The Minister of Public Service and Administration and her legal advisor gave a briefing on the Public Administration Management Bill. The Minister stated that the Bill was a good law and was designed to cater to the needs of all South Africans. The presentation focused primarily on the constitutionality of the Bill with regard to secondment and transfer of employees amongst the three spheres of government.
The Democratic Alliance raised concerns about the constitutionality of the Bill by noting that the bill would impose on local government’s constitutional right to govern its own affairs, and control its staff. It also raised concerns about the wording of section 6 of the Bill, the practicalities of the Bill in the realm of local government, and not obtaining consent from the individual to be seconded or transferred.
Minister Sisulu said the Bill was important as it lay the foundation for the administration of South Africa’s democracy. The attitude of the DA was to find fault with the Bill and not to provide a solution for all. The Bill was the best solution for the country, as it would help all. The forthcoming regulations on clause 6 of the Bill would define the various issues raised by the Committee.
The Committee resolved to have all of the issues responded to in writing by Adv Simelane, as the Committee would have to prepare for the public hearings on the Bill which would take place on 7 March 2014.
The Chairperson noted that the meeting would discuss various issues of the Public Administration Management (PAM) Bill as raised by the National Council of Provinces.
Public Administration Management Bill: briefing by Minister of Public Service and Administration
Minister of Public Service and Administration, Lindiwe Sisulu, introduced the presentation on the PAM Bill by noting that the Bill was a good law which caters to issues of corruption, the lack of professionalism in the public service, and the lack of common standards. The Minister said that all the provinces, apart from the Western Cape, approved the Bill, and the presentation would deal with the issues raised by the Western Cape, namely, the constitutionality of the Bill in that the Bill sought to usurp the powers of provincial and local government. The Minister stated that DPSA had no intention of taking over those powers, but that the Bill would lay basic standards and not centralise powers. She said that with regard to the Bill seeking to establish a national School of Government, this would not conflict with the school of government set in place by the Western Cape.
The Minister noted that the South African Local Government Association (SALGA) had raised issues pertaining to the Bill. This included that the DPSA should be cognisant of who would bear the cost of secondment and transfer, and that the powers of the Minister of Cooperative Governance and Traditional Affairs were not to be usurped by the Bill. She further noted that the constitutionality of the Bill would be dealt with by Mr Simelane.
Adv Menzi Simelane, Advisor to the Minister, presented on the constitutionality of the PAM Bill. He noted that the preamble to the Bill provided that the Bill give effect to section 195(3) of the Constitution. This was done bearing in mind the Constitution affords provincial government the powers in terms of its staff, that local government has the right to govern its own affairs, that national and provincial government are to capacitate local government in carrying out its duties, and that any matter concerning local government which had not been dealt with in the Constitution may be prescribed by national or provincial legislation.
In that regard, Adv Simelane submitted that clauses 5(1), 7, 12(2), 13(2) and 15(7) of the Bill, which dealt with employee transfer and secondment was not unconstitutional. He noted that the clauses would not negatively impact on a municipality’s right to govern its own affairs and that the purpose of the Act was to capacitate local government in carrying out its duties. Without the Bill, national and provincial government would not be compliant with section 154(1) of the Constitution.
Mr S Marais (DA) made reference to section 151(4) and 151(5) as they relate to local government’s right to govern its own affairs within the Constitution, and asked why those sections were not mentioned given that they may conflict with the Bill. Mr Marais said that he had no issue with clause 5 of the Bill, but that he had an issue with clause 7 in that no definition for the word function had been supplied. He added that this would be problematic as a function could be transferred without an employee.
On secondment, Mr Marais said that clause 6(1) did not make the regulation of secondment obligatory. However, clause 6(2) made it unnecessary for the person, or another institution to concede, or consent to a secondment. The Minister of Public Service and Administration would be afforded unlimited powers regarding transfers and secondment.
Mr Marais said the section 17(5) of the Bill provided that a municipal manager of a municipality, or a director general of a province would be obliged to comply with the Office of Standards and Compliance, headed by the Minister, regardless of the consent of the relevant executives of those institutions. This might raise issues of constitutional infringement.
