This is an archive of the Treatment Action Campaign's public documents from December 1998 until October 2008. I created this website because the TAC's website appears unmaintained and people were concerned that it
was becoming increasingly hard to find important documents.

The menu items have been slightly edited and a new stylesheet applied to the site. But none of the documents have been edited, not even for minor errors. The text appears on this site as obtained from the Internet Archive.

The period covered by the archive encompassed the campaign for HIV medicines, the civil disobedience campaigns, the Competition Commission complaints, the 2008 xenophobic violence and the PMTCT, Khayelitsha health workers and Matthias Rath court cases.

MOTIVATION FOR PROPOSED AMENDMENTS TO TAC CONSTITUTION

Clause 1: technical amendment

To achieve consistency to make it easier to introduce new acronyms in the remainder of the text, so that wherever a new acronym is introduced, it can just be placed on its own in brackets after the full name (such as Provincial Executive Committee (PEC) and Annual General Meeting (AGM)).

Clause 2.4: technical amendment

To replace the name Executive Committee with National Executive Committee, and to make for easier reading by using the acronym NEC rather than the full name National Executive Committee each time the NEC is referred to.

Clause 2.5: clarification

The Constitution refers in some cases to a general meeting and in others to an extraordinary general meeting. The amendment is to make it clear that these are two different meetings, one being the Annual General Meeting (AGM) and the other being an Extraordinary General Meeting. Existing clause 2.5 also is unclear whether the term general meeting also refers to a National Congress – the proposed amendment makes it clear that it does.

Clause 2.6: clarification

In practice, the National Congress has always been the highest decision-making body of TAC. While this is implicit in the Constitution, it is better to expressly state this to avoid any potential for confusion.

Clause 3.1: to comply with current structure and practice of TAC

Existing clause 3.1 was drafted at a time when PECs or local branches did not exist and membership could only be sought from the NEC. This has changed, with most people joining TAC through local branches. The proposed amendment gives this effect, as do the proposed amendments to clause 5.2.

Also, the Constitution generally refers to persons and not to individuals – this is to ensure consistency. The term individual is used when speaking about a type of membership, not a person.

Clause 3.2: technical

To insert the correct name of the NEC and to make for easier reading

Clause 3.5: clarification

The existing definition of treatment confuses the definition of treatment with one of the aims and objectives of TAC – to campaign for access to treatment (see clause 4.1). The new definition simply defines what is meant by treatment, with the aspects of access to treatment dealt elsewhere in the Constitution.

Clause 3.6: technical

The Constitution refers to a Local Committee, instead of the term actually used – a TAC branch. Also, existing clause 3.6 does not refer to the specific sub-clause dealing with the establishment of branches – this could potentially result in unnecessary confusion.

Clause 3.6A: gap in the existing Constitution

The Constitution does not refer to a district committee, an existing TAC structure.

Clause 3.7: technical

The Constitution refers to a TAC Provincial Committee, instead of the term actually used – a PEC. Also, existing clause 3.7 does not refer to the specific sub-clause dealing with the establishment of PECs – this could potentially result in unnecessary confusion.

Clause 3.8: clarification

As there are also office-bearers at the PEC and TAC branch level, it is important to clarify which office-bearers are referred to here.

Clause 3.8A: gap in the existing Constitution

The Constitution does not refer to provincial office-bearers

Clause 3.8B: gap in the existing Constitution

The Constitution does not refer to district office-bearers

Clause 3.8C: gap in the existing Constitution

The Constitution does not refer to branch office-bearers

Clauses 3.9 and 3.10: technical

To make the clauses read better

Clause 4.1: clarification

See the motivation for the amendment of clause 3.5 above

Clause 4.2: technical

To correct a grammar error

Clause 4.4: clarification

To make sure that the term treatment refers to the treatment of HIV infection and AIDS-related illnesses and not the manner in which HIV/AIDS, as an issue, is treated. Also to make sure that TAC’s litigation work is not limited to issues of discrimination, as the text currently seems to suggest.

Clause 4.5: technical

To avoid repetition, as the definition of treatment in clause 3.5 already includes a reference to care

Clause 4.6: technical

To correct a grammar error

Clause 5.1.1: technical

To correct a grammar error

Clause 5.1.2: clarification

Clause 4 of the Constitution speaks about aims and objectives, whereas existing clause 5.1.2 only refers to objectives and policies. The proposed amendment is to make clear that support for the aims of the organisation is necessary before membership can be considered.

Clause 5.2: to comply with current structure and practice of TAC

To ensure that application for membership takes place at the most appropriate level of the organisation, as is currently the practice (see the proposed amendment to definition of "member" in clause 3.1). This means application to a TAC branch (if possible), if not – to a PEC (if possible), and if not – to the NEC. The proposed amendments streamline and clarify the membership application process, providing for appeals against decisions refusing membership at each level.

