Archive | Justice, constitutional

Protected Disclosures Bill: employer to be involved

New Protected Disclosures Bill ups protection….

sent to clients 21 January……The Portfolio Committee on Justice and Constitutional Affairs will shortly be debating the recently tabled Protected Disclosures Amendment Bill which proposes a duty or responsibwhisleblower policyility on employers to explain and inform employees on the procedures for dealing with a whistle-blower’s disclosure and consequent issues surrounding.

The new Bill also makes it a clear requirement that employees should be informed by the employer that they are “entitled to exercise certain remedies if they are subjected to an occupational detriment as a result of having made protected disclosures”. Clearly, intimidation of the whistle blower is still the object of concern and still an issue.

The term “occupational detriment” is now to encompass any potential “detrimental behaviour suffered by those who previously fell outside of the scope of the Act”. It is also proposed that the definition of “disclosure” be amended.

Definition to include “workers”

An important feature of the new Bill is that the definition of a whistle-blower is also extended to in include “workers” rather than just employees. This therefore includes a person who has “worked” on the premises, i.e. to ensure that independent contractors, consultants, agents and persons working or who have worked for the State are included.

The Bill also seeks to re-define the expression “occupational detriment” to include an employee or worker being subjected to any civil claim for the alleged breach of a duty of confidentiality or a confidentiality agreement arising out of the disclosure of a criminal offence.

A clause states that if “occupational detriment derived from disclosure is proved in a court of law, employers will have to pay compensation or damages to the employee or worker.” Whistle blowers will be excused from criminal justice, it seems.

Law reform overview 

The Mlaw booksinister states in the objectives of the new The Protected Disclosures Amendment Bill, now to be debated in Parliament, that the changes emanate from the South African Law Reform Commission’s report on protected disclosures. The Bill will “empower employees to approach the court for relief in the face of detrimental behaviour shown towards them by employers” and “employees and workers will also be immune from civil and criminal liability flowing from a disclosure that reveals criminal activity.”

False whistle-blowing

However, it is to be noted that in reverse, as it were, should an employee knowingly or believing the information not to be true, disclose false information they will be guilty of an offence and on conviction is liable to a fine or to imprisonment for a period not exceeding two years or both.

The draft of the current Bill was published by the Minister for public comment in July last year, the purpose of the Act itself being to set down the procedure for disclosing unlawful behaviour in the workplace by both private and public sector employees and how such disclosure is to be protected.
Previous articles on category subject
Protected Disclosures Act: More whistleblower cover – ParlyReportSA

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Parliament: New legislation recently tabled

New legislation in the pipeline….

Sent to clients 16 Dec…… Of particular interest as far as new legislation is concerned affecting commerce, business and industry, Cabinet has approved a new draft Insurance Bill for tabling in Parliament.

In the same manner that “Twin Peaks” regulation has come to the finance and investment world, the Billmotor crash is intended to provide “a consolidated legal framework for the prudential supervision of the insurance sector that is consistent with international standards for the industry.”

It particularly focuses on risk management, capital and governance requirements and changes substantially both the Long-term Insurance and the Short-term Insurance Acts of 1998 relating to prudential supervision matters.

Lynne Brown refining public utilities

A draft African Exploration Mining and Finance Bill establishes this body, previously part of the public enterprises portfolio, as a legal entity in its own right, defines its mandate and sets out its strategic objectives. Minister Lynne Brown included this information in a recent briefing to the media on the Department of Public Enterprises annual report.

Whistleblower protection

Cabinet approved the introduction of the Protected Disclosures Amendment Bill, yet a further amending Bill to the Protected Disclosures Act of 2000. To the informed in the human resources profession, the amendments regulate joint liability; introduce a duty to investigate disclosures; provide for immunity against civil and criminal liability in certain circumstances; and criminalise intentional false disclosures.

The Bill contributes to government’s commitment to fight fraud and corruption by strengthening the protection of whistleblowers, said a cabinet statement on the subject.

Collecting the money

e-tollIn the transport world, Cabinet approved the introduction to Parliament in Cape Town of the Administrative Adjudication of Road Traffic Offences Amendment Bill which will “assist the Road Traffic Infringement Agency and the issuing authorities to be financially stable, and also introduces efficiencies in serving notices to infringers.”   Those in Gauteng will know a lot more about this.

Utilities: Who appoints whom

Of passing interest is the submission of a Broadcasting Amendment Bill to Parliament attempting to stabilise corporate governance and bring accountability to the state as the main shareholder and provide Parliament with greater ability to carry out oversight. If only Minister Lynne Brown’s draft Shareholder Management Bill proposals could be applied in this sector, the issue of appointing board members impartially might gain traction.

Cleaning up the Act

Also an amending Bill to the Films and Publications Act has been tabled which contains re-wording of many matters, particularly so far as the Internet is concerned, and the introduction of the “penalties” by a tribunal now set up, the composition of Penalty Committee being interesting.

This will (to paraphrase only slightly) “shall consist of four members, including a chairperson, who dark imagemust be a judge or retired judge of the High Court of South Africa an advocate or attorney with at least 10 years of appropriate experience;a magistrate or retired magistrate with at least 10 years appropriate experience; or a lecturer of law or a retired lecturer of law of a South African University with at least ten years appropriate experience.”

Four other members of the Penalty Committee shall have experience in or knowledge of any one or more of the following matters…law; law enforcement; regulatory matters; film, games, publications, arts, literature; or sentencing.”

The wording insofar as far as the last four members seems extraordinary clumsy.

Health Institute underway at last

aaron motsolaediTwo new health draft Bills are out for comment from the Department of Health (DOH).    Firstly a Bill to provide for the establishment for the long talked about National Public Health Institute (NAPHISWA); the preamble to the Bill stating that this entity will consolidate existing disease and injury surveillance; provide specialised public health services; institute public health interventions and provide training and research directed towards the major health challenges affecting South Africa.

Some idea of the strategy can be obtained from the composition of its board which is to include, other than the usual officials from DOH at senior DOH level, four specialists communicable diseases; non-communicable diseases; cancer surveillance; and injury and violence prevention. There will also be a member from a university school of health.

Secondly, a draft health Bill further amending the National Health Laboratory Service Act is also out for comment.

Other issues

Submissions were to be in on a draft Debt Collectors Amendment Bill by 30 November, so the finally revised version is to be expected to be tabled some time soon.

Similarly, the draft Carbon Tax Bill was out for comment until 15 December, and with COP21 in mind,carbontax1 the media statement issued at the time by Treasury stated that “a carbon tax seeks to price carbon by obliging the polluter to internalise the external costs of emitting carbon, and contribute towards addressing the harm caused by such pollution.”