Mr D du Toit (DA) stated that he understood the moral and practical standpoint of the Bill. However, he questioned whether Adv Simelane understood what was meant by local government being able to govern in its own affairs, and questioned whether the writers of the Bill understood the workings of local government. Mr du Toit asked which section of the Bill allowed for the reversal of a secondment so that the receiving institution could send back a seconded individual who they did not want there. The danger is that the municipal council had the right to restructure the municipality and rid itself of the seconded individual. The key was in controlling and managing staff. On reversing processes, looking at the practicalities of secondment, he asked how the seconded person would be paid. Would money for secondment come from the national budget.
Mr Marais added that Adv Simelane said that the PAM Bill would respond to the present breach of section 154(1) of the Constitution. However, other Acts already existed which would be able to respond to that section of the Constitution, such as the Labour Relations Act and the Municipal Structures Act. The PAM Bill was not the only response to section 154.
Minister Sisulu replied that many people within the country live in areas where local government does not work. The Western Cape was the area most advantaged at the start of the democratic era in that it had the highest level of various skills because it was where the National Party governed. The poorest local government areas needed to be attended to, and they lacked the facilities to carry on their duties. The PAM Bill was designed to ensure the equitable distribution of resources throughout the state.
Minister Sisulu referred to the regulations of the Bill, stating that the issues which the PAM Bill did not fully address would be covered in the regulations, which were forthcoming. The different regulations might be applicable to different institutions and employee levels. In response to other applicable laws responding to section 154, the law would be passed to regulate the state. The Auditor General’s report to her office indicated that irregular expenditure at local government level could be attributed to how those who implement the laws do not understand those laws. Something would have to be done to ensure that there was compliance with the laws set in place. Thus, the Bill would be an administrative version of the Public Finance Management Act in ensuring that the laws are complied with, similarly to the compliance from institutions to the Auditor General.
Adv Simelane responded to the question on local government being able to govern its own affairs by maintaining that the Bill did not interfere with that function. If a function was transferred from provincial to local government, the officials who would be affected by that transfer would have their conditions looked after in terms of the Labour Relations Act. On transfers and secondment, Mr Simelane said that section 6(2) dealt with the vertical relationship between the employer and the employee where the employer proposes to the employee that he/she be seconded.
The official identified for secondment would have to possess the necessary skills for the secondment; the employee would have to consent to the secondment. However, dependent upon the needs of a particular municipality, an official may be seconded without his/her consent. Thereafter, section 6(3) of the Bill provides that the consent of the municipal council must be sought. Without that consent from the municipal council the secondment may not take effect. Thus, the sending and receiving institutions would have to consult with one another before the secondment takes effect. Furthermore, the reversal of secondment would be as easy as the initial secondment.
Mr du Toit questioned why the term ‘in consultation’ could not then be replaced by the word ‘agreement’.
Adv Simelane said that the term ‘in consultation’ was greater than ‘agreement’ in that consultation would require the parties to agree to every part of the agreement.
Mr du Toit commented that it would be better not to argue what 'in consultation' means if the phrases were written more clearly in the Bill.
The Minister said that the term ‘agreement’ is not used in law and that the term ‘in consultation’ is preferred. Adv Simelane added that an advantage to the term ‘in consultation’ was that it was more onerous on the parties, and that there was more than enough case law regarding what was meant by ‘in consultation’. ‘Agreement’ could be misinterpreted whereas consultation requires greater detail.
Mr du Toit said that he would seek his own legal opinion on the matter as he had different views.
Mr E Nyekemba (ANC) said that the engagement with the Bill was to be done bearing in mind that the Committee would have public hearings on the Bill the next day. The present meeting was to also consider the areas which the NCOP needed clarity on. He stated that the Committee was almost rewriting the Bill on the present matter. When considering new legislation, other relevant legislation had to be considered as well. The Labour Relations Act dealt with dismissals based on operational requirements. The process therein is a consultation process done with the view of creating sufficient consensus. He made reference to the Amplats dismissals of 2013 where the consultation process resulted in something totally different from what the employer wanted. He raised this due to section 6 of the PAM Bill making no reference to any form of dismissal, and only to secondment and transfers. There was uncertainty as to which court of law an employee would be able to approach when unhappy about a secondment or transfer. The court of law would listen to the employee and ask whether the consultation was sufficient, and whether a need existed for the secondment or transfer. He proposed that the Committee gain clarity on whether a Member was arguing to disagree, or to gain understanding on the subject matter.
