Public Administration Management (PAM) Bill: public hearings with Minister
Public Service and Administration
07 March 2014
Chairperson: Ms J Moloi-Moropa (ANC)
The Public Service and Administration Portfolio Committee received oral submissions from NEHAWU, Prof Peter Franks in his personal capacity, Open Democracy Advice Centre, Office of the Premier of the Western Cape, Corruption Watch, FEDUSA and Centre for Constitutional Rights.
NEHAWU supported the Bill as it had addressed most of the concerns that had been raised during the discussion process, however, there were still concerns with clause 6(2)(c) which provided for the Department of Public Service and Administration (DPSA) to enforce secondment in the absence of consent. Workers’ human rights had to be taken into consideration especially where the worker would have to move to another province. NEHAWU raised concern with Clause 9 which dealt with disclosure of financial interests of all employees. NEHAWU agreed with the clause but called for specification of the amounts for disclosure and under what circumstances. NEHAWU also raised a concern over the safety and protection of whistle blowers which was overlooked in Chapter 6 that provided for the establishment of the Public Administration Ethics, Integrity and Disciplinary Technical Assistance Unit.
Mr Peter Franks stated that his concerns with the Bill revolved around the conflicts of interest and their management which was a soft issue and hence was harder to deal with whilst the hard issues could easily be resolved technically. He said that the draft version of the Bill had planned to extend the role of the Public Service Commission and to empower it. However, the current Bill was introducing a new unit which could take time before implementation as setting up new institutions was a lengthy process and was not easy hence could weaken the approach. He also said that the notion of democracy was a problem in the public service as in a constitutional democracy the legislature debated, consulted and made the laws and the public servants were there to interpret the statutes and implement them not to discuss them and decide how to interpret them in terms of the various interests that rose along the way. This could undermine the efforts through different interpretations. Mr Franks had worked in the Limpopo for 20 years and he had watched how different aspects of policy were utilised for self-interest. Thus it was important that the Bill looked carefully at a campaign to assert ethical standards. There was no easy solution, however he emphasised the importance of raising a dialogue within the public service that puts ethics, ethical frameworks and servicing the public above all else. If dialogue, debates and conversations were re-established among all sectors involved in the implementation of the Bill, a way forward could be found.
The Open Democracy Advice Centre said that its focus was putting transparency into action and focused on legislation like the Promotion of Access to Information Act, the Protected Disclosures Act and other systems and policies which work to provide openness and transparency. ODAC’s submission outlined provisions in the African Union’s Charter on Human and People’s Rights and the Charter on Values and Principles of Public Service Administration as well as the principles in the United Nations Declaration of Human Rights and the International Covenant on Civil and Political Rights. All dealt with the requirement for openness and transparency in the public service and more broadly. ODAC was proposing a proactive release of information whilst clause 4(g) provided for citizen’s rights to information that was timely, accessible and accurate. It was about people accessing information from the state which was a kind of pull model but a push model was recommended whereby information was pushed to the citizens who needed the information.
Regarding clauses 8 and 9 particularly in relation to fines under clause 8(3), ODAC wished to ensure that the fine more than met the benefits that the civil servant could accrue because if the fine was less than the benefit, that would be problematic.
The Open Government Partnership spoke directly to the pro-active disclosure of environmental information through a consolidated information portal which had relevance to the PAM Bill, as it could be directly linked to the issues dealt with in clause 14 such as the inter-operability of systems and those kinds of infrastructure issues which directly bore on the capacity of ICT to be pro-actively used to disclose information to the public. This would help in establishing effective communication systems and processes to inform the public about service delivery and to enhance access to information by users to receive feedback and inputs.
Corruption Watch expressed its general support for the DPSA for its move to provide for better organisation, management, functioning as well as personnel related matters in the public administration. However, there was discontent about the removal of the provision for the introduction of a cooling-off period for employees who left the public service and the creation of the Anti-Corruption Bureau which had been provided for in the draft Bill. The introduction of the cooling-off period before public officials could enter the private sector was necessary and appropriate thus its re-introduction in the tabled Bill was called for. Corruption Watch also viewed that the establishment of an Anti-Corruption Bureau was necessary in the fight against corruption as such called for the re-thinking of the provisions creating this Bureau. Corruption Watch called for the re-thinking of the Bureau and thereafter the re-introduction of the Bureau into the PAM Bill as it had investigative powers which also allowed it to initiate action.
Corruption Watch supported the clause that existed in the current PAM Bill which provided for the prohibition of public officials conducting business with the state and the section introduced an outright ban on public officials from conducting business with the state which was novel in the law.
Members asked whether the Anti-Corruption Bureau was the only institution that was capable of combating corruption, as there were already other institutions such as the South African Police Service which was already conducting investigations into matters of corruption. Members asked how secondment in the absence of consent would impact on the workers’ abilities. It was also noted that there was existing legislation promoting accessing to information to all South Africans. Members raised a concern that the National Anti-Corruption Forum which was under the chairpersonship of civil society was no longer functional whilst when it was under the DPSA it was effective as the DPSA was able to coordinate activities.
Mr Neil Newman, NEHAWU researcher, said that the submission was brief because in 2013 there were deliberations in NEDLAC and NEHAWU as a public service union was part of the processes that discussed the draft Bill. The submission being made now was on the amended Bill. The Bill was welcomed by NEHAWU because many of the concerns raised in the deliberations process with the DPSA as well as in NEDLAC had been dealt with and amendments had been made.
