Meeting report

The Chairperson welcomed the members of the Committee. He asked for the agenda to be presented. The main item on the agenda was the consideration of the criteria for shortlisting of nominated candidates for the position of the Chairperson of the NLC Board. He asked the Committee to adopt the agenda.

Ms J Hermans (ANC) moved for the adoption of the agenda.

Ms R Moatshe (ANC) seconded the adoption of the agenda.

There were no objections and the Committee proceeded with the agenda.

NLC Chairperson appointment process: shortlisitng criteria

The Chairperson said that the Committee had a presentation on the programme for the appointment of the Chairperson of the NLC. The Committee would now be considering the criteria for shortlisting. Members were asked to look at what had been presented and make any additions. There was an addition raised by the DA. Parties were given an opportunity to comment on that specific issue. Parties would be able to speak on their suggested inclusions, additions or amendments to the guidelines. He asked the Committee Secretariat what suggestions or contributions from members were sent to him.

The Committee Secretariat said that the only input that was received was from Mr Cuthbert. There were no additional inputs. The Committee had what was presented the previous day with Mr Cuthbert’s input. Those two documents were put together and displayed for the Committee.

The Chairperson asked Mr Cuthbert to take the Committee through the amendments and additions he had written in his proposal. Mr Cuthbert would motivate why his amendments should be included in the guidelines and then the Committee would have a discussion on the matter.

Mr M Cuthbert (DA) asked that the letter he sent to the Chairperson be read to the Committee by the Secretariat. The letter provided context and helped with understanding the proposed amendments.

The Chairperson said that the Secretariat could read the criteria-specific area of the letter and then Mr Cuthbert would be able to speak on the matter. The Secretariat would not read the whole letter. He would only read the parts that related to the criteria. Then Mr Cuthbert would provide a motivation on his proposed amendments.  

The Committee Secretariat proceeded to read out the letter from Mr Cuthbert: Section 3.1 (a) of the Lotteries Act (of 1997) which speaks to the requirements of the NLC Board Chairperson was broad in nature and does not detail specifically the educational or experiential requirements. It states that the Minister shall appoint the members of the Board which shall consist of a Chairperson who shall be a person with applicable knowledge or experience with regard to matters connected with the functions of the Board. Therefore, it was proposed that the following criteria were considered in order to ensure that due diligence was performed by the Portfolio Committee during the shortlisting process:

-A working knowledge of the responsibilities of the Board and the roles assigned to the Board Chairperson as per the Act.

- A minimum of a bachelor’s degree in either Commerce, Law, Social Science or a cognate discipline. An advanced degree would be advantageous.

- A strong track record of ethical leadership in the public sector and private sector.

-An intimate knowledge of the way non-governmental organisations operates on a day to day basis.

-A credible public profile and demonstrable evidence of having turned around failing institutions.

It was the view of the DA that any of the selected candidates should meet four out of the five criteria as proposed. In addition, the Committee was called on to not consider any individual for the position of the NLC Board Chairperson who were under investigation by the Hawks Serious Economic Offences Unit and/or the Presidency’s Special Investigative Unit or was an existing member of the Board on account of the criminal charges laid by the DA in respect of the Board’s failure to release beneficiary lists for several years. The Minister of Police confirmed that this matter was currently awaiting prosecution by the NPA.

Lastly, the Committee needed to consider the advice given by Adv Adhikari which noted that the Committee had no information relating to the financial and security vetting conducted on selected candidates as well as character references and qualifications. In lieu of this the DA requested that the names of all candidates for position of NLC Board Chairperson be handed over to the State Security Agency for thorough vetting and that the result of this process be shared with the members of the Portfolio Committee for their consideration. The DA strongly urged the Committee to consider the aforementioned proposal in the interests of meritocracy, openness and transparency.

The Chairperson ask Mr Cuthbert to take the Committee through the five points of criteria that was proposed in his letter. The Committee would then discuss the points raised and it would be seen if there was support for his proposal.

