Natural Scientific Professions Bill: deliberations

Meeting report

ARTS, CULTURE, SCIENCE AND TECHNOLOGY PORTFOLIO COMMITTEE
10 March 2003
NATURAL SCIENTIFIC PROFESSIONS BILL: DELIBERATIONS
 

Natural Scientific Professions Bill [B56-2002]
Portfolio Committee Amendments to Bill (Appendix)

SUMMARY
Members raised concerns with Clause 15 regarding the level of accountability ensured in that provision. Specifically: to whom the funds would be lent and plans in place to ensure the representivity of the Council. During the discussion on Clause 16 Members sought clarity on the disclosure of information to the Council, the role of the Promotion of Access to Information Act, as well as the effect on the constitutional right to privacy. Concern was raised with Clause 18(2), which implies that those academics who are leaders in their respective fields but have not done any candidacy or internship work, will effectively be prevented from practising as natural scientists.

MINUTES
The Chair requested Ms Marjorie Pyoos, Chief Director: Research and Technology Development, Department of Science and Technology (the Department), to lead Members through the Bill.

Clause 14: General powers of Council
Ms Pyoos stated that this provision deals with the general powers of the Council with regard to selling, hiring, letting of properties etc., and therefore deals with the general powers in terms of operational and administrative issues.

The Chair noted that no concerns were raised with this clause.

Clause 15: Funds of Council and keeping and auditing of accounts
Ms Pyoos informed Members that several discussions took place during 2002 on the level of compliance with the provisions of the Public Finance Management Act (PFMA). These concerns have been addressed in this clause, as it complies fully with the PFMA. The Department would like to propose that Clause 15(2)(b) be deleted because it creates confusion. In any event Clause 15(2)(a) deals with raising money "by way of a loan" which has to be approved by both the Minister of Arts, Culture, Science and Technology and the Minister of Finance. Clause 15(2)(c) deals with a mortgage in terms of a loan granted via Clause 15(2)(b). Clause 15(2)(b) should thus be deleted because it is no longer necessary.

Ms S Motubatse-Hounkpatin (ANC) proposed that Clause 15(2)(b) be linked with Clause 14(a), as that clause does deal with the disposition of certain items in order to acquire funds for the operation of the Council.

Mr M Cassiem (IFP) stated that Parliament has a constitutionally imposed duty to ensure total accountability here. This provision allows the Department to essentially cascade its duties downwards to another council, and if Clause 15(2)(b) were allowed, cascading will continue in future. The current formulation of Clause 15(2)(b) leads to the structure being far less accountable and the Council is able to escape because it would merely contend that it lent the money to the third party in good faith. The result would be that no-one would be able to be brought to account for that money. The offending clause has to be removed.

The Chair sought clarity on who exactly Clause 15(2)(b) aims to benefit.

Ms Pyoos replied that these provisions allow for the lending of cash to the staff of the institution. Clause 15(2)(c) is more confusing in this regard because mortgaged property can now be secured via a loan in Clause 15(2)(b), but it is difficult to see how this could be done to benefit staff of the institution. It does not make sense. Clause 15(2)(c) will then be made to link up with Clause 15(2)(a), and Clause 15(2)(b) has to be deleted.

Ms Motubatse-Hounkpatin asked whether Clause 15(2)(c) is referring to office space or the apparatus needed.

Ms Pyoos responded that it refers to office space and does not include apparatus, because there are institutions with a small administrative staff component that works on a part-time basis. Such institutions might not conduct any research or require a lab, and thus "property" here refers to office space.

Mr V Gore (DP) was concerned that the Department was calling for the deletion of clauses from a Bill which it has itself proposed. What is the state of affairs in the Bill and who has it been inherited from?

Ms Pyoos replied that the Department has undergone a staff turnover and those managers and members of the legal services division that drove the Bill are no longer with the Department, with the result that a totally different structure is in place. At that stage there were no further changes that the Department could make to the Bill because it was already before this Committee, and it was decided that this Committee would then have to be approached and requested to effect certain amendments, as they are of so general a nature.

Mr Gore stated that he accepts the explanation offered by the Department but argued that it is a matter of concern that one Bill is presented by the Department, yet another Bill is then pushed for at another stage. The Department does not seem to be of a single voice here, which is needed at all times.

