Developmental Welfare Governance Bill: discussion

Meeting report

WELFARE AND POPULATION DEVELOPMENT PORTFOLIO COMMITTEE
11 October 2000
DEVELOPMENTAL WELFARE GOVERNANCE BILL : DELIBERATIONS

Documents handed out:
Presentation on the Developmental Welfare Governance Bill, 1999 by the Department of Social Development (See Appendix 1)

SUMMARY
The Director General and members of the Department engaged in an exchange of ideas and thoughts surrounding the Developmental Welfare Governance Bill. They addressed some of the concerns the Committee had with the Bill and provided clarity on some past concerns such as the reduced size of the Council. The Department is quite clear on the fact that they wish the council to be an advisory rather than policy-making body. Public hearings on the Bill will take place early next year.

MINUTES
Chairperson Saloojee announced that there would be public hearings in January 2001 and the Committee has invited written submissions.

The Director General, accompanied by a delegation from the Welfare Department, went through the Developmental Welfare Governance Bill clause by clause to share the department's understanding of the Bill and to highlight issues they felt needed broader consultation with the Portfolio Committee. She reminded them that a background briefing had taken place on 27 September. She noted the name change of the Department and the possible ramifications it would have, not only for the name of the Bill, but for the name of the Portfolio Committee as well. The Chair observed that the Committee had not been officially informed of the name change. The Director General noted that the name change was gazetted in July. She agreed that there should have been better communication with the Committee on this but part of the problem had been that Parliament was in recess at that time.

The Director General, Ms Angela Bester, made the following points:
Clause 1: Definitions
- The name change to Department and Ministry of Social Development will have to be reflected and will have implications for terminology in the Bill and its name.
- The question was raised: does developmental social welfare equate to social development? The name change is more complex than merely replacing the terminology 'welfare' with 'social development' in the Bill because the department believes that social development is much broader than welfare. It speaks to an integrated and co-ordinated approach with a focus on sustainable development and those linkages between social and economic aspects.
- This issue needed thorough reflection as it permeates the whole Bill.

Discussion
A committee member asked what would happen to the population aspect when the name is changed? The Director General replied that the name of the Department had always been the Department of Welfare and the name of the Ministry was Welfare and Population Development. The name change to Social Development takes care of the population aspect nicely because within social development ones looks at issues of population development as it is a crucial issue for informing policy and planning around development issues.

The Department was asked for suggestions as to what to call the Bill as a result of the name change. Ms Bester replied that the department proposes that it should reflect social development. It would be useful if the Committee and the Department could come up with some discussion document to go along with the Bill and then proposals can be made from there.

A committee member asked what would happen to welfare. Social development is so broad, it can be anything. She said that they are dealing with the well being of people. The Director General said welfare would not be lost, it is in the Department's work and structure. She commented that a thorough briefing on the name change of the Department and the structure that the Department is proposing was missing from this process. She suggested that this should be done in a future meeting.

Clause 2: Establishment of South African Developmental Welfare Council
- The name of this council should be reconsidered
- There is a need for clarity on the issue of liability as the council is a juristic person. As a juristic person, the proposed council will be an independent public entity that can sue or be sued in its own name and does not have to go through the Department.

Discussion
A committee member commented that the nature of a juristic person should be looked at. He could not find anywhere in the Bill where the council's powers at law are articulated and he asked to what extent will this body be able to acquire certain powers apart from being able to sue and be sued?

An official replied that this is a problem the Department is facing with the NICC's draft version of the Bill which provided for the Council to be a policy council and not an advisory council. If they stick to this council being an advisory council than there is no purpose in there being a juristic person,. However if it is a policy council, you could go the juristic person route, but then you will have to extend the functions and powers of the council. Overall, it is in the hands of the Committee whether the Committee wants this to be a policy or advisory council.

A committee member felt it was fundamental to give clarity to this right at the beginning. If the objectives of the council include policymaking and if they become a juristic person then their powers increase and take on a whole new meaning.

The Chair suggested that as they go through the Bill they will be mindful of this issue.

