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General Laws Amendment Bill amended by House of Assembly - Bill Watch
17/2011
Veritas
April 19, 2011

The Senate has adjourned to Tuesday 10th May

The House of Assembly has adjourned to Tuesday 17th May

General Laws Amendment Bill Passed with Amendments by House of Assembly

The Parliamentary Legal Committee [PLC] returned a non-adverse report on this Bill in March, but only after the PLC and the Minister of Justice and Legal Affairs [“the Minister”] reached a compromise under which the Minister agreed that he would withdraw the copyright clause [clause 16] and modify the civil aviation clause [clause 7]. The PLC’s non-adverse report was conditional on these changes being made. See Bill Watch 10/2011 of 15th March. The Bill proceeded with its second reading and committee stage during which other changes were also made by the House [see below for details]. The Bill was passed on its third reading, then transmitted to the Senate for consideration when it resumes sitting in May. Because of the amendments it is now numbered H.B. 8A, 2010 to distinguish it from the original Bill, which was H.B. 8, 2010. [Electronic version of amended Bill available.]

Second Reading Debate

After the Minister had explained the Bill to the House, the reports of two portfolio committees on the Bill were presented by the committee chairpersons.

Portfolio Committee Reports

Committee on Local Government, Rural and Urban Development The committee had received submissions on the Bill from the Bulawayo Progressive Residents Association and the Local Government Association. It recommended the dropping of the Bill’s clauses providing for procurement of goods and services by local authorities to be under the control of the Government Tender Board. Instead, the Committee recommended that the Minister of Local Government should devise a model procurement law for use by all local authorities.

Committee on Justice, Legal, Constitutional and Parliamentary Affairs This committee had received submissions from stakeholders, calling for:

  • the dropping of the Bill’s clause on copyright in Acts, statutory instruments, court judgments and other official publications and the clauses on local authority procurement, citing inconsistency with the Constitution;
  • the reduction of the proposed mandatory minimum sentences for rhino poaching from 9 and 11 years to 5 years
  • reconsideration of the clause for imposition of civil penalties by the Civil Aviation Authority [CAA] on offenders against regulations made under the Aviation Act.

Minister’s Response

In his reply to the debate, the Minister:

  • refused to budge on the mandatory gaol sentences for rhino poaching, saying they were needed to deter the killing of this endangered species
  • said he would move an amendment removing the local authority procurement clause. The Minister said it would be up to the Minister of Local Government, if so advised, to come up with a separate Bill dealing with procurement by local authorities.
  • also said the copyright clause would be removed from the Bill in accordance with the decision previously reached
  • confirmed that he would move an amendment to the clause on “civil penalties” for the aviation industry – this would make it clear that the civil penalties could be challenged in court.

The Bill was then read the second time, clearing the way for the Committee Stage, which is when a Bill is considered in detail, clause by clause, and changes can be made to its contents.

Committee Stage

The major changes that were made to the Bill were all proposed by the Minister and were as follows:

Removed from Bill

  • Copyright in Acts, Government Gazettes and court decisions - clause 16 was entirely removed from the Bill. This means that the present law will remain unchanged, i.e., there will be no Government copyright in the text of Acts, statutory instruments, court proceedings and judgments, and the contents of official registers. It will still be possible, therefore, for such material to be published without Government permission.
  • Local authority procurement procedures - clauses 18 and 19 were also removed. The clauses would have amended the Rural District Councils Act and the Urban Councils Act to place local authority procurement of goods and services under the Government Procurement Board.

Modifications

  • Modification of civil penalties amendment of Civil Aviation Act The House adopted the Minister’s amendment, under which a civil penalty may be challenged if the CAA attempts to enforce it by court process. [Industry stakeholders may regard this as a less than satisfactory response to their basic objection to the clause, which is that it is unconstitutional for a Bill to empower the imposition of penalties - even if described as “civil penalties” – by a body that is not an independent court or tribunal - Constitution, section 18.]
  • Labour Court - provision for completion of part-heard cases The original clause to amend the Labour Act [now clause 18] has been expanded to insert a new section in the Labour Act to cover what will happen when a Labour Court President retires, is appointed to the High Court, dies or is removed from office, before completing a case. In the case of retirement or High Court appointment, the outgoing President will complete the case. Other cases will be reassigned to another President, either for continuation from the point already reached, if the parties so agree, or, if they do not agree, for rehearing from the beginning. These administrative changes are deemed to have come into force on 31st December 2005, which is the date of commencement of the last amendment to the Labour Act.
  • Labour Court - leave to appeal to Supreme Court Appeals against Labour Court decisions can be made to the Supreme Court on questions of law only. In addition leave to appeal must first be obtained from the President who handed down the decision. Clause 18 of the Bill, as amended, will change that to allow leave to appeal to be given by another Labour Court President “in the absence of” the original President. This change, too, is deemed to have come into force on 31st December 2005.

