of 2024. Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act is something we passed, don’t forget.
The committee on 26 September 2023 and the resolve in accordance with item five of the schedule, to appoint an initiator, Adv Zuko Mapoma SC, for the hearing on the matter. The affected member was informed that he was entitled to be assisted by a fellow member or could request committee to allow him legal representation by a person who was not a member, at his own cost. He opted to represent himself at the hearing, although he originally addressed correspondence to the committee through his attorneys, Dinga Incorporated. The case charge against Mr Zwane was:
It is alleged that you are guilty of contempt of Parliament in terms of section 13(c) and (d) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004. In that, you wilfully and intentionally failed and/ or
refused to obey the resolution of the House at its sitting on
2 May 2023 to enter an apology as was ordered.
It is alleged that you are guilty of conduct constituting contempt of Parliament in terms of section 13(c) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act of 2004, in that as a Member of Parliament you wilfully and intentionally failed and/ or refused to obey the resolution of the House and order of the Speaker of the National Assembly to present yourself to the National Assembly at its sitting on 6 September 2023 and enter an apology as ordered.
By engaging in such repetitive unlawful conduct, this member breached his section 13(c) and (d) of the Act and such conduct constitutes contempt of Parliament. We agree that the contempt of Parliament is a serious matter and that his conduct warranted the penalty that was sufficiently serious.
We support that the penalty set out in section 12 (5) of the Act would be appropriate and that the sanction to dock 50% of Mr Zwane’s monthly salary and for him to take corrective
measures and still enter an apology in the National Assembly by no later than 28 March 2024. Thank you. [Time expired.]
Adv B J MKHWEBANE: House Chairperson, as the EFF, the report of the Powers and Privileges Committee in relation to Mr Zwane, is largely an internal ANC matter. He was previously aligned with the Zuma faction of the ANC and the activities for which he was required to apologize for were considered perfectly okay when his faction was still in power. This is true for the immunity in which the current members of the ruling faction view themselves today.
Mr Zizi Kodwa walks around freely despite admitting, at that fuss, the Zondo Commission, to have benefited an amount of R1 million from people accused of state capture. Mr Mantashe also stands accused of benefiting from related transactions. And so are many people currently in favour with the current ruling party or faction of the ruling party.
Mr Zwane’s failure to tender his apology to the House would have been accepted if he was part of the ruling faction. He is now required to part with 50% of his salary for March, despite his pleas and his explanation of the failure to not tender his
apology. As a general principle, when the enemy self immolates, they should be left on their own to do so. As the old adage goes, there is no honour amongst thieves.
IsiNdebele:
Sihlalo, batjho iinhlahla zaragela phambili zavowudela ibeyili kodwana zaphela zoke. Ngalokho-ke idlanani ninodwa.
English:
Ms M D HLENGWA: Hon Chair and hon members, I heard that our President, hon Hlabisa is on virtual, I greet him and I greet you all. President of the IFP, yes. Yes.
IsiZulu:
Uqeda isikhathi sami.
English:
The Rules and Resolution of the NA are clear and must be applied equally to all hon members and without fear, favour or prejudice. Hon Zwane contravenes the Code of Ethics conduct and Disclosure of Members Interests. As a senior Member of Parliament, he is expected to set an example of proper conduct and not engage in unbecoming conduct of corruption behaviour.
The Joint Committee on Ethics and Members Interest has unequivocally found hon Zwane guilty of breaking the rules and he agreed to apologize to the House. However, his failure to appear before the House on the 02 May 2023, despite numerous attempts by the Speaker and the Chief Whip of the Majority Party is a blatant disregard for rules and shows a lack of respect for the House and its members.
Honourable Zwane’s actions are clearly contempt of Powers, Privileges and Immunities of Parliaments and Provincial Legislatures Act 4 of 2004 and no substantive evidence to contrary was provided by hon Zwane. Chairperson, it is imperative that all hon Members of Parliament are held to be of the same standard and that the rules are applied equally to everyone.
