BRRR available here once published: 2018 Budget Review & Recommendations Reports – BRRR
The Members deliberated on the iKamva Digital Skills Institute Bill with the Department of Telecommunication and Postal Services.
After the Parliamentary Legal Advisor had taken the Committee though the various clauses where changes had been introduced following deliberations at the previous meeting, the main topic of discussion revolved around whether civil servants and office bearers of political parties should be allowed to serve on the board of a government entity. The Committee decided that they should include the clause prohibiting office bearers of political parties registered with the Independent Electoral Commission (IEC) from being part of a Board of a public entity – in this case, the Institute. The Members debated this at large and eventually came to the decision to including the clause for the sake of independence and on the basis that the right to freedom of association was in relation to joining a political party, and not to being part of a Board.
The Members made final changes to the Bill and would return to go through it clause by clause when it had been printed in the Creda version.
The Committee presented the Budgetary Review and Recommendation Report (BRRR). It was adopted with all the corrections.
Chairperson’s opening remarks
The Chairperson said that he received correspondence that the two Bills in front of them, the iKamva Bill and the amendment Bill, should be processed and concluded before 2018. He had told the House Chair, Mr Frolick, that the Committee did not have the necessary legal support in terms of content advice as well as research. Because of the technicality of the Bill, and the interest of the industry in the Bill and the advice from Members, when the Bill was introduced some time ago, there had been about 46 submissions. He had told Mr Frolick that they not only needed support, but that they would need no less than a week or two to conduct public hearings.
Having listened to the inputs of both the State Law Advisor and the Parliamentary Legal Advisor, the Committee realised that they also were not confident about the content of the Bill. If they were not confident, then how could the Committee be, considering they were not real experts in the field? The Committee needed capacity. The House Chair had responded that they could give the Committee an advisor or researcher, but they were committed in another Committee. He had argued that if the work had to be done, then those people should be allocated to the Committee. He had written them a letter stating that if that capacity was not available internally, it must be procured externally, because there was no way they could continue with the Bill unless they had capacity. He had given them time and said that even before they started with the submission, the team had to be in a position to look at the Bill -- they did not want to wait until the submissions -- and they must go through the Bill as a team before the submissions. This was so that when they got the submissions they knew what they were working with. He hoped that they would be in a position in time to get a response, and hoped that he had the Committee’s support on that position.
Mr C Mackenzie (DA) said that he did have their support.
The Chairperson said he had also been in talks with State Information Technology Agency (SITA) officials regarding the challenges which had lead to the resignation of it Chief Financial Officer (CFO). He needed to spend some time with the leadership of SITA to understand the intricacies, so that they were able with the challenges that confront both them and SITA. When departments were invited to appear and there was a matter that involved SITA, SITA was bound to be called to appear. However, the challenge of encroaching into oversight work, which was the responsibility of this Committee, was always there unless it was managed. It was a very thin line to walk on, and he hoped they would navigate that route and see where it would take them.
iKamva Digital Skills Institute Bill: Deliberation
Ms Fatima Ebrahim, Parliamentary Legal Advisor, led the deliberation and said that what she had was to take the version that had been presented at the last meeting and accepted all the track changes that they were happy with, because the track changes were now longer than the actual original Bill, and it was becoming quite confusing to read. The Chairperson would recall that there were one or two issues that he had asked the Members to go back to their caucuses and take a position on, and let the Committee know. Those issues were not going to take them long to draft, as they were just policy matters that needed a yes or a no. They could fairly easily do that within a day and then send the Bill to Creda printers to put it in the Creda version, so that when they did the formal adoption, they could see the Bill exactly as it was going to look when it became an Act. It was much easier for them to look at it that way. She said that she would only highlight the issues where they had made changes.
On the long title of the Bill, on page two, they would recall that the Department had requested that they add the word “training”. Therefore, where they speak of the function of the collaborative laboratories, they talk about collaborative laboratories for digital skills knowledge production, training and coordination. They were in agreement that that accurately reflected what the intention of these CoLabs was.
Clause 1: Definitions
Under “CoLab,” they had carried through the “training” as they had in the long title. She had added the definition of these two pieces of legislation -- the Continuing Education and Training Act as well as the Higher Education and Training Act -- because they used it later on in the Bill. So instead of repeating it in full every time, it was just a drafting convention that they dispense with it upfront. That had no bearing on content at all. On page six, “Post-School Education and Training Institution,” a mistake had crept in where the title of the Act had been incorrectly referenced. It was in fact the “Continuing Education and Training Act,” so they had corrected that.
