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SCIENCE AND TECHNOLOGY PORTFOLIO COMMITTEE
28 August 2007
HUMAN SCIENCES RESEARCH COUNCIL (HSRC) BILL [B16-2007]: DEPARTMENT RESPONSE TO SUBMISSIONS
Chairperson: Mr E Ngcobo (ANC)
Documents handed out:
DST Presentation: research and comments on Clause 5(3) of the HSRC Bill [B16-2007]
Summary of Amendments agreed to by the Committee
Submission to Public Hearings by National House of Traditional Leaders
Comments on the HSRC Bill from the HSRC
Human Sciences Research Council Bill [B16-2007]
Audio recording of meeting
Following the mandate from the Public Hearing on the Bill, the Department of Science and Technology presented their motivation for changing Clause 5(3) concerning the role of the Portfolio Committee in the appointment of the HSRC Board. In a meeting that was intended to complete the amendments to the Bill, the discussion of this one amendment took up all the time. Members deliberated the option of ‘in consultation’ or ‘after consultation’ and various means of accountability of the board. Legal advisors gave their understanding of the two phrases, and representatives from the DST and the HSRC motivated their desires. It was concluded that this was a weighty matter that needed further consideration, and that the Chairperson was to take the question to the Chairpersons’ Forum. The final decision on the amendment was postponed to the next meeting of the Committee once feedback from the Chairpersons’ Forum, and an expanded Clause 5(3) from the Department, were in hand.
Presentation by DST on their research and comments on Clause 5(3) of the Bill
Dr Anusha Lucen, DST Deputy Director General, said that during the public hearings there was agreement on all sides to the proposed amendments to the Bill, except for one outstanding issue: Clause 5(3) - the role of the Portfolio Committee in the appointment of the HSRC Board. As there were no guidelines in the Bill concerning this matter, the Department had researched what practices were used in other government departments. She concluded, after reviewing four similar pieces of legislation, that the precedent was for boards to be appointed by the Minster, after consultation with the Committee. She repeated the DST and HSRC’s desire for the HSRC Bill to reflect the same legislation as that in practice in other sectors.
The Chairperson thanked the DST delegation for doing the work asked of them and called for discussion by the Committee.
Mr S Farrow (DA) said that he is in favour of open and transparent processes, such as the one outlined in the presentation. However, as parliamentarians have an oversight role, he wanted to ensure that there was a stipulation in Clause 5 that allows the nominations for the board to be scrutinised by the Committee.
Mr A Ainslie (ANC) agreed, saying that he wished to see a greater role for Parliament in this matter. He asked for a copy of the research that the Department undertook, and was surprised that there was no mention of the National Research Foundation’s process, as they excluded completely the input and role of the Portfolio Committee.
The Chair continued with the same sentiment, wondering why Parliament was excluded from its oversight role within its Department’s entities. He said that to fully adhere to this role, a mechanism must be devised that was truly democratic and consistent. He said that what the HSRC proposed last week was brilliant, and this was a matter that he would raise in the Chairperson’s Forum today.
Dr Lucen agreed with the Chair and said that the key reason they wanted to harmonise the legislation was to be consistent. The only legislation that specifically allowed a Minister to consult with the Portfolio Committee was the NRF legislation, and that had been subsequently removed to make it consistent with all other practices. To give the Portfolio Committee a sense of what was done with the other science councils, Dr Lucen detailed the steps taken with regard to appointing a board. These steps were outlined in the Department of Public Service and Administration (DPSA) manual and include an advisory panel that facilitated the process, advertising and short-listing according to the legislation and requirements, a closed meeting between the Chair and the Minister concerning performance reports, and finally the short list coming before Cabinet. She reiterated that the only instance where this was different was the NRF case where they were required to get the Portfolio Committee to help with the short-listing, which they did. To respond to Mr Ainslie, she repeated that this extraordinary clause had now been removed to be consistent with all other science councils.
Mr Ngcobo agreed that consistency was needed. However, because boards were the engines that make councils work, this was an important matter and there had to be a well thought out process to make it work. He said that it was important for Parliament, and not just a panel, to see the short list for board nominations.
Mr S Dithebe (ANC) thought that it was a good idea for the Chair to raise the matter at the Chairpersons’ Forum, as that would create a good solution for the long term. He cautioned that this legislation needed to be finalised though, and the legislation could not be informal or intelligible. He asked what the Committee meant by wanting a process of consultation, and that he would prefer to follow the ‘after consultation’ wording so as to keep functional and executive powers separate, as the DST presentation described.
Mr Ainslie replied and said that, given the NRF experience, he would be very hesitant to rush the decision and choose ‘after consultation’. He wanted rather time to debate the options.
Mr B Mnyandu (ANC) asked why the Constitution was not being used to defend these clauses, instead of precedent. Precedent was subject to correction. He also asked that the state law advisors would speak to the difference between ‘in consultation’ and ‘after consultation.’
Mr Farrow stated that if current legislation was looked at, there were constitutional imperatives of transparency and openness that must be followed, and he wished the legislation would spell out in more transparency and fullness, the process of appointing a board. He also asked who was accountable to the Department during this process, or whether there was an ex-officio person to make sure the board was doing their job properly.
Dr Lucen assured the Committee that there were sufficient structures in place, as outlined in the regulations, and that they had just recently established forums to ensure good governance on boards. There was no ex-officio position as there were DST people to visit the HSRC and boards regularly.
