Thank you, Chairperson, and we recognise the presence of all Ministers, including in particular the Deputy Minister of Science and Technology, Comrade Derek Hanekom. This Bill was approved by the NA at the end of 2007 and sent to the President for assent and signing into law.
Earlier this year the Speaker of the NA received a letter from the President, dated 25 April 2008, informing her that he had reservations about the constitutionality of the Bill. The contents thereof will be dealt with later. The full text of the President's letter and his reservations were printed in full in the ATC of 8 May 2008 and duly referred to the Portfolio Committee on Science and Technology for reconsideration on 9 May 2008. After extensive consultation and deliberations by the portfolio committee, the following amendment was effected to deal with both the reservations of the President of the Republic and the concerns of the committee. In particular here, clause 5(3) of that Bill was amended. I will not read it in full because it was given to members. Just to explain, the issue was about consultation, especially with respect to the Minister, to consult the National Assembly during or after consultation. That was the main bone of contention.
The major question is really that Parliament and the executive need to resolve and engage is the content and the meaning of the principle of separation of powers as contemplated in the Constitution of the Republic of South Africa. The committee is convinced that the amendment adequately addresses the matter at hand. In fact, two legal opinions were previously sought, from the parliamentary law advisers and the Office of the Chief Law Advisers respectively, which confirmed the centrality of the NA in the appointment of this board.
The Minister, on the other hand, also received an opinion that suggested that he was to appoint the board after consultation with the NA. Based on that opinion, the President was advised not to sign the Bill into law. Both the legislature and the executive accepted the concept of consultation in this matter. What became contentious was when such consultation must take place and the result of such consultation. In the advice from the Office of the Chief State Law Adviser, that is in the matter also between Van Rooyen and Others vs The State and Others in 2007, Southwood J held that:
The meaning of phrases "in consultation with" and "after consultation with" are now well established. "In consultation with" requires the concurrence of the other functionary or person and if a body of persons, that concurrence must be expressed in accordance with its own decision- making procedures. "After consultation with" requires that the decision be taken in good faith, after consulting and giving serious counteraction to the views of the other functionary or person. In the former the person making the decision cannot do so without the concurrence of the functionary or person. In the latter case he or she can.
The experience of the committee was that this was at best unacceptable and it was very frustrating. The committee, and in particular the chairperson and the Whip, had several discussions with the Ministry and the department on this matter in order to find an amicable solution and resolve this matter. We are satisfied that the product and result of proper consultation has borne fruit and we table this amendment and report for approval by this House.
The HSRC remains a strategic asset of the democratic state and has produced very good and well-researched reports that this Parliament and the new dispensation need to take serious note of.
In terms of the Act, they provide advice to the Minister on any matter ranging from unemployment, housing, poverty, health, education, etc. The challenge, though, is how their recommendations are implemented or taken into account, firstly by the affected departments and by the Department of Science and Technology in particular.
Just to go back to the amendment itself. The first part of 5(3) says that:
The Minister appoints the members of the Board after -
a) publishing a notice in the Government Gazette and two national newspapers circulating in the Republic calling upon members of the public to nominate persons contemplated in subsection 2(a) and (b).
That one was given and granted and there was no contention.
The (b)-part stipulates that the Minister appoints -
... a panel of experts to compile a shortlist of not more than 20 persons from the nominees referred to in paragraph (a) ...
... and there was no contention about that. Here the number of people required is six to nine board members.
The new one agreed upon was the following:
c) The chairperson of the panel has submitted a short-list of candidates together with their curriculum vitae to the Minister who must submit it to the National Assembly for approval ...
... lastly, that -
d) the National Assembly has submitted to the Minister an approved short-list from which to select.
The Minister does have leeway as well to deal with these matters. This is how this matter was concluded and agreed to by the committee and also discussed with the Ministry. This is how we resolved this matter and we request Parliament to approve this. Thank you very much. [Applause.]
Chairperson, I move:
That the Bill, as amended, be passed.
Motion agreed to.
Bill, as amended, accordingly passed.