Archive | Cabinet,Presidential

By-passing Parliament at one’s peril

….editorial,  30 May 2020

Regulations mania hits South Africa …..

Winston Churchill, perhaps the greatest political and parliamentary figure of the last century, said that if you make 10,000 regulations you destroy all respect for the law.  Take a look at South Africa where far too many conflicting and nonsensical regulations are espoused on a weekly basis, some of them with only a loose and highly doubtful connection to the law, the Disaster Management Act, under which they are gazetted.

What started with good intent in the rush to halt the spread of Covid 19, ‘flatten the curve’ and buy time to build medical supply lines and PPE reserves, has turned into a regularised pattern of government by dictate.  We are in danger of getting used to the idea of government finding a way around the people’s Parliament just because 400 people can’t gather together in the light of social distancing, in itself another regulation.

This shortcut to governance has to be stopped before it becomes regularised in any way.  In the process of searching for a way to speed up what at times can be a cumbersome system of democratic checks and balances, the country has invented an immensely powerful and what could well be an illegal intervention named, by somebody unknown, as the National Coronavirus Command Council.

Rules in bulk

After only a month of the president’s announcement of the declaration of the national state of disaster, more than 50 sets of Covid-19 related regulations, directives, notices and directions have been published nationwide in its name.    Lawyers and business chambers are struggling to keep up with it all.

The problem now being faced is two-fold.  Firstly, the high-sounding and most unfortunately militarised name of “Command Council” represents an entity not recognised in the Constitution, or anywhere in the statute book.   It is purely an invention of a clique within the governing party as an instrument to administer a law cobbled together in a few months called the Disaster Management Act.

Somehow, without the knowledge of Parliament, a handpicked number cabinet ministers, chosen one has to assume by persons residing at Luthuli House, has granted executive functions and powers to a pick of between 8 and 19 cabinet ministers (the number varies) who meet at undisclosed places and take national decisions.

The same unknown group has ignored some thirty to forty other cabinet ministers for reasons unstated to form this command unit and there we have it, a new grouping administering a whole country by regulation.  It is so important that we do not get used to this alien concept as a substitute for ordinary democracy, whether or not it has a body a scientific expertise advising it or not.

Power point

On the subject of powers, the Constitution is quite clear – all cabinet ministers are accountable “collectively and individually to Parliament”.   But to repeat, this caveat is made nonsense of when a cabinet cabal, including the Deputy President, start making government policy affecting citizens’ rights without even a parliamentary nod.

Granted, that originally there was a need for speed and given the fact that Covid 19 is a disaster of global proportions, it was understandable that hastily convened and rushed virtual parliamentary portfolio committee meetings tried vainly to “debate” the issues that might arise as a result of implementing the Disaster Management Bill.    In fact, they did remarkably well in the circumstances and South Africa became the first country to try and handle parliamentary debate electronically in the light of lockdown.

Law by laptop

Virtual meetings make any meaningful debate nearly impossible at the best of times. They are designed more for briefings than for discussion.  In the understandable rush, the buttons pressing the “ayes” became the norm in the short time allowed. The Disaster Management Act (DMA) is the result and is now history.

Now, the buttons are being pressed by Dr Nkosazana-Zuma, the Minister of Cooperative Governance and Traditional Affairs (COGTA), the department which the DMA empowered, most assuming that COGTA would be more of a spokesperson for the system to be adopted.

Governance by regs

However, “risk-adjusted strategy regulations” were published in a flash by COGTA in the light of the disaster (not emergency) powers with a statement that read, “The Cabinet minister responsible for cooperative governance and traditional affairs upon the recommendation of the cabinet member responsible for health and in consultation with cabinet, declare which of the following alert levels apply, and the extent to which they apply at a national, provincial, metropolitan or district level.” It all sounded like we had things in hand.

In the UK or Commonwealth countries, this process would have amounted to making Dr Nkosazana-Zuma prime minister and Dr Zweli Mkhize her deputy prime minister.  Nevertheless, Parliament in SA  soon fell outside of the inner circle when it came to oversight. Parliament deals with legislation not regulation.

