The Parliamentary Legal Adviser summarised the submissions during the public hearings, and indicated the responses of the legal team. Some of the submissions had been repetitive or had highlighted minor points that were not covered by the Bill. It was noted that the proposal to establish a Ministry of Youth was a policy issue that could not be covered by the Bill. The assertion that the Agency should not be located within the Presidency did not find general favour with the Committee, who felt that attempting to separate out the cross-cutting issues would be problematic and would hinder delivery. A Member pointed out that this Committee had received a clear mandate to constitute an Agency under the Presidency and this should be followed. The proposal that the Board be nominated by youths was accepted and the Bill would be amended accordingly. The comment about control by Parliament over the Agency’s funds was already covered in Clause 18 of the Bill.
The concerns of the Freedom Front + Youth that the previous institutions had not been inclusive were noted, but it was pointed out that comprehensive representation was provided for in Clause 9(4). Members debated the proposal to extend the term of office of the Board, but agreed that it should remain at three years, and also debated another proposal to increase the number of Board Members, but agreed that it should remain at seven.
The various comments that an oversight Committee must be established appeared to ignore the fact that the Joint Monitoring Committee would be likely to continue its oversight role. The Agency would have elements of privatization as it would receive private funding and disburse loans. The Committee agreed that this matter must be further investigated. The numerous suggestions that the Bill be tagged as a Section 76 Bill were rejected, since the tagging was completed, and since the Bill would not affect the running of the Agency in the provinces.
Members agreed with several proposals that the Chief Executive Officer should be appointed by the Board. They did not see any reason to change the situation where the Board would be elected by the President, on the recommendations of Parliament. The suggestion that Board members must sign written performance agreements was not considered necessary, as their performance would be evaluated elsewhere. The Committee would monitor the Board on a quarterly basis.
In respect of the functions of the Agency, it had been suggested that the “may” should be changed to “must”, but Members pointed out that this might impose obligations that the Agency could not fulfil. The compromise of “must, within its available resources” would be used in Clause 6. In Clause 17 the Committee agreed to replace the wording of Clause 17, as it was considered to be too peremptory. Clause 5 would be deleted as it was not appropriate to give directives to the President in respect of the publication of the Integrated Youth Development Strategy. The Committee did not agree that this Bill should have been referred to the National House of Traditional Leaders as none of the provisions had any relevance to traditional practices. The Committee agreed with Adv Beja and the proposal was rejected.
The proposals of the South African Blind Youth Organisation to define “accessible” and “disability” in accordance with the UN Convention on the Rights of Persons with Disabilities was approved, as this would ensure greater understanding. The suggestion by the Western Cape Youth Commission that the “designated entities” must be defined as the public sector, the private sector and civil society was debated but the point was made that the Agency could not compel the private sector to produce reports but could only could put in place incentives, which had regrettably not been successful in previous endeavours. Members suggested that perhaps a Youth Empowerment Charter should be produced, which would require the private sector to submit reports, but conceded that this would be premature at the moment. The legal advisers were asked to do some research on the comments that certain aspects around the power of the Agency, the removal of the CEO and the functions of the Board had been omitted. The Committee would sit again on the following day to discuss a revised version of the Bill.
National Youth Development Agency Bill (the Bill): Parliamentary Legal Adviser’s responses to public submissions
The Chairperson apologised for the delay in the start of the meeting, which was due to the legal and research team still having to work on the summaries of all the presentations that had been made over the previous two days. He noted that some of the proposals made in the submissions repeated others, but that the team had not yet had a chance to consolidate them, which meant that some of the matters would be repeated. He asked two of the members of the legal team to work on consolidating their lengthy summary while one team member presented the longer version.
Adv Koleka Beja, Parliamentary Legal Advisor, conceded that the summary was indeed long, but asserted that she would try to only highlight the pertinent issues within that document.
Adv Beja noted that the South African Council of Churches Youth Forum (SACCYF) had proposed that a Ministry of Youth be established instead of National Youth Development Agency (NYDA) Boards. She noted that the proposal referred to the location of the Board was a policy issue, which should not be dealt with in the Bill.
