Northern Cape Arts and Culture Council Act, 2013 (Act 8 of 2013)

Northern Cape Provincial Gazette no. 1784
This is the latest version of this legislation commenced on 05 Mar 2014.
Northern Cape

South Africa

Northern Cape Arts and Culture Council Act, 2013

Act 8 of 2013


AN ACT To establish a juristic person to be known as the Northern Cape Arts and Culture Council; to determine its objects, functions and operation; to regulate its staff and financial matters; and to provide for matters connected therewith.Be IT ENACTED by the Provincial Legislature of the Northern Cape Province as follows:-


Chapter I
Interpretation

1. Definitions

In this Act, unless the context otherwise indicates,-"chairperson" means the chairperson of the Council appointed in terms of section 4(6) ;"chief executive officer" means the chief executive officer appointed in terms of section 13(1);"committee" means a committee of the Council appointed in terms of section 12;"Constitution" means the Constitution of the Republic of South Africa, 1996;"Council" means the Northern Cape Arts and Culture Council established by section 2;"Department" means the Provincial Department responsible for arts and culture in the Province;"district municipality" means a district municipality as defined in the Local Government: Municipal Structures Act, 1998 (Act No. 117 of 1998);"Executive Council" means the Executive Council of the Province as referred to in section 132 of the Constitution;"family member" means a person’s -(a)spouse; or(b)child, parent, brother or sister, whether such a relationship results from birth, marriage or adoption;"financial year" means the period commencing on the first day of April in any year to the thirty-first day of March in the ensuing year, both days inclusive;"Head of Department" means the Head of the Department responsible for arts and culture in the Province;"head of the provincial treasury" means the head of the provincial treasury in the Province referred to in section 17(1)(a) of the Public Finance Management Act, 1999 (Act No. 1 of 1999);"member" means a member of the Council;"organ of state" has the meaning set out in section 239 of the Constitution;"political office-bearer" means -(a)a member of the National Assembly or the National Council of Provinces or the Cabinet;(b)a member of a provincial legislature;(c)a diplomatic representative of the Republic who is not a member of the public service;(d)a member of a house or Council of traditional leaders;(e)a member of a municipal Council; or(f)a national or provincial office-bearer of any political party;"Premier" means the Premier of the Province referred to in section 125 of the Constitution;"Province" means the Northern Cape Province referred to in section 103(l)(g) of the Constitution, or any part thereof;"Provincial Gazette" means the Provincial Gazette of the Province;"region" means the area of jurisdiction of a district municipality;"Republic" means the Republic of South Africa referred to in section 1 of the Constitution;"responsible Member" means the Member of the Executive Council responsible for arts and culture in the Province;"the arts" includes all forms of music, dance, drama, theatre, craft, visual art literature and community art; and"this Act" includes any regulation made under this Act.

Chapter II
The Council

2. Establishment of the Northern Cape Arts and Culture Council

A juristic person to be known as the Northern Cape Arts and Culture Council is hereby established.

3. Objects of the Council

The objects of the Council are, within the Province, to —

(a)encourage and provide opportunities for persons to practice the arts;
(b)promote the appreciation, understanding and the enjoyment of the arts;
(c)promote the general application of the arts in the community;
(d)uphold and promote the right of persons to freedom in the practice of the arts;
(e)address historical imbalances in the provision of infrastructure and funding for the promotion of the arts;
(f)develop and promote the arts and encourage excellence in performance and expression in art works and forms;
(g)provide financing for facilities where art and cultural activities may be practiced; and
(h)encourage and recognise innovations and creativity in all art works and forms.