Ms Pyoos stated that the Department was committed to expressing itself in a single voice.

Prof I Mohamed (ANC) said that he was aware of universities that offer such loans to its staff members against their pension funds. He was not pleading for its inclusion, but merely wished to indicate that it does work.

Mr Cassiem reminded Members that the Committee had decided at the very beginning of the proceedings that only South African citizens would be eligible to sit on the Council, so that no problems would be raised regarding relocation. Secondly, it is imperative that the Department exercises very careful scrutiny with regard to monetary matters, because the PFMA provides that it would not be the Minister but the senior officials of the Department that would be held accountable here. It is these senior officials that would be held accountable in Clause 15(2)(b) and it is therefore in their interests to ensure that no lapses occur, or they would be personally liable.

Mr S Opperman (DP) sought clarity on the role to be played by the Department of Public Works with regard to the mortgaging of immovable property in Clause 15(2)(c), because it is the custodian of government property.

Ms Pyoos replied that the Council would not be registered as a public entity and would thus not receive public grant funding. Instead all the property would be bought from funds raised by the registration fees paid by its members. This is consistent with the approach adopted by the Department of Public Works.

Mr Cassiem suggested that Clause 15(3) is open to interpretation because it could be read to mean that the Council "must" remunerate its members, when it actually means that the Council must remunerate its members from Council funds alone, only when such funds become available. This ambiguity would be resolved by the insertion of the word "only" between "must" and "remunerate".

Ms Pyoos agreed that it is the Department's intention that members only be remunerated from Council funds. It is proposed that the word "only" be inserted after "officials" instead, as this reads better.

Ms Motubatse-Hounkpatin sought clarity on what precisely guiding principles of the Council would be in Clause 15(5).

Ms Pyoos responded that this could be done via a framework aimed at registered members either in South Africa or abroad. These would be training and education programmes that would focus on the development of students and registered persons, and would be financed by the registration fees.

The Chair sought clarity on the guidelines needed by the Council for this proposed training, and asked how the Council would identify those institutions if this function is performed by someone else?

Mr N Ngobo (ANC) asked the Department to explain whether it has put any strategy in place to address representivity concerns here.

Mr Cassiem questioned whether the Council is competent to approve these funds, and it should be part of an overall process.

Ms Motubatse-Hounkpatin proposed that the phrase "in line with the country's Human Resource Development strategy" be inserted in Clause 15(5).

Ms Pyoos replied that the Minister has the power to ensure that this is done when the Council reports to the Minister.

Mr Cassiem proposed that the Clause 15(11) instead read "...must apply due care, diligence and full transparency", because there have been too many incidences in which funds have not functioned properly due to a lack of full transparency.

The Chair suggested that Clause 15(5) read "in line with the country's strategy".

Ms Motubatse-Hounkpatin proposed that the phrase "reflecting the demographics" be inserted instead.

Ms Pyoos replied that this should instead relate to the national development imperatives rather than the demographics, because the fund is aimed at development programmes. It should thus read "to meet the national development imperatives" so that a wide range of development imperatives can be captured here, and these include the Human Resource Development Strategy and demographic concerns.

Ms Motubatse-Hounkpatin accepted this explanation.

Mr Smuts proposed that it read "in compliance with" rather than "to meet".

Mr Dithebe agreed.

The Chair noted that Members agreed to this amendment, and to Clause 15 as amended.

Clause 16: Reports to Department
Mr Gore contended that the formulation of this clause is a good step, but Parliament's oversight role with regard to the Report of the Council is not fully expressed here, and the reporting structures have to be strengthened.

Ms Pyoos proposed the insertion of the phrase "for tabling in Parliament".

The Chair noted that Members agreed to this amendment.

Mr Gore expressed concern with the potential disclosure of personal information of the applicant by the Council.

Mr S Dithebe (ANC) stated that he does not agree with Mr Gore because there are certain acts that could be a matter of public knowledge, such as someone who has been found guilty of misconduct.

Mr Gore stated that he disagrees with Mr Dithebe and hopes that the register would not be made public, and that the Council does not disclose the information to anyone else. The concern does not lie with those who have been found guilty of misconduct, but rather with the releasing of information of those who have not been found guilty of any misconduct and so forth.

