Science and Technology Laws Amendment Bill [B36-2013]: further deliberations

Science and Technology

30 October 2013
Chairperson: Mr N Ngcobo (ANC)
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Meeting Summary

The Portfolio Committee on Science and Technology, in collaboration with the Parliamentary Legal Advisor and the State Law Advisor, went through the proposed amendments clause by clause. The objective of the Department was to harmonise the provisions of the Act so that the appointment processes for Chief Executive Officers (CEOs) and board members could be a standardised process across all entities.  This Bill would remove the Committee’s recommending role in these appointment processes, although the constitutionally mandated oversight role would remain.  The Legal Advisor prepared four legal options for the Committee, which the Committee deliberated, but could not decide upon because of quorum.

The overall clauses dealt with the removal of the Committee’s recommending role and the insertion of the oversight function of the Minister to report to the National Assembly.  During the discussion, the Committee found numerous instances in the provisions of the Bill which were not harmonised, and asked the Department to implement changes to the provisions and report back to the Committee.

Some Committee members felt the Department should harmonise all the legislation at once, but the Department asked that once this Bill was passed, the Department would start the processes of harmonisation of all the legislation that governed the entities.

Meeting report

The Chairperson welcomed everyone to the meeting and asked the Parliamentary Legal Advisor, Ms Barbara Loots, to take the Committee through the clauses and the proposed amendments.

Committee discussion on the Science and Technology Laws Amendment Bill [B36-2013]

Ms Loots said she had circulated a draft report of the tabled proposed amendments by the Department, as well as the additional technical amendments.  The Bill was now in the hands of the Committee and the Committee could amend the Bill or the clauses as the Committee saw fit.

Clause 1

Clause 1 spoke to amending the Scientific Research Council Act, 1988, and the issue emanating from the previous day was the role of the Committee regarding appointments to the Council, and how the Committee would exercise its oversight role.  There were four legal options for Committee involvement.  The one proposed by the Department was to take out all the official references to the National Assembly (NA) – and that in itself was not illegal, it merely left Parliament with its constitutionally assigned mandate.   Another option contained in the principal Act would have the Committee assume a recommending role, but not as an appointing authority.

Mr M Nonkonyana (ANC) asked if the clause could be pinpointed to exactly where the proposed removal of the Committee’s oversight role was.

Ms Loots said the Bill contained clauses throughout where it roughly said, ‘the members of the board must be appointed by the Minister after consultation with the Committee of the NA,” which was proposed to be amended by the Department, but those amendments did not alter the Committee’s constitutional mandate.  The suggestion was to add to the clause some mechanism to empower the Committee to exercise its constitutionally mandated role and the roughly drafted proposed amendment read: “the Minister should report on any decision to appoint a member of the board, as well as confirm compliance with the requirements to the NA within 30 days”.

Ms J Kloppers-Lourens (DA) said the 30 days also depended on the Committee’s availability, taking recess into account, and asked if it could not be more flexible, depending on the programme.

The Chairperson replied the Department could send a formal notice to the Committee of its intention.

Ms Loots said Parliament allowed the Committee to organise its own internal procedures.  The Committee could then, in term of its programme, decide how the Committee wished to process this.  These were pre-public submissions and were not steadfast until the Committee voted clause by clause.  The 30 days was a policy-based decision, and that too was open to change.

Ms Kloppers-Lourens referred to Clause 1, section 7(2A) that talked about ‘publication in the gazette and two national newspapers’, and asked if it could be more specific in terms of languages and to ensure it was in line with the Languages Act.

Ms Loots replied the Languages Act specifically spoke to the National Departments and their interaction with the public, and said it could be drafted into the Bill.

Mr Brian Muthwa, Chief Director of  Legal Services, DST, agreed and said reference to the Languages Act could be drafted into the Bill, and the Department would investigate ways this could be incorporated and satisfied compliance requirements without draining resources.

Ms Kloppers-Lourens said there had been numerous references the previous day to the non-responses from the public, and this could be due to language constraints.

Mr P Smith (IFP) said the wording in Clause 1, Section 8(a) and 8(b) did not make sense, since if a person resigned, they would have vacated the office, but the wording suggested it was not the position that was held, but the room.

Mr Muthwa said the wording would be revised and amended.

