Tag Archive | parliament. south africa

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

Parliament goes virtual for lockdown


….20 May 2020…

SA first with virtual e-debate

….At the same time as the venerable British Parliament was tackling what seemed to them a totally invasive idea of a virtual e-Parliament, South Africa was simultaneously tackling the same subject as COVID 19 arrived at the shores of Africa.  Immediately, the issue of the consideration of lockdown conditions arose in SA and the question of how Parliament could work with everybody boarded.

Whilst British parliamentarians dithered on the subject and due to the fact that the UK kept social distancing going for a much longer time before their lockdown came into force, South Africa’s virtual website portal went up in an incredibly short time and was first in the world by a few days.

Maak ‘n plan

In comparison, the British virtual system. which is also now also working, only allows for debate in the House of Commons whilst South Africa, in terms of its Constitution, follows proceedings in both the National Assembly and the NCOP and also at committee level as well, with the current joint meetings providing provincial coverage.

The design of the entrance website is pretty similar to the UK portal, the principle being the same but with a British budget, the UK presentation is a good deal slicker.  All the same, the Daily Telegraph complained after the UK launch that all that the voice links in the meetings sounded like Darth Vadar and it was confusing to know who was speaking.

Many players

The beginner’s look of the SA virtual meetings is understandable in the situation.   One can see in SA technicians are having a daily struggle with people using Skype and Zoom connections for the first time, some of whom have little knowledge of the difference between an app and a hard drive.

Most are trying, knowing it all has to happen and it would be best to learn quickly but a certain number of senior politicians still demand studio facilities and a camera.   We shall no doubt look back in years to come and laugh at these early attempts to live a virtual reality life.

48 hours allowed

In South Africa, where the decision to suspend the SA Parliament was a “precautionary measure” in the light of a forthcoming Cabinet decision on how to deal with the pandemic, Parliament’s presiding officers in the form of chief whips and political parties all agreed beforehand on the 17 March that the remaining two days of parliamentary business would be devoted to urgent legislation only.

As a result of this decision, Budget Papers in the form of the Division of Revenue Bill were hustled to the National Assembly for adoption in order that money could flow to the provinces and local government.   A Cabinet meeting followed and the Speaker of the House, who acts for the President in Parliament, was summonsed for a meeting soon after.

Hard facts

The role of Parliament is indispensable for the country to run.   The Constitution demands that Parliament scrutinise and oversee all Executive actions, processes Bills in the  form of legislation, to provide a forum for public consideration of issues and to facilitate public involvement in its legislative and other processes. Such is inviolate, whatever the conditions facing the country.

Realizing that the only way was virtual meetings to consider matters,  Speaker Thandi Modise issued a statement that Parliament would have to “intensify its technological capabilities for a transition to an “e-Parliament”.   She concluded that as a result, a decision had been taken that “Parliament will be able to resume taking advantage of virtual media technology”.

 Into action

The leave period, or recess, for MPs was duly cancelled and parliamentary staff were assigned permits to stay at work.  They used this time for urgent meetings -to assess how Parliament could best resume its proper function under lockdown regulations and deal with the lacuna (i.e. a situation where there is no applicable law to deal with the matter).

It was agreed by the Speaker that priority had to be given in Parliament to virtual meetings that required oversight on COVID-19 matters, bearing in mind the limited number of meetings that could be held at any one time.  It was also agreed that any virtual meetings would be primarily joint meetings based on the government cluster system, i.e. meetings comprising the various representatives from a number of differing committees affected by one subject.

 Order, order

Chief whips were then tasked to adapt parliamentary rules to meet the new conditions. All this had to be based on the procedures, precedents, practices and conventions, which have been developed over the years, known as parliamentary rules.  This was in respect of not only how NA and NCOP virtual plenary meetings were to be run but how debate was to be conducted committee.

Speaker Thandi Modise then confirmed to all political parties that in the planned virtual meetings, members of parliament would have the same powers, privileges and immunity as they have ordinarily in parliamentary proceedings.  Quorum requirements were to be exactly the same she said, and MPs would be entitled to cast their votes either electronically or by voice.

Public participation and access to virtual proceedings had to be made possible, said Modise, “in a manner that is consistent with a participatory and representative democracy, virtual meetings to be live-streamed wherever possible”.

Global comparisons

Despite time limitations Parliament was indeed able to try and benchmark against some other legislatures who were operating as legislatures whilst their countries were fighting against COVID-19. To the surprise of all, little was found.

The prime constitutional constraint in South Africa’s case was that any virtual meetings had to involve both the sittings of the National Assembly and the National Council of Provinces and these had to be seen to be happening if the public wished to observe proceedings, a factor necessary according to the Bill of Rights.   This was overcome by making most meetings “joint” committee meetings of parallel committees from both Houses.

One and only

In the UK, which has no constitution, a parliamentary virtual meeting concept had been designed and planning was six months into happening.  From a standing start, SA Parliament achieved their deadline in about a fortnight.  Australia and New Zealand are still only thinking of going about it and the USA is still fighting about lockdown itself.