Mr Cuthbert said the idea behind the proposal was that there needed to be some sort of general criteria that was related to this specific role in order for the Committee to shortlist candidates. The DA proposed that each of the shortlisted candidates should at least meet four out of the five criteria. The recommendations put forward for the criteria speak on parts where the law was deficient. Even in the legal opinion there was space for the Committee to create its own criteria because it was so unclear in the Lotteries Act itself. This was definitely something that needed to be dealt with at a later stage through a Private Members Bill or a Bill submitted by the Minister to allow for a more uniform process across the Board. He believed that the proposed criteria accurately captured what was required of a NLC Board Chairperson. The first criterion was that this person needs to know what it is that the Board needs to do and the decisions it needs to take. The candidate needs to understand that they do not need to cross a line that it may hamper the separation of powers. The next criterion was an education requirement. Tertiary education was not necessarily a sign of intellect but it was important that the person had a good background in what they would be dealing with. A commerce background was important because the NLC Board Chairperson was largely a financial role. It was important for the Chairperson to know that that the books were in order and that money was not being misappropriated. It was also important to have a legal qualification to ensure that the NLC adhered to legislation that was applicable, like the Lotteries Act, which was not done in the past. That was why the Committee needed to get legal opinions from Parliament in order to ensure that the NLC complied. A social science or a cognate discipline was also important. A person with a Master’s degree or PhD should also be looked on favourably because those were high sought-after people in the public and private sector. The candidate should also have a track record of ethical leadership. The candidate needed to make sure that their behaviour was beyond reproach. This was not a political appointment but it was a job that was there to ensure that a social need was met. It was important that the candidate was not under suspicion for corruption or any kind of dodgy dealings. This candidate would have ideally rooted out corruption in a previous institution and spoken out against anything that may have been wrong. The candidate also needed to have an intimate knowledge of the way non-governmental organisations operate. The candidate needed to understand when cash flows needed to be given to the non-governmental organisations. The candidate needed to understand the needs of a non-governmental organisation and what checks and balances needed to be put in place to ensure that NGOs were being serviced. The candidate needed to uplift NGOs and make them to be better NGOs that were able to service their community. The candidate needed to have a credible public profile and instil confidence in Parliament and the public. This person needed to bring about change by virtue of their track record. The candidate should conduct themselves in a highly professional manner. The DA also wanted to add two exclusions under the criteria. Anybody who was currently under investigation by the SIU or Hawks should be excluded. This could only cause further problems for the organisation. It was going to further diminish the trust the public have in this organisation. It was important that the Committee did not allow anybody with a cloud hanging over their head to occupy this position. The Committee might find itself in another situation where the organisation was brought to its knees. The Committee was trying to fix this institution. He then discussed the second exclusion. In July of this year the DA laid criminal charges against the existing Board for failing to declare any grant beneficiaries for two financial years. The Board was forced to comply by the Minister but they were still found to be Constitutional delinquents by the Parliamentary legal advisor and by the DA’s legal opinion. It was important that the Committee did not allow for individuals who had a cloud hanging over their head to serve in this position. It would only further taint the integrity of this institution. He then discussed how there was no vetting or checks done on the candidates when Minister Patel unlawfully conducted the process. The DA called on this Committee to refer all 41 of the candidates through to the State Security Agency for them to be vetted thoroughly. Those results should be shared with the Committee and if it needed to be a confidential meeting the Committee could invoke rule 189. It was important that the results of the vetting be shared with the Committee. People who were found to have any skeletons in their closet, by the State Security Agency, would be removed from the shortlisting process. He then raised one more point. The previous day, in the House, Dr Somadoda Fikeni was appointed as a PSC Commissioner. He was also an applicant for this particular role. Mr Cuthbert was not sure if there was a bearing on his recent employment. He wanted a legal opinion on that matter and a way forward from the Secretariat. He urged the members of the Committee to adopt this proposal. The DA thought it was a non-partisan affair. It was a well-rounded proposal that was put forward in order to restore credibility to this particular process. He asked for the Committee to support the proposal.

