Agricultural Research Amendment Bill; Marketing of Agricultural Products Amd Bill: deliberations

Meeting report

AGRICULTURE PORTFOLIO COMMITTEE
19 June 2001
AGRICULTURAL RESEARCH AMENDMENT BILL; MARKETING OF AGRICULTURAL PRODUCTS AMENDMENT BILL: DELIBERATIONS

Chairperson: Adv SP Holomisa

Documents handed out:
Marketing of Agricultural Products Amendment Bill: Inputs from National Department of Agriculture in Response to Gaby Gess Attorneys' Comments (see Appendix 1)
Correspondence from Gaby Gess Attorneys
NAMC Response to Concerns Raised in the Submissions on Marketing of Agricultural Products Amendment Bill (see Appendix 2)
Agricultural Research Amendment Bill [B25-2001]
Marketing of Agricultural Products Amendment Bill [B26-2001]
Proposed amendments (see Appendix 3)

SUMMARY
The Committee once again debated whether the Minister has an obligation to consult with the Portfolio Committee in making an appointment of members to the Agricultural Research Council. Ultimately it was agreed that to compel a Minister to consult with the Committees would be contrary to and in violation of the doctrine of separation of powers. However, the Minister would still be expected to submit a report on the appointments made.

The Committee adopted the Agricultural Research Amendment Bill with certain amendments. No members of the Committee raised objections to these amendments. The National Department of Agriculture submitted a document in which they responded to written submissions on the Marketing of Agricultural Products Amendment Bill. In these submissions the stakeholders raised a concern that they were not consulted and were opposed to levies.

MINUTES
The Chairperson reported on the Korea tour that he and two other Committee members had undertaken. He said that he was in a process of drafting a joint report because the delegation included Rev Moatshe and Mrs Gouws of the NCOP. There will be a joint sitting where the report of the tour will be tabled for consideration by the Committee. This will occur next week.

Adv Holomisa reminded that Committee that it had not yet adopted the Agricultural Research Amendment Bill because the formulations of some amendments needed to be agreed to. He referred specifically to Dr Schoeman's proposal to disqualify persons where it has been determined that they have committed racist acts.

Further, he added that the Committee had not finalised the formulation of clause 1(f) because the Committee was of the view that not all persons who contravened the provisions of Chapter 2 of the Prevention of Unfair Discrimination Act should be disqualified. The reason for this view was that Chapter 2 does not only focus on discrimination on the basis of race but on the basis of other things as well. The Chair mentioned that Dr Schoeman's motivation was based on the question of race.

He referred to one of the documents that had been circulated headed "Chapter 2: Prevention, Prohibition and Elimination of Unfair Discrimination, Hate Speech and Harassment (ss 6-12)" and referred in particular to section 7 which concerns the prohibition of unfair discrimination on the grounds of race. He said that this meant that the drafters would have to formulate a Clause stipulating that a person found to have contravened the provisions of section 7 would be disqualified for nomination or appointment to the Agricultural Research Council. This would apply to both the Agricultural Research Amendment Bill and the Marketing of Agricultural Products Amendment Bill.

A further reason for the non-finalisation of the Agricultural Research Amendment Bill was because of submissions made by Gaby Gess Attorneys on behalf of the parties the firm represents. These submissions related specifically to the role of the Portfolio Committee in the appointment of members of Council.

The Chairperson proposed deferring the finalisation of the Bill until the Committee had decided to invite the firm of attorneys to make their representation or take a decision without inviting the firm's representation.

Discussion
Mr S Swart (DP) suggested that the Committee try and accommodate Gaby Gess Attorneys before Parliament went on recess.

The Chair asked the Department and the Ministry to comment on the urgency of the Bills so that the Committee could decide how to proceed.

Adv R van Zyl (Legal Representative, Department of Agriculture) responded that it was urgent that the Bill be passed because the vacancy on the Board meant that the Board fell below the minimum number of members required by the Act.

Mr Du Toit (Deputy Minister of Agriculture) commented that the Ministry would also like the NAMC Act to be promulgated this year. He said that issues surrounding the appointment of the members of the NAMC Board must be discussed. However, he added that finalising the Agricultural Research Amendment Act was more important.

The Chairperson said it was his understanding that the Minister has a discretion to extend the tenure of a member even after his/hers period of service has expired. He asked for clarity on the length of time that a member may stay on the Board after the Minister has extended tenure or office.