This House can only function effectively if its members are held accountable for their actions. The IFP supports the report and call the hon Zwane to immediately tend an apology to the House and be held accountable for his action. I thank you.
Mr S N SWART: Hon House Chairperson, the ACDP agrees with the report. Hon Zwane was found guilty in the first disciplinary hearing of a breach of the Code of Conduct by the Joint Committee on Ethics and Members Interests, and its report was accepted by this House. But as we now know, hon Zwane failed inexplicably to apologize. This thing clearly shows a great lack of respect for Parliament across the board. This is not involving one party, the majority party. It is Parliament across the board. This necessitated a further inquiry at cost and time of members, which is again unnecessary. This then allowed evidence, and we now know of a guilty finding of that committee.
Now the CDP supports the penalty, the order to apologize. We agree that the original order must be enforced and so we support this as well as a reduction in half of the monthly remuneration of the member. Hopefully, this sanction serves as a deterrent to other MPs. Contempt of Parliament is a very serious offense and it should serve as a lesson for incoming Members of Parliament that we as a Parliament will not tolerate indiscipline or contempt of this House. I thank you.
Mr Z MLENZANA: Greetings, Chairperson and the Parliament at large.
IsiXhosa:
Masiqale ngokuthi i-ANC iyayamkela le ngxelo kwakunye neziphakamiso zayo.
English:
Adv Mkhwebane, I see there is Adv written there, you continue to exonerate Parliament from its decision on your fitness in office. So, we are not worried. The Powers, Privileges and Immunities of Parliaments and Provincial Legislatures Act 4 of 2004 is our apex legislation. It regulates what we can and not do and it provides rational, reasonable and fair environment in which we politically operate.
Our committee has to operate without fear or favour and this is exactly what we do. We receive evidence based on balanced facts and we provide those who are charged a fair process to defend themselves. In this particular case, we had to deal with a member who comes from the Powers and Privileges Committee and our response in this regard was no different.
As we would expect from all members of the committee, the highest discipline, procedural correctness and an ability to master the art of the decorum and protocol. That is what the ANC expects. Nothing less and nothing more for everybody. The fact that this matter was referred to by the Joint Committee on Ethics and Members Interests on the contravention of the Ethics and Conduct in so far as the member who twice failed to appear in the House as instructed, indicated that this is an extreme poor reflection of an ethical conduct of the member.
Let me spend some time Chairperson, just indicating here that, you know politically, when you arrive in Parliament, all other large parties have caucuses. Of course, these are headed by and ... [Inaudible.] 01:57 Then you have the Chief Whip General who actually on behalf of the NA, drives the programme and the political weight is heavier than any other. So, she convened the Chief Whips Forum which makes recommendations to the Programming Committee.
Politically, in the ANC we take a lead from the Chief Whip who heads all other Chief Whips. So, when the Chief Whip engages you, you get the political line. So, there is no question of ambiguity here. You cannot be saying that you were not sure. I
misinterpreted what the Chief Whip was saying and all of that. If you are not clear, you simply ask. Period.
In this particular case, the member was told by the Chief Whip to be in the House. If something had happened to the contrary, he would have addressed the matter on a personal basis because you cannot put the authority of the Chief Whip and take it to the officials. The officials are there for procedural matters and not for party disciplinary breaches of ethics. So, in this particular case arrangements with the Office of the Speaker were made that the Chief Whip would ensure that her member of the caucus be in attendance to submit an apology which unfortunately he did not do. So, this is simply a contempt of Parliament hearing where hon Zwane was actually summoned and had to be listened to.
In hearing him, he outlined the circumstances and that there were no wilful intents to undermine Parliament neither was there malice on both occasions. We listened carefully as members of the committee because we are always objective. We are mindful of our responsibility to uphold the Act which governs us and to provide a fair and due process for the member to explain themselves.
We need to say that whatever the circumstances one may be in – This goes hon Chief Whip to all of us, those who are here and those who will come. It goes to all of us that whatever the circumstances one may be in, there are obligations we carry as public representatives to uphold legislation, regulation and procedures of the NA. This means that, one’s personal circumstances whether it may impact on him personally or what, they may not impact upon the practical functioning of the NA. As the ANC we are not going to allow a situation where members will always find themselves in the wrong side of the procedures in Parliament. Once more, the ANC supports the report and its recommendations to the House. I thank you.
