South African Language Practitioners Council Bill [B14-2013]: Finalisation on NCOP-proposed amendments; South African Heritage Resource Agency update briefing, in presence of Minister

Arts and Culture

04 February 2014
Chairperson: Ms T Sunduza (ANC)
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Meeting Summary

The Parliamentary Legal Advisers took the Committee through the Report of the Select Committee on Education and Recreation on the South African Language Practitioners Council Bill. The Select Committee had proposed certain amendments to clauses 1 and 5. Most of the amendments were grammatical and technical and did not affect the substance of the Bill. However, the Select Committee had asked that in Clause 1, the definition of “Portfolio Committee”, and the use of this phrase in clause 6(8) should be substituted with a reference to “Parliament”, and that, in the definition, the words “ and Select Committee” should be added. The Committee, supported by the advice of the Parliamentary and State Law Advisers, had no problem with referring to “Parliament” but did not agree with the Select Committee’s proposed definition, believing that the wording of section 42 of the Constitution should be used instead. The Committee then agreed to the other proposed revisions for clause 5, and adopted the revised Bill.

The Committee Chairperson questioned the Department of Arts and Culture why the new statue of Nelson Mandela had a rabbit on the ear, and was told that this was apparently the signature of the sculptors, added without permission or approval, and it was to be removed at the sculptors’ cost.

The Committee was briefed by the South African Heritage Resources Agency (SAHRA), and it was noted that the new Council for the SAHRA had been appointed in good time. The presentation covered the background, including the disclaimer audit, and outlined its current achievements and challenges. Issues that were touched upon included arrangements around the cottages in Struisbaai, presently subject to 25-year leases at R1 per year, but it was noted that legal advice had been sought and some were being terminated. The SAHRA had managed to implement its IT Governance Framework, had set up some strategic partnership agreements, and developed a revised remuneration and benefits strategy and policy, although it was not yet implementing the IT strategy because it had not finalised the business case. Brief reports were given on matters that the Committee had questioned previously, including the process followed by SAHRA to transfer moveable assets, concerns abut use of contract workers and consultants, financial accountability, and the appointment of the Chief Executive Officer (CEO), and the mooted relocation of SAHRA from Cape Town to Pretoria. It was noted that in the past, SAHRA was constrained by instability of leadership, lack of skilled staff, lack of policies and procedures and lack of controls over basic daily, weekly or monthly processes. It had irregular expenditure in the 2012/13 financial year, of R7.106 million. However, the disclaimer audit was regarded as a “one-off” and it was said that the issues had been resolved after steady work and that it had made significant progress, improving its controls and developing action plans to clear the audit findings.

Members were still not entirely happy with the presentation by SAHRA, and felt that the financial issues, in particular, required more clarification, and also questioned at some length the position with the leases and the future plans for the Struisbaai properties. The Committee noted that it had never given consent for the proposed move, although they noted it was apparently not to be implemented, and was not happy about the recruitment processes and advertisement for the Chief Executive Officer of SAHRA.

It was noted that a written report from the previous Council complaining about the Acting CEO would be placed before this Committee and the current SAHRA Council. Members asked about the representation of regions, and the gender balance on the SAHRA Council, asked if there would be sufficient funding made available to meet the costs of the proposed salary increases. They asked how the David Stuurman repatriation of remains was being resolved. They questioned why the audit committee was not fully functioning until November 2013, why there had been spending irregularities, hw this had happened, who the Council member was with special expertise in finance, and for further information on staff contracts. Members also asked about control systems to prevent illegal exports of heritage artefacts, questioned the negotiations with the staff union, and a pending case.

Members adopted the minutes of 22 October 2013.

Meeting report

Chairperson’s Opening Remarks
The Chairperson welcomed the Minister of Arts and Culture and noted that he would need to leave the meeting early, and noted the apology of the Deputy Minister.

