‘RUSHED’ APPROPRIATION BILL A CONCERN

This article appeared in the 2 August edition of Legalbrief Today, under Policy Watch

Neither Finance Minister Tito Mboweni nor his deputy, David Masondo, was present when the National Council of Provinces (NCOP) considered and passed the 2019 Appropriation Bill on Wednesday (Fin24) – tending to suggest that the final leg of its passage through Parliament was merely a formality. While NCOP member and former National Assembly Finance Standing Committee chair Yunus Carrim ‘stopped short’ of saying as much (SABC News), by drawing attention to the Minister’s absence from the House when it voted on the ‘important’ Bill, he might just as well have done so. Without Mboweni or his deputy, there could be no debate before the vote took place (Business Day).

Approved by the National Assembly on 23 July, the Bill’s ‘B’ version reflects the R17.7bn allocation to Eskom in April, which Finance Minister Tito Mboweni requested be factored into the version tabled on 20 February but not processed by the time Parliament rose for May’s elections. Having been revived on 3 July, it was subjected to public hearings just under two weeks later at a joint meeting of the NCOP and National Assembly Finance Committees. According to Parliamentary Monitoring Group records, Carrim used the opportunity to remind members that, despite capacity constraints, they have a ‘huge responsibility’ to ensure that the funds appropriated are ‘used productively’. Yet after the hearings, each committee met only once – to adopt the Bill.

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A perception in some circles that it was ‘rushed through Parliament’ is therefore hardly surprising. In the view of DA leader in the NCOP, Cathy Labuschagne, not only has neither House ever made ‘significant amendments’ to an Appropriation Bill; the ‘right to debate’ its contents is being gradually eroded (Business Day). This despite provisions in the 2009 Money Bills Amendment Procedure and Related Matters Act apparently requiring what her colleague, Dennis Ryder, described as ‘thorough interrogation’ during deliberations in both committees (Fin24). Given the ‘austere measures’ imposed by the 2019 Appropriations Bill, Ryder believes the three-week process fell far short of these requirements.

PARLIAMENT’S ‘CAPACITY PROBLEMS’ TO BE EXPOSED?

This article appeared in the 13 June edition of Legalbrief Today, under Policy Watch

The capacity of National Assembly committees to adequately hold the executive and state institutions to account is finally being brought to the attention of ordinary South Africans in the context of the commission of inquiry into state capture. This is noting recent allegations that SA’s fifth democratic Parliament failed to ‘prevent the looting of tax payers’ money’ despite having been alerted by ‘senior’ South African Reserve Bank officials to ‘cases’ of money laundering clearly requiring ‘urgent’ prosecution (SABC News). Commission chair Deputy Chief Justice Raymond Zondo has confirmed that ‘part of his job’ is to ‘establish a task team to assess how Parliament’s oversight structures dealt with issues of state capture, and whether there were elements of … (it) within portfolio committees’ ( Fin24).

Zondo’s pronouncements on the ‘capacity problems’ possibly experienced by National Assembly committees during the country’s fifth democratic Parliament (SABC News) have drawn attention to a long-standing concern about the quality of administrative support. By way of example, it may take weeks for the minutes of a meeting to be produced and approved – leaving committee members and interested stakeholders dependent on recordings and reports made available by the Parliamentary Monitoring Group. It is not uncommon for several sets of long-overdue minutes to be read and adopted during a meeting with a packed agenda involving other pressing and often far more complex matters. In such circumstances, is it reasonable to expect members to remember with any degree of accuracy what was discussed and decided weeks before? What becomes of any action items identified during a meeting is anybody’s guess.

Against that backdrop, it is frequently left to departmental officials or parliamentary legal advisers to tactfully remind committee members of information made available to them on which decisions have already been made. That said, documents sent to a committee secretary well before the meeting at which they are to be considered may only be circulated the evening before. It has even been known for them not to be circulated at all – just as it is not uncommon for departmental officials to table documents at the very meeting convened explicitly to discuss them. Yet despite members’ obvious unfamiliarity with the contents of such documents, the process continues. This is especially worrying in the case of proposed new legislation. Combined with an apparent lack of commitment on the part of many MPs to study documents that are made available timeously, this level of inefficiency leaves many observers wondering if the ‘engine rooms’ of Parliament are working. Perhaps Zondo’s task team will uncover more ‘capacity problems’ than can be dealt with by the commission itself.