Clause 2: Establishment of Institute
There were just minor wording changes. They had removed the word “the.”
Clause 3: Objects of Institute
They have added the word “innovative” research networks instead of just “research networks.” She was sure that came from Prof Claassen of the National Electronic Media Institute of SA (NEMISA), but they had no objection as Parliamentary Legal Advisors.
Clause 4: Functions of Institute
Some rewording had been done here, but without changing the content. They had said last week that they were going to try and tidy up the drafting. They were referring to “collaboration” in quite a few of these sub-paragraphs, and what they had done was to try and collapse the duty of collaborating. Therefore, one had to do all of those things but in doing so, one needed to collaborate with Government, business, civil society, education and training institutions. It would be seen now, under subsection 2(c), that was where the collaboration had found a new home. The content still remained exactly the same. On page eight, there was a duty to avoid duplication, fill gaps and to maximise the use of resources. She had also brought that down -- that was just drafting style, and it did not affect the content at all. In subsection three, they had changed the word “authorise” to “direct.” This was in relation to the Minister directing the Institute to perform any additional functions not inconsistent with this Act. She agreed that that was the preferred wording.
Clause 6: Establishment, composition and functions of the Board
On page 10, they had replaced subsection five with the Public Finance Management Act (PFMA) instead of referring to subsection 2(3), which referred them back to the PFMA. The purpose of this was just a drafting convention so that people did not have to flip through the Act continuously once it came into operation. Again, it had no bearing on the meaning at all. On page 11, subsection eight, “Chairperson” was meant to be spelt with a small “c,” which they had done.
Clause 9: Disqualification of a member of the Board and removal from office
This was on page 13, and was the big one. The Chairperson would recall that he had asked Members to come back to them on two issues: firstly, whether they felt that public servants should be prohibited from being part of the Board; and secondly, the eligibility of office bearers and employees of political parties. Ms J Kilian (ANC) had raised a concern as to whether they would be limiting the freedom of association if they prohibited these people from serving. Ms Ebrahim said that she had considered it, and certainly there could be a legal challenge, but her own view was that in a Board one wanted independence. When one talked about an office bearer of a political party, that could mean anybody from an extremely senior person to somebody who served in a very minor constituency in a rural area. Those people would have a very different amount of influence. However, to say that when it came to people who were occupying seemingly smaller positions compared to those occupying more important positions, it would be very difficult to draft that in law because each political party operated very differently. In her own view, the prohibition was justified, bu she did agree that the wording needed to be cleaned up. What they had now said was that it was an “office bearer or employee of any political party registered in terms of the Electoral Commission Act.” She was willing to consider dropping the “employee” part, meaning those employees that would serve as administrative people, legal advisors, accountants, etc, for a particular political party. The political sway and the independence, actually referred to the office bearers of that particular party, but the Committee could consider that, together with the issues of those in public service. The Department was of the view that it was important to leave that open so that the Minister had the choice to appoint such people because of the specific skill set that they would bring in. Members would recall that Ms Kilian had said that that was not necessarily the case, but it was something for the Committee to decide. It was on those two issues that they awaited the Committee’s instruction before they moved on.
The Chairperson asked whether that was where she was ending.
Ms Ebrahim responded that there was more, but she did not know if the Chairperson wanted her to pause.
The Chairperson told her to proceed.
Clause 11: Conflict of interest
On page 16, in section 11(1), they talk about members of the Board performing their functions “in a fair, unbiased and proper manner,” and they had just carried that over to sub-section two for the sake of completeness. At the end of that clause, they would recall that they had had quite a long discussion on what the fine should be. She had upped it to R500 000 instead of the R250 000 that it was originally. Her view remained, however, that they could not force the judiciary to issue a fine of a specific amount. There was a separation of powers, and they needed to respect the independence of the judiciary. She was happy to increase it to R500 000. They had not increased the imprisonment period -- they had kept that at five years -- unless the Committee felt that that should also be a little bit longer.
