NYDA Board recommendations: referral from Speaker

Women, Youth and Persons with Disabilities

09 February 2021
Chairperson: Ms C Ndaba (ANC); Ms M Gillion (ANC, Western Cape)
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Meeting Summary

Video: PC on Women, Youth and Persons with Disabilities and Select Committee on Health and SS, 09 Feb 2021

Tabled Committee Reports

The recommendation process for National Youth Development Agency (NDYA) board members was under scrutiny in the virtual joint meeting of the Portfolio Committee on Women, Youth and Persons with Disabilities and Select Committee on Health and Social Services. The  Committees had jointly completed its recommendations for filling the NYDA Board on 4 August 2020. They were then supposed to have presented their report to the National Assembly. At the time, a motion by the Chief Whip of the majority party was tabled stating that that the report needed to be referred back to the Portfolio Committee. There had been complaints from individuals and organisations about the selection process of the joint subcommittee of the Portfolio and Select Committees for NYDA Board. There were three key concerns: transparency and openness of committee meetings in terms of the Constitution; domination by a particular political party; geographical spread of the recommended candidates.

A legal opinion had been obtained and based on advice from the Speaker the Portfolio Committee had determined towards the end of 2020 to add further names to the seven-name final list. However the National Assembly Programme Committee chaired by the Speaker had met in January 2021 and resolved that the process should start from scratch.

Although there were differing views by Members on restarting the process completely due to the delays and the NYDA being without a board, both Committees agreed to the decision by the National Assembly Programme Committee (NAPC) to re-start the process but wanted the terms of reference and ultimate target to be clear. Committee reports to this effect were adopted.

Meeting report

Chairperson Gillion welcomed the Portfolio and Select Committees and hoped the Committees would truly serve the people of South Africa in this portfolio in 2021.

Chairperson Ndaba confirmed that the legal team was present. She said it was better to have a joint meeting of the Portfolio and Select Committees. The Chairpersons and Whips of the NCOP and National Assembly had met to discuss this. She reminded them of when in 2020 they had completed their selection process in filling the NYDA Board vacancies. They were then supposed to have presented their report to the National Assembly. At the time, a motion by the Chief Whip of the majority party was tabled to say that that the report needed to be referred back to the Portfolio Committee. Thereafter, the Portfolio Committee sat and sought answers and advice from the Speaker on how to deal with the report – there were no terms of reference at that time. They took the resolution and stance to write to the Speaker for terms of reference. The Portfolio Committee received a letter and legal opinion from the Speaker in 2020. This was when they were supposed to have finalise and ultimately adopt a Committee Report. However, Parliament’s December closure had seen a carry-over of this process to the new year. The House Chairperson, Mr Frolick, had given her a report from the Programme Committee meeting held in January and the resolution on the process to follow. She handed over to the Committee Secretary and Dr Tembe from the Office on Institutions Supporting Democracy to take the meeting through this process.

The Committee Secretary, Ms Nomvula Ngiba, said that in the spirit of bringing all Members to an understanding of how the situation had come about and evolved, Dr Herman Tembe, followed by Mr Siviwe Njikela from Legal Services would present to both Committees.

Office on Institutions Supporting Democracy briefing
Dr Herman Tembe, Legal Officer: Office on Institutions Supporting Democracy, noted that on 17 November 2020, they had received a letter from the Speaker which sought to give advice to the Portfolio Committee. It talked to complaints from individuals and organisations about the selection process of the joint subcommittee of the Portfolio and Select Committees for NYDA Board appointments. In summary, the concerns were that the selection criteria did not comply with section 59 of the Constitution, that the outcome was pre-determined, showed inclination for the majority party and did not comply with demographics. Most of the members recommended by the subcommittee came only from one province. The Speaker thus suggested that the Portfolio Committee, in its consideration of the report should address demographics, since this was the predominant concern. The other concerns, from an independent legal opinion, were unsubstantiated. It was thus recommended that the Committees balance demographics in consideration of the report. In 2020, the Portfolio Committee had decided that when it commenced meetings in the new year, it would go along these lines. Unfortunately, the Programme Committee had decided otherwise early in 2021.