Mr M Bapela, Manager: Legal Services from the Department, said it has to be remembered that the rights enshrined in the Constitution are not absolute, because Section 36 of the Constitution provides for the limitation of those rights in certain circumstances. Furthermore, the type of information required in this clause is governed by the Promotion of Access to Information Act, which also provides grounds on which such information may legally be withheld. Once information is supplied to an institution it becomes a matter of public record and anyone can then request that information. It also has to be remembered that if such a person requests the information, the institution in question has to first consult the person before disclosing information.

Mr Cassiem contended that an absurdity would be created if Mr Gore's proposal were to be adopted, because the Director General would then not be able to access information gathered by the Council. He stated that he is not convinced that this provision is inimical to privacy concerns.

Mr Gore stated that he still has concerns with this provision, but is in the hands of the Committee with regard to the way forward.

The Chair noted that Members agreed that the subclause would remain as it currently stands, as the disclosure of information is already comprehensively dealt with in the Promotion of Access to Information Act. Mr Gore is asked to prepare a written amendment to this provision before the meeting adjourns.

Clause 17: Committees of Council
The Chair noted that no concerns were raised with this clause.

Clauses 18-25
Ms Pyoos proposed that these eight clauses be dealt with as a single item because they all relate to the registration process.

Clause 18
Prof Mohamed raised concern with Clause 18(2) because, in the Mathematics field for example, there are people who are leaders in their fields who have not gone through any candidacy or apprenticeship period, yet they currently have several PhD students working under them. It appears that this provision would preclude these academics from registering and would ultimately be prevented from practising as natural scientists.

Ms Pyoos replied that Clause 18(1) has to be read with Clause 20 which provides that registration is only required for such persons should they wish to act as consultants, and it thus relates to consultancy work. The provision does not preclude academics from delivering academic programs.

Prof Mohamed and Mr Ngobo contended at length that this does not cure the situation sketched by Prof Mohamed.

Ms Pyoos explained that Clause 18 applies to those moving from candidate natural scientists to natural scientists and they then have to work under a professional natural scientist. Yet if, as contended by Prof Mohamed, persons have qualified a long time ago, it does not mean that they would then be compelled to work under a professional natural scientist. Instead a competency test would be conducted, as prescribed by the South African Qualifications Act, which would evaluate the person in question and would register him/her. The aim is to identify those that have not been registered under the previous dispensation. Current professors who have not served any candidacy will not be forced to work under a professional natural scientist.

This explanation was accepted by Members.

Clause 20
Mr Dithebe noted that Clause 20(4)(a)(v) does not apply to a member of the Council but only to an application, whereas Clause 6 includes both an applicant and a member of the Council.

Ms Pyoos replied that Mr Dithebe is correct in contending that this clause should be consistent with the approach adopted with regard to the Council.

Mr Herman Smuts, Principal State Law Advisor, added that Clause 6 does impose a stricter requirement in this regard, and the argument here is that an unrehabilitated insolvent may accept bribes by virtue of his/her position on the Council. Clause 20(4)(a)(v) is not as strict because the applicant is not in the same position as a Council member that can be bribed.

The Chair noted that Members agreed to these clauses.

Clauses 26 and 27
The Chair noted that members agreed to these clauses.

Clauses 28-34
Ms Pyoos proposed that these seven clauses be dealt with as a single item because they all deal with the instances of improper conduct.

Clause 28
Ms Motubatse-Hounkpatin stated that Mr Cassiem proposed that the phrase "and Ethics" be inserted after "Code of Conduct" in Clause 28(1).

Mr Smuts replied that a Code of Conduct includes ethics as well, and if the phrase "and Ethics" were to be included here it would create the assumption that the two differ. The provision should thus be left as it currently stands.

Mr Dithebe raised concern with the phrase "with the concurrence of the Director-General" in Clause 28(1), and asked how this provision would resolve a potential stalemate between the parties.

Mr Bapela proposed that this could be remedied by replacing the phrase "with the concurrence of" with "in consultation with".

The Chair noted that Members agreed to these clauses, and to Clause 28 as amended.

Clause 35: Professional fees
Mr Dithebe proposed that the Council should also be required to consult with "registered persons" here as well, and not only with the voluntary associations.

