The Department of Science and Technology (DST) had, in collaboration with the Parliamentary Legal Advisor effected the 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 the entities. This Bill would remove the Committee’s recommending role in these appointment processes, although the constitutionally-mandated oversight role would remain.
The Languages Act, 2012 that prescribed publication in three national newspapers in three official languages had been harmonised throughout the Bill and was incorporated in clauses 1, 4, 10, 15, 19 and 24. The Department, in collaboration with the Department of Arts and Culture was developing a policy that would guide this process. The ‘fit and proper’ appointment requirements for board members had been harmonised throughout the Bill in incorporated into clauses 1, 4, 8, 12 and 15. In subsection 1, the ambiguity of the wording surrounding nominations and appointments to the board by the National Advisory Council on Innovation (NACI) and the Council of Higher Education (CHE) and subsection 1a (iii) and (iv), now read ‘one member appointed by the Minister of the nominations from the NACI,’ and the same for CHE. The Minister would appoint one member for representation from each institution, regardless of the number of nominations received.
The changes had been effected as per the instructions from the previous meeting, except for the Chief Executive Officer (CEO) affected clauses, which the DST had erroneously assumed could be standardised, along with other clauses, in a two-year overhaul plan proposed by the Department at the previous meeting. The Bill would be finalised only early in 2014, and the changes would be effected. The Committee would take a decision in 2014 on its oversight role with regard to the amendments.
The Chairperson welcomed everyone to the meeting and asked the Parliamentary Legal Advisor, Ms Barbara Loots, to take the Committee through the clauses.
Science and Technology Laws Amendment Bill [B36-2013]
Ms Loots said the issue regarding publications had been amended to include the prescriptions of the Languages Act, 2012 in section 7(2)(A). This prescribed publication in the Gazette and three newspapers in three official languages, and in subsection (b), the word ‘independent’ had been inserted before 'panel', as was requested. This was standardised throughout the Bill, where relevant.
Dr J Kloppers-Lourens (DA) asked if the Department had indicated on the languages of choice, or if this was regulated by a specific policy. Mr Thulani Mavuso, Chief Operations Officer, DST, had commented before, that insertion of ‘independent’ would mean the Department could not intervene, and asked for clarification.
Ms Loots replied that ‘independent’ referred in this context to the independence from outside bias when compiling a shortlist.
Mr Brian Muthwa, Chief Director of Legal Services, DST, said the Languages Act was promulgated in 2012 and the DST had started conversations with the Department of Arts and Culture to formulate such a policy.
Ms M Dunjwa (ANC) asked what had been the norm regarding the languages used when publishing in newspapers.
Mr Mavuso replied the norm had been publication in two national newspapers in the English language.
Dr Kloppers-Lourens asked if a definition of ‘independent’ would be given, as it was in the context of the Act.
Ms Loots said a definition was not necessary, because it carried a general meaning. The drafting principles prescribed a definition only if the term went outside the normal meaning of the word.
Ms P Mocumi (ANC) referred to subsection 2B, where it stated ‘if the Minister received no or insufficient nominations,’ and asked who decided what number of nominations constituted insufficiency.
Ms Loots replied it depended on the context of the vacancies available, because if the whole board was vacant and the Minister received four nominations, that would be insufficient. If there were two vacancies and the Minister received four nominations, it would be sufficient in the context of those vacancies. The provision’s objective was to keep a board functional.
The Chairperson agreed and said the harmonisation of the Bill meant that this provision also spoke to other boards.
Ms Mocumi asked if the benchmark was 20 nominations.
Mr Mavuso said if 30 names were received after a call for nominations, but only four were eligible, and the minimum number stated in the provision was five and the maximum number was nine to be appointed by the Minister - that would be an insufficient number. The number 20 in the provision spoke to the maximum number of names to be chosen for the shortlist, and if the eligible names exceeded 20, the Minister could have a number of already screened names that could be appointed if positions became vacant later.
Ms Loots said that throughout all the amendments, based on the previous questions on insufficient, or no nominations, to prevent a non-functioning board the Minister may, after consultation with the panel to determine the reason for the insufficiencies, appoint in a transparent manner the number of required members.
Mr P Smith (IFP) asked why the option to re-advertise if there should be an insufficient number of candidates, was excluded.
Ms Loots replied that the clause did not exclude the option to re-advertise, and the interpretation of ‘in a transparent manner’ included re-advertising.
Mr Smith disagreed, and said ‘in a transparent manner’ did not speak to identification of candidates, but to the appointment of candidates.
Mr Muthwa said the Department understood the meaning as Ms Loots had explained it, but it could be added to the provision.
The Chairperson said there was no further need for argument, because it was clear, as the Department explained the provision.
Ms Dunjwa asked if publication meant transparency.
The Committee agreed to Ms Loots’ proposal for the provision to read ‘either re-advertise or in any other transparent manner’.