Clause 5.2.2: technical

The provisions dealing with expulsion have been moved to clause 5.4, which deals with termination of membership. Clause 5.2 deals with procedures for application for membership. As such, it is inappropriate for it to contain a sub-clause dealing with expulsion.

Clause 5.3.1: technical

To make it easier to read and to put this clause in line with the rest of the Constitution, which does not use bullet points.

Clause 5.3.2: technical

Also, the Constitution generally refers to persons and not to individuals – this is to ensure consistency. The term individual is used when speaking about a type of membership, not a person.

Clause 5.3.3: clarification

It makes sense for honorary membership to be awarded only at a National Congress, the highest decision-making body of the organisation. The proposed amendment reflects this concern.

Clause 5.3.4: technical

Deleted because it simply repeats what is already contained elsewhere in the Constitution.

Clause 5.4 preamble: clarification and for consistency with other legal papers

The preamble to clause 5.4 mentions members and endorsing organisations – presumably it refers to all categories of membership, including honorary members. For the sake of clarity, the preamble should be amended so that it simply refers to members, being defined earlier in the Constitution to include all three types of members (individual, honorary and endorsing organisation).

TAC’s article of association (part of the legal documents submitted as part of TAC’s application to be registered as a not-for-profit company) state that a special resolution must be passed by the AGM before a member ceases to be a member. The proposed amendment gives effect to this.

Clause 5.4.1: clarification

Proposed for the same reasons as advanced in respect of clause 5.4’s preamble

Clause 5.4.4: technical

This clause has been deleted and reinserted just below into the body of the text of clause 5.4 as a whole, because it deals with appeals against expulsion and is not an example of when TAC membership is lost, as are sub-clauses 5.4.1, 5.4.2 and 5.4.3. From a technical perspective, the proposed clause makes more sense.

Clause 5.5: technical

Corrects a spelling and grammar error

Clause 5.6.1: technical

Corrects a grammar error

Clause 5.6.2: new proposal from National Congress

Members identified the need for the Constitution to protect the confidentiality of TAC members’ HIV status and provide for a mechanism to discipline any TAC member who violates another’s confidentiality.

Clause 6: technical

For the sake of consistency and ease of reading

Clause 6.1.1: legal requirement

To comply with the Companies Act (in terms of which TAC is registered), the NEC must also serve as the board of directors. The new sentence added to clause 6.1.1 makes this clear.

Clause 6.1.4A: to comply with current structure and practice of TAC

PECs elect their own chairpersons who ordinarily sit on the NEC in this ex-officio capacity. In some provinces, however, PECs nominate someone other than the chairperson to sit on the NEC. New clause 6.1.4A gives effect to this.

Clause 6.1.8: gap in the existing Constitution

Existing clause 6.1.8 speaks about disciplinary action but gives no guidance in this regard. The proposed amendment sets out the composition of the disciplinary committee to be established in terms of the sub-clause.

Clause 6.2: technical and to comply with current TAC structure and practice

In practice, TAC has adopted different practices for the election of secretariat members (national office-bearers) and the remainder of the NEC, being sectoral and provincial representatives. The proposed amendments to the Constitution make this distinction, and codify the existing practice that is more suited to the current structure of the organisation, while still being practical, open and accountable.

The other proposed amendments are technical in nature – for ease of reading and consistency.

Clause 6.2.1: technical

NEC elections are held every two years at the National Congress. However, because the National Congress is not held on exactly the same date, it may be that the term of office of NEC members is slightly longer or shorter than exactly two years. For this reason, clause 6.2.1 is to be amended so that terms of office for NEC are "approximately" two years.

Clause 6.2.2.1: to enhance the legitimacy of the electoral process

Instead of a conference delegate being elected as the election officer, the proposed amendment ensures that an independent person perform this crucial function.

Clause 6.3: technical

For the sake of consistency and ease of reading

Clause 6.3.5: accountability

Checks are no longer signed by NEC members but rather by TAC’s accountants. But NEC members still authorise the drawing of cheques. The amendment to clause 6.3.5 makes this clear.

Clause 6.3.9: technical and clarification

To ensure that power to co-opt is not limited to co-opting replacements to fill vacancies – the Constitution does not make this clear, even though it has been interpreted in this way. The other amendments are for ease of reading and to ensure consistency.

Clause 6.3.11: new proposal from National Congress

Members pointed out the need for a Code of Conduct for staff – this already exists.

Clause 6.3.11.A: new proposal from National Congress

Members pointed out the need for a Code of Conduct for TAC members, including members of the NEC.

Clause 6.3.13: clarification

To clarify that the support TAC members get from the NEC regarding any legal action taken against them is limited to action taken against them in respect of TAC business alone.