Mr Newman referred to Chapter 3 which dealt with employment in the public service, and said there was a concern about clause 6(2)(c) which gave the DPSA the right to enforce secondment despite the absence of consent. This had to be reviewed because the Department could not just inform workers that they would be seconded and moved irrespective of the worker’s reluctance to move. Workers’ human rights should not be disregarded especially where workers would be moved to another province, as this would have an impact on family life. Another difficulty with secondments and transfers was that there were so many vacant funded posts in the public service that needed to be filled. It was earlier agreed that existing vacancies would be filled. It was hoped that the issue would be dealt with in the legislation.
Clause 9 of the Bill dealt with disclosure of financial interests of all employees and NEHAWU agreed with it but had difficulties with the clause. There should be a reason for disclosure and amounts for disclosure should be specified. For instance if a public servant gave a lift to someone to the airport and they were paid R50 was that a reason for disclosure. It should be clearly specified what needed disclosure and under what circumstances.
Mr Newman said that NEHAWU was in support of the Bill’s provision for capacity building through the establishment of the National School of Government which would be established as a Higher Education institution. There was a view that the Minister of Public Service and Administration should liaise with the Minister of Higher Education, as any legislation affecting Higher Education institutions would also affect the National School of Government. The link between the two should be specified.
Mr Newman said that NEHAWU supported Chapter 6 which dealt with ethics, integrity and discipline and provided for the establishment of a Public Administration, Ethics, Integrity, Discipline and Technical Support Unit. The unit would be dealing with issues of corruption which was something that had been raised before and was still being raised. NEHAWU raised a concern about the protection and safety of whistle blowers because they were not protected and were getting into trouble - this was being constantly reported in the media. NEHAWU proposed that there should be measures which would be implemented to ensure the protection of whistle blowers. He concluded that the revised version of PAM Bill was supported particularly because many of the concerns raised during NEDLAC discussions had been removed.
Mr A Williams (ANC) asked for Mr Newman’s opinion about clause 6(2)(c), which read “in the absence of consent after due consideration of any representations by the employee and if the secondment is justified”. He asked how the clause should read because fundamentally there was a reason why the clause was provided. There were areas in the country which lacked skills and the skills were not locally available but were still needed. The skills would still have to be obtained from somewhere. How should the clause read and what was Mr Newman’s proposal to help solve the problem of skills shortage in small municipalities that were failing to deliver services due to this skills shortage.
Mr E Nyekemba (ANC) referred to clause 6(2)(c), and he had heard in the Department presentation that there were circumstances which had to be taken into account. He was of the view that the said “representations” would be considered in the process of secondment and would take into account the concerns raised by NEHAWU.
Mr Newman responded that it was difficult when speaking of lack of skills for him to table and write on how to deal with the issue. The issue that had to be dealt with was secondment in the absence of consent. The worker should have a right to decline the secondment. Furthermore, the establishment of the National School of Government implied that skills would be developed. He added that the issue of what to do where there was a lack of skills was in line with the point that was raised pertaining to unfilled vacant posts that should be filled with people who had the required skills. Perhaps filling the vacant posts would mean there would be no need for secondment unless it was for a specific issue and only for a short time.
Mr S Marais (DA) said that NEHAWU wanted to enshrine in the Bill that the worker would be free to decline the secondment. He expressed empathy for that and was of the view that there was a need to look at the bigger picture to see how one would resolve this as one assumed that this was an exception to the rule.
Ms Lindiwe Sisulu, Minister of Public Service and Administration, said that she would not respond right away and she encouraged Mr Newman to stay for the duration of the meeting so that he could assist in reformulating what he was talking about. In the extended submission, NEHAWU had suggested that there should be timeframes or time bounds when seconding a person as it helped the relationship around secondment issues.
The Chairperson thanked Mr Newman for the submission and pointed out that, as stated by the Minister, the interaction process was extended to the entire day and the Committee appreciated the submission.
Submission by Prof Peter Franks
Prof Peter Franks, University of Stellenbosch, said he was an academic and as such was coming from that standpoint. He was shocked that he was the only academic to make a submission which in his view talked to a problem where academics and practices were not talking to each other which was a long standing issue. His concern with the Bill was really about implementation of the Bill. He felt that some of the things that might have been watered down or that might be too strong from the draft Bill should be looked at very carefully and maybe some of them could be returned. His concerns revolved around conflicts of interest and their management. He recalled the Finance Minister’s 2013 budget speech pointed to the intractability of many of the problems of service delivery. He was not being critical but was trying to show that dealing with the issues would not be easy. He added that the soft issues were the “hard issues” as the hard issues were easier to resolve technically, whilst the social and political issues which affected implementation were much more difficult to deal with and get a grip on.
Mr Franks said that one of the criticisms he had about the tabled Bill was that the old draft Bill had planned to extend the role of the Public Service Commission (PSC) and to empower it - this had been removed. The current Bill wished to introduce a whole new unit called the Public Administration, Ethics, Integrity and Disciplinary and Technical Assistance Unit. He raised a concern that setting up a new institution was never easy as it was a long process. The country would do better by using the existing PSC and extend its powers. He was worried that the new unit would weaken the whole approach because of the difficulties of creating a new institution. In addition it was necessary to clarify what the relationship would be between that unit and the PSC. The concerns could be summarised as follows: the difficult issues were the soft issues such as the various kinds of conflicts of interest which presently undermined service delivery. There was not just one conflict of interest but there were many different layers of conflicts of interest such as the use of national democratic revolution and its relationship to the Constitution. He thought these things should be teased out and he did not think they had been in the Bill. These conflicts of interest had to be carefully managed otherwise technical solutions could be undermined.