Section 3B substituted ‘vacates office’ with ‘ceases to hold office’.
Section 9(a) spoke to the rephrasing of the provision to address the issue of a vacant position on the board, where the Minister would, after consideration of a short list of candidates, appoint a person to serve out the remainder of the term.
Mr Smith said the word ‘and’ should be substituted with ‘or’, and the Committee agreed.
Subsection 10(e) was inserted to harmonise the appointment requirements for board members to read: ‘a person may not be appointed as a member of the board if that person was not fit and proper to hold office’.
Dr Kloppers-Lourens asked for clarification on whether subsection 9 (a) referred to subsection 5 or subsection 8.
Ms Loots said the wording was rearranged by inserting the provision that the Minister may appoint, after consideration of the short list of candidates as referred to in subsection 8, but for this appointment the qualifications as listed in subsection 5 should be considered.
Mr Smith referred to 10(c), and said the wording was much better.
Ms Loots replied that the rationale behind the wording was that it was difficult to apply a South African crime to other parts of the world. The provisions that made reference to the exclusion of board members based on criminal history were split, to include imprisonment without the option of a fine ‘within a period of ten years preceding the date’ and fraud, to create a broad provision that excluded petty crimes, taking into consideration that board members could be residents, but not necessarily citizens.
Mr Smith said the former Minister, Tokyo Sexwale, would still be excluded even by this definition, because the previous provision had ‘from the commencement of the Constitution’.
Ms Loots replied the insertion of ‘within a period of ten years preceding the date’ – because the post-1994 Constitution had been in place longer than ten years – addressed that issue.
Mr Smith said he understood the intention, but the wording did not suggest that. It spoke directly to the fraud and imprisonment period, and not to the first section of the clause that related to the conviction of a crime and the imprisonment thereof. He suggested the clause should start with, ‘within a period of ten years’.
Ms Loots agreed, and said it would be harmonised throughout the Bill. The reporting option was inserted, although the Committee had not yet voted on their oversight role with regards to this Bill, the reporting function of the Minister to the National Assembly had been harmonised throughout the Bill.
Clause 2 was a standard dissolution clause and remained unchanged.
No changes had been made to Clause 3.
Mr Smith said the Chief Executive Officer (CEO) issues should have been standardised, as highlighted in Clause 3.
Ms Loots said it was understood that this would be undertaken in the next phase, when the DST would take a two-year period to standardise the whole Bill. She and apologised if it was an oversight.
The Chairperson said this Bill would be finalised next year, and referred to the advertisement in the newspaper that gave members of the public until 11 November 2013 to comment. However, the Committee’s last Parliamentary day was 12 November 2013, and therefore the Bill could be finalised only in early 2014. Any corrections that should be done could be effected in time.
In subsection 1, the ambiguity of the wording surrounding nominations and appointments to the board by the National Advisory Council on Innovation (NACI) and the Council of Higher Education (CHE) and subsection 1a (iii) and (iv), now read ‘one member appointed by the Minister of the nominations from the NACI,’ and the same for CHE. These new provisions were carried through to subsection 2(b), which called for nominations by written notice from NACI and CHE. Subsection 2 incorporated the Languages Act and reference to the independent panel, as well as the processes for insufficient nominations, as highlighted in Clause 1. The ‘fit and proper’ regulation for board members had been effected in subsection 3, ‘civil society’ was retained in sub section 4, ‘to hold office’ substituted for ‘vacates office’ in subsection 6, and subsection 6(b) had been amended to state that the Minister may terminate a period in office due to misconduct, incapacity, incompetence, ‘or any other reasonable grounds’.
Mr Smith asked what could ‘any other reasonable grounds’ be, that was not covered by misconduct, incapacity or incompetence.
The Chairperson replied it was good to have wording that included the unknown.
Subsection 9 standardised the crime provisions, as highlighted in Clause 1.
Mr Smith asked if the legal definition of ‘permanent resident’ was applicable, because ‘permanent resident in the Republic’ and ‘permanent resident of the Republic’ had different meanings.
Ms Loots agreed, and said the legal meaning would apply. In this context, the clause should read ‘permanent resident of the Republic’.
Clause 5 was a dissolution of the board clause, with no changes.
The CEO-affected provisions would be harmonised as decided.
Clause 7 spoke to ministerial regulations and remained unchanged.
Ms Dunjwa asked why 7(a) was blank.
Ms Loots said that 7(a) was previously deleted, and that was how the Bill would look at the end.
Dr Kloppers-Lourens asked if the regulations could be referred back to the Committee.
Ms Loots said the regulations were delegated legislations, which were dealt with by the Minister. Parliament had put in place a committee scrutinising delegated legislation. The committee’s processes needed to be investigated and reported back to the Committee.
Mr Smith said regulations could be tabled with the Committee and incorporated into the Bill.
