Category Archives: Parliament

20 changes to South Africa’s Cabinet: All You Need To Know

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(Picture courtesy of: New24 and Eye Witness News)

In the late hours of the evening of 30 March 2017, the Presidency of the Republic of South Africa issued an alert that it would make an announcement related to changes to the National Executive.

Just after midnight on 31 March 2017, the Presidency issued a statement announcing President Jacob’s Zuma’s appointment of 10 new Cabinet Ministers and 10 new Deputy Ministers.

In an unprecedented move, President Jacob Zuma effected 20 sweeping changes to his Cabinet citing the need to “improve efficiency and effectiveness” and “bring some younger MPs and women into the National Executive in order to benefit from their energy, experience and expertise” as his reasons.

In total 5 former Cabinet Ministers and 2 former Deputy Ministers were axed from the National Executive.

The new Ministers and Deputy Ministers appointed by President Zuma have been issued a clear directive by the President to work tirelessly with other Cabinet members to bring about “radical socio-economic transformation” and delivery of the party’s electoral mandate.

The changes to the Cabinet have been met with widespread public and political outcry and condemnation for the manner in which it was executed. This includes for reasons relating to the removal of well-performing cabinet ministers such as the Minister and Deputy Minister of Finance and the retaining of under-performing and controversial Ministers.

Opposition political parties have resorted to the Courts in search of a remedy and called for Parliament to vote on a Motion of No Confidence in the President.

Upon the news of the imminent Cabinet reshuffle and the potential the South Africa Rand had already weakened around 4% to the US Dollar. By the end of the week, the Rand was calculated to have weakened 8% against the US Dollar – the biggest weekly drop since 2015 when the then Minister of Finance, Mr. Nhlanhla Nene was summarily removed from his position by President Jacob Zuma.

The ETHICORE Political Lobbying team is pleased our first glimpse to the Cabinet changes and its implications.

Here’s all you need to know. Click here to download: 20 Changes to South Africa’s Cabinet – all you need to know

The Rubik’s cube of legislating the Mineral and Petroleum Resources Development Amendment Bill

By Abdul Waheed Patel (Managing Director) and Wisahl Jappie (Political and Communications Advisor)

Mineral and Petroleum Resources Amendment Bill

Amidst ‘chamber politics’ that has thwarted Parliament’s public perception and credibility, it is presented with a significant opportunity to exhibit its Constitutional powers and functions as the national legislative authority and platform for public consideration of issues and overseeing executive action.

On 16 January 2015, President Jacob Zuma referred the Mineral and Petroleum Resources Development Amendment Bill to the National Assembly – eleven months since the National Council of Provinces passed the Bill and Parliament transmitted it for Presidential assent and proclamation into law.

The President’s referral requires Parliament to exercise its Constitutional mandate to review within certain parameters and grounds, the process and legislative considerations it previously adopted in passing the Bill.

This presents Parliament with a legislative Rubik’s cube that corresponds with South Africa’s investor friendly pitch at the 2015 World Economic Forum – punting the viability and stability of South Africa’s mining, resources and energy sector.

There was no shortage of lobbying on the amendment bill. Some labeled it “controversial” and discouraging investment in South Africa’s embattled mining industry and the growth of the fledgling oil and gas sector. Stakeholders lamented the Parliamentary public consultation process, the redrafting of the Bill by the Department of the Mineral Resources and the timing of the Gazette notice publishing the amendments to the Act on 27 December 2012.

The President’s letter of referral addressed to the Speaker of the National Assembly, cites the following concerns regarding Bill’s ability to pass constitutional muster:

  • The definition of the Act elevating the Codes for Good Practice for the South African Minerals Industry, the Housing and Living Conditions Standards for the Minerals Industry and the Amended Broad-Based Socio-Economic Empowerment Charter for the Mining and Minerals Industry to national legislative status.
  • Inconsistency of the sections dealing with local mineral beneficiation, with South Africa’s obligations under the General Agreement on Trade and Tariffs (GATT) and the Trade, Development and Cooperation Agreement (TDCA) as it relates to quantitative restrictions on exports.
  • Insufficient consultation by the National Council of Provinces and provincial legislatures, including the consultation period and the timeliness of notification of public hearings by provincial legislatures.
  • The need to consult the National House of Traditional Leaders with regard to customary law and customs of traditional communities, in respect of land owned or occupied by traditional communities where mineral or geological investigations are contemplated.