What sticks to the wall

After a week or so,  it became more than noticeable that many of the regulations just did not link up and appeared randomly unconnected. The cooked chicken problem, no flip flops and absurd choices on who could and could not work.   Looking at it from a parliamentary aspect, to create temporary hospitals and to ban liquor and cigarette sales, and then cancel one factor but not the other, seemed not only a stretch under the same law but also a legal anachronism.

Worse, just the act of banning liquor sales and thus damaging the tourism and hospitality industry possibly forever is unlikely to pass any “justification analysis” constitutionally.    Most of the public comments called for in the form of  business submissions are now accumulating in government offices or parliamentary boxes and certainly unlikely ever be seen by Dr Nkosazana Zuma.   She is known for having no appetite for this sort of thing, as was discovered by the African Union.

LIFO

Now many of the regulations are causing serious “unintended consequences” in application, such as schooling, resulting in a law gone rogue.  A further well publicised example has been where regulations allow religious gatherings whereas most major religions did not call for them, nor will exercise them. Gatherings include funerals for the dead but not a healthy game of bowls for the elderly. Most have no idea of who consulted who on outcomes, representing more muddled thinking by a body which records no minutes and meets in secret.

South Africa has invented a most dangerous mechanism where everybody just relies on the Presidency to eventually “put things right” when the panic is over.  To do this, President Ramaphosa, in the light of a forthcoming ANC conference, will have to dissolve this mechanism somehow and terminate its powers. This politically powerful entity is led by a person who contested with him the position of president and who split the governing party in half doing this.

Its going to be a bumpy ride.

Posted in cabinet, Cabinet,Presidential, Finance, economic, Fuel,oil,renewables, Justice, constitutional, Security,police,defence, Special Recent Posts, Trade & Industry0 Comments

Copyright Bill sits in President’s inbox

…..Copyright Bill at tipping point – yes or no?

30 May 2020 –  Major issues remain at stake with the Copyright Amendment Bill sitting with the Presidency for signature for some thirteen months. The Bill will overhaul the copyright and trademark situation in South Africa, not attended to in the statute book by amending legislation since 1976.

However, the substance of the Bill represents a lot more than tidying up an old piece of legislation but rather it changes the tenets and the whole basis of copyright in South Africa.  It rewrites whole sections of the Act to meet the circumstances of a digital world in music publishing, replay, transfer, copying, music rights and author’s rights, royalties and how they are collected.

It is, of course, all about money, otherwise there would not be so much fuss about the deadlock.

The big stick

Major industries are involved, particularly in the USA as far as the publishing, film and music world are concerned.    The Bill tweaks rules on many copyright and trade mark issues that affect a world governed by international copyright agreements.   The US has always been dominant on trade issue matters on this issue but in this case South Africa’s own vested interests into US markets with SA exports comes into play.

Precedent on copyright matters is a far bigger issue than the authors of the Bill, those who fought for local production and authorship rights over three years, ever imagined.   Looking back on the hearings and submissions made by over forty experts and stakeholder business entities to Parliament in those months, the message comes clearly through as a simple “I told you so”.

Nevertheless, the governing party has so far stood against conforming with US pressure, agreeing with SA lobby groups and calling upon the President to sign in the knowledge that SA is moving outside international trade norms and agreements, particularly the Berne Convention.

Mother goose

Oddly enough, in fighting with South Africa, the US is contrary to World Trade Organization’s (WTO) rules on this issue by not giving special dispensation developing countries, but the US has a record of disagreeing with the WTO on this matter, remaining equally fixed in its views. The “Mexican standoff” is now a major issue in US/SA relationships. When it comes to patents, copyright and protection of unlawful copying of trademarked products, the USA becomes a determined negotiator since trade and marketing innovation and the tenet of copyright protection on a global scale is what US commerce is basically all about.

