In the Department of Public Service and Administration’s response to negotiating mandates on the Public Administration Management Bill , it provided reasons why it turned down provincial proposed amendments to Clauses 1, 2, 5, 6, 7, 8, 9, 10, 11, 13, 15, 16, 17 and 18. DPSA only accepted proposals made by Gauteng Province on Clause 7 and by Kwazulu-Natal and Mpumalanga Provinces on portions of Clause 8. These amendments would be added to the Bill and the amended version of the Bill would then be taken back to the provinces for a final mandate.
In the absence of the Committee Chairperson Mr M Mokgobi (ANC, Limpopo), the Committee elected Mr A Matila (ANC, Gauteng) as Acting Chairperson.
Department response to negotiating mandates: Public Administration Management Bill [B55-2013]
The Department of Public Service and Administration (DPSA) provided the Committee with responses to the negotiating mandates submitted by the provinces to the National Council of Provinces. The Department was represented by Mr Alvin Rapea, Deputy Director General: Policy, Mr Ailwei Mulaudzi, Chief Director: Legal Services, and Ms Sybil Lyons-Grootboom, Director: Legal Services. Mr Rapea presented the response:
Clause 1: Definitions
The Limpopo, Eastern Cape and Mpumalanga Provinces had made submissions on the clause.
The Limpopo Province for one had felt that the definition of employee was not broad enough but the DPSA disagreed and said that it was comprehensive enough.
The Eastern Cape Province had submitted that “family member” was defined but had not been used in the Bill. The DPSA said that reference to the term “family member” had been made in Clause 9.
Mpumalanga Province felt that a definition of “head of institution” needed to be inserted in the Bill. The DPSA explained that ‘institution’ was defined in the Bill and therefore when reference was made to head of institution it meant the head of that institution as defined in the Bill.
Clause 2: Application of the Act
The Kwazulu-Natal, Free State and the Eastern Cape Provinces had made submissions to the effect that public entities were not covered by the Bill. The response given was that the scope of the Bill was the administration of the three spheres of government. The Presidential Review of State Owned Enterprises was still under consideration and this would influence the decision on whether to include state owned enterprises at a later stage. Hence at present the submission could not be considered.
Clause 5: Individual Transfers
Some of the concerns raised by Limpopo Province were that the Bill had to ensure that there was a mechanism of transfer and that secondment was not abused. Further it was felt that the employee to be transferred had to be suitably qualified.
The DPSA explained that a transfer could only be effected with the consent of the employee. Clause 5(2)(b) already covered the issue of the transferee needing to be qualified for the position. The DPSA felt that none of the submissions made by the Province were needed as they were either covered by the Bill or found elsewhere.
Clause 6: Secondments
The Kwazulu-Natal and Free State Provinces stated that secondments had to be effected with consent and be justifiable. Circumstances under which a secondment could take place had to be spelt out. The Limpopo Province felt that the Bill had to provide incentives where an employee was to be transferred or seconded.
The DPSA responded that there was no need for concern as the clause had built in checks and balances in respect of secondments. It was evident from Clause 6(4)(a) that a secondment would be as agreed upon between the relevant Executive Authorities and not imposed upon institutions.
Clause 7: Transfer of employees upon transfer or assignment of function
The Gauteng Province suggested that the clause be amended to include reference to sections 137 and 126 of the Constitution. The DPSA felt the proposal to be a good one. The DPSA accepted the proposal in line with constitutional provisions which gave similar powers to the Premier and the Member of the Executive Council (MEC) with regards to transfer or assignment of functions.
Clause 8: Conducting business with state
The Kwazulu-Natal and Mpumalanga Provinces suggested the expansion of Clause 8(2)(b) to include shareholding and the percentage of shares. The DPSA felt it was not advisable as it would infringe on the rights of citizens as provided for in section 22 of the Constitution. The reason why the clause was limited to directorships was to allow public servants to own shares in private businesses as long as they were not involved in the management and decision-making processes of the company.
