Public Administration Management Bill [B55B-2013]: briefing with Minister and Deputy Minister; Public Service Commissioner vacancy: interviews outcome

Public Service and Administration

27 February 2014
Chairperson: Ms J Moloi-Moropa (ANC)
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Meeting Summary

The Department of Public Service and Administration (DPSA) reminded Members that this Bill was first introduced into the National Assembly on the 12 November 2013 and then withdrawn. It was then introduced into the National Council of Provinces (NCOP) on 14 November 2013. It had been adopted by the Select Committee on 26 February. The Bill sought to build a framework legislation for a seamless public administration. The Bill did not undermine the constitutional mandate of local government, but sought to complement public administration integrated across the three spheres of government. The crux of the Bill dealt with mobility of staff within public administration. It provided for the transfer of employees with their consent, and secondment without consent, if deemed justified. Other clauses in the Bill dealt with prohibitions on conducting business with the State; capacity development and training; the use of information and communications technology; ethics, integrity and discipline; minimum norms and standards; the establishment of the Office of Standards and Compliance; empowerment of the Minister to make regulations, and the repeal and amendment of laws.

In discussion, the Democratic Alliance challenged both the process and the content of the Bill. As it was still awaiting National Council of Provinces (NCOP) approval, it was deemed inappropriate that the National Assembly committee be briefed on the Bill. The Chairperson countered that it was solely for the purpose of information preparation. The Chairperson noted that it was unfortunate that objections had not been raised in advance. The Committee had never before seen a squabble before a presentation. It was not acceptable to challenge a meeting internally. It amounted to challenging the parliamentary programme.

Transfer and secondment of employees, which was said to be the crux of the Bill, came up for severe criticism. The Members insisted that there was a lack of legal opinion about terms such as “reasonable grounds” and “due consideration”. The terms were arbitrary, and could lead to bureaucratic abuse of power. Members asked if the clauses on transfer and secondment were in line with the Labour Relations Act. Secondment without consent caused particular concern. It was noted that language used might not be clear to ordinary people. The Committee was assured by the Minister and law advisers that independent legal advice had been sought. The Minister also stated that the regulations for this Bill would be brought to Parliament for endorsement.

The outcome of the interviews for the vacant Public Service Commissioner position was closed to the public.

Meeting report

Public Administration Management Bill [B48-2013]: process briefing by Department
Mr Alvin Rapea, Deputy Director General: Policy, noted that it was not a new Bill. It was introduced in the National Assembly (NA) in November 2013, and then withdrawn and introduced through the National Council of Provinces (NCOP). There had been a presentation on the Bill to this Committee before. The NCOP committee was content with the Bill.

The Chairperson asked for background.

Mr S Marais (DA) remarked that normally when a bill was referred to the NCOP, it was not dealt with by the National Assembly simultaneously. He asked if it was correct for the Portfolio Committee to deal with the Bill when it had not been concluded by the NCOP. He asked if that could run concurrently with the NCOP process.

The Chairperson said that the Portfolio Committee could call for any presentation that it required. She was aware of the legislative procedure Mr Marais referred to, but the Committee needed information. It was not advisable to wait for this briefing until only after the conclusion of the NCOP process. The Committee had to put itself ahead by being informed.

Mr Marais asked if the Bill was being re-submitted to the National Assembly. The question was whether the Committee was in a position to act.

The Chairperson asked Mr Rapea to brief them on how far the NCOP process had proceeded.

Mr Rapea replied that the Bill was introduced into the NCOP on 14 November 2013. There was public participation in January and February 2014. Eight provinces participated and there were 18 public participation meetings. The eight provinces supported the Bill with some proposed amendments. The Western Cape did not support the Bill. The Department of Public Service and Administration (DPSA) recommended to the Select Committee (NCOP) that proposed amendments be considered. There was only one technical amendment to clause 7. A “B” version of the Bill was sent to the provinces for a mandate. The Select Committee adopted the Bill on 26 February. At the time of that meeting, six provinces had submitted mandates in support of the Bill, and three had not.

Mr Marais asked if the Bill had been re-submitted to the National Assembly.

Mr D Du Toit (DA) referred to other spheres of government. Without a legal opinion, there would be legislation by hearsay.

Mr Rapea replied that he had not talked about a legal opinion.

Mr Du Toit maintained that he had heard of a legal opinion on some clauses.

Mr Rapea replied that it was only possibly true for clause 7. The same notes were given to the Select and Portfolio Committees. It was “an NCOP Bill” [Section 76 Bill], and Parliament would have to decide what went into it. The Department would assist where it was requested to.

Mr Du Toit asked if legal opinions had been expressed. Otherwise matters would be based on hearsay.

