Restitution of Land Rights Amendments Bill; Sectional Titles Amendment Bill; Spatial Data Infrastructure Bill & Agricultural Pro

Clause 1(Definitions)
Mr Surty thought that the definition for "data custodian" under (b) was not specific enough. He suggested that it should read: "a person or an independent contractor appointed in the exercise …". He added that persons and independent contractors do not exercise public power, unless such power is designated to them.

Mr Brocker responded that in the normal course of operations, an independent contractor or other person would not perform a public function. However, very often in practise, and depending on the purpose for appointing such a person, they do, on behalf of the state, and as agents of the state, perform public functions. An independent contractor or other person who does not perform a public function, is not a data custodian.

Mr Surty felt that the present wording could lead an independent contractor or person to declare that because he was exercising a public power, he fell within the ambit of the definition, whether or not he was appointed to perform that function.

Mr Windvoel agreed that the provision should be clarified.

Mr Kabagambe explained that often, public sector spatial information, which had been paid for by Government, was in private hands. It then became unclear, after a period of time had elapsed, if Government should still have access to it. There other instances in which information was gathered by an independent contractor, who then added value to the information, without having been appointed to do that. The benefit in the definition remaining unqualified, is that it would be possible to inform the data gatherer that he is providing a public function, given that the information belongs to the primary owner.

Mr Windvoel was of the opinion that a product which had been paid for by Government, would belong to Government, for use by any department of Government. Government should be the custodian of any information which it had commissioned and paid for.

Mr Surty understood that the intention of the definition was that anybody who collects or integrates and distributes data, would fall within the regulatory framework of the Act, to prevent them from vending the information. On the basis of that, he withdrew his concern in relation to the definition.

Mr Windvoel asked for greater clarification on the definition of a "data vendor". He added that often, data vendors act on behalf of independent contractors. He asked how the activities of data vendors would be regulated.

Mr Ogunronbi said the Department was unsure whether it should regulate the entire spectrum of spatial information, or the division between private involvement with spatial information, and the publicly-held spatial information. The Act seeks to regulate only publicly-held spatial information. To that extent, a data custodian or vendor will only come within the ambit of this Act, insofar as that vendor is related to the custodian who performs a public function, or exercises a public power. Data vendors, therefore would only be regulated to the extent that they are tied to the definition of a data custodian, in terms of this Act.

Mr Kabagambe stated that the Bill provides for collaborative maintenance agreements. In other words, the Statistician-General may choose to say that he will appoint provincial governments as vendors for statistical information. They would then enter into an agreement (provided for by the Bill) on maintenance, which includes inter alia, quality and price, and which would bind them in a contractual fashion, so that the vendor acts on behalf of the custodian, the custodian being the generator of the information. The vendor is really an outlet of that information.

Mr Surty asked for a distinction between "public power" and "public function" in (b) of the definition for "data custodian".

Mr Kabagambe stated that with "public function" goes statutory obligation. Here, there would be a degree of public funding.

Mr Brocker said that there was a 'welter" of law and debate surrounding the phrases, "public function", "public interest", and "public purpose". The Constitutional definition of an "organ of state" included a person performing a public function. The perceptions of what may be construed as a "public function" may differ from one person to another. For this reason, the Bill does allow a provision for the Minister to exempt a body or person from certain of the provisions of the Act, this provision having been intentionally inserted. One of the principal objects of the Bill is to co-ordinate public sector spatial data, but it does not seek to interfere with the propriety rights of a person dealing with spatial data that is private, and not public. What makes the distinction, is the other object of the Bill, which is that spatial data that is in the public interest, should be made accessible to the public. Spatial data that is public, is data that the public should know.
He referred to the spirit of the Promotion of Access to Information Act, which provides that knowledge in the interests of the public, should be made accessible to the public. Government should co-ordinate public knowledge, and lay down certain standards for the benefit of the public. Telkom's business-related information regarding its cost per cable metre, for instance, is not necessarily in the public interest to disclose. In determining public function, public purpose should be considered, answering the questions: "Does the public have a right to know?" and "Does it rely on the information in making its own decisions?" Public function is also defined by the obliging statute or legislation that makes that body obliged to provide information to the public.

Mr Surty asked that consideration be given to replacing the previously suggested "appointed" with "engaged", in the definition for "data custodian".

Mr Surty questioned Clause 3(1), which describes the South African Spatial Data Infrastructure (SASDI) as a policy framework, rather than as an entity.

Mr Kabagambe responded that the SASDI is not an entity, and that it has three major components: (1) the technical component, where technical standards would be worked on; (2) the policy component, which would address issues of what public sector information should cost; and (3) the institutional component. This is according to international convention. He agreed that the description of the function of the SASDI could be improved. The SASDI was not the actual policy, but the establishment thereof provided the framework within which the three components could evolve.

Mr Surty suggested that the provision should read: " .. policy framework to facilitate the capture …".

Mr Brocker stated that the Act, when it was passed, would be the framework within which policy would evolve.

