After years of debate in parliament, Ramaphosa sends copyright bill to concourt:
Years after he sent the Copyright Amendment Bill, and by extension the Performers’ Protection Amendment Bill, back to parliament, President Cyril Ramaphosa has referred the legislation to the constitutional court for certification.
The presidency said on Wednesday that although Ramaphosa had previously referred the bills back to parliament for reconsideration, his concerns regarding potentially unconstitutional provisions were “not fully accommodated by parliament”.
“The president has indicated to the constitutional court his reservations about the provisions in the legislation originally drafted and reconsidered by parliament and has as a result requested the apex court for a decision,” said his spokesperson, Vincent Magwenya.
“President Ramaphosa has undertaken this referral in the form of a letter to the registrar of the constitutional court and in terms of sections 79(4)(b) and 84(2)(c) of the Constitution.”
Ramaphosa’s reservations involve “quite a lengthy list of issues”, Magwenya said.
These include that the restrictions on copyright imposed by section 6(a), 7(a) and 8(a) of the Bill might constitute retrospective and arbitrary deprivations of property in violation of section 25(1) of the Constitution.
These sections confer discretionary powers on the minister and this “may well constitute an impermissible delegation of legislative authority”, Magwenya said.
As such, it risked being unconstitutional.
The reservations also extend to sections 12a to 12d, 19b and 19c, where the Bill sets out copyright exceptions.
These may be ripe for constitutional challenge, including insofar as non-alignment with South Africa’s international copyright obligations.
The Performers’ Protection Amendment Bill reprises the sections in question, hence Ramaphosa referred both pieces of legislation to the apex court.
The to and fro between the president and the legislature has continued for close on four years. He initially sent it back to parliament in 2020.
Legal experts and art commentators have been scathing in their criticism of the copyright Bill.
They warned that the exemption introduced by way of the concept of fair use erodes the rights of copyright holders and risks putting South Africa in breach of international treaties.
The Berne Convention on the Protection of Literary and Artistic Works, to South Africa which became a signatory in 1928, does not expressly recognise the principle of fair use.
Its incorporation into US legislation has sparked much debate as to whether the domestic law is compatible with international treaty obligations.
The amendment Bill leans towards the US model, whereas the Copyright Act of 1978 was based on UK legislation which instead recognises the concept of fair dealing.
Fair use as defined in section 12 of the Bill means that permission is not required for, and copyright will not be considered infringed by, the use of a work for research, private study or personal use, for educational purpose, or for news reporting, satire or parody.
Section 12a(6) also allows fair use for “preservation of and access to the collections of libraries, archives and museums”.
With permission not required, there is no remuneration for the use of the copyright work.
Rights group SECTION27 last week launched an urgent application to the constitutional court arguing that Ramaphosa had failed in his duty to sign the amendment bill.
Magwenya described the step as “a little bit bizarre” given that there are no deadlines in law for the president to assent to legislation.
“To assume that the president must have concluded this against a particular bill is inappropriate in my view because what is that based on and what informs that assumption? There is nothing that informs their assumption.”
The group approached the apex court a few years ago to have sections of the Copyright Act declared unconstitutional in that it required people with visual impairments to obtain the consent of the copyright holder to have the work transcribed into braille.
However, the deadline the court gave to parliament to remedy the defect by September this year, does not apply to the president.
Pule Mabe says he will plead not guilty in R27m tender fraud case:
Former ANC spokesperson and current national executive committee (NEC) member Pule Mabe has said he will plead not guilty to charges of more than R27 million in tender fraud.
Mabe and six co-accused face a combined 16 counts of fraud, money laundering and the contravention of the Public Finance Management Act for the March 2017 contract to supply the Gauteng agriculture and rural development department with 200 waste-management, three-wheel vehicles to boost small and medium business participation in the sector.
The vehicles were known as kariki carts, as first reported by the Mail & Guardian when it broke the story in June 2018.
On Wednesday, in the Johannesburg specialised commercial crimes court, sitting in Palm Ridge, Mabe conceded that the counts against him could kick in the ANC’s step-aside resolution, which stipulates that a party member should relinquish any state, government or organisational position once criminal charges are formalised.
Mabe also pleaded poverty, telling the court he earned a monthly income of R25 000 from a small business of which he is a director.
Former sports minister Zizi Kodwa and former speaker of the National Assembly Nosiviwe Mapisa-Nqakula resigned from their respective positions earlier this year after being criminally charged with fraud and corruption.
But Mabe slammed the charges against him, calling them “meritless and without substance”, adding that, should the matter make it to trial, he would plead not guilty.
“I will not be found guilty of any charges preferred against me. I did nothing wrong and cannot conceive of any evidence that can be brought against me,” he asserted.
The contentious March 2017 tender was awarded to KGP Media Holdings, which traded as Enviro Mobi at the time of the contract and had as its director Mabe’s wife, Mmatlhekelo Mabe, who is also charged.
The other accused are Loyiso Mkwana, the department’s chief director, Thandeka Mbassa, who was the departmental head from March 2016 to August 2018, Matilda Gasela, who succeeded Mbassa before going on pension this year, and Abdullah Ismail, the department’s chief financial officer from October 2014 to March 2020.
Tinyiko Mahuntsi, the sixth accused, is a director of KGP Media and took over after Pule Mabe resigned in August 2014.
