Provincial Treasury on shortlisting of candidates to fill vacancies on WCGRB; Discussion on interview & public hearing process

Meeting report

The Chairperson proposed that the agenda be changed to allow for the result of the probity report to be done at the end of the meeting, and that it be closed off to the public due to the information being of a personal and confidential nature.

Mr D Mitchell (DA) supported this proposal, as did Mr A van der Westhuizen (DA).

The Chairperson said the probity report would be discussed at the end of the meeting, and would be closed off to the public.

Mr Anthony Phillips, Chief Director: Provincial Treasury, said that the meeting served as a way to take the Committee through the requirements of the Act in terms of the filling of vacancies to the Western Cape Gambling and Racing Board (WCGRB). It also served to highlight the processes which they followed in terms of the Act.

Western Cape Gambling and Racing Board application process

Ms Claire Horton, Economist: Provincial Treasury, said that the process for the appointment of Board members to the WCGRB was governed by the Western Cape Gambling and Racing Act (WCGRA) of 1:996 as amended, and its accompanying regulations.

Section 3 of WCGRA: Composition of Board

The Board consists of seven members appointed on a part-time basis by the Executive Council in accordance with the prescribed procedure, which shall provide for public participation in the nomination of candidates for appointment; provided that the standing committee of the Provincial Legislature responsible for this Act shall evaluate all candidates as to their suitability for appointment.

The members of the Board shall be eligible persons who have appropriate knowledge or experience; provided that appointments to the Board shall be made with gender sensitivity.

Section 4 – Eligibility for appointment as member or employee of Board

In order to be eligible for appointment as member or an employee of the Board, a person shall:

1. Be a natural person;
2. Have attained the age of 25 years or, in the case of an employee of the Board, the age of 18 years;
3. Be a citizen of the Republic and ordinarily resident in the Province;
4. Be a fit and proper person, as contemplated in section 28(a)(i);
5. Be of good financial standing;
6. Not be disqualified under section 5.

Composition of the Board: Requirements in terms of the WCGR Act and Regulations:

Section 5 – Disqualification from appointment

The following persons shall be disqualified:

1. Convicted of an offence in terms of this Act or any similar law;
2. Convicted of theft, fraud, forgery, the uttering of a forged document, perjury or any offence under the Corruption Act, 1992;
3. Un-rehabilitated insolvent;
4. Removed from any office of trust on account of misconduct or dishonesty;
5. Any political office bearer;
6. Anyone whether personally or through being a spouse, family member, partner or associate, has:
   1. A direct or indirect financial interest in a gambling business or establishment; or
   2. An interest in business or enterprise that may conflict or interfere with the performance of duties as a member of the Board.

Procedure for Appointment - Requirements in terms of the Regulations

Section 3 of Regulations – Nomination of candidates

1. The designated Accounting Officer (AO) shall by notice publish in each of the official languages of the Province in the Provincial Gazette, and in such other printed media as he or she may consider appropriate, invite nominations for candidates for appointment as a member of the Board
2. A nomination containing the names, address, telephone number and curriculum vitae of a nominee shall be submitted in writing to the designated accounting officer within 14 days of the date of publication of the notice.
3. The AO shall place at the disposal of each nominee for completion an application form, which shall be returned to the designated accounting officer within 21 days from the date on which it was thus placed at the disposal of the nominee.
4. The application form needs to be accompanied by a signed declaration stating a willingness to disclose full details of personal and financial affairs; and a statement signed by applicant that they comply with the provisions of section 4 of the Act in order to be eligible for appointment
5. Failure to submit a completed application renders an application invalid.
6. After expiry of the application period, the accounting officer shall in each of the official languages of the Province publish in the Provincial Gazette and such other printed media a notice –

1. Specifying the name and address of each nominee who had submitted a valid application;
2. Providing for a 14-day period calling for comment as to the suitability for appointment of such nominees.

Section 4 of Regulations – Procedure for appointment

1. The designated AO shall evaluate each application referred to in regulation 3(3) and compile a shortlist of not fewer than 15 names or, in respect of any vacancy occurring on the Board, of not fewer than three names, of the most suitable candidates for appointment; provided that the designated accounting officer may request such additional information or documentation regarding an applicant’s personal and financial affairs as he may deem necessary to evaluate an application.
2. The shortlist referred to in sub-regulation (1), as well as a comprehensive list of all applicants, together with all available information and documentation regarding their personal and financial affairs and any public comment received in terms of regulation 3(6), shall be submitted for consideration to the Standing Committee of the Provincial Legislature responsible for the law.
3. The relevant Standing Committee shall, within seven days from receiving the documentation referred to in sub-regulation (2), submit a final short list of not fewer than 15 names or, in respect of any vacancy occurring on the Board, of not fewer than three names, together with the comprehensive list of all applicants to the responsible Member for submission for consideration to the Executive Council
4. The designated AO shall, upon receipt of a resolution of the Executive Council concerning the successful candidates, inform all the applicants of the outcome.

