Skills Development Amendment Bill clause by clause deliberations

Higher Education, Science and Innovation

20 November 2011
Chairperson: Mr I Malale (ANC)
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Meeting Summary

The Committee had requested the Chairperson, after the last meeting, to discuss with the Minister of Higher Education and Training certain matters arising from the Skills Development Amendment Bill, in particular around the constitution framework that was to be drawn by the Minister for the Sector Education and Training Authorities (SETAs). A team of legal drafters then presented a composite set of amendments which sought to follow the instructions and comments from the Committee Members during previous meetings. Some of the amendments were consequential on the removal of the schedule to the original Bill, and in general the amendments were directed to strengthening the Bill and the powers of the Minister. The importance of having a guiding framework that would guide the provincial legislatures was outlined. The proposal that he now tabled to the Committee was a combined effort from all drafters in the legal team. The amendments to clauses 6, 9, 11, 28 and 30, as well as the changes to the long title, were outlined.

The DA and IFP members expressed their dissatisfaction with the manner in which this Bill had been dealt with, as the DA pointed out numerous errors and the fact that proposals made earlier had not been incorporated into the draft. The IFP commented that the whole process seemed to be overly-rushed and pleaded that more time be allowed for members to caucus between adopting the Bill and debating the matter in the house, and it was agreed that the final amendments should be circulated to Members in advance of the next meeting. Members also commented that the view had been expressed by the Sector Education and Training Authorities (SETAs) that they were being pushed into making decisions on their constitutions without proper engagement. They proposed that an executive officer should be required to stay in office for six months. Members discussed in some detail what should happen if there was any conflict of interest on the part of board members, and questioned whether it was correct that no sanctions against the member would be considered, but the decisions would be set aside. They felt that the Minister should be able to prescribe service conditions, leave benefits and other related issues, sought clarity on when permission to deviate would be required, and questioned in what circumstances the Minister could provide a constitution or prescribe wording. Members also noted that the purpose of the amendments was to limit the chances of corruption and to strengthen the independence of the SETAs, suggested that a board member should not be able to engage in other business where there was a conflict, and questioned why the strategic plan was mentioned in the context of the constitution, and whether it would not be more appropriate to refer to annual plans. Members questioned if a board member could be an employee of the SETA as well. They felt that the language of clause 11A should be examined more closely, and suggested that the headings be removed from two clauses, for consistency. It was noted that the Bill would be adopted in the following week and the matter was also set for a debate in the House.

Meeting report

Skills Development Amendment Bill B16-2011: clause by clause deliberations
Chairperson’s opening remarks
The Chairperson informed the Committee that the Committee had requested the Chairperson to discuss certain reservations that the Committee had about the Bill, and reported back that the Minister would not have a problem with the clauses containing references to the constitution of the bodies being amended.

The Chairperson had therefore, in line with this, requested the Parliamentary Legal Adviser, State Law Adviser and Legal Adviser from the Department of Higher Education and Training (DHET or the Department) to process the amendment, in the context of that proposal, and they had been working on it.

Mr Eben Boshoff, Chief Director: Legal Services, Department of Higher Education and Training, confirmed that the drafters had been working jointly on effecting the proposals into an amendment to the Skills Development Amendment Bill (the Bill). He explained that the legal team had dealt with three very important issues. Firstly, the Committee had not been happy with the provisions of the schedule in the original Bill, and the drafters had removed the schedule and had dealt with the consequential amendments that would result from this. Secondly, the legal team had ensured that any mistakes in the legislation had been corrected. Thirdly, it had ensured that the amendments would have the effect of strengthening the legislation, so that there could be a report back to the Minister.

The proposal that he now tabled to the Committee was a combined effort from all drafters in the legal team. There was a reference to the Minister being able to approve the constitution of bodies, and he indicated that clause 6 had corrected the position. Clause 9 also contained issues discussed by the Committee. The Committee had to carefully consider the implications of this clause, which provided that six members of the Accounting Authority would be appointed by organised labour, and for four, the Minister would determine the criteria in the Bill. The word “must” should be omitted and replaced with the word “may” in line 21 on page 5.

