Responses to NYDA Amendment Bill Submissions Presentation
The presentation addresses the Department's responses to oral and written submissions on the NYDA Amendment Bill to the Portfolio Committee. It covers the purpose, background, and key points from the submission matrix regarding the establishment, functioning, age limits for board members, provincial offices, and coordination of youth development services.
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PRESENTATION RESPONSES TO WRITTEN AND ORAL SUBMISSIONS TO THE NYDA AMENDMENT BILL AS TABLED PORTFOLIO COMMITTEE ON WYPD 31 OCTOBER 2023
1. PURPOSE OF THE PRESENTATION The purpose is to present the Department s Responses to the NYDA Amendment Bill Oral and Written Submissions to the Portfolio Committee for Women, Rights and Persons with Disabilities 1
2. BACKGROUND The National Youth Development Agency (NYDA) was established as the merger of the National Youth Commission (NYC) and Umsobomvu Youth Fund (UYF). Its founding legislation is the NYDA Act, Act No. 54 of 2008. The proposal to amend the Act is intended to mainly address the challenges related to execution of its broad legislated mandate. It is also geared towards intensifying youth development service provision. Extensive consultations were conducted with relevant stakeholders, across sectors in all spheres of government. Those included all provinces and the NEDLAC constituencies. The Presidency conducted the Socio-Economic Impact Assessment Study (SEIAS). Office of the Chief State Law Advisor (OCSLA) was consulted and certified the Bill. The draft Bill was approved by Cabinet for tabling in Parliament in February 2022. 2
Summarise Submission Matrix # Clause Comment Response NYDA The Bill is specific on establishment and functioning of the NYDA and therefore cannot legislate the functions of other stakeholders. However, the coordination role of youth development is inherent shared function of different stakeholders who are responsible of youth development, including the Presidency, Department. They express a view that the coordination of youth development should be a shared function of the Presidency, Department and the National Youth Development Agency Section 3 NYDA The age of 21-35, based on the fact that being in the Board is about performing fiduciary duties. This requires acquisition of knowledge, skills, and experience e.g. legal, financial etc., which may not be practical to acquire between the ages of 18 and 20. Section 9(4) (a) amended NYDA propose that the age limit for Board members should be adjusted to begin from 21 35, and amend section 7 which state the age legibility to the ages between 18 and 35. Section 9 3
Summarise Submission Matrix # Clause Comment Response NYDA The NYDA is of the view that provincial offices are costly and unnecessary and sees its role as a National Organisation which develops and designs programs and delivers these through local offices. It was proposed that it would be appropriate for the Office of the Premiers in Provinces to establish youth development units which would work collaboratively with the NYDA, The Bill cannot regulate the functions of Offices of the Premiers. Establishment of NYDA s provincial offices will ensure that services are coordinated at provincial and local levels to reach young people. Principal Act NYDA Section 5(4) of the Principal Act was duly substituted by section 3 (4) of the Bill and the concern raised was addressed by the amendment. The specific areas of programmes were kept in order to address the problem of broad mandate which end up not being funded, hence the Act is specific in areas of programmes. Where the NYDA is not primary responsible, the Bill reads assist The NYDA supports section 5 as proposed by draft Bill, but are of the view that section 5(4) is too specific in nature and does not cater for a fast-changing world where the specific matters mentioned may not be relevant any longer. Section 5 4
Summarise Submission Matrix # Clause Comment Response NYDA The NYDA is of the view that provincial offices are costly and unnecessary and sees its role as a National Organisation which develops and designs programs and delivers these through local offices. It was proposed that it would be appropriate for the Office of the Premiers in Provinces to establish youth development units which would work collaboratively with the NYDA, Express no views on the issue of Executive Board Members Section 16 provides for the appointment of the Chief Operations Officer and Chief Financial Officer and other Executive Managers. Amendment of section 5: Functions of Agency subsection (1)(a)(iii), research and development On issues of policy development, the NYDA agrees that the Department will develop the National Youth Policy, of which the NYDA would be part. A NYD Noted. Response given to the PC comments on the matter The provision is not prescriptive in determining the positions, Section 16 (a) is being amended that, the Chief Executive Officer, must in consultation with the Board, appoint the staff of the Agency, in compliance with South Africa s Equity laws. Section 9 NYDA Section 16 5
