The Portfolio Committee and the Department of Trade, Industry and Competition held a virtual meeting in preparation for a closed session to discuss the questions that the Committee would ask candidates for the position of chairperson of the National Lottery Commission Board. The Committee was briefed on the legislative requirements for the appointment of the board, the responsibilities of the board, legislative and other criteria for the chairperson, procedural process, and the proposed framework for questions for the interview of nominated candidates.
Members raised concerns that making the framework public would be leading, and could possibly advantage potential candidates who were attending the meeting. Others pointed out that the actual interview questions would contain wording that was different to the framework, and that there was no need to close the meeting, since the briefing document had been released in the public domain.
Members made several amendments to the wording in the table containing the criteria for the Chairperson. Members wanted to avoid wording that could potentially put suitable candidates aside, for example, the criteria that specified experience on a National Lottery Commission Board, and determining a specific number of boards a chairperson could sit on.
The logistical options of the interviews were discussed. Interviews could either be done in-person or on a virtual platform. Members raised concerns about people with co-morbidities possibly having to take a flight to Cape Town while the country was still experiencing the COVID-19 pandemic.
The Department of Trade, Industry and Competition stated the Department was processing the nominations that it had received, and, in line with the processes articulated by the Committee Secretary, the Department would be making a submission to Parliament soon.
The Chairperson welcomed participants.
Mr S Mbuyane (ANC) asked for clarification as to who was invited to the meeting, and who was not invited. He added that the meeting was a closed meeting but there were “people from outside” attending the meeting.
The Chairperson replied that the Secretariat would speak to that matter.
Mr M Cuthbert (DA) said that it was a public process, and required the utmost transparency on the part of the Portfolio Committee which meant that civil society organisations and members of the media should be allowed to observe the meeting. At the end of the day, the Committee did not want people to say they were not able to adequately participate. If Mr Mbuyane wanted to continue with the Lottery operating the same way that it had done for the past ten years, then he was on an island on his own. Mr Cuthbert stated that the Portfolio Committee (PC) should have external parties in the meeting, and that all of the transcripts should be made available.
The Chairperson asked the Secretariat to speak to the matter.
The Committee Secretary said that the process had to be an open process. Where the process would be a closed meeting was where the PC discussed the actual questions that it would like to ask the nominated candidates. That part of the proceedings would be a closed session because the PC wanted a fair and equal process for all nominated candidates, so it would not want the questions discussed and prepared by the Committee in an open forum. The process would be open and transparent, and that was why members of the public could attend the meeting.
Mr Mbuyane said that in the last engagement with the PC, it had been agreed that the meeting of 23 October 2020 would be a closed session. If that had changed, there should have been an indication from the Secretariat that the meeting had changed from a closed meeting to an open meeting. Members could not just come to the meeting and be dillydallying with issues of … (connection cut off).
Mr F Mulder (FF+) said that he just wanted to confirm that he was in the meeting.
Ms R Moatshe (ANC) also wanted to confirm that she was present.
Mr W Thring (ACDP) confirmed that he was present, despite earlier connectivity issues.
The Chairperson said that the PC had seen that there was a need to look at the process of the appointment of the chairperson of the NLC (National Lottery Commission). There would be areas of confidentiality where the Committee would hold a closed session and that would relate mainly to the questions. But in terms of process, the PC had received the information about the day’s session, and that it was an open meeting. Having engaged with the Secretariat, he had understood the necessity for the process of management to be open to the public. The PC might also look at areas of implementation during the meeting. The specific issue around questions to candidates should be completely confidential and closed. He was sure that the information that would be shared and engaged with in the current meeting would be preparatory to preparing questions for candidates and about the timing of how the PC would manage the process.
Mr Cuthbert said that he aligned himself with the Chairperson’s position. He thought that, regarding the questions and ensuring that there was no unfair advantage to any candidate who might be tuning in online, or might be a participant in the meeting, it was above board for the questions to be discussed in a confidential meeting. But, regarding the criteria, as well as the process that the PC would be following, he agreed with the Chairperson that it should be open. He could not see the need for the current meeting to be a closed meeting.
The Chairperson said that in the last meeting, reference had been made to the meeting being closed. However, with the explanation given, there had been a clear sense of being able to have an open meeting that spoke to process. The questions could not be an open process, because that would undermine that process.
