Choice on Termination of Pregnancy Amendment Bill: briefing; National Public Health Institute of South Africa Bill

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02 May 2018
Chairperson: Ms M Dunjwa (ANC)
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Meeting Summary

Members of the Portfolio Committee on Health met to deliberate on the National Public Health Institute of South Africa (NAPHISA) Bill, and to receive the response from the National Department of Health (NDoH) on the Choice on Termination of Pregnancy Amendment Bill.

Amendments were proposed to a few clauses of the NAPHISA Bill. The inclusion of an environmental health specialist as part of the NAPHISA board, and imposing environmental health functions on the Institute, was agreed upon by all Members of the Committee. They supported the removal of one community representative from the composition of the board. The Committee debated on the proposal to disqualify candidates with allegations against them from appointment to the board, and whether to include a provision for the suspension of board members. Both the proposals were rejected. On certain clauses, Parliament’s legal services were requested to further investigate the Bill’s compliance with other laws.

After receiving all the proposed amendments from Members, it was decided that the Parliamentary legal services would consider all the legal implications before making a proposal to the Committee, which would then deliberate further before the Bill was considered for adoption.

The Department of Health presented its position on the Choice on Termination of Pregnancy Amendment Bill. It urged the Committee to reject the Bill, because it was not aligned to the guidelines of the World Health Organisation. There was no evidence to support the amendments proposed. The costs of providing the services proposed by the Amendment Bill were prohibitive, and the amendments would add further barriers to access to termination of pregnancy services.

The Chairperson suggested putting the discussion on hold to investigate the constitutionality of the proposed amendments. It was important to do so at this stage before deliberating on its details. After the constitutional investigation, the Committee could than take a position on the Bill going forward.

Meeting report

National Public Health Institutes of South Africa (NAPHISA) Bill.

Mr A Mahlalela (ANC) asked for direction on how the deliberations would proceed.

The Chairperson indicated that the Bill would be reviewed clause by clause. She read the first paragraph of the Bill, and opened it up for comments. There were no comments.


Mr Mahlalela asked about the express inclusion of environmental health in the Board of NAPHISA and its functions. He still proposed an environmental health specialist be one of the seven members who must be part of the Board as provided in clause 5(1)(c)(vii). It was his view that there should be an environmental health division also included in the structures of the NAPHISA as a subdivision/department. The last bullet point and last sentence of the preamble should read, ‘occupational health and [include] environmental health.’ He was still not convinced of the National Department of Health’s argument, given that previously environmental health and occupational health were the same specialisation. 

Ms E Wilson (DA) agreed with Mr Mahlalela. There was a significant difference between environmental health and occupational health.

Mr A Shaik Emam (NFP) also agreed, and requested the Department to clarify the difference between the two again.

Ms Precious Matsoso, Director General (DG): National Department of Health (DG-NDoH), explained Section 83 of the National Health Act, which made provisions for environmental health investigations and also imposed environmental health functions and obligations. There were already provisions in the National Health Act for environmental health investigations, and she proposed that its inclusion into NAPHISA Bill should be cross-referenced to the Act.

Mr Shaik Emam asked the NDoH to concede that environmental health and occupational health were different functions.

Ms Wilson concurred with Mr Shaik Emam and requested that an environmental health specialist should remain as part of the NAPHISA Board. Clause (1)(c)(vii) should not be amended.

Ms Daksha Kassan, Parliamentary Legal Advisor, said she would have to check the National Health Act, to which the DG had referred, but as Members had pointed out, the Bill required a specialist. She would report back to the Committee whether the inclusion of environmental health functions in NAPHISA would impact on other legislation. 

The Chairperson said the inclusion of environmental health was to support the Portfolio Committee’s oversight functions. The expertise required must therefore be specified, and it should not be taken for granted that it was included in the Act by default. Environmental and occupational health must not be clubbed together, because the two were different. The issue of environmental health could remain in the background if it was not expressly stated.  Divisions within the Institute must know there was specific dedication towards environmental health. It must not be hidden somewhere outside the Bill.

Ms Matsoso urged the Committee to consider the functions of the proposed environmental health divisions. The lawyers needed to cross reference them to the National Health Act.

Mr Mahlalela advised that the cross referencing should be done in the context of NAPHISA and its functions.

