National Health Laboratory Service Amendment Bill: deliberations

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07 March 2018
Chairperson: Ms M Dunjwa (ANC)
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Meeting Summary

The Committee deliberated on the National Health Laboratory Services (NHLS) Amendment Bill. The national Department of Health (DOH), along with Parliamentary Legal Services, was present to answer questions on proposed amendments.

The Committee debated the removal of section 7(d) under Substitution of section 7 of Act 37 of 2000 – this concerned three representatives of provincial departments forming part of the NHLS board. Most Members agreed that three provincial representatives would not be able to represent nine provinces or have the capacity to do so. These Members were also concerned about accountability of these representatives and that mechanisms were needed to monitor the representatives. It was noted the NHLS was a national service and so accountability could not be diverted to provinces. Related to this, the Committee debated the governance approach of the board.

Members also deliberated on the composition of the board and arguments were heard for labour representation on the board. Some Members felt the stance of the Department on including labour representatives on the board was inconsistent and this confused the Committee. It was said that the role of labour in governance was not to be undermined as labour offered insight into the interests of workers and labour was highly skilled and so could positively contribute to the board. Other Members argued the focus of the board was on service delivery, labour would complicate issued addressed by the board, technical expertise was required and there should be minimum criteria for those serving on the board. It was stressed the focus was on governance and not representation.

The Committee observed various errors in terminology of the proposed amendments to which various redrafts were asked, specifically 7(d) and 18(a). The Committee agreed the redrafted sections would be deliberated upon in a second round.  Members proposed the funding model of the NHLS be reworked by the Department - Members proposed a hybrid system be designed and that 80% of the funding of the NHLS be provided by Parliament.

Members noted that the appointment of the Chief Executive Officer (CEO) of the NHLS board, along with his remuneration, was not included in the amendments. The Committee also discussed the power of the Minister to dissolve the board and appoint new members – Members were concerned about accountability of the Minister in this regard. it was agreed the section dealing with vacancies on the board, and interim measures related to this, would be redrafted.

Meeting report

The Chairperson noted that apologies were received for Mr W Maphanga (ANC), Ms R Adams (ANC), Mr S Jafta (AIC) and Mr A Shaik Emam (NFP). She confirmed, as per the Committee’s meeting agenda for the day, that deliberations on the National Health Laboratory Service (NHLS) Bill would begin. She implored Members to be vigilant and efficient.

Amendment of section 1 Act 37 of 2000

The Chairperson asked for comments on the section.
No comments were received.

Amendment of Section 3 of Act of 2000
The Chairperson asked for comments.
No comments were received.

Amendment of Section 4 of Act 37 of 2000
The Chairperson asked for comments.
No comments were received.

Amendment of section 5 of Act 37 of 2000
The Chairperson asked for comments.
No comments were received.

Substitution of section 7 of Act 37 of 2000: Substitution of the Board
Ms C Ncube-Ndaba (ANC) spoke on subsection 7(d) – the subsection provided for three representatives of provincial departments to be part of the NHLS board. She asked if the three representatives of provinces would be able to represent all nine provinces. She proposed that the three representatives were not necessary. She asked what value the three representatives were going to add to the board of health professionals and proposed to delete section 7(d).

Ms L Wilson (DA) disagreed - provincial members should be kept on the board.

Mr A Mahlalela (ANC) agreed with Ms Ncube-Ndaba. He questioned how three individuals had the capacity to represent nine provinces and questioned their accountability. He implored that mechanisms to monitor these three representatives be put in place. This section of the original Act must be retained and section 7(d) as proposed must be removed. The NHLS was a national service and that accountability was not to be diverted to provinces. Accountability of these representatives should lie with the Minister and DOH.

Ms Ncube-Ndaba stated that one representative from organised labour of the majority union needed to be included to the board.

Dr P Maesela (ANC) disagreed. He stated that claiming a representative from the majority was problematic as majorities change. He argued that organised labour should not be included on the board as the focus of the board was service delivery. Furthermore labour would complicate issues addressed by the board.

