FROM: MS R MATHABATHE: LEGAL ADVISER

TO: CHAIRPERSON OF THE PORTFOLIO COMMITTEE ON SCIENCE AND TECHNOLOGY, MR NGCOBO, MP

DATE: 30 AUGUST 2007

SUBJECT: HUMAN RESEARCH COUNCIL Bill, 2007

MEMORANDUM

1. You requested our office to furnish a memorandum relating to the Human Science Research Council Bill [B16-2007] ("the Bill), specifically on:

1.1 The role of the National Assembly in the appointment and removal of members of the Board of the Human Science Research Council;

1.2 The involvement of members of the public in the appointment of the members of the Board;

1.3 Continuity in membership;

1.4 Some experts being appointed to the Board; and

1.5 Parliament's oversight role.

Appointment and removal of members

2. The Bill as it currently stands does not provide for a role for the National Assembly in the appointment and removal of members of the Board.

3. The Portfolio Committee on Science and Technology ("the Committee") would like the

National Assembly to playa role in the appointment and removal of members. However, the Committee does not want to be involved in the. administrative side of the appointments and removals.

4. I suggest that clause 5(3) be amended to require that the Minister appoint the members "in consultation" with the National Assembly.

5. The effect thereof is that the Minister and National Assembly, which will be acting through the Committee, will have to agree on the appointments and the Committee will not be involved in the administration thereof.

6. If the Committee should however decide to provide for the Minister to appoint members "after consultation" with the National Assembly, the effect thereof will be that the Minister will not require the concurrence or agreement of the National Assembly for the appointments. The Minister may consider the National Assembly's recommendations but go against them if he does not agree with them.

7. Insofar as the removal of members is concerned, I suggest that the clause 5(7) of the Bill be amended to require the Minister to inform the National Assembly of his decision to remove and the reasons thereof.

Public involvement

8. In terms of clause 5(3) the Minister appoints members in the prescribed manner which must be transparent and fair.

9. It can be read into this provision that the Minister is required to, when he makes regulations, ensure public involvement.

10. The Committee may however consider expressly stating the requirement for public involvement and the extent of the involvement of the members of the public as per my suggestion in the attachment.

Continuity in membership

11. The Committee prefers that there is continuity in membership.

12. In order to ensure that there is continuity, I suggest that terms of members not run concurrently so as to ensure that when some members' term lapse, there will be members to continue to serve with new members.

Experts

13. The Committee requires that there be some human sciences experts on the Board.

14. Clause 5(4)(a) provides for the appointment of experts in the field to the Board.

Oversight and accountability of the Board

15. The Council if listed as a public entity in Schedule 3 of the Public Finance Management Act, 1999 ("the PFMA). For that reason the Council is financially accountable to Parliament.

16. In terms of section 49 of the PFMA the Board is the accounting authority subject to the responsibilities set out in sections 50 to 55, including submitting the annual report, audited financial statements and the Auditor-General's report on these statements to Parliament.

17. Moreover, the Constitution in section 55 (2)(b)(ii) empowers the National Assembly to maintain oversight over any organ of state. Section 56(b) further empowers the National Assembly or any of its committees to require any person or institution to report to it.

18. It is my view therefore that the Board will be accountable to the National Assembly through the Committee and the Committee may exercise oversight over the Council.

19. However, if the Committee prefers for such role to be stated in the Bill, I include a suggestion in the attachment.

Conclusion

20. I attach hereto suggested amendments.

REFILWE MATHABATHE: PARLIAMENTARY LEGAL ADVISER