Qualifications of current Board members

• Three members with financial and accounting qualifications (chartered or general accountants with finance experience);
• Two members with a legal qualification and experience;
• One member with public administration and governance experience;
• The expiry of one Board member in December and an upcoming one in May 2021, would reduce the number of Board members with financial and governance experience respectively;
• The expiry of one Board member in May 2021 would reduce the number of female Board members to one, and the number of African Board members to one;
• The current process aims to fill three vacancies, one of which is vacant, and two upcoming vacancies.

Current Process

• The call for nominations was placed in accordance with Regulation 3(1) in Vukani, the Provincial Gazette; the Mail and Guardian; Die Burger and the Weekend Argus on 14, 15 and 16 November 2019, respectively.
• A total of 20 nominations had been received.
• In accordance with Regulation 3(3), applications forms were sent to all eligible nominees.
• Nine application forms were returned.
• Regulation 6(a) and (b) requires the publication of the name and address of each nominee who had submitted a valid application form, providing the public with a 14-day commenting period. This notice calling for public comment was placed on 6, 7 and 12 March 2020 in the Provincial Gazette; the Mail and Guardian; Die Burger, the Weekend Argus and Vukani.
• No comment was received.
• Probity investigations had been undertaken by an external service provider, and Provincial Treasury received the probity report on 27 May.

Shortlisted criteria applied

• WCGRA had no specific shortlisting criteria.
• Section 3(2) of the WCGRA provides that “the members of the Board shall be eligible persons who have appropriate knowledge or experience; provided that the appointment to the Board shall be made with gender sensitivity”
• King IV recommended that to remain relevant, boards ought to be diverse, particularly with regard to “academic qualifications, technical expertise, relevant industry knowledge, experience, nationality, age, race and gender.”
• All nine applicants had been forwarded for consideration by the Standing Committee, as the regulations require that for any vacancy occurring on the Board, the Accounting Officer must compile a list of not fewer than three names of the most suitable candidates for appointment.  Based on the quality of the applications received, it was unlikely that the Committee would be unable to recommend three suitable candidates. This would enable the Provincial Treasury to circumvent further expenditure, as well as save time for the Standing Committee, the Provincial Cabinet and the Provincial Treasury.

The Standing Committee was asked to note that Mr Thango had indicated an address outside the

Western Cape (WC), but had responded to questions as “ordinarily resident.” The Committee should evaluate his status as “ordinarily resident”

Process ahead

• In the event that the Standing Committee wishes to conduct interviews, the Provincial Treasury could provide a list of possible questions and an answering guide;
• Provincial Treasury would provide the Committee’s Secretariat with contact details of shortlisted candidates;
• The Committee had to evaluate candidates and make a recommendation to the responsible Member for consideration by the Executive Council;
• Should more than three suitable candidates emerge from the interview process, the appointable candidates should be ranked in order of preference.

Discussion

The Chairperson asked if more information could be supplied on the candidates in terms of the requirements stipulated by the Act, such as whether or not they were natural persons; above the age of 25, South African citizens, whether they qualified as fit and proper, as well as whether they were of good financial standing and properly qualified in terms of the Act. Mention had previously been made that one candidate was possibly not an ordinary resident.

Ms Horton responded that the purpose of the probity report was to verify the information which had been provided by the applicant. There were no exceptions in terms of the Act which had been noted down in their probity investigation. She emphasised that nothing had been found in the probity investigation report which would disqualify an applicant.

Mr Van der Westhuizen asked whether it had been Provincial Treasury’s intention for the Committee to consider names only for positions which had been currently unfilled, or whether they were to also consider names for possible vacancies which could arise in May 2021. He believed that it seemed like an awfully long time for the Committee to be nominating names for upcoming vacancies in May 2021.

The Chairperson asked what the qualification and experience requirements were when the suitability of candidates was being assessed. The example of the candidate who had only a matric was compared with that of candidates who had tertiary qualifications.