He pointed out the lists of categories of role players and stakeholders, as originally contained in Annexure 4, was also referred to it clause 9(5), and this reference had therefore been removed for the sake of consistency. Clause 11 of the Bill had been reworked in line with what had been done in clause 9(1) to (3), again for the sake of consistency.

Mr Boshoff referred members to page 4 of the document, pointing out that line 7 now contained the wording previously proposed by the Committee. This outlined the issues that the Minister would have to address. It was important that a guiding framework should be adopted, which would give assistance to the provincial legislatures in their structures and formation and also help to strengthen the Minister’s position. He noted that the changes were all intended to strengthen the legislation.

He further noted that clause 28 in the original Bill had also dealt with the schedule and that had been removed in consequence of the schedule being deleted. Clause 30, which dealt with the transitional arrangements, was also now changed in consequence of other changes. Because of the removal of the schedule, there was also a need to amend the long title. He noted that the words “the approval of” had been omitted from the long title of the Bill.

Discussion
Mr A van der Westhuizen (DA) said that Members would need to pose their arguments against and in favour of some of the clauses, but this would be a political debate. He noted his concern that he had received this document, with so many substantial changes, only this morning. The Parliamentary legal advisers had also tried to incorporate some changes, and there were mistakes – for instance, the citing of different years in clause 8 – and he said what Members would need to check the documents before adopting.

Mr van der Westhuizen also said that Members had been approached by the Sector Education and Training Authorities (SETAs) earlier in the year. They had expressed their concerns that they felt they were being rushed, and that the constitutions had been drawn without proper engagement with them. He could understand their point of view. The documents contained numerous errors and he asked which one would be used for the purposes of discussion.

The Chairperson asked that Members address themselves only to the document from Mr Boshoff, for the purposes of this meeting.

Mr van der Westhuizen pointed out that the date on page one, named as “2002” was incorrect, and should read “2003”. He noted that page 2 of the standardised constitution referred to “the strategic plan for the SETA” but commented that no constitution of any SETA should be covering strategic plans. He questioned the numbering, pointing out that under (f), the numbering jumped from (ii) to (iv). He also thought that the words “in the” in clause 11(h) did not make sense. In respect of clause 11(i) he noted a duplication of the words “special meetings”.

Mr van der Westhuizen reminded the Committee that he had submitted proposed amendments, but had not received any feedback on that, and questioned why the Department had apparently rejected his proposals. He suggested that the Bill should be concentrating on the management of SETAs, pointing out that the involvement of the SETA boards in management had led to a lot of corruption.

The Chairperson commented, in respect of the proposals by Mr van der Westhuizen, that these would be debated by the Committee and it was not for the drafters to accept or reject them.

Mr Boshoff explained that the document the legal team had compiled was intended to assist the Committee, and contained suggested wording, but of course it was not the final form. The legal team had had limited time to compile this document and he apologised for any errors. He also confirmed that the Department had not rejected Mr van der Westhuizen’s proposals, and some had been neither adopted nor rejected, as the legal team had, when compiling this document, focused on the instructions give to delete the schedule and provide other corrections. The legal drafters would still be providing a final version for adoption.

Mr Gideon Hoon, Principal State Law Adviser, Office of the Chief State Law Advisor, said that the biggest challenge when drafting this legislation was to create a proper framework within which the Minister could operate. The legal team could not deal with issues outside of that, as it would be ultra vires to do so.

Mr van der Westhuizen thanked the Department, and hoped that his proposals would be taken into consideration for the next draft.

Mr van der Westhuizen proposed that the wording referring to the term of office of the Executive Officer should read “must stay in office for six months”.

