National Health Amendment Bill: consideration of stakeholder inputs

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30 May 2012
Chairperson: Dr B Goqwana (ANC)
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Meeting Summary

The Director General explained that Cabinet had requested an additional amendment to the Principal Act in section 25(2)(l). It wanted “port health services” changed from a provincial to a national competence.

The Committee considered stakeholder inputs on the National Health Amendment Bill with the assistance of the parliamentary legal team. The discussion centred on the independence of the Office of the Health Standards Compliance (OHSC) in line with concerns raised by stakeholders. The components of what made an institution independent was discussed by the Parliamentary Legal Adviser. His personal view was that there was not a problem with the independence of the OHSC. However, he provided options that the Committee might consider in entrenching independence. The Committee could use various measures to determine the level of independence and those included appointments; security of tenure of the head; removal of the head of an entity; financial security; conditions of service; reporting lines; and the mechanism of funding for the entity. With regard to the Ombudsman who dealt with complaints, one could include a role for Parliament on how the Ombud person was appointed. The governance structure in the case of the OHSC provided for a Chief Executive Officer as opposed to a Board. An option could be to provide for a Board rather than a CEO. This scenario was discussed at length.

The Committee dealt with various issues and clauses of the Bill that were topical. These were:
▪ The Board
▪ Objectives of OHSC- Section 78(b)
▪ Functions of OHSC - Section 79(2)(a)
▪ CEO appointment 79A (1)
▪ Appointment of a Board
▪ Ombuds term of office - Section 81
▪ Independence of office - Section 81B
▪ Parliament's appointment process
▪ Fines Section - 82A
▪ Compensation for damage during forced entry - Section 84(8).

Meeting report

Opening remarks
The Chairperson said the Committee was meeting to consider stakeholder inputs into the National Health Amendment Bill. The Parliamentary legal team was present and would assist the Members in pointing out the concerns of the stakeholders. The Committee should avoid a situation where the Bill was sent back for further deliberations, as was the case with many of the Committees. Once this Bill was finished, it should not return to this Committee.

The Committee had too many issues to deal with, including considering to find a relevant name for AIDS. Now that people knew what caused AIDS, the time was right to consider changing the name. The acronym AIDS stood for Auto Immuno Deficiency Syndrome, because in the initial stages, scientists and researchers were never certain about what caused this.

It was pointed out to the Chairperson that AIDS stood for Acquired Immune Deficiency Syndrome. He replied that this was much later; initially AIDS was a short form for Auto Immuno Deficiency Syndrome, as doctors had thought it just happened. Now it was known that Human Immuno Virus (HIV) caused AIDS, the time was right to consider a change of the name.

Ms D Robinson (DA) commented that there was no need to change the name at this stage as that would cause great confusion. This was something that needed intense discussions not only in Parliament, but also at the level of civil society.

Ms P Kopane (DA) registered a complaint that documents needed to be forwarded to the Committee much earlier. She said receiving huge documents on the morning of the meeting was not helpful.

Ms B Ngcobo (ANC) pointed out that a request was made to the legal team only the night before to prepare the document, and it was agreed that the document would be circulated in the morning.

The Chairperson said Ms Kopane was correct about documents; Members needed to have them much earlier. He noted that next week there would be a combined oversight visit to the Free State and Western Cape. He handed over to the Director General to comment on the reference to port health services in the Principal Act and to the parliamentary legal team to comment on the
stakeholder inputs on the Bill.

Director General's remarks on “port health services” in National Health Act
Ms Precious Matsoso, Director General (DG), National Department of Health (NDoH), said there were international health regulations that applied to all countries at ports of entry. It was a necessity that foreign travellers be issued with yellow fever certificates, and that rule was applied by every country. Governments worldwide had to regulate the movement of people from high and low risk countries.

High-risk countries, where yellow fever was endemic, were targeted. Visitors from such countries should produce yellow fever certificates that reflected the batch of a vaccine administered to a person prior to departing own country. South Africa did not belong to that category, and in fact it was a no risk country.

Producing a certificate and testing at ports of entry was not optional and this procedure was accepted even by World Health Organisation (WHO) standards. The function was, and should be the competence of the national office and not provinces. Cabinet had requested that this change be made by the Committee. A resolution had been passed on yellow fever and specific ports needed to be designated.