Legal Services briefing
Issue 1: Transparency and Openness
Mr Siviwe Njikela, Senior Parliamentary Legal Adviser, shared his opinion. Around August 2020 was when Parliament's as Legal Services became involved. Legal Services had been invited to give an opinion on a complaint by a certain applicant. They considered all issues raised at the time and gave their view. Most allegations made against the selection process were factual in nature. The difficulty was that matters of fact could not be resolved on the basis of legal opinion. Although on a number of the items raised, based on the information provided by the Committee Secretariat, Legal Services was of the view that there were reasonable explanations for all the allegations forming the basis of the complaint. From the information at their disposal, a number of areas could be explained.

More complaints were submitted both to the Speaker and the Presidency, lobbying them not to endorse the process that had been followed by the Portfolio Committee. They were then approached to obtain an independent legal opinion in November. They briefed Senior Advocate Potgieter to give the legal opinion. That legal opinion dealt with all areas of the complaints raised. One of these was transparency and openness in the processes of the National Assembly and National Council of Provinces in terms of Section 59 and Section 72 of the Constitution. When the selection process started, there was a specific request from the Committee that the meeting where the approach to the interviews was going to be discussed would be a closed meeting. This request was granted by the Speaker, but this was just one part of the process. The reason at the time was that the criteria for appointment could not be discussed in the public domain, as it might compromise the entire interview process. In the view of Legal Services, the reason and process followed was the normal process of Parliament. Although Sections 59 and 72 state that Parliament conducts its business in the open, it also specifically states that where there are good reasons, meetings may be closed provided rules and procedure are followed. In its legal view, the procedure had been followed, for having this one closed meeting.

Issue 2: Domination by a particular political party
There was a second issue of allegations that a particular political party had dominated in this process. There was much correspondence around this, to the different office to try and substantiate that. With the senior council, they said that given the nature of the allegation, there was no proof that there was a specific affiliation with a particular political party. This was not a matter they could glean from the minutes – nowhere was there an indication that political party was discussed. However, some felt that the members selected were all aligned to a political party. The difficulty once again was that this was a factual matter that could not be resolved on paper. As the advocate went into the matter, it became clear that this was not. A matter that would be resolved by means of a legal opinion as it was a factual allegation. It could be that some people knew what they knew and they were privy to – they were not able to deal with this on the basis of a legal opinion.

Issue 3: Geographical Spread of Applicants
It was clear in the Act that the board needed to reflect the geographic spread of the Republic. The advocate said that though this was required, it could not be interpreted to mean that every corner must be reflected, but the committee did need to clearly show it had the requirement in mind and it it’s shortlisting it considered the issue of geographic spread. They needed to demonstrate that they were aware of the requirement. Ultimately, though candidate performance determined success, and this could not be predetermined.

There had already been litigation issued by Ms Mabaso. This litigation was settled between parliament and Ms Mabaso, with the commitment to provide the information as discussed 30 June. An understanding had thus been reached. Despite the meeting being closed, now that the process was finalised it was for them to take the agreement into court and make it an order of the court. This matter was resolved between parties with the understanding that the information would be made available. There was another complaint filed about age – where a candidate said he had been excluded on the basis that he was over 35 years old. The opinion from advocate Potgieter was that even though age was not prescribed in the act, the sub-committee would have been entitled to create a criteria enabling them to arrive at a shortlist. As such, in Adv Potgieter’s view, it was not unfair to have a criteria linked to age, considering that the age of youth in South Africa was 35. Though it was not prescribed by the legislation, it would not have been unreasonable, as long as the committee could explain their criteria of age. These opinions went to the office of the Speaker, though Legal Services was not privy to what happened beyond this. As such, that was the last interaction of between Legal Services and the Portfolio Committee as far as the matter was concerned.