New clauses added to Bill

  • Backdating of commencement of National Biotechnology Authority Act The Minister did not explain the need for this clause, which provides that the Act shall be deemed to have come into operation on 1st September 2006, which is when it was originally gazetted. The date of commencement of the Act should have been fixed by the President by statutory instrument, but the need to do so was overlooked and the Authority has in fact, if not in law, been operational since 2006. So this clause is an attempt to clothe the Authority’s operations over the last four years with legality. There is an important proviso, however, saying that provisions creating criminal offences will only come into operation when the present Bill eventually becomes law. [Note: the proviso is necessary because the Constitution forbids the retrospective creation of criminal liability.]
  • Amendment of Banking Act - minimum capital requirements for banking institutions The current section 29 of the Banking Act requires banking institutions to maintain “minimum equity capital” at levels to be prescribed in regulations made under the Act. This new clause drops the word “equity”, so that when the Bill becomes law banking institutions will have to abide by “minimum capital” requirements as prescribed. The clause provides a definition of “minimum capital” referring to the “permanent commitments” by an institution’s shareholders that will qualify as minimum capital.
  • Backdating of US dollar tariff for legal practitioners costs to February 2009 The new clause 19 backdates to 1st February 2009 the High Court (Fees and Allowances) (Amendment) Rules gazetted in SI 12/2011. This will enable successful litigants who have been awarded their costs by the High Court to claim their legal costs since 1st February 2009 in US dollars. The 1st February 2009 was when the multi-currency regime was inaugurated – but the fees and allowances permitted by the High Court rules continued to be stated in Zimbabwe dollars until SI 12/2011 was gazetted on 4th February this year. [A question: Why doesn’t the clause also refer to the magistrates court tariff enacted in SI 2/2011? During the Committee Stage on the Bill the Minister said the new clause covered both High Court and magistrates court cases.]

[Comment: The changes to the Bill in response to recommendations from the portfolio committees and the PLC illustrate how the committee system can assist in giving interested parties a real chance to influence legislation passing through Parliament – and also demonstrates that it is worthwhile lobbying committees even after a Bill has been approved by Cabinet and gazetted.]

Further Changes to Bill Still Possible

It is not too late for further changes to be made to the Bill as it goes through the Senate. The Minister and Senators can therefore be lobbied to improve the Bill by making amendments during the Senate Committee Stage. Clauses that are obvious candidates for further change are -

  • Aviation Act Civil Penalties [clause 6] - aviation industry stakeholders may feel that the provision for the imposition of civil penalties by the Civil Aviation Authority is still unsatisfactory despite the amendment made by the House
  • Backdating of Legal Costs [clause 19] – this clause could be improved by being broadened to cover costs in the magistrates court as well as the High Court.

Note on Bill’s Amendment of Ombudsman Act

Contrary to a press article this week, clause 5 of the Bill, amending the Ombudsman Act, does not introduce a new procedure for the appointment of the Public Protector and Deputy Public Protector. It was Constitution Amendment No. 18 that in 2007 (1) adopted the name “Public Protector” in place of “Ombudsman”, and (2) introduced the new appointment procedure, under which the President, before appointing a Public Protector or Deputy Public Protector, must consult the Parliamentary Committee on Standing Rules and Orders [as well as the Judicial Service Commission which has always been and remains involved]. Clause 5, therefore, is merely a belated, purely formal, follow-up to changes made to the Constitution by Constitution Amendment No. 18 of 2007: it amends the Ombudsman Act to incorporate the “new” term “Public Protector”, updates the preamble to the Act by reciting the current wording of the two short constitutional provisions dealing with the Public Protector, and changes the title of the Act to “Public Protector Act”.

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