Science and Technology Laws Amendment Draft Bill: DST briefing

Meeting report

The Chairperson confirmed that the Bill was ATC’d (appeared in the Announcements, Tabling & Committee Report) on 29 June, and had been referred in terms of Rule 159 to the National Assembly and the National Council of Provinces. However, the Bill had not been tabled in Parliament as yet, hence the Committee’s entitlement to this initial briefing. The Deputy Director-General of the Department of Science and Technology (DST) Nombuyiselo Mokoena would do the presentation on behalf of the Department.   The Minister Mmamoloko Kubayi-Ngubane was present at the meeting.

Minister’s Remarks

The Minister gave a brief overview of the Science and Technology Laws Amendment Bill. She confirmed that there were a number of issues that were raised by the Committee about the misalignment of various pieces of legislation. The Committee had therefore requested that there be a realignment of the legislation from the Department’s side. The Bill had gone through the normal process of Cabinet approval. There was some uncertainty about Parliament’s introduction but she had signed the appropriate letters for tabling. The other issue that was raised pertained to the appointment of the Chairpersons of the Executive Office (CEOs). She confirmed that the Department was however in the process of appointing new boards. Therefore, the issues raised about the Bill were to be implemented by the new boards. Issues were highlighted about the critical area of disclosures and whether the Department could get people to disclose information as there was no legal mechanism that could give the Department the power to force entities to disclose information about their financial interests. This raised the important area of governance and developing mechanisms to ensure that good corporate governance existed within the Department’s entities.

She reiterated the issue of synchronising the processes within the Department’s entities. Synchronicity in the appointment of boards was also an important area.  The amendments were based mainly on the Academy of Science of South Africa (ASSAf), the Council for Scientific and Industrial Research (CSIR), the Human Sciences Research Act, the Technology Innovation Agency (TIA) and the South African National Space Agency (SANSA) as the most affected. She also reemphasized the issue of remuneration that had to be done in consultation with the boards and the National Treasury. Similarly, she highlighted that the synchronisation process was meant to ensure that there was executive accountability from the Minister in the work and dealings of the entities so that the Minister could hold the boards accountable. The Bill was simple and straight forward. In terms of consultation, the entities were consulted because the majority of them as boards were more experienced and could provide insight.

The Chairperson noted that in terms of Rule 159 the draft Bill had been submitted to Parliament but had not been tabled as yet. So the Bill was still in the initial process, and the Committee awaited the formal tabling of it.  

Briefing by the Department of Science and Technology on the Science and Technology Laws Amendment Bill, 2018: DST

Ms Nombuyiselo Mokoena, Deputy Director General (DDG): DST, said that the National Research Foundation (NRF) would not be discussed as it had been dealt with when the NRF Act was discussed. The process would focus mainly on the inconsistencies in the legislation that was supposed to guide the entities. She reiterated the Minister’s emphasis on harmonising the different pieces of legislation to govern all the entities that reported to the Minister. The key objectives the Bill addressed included:

• the determination of the remuneration and allowances of the members of the  Boards or Councils and members of the committees of the Boards or Councils of the entities;
• the termination of membership of Boards or Councils of the entities, as well as the disqualification of members or potential members from the Boards or Councils; and
• the processes for the appointment of the Chief Executive Officers of the entities in consultation with the Minister

Amendments of special significance around harmony, good corporate governance, accountability and the Public Finance Management Act (PFMA) were:

• the appointment of Chief Executive Officers to provide for the determination by the Boards or Councils of the procedures at the Boards’ or Councils’ meetings;  
• To provide for the procedure for the convening of the Boards’ or Councils’ meetings at the request of the members of the Boards and create a uniform process;
• To provide for disclosure by members of the Boards or Councils of interests in the business of the entities and to harmonise the timeframes for making such disclosures to the Minister;
• A member of the Board must, upon appointment and thereafter annually, disclose to the Minister, by way of a written statement, any interest which could reasonably compromise the Board in the performance of its functions;
• The Board may delegate to the chairperson, any member or committee of the Board or the chief executive officer any function entrusted to the Board by or under this Act, on such conditions as the Board may determine; and
• To provide for the repeal of sections dealing with matters that are contained in the Public Finance Management Act, 1999                                     

Ms Mokoena said that the circumstances under which the boards and councils were not permitted to participate and vote were not discussed, but said that those areas should be harmonised across entities. If entities were required to make any regulations, the process should be done in consultation with the Minister. The delegation of functions in writing by the board’s members and councils to the individual committees varied across the entities and the process of delegating had to be uniform across all these entities.

Where entities performed functions outside the Republic of South Africa, Ms Mokoena said that the amendment addressed the requirements by stating that the function should be guided by processes that ensured that no agreements were violated between South Africa and other countries.

In terms of consultation and as highlighted by the Minster, all the stakeholders had been consulted. The Office of the Chief State Law Advisor had also certified the Bill as constitutionally compliant. The Department of Planning, Monitoring and Evaluation (DPME) exempted the application of SEIAS (Socio Economic Impact Assessment) in the respect of the Bill. The Bill was further published in the Government Gazette for public comment for 60 days. In addition to this the Bill was published in the website inviting all interested parties to submit their comments within the 60-day period. Submissions were received from two organisations namely the Western Cape Provincial Government and the Technology Innovation Agency. Responses to both submissions have been submitted in writing.

Discussion

Ms A Lotriet (DA) asked whether it would be possible to get copies of all the submission made because there were submissions that had been dealt with but the Committee did not have access to them.

Ms N January, Head of Legal Services and Technology, DST said that copies of the submissions and the responses would be made available to the Committee. The area of disqualification was covered in these submissions and the legislation was then amended to cover who was a fit and proper person. An emendation was also made with regard to the applicability of the PFMA.