Clause 12: Code of ethics
As they mentioned in the meeting last week, instead of using the word “adopt” on page 17, they had now said to “develop” the code of ethics. They had also put in a review period for the code of ethics, of at least every five years. The Committee could consider whether they wanted it to be a shorter period, but when they say at least every five years, of course nothing prevented them from doing it earlier. They just clarified that this code of ethics must be developed by the Board within 120 days from the appointment of the first Board in terms of this Act.
Clause 13: Board Committees
Ms Ebrahim said that she had added one minor change to 13(1), where she had said that the Board may appoint one or more committees in terms of this Act, or any other law. They would recall that they had had a discussion about the PFMA and the audit committee, with the PFMA stating that one must have this committee. There was a concern that because this clause was drafted as a “may,” this Board may think that they had an option not to follow the PFMA. To clarify that, they had added “in terms of this Act or any other law.” On page 18, she had added something new, because when she was looking through the issue of these committees, they had not dealt with the manner in which they could be dissolved. It was also important when one established a sub-committee of this nature, on what basis the Board was going to be dissolved. One would not want the Board to dissolve willy-nilly and have new committees to suit ulterior motives, so she had just dealt with the issue of dissolution to say that that must be covered as well.
Clause 14: Meetings of boards
On page 18 and 19, they had had a discussion as to what exactly was meant by sub-section seven, and she had said that she would get back to the Committee. Her view on the reading of sub-section seven was that it was referring specifically to voting “round robin” style, sending the email out and asking whether people were in agreement or not. The issue was that it did not capture the attendance via electronic means at a meeting, and that was an issue that was covered in the Companies Act, where it says that Board meetings may be conducted by electronic communication provided that that communication allowed all meeting participants to participate reasonably and effectively in the meeting and to communicate concurrently with each other, without an intermediary. That was whether they had it up on a screen or via a telecom call -- it allowed that. The Committee could decide whether it also wanted her to include that. It was a policy issue, but she thought it was extremely useful -- it was a cost saving measure, instead of flying Board members especially when there was an urgent meeting. If the Committee was in agreement, they could simply include an added clause to cover it.
The Chairperson asked that because it was a new matter, whether there were any reflections on this specific matter.
He supported it, as it made perfect sense. The fact was that even when judges or presidents were sworn in and were taking an oath -- for instance, when a person had to act as a president in the absence of a president -- they could actually do that electronically as well. The fact was that it was practised and they may need input from a particular person who may not necessarily be in the meeting, and they would be able to deal with that matter. The fact that the world was moving towards a digital life surely meant that hugging and kissing in meetings was no longer that important. He said that they must include it and see that there was no objection.
Ms Ebrahim responded that that was captured.
Clause 15: Dissolution of the board
She though it had been Ms M Shinn (DA) who had raised the issue of what meant by “mismanagement” when they said that the Board could be dissolved on grounds of mismanagement. It was a clause that appeared in a number of pieces of legislation. What she had done was to try and clarify it a little bit, because she thought that it did raise some confusion about management in terms of what the role of the Chief Executive Officer (CEO) was in relation to that of the Board, as the oversight authority. What she had said now was that where the Board had failed or was unable to perform its duties in terms of the Act, for whatever reason, that would be a basis to dissolve. A new part had been added in 15(1)(c) “on any other reasonable grounds which renders the continued effective functioning of the Board impossible.” By way of example, that may include if there was an irretrievable breakdown between the Minister and the Board. Instead of closing that gap by referring to specific incidents, it had been kept a little broad. However, the test there for the Minister would be that it needed to be serious enough that the Board could not continue to function effectively, and of course the Promotion of Administrative Justice Act (PAJA) would come into play and the Minister would have to allow people to make representations, and all of those processes that would need to be followed. She thought that covered the confusion of what was meant by the term “mismanagement.”
Clause 16: Appointment and conditions of service of CEO and CFO
There was a very minor change on the last line, where “minister” was a small “m” instead of a capital “M.”
Clause 18: Termination of employment of CEO and CFO
“Or” and “and” was not a minor thing in law -- it was actually quite significant. They had changed it to an “or”, to terminate the chief executive officer or the chief financial officer, so it did not mean terminate both at the same time. That was quite an important one picked up by the Department.
