NLC Chairperson appointment process: deliberations

Meeting report

The Chairperson welcomed the Committee members to the meeting. He presented the agenda to the Committee to be adopted. The primary item for discussion was the deliberation on the process of the appointment of the Chairperson of the Board of the National Lotteries Commission.

Mr S Mbuyane (ANC) moved for the adoption of the agenda.

Ms J Hermans (ANC) seconded the adoption of the agenda.

There were no objections and the Committee proceeded with the agenda.

NLC Chairperson appointment process: deliberations

The Chairperson said that there had been communication from the Minister and the Speaker. There were issues relating to the management of the process of the nomination of the Chairperson of the NLC. There was other correspondence and it would be helpful to get the legal opinion of Parliament to comment on the various communications from parties. The EFF and DA had made communication to the Committee on the matter. He summarised where the Committee was at the moment. The Committee had a list of candidates and CVs of the candidates. That was important in the management and processing of the issue moving forward. He asked the Committee Secretariat to go through the communication made to the Committee. The Committee had communicated with the Minister and the Minister had engaged with the Chairperson and the parties. The other processes the Committee would have to agree on.

The Committee Secretariat said that subsequent to the letter from the Minister, dated 12 November 2020, the Committee received correspondence from the EFF questioning the process. That correspondence was sent on either 17 or 18 November. The Committee sought guidance from the Parliamentary legal team based on the matters raised in the EFF’s correspondence. In light of the response received from the legal advisors, the Committee requested that the Minister in a letter dated 18 November make available the CVs of all the nominated candidates. The members only received that information on 19 November and it was decided that a meeting should be held today to have a discussion regarding the process going forward. The Committee then received communication from the Minister on 22 November where he acceded to the request of the Committee to make the CVs available. The Committee then received communication from the DA on 23 November which also expressed a view on the process. Members had all that information in front of them. The Parliamentary legal advisors were present in the meeting and would guide the Committee through their opinion. It was up to the Committee on whether to concur with the opinion expressed and decide on a way forward in dealing with the process. That was the status of how the Committee arrived at this particular point.

The Chairperson invited the Parliamentary legal team to provide their legal opinion on the issues.  

Adv Thiloshini Gangen, Parliamentary legal advisor, said that the Parliamentary legal service was asked to urgently advise the Committee on whether the shortlisting for the position of Chairperson of the Board of the NLC was the function of the Portfolio Committee on Trade and Industry or that of the Minister. Members were aware that on 12 November 2020 the Minister addressed a letter to the Speaker wherein the Minister attached a list of nominations. The Minister advised that a large number of nominations for the position was received. Following the advice from an independent shortlisting panel three persons were identified and their CVs were attached to the above letter. The Minister requested the Committee in terms of Section 33 to make recommendations regarding the suitability of any or all of the nominees regarding for the appointment as Chairperson of the NLC. On 17 November the Committee received a letter from the National Assembly regarding the process of the appointment of the Chairperson of the Board questioning the validity of the shortlisting process. In the legal opinion the team sought to look at the regulatory framework. The principle of legality demands that the exercise of any public power must be conferred upon the functionary by law. A public functionary can only perform those functions conferred upon it upon a person or a body by law. Important was section 59(1) of the Constitution. It states that the National Assembly must facilitate public involvement in the legislative and other processes of the Assembly and its Committees and conduct its business in an open manner, and hold its sittings, and those of its Committees, in public’. The team also looked at section 33 of the Lotteries Act which states that a Chairperson shall only be appointed after the Minister by notice in the Gazette, and not in less than two newspapers circulating in every province, invite interested parties to nominate persons suitable for Chairperson and the relevant Committee of the National Assembly has made recommendations to the Minister in relation thereto after a transparent process. The legal team had looked at section 195 of the Constitution, which states the transparency must be fostered by providing the public with timely, accessible and accurate information. That Public Administration must be accountable and a high standard of professional ethics must be promoted and maintained. The Parliamentary legal advisors were of the view that a purposeful interpretation of the Lotteries Act together with section 195 of the Constitution show that a culture of openness and transparency was required. There was no provision in the Act that empowers the Minister to appoint an independent shortlisting panel nor does the Act give the Minister discretion to appoint such a panel. From the Act it appears that the shortlisting process was the mandate of the Portfolio Committee. The requirements for openness and transparency further support this interpretation that the Committee of the National Assembly should deliberate on the nominations and provide recommendations for the appointment by the Minister. The legal team had advised that the Committee should request the CVs which the Committee was now in possession of. The legal team reiterated that the Committee may determine its own procedure in terms of the rules. Subject to the law and the rules the Committee can look at the CVs. The Committee can also look at what the Minister has provided to strengthen its own process. The Committee should consider the report of the panel appointed by the Minister and then identify candidates and then finally name a person for the appointment by the Minister.