Adv Gary Rhoda, Parliamentary Legal Adviser, added that the relevant section Cabinet was requesting to be removed from the National Health Act was the “port health services” phrase from section 25(2)(l) of the Principal Act which stated that p
rovincial health services “(l) facilitate and promote the provision of port health services, comprehensive primary health services and community hospital services”.

Parliamentary Legal Adviser presentation on the Bill
Adv Rhoda said the final page of the Parliamentary Legal Services document dealt with the issue of the independence of the Ombudsman. This was included for discussion in line with issues raised by stakeholders around the independence of the Office of the Health Standards Compliance (OHSC).

He said his personal view was that there was not a problem with the independence of the OHSC. The Committee might consider entrenching the independence of the Ombudsman in dealing with complaints. The issue would be to include a role for Parliament on how the Ombud person was appointed.

The Committee would not have to tinker so much about the functions and having a Board in place. Section 81(B) of the Amendment Bill clearly indicated that the Executive wanted the office of the Ombud to be independent. Although the Ombud Office would receive funding from Parliament, the only consideration was that the person was appointed by the Minister of Health. So as a policy issue, the Committee would want to consider if it wanted to further entrench the independence.

Mr Rhoda said there was never objective criteria of independence and, if there was such, it was a policy decision that had to be determined by both Parliament and Government. Other factors that might determine if a body was independent or not included the context upon which the body was founded; its form and structure; and public perception. The latter had been dealt with during the public hearings where the professional bodies had made known their views. Most of those bodies felt the new office was not sufficiently independent.

Independence was contextual and depended a lot on the mandate and purpose of a body. It was difficult to claim independence as that depended on how a body was founded in terms of the law. Even the Constitutional Court had noted that independence of the Chapter 9 institutions was contextual to the mandate of a certain body. Also in considering whether or not the OHSC was adequately independent, the mandate and the context needed to be complemented by its form and structure.

He clarified that independence and impartiality were related, but had different meanings. Impartial, meant without bias, prejudice or unfairness and referred to a state of mind of the official exercising a mandate; whilst to be independent meant free of control. There was no public institution in South Africa that was truly independent. The Constitution required that entities were dependent on one another or to respective departments. This was a reality that had to be borne in mind when engaging the question of independence; institutions had to be accountable as a principle of cooperative governance.

The Committee could use various measures to determine the level of independence and those included appointments; security of tenure of the head; removal of the head of an entity; financial security; conditions of service; reporting lines; and mechanism of funding of the entity. It was the business case of an entity that determined the governance structure. In the case of the OHSC, the business case provided for a Chief Executive Officer as opposed to a Board.

Another important measure to determine independence was public perception. A host of organisations and private individuals had submitted their comments on what they thought of the OHSC. The health professional bodies felt that the OHSC would not be sufficiently independent from the Minister of Health.

Mr Rhoda said the Objects of the Office in Clause 78 stated that the OHSC would protect and promote the health and safety of users of health services by monitoring compliance to norms and standards, and ensuring consideration, investigation and disposal of complaints. The Bill did not define a complaint, but it was assumed that it related to complaints received from users of health establishments. OHSC would not wait for the Minister's authorisation; it would investigate once there were alleged contraventions.

He said functions for the Office would include inspecting and certifying compliance to the health standards by the health establishment. It would monitor indicators of risk relating to serious breaches. OHSC had prerogative powers and might issue guidelines; collect and publish information relating to norms and standards. The Office would also liaise with other regulatory bodies in the industry. Its prerogative powers indicated a level of independence.

Another measure of the degree of the independence was the removal and appointment of the head of the OHSC. Clause 79(1)(a) prescribed that OHSC be headed by a CEO, appointed directly by the Minister, for a renewable period of five years. It was also proposed in the Amendment Bill that the CEO would have to conclude a performance agreement with the Minister. This was an indication that the Minister had a degree of control over the CEO. The CEO might also be dismissed by the Minister on grounds that included ill health, gross misconduct or incompetence.

He said the fact that the CEO could be appointed and dismissed by the Minister, should not mean that OHSC was less independent. This though gave a perception that the CEO would be biased towards the Minister. The CEO accounted to the Minister. The Committee might want to consider appointing a Board, as opposed to the CEO, whose functions would be a policy decision of the Committee.

