Science and Technology Laws Amendment Bill [B 36B-2013]: Departmental briefing

NCOP Education and Technology, Sports, Arts and Culture

11 March 2014
Chairperson: Ms D Rantho (ANC, Eastern Cape) (Acting)
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Meeting Summary

The Committee had to appoint an Acting Chairperson and a stalemate was reached, because there were two nominations each from opposing parties, the ANC and the DA. The DA eventually relented and seconded the proposed candidate.

The purpose of the Science and Technology on the Science and Technology Laws Amendment Bill was to streamline processes for the appointment of members of the boards or councils, filing of vacancies and to enhance efficiencies. The Bill was approved by National Assembly on 4 March 2014 and the Bill was broadly welcomed by all stakeholders.

The Scientific Research Council Act (CSIR), 1988 provided for the independent appointment of the Acting Chairperson by the Minister and streamlined the process for the appointment of members of the board. It set out the grounds for disqualification of members of the Board and provided for the dissolution and reconstitution of the board. The amendments harmonised the process for the appointment and determination of the conditions of service of the Chief Executive Officer (CEO) and provided for Parliamentary reporting in relation to all appointments and dissolution of boards or councils.

The National Research Foundation (NRF) Act, 1998 provided for the appointment of additional two members to the NRF board from the National Advisory Council on Innovation (NACI) and the Council on Higher Education (CHE) and streamlined the process for the appointment of members of the board. It harmonised processes for the appointment of the CEO and provided for the extension of the term of office of members of the board, if necessary. The Act provided for the grounds for termination of membership and for the dissolution and reconstitution of the board.

The Academy of Science of South Africa Act, 2001 provided for the extension of the term of office of members of the Council, if necessary and for Parliamentary reporting in relation to all boards or council appointments and reappointments.

The Natural Scientific Professions Act, 2003 streamlined the process for the appointment of members of the Council and harmonised the process for the appointment of the Chief Executive Officer. It harmonised the process for the extension of the term of office of members of the board to ensure consistency with the other science councils. It relaxed the requirement for professional registration for membership qualification to the council by state employees and provided for Parliamentary reporting in relation to all boards and council appointments and dissolution of boards or councils.

The Human Science Research Council Act, 1997 streamlined the process for the appointment of members of the board and provided for the extension of the term of office of members of the board, if necessary. It provides for the dissolution and reconstitution of the Board and harmonised the process for the appointment and determination of the conditions of service of the CEO.

The Technology Innovation Agency Act, 2008 streamlined the process for the appointment of members of the board and harmonised the process for the appointment and conditions of service of the CEO. It provided for mechanisms to ensure broad representativeness for extension of the term of office of members of the board, if necessary and provided for the dissolution and reconstitution of the board.

The South African National Space Agency Act, 2008 streamlined the process for the appointment of members of the board and filling of vacancies. It harmonised the process for the appointment and determination of the conditions of service of the CEO and provided for the dissolution and reconstitution of the board.

The Committee discussed the terms of office for board members and the conditions of service of Chief Executive Officers. The inclusion of the National Council of Provinces (NCOP) was discussed, because the Bill throughout made reference to the National Assembly. It was agreed that the Department would include this proposed amendment to the action plan of the Department to harmonise the Principal Acts within the next two years.

The Committee clarified the ‘appointments in personal capacity’ and the personal liability that accompanied that. The Department requested that the Committee prioritised the Bill, because there was a Council to be appointed that was suspended until this Bill was approved.  There were some discussions on whether the Committee should proceed and it was decided to vote clause by clause. Two Members of the Democratic Alliance walked out of the meeting.

Clauses 1 to 26 of the Science and Technology Laws Amendment Bill were adopted without amendments and the Select Committee on Education and Recreation adopted the Bill without amendments.

Meeting report

Acting Chairperson

Mr Mzuyanda Dlanga, Committee Secretary, explained that the Chairperson sent apologies for her absence and proposed the Committee should proceed to select an Acting Chairperson. Ms R Rasmeni (ANC, North West) nominated Ms D Rantho (ANC, Eastern Cape) and Ms W Faber (DA, Northern Cape) nominated Mr M De Villiers (DA, Western Cape). There was some confusion since there were only these four Committee members at the meeting at that time and Mr Faber relented and seconded Ms Rantho's nomination.

The Acting Chairperson welcomed everyone to the meeting and said she wished to apologise for the awkwardness with regards to the election of the Acting Chairperson and said there were some tensions due to the resignation of the DA MP, Ms Beverley Adams and her new allegiance to the ANC that happened the previous evening.

Mr Faber called a point of order and said 'people' that were not in electable positions should not be elected.

The Acting Chairperson said Mr Faber caused chaos in the meeting and was not taking the proceedings seriously.

Mr De Villiers said it was unacceptable behaviour from both the Acting Chairperson and Mr Faber, because the meetings represented Committee members and not politics.

The Acting Chairperson gave over to the Department for the presentation.

