PRESENTATION TO THE AD HOC COMMITTEE ON VACANCIES IN THE COMMISSION ON
GENDER EQUALITY: 14 MARCH 2006
The Ad Hoc Committee requested a briefing from the Department on the vacancies to be filled in the Commission on Gender Equality.
The Commission on Gender Equality (Commission) is one of the seven state institutions, established in terms of section 181 of the Constitution of the Republic of South Africa, 1996 (Constitution), supporting constitutional democracy in the Republic of South Africa. The Commission is one of the three Chapter 9. Institutions, which are functionally linked to the portfolio of the Department of Justice and Constitutional Development.
Section 187 of the Constitution provides for the powers and functions of the Commission. The Commission has the power to monitor, investigate, research, educate, lobby, advise and report on issues concerning gender equality. The Commission has as its functions to promote respect for gender equality and the protection, development and attainment of gender equality.
The Commission has additional powers and functions prescribed by national legislation mainly the Commission on Gender Equality Act, 1996 (Act No. 39 of 1996) (Act).
The majority of the Commissioners of the Commission, which is 7 out of 11, Chairperson excluded, were appointed with effect from 19 April 2001. Each of these Commissioners was appointed for a period of five years. Thus their terms of office lapse on 18 April 2006.
The remaining four Commissioners were appointed with effect from 1 May 2001. The Commissioners concerned were Ms B T Ngcobo, Ms M F Tlake, Dr. S M Meintjies and Ms S T N De Bruyn. Their term of office was as follows:
(i) Commissioners Ms B T Ngcobo and Ms M F Tlake were appointed for a period of four years; and
(ii) Commissioners Dr. S M Meintjies and Ms S T N De Bruyn for a period of five years.
In April 2004 two Commissioners resigned from the Commission. These Commissioners were each appointed for a term of office of five years with effect from 19 April 2001. The term of office in respect of these Commissioners will lapse on 18 April 2006.
In September and October 2004 two more Commissioners resigned from the Commission. They were both appointed for a term of office of four years with effect from 1 May 2001. The term of office in respect of the two commissioners lapsed on 30 April 2005.
The Speaker of the National Assembly has, following each set of resignations, requested the Minister for Justice and Constitutional Development (Minister) to call for proposals in terms of section 3(3) of the Act.
The first call for proposals from interested parties in terms of section 3(3) of the Act was on 10 December 2004, in the Government Gazette No. 27047 and in the media. The second call for proposals from interested parties was on 1 July 2005 in the Government Gazette No. 27712 and in the media.
The Department submitted all the proposals received to the Office of the Speaker of the National Assembly to take the appointment process forward.
It came to the attention of the Department that the term of office of members of the Commission will lapse on 18 April 2006 and 30 April 2006.
The Minister called for proposals from interested parties by notice in the Gazette No. 28519 and Gazette No. 28562 and in the media.
The Department will submit the proposals received to the Office of the Speaker of the National Assembly in due course. The Minister has recommended that the term of office for the new Commissioners should be up to 30 September 2007, pending the outcome of the review of the Chapter 9 Institutions. This is also the date on which the term of office of the Chairperson lapses. Should the review process not be completed, section 3(7) of the Commission on Gender Equality Act, 1996 (Act No. 39 of 1996) (the Act), may be invoked. This section provides that any person whose term of office has expired may be re-appointed for one additional term.
At the outset, as you are aware, we wish to point out that the Department does not, in law, have the power to prescribe the term of office for the Commissioners of the Commission on Gender Equality (the Commission). This prerogative remains with the President, on the recommendation of the National Assembly, as contemplated in section 3(2) and (4) of the Commission on Gender Equality Act, 1996 (the Act), read with section 193(4) and (5) of the Constitution of the Republic of South Africa of 1996 (the Constitution). As the Commission falls within the line-function of the Department, we merely process the advertisement calling for nominations for appointment. It is in this context that the Department has made the recommendation, for the reasons set out below,
Cabinet has requested the Minister for Public Service and Administration to conduct a review of Chapter 9 Institutions dealing with, amongst others,
(a) the current and intended mandates of such institutions suitable for the South African environment; and
(b) the possible rationalisation of remuneration scales.
The Department of Public Service and Administration has commenced with this review.
The review of the Chapter 9 Institutions may have financial implications for Government, especially if the outcome of the review contains recommendations that may require the restructuring of the Chapter 9 Institutions.
The Department, therefore, deemed it necessary to act cautiously and conservatively in relation to these appointments, because we do not want to find ourselves in a situation of incurring unnecessary future expenditure, especially if we are all fully cognisant of Cabinet's request for such a review of the Chapter 9 Institutions. In fact, the concurrent expiry of the terms of office of all the Commissioners, except for the Chairperson, provides a very good opportunity to review the Chapter 9 Institutions in a comprehensive manner, whilst allowing for new appointments of Commissioners for a shorter period of time to allow for the finalisation of the review.
The Department also wishes to point out that the term of office recommended in the advertisement corresponds with the date on which the term of office of the Chairperson of the Commission lapses, namely 30 September 2007. Should the review process not be completed by that date, section 3(7) of the Act may be invoked. This section simply provides that any person whose term of office has expired may be re-appointed for an additional term.