Ms Wilson added that readers would not acknowledge the importance of environmental health within NAPHISA if it was not included in the Bill.

The Chairperson confirmed that the Parliamentary legal advisor would consider the proposed inclusion of environmental health against other laws, and would get back to the Committee for further deliberation.

Dr Anban Pillay: Deputy Director General (DDG): NDoH, recommended that the legal advisor should also look specifically at the laws and regulations of the Department of Environmental Affairs (DEA) in order not to interfere with its mandate. 

The Chairperson had to leave the meeting urgently to attend an interview, and requested for the Whip of the Committee, Mr Mahlalela, to stand in for her as Chairperson until she returned. There were no objections.

Clause 3

Mr Mahlalela pointed out that the inclusion of environmental health should also be applied to this clause, as well as clause 2 and other clauses speaking to the functions and obligations of NAPHISA. The legal team should advise on all the instances where environmental health should be included in the Bill. He requested an explanation from the NDoH on why the recommendations provided in clause 3(l) should not be binding on government, as was currently stipulated. If the recommendations were not binding on government, it would mean the recommendations were a choice and not enforceable.

Ms Matsoso said she was uncertain whether it was permissible for the Department to bind the whole of government to the recommendations. The Department was not sure if it had the authority to bind the whole of government, and not only the health sector.

Mr Shaik Emam asked to interrogate the recommendations further. What was meant by the recommendations and to whom would they be made? Was NAPHISA not part of government, or should it bypass the National Department of Health? What was meant by binding? Should NAPHISA implement the recommendations even if the NDoH did not agree with the implementation? He proposed that the recommendations should be enforceable to ensure the mandate was implemented, otherwise NAPHISA would not have authority to ensure what needed to be implemented, would be implemented.

Ms Wilson agreed with Mr Shaik Emam’s position. It should also be considered that there would be other countries involved, and it could not be the intention of the Bill to also bind them to the recommendations.

Ms C Ndaba (ANC) also agreed the Bill should bind only the National Department of Health and not the whole of government. The NDoH would be able to coordinate with the other government departments.

Ms Matsoso also agreed. It was more practical to bind only the health sector, and to include a clause on how to work with other departments. Lessons learnt from the listeriosis crisis with the Department of Agriculture had indicated that the Department of Health could not force the Department of Agriculture to act.

Ms Kassan highlighted that the issues were on accountability when making recommendations. If it was binding on the Department of Health, it would be binding on the Minister of Health, who may have other matters to take into consideration.  What would be the position if the Minister did not implement with good reason -- would he be accountable to Parliament? Would the Minister not be able to take into consideration other matters before acting on the recommendations?

Mr Mahlalela asked how checks and balances could be created. What was the point of making recommendations if they werenot binding? What was the reason for recommendations if they would not be taken seriously and were not enforceable? The checks and balances were necessary.

Mr Shaik Emam responded that accountability rested with the National Department of Health and the Minister. If the recommendations were not implemented, the Ministry would be accountable to Parliament.

Ms Ndaba confirmed it was the responsibility of the Department of Health to determine exactly how to draft the Bill, with assistance from the legal unit, as it was ultimately accountable.

Ms Wilson agreed that the Minister was ultimately accountable. It was the Portfolio Committee on Health’s job to hold the Minister to account. The Minister of Health was accountable to the Committee, not the other way around. The Minister would have to explain to the Committee why recommendations had not been implemented.

Clause 5

Ms Ndaba proposed that clause 5 (1)(d) be removed. How did one person represent the communities of nine provinces? One person could not account for all communities in the country. What criteria would be used to select the one community representative?

Ms Wilson agreed that it would be too cumbersome to have one person represent an entire country. Everyone would want their own representative. The provision should be deleted.

Mr Shaik Emam also agreed and asked whether NAPHISA as a national institution would have substructures in the provinces, and if each province would then have a representative?

Dr S Thembekwayo (EFF) asked the delegation from the NDoH to explain the reasoning behind only one community representative.

Ms Matsoso explained that it would be a technical board, so it would be fitting to also have someone who  could represent matters that affected communities on the board, and allow it to see things from a committee perspective. This intention was for a community representative to provide a community outlook, more than having one person to represent and be accountable for all communities. It must be considered how to get a community voice into the technical structures. It was in that context that it had been included. She also agreed the proposed selection process would be lengthy and cumbersome.

