Hon Davidson’s proposal was aimed at prohibiting party-political office-bearers, public representatives as well as political parties from contracting with the State.
The Chief Director of Legal Services in the Department of Public Service and Administration detailed the measures that were currently in place as well as legislation and amendments that were in the pipeline.
The Legislative Programme for 2011 included a Public Service Amendment Bill. The aims of that draft bill were to strengthen the legal framework with respect to governance and anti-corruption measures.
The Public Sector Integrity Framework referred to policy work on anti-corruption measures and ethics. The draft Framework would be submitted to Cabinet for approval. If approved, it would require the promotion of new legislation or changes to existing legislation, including subordinate legislation.
The Chief Director believed the fact that the department was working on the issue meant it acknowledged that those areas had to be addressed and the measures in place had to be strengthened. The challenge was to coordinate effectively with other institutions such as National Treasury that dealt with measures on procurement, which was the major challenge in terms of corruption. National Treasury had recently introduced a number of measures to address that. It was for Parliament to consider whether the measures in place were sufficient.
The Chief Director agreed that the Davidson legislative proposal went further than what was in the Department’s proposals. The Davidson legislative proposal covered all staff, not only Senior Management Staff staff, and it covered public entities and also the involvement of family members of employees.
In terms of the public service, in the national, provincial and local spheres, the Chief Director said there were definitely areas that needed to be strengthened. There was a process on the table and nothing stopped parties at this point from bringing forward ideas to the Department strengthen the proposed legislation even further. The parliamentary process that was taking place could absorb Hon Davidson’s ideas as well.
The Committee decided it would take a keen interest in process of the legislative amendment and check whether the areas in the Davidson proposal were subsequently covered by amendment, and take it from there. A further meeting on this would be held with the Portfolio Committee on Public Service and Administration.
The Joint Committee meeting was convened in order to avoid prolonged waiting for a response from the Portfolio Committee on Public Service and Administration.
For the benefit of the Portfolio Committee on Public Service and Administration which had been invited to the meeting, the Chairperson outlined the criteria on which the Committee on Private Members’ Legislative Proposals and Special Petitions confined its consideration of a legislative proposal, which were whether it -
a) went against the spirit, purport and object of the Constitution;
b) sought to initiate legislation beyond the legislative competence of the National Assembly;
c) duplicated existing legislation or legislation awaiting consideration by the Assembly or Council;
d) pre-empted similar legislation soon to be introduced by the national executive;
e) would result in a money bill; or
f) was frivolous or vexatious.
The Committee had invited the Department of Public Service and Administration to look at and respond to MP Davidson’s legislative proposal which aimed to regulate the business interests of State employees.
In her response, Adv Empie van Schoor (Chief Director, Legal Services: DPSA) noted that the Legislative Programme for 2011 included a Public Service Amendment Bill. The aims of the draft bill were to strengthen the legal framework with respect to governance and anti-corruption measures.
The Minister for Public Service and Administration’s budget speech of 26 May 2011 referred to policy work pertaining to anti-corruption measures and ethics, namely the Public Sector Integrity Framework. The draft Framework would be submitted to Cabinet for approval. If approved, it would require the promotion of new legislation or changes to existing legislation, including subordinate legislation (that is, regulations).
The scope of the Public Service Act, 1994, was limited to administration in national and provincial government. The draft Public Sector Integrity Framework contained proposals applicable to administration in national, provincial and local government. Public entities were not covered by that draft Framework. Most public entities had their own founding legislation, which may have measures in that regard. The Public Finance Management Act, 1999, contained measures for the financial administration of public entities that were generally applicable.
Existing national measures for administration in national and provincial government were:
- Prescripts of National Treasury on supply chain (procurement), which required that bidders declared their relationships with officials in the relevant national or provincial department.
- On 31 May 2011 National Treasury issued a treasury instruction applicable to national and provincial departments and specified public entities requiring that a bidder must furnish details of directors/trustees/shareholders for the accounting officer/authority to check against the institution’s staff and, if applicable, to check if the necessary approval existed for the staff member to undertake other remuneration work.
- The Public Service Code of Conduct in Chapter 2 of the Public Service Regulations, 2001, required employees to recuse themselves from processes (such as procurement) in which they had an interest.
- The Financial Disclosure Framework in Chapter 3 of the Public Service Regulations required that senior managers in national and provincial departments must declare interests for the previous financial year before the end of April every year.
With respect to administration in national and provincial government, the main proposals in Davidson’s Procurement (Business Interests of Employees) Bill (clauses 2 and 3), were covered to some extent by the measures indicated above.