No doubt the Budget 2016 will have this and other tax matters in tax portion of the Minister’s March presentation, if not before as a Money Bill.   As far as public comments were concerned, Treasury said it would take into account in the final Bill to Parliament comments received in writing; from meetings and workshops; “and from a wide range of stakeholders including business, NGOs, academia, civil society and labour.” They also wanted comment on “the design and technical details of the carbon tax policy itself and administration.”

parliament 6Parliament will then issue its own invitation for hearings before the standing Committee on Finance but whether any further debate will enable changes to be made rather depend on whether, as a tax Bill, the document is classified as a Money Bill or not.

However, it could be important for any submissions to be made on this invitation round, since whilst Parliament cannot alter a Money Bill, if it is one, but Treasury can after a re-think.

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Parliament under siege

NEHAWU strike chaos in Parliament…  

Editorial …Cultures under the microscope….

parliamentary committeeTwo cultures are developing in South Africa.  One is to lie to Parliament during oversight meetings, or to put it more politely telling “untruths” as was re-defined by one DA MP after being told to apologise during investigations into statements by the Department of Trade and Industry on who had leases or not in terms of the Centurion Aerospace Village issue.

The other unpleasant culture, which is also growing fast, is to ignore the separation of powers between Parliament, the Presidency and the Judiciary. Not that Parliament or the Judiciary has done anything wrong but certainly the Nkandla issue is a demonstration of where the problem might lie.

If such instances, particularly in the case of “untruths”, the media is usually quick to pick these things up and a whole horrid mess, whatever it is, comes out in the newspapers.  

As a parliamentary affairs website, we keep away mainly away from the lurid headlines but unfortunately we are witnessing more and more departments appearing before their relative portfolio committees appearing dysfunctional and without policy. This must relate directly to a Cabinet not in touch with the business of governing and government.

Eye not on the ball

Most of the Cabinet, especially No.1, seem to be travelling to conferences worldwide. The portfoliozumatravel committee on energy, for example has not met in three weeks nor is any meeting scheduled, at this stage, before Parliament closes.

However, departments controlled by Ministers and members of the SACP are indeed busy which would indicate either two factions within the Cabinet and two distinct attitudes towards the use of Parliament and the passage of legislation.

Consequently, we have ignored the two perfectly good opportunities to report on developmental issues or state policy in the transport area where failure of policy or malfeasance is represented either by poor governance or telling “untruths”.  This is where the journalists present do a good job.

Business alerts only

What went on in the SAA and PRASA presentations to portfolio committees, both reporting a litany of poor governance, lack of financial controls and dubious tender processing, probably represents everything you know already.   Quite clearly these two state entities have made a total mess of things but missing targets or who appointed their best friend to get the job is not what we are really interested in.

Sadly, it all comes down from the top and we have a feeling that the relationship between Parliament as a working tool of democracy and Cabinet will worsen as we head towards an election and attempt to please voters.

As an example, a ridiculous piece of legislation entitled the Traditional and Khoisan Leadership Bill has been withdrawn by the Cabinet and now referred by President Zuma to the Council of Traditional Leaders for the consideration first. This will result, if eventually comes before Parliament again and is bulldozed through, as being a forerunner in amending the Traditional Leaders Act Framework Bill in what appears to be a policy of establishing two systems of justice for South Africa.

Sand in the cogs

nehawuOn the second issue of Parliament not being allowed do its work, our President has said very little and certainly done nothing when a piece of land and buildings, not in Cape Town by law but in national South African territory and certainly a Key Point, was recently invaded by hooligans. Meetings have not been held for well over a week, except in certain essential cases such as Budget appropriation approval – probably, as one commentator sourly advanced, because nobody would get paid.

However, importantly, breaking up the working structure of Parliament is a completely different issue from the EFF being ejected from the National Assembly for breaking House rules.  This is a criminal issue.
In this case, a crowd waving sticks and knobkerries invaded committee rooms, singing so loudly that MPs could not think or converse with each other. The intent was clear. To break up Parliament. Most of the crowd were wearing red NEHAWU vests.

Embarrassing

All visitors, whether an official from Union Buildings, an Ambassador or a CEO from a corporate giant, have to obtain a special daily pass to get into Parliament by showing their credentials, yet none of these persons who broke into Parliament have been arrested or charged for wrongful entry. ParlyReportSA sits with many a consular representative as an observer and we hate to think what kind of reports are going back to Embassies, onwards and upwards.

It was a sad moment for the South African Parliament and even more sad that the violation neither disturbed the Presidency or invoked any retribution from the Speaker of the House. And it’s not because either party do not understand the Constitution but rather they seem not to care.

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Draft Cybercrime Bill drafts industry

sent to clients 12 October…..

Justice dept to combat cybercrime…..

cybercrimeA draft Cybercrimes and Cybersecurity Bill has been released for public comment by the Ministry of Justice and Constitutional development, proposing to introduce a number of measures to combat cybercrime in South Africa.

With the publication came the worrying but suspected statement that it was estimated  that cyber-related offences are escalating considerably and “currently exceed a value in excess of R1bn annually.” The Minister stated that it was the department’s view that the development of the proposed legislation “was a milestone towards building safer communities as envisaged in the National Development Plan” and aimed at putting in place “a coherent and integrated cybersecurity legislative framework to address various shortcomings which exist in dealing with cybercrime” in South Africa.

Powers

The Bill proposes regulations to allow a national cyber entity, “to investigate, search and access, or seize, as well aspects of international cooperation in respect of the investigation of cybercrime.”

Offences

Offences include “Personal information and financial information related offences; unlawful access; unlawful interception of data; unlawful acts in respect of software or hardware tools; unlawful interference with data; unlawful interference with computer device, computer network, database, critical database, electronic communications network or National Critical Information Infrastructure, unlawful acts in respect of malware; unlawful acquisition, possession, provision, receipt or use of passwords, access codes or similar data or devices; and, finally, any computer related fraud.”

The list of offences continues with “Computer related appropriation; computer related extortion; computer related terrorist activity and related offences; computer related espionage and unlawful access to restricted data; prohibition on dissemination of data message which advocates, promotes or incites hate, discrimination or violence; prohibition on incitement of violence and damage to property; prohibited financial transactions; infringement of copyright; harbouring or concealing person who commits an offence; attempting, conspiring, aiding, abetting, inducing, inciting, instigating, instructing, commanding, or procuring to commit an offence.”

Power of Internet

Whilst the list seems long, the Bill indeed gives some idea of the levels to which cybercrime has nowcybercrime3 reached but it also indicates the many forms of crime have turned to the Internet as a vehicle for criminal activities, both locally and internationally.

In addition, South Africa’s President is being given powers to “enter into agreements with foreign states to promote cyber security.”