The Chairperson urged that the word ‘labour’ be used instead of ‘organised labour’ and asked the Department to share with the Committee the motivation for the omission of organised labour from the composition of the board.

Dr Yogan Pillay, DOH DDG: HIV‚ TB‚ and Maternal and Child Health Programmes, stated that the board was a technical board. Its function was not to acquire representatives from provinces or labour. Its focus was running the NHLS. The board was accountable to the National Minister. Provincial participation was problematic but provinces should be included to offer technical expertise. The wording of representatives was problematic as these representatives would not be accountable to the provinces, from where they come, but to the Minister. The function would not be to represent their respective provinces.

The Chairperson questioned where accountability of these representatives would lie and asked how the Department arrived at the number of three representatives.

Dr Pillay stated that the board was reappointed by the Minister and its accountability would therefore be to the Minister. He asked for the Parliamentary Legal Services’ interpretation to assist in his argument. The provincial representatives would represent users of the NHLS as individuals as opposed to as provincial representatives as stated in the amendments.

Dr S Thembekwayo (EFF) said that terminology of clause7(d) needed to be revised - the wording used in the proposed amendments was contradictory to what the DOH was arguing.

Mr T Khoza (ANC) stated that these representatives would still come from provinces which is contradictory to what is proposed by the Department.

Dr Maesela recommended these representatives be there to represent the nation.

Ms Ncube-Ndaba supported Mr Mahlalela. Provincial representation could be covered from section 7(e) and then section 7(d) could be removed. She noted that organised labour was included within the principle Act and questioned why it was removed on the amendments. She was not convinced of this proposed amendment.

Ms Anthea Gordon, Senior Parliamentary Legal Advisor, stated that the intention and utility of the provincial representatives should be clear.  She clarified that within the wording of section 7(d) a corporative governance style was implied.

The Chairperson stressed that the Committee must debate the representative or corporative governance style approach to be taken by the board.

Dr Pillay clarified the purpose was to strengthen governance and funding mechanisms. He stressed that the Bill focused on corporative governance. He acknowledged that the wording of section 7(d) should replace“representatives” with “members”. The National Health Council (NHC) agreed that three members stemming from provinces were adequate to fulfil their duties. Regarding organised labour, the board was a governance board and not an interest board which is why labour was removed.

The Chairperson stressed that the purpose of the Bill was to improve governance and asked Members if the board should adopt a representative or cooperative governance approach. All terminology regarding “representatives” needed to be revised.

Dr Maesela stated that the discussion was focused on constituting a board and not representatives. Technical expertise was needed on the board and not ‘cleaners’. A minimum criterion needed to be added for approving those serving on the board.

Ms Ncube-Ndaba stated that labour was being undermined by being called sweepers. She argued for 7(d) to be removed and that labour be included in amendments.

Ms Wilson agreed that section 7(d) be removed. She disagreed that organised labour be included – the focus was on governance and not representation.

Dr Thembekwayo agreed that one representative from organised labour should be included.

Mr Mahlalela agreed that 7(d) was to be deleted. He added that previous representatives from the DOH, appearing before the Committee, did not have objections to the inclusion of labour. The Department was inconsistent on its stance on labour which was confusing the Committee. The role of labour in governance was not to be undermined - labour offered insight into interests of the workers and this representation was therefore essential.

Dr Pillay responded that the Department was speaking to the content of the Bill.

Dr Maesela apologised for implying that all labourers were cleaners. He stated that a board was not to represent a sector but to manage the NHLS.

Ms Wilson stated that the National Education and Health Allied Workers Union (NEHAWU) did not propose labour be included when it was consulted – the Union understood the board’s function is governance not representation.

Mr Mahlalela stated that NEHAWU did raise the matter during consultations. He added that NEHAWU questioned why organised labour was not included. Representatives of the DOH were not present when NEHAWU made this input.