Question put.
Agreed to.
CONSIDERATION OF REPORT OF POWERS AND PRIVILEGES COMMITTEE ON ALLEGATIONS OF CONDUCT CONSTITUTING CONTEMPT OF PARLIAMENT BY MEMBERS OF NATIONAL ASSEMBLY DURING ORAL QUESTIONS TO THE PRESIDENT ON TUESDAY, 30 AUGUST 2022
Setswana:
Ngaka M M E TLHAPE: Ke a leboga, Modulasetulo, segolosetona Mme Majodina le batlotlegi ka kakaretso. Ka 23 Ngwanatsele 2022, Mmusakgotla o ile a romela maloko a le mane a e leng rre Ceza, M N Paulsen, D F Mthenjane le mme N V Mente kwa Komiting ya Maatla le Ditshiamelo go batlisisa dikgato tsa go nyatsa tsamaiso ya Palamente. Morago ga nakwana rre Mthenjane o ile a ikgolola jaaka Leloko la Palamente. Go romelwa ga bone kwa komiting go latela go kgoreletsa le go ikgatholosa maatla a Mmusakgotla mo Ntlong ka nako ya go botsolosa Tautona dipotso ka 23 Phatwe 2022.
Maloko a a amegang ano, a ne a laelwa ke Mmusakgotla go tswa moNtlong, mme ba ile ba gana ba latola go fitlhela ba ntshiwa ke ba ditirelo tsa tshireletso ya Palamente. Melao ya Ntlo e tlhoka gore komiti e batlisise kgang ya go nyatsa Palamente jaaka maloko, mme go latela melawana le ditselana tse dikwadilweng mo melaong ya tsamaiso ya Palamente go tlisa diphitlhelelo le ditsitsinyo tsa one mo Ntlong, fa leloko le ka bonwa molato, komiti e tshwanelwa ke go tsitsinya kotlhao e e maleba.
English:
Notices of hearing and charges preferred against the affected members were served on them through their attorneys on
15 September 2023. They were informed that the hearings would be held on 27, 28 and 29 September 2023. However, the hearings
were postponed to 11, 12 and 14 December 2023 by agreement between the initiator and the legal representatives of the affected members. All three members had the same charge preferred against them, which was that during the sitting of the 30 August they wilfully and intentionally failed or refused to comply with the instruction of the Speaker to leave the House when ordered to do so, improperly interfered with or impeded the exercise or performance by the House of its functions, obstructed other members from proceeding with the meeting of the Assembly and improperly interfered with the performance by other members of their functions in the House.
Two similar charges were preferred against Mr Ceza and Ms Mente, which was that they did not raise a point of order in terms of Rule 91(1) but persisted to speak while the Speaker was addressing the House, thereby disrupting proceedings. When ordered to leave the House, they refused and had to be physically removed. A second charge against Mr Paulsen was that he hindered or obstructed a staff member in the execution
of the staff member’s duty by physically intervening in the removal of Mr Ceza. Lastly, a third charge against Ms Mente was that when she and Ms T Mgweba were ordered to withdraw their remarks against each other, Ms Mente refused to do so. When requested to leave the Chamber because of her refusal to withdraw her remarks, she refused and had to be physically removed from the House.
Now, with regard to findings, the committee engaged with the evidence presented by the initiator, which included the video footage of the incidents, the unrevised Hansard and the sworn affidavits of the secretary to the National Assembly, Mr M Xaso and the acting Serjeant-at-arms, Mr T Maleeme. It also had the oral evidence of the only witness called by the initiator, that of the secretary to the National Assembly.
The committee found the evidence and arguments presented and put forward by the initiator, persuasive. It found Mr Ceza and Mr Paulsen guilty as charged, except for Ms Mente. The committee was of the view that it could not determine what remarks she had made against Ms Mgweba and therefore whether those remarks were unparliamentary or not. It concluded that
Ms Mente should be given the benefit of the doubt and will not be liable for contempt.
