As South Africa “teeters on the brink” of one “abyss” after another (to reluctantly borrow a phrase used most recently by former DA leader Tony Leon in a TimesLIVE opinion piece), we may need to be reminded about the importance of public participation in the law-making process.
Many bills passed by Parliament and signed into law gather dust for years before being operationalised — but nobody ever explains why or even asks. Some acts are declared unconstitutional, requiring amendments that often take far longer to remedy than the Constitutional Court’s standard two-year timeframe.
Occasionally, the president pre-empts this tortuous exercise by expressing concerns about certain sections of a bill and returning it to the National Assembly to be rectified. Which is what happened to the long-beleaguered Copyright and Performers’ Protection Amendment Bills, as some readers know only too well.
Now being processed by the National Council of Provinces (Ncop), these bills are in the early stages of a series of public hearings at which stakeholders and ordinary South Africans will voice support for (or concerns about) their contents.
This second round of public participation began — somewhat unceremoniously — in Oudtshoorn on 31 January 2023, hosted by the Western Cape legislature’s Standing Committee on Finance, Economic Opportunities and Tourism.
Arranged as part of a broader programme of oversight visits to that part of the province, the hearing was announced well in advance on various social media platforms — followed by photographs of the event, appropriately captioned.
Unfortunately, however, it was neither live-streamed nor covered by local media. No arrangements were made for virtual access to the hearing — and no committee statement on its proceedings was published on the legislature’s website, although an audio recording was made.
Hopefully, this will be used to prepare a report for the site, but there’s still no evidence of one more than two weeks later. An accurate summary of the views expressed would be invaluable in developing an understanding of grassroots perspectives on the bills.
Nevertheless, hope springs eternal in this particular human breast. Four more hearings are planned, although one (a hybrid event) does fall on the same date as the NCOP committee’s first parliamentary hearing on the bills (albeit later in what promises to be an exhausting day for stakeholders and their scribes).
The first of four hearings in Gauteng is expected to take place on Thursday 16 February 2023 in Randfontein. Advertised just under a week ago, regrettably, the event won’t be live-streamed or virtually accessible, according to the organisers. The same will apply to three other hearings in Gauteng planned for March.
It remains to be seen if reports on their proceedings are published timeously on the legislature’s website, but this scribe isn’t holding her breath. Sadly, the Parliamentary Monitoring Group’s reach doesn’t extend beyond reporting on meetings held in Cape Town.
Of the seven remaining provincial legislatures, Mpumalanga is the only one to have announced dates for its hearings. One clashes with a day-long Ncop committee parliamentary hearing, another with a hearing in Darling, Western Cape — making it difficult, if not impossible, for under-resourced stakeholders to participate in both hearings on the same day in different parts of the country. And posing a daunting challenge to their scribes, needless to say.
But all is not completely lost! One Mpumalanga hearing on a clashing date is expected to be virtually accessible.
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According to section 118 of the Constitution, “a provincial legislature must facilitate public involvement in the legislative and other processes of the legislature and its committees; and conduct its business in an open manner, and hold its sittings, and those of its committees, in public.”
Most importantly, “a provincial legislature may not exclude the public, including the media, from a sitting of a committee unless it is reasonable and justifiable to do so in an open and democratic society.” Begging the question, “Is it reasonable in a democratic society to limit access to the physical in an era of virtual meetings, YouTube and video recordings?”.
This is especially given that, for some time, national Parliament has live-streamed public hearings conducted in other parts of the country by various National Assembly committees.
Hearings on the Railway Safety Bill are the most recent example of this, with YouTube recordings available of proceedings during events held as far afield as KwaZulu-Natal’s Ngwelezana and Limpopo’s Musina.
As for follow-up media statements, when the Children’s Amendment Bill was being processed by the National Assembly’s Social Development Committee, one was issued within 48 hours of each hearing.
So, is it unreasonable to expect the same level of service from our provincial legislatures? They have the budget, surely…
OK, virtual access to committee meetings held by a provincial legislature may well have been far beyond the wildest dreams of the Constitution’s drafting team all those years ago.
But it’s a reality now and has been ever since the Covid-19 pandemic. Most National Assembly and NCOP committee meetings are hybrid — with members, stakeholders and the media given the option of attending in person or participating virtually.
Presumably, the technology making this possible is available to the provincial legislatures, who must surely have used it during the pandemic. Apparently, the Mpumalanga and Western Cape legislatures still do. Which tends to suggest that committee support staff know how to operate virtual platforms and could do so to facilitate broader access to hearings held outside a legislature’s headquarters in community halls and similar facilities.
The Copyright and Performers’ Protection Amendment Bills have far-reaching implications for musicians, actors, dancers, artists, crafters, writers, photographers, cartoonists, the media, academia, educational institutions, schools, publishers, the producers of film and sound recordings, and the practitioners and holders of traditional and indigenous knowledge.
Yes! The bills also apply to traditional communities, affecting rights now governed by the Protection, Promotion, Development and Management of Indigenous Knowledge Act and its regulations-to-be. The plethora of creative and value-adding industries across and beyond South Africa’s vast arts and culture sector even includes the custodians of the country’s cave paintings and other world heritage treasures.
Several proposals in the Copyright Amendment Bill affect scientific research, access to data and an array of related issues in ways beyond the ability of most mere mortals to fully comprehend.
Well-organised hearings would go some way towards addressing this. Livelihoods lie at the root of stark differences in opinion on the policy change underpinning both bills, which are perceived in some quarters to guarantee a better deal for musicians and other performers.
Another selling card is that the Copyright Amendment Bill will improve access to learning and teaching material, But not everyone is convinced. Many believe the reforms being proposed will destroy entire industries, scaring away foreign investment. They tend to be organisations with the skills and capital to invest in making the work of our creatives commercially viable.
So, surely it makes sense that every effort needs to be made by the organisers of provincial hearings on the bills to ensure they’re accessible, their proceedings transparent, and the views articulated easily understood by ordinary South Africans — including parliamentary and provincial committee members?
The expectations of musicians and performers in particular have been raised deliberately, possibly to unrealistic levels.
Each hearing presents an opportunity to decipher and unpack the complex concepts underpinning each bill and to question the validity of claims being made about its likely impact — positive or otherwise.
What better way is there for our provincial legislatures to facilitate this than by making full use of YouTube and the many virtual platforms at their fingertips? DM