NYDA Amendment Bill: DWYPD response to public submissions; with Minister

Meeting report

Committee's key decisions on NYDA Amendment Bill

The Portfolio Committee met with the Department of Women, Youth and Persons with Disabilities (DWYPD) and the National Youth Development Agency (NYDA) to receive the Department’s responses to the public submissions on the NYDA Amendment Bill.

Following the Committee's meeting last week, the Chairperson indicated to the NYDA that it should continue to mainstream youth issues, diversify their own funding sources on behalf of young people, and be a champion in formulating policies which would benefit young people.

She asked the Department of Women, Youth and Persons with Disabilities (DWYPD) not to overlap the duties and responsibilities of what the NYDA already did, such as those contained in the NYDA Act.

She summarised some of the Committee’s key decisions from last week:

• The Committee had resolved that the NYDA’s provincial offices should remain in the bill, and urged the NYDA to use and expand its district offices in order to reach out to young people who resided in rural areas. The Committee was clear that helping youth should not be confined only to those who live in large metros.
• It had urged the NYDA to develop new policies, as developing youth policy remained the responsibility of the NYDA.
• The Committee had agreed to increase the number of board members from seven to nine, provided the board reflected the representation of the LGBTQI community and persons with disabilities. It was highlighted that the nine did not mean that one board member represented one province, but fair distribution across provinces should be considered.
• The Committee was of the view that the age limit for the eligibility of board members should remain from 18 to 35, in line with the Constitution.

Department's responses to public submissions on NYDA Amendment Bill

Dr Nkosazana Dlamini-Zuma, Minister in the Presidency: Women, Youth and Persons with Disabilities, joined the meeting. Apologies for absence were recorded for the NYDA chairperson, Ms Asanda Luwaca, and the deputy chairperson, Ms Karabo Mohale, as she was still on study leave. The Agency was represented by Mr Waseem Carrim, its chief executive officer (CEO), and board member Mr Thulisa Ndlela.  

Contrary to the normal procedure in which Committee Members would engage in discussion after the presentation, the Chairperson agreed that Members could ask questions if they wished during the presentation.

Mr Emmanuel Kganakga, Director: Youth Legislation and Policy, Department of Women, Youth and Persons with Disability (DWYPD), made the presentation.

Section 9

The NYDA proposed that the age limit for board members should be adjusted to be from 21 to 35, and amend section 7, which states the age eligibility should be between 18 and 35.

Ms C Phiri (ANC) indicated that young people should not be deprived of opportunities. Since 18 was the employable age by law, they should be allowed to be a board member.

She pointed out that no one should underestimate the potential of young people -- young minds were innovative. Young people were doing finance and accounting at schools from standard eight, which should be sufficient to equip them with the knowledge to exercise fiduciary duty. She was disappointed that the Agency did not fight for young people.

Ms N Sharif (DA) questioned the nonsensical expectation of young people to have experience whilst they were so young.

Ms G Opperman (DA) enquired about the NYDA’s proposed amendment to s5(4), and whether the employment database would be removed.

The Chairperson was adamant that as the Constitution stated that youth falls within the ages between 18 to 35, it was out of the question that the age requirement should be debated anymore.

Ms M Khawula (EFF) made comments in isiZulu. (Refer audio 42:15 to 44:42)

The Chairperson agreed with Ms Opperman that this amendment bill could not remove the key matters and functions of the NYDA.

Mr Kganakga clarified that the NYDA was presenting only the inputs it had received. The Department had not expressed its view on those responses yet.

Ms Opperman believed that the career guidance services needed to be specifically stated in this amendment process.

Mr Kganakga replied that the NYDA noted Members’ inputs that career advancement and the database must be included in the bill, but also highlighted s3(2), which states that:

“Nothing contained in this Act precludes the Agency from directly implementing any programme or intervention aimed at advancing its objects in terms of this Act.”

It would therefore not affect the NYDA’s role in advising youth on career advice and advancement.

The Department also informed the Committee that the NYDA’s submissions removed some functions in the objects that were not funded. Because those functions were not funded, the Agency would never be able to truly implement them. The Agency’s intention was to remove those functions to streamline the process.

Ms Opperman noted the Department’s explanation, but believed the wording should be more explicitly stated.

Mr Kganakga replied that even though the career database may appear to have been removed, the issue of career advancement and information services remained. The Agency had a database which it used for its own programmes.

The Chairperson sought the opinion of the State Law Advisor.

Ms Lisa Naidoo, Senior State Law Advisor, explained that in terms of s5(4)(c) of the principal Act, the Department’s intention was not to remove it. It was a matter of interpretation. Furthermore, according to the National Assembly rules, it was within the Committee’s prerogative to decide on the wording as it saw fit. The Office of the State Law Advisor could draft the bill to make it more explicit, with the Parliamentary Law Advisor, when drafting the A list of the bill. There was no contention, as it fell within career guidance that the Agency would continuously provide for young people.

