Government ignores its own advice

For the second time this year the government stands accused of suppressing a regulatory impact assessment because it yielded an unfavourable outcome.

Impact assessments were introduced in 2007 so that policymakers could weigh up positive and negative impacts on any given legislation. Critics say these instances where the reports were suppressed make a mockery of the process.

In July 2009 an independent research company, SBP, was asked by Cabinet to conduct a regulatory impact assessment on a controversial proposed amendment Bill. The assessment was commissioned by the presidency and the department of trade and industry.

The Intellectual Property Laws Amendment Bill aims to amend intellectual property laws to include indigenous knowledge, but detractors say it makes no sense to amend the existing laws when a stand-alone bill could rather be written.

SBP’s assessment was that there was insufficient evidence to conclude that the risks and costs associated with the Bill’s implementation would be justified by the achievement of social and economic benefits on a ­significant scale for indigenous communities.

The department did not circulate the assessment and a second one, which it drafted, found firmly in favour of the new Bill. It recommended that the process of amending the existing intellectual property laws be continued, although all risks and challenges identified had to be addressed.

This was not the first time that a regulatory impact assessment had been ignored. An assessment on proposed labour laws warned of major damage should the changes be implemented.

Tim Harris, the Democratic Alliance’s spokesperson on trade and industry, said it appears that the first intellectual property assessment, which was marked as confidential, was also suppressed because it did not say what the department wanted to hear.

SBP chief executive Chris Darroll said the department presented the Bill to Cabinet and was involved in writing the terms of reference—the purpose and structure of the assessment.

“They clearly wanted to try to contain it to a cost-benefit ­analysis, but we took on the task as the full assessment requested by Cabinet.”

SBP has been distanced from the process since the assessment was handed over. Darroll said the document was not circulated at all.

“It’s disappointing. Because it had been the first official regulatory impact assessment requested from Cabinet, it was setting what we hoped to be a precedent. We argued that the document should be put forward and made public. But the department said it owned the document and would do what it liked with it.”

Joan Fubbs, head of the portfolio committee on trade and industry, said both SBP’s and the department’s assessments have lost their relevance over the past two years, especially because the Companies and Intellectual Property Commission was not yet functioning. The definition of the terms of reference lost much of its relevance, she said, because the redrafting had moved “a long way forward” since the impact assessments had been submitted.

But Darroll said she was not sure that an assessment had a “sell-by date” and that, in the context of international best practice, if amendments were made the assessment should be updated accordingly.

Owen Dean, professor in intellectual property law at the University of Stellenbosch, said amending the existing laws was like “trying to knock a square peg into a round hole”.

He agreed that the draft Bill had been extensively amended and improved but said it was still far from perfect. “The details have changed but the fundamental flaws and inconsistencies still exist.”
Intellectual property law, he said, was exceptionally specialised.

“You have people [the portfolio committee] who know nothing about the law passing judgment on it. They are simply unable or ­unwilling to hear what people are saying.”

He said the impact assessment had been completely ignored—“the committee and the department of trade and industry sort of pretend it didn’t happen”.

Harris said the presidency had committed itself to conducting impact assessments before any law was passed “but that commitment is lukewarm and the department appears to have complied quite cynically, by commissioning new assessments until they get a result they like”.

Although the portfolio committee has approved the Bill, the Inkatha Freedom Party’s Mario Ambrosini has lodged an appeal. If the Bill proceeds, it will be debated in late October, after which Parliament will vote on it.

Lisa Steyn

Lisa Steyn

Lisa Steyn is a business reporter at the Mail & Guardian. She holds a master's degree in journalism and media studies from Wits University. Her areas of interest range from energy and mining to financial services and telecommunication. When she is not poring over annual reports, Lisa can usually be found pottering about the kitchen. Read more from Lisa Steyn

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