The agenda was adopted.
The Chairperson asked the Committee Secretary to take the PC through the briefing document. He welcomed the team from the Department of Trade, Industry and Competition (DTIC).
Briefing Document for the Appointment of the Chairperson of the National Lotteries Commission
Mr Andre Hermans, Committee Secretary, and Ms Margot Sheldon, Content Advisor to the Committee, presented. (See briefing document for the full details.)
1. Introduction – Legislative requirements/provisions for the appointment of the Board
Mr Herman noted that the process the PC was undertaking was within the legislation. He made reference to Lotteries Act (No. 57 of 1997), which stipulates that the Minister shall appoint the Members of the Board, which shall consist of a chairperson, who shall be a person with applicable knowledge or experience with regard to matters connected with the function of the Board.
Section 3.3 of the Act stipulates that a Membe,r contemplating paragraph (a), which relates to the chairperson of subsection 1, shall be appointed only after the Minister has, by notice in the Gazette, and in not less than two newspapers circulated in every province, invited interested parties to nominate persons suitable for appointment as chairperson of the Board. The Act requires that the relevant Committee in Parliament should facilitate that process, where the Committee will make a recommendation in that regard.
2. Responsibilities of the board
Act 57 section 10: Functions of the Board.
3. Legislative and other criteria for the Chairperson
Reference to, inter alia, Act 57 section 5 and section 10(1). The Secretary read the criteria for the chairperson of the NLC as determined by the previous Committee but acknowledged that the criteria could be amended by the current Committee, should it wish to do so. The criteria referred strongly to management skills and the morality, honesty and impartiality of the chairperson.
4. Procedural Process
The Secretary explained the parliamentary process stating that it was initiated by a letter from the Minister to the Speaker who referred it to the relevant Portfolio Committee.
A key issue was to determine whether the interviews would be held “live” person-to-person or via a virtual platform. A hybrid approach was not possible at that stage. The Secretary provided the criteria to be considered in order to determine the interview process. Should a virtual process be held, the candidates would be accommodated n the nearest DTIC office.
The names of proposed candidates would be made available for public comment.
5. Proposed framework for questions for the interview of nominated candidates
The proposal was to provide for a 60 minute session per candidate.
Content Advisor, Ms Sheldon, took the PC through the proposed framework. She noted that the development of the questions happened internally. That would be the responsibility of the Committee, with the support of the Secretariat. There had been recent examples of this process where the PC together with the Secretariat developed the questions for the interview process, such as the position of the Auditor-General and the Director for the Parliamentary Budget Office. In that case, the Secretariat would provide draft questions based on the Committee’s views on what should be included. Once that draft was tabled to the PC, the PC could decide if it wanted to adjust anything or keep it as it was presented. To ensure a fair process, the questions were developed and finalised on the morning of, or the day before the interviews. That part of the process should be closed in terms of the rules of Parliament.
The Secretariat had looked at four broad areas of questions that could be considered. The first was a general …
Mr W Thring (ACDP) interjected. He wanted to know if presenting the general framework was in line with general practice, and that the Portfolio Committee on Trade and Industry was not going to be the only Committee that gave candidates a lead in terms of the type of questions and the type of areas that were going to be covered in the interview. It was a public meeting, and he knew that there was going to be a closed meeting where the PC would discuss further aspects in detail, but the presenters were already giving an indication of the type of questioning that was going to take place in an open meeting.
The Chairperson replied that the PC was looking at a framework of questions. It would be quite important that the Committee actually determined the broad areas. He was sure that it happened in most of the interviews, and he was sure that the detail of the question might be entirely different to what the PC requested. Broad areas, or what was called a proposed framework, in terms of what the staff was taking Members through, might lead to helpful points of discussion. However, if Members thought it was a giveaway, then he wanted to reiterate that the team had made a point of saying that they were looking at a framework, and not actual, specific questions. He had thought that it was broad enough.
Ms J Hermans (ANC) supported Mr Thring. For her, the framework was leading, because if one referred to the broad framework, then one would find words in the framework that would be in the questions. She felt it was leading, although she supposed that the document was in the public domain already. She thought that the document should be kept for when the PC dealt with the questions.