The Chairperson thanked the legal team for their opinion. There was communication between the Chairperson, on behalf of the Committee, and the Minister. The Committee had the list of the all the nominees and the CVs. The Committee could shortlist and determine the interview process. The Committee could then recommend to the Minister a candidate suitable for the Chairperson of the NLC. He opened up the floor to Committee members to make comments or ask questions on the legal opinion that was given.

Ms Y Yako (EFF) said that it was unfortunate that the Committee had to reach this point. The legal advisor said that a timely, transparent and ethical process had to be taken in order for the appointment to be made. The legal advisor had also said that the shortlisting was the onus of the Committee and not entirely of the Minister. Even though the Committee had the CVs she asked the Committee to go back to the drawing board. The EFF had raised that the time limit between the advertising of the post and the closure of the applications was not fair. It was merely a few days before the application date closed. For the Committee to make sure that this process was done in a proper manner it was necessary for the Committee to go back to the drawing board. The Committee needed to see if it could restart that process again. She wanted to know what steps the Committee were going to take to bring the Minister to account? The Minister took matters into his own hands and went over the Committee. What was his agenda in doing so? Why did the Minister bring the Committee three nominees that the Committee had not been involved in selecting?

Mr M Cuthbert (DA) said by now the Committee would have seen the letter and legal opinion of the DA distributed to the Chairperson and Minister Patel. He mentioned a few salient points that were raised in that specific legal opinion. Power could not be concentrated in the Executive. Parliament and the parliamentary Committee needed to be allowed to do its work. While at face value it seemed as if the process followed by Minister Patel ticked all the boxes it was discovered, after having sought legal opinion, that this was not the case. It was very important that the Committee started with the shortlisting process again. The Committee needed to make sure that it received all the correct vetting documents for each candidate so that the Committee could make sure the candidates have the necessary financial standing behind them and that there were no criminal records among the candidates who applied for the position. The Committee had the opportunity to do this the right way. He saw the response of Minister Patel and it was in line with the demands made in the Committee’s letter. The Minister has supplied the CVs but the members do not have copies of the CVs. He asked that the CVs be made available to the members.

It was important that the Committee turn around this institution. The institution had been mired in corruption and maladministration for many years. It was important the candidate chosen was able to make sure that credibility was restored within the NLC. The NLC needed to go back to its fundamental purpose which was to provide funds to the most vulnerable in society in order to uplift them and allow them to live a better quality of life. The institution was also there to protect them from social ills that may be present within society. That needed to be the guiding spirit in the way in which the Committee handles this process. The DA appreciated the acquiescence of the Minister and looked forward to continuing with this process in a free, fair and transparent manner in line with the Lotteries Act and good governance and best practice across the globe.

Ms T Mantashe (ANC) said that the ANC accepts the legal advice that has been provided by legal services of Parliament. Looking at the bulk of the work the Committee still needed to do the ANC proposed that the Committee considers an extension of three months. This was a long process that could not be done overnight. The process needed to be given time so that the Committee did not falter along the way. The process needed to be started as prescribed by the legislation. The Committee had received all the submissions including that of the Minister. The ANC was grateful that the power of Parliament had been given back to it. She proposed strongly that the timeline of the process be extended as it could not be rushed. She proposed that the current Chairperson of the Lotteries Board be given a contract extension of three months for the Committee to complete the work it was going to do.