The DPSA did accept a proposal for the insertion of a new Clause 8(4) which read:
“A contract concluded in contravention of subsection (2) may be cancelled, at the option of the state.”
The Limpopo Province felt that the prohibition of doing business with the state should not apply to lower income employees. The DPSA felt that the exclusion of lower income employees would defeat the purpose of the clause which was to prevent and curb corruption.
The Eastern Cape suggested amending Clause 8(3) by replacing the word “guilty” with the word “liable”. The DPSA disagreed as the wording used was “found guilty” and not “guilty”. The word “found” pre-supposes that due process must be followed.
Clause 9: Disclosure of financial interest
The Kwazulu-Natal Province proposed that an employee had to in the prescribed manner “at least annually and within 30 days of discovering or acquiring a financial interest”, disclose to the relevant head of institution all his or her financial interests. The DPSA said that the provision was unnecessary as matters regulating when and how financial interest had to be disclosed would be provided for in the regulations.
The Province wished the provisions of the Clause to cover a dependent child or any other person who was either wholly or partially dependant on the employee for financial support. The DPSA felt the inclusion to be too broad.
Limpopo Province suggested that the disclosure of financial interest had to be made every five years. The DPSA rejected the suggestion as the period would be prescribed in the regulations. The five year proposal would defeat the purpose of the clause as the state had to detect conflict of interest as and when it arose. The Province also wished to delete provisions about the disclosure of financial interests of spouses. The DPSA felt that this would defeat the purpose of the Bill which was aimed at preventing and curbing corruption.
The Free State Province proposed that financial disclosures be limited to senior managers only. The DPSA explained that the proposal defeated the purpose of the clause as it was not only senior managers that did business with the state but all employees.
Clause 10: Capacity development by institutions
The South African Local Government Association (SALGA) had through the KwaZulu-Natal Province requested that directives issued with regards to training at local government level had to be done in consultation with them. The DPSA felt that a change was unnecessary as the Bill did provide that the Minister had to consult with organised local government.
Clause 11: National School of Government
Limpopo Province raised a concern whether the National School of Government rendered other institutions of higher learning useless. The National School of Government also needed to be defined. The DPSA explained that the National School of Government would focus on job training/practical aspects as opposed to academic training that one received at institutions of higher learning. Section 11(1) already defined the National School of Government. There was hence no need for any amendments.
Clause 13: Compulsory Educational Requirements for Employment
SALGA through the Kwazulu-Natal Province made a request that compulsory educational requirements had to be determined in consultation with them. The DPSA reiterated that the Bill did provide that the Minister had to consult organised local government. When dealing with regulations, reference had to be made to the National Treasury Minimum Competency Regulations.
Clause 15: Public Administration Ethics, Integrity and Disciplinary Technical Assistance Unit
The KwaZulu-Natal Province proposed that the organisational form of the Unit had to be dealt with by the Act and not regulations. The DPSA responded that the Unit and its corporate form would be regulated by relevant pieces of legislation like the Public Finance Management Act, the Public Service Act or the Companies Act. Its mandate would however be contained in Clause 15(4) of the Bill.
It also appeared to the Province that the Unit would develop norms and standards additional to those prescribed by the Minister. The DPSA said that only the Minister could prescribe norms and standards. The Unit would develop norms and standards and make recommendations for the Minister to prescribe.
The Gauteng Province was of the view that Clause 15(4)(d) gave the Public Administration, Ethics, Integrity and Disciplinary Technical Assistance Unit the power to intervene where systemic weaknesses in the management of ethics, integrity and discipline in management were experienced. The DPSA pointed out that the intervention referred to in Clauses 15(4)(d) was not what was envisaged in sections 100 and 139 of the Constitution.
