Foodstuffs, Cosmetics & Disinfectants Amendment Bill (B35D-2005): Consideration of NCOP Amendments

HEALTH PORTFOLIO COMMITTEE
7 November 2006
FOODSTUFFS, COSMETICS AND DISINFECTANTS AMENDMENT BILL (B35D-2005): CONSIDERATION OF NCOP AMENDMENTS

Chairperson: Mr L V Ngculu (ANC)

Documents handed out:
Foodstuffs, Cosmetics and Disinfectants Amendment Bill [B35F-2005] passed by Mediation Committee on 15 January 2007
Foodstuffs, Cosmetics and Disinfectants Amendment Bill [B35E-2005] amendments agreed to by
Mediation Committee 15 January 2007
Foodstuffs, Cosmetics and Disinfectants Amendment Bill [B35D – 2005]
Tobacco Products Control Amendment Bill [B24-2006]
National Council Against Smoking: Sustaining Success
Seventh Day Adventist Church
How to fight the tobacco epidemic
Soul City
Paraffin Association of South Africa
Gallaher Group Plc submission on Tobacco Products Control Amendment Bill

SUMMARY
The Committee intended holding public hearings on the Tobacco Products Control Amendment Bill, but due to time constraints postponed the hearings to early 2007.

The NCOP had made three changes to the Foodstuffs, Cosmetics and Disinfectants Amendment Bill passed earlier by the National Assembly. The first two were technical amendments which the Committee supported. However, the Committee rejected the NCOP’s new expanded definition of “mollusk” preferring its own narrower definition. This means that this amendment will be subject to mediation between the two Houses of Parliament.

MINUTES
Tobacco Products Control Amendment Bill presentation
Adv Z Adhikari (State Law Advisor) mentioned that the Bill was a mixed bill containing elements of sections 75 and 76. The section 75 part first had to be passed before the section 76 matters could be considered. The bill therefore had to be split.

The Chair consulted the Members about a new date for public hearings. Members agreed unanimously that in order to adequately address the content and detail of the Bills, the public hearings should be reconvened on 17 January 2007.

Foodstuffs, Cosmetics and Disinfectants Amendment Bill presentation

Mr Sello Ramasala (Acting Chief Director: Legal Services, National Department of Health) informed the committee that the NCOP had made three amendments to the version passed by the National Assembly; two of which were corrections and the other was an expansion of the definition of “mollusc.

Clause 1(i) Definition of mollusc
Providing a background to the definition in the Bill, Mr Ramasala mentioned that the Committee had decided that ‘mollusc’ should be defined concisely as ‘any member of the phylum Mollusca’.

Mr Ramasala mentioned that the NCOP Select Committee decided that the definition should be expanded to provide a few examples for people to know what this meant. Mr Ramasala further clarified the position of the National Department of Health, saying that they were not convinced that this was the best way of expressing the definition, given that in law, when examples are provided, there is a presumption that you are excluding those that are not mentioned. The well-known rule of interpretation is that the express mention of certain things automatically excludes those that are not mentioned.

Mr Ramasala said despite the view and the advice of the Department, the NCOP decided that the definition was still not clear, and would prefer that there be some examples, at least to guide the ordinary person.

Citing the proposed expanded definition in question, Mr Ramasala stated that the view of the NCOP was that the expanded definition, which includes the addition of the words ‘and includes squids, clams, snails and chitons and is characterised by a visceral mass, a mantle and a foot’, would make it clearer to the ordinary person.

Ms M Matsemela (ANC) made it clear that she did not agree with the expanded definition, and reminded the committee that during its deliberations between February and March of this year, the committee had agreed on the current definition, and did not agree with an expanded definition, as the committee thought the definition on its own (without the expansion) was adequate. Ms Matsemela questioned why it was necessary to constantly redefine these things. She mentioned that mollusc was a part of invertebrates, where you would find members of the protozoans and metazoans in this group. However, in this case mollusc is being defined for the purposes of consumption. Citing the example of consumer behaviour in restaurants, Ms Matsemela mentioned that consumers eat food such as snails and prawns, which are all part of the mollusc group, making the point that these were not mentioned.

Responding to the concern raised by the NCOP that the ordinary person would not be able to understand the concise definition of mollusc (which excludes examples), Ms Matsemela mentioned that this was legislation targeted primarily at the Manufacturer and Environmental Health Practitioners (EHPs). Ms Matsemela said that as far as she was aware, legislation normally does not cite examples in definitions.

Ms C Dudley (ACDP) disagreed with Ms Matsemela, stating that it was her understanding that it was quite common practice to have the words ‘and includes’ in various pieces of legislation, and that the expanded definition was not entirely out of order. Ms Dudley mentioned that in law, it would clearly leave it open to the fact that there are many more types of mollusc, saying that the words are used quite correctly in the expanded definition, and that it would not prejudice the interpreter in any way. Ms Dudley made clear her position by reiterating the fact that she was not opposed to the clarity that was added by the expanded definition, but that legislation should be user friendly.

The Chair mentioned that it was said that the mollusc group is made up of 110 000 members, if not more, and asked why only four from this group are being mentioned in the expanded definition. The Chair said that it was important that the Committee exercise caution.

