The Department of Science and Technology presented a clause-by-clause update of their proposed amendments. The proposed amendments were detailed to the principal Act, the clause in the Bill, the amended section of the Act, the rationale for the amendment and the impact. (See attached document).
The proposed amendments spoke to the objective of the Bill, which was to harmonise and standardise the appointment processes for all entities, as well the power of the Minister to oversee these processes, rather than the Committee. The Committee Members discussed the proposed amendments to Clauses 9, section 3(1) where it was determined that the wording in the Act did not reflect the rationale nor the impact as presented by the Department.
The Committee members discussed the issue of the separation of powers that the Bill proposed. The Parliamentary Legal advisor said there was nothing unconstitutional about the proposal, and the oversight role of the Committee should be managed by the internal processes of the Committee. The Committee agreed that this issue would be discussed and decided upon the following day.
The Committee further focussed on the wording of Clause 9, section 3(1) that asked for the removal of professional registration requirements, and asked the Department to address the wording.
The Committee conditionally accepted the presentation of the Department, pending rectification of the wording of Clause 9, section 3(1). There would be a clause-by-clause discussion by the Committee the following day, in collaboration with the necessary legal advisors, to clarify any issues.
The Chairperson apologised for the late start to the meeting and gave over to the Department of Science and Technology (DST) for the briefing.
Clause-by-clause briefing by DST on Science and Technology Laws Amendment Bill [B36-2013]
(See attached document.)
Mr Brian Muthwa, DST Head of Legal Services, explained the document would highlight the principal Act, the clause in the Bill, the rationale for the amendment and the impact it would have.
Scientific Research Council Act, 1988
Proposed amendments to Clause 1, sections 7(2), 7(2A), 7(3B) and 7(8-10) removed a requirement for the Minister to consult with the board, improved efficiency, ensured a wider net for potential candidates, and the power to extend the term of office of members beyond the prescribed period was limited to six months and ensured certainty.
Clause 2, section 7A, ensured consistency in the grounds and processes for the dissolution and reconstitution of the board and prevented the dysfunction of the entity.
Clause 3, sections 10(1) and 10(3), ensured the recruitment of appropriate personnel to manage the entity and clarified the eligibility for the re-appointment of the Chief Executive Officer (CEO). Section 10(3) on page 4 proposed substitution of the words “subject to section 11(2)”, with the words “in consultation with the Minister”, to ensure consistency.
National Research Foundation Act, 1998
Proposed amendments to Clause 4, sections 6(1), 6(2), 6(3), 6(4), 6(5A), 6(5C), 6(6) and 6(9) would strengthen governance of the National Research Foundation (NRF), standardised appointments of board processes, eliminated potential delays in the appointment processes, corrected technical errors, and avoided exhaustive listings. These amendments would eliminate the possibility of non-compliance with provisions, catered for practical realities such as unforeseen delays and harmonised the grounds for the disqualification of members of the board and termination of membership of the board, and the filling of vacancies on the board with other entities. Section 6(2) proposed adding of words “on Innovation” after the word “National Advisory Council” to correct a typing error and to omit the words “and (b)” at the end of the paragraph to effect a technical correction.
Clause 5, section 6A, ensured consistency in the grounds of the process for the dissolution and reconstitution of the board. Clause 6, section 10(1) ensured the recruitment of appropriate personnel to manage the entity and promoted transparency and accountability.
Clause 6, section 10(3), proposed the insertion of “in consultation with the Minister” to harmonise the process for the determination of the conditions of service of the CEO of the foundation with other entities.
Clause 7, section 23, provided the power to appoint temporary or acting members which were not provided for.
Academy of Science of South Africa Act, 2001
Proposed amendments to Clause 8, section 7(2B) catered for practical realities such unforeseen delays with regards to the board appointment or replacement processes.
Natural Scientific Professions Act, 2003
Proposed amendments to Clause 9, section 3(1), excluded professional registration requirements for state representatives on the board and eliminated the practical difficulty experienced in recruiting the South African Council for Natural Scientific Professions (SACNASP) board.
Clause 10, section 4(2), removed the requirement for the Minister to prescribe the manner of appointing a panel of experts to prepare a shortlist of nominated candidates. This would ensure consistency in the appointment process with other entities.
Clause 11, sections 5(1), 5(3) and 5(4) harmonised the process for the extension of the term of office of members of the board with other entities and harmonised the filling of board vacancy processes with other entities.
The provision in clause 12, section 6(4), was rendered redundant by the proposed amendment of the board extension process.
Clause 13, section 7A ensured consistency in the grounds and process for the dissolution and reconstitution of the boards.
Clause 14, section 8(1) ensured the recruitment of appropriate personnel to manage the entity and it was proposed to insert the word “in consultation with the Minister’”, after the words “as it may”, to ensure consistency.