Clause 5 (Establishment of Committee for Spatial Information)
On the composition of the Committee for Spatial Information in Clause 5, Mr Windvoel noted that a number of people would serve on it. Although it would have a wide representation, it would be a cumbersome Committee. He suggested that the Bill should stipulate, as in other Acts, that the persons appointed from each provincial government in (d), should be appointed by the relevant Premier. He further asked if the person denoted in (j) "from each data custodian", was in reference to Clause 1(b) on definitions.

On Clause 5(2)(c)(i), Mr Surty questioned if the Minister of Land Affairs could make appointments within the national department of Provincial and Local Government as provided, without consulting with the line functioning of the Minister there.

Referring to Clause 5(3)(b), Mr Brocker pointed out that it was intended that the Minister certainly would enter into a consultative process regarding the appointment of Committee members.

Mr Kabagambe pointed out that in Clause 20 of the Bill, it was provided that criteria for appointments would be more clearly spelt out in the regulations of the Bill.

Mr Brocker said that in terms of the law, a person could not be appointed on the agreement that criteria for regulations would be discussed. He conceded that although a consultative mechanism was generally in place, in terms of specific appointments in the department and other ministries, however, the Bill was not sufficiently specific on the required consultations.

Mr van Niekerk asked if a provision for a resource centre or the employment of full-time personnel for the Committee was captured in Clause 6(g) and Clause 20(e).

Mr Brocker said that the Committee already exists informally, without a statutory authority. The Committee will be basically supported by the Department of Land Affairs in terms of its resources. There are two categories of members, one being state officials, who will represent different organs of state, and the other being the non-state officials, who represent the professions. This means that private sector expertise and experience is coupled with public sector expertise and experience. One omission from the Bill, is that there is no provision for remuneration to the non-state officials. They would propose an amendment to the Committee, which would cater for that omission. The terms of reference of the Committee are stipulated, as well as its purpose. So is the fact the Director-General of the Department will administer the Committee, and follow up the day-to-day working of the Committee.

Mr Sulliman asked if it was the Committee's view, in terms of 5(d), to involve SALGA in the appointment of a person from each provincial government. Alternatively, he asked if mayoral involvement would be sought here.

Mr Kabagambe appealed to the Committee, in acquiring representation from the municipalities, to allow some space for the regulation process. An initial proposal had been made to have one representative from the municipal sphere of Government. It was quickly realised that very often, mainly people from cities and towns end up in that forum. As a result, the Department provided for the appointment of two persons, one from a predominantly rural environment, and one from the urban environment. It was naturally assumed that SALGA would determine who those persons would be. It was then suggested that SALGA, amongst others, should also be involved in the process of nominating. Mr Kabagambe felt that this process should not legislated for, but that the process would be guided by Parliament and other principles. He would prefer to leave the process to the regulative phase, than to the legislative phase.

Mr van Niekerk thought that mayors would not be involved in the appointment of Committee members, since 8(f) provides that politicians are excluded from such involvement.

Mr Surty said that SALGA would be the ideal vehicle for making nominations, since it represented all municipalities, all provincial associations, and both rural and urban metropolitans throughout the country. Since SALGA had been created as a local government association in the Constitution, and not by law, it would be an appropriate forum to make nominations.

Mr Brocker said that the Department had noted the need to write consultation into the provisions of the Bill as a criteria for the Minister. In regard to a national department, consultation would be with the relevant minister. In regard to provincial organs of state, consultation would be with the Premier. In regard to local authorities, consultation would be with SALGA.

Ms P Majodina (ANC) asked if there was a fundamental difference between a professional association and a person teaching geographical information.

Mr Brocker replied that somebody in practice who daily deals with spatial data and the public and how that data works on the ground, is the practitioner, while the teacher is the academic, or the theorist.

Mr Ogunronbi
Mr S Ogunronbi: Director: Land Planning and Property Law , Department of Agriculture & Land Affairs, asked for clarity on whether the Committee preferred that the Minister appoint people "in consultation with", "after consultation with", or if the provision should say that "the Minister must ask for nominations". In the latter case, he suggested that the Minister seek three names from each province, so that the actual appointment would still reside with her.

The Committee preferred that the Bill say, "after consultation".

Mr Surty felt that the issue should be raised with the Minister. To him, "in consultation with" meant "in agreement with", and he felt that there had to be agreement, since provincial government was a sphere of government over which the Minister had no authority. In addition, employees of SALGA are not public servants. He would prefer the term "in consultation with". He felt it would be problematic if the Minister were empowered, in the absence of agreement, to appoint a person from a provincial department.

Mr Brocker noted that if the Minister asked for three nominations from each Province, he would have twenty-seven names altogether. If the term, "in consultation with" were to be accepted, would all nine Premiers have to agree on all the names that were to be appointed? Would such a provision work in practice, and how long would it take to get nine provincial governments to agree on who would represent them? He submitted that the results of such a provision would become unworkable. He further suggested that the burden of making the ultimate decision, should rest with the Minister, after having properly consulted.