Mr Franks stated that one of the problems experienced in the public service was the notion of democracy. For instance, was the country in a constitutional democracy or a participative democracy. The difference was that in a constitutional democracy, the legislature debated, consulted and made the laws and the public servants were there to interpret the statutes and implement them, not to discuss them and decide how to interpret them in terms of the various interests that rose along the way. He felt it was very important not to allow the technical and legal solutions of the framework being developed by the Ministry to be undermined by differing interpretations along the way.
Mr Franks said that he had worked in the Limpopo province for 20 years and he had watched how different aspects of policy were utilised for self-interest. Many people present would have observed the same in their own workplace. It was important that the Bill looked carefully at a campaign to assert ethical standards and the word campaign was used deliberately because it had to be a dialogue within the public service, between academics and the public servants and other interested parties to come to terms with how the different conflicts of interest were dealt with - none of which was easily resolvable. Looking at the new Bill on Traditional Leadership, there was a statement that was a bit beyond the PAM Bill but it related. The statement talked about the kings and queens having to sort out the modifications of customs and tradition in terms of the Constitution, which was a huge task. They could not be asked to do it individually as one needed a dialogue and conversations to help people sort this out. These were tricky issues and unless they were faced there would be unintended consequences once again.
One of the contradictions was that between national democratic revolutions and the Constitution, as stated earlier, was what happened when there were different interpretations of the laws as laid down by Parliament? There was a lack of unified vision and it did not pull people together. There was a need to pull people together towards a vision of delivering service against a vision of utilising loopholes to serve self-interest in various ways. He cited an example given by Mr Mthembu, PSC Chairperson, in a discussion he led last year where he described a lack of clarity on what constituted ‘good practice’ and what was not acceptable, as this was surrounded by a lot of confusion. He continued to explain that African culture believed in taking care of people who were important to us by ensuring that they were fed and provided with opportunities, though it was known this had limits, and what were the limits? As such it was important to have a conversation about how far well-intentioned and good-hearted cultural practices should extend into the professional realm and where they should stop. It became a conflict of interest just as a cow tied to the constitutional and legislative intentions got confused with some revolutionary ideas, which still tried to be implemented even though South Africa was in a different phase of the struggle. South Africa had to establish an ethical framework based on the values of the Constitution so as to govern and manage conflicts of interest – to achieve public service delivery for the public good. This was a critical moment in South Africa whereby if the issues faced were not radically confronted they would continue to undermine the technical and legal efforts to deal with management in general. It should be clear that the PAM Bill really reconfirmed some of the issues that were covered previously by Administrative Law. They were not new issues and there was the ability to implement some of the disciplinary matters, and it was that they were not implemented, and now there was a need to find out why that was. The Bill did establish the basics for a disciplined and managed public service and stopped procurement services corruption but could it come to terms with the conflicts of interest within the public service itself? Conflicts of interests did not stop at family relationships but extended far wider, especially since the defence cadre appointment remained. Public servants should be there to serve the public, not to serve particular revolutionary ideals. There should be serving in the interests of the Constitution and the legislation. Therefore, the country would head into some form of state-led development, which was fine, but there was a need for a legal framework that made civil servants accountable and a conceptual development of the importance of ethics in the public service.
Mr Franks said that his solution was that “there was no easy solution” but he believed that if the country could return to what was in the previous public service even though it was a continuous entity, however under Geraldine Fraser Moleketi there was dialogue and conversation between academics and practitioners, civil society and even business which looked at many of the issues that were sticky and difficult issues. He believed that if the public service returned to that kind of dialogue, it would help in two ways. The first being finding a way through this mollusc which was very difficult as it touched on very personal and important issues around custom and tradition which were not frivolous but had to be dealt with in some way. Secondly, besides the dialogue around how the issues could be resolved, there was the importance of raising a dialogue within the public service that put ethics, ethical frameworks and servicing the public above all else. If dialogue, debates and conversations were re-established among all sectors involved in the implementation of the Bill, ways forward could be found as there were no easy solutions.
Mr Marais said that the PSC was a Chapter 10 institution which gave it some independence. He asked if it was not correct that for any extensions to the PSC, this should be given to the commission in terms of its Act rather than the PAM Bill. The initial idea was to put the Commission in the Act but in terms of a broader consensus and information. Basically the idea was to prevail on its constitutional independence, hence the need that the PSC should rather be in its own Act than the PAM Bill. He asked whether Mr Franks believed that putting the PSC in the PAM Bill would impede its independence.
Mr Franks said that he was quite happy to agree with that and his wish was that it should happen. He was not a parliamentarian to work out where it should happen but it needed to be strengthened.
The Chairperson said that there was a time when the PSC coordinated the Anti-Corruption Forum. She asked whether Mr Franks had observed its activities and in his opinion was the PSC efficient at that point or did he believe there was a need to strengthen it.
