REPUBLIC OF SOUTH AFRICA
Government Gazette
Vol. 521 Cape Town 24 November 2008 No. 31634
THE PRESIDENCY No. 1259 24 November 2008
It is hereby notified that the President has assented to the following Act, which is hereby published for general information:–
No. 26 of 2008: Technology Innovation Agency Act, 2008.
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ACT To provide for the promot ion of the deve lopment and exploitat ion in the public interest of discoveries , invent ions , innovat ions and improvements , and for that purpose to establish the Technology Innovation Agency; to provide for its powers and duties and for the m a n n e r in which it must be managed a n d control led; and to repeal an Act; and to provide for matters connected therewith.
BE IT E N A C T E D by the Par l iament of the Republic of South Africa, asfo l lows:— A R R A N G E M E N T O F S E C T I O N S
Sections
1. Definitions 2. Establ ishment of Agency 3. Object of Agency 4. Powers and duties of Agency 5. Board of Agency 6. Disqualification from membersh ip 7. Removal from office and vacation of office 8. Term of office of members of Board 9. Remunerat ion of members of Board 10. Meetings of Board 11. Chief Execut ive Officer of Agency 12. Employees of Agency 13. Commit tees of Board 14. Funding of Agency 15. Liquidation of Agency 16. Regulat ions 17. Repeal of law 18. Transitional provisions 19. Short title and c o m m e n c e m e n t
Definitions
1. In this Act, unless the context indicates o the rwise— " A g e n c y " means the Technology Innovation Agency established by section 2: " B o a r d " means the Board of the Agency contemplated in section 5; "Chief Execut ive Officer" means the person appointed as such in terms of section 11; " D e p a r t m e n t " means the Depar tment of Science and Technology: "intellectual proper ty" means an invention, including any patent applicat ions and registered patents as defined in the Patents Act, 1978 (Act No. 57 of 1978). or any copyright works as defined in the Copyright Act. 1978 (Act No . 98 of 1978), plant breeders rights or designs as defined in the Designs Act , 1995 (Act N o . 195 of 1993), or t rademarks as defined in the Trademark Act. 1993 (Act No. 194 of 1993);
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"Minis ter" means the Minister responsible for Science and Technology; "prescr ibed" means prescribed by regulat ions made in terms of section 16; "technological innovat ion" means the application in practice of creat ive new ideas, which includes inventions, discoveries and the processes by which new products and services enter the market and the creation of new businesses; "this A c t " includes the regulat ions.
Establ ishment of Agency
2. (1) There is hereby established a jurist ic person known as the Technology Innovation Agency which is capable of suing and being sued in its own name and of performing, subject to this Act, such acts as are necessary for or incidental to the carrying out of its objects.
(2) The Public Finance Management Act, 1999 (Act No. 1 of 1999), applies to the Agency.
Object of Agency
3. The object of the Agency is to support the Stale in st imulat ing and intensifying technological innovation in order to improve economic growth and the quality of life of all South Africans by developing and exploit ing technological innovat ions.
Powers and duties of Agency
4. (1) The Agency m a y — (a) on such condit ions as the Board may de t e rmine—
(i) provide financial and any other assistance to any person, for the purpose of enabling that person to deve lop any technological innovation:
(ii) establish a company contemplated in the Companies Act, 1973 (Act N o . 61 of 1973). or in collaboration with any person, establish such a company for the purpose of developing or exploi t ing any technological innovation:
(iii) acquire any interest in any person under taking the deve lopment or exploitation of any technological innovation supported by the Agency ;
(iv) draw together and integrate the management of different technological innovations, incubation and diffusion initiatives in South Africa;
(v) develop the national capacity and infrastructure to protect and exploit intellectual properly derived from research financed by the Agency : and
(vi) acquire rights in or to any technological innovation supported by the Agency from any person, or assign any person any right in or to such technological innovation:
(b) apply for patents or the revocation thereof and institute any legal action in respect of any infringement of intellectual property rights;
(c) purchase or hire land or buildings or erect buildings and alienate such land or terminate or assign any such hire and. in the case of buildings in which the business of the Agency is being conducted, let such port ions as are for the l ime being not required for the business of the Agency ;
(d) establish such offices, including regional offices, as the Board in consultat ion with the Minister may determine:
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(e) purchase , take on lease, hire out or alienate any movab le property; (f) take such security as it may deem fit, including special mor tgage bonds over
in movable property, notarial bonds over movab le property, pledges of movable property, cessions of rights and in general any other form of cover or security: and
(g) generally deal with any matter necessary or incidental to the performance of its functions in terms of this Act.
(2) Where the Agency enters into a transaction with a person as contempla ted in subsection (1)(a)(ii) and (iii). the Agency may. after consultat ion with the Minister, elect to be represented in the Board of such person.
(3) Where a right in or to any technological innovation has, in terms of subsection ( l ) (a ) (v i ) , been acquired by the Agency or assigned by the Agency to any person, the Agency or such person, as the case may be. must for the purposes of the Patents Act, 1978, be regarded as the assignee of the discoverer or inventor of such technological innovation.