The Committee agreed with Adv Beja on this point.
Adv Beja commented that the legal team felt that the SACCYF’s assertion that the Board should be nominated by youths was a sound suggestion, and provisions could be made in the Bill for this
The SACCYF’s suggestion that the Agency’s funds be controlled by Parliament was already accounted for in the Bill, under Clause 18.
The SACCYF proposed that the NYDA be moved away from the Presidency.
Mr B Mkongi (ANC) expressed his view that the Bill already made provision for public and youth organisations’ participation on the Boards. He agreed that it was Parliament’s duty to monitor the Agency’s funds. He noted that the Committee needed to negotiate the possibility of protracting the Board terms of office from three to five years.
Mr E Kholwane (ANC) said that there was some validity in the SACCYF’s argument that there should be a Youth Ministry. The Committee had been working for many years with Boards that were out of touch with youth needs and problems.
The Chairperson asserted that this was not the only suggestion that the Agency be moved away from the Office of the Presidency, and that the Inkatha Freedom Party Youth had also suggested establishing a Ministry of Youth. He noted that even if this suggestion were to be adopted, there would be little change in practice, as there would be a Minister of Youth, who would still be accountable to the President.
Mr M Swathe (DA) noted that a Department for Youth would be problematic, as the issues that youths faced were cross-cutting, and he felt that any attempt to separate this section of the population into a new department would probably hinder effective delivery.
Ms T Tobias-Pokolo (ANC) noted that she did not have a problem with the provisions made for the Provincial Boards in the Bill. She disputed the relevance of discussing the location of the agency as well establishing a new ministry. She added that Parliament had given the Committee a clear mandate to create an Agency under the Presidency. She noted that there did not seem to be much disagreement amongst Members that the Agency should remain within the Presidency.
The Chairperson asked if there was general agreement that the location of the agency should remain within the Presidency. Members agreed that this was so.
Adv Beja noted that the Freedom Front Plus Youth (FF+Y) expressed concern about the lack of Afrikaaner Youth representation in the National Youth Commission (NYC), as well as the Umsobomvu Youth Fund (UYF). This group had urged that the NYDA needed to be representative all the youth of South Africa. She noted that comprehensive representation within the NYDA was already provided for in the Bill, under Clause 9(4).
Mr Swathe expressed agreement with the FF+Y’s concerns and agreed that the previous institutions had been exclusive, as evidenced by a rally held in Gugulethu, where the FF+Y were not given a space to participate. He thought that there should be a better way to promote greater inclusivity.
Mr W Douglas (ACDP) said that he did not feel that the Afrikaaner youth could not be categorised into their own demographic unit but should be considered as a sub-category. He noted that the demographics should be as limited as possible; probably to black, white, Indian, and Asian demographics.
Adv Beja noted that an additional proposal was that the Board’s term of office should be extended from three years to five years so that the change-over would coincide with National Elections.
The Chairperson asked if the Committee had any problems with extending the Boards’ terms to five years
Mr Swathe thought that the proposal should be accepted, as the Board could not accomplish a great deal of delivery in three years.
Mr Mkongi said that five years would not necessarily improve the functioning of the board. He noted that by law, youths were categorised as those between the ages of 14 and 35. He asked what would happen if someone became a Board member at the age of 33, and the term was five years. He added that the Committee did not want to create a problem in the Board where some members might serve although they were essentially out of the category.
Ms Tobias-Pokolo stated that the Board must have both younger and older members, as well as members of the community, as she argued that it would be dangerous only to have youth representation.
The Chairperson asked the Committee if there was any significant problem in retaining the three year Board term, and the Committee noted there were no significant objections. The proposal of the FF+Y was rejected.
Adv Beja noted that an additional proposal regarding the composition of the board was to increase the number of Board members from seven to fifteen.
Mr Mkongi suggested that the board be comprised of nine members instead, so that there would be a casting vote.
Ms S Lebenya (IFP) seconded Mr Mkongi’s proposal, noting that the youth are often at odds with one another.