The government is to establish what exactly are “national critical information infrastructures” and will provide for the establishment of a “point of contact” and various structures to deal with cyber security. Wording later in the Bill indicates that this will be called the “National Cybercrime Centre”.

National Cybercrime Centre

Once again, the communications industry is called upon to assist and impose “obligations on electronic communications service providers with respect to cyber security.” This is the clause that is bound to cause offence, even rejection because of cost and which appears to ask providers to do the work and with stiff penalties of up to R10,000 a day for every day the matter is not reported to the National Cybercrime Centre.

The clause reads, “An electronic communications service provider that is aware or becomes aware that its computer network or electronic communications network is being used to commit an offence provided for in this Act must (a) immediately report the matter to the National Cybercrime Centre; and (b) preserve any information which may be of assistance to the law enforcement agencies in investigating the offence, including information which shows the communication’s origin, destination, route, time date, size, duration and the type of the underlying services.“

Who is responsible

Earlier this year, at a cybercrime symposium in Johannesburg, the Minister of State Security said, “The Government’s approach in dealing with this matter is premised on the policy principle that national security, which includes the security of the information and communications technologies in the country, is a responsibility of the structures responsible for security in the Republic.”

This statement, when re-read, can obviously work in many ways and the Bill appears to do just this.

Other articles in this category or as background

http://parlyreportsa.co.za/communications/south-africa-needs-international-cybersecurity/

 

 

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President Zuma determined to push Traditional Courts Bill

Traditional courts mean two legal systems….

contralesa logoMinister of Justice Michael Masutha, has promised the return of the Traditional Courts Bill very shortly setting up a parallel system of justice in rural areas.  Minister Masutha was appointed by President in May 2014 and was answering a parliamentary written question.

The Bill was withdrawn last year in the form proposed.

The fact that the question was put by no lesser than Mathole Motshekga, the African National Congress chief whip and a member of the ANC department of legal and constitutional affairs, indicates a strong desire by President Zuma to see this Bill through during his tenure in office.

In his reply, minister Masutha, previously deputy minister of science and technology stated thejustice minister masutha introduction of the Bill would be accompanied by dialogue with all stakeholders and “the broader public”. The contents of the Bill will be extended to (inter alia) women’s groups, academics and the legal profession, he said.

Bill perceived as chauvinistic by many

The reason for mentioning women’s groups was no doubt specifically for the ears of those who furiously objected to the first version of the Bill including those of his own party and the then minister of justice, Lulu Xingwana.   It was said at the time that president Zuma had proposed the Bill as a trade-off with traditional leaders to get rural support.

opening parliamentOpposition leaders have stated that if the Bill is “anything like the first version it will not have a hope of passing a constitutional test” but, nevertheless, quite clearly justice minister Masutha must believe his new draft has got the wording right.

South Africa will have two legal systems

Whatever happens, the Bill is bound to give rise to objections from many from parties on a number of subjects not only from gender prejudice, to the aspect of legal anomaly and retarding constitutional development.

Dr Buthelezi, in his capacity as leader of the IFP, said of the last Bill that in debate in all nine provinces, five provinces gave mandates to vote to scrap the proposals, only two being favour, and even they did not support all the Bill’s provisions.  In the end, he noted, the Bill did not get past parliamentary committee stage in the NCOP. “Its end marked a major victory for rural people, who have opposed it since 2008”, he said.

Back to 1960

The point raised by Dr Buthelezi at the time was that such law that “would bring back oppression byLesedi traditional unaccountable leaders, many of whom were apartheid appointees, and it would also mean that the government is not committed to the equal citizenship as promised by the Constitution.”

His complaint was that the Traditional Leadership and Governance Framework Act of 2003 “locked rural people into the tribal boundaries created by the 1961 Bantu Authorities Act.”

“So now we not only have the resuscitation of the boundaries of the old bantustans but it is proposed that the chiefs are a fourth sphere of government within them.”   This, he concluded, was despite of the striking down by theof 2004 which gave control of land to traditional councils.

Bill “mediaeval”

lulu xingwanaLulu Xingwana said, as minister of justice at the time, said the proposals made in the Bill “took the issue of women’s rights back into mediaeval times”. Justice Minister Masutha, who will has tabled the Bill, comes himself from a small rural village in North Limpopo.  He studied for a BJuris degree at the University of Limpopo (then the University of the North) from 1985 to 1988, and obtained an LLB Degree from the University of the Witwatersrand in 1989.

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South Africa’s IP policy still hidden away

Drug impasse on IP (intellectual property) rights……

patents graphicThe simplistic public platform which is pervading the pharmaceutical debate on the long awaited IP policy – that persistent argument that  South Africa could be a ‘rogue’ state with scant regard for property rights – is constantly coupled with the call by local and international activists for drugs which are affordable to poorer families.

All has been re-heated considerably by protests in Pretoria but nothing has yet reached Parliament in the form of a serious proposal on IP that can be considered by pharmaceutical companies in order to bring certainty.

What now seems to be the situation is that both manufacturers and activists are calling for a fair and legally correct policy document on intellectual property rights which gives certainty but nothing is forthcoming.   At the same time, the claim was made in Parliament some time ago that South Africa just “rubber stamps” patent applications at a vast rate, only 1% going to local innovators.

And yet all know the incredible cost to find a successful HIV/AIDS vaccine. These costs must be recoverable, say pharmaceuticals, or innovation and research will stop. South Africa, like so many countries, is about to step into the unknown.

Problem not with CIPC

According to CIPC the questions of registration of patents is proceeding with new vigour but complainants make the point that no actual testing takes place. Ms Astrid Ludin, current CEO and IT guru was not in Parliament to make any presentations on the specific subject of IP and who remains “on suspension” it appears for some transgression on awarding contracts.

Ludin has an excellent reputation with DTI and in all probability she just wanted to get a job done, at high speed and quickly chose what she thought was the best thing to do. Unfortunately, that is not how red tape works.

Most critical : Invention or intervention?

It appeared some time ago that stakeholders were past the endless argument that South Africa wouldmedicines, pills make the market place unsustainable for pharmaceutical companies with important and much needed drugs if there is disregard for patents lodged after years of painstaking research. But this once again re-emerging.

Over 100 submissions, it is rumoured, were made on the original Policy IP document when it was first submitted for comment, so one assumes that Dr Rob Davies has a fair assessment on how stakeholders are feeling… but his department still refusing to tackle the issue, it appears.

Keeping the same show running

Meanwhile, activists have re-opened their claims that “tweaking” of an expired but well established drug takes place and new patent periods sought for twenty years on the same item, which cuts out the possibility of cheaper generics and innovation. Facts presented at recent conferences on the subject have also re-awakened the premise that South Africa is paying more than most developing countries for drugs.