Mr J Mulder (FF+) said that it was quite clear that the process that was followed was not correct and that there was only one correct process that should be followed. He suggested that the Committee start that process. He asked that the Committee look at the cut-off dates so that it did not miss a cut-off date that it legally needed to comply with. He suggested that the Committee start the process in the right way. He saw the letter of the Minister with his explanation. The Committee could decide whether it wanted to take this issue up with the Minister or if it was satisfied with the explanation that was given in his letter.

Mr D Macpherson (DA) said that the Committee must determine its own process for the interviews and for the shortlisting. Those two issues were intrinsically linked that needed to have their own defined and agreed processes. The CVs should not be looked at on face value. There needed to be a process that was agreed to. He then discussed how the Committee got into this position in the first place. There was a habit that had developed in this Committee. Whenever there were tough questions or tough issues or a crisis on the horizon the Minister absconds from this Committee. He was not available and he does not appear. He answers a couple of questions and then disappears. That has been his ‘modus operandi’ for the entire year. He thought that the Minister would have been present in the meeting and answered questions. He should explain to the Committee why he embarked on the process that he did. Whenever there was an issue that needed to be dealt with in this Committee the Minister was missing. Why was it that the Committee had to drag the Minister to this point to do a ‘summersault’ on the process that he initially thought only he could do?

He responded to Ms Mantashe’s proposal. Firstly, he agreed in principle with the point that this process needed to be given the due consideration it deserved. However, it was not the purview of this Committee to extend the appointment of the Chairperson. That could only be done by the Minister. The DA would strongly lobby the Minister to not extend the contract of Prof Nevhutanda. Prof Nevhutanda was mired in corruption charges from now until the rest of his life. He had overseen the utter collapse of the NLC and its functioning of good governance. Why any political party was interested in putting power into the hands of a man who was completely incapable of doing his job in overseeing the billions of rands that were before him beggar’s belief? The DA was not going to agree to that proposal and it was not even up to this Committee to suggest that. It would have to be a discussion that would have to be held by the Minister and whether he would be prepared to compel the Board to appoint an Acting Chairperson. That was the only way that this process may continue but the Committee had no legal right to extend the term of the Chairperson. The Committee needed to agree that Prof Nevhutanda was completely incompatible in any acting position let alone Acting Chairperson. He wanted answers on the process of shortlisting and how this Committee was going to hold the Minister to account for his ‘ducking and diving’ over this issue.

Mr Mbuyane seconded the proposal by Ms Mantashe that the process needed to be extended by three months. The Department had taken more than six weeks in order to shortlist. He thought it would be correct for the Committee to take time and make the correct decisions. He then discussed the advertisements. He was not sure if the advertisements process was correct. His suggestion was to start the process afresh so that nothing bad could be said about the process. Even the legal opinion stated that some of the process that was followed was correct. The process from after the advertisements were sent out was flawed. For the Committee to start a process in the midst of the original one could cause challenges. The Committee should start the process afresh so that it knew all the correct procedures were in place. He stated that Parliament begun in February again so it was proper for the NLC to have someone in the Chairperson’s position in the three months until the process could be started.

Mr W Thring (ACDP) said that it was unfortunate that the Committee found itself in this particular position. When there were important positions that needed to be filled there needed to be a checklist of the processes that needed to be followed in terms of the law. There was a lot of wisdom that comes with hindsight but the Committee should not have to operate in this way. There were teams of legal experts that should be guiding the Committee and the Minister. In the Minister’s office he ought to have had someone say to him that the process he was following was irregular. It was sad that the Committee had to find itself in this position. Individuals had taken time to apply and had their hopes dashed. The ACDP agreed that this process needed to be done properly. The Committee needed to have that checklist so that it could ensure that the Committee does not falter in the process. He agreed that the process needed to be given sufficient time but when the members spoke of three months it was three months starting from when? It was almost December and Parliament opened again at the end of January, beginning of February. He did not know if much could be done in that particular period? Would the process be started at the end of January? The Committee needed to look at the appropriate time in terms of starting the process and have that checklist to ensure that the Committee did not fall foul of its own regulations.