Mr Kabagambe submitted that, the three nominations having come from the Premier, it was conceivable that he would be agreeable to any of those three being elected.

Clause 6 (Powers and Functions of the Committee)
Under sub-clause (1)(a), Mr Surty felt that the term "organ of state", because of its definition in the Constitution, was very wide. He suggested in the interests of the Department, that the provision should say, "The Committee must, within its available resources, advise the Minister …". The present wording of the provision placed an enormous burden on the Department, since any institution or person performing a quasi-state function might oblige the Department to provide very technical information, which it might at that stage not be able to afford.

Mr Brocker informed the Committee that the Department was in agreement with Mr Surty's suggestion.

Clause 7
Ms A Versfeld (DA) asked why Clause 7(b) prevented a member from serving on the Committee for more than two consecutive terms.

Mr Kabagamba explained that in this particular sector, skills and resources had not been impartially distributed in the past. It had also been found that, unless it was made very clear that an entity understood that a particular person would not always be the one representing that entity, very little work is effectively carried out. Furthermore, the Department did not want to have institutions, no matter how technical, where there was not more than one person who was able to represent that entity. However, there may also be reasons why the Minister would want to retain the services of a particular person beyond two consecutive terms.

Clause 8 (Disqualification as member of Committee)
Mr Surty referred the Committee to sub-clause 2(b), which states that a member who had missed two consecutive Committee meetings must vacate his or her office. He felt that the number should be extended to three meetings which the member had consecutively missed.

Clause 9 (Meetings of Committee)
Sub-clause 2 states that the Committee must hold at least four meetings per year. Mr Surty felt that this provision was somewhat ambitious. He suggested that the Committee should meet at least twice in a year. In that case, the Committee would still have the option of having additional meetings.

Mr Brocker informed the Committee that the provision stated that a person would be dismissed if he stayed away from two consecutive meetings without leave. It was quite conceivable that a person would have a legitimate reason for not being able to attend a meeting. However, in that case, he would be expected to give notice of continued absence. In addition, Clause 5 makes provision for the appointment of alternate members. The circumstances feared by the Chief Whip would be unlikely to occur, save in the case of neglect, which the Department was attempting to discourage, by the provision.

Mr Kabagambe that this Committee had various sub-committees, where much of the work gets done. The work must be ratified by the Committee, and it would be undesirable for sub-committees to fall into a state of non-movement, particularly with the amount of technical and transformation work that must be done.

Clause 10
Ms Majodina generally assumed that members of a broader Committee are chosen to form sub-committee's. However, sub-clause (a) provides for the appointment of persons onto sub-committees who are not members of the broader Committee. The provision in its present status was open to various interpretations.

Mr Brocker explained this was another way of saying that the Committee may co-opt members onto a sub-committee, and not onto a main committee. It is intended to spread the workload, and to acquire specific expertise, where the sub-committee is set up on an ad hoc basis to perform a specific task or project. He added that one of the risks of being too prescriptive in legislation, is that something may be excluded which is not intended in that legislation, and which does not become relevant until some time in the future, when it is needed. However, he did take note of Ms Majodina's point.

Clause 15
Mr Windvoel wanted more clarification on sub-clause (1), on the appointment of data vendors. The definition given to data custodians would mean that persons outside Government would have powers to appoint data vendors, meaning that Government would have no regulatory powers over them.

Mr Kabagambe explained that data custodians were not necessarily people outside of Government. The Department envisages the majority of data custodians to be public entities. Subject to the provisions of the Promotion of Access to Information Act, a data custodian may appoint a vendor, so that in the agreement reached by them, restrictions regarding limitations on information would also be incorporated. If a data custodian is an independent contractor performing a public function, he falls within the ambit of the Promotion of Access to Information Act.

The drafters were asked to provide the Committee with the suggested amendments after which the legislation would hopefully be finalised.

At this stage, the Committee again took up the Restitution of Land Rights Amendment Bill, for finalisation.

Restitution Of Land Rights Amendments Bill
The amendments document was circulated to all the Committee members.

Mr Seneke presented the amendments that had been suggested, to the Committee. He informed the Committee that, because of confusion surrounding the reading of sub-clause (b), the entire paragraph starting with, "and (3)", had been deleted. The reference to Sub-section 3 of Section 2 of the Expropriation Act was deemed to be unnecessary in the light of the fact that the main Bill refers to the Expropriation Act in its entirety. Furthermore, all the amendments suggested by the Committee had been made.

Mr van Niekerk informed the Committee that the NNP had practical problems with people appointed as "caretakers" of land to be handed over to claimants. They were also concerned that land claimants be empowered to effectively maintain the land. He asked that these two issues be considered in the guidelines referred to.

Mr Windvoel was satisfied that the Department had sufficiently carried out what they had been requested to do.

The Chairperson offered a motion of desirability to amend the Restitution of Land Rights Act of 1994.

The members were in agreement with all the amendments to the various clauses.

The Select Committee on Land and Environmental Affairs reported that it had agreed to the Restitution of Land Rights Amendments Bill, with proposed amendments.