Mr Cuthbert said that if the PC wanted to have the meeting in a confidential sense without sharing those details, then it should have called the meeting in terms of Rule 189. The Committee Secretary could confirm the latter point for him. The PC would have had to have the meeting under strict confidentiality where particular reasons would have been presented and certain stipulations would need to have been followed. The document had already been flighted; he did not think that the Secretariat would be lazy and take points from the framework word-for-word. He did think that in job applications generally, and when entities advertised for positions, the entities indicated what kind of things they were looking for in terms of criteria, as well as broadly what the interview would cover. He did not necessarily think that there was a problem in that case.
Mr Thring asked that the PC not discuss in detail the proposed framework for questions. The framework had been flighted; it was already out there, so he thought that the PC needed to be cautious regarding what detail the PC went into when it came to the proposed framework.
The Chairperson said that if the PC felt it should not go into the discussion, then item five in the document could simply be noted, and he could direct the document for further engagement in a closed session on issues relating to the proposed framework for questions and, specifically, the questions that the PC needed to ask.
The Committee Secretary stated that the parliamentary rules allowed for the PC, even after that process, to call a closed session if it wished to discuss the framework in a closed session.
The Chairperson said that he was getting the feeling that the PC preferred to discuss the proposed framework for questions in a closed session. But in terms of the presentation, the PC agreed that it would have a closed session, where it would look at the proposed framework for questions, and the actual questions that needed to be asked. The feeling was that the PC might be overlapping in its discussion if it actually considered the proposed framework for questions at the first meeting. The PC Members would take the decision as to which questions were to be asked.
Mr Cuthbert returned to point five in the document. He thought that it was fine that the Committee Secretary brief the PC on what the framework of the questions were. But if the PC had any inputs on that framework, then maybe it was something that the PC could take to the closed session when it developed the questions. As the document was in the public domain, it was not in the PC’s interests to try and change that and move the framework to a closed session.
He suggested allowing the document to be made public, and when the PC came to the development of the questions, that be a closed session, would mean that at least the public was informed about the framework that the PC would be using. The public would then know that the framework was not just based on popularity or such, but that the questions to be developed and asked would be grounded in a firm methodology. In that light, the PC should continue. Any questions or discussions on points specifically relating to the development of questions could be left to the closed session.
The Chairperson asked if the PC agreed to engage on item five in a closed session, and also finalise the questions for the candidates in a closed session.
Ms Hermans thought that the PC could take it that it had read item five of the presentation.
The Chairperson suggested to the Members that the proposed programme had been covered. The PC had gone through the legal areas, which were clearly identified, the ministerial responsibility, and the criteria and procedure in terms of process. The PC also had the option of person-to-person or virtual interviews. He reminded the Committee that he had said that he was missing the Members and had suggested that the Portfolio Committee go to Cape Town for the interviews. He suggested that the PC should see if person-to-person interviews were feasible and possible. But he noted that virtual interviews – with certain areas strengthened to make sure that the process was credible – had also been suggested. There would also be space for public comments. He invited contributions from the Members.
Ms Hermans commented on criterion one on the table taken from previous interviews. Regarding the requirement of “experience regarding the functions of the National Lotteries Commission (NLC) Board and the principles underlying the role of boards generally”, she felt that the PC should take out “functions of the NLC Board” because if the PC had a candidate who has not served on the NLC Board, but who was excellent in terms of governance of a board, then it should not be a factor that that person does not have an intimate knowledge of the NLC Board. If the PC said: “the role of boards generally”, that would cover it, because it was about governance. The PC should bring the word “governance” into that criterion. She was making a proposal.
Mr Cuthbert said that he was hopeful that the process of appointing a new NLC chairperson would turn over a new leaf for the NLC. The NLC had been riddled with corruption and maladministration over the past ten years. It was very important that the PC was able to restore credibility to the NLC, so that it was able to continue to do the work that it was intended to do, which was to help non-profit and non-governmental organisations to reach out to the most vulnerable in society, and not to fill the pockets of people who use their political connections at the expense of the public. He sincerely hoped that when the PC went through the process, it would make sure that it was able to allow for renewal in the organisation, towards a more transparent, open and accountable NLC.
