Human Sciences Research Council Draft Bill [B16-2007] ; Astronomy Geographic Advantage Bill [B17-2007]: deliberations & adoption

Meeting report

SCIENCE AND TECHNOLOGY PORTFOLIO COMMITTEE
04 September 2007
HUMAN SCIENCES RESEARCH COUNCIL BILL; ASTRONOMY GEOGRAPHIC ADVANTAGE BILL: DELIBERATIONS & ADOPTION

Chairperson: Mr E Ngcobo (ANC)

Documents handed out:
Human Sciences Research Council Draft Bill [B16-2007]
Human Research Council Bill, Memorandum
Opinion by Parliamentary Legal Advisor on Human Sciences Research Council Bill
Amendments to HSRC Bill agreed to by the Committee
Suggested Amendments to Clause 5 of HSRC Bill
National House of Traditional Leaders submission on HSRC Bill
Astronomy Geographic Advantage Bill [B17-2007]
Presentation on Proposed amendments to Astronomy Geographic Advantage Bill
Proposed amendments to Astronomy Geographic Advantage Bill
Transnet submission on Astronomy Geographic Advantage Bill

NOT RECORDED

SUMMARY
The Committee discussed and adopted the Human Sciences Research Council (HSRC) Bill with amendments. The central issue examined by the Committee was the role of Parliament in the appointment and removal of the board members. Members also interrogated the necessity of a prescribed period for the nomination of board members.

In the afternoon, the Committee discussed and adopted the Astronomy Geographic Advantage Bill with amendments. The Independent Communications Authority of South Africa made an oral submission about the conflict of this Bill with the Electronic Communications Act. The issue of conflicting legislation was debated by the Committee and some changes were made. Also considered was Transnet’s input on consultation with interested parties and compensation.
 
MINUTES
Human Sciences Research Council (HSRC) Bill: deliberations
The Chairperson appealed to the Committee to accelerate the finalization of the Bill so that it could be passed in the current year. Thereafter, Members were invited to comment on the Bill.

Mr S Farrow (DA) mentioned that the Committee was yet to reach consensus on the role of Parliament in the appointment of the HSRC Board. He noted that the parliamentary legal advisor supported his position for Parliament to have a greater role regarding this matter.

Mr S Dithebe (ANC) stated that the Van Rooyen ruling clarified the meaning of “in consultation” and “after consultation” and allowed the Committee to ponder the ramifications of either route. Furthermore, the Speaker asserted that the Committee be consistent with the trend regarding the appointment of boards. Finally, he opted for the “after consultation” route with the understanding that the Committee would have an opportunity to influence the Minister.

Mr S Nxumalo (ANC) commented that the Committee had previously deliberated on this matter and agreed on the wording “in consultation”. He noted that the Committee’s position was endorsed by the parliamentary legal advisor and should accordingly be followed.

Mr B Mnyandu (ANC) added that the “after consultation” route was not desirable because it took away the powers of the National Assembly, which acted through this Committee. He therefore supported the proposal of the previous speaker.

Ms B Ngcobo (ANC) agreed with the previous two speakers.

Mr A Ainslie (ANC) was frustrated that the Committee was rehashing an issue that had been previously exhausted. The Committee should pursue the “in consultation” model because the requested legal opinion did not dispute the constitutionality of that position. In addition, the speaker explained that “in consultation” gave power and authority to the NA and “after consultation” had the opposite effect, giving discretionary power to the Minister.

The Chairperson mentioned that he had approached the Chairpersons Forum for advice on this matter and the majority of Chairpersons had supported the Committee’s position.

Ms Marjorie Pyoos, Deputy Director General: DST, was in favour of the “after consultation” route. She argued that the “in consultation” model was time consuming, complex and had the effect of disempowering an organisation while it waited for a Board to be constituted.

Prof I Mohammed (ANC) repeated the sentiments of the earlier speakers that the Committee should accept “in consultation” as outlined by the parliamentary legal advisor.

The Chairperson remarked that the Committee did not want to be bogged down with administrative details. It only wanted the power to intervene if something went wrong.

Mr P Nefolovhodwe (AZAPO) felt that the Committee was belabouring the matter. The Committee should make a decision and move on.