Another ANC Member concurred with Ms Matsemela and the sentiments of the Chair, asking what criteria were used to list only four out of the mollusc group of over 110 000 members. She mentioned as indicated by the State Law Advisors, if four were listed in the Bill, then it would be expected that all other members of the mollusc group are incorporated into the definition, so as to ensure they are not excluded. The Member further made the point that the expanded definition as adopted by the NCOP further confuses the ordinary person on the street, who is unlikely to even know what a ‘visceral mass’ is or what it refers to. The Member urged the committee not to confuse persons with an expanded definition, and proposed the definition remain as per the original definition, which was short and comprehensive.

Clause 5 Regulations relating to mollusc farming and fish farming
Not approving of the expanded definition, Mr Ramasala expressed an opinion that the Bill is targeted mostly at the manufacturer, and not the ordinary person. Mr Ramasala substantiated his view by asking the committee to refer to clause 5 (Section 15A) in the Bill, highlighting the fact that the Minister may make regulations relating to the supply of particular foodstuffs, regulations relating to cultivation of breeding, and the location of farms that relate to foods, which are mostly actions that the manufacturers and suppliers would be responsible for in terms of the concise definition which they should be able to understand.

Mr Jerry Boltina (Committee Secretary) indicated that in terms of procedure, two possible situations could arise out of this meeting. Firstly, if the Committee agrees with the revised, expanded definition made by the NCOP, then the Bill will be sent to the National Assembly (NA) for a decision, and the Bill can be passed without a debate. Secondly, if the NCOP definition is rejected, it means that the mediation route will have to be followed, whereby the NA and NCOP would have to establish a mediation committee. The mediation committee may agree with the definition of the NA Committee, or it may agree with the definition of the NCOP Committee, or the mediation committee may adopt an alternative definition.

The Chair requested that the Parliamentary Law Advisor be called. For the benefit of Adv A Gordon (Parliamentary Law Advisor), the Chair summarised the arguments.

Adv Gordon questioned why only four categories of mollusc were mentioned, and stated that from her perspective as a lawyer, it is not good legal drafting practice, unless this definition was limited to only four categories. Adv Gordon further stated that it would be preferable to have the definition as it was previously. She further asked what the intention of the legislature was, and how far the word ‘member’ (referring to members of the phylum Mollusca) should be interpreted.

Ms Dudley said that since the NCOP have their hearts set on these words (as used in the expanded definition) and in order to avoid a mediation process, how seriously disadvantaged the Minister would be in making regulations using the words of the expanded definition? Ms Dudley further expressed concern that should small, medium and micro enterprises (SMMEs) be involved in this work at any stage, they may be disadvantaged.

Adv Gordon acknowledged the point made by Ms Dudley stating that the expanded definition is intended to shed light on what is meant, however, she reiterated that it was poor drafting practice. Adv Gordon suggested the possibility of inserting a footnote in the legislation in order to make it clear that the definition is not inclusive. Taking the concerns of the Committee into account, Adv Gordon advised that they were dealing with a procedural matter, an amendment proposed by the NCOP which would now have to be formalized by the portfolio committee. If the committee accepts the amendment, Adv Gordon stated that she did not see anything wrong with this; however, she would have preferred the words ‘included but not limited to’, which would provide a far more accurate idea of what the category means, from the perspective of a lawyer.

Ms Dudley enquired about the possibility of inserting the words ‘not limited to’ as suggested by Adv Gordon.

Ms Matsemela reiterated her point regarding this Bill being targeted at industry, and suggested that the committee avoid the possibility of the Bill going to the Constitutional Court if the scope of this definition is not broadened.

As per the suggestion of Adv Gordon, the Chair proposed to the committee that a compromise be reached by adding the words ‘not limited to’ to the definition.

Another ANC Member suggested that the original concise definition agreed upon from the previous deliberation of the Committee regarding this matter should be adopted. She mentioned that where persons did not understand the meaning of the word mollusc, they should consult the dictionary.

Adv Adhikari concurred with the position of Adv Gordon stating that unless the words ‘but not limited to’ are inserted, it would be very exclusionary.

The Chair again appealed for a compromise that the words ‘but not limited to’ be inserted after the word ‘includes’.

Adv Gordon highlighted the fact that a mediation process would be aiding the concern raised by the Committee, and not doing an injustice to it, suggesting that the Committee should be making a decision on the basis of what the intentions of the Bill are, and which version of the Bill the Committee supported.

The Chair then proposed that the definition read ‘any member of the phylum Mollusca’, without any further words following it, to which the Committee unanimously agreed.

Clause 9 Amendment of long title of Act 54 of 1972
Mr Ramasala mentioned that the second amendment made by the NCOP simply inserts the word ‘hereby’ preceding the word ‘substituted’. The Committee unanimously agreed with this change.

Clause 10 Short title and commencement
Referring to the final amendment made by the NCOP, Mr Ramasala mentioned that the year 2005 was still referred to in the short title, and that this was corrected by the NCOP to refer to the current year 2006. The Committee unanimously agreed with this change.

The meeting was adjourned.