Human Sciences Research Council Act, 2008
Clause 15, sections 5(3), 5(9), and 5(13) eliminated the potential delays in the process for the appointment of board members, harmonised the filling of board vacancies with other entities, and catered for practical realities such as unforeseen delays with regard to the board appointment or replacement processes. The introduction of a new process for the dissolution and reconstitution of the board had rendered the provision in section 5(8) redundant, section (11) eliminated possibility of non-compliance with the provision where the staggering of board appointments were proposed to be dealt with administratively and section 5(12) catered for a situation where the public nomination process did not result in the recruitment of appropriate candidates. This would ensure effective redress of potential shortcomings, in a transparent manner.
Clause 16, section 9A ensured consistency in the grounds and process for the dissolution and reconstitution of the boards and clause 17, section 10(1) and 10(4) harmonised the process for the appointment of the CEO. Proposed amendments to Clause 17, section 10(4) was to omit the word “subject to section 11(2)” and insert the word “in consultation with the Minister”, after the words “as it may”, to ensure consistency. The introduction of a new process for the dissolution and reconstitution of the board had rendered the provision in Clause 18, section 17 redundant.
Technology Innovation Agency Act, 2008
Clause 19, sections 5(4) and 5(5), standardised the appointment of board process by prescribing a formal advertising process for public nomination and eliminated potential delays in the process of the appointment of board members, and a possible conflict with the principle of separation of powers. The introduction of a new process for the dissolution and reconstitution of the boards had rendered the provisions in Clause 19, sections 5(6) and 5(7), redundant. Sections 5(8) and 5(9) provided for broad representivity and catered for a situation where the public nomination process did not result in the recruitment of appropriate candidates.
Clause 20, section 7 corrected technical errors and Clause 21, section 8(4) catered for practical realities such as unforeseen delays with regards to the board appointment or replacement processes.
Clause 22, section 10A ensured consistency in the grounds and process for the dissolution and reconstitution of the board, and Clause 23, sections 11(1) and 11(7) harmonised the process for the appointment and the determination of conditions of services of the CEO of the Agency.
South Africa National Space Agency Act, 2008
Clause 24, sections 7(1) and 7(3) eliminated potential delays in the process for the appointment of board members and catered for the situation where the public nomination process did not result in the recruitment of appropriate candidates. The introduction of a new process for the dissolution and reconstitution of the boards rendered the provision in Clause 25, section 8(4) redundant.
Clause 25, sections 8(5A) and 8(7), catered for practical realities such as unforeseen delays with regard to the appointment processes, and harmonised the filling of board vacancies process with other entities.
Clause 26, section 13A, ensured consistency in the grounds and processes for the dissolution and reconstitution of the board and Clause 27, sections 14(1) and 14(3) harmonised the process for the appointment and the determination of conditions of service of the CEO of the Agency. Proposed amendments to Clause 27, section 14(11) also included insertion of the following sub-clause: “(c) by the deletion of subsection (11)” because it removed the cap on the term for the appointment of the CEO and to ensure consistency.
The Chairperson thanked the Department for the presentation and asked the Parliamentary Legal Advisor to weigh in, especially on the additional proposed amendments.
Ms Barbara Loots, Parliamentary Legal Advisor, said the changes were of a technical nature and none of the proposed amendments went outside the ambit of the Bill. The only substantive change referred to Clause 6, which spoke to consultation between the Minister and the board with regard to the National Research Foundation Act for consistency purposes.
Mr P Smith (IFP) said on a previous occasion the Chairperson had made reference to the fact that Parliament was applying its mind to a consistent approach to the appointment and governance issues related to the boards, and asked if this Bill was consistent with that framework and what the status of that approach was.
The Chairperson replied there was neither a framework nor a time frame established yet.
Mr Smith asked if the processes were identical for all the entities now, i.e. if this was a completely standardised and uniform approach and if it was not, the Department should highlight which entities were treated differently. The motivations put forward by the Department for excluding Parliament from the processes were to address inefficiencies and eliminate delays, but Parliament had never been responsible for any delays, and he asked what inefficiencies would be addressed by taking Parliament out of the loop.
Mr Muthwa replied that processes for all entities would be identical, except for the Academy of Science of South Africa (ASSAf), because the members of the ASSAf Council were appointed by the members of the academy, and because ASSAf was independent from the government and this was a global process for such science councils.
Mr Thulani Mavuso, DST Chief Operations Officer, replied that the delays mentioned were not due to Parliament, but due to certain processes that the Department had to follow. The big issue was the separation of power, and this issue would, according to the Chairperson, be dealt with the following day.
Ms Loots said four trends had been identified that addressed the Committee’s oversight role with regard to the Bill, and would be discussed the following day. The Department’s proposal of taking out the Committee’s legislatively assigned recommending role in the Bill did not take away the Committee’s constitutionally mandated oversight powers. The legislatively assigned responsibilities were additional, and were a process where the Committee got involved, but taking those responsibilities away was not unconstitutional in a sense that it did not limit or restrict the Committee’s mandate as it stood. It was up to the Committee’s internal processes to manage how the oversight would be exercised.
