Minister on PANSALB developments; Use of Official Languages Bill: adoption

Committee: Arts and Culture

Chairperson: Ms T Sunduza (ANC)

Date of Meeting: 06 Jun 2012

Summary

The way forward for the board of the Pan South African Language Board was discussed in terms of possible disbandment. The Minister of Arts and Culture spoke about the current state of the board and the investigation findings. The board would meet with the Minister on 8 June.

Members asked why the former CEO had refused to meet the investigators, about the effect of the disbandment of the board on staff, if the actions being taken were legally sound, what possible turnaround strategy the existing board could implement in a few months, if the disbandment was of the board only or the whole institution and if board members would be able to reapply for a board position. There was also a call by the Chairperson for the prosecution of people who had engaged in corruption. It was agreed that the Committee had long thought that PANSALB board was dysfunctional and supported the disbanding of the board.

The Use of Official Languages Bill was adopted.



Minutes

Comments by Chairperson
The Chairperson said the Minister was present and had honoured the Committee’s invitation. She hoped Mr N van den Berg (DA) was happy as he had been requesting that the Minister attend meetings and be more visible.

The Chairperson said the Committee had had their challenges with PanSALB. She had been accused by Prof Ngubane, Board Chairperson of PanSALB, of having an “attitude”. The Committee had agreed that the board should be dissolved and there should be an investigation at PanSALB. This had been a long-standing resolution of the Committee. PanSALB had been called to meet with Committee many times and it had even had a ‘kangaroo court’ so that people could raise their views. The board had said then that there were no problems. She believed all present would resolve that the board needed to be dissolved. When it was convenient to the board, they said they reported to Parliament. However at other times, they said they reported to the Minister due to treasury regulations. She wanted to inform the Minister and the Director General that the Committee still stood by this decision. They also stood by the budget vote decision that no money should go to PanSALB.

Pan South African Language Board (PanSALB) developments
Mr Paul Mashatile, Minister of Arts and Culture, said the Committee would recall in November 2011 the Director General had appointed the service provider to conduct a review and an investigation into PanSALB. This had been done in order to assess the effectiveness of the board and management. This investigation had been conducted and the report forwarded to him. The report concluded that the board of PanSALB had materially failed to complete its mandate and there were serious and deep rooted problems in relation to the functioning of the board of PanSALB and the organisation itself.

Following an analysis to see if PanSALB had met its strategic objectives and mandate, the report made the following findings:
▪ PanSALB had materially failed to meet its mandate and was unable to translate its mandate into a meaningful and aligned set of strategic objectives and performance activities. There had been a resultant lack of clarity on how the activities performed related to the mandate. Further, performance in terms of set strategic objectives were difficult to align to the mandate, and had been sub optimal. PanSALB’s delivery was based on information sourced from the 2010/11 Annual Report. It was thus submitted that although PanSALB had undertaken a range of activities it had failed to meet its mandate in a substantial manner. Also noted was that the vast majority of those interviewed confirmed PanSALB was unable to substantively meet its mandate. It needed to be noted that Prof Ngubane, Chairperson of PanSALB, had a contrary view. This was that, in his opinion, co-activities were being carried out and the provinces were performing, operating and carrying out their functions.

▪ With regard to the PanSALB board, the report finding was that there were serious and deep rooted problems in the functioning of the PanSALB board and the organisation itself. The clear view of the executives interviewed was that the board was weak and not playing its oversight role.

Minister Mashatile read the conclusion of the investigators: “There had been serious reflection made on the commitment of the board as well as its functioning. The investigators had noted that the Portfolio Committee Chairperson had indicated that the board was dysfunctional and needed to be disbanded. It was of grave concern that despite repeated requests for the minutes of board meetings of the last two years (including those of the audit and risk committee), no minutes had been supplied. We [the investigators] were not able to get these documents. It was therefore impossible under such circumstances to evaluate the true performance of the board and one could only draw an adverse inference from the fact that the minutes of the board meetings had not been supplied despite repeated requests. While there were major problems in relation to the operation functions of the board as well as the relations to the staff and the Committee, the critical area of failure in relation to exercising its responsibility was that it had allowed a situation to develop in which PanSALB as an organisation was unable to fulfil its core functions. The other key area in which the board had entirely neglected its responsibility was in relation to the evaluation of its own performance as well as the evaluation of the performance of senior executives. In addition it was clear that the board had been unable to effectively address this issue due to the fact that it only met four times a year and on those occasions it seemed to be constantly fire fighting. We [the investigators] were unable to see what steps the board had taken in relation to executive management and addressing the issue of low morale and motivation of staff as the minutes had not been made available to us for analysis.”

