NLC Chairperson appointment process: deliberations continued

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Trade, Industry and Competition

25 November 2020
Chairperson: Mr D Nkosi (ANC)
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Meeting Summary

19 Nov 2020: Trade, Industry and Competition Budgetary Review and Recommendations Report; NLC Chairperson process
17 Nov 2020: Trade, Industry and Competition BRRR: discussion; Selection of NLC Chairperson process

24 Nov 2020

NLC Chairperson appointment process: deliberations

In this virtual meeting, the Committee met to deliberate on the process regarding the appointment of the Chairperson of the Board of the National Lotteries Commission.

The Committee had received a legal opinion from Parliamentary Legal Advisors the previous day indicating that there was no provision in the Lotteries Act which empowered the Minister to appoint an independent shortlisting panel nor did the Act give the Minister discretion to appoint such a panel. From the Act it appeared that the shortlisting process was the mandate of the Portfolio Committee. The requirements for openness and transparency further supported this interpretation that the Committee of the National Assembly should deliberate on the nominations and provide recommendations for the appointment by the Minister. The appointment of the chairperson that is inconsistent with the procedure as provided for in the Act can be challenged and a court can nullify the appointment. The Committee had the list of the all the nominees and the CVs. The Committee could shortlist and determine the interview process.

This meeting was convened to decide on the process going forward, whether the proceedings should start from the beginning or whether the proceedings should start from the received list of nominees. The legal advice stated that the Committee was at liberty to start the process from when it received the nominees and CVs.

The EFF was of the opinion that the Committee should start the process from the beginning. That way the Committee could own the whole process.

The other parties (ANC, DA and FF+) disagreed. They were of the opinion that there was no reason to consider the nomination process unlawful or irregular and it would be wasteful expenditure to begin the process from the start.

The DA and ANC disagreed on when the Committee should begin the process. The ANC proposed that the process be started towards the end of January by shortlisting the nominations. It would take between six to eight weeks to do a thorough job of the shortlisting. Thereafter, the Committee should have a two-week process for interviews.

The DA strongly opposed the proposal by the ANC and argued that the Committee did not need to have the extended timeframes that the ANC proposed. The Committee should resolve to draw up a schedule that allowed the members to work as far into December as possible when there were no other House sittings, Committee meetings and other commitments.

The Committee agreed to reconvene on Tuesday 1 December for the Committee to decide on a concrete programme going forward. The Committee would communicate with the Minister that his deadline of 30 November for a nominee for the position of Chairperson was not possible. What the Minister and Board decided on the issue of the Acting Chairperson was their responsibility and not that of the Committee.

Meeting report

The Chairperson welcomed members of the Committee to the meeting. He asked for the agenda to be presented. The main item on the agenda was the process for appointing the National Lotteries Commission Board Chairperson. He asked the Committee to adopt the agenda and proceed as had been suggested.

Mr M Cuthbert (DA) reminded the Chairperson that his proposal should be added to the agenda. Did the Chairperson not think it was best for the proposal to be discussed in this particular meeting? There had been no new documents that had been introduced aside from the written confirmation that Adv Jenkins had said yesterday. The Committee still had the same legal opinion. It was prudent that the Committee discuss his proposal in the interests of moving forward and appointing a Chairperson of the NLC. His proposal should be included in the agenda and any counter proposals should be discussed by the Committee too.

The Chairperson said that some of the members would not understand the point Mr Cuthbert raised. The issue that Mr Cuthbert raised was the shortlisting. The deliberation and discussion would include the matter of shortlisting as has been proposed in the agenda. The point he raised was part of the issues that will be covered in the discussion of the meeting. Looking at the process meant looking at the shortlisting, the interviews and the recommendation. The matter Mr Cuthbert raised was already a part of the agenda. He asked members to agree on the agenda and proceed with the meeting. Mr Cuthbert would be given an opportunity to raise his proposal and discuss it.

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 continued

The Chairperson asked the Committee Secretariat to provide a summary of the document circulated. The document was the legal opinion that had been put in writing for the Committee.