It was proposed that OHSC be funded by money appropriated by Parliament and fees received for services rendered. He found it strange that professional bodies would call for the retention of the fees, given that OHSC was established in terms of the Public Finance Management Act (PFMA), which gave it that fee retention power.

He commented that most Chapter 9 institutions received money via the departments but that did not compromise their independence. This was just how the appropriation was made, but it had no implications for independence.

Mr Rhoda said the office of the Ombudsman was located within the OHSC. It was clear from the Amendment Bill that the intention was to create an Ombuds office that was independent in carrying out its duties. One consideration that the Committee might have in entrenching independence for the Ombudsman, would be to creating a role for Parliament in appointing the Ombuds person. Such a decision would curtail having to establish a Board or a CEO.

Ms Ngcobo wanted to know about the possibility of having both the Board and the CEO.

Ms J Segale-Diswai (ANC) wanted to know the input, and if it held differing view, of NDoH's lawyers to what had been presented. She sought clarity on the accountability of OHSC and the CEO, as it pertained to reporting lines.

The Chairperson requested that Mr Monwabisi Nguqu, Senior State Law Adviser, give an impression of the presentation. Clarity was needed on independence in so far as it related to OHSC, the CEO and the Ombudsman, all of whom reported to the Minister.

Mr Nguqu said the State Law Advisers’ Office agreed with the concepts, decisions and the application of the case law. Some of these issues related to policy decisions that the Committee had to make. The view expressed was that, despite the institution having to report to the Minister, this did not make it any less independent.

Section 85 of the Constitution talked about the executive authority of the Republic, and how ministers exercised that authority. Independence was relative; there could never be an institution that was absolutely independent from national legislation. Authority on the Minister was conferred by the Constitution. The Minister therefore should have the final say on how duties were decided upon.

As an executive head of the ministry, the Minister might decide that he wanted an independent body, outside of the Department, to oversee and monitor the norms and standards. Generally, boards of entities were accountable to ministers; the boards fulfilled functions on behalf of the Executive Authority.

Mr Nguqu said the Ombudsman also could never be absolutely independent as he was accountable to the OHSC. The Committee could consider playing a role in the appointment of the official in trying to entrench independence. But Parliament was only limited to the Chapter 9 institutions.

Mr Rhoda said he agreed with the sentiments of the State Law Adviser that there could never be an absolutely independent body. The Committee could consider how, and what role, Parliament could play in deciding on the appointment of the Ombudsman. Available options included amending the law to allow Parliament to recommend a group of names, and forwarding them to the Minister for appointment.

Mr Rhoda replied that it was the Committee's decision to decide on the Board or CEO. Some bodies were governed by an executive director, who oversaw operations of the office and doubled as a board member. This was a policy decision that was open to the Committee. Having the Board would be cumbersome; it was ideal to create a role for Parliament in appointing the Ombuds person. 

The Chairperson said he hoped whatever the Committee decided on, would be driven by having the interest of the people, and of being patriotic. The process of appointing people need not be about collapsing institutions or dragging people down. The Committee should take a decision informed by the intention to make the country better.

The Chairperson said there need not be a concern about institutions having to report to ministers. Ministers were Members of Parliament, who exercised oversight on the work of departments as did the Committees. Minister Motsoaledi's role was not administrative, and was different to what the DG did at the Department. Public perception of independence needed to be informed by this realisation.

Mr A Kganare (Cope) said that Members had not commented on the proposal to remove the port health services section, but this did not mean they agreed. The Committee was not dealing with the Principal Act; Members were glad it was raised but would not engage it at the moment.

Mr Kganare said Section 81(B) titled ‘
Independence, impartiality and accountability of Ombud’ of the Bill dealt adequately with the issue of independence of the Ombudsman. He asked if his understanding was correct that although housed in the office of the CEO within OHSC, the Ombuds person did not get instructions from the CEO, and that the CEO could not interfere with his work.

Mr Rhoda replied the clause specifically addressed the issue of impartiality and not independence. That distinction between independence and impartiality had to be made.

He replied that the Ombuds person did not receive instructions from the CEO. It still was a policy decision whether to make the office of the Ombudsman answerable to the CEO or directly to the Minister.

