NYDA Amendment Bill: proposed amendments

Meeting report

The Chairperson acknowledged the presence of the Department of Women, Youth and Persons with Disabilities (DWYPD) and National Youth Development Agency (NYDA).

DWYPD was represented by Dr Bernice Hlagala, Chief Director: Youth Development and Mr Emmanuel Kganakga, Director of Youth Legislation and Policy.

NYDA was represented by Mr Waseem Carrim, CEO, Ms Asanda Luwaca, Board Chairperson, Ms Pearl Pillay Board member. Ms Karabo Mohale, Deputy Chairperson submitted an apology as she was writing an exam that day.

Ms Harriet Mekwa and Ms Lisa Naidoo from the Office of the State Law Advisor were present as well as Ms Sueanne Isaac, Parliamentary Legal Advisor.

The Committee noted apologies from the Minister as she was in Russia for the BRICS forum as well as the Department’s Director General.

The Chairperson complained to the Department that the Committee had only received the revised Bill with proposed amendments at 18h30 the night before. The Committee researchers still had to go through that document after that. The 8h00 starting time of this meeting had to be delayed due to this. There was a National Assembly mini plenary at 10h00 and she asked the Committee’s permission to extend the meeting to 10h30.

Committee members had no objection.

National Youth Development Agency Amendment Bill [B13-2022]
Dr Hlagala and Mr Kganakga took the Committee through the final proposed amendments (see document).

Clause 1: Definitions
The Committee agreed to the amendments to the definition of department which was Department responsible for youth. The Committee agreed to the definitions for femicide, gender-based violence and Integrated Youth Development Strategy and the removal of ex officio.

Clause 10 amending Section 9: Board composition, appointment, service conditions
Section 9(1)
The Chairperson noted 'National Assembly' had replaced 'Parliament' as Parliament consists of both the National Assembly and the National Council of Provinces (NCOP).

Ms F Masiko (ANC), Ms N Sharif (DA), Ms M Hlengwa (IFP), Ms N Sonti (EFF) all endorsed the Chairperson’s view. Ms Masiko added that board recommendations must be specifically confined to the National Assembly because taking it to the NCOP would be another process which would be too time-consuming for board appointments.

Section 9(4)(a)
Dr Herman Tembe, Legal Officer: Office on Institutions Supporting Democracy, pointed out to the Committee that he did not think that "social development" was what had been agreed upon at the 7 November meeting. "Social sciences" was the proposal at that meeting.

Although the Chairperson and Ms Masiko both attested to that, they were of the view that social sciences was more academic.

Ms Masiko pointed out that social sciences sounded more academic whilst social development emphasised the social upliftment and advocacy of communities.

Ms G Opperman (DA) supported their view on the retention of "social development" in the Bill. The phrase “or any other field” covered other areas of expertise when required.

Ms Khawula, Ms M Hlengwa, Ms B Marekwa (ANC), Ms T Masondo (ANC) and Ms Sonti all agreed to that.

Ms Sharif suggested that perhaps the drafting team should rephrase the wording around social development.

The State Law Advisors agreed with the Committee members on the retention of "social development" in the Bill.

The Chairperson noted that board members were disqualified if they were declared insolvent outside of the Republic as the Bill seemed to confine this to within the country.

Mr Kganakga clarified that the correct version could be found underneath in Clause 11. That is the clause without the term “the Republic”, hence, persons that were declared insolvent or convicted by a competent court of law would be disqualified.

Clause 11: Disqualification of board members
Ms Masiko sought legal advice on the term “convicted”. She asked if an individual could be disqualified if that person was dismissed from work on sexual related charges but not yet convicted.

State Law Advisor, Ms Mekwa, replied that "convicted" is the most appropriate word. The principle of innocent until proven guilty applies in this context.

Ms Naidoo agreed. She referred to section 10(1)(c) where the Bill states that if an individual "has been removed from an office of trust as a result of improper conduct including sexual harassment, corruption, theft or fraud". Up until this level, it is done by a disciplinary enquiry. The conviction is done by the criminal law system which is enshrined in the Constitution. Everyone has a right of innocence until that proven guilty by a court of law. It has to be a guilty verdict from a competent court.

Ms Khawula enquired if a suspended person could be disqualified from the board.

Dr Hlagala replied that suspension meant that the person can still be proven innocent; hence, it is not possible to disqualify them from serving on the board.

Ms Khawula spoke in an indigenous language (1:30:40—1:34:00).

Ms Isaac reiterated the constitutional principle of innocence until proven guilty. Should a suspended official be disqualified from serving on the Board and this is included in the Bill, it would be challenged in the Constitutional Court.