The background of the delay is provided by a divisive scenario between two government departments – health and trade and industry – the latter department being responsible for the production of the new intellectual property policy stating South Africa’s position.

Too many pokers in fire perhaps

medicine bottleDespite the minister of trade and industry (DTI), Dr Rob Davies, trying to calm waters with the “going nowhere” statement of “We are moving in a direction in striking a balance between innovation, affordable medicines and to modernise our IP regime”, South Africa’s new intellectual policy (IP) policy seems to be sticking at cabinet level.

It is difficult to disregard the much earlier scandal involving the rumoured attempt by a Washington-based PR company to delay and modify the draft IP Policy, a move which infuriated both the minister and the department of health. The anger of minister of health, Dr Aaron Motsoaledi, was patently obvious at the time and there is no doubt that a sour taste in the mouth is left with many in that department.

Has to come to a head

medicines sans frontWith Treatment Action Campaign and Médecins Sans Frontières ratcheting up their campaigns – the latter specifically naming Pfizer on TB drugs that cost R10 in India and R600 in SA – and DTI’s minister Davies at present in the USA arguing on GAT agreements, the much needed IP policy will probably remain on the backburner for a short while longer.

Two things will happen eventually. Either the government publishes a gazette calling for comment on yet a further draft IP policy or an ATC notice is issued by Parliament announcing its tabling as a paper for debate.

Either way, minister Davies is likely to call a media briefing first.

Other articles in this category or as background
Intellectual property law still in limbo – ParlyReportSA
Intellectual Property Laws Bill goes forward – ParlyReportSA
Medical and food intellectual property tackled – ParlyReportSA
Medicines Bill: focus on foodstuffs – ParlyReportSA

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Pravin tackles COGTA intervention at local level

 COGTA getting somewhere with municipalities…..

pravin gordhan MTBSIt is quite apparent why the seemingly impossible task of integrating local, provincial and national government service has been given to minister Pravin Gordhan of cooperative governance and traditional affairs (COGTA). He seems quite determined that all provinces and municipalities have to deliver on their constitutional mandate.

His department of cooperative governance (DCOG) recently updated Parliament on the current situation, led by some opening remarks by the minister himself.   He went straight to the nub of the issue by stating that section 139 of the Constitution provided for intervention by the relevant provincial executive if a municipality could not or did not fulfil an executive obligation.

First steps

Whilst the Local Government Reform Act, passed in 2014, has helped considerably by refining local electoral areas nationally down to 137, whilst 95 municipal districts have been designated in most cases to correspond with electoral areas. Thus, more representative structures have been established although some suspected at the time this was an election ploy.

Stabilisation of local government was the key, said minister Pravin to parliamentarians, and the process of “Back to Basics”, one of the 16 SIP strategic items on the list of the National Development Plan, was the basis of the department’s 2015/6 annual performance plan. This to ensure municipalities performed in their dealings with local government at the coal face.

Minister Pravin said, “Local government plays a key role in determining whether people live with dignity and whether they are able to access economic opportunities, consequently contributing to the overall development of the country”.    Part of COGTA’s mandate, he said, was to understand and support the development of intergovernmental relations in all three tiers of government.

New Bill to make third tier accountable

vusi madonaselaVusi Madonsela, DG of DCOGTA, advised that they were “aiming to build accountability for performance in local government systems by setting and enforcing clear performance standards by March 2019. To this end a new Intergovernmental Monitoring, Support and Intervention (IMSI) Bill would be processed through Parliament.

The performance of municipal public accounts committees (MPAC’s) therefore in all “dysfunctional municipalities as well as municipalities with adverse and disclaimer opinions would be monitored and enforced”, he said.

Changing attitudes to debt

Madonsela also said, “The culture of payment for services would be encouraged nationally with campaigns” and part of DOCG’s task was to improve the ability of at least 60 municipalities to collect outstanding debt. He named other targets such as to strengthen anti-corruption measures by 2019 and to have achieved a full local government anti corruption tribunal systems working.

He also said DCOG would start with 12 districts to develop integrated development plans and eight cities and towns would also be supported and monitored in developing long term strategies and proper spatial development programmes.

Skills always the problem

Opposition members called on COGTA for better performance by local government training SETAs. Many institutions were conducting training programmes for councillors but in the process had found that many councillors literally have no skills or formal education. Madonsela responded by saying there were now regulations being passed to weed out unqualified persons and those with false CVs.

Minister Pravin agreed that some of the factors that led to dysfunctional local government structures included political instability and problems with service delivery and institutional management inability.  Councillors were nominated and appointed by their political parties, he said, and “perhaps it should be a conversation amongst MPs on how councillors should be appointed.”

Back to “Back to Basics”

The net result at the moment, said minister Gordhan, that one in three municipalities, according to a study conducted nationwide, were failing and the success of the “Back to Basics Programme” would now depend on inter-government transfers to bring in skills and changing the employment criteria to economic, tax and financial viability experience.

He concluded that his department was getting tough where municipalities had broken the law and some of the answers may lie in strengthening district municipalities with specialists and merging some municipalities.   Another option was to abolish local municipalities completely and in their stead, start again with district management areas but he did not elaborate on this.
Other articles in this category or as background
Municipal free basic services slow – ParlyReportSA
Local government skills totally lacking – ParlyReport
Electricity connections not making targets – ParlyReportSA

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Zuma goes for traditional support with expropriation

Editorial….

Session ahead may bring clarity on expropriation…….

NAIt is a difficult time for business and industry to establish exactly where they are in terms of the legislative environment in South Africa, land expropriation and state or BEE participation being mainly the issues.  However, the cabinet must be aware of the need expressed in many circles for more certainty in terms of the investment climate.

The Bills held back by the Presidency for re-consideration or signature are re-emerging slowly back into the public sphere.   Aside from the highly controversial Traditional Courts Bill adding power to the arm of President Zuma’s supporters in rural  leadership roles but offending women’s rights groups, now re-tabled in Parliament in a different form, as a section 76 Bill, is the Expropriation Bill.

Being a 76 section Bill means that the proposed changes and the formation of a state valuator’s office as thezuma traditional final arbiter on land restitution will have to be debated in all nine provincial legislatures and a mandate provided to the National Council of Provinces to gain concurrence with any vote on the Bill taken in the National Assembly. 

It is interesting to note that some time ago, President Zuma let it be known that he would also like to see this Bill considered by the House of Traditional Leaders. This is probably in the light of the debate now emerging that traditional chiefs were not consulted properly, if at all, in terms of the Restitution of Land Rights amendments.

Serving notice

Crucially, the Expropriation Bill still seeks to allow any ‘expropriating authority’ to take property by serving a notice of expropriation on the owner stipulating the value the state will pay, presumably according to the state valuation if there has been an appeal.