Mr Shaik Emam proposed that three community representatives be a part of the NAPHISA board, given the explanation provided by the DG on the importance of community representation.

Mr Mahlalela argued that one could not be a representative without being accountable, and one could not be a community representative without being appointed by the community. The one community representative stipulated would technically be the Minister and Deputy Minister’s representative, not a community representative.

Ms Ndaba affirmed that the Members all agreed that the one community representative should be removed from the composition of the NAPHISA board.

The interim Chairperson agreed to delete the clause. One person could not represent the interests of all communities unless the clause was reformulated, using examples of community representation from other legislation.

Clause 6

It was agreed by all the Members of the Committee that clause 6 (3) would be removed following the removal of clause 5 (1)(d).

Clause 8

Mr Shaik Emam had a problem with clause 8 (1) (c). In previous years, people had been appointed to positions even if there were allegations against them. This delayed employment processes and was costly. Perhaps it should be specifically included, in the clause, that if there were pending allegations, a person would not be considered for appointment to the board. Even though allegations were only allegations and not proven facts, it was allegations that in the past had led to lengthy and costly processes.

Ms S Kopane (DA) proposed including the vetting of the candidates before their appointment to the Board.

Ms Ndaba said that although she understood the positon of Mr Shaik Emam, the clause should remain the way it was and the vetting and screening of candidates should be done as proposed by Ms Kopane. Allegations were not always true and may unfairly prejudice candidates.

Mr Mahlalela requested the Parliamentary legal services to assist by not including unlawful clauses in the Bill. The law was clear that everyone was innocent until proven guilty. Would Mr Shaik Emam’s proposed inclusion be constitutional?

Ms Kopane suggested including that appointed board members should be fit and proper persons. This would protect against appointing anyone with a bad reputation. She also warned that it was unconstitutional not to give someone a job because of allegations.

Ms Wilson agreed with Ms Kopane, and suggested including ‘fit and proper’ in clause 6 (1).

Mr Shaik Emam  agreed that not being appointed because of pending allegations would solve only part of the problem. The Committee should be mindful that some allegations were true. He was satisfied that the proposed addition of ‘fit and proper’ persons would narrow the gap for corruption.

Mr Mahlalela asked if any other employees were allowed on the board, or whether the Bill intended only NAPHISA employees to be prohibited in clause 8 (1)(e)?

Ms Matsoso said that the provision was intended to prohibit employees of NAPHISA from applying, as it would create governance problems if an employee were to serve on the board. She said experts from other departments within government should be allowed to serve on the board -- there were no grounds for the contrary.

Ms Ndaba (ANC) asked whether it also excluded employees of the Department of Health.

Ms Matsoso responded that the Bill must be read in conjuction with other legislation. The Public Service Act stated that all public servants must disclose which boards they served on, and in appointing a board member cross-departmentally, the one Minister would inform the other and confer before appointment.

Mr Shaik Emam sought clarity on whether, besides NAPHISA employees, it was acceptable to nominate employees from any other department. Was everyone else eligible to be appointed? Was it fair to have anyone nominate anyone?

Ms Wilson expressed the view that other government officials could not be prohibited from Board appointment. There were good grounds not to appoint NAPHISA employees’ because of governance and the confidentiality of sensitive information that would be disclosed. The clause should not be amended.

Mr Shaik Emam raised the point that suspension was not included in the grounds for disqualification, vacation and removal of a member from the board. The process from suspension to conviction, and subsequently removal or termination, may take years to finalise. What would be done with suspended members? Should it not be included in the clause that when a board member was suspended, such member could not serve on the board. The Committee should also decide on the issue of payment when a member was suspended. Suspension should not impede the functioning of the board.

Mr Mahlalela pointed out that board members were not employees. They were removed from the Board, as provided in clause 8 (4), and not suspended. Suspension did not apply to Board members.

Ms Ndaba concurred with Mr Mahlalela, adding that there was no Labour Relations Act for board members. They were not employees, as provided in the Act. The clause should not be amended. However, public representatives, such as Members of Parliament, should not be part of the board.

