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Taking Parliament to People, and People to Parliament
The aim of this report is to summarise the main events at the meeting and identify the key role players. This report is not a verbatim transcript of proceedings.
LAND AND ENVIRONMENTAL AFfAIRS select COMMITTEE
26 September 2001
AGRICULTURAL RESEARCH AMENDMENT BILL
Acting Chairperson: Ms B. Thompson
Documents handed out:
Agricultural Research Amendment Bill [B 25B-2001]
The Committee was briefed by the Department of Agriculture on the Agricultural Research Amendment Bill. The Bill aims to amend the Agricultural Research Act of 1990 to bring the process of appointing members of the Council in line with the Constitution and other related matters. The Committee proceeded clause by clause through the Bill. Discussion focused on the role the Committee would play in the appointment process, and upon reaching no agreement, the Committee decided to consult with the Portfolio Committee before
finalising the Bill.
Upon the absence of the Committee Chairperson, Ms B. Thompson (ANC) was appointed to chair the meeting.
Ms Thompson proceeded to introduce the team from the Department that came to present the Bill and asked Advocate R. Van Zyl, Head of Legal Services at the Department of Agriculture, to begin the briefing.
Agricultural Research Amendment Bill
Adv. Van Zyl introduced the Bill and proceeded to explain the amendments. She stated that the Agricultural Research Council (ARC) was a body that conducted research in agriculture and other related matters. The ARC was managed by a Council and the Council members were appointed by the Minister. To explain the need for the amendments, she stated that the Constitutional Court had ruled that it was unconstitutional to confuse functions of the Legislative and Executive bodies. She stated that the amendment would bring the Agricultural Research Act (Act) in line with the Constitution by taking the Committees out of the appointment process but reserving the role of the Committees to oversee the Executive. Having explained the rationale behind the Bill, Adv van Zyl read the long title of the Bill and proceeded directly to elaborating on the amendments envisaged by the Bill.
Amendment of Section 9 of Act 86 of 1990, as Substituted by Section 1 of Act 16 of 1996
Section 9 of the Act, 1990
Adv van Zyl stated that Section 9(3), of the 1990 Act, was to be amended as follows:
Adv van Zyl stated that this part of the Act required the Minister to put a notice calling for nominations in national and local newspapers and she added that the newspaper notices were extremely costly. She stated that the Portfolio Committee had amended subsection (3)(a)(i), requiring the Minister to put a notice in "â€¦the Gazette and other appropriate mediaâ€¦" to eliminate the burden of having to put notices in the newspapers.
Another amendment Adv van Zyl discussed was the change to the role of the Committees in the process of appointing persons to the Council. She stated that the Portfolio Committee's amendment would allow Portfolio and Select Committees responsible for agricultural affairs to submit names of persons who comply with the selection criteria in subsection (2) to the Minister.
Adv van Zyl stated that subsection (3)(a)(ii) was amended to clarify the constitution of the selection committee and to specify that the Minister may "â€¦establish a selection committee consisting of at least three personsâ€¦."
Adv van Zyl stated that the amendment to subsection (3) deleted paragraph (b) in order to replace it with a new paragraph. The new paragraph (b) stated that the selection committee, within 30 days of the appointment of its members, had to compile a short-list from the nominations submitted to it by the Minister. She added that the requirement for the selection committee to submit the short-list to the Committees was taken out and two new paragraphs, paragraph (c) and (d), were added to subsection (3).
Adv van Zyl stated that the amendments made by the Portfolio Committee would add paragraph (c) to allow the Minister to appoint the required number of persons from the short-list compiled by the selection committee.
Adv van Zyl stated that the amendments made by the Portfolio Committee would add paragraph (d), which would require the Minister to inform the Portfolio and Select Committees of the appointment made in writing.
Adv van Zyl stated that the amendments would delete paragraph (e) to allow the Minister to appoint members of the Council without having to refer to the Parliamentary committees for consultation.
Adv van Zyl stated that subsection (5) was added because the Department had found that the Act was missing the criteria for the disqualification of persons from being appointed to the Council. She then proceeded to read paragraphs (a) to (f) which contained the criteria for disqualification.