Ms Yako said that the Committee all agreed in principle on most of the things that were spoken about today. The big elephant in the room was the Minister. Minister Patel had disrespected the Committee. She requested that the Committee have an inquiry into why his conduct and that of the Department went this way? The Minister and the Department thought that they could use unlawful means to make applications in a short amount of time and then come to the Committee with a shortlist? It was important for the Committee to understand why there was the creation of a shortlist? The Board with the Committee should come up with an Acting Chairperson who would be in charge until it was time for the Committee to make a nomination. She believed that the Committee needed to go back to the drawing board. The Committee needed to have a session before it closes for the year where it would decide where it would start in the whole process. The Committee needed to decide where it would start with the applications, how long those applications should be open for and agree on the shortlisting of those who have applied until such a time as a new Chairperson is appointed. The Committee was not going to skip any phases and the Minister needed to be involved in all those phases. The Committee was not going to accept any excuses from the Minister. This situation had been very embarrassing for the Committee to be reduced in the manner in which it was. She asked the Chairperson and the Committee to stand together in holding the Minister accountable.

Ms Hermans supported the ANC’s proposals made in the meeting. She wanted to know if the legal team could confirm whether the period allocated in the advertisements was legal? Was it considered as being legally enough time? She wanted to know this so that the Committee did not restart a process that did not need to be restarted. Did the advertisements give enough time for the applications to be submitted? She also did not think it was fair to say that the Minister was corrupt or doing anything unlawful. The Minister responded to this Committee and explained why he did what he did. The Committee needed to support the Minister in the work that he was doing. The Minister can come to the Committee to give an account but he has done nothing illegal.

Mr Macpherson said that it was difficult to determine the ANC’s position on this matter after hearing the comments made by Ms Hermans. He understood Ms Mantashe’s proposal to be two-pronged. One was to extend the process by another three months and part two was to extend the contract of the current Chairperson, Prof Nevhutanda. He battled to understand if Ms Hermans agrees with one or both of those parts. Because if it was both the Committee had a legal problem on its hands. The Committee was not entitled to extend the contract of the Chairperson. The Chairperson’s contract ends on 30 November and the only person who may extend that contract was the Minister. The Committee was not empowered to make that decision. He needed to understand what the ANC’s position was so that the Committee could have a discussion about that.

The Chairperson said that it would be important for the Portfolio Committee to engage on what was to be done. Having received the list and CVs the parties needed time to look at that information. Maybe the Committee needed to have a meeting where it decided the shortlisting process and the interview process. This would be quite important because it related to the discussion taking place in the meeting. That meeting needed to be very practical in relation to the status of what the Committee had and then discuss a way forward. He suggested that after plenary the next day the Committee should have a discussion on how it would do the shortlisting and interviews and provide timelines for both. 30 November was the date that the Minister had raised and by the look of things it might not actually be possible to select a nominee by then. If the Committee needed three months that would be another issue because that should relate to a programme that was agreed upon. It was important that the Committee accepted and acknowledge the information received today and then have a discussion about the information before the Committee later tomorrow. The Committee needed to agree on what it would be able to do and by when to conclude the process. That was the point he wanted to raise. He also wanted to give the legal team an opportunity to make further comments. The purpose of today’s meeting was to make sure that the list of nominees and CVs were received by the Committee. Then the Committee should have an opportunity to engage and agree on process because 30 November might not be suitable for the Committee to complete the work. How much time the process was going to take was an issue that needed to be looked at.

Ms Mantashe supported what Ms Hermans said. She wanted to know from the legal team if there was any wrongdoing in the way the position was advertised by the Ministry? She proposed that the Minister appoint an Acting Chairperson for the Board because the Committee could not leave the NLC in a vacuum.

Mr Mbuyane said that as much as the Minister and the Department faulted in the process it was not correct to accuse them of corruption. The process was flawed and now the process needed to be corrected. The only way for the process to be correct was to start afresh the entire process. The Committee also needed to check with the legal advisors to see what the correct process was while the shortlisting and interviews were taking place. He then discussed the issue of the three-month extension. The three-month process would only start at the end of January. The Committee would not be in Parliament for December and January.