Adv van Zyl replied it was possible for the Minister to do this. In the case of the Marketing of Agricultural Products Act, the Minister could extend the period indefinitely. However, in the case of the Agricultural Research Council, the Minister cannot extend the tenure because the Council is below the minimum number of members required by the Act, as a result of the existing vacancy.

Mr Du Toit insisted that it was unnecessary to hear oral submissions and that the existing documented submissions were sufficient for the Committee's purposes.

Mr Maluleke (UDM) asked if it was necessary for the principal Act to remain in place to enable the Agricultural Research Council to perform its functions until the finalisation of the Bill.

The Chairperson explained that the appointment of Council members is quite a lengthy exercise because the Chairperson must be called to a Selection Committee sitting. The Chairperson must subsequently present recommendations to the Committee after which the Committee must consider the recommendations and later refer them to the Minister. If the Minister is not satisfied with some of the candidates, the Minister must refer the list back to the Committee.

Mr Du Toit did not agree with the Chairperson's view that the process was lengthy.

The Chair asked the Department whether the Bill could be ready by August when Parliament returns from recess.

Adv van Zyl replied that she was concerned that the Committee would not be able to finish its work before August because the question of the Committee's involvement in the selection process was not yet resolved.

Mr Swart proposed that the Committee should consider ways of resolving the issue of separation of powers. Further he suggested that the Committee propose a way in which the State Law Advisors could insert a clause disqualifying those persons who have committed acts of racism. He added that this was necessary before the Committee could proceed with the Bill.

The Chair asked whether the Committee should wait for Ms Gess to address the Committee after the 6^th July, her date of return, or ask a member of the firm to speak on her behalf. He thought it better that the Committee be addressed by a member of the firm rather than all of the stakeholders which the firm represents.

Ms Dudley (ACDP) remarked that the Committee should rather concentrate on the Bill that is urgent.

The Chair remarked that if the Committee wanted to expedite the finalisation of the Bill it needed to work on the Bill during the current and following week before Parliament went on recess. There seemed to be no agreement on the Gaby Gess Attorneys issue.

Adv van Zyl said that the Department proposed that the clause read as follows "a person has contravened the provisions of section 7 of the Prevention, Prohibition and Elimination of Unfair Discrimination, Hate Speech and Harassment.

The Chairperson agreed that a formulation to that effect would capture the spirit of the clause.

Ms Dudley concurred with the Chairperson.

Clause (b) (5)
The Chairperson reminded the Committee that it was still dealing with the Agricultural Research Amendment Bill and that clause (f) would be added to the factors that disqualify a person from appointment as a member of the Council if such person "has contravened the provisions of section 7 of the Prevention, Prohibition and Elimination of Unfair Discrimination, Hate Speech and Harassment Act No. 4 of 2000 and it has been so determined by an Equality Court". All the members accepted this formulation as final.

The Chair remarked that the issue relating to the exclusion of the Committee in the appointment of the members of the Council had not yet been resolved.

Adv van Zyl remarked that the Department's proposal was a result of a Constitutional Court judgement earlier in the year where the court held that there should be a distinction between the powers of the judiciary, the executive and the legislature. This is the reason why the Department proposed the amendment. The proposal is that the Committees must also be requested for nominations and that a clause should be inserted obliging the Minister to report back to the Parliamentary Committees on the appointment and so forth. In this manner, the Parliamentary Committees will also be able to make inputs with regard to the nomination of people to be appointed. Their oversight role would be fulfilled by a clause obliging the Minister to report back to them, without the Committees being involved in the actual appointment procedure - which is an executive power. Finally she said that she would formulate the wording of the clause based along the same lines.

Mr Swart agreed with Adv van Zyl's suggestion and said he would appreciate it if the advocate would frame a clause that would allow the Committee necessary oversight in terms of the candidates that have been appointed or nominated. This view was based on the fact that some of the members in the Committee were well aware of the agriculture industry that they may make appropriate comments thereof.

The Chairperson added that the Committee has some ratification powers in terms of the current legislation, but would be bound by the wording in the proposed clause.

Dr Schoeman said that he was satisfied that the Committee was reaching some kind of consensus if it could be stipulated that the Minister must inform the Committee of his/her intention to appoint certain persons, and that the Committee has at least fourteen days to make any input regarding the Minister's intention.