Mr van de Westhuizen was concerned that although the Bill did not stipulate any consequences for members who failed to declare a conflict of interest, if did state that in certain circumstances the actions of that member would be considered null and void. He asked for clarity on this apparent discrepancy.

Mr Gwebinkundla Qonde, Director General, Department of Higher Education and Training, noted that the process of non-disclosure was not considered to be exclusive to individuals.

Mr Boshoff informed Members that the Constitutional Court had taken decisions on cases where there was a conflict of interest. Any entity could approach the court where there was a conflict of interest, and ask that the Court should set aside, or declare null and void, the decisions made where there was conflict of interest.

Mr Patel Firoz, Deputy Director General, Department of Higher Education and Training, added that clause 11(b) would be used by a party wanting to halt processes taken when a conflict of interest was apparent. A person who had not disclosed his or her interests should not participate in or even enter the meeting dealing with the matter.

Mr K Dikobo (AZAPO) Dikobo wanted to know whether, in the case of a conflict of interest, it would be necessary also to show that prejudice had resulted.

The Chairperson explained that if a person sat in on a tender meeting, and did not disclose his or her conflict of interest, being aware of that conflict, then the tender award would be null and void.

Adv Gary Rhoda, Parliamentary Legal Adviser, stated that the Further Education and Training colleges legislation had made provision that conduct procedures should be developed, as well as sanctions. A member who had a conflict of interest could be suspended from further meetings, or even disbarred from acting.

Mr Hoon added that the new annexure, which now dealt with the suspension of members, set out grounds on which members could be suspended where there was a conflict of interests.

Mr van der Westhuizen proposed that the wording “salary level and conditions” be added to the clause setting out that the Minister must make regulations on the salary of the Chief Executive Officer (CEO) of the SETA. The Minister should be able to prescribe service conditions, leave benefits and other related issues.

Mr van der Westhuizen noted that clause 5 was still in this version of the Bill, despite his proposal that it be deleted.

Mr van der Westhuizen asked if the references to the South African Qualifications Authority Act and the Education Training Qualifications Act were correct.

Mr Dikobo wanted clarity on whether the application for approval to deviate from the terms of the Bill would need to be sought only at the time that the maximum numbers set out in the Bill would be exceeded. He had understood that the SETAs would be required to draw their constitutions in line with the framework developed by the Minister. The constitutions would also have to be approved by the Minister. The Minister could not, in his opinion, draw up the constitutions, as that would be the job of the SETA boards.

The Chairperson reminded the Committee that the Members had previously expressed the view that the Minister was to determine the standard of the constitutions. However, that might not cater for all SETAs, and if this was the case, then the Minister must provide a constitution for that SETA.

Mr Dikobo stated that the Chairperson’s explanation would mean that the constitution would be a “skeleton constitution”, and it was surely up to the SETAs to decide exactly what they wanted.

Mr van der Westhuizen proposed that the Committee should decide if any sanctions should be imposed where a member did not do his or her job properly, or did not declare a conflict of interests. He also wanted clarity as to what would happen in cases where the SETAs did not follow protocol. He informed the Committee that the Minister could not determine service conditions, as that would be dealt with by the bargaining councils.

Mr A Mpontshane (IFP) stated his concern that this Bill was being rushed through for adoption.

Mr Mpontshane asked why, if there was non-disclosure of a conflict of interest, the whole proceedings should be declared null and void. He would have thought it more appropriate to deal with the person who had failed to make the disclosure.

The Chairperson explained that the Committee was basically giving the Minister more power over the SETAs.

Mr Mpontshane stated that it should be assumed from the outset that the SETAs were competent to perform their duties. He believed that if the Minister provided the framework of the SETAs, the SETAs would not have anything to do except to implement the framework. He suggested that the Committee needed a further debate on who should determine the constitution of the SETAs.

Mr Dikobo thought the Committee was missing the point. The SETAs were not the same as a government department, but were entities who were controlled by what was set out in the schedule. He thought that clause 11 was essentially a kind of template and the SETAs would have to expand on that.