Amendment of Section 12 of Act 86 of 1990, as Amended by Section 2 of Act 16 of 1996
Adv van Zyl stated that Section 12 of the Agricultural Research Act, 1990 would be amended as follows:
Adv van Zyl stated that paragraph (a) would be added to subsection (2). She read the new insert that involved the conditions for the termination of office. A term could be ended if the member had contravened a provision of section 7 of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000, and it had been so determined by an equality court.
Adv van Zyl stated that paragraph (f) was updated to correspond with the current institutions. She stated that the new paragraph (f) changed "Council of Traditional Leaders" to "National House of Traditional Leaders" and deleted the reference to the "Volkstaat Council". She added that the new paragraph (f) also had a provision regarding nominees whose functions were incompatible with the functions of a member.
Adv van Zyl stated that subsection (4) was amended by the Portfolio Committee to change the process by which vacancies on the Council were filled. She stated that the requirement the Minister had to refer to in Section 9 in filling the vacancies was deleted to allow the Minister to appoint a suitable person to the vacancy for the relevant term of office.
Dr E. Conroy (New NP) asked if the only role for this Committee would be to nominate candidates for appointment to the Council.
Adv van Zyl replied by referring to the Constitutional Court case involving Judge Heath. She stated that the appointment of Council members was an executive matter and added that the Constitution stated that a person could not be involved in both the Judiciary and Executive. She stated that the amendment would allow the Select Committee to play their role to oversee the Ministry.
The Chairperson asked if the aim was to take out the Legislature.
Ms A. Versfeld (DP) stated that if the Select Committee participated in the appointment process, it would not be taking over the Minister's role and added that appointment would be done in consultation with the Portfolio Committee. She asked what the Select Committee could do if it was unsatisfied with the process.
Adv van Zyl replied by stating that the Select Committee could call the Minister to ask as part of the Committee's duty to oversee and added that the Executive was accountable to the Legislature. She stated that the previous provision created an infinite loop in the appointment process because the Minister, Portfolio Committee and Select Committee had to agree on an appointment. She added that if the Committees were part of the appointment process they could not fulfill their function to oversee.
Dr Conroy stated that there was no point in inserting the provision to allow Committees to nominate persons to the Council if the Minister was not bound to select from the list submitted by the Committees.
Mr Windvoel (ANC) stated that the Committees should have uniformity in terms of their participation in the appointment process and the manner in which they participated.
Mr R. Nyakane (UDM) stated that if the Committee did not have the privilege to identify and nominate people to the Council, then it should finalise the appointment.
Mr K. Durr (ACDP) stated that the Courts had said the Committees could not take part in the process. He stated that the Committee's participation in the appointment process was indeed interference. He suggested that the reference to the Committees' role in the amendment be taken out because it did not have any weight. He stated that Committees had no role in other appointments and added that the Committee should not even debate the issue. He reiterated by stating that the Committees should not be involved at all.
The Chairperson stated that there was a problem because the Portfolio Committee had not been involved.
Adv van Zyl stated that the Department had taken out all reference to Committees but the Portfolio Committee had wanted to be notified of the call for nominations and informed of the Minister's decisions to help in their duty to oversee. She stated that the reference to the Committees had been inserted by the Portfolio Committee and added that if the Select Committee wanted the rationale for the decision, they should contact the Portfolio Committee.
Mr Nogumola (ANC) asked if the suggestions of the Portfolio Committee were not in conflict with the need to maintain a separation of powers between the Executive and Legislature. He also stated that the amendment would have an impact on Acts previously passed.
The Chairperson stated that it should be checked if the involvement of the Committees would do any harm.
Mr Durr stated that the issue was not whether there would be harm done by the Committees' involvement. He stated that the involvement of the Committees was unlawful.
Mr D. Kgware (ANC) stated that the Committee had a way of ensuring their representation in the appointment processes. He stated that there was a need for the Committees to be involved in the appointment process and added that if Committees were excluded completely from the process, it would impact on the working relationship because Committees would still have to oversee.