Ms Kloppers-Lourens referred to Clause 1, section 9(a) where it said, “the Minister may appoint any person to fill a vacancy which occurs as a result of a member who has vacated his or her office” and asked for clarification.

Mr Smith said the presumption was if a person vacated the office, the replacement would be appointed from the short list.

Mr Muthwa agreed with the presumption, and said it would be revised to see how it could be incorporated into the Bill.

Mr Smith referred to Clause 1(10), and said half the Members of Parliament would be excluded from serving on a board due to the wording in the provisions.  He asked if it could be reworded to reflect that it was certain types of behaviour that needed to be sanctioned.

The Chairperson said it was a good example of what had happened to Mr Tokyo Sexwale in the United States, where he had still been listed as a terrorist.

Mr Mulcahy said the whole provision provided clarity where it stated that a person may not be appointed a, member of the board if that person was not a citizen or permanent resident in the Republic of South Africa, or has after the commencement of the Constitution been convicted of an offense whether in South Africa or elsewhere.  If a person had been awarded citizenship, then the offense would have been vetted in any case.

Mr Smith said he referred to elsewhere specifically.

Mr Muthwa suggested that the crimes that would exclude appointed were specifically listed, e.g. fraud.

The Chairperson suggested a phrase like ‘other than political’ to be included.

Mr Martin Mulcahy, Special Advisor to the DST, said it would create grey areas, because people convicted as terrorists for legitimate terrorist crimes could be eligible for appointment.

Ms P Mocumi (ANC) said the citizen aspect of the provision excluded such persons automatically, and if the person had been awarded citizenship, it would have been vetted.

Ms Loots said the standard of the appointments could be set by naming the specific crimes which related to the position specifically.   For example, a financial position could exclude a person convicted of fraud, because minor crimes such as jay walking in some overseas countries did not correlate with the provision in the Bill.

Ms Mocumi said if a crime was committed in one country and citizenship was awarded in another country regardless, the vetting did not work.

Mr Smith said there were good crimes and bad crimes, because in some countries one could be convicted for being a Green Peace activist.

Mr Luke Hilton, State Law Advisor, said the danger of enumerating the crimes was that one could be missed, or it may not be recognised in all jurisdictions, and covering every possible crime could become a bureaucratic nightmare.

Mr Muthwa suggested adoption of the wording in the Natural Scientific Professions Act, which qualified the crimes by sectioning them according to the offences related to the position.

Clause 2

Ms Loots said Clause 2 incorporated a standardised dissolution clause, and the suggested amendment with regard to the Committee’s role was: “the Minister should report on the decision to dissolve the board, as well as the reasons for the dissolution to the NA, within 30 days.”  This approach was recently taken in the amendment of the South African Police Services Act by the Portfolio Committee on Police.

Clause 3

In Clause 3, the appointment responsibility was assigned to the board and the technical amendments inserted by the Department were that the board should act in consultation with the Minister.  This clause did not alter anything with regard to Parliament, but was merely an internal mechanism of communication between the Minister and the board.

Mr Nonkonyana referred to Clause 3 and said, with regard to the appointment of the Chief Executive Officer (CEO), that the wording stated the appointment of a “suitably skilled and qualified person”, but the Committee was used to a “fit and proper person,” and asked for clarification.

Mr Muthwa said the expression “fit and proper” was usually used in the appointment of legal services, but to the appointment of CEOs of boards, there was no precedent for the term “suitably skilled and qualified”.  The “fit and proper” qualification was not applicable to anything other than legal appointments.

Mr P Smith (IFP) said the ‘fit’ in “fit and proper” referred to the skill and qualifications of a person and ‘proper’ referred to behaviour.   The question was whether there was a need for suitable behaviour in this kind of public service, because someone with dubious morals could still be a very good CEO.

Mr Hilton said the expression “suitably skilled and qualified” was being used in the Local Government Municipal Systems Act, and there was a precedent in Mabaso vs Local Government Municipality, where the court case hinged on whether Mr Mabaso was a suitably skilled and qualified person to be appointed municipal manager.  The expression “fit and proper” was used in the appointment of legal services, and “suitably skilled and qualified” in other administrative positions.

Ms Kloppers-Lourens asked if “suitably skilled and qualified” included experience.