The Chairperson suggested that the Bill be re-considered clause by clause.

Clause 1
Clause 1 reads as follows : "The Minister shall by notice in the government gazette and appropriate media, invite persons, stakeholders and the Premier of each province to submit .."

The Chairperson said that the clause could include the Portfolio Committees to submit to the Minister the names of persons who comply with the criteria referred to in paragraph (a) of subsection (2).

The Chairperson asked at what stage does the Minister must inform the Committee of his/her intention to appoint persons to the Council.

Mr D Hanekom (ANC) replied that the Minister must inform the Committee about her intention to appoint a group of persons then after appointment the Minister must report to the Committee. The Committee would have fourteen days to respond to the Minister's intention to appoint a certain number of persons.

The Chair specifically wanted to know the stage at which the Committee got involved. Does the Committee get involved after the Minister has had time to consider the shortlist given to him/her by the select Committee or before he/she considers the list, he asked.

Adv van Zyl replied by drawing the Committees' attention to the South African Personal Injury Lawyers v Heath & Others (CC) 2001 which is a Constitutional Court decision. She said that this decision says that the Constitution of the Republic of South Africa provides for the separation of powers between the executive, the legislature and the judiciary. Laws that are inconsistent with the Constitution in this regard are invalid.

Adv van Zyl said that the Department's contention on this amendment is that the appointment of a Board is an executive function and not a legislative one. This is the reason behind the Department's proposal that the Committee should be completely excluded from the appointment process because its involvement is contrary to the above decision. This was a unanimous decision by all eleven Constitutional Court Justices.

The Departments proposal is that if the Committee wants to be informed of the Minister's decision to perform an oversight role, it is possible for the Committee to oblige the Minister to specifically report back to the Committee on what she did and who she appointed. The proposal is that the Committee should be informed after the appointment has been made, not that the Committee should make an input over who should be appointed and why they should be appointed. Instead the Minister should be obliged to report back to the Committee on what she did and when she made an appointment. The Committee should not be involved in the appointment process as this would be contrary to the principle of separation of powers. She suggested that a written report from the Minister should be required for these purposes and if there is anything that the Committee feels that the Minister should address the Committee on, then the Minister can be invited to make any points of clarity thereon.

The Chairperson replied that he was satisfied with the Adv van Zyl's statement. It was not the Committee's business to make an appointment.

Mr Swart agreed that the explanation explained the Committee's role. He added that the report would have to indicate who applied, how many applicants there were and the number of those persons who had been shortlisted.

Dr Schoeman agreed that there was no way that the Committee could act as a nominating body as this would be chaotic. Dr Baloyi (IFP) also agreed with Adv van Zyl's explanation.

Mr A Botha (DP) asked what the oversight role of the Committee would be. Further he asked what the purpose of the Minister's report back to the Committee would be.

The Chairperson responded that generally the executive reports on its actions to the Department. The Minister is usually called to account on the actions of the Executive and the Committee decides whether it is satisfied that its mandate had been performed. If the Committee is not satisfied then processes are usually set in motion to ensure that what was complained does not re-occur.

Mr Botha was not satisfied with this explanation. His opinion was that the Committee's oversight role was seriously diminished by the proposed amendment.

The Chairperson remarked that the new clause (d) ( based on Adv van Zyl's explanation) will read as follows:

Clause 1 (d)
"After making an appointment as contemplated in paragraph (c), the Minister shall inform the Select and the Portfolio Committees of Parliament responsible for agricultural affairs of the appointments made".

Mr Swart raised a question relating to the time frames within which the Minister must inform the Committees. He also commented that the report that the Minister must submit must be open and transparent and reflect the results of the appointment procedure.

Mr D Hanekom remarked that he did not consider it important to view a list of names as suggested by Mr Swart.

Dr Baloyi disagreed with Mr Hanekom. He said that the appointment should focus on the skills that the appointees have.

Mr Maluleke made a suggestion that a Minister should submit a report 30 days after making an appointment. A further suggestion was made that the report should be submitted within 30 days after the Minister has made an appointment.