Board of Agency
5. (1) There is hereby established a Board, known as the Board of the Agency, consist ing of—
(a) a chairperson; (b) not less than six and not more than nine members ; and (c) the Chief Executive Officer of the Agency, as an ex officio member .
(2) The Board is responsible for the management and control of the Agency. (3) The Board must prepare an Investment Framework Policy, as prescr ibed, and
review such policy on an annual basis. (4) The Minister must appoint a panel which must compi le a shortlist of candidates for
members of the Board, and such shortlist must be compiled after a transparent and competi t ive nomination process .
(5) The members of the Board contemplated in subsection (1)(a) and (b) are appointed by the Minister, in consultation with the National Assembly , on the grounds of their knowledge a:id experience in technological innovation, technology manage ment, intellectual property and commercial isat ion thereof and business skills which, when considered collectively, should enable them to attain the objects of the Agency.
(6) Subject to the Promotion of Adminis t ra t ive Justice Act, 2000 (Act N o . 3 of 2000) . the Minister may dissolve the Board on the grounds of mismanagement .
(7) (a) When the Minister dissolves the Board in terms of subsect ion (6), the Minis ter may appoint an interim body for the continued governance and control of the affairs of the Agency, on such condit ions as the Minister may determine .
(b) Such a body must be appointed for a period not exceeding six months or until the new Board is appointed in terms of subsection (5), whichever is the lesser.
Disqualif ication from membersh i p
6. A person may not be appointed or continue as a member of the Board if such person i s —
(a) declared by a competent court to be mental ly ill. as defined in the Mental Health Act. 1973 (Act No. 18 of 1973);
(b) convicted of an offence and sentenced to impr isonment without the option of a line, or in the case of fraud, to a fine or imprisonment ;
(c) elected as a member of National Assembly, a provincial legislature or the council of a municipality, or is appointed as a delegate to the National Counci l of Provinces by a provincial legislature:
(J) not a South African citizen or cease to be be a South African citizen: (e) removed from a position of trust by a competent court of law; or (f) an unrehabili tated insolvent.
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Removal from office and vacat ion of office
7. (1) The Minis ter may, after consultation with the members of the Board, r emove a member of the Board from office on account of—
(a) misconduct ; (b) inability to perform the duties of his or her office efficiently; (c) absence from three consecut ive meet ings of the Board without the leave of the
Board, except on good cause shown. (2) If a member of the Board ceases to hold office or is removed from office in terms
of subsection (1), the Minis ter may appoint a person w h o meets the criteria contemplated in section 5(5) in that m e m b e r ' s place for the remaining part of the term of office.
(3) A member must vacate his or her office if— (a) he or she is disqualified in terms of section 6; or (b) he or she tenders his or her resignation to the Minister and the Minister accepts
the resignation.
Term of office of m e m b e r s of Board
8. (1) Members of the Board hold office for a period of four years and are eligible for reappointment on expiry of their term.
(2) When reappoint ing member s of the Board, the Minister must ensure that the term of office of members of the Board will not expire at the same time.
(3) A member may not serve more than two consecutive terms.
Remunerat ion of m e m b e r s of Board
9. M e m b e r s of the Board receive such remunerat ion and al lowances as the Minister, with the concurrence of the Minister of Finance, may determine.
Meet ings of B o a r d
10. (1) The chairperson must preside at a meet ing of the Board. (2) If the chairperson is not present at the meet ing of the Board, the members of the
Board present at that meet ing must elect from amongst themselves a member to preside at such a meet ing.
(3) The Board must meet at least four t imes a year at such time and place as the Board may determine.
(4) The Board may determine the procedure for its meet ings . (5) The chai rperson—
(a) may convene a special meet ing of the Board; and (b) must , within 14 days of receipt of a written request signed by at least two
thirds of the member s of the Board to convene a special meet ing, convene such a special meet ing.
(6) A quorum for a meet ing of the Board is two thirds of the members eligible to vote at that meet ing.
(7) A decision of the Board must be taken by resolution of the majority of the members present at a meet ing of the Board, and, in the event of an equality of votes the person presiding at the meet ing has a casting vote in addition to his or her del iberat ive vote.
(8) A member of the Board may not vote or in any manner be present dur ing or participate in the proceedings at any meeting of the Board if, in relation to any matter before the Board, he or she has any interest which precludes him or her from performing his or her functions as a member of the Board in a fair, unbiased and proper manner.
Chief Execut ive Officer of Agency
11. (1) The Minister must, on the recommenda t ion of the Board, appoint a suitably skilled and qualified person as the Chief Execut ive Officer who must be responsible for the management of the affairs of the Agency.
(2) The appointment must be made after following a transparent and compet i t ive selection process.
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(3) The Chief Execut ive Officer is responsible for the adminis t ra t ion, general management and control of the day-to-day functioning of the Agency, subject to the directions and instructions issued by the Board.
(4) The Chief Execut ive Officer is accountable to the Board on the mailers referred to in subsection (3).