Hon members, in terms of recommendations, as the members were found guilty, the committee recommends that the National Assembly imposes the following penalties with respect to the two affected members. Firstly, an order to apologise in person in the House to the President, the Speaker and the people of South Africa as determined by the House, as set out in section 12(5)(c) of the Act and the suspension of the members without remuneration for a period of 30 days, whether or not the House or any of its committees is scheduled to meet during that period, starting from 1 to 31 March 2024, as set out in section 12(5)(g) read with section 12(9) of the Act. I thank you.
The HOUSE CHAIRPERSON (Ms M G Boroto): Thank you, acting chairperson of the committee. I now recognise the Chief Whip of the Majority Party.
The CHIEF WHIP OF THE MAJORITY PARTY: House Chair, I move that the Report be adopted by the House. Thank you.
Declarations of vote:
Dr A LOTRIET: Chairperson, as Members of Parliament, we have taken an oath to uphold the Constitution and to serve the people of South Africa, and we do this by adhering to the prescripts in our Constitution as well as the legislation that has been enacted. Therefore, as Members of Parliament, we should strive to be the benchmark of upholding the laws, the rules and regulations that govern this country and its institutions. Parliament in fact should be the epitome of democratic behaviour, dignity and decorum.
However, Chairperson, the fact that we are now discussing a disciplinary hearing with sanctions shows that that isn’t the case, and although we as parliamentarians are also protected and we have powers, privileges and immunities, they are not unfettered and come with responsibilities.
The rights afforded to us are not absolute and any right has to be balanced with respect to all other rights. Our rules provide for the right of members to be heard and to debate, even robustly. However, this right and opportunity to debate and to be heard is not limitless. We cannot do and say as we wish with total disregard for the rules of the House. We all
have an obligation to respect and uphold the decorum and the dignity of the House. This means that we should always show respect not only to the rules but also to the presiding officers as well as fellow members.
Whether we agree with the ruling or not, there are procedures that we can follow if we are not satisfied with a particular ruling, and although it is important and incumbent upon the presiding officers to preside with fairness and consistency, the fact is that the presiding officer has the final responsibility to maintain order and decorum, and take any steps as provided for in the rules and the relevant legislation to restore order and to protect all members’ rights, not only certain members.
This is not the first time that we have had to address the House on the outcome of a Powers and Privileges Committee hearing. This happens far too often and can only be seen as a bad reflection on what happens in this House and members’ behaviour.
In the incident under discussion, four EFF members were charged with contempt of Parliament by engaging in conduct
that created disorder and disruption. In the end, as the chairperson of the committee has stated, only two members were found guilty, as one member resigned and the other member was found not guilty. This kind of behaviour, where the rights of all the other members are infringed upon and where our right and duty to do our work in the interest of the people and the country we serve is stymied, cannot continue. We have to stop this and therefore the DA supports the finding as well as the recommended sanctions. Thank you.
IsiZulu:
Adv B J MKHWEBANE: Mgcinisihlalo ...
English:
Thank you so much for giving me this opportunity. When those who came before us waged a relentless struggle for freedom against the repressive and unaccountable white minority regime, they did so to enable all of us to express our views with no fear, and for ordinary people to hold those in power accountable for their actions. This House is the highest representation of the people’s democratic rights, the right to speak without fear, the right to hold the executive
accountable and the right not to be browbeaten into silence when questioning power.
These rights are so fundamental to the democratic project that their abrogation is the clearest indicator of the erosion of democracy itself. Over the past 10 years, we have observed how the ruling party uses its majority and its ability to deploy presiding officers in this House to stifle the opposition and shield their leaders from accountability. For them, it is not about their country anymore. It is not about the sacrosanct duty of this House to hold the executive to account. This House has been shamefully reduced to a legislative militia armed in defence of the leaders of the ruling party. This report of the Powers and Privileges Committee is but one of many attempts used by the corrupt and the powerful to repress democracy.