Commentators have noted that the new Bill differs in that the state may then serve a further notice of expropriation, which could be less, more or not necessarily revised at all, and the owner will be deemed to have accepted that transfer of land to the state unless the owner commences litigation within 60 days.

The short amount of time to respond and appoint and brief counsel and the fact that litigation, a highly costly process (costs being to the owner not the state), will no doubt be an issue debated extensively in Parliament. At this moment the main opposition party has been caucusing on the Bill. The fact that the Bill will now have to be debated in all nine provinces will leave a fluid situation for some time yet.

Struggling to produce

The Protection of Investment Bill remains an unknown quantity. Speaking to the DTI legal advisor, all he could say was “We are struggling with it”. 

Similarly, no tabling notice has been published with regard to the Private Security Industry Bill.

No energy  outcome

At the time of writing the “Five Point Energy Plan”, promised by the cabinet “war room”, has also not been presented to Parliament, the minister of energy advising all that it was necessary to have first a trip to the DRC and discuss the Grand Inga Hydro project.

Instead of her unadvised non-appearance in Parliament, a presentation by the department of energy took place, monitored in this report. What did emerge however was that future regarding the intended energy mix is also very fluid, there clearly being a division of interest in what is necessary to bring about in the short term better service delivery to the poor and in the longer term the needs of investors.

Traditional support

Time and time again, since his state address to the nation, President Zuma, where land matters are concerned, has made reference to the Council of Traditional Leaders, the majority party having no doubt realised that this base of power can either be pacified or radicalised – a very sensitive area and where the least service delivery by government occurs.

In his speech opening the National House of Traditional Leaders, he encouraged traditional leaders to take advantage of the 2013 Restitution of Land Rights Act as amended and rushed through at the end of the last Parliament and for them to put in claims.

The amendment Bill passed reopened the window for lodging restitution claims, but retains the restriction that dispossession must have taken place after 1913. The hints by the President in subsequent days in further briefings that the date of 1913 “is negotiable” have led to further claims being notified some of them apparently going back many hundreds of years. 

Once again, this will only be finalised when parliamentary debate finally takes place as the issue is bound to be raised but the whole matters adds to current uncertainty.

Hole in the pocket

Meanwhile the budget for what can be paid out in the form of restitution has been decided by minister of finance Nene and was presented in the last budget to Parliament in the current session.

President Zuma’s reference in Parliament to land held by foreigners in the state of nation address produced an unfortunate atmosphere which was somewhat mollified by off-the-record remarks by ministers to the media but no legislative clarity for Parliament to consider has emerged.

Indeed, a difficult time for business and industry, not forgetting that the Eskom issue is about to be raised again in forthcoming portfolio committee meetings in the coming week, hopefully bringing some clarity to the issue of reliable electricity supply.

Editorial only

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Debate on Nkandla to intensify

Facts on Nkandla with MPs…..

effIn an internal parliamentary question paper, M Khawula, an MP of the IFP-KZN, asked for a reply in writing from the minister of police to his question, “Which structures, buildings and/or areas have been declared national key points and, secondly, what qualifies such to be declared national key points.”

He was not to know that minister of police, Nkosinathi Nhleko, would be forced out of blustering and show that president Zuma’s country homestead in the hills of KwaZulu-Natal, Nkandla, was indeed a national key point whereas, as illustrated by a newspaper in the parliamentary recess, nuclear experimental station, Pelindaba, north of Johannesburg, was not.

The reply in writing from the minister in the parliamentary replies of 19 September, in response to Nhleko’s question, was as follows, “To publish or to make known a list of all national key points would to a large extent defeat the purpose of the National Key Points Act 102 of 1980, namely the protection of such NKP’s. It is therefore not policy to provide such a list for public knowledge.”

When is a key point not one?

The minister added to the written note, “In terms of the National Key Points Act, section 2 deals with the declaration by the Minister of Police and I quote; “Declaration of any place or area as a National Key Point.

(1)  If it appears to the Minister at any time that any place or area is so important that its loss, damage, disruption or immobilization may prejudice the Republic, or whenever he considers it necessary or expedient for the safety of the Republic or in the public interest, he may declare that place or area a national key point.

(2)The owner of any place or area so declared a national key point shall forthwith be notified by written notice of such declaration.

That was the full extent of the reply from the minister.      Meanwhile in the recess, the opposition has written to the Speaker of the House, requesting that President Zuma be forced to respect the Constitution and answer questions from MPs in the National Assembly orally on a regular basis.

Weight of the law

settlement_law_justice_In the meanwhile during the recess, Judge Roland Sutherland in the Johannesburg high court  ordered the minister to hand over the list of national key points and national key point complexes in “the next thirty days” to the parties complaining, who were the Right2Know Campaign and the South African History Archive. Such was finally acceded to.

It is now understood from a statement made at the proceedings by the Mail and Guardian, who joined the action as a friend of the court and who were represented by advocate Matseleng Lekoane, that according to the Act, security guards are allowed to search and seize peoples’ belongings if the people were in a national key point. “They were also allowed to use guns to do this”, she said.

Adv. Lekoane argued that if this was the type of reaction that people, including journalists, might face, then they had the right to be prepared for it. “You need to know the status of a place so you can inform your conduct,” she argued.

Just so we know

The advocate representing Right2Know campaigners, Steven Budlender, had earlier complained that his client was only asking for the names of the places not the addresses.

In any case, he added, it would not make a difference to the country’s security if places like OR Tambo International Airport were publicly known as national key points.  This is because, Budlender said, the “dark forces” that the minister’s counsel feared would inflict harm on the country do not need to be told that a place is important. They would already know.

He was responding to argument made by counsel for the minister of police who said that revealing which buildings and places were NKPs would place national security at risk. “This does not stand up to logical scrutiny”, said Budlender.

Judge Sutherland said minister Nhleko’s refusal to release the list was unlawful and unconstitutional, and ordered the ministry to pay the legal costs.   The matter will no doubt be tabled for discussion in the next parliamentary session by which time it will be even clearer what the realtionship  between President Zuma and Parliament will be after his State of Nation Address.

Maybe appeal

However, debate at parliamentary committee working level will now be at a different level in the new session . The facts are there and what was fog in a bucket is now in the open for proper debate.

Other articles in this category or as background
http://parlyreportsa.co.za/cabinetpresidential/nkandla-debate-rekindled-da/
http://parlyreportsa.co.za/cabinetpresidential/nkandla-ndp-argument-rages-go/

Posted in cabinet, Cabinet,Presidential, earlier editorials, Facebook and Twitter, Justice, constitutional, LinkedIn, Public utilities, Security,police,defence0 Comments

Small Claims Court South Africa

State protected in small claims courts

legalSmall Claims Courts Act to be changed….