Ms Horton responded that a legal opinion had been consulted in terms of considering possible members for forthcoming vacancies. The legal response was that it would be acceptable, if perhaps necessary to do so, given the time it took to fill a vacancy. She requested that the Committee consider the forthcoming applications or vacancies that were due for December and May, as this would prove to be more time sufficient. In terms of financial implications, the process was quite expensive when it came to the nominations of candidates to serve on a board. It was overall a time-consuming process for the Committee, the Provincial Treasury and the Executive.

Regarding the shortlisting of applicants, the Act had not clearly stated the criteria for the disqualification of a candidate stemming from their qualification or work experience. They were trying to get a broader spread of suitable candidates who were representative of the Western Cape in terms of the various interests held by residents of the province. As such, they had tried to present a list of suitable candidates who they believed should be considered by the Committee. That was the process which they normally followed. In the current case, they had presented nine names who had completed the application form, as they were considered to be possible candidates. There was nothing which would disqualify any of the nine from being considered.

Mr Van der Westhuizen asked if it would be possible for the Department to confirm with the candidates if they would still be interested in taking up the position, despite nine months passing. Provincial Treasury and the Committee needed to take into account that a lot could happen in nine months, and by December, and May next year, it would be 13 and 18 months respectively since the advertisement. He believed that a swift time period indicated efficiency, adding that he was highly concerned regarding the image of the Western Cape Provincial Administration when it involved long time frames.

The Chairperson said that Mr Philips and Ms Horton ought to find out if the candidates were still interested in being a part of the process.

Dr Ndodana Nleya, Director: Fiscal Policy, Western Cape Provincial Treasury, responded that the candidates were still interested in being a part of the process. They had appointed a service provider who had conducted probity checks in March 2020. They service provider had been in contact with the candidates from the end of March to mid-May. At the time, all the candidates were still interested in partaking in the process. For the comfort of the Committee, they would be contacting the candidates once again within that week to find out if their interests remained unchanged.

The Chairperson thanked Dr Nleya for his response.

Members were informed that there were a few questions they needed to discuss, the first being whether the Committee would like to invite the shortlisted candidates which Treasury had recommended for interviews.

Mr Mitchell supported the proposal to invite the shortlisted candidates for interviews.

The Chairperson stressed the importance of oral interviews in assisting the Committee to determine the suitability of each candidate.

Mr Van der Westhuizen and Ms N Makamba-Botya (EFF) supported the proposal for the oral interviews

The Chairperson thanked the Members.

Secondly, the Committee was asked to whether they wished to hold the interviews in a closed session, such as in the previous year. He explained that the reasoning behind the closed session was to give every candidate a fair chance and not allow others to essentially hear what questions would be before their own interviews, by listening in on other candidates’ interviews.

Mr Van der Westhuizen supported the proposal to hold the interviews in a closed session. It would be far more difficult to keep to the confidential nature of the interviews if it were broadcast.

Ms N Makamba-Botya (EFF) supported the proposal for the interviews to be done in a closed session.

Ms N Nkondlo (ANC) wanted to know how much the consultant had cost for the probity assessment, as well as whether the costs associated with that consultant had been in line with the normal or average costs of a probity assessment. She asked if a breakdown could be provided of the costs associated with getting new board members. She sought to understand the process of assessment in determining whether a candidate complied with the Act, with specific reference to the possible conflicts of interests of a candidate.

The Chairperson responded that what usually happened was that the Department gave the Committee all the information for every individual on the shortlist, with relevant details such as their identification number; qualifications; criminal record checks and even family members’ information. The probity report section would deal with assessing those particular matters.

Dr Nleya responded that the cost of the probity investigation had been done through an open tender service provider. It had cost them R62 550 to do the probity checks. The total cost of the entire process was around R350 000. An exact breakdown could be provided at a later stage.

Ms Horton referred to the question regarding the selection of candidates. Members would notice from what they had been provided with, that a number of applicants had either served on the board or worked in the industry. The current chairperson of the board had previously worked in the industry. A number of applicants had either served on the Western Cape Gaming and Racing Board, or served on the Eastern Cape Gambling and Racing Board, which meant that the candidates had industry experience.

She believed it was important that members of the Board needed to have a broader experience in terms of state-owned companies (SOCs), and in exercising the mandate of regulating the gambling industry. However; there were also interests which needed to be served in terms of the broader public. As such, they needed a spectrum of people in terms of representing broader societal diversity. She said that Vukani had been one of the newspapers which they had used to call for nominations.