It was noted that all the Members except for Mr Dithebe accepted the “in consultation” approach.

The Chairperson asked the DST to guide the Committee through the amendments that had been agreed to.

Amendments to HSRC Bill agreed to by Committee
Mr Puseletso Loselo, Manager: Legal Services, DST, outlined all the amendments that had been agreed to by the Committee (see attached document). The Committee did not engage further on these amendments.

Suggested Amendment of Clause 5 of HSRC Bill: presentation by Parliamentary Legal Advisor
Amendment to Clause 5(3)
Ms Refilwe Mathabathe, Parliamentary Legal Advisor, briefed the Committee about the changes to this controversial clause. The amendment required that the Minister appoint the Board Members “in consultation” with the National Assembly. The effect thereof was that the Minister and the National Assembly, which would be acting through the Committee, would have to agree on the appointments. Also, the Committee would not be involved in the administrative side of the appointments.

Members agreed that the new clause correctly articulated the Committee’s desire to play a role in the appointment of Board Members.

Ms Xoliswa Mdludlu, State Law Advisor, believed that there was an omission in the clause. It did not specify the period allowed for nominations after the publication of the notice.

Ms Mathabathe stated that she was not averse to the inclusion of such a stipulation.

Mr Farrow proposed that it would be reasonable to have a 30-day nomination period.

Mr Loselo (DST) opposed such a prescription in this clause. He felt that it would be better placed in the Regulations drawn up by the Minister.

Mr J Blanche (DA) disagreed. He reasoned that it should be included because the Committee never dealt with Regulations.

In light of above discussion, Ms Mathabathe amended the clause and proposed the following formulation: 5(3) The Minister, in consultation with the National Assembly, appoints members of the Board after publishing a notice in the Government Gazette and two other national newspapers circulating in the Republic calling upon members of the public to, within 30 days of the publication, nominate persons contemplated in subsection 2(a) and (b).”

 Mr Farrow supported this amendment.

Mr Nefolovhodwe voiced his concern that the 30-day expiry period would negatively influence the number and quality of candidates. He wondered whether there was another clause that dealt with this.

Ms Pyoos felt that the inclusion of this amendment would put pressure on the public and force them to nominate a person within 30 days.

The Chairperson suggested that the Committee adopt a flexible approach and not include the 30-day nomination period. He added that this would ensure that there was no need for a rescue clause.

Mr Dithebe was of the view that this matter should be dealt with in the Regulations.

Mr Farrow argued that the Committee could not write legislation for absent minded professors and scientists. There was no need for a rescue clause if there was an inadequate response from the public within the 30-day nomination period. Nothing prevented the Minister from re-advertising.

Ms Pyoos believed that the 30-day nomination period was insufficient. She pointed out that the entire nomination process was time consuming, as individuals were nominated by organisations, which followed certain processes. Mr Nefolovhodwe agreed.

The Chairperson remarked that the Committee was correct to opt for the “in consultation” route. It guaranteed that the Committee had a central role in the appointment process and could constantly consult the Minister at any time. Consequently, he advised that the clause be left open and the 30-day nomination period be inserted under the Regulations.

Dr Olive Shisana, President and CEO of HSRC, commented that it would be better to leave the clause open. This would ensure a less complicated and confusing process. She added that her organisation was diligent and would follow up with the Minister to make sure that there was no period where the Board was not in existence.

It was eventually decided that the 30-day nomination period would not be included in the clause.

Mr Nxumalo felt uncomfortable that the notice would only be placed in two other newspapers. He therefore recommended that the wording “at least” be inserted before “two other newspapers”.

This proposal was accepted by the Committee.

Ms Ngcobo queried whether the “other newspapers” would have to be national.

Ms Mathabathe clarified that the wording in the clause: “circulating in the Republic” implied that these newspapers had to be national.

Amendment to Clause (5)7
Ms Mathabathe suggested that Clause 5(7) be amended to require the Minister to inform the National Assembly of his decision to remove Board members and the reasons thereof.

Mr Nefolovhodwe asked why the Committee did not have more involvement in the removal of Board members.