Mr Kganare said in respect to the R10 million fine there had to be a process, as opposed to an inspector having to decide to impose that fine.

Mr Rhoda replied that the power of the inspectors would be the terrain of the Department to answer why it had envisaged that amount of power for them.

Ms Matsoso replied that with a body like the OHSC there was a need to have clinical governance structures that could enforce the rules. It did not help to have an office like the OHSC without the ability to enforce, and even police whether health establishment adhered to the norms and standards.

The Chairperson said the ports health issue was something that the Committee had to discuss.

Ms C Dudley (ACDP) said the advantages and disadvantages of having a board, as opposed to a CEO, were not clear. She requested the legal team to guide the Committee on which way to go.

Mr Rhoda replied that the issue with a board was to decide on whether it would be a technical or administrative one. With a technical board, roles needed to be honestly spelt out, especially as they pertained to technical expertise. It appeared that the Board would be heavily administrative in nature, and such functions could just be performed by a CEO. As the Bill stood, it allowed the CEO to appoint the Inspectors from various fields; so the technical skills were already there. He struggled to understand how the Board would be of any assistance in such a scenario to provide technical guidance. This would be a top-heavy system. The only advantage of having a board would be that there would be collective agreements.

He said emphasis needed to be made at the level of the Ombuds person within OHSC, because this was the person who would deal with the systematic issues in the provision of health services. The Ombuds person would have greater power to investigate. He would suggest that a role for Parliament be clearly spelt out.

Ms Matsoso replied that the suggestion of the Board came from stakeholders and the Department found it to be sound. The Department could not have power entrusted to an administrative official like the CEO. That needed to be guarded against. Independence was not only restricted to the Executive Authority, but all forms of outside pressure be it public, commercial or political. OHSC needed to be structured in such a way that it would deal adequately with the public complaint.

The Chairperson said the view of the Committee was to look into the future and prevent any foreseeable challenges.

Topical sections of the Bill
(i) The Board
Mr Kganare proposed that the Committee made a decision, prior to reading the Bill, on whether it wanted a board or a CEO. If the Committee agreed on this aspect, it could be inserted to the relevant clause.

The Chairperson agreed and said a decision for a board would affect a lot of other issues raised in the Bill.

Ms Dudley proposed that the issue of deciding on the use of the board be flagged and revisited once everything had been done.

Ms D Robinson (DA) supported Mr Kganare’s view that a decision should be made on the board, as that would make the work of the Committee easy, without having to revise the Bill over again.

Ms Ngcobo proposed that the board be defined prior to the issue of it being concluded.

Mr Nguqu said Members need not worry about factoring changes into the Bill including the definition. This could be effected as part of the consequential changes.

Mr G Lekgetho (ANC) said a board was needed to entrench the sense of independence of the OHSC. This would address any kind of perceptions that would come.

Ms Dudley withdrew her proposal and said there was a need for a technical board.

Mr Rhoda said he would draft a proposal on how the Board needed to look like during the meeting break, and then after the break Members could discuss that and make a decision.

(ii) Objectives of OHSC- Section 78(b)
The clause stipulated that the Office would protect and promote the health and safety of users of health services by ensuring consideration, investigation and disposal of complaints relating to non-compliance with prescribed norms and standards in a procedurally fair, economical and expeditious manner.

Members sought clarity on the nature of the complaints and the use of the words ‘economical’ and ‘fair’.

Ms Dudley requested that the word ‘complaint’ should be defined and included in the definitions clause. She said the word ‘economical’ could also be changed into 'cost effective' as it could be exploited and be open to different interpretations.

Mr Kganare agreed and said the words were fine as they allowed the Minister to determine measures for performance agreements.

Ms Segale-Diswai wanted to know the opposite to the word ‘economical’.

Mr Rhoda said there were a range of factors that determined the meaning of the word ‘economical’. The court looked at issues like time and the cost of resolving complaints. ‘Cost effective’ would just be limited to the financial implications. He said the ordinary definition of the word went as far as to say ‘giving good value of the service in relation to the amount of money, time or effort spent’.

Mr Kganare said in simple language once the word ‘cost’ was mentioned the only thing that came to mind was money. The word ‘economical’ was broader in meaning and implication.

Ms Segale-Diswai said the clause was fine as long as it was understood clearly and left no loopholes in the future.