Summarise Submission Matrix # Clause Comment The Portfolio Committee supports establishment of the NYDA s provincial offices. The Board must look at the future of the agency and not only its current form. The NYDA must consider embracing innovation and technology Response Portfolio Committee Noted and supported The eligibility age amended to 21-35, based on the fact that being in the Board is about performing fiduciary duties. This requires acquisition of knowledge, skills, and experience e.g legal, financial etc., which may not be practical to acquire between the ages of 18 and 20. Section 9(4) (a) amended Members mentioned that the issue of increasing the age to 21 from 18 will exclude many gifted youth Portfolio Committee 6
Summarise Submission Matrix # Clause Comment Advised the NYDA to engage traditional leaders to provide land and use to build offices. NYDA should be at the forefront of the skills revolution like China and Germany so youth can contribute in more ways in the economy. Response Portfolio Committee Noted and supported 7
Summarise Submission Matrix # Clause Comment Response PORTFOLIO COMMITEE The proposal of the two ex-officio members is in line with the Shareholder compact. The members would have no voting rights and thus no power to micromanage the Board. Their addition is aimed at extending the level of Board expertise with more members and ensuring alignment of the NYDA s programmes to the national priorities. Members are of the view that, the 2 ex-officio members appointed by the Minister will micromanage the Board. The issue of composition of the Board is provided for. It is proposed that the clause read that the members must broadly reflect the demographics and geographical spread of the Republic . This clause cover the elements of gender, race, disability etc. The proposal of increasing the Board members to 9 is a major shift in the Bill. Increase of Board members will have cost implications. It will further inadvertently say to the public that each province will have a representative in the Board. This, perception will lead to challenges by the youth and the public, if it is not satisfied. The department proposes that the number of Board members appointed by Parliament remain at 7, as is in the Principal Act. Clause 9 The Board must be expanded to 9 members appointed through the Parliamentary process, to ensure gender, disability and LGBTQIA+ representation 8
Summarise Submission Matrix # Clause Comment Response The proposal can form part of NYDA stakeholder management on how to work with other organisations that can offer expertise to the Board and organisation in general. Setting up an advisory Committee through this legislation will require that the Bill go back for consultations, including with Treasury and Government Clusters as there will be cost and human resource implications. The word investigation can be misconstrued when it comes to the establishment of the Agency. The word research is best suited NMCF Consider inviting organisations to play advisory role to the NYDA Board instead of increasing number of Board Members because the option will have financial implication. Have civil society organisation in an Advisory Committee consisting of members of the LGBTQI, disability sector and more General request that 5(2)(c) is amendment to also include the word investigations MR. MBUSISWA NGCOBO (Individual) 9
Summarise Submission Matrix # Clause Comment Response To apply for the Board, members need to be within the age band of 21 to 35. The Bill provides that members who turn 35 while serving on the Board, should be allowed to finish their term as they are appointed for their skills and talents. Recommend that the definition of youth further provide clarity on whether a member should be aged between 14 and 35 at time of appointment and during the course of their service on the Board. Recommend that the Bill include a definition of designated youth groups as provided for in the substituted section 3(c ) of the Amended Bill Section 3(a), Under Objects of the Agency, submit that the sections read: initiate, design and pilot youth development programmes to be implemented by the Agency (in collaboration with) . Section 3C already defined designated group by referring to Employment Equity Act of 1998 which defines the term. South African Youth Council The section reads exactly as suggested 10