Mr Franks responded that he had not carried out an evaluation to come to any conclusion but he was involved in some of the activities which he felt worked very well. However there was a hiatus for a long period with very little dialogue. He believed it was starting again under the new Minister.
The Chairperson said that in his submission Mr Franks talked about dialogue which was critical and Members agreed on that. As such, the Committee had tried to facilitate seminars but there was no support from other Ministers such that the seminars had to be shifted several times, but nonetheless it was a very good idea which might be retained.
Minister Sisulu said that she was invited by the University of the Nelson Mandela Metropolitan in Port Elizabeth and it was pointed out by efficient advisers that when the Bill was put out for public comment there was not a single academic who responded. Her challenge to the Nelson Mandela Municipality University had been where was the academia to ensure that there was good governance and participatory dialogue so she was glad that they had found Mr Franks.
Minister Sisulu said that the Ministry was establishing a School of Government but was short of funds. She was sure that a year of sabbatical for Mr Franks at the School would solve part of the Ministry’s problem.
Mr Marais said that Mr Franks had not talked about the School of Government and the model that was being proposed. He asked for any comments, especially with regards to current capacity in tertiary institutions and what might be the best or ideal way for tackling these challenges.
Mr Franks responded that the way he understood it was that the National School of Government would work in tandem with existing higher education institutions but there was a shortage of academics to do all the training. As such, there would be a need to look for some creative ways to fill that gap. He also suspected that not all of the National School of Government’s plans had been put forward so he could not talk to that. However, he thought it was a good model and he always believed that it was not the model, but rather how the model was implemented.
Open Democracy Advice Centre (ODAC) submission
Ms Allison Tilley, Head of Advocacy at ODAC, said that the Centre was established to try and put transparency into action and it focuses on legislation such as the Promotion of Access to Information Act, the Protected Disclosures Act and other systems and policies, which work to provide openness and transparency and these were the areas focused on in the submission. Although not its core business, ODAC would like to commend from the outset the complete prohibition of public servants conducting business with the state which was a bold move and should be applauded and supported.
Ms Tilley said that in its submission, ODAC had outlined various provisions in the African Union Charter on Human and People’s Rights and its Charter on Values and Principles of Public Service Administration as well as the Principles in the United Nations Declaration of Human Rights and the International Covenant on Civil and Political Rights. All dealt with the requirement for openness and transparency in the public service and more broadly. There was a model law at the moment which provided a framework across the continent in terms of access to information. One of the things recognised in South Africa all the time was putting the Access to Information law in place did not necessarily mean access to information for ordinary people. ODAC had conducted numerous studies in that regard and in one particular study had looked at requestors of information who were particularly disadvantaged. One of them was a handicapped person and the other a woman who only spoke Sotho in the Johannesburg area and was not literate. Neither of them out of ten requests for information, was even able to make the request. ODAC was not able to monitor the responses they received because they could not even get past the front door. This was something that had to be accepted as a counter environment in terms of access to information for ordinary people.
ODAC was proposing a proactive release of information whilst clause 4(g) provided for citizen’s rights to information that was timely, accessible and accurate, it was about people accessing information from the state, which was a kind of pull model, but a push model was recommended whereby information was pushed to the citizens who needed the information. This was reflected in other places in government policy particularly in the Batho Pele principles. Principle 5 which states that citizens should be given full, accurate information about the public services they were entitled to receive and should be told about how national and provincial departments were run. The difference in language should be noted. For instance, it was about being given information and being told about how things were being run and not about requesting information or accessing the information which was an important difference to think about. Clause 4(g) would be where the shift could be dealt with.
Ms Tilley noted its comments on clauses 8 and 9, particularly in relation to fines under clause 8(3). Would the fine match the benefits that the civil servant would accrue? If the fine were less than the benefit, then that would be problematic. However, ODAC did not have specific recommendations to resolve this. Clause 8 and 9 also dealt with a question of positive obligation on the head of the institution to initiate action against the employee. There were no established mechanisms for reporting violations of these sections nor were standards set for the creation of mechanisms in each institution, if that was the preferred option to the Office of Standards on Compliance.
ODAC would particularly like to focus on the question of whistle blowers as was mentioned earlier by NEHAWU. The question of the implementation of the Protected Disclosures Act was really a significant problem as was seen in statistics by the latest PricewaterhouseCoopers survey results which came out a few weeks ago looking at global economic crime indicators. This showed a downward trend in the effectiveness of whistle blowers in reporting crime in South Africa. In 2007 16% of crimes were detected through whistle blowers and this had dropped to 6% in 2013. Research by ODAC indicated that a high level of people did not believe that the Protected Disclosures Act protected them and the perception was correct in that it was weak in protecting employees. The findings from ODAC research supported the findings of the PricewaterhouseCoopers survey as the findings for self-reporting showed that the number of people who said they were whistle blowers was going down. Whistle blowing was a key way for discovering what was going on in an organisation and a key way for discovering corruption. If whistle blowers were not prepared to come forward, then a key mechanism would be lost. This was an area that needed to be focused on and currently the Department of Justice had had a Bill for quite sometime and were looking at having the Bill tabled but this was the framework that had to be looked at. The legislation required that corruption must be reported which was in line following on the Prevention and Combating Corrupt Activities Act which also required reporting. However, the problem would be there would be no reporting if people were not willing to come forward. One of the things that could be done in this legislation was to look at the minimum norms and standards section, as there was an opportunity to actually look at clause 16 and introduce powers to create norms and standards expressly extended to advance the purposes of the Protected Disclosures Act. This was an issue of the advancement of good governance and was directly implicated by other areas of oversight which were indicated in the PAM Bill. It was recommended that there should be pro-active measures to enable and encourage disclosures. There were a number of other options that could be looked at including a code of good practice around whistle blowing. There was always the intention to expand the number of agencies to report to in terms of the Protected Disclosures Act and it seemed the structures created in the legislation should be somewhere whistle blowers could go to. At the moment they were not prescribed by any regulation as regulated by the Protected Disclosures Act. Currently if a whistle blower was to report to any of the structures, he or she would be falling outside the protection of the Protected Disclosures Act and could be subjected to sanctions which would be lawfully acceptable. If there were more places that whistle blowers could go to and report safely, disclosure would be encouraged and would facilitate a culture of disclosure within an organisation and society as a whole.