Chairperson Gillion asked that the letter from the Speaker be circulated to the NCOP Select Committee who had not received this. The Chairperson and Committee Whip were aware of the letter, because they had sat in the meeting with management about this.

Ms Ngiba asked if everyone had received a copy of the Speaker's advice and the National Assembly Programme Committee (NAPC) decision. She explained that two weeks prior, the NAPC concluded that the process of filling the NYDA board positions should be restarted. This was communicated to the Portfolio Committee Chairperson. The NAPC expected the Portfolio Committee to develop a report that is clear on having received the Speaker’s advice and the legal advice and that the process should be restarted. By so doing, it would allow the NA and NCOP to start the process afresh. At the Committee management meeting, it was advised that they needed to have a joint meeting where they would communicate the NAPC decision where the matter would be tabled for consideration and a decision. The ultimate aim was to get to a point where both committees, having deliberated on the correspondence received, would agree that the process should start from scratch. It was crucial for all Members have the letter from the Speaker.

Ms Gillion confirmed that the letter from the Speaker had now been circulated to the Select Committee.

Dr Tembe read out the 17 November 2020 letter from Speaker Modise.

Chairperson Ndaba said that it was a 50/50 situation. Firstly, how would they add to the seven names they had recommended. From where would they start? If one took the shortlisted 30 names, there would be complaints that the performance of the other candidates was unsatisfactory. If they took the CVs received for shortlisting, there would be other complaints. As such, the Programme Committee had come to the decision that the process should start afresh. She asked if all Members had the NAPC resolution asking that a Committee Report be developed agreeing to the NAPC decision.

Discussion
Ms M Hlengwa (IFP) welcomed the outcome. If they should start afresh, they should forget about the past and truly start afresh.

Ms B Maluleke (ANC) said that they had discussed the Speaker's letter last year. She thought that perhaps they had another letter from the Speaker saying they should start afresh. However, if the Programme Committee felt they should start afresh, she had no problem with this. She asked what exactly was required in the Committee Report. Would they say they agreed to start afresh and give a time frame? Her concern was that it was already long time that the NYDA was without a board. It might take another year to re-appoint from the start. She was not satisfied with the needing to start afresh, but she did not think there was anything she could do. She was not convinced that the Speaker’s letter said to start afresh. She recalled that they had previously discussed they needed to add further names to the seven names recommended. However, she understood that this would be difficult as complaints were likely to follow. They did not want to set a precedent that they could not manage as time went on.

Mr Luyolo Mphithi (DA) welcomed the Speaker’s decision. The many concerns and complaints submitted by young people across the country were very valid and important complaints. At the centre of the Speaker’s call to start afresh was Section 9 of the NYDA Act not being reflected in the seven names recommended by the Committee. More important, the individuals recommended were indeed from a certain political party and therefore did not represent the demographics of the country.

There were three important decisions. Firstly, whether they should restart the process from the beginning. He did not think a new precedent would be set if the board appointment recommendations were restarted on the basis that Section 9 was not met. This was not something new or untoward in the appointment process. The second important decision was on the closed meeting and if this was indeed transparent. Thirdly, the requirements for the appointment were key. Many did not understand the requirements and felt that those requirements had changed. He supported the NAPC resolution to restart the process, as well as new terms of referenceput in place for a new, transparent process to start from the beginning. To add names onto the seven selected candidates would not bring legitimacy - on the contrary.