The new law will involve moving to fair use conditions and clauses similar to US law, but there is great dissension even in the USA on fair use vs fair dealing approaches to copyright to the point of massive law suits involving Google and other internet platforms allowing open access to work that may be subject to copyright.

Blind alleys

SA in the past has followed the more rigid “fair dealing” principles adopted by more established copyright environments such as the UK.    The process of capturing and “re-communicating”  images and text raise multiple copyright issues particularly on the matter of whether providing or using a hyperlink to the original material is tantamount to an infringement of copyright.

committees

parliamentary committees

The hybrid SA version provides for rights to use excerpts on protected works for educational use  – a need for which exists in most developing countries. This inclusion has worried the publishing industry whereby whole works are pirated, duplicated and supplied. The new Bill also proposes extensions of protection for local creators which includes rights to royalties, limitations on unfair contracts, and reversion of all copyright assignments to creators after 25 years.

Turf wars

The Office of the US Trade Representative announced at the end of 2019 a review of South Africa’s eligibility for Generalised System of Preferences (GSP) benefits as a result of SA non-adherence.   The outcome of this still awaited but most local commerce and industry would prefer that SA dodges the heavy artillery and returns the Bill to Parliament for a version less confrontational.

The US administration took to its hardball approach on this specific Bill after it was petitioned by the International Intellectual Property Alliance, a private sector coalition representing large US entertainment companies. This is a powerful lobby in terms of influence with the US administration. Pitted against this, all local performer, artist and local film producers, educationalists and university academics feel differently and want the homegrown version passed by Parliament for signature to proceed into law.  Naturally it looks like a David and Goliath scenario, but the US administration has been through this hoop time and time again all over the world.

AGOA

The US GSP programmes meanwhile give extra tariff reductions to developing countries eliminating duties on 3,500 products when imported from one of 119 designated beneficiary countries and territories, which includes South Africa. The US normally provide a wording which satisfies both parties to proceed but not in the case of the proposed SA Copyright Amendment Bill.

At this stage, the SA Constitution says the President must either assent to and sign the Bill or refer it to the Constitutional Court for a decision on its constitutionality.   If the Constitutional Court decides the Bill is constitutional, the President must sign it. The general feeling is that the President would lose the battle.  The question is…… who blinks first.

The deadlock continues but for those who do not compose music, write songs, publish and print books and earn from publishing and music rights in SA but just want the economy and trade agreements not to be damaged, the wait is painful.  The choice for them is a no brainer.

Posted in Cabinet,Presidential, Home Page Slider, Justice, constitutional, Trade & Industry0 Comments

Tax Avoidance Bill: NPA and Hawks on illicit flows

Treasury, FIC, Hawks, NPA give Parly update…

report to clients end of April …

It now seems inevitable that the Minister of Finance will be tabling a General Anti Tax-avoidance (GATA) Bill by July 2019 as part of National Treasury’s plan to protect the tax base primarily aimed, as one MP put it, at “knocking profit shifting on the head”.   Changes to the Companies Act are also to be introduced.

A high-powered meeting, chaired jointly by Yunus Carrim of the Standing Committee on Finance and Joan Fubbs of the Portfolio Committee on Trade and Industry, listened  a few days before Parliament closed in April, to report-backs which came from National Treasury, the Hawks, National Prosecuting Authority (NPA) and others combiningg to stem the flow of illicit funds.

Read more…Tax avoidance Bill

Posted in Cabinet,Presidential, Finance, economic, Justice, constitutional, Police, Security, Trade & Industry0 Comments

Parliamentary Overview 12 June 2019….

 

Changing the guard…  

Plenty of note for business has happened legislatively during the parliamentary recess but perhaps none so important as the re-structuring of Cabinet. As a result  there will be a change in the appropriate portfolio committees to reflect any changes and a consequent shift in portfolio responsibility for various Bills held over from the previous Parliament.    In the areas of energy, trade and industry and communications this will be particularly interesting of who gets to be the chairperson in the light of differences emerging within ANC structures.