Ms Yako said that the Committee wanted a timely, transparent and ethical process to happen for the appointment of Chairperson to the NLC. It was a topic that the Committee had spoken about for a very long time. She did not think that anyone in the meeting had called the Minister corrupt. However, he did flout the processes that were supposed to have been done and therefore he needed to come and account to the Committee. She did not want a written correspondence. He needed to come to the Committee and account so that the Committee could talk to him. The Committee needed to find out how he came about with the three shortlisted names. She agreed that the Committee needed to start over meaning that the advertising process, selection process and interview process needed to be started over. That would take time. If due process was followed, then the Committee did not need to blame themselves for whatever the outcome may be. The Committee needed to start from the beginning and then move the process on from there.  

Mr Cuthbert noted that the meeting was not being shown live on the parliamentary channel. The Secretariat needed to look into the matter because this was not a closed meeting. He wholly rejected the proposal by Ms Mantashe. Prof Nevhutanda currently had criminal charges against him. The Public Protector in Gauteng North was currently deciding whether to prosecute. Prof Nevhutanda was mired in corruption and was at the centre of any scandal that has arisen from the lotteries. The Committee could not, in good conscience, support such an appointment. It also did not reside with the Committee to make that particular decision. An Acting Chairperson needed to be appointed. Someone that was independent and could act as a caretaker while the process unfolds. It was an unfortunate reality that Minister Patel did not follow the letter of the law which resulted in the Committee being in this situation. The sooner Prof Nevhutanda left the NLC and was put behind bars the better. He had laid the institution to wreck and ruin. The DA strongly rejected the proposal made by Ms Mantashe. He proposed that an independent Acting Chairperson be put in place until a new Chairperson was selected by the Minister on the recommendation of this Committee.

Mr Mbuyane said he was not sure where the Committee was in terms of the discussion. Some members have said it was wrong to suggest to the Minister what he must do in terms of the Acting Chairperson position. In the same breath those members were proposing their own agenda. In this meeting the members must not score points. The process of appointing the Acting Chairperson was not up to this Committee. The ANC’s proposal was because the Committee needed three months to deal with the matter and that there should be an Acting Chairperson.

The Chairperson said that the members were getting into a debate and discussion that might be a bit complicated to manage in the Portfolio Committee. There have been many allegations made on social media on issues relating to the corruption of the Minister or the Chairperson of the NLC. The Committee had taken a position that it would not get involved in allegations made on social media and engage on that level. That would undermine the responsibility the Committee had. Noting all the issues, he appealed to members to not have that level of discussion because it would be complicated for the Committee to go through all those allegations. For now, the Committee was looking at the filling of the position of Chairperson of the NLC. In the discussion that has been had with the Minister there was a point where 30 November was suggested as the deadline to complete the process. Right now the Committee had a list of nominees and the CVs of those nominees. The Committee was at a point where it could work on the shortlist and agree on the interviews. It might not be possible to do all of that by 30 November but the Committee would request for some flexibility from the Minister. He suggested that the next day after plenary, that the parties having gone through the nominees list and CVs, have a discussion in the evening to agree on the shortlisting and the interviews. The deadline would obviously not be 30 November. Beyond that it may be three months or not three months. The Committee needed to agree on how to manage the process going forward in the meeting tomorrow. For now, the Committee had received the list and the CVs. Parties should have some time to look at that. He asked that the Committee look at the process and way forward tomorrow.

Mr Cuthbert was upset that his point of order was not taken when he had initially raised it. He wanted the Chairperson to take his point of order now. He said that Mr Mbuyane must not mislead the Committee. He and his colleagues in the ANC want to unilaterally appoint Prof Nevhutanda on another three-month term. He had suggested the Committee put together a letter together suggesting to the Minister not to re-appoint Prof Nevhutanda. The letter was not prescribing on the Minister what process should be followed. There was a clear distinction between the two proposals. Mr Mbuyane’s snide remarks should be removed.