Ms Loots said within this context, “fit and proper” spoke to insolvency or mental fitness, i.e. if this person functioned properly to fulfil the requirements of the job, whereas “suitably skilled” could refer to the amount of skill or years of experience and “qualified” referred to the base requirements of the job.

Mr Muthwa said that the term “qualified” was a broad term, which also referred to the skills and years of experience which qualified a person for a position.

Ms Kloppers-Lourens said it was an important interpretation of the law, because it might land up in court.

Mr Smith asked if there would be a substantive discussion on the extent of Parliament’s role within the context of the amendments.

The Chairperson said once the Committee went through all the amendments, the discussion on the merits of the role of the Committee would be discussed.

Ms Kloppers-Lourens referred to Clause 3, section 10(3), which stated that “the chief executive officer shall be appointed for a period of not more than five years and shall be eligible for re-appointment.”  She asked if it was possible for someone to be appointed for two consecutive terms and to be appointed for a third non-consecutive term.

Mr Muthwa replied that the clause referred to the appointment of the CEO, but it was possible in terms of board members, because the Act did not specify otherwise.

The Chairperson said the question was still viable, even if it was for the CEO.

Mr  Mulcahy said the clause regarding the appointment of the CEO did not say that the appointment was limited to two terms.   The term was limited to five years, and the CEO may be reappointed and reappointed again.

Mr Smith said the positions of board members and CEOs were not the same, and whether the term of office was restricted for one should not necessarily apply to the other.  The CEO should stay on as long as the job was performed satisfactorily, but the issue of board members was different, and should be clarified.

Mr Muthwa said the legislation provided for two consecutive terms, and the re-appointment for one more term.  There was a Department of Public Service Administration (DPSA) document that spoke to this issue, and it would be consulted to clarify the situation.

The Chairperson said these issues needed to be checked so that there were no gaps in the legislation.

Mr Smith said the wording also suggested ambiguity, because the assumption was the eligibility for re-appointment would come at the end of the five years and could very well be after a few, or many, years.

Mr Mulcahy said the ambiguity was cleared up in the principal act in sections 3 and 3(a), where it stated that no member may serve more than two consecutive terms, and by implication it meant if they were not consecutive, reappointments could occur.

Clause 4 

Ms Loots said in Clause 4, subsection 2, paragraph b, the Department asked for a technical amendment where the full name of the entity, the National Advisory Council on Innovation, be added.  The clause asked for the removal of the amendment of NA consultation in the appointment process.  The proposed insertion would ask the Minister to report on the appointment, as well as the compliance on the requirements for appointment steps, and this would speak to the issue of transparency which Committee members had raised the previous day.

Mr Smith said the wording of Clause 4 was puzzling, because the National Research Foundation (NRF) was a general research structure, but required members of the board to have achieved distinction in the field of research and technology (as a combination), technology management, business or public affairs.  Clause 3 was all about technology, but Clause 4 spoke to broad scientific disciplines.  The term “civil society” was taken out in Clause 3, but included in Clause 4.   He was not sure that Clauses 3 and 4 spoke to each other or to the nature of the Foundation.

Mr Muthwa said Clause 3 related to the achievement of distinction, or the skill in research and technology, or technology management, business or public affairs. The term “civil society” had been removed because there was no distinction that could be achieved.

Mr Smith said the Bill specified ‘distinction’, and not ‘skill’, and said distinction in civil society was possible because there were civil activists.

Mr Muthwa said ‘public affairs’ and 'civil society’ felt like the same thing to the Department, but perhaps ‘civil society’ should have been included.

Mr Smith said both Clauses 3 and 4 should have either ‘public affairs’ or ‘civil society,’ and he asked about the technology issue of the clauses.

Mr Mulcahy said the Department took the point that there should be a comma between ‘research technology’, because some of the top researchers did not focus on technology, and the NRF also focused on social aspects.  He confirmed that the comma would be inserted, and ‘civil society’ would be kept for both Clauses 3 and 4.

Ms Kloppers-Lourens noted the Languages Act should be incorporated into Clause 4 as well, and referred to section (b).  She asked if the two persons to be nominated by the National Advisory Council on Innovation (NACI) and the Council for Higher Education ( CHE)were to be one by each entity, and what happened if there was a disagreement.

Mr Muthwa said the intention was that each entity nominated one person.