Clause 23: Transactional arrangements
In terms of 23(8), they would recall that they hadhad a discussion about this and she hadsaid that she would allow the DDG to respond to the issue of the CEO of NEMISA and the transfer to the new institute. Her reading of this clause was that this person who was in the acting position now would also be transferred, but would be transferred as an acting person and not be transferred formally into that post as a permanent position. She knew that the Committee had reservations and the DDG was going to respond on the legality of that appointment in the first place. The difficulty that they also sit with, was that they had the Labour Relations Act (LRA) that was saying that they needed to transfer all of these employees. Personally, that would be an interesting legal challenge because this was not a going concern -- it was a business in the ordinary sense when they talk about section 197 transfers. This was actually quite a unique situation. It was a Government company that was being shut down and they hada new entity. She thought that there could be legal challenges both ways in terms of the transfers, and the safer option was to transfer the staff, so that they did not have todeal with labour disputes afterwards. In respect of this particular person, she was going to allow the DDG to give them clarity.
Mr Omega Shelembe, DDG: State Owned Entity (SOE) Oversight, DTPS, said that they had tried to respond to this issue at the last meeting, and had subsequently discussed the matter again. They wished to put it that an acting appointment was an appointment that could be withdrawn at any time, so that was the first thing. There was no entitlement to acting in terms of the LRA, as they understood it. If it was felt not desirable for this acting person to act in the entity that was being established, that may easily be withdrawn and a new person would act. The way they understood the Committee’s concern was that it was not only with respect to the entity, and that the Committee was concerned even within the current NEMISA having a Board member acting as the CEO. It was the same view that the Minister had had, and had communicated to the current Board. The Minister had requested the Board to expedite the process of getting an “acceptable” person to act as the CEO of NEMISA. They understood that the Board was under way to recruit the formal appointment of a permanent CEO, and that by the time this Bill became law that would have been dealt with. In short, if it were to happen that the current acting person was still acting at the time this Bill became law and the Committee did not wish to have that person to continue, that acting position could easily be withdrawn.
The Chairperson said it was not up to the Committee. They did not run the administration and did not micromanage the Department, as well as its entities. They were just expressing a view of what they perceived to be out of line. Their work was oversight and they were not accountable for the right and the wrong that happened in the Department, but if they saw something they were concerned about then they had the responsibility to raise that matter.
They would never say “fire, withdraw, appoint” -- they could not do those things. They would not hold the person accountable for his appointment because he did not appoint himself. That was the position of the Committee, they could not dictate to the Department. Even in law they could not legislate for a person, as a rule. The Committee had expressed its view, they have to do their work and the Department was to do theirs. If the Department was comfortable with the arrangement, then that was up to them.
MS Ebrahim said that that was all from her, she awaited direction on Clause 9, the disqualification of a member of the Board. That was in relation to officials in the public service and persons employed, or office bearers, of political parties.
The Chairperson said that they had reflected on the matter. The question that came to mind was that if someone, for example, was the chairperson of the ANC in Mpumalanga, was reasonably qualified and held an advanced IT qualification from China, what negativity would this person bring to an entity like this one if appointed? What were the politics? Politically, what were the things that this person could do to disrupt the organisation? They would be constitutionally denying a person who did not even pose a threat to the entity, and denying it the services of a very skilful person.
He thought this Act would not stand a constitutional challenge. Interesting enough, the DG for State Security could perhaps become a board member, and there were so many things that were happening in the entity that may impact him, but he was allowed to be a Board member. The main thing was what was that they were running away from political players that they were comfortable with, in favour of the people in the administration.
The argument raised by Ms Kilian holds -- thatin the past they did not have sufficient knowledgeable people who could make an input, and over time that became a convention or practice to allow civil servants to be part of the Board. They needed to look back and see whether they had benefited from Board members who had been active public servants, and what the downside was.
Mr Mackenzie said that he previously made reference to the Gambling Board in Gauteng, where office bearers in a political party were not allowed to hold positions in gambling companies, for example. It was not in the national Act, but it was in the Provincial Act. He said Ms Ebrahim had put it best when she said that the intention must be to create an independent Board, one that was free of political influence. The freedom of association argument was valid, because one would not want people not joining a political party of their choice. However, if they run for elected office it was a political commitment, whereas membership was something else.
He would argue for the inclusion of the clause to make sure that this entity was independent, similar to the way that they would like to see a professional civil servant not being an adherent to a particular ideology or political party. Therefore he would support the inclusion of the clause.