The principal Act was considered as it read currently and, apart from the one instance where there was an ‘in consultation’ reference, which the Department agreed infringed on the Committee’s own constitutional powers, because the Committee could not oversee something it was party to, that reference would be removed. Everything else where there was reference to ‘after consultation’, involvement of the Committee or the Committee ‘recommending’ was not constitutionally unsound. The Police Services Act allowed for the Minister to run the process and appointments, but the Minister was called on by the relevant committee to report on those processes, or a broader role could be agreed upon with relation to the report back required by the Minister. There were various degrees that would be highlighted the following day and apart from ‘in consultation’, everything else was constitutional and came down to a policy issue for the Committee in the end.
Mr Smith said the response to his question on whether the removal of Parliament was justified had not been fully addressed. The document presented by the Department only touched on potential inefficiencies, and there had been no evidence thus far that Parliament caused inefficiencies in the processes.
Mr Mavuso said the delays were not caused by Parliament, but by the legislation.
The Chairperson said there were some delays caused by Parliament, because sometimes Members did not show up for consultations and they had to be repeated. The only reason why Parliament was proposed to be removed was the separation of powers issue, and that would be addressed the following day.
Mr Mavuso agreed and said those delays were entrenched in the legislative procedures. The reference to inefficiencies in the document should be removed.
Ms M Dunjwa (ANC) said it was clear that the issue was separation of power, so that the oversight was not eroded and could be exercised without fear or favour. She asked if Clause 9 could be reworded, because it seemed that the word ‘exclude’ created the impression that anyone could be considered to represent the board.
Mr Smith said the words, “professional natural scientists” did not imply a requirement of registration.
Mr Mavuso said the word ‘exclude’ was used in this document only for clarifying purposes, but was not in the actual legislation. The legislation was clear, and did not refer to qualifications of individuals, but to the requirements for those qualified individuals to be registered. The principal Act did not have this provision and this Clause had been inserted with the Science and Technology Laws Amendment Bill in 2010, and that had been an error. This proposed amendment would basically revert back to the wording of the principle Act.
The Chairperson said that was exactly the basis for the arguments in Parliament when the Bill was passed, because despite credible qualifications in certain fields, employment was secured on the provision of registration to the relevant councils.
Mr Mavuso said Mr Smith had just drawn his attention to the fact that the Act talked about no fewer than 12 and no more than 18 that had to be professional natural scientists, and explained this was correct in relation to other members of the Council, but this proposed relaxation of the Act referred to those employed by the State.
Mr Smith said the wording in the principal Act did not specify that those employed by the State should be scientists.
Mr Mavuso agreed, but said it would ensure that those chosen to serve would be able to participate meaningfully. It was not included in the Act, because it would limit future appointments.
Mr Smith said that was not correct, because the impression was given that the departmental representatives would be professional scientists, whether certified or not, but the law that was being written basically said anybody could be appointed, and on the side it was decided that those individuals should be scientists.
The Chairperson suggested the wording ‘scientifically qualified’.
Mr Smith objected to the way Clause 9 had been handled. The wording in the document did not remove professional registration requirements; it removed the requirements to be a scientist. The decision the Department had made in respect of this would be to find scientists – that was a policy issue and had nothing to do with the law.
Mr Mavuso said that with consultation, it could be reworded to suit the proposed amendments.
Ms J Kloppers-Lourens (DA) referred to the last page of the document and asked if it was due to sloppy work from the Department that those changes had not been initially included in the proposed amendments. She said the presentation was vague and referred to Clause 15, section 5(12), and asked why the public nomination process did not result in the recruitment of appropriate candidates, what the transparent manner entailed, as well as Clause 9, section 3(1), and asked why professional registration requirements for state representatives on the board should be excluded.
The Chairperson said the document provided by the Department clearly sectioned the Principal Act, the Clause in the Bill, the amended section of the Act, the rationale for the amendments and the impact the proposed amendments would have. He could not understand how it was not clear enough.
Ms Kloppers-Lourens said she could read, but there were no explanations behind some of the proposed amendments and these needed clarification.
Mr Mavuso explained the proposed amendments to Clause 15, and named as an example the South African National Space Agency (SANSA), where the public nomination process had not yielded any positive results, and the legislation was silent on specifying other processes to identify board members. The legislation should provide some kind of mechanism for the Minister to identify prospective candidates where the relevant sectors could be approached to find suitable board members. The proposed amendments to Clause 9 referred to the requirements of the Act, that there should be representatives from government departments, but the people that were nominated to sit on the SACNASP were not registered as natural scientists and it was difficult to reconstitute the board. This clause would allow those natural scientists that were nominated by their respective departments to represent those departments on SACNASP without being registered. The transparent process was not specified in the Bill, but it would mean that the Minister would demonstrate to the public how the names for the prospective board members had been acquired.
Mr Muthwa said the last page addressed technical issues and typos, and one or two standardisation issues with regard to the determination of conditions of service.
The Chairperson said the presentation was conditionally accepted, pending the rectification of Clause 9, because the presentation should represent clearly what the proposed amendments were.
The Chairperson said the Committee would convene the following day, and the meeting was adjourned.
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