National Health Laboratory Service Bill: negotiating mandates

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Meeting Summary

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Meeting report


13 September 2000

Relevant Documents:
National Health Laboratory Service Bill
Negotiating Mandate submissions from Kwa-Zulu Natal, North West Province, Gauteng, Mpumalanga, Western Cape and the Free State
Institute for Democracy in South Africa (Idasa): Proposed Horizontal Division of Revenue 2001/2; Welfare Quarterly Sectoral Report

The Committee went through a detailed clause-by-clause reading of the Bill with provinces providing their position on various clauses. Most of the discussion focused on clarification of items, with an emphasis on the implications of the Bill and staff and labour provisions in general. There were also concerns about over-delegation.

Mr Ray Mabope, Special Advisor to the Ministry of Health, and a State Law Advisor were present for a clause-by-clause reading of the Bill, with input from the provinces in the form of their negotiating mandates.

The Chairperson, Ms Jacobus, pointed out that there had been no negotiating mandate submitted from the Western Cape, nor from the Northern Province. She noted that this was unacceptable.

The representatives from Kwa-Zulu Natal made a series of technical, largely grammatical, suggestions. These are outlined in their submission.

The Chairperson asked provincial representatives if they would agree to an overriding clause, saying that all powers should be exercised within the context of the national health policy. She was not ready to suggest a specific wording for this suggestion. The Eastern Cape representative agreed, saying that since the Bill touches on many areas, the policy framework needs guidance.

Clause 7
The Eastern Cape suggested that the Board include a representative of organised labour since a great deal of the Bill has to do with labour. Kwa-Zulu Natal agreed. The Chairperson also agreed and said this amendment would be made.

Clause 8
Dr Nel, the Free State representative, recommended notice of appointments to the Board be made not only in the Gazette, but in the national news media as well. He said this suggestion is based on the assumption that the Gazette is not widely read. The Chairperson asked the State Law Advisor to investigate if advertising is ever mentioned in a Bill and the financial implications of that. Kwa-Zulu Natal and Gauteng agreed that subclause 8(6) was clumsy and badly drafted. The State Law Advisor said he would look into drafting this better.

Clause 9
The Free State asked for clarity on why 9(1)(a) says the Minister "must" appoint a chairperson whereas 9(1)(b) says the Minister "may" appoint a vice-chairperson. The State Law Advisor responded that the vice-chairperson's position is a discretionary one, whereas there must be a chairperson.

Dr Nel asked if this was inconsistent with clause 9(2), which says the vice-person must act as chairperson when the chairperson is absent or unable to perform. The Gauteng representative asked if the vice-chairperson was to be appointed from the Board or from elsewhere. Mr Mabope of the Department said they would investigate how other Boards are appointed and report back. He then asked the Committee if they wanted the appointment of the vice-chairperson to be discretionary or not. The Eastern Cape said it should not be discretionary whereas Kwa-Zulu Natal thought it should be discretionary. Gauteng asked the motivation for the discretion. The Chairperson said they could vote on this later.

Clause 10
Kwa-Zulu Natal asked that 10(1)(f) be deleted, saying it was covered by 10(1)(a). Mr Mabope said this was not so and that 10(1)(f) is necessary since a person who is "ordinarily resident" of South Africa can become not ordinarily resident. The State Law Advisor agreed.

Clause 11
Gauteng asked if 11(7) was not already covered by 9(2). Mr Mabope and the State Law Advisor agreed that it appeared to be so - they would investigate and get back to the Committee on this.

Clause 12
Eastern Cape asked if "specialist advisory committees" were necessary and wondered why not just specialists and advisors? The Chairperson said the committees were discretionary.

Clause 13
Dr Jassat of the Portfolio Committee on Health asked if 13(1)(b) should read "…but not exceeding three". Mr Mabope said a Board must have a mandate to appoint its "top brass" and the number that may be needed should not be limited.

Clause 14
Gauteng suggested mentioning collective bargaining, meaning consultation with organised labour. Mr Mabope said it can be hard to come up with conditions of service in a piece of legislation since it would mean coming to Parliament each time an amendment was needed. The Chairperson recommended inserting the words "taking into account due process of collective bargaining" at clause 14(1). Mr Mabope said there were no problems with this at the policy level. The Chairperson asked the State Law Advisor to report back on this.

Gauteng suggested 14(2)(b) seemed to undermine the organised labour component and asked if it referred to secondment. The State Law Advisor said it does refer to secondment. Gauteng asked how this would affect permanent staff. Mr Mabope responded that people would be brought in on a "needs" basis and then return from whence they came.

