Skills Development Amendment Bill [B16B (Reprint)-2011]: Department of Higher Education and Training briefing

Meeting report

Apologies were received from the Minister and from Deputy Minister of Higher Education and Training, and from the Director-General, Department of Higher Education and Training (DoHET).

Skills Development Amendment Bill Department of Higher Education and Training briefing
Adv Eben Boshoff, Chief Director, Legal Services, Department of Higher Education and Training (DHET) outlined the background and process of drafting the Bill. During the development stages of the Bill, consultation took place by way of a National Skills Summit with the National Economic Development and Labour Council (NEDLAC), the National Skills Authority and role-players in Skills Development.

The Minister’s efforts to enhance service delivery by Sector Education and Training Authorities (SETAs) were supported and all parties who attended the National Skills Summit supported the amendment of existing legislation in order to provide for more effective oversight in both the composition of the Accounting Authorities and the constitution of the SETAs.

The Minister had engaged Business Unity South Africa in a meeting where the principles underpinning the need for the amendments to the Skills Development Act 1998 (Act No. 97 of 1998) were deliberated.

The Bill was then referred to the Minister of Labour for comments and approval on the repeal of sections in the Act relating to employment services and Productivity South Africa.
After being referred to the NEDLAC and State Law Advisors it was presented to Cabinet on 22 June 2011.

Adv Boshoff outlined the purpose of the Bill which included to amend the Skills Development Act 1998 so as to define certain words or expressions and to delete certain obsolete definitions; to amend provisions relating to the establishment, amalgamation and dissolution of SETAs; to provide for the incorporation of a sub-sector of one SETA into another SETA; to provide for the composition  of an Accounting Authority for each SETA; to regulate the eligibility to become a member of an Accounting Authority; to provide for a constitution for every SETA; to regulate the conduct of a member of an Accounting Authority,  or of a member of the staff, of a SETA when engaging in business with the SETA; to require members of Accounting Authorities to disclose any conflict of interest with the relevant SETA; and to  repeal  or amend certain provisions which became obsolete as a result of the transfer of the administration of the Act to the Minister of Higher Education and Training; and  to provide for matters connected therewith.

A summary was made of each Clause. Of important note were Clauses 2, 4, 14 to 19, 21 to 26, and 28 that dealt with the provisions in the Skills Development Act assigned to the Minister of Labour.  Adv Boshoff noted that the Clauses sought to repeal those provisions from the Skills Development Act once the corresponding Labour legislation was enacted and implemented. He added that these Clauses must be read with Clause 30(3) of the Bill which provided that the Minister could not determine a date on which these sections will be repealed unless the Minister of Labour had approved such determination. 

Clause 10 introduced a new Section 11A, which dealt with the eligibility to become a member of the Accounting Authority, most importantly that the appointed person must not have been convicted of a criminal offence for which such a person was sentenced to imprisonment without the option of a fine. In addition the person could not have a criminal record which involved theft, fraud, forgery and uttering a forged document, perjury, or corruption. The member was also required to be a citizen and permanently residing in South Africa.

The new Section 11B required the appointed members to disclose any conflict of interest. The member might not be appointed unless a disclosure had been made that he or she had no direct or indirect financial interest in the SETA. If a conflict of interest occurred at any stage during the proceedings of the Accounting Authority, the member who had a conflict of interest was to disclose such interest and not participate in the proceedings. The consequences if the Member failed to disclose the interest or was present at the meeting was that the proceedings of the Accounting Authority could be null and void.

Adv Boshoff added that Clause 11 provided for a new Section 13 of the Act and provided for a standard constitution for SETAs. It further provided that the Minister might approve deviation from the standard constitution on defined grounds (see Bill, Clause 11, proposed Section 13 (4).

Clause 12 introduced two new sections. The new Section 13A provided for an Accounting Authority member or a staff member to declare a conflict of interest, while Section13B provided for the appointment of a Chief Executive Officer.

Clause 30 was a technical amendment to the Long Title of the Skills Development Act to replace the reference to “South African Qualifications Authority Act 1995” with “National Qualification Framework Act 2008”.

Clause 31 provided the transitional arrangement to ensure that all SETAs complied with having a constitution in line with the standard constitution.

Adv Boshoff noted that Clause 32 provided for the Short Title and commencement of the Act. The Act would commence on a date determined by the Minister; however, Sections 1 (c), 2, 4, 14-19, 21-26 and 28 could commence only after  the Minister of Labour agreed to the Notice published in a Gazette by the Minister of Higher Education and Training.

Discussion
Ms R Rasmeni (ANC, North West) asked about the roles and responsibilities of SETA in the Bill.

Adv Boshoff replied that that the functions of SETA had remained the same, while the responsibilities had been widened as a result of the amendment. The expanded responsibilities included the administration of the code conduct by members of SETA such as declaring cases when conflict of interest arose.

Ms Rasmeni suggested that the Department make available copies of the principal Act - the Skills Development Act 1998 to Members to assist them with their deliberations the following day.

Adv Boshoff replied that copies could be made available to Members.

Mr S Plaatjie (COPE, North West) asked for the criteria used for the appointment of members of the Accounting Authority, with particular emphasis on what constituted corruption claims.
 
Adv Boshoff replied that what constituted a valid corruption claim was that the conviction had been handed down by a court of law.
 
Mr Plaatjie asked who determined when there had been deviation. Was it the Minister or the Accounting Authority?

Mr Boshoff replied that only the Minister could approve a deviation from the standard constitution. 

Ms B Mncube (ANC, Gauteng) asked for clarification on the Bill's provisions relating to conflict of interest.

Adv Boshoff replied that Section 11C recommendations applied to the appointment of new members following Section 11 which applied to existing members of the Accounting Authority, while Section 13A referred to the conduct of a member of the Accounting Authority when the relationship was already in existence and a business relationship came into existence. He added that these Sections provided a clear definition of what constituted conflict of interest. There were prohibitory measures to ensure that such cases did not arise. In the event that such a case should arise it was clear that the individual could not be part of the decision making-process.

Adv Boshoff commented that this amendment provided a code of conduct which could be part of the standard constitution. He added that the amendments provided flexibility, a widening in scope, and a uniform approach to the size, function, and composition of a SETA.

Mr Faber asked for clarification of Clause 32, and if it did not provide contradictions between the roles of the two Ministers.

Adv Boshoff replied that the President, in terms of the proclamation 56 of 2009, had provided that the Act be overseen by the Minister of Higher Education and Training except for those functions that fell under the Minister of Labour. The amendment was therefore an attempt to clean up the Act and ensure that the totality of the Act was brought under the Minister. The amendment also provided a space for the Minister of Labour to introduce legislation that could avoid the creation of a vacuum in the repealed Sections. He was quite optimistic about the strategic structures that had been put in place to facilitate the process.

The Chairperson thanked Members for their contributions and noted that deliberations could take place the following day, 29 November 2011.

The Meeting was adjourned.