PARLIAMENT BEGINS WORK ON NEW COMMITTEE STRUCTURES

This article appeared in the 4 June edition of Legalbrief Today, under Policy Watch

The ‘naming and composition’ of Parliament’s new National Assembly committees is expected to be discussed tomorrow at a meeting of the House Rules Committee, when the process of assigning MPs to these and ‘various other bodies’ could also begin. According to a media statement released yesterday, a joint meeting of the National Assembly and NCOP programme committees will follow, focusing on matters related to President Cyril Ramaphosa’s State of the Nation Address on 20 June, the ensuing debate and the President’s reply. Once the dates for debates in both Houses on other ‘key issues’ have been identified, the programme committee of each House will finalise its ‘law-making and oversight’ schedule for the remainder of the year.

Meanwhile, an ongoing MPs’ induction programme will include ‘information and discussion sessions’ on their constitutional mandate and responsibilities, ‘interests, ethics and code of conduct’, and ‘participation’ in National Assembly and NCOP plenary sittings and committee meetings. It will also deal with the parliamentary budget office, law making and public participation, security on the parliamentary precinct, relations with the media and MPs’ ‘facilities and benefits’. Given the poor attendance record of most members of SA’s fifth democratic Parliament and their apparent reluctance to familiarise themselves with the nuts and bolts of many Bills before them, something is hopefully being done to avoid a repeat performance.

In theory, responsibility for such matters lies with party whips whom – yesterday’s statement notes – not only ‘assist in organising party business’ but are also expected to ensure that party representatives ‘attend committee meetings and debates in the House’. While it is not clear from the statement what is meant by ‘parliamentary business’, party whips are required to keep MPs suitably informed. Last year, when things fell apart in the National Assembly’s Trade and Industry Committee as it attempted to come to grips with the Copyright Amendment Bill, an ANC whip was brought in. Sadly, this made no difference whatsoever to the quality of input from committee members during ensuing deliberations. Perhaps tomorrow’s meeting of National Assembly chief whips will mark the beginning of a new era of well-informed, robust committee discussions?

EFF POISED TO UP THE PARLIAMENTARY ANTE

This article appeared in the 14 May edition of Legalbrief Today, under Policy Watch

The EFF’s performance in South Africa’s recent general elections may not have been as spectacular as its leaders predicted, but 19 more seats in the National Assembly represents a 76% increase in the party’s ability to influence the parliamentary process. Apart from the role its ‘signature proposals’ may well have played in prompting an ANC policy shift in support of expropriation without compensation as an instrument for accelerating land reform (Daily Maverick), since 2014 – with just 25 seats – the EFF has also made a significant impact on debates in the National Assembly’s Standing Committee on Finance.

It all began with EFF deputy president Floyd Shivambu presenting his party’s position on transfer pricing as far back as May 2015, triggering a three-year process later involving the committees on trade and industry, mineral resources and police – and eventually focusing on the measures required to curb base erosion and profit shifting (Parliamentary Monitoring Group). Last year, by tabling an albeit superficial Banks Amendment Bill, Shivambu went on either
to spark or rekindle a debate on the merits of enabling state-owned entities to register as banks. As a result, although his piece of legislation was rejected, a Financial Matters Amendment Bill, among other things introducing the necessary provisions, is now awaiting presidential assent.

A South African Reserve Bank (SARB) Amendment Bill introduced in the National Assembly last August by EFF commander-in-chief Julius Malema has yet to be considered. One of the proposed new statutes on which members of the incoming Standing Committee on Finance will cut their teeth, it, too, lacks substance from a technical drafting perspective. However, President Cyril Ramaphosa has already made it very clear that the ANC’s 2017 elective conference resolution to nationalise the SARB will be implemented (Fin24) – and, once again, the EFF has kick-started the process.

Hopefully, the new, numerically stronger cohort of red overall wearers in Parliament will desist from the kinds of activities for which the EFF became notorious during former President Jacob Zuma’s second term in office. As in the case with every other political party preparing to occupy seats in SA’s sixth democratic Parliament, the names of EFF representatives will feature in lists expected to be released by Chief Justice Mogoeng Mogoeng this week (SABC News). But it is the calibre of incoming MPs that counts, regardless of their ideological persuasion. Will they familiarise themselves with the issues? Will they read and scrutinise every document sent their way? Will they faithfully attend every meeting of the committees to which they are deployed? Will they enrich the quality of debate and new legislation? Will they deliver what is really in the country’s best interests?

LAST-MINUTE COPYRIGHT BILL ENGAGEMENTS A CHARADE?

This article appeared in the 18 April edition of Legalbrief Today, under Policy Watch , when the Department of Trade and Industry finally posted a statement about the meeting on its website.

