Mr House Chairperson, my congratulations also go to the hon Mazibuko on her appointment.
This Bill embodies the best possible intentions, but in order to understand the problems we have with it, and the problems most of the intellectual property rights community has, one needs to look at the actual technicalities. No money will go to the indigenous communities. An enormous amount of business will be developed around this Bill by people who do not belong to indigenous communities. The net result is that anything that remotely smells of South Africa and is not being used here, will surely be freely used everywhere else but in South Africa.
I am very pleased to hear from the hon Fubbs that the Chief Whip of the ANC is an expert on intellectual property law. We worked very hard on this Bill, night and day. Whenever questions were raised about the meaning and application of the Bill, those questions could not be answered without lawyers disagreeing, officials offering a different reading and legislators - ourselves - being totally confused. The Bill is a conundrum wrapped in an enigma surrounded by mystery looking at itself in a mirror.
These are the difficulties we have: The definition of "knowledge" lacks the requirement that such knowledge be unique to the relevant community. So, such knowledge could very well be ubiquitous and known to many other communities. The definition of "indigenous community" bypasses existing traditional councils as if the traditional structure did not exist. An indigenous community as a legal person lacks the legal prescripts to determine how such entity expresses its volitions, inter alia, to appoint a representative or apply for registration of its knowledge. You are going to have one person after another popping up out of nowhere and saying that they represent this or the other community, and enormous conflict will be generated around it. And the inclusion of "extinct communities" that no longer exist is nothing short of absurd.
The Bill has unaddressed issues of constitutionality. It requires those who now freely use indigenous knowledge for commercial purposes to stop doing so until and unless they obtain the consent of a community and pay a royalty, thereby taking away a right without the required constitutional compensation. The new royalty or benefit to be paid into the state- established trust - which is an organ of state - is a tax, duty, levy or surcharge, which turns some provisions of this Bill into those of a money Bill. There is an exclusion of this money going into the National Revenue Fund. It cannot be done. It is unconstitutional. There is no justification for that to be the case. In the absence of extraordinary circumstances, it is impermissible to legislate that money raised in terms of this Bill goes anywhere but into the National Revenue Fund.
In respect of what the Minister said, the Bill also contravenes international law as set out in the World Trade Organisation's Agreement on Trade-Related Aspects of Intellectual Property Rights, Trips, which prohibits legislation providing for national treatment or extending benefits to nationals only. Trying to achieve parity of treatment by means of additional international treaties subject to reciprocity confirms rather than solves the problem, as it highlights that in the absence of treaties the legislation breaches the Trips Agreement.
The length of time during which indigenous knowledge is protected is excessive, unwarranted and not in line with any existing intellectual property law in the world.
The rest of my speech may be read on our website. [Interjections.] [Time expired.]