Ms Loots said the Minister was the appointing authority, and if each entity only posed one nomination, then it basically told the Minister who to appoint.

Mr Muthwa replied that the entities were approached to give the Minister the nomination of the entity, selected through their own internal processes.

Mr Mulcahy suggested the provision be reworded to, ‘two other members to be appointed by the Minister after nominations had been received from NACI and CHE’.

Mr Smith said the processes read that these entities each nominated the person that would represent the entities in the NRF.  The wording should reflect the intention, because the Minister did not select his choices from a short list.

Mr Mulcahy said the Minister appointed the board, and it would now seem that NACI and CHE appointed the board members, because ultimately the onus was on the Minister.

Mr Hilton said the Minister could not be held accountable for board members he did not appoint, and asked if the provision could not be revised to include at least one more nomination each that reflected that the Minister had made a choice in the appointment process.

Mr Smith referred to Clause 9, Section 3 as an equivalent clause, and said that nowhere in Clause 9 did it show that the Minister had a choice in appointing the nominated board members.

The Chairperson asked how Parliament could hold the Minister responsible for board members he did not appoint.

Mr Mulcahy said the point was being belaboured.  The Minister was responsible for the appointment of the board – if the Minister was not happy with the nominations, he could send the nominations back and ask for other nominations.

Mr Smith said that was acceptable, but it should be made clear if the appointments were made from a short list, or from two nominations.  Whether it had an effect or not, there should be no ambiguity.

Mr Mulcahy asked if it could be rephrased to ‘two other members to be appointed by the Minister after nominations received by the two entities,’ and the Committee agreed.

Ms Kloppers-Lourens referred to Clause 4(2) (c), and asked if ‘independent’ could be inserted before ‘panel’ to harmonise the processes, and Mr Muthwa agreed.

Clause 5

Ms Loots stated clause 5 was similar to the previous dissolution clause, and proposed insertion to the effect that the Minister should report the dissolution and the reasons thereof to the NA within 30 days.

Clause 6 

Clause 6 proposed some minor technical amendments.

Mr Nonkonyana said the heading of Clause 6 referred to the ‘president’, while the content referred to the 'chief executive officer’, and asked if a change should not be effected to harmonise the process.

Mr Muthwa said the amendment had already been done three years ago and the change had been effected, but with the printing of the document it had been found that it had not been carried through.

Ms Loots said it was a technical amendment, and although it would be changed now, it would not be listed with the proposed amendments, because it was already amended and not captured due to an administrative error.

Mr Smith referred to Clause 6, section 4(a) and (b) and said although this was not on the proposed amendments, it should be harmonised for all the entities, where the manner in which the acting CEO was regulated should be the same for all the bodies.

Ms Loots clarified, and said the Committee wanted to standardise the changes throughout the Bill, and this might delay the process if some of the clauses were to be opened that were not initially proposed to be amended, by asking permission from the NA.

Mr Smith asked for clarification of this process, because the tenor of the Act would not be changed since it would just be tidying up the language of an existing provision.

Ms Loots said the Bill was now before the Committee, based on the clauses opened by the Department for amendments.  If all these subsection 4 related, or similar, clauses were not currently in the Bill before the Committee, they needed to be found.  They could be contained in different clauses throughout the different Acts, and the NA should be alerted.

The Committtee Secretary, Ms Shanaaz Isaacs, said the procedure need not be extensive because if the scope was to be broadened, the NA could be alerted and the processes to harmonise could be initiated and finalised by the next sitting.

Mr Smith said he had looked through the Bill, and the processes for the Acting CEO differed from entity to entity.   He asked why they could not be harmonised, as this was the objective of the Bill.

Mr Mavuso agreed, but said the DST had considered the amendments and had looked at the key areas that needed improvement, which were the appointment of the boards and the appointment of the CEOs.  Some of the areas raised by Mr Smith did not raise administrative inefficiencies or challenges for the Department.  In future, all principal Acts needed to be amended and harmonised to address the inefficiencies.

Ms Kloppers-Lourens asked why the harmonisation could not be done properly once, and why this process should be repeated.

Mr Mavuso said the point was taken that the harmonisation across the board should be done, but the issue of the South African Council for Natural Scientific Professions (SACNASP) was key in relation to the reconstitution of the board that was imminent.   He asked the Committee to allow the sections that were identified be processed, with the understanding that all the entities over the next two years would be cleaned up.  The DST would initiate a process right after this Bill was passed that ensure all the legislation that governed the entities would be harmonised and standardised.

