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WELFARE AND POPULATION DEVELOPMENT PORTFOLIO COMMITTEE
21 February 2001
DEVELOPMENTAL WELFARE GOVERNANCE BILL: DELIBERATIONS
Chairperson: Mr E Saloojee
Developmental Welfare Governance Bill [B43-00]
ANC proposed amendments (awaited)
In the meeting's deliberations, the Committee re-named the South African Developmental Welfare Council to the South African Social Development Advisory Board. The Developmental Welfare Governance Bill was re-named the Social Development Advisory Board Bill. The Committee emphasised that the Board will serve merely as an advisory body to the Department and will not have the powers and competences of a juristic person. With regard to the composition of the Board, the ANC circulated a document containing its proposals which was accepted by the Committee.
The Committee continued deliberations on the Bill:
Clause 4: Powers of Council
Prof L Mbadi (UDM) reminded the Committee that the Department had to re-phrase the term 'Powers of Council' or decide whether to omit it altogether.
The Director General of the Department, Ms A Bester, referred to a previous discussion of the Committee, saying that the Committee had considered whether there was an overlap between the Council's powers and duties. She proposed that the term 'the Council may' in clauses 4(a) to (c) be replaced with 'the Council must'. Clause 4(d) would remain as is.
Mr M Masutha (ANC) pointed out that it had been decided that the Council would be an advisory body and not a juristic person. Yet the term 'powers' relates to legal competencies. Given that the Council is not a juristic person, it cannot have 'powers'.
He continued that one should also examine the contents of Clause Four in the context of its heading which relates to 'powers'. If one looks at Clause 4(c), which gives the Council power to review national budgetary allocations, this is problematic. This obviously has very definite legal implications in terms of the Council's authority. The party reviewing an Act usually enjoys stronger powers than the body it is reviewing. The Committee should therefore carefully consider if this is the type of organisation they wish to create. The Council would very clearly be performing the Executive and Parliament's work.
Ms P Cupido (DP) and Ms I Mars (IFP) indicated that they support the scrapping of the term 'powers'.
Ms J Chalmers (ANC) stated that even an advisory body would require access to information, but that there was no need to raise this as a separate competency.
Mr M Masutha said that one could creatively find a place to deal with this issue. One could raise it under the responsibility of the Department to enable the Council to deal with a matter. In this way, information would be made available while there is no active research responsibility on the Council. The Council can seek information from the Department and civil society. The important issue to bear in mind at all times is that the Council is merely an advisory body.
Ms S Rajbally (Minority Front) said that the Committee had to decide what in Clause 4 could be retained and incorporated into other areas of the Bill.
The Chair agreed and confirmed that the Committee had decided to scrap this clause. He said that opposing views could still be considered at the meeting scheduled for the following day.
Naming of the Advisory Body and the Title of the Bill
The Director General said the Committee had previously decided on the following:
- That the term 'welfare' be replaced with 'social development';
- That the name of the Council be explicit about its advisory function; and
- That the term 'council' is misleading and should be replaced by 'board'.
She said that the Department suggested that the Council be renamed the South African Social Development Advisory Board. The Bill would be the Social Development Advisory Board Bill.
The Committee accepted this proposal.
Clause 5: Duties of Council
Ms P Cupido (DP) asked whether Sub-clause 5(j) is still applicable.
The Chair responded that it was unacceptable for a body created by government to go out and solicit funds. He stated that the body should not function as a separate entity. This sub-clause should therefore be excluded.
With regard to Sub-clause 5(1)(c), Ms Gandhi (ANC) asked if the Board would have to consider all proposed welfare and social development legislation.
Mr Masutha said that this question had been considered in the ANC study group and the consensus had been that as this will be an advisory body, it should have no formal power to consider legislation. In doing so, the body would be performing a legislative function.
The Chair clarified the basis of the proposed exclusion of Sub-clause 5(1)(c) by explaining that, if retained, it would enable the Board to block the power of the Legislature.