4. Composition of the Council

(1)The Council consists of 8 members to be appointed by the responsible Member, subject to subsection (4).
(2)Every one of the 5 regions in the Province must be represented in the Council.
(3)The responsible Member must, before appointing members, request nominations to be made for suitable persons to serve as members of the Council in at least one newspaper circulating in the Province and in the Provincial Gazette.
(4)Members of the Council must have special knowledge or experience in —
(a)music;
(b)dance;
(c)theatre;
(d)film and video;
(e)literary arts;
(f)spoken wordarts;
(g)visual arts;
(h)crafts;
(i)community art and culture;
(j)art education;
(k)technical knowledge of the arts;
(l)law;
(m)finance; or
(n)management, and must be broadly representative of the gender, language and community composition of the Province.
(5)The Head of Department or an official designated by the Head of Department to represent the Department and the chief executive officer are entitled to be present and take part in the discussions at meetings of the Council, but are not members of the Council and may not vote at such meetings.
(6)The responsible Member must appoint a chairperson and deputy chairperson from amongst the members of the Council.
(7)Before being appointed a member of the Council, the candidate must submit to the responsible Member an affidavit in which such candidate declares that he or she —
(a)is eligible for such appointment; and
(b)is not disqualified in terms of this Act from such appointment.
(8)The responsible Member is at any time entitled to call for proof to his or her satisfaction of the continued eligibility of any member or prospective member of the Council, or to undertake or cause to be undertaken any investigation or enquiry in that regard.

5. Powers and functions of the Council

In order to achieve its objects, the Council may -

(a)give financial support, advice and information to persons, organisations and institutions that may approach it for that purpose;
(b)investigate and determine the need of, and give support, advice and information to persons, organisations and institutions;
(c)promote and encourage equity in arts and culture;
(d)conduct research into various fields of art;
(e)establish, compile and maintain a database of persons, organisations, institutions, equipment and facilities connected with the arts;
(f)raise funds with the written consent of the responsible Member to promote the objects of this Act;
(g)enter into agreements with persons, organisations or institutions with written consent ol the responsible Member;
(i)establish, maintain and administer, or, with the written consent of the responsible Member, take over any enterprise or institution operating within the scope of its objects, powers or functions;
(i)provide training in any form of the arts and may establish, maintain and administer any institution providing such training;[Please note: numbering as in original.]
(j)purchase, acquire, possess, hire, alienate or let, pledge or encumber movable property and with the approval of the responsible Member, with the concurrence of the head of the provincial treasury, purchase, acquire, possess, hire, alienate or let pledge or encumber, immovable property;
(k)on request advise the responsible Member on matters and policy regarding the arts and culture;
(l)publish information on its objects and functions;
(m)report quarterly on its activities to the responsible Member; and
(n)perform such other functions that are necessary to achieve the objects of this Act.

6. Term of office of members of the Council and filling of vacancies

(1)A member may be appointed for a period of 5 years.
(2)A member whose term of office has expired is eligible for reappointment, but may not serve more than 2 terms of office.
(3)Any vacancy on the Council may be filled by appointment in the manner in which the member who vacates the office was required to be appointed, and any member so appointed holds office for the unexpired portion of the period for which the member who vacated the office was appointed.

7. Eligibility to serve on the Council

(1)To be eligible to serve as a member of the Council, and to continue to hold that office, a person must —
(a)be a fit and proper person;
(b)not be subject to any disqualification set out in subsection (2);
(c)have submitted to the responsible Member the affidavit referred to in section 4(7); and
(d)be a citizen of the Republic and ordinarily residing in the country.
(2)A person may not be a member of the Council if that person -
(a)is a political office-bearer;
(b)is an unrehabilitated insolvent, or becomes insolvent and the insolvency results in the sequestration of his or her estate;
(c)was once, or is removed from an office of trust on account of misconduct;
(d)is subject to an order of a competent court holding that person to be mentally deranged;
(e)within the previous ten years has been, or is, convicted in the Republic or elsewhere of theft, fraud, forgery or uttering a forged document, perjury, an offence under the Prevention and Combating of Corrupt Activities Act, 2004 (Act No. 12 of 2004), an offence under Chapter 2 or 3 of the Prevention of Organised Crime Act, (Act No. 121 of 1998), an offence under the Financial Intelligence Centre Act, 2001 (Act No. 38 of 2001) or an offence involving dishonesty; or
(f)has been convicted of any other offence committed after the Constitution of the Republic of South Africa, 1993 (Act No. 200 of 1993), took effect, and sentenced to imprisonment without the option of a fine.
(3)The provisions of subsections (1) and (2), read with the changes required by the context, apply to any official referred to in section 4(5).