Ms P Mokoto (ANC) asked if there was any specific reason for the choice of nine members.
Mr Mkongi responded that it was a compromise between the seven members delineated in the Bill and the fifteen members proposed by the public representatives.
Ms Tobias-Pokolo asserted that the Committee was not making laws only through compromise, and stressed that the Committee needed to assume a realistic and feasible approach when creating legislation. She added that there were financial implications in increasing the number of Board members, and she felt that seven would suffice.
The Chairperson said that he agreed with Ms Tobias. Other Members also indicated their preference to have seven Board members and it was agreed that this number be maintained..
Adv Beja commented that the SCCYF had also suggested that an oversight committee be established, and asked the committee to deliberate on the matter.
The Chair noted that he did not understand why the public representatives proposed that another institution outside of the Joint Monitoring Committee on Improvement of Quality of Life and Status of Children, Youth and Disabled Persons (JMC) would need to carry out oversight, as it was probable that the oversight role of that Committee would continue. . He noted that it was more pertinent to discuss how the Agency’s funds would be controlled.
Ms Tobias-Pokolo noted that the Agency would have elements of a private entity because it would receive private funding and would disburse loans. She noted that the Committee would require legal advice on the matter.
Me Beja noted that according to the Public Finance Management Act (PFMA), statutory bodies would need to give the Committee direction, and then a presentation should be made to the Minister of Finance
The Chairperson noted that the Committee would have to delay dealing with the issue of funding until further information and advice could be obtained.
Adv Beja indicated that she had now managed to consolidate the public submissions on the Bill and copies of the revised summary would be available to the Committee by the end of the work day. She noted that the proceedings of the meeting would run more efficiently once she was able to refer to this document.
Adv Beja noted that many of the presentations made the previous day had called for the Bill not to be tagged as a Section 75, but rather as a Section 76 Bill.
The Chairperson asserted that the matter did not require any debate. The Bill had been tagged as Section 75 because it pertained to National levels of government. He noted that there was no further reason to discuss this issue. The fact that this was a Section 75 Bill would not affect the running of the Agency in the provinces.
Adv Beja noted that a number of presentations made the previous day suggested that the Chief Executive Officer (CEO) be appointed by the Board instead of the President.
Ms Lebenya agreed with the proposals, and asserted that the Bill needed to give the youth on the Board a strong voice.
The Committee supported the changes.
Adv Beja noted that there was also some concern raised over the provision made for the President to appoint Board members. The African National Congress Youth League (ANCYL) had suggested that Parliament should rather elect the Board members.
Ms Tobias-Pokolo asserted that the Bill did specify that the President was supposed to elect Board members, based on the recommendations of Parliament. She commented that the ANCYL’s proposal thus did not need to be specifically written into the Bill.
Adv Beja noted that under Clause 6(3)(b), dealing with ‘Functions of the Agency’ it was suggested that the “may” should be changed to “must” to ensure that delivery was executed. She added that it was also proposed that the phrasing under Clause 17(2)(a) should be changed from ‘under control of the CEO’ to ‘or any other employee within the agency”, because the turn of phrase was considered to be ‘oppressive’.
The Chairperson replied that the use of ‘must’ or ‘may’ was not as simple as it seemed, since, for example, the Agency could not possibly provide all of South Africa’s youth with financial assistance to enable them to further their careers.
Mr Swathe asserted that retaining ‘may’ in the Clause would suggest that the government was not serious about achieving its youth development mandate.
Ms Tobias-Pokolo noted that if the Clause was amended to read “must” then there was a danger that the government could be taken to task on the issues. However, she agreed that Mr Swathe had a point. She asked the legal team for advice on an acceptable compromise
Adv Beja replied that an improved version of the Clause might be to word it as “must, within its available resources,“
The Committee appeared satisfied with the alteration to Clause 6.
In respect of Clause 17, the Committee indicated their approval with the suggestion to amend the wording.
Adv Beja noted that had been suggested that Clause 5(1), which currently read: “The President may, by notice in the Gazette, publish the integrated national youth development strategy” should be amended to read “the President must”’.