The main contention of the National Prosecuting Authority’s (NPA) case, as detailed in its charge sheet, is the roughly R27.5 million prepayments the provincial department made to Enviro Mobi — payments that the accused did not dispute — for what the state claimed was a breach of contract and money for work not done.
According to the charge sheet, the contract stated that Enviro Mobi would be paid “after the completion, review, and approval of each deliverable received from [the] service provider”.
“The invoice must detail activities performed,” it reads.
It added that, in March 2017, Enviro Mobi submitted its first invoice a day after the tender was awarded for “fleet acquisition” for more than R16.4 million, invoicing two more times in September and November of the same year for a combined nearly R11 million.
The NPA claims the invoices were “not accompanied by any supporting documentation detailing the completion, review, [or] approval of each deliverable or any delivery notes”.
Further, the alleged fraudulent company, when submitting its bid for the tender, did not disclose its affiliation with any high-ranking political figure — that being Mabe, who was an MP at the time.
He hit back at the NPA, saying that the vehicles were delivered, adding that former premier David Makhura launched the project at a public event in Thembisa in Ekurhuleni with the three-wheel machines present.
This was echoed by his wife, who said she was only charged by virtue of her marriage.
“I am absolutely convinced that should I be required to stand trial, I will be found not guilty,” she said.
The other accused also stressed their innocence and said that they, too, would plead not guilty.
All accused were released on R30 000 bail each and are expected back in court in March next year.
GNU must go on despite theatrics and threats:
Many moons ago, the SABC broadcast a popular sitcom called Kwakhala Nyonini, about a man named Madlanduna who was navigating the challenges of a polygamous marriage.
An evident caveat which presented itself was managing different personalities and some wives who thought they were superior to others, despite the different contributions they made towards making the marriage work and building the homestead.
One wife who had such a complex was Beauty. What further inflated her ego was that she had a marriage certificate, unlike the others. She always threatened to leave, believing no other wife had as much to offer as she did.
As the country assesses the performance of the government of national unity (GNU) over the past 100 days, no illustration is more befiting than the above.
But before we deliberate on the caveats of personalities, theatrics and superiority complexes, let us first speak of the most important achievement of the unity government.
Liberation movements across the continent have always been viewed as intolerant of democratic processes and the rule of law, once in power.
In fact, as the May 29 election results trickled in, there was already an appetite from some pockets of the international media for some tension, violence and instability in the Republic. The ANC, despite its shortcomings, has undoubtedly deflated this perverse characterisation.
When it had majority power, the first elected democratic president, Nelson Mandela bowed out after his first term. Even with all its succession battles and internal factions, this has had no bearing on the security of the state to a point of violence. Every democratically elected president, whatever the sentiments, conceded to the rule of law, eventually.
The maturity and spirit of inclusivity demonstrated during the GNU transition affirms that whatever differences political parties might have, there is overall consensus about stability and constitutional supremacy. This includes parties who did not form part of the unity government. Bravo.
Second, the cabinet, while bloated, has accommodated most members of the GNU, including provincial governments. Far and wide representation has been achieved not just there but also in the most important institution of accountability for the state, parliament.
This affirms the respect of the electorate outcome, that no party will be in majority rule. But it is a little too early to sing Kumbaya around the fire given the precariously delicate nature of the dispensation.
The Democratic Alliance (DA) waved the “marriage certificate” to the ANC even before the ink dried, threatening a walk-out. This despite the fact that the GNU has a whopping 11 parties with different dynamics, constituencies and policy positions.
Whilst this may be the case, President Cyril Ramaphosa reiterated that there is an overall expectation for all political parties to work together to deliver on a mandate of transformation, growth and renewal.
It seems the DA has chosen to be the Beauty of the marriage, taking a superior approach that seeks to undermine the realisation of the GNU’s minimum programme of priorities.
The DA continues to not only undermine the unity government but also the will of the people and its own constituency, which expects full representation and participation in government.
But the DA has also chosen a posture of selective convenience and acceptance of the GNU when it suits the party.
The DA has always been the vocal champion against a bloated cabinet, calling for the scrapping of deputy ministers. It has also been vocal previously about VIP protection and blue lights.
Post-elections, the political Tarzan on both matters has chosen silence – affirming willingness to concede and compromise, where government perks are the order of the day.
Ironically, one thing that kept Beauty in the polygamous marriage was the perks of dating the rich Madlanduna. South Africans have not spotted John Steenhuisen in a Toyota Hilux or Fortuner when executing his ministerial duties as the minister of agriculture.
The crux of the matter is that the GNU cannot be held hostage by one party with its own ambitions.
South Africans have demonstrated on the ballot box that their patience with politicians is wearing precariously thin. Therefore, the GNU does not have the luxury of time, theatrics and tantrums.
If the DA truly believes that this marriage is not for them, it should not use “divorce” threats as a grand albatross to strangle the functioning of the unity government.
Instead, it should leave graciously and allow the GNU to find its way in the maze and, more importantly, function.
Madlanduna unceremoniously married a younger wife, much to her detriment. The beautiful Beauty suddenly became replaceable. Should the DA honestly continue with the attitude of superiority and intolerance, the government of national unity will be compelled to move on without it.
Gugu Ndima is a social commentator. Follow her on @Mandima_writer
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