8. Conflicting interests

(1)A member of the Council must not —
(a)engage in any activity that may undermine the integrity of the Council;
(b)attend, participate in or influence the proceedings during a meeting of the Council if, in relation to the matter before the Council, that member has an interest that precludes the member from performing the duties of a member of the Council in a fair, unbiased and proper manner;
(c)vote at any meeting of the Council in connection with a matter contemplated in paragraph (b);
(d)make private use of, or profit from, any confidential information obtained as a result of performing duties as a member of the Council; or
(e)divulge any information referred to in paragraph (d) to any third party, except as required as part of that person’s official functions as a member of the Council.
(2)If, at any time, it appears to a member of the Council that a matter before the Council concerns an interest of that member referred to in subsection(1)(b), the member must -
(a)immediately and fully disclose the nature of that interest to the meeting; and
(b)withdraw from the meeting to allow the remaining members to discuss the matter and determine whether the member should be prohibited from participating in any further proceedings concerning that matter.

9. Removal from office

(1)The responsible Member may, by written notice, remove any member of the Council from office —
(a)on the grounds of misconduct or incompetence;
(b)if the member becomes subject to a disqualification contemplated in section 7(2);
(c)if the member is absent for more than two meetings of the Council in one year without sound reason, or, in the case of absence due to medical reasons, without presenting a valid medical certificate.
(2)A decision to remove a member of the Council on the grounds of misconduct or incompetence must be based on a finding to that effect by an investigating tribunal appointed by the responsible Member.
(3)A notice contemplated in subsection (1) must state the reasons for removal of the member.
(4)The responsible Member may at any time disband the Council if he or she is, on reasonable grounds, convinced that the Council is not functioning properly or that it will be in the community’s or public interest to do so.

10. Remuneration of members of Council

(1)A member of the Council must be paid such reasonable remuneration and allowances out of the funds of the Council as the responsible Member, with the concurrence of the head of the provincial treasury, may from time to time determine.
(2)A member of the Council, who is in the full-time employ of any organ of state, may not receive remuneration in terms of subsection (1).
(3)Remuneration determined in terms of subsection (1) must be published in the Provincial Gazette by the responsible Member before it becomes effective.
(4)Members of the Council are entitled to be reimbursed for any travelling and subsistence expenses reasonably incurred by them for the performance of their functions as members of the Council.

11. Meetings of the Council

(1)The chairperson determines the date, time and place for the first meeting of the Council, and the chairperson, in consultation with the Council, determines the date, time and place for each subsequent meeting.
(2)The chairperson, in consultation with the Council, may determine procedures at meetings of the Council, after due consideration of the principles of openness and transparency.
(3)A majority of the members of the Council contemplated in section 4(1) is a quorum for a meeting of the Council.
(4)The Council must attempt to reach its decision by consensus.
(5)If the Council is unable to reach a consensual decision in any matter before it, the Council may resolve the matter by a simple majority vote on a motion.
(6)In the event of an equality of votes regarding any matter put to the vote, the chairperson has a casting vote in addition to his or her deliberative vote.
(7)Subject to subsections (4), (5) and (6), the Council may establish rules for its own proceedings.
(8)The chief executive officer must take minutes or cause minutes to be taken at meetings of the Council.
(9)Minutes of the proceedings of meetings of the Council must be retained at the offices of the Council and must be open to the public for inspection.
(10)No person who has access to any information classified by the Council as confidential, may, without permission of the Council, divulge such information.
(11)If a particular person is able to assist the Council in the consideration of a particular matter, the Council may co-opt that person for that purpose.
(12)A person so co-opted is not entitled to vote at any meeting of the Council or a committee of the Council.
(13)The Council must meet at least once every 3 months to, amongst other things, consider the report referred to in section 5(m).
(14)The responsible Member may call a meeting of the Council if the Council fails to comply with subsection (13).
(15)The chairperson must call an extraordinary meeting of the Council, if so requested by the responsible Member, the majority of members of the Council or chief executive officer.
(16)Whenever any matter to be dealt with by the Council is of such a nature that it requires the immediate and urgent attention of the Council and it is not possible for the Council to meet in order to attend to the matter, all relevant documentation pertaining to such matter must forthwith be made available to each member by the chief executive officer for consideration.
(17)A matter referred to in subsection (16) and agreed upon in writing by a simple majority of the Council members will, subject to subsection (18), be a resolution of the Council.
(18)A resolution contemplated in subsection (17), must be reported to the Council by the chief executive officer at its next ensuing meeting and must be so recorded in the minutes of that meeting.