A proposed Bill, the Small Claims Courts Amendment Bill, will re-define what is meant by “the state”  by including all three tiers of government and all state employees, whereas it did not before.   Also, it will also protect employees of the state against any actions that may be brought against employees through the small claims court legal process for third party liability whilst on state duties.

 

The background to the draft Bill makes it clear that the proposals will not prevent any action against the state in terms of normal legal process but only prevents a party from bringing such action in a small claims court.

Draft out for public comment

The Bill, shortly to be tabled in Parliament after a period of public comment notes as a background that small claims courts were established in terms of the Small Claims Courts Act to provide an inexpensive and accessible adjudication forum to individuals in respect of relatively small monetary claims that are not of a complex nature.

The maximum amount of a claim in a small claims court is presently fixed at R15,000.

Small claims courts are presided over by commissioners, appointed mostly from the ranks legal practitioners who deliver such a service free of charge. Legal representation is not allowed in a small claims court and a judgment of the court is final and cannot be appealed against.

Motor accidents

It would appear that recently claims in small claims courts have been made against state employees in their personal capacity for acts or omissions performed while on official duty including, in one case, a claim against a state employees for damages arising from a car accident whilst on state duty.

The overall principle behind the Bill is therefore to protect employees of the state from actions in the small claims court by stating any actions “against functionaries or employees of the State, in their personal capacity, in respect of their acts or omissions in the course of performing their official duties.”

 

Posted in Facebook and Twitter, Justice, constitutional, LinkedIn0 Comments

Expropriation of land stays constitutional

Minister now quoted in Parly minutes…

In a press media briefing and subsequently in a meeting of the rural development and land reform parliamentary portfolio committee, minister Gugile Nkwinti confirmed that the whole process of land restitution for black persons dispossessed of their land was to be re-opened for a period of five years.   Under questioning, he confirmed that no constitutional changes were envisaged.

During the course of the minister’s departmental presentation on strategy leading to the budget vote, a week later in Parliament, the minister, when confronted by opposition MPs asking for a direct answer as to whether he would call for constitutional change on property rights or not, replied that there was “no such question arising.”

There was considerable satisfaction from opposition members as a consequence since such a statement, they said after the meeting disposed of fears of arbitrary state expropriation of land.

WSWB gone

Nevertheless, the minister was clear in his responses that the process of “willing seller, willing buyer” had been abandoned as a state mechanism.  He emphasised that whilst the principle of market valuation would still apply, it would be up to the new state valuator to establish price and not the parties involved to barter, sometimes endlessly, he commented.

Subsequently, in the newly proposed Bill on property valuation itself, the position was more clearly expressed with the proposal of an office of a Valuer-General,which the department said in its briefing to parliamentarians, had been necessary in order ” to establish an entity to carve through the current settlement process”.

The minister stated during his briefing at the time to parliamentarians that since its inception, the state’s restitution programme had benefited some 370,000 households.   This meant, he said, that some 1.83m persons had benefited so far from the process, as against an estimated 3.5m people who had been “forcibly removed from their land as a result of colonialisation and racial and discriminatory laws”.

The new closing deadline for lodgement of land claims has now been set for mid 2019 and a booklet on how to lodge a claim was circulated amongst members and which is now in public circulation.

The minister emphasised his point that claim forms would not be distributed but that  claimants, whether they be a direct descendant, a juristic person such as a company or trust  or a “representative of a community”, who felt they had a right because they were dispossessed of land rights had to call first upon a land affairs lodgement office.Mobile lodgement offices would visit all areas, the department told MPs, and the lodgement process required no fees.

Backlog

Under questioning, the minister confirmed that over 8,000 claims were still outstanding from the previous lodgement process and that these would be finalised with the new process now being instituted.    R24bn has so far been expended in financial settlements or land purchases.

The minister said he had not set a target for any new claims but he was confident that the programme would be achieved at a faster rate this time around because claims could be lodged electronically.

Disquiet was expressed by some MPs that land acquisition and financial compensation were the choice for claimants.   Some MPs expressed the view that they were “uncomfortable” with a monetary solution as a solution to dispossession as this almost amounted to a bribe.

DA MP Thomas Walters said in his view the reason for the slow rate of land occupation was not, as the ANC claimed, the result of whether or not there was a solution on the willing-buyer, willing-seller principle but rather a reflection of the fact that 92% of land claimants preferred to take cash pay-outs instead of working the land and creating jobs.

Minister Nkwinti stated that both avenues of compensation were a correct solution since in all approved cases, the parties had been wronged and deserved redress.

What started the latest row

As part of the package, minister Nkwinti said, he had made a further proposal, much publicised, that farm workers would be enabled by law to have a share of the land they have worked on according to their service in years.     Public comment had been called for and the results would be put to Parliament.    Only then could the final result become a debatable issue.

Minister Nkwinti made special reference to the complex issues surrounding land acquisition and land claims in the Western Cape, which he said were “very complex”.    In answer to questions on the Khoi and San issues and their claims going back further into South Africa’s history, the minister said the current process was to reverse the legacy of the 1913 Native’s Act and the damage caused by apartheid.

However, he said, some sort of agreement had to be made on the Khoi and San issues and in one instance already such matters had been dealt when applicants had asked for preservation of an area as a heritage site and government had made the acquisition accordingly.    A separate report to the President’s Office was to be made on the Khoi and San issue.

EFF members of the committee rejected the proposals as unworkable and said they “would not turn around the situation where the majority farm workers who had been evicted over the years would see redress and where 40,000 white farm owners remained owning agricultural land.”

Other articles in this category or as background
http://parlyreportsa.co.za//cabinetpresidential/new-approach-to-land-reform/
http://parlyreportsa.co.za//cabinetpresidential/minister-says-need-for-legislation-on-land-reform-a-priority/

Posted in Facebook and Twitter, Justice, constitutional, Land,Agriculture0 Comments

Protected Disclosures Act: More whistleblower cover

Act to cover workers and state employees…

whistleblowerWhat was expected has now arrived in the form of an amending Bill to the Protected Disclosures Act, or “Whistleblowers Act”, which will draw contract workers, independent contractors, consultants and agencies into the ambit of the legislation, as well as state employees and employers.

The draft is for public comment until mid July, such being called for by the proposers, the ministry of justice and correctional services.

In the first case, the term “independent contractors” will embrace protection for contract workers in terms of the Act together with the already described basic terminology of “employees”.   Secondly, the proposals clearly identify state employees who are working, or who have worked, for government and state utilities.

Much strengthening of the Act to protect whistleblowers is evident, including a procedure for disclosing unlawful behaviour in the workplace by both private and public sector employees and how such disclosure is to be protected.