Mr Boshoff explained that the Minister was prescribed by the legislation so the government had to tell the minister to prescribe a constitution that would be within the parameters of the legislation.

The Chairperson stated that a standard constitution had to be included in the bill.

Mr Van Der Westhuizen found it very strange that on the accounting authority there were only 5 requirements mentioned and to him that also meant that a person could be a member of the accounting authority and at the same time be an employee of SETA.

The Chairperson explained that the amendments were made to root out corruption and strengthen the independence of the SETAs He thought that a specific subclause should be inserted to note that a board member could not engage in business where there was a conflict.

Mr van der Westhuizen asked Mr Boshoff to explain the meaning of clause 24.

Mr Boshoff explained that clause 26 dealt with regulations regarding work place productivity and competitiveness

Ms W Nelson (ANC) wanted clarity on the mention of a strategic plan. The Department would submit a strategic plan. However, the entities submitted annual plans.

The Chairperson explained that the strategic plan was a five-year plan, whereas the annual plans had to be submitted yearly.

Mr Hoon explained that the strategic plan was mentioned because it would a mechanism to ensure that the SETAs would deliver on their responsibilities.

The Chairperson wanted to know if it would be incorrect for a board member also to be an employee of the SETA.

Mr Dikobo thought that this would result in a problem. The Chief Executive Officer was accountable to the board and staff members were accountable to the Chief Executive Officer. He thought that it would be undesirable to blur the lines of accountability.

The Chairperson proposed that an additional paragraph had to be added into clause 11, to require a member with a conflict of interest to resign from the board.

Mr Qonde agreed with this suggestion.

Mr van der Westhuizen stated that the heading “appointment” on clause 11(b) did not serve any purpose as the person might have been appointed already. He also proposed that the Committee had to look at the language of the new clause 11A.

Mr Hoon referred Members to page 20, where there was a reference to the accounting authority.

Mr van der Westhuizen proposed that the heading should also be removed from clause 23. It referred to a provision around employment service that had been repealed from the principal Act.

Mr Patel informed the Committee that Mr van der Westhuizen’s point was taken, even though it meant that the Bill would have two clauses without headings.

Ms Nelson suggested that the Committee should follow the precedent set in the Electoral Act, which stated that when a member was appointed to a board, and not when she or he applied for appointment, he or she should resign from any other employment that conflicted.  

The Chairperson reminded the Committee that the decision on this matter had already been taken.

The Chairperson asked Members if they were prepared to adopt the amendments.

Mr van der Westhuizen said that he was not prepared to adopt the Bill until a revised document was produced.

The Chairperson informed Members that the Committee would receive the document on the morning of 23 November. Members would have to engage in the clause-by-clause debate in the morning, and then adopt the Bill in the House that afternoon.

Mr Mpontshane again expressed his concerns that this whole process was being rushed. He wanted time between adoption of the Bill by the Committee and the debate in the House, to caucus with his party.

Ms J Kloppers–Lourens (DA) proposed that the Members should receive the final document the day before Members were called upon to adopt the Bill.

Mr Dikobo seconded this suggestion.
 
Mr van der Westhuizen asked the legal team to advise the Committee on the time frame set out in the Parliamentary rules, before a bill was debated on parliament.

Mr Rhoda said that there was no specific time given.

Mr Dikobo proposed that all members should be notified by SMS when the final version of the Bill was e-mailed, to alert Members to pick it up

Mr van der Westhuizen again expressed his dissatisfaction at having been presented with a document that contained numerous errors and silly mistakes. He asked that all the comments be minuted, so that the Committee would not have to repeat the amendments again. He also pointed out that this Bill failed to address a number of issues, such as the National Skills Authority, and governance of the National Skills Fund.

The Chairperson thanked Members for their comments, and asked that proposals and comments should be taken into consideration by the drafters.

The meeting was adjourned.


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