12. Committees of Council

(1)The Council may establish committees, with the power to co-opt other persons, for the purpose of assisting it with the due and proper exercise and performance of any of its powers and functions in terms of this Act, and may likewise dissolve, extend, enlarge or limit any committee so established.
(2)
(a)A committee established under subsection (1), consists of no fewer than three members designated by the Council being suitable and appropriately qualified or experienced regarding matters relating to the functions of the committee in question.
(b)The Council must designate a Council member serving on a committee as the chairperson of such committee.
(3)A co-opted member of a committee serves in an advisory capacity, and may not vote at any meeting of such committee.

Chapter III
Staff matters

13. Staff of Council and remuneration

(1)The Council
(a)must, subject to sections 14, 15 and 16 and with the concurrence of the responsible Member, appoint a suitably qualified and experienced person as chief executive officer, who —
(i)subject to the direction and control of the Council, is responsible for all financial and administrative responsibilities pertaining to the functions of the Council; and
(ii)is accountable to the Council;
(b)must, with the concurrence of the responsible Member, determine a staff establishment for the Council; and
(c)may, on the establishment contemplated in paragraph (b), appoint any other staff as may be necessary to enable the Council to perform its functions.
(2)Section 7(1) and (2) and section 8, read with the changes required by the context, apply to the chief executive officer and each staff member to be appointed in terms of this Act.
(3)The Council may, with the concurrence of the responsible Member and the head of the provincial treasury, determine the remuneration, allowances, employment benefits and other terms and conditions of appointment of a person appointed in terms of subsection (1).
(4)The Council may delegate its powers in terms of subsection (l)(c) to the chief executive officer.
(5)The responsible Member may, after consultation with the Council, second any official on the establishment of the Department to the Council in accordance with section 15(3) of the Public Service Act, 1994.

14. Chief executive officer

(1)The chief executive officer, appointed in terms of section 13(1), must be a person who has appropriate qualifications, knowledge or experience regarding the business and operations of the Council.
(2)The chief executive officer must have thorough knowledge of the financial and provisioning administration prescripts incumbent on the Council.
(3)The Council must, when appointing a chief executive officer, through public invitation, request applications for that position.
(4)The chief executive officer is appointed for such period and on such terms and conditions of service as the Council may, subject to section 13(3), determine, but -
(a)the chief executive officer may not be so appointed for a period exceeding 5 years;
(b)upon the expiration of the term of office of the chief executive officer, he or she is eligible for reappointment for one further term of 5 years only;
(c)the chief executive officer may not undertake any other remunerative work, without the prior written consent of the Council.
(5)The chief executive officer may, on 3 months’ written notice tendered to the Council, resign from his or her office.
(6)Whenever the office of chief executive officer is vacant or the chief executive officer is absent or incapacitated or refuses or fails to act, the powers and functions of the chief executive officer may be exercised and performed by any person designated as the acting chief executive officer by the responsible Member, but such person may not be the acting chief executive officer for a period exceeding 6 months in total.
(7)While a person appointed as contemplated in subsection (6) so acts, he or she may exercise the powers and perform the functions of the chief executive officer.

15. Removal of chief executive officer from office

(1)The Council may remove the chief executive officer from office —
(a)on account of his or her improper conduct;
(b)for unfitness for the functions of his or her office;
(c)on the ground of a permanent infirmity of mind or body which renders him or her incapable of discharging the functions of his or her office or discharging them properly;
(d)on the ground that he or she is or has become subject to a disqualification envisaged in section 7(2).
(2)The Council may, in order to determine whether there exists sufficient cause for the removal of the chief executive officer from office as contemplated in subsection (1), initiate an inquiry or investigation for that purpose.
(3)Whenever any inquiry or investigation, initiated as contemplated in subsection (2), is being undertaken, the Council may and with due regard to the provisions of the Labour Relations Act, 1995 (Act No. 66 of 1995), suspend the chief executive officer from his or her office pending the outcome of such an inquiry or investigation.
(4)For the purposes of subsection (l)(a), non-compliance by the chief executive officer with any provision of this Act or the Public Finance Management Act, 1999 (Act No. 1 of 1999), amongst other things constitutes improper conduct.