Clause 3: Objectives of Council
- Two objectives: advise the Minister and act as consultative forum for the Minister
- The Director General said that in looking closely through the documentation of the NICC, it was very clear that it was never envisaged as a policy-making body or to exercise executive functions. The emphasis in NICC documents has been on an advisory and consultative role.
- She sees the council as a mechanism where government can consult as widely as possible with a whole range of stakeholders. It is a body that provides the Minister with advice independent of what the Department or any other advisors would provide.
- In the Director General's view this council was never intended to be a policymaking body. Nor does it have a regulatory function nor an oversight function which is the role of the Portfolio Committee. She believes that the council's role is primarily an advisory one. Thus is there a need for this to be described as a juristic person? The implications of a juristic person and the powers of the council need to be discussed.
- Advice is not limited to the items set out in subclause (a) as Council is not precluded from any matter pertaining to developmental social welfare policy.
- The Council will be a key consultative forum. It should be seen as complementing and strengthening various consultative mechanisms, rather than replacing them.
- The relationships and communication between Council and other consultative forums must be clarified.
- How does Council ensure that its advice is taken seriously?
- Can the Council advise Provincial MECs ?

Discussion
A committee member pointed out that in the long title of the Bill it mentions consolidating a partnership, but says nothing about policy. So, anything that is changed will have an effect on this.

A committee member noted that it is not clear whether the council will be merely an instrument of the Department or whether it will have a certain amount of independence to promote amongst others, improved service delivery. If that is the case then it must have some independence.

The Director General replied that when such bodies are established there is always a concern about independence, even for the Chapter 9 constitutional bodies it has been an issue. This is so as Chapter 9 bodies normally have a departmental Director General who is the accounting officer for the Chapter 9 body. One would also have to look at the Public Finance Management Act which schedules public entities. The Minister for Finance would have to decide on its schedulingt. If the Council is to be scheduled as a Schedule 3 institution than it will have its own accounting officer with certain conditions having to be met. There are ways of looking at the independence and autonomy and one must also realise that independence and autonomy are relative concepts to whom and what.

A committee member agreed with the Director General saying that independence tends to be a fairly loaded concept with all kinds of surprises which may or may not have been the intention of the legislature. He suggested specifying clearly what the role of the Council would be and the manner in which it may exercise that role in such a way that it would not be subjected to any inhibition that would disempower it from effectively fulfilling its role. Rather than making a strong statement to say that it must be independent because many questions are going to arise from that.

The Chairperson commented that the establishment of the council is essentially to ensure that the voice of civil society comes into play at the very highest level with regard to policies, proposed legislation and finances so that the Government becomes sensitive to the needs and the aspirations of civil society. He suggested that they leave this issue at this stage and as they progress, such issues can be revisited.

Clause 4: Powers of Council
- The powers reflect the advisory and consultative role of the Council.
- The wording of Clause 4(c ) regarding the council's power to review national budgetary allocations needs to be more precise. Currently it could be interpreted to mean either the entire budget of the country, the budget of the national Department of Social Development or the budgets of both the national and provincial departments of welfare. The Department's understanding is that this refers to the national and provincial departments of welfare.

Discussion
A committee member asked the legal advisor from the Department to comment on the terminology in this clause in order to provide clarity on the issue.

The legal representative commented on the word "may" in the clause and agreed that the Committee must look at this much more carefully. "When you say may, it means may not as well" and she agreed there is a problem with that.

Clause 5: Duties of Council
- List of duties is comprehensive, but not exhaustive
- Reporting requirements must be aligned with the Public Finance Management Act

Discussion
A committee member pointed to the words "[must] consider" in 5 (c) and "[must] facilitate" in 5(d ), and was concerned that the council is supposed to be some sort of advisory body to the Ministry and yet they must also facilitate, consider and review. She asked what their real powers and functions be in the light of the "must"?

According to the Department's legal advisor, the duties expressed in Clause 5 are those that they must carry out before they can be able to advise.

The Chairperson observed that originally Clauses 4 and 5 were combined and he asked what was the Department's motivation for separating them?

An official explained that the State law advisors had decided on the separation of the clause.

Clause 6: Composition of Council
- The council should be composed of nine members with a maximum of four government and five non-government representatives.
- The five non-government members should be drawn from each of the following: a national professional body representing practitioners; the South African Council of Social Service Professions; national forums and networks in the developmental social welfare sector; national funder body and training institutions of social welfare personnel.
- The council must be representative of race, gender and disability.
- The NICC considered five models: Stakeholder constituency (service providers); Co- operative governance (to include provincial governance structures); Expert model (academic or experiential); Sector-based model (e.g. children, disability) and Grassroots model. It opted for a hybrid of the stakeholder and co-operative governance model.
- The size of the council had been reduced in the tabled Bill to ensure that Council does not become unwieldy. This is the main concern with regards to expanding the council. The Director General suggested that the Committee think through this carefully and see what size body is really needed.
- The emphasis in the Bill is on service providers.
- The department requested that the Portfolio Committee consider the following with regard to Clause 6:
Size and representation of Council; Grassroots "consumer" representation; Broader advertising for nominations; the role of the Portfolio Committee in selection process
and Term of office and reappointment.