Mr Mahlalela said public representatives serving on the board was a separate issue. The issue of suspension of board members could not be included. Board members were appointed and removed when not performing duties to the satisfaction of those who made the appointment.  It was they who had the power to remove board members. If suspension was included in the clause, it would open long processes which could not be applied to board members. The court process could not be avoided, as a person was always entitled to seek legal relief. Even if a clause was stipulated for suspension, it could still be appealed in the courts.

Mr Shaik Emam argued he wanted to close any gaps. If it was expressly stated that a person could not serve on the Board while suspended, the courts would be unlikely to overturn this if there was an express provision or agreement with board members.

Mr Mahlalela maintained that inclusion of suspension in the clause would be cumbersome.

Clause 10

Ms  Kopane proposed the addition of “in consultations with the Minister” in clause 11 (4). The Minister of Health should also be consulted on the amendment of performance agreements.

Ms Matsoso responded that performance agreements were derived from the annual performance plan (APP) which the Minister was consulted on and presented to Parliament for approval.  She cautioned that requiring the Minister of Health to interrogate amendments to the Chief Executive Officer’s (CEO) performance agreement could impose micro-management duties on the Minister.

Mr Mahlalela confirmed that the board was the accounting authority of NAPHISA. Performance agreements should be done with the accounting authority, and not the Minister. The Minister’s responsibility was only to table the APP to Parliament, who must then approve it.

Clause 12

Ms Wilson was concerned about clause 12(1)(c), which gives sole discretion to the CEO to appoint NAPHISA employees. She believed the board must be consulted, and one or two members of the board must sit in on the interviews. If the sole discretion was with the CEO, there was potential for corruption.

Mr Mahlalela said that it could not be the intention of the Bill for the board to appoint the cleaning staff of NAPHISA, and neither could the CEO appoint every employee. Perhaps senior management could be appointed in consultation with the board, but this could be provided for in the regulations and not in the Bill. Also, if the clause was entirely removed, it would cut off the CEO’s accountability function. The CEO had to account to the board when staff members did not deliver.

Ms Wilson understood Mr A Mahlalela’s (ANC) stance, but argued that the CEO should not have sole discretion to make senior management appointments.

Mr Shaik Emam read out clause 12 (1)(c), which emphasised that appointments would be done “in accordance with organisational structure.” This indicated that the CEO would not appoint every employee.

Mr Mahlalela asked why the section on accountability and reporting processes the entity had to follow had been omitted from the Bill.

Ms Matsoso confirmed that it was an omission, and the section should be included in the Bill.

Mr Mahlalela instructed the Department to include the section on accountability and reporting in the Bill.

Clause 13

Ms Kopane acknowledged that secondment was a good thing, especially when there was lack of skills. However, there had been a case in another department, where someone had been seconded to Cape Town and upon return, had discovered someone else had been appointed to take over the position. How did one protect the jobs of those who had been seconded?

Ms Matsoso responded that section 15 of the Public Service Act was very specific on what was expected of the executive authority when officials were seconded. It had to be for a specific service and for a specific period. The department mentioned had been in contravention of the law.

Mr Mahlalela advised Ms Kopane that the official should challenge the matter legally.

Mr Shaik Emam wanted to know, since NAPHISA would be an independent structure, whether this would not create duplication with other departments.

Ms Matsoso replied that only one institution had raised concerns about potential duplication, and that had been the Medical Research Council. It had been proposed that the language of the Bill should be specific on the research activities of NAPHISA. It had been agreed to confine this aspect to be related to the research work of NAPHISA only. The Department was not aware of any other duplications.

Mr Mahlalela closed the deliberations and concluded the process going forward. Parliamentary legal services were to consider the clauses and proposed amendments that required legal input, and would then make proposals for the Committee to come back and deliberate on. He handed over to the Chairperson, who was back from interviews.

Choice on Termination of Pregnancy Amendment Bill, 2017

The Chairperson provided background to the presentation. The Choice on Termination of Pregnancy Amendment Bill had been presented to the Committee as a Private Member’s Bill by Ms C Dudley (ACDP) in March 2018. It had then been decided that the Committee would discuss the Bill at a later date and then arrange for a response to Ms Dudley. The Department of Health had also been requested to prepare a response to the Bill and present it to the Committee.

