DEPARTMENT OF HEALTH'S PROPOSALS FOR CONSIDERATION BY THE PORTFOLIO COMMITTEE re: THP BILL

1. Clause 1- Definitions

(a) Definition of "member- in line 14, page 4- to delete Rand includes a member of a committee of the Council; It is our view that only members appointed by the Minister in terms of clause 7 are 10 be defined as such, excluding members of Committees appointed by the Council, sometimes on an ad-hoc basis. The definition in its current form will accord rights to persons who are not members of the Council, and this may lead to unintended consequences. See clause 12(5).

(b) To ensure consis1ency with the National Health Act, 2003, we propose that the definition of "Minister" in line 16, page 4 be amended to read “Minister- means the Cabinet member responsible for health;

(c) Definition of "traditional health practice" in line 39, page 4- citation of the Nursing Ad to be replaced with the new Nursing act, 2005 (Ad No 33 of 20(5).

(d) Insertion of the word “and'" after the definition of '"traditional tutor" in line 3, page 5.

2. Clause 4(2)- Establishment of Council

Considering that the actual process of appointing members of the Council will be commenced and concluded after commencement of the Act, it may be impracticable for a meeting to be convened within the said three months. The process of appointing the Registrar is another factor to be considered.

3. Clause 12- Quorum and procedure at Meeting

(a) Sub-clause (1)- the word "persons in line 2, page 9 to be substituted for "members”, so that only members as contemplated in clause 1 and appointed in terms clause 7,are able to form a quorum. The word -persons does not exclude anyone from being asked to sit in the meetings of the Council in order to form a quorum.

(b) Sub-clause (5) must be qualified with the insertion of the words “in meetings of the Council” in line 10 page 9.

4. Clause 18- Appointment of Registrar

(a) Sub-clause (1)- This may be unimpIemen1abIe considering that the appointment is in consultation with the Council, which invariably requires a meeting, and clause 4 empowers such registrar to convene the first meeting. It is proposed that the Minister be authorized to appoint the first registrar through a transitional provision in clause 51.

(b) Despite sub-clause (1), we propose that the performance agreement be between the Council and the registrar. This will be practicable for purposes of monitoring and evaluation of the registrar's performance and any other action incidental there1o.

5. Clause 19- Functions of Registrar

(a) Sub-clause (1)(c) insertion of the word “and" at the end of sub-paragraph (ii) in line 7, page 11.

(b) Sub-clause (2)(b~ insertion of the word “or" at the end of sub-paragraph (i) in line 15. page 11.

6. Clause 21- Application for Registration to Practice

(a) Sub-clause (2)(a)- insertion of the words “in the prescribed manner'" so that the application is as prescribed and not on any paper or form.

(b) Considering the definition of traditional health practitioner, it is invariably important to ensure that this clause is subordinated to clause 51, so that practitioners are not barred from registration on the basis of their lack of a certified" qualifications. In addition, most will not be able to provide such qualifications as they have learnt the ropes from their ancestors, etc. For purposes of implementation, it is accordingly cardinal to ensure registration of those currently practicing to ensure accountability and responsibility, without unnecessarily being pedantic on the requirement of "formal qualifications. The accreditation of learning institutions'" may also be a lengthy process.

7. Clause Removal from and Restoration to Register

We propose that sub-clause (1)(c) be deleted as it encroaches on the constitutional rights of practitioners. Other similar prescripts only require practitioners to inform the pertinent Council and keep up with their prescribed fees.

8. Clause 32- Entering and Search of Premises, Attachment and Removal of Documents

(a) Based on the judgement of the Constitutional Court matter of Magajane v Chairperson. North-West Gambling Board & Others. 2006 (10) BCLR 1133 (CC), substitute clause 32(1) to (4) of the following clause:

(1) An investigating officer carrying out an investigation in terms of this Act may request any person to

(a) produce to him or her any book document, electronic data or thing which such investigating officer on reasonable grounds believes to relate to the matter which he or she is investigating, and which such investigating officer on reasonable ground believes to be

(i) on any premises which are owned by or in the possession of or controlled by such person; or

(ii) in the possession of or under the control of or upon such person; and

(b) furnish such explanations to him or her as he or she may reasonably require in relation to any such book, document, electronic data or thing

(2) Subject to subsection (8), an investigating officer carrying out an investigation in terms of this section must apply to a magistrate or a judge for a search warrant for

(a) any premises on which the investigating officer on reasonable grolI1d believes one or more articles referred to in subsection (1) may be found; or

(b) any person whom the investigating officer on reasonable grounds believes to have in his or her possession or upon his or her person or under his or her control one or more articles referred to in subsection (1).

