Developmental Welfare Governance Bill: deliberations and voting

Meeting report

SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
28 February 2001
DEVELOPMENTAL WELFARE GOVERNANCE BILL: DELIBERATIONS & VOTING

Chairperson: Mr E Saloojee

Relevant Documents:
Developmental Welfare Governance Bill [B43-2000]
Proposed Amendments to the Developmental Welfare Governance Bill (first draft)
Proposed Amendments to the Developmental Welfare Governance Bill (second draft)
Final draft of amendments to the Bill (See Appendix)

SUMMARY
The proposed amendments provided by the Department were discussed and further changes were made. During a break, the Department effected the changes and presented it to the Committee later in the afternoon. Minor changes were then made. The Bill was adopted.

MINUTES
Mr P Du Preez, the Department's Law Advisor, explained that only fourteen of the original sixteen clauses remained: Clause 4 (Powers of the Council) and Clause 10 (Executive Committee) had been rejected completely in earlier deliberations. The four clauses on the Council's duties, composition, qualifications, personnel and finances have been redrafted completely.

Ms A Bester, Director General, noted that changes have been to the terminology of the Bill and not to its substance and objectives. These have not changed at all.

The Committee examined the clauses to which substantial changes had been made.

Clauses 8 and 9
The word 'Council' is replaced with the new term 'Board'.

Clause 5: Duties of the Board
This became Clause 4 of the Proposed Amendments (first draft).

Clause 5(1)(h): Ms P Cupido (DP) pointed out that the Committee had previously suggested that the Board should meet at least twice a year. This change had not been included in the Proposed Amendments - which provides that the Board meet 'at least once a year'. Ms Cupido explained that if the Board met twice a year the Minister would not have to wait until the following year to make proposals as is the case when the Board meets once a year.

Mr Du Preez believed that 'at least once a year' covers that suggestion. He however admitted that this does not necessarily mean the same and could be changed if the Committee so wished.

Mr M Masutha (ANC) stated that this would only be necessary if the Board was reporting on specific issues. However the purpose of this meeting would be to provide a general report on the activities of the Board. This could take place annually as the budget runs on an annual basis. He was comfortable with leaving the clause as it stood.

Ms S Rajbally (Minority Front) agreed with Mr Masutha and added that it is specified that there could be more meetings if the Minister so requested.

The Chair provided clarity, saying that there could be an annual meeting reporting on the total operations of the Board. However the Minister could call additional meetings if he felt it was absolutely necessary. Ms Cupido accepted this interpretation.

The Chair suggested that the report be submitted to both the Minister and Parliament.

Prof L Mbadi (UDM) asked why the report had to be tabled in Parliament as this is an advisory body to the Ministry. Ms E Gandhi (ANC) pointed out that this is a statutory body and must therefore report to Parliament at least once a year as well as if any issue requires special investigation.

Mr Du Preez agreed to include that the report should be tabled in Parliament.

Ms Bester noted references to 'developmental social welfare' still need to be replaced by 'social development'.

Dr E Jassat (ANC) suggested that the two clauses dealing with the reports that the Board has to submit (i.e. to the public and to the Minister) should follow each other in sequence.

Mr Masutha asked whether the term 'Portfolio Committee on Social Development', which is mentioned in Clause 4(2) of the Proposed Amendments (First Draft), has sufficient legal meaning or if it should read 'Parliamentary Portfolio Committee'.

Adv Mbangeni, a Law Advisor stated that "Portfolio Committee on Social Development" is advisable, as it will specify which Portfolio Committee is being referred to.

Clause 6: Composition and Appointment of the Board
This clause becomes Clause 5 of the Proposed Amendments. Clause 5(1)(d) should still be changed to refer to 'social development' instead of developmental social welfare.