Ms Phiri cautioned the Department and Members on the danger of playing with words. She had noted selfishness in the drafting process of the bill to suit a certain segment of the population. She was satisfied with the bill as it currently was. As the State Law Advisor pointed out, it was only an issue of wording.

The Department replied that the status quo of the bill could be retained, but the government must also look at things that were relevant to the situation of today, and make changes where they could benefit the Agency.

Ms F Masiko (ANC) supported making the wording more explicit, considering future prospects and the growth of the Agency.

Minister Dlamini-Zuma added that no restriction in the Act prohibited services which the Agency could not provide. In fact, the Act was very explicit that the NYDA should be providing any service that was related to youth issues.

Ms Sharif supported the view that young people should have more freedom to make policies for themselves, as they had innovative solutions to deal with many issues in the country. She urged the Committee not to over-legislate so that the NYDA would have some freedom to come up with their own ideas.

Minister Dlamini-Zuma disagreed with Ms Sharif’s view. She pointed out that the NYDA alone could not make policies, because policies were made and approved by Cabinet. If the NYDA had any initiatives, it had to take them to Cabinet for approval.

Mr Carrim supported the Minister’s view. He stressed that the NYDA played a role in policy development on issues that affected young people, but it did not sit in Cabinet. It did not have the authority to propose legislation. For example, in the case of the National Small Enterprise Development Bill, the Basic Education Bill and the National Youth Service Framework, the NYDA had taken a specific position and indicated those positions to different government structures as an organisation that advocates for the interests of young people.

Ms Naidooc oncurred with their view, and said the NYDA Act was explicit that the Agency reported to the President. Policy always came from the executive after Cabinet’s approval -- even for supply chain policy, according to the Public Finance Management Act (PFMA). However, each entity was allowed to have its internal supply chain process. However, those internal processes must operate within the ambit of the overarching broad policy.

Ms Sueanne Isaac, Parliamentary Legal Advisor, agreed fully with her colleagues. In addition, she distinguished the difference between policy and legislation. Law sets the framework, but operation and implementation were always left to the executive through their power to make regulations. Ministers made regulations to execute the administrative functions of their respective departments. That prerogative of ministers should not be over-stepped by Parliament.

Clause 9: Appointment of additional two ex-official members

Ms Sharif emphasised that the two additional members must be appointed through the parliamentary process.

Ms N Sonti (EFF) reminded the Committee again about the representation of persons with disabilities and members of the LGBTQI+ community on the NYDA board.

Ms Sharif added that the Department seemed to be under the false impression that the inputs that Members had given in the previous meeting were suggestions, but they were not. The Portfolio Committee was mandated by Parliament and had the authority to make laws. Hence, the input had been directives, and not comments. The Department must know that the Committee’s comments should not be regarded like those of any other stakeholders.

She disagreed on making the board larger than seven members, because the current board operated just fine.

Ms Phiri stressed that the composition of the board must reflect the country's demographics, such as its geographic spread, gender, race, persons with disabilities, LGBTQI, etc.

She disagreed with the clause on ex-officials, and pointed out the NYDA’s lack of justification for why those two ex-officials should be appointed by the Minister. She reiterated that even those two ex-officials should be appointed through the same parliamentary process.

Due to her absence at the previous meeting, Ms A Hlongo (ANC) expressed her confusion about the proceedings.

First, she said the Department was presenting the inputs that it had received from the public submissions. Second, she had been approached by one of the law advisors, asking if they could have a quick word among the legal advisors and come back to report to the Committee. Third, she wondered if there were some errors in the capturing of the presentation, as Ms Sharif had indicated that the Committee’s inputs were instructive rather than consultative.

She therefore asked the Chairperson to pause the meeting and let them get back to the Committee.

The Chairperson refused her request.

Ms Hlongo then accused the Chairperson of suppressing her views, and left the meeting.

Minister Dlamini-Zuma commented that the Department’s presentation had been its responses to the comments it had received.

The Chairperson continued the meeting.

Adv Mikateko Maluleke, Director-General (DG), DWYPD, explained that the appointment power being given to the Minister was due to the separation of powers. Schedule 3(a) entities, under which the Agency fell, were normally extensions of a public entity of the Department, so the Minister must be able to appoint those members, as they were part of the public entity. That authority did not belong to the Portfolio Committee. Also, at the time of the establishment of the NYDA, the PFMA did not exist.

In addition, there had to be ex-officials who worked in the Department but were also responsible for the work of the NYDA, to sit in NYDA meetings. They did not need to have voting rights -- they were there to represent the Department, as the Minister could not be everywhere. The benefit of that was that there would be no cost implications for the board and the NYDA because of their limited financial resources.