South African Language Practitioners Council Bill: Finalisation of NCOP-proposed The Chairperson proposed that the Committee go through the proposed amendments to the South African Language Practitioners Council Bill (the Bill) clause by clause. She asked Adv Anthea Gordon, Parliamentary Legal Advisor, to take the Committee through the proposed revisions to the Bill.

Adv Gordon explained that she had not been at the Select Committee meeting at the time when the amendments were proposed as she was on sick leave. However, she had reviewed the proposals and observed that the amendments were technical in nature, and did not change the substance of the Bill as passed by the Portfolio Committee. Essentially, there were grammatical and punctuation changes, and there was some cross-referencing. From a legal perspective, there was no objection to most of the proposals.

Clause 1
Clause 1 of the B-version of the Bill referred to the “Portfolio Committee responsible for language matters”. The Select Committee had proposed that the reference to “Portfolio Committee” should, in the definition, be substituted by a reference to “Parliament”, and proposed that where Portfolio Committee” appeared, the words “Select Committee” should also be added. The revised definition would thus read “Parliament means the Portfolio Committee and Select Committee responsible for language matters”.

Adv Gordon did not agree with this proposed amendment, and recommended that, if the Committee agreed to incorporating references to the Select Committee, then the word “Parliament” should be as defined in section 42 of the Constitution, which referred to the National Assembly and the National Council of Provinces. She furthermore explained that when a Bill was referred to Parliament, it was the prerogative of Parliament to decide to which Committee that Bill must be referred, so that should not be limited in legislation. She recommended that perhaps this definition should be flagged until she had dealt with the other issues.

Clause 5
The Select Committee has proposed that the acronyms SAQA and ETQA be omitted from the text of the Bill. An acronym would have to be defined upfront. SAQA had been defined as the South African Qualifications Authority and ETQA had been defined as Education and Training Quality Assurance, therefore it would be technically correct to omit the acronyms and use the full definitions in the Bill. Advocate Gordon said there was no legal obligation to this amendment, as it was technical in nature.

Clause 6
Adv Gordon noted that this clause again related to the naming of the Committee in the Bill. She read out the wording of clause 6(8), as proposed by the Select Committee, and noted that should the definition of Parliament be as proposed by the Select Committee, then technically this clause would be incorrect.

The Chairperson asked the Parliamentary and State Law Advisers if they were happy with the proposed amendments.

Mr Allan Small, State Law Adviser, Office of the Chief State Law Adviser, noted that he had been present during the Select Committee’s deliberations, and had drawn up the revisions on their instructions.  He agreed with Adv Gordon about the definition of Parliament. He confirmed that the definition of Parliament as contained in the Constitution was the only amendment that this Committee needed to consider in depth, as the rest of the amendments were technical in nature.

Adv Gordon informed the Committee that it did have the option to consult with the Select Committee that deliberated on this Bill, but the final say lay with this Committee. This Committee could also resolve to further amend the amendments proposed by the Select Committee.

Ms F Mushwana (ANC) reiterated the importance of Parliament being defined correctly. The Committee needed to be convinced to replace the words “Portfolio Committee” with a reference to the “Parliament”.

Dr H Van Schalkwyk (DA) agreed that the word “Parliament” could be used, but that it should be defined according to section 42 of the Constitution.

Ms T Nwamitwa-Shilubana (ANC) agreed that the word “Parliament” be used and defined according to section 42 of the Constitution.

Mr Sibusiso Xaba, Director General, Department of Arts and Culture, gave some context as to why this was proposed, from the meeting of the Select Committee, at which he had been present.

Adv Gordon clarified that the main issue was not so much use of the word “Parliament” as the way it was defined.

The Chairperson noted her agreement also to use “Parliament” and noted that the majority of Members would agree to use “Parliament”, but use the definition in section 42 of the Constitution.

Advocate Gordon explained that the NCOP only proposed amendments and the legal team could prepare the two final documents in preparation for the final vote.

The Chairperson thought it not necessary; it was clear that there were no real issues with the amendments, other than the definition of Parliament, on which all Committee Members present were clear and in agreement, and she thought that, once a quorum was established, the voting could be done now.