Clause 15
Dr Jassat asked about purchasing from beyond the borders of South Africa. Mr Mabope said it was not clear who they could purchase from but that he would look into it. The Free State said any outside purchases should be on a competitive basis. Mr Mabope said they need a strategy that will bring all laboratory services under one roof. He added that they did not want to establish a laboratory service and then take work away from it. He said that once you establish an entity, you have to support it with work. Efficiency could be gradually improved and that there would be latitude for services from outside of the country.

The Northern Cape said if laboratory services have to deal with outsiders, it should be covered under clause 5. Gauteng asked what if a test were not available locally? Mr Mabope agreed they might want to capture this, meaning the authority to purchase services from outside, and noted that it is indeed covered by clause 5(e).

Clause 17
Mpumalanga asked how they could ensure respect for customs and traditions of those from whom they import tissue. Mr Mabope said this was covered by the Human Tissue Act. He added that laboratories do not look for tissues but have them referred, so it has nothing to do with them.

The Free State asked about cross-subsidisation between tests. Mr Mabope answered it depends on what the state decides is a national priority and that the Board makes recommendations to the Minister about tariffs for each test, as part of its system of checks and balances. He added that cross-subsidisation means efficiency in the cost structure of the service.

Ms Gouws asked if the intellectual property provisions in clause 17 infringed on the constitutional rights of persons to profit from their own discoveries and inventions. She asked that this be examined more closely. Mr Mabope responded that nowadays knowledge is money and teams that make discoveries are re-imbursed appropriately.

Clause 18
The Chairperson asked if they could assume the state is the principal funder. Mr Mabope said they could. Gauteng suggested 18(c) be listed first, since Parliament would provide the most funding. Mr Mabope said, in fact, the list is accurate as it stands as funding does not flow directly from Parliament.

Clause 19
Gauteng asked what they would do if there was overspending resulting in a deficit? Mr Mabope said this was covered by the Public Finance Management Act and added that over-expenditure is not encouraged.

Clause 20
Eastern Cape asked the motivation behind 20(1)(b) which requires consultation with provinces in respect of fees for the public health sector. The State Law Advisor said it was a policy matter. The Chairperson asked that it be made clear so that it was not open to interpretation in any way.

At 20(3), Mpumalanga asked how affordability and accessibility could be ensured. Mr Mabope replied that this was done through the process of oversight by the Board and the MEC.
The Chairperson asked if clause 20(3) was not prescriptive and therefore should be deleted? The State Law Advisor promised to look at it. Mr Mabope noted that comprehensive cost recovery is key and that services must generate funds.

Clause 22
Gauteng asked what was meant by "necessary changes". Mr Mabope responded that legislation is constantly amended so this makes provision for possible amendments.

Clause 23
Eastern Cape asked if 23(5) was not prescriptive and also duplicative of 23(2). Mr Mabope said they would look into it and advise Committee accordingly.

Clause 26
Gauteng said there seemed to be too much delegation, which made them uncomfortable. Northern Cape agreed there was dangerous delegation there. Mr Mabope responded there were two principles at work here; first, the idea that the Board can delegate anything within the Executive Committee and that any further delegation has to be cleared with the Board first. So the Board exercises its discretion as to what can and cannot be delegated. This is the system of checks and balances for delegation.

Clause 27
Kwa-Zulu Natal suggested that the references to specific labour acts at 27(1)(d) be replaced with "relevant labour legislation", since the list is not comprehensive and also subject to change. The State Law Advisor agreed with this suggestion since otherwise the Act would have to be changed every time there was new labour legislation.

Gauteng asked is clause 27(1)(e) and (f) could not be deleted since these areas are covered by labour legislation. Mr Mabope said they could not be deleted as the Board has to give specific direction and rules in these areas.

Schedule and Transitional Provisions.
Eastern Cape asked if items 2 and 3 of the Schedule were legally enforceable. Mr Mabope responded that they are. The Committee decided to change 3(4)(c) to read "any relevant labour legislation" and to delete 3(4)(a), "the Labour Relations Act, 1995".

Northern Cape noted that "Services" was not defined in the Transitional Provisions: item 1. Mr Mabope promised to attend to this.

The Eastern Cape asked about outsourcing. Mr Mabope said that outsourcing would become part of the NHLS.

The Chairperson asked the Provinces for final negotiating mandates by Friday 15 September and the meeting was adjourned.


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