Ms Pyoos agreed that the clause should be so amended.

The Chair noted that Members agreed to this amendment.

Ms Motubatse-Hounkpatin asked whether these fees would be published via E-mail as well, as was decided in the previous meeting of this Committee.

Ms Pyoos said that the decision was reached because the aim was to publish the results of those who have been appointed to the Council to as many people and sectors as possible. This is not needed when only the guidelines on the professional fees are being published. The normal practice is to Gazette this.

The Chair added that the targeted persons here are the members of the Council, and this is therefore a more restricted group. She noted that Members agreed to this clause, as amended.

Clauses 36-39
Ms Pyoos informed Members that these clauses deal with the general appeals against certain decisions taken by the Council.

Clause 36
Members raised concern with the fact that the powers of the president of the Council are not clearly spelt out.

Mr Smuts agreed that it has to be spelt out.

Mr Bapela stated that both he and Mr Smuts are of the opinion that the word "appeal" in this clause has to be replaced with "object".

Mr Cassiem proposed that the phrase "against that decision" at the end of Clause 36(1)(b) be replaced with "for a formal review by the Council of that decision", and the references to "appeal" throughout the provision can still be retained.

The Chair noted that Members agreed to this amendment.

Clause 37
Mr Bapela referred Members to the proposed amendment to this provision contained in the document circulated. (see Appendix)

The Chair noted that Members agreed to these clauses, and to Clauses 36 and 37 as amended.

Clause 40: Delegation of powers
Mr Dithebe raised concern with the powers granted to the Minister in Clause 40(1) to delegate powers to "any other official", as it could even be delegated to a junior official.

Mr Smuts replied that this has to be redrafted.

Clause 41: Offences and penalties
The Chair noted that Members agreed to this clause.

Clause 42: Transitional provisions and savings
Ms Pyoos referred Members to the amendments proposed to this clause in the document (see Appendix).

Mr Dithebe asked whether Clasuse 42(9) implies that persons would now have to register again, even though they have already registered under the 1993 Act. What are the costs involved in having a second registration process, and it is necessary at all?

Ms Pyoos responded by reminding Members that these are transitional provisions and assured the Committee that these that have already registered via the old Act would remain so. The Bill does empower the Council to review the competencies required.

The Chair noted that Members agreed to this clause, as amended.

Clauses 43-45
The Chair noted that Members agreed to these clauses.

Schedule
Mr Cassiem sought reasons for the exclusion of astrology and nanno-technology sciences here.

Ms Pyoos replied that astrology is dealt with under the physical sciences, and nanno-technology is dealt with under the material or industrial sciences.

Mr Ngobo asked whether both scarce sciences and those that have not been covere but which may arise in the future have been provided for here.

Ms Pyoos responded that this is covered by Clause 19(2)(b).

Mr Gore contended that the Clause dealing with "the financial implications to the State" in the Explanatory Memorandum to the Bill states that there are "none that have not yet been budgeted for". This is unclear and has to be clarified.

Ms Pyoos replied that there are provisions in the Bill that allow the Minister to make advances to institutions, subject to conditions on the repayment of these funds. It is this not possible to state with certainty exactly how much the Minister will advance, and none has so far been budgeted for.

The Chair read the Motion of Desirability and noted that it was agreed to by Members. The Committee would vote on the Bill the following day.

The meeting was adjourned.

Appendix:
Portfolio Committee Amendments Agreed to

REPUBLIC OF SOUTH AFRICA

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PORTFOLIO COMMITTEE AMENDMENTS

TO

NATURAL SCIENTIFIC PROFESSIONS BILL

[B56---2002]

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(As agreed to by the Portfolio Committee on Arts, Culture, Science and Technology)
(National Assembly)
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[B56A---2002]

AMENDMENTS AGREED TO
NATURAL SCIENTIFIC PROFESSIONS BILL
-----------------------
[B56---2002]
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CLAUSE 1
1. On page 2, in line 18, to omit "a rule made by the Council" and to substitute "regulation"
2. On page 2, after line 27, to insert the following definition:
"regulation" means any regulation made under this Act;
3. On 2, in line 28, to omit the definition of "rule".
4. On page 2, in line 29, to omit "notice or rule issued or" and to substitute "regulation"