Ms Mathabathe explained that the Committee had expressed the desire not to be involved in the administration process.

Dr Shisana believed that this would be a fundamental change.

Ms Pyoos said that this additional clause was encroaching into the functioning environment. It was sufficient that the Committee played a role in the appointment of the Board, which reported to the Minister. Consequently, only the Minister, after consulting with the Board, should have the power to remove Board members.

Mr Farrow differed with the Department’s interpretation. He felt that the additional clause promoted transparency and did not demand a lot from the Minister. Parliament needed to be informed and it did not matter whether this was announced in Parliament or by means of a note.

Mr Dithebe suggested that the Committee excise that provision.

The majority of Members endorsed Mr Farrow’s position on this subject.

Mr Ainslie stated that the Committee did not intend to undermine the authority of the Minister. It only wanted to be informed if a member of the Board was fired.

Ms Mdludlu observed that the entire provision was out of line with the drafting style employed by the Office of the State Law Advisor, which did not allow two sentences in a provision. Consequently, the amended clause would have to be introduced in a separate sub clause.

The Committee sanctioned this amendment.

Ms Mathabathe noted that the wording would have to be rephrased because it was being introduced in a new sub clause. It now read: “The Minister must inform the National Assembly of his or decision to remove a member of the Board and the reasons thereof.

The amendment was accepted.

Amendment to Clause 5(9)
This amendment was unanimously agreed to.

Amendment to Clause 5(11)
The Chairperson clarified that the current clause dealt with the continuity in membership and did not affect the size of the Board. This clause ensured that when some member’s term lapsed, there would always be three remaining members to serve with new members.

Ms Pyoos asked the Committee to consider dropping the phrase “the Chairperson’s” from this suggested amendment. The subclause would then read: “…the Minister may retain two (2) other members’ terms for one (1) more term to ensure continuity.”

The Committee approved this amendment

Amendment to Clause 16
The Parliamentary Legal Advisor stated that this amendment was unnecessary because the HSRC reported to the Committee in terms of the Public Finance Management Act (PFMA).

Ms Xoliswa Mdludlu indicated that the Bill was subject to the PFMA, as outlined in the Bill.

The Committee decided against invoking this provision.

Voting on the HSRC Bill
The Chairperson read out the motion of desirability. Thereafter, the Bill was adopted with amendments.

The Chairperson thanked the Department and the HSRC for their support in the processing of the Bill.

Afternoon session
The Chairperson repeated his earlier appeal to the Committee to accelerate the finalisation of the Bill so that it could be passed in the current year.

Proposed amendments to Astronomy Geographic Advantage Bill: presentation by Department
Mr Puseletso Loselo outlined the proposed amendments to the AGA Bill (see document).
 
Discussion
Mr Farrow complained about the inconsistent use of the words “organisation” and “institution” in the Bill. He concluded that the problem could be solved with the insertion of a definition.

Ms Pyoos clarified that the word “organisation” be replaced with “institution” wherever it appeared in the Bill.

Ms Mathabathe was satisfied that the words should not used interchangeably.

The Chairperson called for consistency and suggested that the word “institution” be defined in the Bill.

Mr Dithebe responded that Section 239 of the Constitution was the guiding principle on this matter as it specifically outlined the meaning of “institution”.

Ms Mdludlu advocated that “organisation” be substituted because it fell short of legal requirements. She added that a definition could be inserted for the word “institution”, if deemed necessary by the Committee.

The Committee accepted this explanation.

Mr Dithebe expressed his happiness with the broad thrust of amendments. He maintained that the role of ICASA had been properly clarified.

Oral Presentation by ICASA on the AGA Bill
ICASA thanked the Committee for the opportunity to make an input on the AGA Bill.

Mr Paris Mashile, Chairperson, ICASA, suggested that the word “telecommunications” be substituted by “electronic communications”. He motivated that the former terminology was confined and that the latter was more inclusive.

The Committee decided to effect this change everywhere in the Bill.

Mr Edmund Baloyi, Advisor to the Chairperson: ICASA, commented that ICASA had a range of services that exceeded those (broadcasting services and broadcasting licence) referred to in the Bill. Accordingly, he asked the Committee to consider adding the other communication services.