The Chairperson suggested a formulation as either
"Within 30 days of making an appointment as contemplated in paragraph (c) the Minister shall inform the Select and Portfolio Committees responsible for agricultural affairs, in writing, of the procedure followed and the appointment made" or

"Within 30 days of making an appointment as contemplated in paragraph (c) the Minister shall inform the Select and Portfolio Committees responsible for agricultural affairs, in writing, of the nominations received and the appointments made"

Ms Dudley said she was in favor of the second formulation.

Mr Abrahams (ANC) said that it was not a wise to make the list of nominate persons available. He insisted that it was sufficient that the Minister should inform the Committee of the people that she had appointed.

The Chairperson asked what the value of the report would be with a list of all nominated persons.

Ms B Ntuli (ANC) replied that she did not know. She added that the Minister should not be thought of as a shallow minded person who would appoint persons who are not suited for the job. She said it was unnecessary for the Committee to monitor each step she took. She urged the Committee only to accept the report listing the appointed persons. She stressed that it was nonsensical to take into account the whole list of nominated persons.

The Chair asked for permission to read the formulation that had been suggested by the Department of Agriculture which read:

"Within 30 days after making an appointment as contemplated in paragraph (c) the Minister shall inform the select and portfolio Committees responsible for agricultural affairs, in writing, of the appointments made".

Most of the members agreed that the formulation was adequate.

Mr Hanekom also agreed that the formulation was adequate. He said that the Minister may well choose to provide the Committee with more details but the Committee did not need to legislate on the issue. He said that it was already going a bit far requiring the Minister to report back to the Committee.

Finalisation of Amendments
The Chairperson said he appreciated the fact that this was one amendment that all Committee members agreed upon. He suggested that the Committee consider the re-formulation of each clause in the Bill.

Clause 1 (3) (a) (i)
"by notice in the government gazette and appropriate media, invite persons, stakeholders, the Premier of each province and the select and portfolio Committees responsible for agricultural affairs to submit to the Minister…"

The amendment was agreed to and adopted.

Clause 1 (3) (a) (d)
"Within 30 days after making an appointment as contemplated in paragraph (c), the Minister shall inform the select and portfolio Committees responsible for agricultural affairs, in writing, of the appointments made".

The amendment was agreed to and adopted.

Clause 1 (3) (b) (5)
"(5) A person may not be nominated or appointed as a member of the Council if such person

The amendment was agreed to and adopted.

Clause 1 (3) (b) (5) (f)
(f) "has contravened the provisions of section 7 of the Prohibition, Prevention and Elimination of Unfair Discrimination, Hate Speech and Harassment Act No. 4 of 2000 and it has been so determined by an Equality Court".

The amendment was agreed to and adopted.

Clause 2 (4) (a)
"has contravened the provisions of section 7 of the Prohibition, Prevention, and Elimination of Unfair Discrimination, Hate Speech and Harassment Act No. 4 of 2000 and it has been so determined by an Equality Court".

The amendment was agreed to and adopted.

There was no objection to the adoption of the Bill as amended. The Chair then read the report of the Committee regarding their decision as follows:

Report on the Agricultural Research Amendment Bill [B 25-2001]
The Portfolio Committee on Agriculture and Land Affairs, National Assembly, having considered the subject of the Agricultural Research Amendment Bill [B 25-2001] National Assembly, section 75, referred to it and classified by the joint tagging mechanism as a section 75 Bill reports the Bill with amendments.

The Report was duly adopted.

Marketing of Agricultural Products Amendment Bill
The Chairperson asked for a way forward regarding this Bill. He asked if the Committee should proceed with it or delay it to a later date.

Mr Hanekom expressed his concern on the unavailability of Gaby Gess attorneys to address the Committee on matters of substance as having been raised in their clients submissions to the Committee. He said that it would have been the Committee's preference that she make an individual presentation to the Committee but was unable to do so as she was away for a time.

The Chairperson said that he had been addressed and that the attorneys would rather make a presentation in the following week.

The meeting was adjourned.

Appendix 1:
MARKETING OF AGRICULTURAL PRODUCTS AMENDMENT BILL [B26 - 2001]

INPUTS FROM NATIONAL DEPARTMENT OF AGRICULTURE IN RESPONSE TO COMMENTS SUBMITTED BY GABY GESS ATTORNEYS
The Chairperson of the Portfolio Committee on Agriculture and Land Affairs (the Committee) requested the National Department of Agriculture (NDA) to prepare a response to comments received by letter dated 5 June 2001 from Gaby Gess Attorneys. For ease of reference, the points raised in the letter referred to will be dealt with in the same order in this document.