(5) The Chief Executive Officer holds office for a period not exceeding five years and is eligible for reappointment on expiry of his or her term.
(6) The Chief Execut ive Officer may not serve more than two consecut ive terms. (7) The Chief Execut ive Officer holds office on such terms and condit ions, including
those relating to remunerat ion and al lowances , as the Minister, after cons ider ing the recommendat ions of the Board and in consultat ion with the Minister of Finance , may determine in writing.
(8) The Chief Execut ive Officer must enter into a performance agreement with the Board within three months of taking up his or her post as Chief Execut ive Officer.
(9) Whenever for any reason the Chief Execut ive Officer is absent from office for a period of more than two months , or unable to carry out his or her duties, or whenever there is a vacancy in the office of the Chief Execut ive Officer, the Minis ter may. with the concurrence of the Board, appoint any person who meets the requirements de te rmined in terms of subsection (1) to act as Chief Executive Officer, until the Chief Execut ive Officer is able to resume those functions or until the vacant posit ion of the Chief Executive Officer is tilled.
(10) The acting Chief Execut ive Officer has all the powers and performs all the duties of the Chief Execut ive Officer.
Employees of Agency
12. (1) The Chief Execut ive Officer must, on such terms and condi t ions as the Board may determine , appoint employees of the Agency or receive on secondment such persons as are necessary to enable the Agency to perform its functions.
(2) The Agency must pay the employees of the Agency such remunera t ion , al lowances, subsidies and other benefits as the Minister, in consultat ion with the Minister of Finance, may determine .
(3) The Chief Execut ive Officer is responsible for the adminis t ra t ive control , organisation and discipline of the employees of the Agency and for ensur ing compl iance with applicable labour legislation.
(4) The Agency may, under the Pension Funds Act, 1956 (Act N o . 24 of 1956). establish any pension fund for its employees .
Commit tees of Board
13. (1) The Board may establish one or more commit tees to perform such functions as the Board may determine.
(2) The Board may appoint as member s of such c o m m i t t e e s — (a) any member of the Board; (b) any employee of the Agency: or (c) any other person with suitable skills or exper ience, w h o must be paid such
remunerat ion and al lowances as the Minister, with the concurrence of the Minister of Finance , may determine.
(3) The Board may at any time dissolve or reconsti tute a commit tee . (4) The Board is not absolved from the performance of any function assigned to any
commit tee under this section.
Funding of Agency
14. (1) The funds of the Agency consist of— (a) money appropriated by Parl iament: (b) revenue, including interest derived from its investments : (c) money raised or borrowed by the Agency ; (d) money obtained from such other sources as the Board may, from time to time,
determine and as may be consistent with the objects and functions of the Agency; and
(c) donat ions and contr ibut ions.
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(2) Subject to this section, all income and property and all the proceeds of the Agency must be applied exclusively to the promotion of the object of the Agency.
(3) The Agency may, in the prescribed manner, establish and maintain reserve funds, the aggregate of which may not exceed an amount approved by the Minis ter in consultat ion with the Minis ter of Finance.
Liquidat ion of Agency
15. The Agency may not be wound up except by or under the authority of an Act of Parliament.
Regulat ions
16. The Minister may make regulat ions with regard t o — (a) the establ ishment and maintenance of reserve funds of the Agency as
contemplated in section 14(3); (b) the Investment Framework Policy contemplated in section 5(3) ; (c) any matter that may or must be prescribed in terms of this Act ; (d) any ancillary or incidental administrat ive or procedural matter that is
necessary to prescribe for the proper implementat ion or administrat ion of this Act.
Repeal of law
17. The Inventions Development Act, 1962 (Act No . 31 of 1962), is hereby repealed.
Transitional provis ions and savings
18. (1) The South African Inventions Development Corporat ion (herein after referred to as the Corporat ion) established by section 2 of the Inventions Deve lopment Act, 1962 (Act No. 31 of 1962), is hereby disestablished.
(2) The Account ing Officer of the Department must deregister the South African Inventions Development Corporat ion in terms of the Companies Act, 1973 (Act N o . 61 of 1973).
(3) The board of directors of the Corporat ion contemplated in section 6 of the Inventions Development Act , 1962 (Act No. 31 of 1962), (herein after referred to as the Inventions Deve lopment Act) , is hereby dissolved.
(4) At the c o m m e n c e m e n t of this A c t — (a) all the rights, assets, obligations and liabilities of the Corpora t ion vest in the
Council for Scientific and Industrial Research, (herein after referred to as the CSIR) :
(b) the personnel of the Corporat ion contemplated in section 5 of the Invent ions Development Act must be transferred to the CSIR in accordance with section 197 of the Labour Relat ions Act , 1995 (Act N o . 66 of 1995); and
(c) anything done in terms of the Inventions Development Act prior to such commencemen t and which may be done in terms of this Act, must be deemed as having been done in terms of this Act.
Short title and c o m m e n c e m e n t
19. This Act is called the Technology Innovation Agency Act, 2008 , and comes into operation on a date determined by the President by proclamation in the Gazette.