ATC130306: Report of the Portfolio Committee on Trade and Industry on the Intellectual Property Laws Amendment Bill, dated 6 March 2013
Trade, Industry and Competition
Report of the Portfolio Committee on
Trade and Industry on the Intellectual Property Laws Amendment Bill, dated 6
March 2013
The Portfolio
Committee on Trade and Industry, having reconsidered the
Intellectual
Property Laws Amendment Bill [B8B-2010]
(Introduced in the National
Assembly as a sec 75 Bill) and the Presidents reservations on the constitutionality
thereof (Announcements,
Tablings
and Committee Reports,
26 September 2012), [and having conferred with the Select Committee on Trade
and International Relations], reports as follows:
1. In a letter dated 19 September 2012, the President of the Republic informed
the National Assembly that he had reservations about the constitutionality of
the
Intellectual Property Laws Amendment Bill
[B 8B-2010]
(National Assemblysec 75)
and that, consequently, he was referring the Bill back to the National Assembly
for reconsideration in terms of section 79(1) of the Constitution.
2. The Presidents reservations relate to the following
:
(a) Concern had been expressed that the Bill should be tagged as a money Bill.
However, the President has satisfied himself that it is not.
(b) The provisions of the Bill affect certain matters listed in Schedule 4 of
the Constitution (which are not necessarily the main subject matter of the
Bill), in particular, traditional leadership and cultural matters, and should
therefore be dealt with in terms of section 76 of the Constitution.
(c) The Bill ought to have been referred to the National House of Traditional
Leaders in terms of section 18(1) of the Traditional Leadership and Governance
Framework Act, 2003 (TLGF Act No. 41 of 2003).
3. The Committee, having considered the Presidents reservations, reports as
follows
:
(a) The Committee concurs with the Presidents view that the Bill is not a
money Bill and therefore does not fall under section 77 of the Constitution,
1996.
(b) With respect to the Presidents reservations that provisions of the Bill
substantially affect certain matters listed in Schedule 4 of the Constitution,
in particular traditional leadership and cultural matters, and should therefore
be dealt with in terms of the section 76 of the Constitution, the Committee
requested an opinion from the Joint Tagging Mechanism (JTM). The JTM concurred
with the Presidents reservation and the Committee agrees that the Bill should
be dealt with in terms of section 76 of the Constitution as it affects
cultural
matters
in a substantial manner.
(c) The Committee has taken note of the Presidents reservations that section
18(1) of the Traditional Leadership and Governance Framework Act, 2003 has not
been complied with. However, the Committee believes that section 18(1) of the
Traditional Leadership and Governance Framework Act, 2003, has been substantially
complied with in that input from the National House of Traditional Leaders
(NHTL) was solicited and written and verbal submissions were received by the
Committee from the NHTL. The Committee therefore believes that section 18 (1)
of the Act was complied with and that no further referral is necessary.1
4.
Minority views expressed on the following aspect of the
report.
The Committee has reached a different opinion than the Presidents with respect
to compliance with section 18(1) of the Traditional Leadership and Governance
Framework Act, 2003. This decision was on the basis of a legal opinion which
states that the only difference between the peremptory formalities required
by the statute is that the Bill was referred to the NHTL by the Chairperson of
the portfolio committee rather than the Secretary of Parliament. The facts are different.
The Chairperson did not request comments in terms of section 18(1) of the Act
but invited its comments. Hence the NHTL did not meet formally and deliberate
formally as a collegial body.
5. After deliberations the Committee recommends: That -
5.1 the decision of the House, on 21 November 2011, to pass the Intellectual
Property Laws Amendment Bill [B8B-2010] as a section 75 Bill be rescinded
;
5.2 the Bill [B8-2010] referred to in 5.1. above be referred to the Joint Tagging
Mechanism for re-classification
;
5.3 notwithstanding 5.1 above, the Bill [B8-2010] passed by the House now be
regarded as duly introduced and referred to the Portfolio Committee on Trade
and Industry for consideration and report; and
5.4 the Committee incorporates in its work the proceedings and all the previous
work of the Committee up to the Second Reading of the Bill.
The DA and IFP objected to the Committees decision in 3c above.
Report to be considered.
Documents
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