PART B OF LETTER: LEGAL BASIS FOR ORAL SUBMISSION
1.The NDA does not dispute the fact that the parties represented by Gaby Gess Attorneys will be affected by the proposed amendments. It must be pointed out, however, that these parties constitute only a small part of such affected groups and that the NDA, on request of the Committee, is in the process of obtaining inputs from other affected groups as well.

2. Contention regarding possible re-introduction of single-channel system
It is the express policy of the Government and of the Minister for Agriculture and Land Affairs that the South African economy is a free market economy. Section 22 of the Marketing of Agricultural Products Act, 1996 (Act No.47 of 1996) (the Act) currently allows the Minister to prohibit the import or export of agricultural products or a class thereof "in extraordinary circumstances" (which circumstances can be objectively adjudicated by a court of law) "after consultation with the parliamentary Committees". Regardless of whether the process of consultation with the parliamentary Committees is retained or not, the Minister has absolutely no intention of re-introducing a single-channel marketing system. That section can in any case not be used for a single channel or permir sytem, as there is a clear distinction between the authority to prohibit something and the authority to regulate something by way of single channel. Spreading such rumours could harm South Africa's good name internationally as an exponent of the free market system.

Amending section 22 to oblige the Minister to consult the National Agricultural Marketing Council (in the Act referred to as "the Council" and in the letter under discussion referred to as "the NAMC"), instead of the parliamentary Committees, will bring the Act in line with the Constitution with regard to the separation of powers. It will also ensure that the Minister consults the body that was created especially by this Act in order to advise the Minister, namely the Council. Section 9, which sets out the functions of the Council, inter alia determines in subsection (1) paragraph (e) that the Council "may undertake investigations and advise the Minister regarding agricultural marketing policy and the application thereof, the co-ordination of agricultural marketing policy in relation to national economic, social and development policies and international trends and developments", which will include advising the Minister on section 22 measures.

The requirement of "extraordinary circumstances" still stand, the Council that was established to advise the Minister is consulted and the Minister is now subject to oversight by Parliament as intended by section 42(3) of the Constitution, instead of the parliamentary Committees being placed in the position of being both player and referee as is the case at present. The Minister is obviously also subject to the highest law of the land, the Constitution, and may not take a decision that breaches every citizen's "right to choose their trade, occupation or profession freely" (section 22 of the Constitution), unless that right is "limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors" (section 36 of the Constitution). Imposing a prohibition to import or export on the people of the RSA in terms of section 22 of the Act constitutes a limitation and will therefore have to comply with section 36 of the Constitution.

It would be very unwise of the Minster to take a decision under section 22 of the Act without proper consultation, as that will make it difficult for the Minister to justify the limitation and to prove that she complies with section 36 of the Constitution. However, if there is a fear that the Minister might not consult widely enough, a consultation process similar to the process set out in section 13 (consultation process for the introduction of a statutory measure) could be introduced under section 22 of the Act.

Contention regarding section 7 Committees of the Council
In practise it is quite difficult for the Council to ensure that "relevant directly affected groups" are always represented on the Committees of the council. In some cases there are too many directly affected groups to include all of them, while in other cases it is not always possible for the Council to determine who all directly affected groups are. The primary concern, however, is that if there is an obligation that all affected groups have to be represented, the section 7 Committees rarely reach any conclusion or reach compromise decisions. The purpose of these Committees is to assist the Council in its tasks - the Council itself is representative, while the Committees should address the issues in question. Note that affected groups may still form part of the Committees - the Council is just not forced to include all of them.

Committees can also become so big and cumbersome that the Committee becomes unable to function properly, thereby defeating the object for which the Committee was appointed in the first place. The Council, where affected groups must be specifically represented as prescribed by the Act, always retains control of the Committees. Before the Council or one of its Committees may take any decisions regarding regulatory measures under this Act flowing from a report or an investigation, the proposed measure must be consulted as required by the Act. The final decision still lies with the Minister, who is subject to the constitutional checks and balances set out above.

