Plant Improvement and Plant Breeders’ Rights Bills: deliberations

Meeting report

Opening Remarks
The Chairperson informed the Members that the Parliamentary Legal Advisor was unable to attend the meeting for medical reasons, and asked them to decide whether to continue without the Parliamentary Legal Advisor, or to postpone the session.

Mr L Ntshayisa (AIC) said it was not recommendable to continue without the Legal Adviser.

Mr M Filtane (UDM) supported this view, stressing that the output from the meeting would be affected by the absence of parliamentary legal expertise. Continuing without a specialised face-to-face exchange of opinions would ultimately delay the process.

Mr P Molayi (ANC) reminded Members that the Bill was at an advanced stage, and being read clause by clause to clarify any last vagueness or legal insecurities would allow the Committee to continue without the Parliament Legal Advisor, as the document could be read by any Member for discussion. He added that no ruling stopped the Committee from continuing.

Mr N Capa (ANC) favoured Mr Molayi’s argument, adding that the Committee could proceed with the other legal advisers who were present.

Mr H Kruger (DA) argued that in terms of productivity, continuing without the Parliamentary Legal Adviser could stop the Committee from moving forward, as some of Members’ expected questions might possibly be able to be addressed only by the Parliamentary Legal Adviser.

The Chairperson suggested that the rest of the legal team could assist the Committee.

The State Legal Adviser confirmed that in terms of the Amendment List and the included changes, the legal team could assist the session.

Mr Ntshayisa gave an assurance that Members were not referring to the legality of continuing without the Parliamentary Legal Adviser, but rather to the quality of the outcome.

The discussion was concluded when a new Parliamentary Legal Adviser, who excused himself for the delay, arrived to assist the Committee.

Plant Improvement Bill: deliberations

Mr Nathi Mjenxane, Parliamentary Legal Adviser (PLA), took the Committee through the remaining clauses (Clause 46 onwards) of the Plant Improvement Bill until its finalization.

Clause 47
Mr Kruger expressed concerned about the vagueness of the concept “prescribed manner” included in this clause, where it referred to the way in which the Minister should develop the regulation.

The PLA explained that the way in which processes are described were standardized by the regulation and expressed in this manner. However, he noted the concern expressed by Mr Kruger.

Mr Maloyi mentioned that the use of “prescribed manner” had been discussed during the previous session, and suggested the Committee should remain consistent regarding the terminology throughout the Bill.

Mr Kruger clarified that the reason of his question was to raise awareness of the existence of widespread “red tape” problems in South Africa.

Mr Filtane expressed his doubts about not clarifying what type of “person” the clause was referring to -- either in reference to a juristic person or a natural person -- and also the non-inclusion of a possible group: “person(s)”.

Mr Capa suggested that the use of “prescribed manner” required a common understanding for all Members before proceeding with the deliberations.

Mr Kruger warned that the use of “prescribed manner” was in fact problematic without specification, because of the possible different understanding across departments about what “prescribed manner” meant. The potential effects on small growers, who tended to be excluded from the regulatory processes, should also be considered.

The Chairperson suggested the meeting should move on from the debate about the use of “prescribed manner” until both Bills were considered and the legal team made suggestions, in order to promote consistency.

The PLA said that the use of “prescribed manner” could be set up by this Committee, and also that regulations could come through the Committee before implementation, to mitigate partiality. The Committee, he emphasized, had the power of narrowing regulation. There were also concerns over the appealing authority role the Minister acquired within the current Bill against the decision of the Registrar.

The PLA responded to Mr Filtane regarding the use of the term “person”, clarifying that it could be used as both natural and juristic, depending on the context.

Clause 48 and Clause 49
Mr Maloyi raised the question of the use of “may” instead of “must” in 48 (1), which indicated possibility, and not mandate. This concern was backed by Mr Ntshayisa

Mr Filtane proposed an increase in the number of Board members, arguing that in the case of absence of one of the members, the functionality of the Board would be diminished.

Mr Capa added that the maximum number of members on the Board should be specified.

Mr N Paulsen (EFF) expressed concern about the period of service of the appointed members of the Board.

Ms Kanthi Nagiah, Chief Director: Legal Services, DAFF, clarified that 48 (1), where the use of “may” was used, referred to the option given to the Minister to proceed and constitute a Board. This was not obligatory.

Regarding the number of members of the Board, she said that the stated number was just a minimum that could be increased. However, the Department was open to suggestions about the minimum number of Board members.

Dr Julian Jaftha, Chief Director: Plant Production and Health, DAFF, referred to clause 49 that specified the solutions in the event of incapacitation of a Board member.

Mr Maloyi questioned whether there was any sub-clause in clause 49 that specified the exact number of members.

Dr Jaftha referred to 49 (6), dealing with the circumstances in which a member was considered incapacitated, and said that in the Department’s interpretation it was understood that the clause allowed new appointments.

Mr Maloyi disagreed.