The Chairperson asked whether he was referring to political parties that were in Parliament, or any political party.
Mr Mackenzie said that he was referring to any registered political party.
Ms Ebrahim said that the difficulty with leaving it loosely drafted, the way it was in the original version and the way in which it in fact appears in many pieces of legislation, was that the way in which politics was maturing was very different to what it was 20 years ago when they had specific political parties and they knew what they stood for, and that was what they were. Today there was Black First Land First (BLF), there was Fees Must Fall (FMF) and she could quite easily make an argument that FMF or BLF was a political movement, notwithstanding that they were not going to be registered with the IEC and contest elections. The previous version was quite loose, and one could make an argument that anybody in any organised group was political in some way or another.
The question here was what was the mischief that they were trying to prevent? The mischief was political influence, and political influence could happen only where there was power. That power would be where that political entity, party, gathering of people had decision-making power somewhere, whether it was in Parliament or elsewhere. She was more comfortable in drafting it in the style that they had to say that they must be registered with the Independent Electoral Commission (IEC). Of course, what that did not prevent was the mischief of a political party that was not registered, but lobbied a political party that was registered, the way the trade unionists would do. However, that was a different thing, and they were making it too complicated. She was more comfortable with the IEC, because there was a definitive test there. The Minister could, before making an appointment, quickly check whether that political party was registered, and whether this person was in fact an office bearer. Putting it too loosely was going to make it quite difficult to ascertain firstly whether that political movement was in fact a political movement, and secondly whether that person was in fact an office bearer. In many of these other political movements, people were self-appointed office bearers. This was just something to consider, but she did not have a view on it.
The Chairperson said what they were trying to avoid was political mischief, because the people carried power. That argument was problematic, because they could take it further. There were people outside politics who had as much political capital as people in politics -- a priest for instance. The evidence that was being presented in Port Elizabeth about the amount of power that Timothy Omotoso commanded showed it was serious power, and they had huge followings. They were very influential in society, even more than politicians. What was not political in life? That was the question to ask. They needed to try and convince each other on this issue. He wanted to hear from all the Department members present. What was it that they were trying to avoid by including or excluding the clause? They had expressed their views but they needed to stretch it out so that they had a cleaner Bill when they concluded.
A Department member said that there could be arguments for and against the inclusion of the clause. He foresaw that it would definitely be tested for its constitutionality in court. The serious thing was that it was a limitation to a Constitutional right and the justification would have to be there in terms of section 36 of the Constitution. There was no precedent for it at the moment. What he foresaw was that it may not pass constitutional muster, so to play it safe was to exclude the paragraph from this provision to avoid the situation of having to come back to make further amendments. There could be good arguments for and against the inclusion of it.
Mr Marius van Niekerk, Director: Transversal and Tele-collaborative Entities, DTPS, said it was difficult for him but as his learned colleague had said, there could be good arguments for and against. He supported what Ms Kilian had indicated last week, that previously there was no pool of skilled people. His view was that there was now enough expertise in the country to exclude members of registered political parties because it might be difficult to say, if one was a representative of a particular province, they wanted to definitely try and sway the delivery of services to their province. They might not be able to do that, constituting only one person in a board of seven. To put aside one’s political affiliation and get the benefits for one’s constituency might be a little bit difficult.
Professor Walter Claassen, Chairperson: NEMISA, said that there were clearly arguments for both sides. At this stage, he was concerned that they were taking a broader issue that related to a number of Acts and issues relating to Parliament, specifically into the context of this Bill. Clearly this was something that must be debated at other levels, but to link it specifically to this Bill and the way it moved forward could cause a delay. He thought it must be debated at other levels and that there were more people available at the moment to make inputs in the country. There was another benefit in getting more people involved, in other words, other people who were not involved in political parties, broaden the base of participation. That in itself was a benefit. The issue here was a slightly different one. He knew the issue was about excluding office bearers of political parties, but he thought that were real benefits in having a broader representation on boards such as this.
Ms Nosisi Madlanga, Chief Director (CD): SOE Oversight, DTPS, said that office bearers must be excluded, because it would be controversial to include them because of the independence of the Board.