Mr Smith said it was a reasonable request, as long as the caveat was adhered to, and should be reported to the Committee and could even be adopted in the Annual Reporting Plan (APP).

Ms Kloppers-Lourens said the DST should have done a proper job from the start.

Clause 7

Ms Loots highlighted Clause 7, and only technical amendments were proposed by the deletion of redundant aspects.

Clause 8

Clause 8 dealt with disqualification and the filling of vacancies, and once again the insertion of a provision that the Minister should report to the Committee, as well as the compliance requirements.

Mr Smith referred to Clause 7(1)(5) and the earlier discussion about the discretion of the Minister on the appointments to the board.    This provision refuted that, because it stated that the Minister ‘must’ appoint members nominated by the Council and the Minister had no discretion to reject those nominated.

Mr Mulcahy said the Council was a representative structure, as discussed the previous day.

Clause 9

Clause 9 amended the proposal by the Committee members yesterday, that the rationale behind the proposed amendments should speak to the clause.  The ‘professional natural scientist’ was changed to ‘scientist’, and a reporting mechanism by the Minister to the NA had been inserted as subsection 3.

Clause 10

Clause 10 dealt with the nomination process that called for appointments to the panel, with the Minister as the appointing authority.  Similarly, a reporting function by the Minister to the NA was inserted.

Mr Smith referred to section 5, saying it was not part of the amendments, but spoke to the issue raised the day before.   This dealt with the question of insufficient nominees received from public nominations, and the Minister could appoint a panel to make appointments.   He asked if this provision was for all the boards.

Mr Muthwa replied that it may have to be inserted, because the other provision stated only that the Minister would exercise the appointing power in a transparent manner, without discussing ways of getting potential nominees.

Ms Kloppers-Lourens referred to Clause 10, section 2(a), and said the Languages Act should be incorporated into this section of the Bill as well, in light of the harmonisation process.

Mr Smith referred to the same section and asked why this provision called for publication in only one newspaper per province.

Mr Mavuso said there was no specific reason, and this provision could be standardised to two national newspapers, as per harmonisation of the Bill.

Ms Kloppers- Lourens referred to Clause 10, section 2(b) and asked for the word ‘independent’ to be inserted before 'panel.'

Clause 11

Clause 11 dealt with the terms of office of members of the Council.  The DST proposed technical amendments as to how this process should run, and a reporting function to Parliament was inserted.

Clause 12

In Clause 12, subsection 4, the ‘in consultation with the Council’ was removed and a reporting mechanism to Parliament was inserted.

Mr Smith said the provision in Clause 12 said that a board member could be removed if such a person was no longer considered to be “fit and proper,” and the implication would be that to be a board member, a person would initially needed to be considered “fit and proper”.  He asked if the provision should be included for all boards.

Mr Muthwa said the earlier discussion referred to the appointment of CEOs.

Mr Smith agreed, and said the “fit and proper “requirement had not been applied to any board member until this point, and either all needed to be “fit and proper”, or none of the board members.

Mr Mavuso said most of the principal Acts were written at different times, and the “fit and proper” should be incorporated throughout the provisions for board member appointment, whatever the term may entail for that particular entity.

The Chairperson said this matter had been dealt with earlier, when Mr Mavuso had not yet arrived, and the response from Mr Mavuso differed from what had earlier been decided.   This needed to be addressed by the Department.

Mr Smith said the issue of “fit and proper” had been discussed in relation to the appointment of CEOs and not board members, because it had not been in the Bill.   If the provision was suddenly now discussed with regard to this board, then it should be applied to all the boards.  The notion to park this clause for the two year review process was unacceptable, because this Bill was focussed entirely on the composition of the boards and the process by which members were appointed.   It was not a peripheral matter, but core to the harmonisation process that should either be removed or incorporated into the other provisions for the composition of the boards.

Mr Mavuso said the DST would have to identify all the related sections and insert the provision for all the boards.

Mr Smith said if this exercise required permission from Parliament, then it needed to be done regardless, because this was core to the Bill.

Ms Loots said those clauses were already on the table and could be amended.