Without fanfare, the parliamentary process under the extraordinary conditions began internally in the Cape Town precinct after a very short training period on 20th April, with access being made to the existing  public parliamentary website on the link www.parliament.gov.za/parliament-tv.

 Time will tell

The whole thing seems to work quite well but obviously glitches occur regularly whilst MPs struggle from time to time to find the mute button and some appear if they have just got out of bed.  Already, however, after an initial learning curve, things are changing and before long it will be the way things happen.

At each meeting, provision is made for the parliamentary secretary to log in those MPs present at a virtual meeting, name them, see them, accept apologies and at point count voting if required from those logged in through the  electronic response system.   Minutes are established later through the audio track recorded in the same manner as before. This is quite some procedure to witness in some of the hallowed chambers where the Speaker once wore a wig.

An MP’s presence in any virtual meeting is established through a secure link sent to their email address which also enables counting to be established for the purposes of establishing a quorum, taking decisions on issues or voting on a matter. Links are established on Facebook, Linked-in, Twitter and Instagram, the photography on Facebook on parliamentary issues being quite stunning.

 7 out of 10

In general, the new parliamentary virtual world established is considered by most quite for such a rush and the process will no doubt tide the country through this terrible period in its history.  This aside from any opinion on how well MPs handle their own inputs and deal with difficult question of switching between one another to pose and answer questions.  What you see is what you get.  The result is not always pretty but it is legal.

One advantage is that with so much happening with lights flashing and buttons to worry about, there is little time for any MP to have a quiet slumber.

Posted in Agriculture, cabinet, Communications, Defence, Energy, Fuel,oil,renewables, Home Page Slider, Justice, constitutional, Police, Public utilities, public works, Security,police,defence, Trade & Industry, Transport0 Comments

Small business gets R1bn incentive scheme

Tax relief and business incentives

The new small business development department (SBDD) has transferred from the department of trade and industry (DTI) the R1bn fund which covers both corporate incentives to develop small business and the Small  Enterprise Finance Agency (SEFA).

However, it will leave with DTI all matters relating to B-BBEE insofar as regulations are concerned.  Both the new minister, Lindiwe Zulu, and deputy minister, Elizabeth Thabethe, were present for a short departmental briefing by SBDD given to the new small business portfolio committee chaired by Ruth Bengu, who in the last parliamentary period served as chair of the transport committee.

Revised thinking

In an earlier portfolio committee meeting of trade and industry, a few days before under their chair, experienced ANC member Joan Fubbs, DTI had called for a rethink on small business policy.

They said they wanted to see a clearer policy on the SMME support role by national government with provincial and local government and to establish a programme for rolling out more small business “incubators”- something that opposition parties had been calling for over a long period of time.

Also DTI supported the call to review the small claims court system so that access to affordable justice was more affordable. They wanted this to be a further target of the new department.

Such recommendations came amidst a foray of criticism by commentators that the new department could become a diversion for unsolvable small business issues or alternatively the new department could become merely a point for start-up small business without any real muscle.

Less red tape

The new department in addressing MPs confirmed to them that its mandate was to focus on “enhanced business support” and they emphasised their support for women, people with disabilities and to provide mechanisms to access finance, business skills development.  They also said they were there to ease regulatory conditions; to help regulate better the SMME environment and to give leverage on public procurement.

It was important to recognise, SBDD said, that it was also there to encourage the development of cooperative entities, in which instance shareholders themselves were the members and entrepreneurs. Finally, the process of creating market access was an important task, they added. Nothing was new here.

But opposition ears pricked up when they said tax relief grants to corporates that invested in small business development were to be considered and incubation programmes and technology upliftment were priorities.  The immediate future, however, was all about configuring the new department; the “migration” of responsibilities from DTI; and transferring allocations for the establishment of support institutions.

Chair of the committee, Ruth Bhengu – previously chair of the parliamentary transport committee – then called for response from opposition members which mainly came from Toby Chance of the DA, whose questions were answered by both by the new minister and deputy minister.

Jobs or not

Chance said that whilst applauding the formation of this department, he wanted to know whether or not any success was to be measured in terms of jobs created,  which to him was the bottom line, he said. Also he wanted a clearer definition of what government actually meant by the term “small business”.

He said there were plenty of “gleaming new supermarkets in our townships but very little industrial developments, in fact some industrial parks were in a state of decay.” Chance said the DA was also worried that the impact of new labour legislation and labour regulations was immobilising small business and the amount of red tape currently being experienced was becoming “out of hand”.

Chance said he hoped the new department recognised the fact that that corporates and industry should focus on the development of small businesses to create the job growth called for by the NDP.   Partnerships with small business were the best way of achieving this, he noted.  He concluded that all “tax incentives should be re-visited” and that more emphasis should be laid on small manufacturing businesses.

In reply, minister Lindiwe Zulu agreed on the issue of red tape as a hindrance to small business and said her objective was to become like Rwanda where direct contact with national bodies that supported initiatives was far easier.

Compliance for all

However, she said that business had to understand that it had a role to play and a “culture of compliance” had to be encouraged in both small and large business and manufacturers or there would be anarchy.   Also large businesses and the state will have pay small business invoices on thirty days or risk penalties.