The Director General agreed to the removal of Sub-clause 5(1)(c) as she was concerned that the Board would be usurping the function of the Portfolio Committee.
The Chair clarified that the Board could discuss legislation, but that this is not a prerequisite for legislation to be passed. The Board's function would merely be advisory.
Clause 6: Composition of Council
Ms Cupido was concerned about the entire clause for the following reasons:
- Sub-clause 6(1)(b) and (c) could refer to the same person;
- The Minister appoints all these people; and
- Sub-clauses 6(f) and (g) are vague. They do not specify as to where these people should be found and who should be consulted.
Ms Chalmers said it was important to move forward in a developmental way and away from the situation in the past where a person became entrenched in a position.
The Chair requested the other parties to submit proposals in much the same way as Ms Cupido had done.
Ms Cupido said the Committee should consider whether there would be requirements as to the qualifications of the Board members.
Prof Mbadi asked whether the organisations that will constitute the Board have a representative organisation of their own.
Ms Mars noted that the Minister will appoint these individuals, but asked who will give the Minister the names from which to make appointments.
Mr Masutha made the following proposals:
- Clauses 6 and 7 have to be dealt with together because of the inter-relationship between the two;
- The headings of these clauses will therefore have to be changed;
- The study group had differed over the fact that stakeholders are allowed to make nominations. In order to ensure substantial representation of the diverse sectors, members should not be allowed to enter the Council with constituency mandates as they have to be free to advise the Minister without having to represent a mandate; and
- The list of candidates should reflect certain criteria as to the calibre of person being considered, such as representing rural communities or professional bodies.
Mr Masutha read the ANC's proposals to the Committee while dealing specifically with the following issues:
- With regard to the power of the Minister to appoint, the Act should create minimums and maximums;
- The number of members has to be limited to ensure that it is manageable;
- Government representatives would not have to comply with the list of criteria;
- Representation on the Board should include the interests of people with disabilities, social security, childcare and rural development. Appointments should include a cross section of the population, with regard to race, gender and disability;
- The grounds for excluding possible candidates were, for example, that a person relinquishes citizenship or has previous criminal convictions (unless the person has been granted legitimate amnesty);
- People with criminal records or those guilty of misconduct for which they have been dismissed from their professions are expressly excluded; and
- Nominations should be made by the Department or by the general public. The Minister can invite nominations via the Gazette and newspapers. The Portfolio and Select Committees should be allowed to make non-binding recommendations. The members' names and terms of office should be published.
The other parties had nothing to add.
Ms Bester commented that Clause 6 had been complex but that the ANC's proposals had simplified it. She indicated that she supported the proposals.
However, she referred to the sub-clause that provides that the Minister must appoint three government representatives. She suggested the Minister be given the discretion to use fewer than three representatives as he may decide to appoint only one member from his Department, for example, the Director General. She therefore recommended that the word 'must' be deleted.
In addition, Ms Bester suggested that the list of criteria for members should not be regarded as exhaustive so that the list includes but is not limited to those criteria.
Mr Masutha said that the ANC had tried to capture the main sectoral interests although new interests could emerge. He agreed that this should not be an exhaustive list and said the proposal can be re-worded.
Ms Gandhi suggested that 'comprises' in Clause 2(a) be replaced by 'includes'.
The Chair agreed.
An ANC member also suggested that the words 'The Minister may appoint' replace the words 'The Minister shall appoint'.
Mr Masutha interrupted, saying that the Committee should not try to formulate the wording of the Bill. Instead, they should just try to get a sense of what the Bill should say and leave the actual wording to the drafters.
Mr A Singh (DP) asked if there is a process of review for the Minister's appointments.
The Chair said the Committee will make recommendations to the Minister so there is a process of consultation before appointment decisions are made.