Mr Carrim echoed that view, and used examples such as the Higher Education Act, which also appoints ministerial representatives to represent the Minister at higher education institutions. Thus, what the NYDA proposed for the two ex-officials was not a unique situation. Since the NYDA drew on inexperienced young people to work at the Agency, it needed the experience of those ex-officials.

The Chairperson commented that Members had not been aware of the rationale behind that, as they had thought that Dr Bernice Hlagala (Chief Director: Youth Development in the Presidency) was the Minister’s representative at the NYDA.

Minister Dlamini-Zuma emphasised the financial predicament that the country faced. As some Members were contemplating, increasing the board size to nine members would have financial implications. She thus pleaded to keep the board's size to seven, as it currently was. She also urged Members to agree to the provision on the ex-officials.

Ms Phiri enquired about the financial implications of the two ex-officials. Since the current board also had two ex-official members, she did not understand why the issue had been presented as a new matter in the amendment bill. She questioned if it had to be explicitly stated in writing. She nevertheless accepted the Minister’s explanation, and endorsed that decision on the two ex-officials.

Ms G Marekwa (ANC) said she understood other Members’ views, and fully supported the Minister’s suggestion.

Ms Sharif urged the Department not to falsely assume that Members would know everything.

Ms Sonti supported the Minister's decision.

Minister Dlamini-Zuma was excused from the venue.

When Mr Kganakga presented the submissions from the Nelson Mandela Children’s Fund, Ms Phiri sought clarity on whether the Fund agreed or disagreed with s9 of the Act.

Ms Khawula said she was not being defensive, but it might be difficult to understand the Fund's position because Members needed to know its mandate.

Ms Sharif said there were many more discrepancies in the issues the Nelson Mandela Children’s Fund highlighted versus what had been included in this presentation. She said the Committee and the Department needed to go through every single comment.

Mr Kganakga assured Ms Sharif that the Department did have a Word document which contained all the details of those discrepancies to which she referred, but due to time constraints, it was able to highlight only key issues in the presentation.

The Chairperson commented that time should not be the Department’s concern, as the Committee could always apply for extra meetings to assist the Department in concluding this process.

Ms Sharif asked the Department why monitoring and evaluation could not be legislated in the bill.

She complained about some of the language used in the bill. Making legislation easier to understand was the cornerstone of any democracy. Similar to the Gender-Based Violence and Femicide Bill, nuanced or complicated language did not help victims understand the situation. Given the lack of experience of young people, the bill should also be easy for them to understand.

Mr Kganakga responded that the NYDA had monitoring and evaluation (M&E) within its organisation and in its operation.

He replied to Ms Sharif that the Department had conducted consultations with the public for 18 months. During the development of the draft bill, it also developed infographics to communicate with young people. It used all of the social media platforms to help young people understand the contents of the bill.

Ms Opperman sought clarity on the definition of “reasonably” in clause 5, where it stated that "Organs of state must assist the Agency as may reasonably be required for the effective exercise of its powers and the performance of its functions, and all other obligations outlined in the Intergovernmental Relations Framework Act of 2005 (Act No. 13 of 2005)."

Mr Kganakga explained that the word “reasonably” referred, for instance, to the Department of Health, which was in charge of programmes such as mental health issues, and the Agency could not ask it to combat crimes. “Reasonably” meant within possible means.

Ms Masiko enquired about the choice of the word "may" vs "must" in establishing committees in clause 10. She wanted to understand if establishing committees was an obligation or a discretion.

Mr Ndlela, NYDA board member, preferred more flexibility and the use of word "may." For instance, between 2009 and 2013, the credit committee used to approve loans. Using the word "must" would make the operational change difficult, as any change in the business model would have to be approved by legislation, which would hinder the Agency’s operational agility.

Ms Naidoo agreed with Mr Ndlela that legislation should not be restrictive, and also highlighted the potential financial implications if the establishment of all those committee outlined in s12(1) became an obligation.

Ms Masiko understood their views, and asked what a better approach would be if there were some power-hungry executives who intended to centralise power to fit their own agenda.

Mr Kganakga responded that the NYDA Act must be read with other legislation, such as the PFMA, the Company’s Act, etc. Those pieces of legislation provided sufficient safeguards against the scenario she was concerned about.

Chairperson’s closing remarks

The Chairperson commented on Ms Hlongo’s abrupt departure due to a disagreement with her. She said that her role as a Committee Chairperson was to ensure that work was being done according to the standards of Parliament.

On behalf of the Committee, she said the Committee was disappointed with the legal team of Parliament. In the future, she said they must speak to the Chairperson, not individual Members. She would write a letter of complaint today.

The meeting was adjourned.