Dr Yogan Pillay, Deputy Director General, NDoH, led the Department’s response to the proposed amendments to the Act. The presentation specifically focused on the three main proposed amendments and the costing. The Department urged the Committee to reject the Bill on the following grounds:

The proposed amendment that required every woman to have access to ultrasound and ultrasound examinations before deciding on termination was not prescribed by the World Health Organisation (WHO), Safe Abortion Guidance, 2010. It was not stipulated as a mandatory routine pre-termination investigation. The Department expressed the view that showing women who presented for termination with ultrasound images had two limitations. It could bias the contents of any counseling, which should be non-directive. It could also pressure the women to change her decision by the ultrasound facilitating feelings of guilt, for example.

The proposed provision for mandatory pre-and-post counseling for all terminations was contrary to the WHO provisions. The WHO guidelines stated that counseling should be voluntary, confidential and non-directive to women who desired it, by a trained person. Also, the current Choice on Termination of Pregnancy Act provided for voluntary counseling, aligned to WHO recommendations.

The proposed addition that for abortions between 12-20 weeks, a medical practitioner and a social worker must agree that the pregnancy would significantly “affect the social or economic circumstances of the woman” was also not aligned to the WHO. The Department was of the view that the woman was best positioned to decide to terminate, including taking her socio-economic position into account. The involvement of a social worker could be a barrier to care, including increasing delays that were not medically necessary.

The WHO had written wrote to the Department and advised: “The proposed pre-conditions to provision of care are not evidence-based, nor aligned with WHO recommendations. They are likely to further hamper access to safe abortion within the public sector and contribute to a rise in unsafe abortions which carry a higher risk of morbidity.”

Lastly, and perhaps most important, were the cost implications of the proposed Choice on Termination of Pregnancy Amendment Bill. The Department had determined that implementing the Bill’s proposals would cost R47 billion over five years – much higher than previously estimated by Ms Dudley.

Dr Pillay said the National Department of Health was not in support of the proposed Bill. As pointed out by the WHO, there was no evidence to support the amendments proposed. The cost of providing the service as proposed by the amendment, were prohibitive, and the amendments would add further barriers to access to termination of pregnancy services.


Ms Kopane said that what had been presented by the Department was the same thing as had been said when the Bill was proposed, and the only difference was the costing.  The Bill could not be supported because the resources to implement it were not available, particularly considering the scarcity of doctors in the country.

Mr Mahlalela asked the Department if it had investigated the constitutionality of the proposed Bill. The presentation had asserted that the pre-conditions would impose barriers to woman exercising their right to terminate. Had the Department checked the extent to which it would be declared unconstitutional?

Ms Dudley agreed that the costs were prohibitive at this stage. What was the Department’s position on the proposed clause that allowed for termination of pregnancy on the ground of possible harm to a fetus in the third trimester, and the intention of the drafters of the legislation at the time?

Ms Wilson commended Ms Dudley for considering the sensitive, but highly important, subject of mental illnesses because of abortions. She cautioned against the view presented by the Department of Health that many women who went for terminations had already made the decision to go through with it. Some women were pressured or forced to terminate by society.

Mr Mahlalela was also of the opinion that the Bill was not desirable, regardless of its constitutionality.

Ms Kopane said it first needed to be assessed whether preventative precautions were accessible at primary health care facilities before considering the provisions for termination. Most of society were black people who did not have access to information. There should be campaigns, health promotions and accessible family planning. It was impractical to talk about termination without discussing prevention. Next time the focus should be on prevention.

Mr Shaik Emam said even if the Bill was not desirable, there were some important facts that had to be looked at, and how these would be dealt with. The emphasis on prevention and pre-termination counseling was important, but it was not certain whether there were sufficient resources for prevention.

Department’s response

Dr Pillay said the Department of Health had considered only the constitutionality of the delivery of the proposed amendment -- providing access to termination services was constitutional. It would have to investigate whether the actual proposed amendments were constitutional or not. The Department had spent a lot of time to increase access to contraceptives. Access to termination was not itself a contraceptive. The Bill was in the context of increasing access to termination, not to promote it as a primary contraceptive. Access to termination should be available within the first 12 weeks of pregnancy, and that was why comment on third trimester termination had been omitted.

The Chairperson suggested putting the discussion on hold to investigate the constitutionality of the proposed amendments. It was important to do so at this stage before deliberating on its details. After the constitutional investigation, the Committee could than take a position on the Bill going forward.

The meeting was adjourned.

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