The Committee Secretariat summarised the written response of Adv Jenkins from the previous meeting. In response to the questions on the nomination period Adv Jenkins said that he was not aware of any nominee submitting that there was insufficient time. The Parliamentary legal team was not aware of any evidence that indicated that the nomination process was unlawful or irregular. He also advised the Committee that it was in control of its own proceedings and procedures. The Committee may decide to complete this process accordingly. He then responded to the questions on the appointment of an Acting Chairperson in the interim. The Minister was the appointing authority and must take advice on how to proceed. There were options available to the Minister which included amending the Act although there may not be time to do so. There was nothing in the Act that permitted the extension of a term of office of the present Chairperson nor was there anything in the Act which referred to the appointment of an Acting Chairperson. However, given the advisory and oversight functions of the Board in section 10 and the meetings of the Board in section 4 it was possible for the Board to take advice on whether it can proceed without a Chairperson or be advised whether it or the Minister can appoint an Acting Chairperson. That was the advice of Adv Jenkins based on the questions raised in the previous day’s meeting.

The Chairperson said that was part of the discussion that the Committee had the previous day. The Committee had received the list of nominees and their CVs. The Committee should be able to get to a point where it discussed the process, shortlisting, interviews and then recommendations. He asked the Secretariat to provide a sense of what might be the suggested proposal as the Committee proceeded with this process.

The Committee Secretariat responded that the Minister, in his letter, requested that he would like to have a recommendation by 30 November. It was clear after the last meeting that that due date was not possible. There was deliberation on the process going forward whether the proceedings should start from the beginning or whether the proceedings should start from the received list of nominees. Adv Jenkins, in his written advice, said that he did not see any legal reasons why the process should start from the very beginning. The Committee could start the process from when it received the nominees and CVs. Those were the issues that the Committee needed to respond to. If the Committee decided to start the proceedings from the nominees list and CVs, which it was in the possession of, the Committee could then propose a timeframe on how the matter could be processed. The process would probably be completed in the next term of Parliament. The decision on when that process will start and end will be made by the Committee. The Committee did have a proposal. The Secretariat suggested that the input from members be heard.

The Chairperson said that that was the starting point for the Committee. The deadline of 30 November will not be met. The Committee would not be able to work to that. The Committee had received the list of nominees and CVs. That was the information that would be used in the consideration of the shortlisting and interviews. It was something that needed to be considered when the Committee reconvened in the next quarter of next year. He opened the floor for the members to make comments.

Ms Y Yako (EFF) said that the Committee was dealing with a ‘hot potato’. Her opinion was that the process should be started from the beginning by the Committee. That way the Committee could own the whole process. She was apprehensive of using the names that had been forwarded in the shortlist even though the Parliamentary legal team said that the Committee could do that. The Committee could start from the beginning. There was nothing rushing the Committee as it knew that it was not going to meet the Minister’s deadline. The Committee needed to do things right and in the proper way.

Ms Hermans said that 41 CVs were sent and then another three so in total there were 44 CVs. She said that Members had a very packed programme and was close to rising for the year. She proposed that the process be started towards the end of January by shortlisting those nominations. The Committee should do its own shortlisting going through those 44 nominations. It would take six to eight weeks to do a thorough job of the shortlisting. Thereafter, the Committee should have a two-week process for the interviews.

Mr Cuthbert said that the DA agreed with the Parliamentary legal opinion as it was in line with their legal opinion. The process going forward should lead towards shortlisting. He did not believe that the Committee needed the extended timeframes that Ms Hermans proposed. The Committee could probably look through all the CVs in seven days if the members did on average six or so CVs a day. The Committee also did not have any other scheduled meetings. The Committee did have an extra two weeks while the plenaries continued until the constituency period begun. He wanted the Committee to take that time period into consideration as well. He then discussed the interview period. The Committee had set aside three hours last time for the three shortlisted candidates and that was appropriate. The Committee could then have a separate meeting to discuss the results of those interviews. He did not see the need for so many weeks for the process. This would also allow the Committee to not come into conflict with the potential that Prof Nevhutanda being reappointed. The Committee would be remiss if this process was not concluded in a fair and expeditious manner.

Mr J Mulder (FF+) said that the FF+ was of the opinion that there was no reason to consider the nomination process unlawful or irregular. It would be wasteful expenditure to begin the process from the start. He agreed with Mr Cuthbert that the Committee should continue to look at the CVs as soon as possible. He was not sure how long it would take but knew that it would be time consuming. Seeing that time limit of 30 November, which was less than a week away, the Committee should consider advising the Minister and the NLC on whether they should continue without a Chairperson or appoint an Acting Chairperson. The Committee should consider this matter if it did not finish its work on time.