At this point, Ms A Versfeld informed the Committee that the DA opposed the Bill in its entirety. Their motivations for such opposition would be given in Council Chambers.

This statement caused great dissatisfaction within the ranks of the Committee.

Mr van Niekerk remarked that when this Bill had been debated in the House, the DA had taken a position against it, as was their right. Subsequent to that, a debate was started in the media, ignoring the present Committee. Similarly, today the Committee was again being ignored, with the DA offering no participation in the deliberations. They had made no suggestions for amendments as improvements to the Bill, with the statement that the President would be approached in regard to the DA's standpoint on the Bill. For any party to ignore this particular house of Parliament, this being the Committee's second opportunity to amend Bills, and to say that it would approach the President on the matter, was unacceptable.

Mr Surty endorsed Mr van Niekerk's statements. The Committee had a history of working as a collective, irrespective of the quarters from which proposals come. It was the practice of the Committee to look at the merits of any given proposal, and to attempt to persuade each other in terms of developing good legislation. This was necessary to achieve sound legislative scrutiny. He found it strange that a member would object to a piece of legislation without any rationale, without making any suggestions for improvements, and without informing the Committee of any reasons for such opposition. It might be that the objections were based on sound reasons, which could be considered by the Committee. He said that Ms Versfeld's actions were for reasons of "sheer opportunism and politicking", adding it showed that certain members serving on Committees do not do so in the interests of improving legislation. All Committee members were expected to assist in improving the quality of legislation, irrespective of their political party. By her actions, the member was effectively abandoning her responsibility as a legislator to improve the quality of legislation, to utilise the plenary as a platform to express a view which she could not express in the Committee. She was, in fact, not taking the Committee into its confidence, and Mr Surty took exception to her approach. He would raise the issue with the party leader. He asked Ms Versfeld to assist the Committee by clarifying the reasons for her party's opposition to the Bill. If such reasons were not forthcoming, he did not think it was even worth noting the objection, which had absolutely no substance.

Ms Versfeld stated that she disagreed with the core principle of the Bill.

The Chairperson confirmed that members from all parties were expected to participate in discussions on the improvement of legislation. Ms Versfeld had been silent up to the point of the adoption of the Bill, after all the deliberations had been concluded. He agreed that this action was not acceptable.

Mr Windvoel fully supported the sentiments expressed by the Chief Whip and the Chairperson. He said that the action by Ms Versfeld registered the DA's opposition to the restitution of land rights.

The Chairperson concluded the matter by saying that the issue would be debated in the Chamber.

At this stage, Mr Surty excused himself from the meeting.

Agricultural Produce Agents Amendments Bill
Mr B Beukes: Legal Services Adviser, Department of Agriculture & Land Affairs presented the Department of Agriculture's submission. He said that the Agricultural Produce Agent Act was enacted in 1992, to regulate the professions of fresh produce and livestock agents. The underlying principle of this legislation was self-governance, since a profession which governs itself, is not dependent upon Government's support in funding. Most of the amendments to the Act were to enhance deficiencies which had come to light during the last ten years. The Act was also in need of amendments to bring it in line with the Constitution, with requirements relating to due process, and with the protection of the rights of the individual. The amendments would help the Agricultural Produce Agents Councils to effectively police the occupation of agricultural agents in a light-handed manner, but with the necessary authority to ensure that agents comply with statutory requirements. This would ensure that small farmers would be protected from unscrupulous business practices, and that it was done in a fair and objective manner.

At this point, Mr Beukes referred the Committee to a document which contained the various amendments which had been suggested by the Portfolio Committee. Please refer to attached document.

Mr Beukes informed the Committee that the consultation process had involved participation by the Agricultural Produce Agent Councils; the Institute of Marketing Agents in South Africa; the Institute of Market Masters in South Africa; the South African Federation of Livestock Auctioneers, and the National Agricultural Marketing Council. Furthermore, the Bill had also been published in the Government Gazette for general comments.

At this point, the Chairperson noted that a particular body wanted to address the Committee on the Bill. He was not sure whether this body had participated in the consultation process.

Mr David Gess informed the Committee that he was acting on behalf of company of Gaby Gess Attorneys, who in turn acted on behalf of various exporters of fresh produce from South Africa, and various empowerment initiatives, including Thembani in the Eastern Cape. They had hoped to make a submission on the manner in which the Bill applied to export agencies. He informed the Committee that he himself was not the person initially intended to make the presentation, but that he had been asked to appeal for a later time slot on behalf of Gaby Gess Attorneys, possibly after 14h00, or on the following day. This would afford the appropriate person to make his submission to the Committee. If such a postponement was not possible, then Mr Gess would be able to briefly address the Committee on the issues. He informed the Chairperson that Gaby Gess Attorneys had not been involved in the National Assembly phase of the Bill.

Mr Windvoel informed Mr Gess that although the Committee was a very open one, welcoming inputs from relevant stakeholders, certain processes and procedures must, however, be followed. In the case of Section 75 bills, public hearings are generally conducted in the National Assembly. However, if Gaby Gess Attorneys had not been able to make use of that opportunity, he would not "want to close the window" to allowing them to be heard.