Ms F Masiko (ANC) wanted to believe that the previous NYDA board selection process, on which Mr Mphithi himself sat, in no way meant they had run an illegitimate process. They needed to be clear that in no way was that process illegitimate. The Honourable Member who served on the Committee was saying it was illegitimate. As a joint committee, they needed to speak out against grandstanding by Members. The Honourable Members had taken an oath to be honest and transparent. There was no way they would run a scam that sought to “facilitate legal looting”. These were the words of a member of the Portfolio Committee, who had gone out grandstanding. They should not allow this, as they still bore the responsibility to do their work honestly. Members of public were entitled to complain, but this was in no way extended to committee members who were saying that they were scammers wanting to loot. She asked the Chairperson to call order on this. Ms Masiko aligned herself with the recommendation put forward by the Speaker and NAPC that the process should run afresh, although they would need to speak to the terms of reference and whether the Committee would be the group to take the process forward.

Ms A Hlongo (ANC) agreed that the process needed to be started afresh.

Ms N Sonti (EFF) said that the many complaints were clear: the process should be started afresh. It needed to be honest. The domination of one political party was not good. Demographics needed to be balanced, the process needed to be fair and interviews also needed to start afresh.

Mr M Bara (DA, Gauteng) said that from the side of the NCOP, he thought they were at a disadvantage, because they had not had a chance to look at the documents. He wanted to know from where they would be starting the process. Would they go back to the applications and do another shortlisting? Or would they re-open the application process? It was important to ascertain how far back they would go to restart the process. They were in a country that was so in touch with what was happening within government. As such, there would always be opinions on the work done by Members and Committees. It was therefore valuable to sit and assess the nature of the outcry. If they were able to resolve the outcry, they should do this. They would redo the process, but someone would not be appointed or shortlisted and might write a letter of complaint. He suggested they assess the situation. How they deal with the process needed to be clear. He did not have a problem restarting the process but the terms of reference and ultimate target had to be clear.

Ms T Mgweba (ANC) believed they had followed the correct process and procedure. They should never allow themselves to be blackmailed about the process. However, she welcomed the report from the Speaker and the NA Programme Committee. She agreed with Mr Bara that as part of restarting the process,the  terms of reference needed to be clear. In 2019 the process had begun. In 2020, selection of CVs had begun. Terms of reference needed to be clear on whether they would open applications again, or if they would look at the initial 600 plus CVs. She did not have a problem with restarting the process. The Speaker was part of the NAPC. At the end, they would never allow blackmail that the process was not free and fair.

Chairperson Ndaba said this was an important point. They would not allow themselves to be subject to blackmail as if there was something wrong with the process. Closed meetings were allowed in Parliament, at the discretion of the Committee. The application and motivation to the House Chairperson's Office had granted permission for this. All their meetings were open and transparent. It was not one-sided. The letters to the Speaker were not only complaints; some had commended the work done. As the joint committee, they agree to restart the process. She handed over to the NCOP Chair to round up what they would write to the Speaker especially given the terms of reference. Where there was a question of the Constitution, they would refer to legal opinion.

Chairperson Gillion thanked Members for their deliberation on this important matter. She was of the opinion that the subcommittee did everything accordingly, though it was right to start afresh. She echoed the sentiments requesting members of the subcommittee to respect the work they had done together and not to hand things out in the media. She hoped that they would put a timeline of two or three months in the terms of reference to conclude the process as soon as possible.

Ms Ngiba responded to concerns about the terms of reference and from where they would start. The advice from the Speaker was to add more people on the list to align it with the NYDA Act. However, the Chairperson had expressed this might be a more difficult and problematic process. The NAPC decision would be communicated to the Office of the Speaker asking the committee to restart the process. This would mean that they would need to start advertising for nominations and applications for those interested in becoming a board member. They would have a programme to guide the committee. If the committee agreed to follow the Speaker’s advice to add more names to allow the President to choose from a variety of names, the questions on terms of reference would have been more relevant. However, since they were agreeing to restart, there would not be terms of reference now. The committee would meet and agree on those requirements and draft their own programme. Having considered the guidance from the Speaker, they could add this going forward. They hoped that the subcommittee members would continue. The Secretariat had drafted a Committee Report adopting the NAPC resolution.