Clause 16: Minimum norms and standards
The KwaZulu-Natal Province felt that norms and standards for local government should be prescribed in concurrence with the Minister responsible for local government. The DPSA said that Clause 16(2) already provided that the Minister had to prescribe norms and standards in terms of subsection (1)(a) in consultation with the Minister responsible for local government and after consultation of organised local government.
Limpopo Province was concerned about intergovernmental relations being a contested area. The DPSA responded that intergovernmental relations and the overstepping of mandates were well addressed in the Bill as the Minister had to exercise her powers in consultation with relevant Executive Authorities.
Clause 17: Office of Standards and Compliance
The KwaZulu-Natal Province proposed that the organisational form of the Office of Standards and Compliance (OSC) should be spelt out in the Bill. The DPSA explained that the establishment of the OSC and corporate form thereof would be regulated by the relevant applicable legislation such as the Public Finance Management Act, the Public Services Act and the Companies Act. However the mandate would be set out in Clause 17(4) of the Bill.
The Gauteng Province felt that the OSC would have financial implications for the provinces. The DPSA was of the view that the establishment of the OSC would not have any financial implications for the provinces. The OSC was established at the national sphere.
There was also a proposal by the province that the directives issued in accordance with Clause 17(6)(b) had to respect the authority, role and status of institutions at the different spheres of government. The DPSA responded that the OSC had no authority to issue directives. Only the Minister had the authority to do so. The directing referred to in Clause 17(6)(b) was providing steps to be taken by the head of the institution.
Clause 18: Regulations
The KwaZulu-Natal Province submitted that regulations affecting local government had to be done in concurrence with the Minister responsible for local government and organised local government. The DPSA respondeded that the issue was covered in Clause 18(2).
The Gauteng Province stated that consultation under Clause 18(2) should include MECs. The DPSA noted that the Minister of Public Service and Administration was compelled to consult with the Minister responsible for local government where local government was affected. The Minister responsible for local government had to in terms of the Intergovernmental Relations Framework Act obtain inputs from relevant MECs.
Mr Rapea pointed out that there were additional issues which he wished to touch on. On the question of whether the National School of Local Government would train persons outside of the public service the answer would be a no. The National School of Local Government would only train persons in the public service. The National School of Government would also train Members of Parliament.
He added that the North West Province had stated that there would be a conflict of interest between the Public Service Commission and the Office of Standards and Compliance. The Public Service Commission had their own plan of action which they presented to Parliament. The Office of Standards and Compliance ensured that the reports of the Public Service Commission were implemented. The Office of Standards and Compliance would evaluate whether norms, standards and directives were being implemented by state organs.
The Chairperson asked the Parliamentary Law Adviser’s Office to give her view on the DPSA’s responses.
Adv Anthea Gordon Parliamentary Legal Adviser answered that she could find no objection to the DPSA’s response. The response given was legally sound.
Mr L Nzimande (ANC, KZN) referred to the KZN’s proposal on Clause 9 and the response of the DPSA saying that the proposal would be covered in the regulations. The response given needed greater motivation as it seemed that including it in the regulations was as a matter of preference.
Mr Rapea responded that it was correct that the provision in Clause 9 about an employee having to disclose financial interests would be covered by the regulations. There were other administrative issues to take into consideration.
Mr B Nesi (ANC, Eastern Cape) made reference to the DPSA’s response to Clause 8(2)(b) which spoke about protection of constitutional rights versus the Bill trying to fight corruption. He did not quite grasp the explanation given.
Mr Rapea on Clause 8(2)(b) gave the example of a person employed in government also owning part of a family business. Such persons were not prohibited from doing both.
Ms Gordon explained that Clause 8(2)(b) spoke about prohibitions of being a director or having shares in a company. It was not a blanket prohibition. The prohibition only applied where business was being done with the state. A public servant could be a director or have shareholding in a company as long as no business was being done by that company with government.
The Chairperson asked that the amendments to which the DPSA had agreed to be incorporated into the Bill. The amended version of the Bill would then be taken back to the provinces.
The meeting was adjourned.
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