Mr van Niekerk felt that, in the light of the previous discussion on the autonomy of the Committee, they should not be entirely led by what had transpired in the National Assembly. If the programme allowed, the Committee should consider allowing an input that could help the members to apply their minds, even on a Section 75 matter.

Ms Versfeld asked if the Department had been in contact with Agri-South Africa, on the Bill.

Mr B Morokolo, Senior Manager: Marketing, Department of Agriculture & Land Affairs thought it would be unfortunate for Gaby Gess Attorneys if they were to come into the process at this stage. The Department had wanted to be accommodating in the consultation process in terms of taking inputs from all role-players, to the extent that they had allowed an extension after the closing date, for further inputs to be submitted. Newspaper insertions invited those people who felt they had not been accommodated in the process, to come forward.

The Chairperson decided that Gaby Gess Attorneys would be accommodated to address the Committee, but that they should do so immediately, since it was the Committee's intention to finalise the Bill.

Gaby Gess Attorneys Submission
Mr Gess expressed his appreciation to the Committee for the opportunity to brief the Committee, even though he had not been the person intended to make the submission. However, he might be able to outline the nature of the issue which the company wished to raise. The issue was not in relation to whether fresh produce agents who use the local market, should be registered. It was also not to make any presentations with regard to them complying with the requirements of the Bill. The issue related to fresh produce agents exporting from South Africa who, in addition to registration, and compliance with the Code of Conduct, would also be obliged to submit to guarantees and security in terms of the Act.

He said that foreign buyers who exported from South Africa often completely avoid the provisions of the Act, whereas South African exporters, who were often new entrants into the market, were obliged to comply with the requirements of the Act. There was a perception that there was no regulation of foreign importers, who increasingly, to avoid the consequences of this Act and other legislation, were simply operating from overseas, and purchasing South African produce. They often did not pay for the produce, and were not subject to any code of conduct, regulation or any form of registration, before being permitted to export produce. The Bill provides for no control over these people. There was therefore not a level playing field between South African companies and foreigners who come here, and do exactly what the South Africans were doing, and who often take produce without paying for it.

Secondly, there was the matter relating to the giving of security and other obligations by export agents, which would place a financial burden on South African export agents. This was disadvantageous to South Africans, but particularly to new entrants on the market, because they might not have the reserves to put up these forms of security, and to meet all the requirements, whereas foreigners operating as they are, without any form of regulation, had an advantage.

In conclusion, Mr Gess submitted that these were important aspects, which should be considered. He suggested the possibility that, should the aspect of the obligations of the South African export agents be clarified, he might be allowed to make a brief response.

Discussion
Mr Morokolo said that it might be difficult to monitor foreign importers, because a product that moved from South Africa to the rest of the world, was regarded as an export. The code of conduct or arrangements for those transactions would be dealt with, within the context of the export agents.

Mr van Niekerk felt that this was an issue which could not be ignored, and that the "playing fields" should be levelled between the indigenous exporter, and the foreign exporter. The Department should perhaps be asked to return, and to explain to the Committee who regulated foreign exporters.

Mr Windvoel asked for more clarity on Mr Gess' statement that foreign exporters often did not pay for produce which they purchase locally.

Mr Gess explained that the statement was true, and that it was difficult for local producers to pursue the foreign exporter to the country of his origin, as they could not afford the costs of litigation to recover the purchase price of the products in those countries.

Mr Windvoel asked if Mr Gess could suggest specific amendments to counter the practices described.

Mr Gess said that he had been put into a difficult position by being asked by the Committee to present, whereas he was not the appropriate person to make the submission. For that reason, he had not acquired the relevant information to be able to make appropriate suggestions for amendments, as he was not clear on the provisions of the Bill, with regard to the obligations imposed upon the South African export agent. In respect to foreign exporters, he would request that provisions be added which would regulate and control their activities. In respect of some of limitations placed upon South African export agents, he would request exclusion or exemption from some of them.

Although Mr David Gess was allowed to make a further submission to the Committee, the general consensus was that he had submitted insufficient motivation for his amendment proposal, especially in light of the fact that his submission had been unprocedural. The Agricultural Produce Agents Amendments Bill was adopted without amendments.

Mr David Gess informed the Committee that he had been instructed by his law firm to proceed with the submission to the Committee.

He understood that the issue of the foreign exporter would be difficult to regulate. Although it was unfortunate that the Bill did not specifically provide for the foreigners who purchase and sell South African products without complying to regulations, he was encouraged that the Department would attempt to find the means by which to regulate such traders.