Clause 8 dealt with amendments to the Academy of Science of South Africa Act, 2001 and was a unique, representative structure. The crime element was inserted, ‘fit and proper’ was standardised, and ‘ceases to hold office’ substituted for ‘vacates office’.
Ms Dunjwa referred to 2(c) and asked why the mental fitness aspect was unpacked in this clause.
Mr Mavuso said principal legislations were written at different times, and certain clauses were more explicit than others. He referred to the Department’s request for a two-year period to harmonise all legislation that governed the entities.
Ms Loots said 'harmonisation' referred to meaning, more than it did to words.
Mr Smith referred to 2(e) and 2(f) that spoke to ‘the president’, ‘prescribed defaults’ and ‘bringing the Academy into disrepute,’ and said it would be understandable if these provisions spoke to the uniqueness of the entity. He asked for clarification.
Mr Muthwa said the Academy prescribed a process that dealt with misconduct in the principal Act, and then related to a situation where a person was disqualified if found guilty. He asked if the Department could investigate the Academy’s reference to ‘prescribed defaults’ and report back to the Committee.
Mr Mavuso said ‘prescribed defaults’ was a broad term for defaults prescribed by the Academy that could relate to conduct issues, members’ fees or many other processes. Those defaults were recorded by the president of the Academy, because the clause stated that ‘a member would cease to be a member of the Academy if three defaults were recorded within five years’.
Clause 9 was amended from ‘registered as a scientist’ to ‘must have scientific qualifications’.
Subsection 2 incorporated the Languages Act and reference to an independent panel. Subsection 5 would incorporate the reference to ‘re-advertising or in any other transparent manner’.
Clause 11 remained unchanged.
Clause 12 would incorporate the legal meaning of ‘permanent resident of the Republic’, the reference to ‘imprisonment with or without a fine’ within the ten year period, the ‘fit and proper regulation for board members,' and ‘ceased to hold office’ substituted for ‘vacates office’.
Clause 13 was dissolution of the board clause, and remained unchanged.
Clause 14 remained unchanged from the previous meeting.
Subsection 2(a) and 2(b) incorporated the Languages Act and reference to an independent panel. Subsection 3(a) would be revised to incorporate reference to ‘re-advertising or in any other transparent manner’ and subsection 4(c) amended the ‘fit and proper’ regulations for board members. Reference to ‘imprisonment with or without a fine’ within the ten-year period needed to be incorporated in subsection 7 and may terminate a period in office due to misconduct, incapacity, incompetence, ‘or any other reasonable grounds,’ needed to be incorporated.
Clause 16 was dissolution of the board clause and remained unchanged from the previous meeting.
Clause 17 would be revised to standardise the CEO regulations.
Clause 18 was an amendment to the regulations and remained unchanged from the previous meeting.
Subsection 4(a) and 4(b) incorporated the Languages Act and reference to an independent panel, and would incorporate the reference to ‘re-advertising or in any other transparent manner’. Subsection 8 included the reference to the board being broadly representative of the demographics of the country, which had previously been omitted.
In clause 20, ‘ceases to hold office’ was substituted for ‘vacates office’, and the provision that the Minister may terminate a period in office due to misconduct, incapacity, incompetence, ‘or any other reasonable grounds’, was included.
Clause 21 remained unchanged.
Clause 22 was a repeat of the dissolution of the board process and remained unchanged.
Clause 23 would be reviewed to harmonise the CEO processes.
Clause 24 included the Languages Act and reference to an independent panel. Subsection 4(b) included the reference to the board being broadly representative of the demographics of the country.
Clause 25 included reference to ‘imprisonment with or without a fine’ within the ten-year period and the ‘fit and proper' regulation for board members. Subsection 2(d) included the provision that the Minister may terminate a period in office due to misconduct, incapacity, incompetence, ‘or any other reasonable grounds’.
Clause 26 was dissolution of the board clause and remained unchanged.
Clause 27 would revise the appointment of CEO processes for standardisation.
Ms Dunjwa asked about the capitalisation of some entities throughout the Bill.
Ms Loots said if the board or any person or entity was capitalised in the definition, it would read so throughout the clauses and subsections, but she would investigate and report back to the Committee.
The Chairperson thanked everyone and asked the Department to look into those changes that needed to be effected, specifically the harmonisation of the CEO appointment processes. The Committee still needed to make a decision on the proposed amendments in the Bill that spoke to the role of the Committee.
Ms Dunjwa said the Department had previously promised evidence that spoke to the transformation processes of the entities, and asked if that could be forwarded to the Committee.
The Chairperson said it could be scheduled as a briefing by the Department.
The Department thanked the Chairperson and the Committee.
Members thanked the Chairperson, the Department and the support staff of the Committee for a good working relationship.
The Chairperson echoed the same sentiments to the members and staff, and the meeting was closed.
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