The Chairperson said as long as the sentence would not confuse the public and the courts. He ruled that the clause be left as it was.

(iii) Functions of OHSC - Section 79(2)(a)
This clause dealing with functions of the Bill stipulated that the Office may issue guidelines.

Ms Segale-Diswai queried the use of the word 'may', and said it allowed for neglect of duty, as the office may not issue guidelines on account of it being optional. 'May' would allow for neglect.

Mr Kganare said that 79(2)(a) should not only be singled out as the change may be applied to all the other sub-sections up to (e). The word 'may', allowed for instances where other regulatory bodies had issued their guidelines. This would avoid redundancy and duplication, but in instances where there were no guidelines then the Office might issue.

Mr Rhoda explained that 'may' as opposed to ‘must’, gave OHSC an option whether to issue guidelines or not. 'Must' was more of an instruction.

Mr Nguqu explained that with 'may' there was a level of discretion and the word allowed for flexibility for when on implementation of norms and standards, health establishments failed to abide. The word 'must' would make it possible for a health establishment to escape punishment when they have compromised norms and standards, on a possible non-release of guidelines by the office.

Ms Segale-Diswai said she understood the explanation but the challenge was with those establishments that would simply choose to ignore norms and standards, despite have guidelines.

Ms M Dube (ANC) also raised a concern and said the word 'may' did not bide well with compliance as it was soft enough to lead people to neglect. She asked if 'may' was strict enough to make people accountable.

Ms E Kenye (ANC) said she shared the sentiment, 'may' was too soft a word. The use of the word 'may' was a loophole.

Mr Lekgetho said he agreed and said the functions of the Office were very important and necessitated the use of the word 'must'.

Ms Robinson said 'may' was the correct word. If circumstances dictate that one needed something, it could be done. The word 'may' allowed for better judgement.

Mr Nguqu said the decision whether to use the word 'may' or 'must' entirely rested with the Committee.

Ms Dudley wanted to know if 'must' would not tie the Office to things it was not supposed to concentrate on.

Ms Segale-Diswai clarified that she understood that the health establishments had own guidelines. She said in instances where establishments were not adhering to norms and standards as issued by individual professional bodies, then the word should apply. There were norms and standards from all the professional bodies, but people just did not comply.

The Chairperson said past experiences of not adhering to norms and standards should not be invoked as the reasons for non-compliance were not known.

Ms Matsoso said the Department should consider including the words 'were appropriate may'.

Members agreed on the use of the word 'may' although some made it clear they did not agree.

(iv) CEO appointment 79A(1)
Ms Dube sought clarity on suitability of people who held dual citizenship on being appointed to the CEO position, as the Bill stipulated that the Minister must, subject to the laws governing the public service, appoint a fit and proper, suitably qualified South African citizen.

Mr Rhoda replied that even if one had a dual citizenship that person could be appointed to the position. The most important thing was the green South African identity document, and the qualification. Such a person was allowed to vote and had access to services like any other citizen of the Republic.

Ms Dube said she was not convinced by the reply as citizenship was so easy to acquire. Many foreign nationals came to SA, got married to a South African, and then they got citizenship.

The Chairperson replied that the most important thing was qualifications, and that the person was a citizen. It did not matter how the person got citizenship as long as that person was a South African citizen. This was an official who would have to perform a function. It did not matter if the person was patriotic or not.

Ms Ngcobo said on matters of law, dual citizenship had never been an issue. All bills reflect citizenship, some would say resident, but it had always been citizenship that mattered; dual or not.

Ms Kenye sought clarity on whether acquiring citizenship was any different to acquiring residence.

Mr Rhoda explained that these were two separate processes. Citizenship was applied for and could be denied, whilst residency was acquired after five years. A citizen was issued with a green bar coded identity document that would reflect a place of birth.

Ms Dudley asked if it was necessary to discuss the CEO, if the Committee had not decided on whether it wanted a CEO or a Board in place.

Members agreed to first go through the document that was prepared by the legal advisers on the composition of the boards.

(v) Appointment of a Board
Mr Rhoda said a board could have a chairperson and could consist of seven but not more than 14 other members. A member of the board, excluding the chairperson, should hold office for a period not exceeding five years, but shall be eligible for reappointment. A member should vacate office once the person reached 70; was declared insolvent; sentenced to imprisonment without an option of a fine; absent from three consecutive meetings or resigns.