16. Employment contract and performance agreement of chief executive officer

(1)The appointment of the chief executive officer by the Council as contemplated in section 13(1) becomes effective from the date of the entering into a written employment contract with the Council, which employment contract must be for the duration of his or her term of office 40 as chief executive officer.
(2)The employment contract contemplated in subsection (1) must, as a minimum, contain the chief executive officer’s personal particulars, term of office, conditions of service, powers, functions, responsibilities, duties as 45 well as his or her remuneration, allowances and benefits.
(3)In addition to the employment contract as contemplated in subsection (1), the chief executive officer must annually, prior to the commencement of the financial year concerned, conclude a performance agreement with the Council which performance agreement’s term of operation must coincide with the financial year of the Council.
(4)The performance agreement contemplated in subsection (3) must, as a minimum, contain a reference to the financial year to which such performance agreement pertains, the purpose of the chief executive officer’s job, the key result areas, financial and management criteria, performance guidelines and targets of such job, as well as the standards for measuring the performance of the chief executive officer, by the Council, on at least a bi­-annual basis.

Chapter IV
Finance and procurement

17. Finances

(1)The Council is financed from —
(a)money appropriated by the Provincial Legislature for the Council;
(b)any money payable to the Council in terms of this Act;
(c)income derived by the Council from its investment and deposit of surplus money in terms of subsection (6); and
(d)all other monies legally accruing to the Council from any source.
(2)The financial year of the Council is the period from 1 April in any year to 31 March of the following year.
(3)The prescripts incumbent on a provincial public entity, contained in the Public Finance Management Act, 1999 (Act No. 1 of 1999), and the Treasury Regulations apply to the Council.
(4)The Council must open and maintain an account in the name of the Council with a registered bank in the Republic and —
(a)any money received by the Council must be deposited into thataccount; and
(b)every payment on behalf of the Council must be made from that account.
(5)Withdrawals from the account of the Council must be authorized on its behalf by two persons designated for that purpose by resolution of the Council.
(6)The Council may invest or deposit money of the Council that is not immediately required for contingencies or to meet current expenditures —
(a)on a call account or short-term fixed deposit with any registered bank or financial institution in the Republic; or
(b)in an investment account with the Corporation for Public Deposits established in terms of section 2 of the Corporation for Public Deposits Act, 1984 (Act No. 46 of 1984).
(7)Any money standing to the credit of the Council at the end of any financial year of the Council, excluding such money as has been approved by the responsible Member, being necessary for the reasonable immediate running expenses of the Council, must be paid into the Provincial Revenue Fund.
(8)No loan may be made out of the funds of the Council, or from any other funds administered or held in trust by the Council, to a member of the Council, or a member of the staff of the Council, or to a family member of such member of the Council or member of the staff of the Council.

18. Accountability, audits and reports

(1)The Council must —
(a)account for state and other money received by, or paid for, or on account of the Council; and
(b)cause the necessary accounting and related records to be kept, in accordance with the Public Finance Management Act, 1999 (Act No. 1 of 1999).
(2)The records referred to in subsection (l)(b) must be audited by the Auditor General.
(3)The Council must, through the Head of Department, report at least quarterly in writing to the responsible Member on its activities.
(4)The Council must submit the report and statements referred to in section 55(1) of the Public Finance Management Act, 1999 (Act No. 1 of 1999), to the responsible Member in the way required by section 55(3) of that Act.
(5)The responsible Member must, as soon as practicable after receiving the report and statements referred to in subsection (4), table it in the Provincial Legislature.
(6)The Council must, in the report contemplated in subsection (4), as far as the exercise and performance of its powers and functions during the year being reported on, are concerned, also include reference to -
(a)its achievements;
(b)its failures;
(c)the financial implications of all such achievements and failures;
(d)any recommendations pertaining to its objects, for consideration.
(7)The Council must establish an audit committee for the Council consisting of at least three persons in accordance with Treasury Regulation 27.
(8)The audit committee must prepare, sign and submit to the Council, within 15 days of the end of each quarter, a report in respect of the operations including the income and expenditure of the Council in respect of the preceding quarter.