Ms T Mantashe (ANC) seconded the proposal made by Ms Hermans. The Committee should start the process with the list of nominees. The Committee could not waste resources and re-advertise under the current fiscal state of the country. She was not of the view that the process must be rushed that was done over six to seven weeks by the Department. The Committee would not be able to do that within six days. She did not agree with that opinion.

Mr D Macpherson (DA) added historical context of how this Committee had dealt with urgent matters like this in the past. He was concerned that the timelines that had been proposed by Ms Hermans were extraordinarily long. The Committee should look to deal with this process in a truncated system where the Committee could meet in the evenings or on weekends. This was the last scheduled meeting for the term. However, the Committee was able to continue working into December. The Committee has done this before. In the Fifth Parliament, the Committee met on all sorts of evenings. The Committee would be doing the NLC and the public a great disservice if it ‘hung up its boots’ to go on holiday while the Commission was in a crisis. The Committee should not choose to not expedite this process just so that it could go on holiday. As members of Parliament they were paid well to do a job. That job was not time bound. This Committee should resolve to draw up a schedule that allowed the members to work as far into December as possible when there were no other House sittings, Committee meetings and other commitments. The Committee could meet from Monday to Friday, uninterrupted, from nine till five to go through these CVs and start the process. He thought that for the Committee to hang up its shoes and get their beach towels ready was not the right thing to do while the NLC found itself in a crisis. South Africans were looking to Parliament to resolve this crisis and to take their Parliamentary responsibility very seriously. He proposed that the Committee put a programme together that allowed the members to work as far into December as possible. The Committee needed to start urgently and without fail.

Mr Mbuyane discussed the written response of Adv Jenkins. Why was there a rush to finish the process? The process was now with the Committee and the Committee should decide on how to deal with the matter at hand. He did not think it was correct for the Committee to be discussing the Department. The Committee should not jump from the issue under discussion. The Department took around six weeks to deal with the shortlisting process and now there was a suggestion to rush and do it within six days. That was not fair. He then discussed the issue of mandate. The Committee was not hanging up its boots. Parliament had a programme in dealing with various matters. It was proper for the Committee to have a clear process with timelines. He supported the proposal of Ms Hermans of the process being over six to eight weeks. If the Committee was going to rush, then it might do something wrong.

The Chairperson said that there were a few issues that the Committee had raised. It would not be possible for the Committee to meet the deadline of 30 November. There was also a suggestion by some members that the Committee work beyond 4 December, when Parliament rises, and complete the process. There was also the point that the Committee should have a programme to be able to process this matter. He asked if there were any further comments? There was no consensus or agreement from the Committee on the way forward. The Committee had only confirmed what was not possible. The Minister and the Board of the NLC needed to deal with the issue of the Chairperson role not being filled. The Committee needed to look at when and how it was able to manage this process so that a Chairperson of the NLC could be appointed. The Committee needed to come back with a proposal on how the process would be taken forward. The Committee did have information it just needed to agree on process so that it could formulate a programme. The Committee needed to reach a point where it could make recommendations to the Minister. The issue that needed to be resolved was the provision of options to the Committee on the way forward. From the legal perspective things were very clear. The information was with the Committee and it needed to agree on the programme to process the issue of the appointment of the Chairperson of the NLC. He suggested that the Committee come with proposals to consider and then it could decide on the process moving forward. Options needed to be presented to the Committee. The Committee would then need to decide on a way forward.

Ms Mantashe agreed with what Mr Mbuyane was saying that when Parliament rises there was a constituency period. The members were not going to hang up their boots. The ANC members were different to Mr Macpherson who had been away from the Committee for quite a number of weeks. She proposed that the Committee commence this process at the end of January so that when Parliament starts on 11 February the Committee would be done with shortlisting and would start with interviews.