Ms Pyoos responded that the major interferences occurred in the broadcasting arena, while the other communication services would not disturb radio astronomy in the core area. However, she was interested to know whether ICASA had information that would contradict this assertion.

Mr Mashile clarified that devices such as microwave dishes and transmission stations could interrupt the Department’s signal.

Ms Pyoos valued ICASA’s contribution on this matter. However, she was satisfied that the Bill covered all the aspects raised by the entity.

Mr Loselo pronounced that there were substantive safeguards and prohibitions in the Bill to protect the core areas.

Mr Baloyi highlighted that Section 22(1) of the Bill was in conflict with the Electronic Communications Authority, which empowered ICASA to regulate and control the radio frequency spectrum in the country. Hence, he sought to establish which legislation took precedence.

The Chairperson replied that this point had been vehemently raised at previous discussions on the Bill.

Mr Loselo admitted that the mandate of ICASA had been raised on previous occasions. He was of the view that the AGA Bill could override the ECA and any other legislation in respect of an astronomy advantage area. In any event, the Bill did not seek to regulate broadcasting.

Mr Farrow had a problem with the word “sole” in Section 22(1).

The Committee agreed to drop this word.

Mr Mashile challenged the position of the Department. He maintained that ICASA derived its powers from the Constitution and therefore the ECA would take primacy over this Bill.

Ms Mathabathe described the principles of interpretation to deal with this matter of conflict of law. Specific legislation applied above general legislation in so far as its defined mandate was concerned. She deduced that the AGA Bill applied specifically because it focused on astronomy advantage areas and could therefore override the ECA (general legislation).

Mr Baloyi requested the Committee to add the term “radio frequency licence”.

After gaining clarification on this terminology, the Committee accepted this recommendation and inserted a definition for this term.

The Chairperson was annoyed that ICASA had not raised their concerns at earlier deliberations. The Committee was under the impression that the Department had consulted extensively with ICASA during the progression of this legislation. Lastly, he stressed that it was unfortunate that ICASA was raising some of the issues that had been previously exhausted.

Mr Loselo confirmed that the Department had interacted with ICASA since the inception of the Bill. Further, he noted that their latest interaction took place on the 17 August 2007.

Prof Mohammed echoed the sentiments expressed by the Chairperson.

Mr Baloyi proposed that Clause 25(5)(1) be rephrased to read: “the Minister must notify the licensee to take steps to reduce the impact on the identified area.”

Members did not object to this proposal and duly accepted it.

Mr Baloyi suggested the addition of a Clause 37(8) to read: “the manner of prescribing regulations contemplated in subsection (7) as outlined in section 4 of the ECA.”

The parliamentary legal adviser did not think it was necessary to create a new subsection and inserted ICASA’s proposal into subsection (7). After the amendment, it read: “…ICASA must, in terms of the provisions set out in section 4 of the ECA, prescribe national standards or measures for the control or minimisation of radio frequency”

The Committee adopted this amendment.

The Chairperson thanked ICASA for their valuable input.

Oral Submission by Transnet
Ms Janet MacKenzie, Legal Consultant to Transnet, expressed the entity’s support for the SKA Project. Transnet recognised that the country would derive significant benefits from hosting this initiative. Their submission highlighted the different clauses that were problematic and the necessary amendments that needed to be effected. The speaker called for greater consultation with the interested parties and for the compensation (provided in the Bill) to be extended.

The issue around compensation generated the most discussion.

Ms Vanessa Wilson, Company Secretary and Legal Counsel, Transnet Restructuring, suggested that the organisation be compensated if it had to deploy alternative technology to meet the requirements of the Bill. She concluded that subsidisation could be considered as an alternative to compensation.

The Department countered that Transnet should approach the Department of Public Enterprises, which had a contingency reserve fund for such a scenario envisaged by Transnet.

All the other proposals outlined were also considered and eventually rejected. The Department argued that the Bill had sufficiently covered the issues raised.

Voting on the Bill
The Chairperson read out the motion of desirability. Thereafter, the Bill was adopted with amendments.

The Chairperson was pleased that the Bill had been finalised and could be passed in this year.

The meeting was adjourned.