Ms Kloppers-Lourens referred to Clause 12, section 4(a), and asked clarification on the list from which the Minister could choose members.

Mr Muthwa said it had earlier been decided that the Minister would revert back to the short list when a replacement was needed.

Clause 13

Clause 13 referred to the dissolution of the Council, and a reporting mechanism to Parliament was inserted.

Clause 14

Clause 14 referred to the appointment of the CEO with the requirements of being “suitably skilled and qualified”, the insertion of ‘in consultation with the Minister,’ and a reporting mechanism to Parliament.

Clause 15

Clause 15, section 5, was where Parliament’s recommending role was removed and a reporting mechanism was inserted, with a proposed deletion of subsection 7(b), because that reporting mechanism was limiting.

Ms Kloppers-Louerens referred to the harmonisation efforts, and asked the Languages Act to be incorporated, as well as the insertion of ‘independent’ before 'panel.'   Section 3(c) mentioned ‘curriculum vitae’ for the first time in the Bill, and she asked if it could not be inserted throughout the relevant provisions.

Mr Muthwa said ‘curriculum vitae’ could be deleted, right after ‘shortlist of candidates’.

The Chairperson said the panel should receive the curriculum vitae (CV) of members, because members were appointed from a short list provided by the panel.

Mr Smith referred to Clause 15, section 6(d), and said this section had been reviewed and needed to be removed.   He asked if the ‘ceased office’ in section 9 was accurate with regard to the harmonisation of the Bill, and with regard to section 12, whether the standard nomination process did not make provision for republishing, because if the results were not satisfactory, the default position was that the Minister made the appointments.

Mr Mavuso said that suited the Department, because there was a certain time frame attached to the appointment of board members.

Mr Smith said there were no actual provisions in the Bill that guided what the Minister actually did, to get the nominations for appointment.

Mr Mavuso said the matter had been raised the previous day and the Department had explained that the processes had been incorporated  by the phrase ‘in a transparent manner’, where the Minister could approach entities or organisations directly, but had to be accountable to Parliament and the public regarding these processes.

Mr Smith said section 12 should then be reworded by replacing ‘may’ with ‘must’, and ‘in a transparent manner’ should be inserted after ‘must’.

The Chairperson agreed, and said ‘may’ implied choice.

Ms Kloppers-Lourens suggested the CVs be kept in the Bill, because if the Minister had to appoint, he should keep the CVs with him so that he had all the information on the candidate when he reported on candidates.

The Chairperson said the Minister appointed a panel to collect CVs and to contact shortlisted people.

Mr Mulcahy said the panel would have investigated the CVs and phoned the references, and provided a report to the Minister based on that information.  The Minister could at any point request the original documentation, but such a process would make it seem that the panel was being “second guessed.”

Clause 16

Clause 16 dealt with the dissolution of the board and as before, a reporting responsibility provision was included.

Clause 17

Clause 17 spoke to the section 10 amendment of the principal Act, which changed the appointment system to a “suitably skilled and qualified” CEO, insertion of ‘eligible for reappointment’ and ‘in consultation with the Minister’ in subsection 4.  The clause spoke to the relationship between the board and the Minister, and did not impact Parliament.

Mr Smith said he agreed with the ‘in consultation with the Minister’ provision, but asked if it was harmonised throughout the Bill.

Mr Muthwa confirmed that this provision was harmonised to include all the boards.

Clause 18

Clause 18 proposed minor technical amendments.

Clause 19

Clause 19 would incorporate the Languages Act, insertion of ‘independent’ before 'panel', and insertion of the reporting mechanism.

Clause 20

Clause 20 dealt with the powers of the Minister to remove a member of the board and the insertion of a reporting mechanism.

Clause 21

Clause 21 dealt with the power of the Minister to extent the period of office of any or all members of the board, and a reporting option was inserted.

Mr Smith referred to subsection 2, which stated ‘when reappointing members of the board, the Minister must ensure that the terms of office of members will not expire at the same time.'  This was an important provision, and he asked if the provision had been harmonised throughout the boards.   If there was not a staggered election process, there would not be staggered termination process.

Mr Muthwa said there was a provision that dealt with the same issue that had been deleted, because the Minister needed to handle the matter administratively with the staggering of boards.  The deleted provision proposed that one-third of the board should be retained for continuity purposes, but if those members could not be retained, it would create compliance challenges.  The provision did not specify the specific numbers, but was consistent with the staggering process of boards.