He said the Minister might, with the concurrence of the board, at any time discharge a member of the Board from office if the Minister was of the opinion that such a member was incompetent. It would be up to the Members if they wanted the board headed up by a CEO or a chairperson.

The Chairperson said the idea of a board had too many implications. He wanted to know if the idea of a board was budgeted for, and what the financial implications of having a board were.

Ms Kopane sought clarity on the reporting lines for the board.

The Chairperson said his understanding was that even the board would report to the Minister and that did not bode well with the earlier discussion on independence. The authority seemed to have shifted back to the Minister and that would compromise independence.

Ms Dube said the board question was even confusing. She asked if the new structure would include both the CEO and a Chairperson.

The Chairperson said Members needed to be aware that the Bill was their’s, they had to make determination as to how they wanted the structure to function.

Ms Segale-Diswai asked why the Department had not considered the board initially. She too was concerned by the financial implications of a bloated board. It was difficult to see who was to perform what function; one could delegate responsibility but not authority. Who would, for example, appoint the chairperson of the board? She said she was more confused than earlier.

Ms Segale-Diswai asked for an explanation on why there was an age limit of 70, as some 70-year-olds could be functional and resourceful.

Ms Dudley said the reality was now becoming clear, as there was nothing independent about the board and the cost of establishing it, as opposed to a CEO, was just unbelievable. The chairperson of the board and the whole board would be appointed and fired by the Minister. The Committee was gaining nothing because the chairperson of the board could access any expertise that a CEO could. The earlier suggestion of involving Parliament made more sense and appeared a lot more cost effective.

The Chairperson warned Members not to apply the process of determining the boards of Chapter 9 institutions where Parliament was heavily involved, in deciding on the board or the CEO.

Ms Ngcobo wanted to know if the idea of a board had been budgeted for.

Ms Carol Marshall, Chief Director, Office of Standards and Compliance, NDoH, replied that up to now it had not been budgeted for. But a provision could be made in Medium Term Expenditure Framework (MTEF).

The Chairperson said he was worried about the lack of clarity especially around the lack of funding. When OHSC was first mooted there had to be an idea of how much such an office could operate on. Would the Department have that money?

Ms Marshall replied that the question of cost could be determined by seniority of board members. Other cost driving issues included the size of the board, the kind of work it did, the amount of hours the board put in.

Ms Segale-Diswai wanted to know why the Department did not consider the board initially.

Ms Dube pointed out that it had not been an idea of the Department to have a board, but the Committee’s, for purposes of independence. She said it would be difficult for the Department to answer questions around financing the board when they had not even thought of it.

Ms Ngcobo replied that the DG had expressed a wish to have a board for governance purposes. She said boards were generally good because of the varied expertise they brought to institutions. Having a board might not be as expensive as Members thought. Boards met only four times a year. She was opposed to a CEO sitting on the board, as this was a person who ran daily operations at organisations.

Ms Robinson agreed and said boards were not that expensive. The board would just have to play an oversight role on the functioning of the Office. The number could also be kept to a minimum, but the Committee needed to confront the question of who appointed them. If the Minister did, then the Committee was stuck where it started on the question of independence.

Members agreed that there was a need for a board, but the Department had to go and look at the dynamics like the type of the board; how should it report; breakdown of its cost and how it could be made independent.

Ms Segale-Diswai said there was no need for the board. Pushing through with the idea of the board gave no justice to what the Committee needed to be doing. The Committee was not privy to the initial thinking of not having the board by the Department, and without that reasoning, it would be difficult to make an informed decision.

Ms Dudley said there was still a challenge with the independence of the board. The role of Parliament needed to be spelt out.

Ms Ngcobo replied that there could never be absolute independence on issues that pertained to governance. Even the board would still have to report to the Minister. She requested that the issue of the board be put aside so that the Committee could finish with the Bill.

The Chairperson said Members needed to decide on the kind of a board they wanted.

Ms Dudley said it was decided that a technical board was needed. She would prefer a seven-member-plus-two board, and not the number 14 that looked excessive.