The President’s referral on these bases is significant. Prior to the May 2014 general election, the 4th ANC-led administration and Parliament stewarded the bill through the legislative process. This was aligned with the ANC elections manifesto for the transformation of the mineral and energy sector.

This drive towards advancing increased local beneficiation and industrialization finds its genesis in the objectives of the Freedom Charter, which proclaims that the mineral wealth of the country “be owned by the people as a whole”.

The ANC’s 2015 January 8 Statement reaffirmed the furthering of “radical socio-economic transformation” and in reference to the Mineral and Petroleum Resources Development Act (MPRDA) stated:

“The vast mineral wealth of our country, which lies beneath the soil, has been transferred to the ownership of the state on behalf of the people as per the Freedom Charter. However this has not yet translated to equal and full benefit of all South Africans. The ANC commits itself to continue working with our people to ensure that there is enhanced benefit from this ownership. This year we must finalise the amendments to the applicable laws to ensure that mineworkers and mining communities share, much more equally, in South Africa’s mineral wealth”.

All of these factors cascade into three distinct and interlinked messages.

Firstly, the ANC’s policy position on State participation in the minerals, oil and gas sector remains consistent with the original intent of the Bill and the principles of the Freedom Charter – notwithstanding the referral of the Bill back to Parliament. These are further echoed in the party’s 2014 elections manifesto and the 2012 National Conference resolutions.

In the Organisational Report to the party’s June 2012 National Conference, ANC Secretary-General Mr. Gwede Mantashe called for delegates to assess progress made in implementing the MPRDA in order to ensure compliance with the Act, in the context of maintaining the state’s strategic role in the mineral and energy complex as key sector of the economy.

In June 2015, the ANC National General Council gathers to assess the party’s mid-term progress and policy review to shape resolutions for adoption at its National Conference in 2017.

Any fundamental legislative realignment on the MPRDA and which deviates from the original policy intent is unlikely to occur in isolation of these party political policy processes which overlaps with the timing of the Parliamentary review process.

This represents the Parliamentary and legislative Rubik’s cube through which MPs are challenged to achieve a reasonable balance between their party policy objectives and ideologies, public policy and the differing interpretations of what constitutes policy certainty.

Secondly, Government is signaling to the investor, mining, oil and gas community, that the attainment of these policy objectives will not be pursued at the expense of legislation that disincentivises the investment inflow upon which Government’s quest for socio-economic transformation is dependent.

Thirdly, the State is communicating its sensitivity to the impact of sub-standard legislation that might be open to Constitutional challenge and which therefore undermines the ability of the State to advance its socio-economic objectives.

It was former Speaker of the National Assembly, Max Sisulu who vocally cautioned lawmakers during the 4th democratic about the perils of drafting poor quality legislation. During the 2013 Debate on Parliament’s Budget Vote, he bemoaned the number of laws passed by the National Assembly being returned for correction and being found unconstitutional as the consequence of “inadequate scrutiny”. He underscored the growing complexity and technicalities of legislating and the need for Parliament to draw on and maximise the availability of stakeholders to ensure access to specialized knowledge and information.

Parliament is Constitutionally endowed with powers to deal with legislation returned to it for review, as well as drafting new alternative legislation, private members legislative proposals and addressing constitutional concerns. In the case of the MPRDA, the extent of Parliament’s scope and oversight is restricted to the parameters of the constitutional concerns raised by the President.

By referring the matter to the Portfolio Committee on Minerals Resources, the Speaker of Parliament has delegated the Committee a formidable maiden legislative task, since its inception following the May 2014 general elections.

The Committee must familiarise itself with the principles and imperatives behind the legislation, the legislative and consultative process followed by its predecessors in the 4th Parliament and stakeholder input received.

Although the provisions exist for the Committee to expand its review of the legislation, it is premature to preempt the Committee’s approach to the referral and the intersecting political considerations, policy objectives and industry imperatives.

This process presents the Committee with a multifaceted piece of legislation that lends itself to the approach advocated by former Speaker Sisulu. It is a landmark opportunity for this Committee to initiate itself into Parliamentary affairs.

In recognizing the opportunity that this presents, stakeholders should be cognizant of the complex interplay between party policy, public policy, the separation of powers between the Executive as well as Parliament and its Constitutionally derived powers, functions and rules of procedures. All of these weave an intricate web of institutional arrangements comprised of Parliament’s legislative and oversight structures, party political parliamentary caucuses, Parliamentary and State legal advisors and Parliamentary programming structures. Unraveling these intricacies and the solutions to be crafted require a robust and constructive approach by decision-makers and stakeholders alike.