On 30 August, we stood up in this House to demand accountability from Mr Ramaphosa. He was accused of illegally being in possession of foreign currency that found its way into this country without following legal processes. It did not end there. When these dollars were stolen, it is alleged that Mr Ramaphosa used the resources of the state to track
down the thieves, ordered the abduction and torture of a woman who was a helper on his farm and that he refused to report this crime to law enforcement agencies in the country. That demand that he accounts for these allegations was and is still a fundamental exercise of democratic privilege. It is these privileges that the Speaker sought to stifle on 30 August 2022 and it is the same privileges that the Powers and Privileges Committee is stifling now through this heinous report.
While the report correctly exonerates our chairperson, hon Mente, there is no reason whatsoever to suspend hon Paulsen and hon Ceza for a month without pay. Following the suspension of our leaders for a month in February, it is now clear that the ruling party is lynching us and using their numbers in Parliament. We reject this report, Chairperson, and iPhala Phala farmgate. The President must account. Therefore, we reject this report. Thanks.
Ms M D HLENGWA: Hon House Chairperson and hon members, as selected representatives of the people of South Africa, all members of this House are accountable to the people of South Africa. As elected representatives of the people of South Africa, all members of this House are responsible for the
people of South Africa. As Members of Parliament, we are the servants and leaders tasked with the duty of safeguarding the Constitution, this Parliament and the rule of law in a democratic South Africa.
When debating the critical issues of the day and holding the executive to account, we must execute our responsibilities in a manner that is appropriate and etiquette and high standard of this Parliament.
Sadly, since the beginning of this Sixth Parliament, the level of unwarranted disruptions and populistic tactics from certain members of this House have escalated to such and extend that the role of this House had to be amended to restore order for plenary session.
As the IFP under the former leadership of His Excellency Prince Mangosuthu Buthelezi and now the hon V F Hlabisa, this House with its rules and functions, will always be held in its highest regard. Any diversion from such rules by an individual IFP Member of Parliament, will immediately be addressed by our caucus with immediate internal action.
Unfortunately, the hooligans we see these days is now almost common plays in plenary sittings and must be effectively dealt with through the Rules.
Adv B J MKHWEBANE: Hon House Chairperson, on a point of order.
The HOUSE CHAIRPERSON (Ms M G Boroto): Alright. Mama Hlengwa.
Hon members on the platform, you can raise your hand. You do not just take the mic. What is the point of order?
IsiNdebele:
UGq B J MKHWEBANE: Sihlalo, ngibawa iphathelo ngokwenza njalo. Ilunga elihlohiphekileko alikwazi ukubiza amalunga ngabotsotsi.
Akahlehlise. Siyabawa.
English:
The HOUSE CHAIRPERSON (Ms M G Boroto): Hon Mkhwebane, in this state, the hon member is not referring to any member. The hon member is just talking about the hooligans that are not needed in Parliament.
We proceed.
Proceed hon Hlengwa.
English:
Ms M D HLENGWA: Thank you, hon House Chairperson.
Unfortunately, the hooliganism we see these days and now almost common place in further receiving ... [Time expired.]
IsiZulu:
Ningasiqeda kanjani isikhathi sami kuyini ... [Ubuwelewele.]
...
Adv B J MKHWEBANE: Ehe!
Ms M D HLENGWA: The IFP supports this report and the recommendations contained in it. I thank you. [Time expired.]
IsiZulu:
USIHLALO WENDLU (Nk M G Boroto): Hhayi! Besesiyivalile. Uma usukhuluma sivalile.
Mr S N SWART: Hon House Chairperson, the ACDP will support this report. It is important to note that it is almost 10 years that Parliament has been subjected to disruptions by the EFF. Yes, continuous actions have been taken, and today’s action is another result of actions and misconduct that took place in this House.
I think it is very important again to stress that a committee dealing with this disciplinary action is a multiparty committee and it is not as the assertions have been made that it is the Majority Party that is going after certain members. All of us in Parliament have been subjected to these disruptions where we wanted to hear the President to answer questions, where we have wanted to participate in debates and due to these disruptions, that right has been denied on all of us.