The issue relating to the giving of security and otherwise, was really a definition issue. He referred to Clause 1 of the draft Bill, on definitions (f) for "export agent", and (g) for "fresh produce agent". Mr Gess submitted that although the definition for (f) was clear, the definition for (g) did not make it clear that the "fresh produce agent" is the one who acts on the local market, at the time. The consequences of not drawing sufficient distinctions between the two, was that it could later be interpreted that the fresh produce agent includes the export agent.
It should be made clear that when the agent is acting as an export agent, he does not have to comply with the giving of security. The reason is that on the local market, the requirements which might exist for security and the keeping of trust accounts, are a much lesser issue than for export, where the security would, to be of any value, be substantially greater, so that there is sufficient security for a failure to comply. There are also the consequences of having to keep difficult trust accounts relating to dealing with foreign exchange transactions, and the paying of freight fees.

Mr Gess further recommended that the definition for "fresh produce agent" be amended to clarify that the definition did not include an "export agent" acting in the capacity of a fresh produce agent, so that it would say, "fresh produce agent means an agent acting as such other than as an export agent, with regard to any agricultural product …". The underlined words indicate the inserted amendment.

The remainder of Mr Gess' submission can be seen in Appendix 3.

Response from the Department of Agriculture
Mr Beukes responded that a foreigner who comes to South Africa to buy South African products, for export, must be registered as an export agent. Mr Beukes could not understand Mr Gess' reasoning for wanting to amend the definition for "fresh produce agent", because (g) (a) and (b) further clarifies the two terms, and what is required of the two types of agents, in terms of regulations. He referred the Committee to Section 17(1), which makes it clear that the export agent does not fall into the category of the fresh produce agent. He felt that Mr Gess had other reasons for wanting the amendment.

Mr Gess informed the Committee that because of the manner in which he had been instructed to address the Committee, he had been unable to prepare a written submission. He added that despite Mr Beukes' statement, his firm had no ulterior motive in asking for an amendment to the definition. He repeated his request for the amendment. The "fresh produce agent" is a large category, into which the export agent might wrongly be interpreted to fall, and the amendment contended for, would clarify the issue. The amendment was also in line with the intention which the Department contended for. He appealed to the Committee that, notwithstanding the fact that his submission was late in being presented, no damage could be done to the Bill by an amendment to clarify any aspect of it.


Discussion
Mr van Niekerk asked how foreign export agents who bought South African products without entering the country, were regulated.

Mr Beukes explained that a person buying South African products from overseas, is an importer to his/ her country. The person from whom he/ she imports, is an export agent, and must be registered. He meant by saying this, that somewhere along the line, there would be an export agent in South Africa.

Mr van Niekerk asked if that meant a person was not able to telephonically purchase South African goods from abroad.

Mr Beukes replied that the producer who directly exported to the importer, must in that case be registered as an exporter.

Mr Windvoel said that although Mr Gess had been requested to suggest specific amendments to the Committee, nothing specific had been suggested. He could not grasp the essence of what Mr Gess had attempted to bring to the Committee. He referred the Committee to the list of bodies that had been consulted in the drafting of the Bill, saying that they were all credible bodies. The Bill states that all the institutions "welcomed the proposed amendments".

He proposed the adoption of the Bill, without Mr Gess' proposed amendment.

Ms A Versfeld (DA) asked, if the words proposed by Mr Gess did not change the essence of the provision, why it would be problematic to insert them, bearing in mind that there were many new emerging farmers. She was of the opinion that Gaby Gess Attorneys would not have addressed the Committee on such an urgent basis, if they had not been aware of bad experiences relating to the definitions, in practice.

Mr B Morokolo (Senior Marketing Manager: Department of Agriculture), said that the amendments were intended to make the fresh produce market much more accessible to the small entrepreneurs than before. In terms of the late submission, the Department saw no motivation for accepting the proposed amendment.

Mr Beukes stated that Mr Gess' agreed with Mr Morokolo that the Department could see no reason for the insertion of the proposed amendment. Furthermore, he said that Mr Gess had been unwilling to divulge the names of the clients on whose behalf he was appearing.

Ms Versfeld felt it was inappropriate to criticise Mr Gess' submission in his absence, to which the Chairperson responded that she had raised the matter herself. Notwithstanding that, the Committee was required to make a decision in the matter.

Mr Windvoel took issue with the fact that the Committee had been requested to grant Gaby Gess Attorneys time, in order to grant a more appropriate individual to address the Committee. Upon indulgence of their request, however, the Committee was again addressed by Mr Gess. It appeared their request had been made on an uncertain basis.

Mr van Niekerk proposed that there was insufficient motivation to accept the proposed amendments. This would mean that it could still be brought for submission at a later stage, and that it might be more strongly motivated, since Acts were not "cast in stone".

Mr Sulliman believed there had been no motivation for the proposed amendment, and saw no sense even in taking it into consideration.

The Chairperson remarked that procedurally, it was incumbent upon presenters to submit written submissions to the Committee. Mr Gess' presentation had been unprocedural, and could only be viewed as a discussion. He concurred that the Committee should move on with their procedures.

He offered a motion of desirability, that in the opinion of the Committee, legislation was desirable to amend the Agricultural Produce Agents Act of 1992.

All agreed to the adoption of the Agricultural Produce Agents Amendments Bill, without amendments.