(3) The magistrate or judge to whom an application in terms of subsection (2) is made may issue the search warrant if it appears to him or her from information on oath that there are reasonable grounds for believing that any such article is

(a) upon or at any such premises within his or her area of jurisdiction; or

(b) in the possession or under the control of or upon any such person within his or her area of jurisdiction.

(4) A search warrant issued under subsection (3) must require the investigating officer and, if so requested by the investigating officer, any named police official or police officials who have agreed to assist in executing the search warrant, to seize the article or articles in question, and must to that end authorize such investigating officer and police official or police officials to search any person identified in the warrant or to enter and search any premises identified in the warrant and to search any person found on or at such premises.

(5) A search warrant issued under subsection (3) must be executed by day, unless the magistrate or judge issuing the warrant in the warrant authorizes the execution thereof by night.

(6) A search warrant may be issued under subsection (3) on any day and must be of force until it is executed or cancelled by the magistrate or judge who issued it or, is such person is not available, by a person with like authority.

(7) An investigating officer executing a warrant under this section must after such execution, upon demand of any person searched or who owns or is in possession of or controls any premise searched or whose rights in respect of any search or article seized under the warrant may have been affected hand to such person a copy of the warrant so executed.

(8) An investigating officer carrying out an investigation in terms of this section may without a search warrant issued under subsection (3) search any person or premises for the purpose of seizing any article referred to in subsection (1) if

(a) the person concerned consent to such search for and the seizure of the article in question;

(b) the person who may consent to the search of the premises consents to such search for and the seizure of the article in question or

(c) the investigating officer on reasonable grounds believes that a search warrant will be issued to him or her under subsection (3) if he or she applies for such warrant and that the delay in obtaining such warrant would defeat the object of the search.”

9. Clause 42- Fees charged by registered persons

We propose the substitution for clause 42(3) of the following:

(3)(a) The patient may within three months after receipt of the account contemplated in subsection (2), apply in writing to the Council for an analysis of such account and the amount charged.

(b) The Council must as soon as possible after receipt of the application, determine the said amount using the methodology specified in the National Health Reference Pricing List contemplated in the regulations made in terms of section 90(1) of the National Health Act, 2003 (Act No. 61 of 20(3). and notify both the traditional health practitioner and the patient in writing.

(c) The Council must, before making a determination in terms of paragraph (b) afford the traditional health practitioner concerned an opportunity to submit to the Council in writing the relevant factors to be considered by the Council in support of the amount charged and the services rendered.

10. Clause 44- Limitations in respect of unregistered persons

We propose the deletion of the words "for gain- in sub-clause (1), line 39 and sub-clause (2) line 44 both on page 20. The deletion will authorize the Council to take action against any person who performs any act regulated by this prescript whether it is for gain or not. If left as is then unregistered persons may submit that they do not require any payment and therefore there is no gain on their part, which will accordingly mean that Council cannot force them to register or prohibit them from continuing with their actions.

11. Clause 51-Transitional Provisions

We propose the insertion of the following sub-clauses and the current provision to be renumbered as sub-clause (1)

(2) Any person who is in practice when 1his Act comes into effect shall be exempted from the requirements of section 21 for a period of five years from the date of first proclamation of any section of 1his Act but such person must forthwith register with the Council in any of the categories contemplated.

(3) The Minister must make the regulations contemplated in section 47(1)(a) without consultation, but this provision automatically falls away once a Council is established in terms of this Act.

(4) For purposes of nomination and appointment of members of the Interim Traditional Health Practitioners Council. a '1raditional health practitioner'" shall be defined as any person who is currently practicing and has been so practicing in that field for a period of not less than five years and his or her fellow practitioners can confirm this experience.