Ms D Tsotetsi (ANC) that it seemed the more they tried to explain and convince each other, the more complicated it became. What Prof Claassen was saying in terms of broad consultation, was just thinking aloud about “broadly” in terms of association, that a person may not be actively involved in any political party. Maybe it was a matter of semantics in terms of association, but she does not think that there was anyone who was not associated in some manner or another. The focus should rather be on the dos and don’ts of the Board. Was the person doing as they were required? They had the Committee doing oversight if the person was not performing.
Mr Mackenzie said that the Department member had said there was no precedent for this. Was he talking about precedent in the drafting of legislation? This was because as he reflected earlier, the piece of legislation he knew about was the Gambling Act in Gauteng, which expressly prohibited office bearers from serving in entities that were in the Gambling Association, but not political party members. He presumed that that was the independence. Ms Ebrahim had also referred to several pieces of legislation that had a similar clause in it, and he would imagine that that was precedent as far as the drafting of legislation went.
The member of the Department responded that he was referring to case law -- it had not been tested yet. That was what he was referring to, not legislation
Ms Shinn said this Parliament had the precedent of a Board where the majority were members of the ANC -- the SABC Board in 2013. There had been a conflict between the Board and the acting CEO. The acting CEO had put some pressure on the Board and they had decided to suspend or remove him to a new office. He had then spoken to his political masters who had instructed all the members of the ANC to resign, which they had done, and therefore collapsed the Board, thus opening the door for Hlaudi Motsoengneng to actually loot the place. So there was precedent for making sure that political party people were not the majority of any Board, because they did have a very serious precedent in this Parliament.
The Chairperson said he was not sure about that. They could interrogate that matter further, and he would come back to Ms Shinn.
They have tried to deal with the matter, and his view was that they should remove the clause. He was comfortable with what the Constitution said about Members of Parliament, National Council of Provinces (NCOP) members and councillors. Whatever reason that councillors were excluded from national legislation did not make sense to him, but it was fine. He would accept that the people who had that view, held it, and he would respect it. However, they needed to go down to branch chairpersons, because some of them just get picked up and do not even go through election processes.
He said that they had gone too far and he agreed with the Department member that constitutionally, it may not stand the test that it must be excluded. They would debate it in the House and see if they could convince anybody otherwise. For now, they must leave in the section in page 14 stating “a person may not be appointed or continue as a member of the Board if such person was an office bearer or employee of any political party registered in terms of the Electoral Commission Act.” If they expunged that clause, they were out of the woods. That was his view -- his final take.
Ms Ebrahim said she did not share the same constitutional fears, as their focus was a little bit misguided. The Constitution afforded one the Right of Freedom of Association and the Right of Political Participation, and there was no clause in the Constitution that said one had the right to be a member of the Board. The right that was being limited must be the right to join a political party or to join any association, and nothing in this Act would prohibit one from joining a political party. That was her view and she was not convinced on the constitutionality issue.
Perhaps an alternative, which would be a halfway means of dealing with it, was to refer to fulltime office bearers, or remunerated office bearers, as opposed to someone who was doing their bit for the community, but over a weekend. Of course, the Committee could decide. She did not think that there was a legal issue as to whether one had it in or not. One’s problems were going to be practical when it came to the independence of the Board. That was where the challenges may be when somebody said the Minister had appointed a person who was in fact the spokesperson of the ACDP in a particular province, and they were not happy about that person being appointed to the Board because that person was going to push the agenda of the Board, or whatever the case may be. That was just something for the Committee to think about. The clause certainly appeared in basically every single piece of legislation that sets up a public entity.
The Chairperson asked whether it appeared in this way.
Ms Ebrahim said that it appeared in this way, but not referring to the Electoral Commission Act, but just referring to anybody who belonged to a political party as an office bearer may not sit on a Board. They would see that in almost all legislation setting up an entity, so they would certainly be departing from that. On the one hand it was nice to have consistency in law, because it spoke to policy also, but on the other hand, she did not think that there was anything legally wrong in removing it. However, the Minister may run into some difficulties on the issue of independence at a later stage, but it was for the Committee to decide.
Ms Shinn asked whether SAPS members were not barred from being politically active or belonging to a political party. She remembered there being a huge controversy about it at some stage. She was not sure whether it was any police member could not belong to a political party, but it was at that basic level to start with, which she thought at that stage it was a contravention of the average police person’s right to join a political party. She would have had a problem with it if they were office bearers.
