PRESENTATION TO THE AD HOC COMMITTEE ON VACANCIES IN THE COMMISSION ON
GENDER EQUALITY: 14 MARCH 2006
1. Purpose
The Ad Hoc Committee requested a briefing from the Department on the vacancies
to be filled in the Commission on Gender Equality.
2. Introduction
The Commission on Gender Equality (Commission) is one of the seven state
institutions, established in terms of section 181 of the Constitution of the
Republic of South Africa, 1996 (Constitution), supporting constitutional
democracy in the Republic of South Africa. The Commission is one of the three
Chapter 9. Institutions, which are functionally linked to the portfolio of the
Department of Justice and Constitutional Development.
Section 187 of the Constitution provides for the powers and functions of the
Commission. The Commission has the power to monitor, investigate, research,
educate, lobby, advise and report on issues concerning gender equality. The
Commission has as its functions to promote respect for gender equality and the
protection, development and attainment of gender equality.
The Commission has additional powers and functions prescribed by national
legislation mainly the Commission on Gender Equality Act, 1996 (Act No. 39 of
1996) (Act).
3. Background
The majority of the Commissioners of the Commission, which is 7 out of 11,
Chairperson excluded, were appointed with effect from 19 April 2001. Each of
these Commissioners was appointed for a period of five years. Thus their terms
of office lapse on 18 April 2006.
The remaining four Commissioners were appointed with effect from 1 May 2001.
The Commissioners concerned were Ms B T Ngcobo, Ms M F Tlake, Dr. S M Meintjies
and Ms S T N De Bruyn. Their term of office was as follows:
(i) Commissioners Ms B T Ngcobo and Ms M F Tlake were appointed for a period of
four years; and
(ii) Commissioners Dr. S M Meintjies and Ms S T N De Bruyn for a period of five
years.
In April 2004 two Commissioners resigned from the Commission. These
Commissioners were each appointed for a term of office of five years with
effect from 19 April 2001. The term of office in respect of these Commissioners
will lapse on 18 April 2006.
In September and October 2004 two more Commissioners resigned from the
Commission. They were both appointed for a term of office of four years with
effect from 1 May 2001. The term of office in respect of the two commissioners
lapsed on 30 April 2005.
The Speaker of the National Assembly has, following each set of resignations,
requested the Minister for Justice and Constitutional Development (Minister) to
call for proposals in terms of section 3(3) of the Act.
The first call for proposals from interested parties in terms of section 3(3)
of the Act was on 10 December 2004, in the Government Gazette No. 27047 and in
the media. The second call for proposals from interested parties was on 1 July
2005 in the Government Gazette No. 27712 and in the media.
The Department submitted all the proposals received to the Office of the
Speaker of the National Assembly to take the appointment process forward.
It came to the attention of the Department that the term of office of members
of the Commission will lapse on 18 April 2006 and 30 April 2006.
The Minister called for proposals from interested parties by notice in the
Gazette No. 28519 and Gazette No. 28562 and in the media.
The Department will submit the proposals received to the Office of the Speaker
of the National Assembly in due course. The Minister has recommended that the
term of office for the new Commissioners should be up to 30 September 2007,
pending the outcome of the review of the Chapter 9 Institutions. This is also
the date on which the term of office of the Chairperson lapses. Should the
review process not be completed, section 3(7) of the Commission on Gender
Equality Act, 1996 (Act No. 39 of 1996) (the Act), may be invoked. This section
provides that any person whose term of office has expired may be re-appointed
for one additional term.
At the outset, as you are aware, we wish to point out that the Department does
not, in law, have the power to prescribe the term of office for the
Commissioners of the Commission on Gender Equality (the Commission). This
prerogative remains with the President, on the recommendation of the National
Assembly, as contemplated in section 3(2) and (4) of the Commission on Gender
Equality Act, 1996 (the Act), read with section 193(4) and (5) of the
Constitution of the Republic of South Africa of 1996 (the Constitution). As the
Commission falls within the line-function of the Department, we merely process
the advertisement calling for nominations for appointment. It is in this
context that the Department has made the recommendation, for the reasons set out
below,
Cabinet has requested the Minister for Public Service and Administration to
conduct a review of Chapter 9 Institutions dealing with, amongst others,
(a) the current and intended mandates of such institutions suitable for the
South African environment; and
(b) the possible rationalisation of remuneration scales.
The Department of Public Service and Administration has commenced with this
review.
The review of the Chapter 9 Institutions may have financial implications for
Government, especially if the outcome of the review contains recommendations
that may require the restructuring of the Chapter 9 Institutions.
The Department, therefore, deemed it necessary to act cautiously and
conservatively in relation to these appointments, because we do not want to
find ourselves in a situation of incurring unnecessary future expenditure,
especially if we are all fully cognisant of Cabinet's request for such a review
of the Chapter 9 Institutions. In fact, the concurrent expiry of the terms of
office of all the Commissioners, except for the Chairperson, provides a very
good opportunity to review the Chapter 9 Institutions in a comprehensive
manner, whilst allowing for new appointments of Commissioners for a shorter
period of time to allow for the finalisation of the review.
The Department also wishes to point out that the term of office recommended in
the advertisement corresponds with the date on which the term of office of the
Chairperson of the Commission lapses, namely 30 September 2007. Should the
review process not be completed by that date, section 3(7) of the Act may be
invoked. This section simply provides that any person whose term of office has
expired may be re-appointed for an additional term.