The Chairperson asked the Committee and the legal team whether there was any need to include a clause that gave directives to the President.
Adv Beja replied that the legal drafters felt that there was no pressing need for the clause.
The Committee agreed that the clause was irrelevant and should be excluded.
Adv Beja noted that it had been suggested that the Board members should sign written performance agreements to increase the Agency’s accountability, She asked the Committee whether this issue required debate.
Mr Mkongi noted that a security clearance was crucial for Board members. He noted that there had been individuals that had been employed in government Departments who had committed fraud, but had nonetheless been able to become CEOs or Board Members because there had been no security clearances.
Ms Tobias-Pokolo stated that the responsibility of security clearances and performance agreements was set out in the PFMA. She said that the Committee should not question the PFMA’s capacity to ensure quality performance. She added that the Board’s duty was to monitor the CEO, and the Committee should monitor the Board on a quarterly basis. She noted that the Committee needed to evaluate the Board according to whether the Board had fulfilled its strategic objectives.
The Chairperson stated that there should not have to be a provision for performance agreements in the Bill, because there were other mechanisms in place to ensure evaluation of Agency officials. Members generally agreed with this view.
Adv Beja outlined the next proposal, which argued that the Bill should have been referred to the National House of Traditional Leaders. She commented that the legal team did not see any specific reason for this, as none of the provisions within the Bill had relevance to traditional practices.
The Committee agreed with Adv Beja and the proposal was rejected.
Adv Beja raised the South African Blind Youth Organisation’s (SABYO) proposal that “accessible” in Clause 4(j) be defined in accordance with Articles 9 and 21 of the UN Convention on the Rights of Persons with Disabilities. SABYO had also requested that “disability” within the Bill also be defined in terms of the UN Convention on the Rights of Persons with Disabilities
The Chairperson replied that although it appeared that the Bill had made specific provision for people with disabilities, he thought that the Bill should be adapted to correspond with the UN Convention, to ensure continuity in understanding.
The Committee agreed with the Chairperson and the suggestion was accepted.
Adv Beja noted that the Western Cape Youth Commission (WCYC) had suggested that the definition of designated entities in Clause 1 should be defined in three parts: the public sector, civil society and the private sector. The WCYC had intimated that there should be ways of enforcing private sector participation in the NYDA.
Ms Tobias-Pokolo noted that the private sector could not be coerced into cooperating with the NYDA, and that the Committee could not pass legislation obliging this sector to provide annual reports on youth empowerment. She argued that the public sector and civil society should be the only designated entities required to complete annual reports.
Ms W Newhoudt-Druchen (ANC) commented that if the government was going to regulate private sector involvement in the NYDA, she was not sure about who would set up the regulatory mechanisms. She argued that the Agency rather needed more power to regulate itself.
Mr Swathe noted that although the Committee could not enforce private sector and business cooperation, this cooperation could be lobbied through incentives. However, he cautioned that the government’s track record with incentive schemes had not been particularly good, and stated that in the case of the National Skills Development Strategy, the Sector Education Training Authorities had struggled to get cooperation from businesses in paying the Skills Development Levy.
Ms Mokoto stated that perhaps the Committee could create a Youth Empowerment Charter, similar to the Black Economic Empowerment Charter, where the private sector would have to submit reports about how it had empowered the youth. She noted however, that this development would probably only be possible after the principles and objectives of the Bill had been consolidated and entrenched.
Mr Swathe agreed with Ms Mokoto that the Committee would have to wait for the legislation to mature before adding a Youth Empowerment Charter.
The Chairperson suggested that this particular proposal should be reconsidered at the next meeting, when the Committee would begin to go through the Bill clause by clause, after the necessary changes as agreed upon in this meeting, had been made.
Adv Beja noted that there had been general concern raised among the public representatives about omissions from the Bill in respect of the power of the Agency, the removal of the CEO, and the functions of the Board.
The Chairperson asked the legal team to do some research into these issues, and determine whether there were critical gaps within the Bill.
The meeting was adjourned, to continue the following day.
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