Briefing by the Department of Science and Technology on the Science and Technology Laws Amendment Bill

The Department of Science and Technology Deputy Director-General: Corporate Services, Ms Nombuyiselo Mokoena said, during 2012 the Department embarked on a process to review the legislative provisions dealing with the operations and governance of the science councils reporting to the DST. The said legislative review exercise was prompted by, amongst others, delays that were experienced in the process of appointing or replacing members of the boards or councils of science councils. The purpose of the Bill was to streamline processes for the appointment of members of the boards or councils, filing of vacancies and to enhance efficiencies. The Bill was approved by National Assembly on 4 March 2014 and the Bill was broadly welcomed by all stakeholders.

Scientific Research Council Act (CSIR), 1988

The Act provided for the independent appointment of the Acting Chairperson by the Minister and streamlined the process for the appointment of members of the board. It set out the grounds for disqualification of members of the Board and provided for the dissolution and reconstitution of the board. The amendments harmonised the process for the appointment and determination of the conditions of service of the Chief Executive Officer (CEO) and provided for Parliamentary reporting in relation to all appointments and dissolution of boards or councils.

National Research Foundation (NRF) Act, 1998

The Act provided for the appointment of additional two members to the NRF board from the National Advisory Council on Innovation (NACI) and the Council on Higher Education (CHE) and streamlined the process for the appointment of members of the board. It harmonised processes for the appointment of the CEO and provided for the extension of the term of office of members of the board, if necessary. The Act provided for the grounds for termination of membership and for the dissolution and reconstitution of the board.

Academy of Science of South Africa, 2001

The Act provided for the extension of the term of office of members of the Council, if necessary and for Parliamentary reporting in relation to all boards or council appointments and reappointments.

Natural Scientific Professions Act, 2003

The Act streamlined the process for the appointment of members of the Council and harmonised the process for the appointment of the Chief Executive Officer. It harmonised the process for the extension of the term of office of members of the board to ensure consistency with the other science councils. It relaxed the requirement for professional registration for membership qualification to the council by state employees and provided for Parliamentary reporting in relation to all boards and council appointments and dissolution of boards or councils.

Human Science Research Council Act, 1997

The Act streamlined the process for the appointment of members of the board and provided for the extension of the term of office of members of the board, if necessary. It provides for the dissolution and reconstitution of the Board and harmonised the process for the appointment and determination of the conditions of service of the CEO.

Technology Innovation Agency Act, 2008

The Act streamlined the process for the appointment of members of the board and harmonised the process for the appointment and conditions of service of the CEO. It provided for mechanisms to ensure broad representativeness for extension of the term of office of members of the board, if necessary and provided for the dissolution and reconstitution of the board.

South African National Space Agency Act, 2008                     

The Act streamlined the process for the appointment of members of the board and filling of vacancies. It harmonised the process for the appointment and determination of the conditions of service of the CEO and provided for the dissolution and reconstitution of the board.

Discussion

The Acting Chairperson said she did not have time to engage with the documents and the amendments were not clearly set out so that Committee members had a clear understanding of the amended sections.

Ms Rasmeni asked if the Department could state the terms of office of the board members, because it was not clear through the presentation. Some time ago the Department presented to the Committee on board member appointment processes and she asked what happened to those processes. This Bill did not mention any provisions for consultation with Parliament in the appointment process, nor did it make reference to the National Council of Provinces (NCOP).

Ms Mokoena said the terms of office for board members differed in each entity and this was included in the Department's future plans to have these terms aligned in the Bill. This included the consultation processes with Parliament and the Department planned harmonisation of the Bill and to strengthen the oversight facilitation or mechanisms by Parliament.

Mr De Villiers referred to clause 1, section 7(11) and clause 11(c) and asked why reference was only made to the National Assembly (NA) since the NCOP was also part of Parliament. He referred to clause 4, section 6(f) (4) that stated that “The members in subsection 1(a) are appointed in their personal capacities.” If something went wrong within the board, he asked would a board member not be held personally responsible or legally liable because of this provision. He asked if the numbering be clarified for clause 5 and noted that clause 20 was omitted in the memorandum on the objects of the Bill. 

DST Consultant: Legal services, Mr Brian Muthwa said board members were appointed based on their qualifications, skills and knowledge and not in a representative capacity. Once that person became a member of the board, that person could not be held personally accountable for a collective decision.

Special Advisor to the Minister, Mr Martin Mulcahy said, the instances of board members having to withdraw because of the mandate of the organisation that nominated them fell away, because the member was appointed based on their competence in their personal capacity.

Parliamentary Legal Advisor, Adv. Barbara Loots said, in clause 5, subsection 6A was part of the Principal Act and subsection (6) was part of the Amendment Bill. The memorandum was an explanatory summary that was included and there was no obligation to include every clause. If the Committee required the explanation of clause 20 to be inserted, the Department could add it, but once the Bill was signed into law, the memorandum section would fall away.