He proposed one amendment to criterion 5 which referred to a person of good standing in the community and with a history of moral leadership. “Moral” was generally a normative and subjective word. He thought that the best way to phrase that criterion was to say, “with a history of ethical leadership”. That is a generally recognised standard of what is right and wrong in society or in a particular social setting. On ethical leadership, another thing that Mr Cuthbert thought the PC needed to consider was the fact that he had laid criminal charges against the existing Board.
Ms Hermans raised a point of order. The PC was not discussing a report of the NLC today. For the Members to achieve what they had come to the meeting to do that day, the Committee needed to confine itself to what has been presented without standing on individual soapboxes.
Mr Cuthbert interrupted to ask what rule that point of order was based on.
Ms Hermans stated that all parties in the Parliament of South Africa stood for good governance.
The Chairperson pointed out that before the PC went into the debate, the meeting was still on process. The comments were not the same as the debate or argument on what was right or wrong. The PC would get to the detail of the debate and parties would be able to present their points of view in whatever area was being considered. He asked Members to focus more on the administrative process management. He asked Mr Cuthbert to round up his questions, and to not go into debates.
Mr Cuthbert said that a Mr Sithathu had been kicked out of meetings previously; Mr Sithathu was participating by speaking into the meeting and putting his camera on. That is not acceptable; the rules have been explained to Mr Sithathu in the past. He asked if the Secretariat could handle that.
The point that he wished to make was that the document was very specific on exclusions and what disqualified members of the NLC. Under that particular criterion, there needed to be “a deep look” at existing board members and their suitability for the position. He criticised Ms Hermans for interrupting with an unjustified point of order.
On point four, he wanted to request that it specifically state that the report from the Minister should include the names of all candidates that applied for the position, as well as the criteria used for shortlisting. The PC could then assess whether or not the criteria used by the Minister was sufficient during the initial selection phase. For instance, if one had a good candidate that was disqualified, and who met all the criteria, then the PC should be able to see why that person had not necessarily been brought forward to the shortlisting process. On point (d), he thought that it was very important that the names and CVs should be made available for all shortlisted candidates, in line with the precedent set in other parliamentary appointment processes, such as the Auditor-General. The PC should also publish the CVs on Parliament’s Twitter account, on the Facebook account, and on Parliament’s website, and it should allow the public at least seven working days to provide comments or objections. There should be a tip-off line for the public to be able to make any contribution that could inform the PC’s decision in a better way.
Lastly, Mr Cuthbert asked that the vetting of the candidates ideally be completed prior to the interviews, and that the candidates be given an option to respond to any issues that arose in the vetting process. The PC should make sure that the submissions were in a written format, so that the secretariat could document and track submissions properly. It was also important that financial security and private interests of candidates were declared, so that the PC knew exactly what the person’s situation might be; that did not necessarily mean that the Committee needed to call for a lifestyle audit of candidates.
Mr Cuthbert’s input had been informed by the submission that Corruption Watch had put to the Committee, which he thought was a very good submission and which had made some very salient points, particularly in reference to the way in which the Auditor-General’s appointment had been carried out. He urged the Committee Members to have a look at that submission, and to lend him their support in that regard to make the additions and clarifications that he had read out, to the process document.
Ms T Msane (EFF) said that the PC wanted to know how many candidates had applied, and who had led the shortlisting process. What process was followed in shortlisting? The PC also wanted an explanation as to why the application timeframe was so short; it left people with insufficient time. There had been insufficient time for the applications.
Mr Thring said that, in reference to criterion five, the PC should not remove the word “moral” just because one Member felt that the word “moral” was normative or subjective. Many others understood the meaning of “moral”. If the words could be “moral/ethical”, he would be happy with that. If one was corrupt, that was immoral, for example, but at the same time, it also spoke to whether one was ethical or not. Most South Africans had a sense of what was moral and immoral. If the PC could have “moral/ethical leadership”, he would be happy with that. Secondly, how far was the PC down the line in terms of the process? Section 3.3 was about the newspaper adverts; the Secretariat was dealing with that aspect of section 3.3 but the PC needed to get involved.