Ms I Mars (IFP) pointed out that Clause 5(1) does not make sense if the words 'at least' are included in Clause 5(1)(d). If the Minister appoints a total of three people from the categories specified in 5(1)(a)-(c), then he is restricted to appointing only eight people in terms of (d) as the Board consists of a maximum of eleven members. Thus, the words 'at least' preceding 'eight' should be omitted.

Ms C Ramotsamai (ANC) suggested that Clause 5(1)(d) refer to 'the rest' and not to a specific number.

The Chair provided some clarity as to the different categories, saying that (a)-(c) refers to members from the Department and the executive. Sub-clause (d) refers to members of civil society.

Dr Jassat suggested that (d) should simply refer to 'other parties'.

The DG proposed that there should be flexibility around the first group ie the clause could state that the Minister 'may' choose a maximum of three members from the Department and the Executive. However, it was up to the Committee to decide if the Minister would be compelled to choose one representative from each category specified in (a)-(c).

The Chair stated that the Committee should therefore first decide whether the Minister should be given discretion when choosing from the first group.

The DG reiterated that there should be flexibility. This group should not overwhelm the second group (the members of civil society). She suggested that the clause could provide for 'at least one, but not less than three' representatives from government and the executive being appointed. She did not understand why the Minister has to appoint someone from each category in the first group.

Mr Masutha agreed, saying that if the categories in sub-clauses (a)-(c) remain, then the Minister is compelled to choose three members from the first group.

Ms Gandhi suggested the following two clauses to replace sub-clauses (a)-(d):
a) 'at least one, but no more than three representatives from government' and 'at least six, but no more than eight representatives from civil society'
b) 'In appointing the Board, the Minister must take into account the following criteria….'

Adv Mbangeni stated that this clause could be re-formulated in light of the discussion.

Ms Cupido agreed that the clause states 'at least six, but not more than eight' persons from civil society.

Dr E Jassat (ANC) said that this was not advisable as the Minister may decide to appoint only one member from government and only six from civil society.

Ms J Chalmers agreed that the Board could not constitute only seven members.

The Chair added that the Board needed meaningful representation from civil society.

Ms Mars suggested that the words 'at least' be removed, hereby removing the Minister's discretion.

The Chair preferred to have at least eight members from civil society on the Board. If the Minister then wanted more than eight he should be free to do so as it was in the spirit of the Bill that civil society be well-represented. Civil society should not be restricted so severely.

The Chair referred to the criteria that have to be taken into account in the appointments by the Minister (ie race, gender, disability and geographical spread) and asked why these had been omitted from the Proposed Amendments.

Mr Du Preez stated that the Committee had decided at the previous meeting that its inclusion resulted in the clause being too restrictive.

The Chair denied this by saying the Committee had stated the word 'may' should be used to indicate that the Minister was not bound to look only at these criteria. Mr Masutha added that the intention was merely to ensure that the Minister give special attention to certain sectors of the population. Its inclusion was a matter of emphasis.

Adv Mbangeni stated that this could be included in the new draft. He then referred to Clause 5(3) of the Proposed Amendments and explained why the word 'or' replaced the term 'and/or'. He said that 'and ' is conjunctive and 'or' indicates that either one or the other should apply. Thus they have conflicting meanings and cannot be used side by side.

Ms Cupido was concerned that if the word 'or' is used, the Minister could possibly ignore the organisations in the social development sector.

Ms N Tsheole asked if the term 'public' includes organisations - it did said Adv Mbangeni.

Ms Ramotsamai said the word 'and' is problematic as it requires both the public and organisations to nominate. If one of these parties then fails to nominate it could serve as an unnecessary obstacle preventing the Minister from being able to make a nomination.

Mr Du Preez referred to his experience with social work councils and said the public is simply not interested in their work. The result is often that the Department has to re-advertise repeatedly.

The Director General argued that the Department should find ways in which to encourage the public to show an interest and get involved. This is in fact the aim of the Bill.

The Committee accepted sub-clauses 4, 5, 6 and 7. The only change was a grammatical error in sub-clause 4 where 'by any other media' would be replaced by 'through any other media'.