Summarise Submission Matrix # Clause Comment Section 3(a), Under Objects of the Agency, we submit that the sections read: initiate, design and pilot youth development programmes to be implemented by the Agency (in collaboration with) organs of state, private sector organisations and civil society organisations The NYDA Board should be granted the opportunity to establish annual national priority programmes in respect of youth development; , as contained in the Principal Act, as an addition to 3(b) of the Amended Bill, which currently states that: report to the Executive Authority on the implementation of annual youth development priorities; Response The current Bill reads exactly as proposed. South African Youth Council The Agency reports to the Minister on its programmes. This is a legislated function in the PFMA, so this requirement will remain. The Board and the Agency will still have annual programmes that the Agency will target in line with the Annual Plans and Strategic Plans. 11
Summarise Submission Matrix # Clause Comment Response Section 4 has been removed completely from the Bill, because it is about of principles of youth development in general which has no bearing in the establishment and functioning of the NYDA. Section 5(4)(d) of the current version of the Bill provides that the Agency provide funding in the prescribed manner and capacity building to small, micro and medium enterprises, youth-owned cooperatives, individual youth, youth serving and youth-led organisations that advance the Agency s mandate. We believe that this is sufficient. We strongly suggest that 4(d)(ii) include processes to the decision-making, so that it reads: community and civic decision- making processes South African Youth Council Section 5(4)(d), we submit that the sections read, provide funding and capacity building to small, micro and medium enterprises, (youth-led civil society organisations 12
Summarise Submission Matrix # Clause Comment On the heading of section 8 they submit the Deletion of control and management and replace it with (Governance Responsibilities of the Board). Response Governance Responsibilities of the Board captured in the Bill under section 8. The proposed deletion of Control and Management is acceded to. Addressed in the Bill in Section 9, which states that should both the chairperson and deputy chairperson not be able to fulfil their responsibilities, the Minister may appoint any of the members contemplated in subsection(1)(a) to temporarily act as chairperson or deputy chairperson for a period not exceeding six months. ; Amended Bill does not provide guidance for direction on the directive to prescribe when both Chairperson and Deputy Chairperson are not available to perform any of their duties at the same time like Chairing of meetings etc. We recommend that text be included to this effect to avoid ambiguity. South African Youth Council 13
Summarise Submission Matrix # Clause Comment Response The Board reports to the Minister who reports to the President. It is not an anomaly that the Minister will be first aware of any deficiencies, and her role is to make a recommendation to the President (appointing authority), . Subsection 2 and 4 empowers the Executive Authority to recommend suspension and removal of Board members to the President, this is an anomaly because rights of doing so should reside on the appointing authority Subsection 10(b) to read has, at any time been convicted of theft, fraud, perjury, an offence under the Prevention and Combating of Corruption Act, 2004 (Act No. 12 of 2004), or any other offence involving dishonesty. To add has been convicted of a crime specified in 45 Schedule 1 to the Criminal Procedure Act, 1977 (Act. 51 of 1977), and has been sentenced to a period of imprisonment of not less that South African Youth Council 14
Summarise Submission Matrix # Clause Comment Response The Board reports to the Minister who reports to the President. It is not an anomaly that the Minister will be first aware of any deficiencies, and her role is to make a recommendation to the President (appointing authority), . Subsection 2 and 4 empowers the Executive Authority to recommend suspension and removal of Board members to the President, this is an anomaly because rights of doing so should reside on the appointing authority South African Youth Council This will be corrected by the Parliamentary Legal Office when they work on the next version of the Bill Activate (Donahue Keegan Adams) Noted a typing error on the Bill 15
Summarise Submission Matrix # Clause Comment The Bill requires language editing and formatting. The Commonwealth conventions on legislative drafting apply to all forms of legislation, including Bills. Some of the errors or problematic drafting practices contained in the Bill are the following: the use of Old English (e.g. shall in clauses 7, 8 and 9); Response Noted. The legislative drafters of Parliament and OCSLA will be engaged to attend to editorial changes WESTERN CAPE GOVERNMENT Suggested that the proposed definition of National Youth Policy be described as follows: National policy on the development of youth means the national policy on the development of youth as adopted by the Department responsible WYPD . The definition confines the policy to one Department, whereas the policy was adopted by Cabinet. 16