Ms Yako said that she had make two suggestions and she thought that it needed to be taken to a vote because it was not clear that the members were listening to what she was saying. The first suggestion was that the Committee reopen the entire process, starting from the application process to the interviews. Whereas the Chairperson wanted the Committee to start directly with the interviews. Since the process was flouted in the first place the Committee needed to reopen the whole process over again. This would ensure that due process would be followed. She wanted to take the proposals to a vote. Secondly, she also made a suggestion that the Minister be brought to the Committee to account as to why he and his advisories thought it possible to come to the Committee with only three names. What motivated that?

Mr Mbuyane said that the ANC’s proposal was that the Committee start the process afresh. By starting the process afresh the Committee should also ask the legal team what the process regarding the appointment of an Acting Chairperson was. He also wanted to check with the legal advisors whether the process of advertising was correct or not. He asked this so that the Committee would know where to start. If the advertising process was flouted, then the Committee needed to start afresh. If the advertising process was correct in terms of deadlines, then the Committee could re-evaluate the process. It was also disturbing to be handing out orders. Let the Committee agree on a process. There was no need to vote on any matter because in essence the Committee agreed that the correct process needed to be followed.

Ms Yako raised a point of order. The Chairperson wanted to start a process from the interview stage. That was why she asked that the Committee ask whether the process be started afresh from the point of advertising. Mr Mbuyane must listen carefully when she was speaking. If the advertising was not flouted, then the process could begin at a later stage.

The Chairperson said that before there was any more discussion the legal team was present. The Committee may not have to vote if it got advice from the legal term. The Committee would ask the legal team to comment. He reiterated his point that the Committee currently had a list and CVs. The Committee could begin a process of shortlisting and interviews. If the legal team was of the view that the Committee was out of its scope in terms of shortlisting then the Committee would follow the legal advice.

Ms Mantashe said that she had not spoken when Ms Yako called for a point of order and mentioned her name. The Committee agreed that the legal team was present and that they should advise the Committee if there was any flouting in the advertising of the position. If there was a flaw in the advertising then the process needed to be started afresh. She said that Prof Nevhutanda was a South African citizen with his rights embedded in the Constitution. There was no court of law that has proved him to be corrupt. She did not want the Committee to defame him. He had his rights too. She did not know he was corrupt because he was not proven corrupt by any court of law. Until such a time the Committee should not tarnish his image. The legal advisors who were present should assist the Committee to ensure that the Committee did things correctly. If the advertising period was too short, then the Committee should go back and re-advertise. 

Mr Mulder suggested that the legal team should advise the Committee if any illegal processes were followed during the advertising so that the Committee could be sure it was doing the right thing.

Mr Macpherson said that he was being convinced by Ms Yako’s points that this process should start afresh. The problem was that this ‘egg has been half-scrambled’ and it was difficult to pinpoint where the process rests in law and where it rests in being irregular. In the interests of rebuilding credibility in the NLC and for this Committee it would be necessary to start the process afresh. The Committee should call for re-advertising for nominations. Whoever is appointed should be above reproach and with no controversies. The Committee should own the process of receiving nominations. He supported Ms Yako’s position that the Committee start the process afresh. It was also important to hear from the Parliamentary legal team what their position on this particular point was.

The Chairperson said that the Committee should hear from the legal team on the process of shortlisting and interviews. The Committee would need to determine a clear programme which meant that the date of 30 November as set out by the Minister was not feasible. He asked the legal team to discuss the issues that were raised by members so that the members knew the process that needed to be engaged in. He assumed that the Committee could begin the process from the point of shortlisting and interviews. He invited the legal team to provide guidance of the issues raised by the Committee.