Ms Gandhi asked for clarity with regard to the words 'in the same manner' in Clause 7(6) of the Proposed Amendments. She stated that the process with which the Minister has to comply is lengthy and this is problematic when someone vacates an office. The Minister should be allowed to choose from the list that he already has.

The Chair felt that the words 'in the same manner' mean that the Minister has to have regard to the same criteria (e.g. race, gender etc) when making the appointment. However, Ms Gandhi disagreed, saying the words referred to the process, which has to be the same.

Mr Du Preez explained that it refers to the procedure. If it had referred to the criteria it would have been specified in the clause.

Ms Gandhi said the Minister should not be forced to re-advertise as it would be too costly. It should however be specified that the same criteria will apply.

Ms Ramutsamai said that it would not be necessary to go through the same process again, as this does not take place in the case of other Boards.

The Chair referred to a comment by the Committee secretary, Ms Z Adhikari. She informed the Committee that constitutional bodies follow the same procedure each time.

Adv Mbangeni stated that the law does not specify what has to be done in these cases. If the Committee therefore wants to provide for the same procedures being followed, they must state it specifically in the Act.

The DG asked what the Law Advisors felt would be more practical. She also stressed that while this may be a statutory body, it is not a constitutional body.

Mr Masutha agreed that a cumbersome approach has to be avoided and that the Act should allow for flexibility regarding appointments from the list. He suggested that the clause read, 'upon recommendation of the Board, taking into account the list'.

Ms Cupido stated that it was possible for the vacancy to remain without being filled if the Minister had initially appointed eleven people, as the Board requires a minimum of nine and a maximum of eleven people.

The DG referred to the term 'on the recommendation of the Board' mentioned by Mr Masutha and asked if this really was necessary.

Ms Gandhi stated that this clause should not be included, as the Minister should not be tied down in this way.

Mr Masutha disagreed saying that the Minister should be provided with a structured process to assist him in making his decisions as they could be taken on review. He therefore recommended that the term 'in consultation with the Board' be included.

The Committee accepted this.

Clause 3
Clause 3(a) and (b) remained unchanged.

Clause 11
The Committee accepted Clause 11(1)(a)-(d) and (2) without changes.

Clause 12: Personnel and finances of the Board
This becomes Clause 11 of the Proposed Amendments.

The Chair referred to Clause 11(2), which provides that the Board may, with the approval of the Director-General, enter into agreements. This is problematic as the Board is not a juristic person and therefore has no capacity to contract.

Ms Gandhi noteed the situation where the Board is unable to arrange conferences, as it is unable to enter into contracts. She added that the DG should in these cases enter into agreements at the request of the Board.

The DG stated that this is covered sufficiently by the term ' with the approval of the DG'.

Adv Selokela stated that there was no problem just as long as it was sufficiently clear that it was the DG entering into the contracts and not the Board itself.

The Chair referred to Clause 3(a) and stated that the budget of the Board should be included as part of the Department's total budget. Dealing with the Board's budget is part of the Department's functions because they set up the Board. This clause could, in his opinion be omitted.

Mr Du Preez agreed.

Ms Gandhi however argued that this body would have a separate budget that would include items such as transport, remuneration and accommodation. A separate budget is necessary to ensure accountability and to make it possible for the Department to oversee expenditure of the Board.

Mr Masutha stated that the Committee had already adopted the principle that the Board would not run its own affairs, as this was the Department's responsibility.

The Chair asked why Clause 3(b) had been included.

Ms Cupido said that it was necessary as the Board could possibly receive donations.

Mr Du Preez stated that the Committee had finished dealing with the clauses that had been re-drafted and would now focus on two clauses that may provide problems, Clauses 1 and 3.

Clause 1
Mr Du Preez stated that he had obtained the definition of 'social development' in a dictionary and did not know if it was accurate.