Mr E Nyekemba (ANC) remarked that he had liked the presentation by the Department. The Bill had gone from Cabinet to the National Assembly, was withdrawn, and then sent to the NCOP. The NCOP had concluded the Bill the day before.

Mr A Williams (ANC) remarked that it was not the NCOP, only the Select Committee that had approved it.

Mr Nyekemba continued that the NCOP had decided on the Bill the day before. It had not yet been submitted to the National Assembly. The Portfolio Committee had to know how far the NCOP process was, and how the Bill had been handled by the Select Committee.

The Chairperson said that the Portfolio Committee wanted to be briefed before the Bill came to the National Assembly, so as to be better informed the following week.

Mr Marais remarked that the Bill before the Committee seemed to be the original bill as introduced with no NCOP amendments. Incorrect procedure would boomerang. He asked if the call for comment advertisements that had been placed had referred to the Bill before the Committee, or the one they waited for from the NCOP.

The Chairperson said that there were no legal implications to what the Portfolio Committee was doing. It was information-seeking. The legal process would be dealt with the following week. If Members were not comfortable, it could be stopped.

Mr Du Toit said that it was not to be concluded that Members did not want to be there. It was for information.

Mr Nyekemba said that it was important to reflect back to before the Bill goes to the National Assembly. The Department and Cabinet had been busy with the Bill. The Portfolio Committee got its briefing in that context. No one said how the Committee was to be briefed when the Bill was not submitted via the National Assembly first. The Department was asked to brief it because the withdrawal of the Bill from the NA did not nullify it. The issue was how far it had progressed in the NCOP. The Portfolio Committee had to be ready when the Bill reached it. The Portfolio Committee had just been informed that the Select Committee had adopted the Bill with technical amendments. There might be other amendments. The Bill had also not yet been presented the NCOP House.

The Chairperson noted that it was unfortunate that objections had not been raised in advance. The Committee had never before seen a squabble before a presentation. There were study groups from different parties. It was not acceptable to challenge a meeting internally. It amounted to challenging the parliamentary programme.

Mr Marais said that a letter had been sent by his party, but there was no response.

Briefing by the Department on the content of the Public Administration Management Bill
Mr Rapea told the Committee that the Bill had to remind municipalities what challenges to address. The aim was to create a uniform public administration system, with the same kind of feel everywhere. Challenges raised by the Auditor-General had to be addressed. There had to be a streamlined set of values. Resources had to be distributed across the three spheres of government. The Bill would not interfere with the constitutional mandate of local government. The Bill applied to the public administration.

Clauses 5 to 7 provided for mobility of staff within public administration. It could be seen as the crux of the Bill. The Bill provided for transfer of employees with their consent, and secondment without consent, if deemed justified. Clauses 8 and 9 provided prohibitions on doing business with the State, and disclosure of financial interest. Clauses 10 to 13 provided for capacity development and training, also through the establishment of the National School of Government. Clause 14 stated guidelines for the use of information and communication technology in public administration. Clause 15 dealt with ethics, integrity and discipline. Clause 16 empowered the Minister to prescribe minimum norms and standards. Clause 17 established the Office of Standards and Compliance. Clause 18 empowered the Minister to make regulations, to be published for public comment for not less than 30 days in the Gazette. Clause 19 and the Schedule dealt with the repeal and amendment of laws. The Bill repealed sections 4, 14 and 15 of the Public Service Act of 1994, and the Transfer of Staff to Municipalities Act of 1998.

Discussion
Mr Du Toit referred to page 6 of the Bill. He asked what the provisions there were based on. There had to be an objective legal opinion that local government was not being undermined. The implication there was that someone could consent to demotion. He wanted to know what the words there meant.

Mr Rapea replied that legal opinions were obtained from the state law advisers. A full legal opinion was forwarded to the South African Local Government Association (SALGA).

Ms Lindiwe Sisulu, Minister of Public Service and Administration, asked which documents Mr Du Toit was referring to, concerning a legal opinion.

Mr Du Toit responded that it was important to know who was saying that local government was not undermined. One had to be able to ask a Mayor what he based his decisions on about staff transfers. He wanted to read the legal opinion of the state law advisors.

The Minister said that local government was certainly not being undermined. The language was clear and precise. Various independent lawyers had been involved, and there were workshops. Members would be taken through their concerns.

Mr Du Toit said that he had worked in local government. There was the problem of civilian oversight. There were struggles with bureaucracy. Even without political conflicts, there could be problems. It was not clear how a Mayor who had problems with officials, would deal with this. There was a conflict between civil oversight and bureaucracy, for instance about the power of a Mayor to replace people under investigation. His party would return to the Minister’s office about these issues. If officials did not toe the line, there would be a mess.

