Public Administration Management Bill [B48-2013]: negotiating mandates

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Meeting Summary

The Select Committee considered negotiating mandates from the provinces on the Public Administration Management Bill. Seven provinces voted in favour of the Bill even though they had issues which they felt needed addressing. These provinces were Limpopo, Mpumalanga, Gauteng, Free State, Eastern Cape, Kwazulu-Natal and North West. The Western Cape did not vote in favour of the Bill. Questions were raised about the legality of the Western Cape’s negotiating mandate document as it did not have the Province’s official letterhead on it. However, in the course of the meeting the Western Cape submitted a hard copy inclusive of the Province’s official letterhead. The Western Cape held that the Bill was not constitutionally correct as it affected the autonomy of the spheres of government. It was further felt that there was a sense of Ministerial prowess in the Bill which threatened the independence of the three spheres of government. The Northern Cape Province did not have a delegate present at the meeting and had also not submitted a negotiating mandate to the Committee. The Chairperson closed the meeting with the comment that the Committee would be moving on to the next step in the process which was receiving final mandates from the provinces. 

Meeting report

Public Administration Management Bill: Negotiating Mandates
The Chairperson welcomed Members to the meeting and said the Public Administration Management Bill had been a section 75 bill but was withdrawn from the National Assembly. It had now been reintroduced as a section 76 bill into the National Council of Provinces.

The Committee proceeded with the consideration of negotiating mandates from the provinces.

Limpopo Province
In the absence of a delegate from the Limpopo Province, Mr Moses Manele, the Committee Secretary, read the negotiating mandate to the Committee. Some of the issues raised and proposals made in the mandate were the following:
- The definition of “employer” in the Bill was not comprehensive enough and the definition of “family member” was too broad.
- Provision should be made in the Bill for an independent body to regulate the transfer and secondment of employees in the public sector.
- The public service and municipalities were over populated by people without skills.
- There was a need for a dispute regulation mechanism when employees were transferred or seconded.
- Transfers should not be allowed whilst a disciplinary hearing was ongoing.   
- In Clause 6, it must be provided that the individual being transferred needed to have skills and be qualified.
- The Bill needed to make provision for incentives to employees that were to be transferred.
- There should be negotiations where secondments were to take place. Secondments should also be fair.
- It was suggested that Clause 8 should be deleted.
- The amount of the fine mentioned in Clause 8 should be explicitly stated.
- The disclosure of financial interests should be done every five years.
- The provision in the Bill stipulating that the financial interests of spouses should be disclosed needed to be deleted from the Bill.
- Management needed to undergo training as in some instances employees were forced to take transfers by managers.
- It was suggested that the National School of Government needed to train persons who were political appointees as these individuals often times were not sufficiently capacitated.
- Provision in the Bill should be made for a definition of “National School of Government”.
- Employees should be trained in the norms and standards set by the Minister of Public Service and Administration.

The Limpopo Province voted in favour of the Bill.

Mpumalanga Province
Ms H Boshoff (DA, Mpumalanga) read out the negotiating mandate and stated that the Mpumalanga Province supported the Bill but wished certain considerations to be noted. These included the following:

- In Clause 1, the definition of “organ of state” should be included.
- The heading of Clause 8 had to be changed. 
- In Clause 8(2), the word “may” had to be replaced with the word “must”.
- In Clause 2(2)(b), the phrase “a director” should be deleted.
Gauteng Province
Mr A Matila (ANC, Gauteng) stated that the Gauteng Province supported the Bill, inclusive of the submissions made on it as contained in the negotiating mandate.

Free State Province
Mr T Mofokeng (ANC, Free State) stated that the Province supported the Bill. The Free State, however, raised the following issues:

- In Chapter 3, the Bill should state under what circumstances secondments could be made.
- The provisions of Clause 8 should be extended to all three spheres of government and government entities.
- The provisions of Clause 9 should be applicable to state owned entities as well.

Western Cape Province
Mr J Bekker (DA, Western Cape) said he would provide a hard copy of the negotiating mandate with the letterhead of the Province to the Committee later on in the meeting. The copy before members did not have the Province’s official letterhead.
He read out the negotiating mandate and stated that the Western Cape Province did not support the Bill. The Bill contained a great deal of positives but there were negatives as well. He noted the following issues:
- The Bill was not constitutionally correct as it affected the autonomy of the spheres of government. There was a sense of Ministerial prowess in the Bill and it threatened the independence of the three spheres of government.
- The Western Cape asked why the National School of Government did not sit with the Department of Higher Education and Training. 
- In addition, there were no consequences where offenders were found guilty of corruption.
- The Bill did not take the Labour Relations Act into consideration.
- There was no recourse for interests that had not been declared.

Ms M Boroto (ANC, Mpumalanga) said the Western Cape had not presented an authentic document to the Committee since it was not presented on the Province’s official letterhead. She suggested that the Committee could not note the comments made by Mr Bekker.

The Chairperson was concerned that the document did not have a legal imperative.

Mr Matila said that due to the invalidity of the document, essentially, a negotiating mandate from the Western Cape was not before the Committee and the comments made by Mr Bekker could not be noted.

Eastern Cape Province
A Member read out that the Eastern Cape Province supported the Bill with reservations from the DA.
Technical amendments suggested were:
- In Clause 1, the term “family member” was defined but it was not used in the Bill. Additionally, the term “employee” had a technical meaning as it excluded a person who was employed as a special adviser. It could lead to interpretational problems.
- In Clause 8(3), “any person” should be replaced by “the person”.
- In Clause 15(5), the word “discovers” should be deleted.   
- The general recommendation made was that the Bill should apply to public entities as well.

Kwazulu- Natal Province
Mr L Nzimande (ANC, Kwazulu-Natal) said that besides the matters raised and specific recommendations made in the negotiating mandate, the Kwa-Zulu Natal Province supported the Bill. He asked a legal representative from the Province to present the mandate.
Mr Heinz Kuhn, Senior Manager: Legal Services, Kwazulu-Natal Co-operative Governance and Traditional Affairs Department presented the mandate. He noted the following:

-Clause 8 of the Bill did not go far enough. The prohibition should be strengthened and hence a subsection (4) should be inserted in the Clause.  
- Clause 31 was not effective.
- The disclosure of financial interest had to be done annually or 30 days after acquiring the financial interest. A child who was a dependant needed to be included under the categories of persons who needed to declare financial interest. Furthermore interests held in immovable property should also be declared.

Mr Kuhn concluded that the negotiating mandate did contain other substantive comments which members could themselves read.

North West Province
In the absence of a delegate from the Province, Mr Manele read out the negotiating mandate. The Province supported the Bill but comments on it were included in the negotiating mandate.

Northern Cape Province 
There was no delegate present in the meeting from the Northern Cape Province and no negotiating mandate had been submitted to the Committee.

Mr Bekker informed the Committee that he had, in the meantime, received a hard copy of the Western Cape’s negotiating mandate inclusive of the Province’s letterhead. There was hence no question about the legality of the document any longer. He reiterated the Western Cape Province’s non-support of the Bill.

Mr Matila remarked that it was clear to South Africans that the Western Cape wished to behave like it was Europe. The Province wished to be an island on its own.

The Chairperson noted that seven provinces supported the Bill, one province was against it and one province had not submitted a negotiating mandate. The Committee would therefore move on to the process of final mandates.

The meeting was adjourned.

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