Published in Business Day, on Friday 6 February 2015.

‘Minerals Act a chance for Parliament to flex its muscle’

President refers intellectual property law back to Parliament

On 20 September 2012, the Presidency confirmed that South Africa President Jacob Zuma had referred back to Parliament the Intellectual Property Laws Amendment Bill (B-8B of 2010). Seeking to protect South Africa’s indigenous knowledge the intellectual property law system, the Bill was previously approved by the National Assembly and National Council of Provinces in October and December 2011 respective. Since then, the President has received submissions advising him against signing the Bill into law.

According to the Presidency, the President has referred the Bill back to the National Assembly for reconsideration on the following grounds, after considering all of the submission received against signing the Bill into law and a legal opinion on the matter:

  • The Bill was never referred to the National House of Traditional Leaders as required in terms of section 18 of the Traditional Leadership and Governance Framework Act 41 of 2003; and
  • certain of its provisions affect traditional leadership and cultural matters and should therefore be dealt with in terms of section 76 of the Constitution.
  • The Bill as it is now, may not be constitutional.

Objectives
The proposed legislation was drawn up to ensure adequate protective mechanisms for indigenous knowledge (IK) in South Africa. The bill also aims to:

  • Improve the livelihoods of indigenous knowledge holders and communities
  • Benefit the national economy
  • Prevent bio-piracy
  • Provide a legal framework for protection and empowerment of local communities
  • Prevent exploitation of knowledge
  • Raise awareness within communities of the importance of indigenous knowledge for development
  • Establish community trusts
  • Facilitate the recording, documenting and storage of indigenous knowledge

The proposed legislation will also aim to introduce an alternative dispute resolution mechanism into all areas of IP. The idea behind this is to help poor communities to defend their IK.

Background
When trade and industry minister Rob Davies presented the bill to the National Assembly in October 2011 during a second reading debate of the National Assembly on the Bill, he referred to indigenous knowledge as “distinct in many respects from IP generally protected by IP systems”.  “IP systems and practitioners do not easily accommodate knowledge that is collective in nature and also not time-bound. The protection and beneficial use of indigenous knowledge (IK) therefore requires that other areas of law be reviewed, and speedily so, to bring about comprehensive protection of IK,” he said.

The amendment bill began its passage through Parliament in May 2010 and was re-drafted in June 2011. An earlier version of the bill was to have been tabled in the National Assembly in June 2008 but was withdrawn.

Legislation likely to be affected by the bill when promulgated includes:

  • Patents Act 57 of 1978;
  • Copyright Act 98 of 1978;
  • Performers Protection Act 11 of 1997;
  • Trade Marks Act 194 of 1993; and
  • Designs Act of 1993.

Analysis
Interestingly, during a recent meeting of Parliament’s Portfolio Committee on Trade and Industry held on 14 September 2012 attended by the Minister of Trade and Industry, Inkatha Freedom Party (IFP) Member of Parliament, Mario Oriani Ambrosini questioned the Minister about whether there was any truth to the rumours that the President would return the Bill to Parliament over concerns about its constitutionality. In response, the Minister indicated that he was not in a position to confirm anything as regards the Bill that was being contemplated by the Presidency and replied that the matter is a rumour to him too.

Downloads

Intellectual Property Laws Amendment Bill_B8b(2010)

Financial Services Laws General Amendment Bill tabled in Parliament

The Financial Services Laws General Amendment Bill (Bill 29 of 2012), was tabled in Parliament on 25 September 2012.

Cabinet approval and public consultation
Cabinet approved the Bill for tabling in Parliament towards the end of February 2012. The Bill was released for public comment in March 2012 and the commentary period was extended to 2 May 2012. A range of financial services stakeholders, interested and affected parties were consulted by Government during information session held as part of the consultative process on the Bill. These include, the ETHICORE client The Banking Association South Africa, the Association of Savings and Investments South Africa, the South African Insurance Association, the Institute of Retirement Funds and the Congress of South African Trade Unions.

Objectives of the Bill
According to a statement released by the National Treasury on 27 September 2012 upon tabling of the Bill in Parliament, the Bill address the urgency of issues contained in eleven financial sector laws, including legislative gaps highlighted after the 2008 financial crisis and to align these laws with the new Companies Act (2008) and other legislation.