Mr Cuthbert said that it seemed like the ANC members of the Committee were quite happy to have a man like Prof Nevhutanda as the Chairperson for a further three months while the NLC experience further maladministration and corruption. He did not understand how it was conscionable to members of the ANC of this Committee that the matter be allowed to drag out any further. It was important that the Committee select someone who was able to turn this institution around so that it could get back what it was intended to do. The NLC was supposed to cater to the most vulnerable in South African society who require strong leadership to ensure that they were able to do good in their respective communities. That needed to be the first priority to get the Lotteries back to what it was supposed to do. He did not accept the argument by the ANC members. Maybe it was a case of laziness, unwillingness or a political agenda around the matter. He assured the Committee that his constituents wanted this matter resolved. He received a lot of queries about the Lotteries in his constituency. People had been short-changed on money where money has been diverted to other sources. People wanted this issue resolved. He could not believe that members were suggesting only starting the process in January. The members had sufficient time now in order to manage this process and still deal with their constituencies. He suggested to the Committee that they should work on a programme that allowed them to work into December as Mr Macpherson had said there was precedent of doing this. There was nothing wrong with a little bit of hard work. The Committee should show the South African public that Parliament was committed to putting forward qualified candidates to Minister Patel. The members needed to show that they were committed to doing the work that they were paid over a R1 million a year to do. He did not buy the argument that the Committee needed to wait.

Mr Macpherson said that all the members were in agreement that this process cannot be done in six days. There were no members that thought this could be done before 30 November. What he did disagree with was that this matter was something that could hang around in the background until the end of January. He could not think of a matter that was more important to the constituents than resolving funding for NGOs and resolving funding for the most vulnerable in South Africa. Surely that was a matter that cut across all of the constituencies? The members should be able to go to their constituents and say that they dealt with this issue as quickly as possible. Which members were prepared to go to their constituents, during the constituency period, and say they were too busy to deal with this issue? Which of the members were prepared to tell their constituents that they were prepared to deal with this issue after they have had their Christmas turkey, pudding and celebrated New Years over some nice beverages? Because that was essentially what the members of this Committee were saying. He believed that it was critical to the constituents that this issue be resolved very quickly. The members needed to choose their constituents and this very important issue over their beach and holiday plans they had arranged. They needed to put away their sandals, bikinis and beach shorts. The members needed to do the work that the electorates have elected them to do and to fix the crisis at the NLC. That was the Committee’s responsibility and that was what the Committee should resolve without fail.

Ms Yako asked if the Committee had CVs of all the shortlisted candidates. She had heard a number of 43. In her email inbox it did not amount to 43 shortlisted members. She did not see some of the shortlisted people. She wanted to know from the Secretariat if they had sent all the people who had been shortlisted by the Minister.

The Committee Secretariat said that there were only 41 nominated candidates. The original batches that were sent out had three duplicates. The three candidates who were sent after the 41 were already included in the 41. There were not 41 plus three nominees. In total there were only 41 candidates nominated. If the members had anymore challenges the Secretariat would provide help.

Ms Hermans said that it was important for the members to not use the word ‘shortlisted’ for the list of 41 nominees. That was a list of nominees that was received by the Minister. The Committee Secretariat was asked to confirm that point.

The Committee Secretariat said that the 41 were candidates that were nominated by the public. It was not the shortlisted candidates. They were nominated by the public as a result of the call by the Minister and were not shortlisted.

Ms Hermans said that she just wanted to clarify that point because Ms Yako kept on saying the 41 candidates were shortlisted. She had enough faith in the NLC and did not think the work of the NLC would stand still if a Chairperson was not appointed. The Committee also knew that the Minister, being the shareholder, would make the right decision whether he was going to appoint an Acting Chairperson until Parliament concludes this matter or not. It was a bit disingenuous to say that everything in the NLC would be at a standstill because there was no Chairperson that was appointed by 1 December.

Ms N Motaung (ANC) said that she supported what Ms Hermans’s proposal. The Committee members needed enough time to go through this process. she supported the programme that Ms Hermans proposed. In response to Mr Cuthbert, she said that there was no political agenda or laziness present. The ANC members were always present in the Portfolio Committee meetings and were always available to do Parliamentary work.

Mr Mbuyane said that the ANC was resolute and clear on this matter. The ANC wanted to change this institution around and that was why the members needed to take time in dealing with the matter. Rushing proceedings would result in the Committee not dealing with the matter properly. It was proper for the Committee to have management and consolidate all the issues that have been raised in the meetings and report to the Committee before Parliament rises.