SPATIAL DATA INFRASTRUCTURE BILL
The Committee received copies of the amendments which had been proposed. Mr Kabagambe informed the Committee that based on comments made by the Committee in response to the presentation on the Bill, the Department of Land Affairs had proposed various amendments in those areas. Please refer to Appendix 2.

The Committee members were all in agreement with all the clauses, as amended.

The Chairperson passed a motion of desirability, that in the opinion of the Committee, legislation was desirable to establish the Spatial Data Infrastructure Bill.

All agreed to the adoption of the Spatial Data Infrastructure Bill, with amendments.

The meeting was adjourned.

Appendix 1
AMENDMENTS AGREED TO BY SELECT COMMITTEE ON RESTITUTION OF LAND RIGHTS AMENDMENT BILL
[B42-2003]
CLAUSE 5

On page 3, in line 16, omit subsection (1) and substitute the following subsection:

"(1) The Minister may purchase, acquire in any other manner or, consistent with the provisions of section 3 of the Promotion of Administrative Justice Act, 2000 (Act No.3 of 2000) expropriate land, a portion of land or a right in land -

(a) in respect of which a claim in terms of this Act has been lodged, for the purpose of -

(i) restoring or awarding such land, portion of land or right n land to a claimant who is entitled to restitution of a right in land in terms of section 2; or

(ii) providing alternative relief as contemplated in section 6(2)(b); and

(b) in respect of which no such claim has been lodged but the acquisition of which is directly related to or affected by such claim, and which will promote the achievement of the purpose contemplated in paragraph (a).

[B42B - 2003]

42E. "[(1) The Minister may purchase, acquire in any

other manner or expropriate land, a portion of land or

a right in land for the purpose of -

(a) restoring or awarding such land, portion of land or right in land to a claimant in terms of section 2; or

(b) providing alternative relief as contemplated in section 6(2)(b).]

(1) The Minister may purchase, acquire in any other manner or, consistent with the provisions of section 3 of the Promotion of Administrative Justice Act, 2000 (Act No.3 of 2000) expropriate land, a portion of land or a right in land -

(a) in respect of which a claim in terms of this Act has been lodged, for the purpose of -

(i) restoring or awarding such land, portion of land or right in land to a claimant who is entitled to restitution of a right in land in terms of section 2; or

(ii) providing alternative relief as contemplated in section 6(2)(b); and

(b) in respect of which no such claim has been lodged but the acquisition of which is directly related to or affected by such claim, and which will promote the achievement of the purpose contemplated in paragraph (a)

(2) The Expropriation Act, 1975 (Act. No.63 of 1975), shall, with the necessary changes, apply to an expropriation under this Act, and any reference to the Minister of Public Works in that Act must be

construed as reference to the Minister for the purpose of such expropriation.

(3) Where the Minister expropriates land, a portion of land or a right in land under this Act, the amount of compensation and the time and manner of payment shall be determined either by agreement or by the Court in accordance with section 25(3) of the Constitution.

(4) The Rules of the Court made under section 32 shall govern the procedure of the Court in the determination of compensation in terms of subsection (3).

6. This Act is called the Restitution of Land Rights Amendment Act,

2003.

To amend the Restitution of Land Rights Act, 1994, 50 as to empower the Minister of Land Affairs to purchase, acquire in any other manner or expropriate land, a portion of land or a right in land for the purpose of the restoration or award of such land, portion of land or right in land to a claimant or for any other related land reform purpose; and to provide for matters connected therewith

Appendix 2
SELECT COMMITTEE

1. On page 3, in line 9, after person", insert engaged".

1. On page 3, in line 51, omit "[facilitating]", and substitute "to facilitate".

1. On page 4, in line 16, omit "[and]".

2. On page 4, in line 18, omit"[.]" and substitute "and"

3. On page 4, after line 18, insert the following new paragraph:

"(e) in concurrence with the Minister of Finance, determine and Day remuneration and allowances to members of the Committee or subcommittee who are not in the full time employ of the State."

CLAUSE 5

1.On page 4, in line 51, omit subclause (3) and substitute:

"(3) The Minister must, after calling for nominations from the public in the prescribed manner. and

(a) in respect of paragraphs (b) and (c) of subsection (2). after consultation with the Minister responsible for those departments;

(b) in respect of paragraph (d) of subsection (2) after consultations with the Premiers of the respective Provinces; and

(c) in respect of paragraph (e) of subsection (2). after consultation with the President of the South African Local Government Association

appoint the members of the Committee and an alternate member for each such member."