3. Council (NAMC) in position of former (control) Boards
This contention is devoid of all truth as the Council has no executive or decision-making powers under the current Act, nor will the Council gain such powers under the proposed amendment. The control boards established in terms of schemes under the Marketing Act, 1968 had extensive powers of regulation and control. The Council under the current Act only has autonomy with regard to its budget and personnel (subject to the Public Finance Management Act, 1999 and auditing by the Auditor-General) and formalities such as meeting procedures.

Section 9 (functions of the Council) and other sections regarding actions to be taken by the Council, for example publication of a notice as part of the investigation of a statutory measure (section 11), makes it very clear that the Council investigates, prepares and submits for consideration, reports, obtains information, advises, makes recommendations et cetera. This does not change in terms of the proposed amendment. For clarity, Ms. Gess could be requested to point out where the Council is taken beyond the position of an advisory body to that of the former Boards. The NDA could not find any examples.

4. The decision whether to hear oral evidence or not lies with the Committee.

PART C OF LETTER: GENERAL
5.1 Agreed, but with all due respect, changes were spearheaded by the Minister and her predecessors as a result of the Government's initiative to move to a free market economy.

5.2 The NDA is an active participant in this process and the leader in the field of agriculture.

5.3 No comment necessary.

5.4 Ditto.

5.5 Ditto.

5.6 There has never been any indication from the NDA's side that the reintroduction of the type of control under the 1968 Act is being contemplated.

5.7 The proposed changes are changes to procedures, not changes with regard to the measure of control.

5.8 It is in the discretion of the Council to appoint a section 7 Committee to assist it, or not. Should any party feel that the Council did not do its job properly, it may take the necessary legal action against it. To equate this with the role of the Parliamentary Committees is wrong - the latter would involve Parliament directly into an executive role and thoroughly confuse an executive function with a legislative mandate.

5.9 If it is felt that the current Act does not provide for sufficient consultation with affected groups, specific consultation procedures could be introduced where it is not provided for at present.

5.10 This issue has no relevance in terms of the proposed amendment.

PART C (sic) OF THE LETTER: PROVISIONS OF CONCERN AND WISH TO ADDRESS ON (This should probably be "D" and not "C")
6.1 Role of the parliamentary Committees: A proposal on a possible role for the Committees is discussed under paragraph

6.2 Section 7 Committees: Refer to discussion under part B above.

6.3 Legal status of former Boards: The Minister gazetted in terms of section 27(3) of the Act the continuation of six of the marketing schemes under the Marketing Act, 1968 in order to maintain the legal status of the Citrus, Deciduous Fruit, Maize, Meat, Wheat and Wool Boards. This was necessary to finalise outstanding business such as legal action for the collection of outstanding levies, a dispute regarding a trademark and so forth.

Although the Amendment Bill repeals subsection (3) of section 27, clause 13 of the Amendment Bill provides that the Amendment Act "comes into operation on a date fixed by the President by proclamation in the Gazette. Section 13 of the Interpretation Act, 1957 (Act No.33 of 1957) however determines as follows: "If any Act provides that that Act shall come into operation on a date fixed by the President or the Premier of a province by proclamation in the Gazette, it shall be deemed that different dates may be so fixed in respect of different provisions of that Act" (own underlining). Thus, if it is still necessary to maintain the legal standing of the six control boards referred to after the Amendment Act has been passed, the repeal of section 27 subsection (3) will be put into operation only after the affairs of the relevant boards have been finalised. Presently liquidation Committees for the respective Boards are handling the phasing out process. The activity is highly specialised and it is recommended that it remain with these Committees until the process is finalised.

7. (a) Implementation of intervention: This comment is not understood as neither the Minister, the Council nor the NDA has in any manner indicated that interventions prohibiting "an individual from handling a particular agricultural product" is being contemplated. Even if it had been contemplated, such an intervention would hardly satisfy the requirements set out in section 36 of the Constitution for a limitation of the rights in the Bill of Rights (refer to explanation under Part B paragraph 2 above).

(b) Addressing the Portfolio Committee: Excluding the Parliamentary Committees does not mean that no consultation with interested parties will take place or that interested parties will not have the chance to raise their concerns. The Act provides for extensive consultation and more consultation procedures could be inserted where it is felt that consultation is not adequately provided for.

(c) Council (NAMC) as advisory body: Refer Part B paragraph 3 above.

