Human Sciences Research Council (HSRC) Bill [B16-2007]: Department response to submissions
SCIENCE AND TECHNOLOGY PORTFOLIO COMMITTEE
28 August 2007
HUMAN SCIENCES RESEARCH COUNCIL (HSRC) BILL [B16-2007]: DEPARTMENT RESPONSE TO
SUBMISSIONS
Chairperson: Mr E Ngcobo (ANC)
Documents handed out:
DST Presentation: research and comments on Clause 5(3) of the HSRC Bill
[B16-2007]
Summary of Amendments agreed to by the Committee
Submission to Public Hearings by National House of Traditional Leaders
Comments on the HSRC Bill from the HSRC
Human Sciences Research Council Bill [B16-2007]
Audio recording of meeting
SUMMARY
Following the mandate from the Public Hearing on the Bill, the Department
of Science and Technology presented their motivation for changing Clause 5(3)
concerning the role of the Portfolio Committee in the appointment of the HSRC
Board. In a meeting that was intended to complete the amendments to the Bill,
the discussion of this one amendment took up all the time. Members deliberated
the option of ‘in consultation’ or ‘after consultation’ and various means of
accountability of the board. Legal advisors gave their understanding of the two
phrases, and representatives from the DST and the HSRC motivated their desires.
It was concluded that this was a weighty matter that needed further
consideration, and that the Chairperson was to take
the question to the Chairpersons’ Forum. The final decision on the amendment
was postponed to the next meeting of the Committee once feedback from the
Chairpersons’ Forum, and an expanded Clause 5(3) from the Department, were in
hand.
MINUTES
Presentation by DST on their research and comments on Clause 5(3) of the Bill
Dr Anusha Lucen, DST Deputy Director General, said that during the public
hearings there was agreement on all sides to the proposed amendments to the
Bill, except for one outstanding issue: Clause 5(3) - the role of the Portfolio
Committee in the appointment of the HSRC Board. As there were no guidelines in
the Bill concerning this matter, the Department had researched what practices
were used in other government departments. She concluded, after reviewing four
similar pieces of legislation, that the precedent was for boards to be
appointed by the Minster, after consultation with the Committee. She repeated
the DST and HSRC’s desire for the HSRC Bill to reflect the same legislation as
that in practice in other sectors.
Discussion
The Chairperson thanked the DST delegation for doing the work asked of them
and called for discussion by the Committee.
Mr S Farrow (DA) said that he is in favour of open and transparent processes,
such as the one outlined in the presentation. However, as parliamentarians have
an oversight role, he wanted to ensure that there was a stipulation in Clause 5
that allows the nominations for the board to be scrutinised by the Committee.
Mr A Ainslie (ANC) agreed, saying that he wished to
see a greater role for Parliament in this matter. He asked for a copy of the
research that the Department undertook, and was surprised that there was no
mention of the National Research Foundation’s process, as they excluded
completely the input and role of the Portfolio Committee.
The Chair continued with the same sentiment, wondering why Parliament was
excluded from its oversight role within its Department’s entities. He said that
to fully adhere to this role, a mechanism must be devised that was truly democratic
and consistent. He said that what the HSRC proposed last week was brilliant,
and this was a matter that he would raise in the Chairperson’s Forum today.
Dr Lucen agreed with the Chair and said that the key reason they wanted to
harmonise the legislation was to be consistent. The only legislation that
specifically allowed a Minister to consult with the Portfolio Committee was the
NRF legislation, and that had been subsequently removed to make it consistent
with all other practices. To give the Portfolio Committee a sense of what was
done with the other science councils, Dr Lucen
detailed the steps taken with regard to appointing a board. These steps were
outlined in the Department of Public Service and Administration (DPSA) manual
and include an advisory panel that facilitated the process, advertising and
short-listing according to the legislation and requirements, a closed meeting
between the Chair and the Minister concerning performance reports, and finally
the short list coming before Cabinet. She reiterated that the only instance
where this was different was the NRF case where they were required to get the
Portfolio Committee to help with the short-listing, which they did. To respond
to Mr Ainslie, she repeated that this extraordinary clause had now been removed
to be consistent with all other science councils.
Mr Ngcobo agreed that consistency was needed. However, because boards were the
engines that make councils work, this was an important matter and there had to
be a well thought out process to make it work. He said that it was important
for Parliament, and not just a panel, to see the short list for board
nominations.
Mr S Dithebe (ANC) thought that it was a good idea for the Chair to raise the
matter at the Chairpersons’ Forum, as that would create a good solution for the
long term. He cautioned that this legislation needed to be finalised though,
and the legislation could not be informal or intelligible. He asked what the
Committee meant by wanting a process of consultation, and that he would prefer
to follow the ‘after consultation’ wording so as to keep functional and
executive powers separate, as the DST presentation described.
Mr Ainslie replied and said that, given the NRF experience, he would be very
hesitant to rush the decision and choose ‘after consultation’. He wanted rather
time to debate the options.
Mr B Mnyandu (ANC) asked why the Constitution was not being used to defend
these clauses, instead of precedent. Precedent was subject to correction. He
also asked that the state law advisors would speak to the difference between
‘in consultation’ and ‘after consultation.’
Mr Farrow stated that if current legislation was looked at, there were
constitutional imperatives of transparency and openness that must be followed,
and he wished the legislation would spell out in more transparency and
fullness, the process of appointing a board. He also asked who was accountable
to the Department during this process, or whether there was an ex-officio
person to make sure the board was doing their job properly.
Dr Lucen assured the Committee that there were sufficient structures in place,
as outlined in the regulations, and that they had just recently established
forums to ensure good governance on boards. There was no ex-officio position as
there were DST people to visit the HSRC and boards regularly.