The Department's recommendation takes into account the legal requirement of section 3(4)(a) of the Act in that the Ad Hoc Committee may still recommend a staggered expiry of the terms of office of the Commissioners within that period (a period not exceeding 30 September 2007). It is thus within the Ad Hoc Committee's mandate to recommend the appropriate terms of office complying with section 3(4) (a) of the Act.
Thus, taking these important factors into account, the term of office recommended by my Department is only a recommendation to the Ad Hoc Committee for consideration. The Ad Hoc Committee will, upon the conclusion of the interview process, make its recommendations as specified in the relevant provisions of the Act.
4. Process for Appointment of Commissioners in the Commission
The following provisions of the Act are relevant:
" 3 Composition of the Commission
(1) Subject to section 119 (2) of the Constitution, the Commission shall consist of a chairperson and no fewer than seven and no more than eleven members, who shall
(a) have a record of commitment to the promotion of gender equality; and
(b) be persons with applicable knowledge or experience with regard to matters connected with the objects of the Commission.
(2) The President shall, whenever it becomes necessary, appoint as a member of the Commission a person
(a) proposed by interested parties as contemplated in subsection (3);
(b) nominated by a joint committee; and
(c) approved by the National Assembly and the Senate by a resolution adopted by a majority of the total number of members of both Houses at a joint meeting:
Provided that if any nomination is not approved as required in paragraph
(c), the joint committee shall nominate another person.
(3) Before the members of the Commission are appointed the Minister shall invite interested parties through the media and by notice in the Gazette to propose candidates within 30 days of the publication of the said notice, for consideration by the committee referred to in subsection (2) (b):
(4) (a) The members of the Commission may be appointed as full-time or part-time members and shall hold office for such fixed term, not exceeding five years, as the President may determine at the time of each appointment: Provided that the term of office of the full-time members shall not expire simultaneously.
(b) No fewer than two and no more than seven members shall be appointed on a full-time basis.
(5) The President shall remove any member from office if
(a) such removal is requested by a joint committeecontemplated in subsection (2) (b); and
(b) such request is approved by the National Assembly and the Senate by a resolution adopted by a majority of the total number of members of both Houses at a joint meeting.
(6) The President may, in consultation with the Commission, appoint a part-time member as a full-time member for the un-expired portion of that part-time member's term of office.
(7) Any person whose term of office as a member of the Commission has expired, may be re-appointed for one additional term.
(8) A member of the Commission may resign from office by submitting at least three months' written notice thereof to Parliament unless Parliament by resolution allows a shorter period in a specific case.
(9) (a) A Chairperson of the Commission shall as often as it becomes necessary be appointed by the President and a Deputy Chairperson of the Commission shall as often as it becomes necessary be elected by the members of the Commission from among their number.
(b) When the Chairperson is not available, the Deputy Chairperson shall perform the functions of the Chairperson.
Appointment follows occurrence of a vacancy. A vacancy in the Commission occurs in terms of section 4 of the Act.
Section 4 of the Act provides:
"4 Vacancies in Commission
(1) A vacancy in the Commission shall occur
(a) when a member's term of office expires;
(b) when a member dies;
(c) when a members is removed from office in terms of section 3(5); or
(d) when a member's resignation, submitted in accordance with section 3(8), takes effect.
(2) A vacancy in the Commission shall not affect the validity of the proceedings or decisions of the Commission.
(3) (a) A vacancy in the Commission shall be filled as soon as practicable in accordance with section 3(2).
(b) Any vacancy so filled shall be for the un-expired period of the term of office in respect of which the vacancy occurred.
Section 3(8) of the Act provides that a member of the Commission may resign from office by submitting at least three months' notice thereof to Parliament unless Parliament by resolution allows a shorter period in a specific case.
General Provisions (ss 193-194 of the Constitution): 8193 Appointments
(1) The Public Protector and the members of any Commission established by this Chapter must be women or men who
(a) are South African citizens;
(b) are fit and proper persons to hold the particular office; and (c) comply with any other requirements prescribed by national legislation.
(2) The need for a Commission established by this Chapter to reflect broadly the race and gender composition of South Africa must be considered when members are appointed.
(3) The Auditor-General must be a woman or a man who is a South African citizen and a fit and proper person to hold that office. Specialised knowledge of, or experience in, auditing, state finances and public administration must be given due regard in appointing the Auditor-General.
(4) The President, on the recommendation of the National Assembly, must appoint the Public Protector, the Auditor-General and the members of
(a) the South African Human Rights Commission;
[Para. (a) amended by s. 4 of Act 65 of 1998.]
(b) the Commission for Gender Equality; and
(c) the Electoral Commission.
(5) The National Assembly must recommend persons
(a) nominated by a committee of the Assembly proportionally composed of members of all parties represented in the Assembly; and
(b) approved by the Assembly by a resolution adopted with a
(i) of at least 60 per cent of the members of the Assembly, if the recommendation concerns the appointment of the Public Protector or the Auditor-General; or
(ii) of a majority of the members of the Assembly, if the recommendation concerns the appointment of a member of a Commission.
(6) The involvement of civil society in the recommendation process may be provided for as envisaged in section 59 (1) (a).