Parliament will choose its portfolio committee chairpersons for the National Assembly and select committee chairpersons for the National Council of Provinces on 27th June, two days after the State of Nation Address ANC party chairpersons.  These appointments reflect how a government governs on policy and legislation. Through the chairpersons.

Read more..Parliamentary overview 12 June 2019

Posted in Agriculture, cabinet, Cabinet,Presidential, Energy, Fuel,oil,renewables, Health, Justice, constitutional, Land,Agriculture, Trade & Industry, Transport0 Comments

Communal Property Bill part of land reform

From Aug/September ParlyReport….

Communal Property Bill posted 7 10 2018

Posted in Agriculture, Cabinet,Presidential, Finance, economic, Justice, constitutional, public works, Special Recent Posts, Trade & Industry0 Comments

Expropriation Bill has now to be faced

Much of the sting goes out of Expropriation Bill…..

landseizuresThe subject of expropriation, not necessarily of land but any property, has now reached the stage of a considerably watered down third Bill which has now been tabled and whilst there are grumbles from many quarters, it appears that the new Bill has not caused the same furore as its predecessors.

The long awaited Expropriation Bill (B4-2015) came before Parliament in the form for a briefing to the portfolio committee of public works attended by the minister of public works, Thulas Nxesi, the briefing itself remaining very much in the hands of the deputy minister, Jeremy Cronin.

Great emphasis was laid by both ministers on the difference between expropriation as a “public purpose” and expropriation “in the public interest”, a difference they said that was clearly laid out in South Africa’s Constitution.

Public purpose, public interest

nxesiMinister Nxesi in his introduction said if there was a need to put up electricity lines or build a road, it was then for a “public purpose” and he saw that there could be no argument – a statement which was later queried by opposition members.

However, minister Nxesi said, expropriating property for “public interest” had to pass a rigorous rationality test as stipulated in the Constitution but a major problem with all Bills previously tabled was that there was no recourse to the courts and on this issue the cabinet had decided to withdraw them. Jeremy Cronin seemed to come to the rescue with a far more detailed and rational presentation.  

He argued that expropriation was an essential mechanism or tool for any state in any country to acquire property under certain instances but much emphasis had been laid in South Africa on the issue of land and white commercial farmers.

He admitted that whilst “public interest includes the nation’s commitment to land reform” in the Bill before them, a fact emphasised in the preamble to the Bill, the proposed legislation was very much in the nature of a mechanism to deal with expropriation rather than say who it applied to.

Expropriation just a “tool”

croninMinister Cronin added that this was one of many reforms taking place to bring about equitable access to all South Africa’s natural resources and reforms to redress the results of past racial discriminatory laws or practices. Such a preamble existed in much of South Africa’s legislation since 1984.

He said, “The Constitution requires “just and equitable” compensation to be determined by having regard of all circumstances without placing undue weight on any single or particular factor. National, provincial and local government were empowered to expropriate property to varying degrees through several pieces of legislation, he noted.

Deputy minister Cronin tracked the history of the Bill before them stating that the 1975 Expropriation Act was totally unconstitutional as it gave draconian powers to the state and was “wisely” withdrawn. A further 2007 Bill was also removed on these grounds and the current Bill was unable to be processed for Parliament before the 2014 elections.

In line with Constitution

settlement_law_justice_However, he said, the Expropriation Bill B4-2015 seeks to ensure consistency with the Constitution and to provide uniformity of procedure of all expropriations without interfering with the powers granted to the expropriating authorities.

Opposition members claimed that the Bill enlarged upon the definition of “public interest” contained in the Constitution and the Bill could not do this constitutionally. Nor did the Bill talk to in broad terms to the issue of compensation, whether it be a commercial farm or alternative accommodation for a shack dweller.

They argued that the new Bill did not talk to the issue of the interest of a bank in terms of a mortgage and where the bank might stand on such issues. The Bill now tabled, minister Cronin said, detailed the manner in which the expropriating authority had to follow, as well as setting up the process of evaluation and the authority to do this “in a just and administrative way”.  