Mr Dithebe said that although oversight and accountability were very important
concepts in our democracy, separation of powers was also important. He said
that as ‘in consultation’ had many legal ramifications, the Committee would not
wish to use ‘in consultation’ but would want an ‘after consultation’ process.
Ms Hala Sangoni, State Legal Advisor: Department of Justice, said that the
issue under debate was ‘consultation.’ She wanted to agree with Mr Dithebe that
the Committee wanted to write ‘in consultation’ when the process they wanted
was ‘after consultation.’ She also informed the Committee that both ‘in’ and
‘after’ were constitutional.
Mr Ngcobo explained that the Committee was only exercising what it thought was
its parliamentary duty, and it wanted to add value to the direction of the
nation’s science systems, and it had to find a way to do that.
Mr Dithebe said that this exercise might very well be ‘after consultation’ and
wished to avoid an instance whereby they arrogate to themselves administration
powers.
Mr Ainslie expressed that, although his only experience was with the NRF, there
were other boards that were in serious trouble and the Committee could not
stand idly by while these problems were made.
Mr Ngcobo stated that what Mr Ainslie was saying was exactly his point, and
that this Committee had a role to play in this process.
Mr Mnyandu wondered whether some collective understanding could be reached. He
said that, in his mind, the words ‘after consultation’ left too much to chance.
He was not interested in the appointment process, but wanted to make sure the
Portfolio Committee had a say in the operations.
Dr Lucen proposed a way forward that would bring consistency - that members of the Portfolio Committee could be elected to
serve on the advisory panel that assisted the Minister in appointing the board.
This would allow involvement from the start, without the Committee running the
entire process on their own.
Mr Ngcobo did not think that this proposal would work.
Dr Lucen stated that ‘in consultation’ was problematic because, if every member
did not agree, then the whole process stalled.
Mr Farrow wanted the process spelled out more clearly in the Bill, which would
cut down the problems and fears that they had about the process. The
legislation must state ‘after consultation’ provided that they were satisfied
with the process spelled out in Clause 5.
Dr Lucen informed Mr Farrow that all the additions he required were in the
accompanying regulations.
Mr Farrow pointed out that the Minister sees and approves the regulations, but
Parliament does not. He wished that he, and the applicants, would see these
provisions in the Bill
Dr Lucen said that it could be added into the Bill.
Ms Koleka Beja, Parliamentary Legal Advisor, contributed her experience and
said that if the phrase ‘in consultation’ was used, it was time consuming, and
that another solution was rather to elect one or two members onto the Minster’s
advisory panel, as Rule 202 of the National Assembly permits.
Mr Dithebe said that, in his mind, Mr Mnyandu agreed with him and, legally
speaking, assumes ‘in consultation.’ He believed that to tighten the process,
they must not use ‘in consultation’, but had to use ‘after consultation.’
Mr J Blanche (DA) suggested that the Committee make a law that officials could
administer without the Committee. He suggested that the Chair talk to the
Chairpersons’ Forum and see what they say. He added that he preferred ‘after
consultation.’
Prof I Mohamed (ANC) expressed his shock at the backward and forward nature of
the discussion, stating that there was not much difference between the two
positions.
Ms B Ngcobo (ANC) agreed with the Professor.
Mr Arthur Maisela, Legal Advisor, Department of Science and Technology, quoted
from the Van Rooyen ruling and said that ‘in’ means ‘concurrence with’ and that
‘after’ means that there was consultation and then a decision was be taken in
good faith.
Ms Sangoni added that these two phrases had nothing to do with
constitutionality.
Mr Ngcobo highlighted the three options facing the Committee: either they
processed this legislation for the sake of expediency; or he took the matter to
the Chairpersons’ Forum, or they established their own mode of process that was
constitutionally compliant.
Ms Olive Shisana, CEO: Human Sciences Research Council responded to the
discussion. She answered the question of accountability of the board to
Parliament by saying that the shareholders’ compact was sufficiently entrenched
in the way that the board was functioning. It was signed every year, and
reports were given quarterly to the Minister as to the board’s work.
Mr Ngcobo stated that the meeting had still not arrived at a conclusion about
‘consultation’ and asked for final thoughts.
Mr Dithebe said that after Mr Maisela had read the definitions from the Van
Rooyen judgement, it was crystal clear that if the Committee chose ‘after
consultation’ then the Minister would carry out their responsibilities in good
faith, and, in hindsight, ‘in consultation’ would bring all sorts of problems.
Mr Ainslie disagreed, saying that for him it was not crystal clear and he had
not had time to digest the arguments nor make up his mind completely. He reminded
the Chair of the important change to Clause 5 that Mr Farrow had requested and
asked that the Department did some work and come back to the Committee with the
changes. Guidelines from the Chairpersons’ Forum would also be very helpful.
The Committee agreed to postpone the decision until the 4 September where they
would take into consideration all the inputs, including that from the
Chairpersons’ Forum and refine the final version. It was noted that the Bill
needed to be finalised by 11 September for debate in the National Assembly.
Dr Lucen then asked what was required of the Department for the 4 September
meeting on the HSCR Bill.
Mr Ngcobo replied that members had already spelled out the proposed amendments
such as the requirements for the board and accountability.
Ms Shisana drew the Committee’s attention to Clause 5(4)(a)
and (b) of the Bill that clearly spelled out the skills needed. She added that,
as the HSRC did an annual report that was audited, and no other Section 3
public entities had these additions in their legislation, all that was left to
decide on was ‘in’ or ‘after’ consultation.
Mr Blanche repeated that he wanted something more appropriately drafted that
spelled out what was being looked for in the board. Mr Farrow agreed.
The meeting was adjourned.