19. Appropriation of income and property

The moneys appropriated by the Provincial Legislature to the Council as contemplated in section 17(1)(a), must be utilized in accordance with such appropriation and all other income, property and profits of the Council must be utilized exclusively for the achievement of its objects and in accordance with the provisions of this Act.

20. Procurement

(1)When procuring any supply or service, or hiring or letting anything or acquiring or granting any right or acquiring or disposing of any asset for or on behalf of the Council as contemplated in section 5, the Council must ensure that such procurement is effected in accordance with, and duly complies with -
(a)the regulations made or instructions issued by the National Treasury in respect of an appropriate procurement and provisioning system which is fair, equitable, transparent, competitive and cost-effective as contemplated in section 76(4)(c) of the Public Finance Management Act, 1999 (Act No. 1 of 1999);
(b)the instructions issued by the Provincial Treasury as contemplated in section 18(2)(a) of the Public Finance Management Act, 1999 (Act No. 1 of 1999), in respect of an appropriate procurement and provisioning system which is fair, equitable, transparent, competitive and cost-effective;
(c)the appropriate procurement and provisioning system which is fair, equitable, transparent, competitive and cost-effective as established by the Council, as contemplated in section 51 (l)(a)(iii) of the Public Finance Management Act, 1999 (Act No. 1 of 1999) and Treasury Regulation 16A; and
(d)the Preferential Procurement Policy Framework Act, 2000 (Act No. 45 of 2000).
(2)The Council must adopt, within six months after the coming into operation of this Act, a procurement system consistent with subsection (1), which procurement system must be utilized for the procurement of all supplies, goods and services, as well as the disposal of supplies and goods by the Council.

Chapter V
General provisions

21. Delegation

(1)The Council may, subject to subsections (2) and (3), in writing, delegate any of its powers, functions or duties in terms of this Act, to the chief executive officer or a committee of the Council.
(2)The chief executive officer may, with the written permission of the Council, sub-delegate any power, function or duty delegated to him or her in terms of subsection (1), to any member of the staff of the Council.
(3)A delegation or sub-delegation, as the case may be, may be withdrawn by the Council or the chief executive officer with the concurrence of the Council, respectively.

22. Regulations

(1)The responsible Member may, by notice in the Provincial Galette, make regulations regarding -
(a)fees to be paid to the Council or any institution administered by the Council; and
(b)any other matter that may be necessary or expedient in order to achieve the objects of this Act.
(2)Any regulation made in terms of subsection (l)(a), may only be made with the concurrence of the head of the provincial treasury.
(3)No less than 1 month before any regulation is made under this section, the responsible Member must cause the text thereof to be published in the Provincial Gazette together with a notice declaring his or her intention to make that regulation and inviting interested persons to furnish any comments thereon or any representation which they may wish to make in regard thereto, to the responsible Member on or before a date mentioned in the notice.
(4)The provisions of subsection (3) do not apply to an amendment made to any regulation published in terms of that subsection.

23. Repeal of laws

The laws mentioned in the Schedule are hereby repealed to the extent indicated in the third column of the Schedule.

24. Transitional and founding arrangements

(1)For the purpose of this section, "previous Act" means the Cultural Promotion act, 1983 (Act No. 35 of 1983).
(2)With effect from the date on which this Act comes into operation —
(a)the Northern Cape Arts and Culture Council established in terms of the previous Act continues to exist and function as if established under the corresponding provision of this Act, until the responsible Member appoints a new Council in accordance with the provisions of section 4;
(b)all assets, charges, rights, obligations and liabilities of any institution created in terms of the previous Act or administered by such institution, are transferred from that institution to the Council and the Council becomes the successor-in-law of the institution; and
(a)anything done under a provision of the previous Act and which may be done under the corresponding provision of this Act is regarded to have been done under the latter provision.[Please note: numbering as in original.]

25. Short title and commencement

This Act is called the Northern Cape Arts and Culture Council Act, 2013, and comes into operation on a date fixed by the Premier by proclamation in the Provincial Gazette.


Schedule

Laws repealed in terms of section 23(1)


No. and Year of Act Short title of Act Extent of repeal
Act No. 35 of 1983 Culture Promotion Act, 1983 The whole
Act No. 65 of 1989 Cultural Affairs Act (House of Assembly), 1989 The whole