Civil and criminal liability

The draft bill proposes that whistleblowing employees can approach the courts for relief in the face of detrimental behaviour shown towards them by employers and that they will be immune from civil and criminal liability flowing from a disclosure that reveals criminal activity. Also, the disclosure of false information by whistleblowers is to be regarded as an offence.

As a separate issue, the Bill now places upon the employer a responsibility to set up appropriate procedures for dealing with disclosures and to inform all employees and workers about such. Also there is a duty to investigate any protected disclosure. President Zuma alluded to these whistle blower safeguards in his State of Nation Address.

If occupational is proven in a court of law, then employers will then be liable for “detriment or victimisation befalling an employee” and there will exist a liability for compensation and/or damages to the employee or worker, the draft states.

Employee safeguards

The kinds of “occupational detriment” from which the whistleblower is protected is also described, such as being subjected to any disciplinary action; being dismissed, suspended, demoted, harassed or intimidated; being transferred against his or her will; being refused transfer or promotion; being subjected to a term or condition of employment or retirement which is altered, or kept altered, to his or her disadvantage; and being refused a reference, or given an adverse reference.

At the same time, the proposals define more clearly the “irregularities” described by the anchor Act to which whistle blowing can apply, these now being defined as criminal offences; failure to comply with legal obligations; miscarriages of justice; the endangerment of the health or safety of individuals; damage to the environment; and unfair discrimination.
Other articles in this category or as background
http://parlyreportsa.co.za//cabinetpresidential/logjam-has-to-be-broken-over-halted-state-information-bill/

Posted in Facebook and Twitter, Justice, constitutional, Labour, LinkedIn, Public utilities, Trade & Industry0 Comments

Mineral and Petroleum Resources Bill halted perhaps

Mineral and Petroleum Act extends State rights…

New MPRDA starts with 20% free carry, maybe more….

oil rigThe Mineral and Petroleum Resources Development Amendment Bill, the legislation that will give the state a right to a 20% free carried interest in all new exploration and production rights in the energy field, has been passed by Parliament before it closed and sent to President Zuma for assent. According to press reports, new minister of mineral resources, Ngoako Ramatlhodi, may have halted the process by request, however, in the light of public sentiment and opposition moves to challenge the Bill’s legality.

Section 3(4) of the Mineral and Petroleum Resources Development Act (MPRDA) currently states that the amount of royalty payable to the State must be determined and levied by the Minister of Finance in terms of an Act of Parliament. This Act, in force, is the Mineral and Petroleum Resources Royalty Act 28 of 2008 but considerable uncertainty always surrounded how this would work and what was actually meant.

Any uncertainty has now been removed and the MPRDA amendments now passed have brought to an end a process which started when the draft Bill was first published for comment in December 2012.

Beneficiation of minerals included

mine dumpThe legislation seeks to “regulate the exploitation of associated minerals” and make provision for the implementation of an approved beneficiation strategy through which strategic minerals can be processed locally for a higher value – the exact definition of the word “beneficiation” yet having to be defined.

Importantly, the new Act will give clear definitions of designated minerals; free carried interest; historic residue stockpiles; a mine gate price; production sharing agreements; security of supply and state participation generally.

Stockpiles and residues affected

The new Act also states that regulations will apply to all historic residue stockpiles both inside and outside their mining areas and residue deposits currently not regulated belong to the owners. Ownership status will remain for two years after the promulgation of the bill.

In addition to the right to a 20% free carried interest on all new projects, ownership by the state can be expanded via an agreed price or production sharing agreements.

The NCOP concurred with Bill on its passage through Parliament and made no changes.

Legal commentators note that the Royalty Act, at present in force, triggers payment in terms of the MPRDA upon “transfer”, this being defined as the consumption, theft, destruction or loss of a mineral resource other than by way of flaring or other liberation into the atmosphere during exploration or production.

The Royalty Act differentiates between refined and unrefined mineral resources as “beneficiation”, this being seen as being important to the economy; incentives being that refined minerals are subject to a slightly lower royalty rate.

Coal and  gas targeted maybe

Nevertheless it appears, commentators note, that in terms of mineral resources coal is being targeted and also zeroed in on is state participation in petroleum licences. Others have pointed to the possible wish of government to have a state owned petroleum entity such as PetroSA to be involved fracking exploration.

Earlier versions of the Bill entitled the State to a free carried interest of 20% and a further participation interest of 30%, with the total State interest capped at 50%; however, the version that Parliament approved removed the reference to a 30% participation interest as well as the limit of 50%, effectively giving the State the right to take over an existing petroleum operation, law firm Bowman Gilfillan explained in a media release earlier this month.

Democratic Alliance (DA) Shadow Minister of Mineral Resources, James Lorimer said in a statement that the Act, “would leave the South African economy in a shambles”, adding that this would lead to people losing their jobs.

The DA has said it has now begun a process to petition President Zuma, in terms of Section 79 of the Constitution, to send this Bill back to the National Assembly for reconsideration,” he said.

Chamber opinion differs

Surprisingly, the Chamber of Mines stated that it “generally welcomed and supported” the approval of the MPRDA Amendment Bill, adding that it believed significant progress had been made in addressing the mining industry’s concerns with the first draft of the Bill, published back in December 2012.

Clearly the mining and petroleum industries particularly gas exploration industries, both of whom have separate equity BEE charters, are still very much at odds on the effects of the promulgation of such an Act, as is DA and the ANC.

Other articles in this category or as background

http://parlyreportsa.co.za//bee/mprda-bill-causes-contention-parliament/

http://parlyreportsa.co.za//bee/major-objections-minerals-and-petroleum-resources-bill/

Posted in BEE, cabinet, Energy, Facebook and Twitter, Fuel,oil,renewables, Justice, constitutional, LinkedIn, Mining, beneficiation, Public utilities, Trade & Industry0 Comments

State Attorney Bill introduces Solicitor General

State Attorney Bill part of jigsaw transforming legal system…

Justice minister, Jeff Radebe, during the closing days of the last government, stressed that the State Attorney Bill and appointing South Africa’s first Solicitor-General is part of  the department of justice plan for the transformation of state legal services.

A Policy Framework for the Transformation of the State’s Legal Services was published for comment as far back as 2012 and Minister Radebe said the changes in the judicial system, and the role of the judiciary in the developmental South African state, has been part of his ministry’s role in the past five years.

The department’s policy framework aims to “develop legal skills in the private sector through the equitable outsourcing of legal work to previously disadvantaged individuals in order to redress the imbalance of past discriminatory practices in the legal profession and the state”, this particular Bill being part of the process.

The Bill extends this framework to include:

•    The department to include an office of the state attorney and its branches
•    All such state entities to be subject to Public Finance Management Act
•    Private legal firms and legal practitioners contracted by the state

According to the Bill’s memorandum, a priority intervention is to “consolidate and integrate services within the Department under a new head in order to ensure that litigation against and on behalf of the State is well managed”.