CLAUSE 3
1. On page 3, in line 13, after "(iii)" to insert "fairly"
2. On page 3, after line 20, to add the following subsection:
(2) The Council must be constituted in a manner that collectively represent the demographics
of the country"

CLAUSE 4
1. On page 3, in line 23, to omit "Council" and to substitute "Minister".
2. On page 3, in line 23, to omit "registered persons,".
3. On page 3, in line 24, after "nominate", to omit the comma.
4. On page 3, in line 25, to omit "60" and to substitute "30".
5. On page 3, in line 26, to omit "Council" and to substitute "Minister".
6. On page 3, in line 28, to omit "60" and to substitute "30".
7. On page 3, from line 30, to omit subsection (3) and to substitute:
(3) (a) The nominations received in terms of subsections (1) and (2) must be presented to a
panel appointed by the Minister in the prescribed manner.
(b) The panel must, within 30 days from the presentation of the nominations, make
recommendations to the Minister.".
8. On page 3, in line 32, to omit "60" and to substitute "30"
9. On page 3, in line 34, to omit "Council" and to substitute "Minister".
10. On page 3, in line 36, to omit "Council" and to substitute "Panel".
11. On page 3, in line 35, to omit "notice" and to substitute "invitation"

CLAUSE 5
1. On page 3, in line 53, to omit "all the members" to substitute "any member".
2. On page 3, in line 55, to omit "all the members" and to substitute "any member".

CLAUSE 6
1. On page 4, after line 28, to insert the following subsection:
(3) The Council may, by notice in writing, remove a member from office if the Council has
sufficient reason to believe that the person concerned is not fit and proper to hold office.

CLAUSE 8
1. On page 4, in line 52, to omit "allowances" and to insert "a honorarium".

CLAUSE 11
On page 5, in 27, after Council, to omit "may" and to substitute "shall"

CLAUSE 12
On page 5, in line 37, after Council, to omit "may" and to substitute "shall"

CLAUSE 13
1. On page 6, in line 20, before "conduct", to insert "through a recognised agency having the
competency to do so,"

CLAUSE 15
1. On page 6, from line 54, to omit paragraph (b).
2. On page 6, in line 59, to omit "(b)" and to substitute "(a)".
3. On page 7, in line 1, after "officials", to insert "only".
4. On page 7, in line 6, after "persons" to insert:
in compliance with the national developmental imperatives
5. On page 7 in line 27, to omit "care and diligence" and to substitute "care, diligence and full
transparence".

CLAUSE 16
1. On page 7, in line 31, to omit "Director-General with a" and to substitute "Minister with an
annual".
2. On page 7, in line 32, after "year" to insert "for tabling in Parliament".

CLAUSE 28
1. On page 11, in line 2, to omit "with the concurrence of" and to substitute "after consultation
with "

CLAUSE 35
1. On page 14, in line 2, after "associations" to insert "and registered persons".

CLAUSE 36
1. On page 14, in line 7, to omit "Appeal" and to substitute "Objections".
2. On page 14, in line 15, to omit "president of the Council against that decision" and to substitute
"Council for a formal review of its decision".

CLAUSE 37
1. Clause rejected.

NEW CLAUSE
1. That the following be a new clause to follow clause 36.

Regulations and rules
37. (1) The Minister may, after consultation with the Council, make regulations regarding-
(a) any matter that is required or permitted to be prescribed in terms of this Act; and
(b) generally, any matter which it is necessary or expedient to prescribe in order to achieve the objects of this Act.
(2) The Council may, with the concurrence of the Minister, by notice in the Gazette make rules regarding-
(a) procedures at any meeting of the Council or any committee thereof;
(b) registers to be kept by the Council;
(c) conduct on the part of a registered person which constitutes improper conduct;
(d) generally any matter which it is necessary or expedient to prescribe in order to perform its
functions properly.

CLAUSE 40
1. On page 14, in line 42, after "Council" to insert "or to make regulations".

CLAUSE 42
1. On page 15, from line 29, to omit "South African Council for Natural Scientific Professions
referred to in subsection (2)" and to substitute "Minister".
2. On page 15, in line 32, to omit "3" and to substitute "4".

CLAUSE 45
1. On page 16, in line 10 to omit "2002" and to substitute "2003".