Mr N van der Berg (DA) arrived to complete the quorum of eight Members present.

The proposed amendments  were adopted, with the change of “Parliament” and the definition to align with section 42 of the Constitution.

Questions to Department of Arts and Culture: Statute of Nelson Mandela
The Chairperson noted that everybody seemed happy with the statue of Nelson Mandela in Johannesburg, but wanted to know about the rabbit sitting on the ear of the statue, which had raised a few eyebrows.

Mr N Van den Berg (DA) agreed that he too had wondered how it got there.

Mr Xaba clarified that the rabbit was the signature of the sculptors, and it was not discussed in advance with the Department, and was done without its knowledge. The Department had asked for it to be removed, at the cost of the sculptors, which was agreed to.

South African Heritage Resource Agency: Update briefing
The Chairperson welcomed the delegation from South African Heritage Resource Agency (SAHRA) and the new Council, and commended the Director General of the Department of Arts and Culture (DAC or the Department) for having managed to get the new Council appointed on time.

Mr Fanie Makhanya, Chairperson, South African Heritage Resource Agency, introduced members of the Council of SAHRA who were present at the meeting. He noted that his presentation would cover the background of SAHRA, its mandate, Council members and SAHRA’s programme and national imperatives. It also would touch on the organisational development, Heritage Resources management, issues raised at the previous briefing, properties, finance and audit report issues.

Mr Makhanya presented on the progress of SAHRA to date. He informed the Committee that SAHRA owned a number of cottages in Struisbaai, and during the 1980s entered into lease agreements with various tenants. SAHRA’s previous Council had requested that these lease agreements be cancelled and the tenants be evicted. The agreements bound SAHRA to 25 year leases, which could be renewed at the option of the tenant for a further 25 years, with a rental of R1 a year. SAHRA’s legal advisor had proceeded to write eviction letters and sought legal advice from Bowman Gilfillan Attorneys.

SAHRA’s achievements included the approval and implementation of IT Governance Framework, strategic partnership agreements, and a revised remuneration and benefits strategy and policy was developed. SAHRA had not achieved its IT strategy, having not yet developed a compelling business case and had only undertaken one survey.

Issues of concern were raised during the previous briefing to this Committee, which included:
- the process followed by SAHRA to transfer moveable assets
- concerns about the use of contract workers and consultants by SAHRA
- concerns about the financial accountability. The Portfolio Committee had requested financial statements from SAHRA
- the appointment of the Chief Executive Officer (CEO), and the relocation of SAHRA from Cape Town to Pretoria were also questioned.

Mr Makhanya explained the root causes of the problems in the past. SAHRA had been hampered by instability of leadership, lack of skilled staff, lack of policies and procedures and lack of controls over basic daily, weekly or monthly processes. According to the balance sheet, SAHRA’s irregular expenditure for 2013 amounted to R7.106 million.

A year on year comparison showed that SAHRA was generally receiving unqualified audit opinions. Management had suggested that the previous disclaimer opinion was not something that illustrated any particular prevalent accounting problems, and this could not be regarded as a “normal audit”. To date, he said that SAHRA had made significant progress, improving controls and developing a comprehensive action plan to clear the audit finding.

The Chairperson clarified that the Committee has never approved the principle that SAHRA could relocate to Pretoria as Mr Makhanya had alluded to in his presentation. She was also concerned abut the recruitment processes and advertisement for the Chief Executive Officer of SAHRA.

Mr Makhanya assured the Committee that the matter of relocation was handed over to a task team which had been set up to deal with that matter to prevent negative impacts on the staff. The Council, however, held the view currently that no relocation would be happening. In regard to the advertisement, he said that there were certain specifications that were quite clear, and the Chairperson had been told that the areas of concern would be re-drafted and the position re-advertised. He was now shocked to find out that the interview processes had apparently been concluded.

The Chairperson also mentioned that the previous Council had raised issues about the alleged insubordination of the Acting CEO, but a written report on that would be requested before the allegations could be placed before the Committee and the current SAHRA Council.  

