Tag Archive | parliament. south africa

Copyright Bill goes back to Parliament

….posted on July 13 2020….

Hung by its own petard: Copyright Bill 

Threatened not so much by the US administration, as Cabinet advisers would like us to believe, but more probably actioned more as per the presidency statement because of incompatibility with international agreements,  President Cyril Ramaphosa has made his long outstanding move with regard to the Copyright Amendment Bill, was sitting with him for over a year for assent.

Correctly, we believe, he has returned the Bill to Parliament in the light of the Bill’s constitutional and legal deficiencies, particularly in respect of non-compliance with the international “3-step test” of the Berne Convention and WTO Agreement on Trade Related Aspects of Intellectual Property Rights

Long time coming

This delays further the implementation South Africa’s much-needed revised copyright legislation which has been stuck in the same groove with regard to royalties since before the digital age.  But then the Presidency also sat on their hands for 13 months before deciding on the matter, a decision which for most in business and industry should have been a complete no brainer.

Sad it will be for academics and educationalists who will remain with standard limitations on published works and sad also we understand for local performers and artists but, in the case of the latter grouping, this we admit is outside of our scope and brief.

Most of the delays so far have emanated from an overwhelming and misguided socialist belief that the Bill, as it stood according to the tenets of the governing party and particularly the beliefs of the previous Trade and Industry Minister, Rob Davies, that the Bill should introduce an emphasis on the “protection” of local artists and performers, a matter which seemed well worth to them a disregard for international copyright norms.

As the Bill is to be returned to Parliament, the delays will obviously be compounded.

Where we were

The Copyright Amendment Bill and the Performer’s Protection Bill as tandem Bills have both considered at the same time by Parliament’s Trade and Industry Portfolio Committee, both dealing with the same broad subject but both by their names dealing with separate issues.  By far the major issue was the matter of international copyright agreements and hence it was the Copyright Amendment Bill that came into the public eye because of international trading issues.

The view was originally espoused by Joanna Fubbs, stalwart and ANC chairperson for many years of the Portfolio Trade Committee on Trade and Industry that local performers and educational bodies were injured by the extensive international controls on copyright matters.  She personally took on the job of drafting the Bill with an emphasis on this subject, calling for help with various committees of experts but at the same time, as was called for, drafting a Bill which contained the tenets of a new approach to copyright matters.


She was undoubtedly driven by her beliefs that that the SA music and publishing industry was largely ignored, and she referred regularly to “well known SA artists and performers who had died penniless”. The position was even reached a point where a submission on the Bill was made in song by one grouping to MPs, an extraordinary moment,

Although it was generally acknowledged that local bodies in South Africa in the past were not famous for adherence to internationally accepted copyright norms ,particularly following sanctions by the Free World in years previous, it was agreed that a tightening up of this process had to happen and that copyright collection agencies, although not much liked by small business, were a part of the generally accepted process of royalty governance.

It was agreed by both government and business that something had to be done urgently about the fact that the existing Copyright Act had not been updated since 1976

Started by DTIC

The first draft on the subject from the Department of Trade, Industry and Competition (DTIC) was rejected outright by eminent legal opinion, including that of the well-known Stellenbosch University, Anton Mostert School of Copyright Law.

This original draft, in the opinion of many legal experts, introduced “crude wording on the de-colonialisation’ of issues on royalties”, views which were only slightly watered down in subsequent years of endless and boring re-written versions whilst the Bill progressed under the two sub-committees formed by Joanna Fubbs.

Probably to stay in new Bill

The process resulted in a locally invented “hybrid” compromise wording regarding royalty usage, drawn up from the international norms of ‘fair use’ and ‘fair dealing’ principles of copyright application. The parliamentary authors felt they had achieved a result that would result in better protection of local author’s and performer’s copyright and a fair slice of royalties.

The point was, however, that the World Intellectual Property Organisation already provided latitudes with regard to the publishing industry in this regard but Fubbs persisted with her draft, fired by belief that South African educators were being denied educational opportunities by an over-zealous and, in her opinion, a somewhat pernicious publishing industry.

Rumpus followed

Book publishers then complained to the US Intellectual Property Association, which escalated by circumstance into a threat to South Africa in respect of  GPS benefits under AGOA.  Such produced a major moment of unhappiness in Trump/SA relationships.  One sensed that for some thirteen months whilst the Bill sat for assent, President Ramaphosa did not know which way to jump, although perhaps Covid 19 pre-occupation must have played a part in the extraordinary delays.

With President Ramaphosa now returning the Bill to Parliament, it is important to understand why the Bill is returned and what this implies. The process now could be lengthy and somewhat torturous.

Provincial and local input

The Cabinet statement merely states, aside for concern for visually impaired persons, that both the Copyright Amendment Bill and the Performers Protection Bill had been incorrectly tagged as Section 75 Bills in terms of the constitutionally prescribed process for parliamentary legislation. However, the President is of the view that the Bills concerned are in fact Section 76 Bills, given that they affect cultural matters.  To business, this remains a blind alley.