Mr Smith said the provision clearly stated that the terms of office of board members did not expire at the same time, and asked if it was true that the board members were appointed at different times.

Mr Mulcahy said the intention was continuity, but the point was correct in that the whole board was appointed for a specific time period, but some members may be reappointed.

Mr Mavuso said this area should be fixed, because if there was a vacancy on the board, the person appointed was appointed for the remainder of the term, which was the practice.

Mr Mulcahy said if it was to be reworded, it should say ‘the Minister should strive to ensure continuity’ and with the assistance of the legal people, the Department would come up with wording.

Clause 22

Clause 22 was a repeat of the dissolution of the board process, with a reporting function inserted.

Clause 23

Clause 23 spoke to the CEOs, and the board was the appointing authority.

Clause 24

Clause 24, section 7, dealt with the removal of the recommending function of the NA, and inserted a reporting function for the Minister to the NA.

Mr Muthwa confirmed that the DST would implement the agreed changes which spoke to the qualification of the panel, the Languages Act and the removal of reference to CVs.

Mr Smith referred to Clause 24, section 7(2), and said that in this clause there was specific reference to requirements linked to the composition of the board, such as ‘race’, and ‘gender,’ while the rest of the boards were mainly defined as ‘broadly representative.’   He asked if this should not be harmonised.

The Chairperson said it was the Department’s proposal to harmonise the entities, but there seemed to be a lot of disharmony in the document.

Ms Kloppers-Lourens referred to section 3, and asked what the Minister’s appointment process was, and from what list or publication the Minister would appoint.

Mr Muthwa said the rewording would read, ‘if the shortlist compiled in terms of subsection 2 does not contain the required number of suitable persons, the Minister may/must appoint’.

Clause 25

Clause 25 proposed some technical amendments that dealt with the dissolution of the board, and a reporting function was inserted.

Mr Smith referred to section 8(3) and 8(7), where removal of a board member should be done by an independent, and the provision for members that died or resigned.  The reference to an independent was not harmonised throughout the Bill, and the Minister’s appointment authority in case of death or resignations made sense, but was not mentioned in other provisions.

Mr Muthwa said the reference appeared only in this Act, and for purposes of harmonisation, it would be removed.  In the case of 8(7), he would check the other provisions and standardise accordingly.

Mr Nonkonyana asked if these changes would be reported back to the Department.  The Chairperson confirmed that the DST should present these changes to the Committee.

Clause 26

Clause 26 dealt with dissolution of the board, with a similar report function inserted.

Clause 27

Clause 27 dealt with appointment of the CEO of the Agency by the board, ‘in consultation’ with the Minister.

Mr Smith said he was happy with the two-year proposed plan of the DST to overhaul the legislation, but felt it should not be too difficult to harmonise the CEO provisions in the Bill.

The Department agreed.

Discussion on the four legal options of the Committee in the oversight role

Mr Smith said the he agreed with the Department that the Committee should not be doing the job of the Executive, but he also felt the Department did not want to have the Committee in a recommending capacity, as before.  He did not agree that there was a separation of powers problem, but simply a policy issue that could be addressed.  The current relationship with the Department, where the Committee was playing a recommending role to the appointments made, was not exceptional.   He listed different Portfolio Committees which had similar roles.  The only issue was if the Committee wanted to be involved.  On a policy level, the Committee should be involved, but needed to determine to what extent.  To be reported to by the Minister after the fact was not an option, and the Committee should be involved at some level in a recommending role, and whether that suited the Department or not, should not be a factor.

Mr Nokonyana said he understood what Mr Smith was saying, and it made a lot of sense.  The oversight role of the Department should not be compromised.   The Committee had a constitutionally mandated oversight role that outweighed the powers given to the Minister.  Mr Nonkonyama said he supported the DST.

Ms Klopper-Lourens said she supported Mr Smith, and the DST should be sent back to harmonise all the legislation governing their entities.

The Chairperson said unfortunately the decision had to be postponed because of quorum.  He asked the Department to go and apply all the decisions taken to harmonise the Bill.   It would be called to meet with the Committee, and hopefully the Committee could then decide on a concrete way forward.

The meeting was adjourned


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