Mr Dithebe said that although oversight and accountability were very important concepts in our democracy, separation of powers was also important. He said that as ‘in consultation’ had many legal ramifications, the Committee would not wish to use ‘in consultation’ but would want an ‘after consultation’ process.
Ms Hala Sangoni, State Legal Advisor: Department of Justice, said that the issue under debate was ‘consultation.’ She wanted to agree with Mr Dithebe that the Committee wanted to write ‘in consultation’ when the process they wanted was ‘after consultation.’ She also informed the Committee that both ‘in’ and ‘after’ were constitutional.
Mr Ngcobo explained that the Committee was only exercising what it thought was its parliamentary duty, and it wanted to add value to the direction of the nation’s science systems, and it had to find a way to do that.
Mr Dithebe said that this exercise might very well be ‘after consultation’ and wished to avoid an instance whereby they arrogate to themselves administration powers.
Mr Ainslie expressed that, although his only experience was with the NRF, there were other boards that were in serious trouble and the Committee could not stand idly by while these problems were made.
Mr Ngcobo stated that what Mr Ainslie was saying was exactly his point, and that this Committee had a role to play in this process.
Mr Mnyandu wondered whether some collective understanding could be reached. He said that, in his mind, the words ‘after consultation’ left too much to chance. He was not interested in the appointment process, but wanted to make sure the Portfolio Committee had a say in the operations.
Dr Lucen proposed a way forward that would bring consistency - that members of the Portfolio Committee could be elected to serve on the advisory panel that assisted the Minister in appointing the board. This would allow involvement from the start, without the Committee running the entire process on their own.
Mr Ngcobo did not think that this proposal would work.
Dr Lucen stated that ‘in consultation’ was problematic because, if every member did not agree, then the whole process stalled.
Mr Farrow wanted the process spelled out more clearly in the Bill, which would cut down the problems and fears that they had about the process. The legislation must state ‘after consultation’ provided that they were satisfied with the process spelled out in Clause 5.
Dr Lucen informed Mr Farrow that all the additions he required were in the accompanying regulations.
Mr Farrow pointed out that the Minister sees and approves the regulations, but Parliament does not. He wished that he, and the applicants, would see these provisions in the Bill
Dr Lucen said that it could be added into the Bill.
Ms Koleka Beja, Parliamentary Legal Advisor, contributed her experience and said that if the phrase ‘in consultation’ was used, it was time consuming, and that another solution was rather to elect one or two members onto the Minster’s advisory panel, as Rule 202 of the National Assembly permits.
Mr Dithebe said that, in his mind, Mr Mnyandu agreed with him and, legally speaking, assumes ‘in consultation.’ He believed that to tighten the process, they must not use ‘in consultation’, but had to use ‘after consultation.’
Mr J Blanche (DA) suggested that the Committee make a law that officials could administer without the Committee. He suggested that the Chair talk to the Chairpersons’ Forum and see what they say. He added that he preferred ‘after consultation.’
Prof I Mohamed (ANC) expressed his shock at the backward and forward nature of the discussion, stating that there was not much difference between the two positions.
Ms B Ngcobo (ANC) agreed with the Professor.
Mr Arthur Maisela, Legal Advisor, Department of Science and Technology, quoted from the Van Rooyen ruling and said that ‘in’ means ‘concurrence with’ and that ‘after’ means that there was consultation and then a decision was be taken in good faith.
Ms Sangoni added that these two phrases had nothing to do with constitutionality.
Mr Ngcobo highlighted the three options facing the Committee: either they processed this legislation for the sake of expediency; or he took the matter to the Chairpersons’ Forum, or they established their own mode of process that was constitutionally compliant.
Ms Olive Shisana, CEO: Human Sciences Research Council responded to the discussion. She answered the question of accountability of the board to Parliament by saying that the shareholders’ compact was sufficiently entrenched in the way that the board was functioning. It was signed every year, and reports were given quarterly to the Minister as to the board’s work.
Mr Ngcobo stated that the meeting had still not arrived at a conclusion about ‘consultation’ and asked for final thoughts.
Mr Dithebe said that after Mr Maisela had read the definitions from the Van Rooyen judgement, it was crystal clear that if the Committee chose ‘after consultation’ then the Minister would carry out their responsibilities in good faith, and, in hindsight, ‘in consultation’ would bring all sorts of problems.
Mr Ainslie disagreed, saying that for him it was not crystal clear and he had not had time to digest the arguments nor make up his mind completely. He reminded the Chair of the important change to Clause 5 that Mr Farrow had requested and asked that the Department did some work and come back to the Committee with the changes. Guidelines from the Chairpersons’ Forum would also be very helpful.
The Committee agreed to postpone the decision until the 4 September where they would take into consideration all the inputs, including that from the Chairpersons’ Forum and refine the final version. It was noted that the Bill needed to be finalised by 11 September for debate in the National Assembly.
Dr Lucen then asked what was required of the Department for the 4 September meeting on the HSCR Bill.
Mr Ngcobo replied that members had already spelled out the proposed amendments such as the requirements for the board and accountability.
Ms Shisana drew the Committee’s attention to Clause 5(4)(a) and (b) of the Bill that clearly spelled out the skills needed. She added that, as the HSRC did an annual report that was audited, and no other Section 3 public entities had these additions in their legislation, all that was left to decide on was ‘in’ or ‘after’ consultation.
Mr Blanche repeated that he wanted something more appropriately drafted that spelled out what was being looked for in the board. Mr Farrow agreed.
The meeting was adjourned.
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