With respect to administration in national and provincial government, the following aspects of the main proposals in the Procurement (Business Interests of Employees) Bill (clauses 2 and 3), were not covered by existing national legislation:
- Declaration by an entity of interests of family members of employees of an institution in that entity before they entered into a contract with that institution.
- Declaration by an employee of interests and those of family members in entities doing business with the State. Though senior managers currently had to declare their business interests, there was no requirement that it must indicate whether the business in question was rendering services to the State.
- Prohibition on an employee to own or control 5% of shares, stock, membership or other interests alone or together with family member/s and/or business partner/s and or other employee/s in an entity doing business with the State.
The underlying aims of the proposed measures mentioned above were under consideration by the national government in proposals to strengthen anti-corruption measures in the administration in national, provincial and local government (namely the draft Public Sector Integrity Framework).
In the case of public entities, an analysis of their founding legislation, and legal instruments issued in terms thereof, would indicate if and to what extent the proposed legislative changes in the Procurement (Business Interests of Employees) Bill (clauses 2 and 3) were catered for.
The Chairperson thanked Adv van Schoor.
Ms A Dreyer (DA) noted that Adv van Schoor had set out a number of reasons why it was not necessary to consider the proposal, or why the Committee should not pass it. She asked whether, with all the measures in place as indicated, there was still an increasing level of corruption taking place in the public service. How would Adv van Schoor then suggest that Parliament fight corruption further?
Adv van Schoor believed the fact that the department was working on the issue meant it acknowledged that those areas had to be addressed and that the measures in place had to be strengthened. The challenge was to coordinate effectively with other institutions such as National Treasury that dealt with measures for procurement, which was the major challenge in terms of corruption. Treasury had recently introduced a number of measures to address that. It was for Parliament to consider whether the measures in place were sufficient. There was not much in place in the area of family members’ interests; the department would have to look at that. Also in the area of public entities and governing structures, one would have to assess whether there was a need for a single piece of legislation regulating that. Alternatively, one would make proposals to National Treasury to submit proposals to Parliament to strengthen what was in place for each and every public entity.
In terms of the public service in the national, provincial and local spheres, there were definitely areas that needed to be strengthened. The aspects covered in the legislative proposal, if not already in existing measures, were part of what was currently being considered by government that may lead to new legislation being introduced into Parliament; or simply amending existing legislation that was already in place.
The Chairperson asked whether Adv van Schoor had any idea when the legislation, that was intended to close the gaps, would be in place?
Adv van Schoor responded that there were time lines but it was unlikely that those time lines would be met. Some of the amendments proposed were in the amendment bill itself, which would enable the department to regulate some of the aspects that were in the proposal. Amendments to the regulations was a process of the Department consulting and then publishing the amended regulations in the Gazette.
Mr P Pretorius (DA) pointed out that the legislative proposal went slightly further than what was in that proposal. The legislative proposal covered all staff, not only Senior Management Staff (SMS) staff, and covered public entities that he understood were not covered by anything he had heard, which had to be taken into consideration, and also the involvement of family members of employees.
In terms of the Committee’s criteria, the Committee must ensure that legislation would be in place within a reasonably short period of time.
Ms A van Wyk (ANC) commented that the Committee needed to keep in mind that there was a process on the table and nothing stopped parties at that point to bring their proposals to the attention of the department to strengthen the proposed legislation even further. The parliamentary process that was taking place could absorb those ideas as well. Even if that legislation did not arrive by September, but at some point during this year, that should still be considered a reasonable period of time.
The Chairperson said the Committee would take a keen interest in the legislative amendment process and check if the areas in Hon Davidson’s proposal were subsequently covered by amendment, and take it from there.
The Chairperson thanked Adv van Schoor and asked her to pass the Committee’s regards to the Ministry, the presentation was appreciated and had put the Committee in a better position than if it had not had the opportunity to interact.
Adv van Schoor added that the Financial Disclosure Framework was currently only applicable to senior managers. There was a proposal that it be extended to all employees, and also to look at when to disclose. This should be to immediately declare when a contract arose, which was going beyond what currently existed.
The Committee on Private Members’ Legislative Proposals and Special Petitions could not deliberate further as there was only one member present from the Portfolio Committee on Public Service and Administration. It was decided that a further joint meeting would be scheduled.
The Chairperson announced that he would not be available for the following two weeks due to other commitments; an interim chairperson would need to be elected.
The meeting was adjourned.
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