Ms Nagiah agreed with Mr Maloyi about Clause 49, saying that it did not clarify the issue. She referred to clause 48 (2) which stated that the Board must consist of three members.

The State Legal Advisor argued that although the mention in 48 (2) was provided, Clause 49 (6) did allow the remaining members to decide whether to continue or not, without the process. When reading 49 (6c), it was interpreted that the remaining Board had the freedom to decide about the continuation without consultation with the Minister.

Mr Maloyi suggested the clause should be clearer about the minimum and maximum number of members.

Mr Mjenxane interpreted the clause to mean that in the event of an absence, the continuation of the Board would have to be the result of an agreement among the remaining members, but if continuation occurred, the minimum number of members must be three.

Mr Filtane commented that the clause stated that the remaining members “may” agree, and that in the case of non-agreement, no alternative had been provided.

The Chairperson clarified that it would be the decision of the Minister to substitute the remaining members of the Board, as stated.

The State Legal Adviser argued that it was not recommended to establish a maximum of members, given that the Minister could consider it necessary to appoint more.

The Chairperson suggested the Committee should agree on a minimum of three members.

Clause 50
Mr Paulsen and Mr Capa felt that the clause lacked clarity regarding the use of “may” before the representation of the appellants before the Registrar.

The Chief Director of the Department clarified that the use of “may” was to bring the appellant the option of being represented by him/her self or a third party.

Ms Z Jongbloed (DA) referred to Clause 49, and suggested the specification of a time frame for the appeal to be processed.

Mr Filtane wondered if it was relevant to include the possibility of the appellant bringing in a witness, as it was specified that only the Registrar could make use of this option.

Ms Nagiah admitted to being open to suggestions. Regarding Mr Filtane’s comment, she reminded Members that the DAFF had to be mindful that equal treatment for both parties during the appeal process was a principle in law.

Regarding Ms Jongbloed’s suggestion about the inclusion of a time frame, the Parliamentary Legal Adviser said that a period of 48 days was given.

Clause 54
Mr Kruger and Mr Capa said there was confusion about the use of “schemes” in the clause.

Mr Capa suggested that maybe it would be preferable not to leave room for the Advisory Board not to be appointed by the Minister.

The Chairperson asked the legal team about the inclusion of an Advisory Board, suggesting that there was an excess of advisory bodies and a lack of rationalisation.

Dr Jaftha explained that the complexity of the matter and the many aspects to be considered around it, from a cultural to a legal point of view, made the Registrar’s access to advisors relevant at this point.

Mr Filtane said he was reluctant to include an Advisory Committee, agreeing with the Chairperson on the need for rationalizing. He said that access to information and filling knowledge gaps was the responsibility of the Department.

The PLA Legal Advisor supported the Committee on this matter. However, he pointed out that because of the Plant Improvement Bill’s complexity, and not everything always being included in the legislation, on many occasions it would be crucial to consult external sources.

Mr Capa said that he agreed with giving room to public consultancy, especially when covering growers’ concerns and their representation.

Mr Maloyi suggested that given the amount of recommendations and comments on the clause, the Department should reconsider all aspects and come back with an alternative in the next session.

The State Legal Adviser agreed with Mr Maloyi.

The Chairperson concluded discussion on the clause by mentioning that the Department should always bear in mind that there must be a balance between solutions to current problems and financial constraints.

Clause 58
Mr Filtane suggested keeping only 58 (1) and 58 (2), and eliminating 58 (3) and 58 (4) for being redundant, given that the Minister was the only one with the capacity of prescribing.

Ms Nagiah argued that the inclusion of 58 (4) was pertinent only because it mentioned the capacity of the Minister to prescribe in any related matter. She also clarified that the provision of legal space for consultation with the Ministry of Finance was relevant due to the necessary coordination between the departments when establishing remuneration.

Mr Mjenxane supported the Chief Director about maintaining 58 (4) due to the unknown matter that may appear, and that would require ministerial prescription.

Mr Maloyi showed concern about the use of “may” instead of “must” when referring to the Minister’s intervention to regulate in such matters, as it could give room for inaction.

Mr Paulsen argued that the use of “may” and “must” referred, in this case, to the need for regulating or not, versus the capacity of the Minister.

The legal team concluded that the use of “may” was used for the possible situation that there could be no more space for regulation on the present topic, and that therefore it would be counterproductive to force legislation when it was not required.

Clause 59
Mr Filtane said there was disconformity with sub-clause 59 (b) for not cataloguing administrative offences as a criminal, and 59 (c) for considering the Advisory Committee subject of offence in legal terms.

Mr Kruger suggested moving sub-clause 59 (f) down within the section.

Ms Nagiah informed the Committee that after internal consultation, the Department would reconsider the clause and come up with a better version.

Mr Maloyi said he realized that certain amendments made to the Plant Breeders’ Rights Bill would affect the current Bill in terms referencing, so he suggested the Committee should pass the Plant Breeders’ Rights Bill before the Plant Improvement Bill.

Minutes
The minutes of 2 September 2016 were approved.

The meeting was adjourned