Section 75 Bills, which categorized the previous Bill, require just the mere acknowledgement of the National Councils of Provinces, but Bills tagged as Section 76 require a mandate from all nine provinces, and in some case cases provincial public hearings in each of the nine.  By returning the Bill on the basis of not being tagged correctly, this possibly means that as well as the Copyright Amendment Bill being altered and re-worded, the result will have to be considered by all provincial legislatures as well.

Rough guess

We expect that there will be a continued attempt to champion legislatively  “local user rights” in a compromised form, something that is mostly foreign to all international copyright statutes and agreements. At the same time, we do not expect any Copyright Amendment Bill to be passed any time in 2020 and if by July 2020, this will be going some.

Nevertheless, what we can expect is a Bill more along lines that the World Copyright Organisation would expect, the book publishing industry will want, and the US music and film publishing is used to seeing on the world stage. It is assumed that Minister Ebrahim Patel will gazette a new draft for public consideration, DTIC having learnt much in the four years of process.


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, Earlier Stories, Energy, Fuel,oil,renewables, Home Page Slider, Justice, constitutional, Police, Public utilities, public works, Security,police,defence, Trade & Industry, Transport0 Comments

Draft climate change strategy in Parliament

…….article June 2019…..

Plan to counter climate change underway…

The inevitability of climate change and the need to plan for its effects on the lives of South Africans is now to be tackled, according to the Department of Environmental Affairs (DEA).  A draft National Climate Change Adaptation Strategy (NCCAS) was published for general comment during parliamentary recess.

This was probably the last public act of past minister of environmental affairs, Nomvula Mokonyane, the baton now having passed to recently appointed Minister Barbara Creecy.  There is probably little room for major directional change as result of public submissions, since the road map to its creation is generally well understood.

Almost final 

Government’s NCCA Strategy, viewed by many as a professional and well written document which includes illustrated graphs and full-colour coded diagrams, is a ten-year plan to be reviewed every five years.  It is to be produced by DEA, the strategy being stated “providing a common vision of climate change adaptation and climate resilience for the country”.

The objective, of course, is the global requirement of achieving the stabilisation of greenhouse gas emissions and limiting temperature increases to 1.5 ° celsius.

The problems

Being a strategy to adapt to a situation and bring about change, the implications for and the effects of climate change upon South Africa are first listed.     Named are such matters as social and societal impact issues, the impact of climate change upon energy planning and economic development generally, and the need for co-ordination arrangements between all spheres of government, SOEs and the private sector.

DEA points out, “The NCCAS not only serves as an adaptation plan but also fulfills South Africa’s commitment to its international obligations as outlined in the Paris Agreement under the United Nations Framework Convention on Climate Change (UNFCCC).”

What it needs

The notice calling for comment says, “The NCCAS focuses on context, strategic focus, the need to reduce vulnerability and build adaptive capacity, early warning systems, adaptation planning, research, governance and legislation and both a finance and an implementation framework.”

The department’s experts have at the same time issued a supporting statement on climate change itself as a subject, which confirms that “worrying” weather patterns are seemingly not about to get any better, increases in annual-average near-surface temperatures are the order of the day and projected to occur over large parts of South Africa, particularly the western interior and northern parts of SA.

Facts evident

The statement adds in the briefing, “Climate zones across South Africa are already shifting and noticeable, ecosystems and landscapes are being degraded, veld fires are becoming more frequent and over-used natural terrestrial and marine systems are under stress.”

It was for these reasons, DEA’s statement concludes that South Africa must take immediate action by planning for climate change and intensifying response to forthcoming impacts, given the extreme weather events that are increasing in the country and which mirror similar changes elsewhere in the world.

No maybe

“Heat wave conditions will be much more likely, the dry spell duration will lengthen slightly, and rainfall intensity is increasing in SA”, says DEA.   The NCCAS warns throughout its presentation that the poor are the most vulnerable to any climate change impact.

Reading between the lines, the NCCAS is no coded message.  It indicates clearly that failure to tackle higher temperatures and unpredictable rainfall could lead to troublesome reactions from poorer sections of the community.  A clear warning is contained in the entire presentation that events being a threat to national security could be the price to pay if no serious counteractions are taken.

DEA says that the NCCAS as proposed will provide “a common reference point for climate change adaptation efforts in South Africa and promote coherence and coordination on climate change adaptation activities between different institutions and levels of government.”

Action will pay off

A positive note is also found in the proposals when it is stated, “The NCCAS is designed to give South Africa an advantage going forward in economic terms”.  It is pointed out that the flip side of adaption to climate change presents many investment opportunities, they claim.  Infrastructural changes are called for, DEA says.

“New funding flows to support adaptation will represent one of the biggest accelerations of development investment since the achievement of democracy in South Africa. The scenarios adopted will provide not only a unique opportunity to both ensure climate resilience but will achieve development aspirations.”

A little “over the top” perhaps, but a carrot that is provided.

The equation

The comment period is until 5 June at which point DEA will consider responses and submit their final strategy plan to Parliament for debate.  Clearly compliance is also seen by DEA as a priority in terms of UNFCCC undertakings made in the Paris Agreement to have such a strategy and plan.


Posted in Agriculture, Cabinet,Presidential, Enviro,Water, Land,Agriculture, Public utilities, Trade & Industry0 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

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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.


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