Dr S Thembekwayo (EFF) commented on the submissions made and questioned whether the number of submissions made  - which was only two in this case– allowed the Department to continue with the work it was doing.

The Minister said that the Department had consulted with entities and opened publicly for written submissions. The consultation with entities was almost akin to the workshop process because there was constant interaction to get their feedback. One could even say it was like they were co-drafting in the process because they made inputs throughout the process. When she came in as the Minister she felt that there were certain aspects that required strengthening and some of the drafts were then sent back to entities again to ensure that they were comfortable.

Ms A Mfulo (ANC) sought clarity on performance by entities outside of the country, and asked who would be a signatory if there was an agreement. She emphasised that there was a need for control in this area. She asked how it would read if it were amended.

Ms January said that one of the exercises that was done when harmonising the legislation process was to check in each piece of legislation if the relevant provisions were present and if not they would be inserted. So this provision stated that if the entities performed any function outside the country either by request from the Minister or any other government department, then the applicable legislation, treaties and agreements would have to be followed. Entities had to perform functions within the boundaries of the applicable legislation. If for example the CSIR was performing in Uganda, they had to comply with the CSIR Act. In this case they would have to get the approval of the Minister, and if an agreement required a signature then the executive authority would provide for this. It was all about compliance with the applicable legislation.

She added that the amendments sought to ensure compliance with the legislature and ensured that the public interest was protected at all costs.  In some cases the HSRC did not have that provision, and it therefore had to be inserted.

The Minister made special emphasis on the issue about entities performing outside the country. It had to be noted that in terms of the Constitution entities had to sign different categories of the Memoranda of Understanding, and agreements had to be submitted to Parliament. This was to make sure that there was oversight and accountability to Parliament and the Executive.

Ms Mfulo noted that she saw the word CSIR in slide 11 and assumed that it referred to all the entities. She asked whether this was just an example because if it referred to all the entities then it needed to be communicated.

The Minister referred to the slide and said that it referred to the clauses which were amended in the CSIR. The table was used for ease of use and reference for the Committee.

Ms Mfulo asked if all the boards had to make disclosures to the board itself and the Minister so that board members could know what was happening.

Ms January said that the legislation stated that disclosure had to be made to the Minister at the time of appointment and annually. For each and every meeting, the board members had to sign disclosure forms. That was why it was said in other provisions that if there was a conflict of interest, the board member had either to recuse him or herself or not participate. This was informed by disclosure of interest because one could not participate in cases where there was a conflict of interest.

Ms Mfulo said that an amendment also referred to the PMFA. It had to be made clear that if it was deleted then it needed to state that this was due to adherence to the PFMA.

The Minister said that to avoid misunderstanding the position was taken that all government entities had no option but to comply with the entire PFMA.

Ms January made an addition with regard to PFMA’s applicability. All the Departments’ entities were listed in a way in which they showed applicability to the PFMA, hence there was no need to repeat this in in the legislation.

Ms Mfulo said that the Department was saying it was not consulting the community. It was an operational issue, and operational issues also affected communities directly or indirectly. This had to be looked at.

The Minister said that the DDG was trying to make it clear that the Department was not going to do community consultations because the State Law Advisors had advised the Department to go if it needed extensive consultation. All Bills in terms of the law had to be published for 30 days for public consultation. This Bill had gone through the process of public consultation.

The Chairperson provided clarity and said that the formal process had not yet been started. It would be advertised and more submissions would be received following the advertisement. The Department would come again and go through the legislation clause by clause with the Committee.

The Chairperson asked whether there were any vacancies that needed to be filled before the process could be streamlined. The Chairperson asked further if there were any acting CEOs with regard to that. He sought clarity on how eager the Department was to get the Committee to do its job according to the legislature.

The Minister said that the Department only had the CEO position that was vacant. There was an acting CEO and all the other CEO positions in all the entities had been filled. She clarified that by today Cabinet would approve about three boards and the last one would be done later this year. The Department was keen to start with new boards that had an understanding of what was expected of them.

Ms January added that the SEIAS (Socio-Economic Impact Assessment System) was a process that was executed through the Department of Planning, Monitoring and Evaluation (DPME) before any policy and legislation was drafted. It teased out the social and economic implications of the legislation. This process was followed when the Department drafted the NRF because the legislation was being reviewed. The current process however focused on governance issues and the DPME had indicated that there were no social impacts in totality as the only entities that would be affected were those which the legislation applied to. She clarified that this did not imply that there was no consultation process and instead emphasised that there had been a consultation process for 120 days. So the SEIAS was not done in detail as was required.

Ms January reiterated that the copies of the submissions received by the Department would be made available to the Committee. The responses dealt with among other things, disqualification. The current legislation stated that if one was found to be unfit and improper, one would be disqualified. But a discussion was held by the Department and entities that concluded that this was unfair to people who wanted to apply. It was then decided that this should be a decision made by the court, hence this was covered in the legislation to deal with the subjective basis of what it meant to be fit and proper. Submissions made to the 2014 review of the legislature would further be made available to the committee.

The Minister emphasised that as per the Constitution, even when entities were to sign the different categories of Memoranda of Understanding and agreements, these needed to be submitted to Parliament to ensure oversight. This was to avoid a case where an activity was performed that was not sanctioned by the Constitution. She reiterated that the provision further ensured that entities were aligned and there was a clear understanding that when entities performed outside of the country there was accountability both to Parliament and the executive.

The Chairperson thanked the Minister and Department and said that once the Bill had been tabled then the Committee would proceed formally.

The meeting was adjourned.