The Chairperson said it was normal to have boards that small, but the worrying thing in the Bill was that the board would be appointed by the Minister. He said another worrying aspect of the Bill was that the board was regarded as an authority, reporting to the Minister, a scenario which made them no more different to the CEO.

Ms Robinson said Members needed to be encouraged by the fact that it was the Minister's idea to have a separate independent body outside of the Department to run operations at OHSC. This was evidence enough that the Executive wanted this body independent. All that was needed was to find role for Parliament in appointing the board. And that Parliament would be involved in appointing the board should not equate the Office to a Chapter 9 institution. All that the Committee sought to achieve was transparency and a degree of independence.

Ms Ngcobo suggested that the Committee copy their counterparts at science and technology where people were shortlisted by the Office of the DG and names would be forwarded to Parliament. Parliament would then recommend to the Minister who would eventually appoint.

The Chairperson ruled that the Department needed to go and prepare a document for the Committee before 1 June, where it spelt out the advantages and disadvantages of having a board lead by a CEO, or a Chairperson with a CEO sitting in on board meetings. As part of this exercise, the Department could advise on how best to involve Parliament in an institution that was not Chapter 9 institution.

(vi) Ombuds term of office - Section 81
The Bill stipulated that the Ombud would hold office for a non-renewable term of five years.

Ms Ngcobo said the standard approach to appointing Ombuds persons was normally for seven years. She wanted to know why the Department had limited the period to five.

Ms Dudley said the role of Parliament in appointing the Ombuds person needed to be clarified, especially if the idea of a board was decided against. This was the section that could allow for a parliamentary role.

Ms Kopane agreed and said the discussion had centred around the appointment of the Ombuds person.

Ms Matsoso replied there was no particular reason for deciding on five years, it could be increased to seven.

Ms Dube wanted to know why the term was not renewable, given the shortage of critical skills in the country.

The Chairperson clarified that once people got used to the system, it would be easy to open the Office to exploitation and neglect.

Ms Marshall agreed and said that was exactly the thinking about making the term non-renewable.

Mr Nguqu said the Ombuds person might after this period develop a personal relationship and leanings, with or to the Minister, and that would compromise independence of the Office, as rulings would be pointed to the direction of getting a second term.

The Committee's researcher pointed out that the Committee could consider inserting a clause restraining the Ombuds from joining any company that person might have investigated.

Mr Rhoda disagreed and said that would be equal to restraint of trade. That was no different to removing a person from a field such a person best knew. The person would be hired on the basis that such was an expert in the field. If he could not work in health where would such a person find employment?

Mr Nguqu pointed out that citizenship was not mentioned for the Ombuds person as it was the case with the CEO.

Ms Dudley said there would be greater independence if the person was a foreigner, as such a person would not be easily bribed.

The Chairperson said nationality became important with the Ombudsperson. The Committee needed to be careful in appointing an independent person who would kill South Africa; patriotism was important here. This was someone who should understand the issues of South Africa.

Ms Segale-Diswai said citizenship was crucial for the office. The issue of citizenship should be included  there. It would be easy to trust a South African than a foreigner when it came to discharging responsibilities.

Ms Kopane said Members need not be paranoid about the appointment of officials. What was important was qualified people who knew what was expected of them. One could be a South African and yet fail the country.

The Chairperson said it had happened that SA was failed by South Africans before. But SA citizens with qualifications should be given priority. It would be better to have them fail as the option to fire would always be there. He said he trusted that Members viewed the comment not as xenophobic.

(vii) Independence of office - Section 81B
Ms Dudley said whereas the Bill was very clear that the Minister should appoint the Ombuds person, it also needed to include a parliamentary process in appointing the person. This would ensure transparency and would create that perception that the person was independent. She asked that the term of office be clarified.

Ms Kopane wanted to know if the Ombuds person could adjudicate on anything as was the suggestion that came from the workshop held on the Bill.

Mr Rhoda replied that Ombuds people did not adjudicate but just provided recommendations. Parliament could be involved in the nomination process of candidates, by for example, recommending names to the Minister who would eventually appoint the Ombuds person. This was acceptable in law.

(viii) Parliament's appointment process
Ms Dudley suggested that the Committee consider conducting interviews with the candidates as opposed to just nominating.

Ms Robinson agreed, and wanted to know if such task would be done by the Portfolio Committee on Health or an Ad hoc Parliamentary Committee.