The Chairperson said that what was left was to draft criteria which would be discussed. They agreed with the decision of the Programme Committee. Other questions posed need to be written down in a letter to the Speaker. If they did not have the outlines defined clearly. Members had assisted the process as far as they could. She asked Ms Gillion to lead them towards closure.

Chairperson Gillion said the decision was clear – they would restart the process but there needed to be clear communication from the Speaker’s Office so they could really know the timeframe and expectations for the committee. They needed a mover and a seconder in adopting the motions.  

Ms Maluleke noted that the Committee Secretary had said they had already prepared the NCOP and NA Committee Reports.

Chairperson Ndaba clarified what Ms Ngiba meant. During discussion in the meeting, they were busy drafting on behalf of the committees, so she was referring to draft committee reports. When the subcommittee met, they would draw up criteria.

Mr E Nshabeleng (ANC, Limpopo) said that they should re-look at adding the other names. They had records of the interviews. What they should do is look at the 8th to 14th person to add to the seven-person shortlist. This was his humble opinion – that it would save time. There would always be complaints. As long as they spoke as one, the challenges would not be that much. He speculated whether they should run things with only one member. They needed to work out terms of reference on how they would work as a team with one purpose and one goal.

The Chairperson said the contribution was valuable.

The motion to adopt the resolution to start afresh the NYDA Board recommendations was moved by Ms Sonti and seconded by Ms Hlengwa (NA) and moved by Ms Maleka and seconded by Mr Bara (NCOP)

Ms Ngiba said that Committee Reports needed to be tabled and published. They had drafted these reports as part of protocol.

Ms Ngiba presented the Portfolio Committee Report on the NYDA Board appointment dated 9 February 2021, which was adopted by the  Portfolio Committee:

Report of Portfolio Committee on Women, Youth and Persons with Disabilities on appointment of the National Youth Development Agency (NYDA) Board Members
 
Background
The Sub-Committee on the Appointment of the National Youth Development Agency (NYDA) Board Members (hereinafter referred to as the Sub-Committee), considered requests by the Speaker of the National Assembly (NA) dated 25 July 2019 and the Chairperson of the National Council of Provinces (NCOP) dated 18 November 2019, to facilitate the process for the appointment of persons to serve on the board of the National Youth Development Agency (NYDA). The Sub-Committee resolved that seven (7) candidates be recommended by the Portfolio Committee and the Select Committee to both Houses of Parliament, to be appointed by the President to serve as board members in the NYDA for a period of three years. Both Committees adopted their reports, which were published on 04 August 2020. [see ATC 4 August 2020]
 
Process and Procedure
On 3 September 2020 the National Assembly considered the report of the PC on Women, Youth and Persons with Disabilities and resolved to return the report to the Portfolio Committee for further consideration.  The Committee, in a letter addressed to the Speaker on 13 October 2020, requested further guidance on how to proceed with the matter.  The advice and legal opinionfrom the Speaker was considered in a joint meeting of the PC on Women, Youth and Persons with Disabilities and Select Committee on Health and Social Service on 9 February 2021, in line with NA Rule 167(e).
 
Recommendation
The Portfolio Committee on Women, Youth and Persons with Disabilities, having considered the advice and legal opinion received from the Office of the Speaker in relation to the process to appoint board members on the NYDA, resolves to restart the process from scratch.

 
The Select Committee Secretary presented the Select Committee Report on the NYDA Board appointment dated 9 February 2021, which was adopted by the Select Committee.

Ms Ngiba said that there would be a subcommittee meeting soon and the names of the subcommittee members were read out.

Chairperson Ndaba thanked members. Moving forward, there would not be any blackmail or grandstanding by Members. Ultimately, this contributed to disbelief and mistrust. It had a negative bearing between members, hindering integrity of the Committee. They agreed that the process would restart. What was left was the letter to the Speaker they needed to write.

The meeting was adjourned.
 

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