(d) Litigation by Boards: Refer Part C (sic) paragraph 6.3 above: Legal status of former boards.

PART D: HEADS OF LEGAL MOTIVATION
8.1 and 8.2 refer to the explanation under Part B paragraph 2. Section 55(2)(b)(i) and (ii) of the Constitution (the letter under reply incorrectly refers to section 55(b)(i) and (ii) determines as follows:

"(2) The National Assembly must provide for mechanisms-

(a) To ensure that all executive organs of state in the national sphere of government are accountable to it; and

(b) To maintain oversight of-

(i) The exercise of national executive authority, including the implementation of legislation; and

(ii) Any organ of state."

This section clearly provides for mechanisms, as opposed to legislation, to maintain oversight of the exercise of national executive authority.

Other sections of the Constitution that refers to the oversight role of the National Assembly as part of Parliament is:

· Section 42 (3): "The National Assembly is elected to represent the people and to ensure government by the people under the Constitution. It does this by choosing the President, by providing a national forum for public consideration of issues, by passing legislation and by scrutinizing and overseeing executive action (own underlining)."

· Section 92(2): "Members of the Cabinet are accountable collectively and individually to Parliament for the exercise of their powers and the performance of their functions.

Section 92(3): "(3) Members of the Cabinet must-

(a) Act in accordance with the Constitution; and

(b) Provide Parliament with full and regular reports concerning matters under their control."

All of the above-mentioned sections of the Constitution serve to confirm the oversight role of Parliament and of this Committee as a part of Parliament. As had been pointed out numerous times before, Parliament cannot be both player and referee in the same game; it cannot be both a party to a decision making process as well as overseeing the same process. Other mechanisms such as requiring the Minister to report back to the Committee could rather be implemented as a mechanism referred to in section 55(2).

9.1 and 9.2 refer explanation above under 8.1 and 8.2.

9.3 The Minister can be summoned to account for her decisions and it could even be considered to insert a formal legislative requirement that the Minister reports back to the Committee. A duty to report back to the Committee would far better enable the Committee to discharge its duty to oversee rather than an unconstitutional function of being part of the decision-making process.

9.4 and 10 The legislation attached as authority for retaining the Committee as part of the executive decision-making process all date back to before 2001 and before the important ruling of the Constitutional Court in the case of SOUTH AFRICAN ASSOCIATION OF PERSONAL INJURY LAWYERS V HEATH AND OTHERS 2001(1) SA 883 (CC).
As this ruling was only made during 2001, it is obvious that legislation promulgated before 2001 cannot serve as arguments in favour of blurring the lines between the distinctive functions of the Legislature, the Executive and the Judiciary. In this case the judges of the Constitutional Court held in an unanimous decision that: "The Constitution of the Republic of South Africa Act 108 of 1996 provides for a separation of powers between the Executive, the Legislature and the Judiciary. Laws inconsistent with what the Constitution requires in that regard are invalid." Although this case deals specifically with the separation of powers between the judiciary and the executive, the arguments are just as valid for the separation of powers between the executive and the legislature.

Reference can also be made to legislation such as the Sugar Act, No. 9 of 1978 and the Customs and Excise Act, No. 91 of 1964 (last amended during 2000) where Ministers have the power to determine levies and customs duties without intervention by Parliament or its Committees.

PART E: CONCLUSION
1. Refer to Part D paragraph 9.4 and 10 above.

2. Refer to Part B paragraph 2 above.

3. Refer to Part C (sic) paragraph 6.3 above. However if it is felt that a single Committee would be better able to finalise outstanding legal issues, the NDA would be willing to consider a proposal.

4. Noted.

GENERAL COMMENT FROM NDA
The letters attached to the document under reply do not seem to support the contentions made in the comments. Some of the writers are in support of the proposed amendment, while writers "opposing" the amendment are actually under the impression that deregulation is to be reversed and that single channel marketing is to be re-introduced. Their opposition is aimed at single channel marketing and stricter regulations, and not at the Amendment Bill as such.