Ms Yako wanted clarity on what Ms Hermans said about the Minister appointing somebody suitable to stand as Acting Chairperson. She highlighted the fact that the Committee was in this mess right now because the Minister decided to extend a contract which was not lawful to do so in the first place. Now there was a Board that was not equal. The Committee was dealing with one person, specifically, when it should have been dealing with the entire board. Had the Board served all of its five years, it was supposed to, then the Committee would not be sitting in this situation. She was weary of giving the Minister powers to appoint somebody for another three months when that Acting Chairperson might want to reapply to become permanent. What did Ms Hermans mean when she said that the Minister had the right to appoint an Acting Chairperson for three months? Rightfully Prof Nevhutanda should apply for this role because he was appointed on an interim basis which was illegally done. Prof Nevhutanda should have been on a five-year contract with the current Board as it serves its five years.

The Chairperson said that the Committee should not be concerned about the issue of the Acting Chairperson. The Board and the Minister should be able to take care of that matter. The appointment of an Acting Chairperson did not fall within the responsibility of the Committee so the Committee should not have a debate on that matter. The Minister asked the Committee to please conclude the process by 30 November. The Committee would communicate with the Minister that that deadline was not possible. The Committee would not be able to provide a Chairperson for the NLC by that deadline. The Committee should decide on what programme it would use moving forward. He asked Ms Hermans to respond to Ms Yako’s question.

Ms Hermans said that she was concerned that Ms Yako made a statement that the Minister illegally extended the term of the existing Chairperson. Ms Yako had also made comments about the Board. She had not seen a legal opinion where the Minister has been accused of doing something illegal. This was a Portfolio Committee of Parliament and it was not appropriate to make statements that the Minister was doing something illegal and leaving it like that. She also requested that Mr Macpherson stop talking about the ANC member’s beach towels. The ANC members were responsible members of Parliament who wanted to take enough time to apply their minds. Mr Macpherson was making disparaging remarks on the chatroom. She did not appreciate those remarks.

The Chairperson said that he had allowed the members to contribute on the process of the appointment of the Chairperson’s of the NLC. He wanted to look at the comments and suggestions made by the members and to create a concrete proposal for the members to decide on. The Committee would inform the Minister that 30 November would not be possible. The Minister and the Board of the NLC would have the right to take care of certain issues. He asked that the Committee reconvene on Tuesday, 1 December at 9am for the Committee to get a concrete proposal and options for the Committee to decide. He asked if the Committee agrees? He asked that the Committee accept this as the way forward. The Committee would communicate that the deadline of 30 November was not possible and what the Minister and Board decided on the issue of the Acting Chairperson was their responsibility. It the Committee needed information of that matter then the Minister would be able to provide it. He asked the members to conclude the discussion and reconvene when the Committee had a concrete proposal and options so that the vacancy of the Chairperson of the NLC could be filled. Were there any further comments from members?

Mr Cuthbert said that the Chairperson should not only run it by Ms Hermans and her ‘beach towel brigade’ whether it was okay for the Committee to meet next week Tuesday. Those members clearly had holiday plans.

Mr Macpherson asked that members search their conscience between now and Tuesday and think long and hard about what their commitment is to the Republic, to the Constitution and to the NGOs that the Committee needed to represent. There were two options. The members could kick up their feet and sip on a pina colada or the members could get to work and do the work that the NGOs require to fix the NLC. The members needed to search their hearts to be prepared to do some hard work right up until the ‘turkeys need to be carved on Christmas day’. The people of this country were the priority and not any holiday plans.

The Chairperson said that in the Portfolio Committee there was not any performance assessment process. Some of the comments might have been a bit wasteful because it was a discussion that would not be conclusive. The members of the Committee did not have the responsibility of assessing each other in how they performed their responsibilities. He asked that the meeting be concluded.

Mr Mbuyane said that members could not be insulted. The members in this meeting were adults. What Mr Macpherson said was not correct. It should be proper in this Committee that members should be able to respect each other. Members could not be throwing around insults.

The Chairperson concluded the meeting by saying the Committee would reconvene on 1 December to look at the specific programme of the process to appoint the NLC Chairperson. He thanked the members for their contributions and was surprised at the amount of energy they had.

The meeting was adjourned.



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