The Chairperson reminded the Department that in prior initiatives of the Department, various organisations were included - members of labour were highly skilled and would be able to contribute to the board.  She asked the Department to be coherent in its responses as it was causing confusion which would create problems for the Committee. Worker representatives were essential in ensuring that the Department fulfil its governance mandate. She closed the debate on the topic of 7(d) and said that another round of deliberations would take place.

Amendment of Section 8 of Act 37 of 2000
Mr Mahlalela stated that 7(e) was missing.

Ms Ndaba pointed out where the clause was in the document.

Mr Mahlalela added that 7(d) was to be removed as agreed on by the Committee in the previous discussion.

Dr Pillay pointed out that section 7(d) referred to the old Act.

Mr Mahlalela added that 7(d) was underlined which referred to the proposed amendments.

Dr Pillay was confused and did not understand that section 7(d) was removed.

The Chairperson clarified the removal of 7(d) as discussed under section Substitution of section 7 of Act 37 of 2000 on Substitution of the Board.

Substitution of section 9 of Act 37 of 2000
Mr Mahlalela stated that 7(d) was to be removed as discussed earlier.

Amendment of section 10 of 37 of 2000
Mr Mahlalela asked why only two meetings could be missed. This number had changed from three in the principle Act to two in the Bill.

Mr Vishal Brijlal, DOH Advisor, stated that there were only four meetings per year. The number of meetings allowed to be missed was adjusted to improve governance and accountability of board members.

Insertion of section 10A in Act 37 of 2000: Powers of Minister to Dissolve the NHLS Board
Mr Mahlalela asked if his understanding of the clause was correct which stated that the Minister may dissolve a board and then have power to appoint new members.

Ms Ncube-Ndaba asked if the relationship between the Minister and the board members had broken down, hypothetically, why the Minister had the power to dissolve the board. She asked about the possibility of the board being right and the Minister wrong in such a situation

The Chairperson stated the word “may” was central to the clause.

Mr T Nkonzo (ANC) said that the clause was included for the possible scenario of a breakdown amongst members, the Minister would then have the power to intervene. He identified issues (b) and (c) within the clause.

Dr Maesela stated that Parliament was to keep the Minister accountable to avoid unnecessary dissolving of the board.

Dr Pillay asked Parliamentary Legal Services to whom the Minister was accountable. In relation to subsection(5) he added that this clause was to add to continuity of the board.

Ms Gordon stated that in subsection (2), the Minister was to comply with the Promotion of Administrative Justice Act, 2000, and that this would ensure rationality of actions by the Minister. On subsection (5) she agreed with the Chairperson that the word “may”was central to the Minister’s powers in dissolving the board.

Amendment of section 11 of Act 37 of 2000: Voting
Dr Maesela, on section 10(b), stated that if it was not correctly done, the tyranny of the majority would be problematic for decisions. He added votes could be lobbied.

The Chairperson clarified that the clause did make provision for this by including “casting votes”.

Ms Ncube-Ndaba spoke to the number of 15 votes and asked for it to be corrected to 12.

Ms Gordon confirmed the Chairperson’s interpretation.

Amendment of section 13 of Act of 2000
The Chairperson asked for comments.
No comments were received.

Insertion of sections 13A and 13B in Act 37 of 2000
The Chairperson asked for clarification on subsection (5) as there was confusion regarding “must” and “may”. The terminology of “must” was used in 13A (1) where “may” was used in 13A(5). This resulted in confusion as to the powers of appointing a Chief Executive Officer.

Dr Maesela stated that there were legal implications.

Ms Gordon agreed. She added that including the word “must” alters the outcome to a predetermined outcome.

Dr Maesela questioned the vacancy of the CEO and why the Minister had to be approached. Why could the board not handle the matter internally?

Ms Kamy Chetty, DOH Acting Chief Executive Officer, replied that it was due to administrative protocol.

Dr Maesela argued that it was the Minister who had the responsibility of appointing members. Any alternative appointments would therefore not be in accordance with the primary Act.

Mr Brijlal indicated that the board had to consult the Minister but in the interim, the matter could be handled internally.