Ms Tilley added that this was not a part of ODAC’s submission however, when the chairpersonship of the National Anti-Corruption Forum was under the DPSA, it was working. When business took over, it was still working but it fell apart when civil society took over and the Forum had not met for quite sometime. Though the Forum is not operational, there were a number of exciting developments in relation to ICT which could come into play and the section on norms and standards could deal with that in more detail. She explained that her colleague would talk about this, as she was the expert in that area.
Ms Gabriella Razzano, ODAC Head of Research, said that she wished to flag directly in dealing with clause 14 an area of great importance in terms of policy. She said that the Minister’s Department was leading on the Open Government Partnership which was relevant to the Bill. Within the Open Government Partnership, a new series of commitments had spoken directly to the proactive disclosure of environmental information through a consolidated information portal which had relevance to the PAM Bill. This could be directly linked to the issues dealt with in clause 14 such as the inter-operability of systems and those kinds of infrastructure issues which directly bore on the capacity of ICTs to be pro-actively used to disclose information to the public. It was recommended that clause 14(d) should be extended as in the need of those technologies not only to advance access to services but also to advance access to information pro-actively to the community on public service and administration issues. This was expressed similarly in clause 6(3) of the African Charter which stated that Public Service and Administration shall establish effective communication systems and processes to inform the public about service delivery and to enhance access to information by users to receive feedback and inputs. ODAC would like something similarly expressed in the PAM Bill.
Ms M Mohale (ANC) asked whether ODAC was aware that there was a South African Public Service Charter which addressed issues of access to information, transparency, accountability which showed that the DPSA was serious about access to information for everyone. Ms Tilley had talked about a disabled person who had wished to access information. The government was serious in making information accessible to everyone and even providing it through sign language as was stated in the President’s State of the Nation address.
My Nyekemba said that the ODAC recommendations on clause 8 spoke of minimum norms and standards, The submission talked of fines which were not necessarily reflected in a Bill, on the other hand, the recently passed Employment Services Act stipulated minimum fines. As such, would ODAC be comfortable if the fines were to be specified in the regulations rather than in the actual PAM Bill. ODAC had made recommendations on the minimum norms and standards and had referred to schedule 8 of the Labour Relations Act (LRA) which dealt with a code of good practice. He was of the view that ODAC wished for these issues to be addressed in the introductory part of the Bill which he felt was a duplication of the LRA as its provisions applied to all workers including public servants.
In response to government’s seriousness in enhancing access to information, Ms Tilley said that ODAC did not include all the references in South African laws and policy to transparency and access to information as that would have made the submission rather lengthy. There were so many commitments beginning with Section 32 of the Constitution and carrying right through to the Public Finance Management Act and various other instruments. She said that at this point commitment was not the problem. ODAC’s data for a number of years indicated that 64% of requests for information in terms of the promotion of access to information went unanswered and there were similar jurisdictions with numbers that were just as bad or the response rates were not good. One of the things learnt was that an Access to Information Act was a necessary but not a sufficient step in terms of access to information in the system. The Open Government Partnership was assisting in reorienting a move away from a request-based system to making information automatically available.
Ms Tilley responded that what ODAC was suggesting in terms of code of good practice was slightly different which in the PAM Bill was about putting in minimum norms and standards. One of the instruments was the codes of good practice in the LRA. However the issue of dealing with whistle blowers was not provided for in the LRA and most people dealt with them in terms of grievance procedures or disciplinary procedures – both of which were wrong. As such, many were stuck due to a lack of guidance on how to deal with whistle blowers. ODAC was of the view that there was an opportunity here to find space to provide those guidelines whether it was within the PAM legislation and the requirements for minimum norms and standards or to refer it on to another piece of legislation. The key part missing in whistle blower protection right now was that people did not know how to proceed on a practical basis when there was a person blowing the whistle. This was on the assumption that the employer was in good faith which in most cases was not the case.
Ms Razzano said in response to the question on clause 8 there were many examples of primary pieces of legislation which included minimum fines. A possible positive to dealing with fines in the regulations as suggested is that it would allow for more responsiveness to changes to those fines as conditions changed.
The Chairperson said she was hesitant to comment on the National Anti-Corruption Forum which was located in the PSC and had a rotating chairpersonship; she had not seen the efficiency of the Forum. There was also a security cluster which was the role the Minister coordinating. What was being said about whistle blowers was understood. However not all whistle-blowers were true. As such resources were wasted on allegations that were not true.
