The Office on Institutions Supporting Democracy (OISD) briefed the Committee on the legal implications of the interview process for candidates for the Pan South African Language Board (PanSALB).. The OISD outlined the procedure in terms of the relevant legislation which had to be followed when interviews were to take place. An ad hoc committee had to be formed, in consultation between the Portfolio Committee and the Minister. The ad hoc committee was charged with inviting members of the public for nominations. These nominated candidates would then be interviewed and shortlisted by the Committee before sending their recommendations to the Minister for appointment.
While there were irregularities in the process, the OISD said the Committee should continue with the process. It commented that the chairperson of the dissolved PanSALB board was appealing the matter at the Supreme Court, but it believed that this would not affect the interview procedure since legal precedent suggested that an interdict to prevent the filling of vacancies relied on the appeal of a court judgement, while this issue was a Ministerial administration action.
Members of the Committee said they were particularly confused about the procedural process. Questions were asked about who appointed the ad hoc committee, and who sat on it. The Committee said that the OISD needed to work very closely with it to ensure that proper procedure was followed.
Background to PanSALB situation
The Chairperson said that the Committee had had this issue on the table since 2014, and it had been a long walk. It had made the Pan South African Language Board (PanSALB) a priority and had been hoping that due to the seriousness of the situation, PanSALB would have become a better organisation. When the Committee was formed in 2014, PanSALB had a new board and the Committee had hoped it would have provided the incentive to turn the situation around, but the board had been dissolved in 2016 due to the many problems in the organisation. After that, the Committee had thought they would be able to start a process to elect a new board. The reason why there was such a big problem in PanSALB was that in the previous term, the chief executive officer (CEO) had become became the accounting authority, which was illegal. However, the matter had been taken to court, and the Committee could not move on the process of the new board. The Committee now had curricula vitae (CVs) which had been sent to the Committee to consider, shortlist and then conduct interviews. The Chairperson said that it was important to ensure that the process was watertight, otherwise the end result would be flawed and it may be challenged.
Office on Institutions Supporting Democracy: Briefing
Mr Kaya Zweni, Head: Office on Institutions Supporting Democracy (OISD), said that in terms of the PanSALB Act, as amended (No 59 of 1995), section 5 of that Act was instructive as to what process must be followed when the Board was being appointed. The appointing authority was the Minister, but there was process which had to be followed. There should be an ad hoc committee that must be appointed after consultation with this Portfolio Committee of Parliament. This ad hoc committee should consist of no fewer than nine persons and must be charged with the responsibility of inviting members of the public for nominations. Subsequent to receiving the nominations, it must forward the nominations to this Committee for processing. Processing in this case meant shortlisting and interviewing, which must at a later stage be given to the Minister for appointment with recommendations.
Mr Zweni said when the OICD was perusing the process that was followed, they had noticed that there was a letter written by the Minister to the Portfolio Committee Chairperson, wherein the Minister was advising or informing this Committee of nine people who had been appointed as ad hoc committee members to run with the process of inviting nominees from the general public. If one looked closely at that list, the Committee members were all officials of the Department of Arts and Culture (DAC). When they received the nominations, they had noticed that from the advert -- which was not issued by the ad hoc committee, but by the Minister -- that there were two people who correspondents were supposed to contact. They suspected that these two people were also officials of the DAC. What they needed to make sure of was that the recommendations sent to Parliament for consideration came from this Committee, and not from anyone else.
Mr Zweni said that the OICD had been advised that the chairperson of the dissolved board was appealing the matter at the Supreme Court of Appeals because the initial appeal at the High Court had been dismissed with costs. They had looked at the Act and section 18 of the Supreme Court Act suggested that the appeal on a judgment of a lower court suspended the effectiveness of that judgment. However, the issue of PanSALB was an administration action by the Minister which, in his view, was different from the judgment of a court. Upon further review, they had found that there was no interdict prohibiting the Minister from filling the vacancies until the matter was dealt with at court. The Committee should be aware that in the process of filling the vacancies there might be an interdict, although there was no process under way for that currently.
Ms S Tsoleli (ANC) asked who appointed the ad hoc committee. Who should be part of the Committee?
Mr Zweni said it was the Minister who appointed the ad hoc Committee, but it had to be done after consulting with this Portfolio Committee. The Act was not explicit. However, the spirit of the Act indicated that it should be persons who were and may not be subjected to any influence by the Minister, or by the Committee.
Mr G Grootboom (DA) wanted to know if the appointment of the ad hoc committee was procedurally flawed.
Mr Zweni said that the conclusion was that the appointment of the ad hoc committee was procedurally flawed.
Mr Grootboom asked if it was the outgoing board or the Minister who sets up the terms and references of the advertisement.
Mr Herman Tembe, Legal Assistant: OISD that currently there was no board at PanSALB, which meant the board which Mr Grootboom was speaking about was defunct. Being defunct meant that there was no responsibility which they were charged with. It was the ad hoc committee which, after consultation with this Portfolio Committee, could set up the terms of reference for the recruitment of the new board.
Mr T Makondo (ANC) said it remained confusing, since none of the Members appeared to know what process had been followed to this point in time. He could not recall being consulted by the Minister in relation to the process. He also did not know the people who were serving on the ad hoc committee. If they proceeded, what would be the implications?
Mr Zwene said that the implication was that the process might be challenged as being void from the beginning. This was because there had been no consultation with the Committee – and there should have been consultation. There was, however, nothing legally preventing the Committee from conducting interviews and appointing the board.
The Chairperson said she thought what they needed to do was to write to the Department with the assistance of the office of the OISD, and outline what needed to happen and how it should happen. The OISD needed to work closely with the Committee on PanSALB.
He thanked the OISD for their briefing.
The meeting was adjourned.
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