In light of the pivotal role of PanSALB, which he felt he did not have to over emphasise, he had considered exercising his powers in terms of section 5(a) of the PanSALB Act 59 of 1995 to dissolve the board of PanSALB. He had written to Prof Ngubane to indicate his intentions and inform him that PanSALB had seven days to reply and state why the Minister should not dissolve the board. PanSALB had responded (see  PanSALB Response). In brief the board response was it should not be dissolved due to the fact its term ended in October 2012, thus the Minister should allow the board to complete its term. PanSALB board differed with some of the conclusions of the investigators which could be seen when one read the report. The board were disputing some of the issues raised. He had written a letter saying that he would look at their response however his view was that he should still proceed. He had considered whether he should beef up the board prior to October 2012, but he felt it was better to start a fresh. The Department had begun advertising the positions. There had been a need to start advertising in order to fill the vacancies properly with a completely new board that would be able to deal with the issues. In the meantime there would be a an acting CEO/administrator during the time when there would not be a board. This person would play this role in place of the board and would need to come with a turnaround strategy to sort out management issues  which needed attention, with respect to the role of the CEO and Acting CEO. The full report could make available to the Committee by Mr Sibusiso Xaba, Director General of Department of Arts and Culture. The conclusion of this report was that this was a dysfunctional institution, and to continue to have it, did not assist the Department as its core functions were not being performed at all. The bulk of the budget of PanSALB was spent on litigation and not much was spent on key activities.

Discussion
The Chairperson pointed out that one of the issues left out had been that the former acting CEO had refused to meet the investigator. The question was why? When PanSALB had appeared before the Committee, they had stated they did not mind being investigated. However when they were investigated, they were not cooperative. Parliament, through the Office of the Speaker, had said not to appoint a CEO. However PanSALB had defied Parliament and gone ahead. She noted that Ms Pinkie Sobahle, a PanSALB board member, had resigned. She had been clear in a letter written to the Chair that she was resigning on the basis that the board had not been doing what Parliament had mandated it to do. She had resigned as a matter of integrity and had said she wanted never to fail the people of South Africa again. That board had been long dysfunctional.

The Chairperson said in terms of the investigation, there was a need to investigate
Prof Ngubane as he too had been tied to corrupt activities with the former CEO who had expelled. There were many issues happening at PanSALB. There were many things not being spoken about in the Portfolio Committee. Apparently he had been abusing car benefits and the like. The reason the board did not want to be disbanded was because they had a plan to leave things worse than before.

Provincial staff
Mr N van den Berg (DA) said it was nice to see the Minister present. He knew the Minister was busy but it was nice to see him. He wanted to clarify a few points. The Committee and the DA agreed with the finding that the PanSALB board was dysfunctional. The meeting had been to approve the SA Languages Bill and it had been clear PanSALB would play an important role in the implementation of this Bill once it was passed. It was strategic moment for the Minister to have disbanded the board. The question was how was this going to affect human resources and the staff of PanSALB in the provinces? Did this mean the staff was to continue as before or would there be any consequences for them?

Support of Disbandment
Mr van den Berg said the disbandment gave the Minister the opportunity to clean the slate and allow for PanSALB to start on a new page. This organisation had not been functional in the past.

Mr Mashatile replied that he wanted to clarify that the board had not been dissolved yet. What he had said in a letter to them was he was considering it and he had given them seven days to say why he should not do so. They had replied and asked for him not to do it and he was meeting them on 8 June 2012.

Mr S Ntapane (UDM) said he appreciated the Minister being present. He always appreciated the Minister’s presence as he always had a sober mind when dealing with issues. It had been for a long time that the Committee had felt the board needed to be dissolved. The Minister had made the effort of appointing an investigation team and commissioned the investigation. The investigation team came to the same conclusion that the board needed to be dissolved.