The Minister said that the mess was the problem of the Ministry and the Department. Oversight at the government interface had to be regulated. Principles had to be cascaded down. There were regulations dealing with what Mr Du Toit had talked about. Every sphere of government had to adhere to principles. Local government was miles behind. Mr Du Toit could meet afterwards with Ms Melissa Njikela, Chief State negotiator, who was present in the meeting.

Mr Marais noted that “organs of state” had not been defined.

Mr Rapea replied that the term “organs of state” was not used in the Bill.

Mr Marais said that the Bill referred to secondment to other organs of State.

Mr Rapea replied that organs of State were defined in the Constitution. It excluded the courts and Parliament. Secondment applied to such institutions.

Mr Marais asked if the definition could be introduced into the Bill.

The Minister noted that there was standardisation in terms of section 53(b) of the Public Service Act.

Mr Marais said that people were not appointed to municipalities in terms of the Public Service Act. He asked if that was because of the Labour Relations Act.

Mr Marais noted that the Bill referred to secondments without consent, if an employee had the necessary skills. That could be in conflict with the Labour Relations Act. There was no limitation on the time the secondment would be in force.

Mr Rapea replied that the executive authority at the place an employee was seconded to, had to agree to the secondment. The regulations stated that it had to be for a short term. It had to be justifiable. Transfers would keep to the spirit of the separation of powers.

Mr Nyekemba said that the Bill dealt with local government, but there was no reference to the South African Local Government Association (SALGA). He asked if the transfer of employees was in line with section 197 of the Labour Relations Act.

The Minister answered that SALGA was not explicitly mentioned but the Bill had been referred to it. SALGA was consulted.

Mr Du Toit referred to clause 2, on page 15 of the Bill. He asked if Public Enterprises was included. This regulation was sensitive, it could be draconic. Ministers changed. There had to be discussion on the matter.

Mr Rapea replied that the Bill applied to the public administration as defined.

Mr Du Toit noted that in Chapter 3, under 5(1), it stated that any employee “may”. There had to be distinction between “may” “must” and “shall”.

Mr Du Toit referred to a situation where “reasonable grounds exist”. He asked who would decide what the reasonable grounds were. Bureaucracy gave power to people, there could be a personal decision to move somebody. “Reasonable grounds” could become dangerous words. “Consent” could be acquired through silent threat, or by telling someone that they would only be promoted if they were prepared to move. Section 6(2)(c) was tricky. It stated that due consideration would be given when people were moved. The question was who would give due consideration, and who decided what was justified. There would be fights about what was reasonable and justified. Secondment would run into capacity problems. People’s lives would hang on personal interpretations of what was justified and reasonable. Terms had to be clear to the ordinary man.

Mr Marais noted that section 6(3) stipulated intention, and section 6(2) did not.

Adv Menzi Simelane, Law Adviser for the Department, replied that 6(3) only stipulated additional requirements. Things would become clear moving forward. The issues Mr Du Toit referred to, were day to day engagements, dealt with through operationalisation. The basic principle attended to in the Bill was that of transfer between the three spheres of government. The problem was how the Labour Relations Act would be adhered to on a day to day basis. The Bill only sought to create a framework and enabling environment for transfer and secondment.

Ms Melissa Njikela, Chief State Negotiator for the Department, added that some of the words might appear arbitrary. But the concept of reasonableness was as defined in law.

The Minister agreed that the “reasonable man” concept was a standard measurement. Mr Du Toit himself was not an ordinary man. The concept was rapidly receding. Mr Du Toit seemed concerned that regulations would not be endorsed by Parliament. Regulations were easier to deal with, as amending law took long. But regulations would indeed be brought to Parliament. The law would be supported. The question was how government was to go about restructuring itself. Other laws like the Labour Relations Act applied to the principles listed. The Bill was setting a framework in which other laws became applicable.

Mr Du Toit remarked that if ordinary people could not understand terms, it had to be reformulated. The Bill was not written for Members of Parliament. Laws had to go to the Constitutional Court if they were vague, and could not be well interpreted.

The Minister remarked that all organs of state had to follow a similar approach. The aim was to regulate public administration. The Department of Public Enterprises would hopefully follow the same route. The question was whether there were laws governing Parliament. Laws underpinned the Constitution. With regard to people who might not want to be transferred, the Minister gave a humorous sketch of what transfers had done for one Helen Zille.

Mr Du Toit remarked that political parties were not governed by the Constitution.

The Minister answered that the Constitution was nevertheless consulted.

The Chairperson adjourned the meeting.

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