Mr Mackenzie said that in the middle of the State Capture Inquiry, in the middle of question marks around the boards of SOEs, did they not think that by including this they were sending a very powerful message to the country and to the Executive about the boards of SOEs? It was a unique opportunity to do that, and he did not think, given the legal precedent, they would lose anything by keeping the clause in. They would be sending a powerful message to the country that they would not tolerate political influence in the boards of state-owned companies.
The Chairperson asked if someone could tell him what they were talking about when they referred to independence.
Mr Mackenzie said that it was the ability to act without fear or favour.
Ms Shinn said that it was when one did not have split loyalties. At the SABC Board, the members had more loyalty to the ANC than to their role as independent directors of the SABC Board. They had a split loyalty and one actually needed to know which agenda they were pushing, if they were pushing an agenda at all. It was important to be independent so that there were no competing interests in the Board.
The Chairperson asked whether Ms Shinn could become independent.
Ms Shinn said she could, if she resigned from the party.
The Chairperson said her independence was therefore determined by her affiliation, so she could not think independently, was that what she meant?
Ms Shinn responded that at the moment she was a Member of Parliament representing a particular party, and was beholden to them in terms of the constitution of the country. Obviously, the constitution of the country came first, and then the demands of her political party. Should she resign from her political party her allegiance would be to the constitution, unquestionably. Therefore, she would not have a split loyalty there.
The Chairperson said that that was not true. He could resign today from being an active member of the ANC, but be the ultra-operator for the party without holding a position. He did not agree with that view and thought they were missing a very important point. The question of independence was a question of objectives. He, as a Member of Parliament, did not take his cue from the ANC, he used his own brain, his own mind reading what the law and the Constitution stated, and presented that view. He did not push an ANC political position. That was him, but it was fine. He did not want them to create an impression that by virtue of the fact that one was a DA member, one should be excluded because they would be pushing a DA mandate. That was where oversight mechanisms and regulatory measures came in to guide them. He had heard people arguing that the Auditor General (AG) should not meet the President, because the AG would be influenced because the President was a member of the ANC. One should be in a position to meet the president of the DA or the president of the ANC, and still come and express one’s view -- that was what he called independence.
Mr Mackenzie said that the Chairperson had mentioned members of a political party, and they were talking about office bearers. There was a very important distinction between members of a party and office bearers of a party.
The Chairperson said that they were the same. The one was holding office and one held office by virtue of being a member, it was just a small promotion.
Ms Shinn said that they had very different responsibilities.
The Chairperson responded that the only difference was that one was holding office, but their line of thinking was the same, that did not change. It was just that one had a title and was temporarily holding a position.
He said they should now go back to the clause. They were saying an office bearer or an employee of a political party -- were they saying that they must remove the part about registration with the IEC? The issue of the SACP had been raised and they were not registered and would be very junior to an ANC branch member. They must make their final arguments on the matter and Ms Ebrahim must convince them on the matter once and for all.
Ms Ebrahim said that she would rather take the risk of a legal challenge from a politician saying that they wanted to be on this Board and that they were being prohibited from being on the Board, than take the multiple challenges that may flow from people saying that the Board was not independent. That was her own view. There was a string of legislation that had similar clauses, and it was included in all of the establishments of these entities. She agreed that “employee” should be taken out, because employees were not necessarily members of the particular political party by which they were employed, just as one was employed in Parliament did not mean that one was an automatic member or supporter of the ruling party or of any other party. She was happy to take out “employee” and leave the office bearer. She was even willing to consider a “fulltime office bearer” if the Committee wanted to go that far.
In terms of what a political party was, she preferred that it was clear in law, so they knew when they spoke of a political party whether something was a political party or not. This was why they had added the Electoral Commission Act, because it made it fairly easy to distinguish whether an organisation was a political party or not. In other legislation, they simply refer to a political party, but one could not be an office bearer of a political party, without defining what a political party was. Her personal feeling on the matter was that it was safer to keep it in than to take it out, and they could debate the format in which it must be retained. The Constitutional right of freedom to join a political party was not affected, because one did not have a right to sit on the Board, one had the right to join a political party.
The Chairperson said “employee” was taken out and the clause remained intact. He asked if everybody was fine with that.