Minister Sisulu said that she was glad the issue of the Anti-Corruption Forum had been raised and she was intrigued because when Mr Franks made a submission he seemed to be saying that South Africa was a state that was “determined to drive all processes and one would have to live with it as that was the best way to go”. In this particular case, here was a clear example that unless the state took a driving seat in most of these things, nothing would happen. For instance when the National Anti-Corruption Forum was under the DPSA it worked and now it was in the hands of civil society, it had fallen apart. This was an example of a good initiative falling apart and the DPSA did not mind taking over the National Anti-Corruption Forum. If ODAC should be in an environment to make this suggestion, the DPSA would be happy to take over and ensure that it worked. It was a very good cooperative arrangement between civil society and the DPSA to ensure that this was a central issue to stamp out corruption.
Ms Tilley said that the chairpersonship did rotate and she believed that the period that civil society had as chairperson was at an end. She was corrected by Members that it had just started.
The Chairperson thanked the presenters for the submission.
Corruption Watch (CW) submission
Ms Nicola Whitaker, CW Head: Legal and Investigations, CW said that the submission was structured into three sections the first was a brief introduction on corruption, the second part dealt with two changes from the draft Bill that CW calls these two provisions to be re-introduced and finally support for an existing strong provision in the statute before Parliament.
Ms Whitaker said that CW was a civil society non-profit organisation without a political or business alignment. CW promoted transparency and exposed corruption, particularly as regards to public money. It was believed that confronting corruption required an active and engaged citizenry that was prepared to hold leaders to account and aimed to ensure that custodians of public resources including public officials acted responsibly to advance the interests of the public. It was on this basis of CW’s mandate that its activities included monitoring and responding to legislative developments which impacted on public services and custodians thereof. Given the importance of the PAM Bill in setting standards and introducing systems for improved public administration, CW welcomed the opportunity to respond to the legislation. An earlier draft of the PAM Bill had two provisions which CW particularly welcomed and it was disappointed that these provisions no longer found expression in the Bill before Parliament.
The first was a provision regarding the cooling-off period when a public official moved from the public sector to the private sector. This had been clause 38 in the draft PAM Bill. The was a novel clause in the law and was endorsed by CW as it was viewed as striking a correct balance between preventing corruption on the one hand and allowing freedom of choice in one’s profession on the other hand. Thus, an employee who was involved in a contract award could not take up work with a service provider (private company) within 12 months of being involved in the award of the contract to the private entity. The clause also prohibited appointment by former state employees to the board of the service provider company. This was in cases where the state employee had been directly involved in awarding a contract to the private entity. The relevant authority under the previous statute was empowered to approve a shorter cooling-off period than 12 months in accordance with prescribed criteria. The clause provided that a service provider could not within 12 months employ an employee or appoint an employee to the board of the service provider or engage that employee for payment of money or any gratification if three things were present. Firstly if the employee set out the criteria for the award of the work, secondly if the employee had evaluated or adjudicated the bid and lastly, had recommended or approved the awarding of the contract.
On contravention of the provision, the contract with the service provider could actually be cancelled and in addition the particular employee in question could face a fine. It was due to the three specific criteria that an employee had to be directly involved in the awarding of a contract that CW viewed this provision as not impermissibly intruding on the right to choose a profession as contained in the Constitution. Thus the provision was viewed as striking the correct balance in light of Section 217 of the Constitution which required public procurement to be done in a way that was fair, equitable, transparent, cost effective and competitive.
Ms Whitaker stated that the phenomenon of moving between government and the business sector was colloquially referred to as the revolving door syndrome which could be problematic for many reasons such as undermining the integrity of the state. Public officials were required to make decisions that benefited the public good without taking into account any possible personal gains, such as the prospect of a future lucrative employment opportunity in a particular private company that was bidding for the contract. As stated earlier, public officials were also required to make decisions that were fair, impartial and did not favour any particular interest as stipulated in Section 217 of the Constitution.
Ms Whitaker said that in other jurisdictions key reasons have been advanced for the enactment of the revolving door laws. These laws were necessary to protect the government from use against proprietary information by former employees who left government and took employment in private companies. The laws were also necessary to limit the potential influence and allure of a lucrative private arrangement in the private sector or the prospects such arrangements may have. The laws were necessary and vitally important not only in preventing corruption but also in preventing the appearance of corruption in government processes.
At the time, CW applauded DPSA for introducing the revolving door provisions. CW was mindful of the balance that had to be struck between eradicating conflicts of interest on the one hand and also unduly curtailing career movements on the other. It was believed that the 12-month period in the draft PAM Bill was a reasonable approach and struck a balance. CW was calling upon the DPSA to ensure that appropriate systems were in place to monitor the enforcement of the provision to achieve its intended purpose. In that regard CW aligned itself with the policy proposals of the PSC that suggested that clauses should be included in contracts between service providers and the state which prohibited the service providers from recruiting public officials whom they had encountered directly in the service provider-government context. This would shift part of the compliance burden to the private sector. Therefore CW was disappointed that the cooling-off provision had been excised from the PAM Bill and called for its re-introduction which was believed to be constitutionally permissible.