Ms Khawula spoke in an indigenous language (1:36:10—1:36:45).

The Chairperson replied in an indigenous language (1:36:45—1:38:23).

Ms Kashifa Abrahams, Committee Content Advisor, reminded the Chairperson that the definitions on gender-based violence and femicide currently derived from the National Council on Gender-Based Violence and Femicide (GBVF) Council Bill and not necessarily the Domestic Violence Act. The crimes referred to in Clause 11 that disqualify board members were more related to those in the Domestic Violence Act and not from the National GBVF Council Bill.

Dr Hlagala sought clarity.

The Content Advisor asked the legal advisors if the definitions should not be taken from the enabling legislation that defines what the crime is. The National GBVF Council Bill refers to those definitions in broad terms and not specific to a crime.

Ms Mekwa replied that the legal team would review the definitions of gender-based violence and femicide contained in the National GBVF Council Bill as she was unfamiliar with that. She committed to investigating this and ensuring alignment between the definitions.

Dr Hlagala said that the Department’s legal person had confirmed that the crimes to which this clause referred are the same as reflected in the National GBVF Council Bill.

The Chairperson agreed that the legal advisors should be allowed to research this and get back to the Committee.

Clause 12: Submission of Financial Disclosure
Mr Carrim confirmed that as part of the NYDA risk management policy, board members and employees are required to submit all their financial interests annually.

The Chairperson emphasised that the Committee had discussed that it should be explicitly stated that board members must divulge their financial interests.

Mr Opperman attested to the Chairperson’s recollection of that discussion.

Ms Masiko fully agreed with the Chairperson and highlighted the need for everyone in the public service to disclose their financial information. She asked if there is a code of conduct for NYDA board members which contained a financial disclosure clause and if failure to comply would warrant a dismissal from the board.

Mr Kganakga explained that section 11(6) and (7) of the principal Act has clear requirements on financial disclosure by board members:

(6) If a member has, in relation to a matter to be considered at a meeting of the Board, any interest which precludes that member from acting in a fair, unbiased and proper manner, the member may not­ (a) participate in that meeting of the Board; or (b) be present at the venue where the meeting is held.

(7) If, during the course of any proceedings of the Board, there is reason to believe that a member has any interest contemplated in subsection (6), that member must immediately disclose the nature of his or her interest and leave the meeting in question so as to enable the remaining members to discuss the matter and determine whether that member may be allowed to participate in the proceedings.

However, they do not explicitly state annual financial disclosure of board members. Hence, clause 11 of the Amendment Bill seeks to address this by 1) explicitly outlining the annual financial disclosure in a prescribed manner; 2) the consequence management measures if board members failed to do so.

Ms Masiko was satisfied with the proposed approach and pointed out that there are punitive measures for MPs who failed to disclose their financial interests such as docking salaries for two weeks for first-time offenders and one month for second-time offenders. There is a maximum of 30 days in terms of repeated offences. She repeated her question on non-disclosure in the NYDA code of conduct and what consequences board members would face if they fail to adhere to that.

Dr Tembe was unsure if the NYDA Board had a code of conduct for board members.

Ms Pearl Pillay, NYDA Board member, confirmed that NYDA does not have a separate set of code of conduct for the board itself but the board is bound by the NYDA code of conduct.

Mr Carrim added that board members are required to provide a declaration of financial interests and other sources of remuneration on an annual basis that are approved by the relevant bodies. There are deadlines. If any employee or board members fails to adhere to that deadline, they would still have three opportunities to make the annual submission. Should an employee fail in all those circumstances, the issue would then be escalated to the CEO or Board Chairperson. There is no penalty for board members at the moment. For staff members, the management can apply punitive measures such as deduction from salary, performance bonuses or not implementing salary increase, etc.

Ms Pillay explained that when board members filled out their declaration of financial interests at the beginning of the year, board members would get a response from the auditor to inform them of potential non-disclosure such as holding a company directorship. As for consequence management, since board members are not salaried staff members, it might be difficult to implement unless there is withdrawal of board fees.

The Chairperson requested the Chairperson develop a code of conduct for board members which should include a clause on financial disclosure. She requested that document be presented to the Committee next year.

Ms Luwaca noted that request.

Clause 14
Ms Masiko noted the deletion of "any employee of the Agency" and said that her view was that an NYDA employee should not be delegated power since NYDA employees are not directly held accountable to Parliament.

Ms Opperman and the Chairperson agreed with that view and the proposed amendment.

That brought to an end the deliberations on the Amendment Bill.

The Committee agreed to meet virtually on 14 November to deal with the motion of desirability on the Bill and to adopt the Bill clause-by-clause.

The Chairperson adjourned the meeting.