Ms Gandhi stated that it was a very good definition. The Chair agreed completely.

Clause 3
The Chair stated that 'and welfare' in Clause 3(i) should be removed.

With regard to Clause 5(iv), the words 'at local government level' should replace 'on local government level'.

Clauses 8, 9, 11, 13 and 14.
In these clauses, the word 'Board' replaces the word 'Council'.

The meeting was adjourned to enable the drafters to re-draft the clauses and the Memorandum in the light of the changes discussed during the meeting.


The Proposed Amendments (second draft)
The new Clause 4: Duties of the Board
The sub-clauses of clause 4 were re-arranged so as to follow the sequence of the original Bill. In sub-clause 2, the term 'parliamentary committees' replaced 'Portfolio Committee'. The term 'developmental social welfare' is replaced by 'social development' in sub-clause 4.

Sub-clauses 4 and 5 now referred to the members appointed from civil society only. ie those appointed in terms of sub-clause (1)(b).

The DG referred to Clause 4(2) and asked why the Heads of Social Development share a platform with politicians. She asked why officials were being elevated. She also wished to know if it would not be more appropriate to include MINMEC here.

The Chair agreed completely. He stated that this should definitely be taken up at a later stage.

The new Clause 11: Personnel and Finances of the Board
Clause 11(2) was changed by the inclusion of the following: 'Subject to any law governing the provision of services to the State….'

Mr Masutha asked whether the specific services should not be qualified and therefore be read as 'services for the Board'.

The Chair stated that this was already implied in the phrase 'at the request of the Board'.

Mr Masutha asked what happens if the Board wishes to engage in agreements not relating to its functioning.

Adv Mbangeni said that he could see no loophole or ambiguity arising.

Ms Gandhi also stated that it would be necessary to include the phrase 'for the functioning of the Board'. The Chair reiterated that this was already covered by the phrase 'at the request of the Board'. Ms Gandhi argued that the Board could request absolutely anything. The Chair persisted that the phrase was very clear to him.

Ms Mars suggested that the DG could refuse to conclude the agreement if it was beyond the scope of the activities of the Board.

The DG stated that this was already covered by the term 'subject to any law governing the provision of services…' She had no problem with the phrase 'for the Board' being added.

The changes to the Memorandum to the Bill had not been effected. This would be done later as it serves merely to place the Bill in context. It forms part of the records and not of legislation.

Voting on the Bill
As there were no further queries, the members were requested to adopt the Bill as amended which they did.

APPENDIX:

PORTFOLIO COMMITTEE ON SOCIAL DEVELOPMENT PROPOSED AMENDMENTS TO DEVELOPMENTAL WELFARE GOVERNANCE BILL
[B43-2001]

CLAUSE 1CLAUSE 1CLAUSE 1
1. On page 2, after line 4, to insert:

(i) "Board" means the Advisory Board on Social Development established by section 2;

2. On page 2, in line 7, after "welfare" to insert "and social development".

3 On page 2, in line 9, after "welfare" to insert "and development".

4. On page 2, from line 10, to omit paragraph (ii).

5. On page 2, in line 12, to omit "Welfare" and to substitute "Social Development".

6. On page 2, from line 22, to omit paragraph "(vi)".

7. On page 2, in line 26, to omit "for Welfare and Population" and to substitute "of Social".

8. On page 2, in line 29, after "welfare" to insert "and development".

9. On page 2, after line 32, to add:

(xi) "social development" means the process of planned institutional or structural change to maintain a balance between human needs and social policies and programmes including empowering individuals and communities to become self-reliant;

10. On page 2, in line 33, after "welfare" to insert "and development".

11. On page 2, in line 36, before "child" to omit "and" and insert ",";

12. On page 2, in line 26, after "youth care workers" to insert "probation officers, departmental personnel and social development workers";

13. On page 2, in line 38 after welfare, to insert "development".

CLAUSE 2CLAUSE 2CLAUSE 2
Clause rejected.

