NAC crippled, DSAC spent a month doing nothing

The Department of Sport, Arts and Culture (DSAC) knew on 15 October that the National Arts Council (NAC) council had collapsed below the legal minimum. It is only placing the advert to fill the seats this weekend.

On Tuesday, 10 November, the Director General, Cynthia Khumalo and Sibusiso Tsanyane told the Committee that the advert is the same as the previous one.

ANC MP Tebogo Letsie said the department had changed only the dates.

"You took the whole month to advertise an advert that you already had. The only difference would be the dates as they come out. So you took the whole month to change the dates, literally," Letsie said.

Six council members resigned between 14 and 15 October. That left seven members appointed by the minister. The National Arts Council Act requires at least nine.

Letsie asked DSAC director-general Khumalo when the department found out.

"Some of them on the 14th, but the total on 15 October," Khumalo responded.

Letsie then asked whether DSAC knew then that the council had no quorum.

"Yes. We knew there were resignations that amounted to six. But we needed to know, in terms of the two portions that make up this board, what impact it had on the overall total of 18 board members," Khumalo said.

She said DSAC first had to get a legal opinion.

"We had to seek an opinion that gave us an indication of the implications of the resignations, because the Act categorises these appointments into two. And when we got that legal opinion, it gave us a very clear indication of what the six resignations meant for the constitution of the board," she said.

But Letsie rejected this, "Again, I'm not accepting that, respectfully. The NAC quorum is prescribed by the NAC Act of 1997. You don't have to go and get a legal opinion on something when the Act tells you what a quorum of the NAC is. The department ought to have known that these six resignations meant we don't have a quorum. And to normalise the situation, the department ought to have acted immediately to fill those vacancies," he said.

He asked what was the difference between the new advert and the previous one.

"I don't think there is a difference in terms of the competencies that are required," Khumalo said.

A DSAC entity oversight official, Tsanyane was blunter. "There is no difference, Honourable Member, because it is prescribed in the Act as well," Tsanyane said.

Letsie said the seats could have been filled by now. "If we knew on 15 October that we had this challenge that was going to hamper the functionality of the board, you just take a week, advertise through the newspapers, and close by 31 October. You should be here saying to us: we've received 140 applications, we're going through them, and before the end of November we'll have vetted and appointed these people," he said.

Letsie warned that the council's work in the meantime could cost money.

"When the AG audits and says you have paid these people board fees, whatever the case may be, Minister, it would be wasteful expenditure. And that could have been avoided, in my view," Letsie said.

Earlier in the meeting, Sport, Arts and Culture Minister Gayton McKenzie said the department moved "immediately after the resignations". He said the advert would be in the newspapers this week.

Khumalo said DSAC now aims to appoint new members by the end of December.

"We have drawn up a process map. As we said, we are advertising this coming Friday, Saturday. And we have a process map that puts us at the level of having appointed by the end of December," she said.

There is also confusion about whether the council has been meeting at all.

Khumalo said the NAC's company secretary told DSAC the council "was not meeting" because of the resignations.

NAC acting CEO Lebogang Magoera said it was.

"Subsequent to the situation of being below the minimum threshold of direct ministerial appointments, we were supposed to submit the report by 30 October, as well as the draft APP and all of that. So the council convened for that purpose.

"But I appreciate its limitations. They just gave a concurrence, not deciding, because there was uncertainty about whether I'm able to comply with those mandatory submissions. And then we also convened yesterday in preparation for this meeting," Magoera said.

Asked whether the council had the power to approve the annual performance plan, Magoera said it did not.

"Since it's not a fully constituted council, the approval of the APP is a material matter. So they would not have the authority, because they are not properly constituted," he said.

Letsie said the problem was bigger than the NAC.

"It's as if these entities don't account to the department. It's as if they are autonomous. Sometimes, Minister, I even say I want to wake up, go to the department and see what it is that they are doing the whole day, from nine to four. Because things stay dormant in the department when we have people responsible for those particular issues,"

Section 4(1) of the National Arts Council Act says the council "shall consist of nine provincial representatives and no fewer than nine and no more than 18 other persons." Section 8(3) says a quorum "shall be a majority of its members".

The minister appoints the 'other persons' from a shortlist drawn up by an independent panel, after public nominations and public interviews.