Mr T Mokoena (ANC) suggested that references to NA should be changed to 'Parliament'.

The Acting Chairperson said reference made to the delays of the process was partly reasons for the amendments, but it was not clear what the main delays in the processes were. The delays were due to various reasons, because the Department always advertised for vacancies on the board. The schedules of the role players in the appointment processes caused some of the delays because it was not always possible for Parliament to oversee processes because of the schedule. These issues were planned for in the future overhaul of the Bill and the harmonisation of the terms and process for all entities would include and address all the issues. The reference to NA in the Bill was an oversight of the Department and would also be dealt with in the overhaul of the Bill.

Mr Faber asked that the numbering be clarified in clause 4 and he also suggested use of the word 'Parliament' rather than NA.

Adv. Loots said the numbering issue had been picked up as a typo and would be corrected.

Mr De Villiers asked clarification on why clause 20 was not in the memorandum.

Adv loots said it could be that the amendments to clause 20 were self-explanatory and was therefore not included in the memorandum for further explanation.

The Acting Chairperson asked if the reason the Bill was not clearly stating the terms of office of board members was that it would be included in the regulations and if the Department agreed that the NCOP should also be referred to in the Bill.

Ms Mokoena said the department agreed with the inclusion of the NCOP in the Bill and it would be included in the harmonisation process the Department was planning.

DST Consultant: Legal services, Mr Brian Muthwa said, the Act provided for all the terms of offices for board members and Chief Executive Officers (CEOs), but the terms differed from entity to entity. The Department would address these issues through a developed action plan that would seek to harmonise those terms of office and the appointment and dissolution processes.  These issues, including the inclusion of the NCOP in the Bill, would be dealt with in the future overhaul of the Bill.

Mr De Villiers said the legal advisers should maybe insert a further explanation to the personal liability issue and he referred to the terms of office of CEOs that were stated in the Bill to not be longer than five years. It was very vague and could be the reason that member picked up on the terms of office issues. He referred to clause 3(4) that referred to the conditions of appointment and termination of a CEO and asked if those conditions were not too stringent.

Adv Loots the personal liability issue, in the context of the clause related to the appointment of the candidate.

Mr Mulcahy said the subsection in totality provided for the duties of the board, if the CEO was absent for a period of more than two months, was unable to carry out his or her duties or ceased to hold office.

Ms B Mncube (ANC, Gauteng) referred to clause 3(f) and the appointment of an acting CEO and asked what happened for the two months until the acting CEO was appointed.

Mr Mulcahy said the subsection provided for the CEO, after consultation with the board, to appoint a senior employee to act as CEO if he or she would be absent for less than two months.

The Acting Chairperson asked input from the Committee members on the clause by clause deliberations on the Bill.

Mr De Villiers said the Committee should do the clause by clause deliberations next week.

Ms Mokoena requested the Committee considered that there was a Council to be appointed that was suspended until this Bill was approved.

State Law Advisor, Mr Sisa Makabeni said, the Committee should keep in mind that this Bill amended a number of Principal Acts that were not amended that already referred to the NA. It was advised that the Department be allowed to look holistically at the Bill through the action plan, but that these amendments be dealt with now. While the concern of the NCOP was noted, amending the Bill now it would misalign the other Acts.

Adv Loots said there were seven Principal Acts that directly fed into this Bill and only sections of the Acts were opened for amendments. If the reference to NA was amended to 'Parliament' it could affect other clauses that were not opened for amendment. This Bill was an interim measure that would keep the entities functional while the overhaul of the legislation was planned.

Mr Faber said he understood, but the amendments needed to start somewhere and he asked when would these overhauled amendments be implemented and stated that this Bill would in any case be changed.

Mr Mokoena said the Department had already started with the process with a project plan and it was planned to be finished within two years, but the Department was working hard to finish the project within one calendar year.

Ms M Boroto (ANC, Mpumalanga) said there was no reason the Bill could not be dealt with now.

Mr De Villiers said the clause and clause deliberations could be made next week, because there would be time afforded to look at the Bill.

Ms Mncube asked if the proposed amendment by the Committee was only to change the references to NA in the Bill to 'Parliament'.

Adv. Loots asked if the Department should then prepare a draft report of the proposed amendment, because it was the only proposed amendments to change NA to 'Parliament' and the technical issues discussed related to typing mistakes that would be addressed. 

Ms Boroto proposed clause by clause deliberations and the Committee proceeded.

Mr De Villiers and Mr Faber excused themselves.

Clause by clause deliberations on the Science and Technology Laws Amendment Bill

The Acting Chairperson said since the Committee did not make any amendments to the Bill, the Bill would be dealt with page by page.

The Committee went through pages 1 to 22 and clauses 1 to 26 were adopted without amendments.  The Select Committee on Education and Recreation adopted the Bill without amendments.

The Acting Chairperson thanked the Department and the Committee members.

The meeting was adjourned.

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