NEW CLAUSENEW CLAUSENEW CLAUSE
1. That the following be a new Clause:

Establishment of Advisory Board on Social Development
2. A body to be known as the Advisory Board for Social Development is established.

CLAUSE 3CLAUSE 3CLAUSE 3
1. On page 3, in line 4, to omit "Council" and to substitute "Board".

2. On page 3, in line 5, to omit "Council" and to substitute "Board".

3. On page 3, in line 7, to insert "of".

4. On page 3, from line 10, to omit subparagraph (iii).

5. On page 3, from line 12, to omit subparagraph (iv) and to substitute:

(iv) measures to include local government in the provision of integrated service delivery on local government level.

6. On page 3, from line 18, after "discuss" to omit "matters of welfare governance, to substitute:

social development matters

7. On page 3, in line 26, to omit "welfare" and to substitute "social development".

8. On page 3, from line 28, to omit subparagraph (v).

9. On page 3, in line 31, to omit "welfare" and to substitute "social development".

CLAUSE 4
Clause rejected.

CLAUSE 5
Clause rejected.

NEW CLAUSE
1. That the following be a new Clause to follow Clause 2:

Duties of Board
4.(1) The Board, in order to achieve its objectives must -

(a) respond to, and advise the Minister on, developmental social welfare issues identified by, or referred to, the Board;

(b) promote stakeholder participation in developmental social welfare, particularly consumer and grassroots sector participation;

(c) submit a report on the activities of the Board to the Minister at least once a year and whenever requested by the Minister;

(d) make formal reports available to the public to ensure the commitment of the Board to transparency and accountability;

(e) facilitate dialogue between government and civil society on developmental social welfare issues; and

(f) keep abreast of international developments in developmental social welfare policy.


(2) The Board must establish clear lines of communication, including formal meetings, with structures that it interacts with, including the Portfolio Committee on Social Development and the Heads of Social Development.

(3) Any advice or recommendation to the Minister must include the minority views of one or more members of the Board.

(4) Nothing in this section precludes the Board from considering any matter pertaining to developmental social welfare policy.

CLAUSE 6
Clause rejected.

NEW CLAUSE
1. That the following be a new Clause as follows:

Composition and appointment of Board
5.(1) The Board consists of not less than nine but not more than 11 members
appointed by the Minister, of whom -
(a) one is a representative from the office of the Minister;
(b) one is a representative from the Department;
(c) one is a representative from the Heads of Social Development; and
(d) at least eight are persons who have knowledge or experience of developmental social welfare and are actively involved in the development of the social welfare sector.


(2) In appointing members to the Board, the Minister must ensure that the Board represents 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 and geographical spread.

(3) The members referred to in subsection (1)(d) must be nominated by organisations in the social development sector or by the public.

(4) For the purpose of nominations, the Minister must invite such nominations by notice in the Gazette, by publication in at least two national newspapers and, may invite such nominations by any other media.

(5) The members referred to in subsection (1)(d) must be appointed only after the Parliamentary committees for Social Development of the National Assembly and the National Council of Provinces have made recommendations to the Minister regarding such appointment.

(6) The Minister must by notice in the Gazette within 30 days after the appointment of such members publish the names of the members of the Board and the date of commencement of their period of office.

CLAUSE 7CLAUSE 7CLAUSE 7
Clause rejected.