Mr Makhanya told the meeting that he had requested that the leave policy be made available during their first Council meeting, to be studied by Council members, to try to avoid a recurrence of the past problems.

Ms Mmabatho Ramagoshi, Acting Chief Executive Officer, SAHRA, confirmed that there was a letter written to Council in which leave was requested, and asserted that there was no insubordination. The Company Secretary would be asked to forward all those letters for the benefit of the Portfolio Committee.

The Chairperson noted this point and asked that the Committee move on to other questions. She noted that she had been very disappointed that different regions were not represented in Council.

Mr Xaba clarified that Council would be provided with nominations of Council members from provinces, but in fact that it was not the Council who had the power to appoint. It was the MEC that appointed the Provincial Resource Agency members, who would then sit as Council members at SAHRA. The Department needed to take the matter up with the MECs to ensure that all provinces were in fact represented.

The Chairperson noted that Mr Makhanya mentioned an increase in salaries and salary benchmarking, and asked if the Department had sufficient funding for that.

Ms Ramagoshi indicated that as part of the audit process there had been an investigation done into other heritage agencies, to assess how SAHRA could attract and retain staff, and it had come up with a benchmark figure. The DAC would still inform SAHRA whether or not it would receive sufficient funding to meet that figure.

The Chairperson asked how far the  David Stuurman issue was from being resolved.

Ms Ramagoshi said that Mr Stuurman’s remains had not been found. The decision was therefore taken to have a symbolic repatriation of the spirit. Research indicated that he might be buried under a railroad, but it was possible to try to guess whereabouts it might be, and then hold a ceremony that would bring his spirit back. SAHRA had been in contact with the family in this regard, and had their consent and agreement.

The Chairperson noted that SAHRA was said to have achieved only 43% of its targets, and asked how Council was planning to improve that. She further asked for clarity regarding the audit committee that was said to be appointed only in November 2013. She had been under the impression that there was an audit committee all along.
Ms Ramagoshi confirmed that audit committee members resigned, leaving only two in place, which meant that in fact the audit committee was not functional until the end of the 2013 year.

The Chairperson was also concerned that SAHRA spent over R5 million without deviating from procurement processes, had approved spending of R1 million with only one quotation obtained, and furthermore had spent R683 304 without following a tender process. She asked how leadership could allow this to happen. She had been under the impression that the Chief Financial Officer was efficient, and could not understand how this serious situation had happened.

Dr van Schalkwyk added that there were serious financial issues.. She noted that section14(2)(a) of the National Heritage Act required that the Council have a member with qualifications or special experience or interest in finance or financial management, and asked who, on the current SAHRA Council, held these skills.

Ms Catherine Motsisi, Chief Financial Officer, SAHRA, confirmed that Rihanna Garney, Council Member, was a chartered accountant by profession.

Ms Mushwana asked how many women SAHRA had on its Council, since gender balance was important.
Ms Ramagoshi said that there were three women on the SAHRA Council and eleven males. This was raised as an issue in the council, but it was noted that the Council consisted of provincial Chairpersons from the nine provinces, so the SAHRA itself had limited ability to change the situation.

Mr Xaba added that it was a reality that most of the nominations were of males and this was an issue that would continue to be raised.

Ms Mushwana asked for clarity on SAHRA’s contracts of employment and their time frames.

Ms Ramagoshi  explained that with the current cutting of costs, a new organisational organogram was presented, with long term employment contracts, but there was a challenge in that some may not be funded by National Treasury. The previous contract posts did not form part of the organogram, but were in place as part of the turnaround strategy. Some of them had been for six and some for twelve months.

Ms Nwamitwa-Shilubana asked how SAHRA had succeeded in getting skilled staff. She further enquired what SAHRA was doing to ensure that control systems would be developed to prevent illegal and systematic exports of South African heritage.