Authors: Ronel van Zyl & Les Kugel
2001-06-18

Appendix 2:
CONCERNS RAISED IN THE SUBMISSIONS TO THE CHAIRPERSON OF THE PORTFOLIO COMMITTEE ON AGRICULTURE REGARDING AMENDMENTS TO THE MARKETING OF AGRICULTURAL PRODUCTS ACT NO 47 OF 1996

RESPONSE BY NAMC
1) Reintroduction of single channel marketing
The Government is fully committed to the principle of free market and there is no intention to revert to controlled marketing. Government intervention in the marketing of agricultural products will mainly be limited to compliance with regulatory functions in terms of food safety standards of products.

2) Consultation process
The NAMC was consulted during the drafting of the amendments and it has since learnt that the drafters had considered the changes to be only of administrative and technical nature did not require flintier consultation.

3) Involvement of directly affected groups in Section 7 Committees.
The new change does not intend to exclude directly affected groups. But experience has shown that at times Section 7, Committees become too large to manage and to agree on output. Furthermore, they become too costly to the Council. The idea is to ensure that the NAMC constitute Committees that are manageable and efficient in its process of investigation each Section 7 Committee make sure that it receive inputs from all affected groups regarding its terms of reference.

4) Appointment of Council members to the NAMC
The intention is to shorten the process of appointment and to separate the role of legislature from that of the Executive.

Appendix 3:
AGRICULTURAL RESEARCH AMENDMENT BILL [B25-2001]

CLAUSE 1
1. On page 2, in line 10, after "the" to insert "Gazette and other appropriate".

2. On page 3, in line 10, after "be" to insert "nominated or"

3. On page 3, after line 22, to add the following paragraph:

(f) has contravened a provision of Chapter 2 of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act No.4 of 2000), and it has been so determined by an equality court.

CLAUSE 2
1. On page 3, in line 25, after "amended" to insert the following:

(a) by the insertion of the following paragraph in subsection (2):

(a) he or she has contravened a provision of Chapter 2 of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act No. 4 of 2000), and it has been so determined by an equality court;";

(b) by the substitution for paragraph (f) of subsection (2) of the following paragraph:

(f) he or she is nominated as a candidate for election as a member of Parliament, a Provincial House of Traditional Leaders, the [Council] National House of Traditional Leaders, [the Volkstaat Council] a provincial legislature, or the council or other governing body of a local government body or is appointed as an official of a political party and whose functions as such are incompatible with the functions of a member; or"; and
(c)


MARKETING OF AGRICULTURE PRODUCTS AMENDMENT BILL
[B26-2001]

CLAUSE 1
1. On page 2, in line 10, after "the" to insert "Gazette and other appropriate".

CLAUSE 2
1. On page 2, in line 8, after "amended" to insert "- (a)".

2. On page 3, at the end of line 13, to add "and".

3. On page 3, after line 1 3, to add the following paragraph:
(b) by the addition of the following subsections:
"(1 3) A person may not be nominated or appointed
as a member of the Council if such person-
(a) is not a South African citizen or permanently resident in the
Republic;
(b) is an unrehabilitated insolvent in respect of whom the
trustee of the insolvent estate has not certified that the
insolvent is a fit and proper person to serve as a member
of the council;
(c) has failed or is unable to comply in full with a judgement or
order including an order as to costs given against such
person by a court of law in civil proceedings
(d) has been convicted of an offence involving an element of
dishonesty or has been sentenced for any other offence
committed on or after 27 April 1994 to a period of
imprisonment without the option of a fine;
(e) is of unsound mind; or
(f) has contravened a provision of Chapter 2 of the Promotion
of Equality and Prevention of Unfair Discrimination Act,
2000 (Act No.4 of 2000) and it has been so determined by
an equality court.
(14) A member of the Council shall vacate his or her office if that member -
(a) is declared insolvent or surrenders his or her estate voluntarily;
(b) is found guilty of an offence and sentenced to a period of imprisonment without the option of a fine;
(c) resigns as a member;
(d) is nominated as a candidate for election as a member of Parliament, a Provincial House of Traditional Leaders, the National House of Traditional Leaders, a provincial legislature or the council or other governing body of a local government body or is appointed as an official of a political party and whose functions as such are incompatible with
the functions of a member;
(e) is removed from office under subscection (15); or
(f) has contravened a provision of Chapter 2 of the Promotion of Equality and Prevention of Unfair Discrimination Act 2000 (Act No.4 of 2000) and it has been so determined by an equality court.
(15) The Minister may at any time remove a member of the Council from office if such member is incompetent to fulfil his or her duties or is guilty of misconduct."