Ms Whitaker said that the second clause that was provided for in the draft PAM Bill was the establishment of the New Anti-Corruption Bureau which had now been removed. The move by DPSA to establish an Anti-Corruption Bureau was lauded by CW as novel and necessary in the law. It was constitutionally possible to create an Anti-Corruption Bureau and it would go a long way in addressing the Constitutional Court’s unequivocal and unanimous ruling that government was constitutionally required to establish effective mechanisms to tackle corruption.
In addition, CW submitted that there was a positive duty on the state to take measures to combat corruption. The proposed establishment of an Anti-Corruption Bureau was a laudable part of government’s efforts to establish effective mechanisms to do so. CW noted that in the current PAM Bill there was a Public Administration Ethics, Integrity and Disciplinary Technical Assistance Unit; however, the powers of this unit were viewed as watered down in comparison to those powers previously conferred upon the Anti-Corruption Bureau. Thus CW viewed this unit as not being as effective as the Anti-Corruption Bureau could have been in tackling corruption-related misconduct in the public service. CW called for the re-introduction of the Anti-Corruption Bureau in the Bill.
At the time when the Anti-Corruption Bureau was part of the Bill, there was debate on whether it was constitutionally permissible for the Bureau to operate and as CW proposed even go further than what was contemplated in the statute. The Bureau had the power to investigate and initiate proceedings in relation to corruption and misconduct and could do so in provincial and local government. The way this was captured in the draft Bill, it had to be done at the concurrence of the relevant Municipal Council or Premier. There was some debate as to whether this was encroaching on the powers of provincial and local government. CW submitted at the time that this Bureau was constitutionally permissible and there was no encroachment. What was crucial was that the proposed new unit did not have powers of investigation which were conferred upon the Anti-Corruption Bureau. These powers were viewed as being essential by CW.
Ms Whitaker said that in the latest public service data, it was seen that there were a number of lengthy suspensions in the public service demonstrating the inability at present to carry out investigations in an efficient and fast manner. The Anti-Corruption Bureau would have plugged these gaps and assisted in these investigations. The Public Administration Ethics, Integrity and Disciplinary Technical Assistance Unit as was presently cast in the Bill had no such investigative powers. In CW’s view, the Bureau could not conduct disciplinary proceedings and investigations of corruption-related misconduct without having regard to the views of the relevant local and provincial government authority as that would constitute an impermissible intrusion in the autonomy of those two arms of government. This was not the case as the requirement of having concurrence, which CW had submitted was not necessary. CW was of the view that it needed to be reconsidered. It was possible to overcome any potential conflict if the DPSA still believed that it existed in terms of encroaching on local and provincial government.
The PAM Bill should contain provisions establishing an Anti-Corruption Bureau rather than a technical assistance unit with fewer powers and no investigative powers. The unit was not necessary and CW proposed the re-introduction of the Bureau. This was constitutionally permissible and balanced rights and the Constitution.
CW supported the clause in the current PAM which provided for the prohibition of public officials conducting business with the state. The section introduced an outright ban on public officials from conducting business with the state which was novel in the law. The new provision was endorsed by CW and in addition CW highlighted the importance of increased capacity which included increased technological capacity in enforcing the provision. clause 8 of the PAM Bill provided that an employee could not conduct business with the state or be a Director of a public or private entity conducting business with the state. The outright ban on public officials doing business with the state did not exist in the current legal framework and was thus an extremely positive step. CW applauded the DPSA’s proposal to institute this blanket ban and was viewed as sending a strong message about enriching oneself through exposure to the state in the employment context.
The proposed ban was supported in light of among other things the constitutional guarantee to fair and competitive public procurement. In particular because section 217 of the Constitution required that when an organ of the state contracted for goods and services it should be done in a manner that was fair, equitable, transparent, competitive and cost effective. In order to give effect to this system, it was at the very least necessary for disclosure of financial interests to be required as was incorporated in the PAM Bill and in CW view it was completely supportable to impose restrictions on public officials’ ability to contract with the state. There CW submitted that the proposed outright ban was constitutionally supportable in light of the right contained in the Bill of Rights to choose one’s trade, occupation and profession. This right was watered down from the interim Constitution where it was an economic freedom right to the final Constitution, and the current ban was constitutionally permissible.
Ms Whitaker said that since the inception of CW in January 2012, a number of reports had been received from members of the public alleging corruption mainly in public procurement. Corrupt activities took place in both public and private sectors and it was believed that the ban would go a long way in paving corruption that was seen every day in receipt of reports. In addition to the overall support for this provision, CW called for increased institutional capacity in order to ensure that the ban was monitored and implemented effectively. In conclusion CW expressed its support to the DPSA for its move to provide for better organisation, management, functioning as well as personnel related matters in the public administration in all three spheres of government. CW in particular welcomed the ban on public officials doing business with the state and highlighted the need for increased capacity and increased resources to monitor the new provision. However, there was concern and disappointment that the two key provisions that found expression in the initial PAM Bill had now been excised. The introduction of the cooling-off period before public officials could enter the private sector was necessary and appropriate thus its re-introduction in the new Bill was called for. CW also viewed that the establishment of an Anti-Corruption Bureau was necessary in the fight against corruption as such called for the re-thinking of the provisions creating this Bureau and CW was aware that there were issues around the Bureau that had to be resolved however, CW still called for the re-thinking of the Bureau and thereafter there-introduction of the Bureau into the PAM Bill.