Clause 7: Qualifications of members of Council, vacating of office and filling of vacancies
- The Department suggests that there is a need to amend 7(1)(a) regarding residency of those being appointed to the council since non-citizen permanent residents are appointed to public service. Knowledge and experience requirements should be in line with the social development mandate of department.
- There must be high standard of professional ethics included in the Bill.
- Reasons why a member must vacate office under clause 7 (3) should include misconduct and criminal offences.

As time ran out, the meeting was adjourned. Deliberations will continue possibly in early November or next year.

Appendix 1
DEPARTMENT OF SOCIAL DEVELOPMENT
Presentation on the Developmental Welfare Governance Bill, 1999

PURPOSE OF BRIEFING
· Background was provided at briefing on 24 September 2000
· Share department's understanding of the Bill
· Highlight issues for broader consultation process of Portfolio Committee

Clause 1:Definitions
· Name change of department and Ministry to Social Development must be reflected
· The name change may have implications for terminology in the Bill
-Does developmental social welfare equate to social development?

Clause 2: Establishment
· Establishment of a juristic person - South African Developmental Welfare Council
-Name of the juristic person should be reconsidered
-Need for clarity on issue of liability

Clause 3: Objectives
· Two main objectives:
-Advise the Minister
-Act as consultative forum for the Minister
· Emphasis in NICC documents has been on advisory and consultative role
· Council was never envisaged as an executive or policy-making body
· Advice is not limited to items set out in section 3 (a) (i) to (vi) as Council is not precluded from any matter pertaining to developmental social welfare policy
· Council is intended as a key consultative forum
· Council should be seen as complementing and strengthening various consultative mechanisms, rather than replacing them
· Relationship and communication between Council and other consultative forums must be clarified
· How does Council ensure that its advice is taken seriously
· Can the Council advise Provincial MECs

Clause 4: Powers of Council
· Powers reflect the advisory and consultative role of the Council
· Power to review national budgetary allocations - need to be more precise

Clause 5: Duties
· List of duties is comprehensive, but not exhaustive
· Reporting requirements must be aligned with the Public Finance Management Act

Clause 6: Composition
· Nine members - maximum 4 government and 5 non-government
· Non-government members:
-National body representing practitioners
-South African Council of Social Service Professions
-National forums and networks
-National funder body
-Training institutions of social welfare personnel
· Must be representative - race, gender and disability
· NICC considered 5 models:
-Stakeholder constituency (service providers)
-Co-operative governance (to include provincial governance structures)
-Expert model (academic or experiential)
-Sector-based model (e.g. children, disability)
-Grassroots model
· NICC opted for hybrid of stakeholder and co-operative governance model
· Size reduced in Bill to ensure that Council does not become unwieldy
· Emphasis in Bill is on service providers
· Portfolio Committee may wish to consider:
-Size and representation of Council
-Grassroots "consumer" representation
-Broader advertising for nominations
-Role of Portfolio Committee in selection process
-Term of office and reappointment

Clause 7: Qualifications
· Qualifications of members:
-Need to amend - permanent residents are appointed to public service
-Knowledge and experience requirements should be in line with social development mandate of department
-High standard of professional ethics
· Vacating office:
-Should include misconduct and criminal offences

Clauses 8 and 9
· Appointment of Chairperson and Vice Chairperson
· Meetings of Council

Clauses 10 and 11
· Executive Committee:
-Chair, Vice Chair and 3 other members
· Other committees
-Not confined to Council members
-Intended to expand capacity of Council to perform functions

Clause 12: Personnel and Finances
· Personnel
-Permanent staff - Assistant Director and two Senior Administrative Officers
-Responsible to Council and accountable to department
· Budget
-Must be approved by Minister in consultation with Minister of Finance

Members:
Fees, travel and subsistence: R 93 700
Phones, entertainment: R 36 000
Professional services R100 000
Staff, equipment, stationery,
travel, subsistence R456 000
TOTAL per annum R686 000

· Budget based on 3 formal meetings - should be reviewed
· Financial accountability to be aligned with Public Finance Management Act
· Questions raised by Auditor-General
-clarity on what will be reimbursed from Council's budget
-will Council maintain own financial records
-finances of Council must be subject to auditing

Conclusion
· Need for further consultations on Bill
· Areas for attention:
-definitions (clause 1)
-Objectives, Powers, Duties and Composition (clauses 3,4,5 and 6)
-Personnel and Finances (clause 12)
· MINMEC must be given opportunity to consider changes proposed by Committee