Many Copyright Amendment Bill stakeholders at a recent ‘engagement’ with Arts and Culture Minister Nathi Mthethwa and Trade and Industry Minister Rob Davies were left with the impression that neither Minister fully understood their concerns or the complex copyright and intellectual property issues underpinning them. The invitation was extended ‘only’ to stakeholders whose email addresses featured in its cover note and was sent at short notice, allowing participants just four days to prepare. The way it was worded tended to suggest that the meeting had been called so that stakeholders opposed to the Bill’s promulgation could formally present their ‘objections’. Yet according to a clip of Minister Mthethwa’s introductory remarks circulated on Twitter, both supporters of the controversial Bill and its critics were in attendance. They were given a five-minute ‘break’ to put their heads together in their respective groups and elect a representative to articulate each of the two views to which he referred: ‘those saying in the media that the President should not assent to the Bill’ and ‘people who are saying the Bill is fine, you can go ahead’.

According to Coalition for Effective Copyright in SA spokesman, Collen Dlamini, legitimate industry concerns voiced during the meeting were swept under the carpet with vague references to addressing the issues by way of regulations. In his concluding remarks, Minister Rob Davies reportedly spoke of government’s ‘duty to intervene’ in contractual negotiations between ‘vulnerable artists’ and ‘powerful’ companies with ‘vested interests’ – among other things to ‘prevent’ artists and performers ‘dying as paupers’. Davies is worried that, should the Bill be returned to the National Assembly, it could take ‘years’ for it to complete its second passage through Parliament – prolonging injustices widely understood to need urgent attention. Yet six years were allowed to pass before legislation was tabled in Parliament with the aim of giving effect to recommendations in the 2011 Copyright Review Commission report addressing these very matters.

In a media briefing on the meeting’s proceedings, Dlamini cited ‘inadequate public consultation on crucial aspects of the Bill’ as one of several reasons why it should be sent back to the National Assembly (Business Day). Legalbrief Today has regularly draw attention to this over the years, with Parliamentary Monitoring Group records substantiating Policy Watch reports on many of the discussions concerned. On 18 August 2017, when members of the National Assembly’s Trade and Industry Committee discussed how best to proceed with redrafting the deeply flawed Bill, Department of Trade and Industry DG Lionel October proposed replacing it with less ambitious amendments focusing on key Copyright Review Commission report recommendations. He believed this would most effectively deal with the need for a ‘properly regulated’ music industry; protection for ‘vulnerable people’; and provisions in the Act to accommodate ‘digital change’ and specific international treaties. At the time, October’s view was that the vexed issue of fair use as opposed to fair dealing should be left to a separate Bill – giving his department more time to convince industry stakeholders of the merits of a system found to have worked so well for the US economy. He was shot down in flames by the ANC’s Adrian Williams and the DA’s Dean Macpherson. As a result, the committee instructed parliamentary legal adviser Charmaine van der Merwe to redraft the entire Bill, concentrating on its numerous technical shortcomings and leaving policy issues well alone.

During the final leg of the 15-month process entailed, the scope of the technically reworked Bill was extended to include amendments to the principal statute not featured in the originally tabled version and apparently rectifying technical shortcomings identified by the panel of experts. These were released for public comment in three successive rounds – beginning just six weeks before the Bill was adopted. On one occasion, stakeholders were given a fortnight to prepare and submit their input. Earlier in the process, new clauses proposed for inclusion in the reworked, rearranged, renumbered Bill were released with the original flawed version to give them context. But most worrying of all was that only one member of the committee demonstrated a working knowledge of copyright law: FF Plus MP Anton Alberts, who firmly and courteously pointed out the Bill’s shortcomings on at least one occasion. The controversial piece of proposed new legislation was before the committee for nearly 18 months, yet by the end of the process most members were none the wiser about the meaning of its provisions, let alone their far-reaching implications. The NCOP’s Trade and International Relations Committee dedicated only one entire meeting to it, having been briefed five weeks earlier – after dealing with negotiating mandates on the National Credit Amendment Bill. The meeting at which Department of Trade and Industry deputy-DG Evelyn Masotja provided input on stakeholder submissions was attended by six NCOP committee members, two of whom represented the DA and none of whom understood the issues – the DA’s Ockert Terblanche and Willem Faber by their own admission.

COPYRIGHT AMENDMENT BILL: EXPERT ADVICE ‘MISSTATED’ AND IGNORED

This article appeared in the 22 March edition of Legalbrief Today, under Policy Watch

Parliament has largely ignored the advice of copyright law experts approached last September by the National Assembly’s Trade and Industry Committee for their views on ‘terminology’ used in the controversial Copyright Amendment Bill. Yet a Department of Trade and Industry presentation on which the NCOP’s Trade and International Relations Committee relied heavily before deciding this week to adopt the Bill’s ‘B’ version left members with the impression that the panel had ‘verified’ clauses many stakeholders believe should have been removed. Drawing attention to the ‘misstatements’ concerned, a letter to Trade and Industry Minister Rob Davies and NCOP committee chair Eddie Makue from panel member André Myburgh asked the Minister to ensure not only that they be ‘corrected on public record’ but that the committee consider ‘the actual responses of … panel members’ in its deliberations.