Adv Frank Jenkins, Senior Parliamentary Legal Advisor, said that the central question that was raised was where the Committee should start in the process. The principle of legality was referred to in the legal opinion. This referred to what powers were assigned to the Committee, what the Committee must do and what the Minister must do. This Minister was responsible and accountable for sending out a call for nominations and then submitting the received nominations to the Committee. The Committee would then make recommendations on those nominations. The Minister has done that and has done more. The things he did more was the issue of today’s meeting. Having looked at the Minister’s letter and Corruption Watch’s analysis of the calling for and receiving of nominations there was not any concern with the advertising process. From the information that was received there was no cause for concern on the nomination process. There was a period given of about two weeks for the nominations to be made. From there the Minister went outside the Act and appointed a panel to do shortlisting. The nominations received was fine. If the Committee felt that too much time has passed it needed to be remembered that there were financial implications for all of these matters. Those people who were nominated had certain expectations and that needed to be taken into account. Starting the process afresh created the impression that the entire process was mired in irregularity from the very beginning. It was up to the Committee to decide whether to continue with the process or to call the Minister to account and ask him to redo the call for nominations. From the nomination process and the information received the legal advisors did not see anything that was concerning. He then discussed the issue of the Board being without a Chairperson. He did not see anything in the Act that allowed for the extension of a term of the Chairperson. There was also nothing specific in the Act that allowed the Board to elect an Acting Chairperson. However, Boards have inherent powers to determine their procedures. It was the Minister’s responsibility to extend the Chairperson’s term. There were various tools the Minister could use if his legal advice said that an Acting Chairperson could not be appointed. The Minister can, for example, create some regulation to allow it or create a short Bill. He referred to the function of the Board in section 4 of the Act. The function of the Board was to advise the Minister on certain policy issues, licensing issues and then to have oversight over the Commission. The decision-making powers of the Board was captured in that and the Committee needed to be aware of this point. One of the requirements of the Chairperson was that the Committee must have due regard of the functions of the Board. Looking at the functions of the Board the Committee needed to consult with the Minister whether it was necessary to have an Acting Chairperson or to wait until a permanent Chairperson was appointed. The Minister was in charge of that. The Commission was not a Chapter Nine institution. The Minister was fundamentally responsible for what was happening in that Board. He then discussed the three-month extension period. He did not want to comment on that matter because it was the Committee’s decision.

The Chairperson asked if the Committee, after having received the nominees and CVs, could reconvene after plenary the next day and agree on the shortlisting and interview process and look at the timeframes. 30 November might be too tight. He suggested that the Committee reconvene and look at the nominees. The Committee could then agree on the programme of shortlisting and interviews relating to the recommendation to the Minister of the Chairperson of the NLC. The Committee did have a responsibility to look at the shortlisting process and concluding the appointment of the Chairperson of the Board. The Committee had received clarity and guidance from the legal team. He asked the Committee to consider his suggestion and asked if there were any comments?

Mr Cuthbert asked Adv Jenkins to provide the input that he gave to the Committee in writing. It would be prudent of Adv Jenkins to do that so that the members could review it themselves.

Ms Mantashe requested that the members be given enough time to look into the CVs because the Ministry was given more than six weeks to look into those CVs when they created the shortlist. Giving the Committee one night to go through more than 40 CVs was unfair.

The Chairperson said that his suggestion was that the parties engage and that the next day when the Committee reconvened Members came back with a concrete proposal. The proposal would stipulate how many days the different processes would take. Tomorrow’s meeting would be to consider the proposals made by Committee members. He restated that 30 November would not be a practical deadline. He wanted the Committee to agree on how the process would be managed moving forward. He agreed with Ms Mantashe that the members needed time to look at the CVs. Each party would come with a proposal on how to conclude the entire process. The input from the legal team was very helpful. The Committee received the information and using that information the Committee needed to take the process forward.

Ms Hermans said that the Committee would wait for more information from the Chairperson on the meeting the following day. She supported the Chairperson’s recommendations.

The Chairperson invited the legal team to make concluding comments. The Committee would then reconvene tomorrow and agree on a concrete programme moving forward.

Adv Jenkins said that he would put into writing what he had said in the meeting and provide it to the Committee. The legal team would support the Committee through the entire process.  

The Chairperson thanked the legal team for their time and advice.

The Secretariat confirmed that the CVs would be forwarded to the members as soon as the meeting concluded. The information for the following day’s meeting after plenary will also be sent to the members.

The meeting was adjourned.