Ms Dudley replied that the normal practice was an Ad hoc Committee where political parties forwarded the names of those MPs who would represent them.

The Chairperson said MPs knew where they wanted to go, and needed the support of the officials. Members needed to come out clearly on how best to involve Parliament.

Ms Ngcobo explained that the Committee could copy how the Ombuds person for Military complaints was appointed. A number of names were forwarded to the Committee and it then made recommendations to the Minister.

Ms Segale-Diswai said comparison had to be with things that were similar.

Ms Kopane said she was becoming confused. The initial thinking had been leaning more towards involving Parliament.

Ms Dudley said she had no quarrels with the Minister appointing, but the Committee needed to involve the National Assembly as opposed to the Committee.

Ms Ngcobo agreed and said the Committee could go through the names that had been nominated and make a recommendation. For the Committee to conduct interviews was too much of a job.

The Chairperson said the issue had been independence. He asked if the drafter could go and come up with something that would satisfy both the public and the officials. The process was initiated by the Minister, and Parliament could not be accommodated through the backdoor. Could the Committee agree then that the legal expert prepare a report?

Ms Dube said the issue had been the independence, and not the Board and procedure. She asked if Parliament was involved in the process, and it so happened that relations between the Ombuds person and the Minister became strained, who would shoulder responsibility? The Committee should not consider imposing an individual as there could never be a neutral person. Seven years was too long to be stuck with someone one could not work with. The Committee needed to worry about the job description. Who appointed that person was irrelevant; and the Committee sat here wanting to impose someone it was not even going to work with.

Ms Dudley said this argument validated the point to model the process on how the Portfolio Committee on Defence dealt with its Ombuds person. The shortlist of people who would have already been interviewed by qualified people would come to Parliament. At this level the process was transparent and would allow Parliament to pick up any weaknesses. But at the end of it all, the Minister would appoint.

Ms Robinson said she supported this view. This was not taking someone from the street; the people were professionals who had distinguished themselves in various fields.

The Chairperson said it was ideal for the Committee to go with one voice for the sake of communities. He clarified that some Members were not convinced on the matter of independence. He asked the Department to go and clarify both the positions that were on the table.

(ix) Fines 82A
Ms Dudley raised a concern that R10 million was too high a fine for growing institutions. She understood the use of the word 'may' in respect to issuing fines. Had the Committee said enough on the clause to ensure that it would not have unintended consequences. Was this normal when it came to legislation? Would not such a fine lead to closure of some facilities at the expense of the public?

The Chairperson agreed with the Member and said some facilities operated on far smaller budgets. The use of 'may' provided all the answers to the question.

Ms Marshall replied that the concern was expressed in the inputs that had been received. There were steps that could be captured in the legislation with prescribe timeframes. Another issue that ought to be considered in the legislation was that an establishment that was not compliant could be closed down until it complied.

Members of the Committee needed to think about the kind of other disciplinary actions that could be imposed on institutions. Members could also consider including a paragraph that indicated that penalties would be imposed subject to the nature, extent and gravity of the offence.

Ms Dudley said she agreed with the wording by the department, and it needed to be in the regulations.

Mr Rhoda replied that all the recommendations were being noted and would be effected to the Bill.

(x) Compensation for damage during forced entry 84(8)
Ms Robinson argued that this clause would open the public for exploitation. There were stories where police officials way exceeded their duties, and people suffered undue damage to their properties. Was it right that there should be no compensation? Forced entries/searches could start in bona fide way, and eventually get exacerbated.

Ms Dudley replied that this area would be covered by a court of law, and if it ruled that there had been excesses, that would be covered.

The Chairperson said the Department could not answer the question.

Closing remarks
Mr Nguqu said the Committee need not bother going through definitions. The drafting legal team would effect all the changes and those would be taken back to the Committee for ratification. The process now included having the Committee going clause by clause through the Amended Bill.

Ms Segale-Diswai wanted to know how the drafting team would deal with areas where the Committee could not agree. How would that reflect in the document the team would be drafting?

The Chairperson replied that there were definitely areas that the Committee disagreed on but that would be only dealt with once the drafting team had returned with suggestions on how best to include Parliament in the process of nominating officials and how independence of the OHSC could best be entrenched.

The meeting was adjourned.


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