The Chairperson said it would ultimately be up to the Committee to determine whether someone was suitable or not. The next question for the Committee to consider was whether Friday, 21 August, from 8am to 4pm could be allocated for conducting the interviews.

No one objected to the proposal, and the Chairperson took that as a sign of agreement. It was proposed that the first hour before interviews commenced should be used to establish whatever questions the Committee wished to ask the candidates.

Members were in agreement with the proposal.

The Chairperson proposed that the interviews be 30 minutes, instead of 20 as in the previous year; as the time allocation had not been enough.

Mr Van der Westhuizen agreed to the 30-minute interview proposal per candidate.

It was proposed that Members be allowed a 15-minute break between every three interviews. All Members were in agreement.

Mr Van der Westhuizen proposed a 30-minute lunch break from 12:00 until 12:30. Members agreed

The Chairperson proposed that after the interviews had been conducted, Members should allow for a 30-minute break in order to allow the Procedural Officer to write up a report on what the Committee had deliberated on. Thereafter they could go through the report and adopt it, thus completing everything that Friday.

Members agreed to the proposal.

The Chairperson proposed that the physical documents needed for the interviews be should be received by Friday 14 August, and that the candidates be invited one week prior to the interviews which would also take place on Friday 14 August.

Members agreed to both proposals.

The Chairperson asked how Members would want to receive their documents, as the files were big. What would be the most convenient way for them to receive the documents.

Mr Van der Westhuizen proposed that the documents be couriered to them.

Ms Zaheedah Adams, Procedural Officer for the Committee, responded that they could try that, but they were also looking at another method where WCPP officials dropped them off at the Members’ residences. Members would call get a call on the day to ask where they were, and where they could be dropped, after which it would be dropped off at the agreed address by officials of the WCPP.

Members agreed to the method of delivery proposed by Ms Adams.

The Chairperson said that given the confidential and personal nature of the information, Members would be asked to sign for the documents by whichever WCPP official delivered them.

She asked if the Committee could discuss the process regarding the submissions they had received in terms of the 2019 Gambling Amendment  Bill.

The Members agreed.

Gambling Amendment 2019 Bill

The Chairperson said that the Committee had received submissions regarding the Western Cape 2019 Gambling Amendment Bill [B1 – 2020]. The Committee had advertised the Bill in Die Burger, Vukani, the Cape Times, The Argus and the Mail & Guardian

The deadline for submissions and comments on the bill was 31 July 2020. The Committee had received eight submissions:

• Two submissions were received during the gazetting;
• Four submissions were received before the deadline
• Two submissions were received on 1 August 2020, which was after the deadline. However, they were from the Cape Chamber of Commerce and Industry and the National Department of Trade Industry and Competition.

The content of the submissions had been forwarded to Members, as well as to Provincial Treasury and the legal advisers. Six other stakeholders who had submitted comments on the bill had requested to make oral submissions to the Committee.

The Committee had to decide on whether they wanted to have public hearings, and how many, and set aside a tentative date in case the Committee wanted to hold public hearings. That date would be 9 September. The Committee also needed to decide whether they wanted to advertise the public hearings, as well as whether they wanted it on social media.

The Chairperson proposed that despite receiving two submissions late, those should be included in their total submissions for consideration. Secondly, it was proposed that the Committee hold public hearings since there had been submissions received on the bill.

Out of the eight submissions received, six had indicated that they wished to make oral submissions to the Committee. It was proposed that the six be allowed to make oral submissions. which would essentially be called a public hearing in terms of their legislative process.

The Members agreed to the proposal.

The Chairperson asked if the Committee wanted to advertise the public hearing again. She proposed that since the Committee had already advertised asking for comment and submissions, that the Committee not advertise again. At the end of the hearing, any member of the public would be allowed to make submissions if they wanted to.

The Members agreed

The Chairperson proposed that the Public Education or Media Office put it in their social media, and said that the date would be 9 September 2020.

Members agreed to the proposal.

The Chairperson requested that on Friday 11 September, two days after the public hearing, the Provincial Treasury should present to the Committee their response to the written and oral submissions. The Committee would then be able to go through all of that with the Treasury.

The Chairperson said they would be closing the meeting off to the public as agreed upon at the beginning of the meeting, to in deal with the probity report.

The probity report was dealt with in a closed session.

The meeting was adjourned for the public.