Myburgh’s letter provided Davies and Makue with copies of documents sent to the National Assembly committee by panel member Michelle Woods (World Intellectual Property Organisation), along with links to electronic copies of input from members Joel Baloyi (University of SA), Wiseman Ngubo (Composers, Authors and Publishers Association) and Myburgh himself. It also drew attention to ‘recommendations from members of the panel as to how certain desired policy outcomes could be made to work’ – along with instances where individual ‘positions’ at the time were, in fact, ‘consistent’ with those of stakeholders whose interests the Bill seeks to protect. This was noting a 6 March NCOP committee media statement among other things commenting on the contrasting views of ‘performers and artists’ (who are apparently ‘happy’ with the Bill) and the general ‘dissatisfaction’ it has allegedly elicited among ‘experts’.

At the time of writing, neither the Minister nor Makue had replied to Myburgh’s letter. However, during Wednesday’s NCOP committee meeting Department of Trade and Industry Deputy DG Evelyn Masotja did concede that ‘most’ members of the panel had been ‘worried’ by references in her presentation to their having ‘cleared’ the Bill. Explaining the panel’s role in the process, she said that, while the advice of individual members had been considered by the National Assembly committee, not all recommended amendments had been accepted. ‘They did not clear the Bill,’ she assured NCOP committee members. According to a document spelling out what was required of the panel at the time, its members were asked for their views on: the ‘appropriateness’ of terminology used ‘in the context of local copyright law parlance’; whether the Bill’s ‘wording’ reflected policy imperatives outlined in the memorandum on its objects; whether clauses seeking to address SA’s obligations in terms of various international treaties ‘correctly’ reflected their content; and ‘whether any of the clauses raise(d) constitutional concerns’.

On Wednesday, having ‘applied their minds’ to the most recent proposals received from stakeholders for amendments to the Bill (at least in Makue’s view), NCOP committee members chose not to consider them further in the light of Masotja’s presentation. Makue also referred to email correspondence from ‘international’ parties sent after the deadline for written submissions had expired, lobbying for the Bill to be withdrawn – and ignored by his own admission. Sadly, if input from committee members during two meetings at which the Bill was superficially discussed are any indication, they are no more familiar with the complex issues underpinning the advice of the panel of experts than their colleagues in the National Assembly committee were when they adopted the Bill last year. This notwithstanding, its endorsement at next week’s NCOP plenary is probably a foregone conclusion – despite widespread media coverage of unintended consequences likely to include job losses across all affected industries (Fin24) and a decline in ‘scholarly innovation and cultural development’ (The Conversation).

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Trade and Industry Minister Rob Davies

THINGS FALL APART

It’s rather worrying when a Constitutional Court judgment creates ‘some confusion’ in government about the department responsible for giving effect to the order concerned. But that was apparently what happened when, in 2017, the court found the 2011 Local Government: Municipal Systems Amendment Act invalid. Which is why it took nearly two years for the required amendment Bill to be tabled in Parliament – at least according to a media statement from Cooperative Governance and Traditional Affairs Minister Zweli Mkhize.

The Act was declared invalid because the Bill concerned was incorrectly classified as section 75 legislation (ordinary Bills) instead of section 76 (Bills affecting the provinces) and therefore processed without the involvement of the provincial legislatures. So, how on earth did the Minister and/or his department expect Parliament to follow the necessary procedures in the six weeks available when the amendment Bill was tabled on 7 February? In anticipation of the 8 May elections, the National Assembly is scheduled to rise on 20 March and the NCOP a week later.

The statement tends to suggest the Bill’s tabling at the eleventh hour was a formality and that it was always the department’s intention to apply to the court for another twelve months to process it. But here’s the rub: local government has been in crisis for decades, hence the need for a turn-around strategy. The accountability of municipal managers (or, possibly, their lack of it) is widely perceived to be at the root of the problems besetting most local authorities: an issue the invalid Act was expected to address by empowering the Minister to make the necessary regulations.

To sum up: 1) the crisis in local government prompted national government to begin implementing a turn-around strategy in 2009; 2) the 2011 amendment Act was supposed to give the Minister the teeth to hold municipal managers accountable; 3) in 2017 the Act was declared invalid by the Constitutional Court; 4) a replacement Act should have been in force by March this year (2019); and 5) it isn’t. If you look at the judgment, it’s perfectly obvious who should be taken to task. Yet municipalities are being told they ‘should not panic as this is not one of those situations where the Act was already in place and its suspension would … lead to a lacuna or vacuum’.

Really? Things are literally falling apart under some local authorities. If the municipalities themselves aren’t panicking, the unfortunate folk living in them probably are.