The Chairperson said that the Committee should reduce the number of points discussed. The vetting and other related issues were part of the process. Those issues will be dealt with as part of the management of the process. The issue of pending cases the Committee needed to look at separately. The status of the applicants should be properly covered in the process that the Committee was going to engage in without having to engage in a legal opinion. Every candidate will be vetted. The financial standing and issues related to criminal transgressions would then be found. The pending cases were not an issue that the Committee could deal with as part of the programme. The focus for now was on the five points of criteria. The five points of criteria should be compared to the document prepared by the Secretariat. If any points were duplicated then that should be highlighted. If there was a new point then it should be included in the guidelines. He asked that the Committee focus on the criteria. He asked if there was an addition Mr Cuthbert wanted to make. He asked Mr Cuthbert to be more specific because he should actually have been amending the guideline document that the Secretariat had presented yesterday. If Mr Cuthbert did not have any additional comments then he would ask for the members to comment on how the proposal of the DA fits into what the Committee had received as a proposal yesterday.

Mr Cuthbert asked for the Committee Secretariat to display his proposal against the Committee’s existing criteria so that the Committee could see where amendments were possible.

The Chairperson said that he assumed Mr Cuthbert would make amendments to the Committee’s criteria in his proposal. He asked for the documents to be displayed and to have the members of the Committee comment on the proposed criteria. He wanted the Committee to discuss and agree on the way forward. The Chairperson wanted the main document to be displayed and then have Mr Cuthbert explain where his proposal fits into the main document so that the Committee could see if it needed to make amendments.

Ms Hermans raised a point on process. The Committee only had 30 minutes of the meeting left. The DA has made its presentation. The Secretariat has combined the proposal with the criteria that was tabled the previous day. The Committee did not need to have another presentation from the DA. The Committee should go straight into discussions because the members did not get any permission to join plenary late and it started in 30 minutes.

Ms Y Yako (EFF) said that she was also of the view that what the Committee was supposed to discuss is whether they agree with the DA or not. The Committee only had 30 minutes to discuss that. She had an issue with the DA’s proposal. Firstly, in the criteria it says that the candidate should have experience of the functions of the Board along with the educational requirements. If the Committee excluded the Board members based on the DA’s law case how then was the Committee being fair to the Board members? She rejected the DA’s proposal that says that based on their accusations or charges that they have taken against the Board members that the Committee should exclude the Board members. Specifically, it said that the candidate should have experience of the functions of the Board. She did not see how the Committee could remove that out of the criteria. She wanted a clearer understanding from Mr Cuthbert regarding the issue of educational background. She did not understand how Mr Cuthbert could say that experience was better than formal education? She was not sure if Mr Cuthbert was adding an additional criterion under the educational requirements for shortlisting the candidates.

Ms Hermans said that looking at the five points that were proposed the ANC felt that some of the criteria had already been included. The first point referred to the working knowledge of the responsibilities of the Board. That was already covered in criteria number one that was listed in the Committee’s procedural document so the ANC rejected that point by the DA. The second proposed criterion on qualifications was also rejected by the ANC. It was not stated like that in the advertisement so the Committee could not bring new criteria in. In any case, on the advertisement it asked the candidates to provide proof of qualification. The ANC also rejected the third proposed criterion which referred to the strong track record of ethical leadership in the public or private sectors. It was already covered in number five of the table of criteria for shortlisting. Then there was the criterion stating that an intimate knowledge of how non-governmental organisations operate was needed. The NLC was not an NGO but in their mandate they work with NGOs. The ANC felt that good governance applied to NGOs and any other institution. That was already adequately covered in number four, knowing how boards operate, and number eight which speaks on the PFMA. The ANC therefore rejected that proposed criterion. She said that ANC also rejected the final criterion which stated a credible public profile and demonstrable evidence of having turned around institutions was needed. It was not the nominee’s fault if they had never been in a failing organisation that needed to be turned around. In the interview process the Committee needed to make sure that the nominees were able to turnaround an organisation but the Committee could not use that criterion to exclude them. She then discussed point two which spoke about nominees under investigation by the SIU and the HAWKS and nominees that had criminal charges laid against them by the DA. The ANC rejected that because it was unlawful. The ANC also felt that the Committee was sufficiently covered in 5.1 (d) in the procedural document. Vetting was also covered in number four of the procedural document that the Committee looked at yesterday. This was the input from the ANC.