1. On page Sin line 8, after "Committee" insert", within available resources.

1. On page 6, omit paragraph (f) and substitute

"(f) co-opt experts or persons with special skills who are not members of the Committee as non-voting members of a subcommittee; and

1. May we please begin by thanking the Chairperson for allowing our Counsel (Adv. Gess) an opportunity to address on the matter.
2. We are instructed by numerous clients (fruit producers and exporters) regarding the proposed amendments to the above Act.
3. The proposed amendment came as a bit of a surprise to us. Whilst we had been actively involved representing clients and attending meetings from as early as May 2001 (in Paarl and at the NAMC in Pretoria) regarding the above Act and proposed amendments to it, we subsequently heard nothing further for a considerable time. You will note that the first publication was 27 June 2003 and this was only brought to our attention some time after this.
4. On being so advised, we instructed Counsel to determine the appropriate forum to make a submission (since it was after the closing date for submissions) and to consider the proposed legislation for the purpose of the preparation of such a submission. After various calls and the leaving of messages at Parliament we were most fortunate that the secretary to the Portfolio Committee for Agriculture advised us during the course of the morning (today) that your Committee was sitting and considering the matter.
5. Counsel being the closest to your offices was instructed to as a matter of urgency attend to request the matter stand over to enable our clients to make a written presentation. Counsel in the circumstances obviously did not come with the view to making any submission but we trust he was able to be of assistance to the Committee.
6. We understand that you asked Counsel (Adv. Gess) whether it was possible for him to set out the points raised at his impromptu presentation.
7. As you and Committee members are probably aware the South African fruit industry is deregulated and farmers are entitled to produce, pack and market their own fruit. Some farmers (often referred to as the "producer exporters") elect to pack and export their own produce directly abroad to a foreign customers/agents and others elect to use South African registered company/ies or service provider/s. Many elect a bit of both. Some farmers are members of a Co-operative where they collectively pack and market collectively or individually. Some parts of the transactions are performed in South Africa but a very significant part of the business is on foreign soils out of the jurisdiction of South Africa.
8. In the current global economy it is also customary for South African agents to directly handle fruit for foreign farmers wishing to sell their product in South Africa as it is for foreign agents to deal directly with South African farmers who wish to sell their fruit abroad.
9. The points raised by Counsel at the impromptu presentation before the Committee, are briefly summarised below:

1. It was submitted that the proposed amendments made provision for certain onerous measures to apply only to South African based agents who exported fresh produce on behalf of others to foreign countries. The nature of the business was such that South African agents had foreign competitors abroad who would not be subject to the same measures. This submission was made in the light of the background and objects, as contained in the Memorandum to the Bill, to the affect that:

"… farmers are often the target of unscrupulous business practices and especially the weakest who were not in a position to protect themselves".

If the express purpose of the Legislation is to give farmers some form of protection the current target on South African agents only would not achieve this. The nature of the business is such that there were many foreign customers and agents abroad who procured fruit directly from producers. The failure to address this issue not only failed to achieve the expressed purpose of the Bill, but would be likely to directly prejudice South African exporters. It may be that it is not possible to pass legislation in South Africa to govern legal entities and people abroad on foreign soil and it is not our desire to request you to do so.

2. The concern was also raised that "export agents" might be required, when acting as an export agent, to comply with provisions of the Bill regarding the provision of security; the keeping trust accounts and so forth. It was pointed out that, if this was the case, it would be prejudicial to South African export agents, particularly as foreign procurement competitors who source fruit from South Africa would not be subject to any such provisions. Furthermore, it was submitted that the question of furnishing considerable amounts of security, if was applicable, would be likely to be a bar or hindrance to new entrants, including the previously disadvantaged, from becoming role players in the industry.
3. The representatives of the Department of Agriculture, in their presentation to the Committee, had submitted that it was not the intention of the Bill that an agent, who was acting in the capacity of an "export agent", as defined, be required to meet any of the obligations of the category of agents defined as "fresh produce agent", insofar as export agent business was concerned. It was argued by the Department that Section 15 of the Bill (being the amendments proposed for Section 16(2)(b)) stated that, in the case of an "export agent", the obligation which an "export agent" would be required to meet would be to be the holder of a "registration certificate".
4. During the lunch adjournment an opportunity was afforded to discuss the matter with representatives of the Department of Agriculture.
5. At the re-commencement, it was submitted on behalf of our clients that, if the intention of the Bill was as contended for by the Department of Agriculture, namely that the broad category of "fresh produce agent", as defined, did not include an agent acting as an "export agent" then this should be clarified in the definition section to achieve certainty on the issue.
6. It was proposed, and motivated, that the definition of "fresh produce agent" should be amended to make it clear that such category of agent did not include an "export agent" acting as such. It was accordingly suggested that an amendment be effected by the inclusion of the following underlined words:

"Fresh produce agent means an agent acting as such other than as an export agent, with regard to any agricultural product …".

7. It was submitted that this amendment would not otherwise affect the Act, but would clarify the intention of the Legislature and would, it would appear, be in accordance with the interpretation placed on the Bill by the Department of Agriculture, as expressed to the Committee.
8. We understand Counsel was requested to allow the Committee to deliberate on these issues in private.

1. To conclude it should be noted that it is also our clients further contention in addition to the above, that farmers should also be allowed to have the freedom to contract. Here they argue that should all the farmers of a particular export agent request (in writing) that such export agent be exempted from being registered in terms of the Act, that that export agent should automatically be exempted from registering and the parties can thereafter contract freely.
2. Should you require any further information or should there be an opportunity for a further presentation please do not hesitate to contact us.