Ms Hermans had another amendment on criterion 16 in the table. Firstly, she wanted to support Mr Thring on the term “moral/ethical” for criterion five. The PC was narrowing the field to find the best candidate. She knew that the word “preferably” gave the PC a bit of leeway, but she thought it was better if the PC did not set a required number of boards on which the Chairperson could serve. The Secretariat should take the number of boards out. The candidate had to prove that he or she had the time to devote to running a board based on good governance, with sufficient time to perform the required duties. What if somebody was already on three boards, but was brilliant in terms of governance, and had the ethics and the morals? The specified number of boards meant that the PC was putting that person aside.
Ms Herman noted that Mr Cuthbert had mentioned bringing the long list to the Portfolio Committee. The Secretariat had to check what the Act says about what must come to the PC, and see if it meant that the Committee should go through the whole list itself. The Minister, in the report that came to the PC, had to say how he had arrived at each candidate that he sent to the PC. She did not want to support that point about the long list at that time; she suggested waiting to see what came to the PC from the Minister. As far as the security clearance, verification of qualifications, and reference qualification went, she understood those processes as something that to be done at the level of Cabinet. She did not think it was supposed to be the PC that undertook that process.
Regarding the decision on the location of the interviews, Ms Hermans suggested that the PC had to make sure that whatever decision it took on location, there was consistency. If the Committee were interviewing Mr Nkosi (to use Members’ names as examples) via a hybrid model where he went to a DTIC office, somebody from Parliament had to be there for it to be a process of Parliament, and then all the applicants had to be subjected to that process, so that the PC did not do one thing for Mr Nkosi and another thing for Mr Cuthbert.
Mr Cuthbert said that he was in favour of person-to-person interviews done in Cape Town, or at the DTIC campus in Pretoria, but preferably in Cape Town. That would be determined on the grounds of whether or not people were able to get there, and whether the logistics could be put in place. He believed that it was better to do a person-to-person interview; one had limited bandwidth on Zoom. The PC was only allowed to have three-hour meetings at that stage, which was why the Committee meetings lasted for the periods that they did. So that the PC did not experience any of those kinds of challenges, as well as not wanting to compromise anybody’s candidature, it would be best to do person-to-person interviews.
The Chairperson asked if Mr Cuthbert was saying that he wanted to second the Chairperson on that point. On his part, the Chairperson was just saying it was an option, but the Secretariat would have to look into whether that option was viable. The Secretariat would look at an option that was viable and implementable. If there was not a viable option, then other ways would be considered for the PC to process and manage the issue of the appointment of the Chairperson of the NLC.
Ms Hermans said that the Chairperson had made a statement in the previous meeting that everyone would have to come to Parliament, but the Committee had to consider that South Africa was still in the grips of a pandemic; that people with co-morbidities would possibly not be able to take a flight, and the PC did not know where the people were coming from. The PC had to have the option of interviewing everyone via virtual platform, so that it did not disadvantage someone who had co-morbidities, who then had to fly in to Cape Town from somewhere else in the country.
The Chairperson said that his sense was that it was an option if it was viable and implementable: so be it. If it were not possible, the PC would have to be updated, and work around the alternative arrangement to that suggestion.
Ms Msane said that they country was facing difficult times, so the Committee should not leave out the option of virtual interview. The analysing of certificates, qualifications and Curricula Vitae of candidates was done by Cabinet. Could the PC get an explanation of the law? According to her knowledge, the PC had a right to evaluate the CVs of candidates.
The Chairperson said, at that stage, the Committee had a good sense of how it was working on a legal process; the Minister did have a responsibility to carry out certain things. The PC would have to be briefed on where the process was, particularly in terms of the responsibility of the Minister. The PC seemed to be in agreement with the procedural process, but there might be details that the PC had to engage on. There would be an opportunity in the programme for public comments.
The programme would have to be updated on the responsibility of the Minister and public participation. The PC would have to get an update on the responsibility of the Minister, how the public comments came in and related issues. The PC had a good idea of what to expect, but it would have to get an update of the programme relating to the appointment of the NLC chairperson with dates and times. That would be the point where the PC acknowledged its acceptance of what the law said was the responsibility of the Minister. The PC might need to know where the process was, what the issues were that the PC needed to engage with, and what role the PC should be able to play.