Mr S Mbuyane (ANC) supported Ms Hermans comments. All the members needed to be guided by the law. There was a presumption of innocence until proven guilty and that must be respected by this Committee. If people were persecuted based on allegations, then that was not fair.

Mr Cuthbert said that aside from a couple of comments he found Ms Hermans’s input to be cognitively dissonant. These criteria that he had generated arrived before the procedural document by the Secretariat had arrived. The Committee needed to remember that it had put together a document when it was still under the impression that it would be doing the interviews and not the shortlisting. That was why the document that he put together arrived before the procedural document that was chosen as the document to be used to shortlist. He was happy to accept where there were overlaps. The Committee should not accept people who fall under a dark cloud of conspiracy and corruption to the position of Chairperson if it was was trying to regain the public’s trust in that institution. It was that same thought process that led the ANC to reappoint MECs who had been tried in court for raping their daughters. How could it be said that that person has not been found guilty? That person has still brought the institution into disrepute and that needed to be considered.

He said that even though the mention of degrees was not in the initial advertisement it would not make it illegal for the Committee to use that as a screening criterion. Surely candidates with a high-level of education should be looked upon favourably for this position? That was the point he was trying to make with that particular criterion. Largely, the NLC Chairperson was divorced from what happens with the licensing. The position was mostly dealing with National Lotteries Distribution Trust Fund. That money was sent to NGOs and that was why there should be a specific requirement about work with NGOs. It was important that the person has a credible ethical background and has been able to demonstrate this over a long period of time. He conceded the first criterion if the Committee felt that was accurately captured in the document. He agreed that it was accurately captured. He urged the Committee to reconsider the other criteria. He requested that the proposal of the additional criteria be put one by one to a vote.

The Chairperson noted the comments by Mr Cuthbert. He asked if there were any further contributions by members of the Committee.

Mr Mbuyane said that the Committee needed to deal with this matter quickly. The Committee needed to decide on which points it agreed on and disagreed on. The meeting needed to be completed and could not be dragged on.

The Chairperson wanted to get the contributions by Ms Yako and Ms Hermans and then the Committee could conclude the issue of criteria.

Ms Yako said that the EFF mostly agreed with the procedural document that the Committee had come up with. The main concern she did have was the Committee possibly excluding any member of the Board that has had charges laid against them by the DA. It was quite unfair for the members of the Board who had not been proven guilty of those charges. She emphasised the need for work experience and understanding the work of the Board. The EFF rejected any proposal that would cast aspersions on the members of the Board who had not been proven guilty.

Ms Hermans rectified what Ms Yako said. Ms Yako said that criteria of the Board. This was not the Board’s criteria. This was the DA’s criteria.

Ms Yako disagreed and said that the Committee has had its own criteria. The EFF agreed with the criteria of the Committee. However, she disagreed strongly with the issue where the DA has laid charges against the Board and would then discriminate against those members based on the charges. That casts aspersions on the members of the Board. The Committee should not entertain that proposal.

Ms T Msane (EFF) said that to make the matter quick and simple the Committee should go through the DA’s proposal point by point. The EFF did not agree with the DA casting aspersions on the Board members. The Lotteries Act guides the Committee on who is cable of being a member of the Board and who is capable of being a Chairperson of the Board. The procedural document from the Committee was quite broad and acceptable. The Committee could use that criteria to move the process of shortlisting forward.

The Chairperson said that the Committee would go through each point and ask if there was agreement or disagreement.

The Committee Secretariat went through each point of the DA’s proposal. The Committee rejected the DA’s proposed criteria. The members of the ANC and EFF said that the DA’s proposed criteria had already been covered in the procedural document. The only members who supported the inclusion of the proposed criteria were the DA and FF+.

The Committee Secretariat said he would circulate the final list of criteria for the shortlisting of candidates to the Committee. That criteria would guide the Committee going forward. This would be the Committee’s last meeting and the Secretariat would communicate the programming matters going forward.

The Chairperson thanked all the members for their positive contributions. He wished them well for the festive season.

The meeting was adjourned.