For the clause to make sense the general meeting referred to must be an Extraordinary General Meeting – this must be made clear.

Clause 6.3.17: consistency

Other than in exceptional circumstances (where there is no TAC branch or PEC), the NEC no longer deals with membership applications – the proposed amendment gives effect to this change.

Clause 6.3.19: technical

The provisions of existing clause 6.3.20 are incorporated into 6.3.19 for ease of reading and to remove a syntactical error. As it is currently drafted, sub-clause 6.3.20 does not fit in with the rest of clause 6.3.

Clause 6.3.20: legal requirement

To make sure that NEC members, in the capacities as directors of the TAC board, have whatever powers are necessary to be able to comply with their duties as directors in terms of the law.

Clause 6.4: technical

For the sake of consistency and ease of reading

Clause 6.4.1: clarification and to remove an unintended consequence

Even though electronic means include telephonic means, it is better to expressly state that NEC meetings can also be held telephonically, as is the practice.

As it currently is drafted, clause 6.4.1 has the potential to create uncertainty and chaos – if a decision can be vetoed simply because an NEC member was absent from an NEC meeting where a decision was taken. To avoid this unintended consequence, the proposed amendment requires that the issue be reconsidered as soon as is reasonably possible, but that the decision taken remains valid unless and until it is overturned at the reconvened NEC meeting. This would avoid a decision being overturned and subsequently readopted, causing much chaos and uncertainty in between.

Clause 6.4.9: legal requirement

The law requires that there be an AGM every year.

Clause 6.5: technical

For the sake of consistency and ease of reading

Clause 6.6: technical

For the sake of consistency and ease of reading

Clause 6.6.2: clarification

To ensure that the reference to "person" in the second half of the sub-clause refers to a representative of an endorsing organisation member, as was intended.

Clause 7: gap in the Constitution

The Constitution is silent on the procedures for electing and/or selecting provincial and sectoral delegations for the National Congress. The numbering has been changed for the sake of consistency and ease of reading.

Clauses 7.1: technical

For the sake of consistency and ease of reading

Clause 7A: technical and clarification

Renamed clause 7A (instead of clause 7.2) because it refers to extraordinary general meetings and not National Congresses, the subject of clause 7 – therefore the need for a separate number.

Other amendments in the new renamed clause 7A are for the sake of clarity (to make sure that the sub-clause refers to the Extraordinary General Meeting, as was intended), consistency and ease of reading.

Clause 7B: technical

Renamed clause 7B (instead of clause 7.3) because it refers more than just the National Congress, the subject of clause 7 – therefore the need for a separate number.

Other amendments in the new renamed clause 7B are for the sake of clarity, consistency and ease of reading.

Clause 7B.1: gaps in the Constitution

The existing clause does not mention the AGM – this is a simple gap. The procedures applicable to the National Congress and the Extraordinary General Meeting should be equally applicable to AGMs.

It cannot possibly be expected that all 8000+ members of TAC be present at each National Congress, Extraordinary General Meeting or AGM – what is more appropriate is for the Constitution to expressly recognise that delegates at the relevant TAC meeting represent many other TAC members. The proposed amendment gives effect to this, in conformity with other provisions of the Constitution dealing with representation at a National Congress, Extraordinary General Meeting or AGM.

Clause 8.5: technical

The financial year of TAC is from 1 March to the end of February, consistent with the financial year adopted by SARS – the current clause 8.5 does not reflect this correctly

Clause 9: technical

For the sake of consistency and ease of reading

Clause 10: technical

For the sake of consistency, ease of reading and good grammar

Clause 11: to comply with current TAC structure and practice

Existing clause 11 does not adequately deal with PECs and local branches, and does not speak about district committees (DCs) and designated sectors at all. The proposed amendments all arise from discussions at the provincial congresses and the National Congress in 2003.

The proposals set out clearly how and when PECs can be established (clause 11.1), the composition of PECs (clause 11.2), how and when TAC branches can be established (clause 11.4), and how and when DCs can be established (clause 11.5). They also place an obligation on the NEC to develop guidelines regarding the structure and operations of designated sectors (clause 11.6).

Other proposed amendments are for the sake of consistency and ease of reading.

Clause 12: technical and legal requirement

To correct a grammar error in clause 12.1. Further, clause 12.1 is to be amended and clause 12.4 inserted to ensure that there is a simple process to facilitate constitutional amendments when the law strictly requires these. In such cases, TAC has no option but to amend its Constitution. Current constitutional amendment procedures make this very difficult to achieve.

Clauses 13.4 and 13.6: technical

For the sake of consistency and ease of reading

Clause 13.7: consistency

To ensure that clause 13.7 is consistent with clause 13.1

[ENDS]