Minister Radebe said, “The Solicitor-General will be the State’s chief legal adviser in all civil litigation, similar to the role of the National Director of Public Prosecutions in criminal matters”. The bill also calls for a re-arrangement of the offices of state attorneys and allows for their appointment.

The Bill was concurred to by the NCOP and the State Attorney Bill now goes to the President for assent.

Other articles in this category or as background

http://parlyreportsa.co.za//bee/justice-department-changing-the-face-of-small-claims-courts/

Posted in Facebook and Twitter, Justice, constitutional, LinkedIn, Special Recent Posts0 Comments

Parliament closes with many Bills outstanding

The last dash…..

Houses_of_Parliament_(Cape_Town)As the ANC put it so succinctly on their website, currently there are twenty five Bills before National Assembly (NA) committees; plus four returned to the NA from National Council Of Provinces (NCOP) for concurrence; plus three on the NA order paper for second reading debate; and eleven before NCOP committees. “We believe Parliament should give special attention to ensure they are passed into laws”, they said. Time clearly is of the essence.

Two weeks before Parliament closed therefore there were forty odd Bills which, in the normal process, should be passed before the elections so that the current government, who tabled them, can see finalisation of their intent.

SONA promises “radical” legislation

Parliament has now been through the critical period of the State of Nation Address during which President Zuma promised “more radical Bills with the coming of a new government”; a Budget which was neutral to the point of being understated and, now, a rush to get through a raft of legislation before the current session of Parliament ends.

The usual warning to forgive political rhetoric in the hectic period before elections is this time tempered by the concern that the “fast tracking” of legislation can lead to laws, and consequently regulations, that have either unintended consequences or are overlaid with the need to achieve political ends without regard to business consequences, or the need for free flow of foreign investment.

There are two schools of thought on this.  One is that South Africa must lead others in the fight to achieve both redress for the past and correct the imbalance between rich and poor. The other is that to achieve growth and create jobs, the private sector has to flourish and feel comfortable in its environment.

Posted in Cabinet,Presidential, Justice, constitutional, Trade & Industry0 Comments

Equity quotas court ruling affects BEE legislation

Employment equity quotas as numbers only struck down….

On equity quotas, the Employment Equity Act, as anchor legislation, and thus the recently approved Employment Equity Amendment Bill, has come under query as a result of a recent case heard in the Supreme Court which has found the Act is in default where numerical formulas only are applied to racial quotas in order to comply with regulations.

In fact numerical quotas are illegal, said the Court. In dealing with case before it, the Court found that this had been applied, the appellant failing to achieve an appointment based the fact that racial quota targets had been applied in terms of black empowerment legislation.  The defendant was the minister of police.

The court further found the Act in contradiction of itself by being unfair if it regulated itself to achieve employment equity with just numbers, as distinct from “preferential treatment and numerical goals” being applied, as has been applied in government circles elsewhere.

A whole host of applications applied by many government departments would therefore seem to be in contravention of the Act, since many departments rigidly use number quotas to achieve equity targets across a wide range of the public service.

Posted in BEE, Cabinet,Presidential, Facebook and Twitter, Justice, constitutional, Labour, LinkedIn, Public utilities, Security,police,defence, Special Recent Posts, Trade & Industry0 Comments

Intellectual Property Laws Bill goes forward

Intellectual law may conflict with international norms

The Intellectual Property Laws Amendment Act (IPLAA) has been assented to by the President and published in the government gazette. However,this will only come into effect on a date to be fixed by the President, probably in the first half of 2014. There have been a number of moves by government in the intellectual copyright area recently.

This move came despite widespread opposition to IPLAA which amends the South African Performers’ Protection Act, Copyright Act, Trade Marks Act and Designs Act.

Indigenous knowledge the target

The aim of IPLAA is, inter alia, to provide for the recognition and protection of certain manifestations of indigenous knowledge as a species of intellectual property. Quite clearly this is what motivated the original draft and was the policy behind driving the legislation through.

Commentators in the legal profession, particularly those closely connected and knowledgeable on international intellectual property law are highly critical of the Bill and further appeals, or at the least amendments are expected to be sought regarding certain provisions of the new Act.

Posted in Facebook and Twitter, Finance, economic, Justice, constitutional, LinkedIn, Special Recent Posts, Trade & Industry0 Comments

Medical and food intellectual property tackled

Medicine, food and education all affected….

patientA National Policy on Intellectual Property document has been published by the minister of trade and industry for broader public comment, cabinet approval having been already been obtained. The document is described as being very much a draft.

According to the policy’s objectives, it aims “to improve access to intellectual property-based essential goods and services, particularly education, health and food” and “introduce a public health perspective into intellectual property laws”.

Multitude of intellectual property issues

The document  is also meant to inform legislative bodies on a multitude of intellectual property-related legislation matters, according to Macdonald Netshitenzhe, chief director of policy and legislation at the department of trade and industry (DTI), who has been responsible for the proposals.

In the background to the Bill, it states that the policies proposed are “meant to co-ordinate and streamline intellectual property legislation within South Africa.”

A 30-day public comment period on the policy closed on October 4 and Netshitenzhe says that the policy is meant to be a framework for discussion on intellectual property legislation within South Africa. He is clearly expecting dissenting views, which he says are welcomed.

A number of highly critical legal dissertations have already appeared on the web. One of the principal suggestions of the new proposals is to tighten up on patent criteria in order to avoid the granting of combinations of previously existing drugs, or finding a new uses for a medicines already on the market.

Patent application procedure changes

The policy also suggests allowing for patents to be opposed before and after they are granted. Currently in South Africa, patents can only be fought through a court challenge, and only after a patent has been granted.

Most notably, the policy also recommends a patent examination system. Currently, South Africa hosts a patent depository system, through which patents are granted so long as paperwork is submitted and fees paid, without the substance of the patent application being considered.

Médecins Sans Frontières, who are known to have been in contact with DTI on the policy matters, will be submitting comments, and, as Netshitenzhe explains, once the public comment period concludes, the amended document, including those comments, will be brought to Cabinet who may suggest further changes before giving its approval.

DTI says a final policy will only vetted by Parliament probably in the first portion of next year.
Refer to articles in this category
http://parlyreportsa.co.za//cabinetpresidential/carbon-tax-comes-under-attack-from-eskom-sasol-eiug/
http://parlyreportsa.co.za//energy/new-air-quality-act-to-deal-with-major-polluters/
http://parlyreportsa.co.za//energy/eskom-warns-on-costs-of-new-air-quality-rules/

Posted in Earlier Stories, Facebook and Twitter, Health, Justice, constitutional, LinkedIn, Public utilities, Trade & Industry0 Comments

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