The Bill seeks to:

  • Close gaps identified by the Financial Sector Assessment Program conducted by the IMF and World Bank regarding South Africa’s adherence to international standards for financial regulation;
  • Align financial sector legislation with the new Companies Act, 2008;
  • Eliminate overlaps caused by the Consumer Protection Act, 2008; Companies Act, 2008; and Competition Commission Act, 2009; and
  • Make the Financial Services Board (“FSB”) the lead regulator where there is concurrent jurisdiction.

Changes to the original Bill
National Treasury has also pointed out in its statement that the Bill contains new amendments that were not present in the original version of the Bill. According to National Treasury, these changes are reflective comments received during the consultation process and the 33 written submissions received and include:

New amendments to the Financial Services Board (FSB) Act:-

  • Limitation of liability of the regulator if it exercises the powers conferred upon it in terms of statute provided those powers were exercised in good faith (‘bona fide’).
  • Empowers the Minister to prescribe a code of engagement, consultation and communication for the FSB.
  • Appropriately clarifies the interaction between financial and non-financial legislation.
  • Defers some of the emergency powers to legislation next year that will lay the basis for implementing the “Twin Peaks” regulatory reform.
  • Provides for exemptions and directives to be tabled by the FSB.
  • Ensures that information received by the FSB is treated confidentially.

New amendments to the Pension Funds Act:

  • Provides for whistle-blowing protection for board members, valuators, principal/deputy officers, and employees who disclose material information to the Registrar.
  • Requires a fund board member to attain skills and training as prescribed by the Registrar, within a certain period.
  • Extends personal liability to employers in respect of non-payment of pension contributions to a fund.
  • Provides protection for board members from joint and several liabilities if they act independently and honestly in exercising their fiduciary obligations.
  • Requires pension funds to notify the Registrar of their intention to submit an application to register prior to commencing the business of a pension fund.

Forthcoming Parliamentary
The Bill has now been referred to Parliament’s National Assembly Standing Committee on Finance as a proposed Section 75 Bill in terms of the Constitution. This meaning that it does not affect the Provinces, but must be referred to the National Council of Provinces. ETHICORE will publish further information on the forthcoming Parliamentary process on the Bill. Should you have any enquiries and/or regarding the content of this post or the forthcoming Parliamentary process, kindly do not hesitate to contact us.

Document downloads
The following documents on the Bill released by Parliament and the National Treasury are available for below:

Financial Services Laws General Amendment Bill (B29-2012)

National Treasury Explanatory Memo (27 Sept 2012) to Financial Services Laws General Amendment Bill

National Treasury Response to comments on Financial Services Laws General Amendment Bill (27 Sept 2012)

National Treasury statement (27 Sept 2012) on Financial Services Laws General Amendment Bill

Protection of Personal Info Bill finalised

First tabled in Parliament in 2009, the Protection of Personal Information Bill (B9 B – 2012) is currently the longest standing piece of legislation before Parliament. According to MPs, this is the most technical bill ever tabled in Parliament. ETHICORE has been closely involved with the Parliamentary process on the Bill, including client representation and advocacy on the Bill, as well as monitoring the Parliamentary proceedings and deliberations for consideration and finalisation of the Bill.

Overview
The Bill seeks to provide a legislative framework for data privacy in South Africa that is in harmony with international laws and protocols. From 2010 t0 2012, the Bill was assigned to a sub-committee of the Justice Portfolio Committee, but was referred back to the full committee in June 2012.

Status
The Portfolio Committee on Justice and Constitutional Development finalised the Protection of Personal Information Bill at its sitting held on 5 September 2012. A sitting of the National Assembly held on 11 September 2012 approved the Bill.

Parliamentary process going forward
The Bill will now be transmitted to the National Council of Province’s Select Committee on Security and Constitutional Development for concurrence. The Select Committee may choose to hold public hearings on the Bill – its intention to do so will become clearer once the Committee determines its programme for passing the Bill.

Implementation Issues
Unless the NCOP opts to substantially interrogate the Bill, it is looking increasingly likely that the Bill will be passed by Parliament by the end of 2o12. It will then come into operation on a date determined by the President. The Bill makes provision for a 1 to 3 year implementation period. However, as the Bill is premised on the establishment of an Information Regulator, the time taken to establish the Regulator may further impact the Bill’s implementation – similar to the situation experienced with the coming into force of the Companies Act which was delayed pending the establishment of the Companies and Intellectual Property Commission.

ETHICORE will continue to monitor the Parliamentary proceedings on the Bill. Kindly feel free to contact us should you have any enquiries about the forthcoming parliamentary process or process to date.

Download the latest finalised version of the Bill here: PoPI Bill_Approved_11Sept2012