Summarise Submission Matrix # Clause Comment Proposed paragraph (d): Integrated Youth Development Strategy has been defined. The reference to a National Youth Policy is limiting. Response A definition of the Integrated Strategy will be added to accommodate the concern. WESTERN CAPE GOVERNMENT DWYPD is responsible for developing priorities but it does that in consultation with the sector. The Agency will only contribute to the development of the policy and strategy but there is no clarity as to who will ultimately be responsible for the development of these documents. The upcoming SA Youth Development Bill specifies the role and responsibilities of each role player in the sector. . 17
Summarise Submission Matrix # Clause Comment Proposed paragraph (d): Integrated Youth Development Strategy has been defined. The reference to a National Youth Policy is limiting. Response A definition of the Integrated Strategy will be added to accommodate the concern. WESTERN CAPE GOVERNMENT Subsection (4)(j): Various spheres of government and organs of state have implemented the National Youth Service, supported by the social sector, and this model proved to be a success due to the scale and impact. This clause does not cater for government spheres who are currently running programmes with organisations in the social sector. We agree that NYS is a shared responsibility. The partnerships and collaboration are already included in the Bill generally i.e. Section 3(1)(a) of the Bill 18
Summarise Submission Matrix # Clause Comment Proposed paragraph (d): Integrated Youth Development Strategy has been defined. The reference to a National Youth Policy is limiting. Response A definition of the Integrated Strategy will be added to accommodate the concern. WESTERN CAPE GOVERNMENT The NYDA is working with organs of State across provinces and at national on various initiatives. The Bill is not intending to make it mandatory for all the organs to fund it. Amendment of Section 7: The proposed section is very broad and may also imply financial assistance. The Department has a financial obligation towards the operation of the Agency. Many organs of state (including municipalities) do not have the funds to assist the Agency financially. The standard of reasonability applies within the IGR framework. The Bill is not intending to compel any organ to fund the Agency. 19
Summarise Submission Matrix # Clause Comment The proposed amendments must clarify whether the ex-officio members of the Board are executive directors. Response No, proposed Ex-officio members of the Board are not executive directors. WESTERN CAPE GOVERNMENT Amendment of section 12: Committees of Board: It is proposed that the establishment of all the committees referred to in the King IV Code on Corporate Governance should be mandatory. The Bill give the Board guidelines, but also allows for discretionary determination from the Board. The provision should remain as is. 20
Summarise Submission Matrix # Clause Comment Funding and investments: It is not clear why it is proposed to delete the reference to the money received from the Umsobomvu Fund as being part of the funds of the Agency. The Umsobomvu Fund is a fund referred to in the Demutualisation Levy Act, 1998 (Act 50 of 1998) and that Act was repealed by the Taxation Laws Amendment Act, 2013 (Act No. 31 of 2013). Response The Agency is no longer receiving the money Umsobomvu Fund. It was in the Principal Act as a transitional arrangement. WESTERN CAPE GOVERNMENT Consider adding the word ethnic in section 4(g) in recognition of ethnicity and its close ties to culture. Section 4 has been substituted 21
Summarise Submission Matrix # Clause Comment Response The proposal can form part of NYDA stakeholder management on how to work with other organisations that can offer expertise to the Board and organisation in general. Setting up an advisory Committee through this legislation will require that the Bill go back for consultations, including with Treasury and Government Clusters as there will be cost and human resource implications. Consider inviting organisations to play advisory role to the NYDA Board instead of increasing number of Board Members because the option will have financial implication. Have civil society organisation in an Advisory Committee consisting of members of the LGBTQI, disability sector and more NELSON MANDELA CHILDREN S FUND ON SECTION 9 22
Comments to be Referred to NYDA for consideration in their Service Delivery Model Xifaxani Youth Foundation(Mr N Manganyi) Youth Empowerment Organisation (Mr TD Sekhejane) Mr Sipho Mbonani (Individual Youth Worker) Some comments from the Nelson Mandela Children s Fund Some comments from the Western Cape Government 23
RECOMMENDATIONS It is recommended that the Portfolio Committee should: - note the responses from the Department on the Public Hearings for further handling - 24
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