The Committee Secretary stated that, regarding the process, the DTIC could enlighten Members on the status of the process. The PC had to await the submission of the shortlisted candidates; once that had been submitted, the PC would start its process. Regarding certification and verification, the PC would get assistance from the DTIC. Nothing prevented the PC from seeking security clearance, but the PC did not want to duplicate processes if it did not have to do so. Regarding the location, he said that both options were given so that the PC could make the final decision once it knew who the candidates were, and once the PC had determined whether all Members could travel or not travel. Once the PC had the names, the PC could engage with the matter of the final decision of the location of the interviews.
He reiterated that parliamentary facilities did not have a hybrid option. When talking about the virtual option, it meant that everyone would be on the virtual platform. When talking about everyone having an equal opportunity if the decision were to have interviews on a virtual platform, then the Department would assist in ensuring that the process was secure. The Secretariat noted concerns that Members raised. The Content Advisor had made the amendments as the Portfolio Committee discussed the question.
Ms Hermans spoke on the location of the interviews. The PC knew that there were PC Members with co-morbidities. That was without knowing who the candidates were and where they were from. If all the candidates were from Cape Town, it still did not mean that all PC Members would be able to be in Parliament.
The Committee Secretary acknowledged Ms Hermans’ point on the location. The location of the interviews would take into account both the nominated candidates and the Members of the Portfolio Committee; nobody would be excluded from the process.
The Chairperson said that the Members had their wishes as well, such as himself. Such wishes might not be practical; he understood that. At a later stage, the PC could look at the location options. He asked if the DTIC team had any comments on the preparation of the process around the appointment of the NLC chairperson.
Ms Nontombi Matomela, Director: Operations, DTIC, stated that the Department was processing the nominations that it had received, and, in line with the processes articulated by the Committee Secretary, the DTIC would be making a submission to Parliament soon.
The Chairperson confirmed that the Department’s point was that it was hard at work but it would give the PC an update on where it was soon. That would be the next point of the update to the PC on timeframes and the programme of the process. He would take the comments from the Director of Operations as the PC’s update by DTIC.
The Committee Secretary informed Members that, as a result of the process, the programme would be adjusted, and a draft programme would be brought to the PC the following week. The draft programme would accommodate the process that had been outlined, and would ensure that the process would be transparent, and would give the public sufficient time to comment on the nominated candidates. The PC would hopefully receive an amended programme if the secretariat received the list of nominated candidates.
The Chairperson thanked Ms Matomela. The update would impact on the PC’s programme. For the day’s meeting, it was clear how the Secretariat would have to manage the process with the consensus and support of the PC Members.
The Committee Secretary stated that the PC still needed to decide on a day on which to have the discussion on the interview questions. The Secretariat would be guided by the PC with regard to that.
The Chairperson said that when the Secretariat knew the timelines, it would be helpful for Members to receive a proposal from the Secretariat on how the process would fit into the PC’s programme.
Everything to do with the reason for the meeting had been covered. He thanked everybody for their contributions.
The Committee Secretary said that the PC would be meeting on 27 October and 28 October 2020. On 27 October, the PC would be dealing with the DTIC on the status of the Master Plans and the implementation of the Plans; on 28 October, the briefing would be on challenges facing the ferrochrome and cement industries.
The Chairperson said that for 27 October, the PC would take the 10:00 to 13:00 session. The PC generally met from 09:00 to 12:00 but he put it to the PC that it could hold the meeting from 10:00 to 13:00 on 27 October, so he would “allow” Members to have a proper breakfast and coffee. The same timeframes on the agenda would apply.
Ms Hermans said that the Chairperson should declare his reasons for the request.
The Committee Secretary suggested that it would perhaps compromise the Minister if the next meeting was at 10:00; the Secretariat would have to check the Minister’s availability.
The Chairperson said that from midnight on 26 October, it was the birthday of Oliver Reginald Tambo; he and others would be celebrating the occasion. However, if the Minister were going to be inconvenienced, he would consider that. He asked the Secretariat to try for a 12:00 meeting. The birthday of Tambo was a very important day. If the proposed date and time inconvenienced the Minister, then he was sure that the Committee would consider that.
The meeting was adjourned
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