So, a very strong message must be sent that no longer will disruptions be tolerated and the best place to affect Members of Parliament is in their pocket. Therefore, the ACDP supports this report. I thank you.
The DEPUTY CHIEF WHIP OF THE MAJORITY PARTY: Hon House
Chairperson and hon members, good afternoon. In considering the report of the Powers and Privileges Committee into the conduct of the four EFF members one of whom has subsequently resigned, we are again subject to flagrant violations of the Rules of the National Assembly as agreed based on the principle that the majority of parties have agreed.
The Rules provide apple space where an individual who may feel aggrieved as has recourse in terms of the Rules to have their grievance listened to, any member who feels aggrieved by the ruling, can request that the ruling be referred to the Rules Committee for consideration and report.
In considering the ruling, the Rules committee must confine itself to the principle or subject of the ruling and not the ruling itself.
So, the events of the 30th of August 2022 really show a complete disrespect for the Rules and procedures that flow from them. In addition, the events show a complete disrespect for the majority of members in this House who have agreed to the Rules.
Hon House Chairperson, the showing of ongoing contempt for Parliament by members of the EFF as Members of Parliament indicates the contradiction we have to deal with. That the three members violated the Rules is not in dispute. The subcommittee’s decision and the National Assembly Rules Committee position supports this irrespective of what those have been found guilty of contempt of Parliament may think.
Let us remind ourselves of the charges. Failure to comply with an instruction by the Speaker to leave the National Assembly; improperly interfered or impeded the exercise or performance by National Assembly of its function; obstruction of other members for proceeding with the meeting in the National Assembly; improperly interfered with the performance by other members of their functions in the National Assembly.
Once again, we have the same humiliation spectacle in the National Assembly. Rules are bridged and misconduct continuous largely by one party in this House the EFF.
Being disrespected and taken for granted is the lowest form of politics that we get subjected to. This reflects political childishness and immaturity. When we raise this in the House,
all we receive is further vulgarity being held at those who are trying to uphold the decorum of the House by the EFF members.
So, it is a pattern, it is conscious, it is deliberate, and it is wilfully being done. These are not just spontaneous outburst. A situation is manufactured and an attempt to is made to generate consent for the manufacturing of the fallacy. When this fails, then we are subjected to insults. All of this in the direct bridge of the Rules we have agreed upon. And so, what the ANC will drive is decisiveness going forward in upholding the Rules and in dealing with those who are recalcitrant and have no intention to stop to do what they are doing.
When the President comes to the House, it becomes their opportunity to be disruptive to get media air space, disrespect for the President, for the House and other members of this House who are willing and who want to listen to the responses that the President is giving to them. It is what we know of the EFF.
Any person who can show such disrespect having given an undertaking to abide by the Rules will do exactly the same to the electorate they claim to represent. To the electorate, beware, be warned and we have warned you. You will be used and abused in the same way we are used and abused in this House.
The argument of the legal representatives of the affected members is again a rerun of what happens with the EFF. When they are in a corner, then the Rules are wrong and in the same case, because the Majority Party chairs the committee, it is inherently biased towards them.
Hon House Chairperson, an intellectually dishonest argument and a reflection of the poverty of intellect. Instead of addressing the substance and the essence of the charges, they attack the structure trying to claim that a committee was not properly constituted when the National Assembly has agreed to the structure and composition of such a committee reflects a poverty of argument.
Hon House Chairperson, constitutionally Parliament has the powers to decide its own Rules and procedures and we do not
need a retired judge to help Parliament to deal with its own internal arrangements.
Hon House Chairperson, the ANC supports the recommendations of the Powers and Privileges Committee. We will continue as Parliament to uphold the decorum of this House and make sure that there are consequences for those who have the intention to derail the business of this House. I thank you, hon House Chairperson.
Motion agreed to (Economic Freedom Fighters dissenting).
Report accordingly adopted.
The House adjourned at 16:18.