There were no objections.
Ms Ebrahim said that the process now was that they would make one or two of the final changes and ask CREDA to put it in CREDA format so that it looked like an actual Act, and then they would do a report and that report would state that they were adopting this Bill in that format. They would then attach it to the report that would have a new name and everything else, and track versions had been kept with all the changes. However, because there had been so many changes, instead of doing an A-list -- because their A-list would be about 15 pages -- they would just do a brand new Bill. That would be in the report they would help the Committee Secretary to finalise. That was also where they would do the clause by clause on the CREDA version.
The Chairperson said that next week when they met and when they had that version, they would go through it clause by clause.
Prof Claassen said that there was wording that was material in clause 3(b), page seven -- the last few words. There one had the word “demand” for e-Digital skills. He did not think “demands” was suitable here, and they should remove “s” and it should just be demand and supply, because it was about the relationship, the balance between what was produced and what was required.
Ms Ebrahim asked whether Prof Claassen was suggesting that they carry the word “supply” to section 3(b) as well.
Prof Claassen said no, because there it was about demand, not about the balance of the relationship. It was about the requirements of the country.
Mr Van Niekerk said that just to clarify, in section 4(1)(e) the section had been removed, but in the untracked changed version the “e” remained, so it looks as if there was space. If they moved the section lower, just the “e” must be deleted and the subsequent number corrected.
Mr Shelembe said that he was not sure whether what he was going to say would be dealt with when they go line by line, but on page six under definitions, particularly of “Post-School Education and Training Institution," they were trying to specify which institutions the Institute may have relationships with. They stated that the relationships were to be with public colleges, and he was proposing to add public where it says “any higher education institution,” to say “any public higher education institution.” In other words, confining this relationship to public universities and colleges.
On page 18, the new inputs on Board Committees, where it says the Board must in section 13(2)(b) determine the listed items, one should add that the Board must “at least determine” or “determine among others” so that it allowed for things which were not listed also to be determined if deemed necessary.
On page 19, section 14(6), which talks about the quorum, again this was something that could be dealt with when they go line by line. It states that “two-thirds of the members eligible to vote at that meeting” and in discussing with some of the people, the feeling was how did they determine the number of members eligible to vote, as the declaration of interest had not been done just before the meeting started. The view was that why they do not just say “two thirds of the total board members” and then take out “members eligible to vote at that meeting” for quorum? He said it would be clearer. Saying two thirds of the total Board members as opposed to “members eligible to vote at that meeting” which may mean one thing today and something else on another day.
The Chairperson asked what the one he was referring to meant.
Mr Shelembe said that the one that he was proposing was the one that said two-thirds of the total Board members.
The Chairperson said that included the CEO.
Mr Shelembe agreed -- the CEO was a Board member.
The Chairperson asked whether they were eligible to vote.
Mr Shelembe said they were eligible to vote, but there were other members. Before the meeting started, they needed to determine whether they had quorum or not and say that there was two-thirds present and they may proceed. However, it may turn out that on one specific issue, there was a Board member who was not eligible to vote because they had a conflict of interest, but that person would have been counted in determining quorum to start the meeting. That was the technicality.
The Chairperson asked what would happen about the position of that person, when it came to voting on that matter.
Mr Shelembe responded that on that specific matter, the person was not eligible to vote and she/he must recuse themselves.
The Chairperson asked what would happen if that clause did not specify?
After Mr Shelembe repeated his explanation that the two thirds requirement would have been compromised because it included a member who, it turned out, may not be able to exercise a vote, Mr Mackenzie said the Board was not quorate if a member left, so he did not see a problem with leaving the clause the way it was. Perhaps they should be guided by what other legislation said in terms of Board quorums and what would happen in terms of voting members. Could Ms Ebrahim guide them on that? He recommended that this clause stay the way it was.
Ms Ebrahim said that she would look at it again, because she now had a concern that when they talk about members eligible to vote in that meeting and if they halve the members for whatever reason, saying they had a conflict, they could still take a decision based on the majority of the remaining members. They would look at it again, but they understood the principle.
Budgetary Review and Recommendation Report (BRRR)
Mr Mackenzie moved that the BRRR report be adopted.
Ms N Ndongeni (ANC) seconded.
The BRRR was adopted, with all corrections.
The meeting was adjourned.