On mortgages and loans from a bank, he said it was the bank that will be expropriated and not the individual.

Credibility of Bill challenged

masangoDA member Masango contradicted this and said any agreement or loan was between a person and the bank and not the state and the bank and he asked how the Bill could have possibly got through the NEDLAC process.

He also raised the issue of poor people not be able to afford litigation if the process of expropriation was contested. ANC member Madlopha said “whilst the media had been rubbishing the Bill, saying that it targets white commercial farmers”, the Bill in her mind gave the state power to expropriate with only a simple notice to the property owner, a process which seemed to contradict with common law.

Blaming apartheid and more

Minister Cronin responded along the lines that in expropriation, the property clause in the Bill of Rights guided the process. Indeed, argument, he said, will no doubt occur on “just and equitable compensation matters” but this did not remove “the consideration of colonial injustice”.   

It was the Constitution, he said, that insisted that in determining “justice and equitable” compensation it should include the process of “restitution”. Deputy Minister Cronin commented that expropriation did not just affect white commercial farmers and any compensation would consider the amount of bond outstandings. 

He concluded that the new Bill was attempting to shorten the process of any litigation. He added that the NEDLAC findings on the Bill would be supplied to Parliament and suggested that the committee ask Agric-SA to appear before them to obtain their views.

Other articles in this category or as background

Zuma goes for traditional support with expropriation –

ParlyReportSA New approach to land reform – ParlyReportSA

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Parliament of South Africa closes for elections

Fresh start

NA with carsNow that the Fourth Parliament of South Africa has ended, there exists the assumption that the ANC will remain the governing party and there also, therefore remains the assumption the same application will be applied to South Africa’s economic problems in the form of the National Development Plan.

This is now backed up in fact by the Infrastructure Developmental Bill, passed in the last few days, giving additional powers to Economic Development Minister, Ebrahim Patel, to help push the sixteen special infrastructure projects (SIPs) and give a power push to the work of the Presidential Infrastructure Coordinating Commission (PICC) in coordinating inter-governmental and inter-departmental issues involving the NDP.

Little else was on the minds of parliamentary committees as they finished their term of office other than infrastructure development, health with its forthcoming national health insurance proposal and delivery to the poor, not only in basic education but in land restitution.

New crew

With the coming of a Fifth Government of South Africa in May, many new parliamentarians will arrive for the first time; portfolio committees in the National Assembly and select committees in the National Council of Provinces will be re-formed; most of those committees having new chairpersons guided initially by the legacy reports of the outgoing parliamentarians.

It will be noted that our list of legislation on this website has been reduced by some 75%, indicating the number of Bills passed in the last few frenetic weeks and now sitting with President Zuma for assent; some of them already promulgated as law with government furiously developing the regulations that will make each law work.

Whilst in many instances this will amount to more red-tape, during the Fifth Government developmental benefits should start kicking in.

SARS happy

 Already, Finance Minister, Pravin Gordhan, has said tax revenue remains “buoyant” and commented that preliminary outcomes of revenue collection for the 2013/14 fiscal year the overall revenue collected by South African Revenue Service as of midnight on Monday March 31, was R899.7-billion.

At this stage, this is R0.7-billion more than the revised estimate in the 2014 Budget which may go some way to reducing the huge deficit that seems to put a frown of the faces of so many in the banking world.

Energy, health, education, finance and land reform will remain the subject of much scrutiny by ParlyReport in the coming months, plus meeting and establishing relationsipswith those in the new parliamentary structures.

 

Previous editorial   //parlyreportsa.co.za//parliament-sa-this-week/

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Land reform: Something very sad is going on

Apartheid debate goes back to land reform….

Minister Manuel and President Zuma are said to have repaired their relationship over Manuel’s demand that the governing party and state departments overcome their obsession of blaming apartheid for all their non-delivery performance statistics such as land reform, which excuse has also been constantly appearing in parliamentary and departmental report backs.