Mr Xaba explained that there used to be a National Forum for Law Enforcement Against National Heritage Objects, but it was no longer in existence. SAHRA was signing a Memorandum of Understanding (MOU) with South African Revenue Services, and Customs, for training of its employees as Heritage Inspectors.

Ms Mushwana also enquired about the leases, and how there was any value in fixing a rental of R1 per annum for a period of 25 years.

Mr N Van den Berg (DA) also requested clarity on the Struisbaai properties, including why the attorneys had been consulted, and the cost of doing so. He wanted to know whether the copy of the agreements with the tenants could be made available.

Ms Lungisa Malgas, Company Secretary, SAHRA, promised to forward a breakdown of the costs of consulting Bowman & Gilfillan Attorneys today, as SAHRA did not have these figures at the meeting. The attorneys had been consulted only after an internal audit was done, to obtain a second legal opinion.

A number of Committee Members expressed deep concern about the financial management of SAHRA, asking, amongst others, with whom negotiations had been held around the rental, who the current tenants were, what would be the situation if tenants were untraceable and what action SAHRA had taken to ensure that the properties were still maintained.

Ms Ramagoshi explained to the Committee, in response to the queries around the finances in general, that the audit position over the last three years effectively had to be corrected within a period of three months. The consultants that were brought in helped SAHRA to move from a disclaimer to a qualification, and by the end of the audit it was clear what the position was. She also explained that most of the executives in the meeting today would be contributing to the audit of 2013/2014, although they had not taken part in the 2012/13 audit, which was the one before the Committee at present.

She added that the main challenge that SAHRA was facing at the moment was record keeping, and it was for this reason that  tenants and leases became difficult to track down. Because there were already leases in place, SAHRA had to wait until these leases expired. Some leases were for 25 or 75 years at R1.00. She explained that the legal team was responsible for sending out tracing letters, but where tenants could not be found, after a certain period, it would take steps then to terminate the lease.

Mr Mokena Makeka, IT & Property subcommittee Chairperson, SAHRA, interjected that the other options that SAHRA had explored was to discontinue the use of these buildings for private benefit, and make all these buildings publicly accessible, for tourism or education or other uses. The SAHRA Council was working on a strategy that would give an opportunity for tenants to participate in a SAHRA mandate, which could be turning these buildings into public buildings, then offering the tenant the potential role of being a facilities manager. This strategy might help to avoid lawsuits, as lawyers had advised SAHRA.

The Chairperson also asked a member of the NEHAWU union, who was also present at the meeting, to brief the Portfolio Committee on whatever issues the staff of SAHRA had.

Mr Simphiwe Yende, Shop Steward, NEHAWU, told the Committee that since he had only been told about the meeting at 09:30, he was really not fully prepared. However, he could tell the Committee that a recognition agreement had been signed, and there were meetings held on this agreement. Other meetings had been promised, between the HR of SAHRA and the workers, that had not yet taken place. By agreement, he did not sit in on the interviews with the staff.

 The Chairperson asked the person in charge of HR to make a comment.

Mr Glenville Hughes, HR Executive, SAHRA, confirmed that there was an agreement. The agreement was that the labour unions would be able to sit in on interviews, up to a certain level.

The Chairperson then interjected that this was “not law, and was an act of victimisation”. She then checked with Mr Yende if there were any other issues.

Mr Yende said that there were no further issues and fleshed out in more detail the agreement had had referred to earlier.

The Chairperson asked about Mr Yende’s pending case of defamation of character.

Mr Yende answered that it had not been resolved as he was waiting for the outcome of the forensic audit that was conducted.

The Chairperson enquired why the case was not resolved.

Ms Ramagoshi explained that the delay was due to unavailability of Simphiwe Yende to attend certain meetings, which therefore had not taken place.

The Chairperson was under the impression that this matter was resolved and was surprised that it was not.

Minute adoption
The Committee adopted the minutes of the meeting held on 22 October 2013.

The Chairperson noted that there would be no meeting next week as Members would be preparing for the State of the Nation Address.

The meeting was adjourned.



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