NEW CLAUSENEW CLAUSENEW CLAUSE
1. That the following be a new Clause to follow clause 5:

Qualifications of members of Board, term of office, vacation of office, filling of vacancies and allowances and disbursements to members of Board

7.(1) A person may not be appointed as a member of the Board if he or she -

(a) permanently resident in the Republic; and

(b) has been convicted of a criminal offence, whether in the Republic or elsewhere, and was sentenced to imprisonment without the option of a fine, unless it has been established that such a person was granted amnesty in respect of an offence of which he or she was convicted and such an offence was politically motivated;
(2) The members of the Board hold office for a period of three years with effect from the date of their appointment.
(3) Members are at the expiry of their terms of office eligible for reappointment to not more than one consecutive term.
(4) A member of the Board vacates his or her office if that member-
(a) has been absent from more than two consecutive ordinary meetings of the Board without the permission of the Board or without a written apology;
(b) is disqualified under any law from practising his or her profession;
(c) submits his or her resignation in writing to the Minister; or
(5) A member of the Board vacates his or her office if the Minister terminates his or her membership for reasons which are just or fair.
(6) A vacancy on the Council must be filled in the same manner in which the member's predecessor was appointed.
(7) A member of the Board, 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.

CLAUSE 8CLAUSE 8CLAUSE 8
1. On page 5, from line 26 up to and including line 36, wherever the word "Council" appears, it should read "Board".

CLAUSE 9CLAUSE 9CLAUSE 9
1. On page 5, from line 38 up to and including line 53 from line 1 up to and including line 8, wherever the word "Council" appears, it should read "Board".

CLAUSE 10
Clause rejected.

CLAUSE 11
1. On page 6, in line 25, to omit "Other".

2. On page 6, in lines 26, 29, 31, 34 up to and including line 44, wherever the word "Council" appears should read "Board".

3. On page 6, in line 27, to omit "other".

4. On page 6, in line 30, to omit "exercise such powers or".

5. On page 6, in line 31, to omit "conferred or".

6. On page 6, from line 32, to omit paragraph (b) and to substitute:

(b) The Board is not divested of any duty imposed upon a committee.

CLAUSE 12
Clause rejected.

NEW CLAUSENEW CLAUSENEW CLAUSE
1. That the following be a new Clause to follow clause 10:

Personnel and finances of BoardPersonnel and finances of BoardPersonnel and finances of Board
11.(1)(a) The Director-General must, after consultation with the Board, designate
officers or employees appointed in terms of the Public Service Act, 1994
(Proclamation No. 103 of 1994), for the proper performance by the
Board of its duties.

(b) The personnel referred to in paragraph (a) are responsible to the chairperson of the Board and accountable to the Department.

(c) The Director-General is the accounting officer of the Board.

(d) Subject to any law regulating access to information, the Department must provide the Board with such information the Board may require to fulfil its duties under this Act.

(2) The Board may, with the approval of the Director-General, enter into agreements with persons for the performance of specific duties or for the provision of specific services.

(3)(a) The Minister must, in consultation with the Minister of Finance, approve
a budget for the Board.

(b) The expenses of the Board and committees of the Board are funded by the Department from money appropriated for that purpose by Parliament or received from other sources approved by the Minister.

CLAUSE 13CLAUSE 13CLAUSE 13
1. On page 7, in line 5, to omit "Council" and to substitute "Board".

2. On page 7, in line 6, to omit "Council" and to substitute "Board".

3. On page 7, in line 7, to omit "Council" and to substitute "Board".

CLAUSE 14CLAUSE 14CLAUSE 14
1. On page 7, in line 9, to omit "Council" and to substitute "Board".

CLAUSE 16CLAUSE 16CLAUSE 16
Clause rejected.

NEW CLAUSENEW CLAUSENEW CLAUSE
1. That the following be a new Clause to follow clause 13:

Short title and commencementShort title and commencementShort title and commencement
14. This Act is called the Advisory Board on Social Development Act, 2001, and comes into operation on a date determined by the President by proclamation in the Gazette.

LONG TITLE
1. On page 2, from the first line up to and including the fifth line, to omit the long title and to substitute:

To provide for a national advisory structure in the social development sector with the aim of building and consolidating partnership between government and civil society; for that purpose, to establish a body to be known as the Advisory Board on Social Development; to provide for the objectives, duties and composition of the Board; and to provide for matters connected therewith.

Adv. T Mbangeni
Adv. A Selokela