Ms F Mushwana (ANC) noted that it had been indicated that PanSALB was failing and they could not solve their problems on their own. It needed to be highlighted that when PanSALB board could not meet to solve their own problems, it was difficult to work as one team. She argued that one could not rely on the way that PanSALB had been operating. She recommended that the board be disbanded.

Ms T Nwamithwa-Shilubana (ANC) said that the Committee endorsed the Ministers resolution of dissolving PanSALB board. He was exercising his powers in terms of section 5(a) of the PanSALB Act. The budget vote had been done without seeing PanSALB’s strategic plan or their minutes. Ever since she had been a member of the Committee, the documentation concerning PanSALB had been an array of court cases. She wanted to reiterate that the Minister had taken a good step and the Committee supported it.

Ms L Moss (ANC) endorsed what her colleagues had said and thanked the Minister for the opportunity to speak to him. She felt there was no need for a long debate as the disbandment of the board was long overdue. The Committee was going to deal with the legislation related to the PANSALB board. She also wanted to point out that there were more profound and deep-rooted problems within the organisation. These affected not only the board but those people within the organisation who were meant to implement the policies. There was a huge problem there that included the CEO and CFO, and expenses of these two positions. One needed to ask how active these people had been and how honest they had been. Did they respect the people of South Africa in relation to their language rights? She believed that it was time to get rid of the ‘cockroaches’ and the Acting CEO needed to closely investigate the PANSALB organogram and restructure it. The Acting CEO would need to get rid of the people who were as guilty as the current board.

Ms T Lishivha (ANC) said there had long been a problem with the board and in isiszulu there is a saying that goes “there is nothing that does not come to an end”.

Mr D Mavunda (ANC) said PanSALB was a constitutional institution and board members were appointed by the Minister, in terms of the legislation. The rightful person to dissolve the board and discharge the people was the one who had appointed them, despite the fact their term had not finished. Individuals who were prepared not to fail the people of South Africa were the ones who were meant to be appointed by the Minister to replace those who failed the people.

Minister Mashatile replied that members were correct to ask what would happen with the deep rooted problems in the institution when the Languages Bill was passed as this institution was to be one of those that was critical. That was why he had said that immediately the board was dissolved, an acting CEO would be appointed who would then act in the space of the board and undertake a turnaround strategy for the institution. The institution needed to be cleaned and the Acting CEO needed to come with a turn around strategy to clean the place while there were advertisements for a new board. This process of getting a new board could take a few months. In the absence of a proper board, the Act stated that the CEO would act as a board within that period. Thus there would not be a vacuum. The CEO would be responsible for looking at all the issues such as are the provinces functioning and the organogram. If one looked at the report, one would see that the CEO and the Deputy CEO were on the same salary level and this was an anomaly. The Acting CEO would need to look at the spending of a large chunk of the budget on legal battles. Thus when the board was dissolved, someone would come in and start working so the institution continued to work. One needed to look at staff morale. What had effectively happened was the board had virtually suspended operations during the past year or so. There had been no work done except legal cases. The Department and Ministry would make sure there was no vacuum and things were done properly. In terms of legality, it was important that “they could not say that the Minister woke up one day and said go away”. If anything the Minister had taken too long to deal with this issue and the Committee had been complaining since last year. It had been decided that this needed to be done properly via an investigation. There were those who decided they did not want to be interviewed. However some had subjected themselves to the process.

The Minister thanked Members for being unanimous in saying ‘do not retreat on this, you were right to meet with them but stick to your intention to dissolve the board and let us move forward’. He felt that it was only fair to hear out the board members. Since for people appointed to a board, once it was dissolved, it became about their integrity. He needed to meet with them and assure them that this was not personal. It was just that there was an institution that was dysfunctional and the country needed this institution a great deal. He felt PanSALB was one of the most important institutions and there was a need to get it to work. He was satisfied that due process had been followed and the Act did allow the Minister to act in this way, if there were these kinds of problems. They were within the law and needed to move with speed.

Mr Mashatile thanked the Members for supporting the direction he was going in when meeting with the board on the 8 June 2012. He believed what the board members would say to him was what they had said in the letter which said they thought the board should stay. He saw that the view was unanimous that there was a need to move forward and have a proper PanSALB.