However, there lies a much deeper controversy building and this is maybe why the subject of apartheid, being such a dead-end route, was again raised.

Traditional roots

reed danceIt all goes back to disruption appearing at grass roots level in the apparent attempts by the ruling party to ignore gender “apartheid” in rural areas and what has been described as “locking approximately 16 million people into tribal land divisions ruled by customary law and baron chieftains”, areas originally defined in many cases by the dreadful Land Acts of 1913 and 1936.

But how does this affect business and industry since the matter seems so unrelated to the daily grind and to the economics of running a mining house, an investment business, a manufacturing plant or a marketing venture?

It deeply affects us all in the same way that the failure of the rail system means that commuters can’t get to work and in this case, where delivery of service and utilities goes back to apartheid structures that were unfair, caused fifty years of bloodshed and delivery service is so poor. People, mainly workers, get unhappy, cause unrest and may strike.

Apartheid was about land

We only have to look north from the Middle East to Zimbabwe to see it happening everywhere.   Land is usually the issue that provides thelandseizures grenade pin but refusal to reform is probably the catalyst.

Trevor Manuel is right, of course, from the aspect that we should get on with job of re-building the country and not find lame excuses such as playing the apartheid card as reasons for failure. The explosion from ANC policy makers was immediate and it seemed that Manuel had scored a bulls-eye.

President Zuma responded directly bearing in mind that he leads a determined effort to reinforce legislation that provides support powers to traditional chiefs, originally bestowed in the apartheid years to re-enforce the hated Bantustan division of land, thus re-enforcing the same divisions in what appears to be a chase for rural political power.

Bantustans or homelands

homelandsOriginally apartheid was implemented at every level of society: education, transportation, business, entertainment, employment and religion but at its most fundamental level it was about control of the land. This still forms the base of the problem.

Laws in this area introduced by ANC are the Traditional Leadership and Governance Framework of 2003; the Traditional Courts Bill; some eight provincial leadership laws and now before Parliament is the National Traditional Affairs Bill which attempts to bolster the chief’s monopoly on rural land.

All this in the light of the current and completely opposite Restitution Act of 1994 on the statute book on the one hand existing and now supported by the introduction of an Expropriation Bill on the other, all of which seems the very antithesis of support being given to leaving vast tracts of land in the hands of chiefs who govern by their own set of rules and laws.   Traditional courts.

In Britain, the monarchy lost its judicial powers hundreds of years ago and in France the monarchy was simply eradicated.houses of parliament In South Africa, we don’t seem to be able to make up our minds.

It would seem that aside from making a mockery of the land reform programme, the ANC  is courting not only a constitutional challenge, a subject bound to be raised in Parliament when the Bill is debated or even during parliamentary hearings, but the alienation of a vast section of his own progressive supporters.

UCT logoSays University of Cape Town on its Research Centre For Law and Society website, “The Traditional Courts Bill has raised numerous questions as to whether traditional courts should have criminal jurisdiction at all, and if so, which kind of offences they should try and what sort of punishment may be imposed.”

“Our research on traditional courts in one area reveals that cases undertaken in traditional courts include assault, murder and rape, to name a few, indicating that social contact crimes are at times being dealt with by the traditional justice system.”

“On the other hand”, says the article on the website, “it is evident through SAPS reports that certain crimes, such as property-related crimes, although they can be dealt with through traditional courts, are nonetheless taken to the police. This indicates not only a fluid relationship between the two justice systems, but also a blurring of categories of crimes.”

Blurring of constitutional issues is, however, a lot more serious. Especially on the land ownership issue.

Associated articles archived:
//parlyreportsa.co.za//justice-constitutional/spatial-planning-land-use-management-bill-moves-on/

//parlyreportsa.co.za//cabinetpresidential/minister-says-need-for-legislation-on-land-reform-a-priority/

Posted in Cabinet,Presidential, Justice, constitutional, Land,Agriculture0 Comments


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