Minister Sisulu indicated that the Bill was important in that it lays the foundation for the administration of South Africa’s democracy. The attitude of the Democratic Alliance was to find fault with the Bill and not to provide a solution for all. Minister Sisulu said that the Bill was the best solution for the country as it would help all. The forthcoming regulations on section 6 of the Bill would define that consultations would be done in writing, and that the party being transferred would be a part of the consultation by signing the transfer.
Mr du Toit stated that there were two agreements; namely, that with the worker, and that with the institution. He expressed his desire for the legislation to bring clarity on those agreements. The Bill would impact the lives of South Africans, and that his intention was not to nitpick at the Bill and find fault with it to derail it as he understood the areas of concern in public administration.
Mr du Toit stated that what he required was clear-cut legislation which was not open ended.
The Minister asked him what wording he would use.
He responded that when institutions go into consultation that the two must, not should, be in agreement on whether an employee was to be seconded or transferred.
The Minister then questioned what would prohibit this factor from being placed within a regulation, as it was a detail.
The Chairperson said that this was a possibility and allowed Adv Simelane to continue to answer the questions.
Adv Simelane said that, regarding section 17(5) of the Bill, that if there was no cooperation that there would be an unfavourable consideration of one’s position. He added that it was a principle set in place to ensure that people cooperate with other officials in the exercise of their duties. He further restated that a secondment would be able to be undone as easily as it would be done. That there had been consideration of other applicable laws, and that none of those laws dealt with secondments and transfers between the three spheres of government. He submitted that the lack of provision for secondment was the reason why section 154(1) of the Constitution was breached, and that the PAM Bill dealt with that issue.
As a follow up question, Mr Marais said that the he was not convinced on section 6(2) and 6(3) regarding the consent elements of consultation, as there would not be a need for consultation regarding the employee. He added that seconding an individual without consent would need some form of guidelines on the matter. He stated that the wording of ‘may’ and ‘must’ was to be addressed and that the wording issue would have to be taken care of.
Minister Sisulu requested that the DA make its submission in writing to Adv Simelane, who would address the matters raised. more legal opinions on the Bill would be welcomed as she held that the Bill would do enormous good for the country.
Mr du Toit stated that he was aware of the problems which exist within municipalities in smaller outlying areas. He added that the higher skilled people were city-bound with a family life in the city. The possibility of where a wife or husband could be transferred or seconded away from home, for an indefinite period of time, which could split families, bring emotional hardship, break marriages, or lead to extra-marital relationships for people away from home due to secondment. He stated that when an employee is put in that position that the spouse and the children would be put in that position as well, and that the Bill should not result in divorces. The Minister then snapped at Mr du Toit by making reference to him having his third wife. Mr du Toit stated that the writers of the law were not to force people into a situation where something would be justified without his/her consent.
The Chairperson said that should the members have any other inquiries or questions that they were to be forwarded in writing to Adv Simelane in writing, who would respond on the matter. She then reminded the Committee of the public hearings which would be done he next day.
Ms J Maluleke (ANC) requested that all of the questions asked outside of the meeting to Adv Simelane were to be in writing. The Chairperson agreed on that point. Minister Sisulu also asked the DA members what their intentions were in going forward with the Bill. Mr Marais responded by stating that the Bill did not have ideology issues, but the DA recognised issues on legality. He also said that it would be undesirable to have a Bill which would be contested in the Constitutional Court. Mr Marais said that he also had issues regarding family members working for the state, and that he would ask Adv Simelane whether it should be family members of employees instead. Mr Marais then stated that he wanted a better piece of legislation which would not have to be amended later.
The Minister said that the Bill had been dealt with the finest toothcomb. that the issues which had been raised had been dealt with, and would be found in the Bill. She asked that, for the public consultation the next day, the DA to respond as representatives of the country and not from an ideological perspective, because of the importance of the Bill. Minister Sisulu said that she did not think that the issues which were being raised were fundamental. However, they would be considered.
Mr du Toit responded to the Minister by noting that within the two hours of the meeting that not all of the issues raised were addressed. He stated that it did not sit well if there was no time with which to consider the legislation. He also said that the DA was beyond ideology, as ideology could only be pushed for when one was in a majority, as a minority could not argue for ideology.
The Chairperson restated the obligation on the DPSA to respond to the issues raised, in writing before adjourning the meeting.
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