Legally sound
Mr P Ntshiqela (COPE) said he supported what the Minister had said so far. There was a need to take into account that those within the board were the type of people who liked to go to court. There was a need to prevent this and know what actions would be taken, should this happen. He supported what had been said so far and the decisions taken so far. The time had arrived to dissolve the board.

Mr Mashatile replied that the action was legally sound. He firstly wanted to say this had not been an arbitrary decision. There had been due process, proper investigations and reports. If the Department was taken to court, it would be able to defend the decision as it was taken with proper consideration.

Turn Around strategy
Mr S Ntapane (UDM) said the board had been operating since June 2008 and it was now June 2012 and its term ended in October 2012. If the board argued it should not be dissolved, what would they be able to do within the next three months? What difference would it make? He was thus of the opinion that they should be dissolved as they had already caused a lot of damage. Perhaps the plan had been to finish the damage that had been done. He thus felt the board needed to be dissolved.

Board or Institutional Disbandment
Ms H Van Schalkwyk (DA) said she appreciated being able to express herself in her language. She asked was the council to be disbanded and not the institution itself?

Mr Mashatile replied he was to dissolve the board and not the institution. PanSALB as an institution would remain and provinces would remain.

Reapplication for positions
Ms Van Schalkwyk said if the posts had been advertised, would the people who had had held the position be able to reapply for the positions?

Mr Mashatile replied that the process allowed people to reapply however there would be a panel that would sift through the applications, interviewed people and make recommendations to the Minister. If a person had been on a board that had not done well, then he doubted they would be recommended again. He was not going to say to anybody that one could not apply or be nominated. However if the panel was going to assess candidates and if it thought someone had a role to play going forward, then it could recommend them.

Appointments
Ms M Morutoa (ANC) said she was satisfied with what the Minister had decided to do. She did not see PanSALB coming out of the mess within the next few months. There could not be a turnaround strategy in a short space of time. The board had failed to produce its minutes and this made it difficult for the Commissioner to see what had transpired within the board’s term of office. The Committee knew that an exorbitant amount of money had been spent on court cases and there had been no accountability for that. The Languages Bill was to be passed soon. Now that there was this Bill and the Minister would appoint an acting CEO/administrator, she asked how long would appointing a board take?

Mr Mashatile replied that in terms of the Act, the Minister could appoint no less than 11 no more than 15 members to constitute the board. He hoped this could be done within the next four months or so. In the meantime the institution itself would not die because the Acting CEO was to come in to begin a turnaround strategy.

Final Comments
The Chairperson said she agreed with Mr Mashatile as he had the power to appoint and to dissolve the board especially on reasonable grounds. What he had was more than reasonable grounds. PanSALB should not come and play games as it was not Parliament who conducted the investigation. She believed that in terms of section 5 (1)(b) of the PanSALB Act, the CEO was a member of the board so if it was dissolved he went to. The Committee had observed that when a new board was appointed, it need not be filled with professors. She was not undermining professors but it seemed that they took the institution to be an academic institution. There was a need for some of the board to have managerial expertise as the former Acting CEO had fooled them with that. These were some of the issues that needed to be cleared. If there were people who should be charged then they needed to be charged. One could not have an investigation and have no one charged. The Committee was to release a statement that if there was corruption it needed to be shown that people had been charged. This included the board members who had run away. One board member had accused the ANC of having an agenda to destroy him. However this was a multi-party Committee and it did not caucus. Even some staff members of PanSALB were happy at the decision as the organisation had been inhumane. There were tapes of previous meetings that showed how badly people had been treated in the institution. There had been an incident where police had been called on PanSALB staff. She said that in the past the Committee had tried to assist the board to no avail. The board was full of liars. She had never seen people who lied to that extent, starting with Professor Ngubane. He maybe had a PHD in lying and this she said without any apology. The Chairperson and Deputy Chairperson of the board were the worst. It was clear that some board members did not understand what was happening. All that was to be said in the meeting on 8 June 2012 was going to be lies and the Committee had endorsed the decision. There was no reversal. Whatever was to take place, she expected the Committee would be informed. She thanked Mr Mashatile for coming.