Mr Mahlalela found that vacancy does not imply a person being abroad or sick - this would be handled as an interim appointment.

Mr Brijlal explained that if the DOH did not capture its intent correctly, the clause was open to manipulation.

Ms Gordon proposed that subsection 6 be split and redrafted as there were two scenarios at play, one being a scenario of a vacancy and the other of an interim appointment.

The Chairperson concluded that the Parliamentary Legal Services should craft new amendments.

Adv Micro Maebelo, DOH Director: Legal Services, on 13A (6), stated that the board designated a member of the board to act as CEO.

Amendment of section 18 of Act 37 of 2000
Mr Mahlalela asked how the proposed amendment differed from the principal Act. He specifically wanted clarity on how the change to “fees collected” changed the funding mechanism.

Ms Ncube-Ndaba proposed that the funding model be reworked by the Department.

Dr Pillay stated section 18 within the principle Act, and amendments, does not provide instruments to ensure financial sustainably. The Department was in consultation with the Minister. The outcomes of these consultations would result in proposed wording which would enable the Minister to ensure sustainable funding and mechanisms are available.

Mr Mahlalela asked how 18(c), from the principle Act, was different from what was proposed by the Department.

Dr Pillay explained that the difference was that the NHLS was to be paid directly by Parliament instead of being paid by provinces for services rendered.

Mr Mahlalela questioned what the difficulty was in implementing 18(c) and how the proposed changes would differ.

Mr Brijlal replied that currently provinces pay the NHLS. The proposed change was a direct transfer payment from Parliament to the NHLS instead of rerouting monies via provinces. The problem of the principle Act was where the money was located.

The Chairperson asked what the challenges were in the current Act regarding funding and charges by provinces.

Substitution of section 20 of Act 37 of 2000
Mr Mahlalela stated that section 18(c) was not to be removed but that 18(a) was to be amended. What was the difficulty in appropriating money to the NHLS at a national level? How did section 20 in the principal Act differ to the proposed section 20? He remarked that provinces were charged for services but did not pay. He proposed that a hybrid system be designed and that 80% of the NHLS funding be provided by Parliament.

Ms Ncube-Ndaba found this to be a policy shift. She proposed that the Department rework the proposed sections of 19 and 20 and that a new financial model be drafted.

Ms Chetty asked Parliamentary Legal Services whether the Department had the legal means to change this.

The Chairperson stated that sections 18 and 20 would be more appropriately placed under section 16 as it dealt with funding.

Dr Pillay said section 20 was one of the biggest problems faced within the amendments. There were still fees involved for provinces. This was curbed by the new language of the amendment which was not clear. He agreed that this was to be reworked as proposed by Mr Mahlalela.

Repeal of section 25 of Act 37 of 2000
Mr Mahlalela supported the repeal of the section.

Amendment of section 27 of Act 37 of 2000
The Chairperson clarified the amendment of the addition of “and regulations”.

Transitional Provisions
The Chairperson asked for input and comments from the Committee.
No comments were received.

Short title and commencement
Mr Mahlalela was under the impression that the amendment would introduce the CEO. He asked about the process of appointment and determination of the CEO which was not included.

Dr Pillay acknowledged that the CEO’s salary deliberation was not included.

The Chairperson asked that this to be reworked.

Dr Pillay supported that the salary remuneration process be included in the amendments.

Mr Brijlal added within the principal Act, the board determined remuneration of the CEO with no consultation with the Minister. He agreed that the proposed amendment be added.

Ms Chetty proposed that remuneration of the board be added in the redraft.

Ms Gordon added that on Short title and Commencement, the date “2017” be changed to “2018”.

Ms Chetty proposed that the legal advisors please amend the principle Act on page 24, section 28, subsection 2. She proposed that the Bill be harmonised as the bodies mentioned was to be removed from NHLS’ mandate.

The Chairperson thanked the Members and DOH for their commitment and input. She asked Parliamentary Legal Services to send the adjusted amendments deliberated on to Members in a timely manner.

The meeting was adjourned.


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