The Department's recommendation takes into account the legal requirement of
section 3(4)(a) of the Act in that the Ad Hoc Committee may still recommend a
staggered expiry of the terms of office of the Commissioners within that period
(a period not exceeding 30 September 2007). It is thus within the Ad Hoc Committee's
mandate to recommend the appropriate terms of office complying with section
3(4) (a) of the Act.
Thus, taking these important factors into account, the term of office
recommended by my Department is only a recommendation to the Ad Hoc Committee
for consideration. The Ad Hoc Committee will, upon the conclusion of the
interview process, make its recommendations as specified in the relevant
provisions of the Act.
4. Process for Appointment of Commissioners in the Commission
The following provisions of the Act are relevant:
" 3 Composition of the Commission
(1) Subject to section 119 (2) of the Constitution, the Commission shall
consist of a chairperson and no fewer than seven and no more than eleven
members, who shall
(a) have a record of commitment to the promotion of gender equality; and
(b) be persons with applicable knowledge or experience with regard to matters
connected with the objects of the Commission.
(2) The President shall, whenever it becomes necessary, appoint as a member of
the Commission a person
(a) proposed by interested parties as contemplated in subsection (3);
(b) nominated by a joint committee; and
(c) approved by the National Assembly and the Senate by a resolution adopted by
a majority of the total number of members of both Houses at a joint meeting:
Provided that if any nomination is not approved as required in paragraph
(c), the joint committee shall nominate another person.
(3) Before the members of the Commission are appointed the Minister shall
invite interested parties through the media and by notice in the Gazette to
propose candidates within 30 days of the publication of the said notice, for
consideration by the committee referred to in subsection (2) (b):
(4) (a) The members of the Commission may be appointed as full-time or
part-time members and shall hold office for such fixed term, not exceeding five
years, as the President may determine at the time of each appointment: Provided
that the term of office of the full-time members shall not expire simultaneously.
(b) No fewer than two and no more than seven members shall be appointed on a
full-time basis.
(5) The President shall remove any member from office if
(a) such removal is requested by a joint committeecontemplated in subsection
(2) (b); and
(b) such request is approved by the National Assembly and the Senate by a
resolution adopted by a majority of the total number of members of both Houses
at a joint meeting.
(6) The President may, in consultation with the Commission, appoint a part-time
member as a full-time member for the un-expired portion of that part-time
member's term of office.
(7) Any person whose term of office as a member of the Commission has expired,
may be re-appointed for one additional term.
(8) A member of the Commission may resign from office by submitting at least
three months' written notice thereof to Parliament unless Parliament by
resolution allows a shorter period in a specific case.
(9) (a) A Chairperson of the Commission shall as often as it becomes necessary
be appointed by the President and a Deputy Chairperson of the Commission shall
as often as it becomes necessary be elected by the members of the Commission
from among their number.
(b) When the Chairperson is not available, the Deputy Chairperson shall perform
the functions of the Chairperson.
Appointment follows occurrence of a vacancy. A vacancy in the Commission occurs
in terms of section 4 of the Act.
Section 4 of the Act provides:
"4 Vacancies in Commission
(1) A vacancy in the Commission shall occur
(a) when a member's term of office expires;
(b) when a member dies;
(c) when a members is removed from office in terms of section 3(5); or
(d) when a member's resignation, submitted in accordance with section 3(8),
takes effect.
(2) A vacancy in the Commission shall not affect the validity of the
proceedings or decisions of the Commission.
(3) (a) A vacancy in the Commission shall be filled as soon as practicable in
accordance with section 3(2).
(b) Any vacancy so filled shall be for the un-expired period of the term of
office in respect of which the vacancy occurred.
Section 3(8) of the Act provides that a member of the Commission may resign
from office by submitting at least three months' notice thereof to Parliament
unless Parliament by resolution allows a shorter period in a specific case.
General Provisions (ss 193-194 of the Constitution): 8193 Appointments
(1) The Public Protector and the members of any Commission established by this
Chapter must be women or men who
(a) are South African citizens;
(b) are fit and proper persons to hold the particular office; and (c) comply
with any other requirements prescribed by national legislation.
(2) The need for a Commission established by this Chapter to reflect broadly
the race and gender composition of South Africa must be considered when members
are appointed.
(3) The Auditor-General must be a woman or a man who is a South African citizen
and a fit and proper person to hold that office. Specialised knowledge of, or
experience in, auditing, state finances and public administration must be given
due regard in appointing the Auditor-General.
(4) The President, on the recommendation of the National Assembly, must appoint
the Public Protector, the Auditor-General and the members of
(a) the South African Human Rights Commission;
[Para. (a) amended by s. 4 of Act 65 of 1998.]
(b) the Commission for Gender Equality; and
(c) the Electoral Commission.
(5) The National Assembly must recommend persons
(a) nominated by a committee of the Assembly proportionally composed of members
of all parties represented in the Assembly; and
(b) approved by the Assembly by a resolution adopted with a
supporting vote
(i) of at least 60 per cent of the members of the Assembly, if the
recommendation concerns the appointment of the Public Protector or the
Auditor-General; or
(ii) of a majority of the members of the Assembly, if the recommendation
concerns the appointment of a member of a Commission.
(6) The involvement of civil society in the recommendation process may be
provided for as envisaged in section 59 (1) (a).