Mr Windvoel stated that the involvement of Committees would have its own complications. He stated that there would be no problems with excluding the Committee from the appointment process because Committee Members could still nominate individually.
The Chairperson stated that exclusion of the Committees from the appointment process was not bad but stated that the Department's explanation did not sound valid.
Adv van Zyl stated that the insertion of the Committees' role in the amendment had been made by the Portfolio Committee. She stated that it was better to consult the Portfolio Committee as she could not explain their decision. From her understanding, the reference to the Committees had been inserted to strengthen the overseeing of the Ministry.
Mr Durr stated that the Portfolio Committee had made a political decision.
Adv van Zyl stated that the Marketing of Agricultural Products Act had also included this new measure to ensure the separation of functions.
Mr K. Mokoena (ANC) suggested that the Committee ask the Portfolio Committee why they went for this arrangement, flag the issue now and deal with it at another meeting.
Dr Conroy expressed his surprise at the relevance of the Judge Heath case. He stated that he could not see how the Committees compiling a short-list would create conflict as it was the Minister who would have made the final decision. He stated that the Committees should be involved in this process of compiling a short-list.
The State Law Advisor said that it was up to the Committees to decide what to do with the Portfolio Committee's amendments.
The Chairperson suggested that the Committee flag this issue and return to it at another time. She asked if the Committee Members agreed with the other amendments.
Mr Mokoena, referring to section 9(3)(a)(ii) stating that the Minister had to establish a selection committee consisting of at least three persons, asked why the word "at least" was used instead of stating a minimum and maximum number.
Adv van Zyl said that there was a trend in writing legislation to make the language clearer. She stated that "at least" was used because it was plainer than setting minimum and maximum limits. She stated that the attempt was to move the language of legislation closer to people and make the legislation user friendly.
Mr Windvoel suggested that the wording be changed to "â€¦at least three, but not more than sevenâ€¦"
The Chairperson suggested that the Committee skip the issue because it was a matter of language.
Mr Kgware, referring to section 9(5)(b), which disqualified unrehabilitated insolvents from being nominated or appointed, asked for a clarification on the paragraph.
Adv van Zyl stated that if an insolvent was not rehabilitated, he or she would not automatically be excluded. When such a person was nominated, a trustee had to certify that the person was fit and proper to serve as a member of the Council for that person to be qualified. She stated that this was a common safety measure.
Mr Durr returned to his previous position on the role of the Committees in the appointment process and stated that the involvement of the Committee in any part of the appointment of the Council members was unconstitutional and added that the Committee should stay out of it.
The Chairperson claimed that the statement made by Mr Durr would take the Committee back to issues already dealt with and asked the Committee what should be done with the flagged issues.
Mr Kgware stated that the Committee needed to have a brief discussion with the Portfolio Committee and added that it was necessary to understand the urgency of the Bill to know how to proceed.
Adv van Zyl stated that the Bill was urgent for the Department at this stage. She stated that the Council had vacancies and the amendment would allow the Minister to fill the vacancies quickly. She asked if the Committee was satisfied with her and the State Law Advisor's explanations.
The Chairperson stated that the Bill was going to go on with or without the Select Committee and so the Committee should not delay it.
Mr Kgware stated that there was a need to clarify elements of inconsistency and added that, in principle, the explanations had been adequate.
The Chairperson asked if the Committee should leave the reference to the Committees as it was.
Ms Versfeld suggested that the reference to the Committees be left unchanged.
Mr Windvoel stated that the purpose was not to delay and suggested that an allowance be made for a brief period of consultation and research into the constitutional implications.
The Chairperson stated that the State Law Advisor was qualified to answer the questions.
The State Law Advisor said that the Portfolio Committee's amendment did not put the Committees in conflict with the Executive. He stated that as the Bill was currently worded, it was in line with the Constitution and added that it was up to the Committee to decide whether or not they wanted to accept the Portfolio Committee's amendment.
The Chairperson asked for suggestions on whether the Portfolio Committee's amendments should be left alone. She stated that a way would be found to consult with the Portfolio Committee and the Department would be invited to finalise the issue.
The Committee Members agreed and the meeting was adjourned.
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