Mr D du Toit (DA) thanked Ms Whitaker for her contribution and said that in her submission she had referred to the Anti-Corruption Bureau and then concurrence that had to be gotten from the Council or Province involved. The point was that often collusion happened between the Council, politicians at the Provincial level and officials and collusion between the oversight institutions and officials was almost impossible to stop. He asked how corruption could be solved if concurrence had to be obtained from officials suspected of corruption. He said that the legislation did not refer to the Audit Committees at all and how would they fit into the Bill as they were found at Provincial and Council levels and perhaps corruption would have been fought had the Audit Committees been more effective.
Mr du Toit said that perhaps if workers were seconded for shorter periods of time for instance one year from a nice place to a place that was not so nice what would be the impact on the workers personal or professional life and how would this built capacity.
Mr Williams asked a question about the Anti-Corruption Bureau in relation to the new unit that was being established. He asked whether CW’s only problem with the unit was its inability to investigate.
Mr Marais said that CW had a very strong opinion that the Anti-Corruption Bureau was the only institution capable doing the job and asked whether she was implying that other existing Anti-corruption bodies were not capable of dealing with corruption cases effectively. He also said that in the submission CW had expressed joy with the provision that banned public officials from doing business with the state; however there was no mention about shareholding because as a shareholder there was no need to be a director or employee but there was still an interest. He also asked whether family members of employees were looked at or that was not important for CW.
Mr Nyekemba said that clause 15 of the Bill dealt with units and 15(5) in his view was addressing Ms Whitakers concerns because any identification of a corrupt activity would have to be referred to South African Police Services as such the creation of the Bureau would be a duplication of activities. He also said that taking into account the work that the PSC did, issues of corruption were still being dealt with.
Ms Whitaker responded that when CW first made its comments on PAM Bill in July 2013, CW had proposed a change in wording regarding the need to get concurrence when taking a decision to initiate investigations and disciplinary proceedings. CW has had to adjust its demands because the Anti-Corruption Bureau found no place in the Bill and the detailed submissions showed that it was constitutionally permissible to take a decision after consultation with as opposed to in consultation with and some details had been set out as to why CW believed that after consultation with was sufficient as opposed to the more onerous in consultation with. Since the Anti-Corruption no longer found expression in the Bill, CW was calling for its re-introduction, and once it had been re-introduced, CW would then flesh out its views as regards to the need to consult with in taking a decision to initiate with proceedings. The point about Audit Committees was a good one that was why overall there was a need for re-thinking of the provisions that created the Bureau taking into account key structures such as Audit Committees.
Ms Whitaker said that lack of investigative powers for the unit was not the only issue but it was a key issue that CW wanted to highlight at the submission and CW had made quite detailed submissions which could be accessed on its website. Also to carry on from what was presented by ODAC, the provisions that created the Bureau, there was key protection for whistle blowers and the conditions that created the unit in the current Bill was silent on the protection of whistle blowers which was just another example of a failing of the unit.
Ms Whitaker responded that the Bureau was not the only institution that could do the job of fighting corruption. CW was of the view that there was a need for a multi-prolonged approach to fighting corruption was necessary in South Africa and there were other institutions. CW had presented on the Bureau because of the sound expression in the draft Bill but was now no longer expressed but CW did not believe that it was the be all and end all to fighting corruption.
In response to the question about shareholders and possible influence that could be yielded in that regard, Ms Whitaker said that in her understanding of the PAM Bill there were clauses on disclosure which might cover some of that issue. In terms of extending the ban to family members, CW thought carefully about this and was of the view that there was a need to balance the right to choose one’s profession which was contained in the Constitution with other rights in the Constitution such as Section 217 and thus believed that contracting with the state needed to be confined to specific state employees and use disclosure mechanisms as regards family members in order to balance the two rights.
Ms Whitaker said that in terms of subsection 5 of the current Bill and whether it did not cater for CW’s concerns, the subsection was not completely clear and it might go some way to address some of the concerns but it appeared that the investigative aspect was missing from the unit and the readings from the PSC data showed that that was where there was a possible gap given the huge number of public officials that remained on lengthy suspensions and the huge amounts of time that investigations were taking. It was CW’s view that the subsection did not quite fill the gap as it only spoke to disciplinary proceedings as regards to the unit and not the power to actually investigate. She said that at the moment she was not in a position to answer the question about secondment.
Minister Sisulu said that CW had been very steadfast in its support on the DPSA stand against corruption and it was appreciated. If CW had been let down in any way it was the nature of how laws were put together for instance there should be extensive consultation which the Department has had and what was contained in the current Bill was what had been agreed by all. However not all was lost as democracy was an institution that was built upon brick by brick and the DPSA would still cover the ground that CW was concerned about, nonetheless the DPSA was comfortable with what it had.
The Chairperson thanked Ms Whitaker for the submission and inputs. She said the Committee was unable to get confirmation from the Department of the Premiers Office in the Western Cape, FEDUSA did not wish to make an oral submission and the CRC was not available for oral submissions.
- Centre for Constitutional Rights (CFRC) submission
- Open Democracy Advice Centre (ODAC) submission
- Corruption Watch submission
- Office of the Premier of the Western Cape submission
- Training Senior Public Servants in South Africa by Peter E. Franks University of Stellenbosch
- Prof Peter Franks submission
- NEHAWU submission
- We don't have attendance info for this committee meeting
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