Clause 7- Qualifications of members of Council, vacating of office and filling of vacancies
Ms Bester asked if the term of office had been discussed by the Committee yet.
Mr Masutha said that it had been discussed in the ANC study group. They had proposed a three-year term that should not be renewed more than once.
Ms Chalmers continued that the ANC recommended that the period of four years be changed to three years from the date of appointment. One could renew the term once only - meaning one could not serve for more than six consecutive years.
Ms Bester asked what had been decided with regard to absence from meetings. She referred to the Bill which provides that a person would be forced to vacate if absent from two consecutive meetings without an apology.
Ms Rajbally asked why it had been drafted as two consecutive meetings when the norm is that a person has to vacate office after three consecutive missed meetings.
Ms C Ramotsamai (ANC) explained that the Council would possibly have only three meetings per year.
Ms Bester requested clarity on whether sub-clause 7(3) applies to government officials as well. She explained that being found guilty of a criminal offence did not necessitate removal from office.
Ms Mars asked whether the Department's internal disciplinary procedures would apply.
Mr Masutha commented that this issue requires careful thought.
The meeting was adjourned.
ANC Proposed Amendments
Composition and appointment of Council
The Council consists of no fewer than nine and no more than 11 members
appointed by the Minister, of whomâ€”
- one shall be a representative from the office of the Minister;
- one shall be a representative from the Department;
- one shall be a representative from the Departmental Committee on Developmental Social Services
- The members of the Council shall, excepting those members referred to in subsection (1) (a)-(c) be persons whoâ€”
- represent the developmental social welfare sector with particular reference to disability, social security, child care and rural development.
- represent a broad cross-section of the population of South Africa and comprises of persons who reflect South African society with special attention to race, gender and disability.
- A person may not be appointed as a member of the Council unless he or sheâ€”
- is a South African citizen who is resident in the Republic;
- was granted amnesty in respect of an offence of which he or she was convicted, whether in the Republic or elsewhere, and was sentenced to imprisonment without the option of a fine, and it has been established that such offence was politically motivated.
- A person may not be appointed as a member of the Council if he or sheâ€”
- has been convicted of a criminal offence, whether in the Republic or elsewhere, and was sentenced to imprisonment without the option of a fine, and it has been established that such an offence was not politically motivated;
- is disqualified under any law from practising his or her profession;
- The members referred to in subsection (3) must be nominated by organisations in the developmental social welfare sector or by the public.
- For the purpose of nominations, the Minister must invite such nominations by
- The appointment of members nominated to the Council shall take place after the parliamentary committees for social development of the National Assembly and the National Council of Provinces have made recommendations to the Minister in relation thereto.
- The names of the members of the Council and the date of commencement of their
notice in the Gazette, by publication in two national newspapers and by approaching
organisations in the developmental social welfare sector.
period of office must be published by the Minister by notice in the Gazette within 30
days after the appointment of such members.
Term of office and allowances and disbursements to members of Council
7. (1) Members of the Council hold office for a period of three years reckoned from
the date of their appointment.
(2) Members are at the expiry of their terms of office eligible for reappointment to not more than one consecutive term.
(3) A member of the Council vacates his or her office if that memberâ€”
(a) has been absent from more than two consecutive ordinary meetings of the
Council without the permission of the Council or without a written apology;
(b) is disqualified under any law from practising his or her profession;
- ceases to be a South African citizen or is no longer resident in the Republic;
- submits his or her resignation in writing to the Minister.
(4) A member of the Council vacates his or her office if the Minister, on the
recommendation of the Council, terminates his or her membership for reasons which are
just or fair.
(5) (a) A vacancy on the Council must be filled in accordance with the criteria set out in section 6
(b) A member referred to in paragraph (a) holds office for the unexpired portion of the
period of office of his or her predecessor.
(6) A member of the Council, excluding a member who is in the employ of the State,
must be paid allowances and disbursements as may be determined by the Minister in
consultation with the Minister of Finance.