The minister said on the subject of labour regulations, dept of labour had its own targets and own agenda on decent work conditions and that was a separate issue. “The job of small business development was to work inside current conditions and for business to respect that.”

Chance replied that the governing party seemed to have “developed a track record of “attacking business persons when they criticised ANC economic policies or asked tough questions”, which statement prompted vehement denials from the minister and deputy minister.

Other articles in this category or as background
//parlyreportsa.co.za//trade-industry/licensing-of-businesses-bill-re-emerges/
//parlyreportsa.co.za//bee/minister-davies-gets-cooperatives-bill-approved/
//parlyreportsa.co.za//parlyreport-contacts/cabinet-ministers/ministry-small-business-development/

Posted in Facebook and Twitter, LinkedIn, Special Recent Posts, Trade & Industry0 Comments

Budget vote passed just in time

Committeemeeting smallMajor learning curve for new MPs….

Probably the most difficult parliamentary rule to explain to the new influx of MPs who have become members of the fifth Parliament is the time honoured and important fact that whilst they may debate and even disagree with various facets of the budget vote appropriations now passed by Parliament, they could not change the sums involved.

That is because the Appropriations Bill, which passes the money raised by taxes and from banks to the various government entities, is a money Bill.

All such money Bills emanate from national treasury and are tabled by the minister of finance.   In terms of section 77 of the Constitution, such are Bills that Parliament cannot alter by amendment, whereas with all other Bills they can exercise by majority vote any changes.

Three types of  Bill

The majority of proposed legislation that comes before Parliament is in the form of a Section 75 Bill, legislation that will make its way to the National Assembly (NA) for a final vote, the “concurrence” of the National Council of Provinces (NCOP) only being sought during its parliamentary passage. These can be altered by Parliament and Parliament usually holds its own public hearings on such Bills.

The remaining but small balance of Bills, which are quite often of greater importance and interest to the general public, are “tagged” as section 76 Bills. This is because they affect provincial and local administration and constitutionally must go before each provincial legislature to obtain a simple majority for amendment, rejection or approval from the nine provinces. Public hearings occur right down the line accordingly.

Hence, the argument over the Mineral and Petroleum Resources Development Amendment Bill and the e-tolling issue, both of which have both described by opposition members as Bills passed unconstitutionally because, in their view, the subject matter was not purely “national” but involved provincial legislation, taxes and provincial citizens.   In other words, they maintain the Bills were incorrectly “tagged” as Section 75.

No money amendments

But back to the very different section 77 money Bills which are introduced direct to the NA by the minister of finance. Why, ask new MPs, should we sit debating the budget vote in portfolio committees when we cannot change the Bill?

The reason goes to the whole root of the parliamentary process and why the Appropriations Bill, as the first Bill that a new crop of MPs has to deal with, forms the basis in the learning curve of why they are there at all.

This is because this is where the process of financial oversight starts.

When the budget vote comes before Parliament, each department, headed by the minister involved, also comes before the relevant portfolio committee and explains what they will be doing with their allocation of the total budget for the current year, their objectives and targets.    This commitment is accompanied by a five year strategy plan for the particular department.

The annual cycle of accountability has therefore started and this is why it is so important that director-general posts are substantiated and not filled by those “acting”. These processes are explained to MPs during their training of two weeks now completed.

Final stages

Following the budget presentations by each government department to each portfolio committee in the NA (and select committee in the NCOP), the Appropriations Bill then goes to a joint sitting in the NA, all MPs from both Houses being present and each minister, with a speech on intent, targets (with, hopefully, some indication of any legislation that ministry intends tabling) the budget vote is then proposed in the knowledge that it will indeed be passed.

Numbers, targets and objectives have therefore all been vocalised and minuted as a result and now the financial facts and objectives are “set in concrete” with all present.  Failure or success can be measured.

As a matter of fact, this process is usually the first interface between a new MP and the government department to which the MP has been allocated, which is also an important part of the democratic and oversight process.    In the case of the budget vote it is, in essence, for most MPs a financial initiation.

By coming before the committee, consequently, the director general of each department is also committed both on policy and in monetary terms.  Each cabinet minister is subsequently asked to sign a presidential delivery contract which, in public service terms, is followed up upon by the department of performance, monitoring and evaluation – part of the Presidency.

Marker put down

However, none of this is so important as the parliamentary monitoring process itself, which both enables all political parties to “grill” under performing departments during the year; debate legislation supporting policy and also, importantly, to provide a transparent window during the oversight process to both media and monitors, who exercise their constitutional right to observe such meetings but with no speaking role.

Other money Bills involve taxation matters, which are specifically dealt with by the portfolio committee on finance, and a special report submitted to the NA. An example of this would be the budget proposals in April.

It is this long and somewhat complicated process that protects us all – emanating from one of the better constitutions in the world.      And long may we be so protected.

Ends

Posted in Facebook and Twitter, LinkedIn0 Comments


This website is Archival

If you want your publications as they come from Parliament please contact ParlyReportSA directly. All information on this site is posted two weeks after client alert reports sent out.

Upcoming Articles

Draft List: The minimum number of words is invalid - it must be a number

Earlier Editorials

Earlier Stories