Mr Mashatile said the Chairperson’s observations were correct in terms of the composition of the board. He had observed that. When one constituted a board there was a need for expertise such as managerial expertise, accounting and the like as they were managing institutions. When the new board was brought about that would be taken into account.

The Chairperson told Mr Mashatile that by 11June 2012 there should be no PanSALB board.

Official Use of South African Languages Bill: adoption
The Chairperson said she believed the amendments had been agreed upon in the last meeting. The Bill’s amendments had been made and the changes as recommended in the previous meeting had been included. All that was left was to adopt the Bill.

Mr Malusi Ncolo, Senior State Law Adviser, Office of the Chief State Law Adviser, said the members would recall from the previous meeting, that there were some technical issues. The Bill had been cleaned up with the aid of the committee secretary and the parliamentary legal advisor. They had managed to effect all the changes as recommended by Members. If one looked at the B version of the Bill and went to clause 11, the legal team had noted that subclause (2) had been a repetition of subclause (1) and this would be taken out. All the other amendments were fine as the Committee had recommended them.

Adv Anthea Gordon, Parliamentary Legal Advisor, said she agreed with the state law advisors. She various people had been a team going through the proofing and editing of the A-List and have given rise to the B-List. The necessary work had been done behind the scenes.

The Chairperson said she had looked at it and was happy with it but did not want to deny members the chance to speak.

Ms Morutoa said as far she was concerned she was very satisfied with the work that had been done. She moved for adoption.

Adv Anthea Gordon, Parliamentary Legal Advisor, said she agreed with the state law advisors. She commented that the various people involved with proofing and editing the amended Bill had worked as a team. The necessary work had been done behind the scenes.

The Chairperson said she had looked at the B version of the Bill and was happy with it but did not want to deny members the chance to speak.

Ms Morutoa said as far she was concerned she was very satisfied with the work that had been done. She moved for adoption.

Mr van den Berg said he wanted to say on behalf of his DA colleague and himself, he had not been in the process very long, however it had been a wonderful experience for them to work together and cooperate with everyone involved. He believed they had done good work. He had said earlier on in the process that the Committee had had to be very careful with the formulation of this Act as it would stand for many years and have a great influence on the use or non use of certain languages. He was convinced and satisfied that the Bill in its current form would stand the test of time, as well as stand up in court. It was certainly not unconstitutional and no one could be accused of being part of the formulation of an Act that was not good enough. He wanted to thank the Department as well as the officials for their cooperation. He thanked the legal experts and state law advisors as they had put their heart and soul into the process and made sure that all the legal ‘nitty gritty’ was in place, and that there would not be challenges to the Act. One last issue was as the Bill involved languages, then when it became an Act, consideration should be given to providing the Act in all official languages apart from English.

Voting on Use of Official Languages Bill [B23B-2011]
The Bill was adopted by the Committee.

The Chairperson said the Committee Report on the Languages Bill stated that the Portfolio Committee of Arts and Culture having considered the South Africa Languages Bill [B23-2011] presents the Use of Official Languages Bill [B23B-2011]. She asked members if they agreed which they did.

The Director General, Mr Sibusiso Xaba, thanked the Committee on behalf of the Minister, Deputy Minister and the Department for the way that the Bill was handled and the work that the Committee members put in. He thanked the state law advisors, parliamentary legal advisors as well as the language unit in Parliament for the work they did. It had been a long road but well worth it. The Department looked forward to the process in the House.

The Chairperson said it had been a long road for this Bill. Members had worked hard arriving in Parliament earlier than any one else to work on the Bill. She wanted to thank the members for supporting her as this was the first time she had done a Bill as a Chair. She asked the DA members to thank Dr Lotriet and Ms Duncan for the work they had done as previous members of the Committee. She thanked the members and all who had been a part of the process including the Department, the legal advisors, the media, the members of PanSALB who had been consistent in coming, the committee secretary and support staff, the language unit, the Office on Institution Supporting Democracy, and the PMG monitor. The Committee had fought for the best for South Africans. This was just the beginning as in the next five to ten years the Bill needed to state all 11 official languages.

Committee Minutes
The following minutes were adopted: 11, 12, 18, 19 October 2011; 29 February, 25 April; 23 May 2012.

The meeting was adjourned.