Public Administration Management (PAM) Bill: Minister's response to submissions; adoption (afternoon session)

Public Service and Administration, Performance Monitoring and Evaluation

07 March 2014
Chairperson: Ms J Moloi-Moropa (ANC)
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Meeting Summary

Before the Department of Public Service and Administration (DPSA) responded to the public submissions from the morning session, the Committee received a presentation from its researcher on issues for consideration in the Public Administration Management Bill deliberations. The presentation covered concerns with clauses 6, 9 and 15 of the Bill and recommended that the Committee consider these in its deliberations.

In the DPSA’s  response to the public submissions, it said that many submissions indicated that the earlier draft Bill was better than B55B. NEHAWU supported the Bill, even though it was concerned about the working environment of the employee and it suggested that secondment of staff should be linked to specific assignments and be time bound. NEHAWU said that DPSA did not indicate sufficiently whether it would give the necessary support to whistle blowers, in terms of chapter 6 of the Bill. DPSA responded that that issue was thoroughly covered in the Protected Disclosures Act of 2000 which was within the ambit of the Justice and Constitutional Development Ministry (DOJ& CD). Dealing with whistle blowers and their protection under DOJ& CD had been developed in consultation with DPSA in terms of section 10(4) and that was where perhaps the state might want to strengthen the protection of whistle blowers

The Open Democracy Advice Centre (ODAC) said that Government should play a different role in allowing more proactive interaction between itself and the public and to get inputs from the public as well, instead of always supplying the public with information first. Those issues were dealt with quite extensively in the Bill when DPSA was dealing with the Thusong centres. However, because DPSA had agreed during the National Economic Development and Labour Council (NEDLAC) process that it would remove that matter in the Bill, it had indeed done so. Over and above this, it was mindful of ODAC’s recommendation and would structure its future interactions with the public to ensure that the basic values and principles of public administration included a proactive citizenry.

The Western Cape Provincial Government supported the Bill although it had had certain reservations. Those issues concerned definitions of heads of institutions, including Premiers and MECs, and that the Bill only referred to administrative heads and not political office bearers.It was also not clear how DPSA would justify secondment. DPSA replied that the Bill’s intention was to deal with administrative issues generally and not political issues. It said that it would justify secondment only as a last resort, should it require the very rare services of an individual in an area of expertise not available in a particular municipality and that it would first request that individual to support the state by going to where services were required. Should that be not possible, then it would try and reach an agreement, which as proposed in the Bill would be, secondment.

Corruption Watch had been concerned that DPSA had removed the cooling-off period. DPSA replied that that period had came under attack at NEDLAC and in legislation where labour was concerned. DPSA had to receive a certificate noting all that was agreed upon between itself and NEDLAC, in order for the Bill to come before Cabinet and Parliament. Be that as it may, that did not stop DPSA from ensuring that in the regulatory framework, in the code of conduct for public service and administration and in its charter, that those matters would be dealt with.

After the DPSA response, the Committee discussed the Bill. The Democratic Alliance said that the Western Cape written submission, which had not been orally presented  in the morning, was not being properly entertained in the processing of the Bill. It felt that there were substantive matters that needed to be introduced into the Bill, which both NEHAWU and the Committee Content Advisor had also mentioned. This reached a point where one of the Democratic Alliance members walked out of the meeting when the Committee started proof-reading the Bill clause by clause.

The Committee, in response to the Democratic Alliance complaint, felt that DPSA had responded to all submissions, including that of the Western Cape. Further, the matters that the DA had raised were going to be included in the Bill’s regulations.

The Minister of Public Service and Administration said she took exception to the insinuation that DPSA had not consulted widely enough in the development of the Bill.

The Bill was adopted without the Democratic Alliance as all its members had walked out of the meeting because of its dissatisfaction with the exclusion of the inputs it wanted included in the Bill.

Meeting report

Opening remarks
At the start of the afternoon session the Chairperson said that she wanted to acknowledge how much work the Committee had done up to that point on the Bill. She reminded the Committee that it had had a standard agenda consistently for every quarter and the Public Administration Management (PAM) Bill [B55B-2013] was always part of that agenda as the Bill was quite critical, and the Committee would not have wanted to be only starting work on the Bill today. To that extent, it had thrashed out all issues repeatedly that was part of the Bill’s processing procedure. For that afternoon session, the Committee would recap all the work that had gone into the processing of the Bill. The Committee researcher would talk to the observations that he had lifted from that process. Thereafter the Committee would have to finalise the Bill and adopt it.

Mr S Marais (DA) asked if the presentation by the Committee researcher would include the submissions on the Bill or would the public submissions from earlier in the day be dealt with separately afterwards?

The Chairperson said some issues from the morning session were captured in presentation because they were issues that had always been there, but if there were additional items, the Committee could raise them itself. She thought the Committee would agree that there were not any major items that were new because fortunately the Bill had gone through all the provinces in the National Council of Provinces (NCOP). All the Committee had to do was to finalise the Bill.

Analysis of Public Administration Management Bill: presentation
Mr Mlungisi Biyela, Committee content advisor, took the Committee through his observations on the Public Administration Management (PAM) Bill [B55B-2013]. He said that his views were not politically biased and simply were observations about the Bill (see document).

Minister for Public Service and Administration, Ms Lindiwe Sisulu, interjected that she was able to follow Mr Biyela’s presentation as she could find the reference from which he was reading. She asked for the reference in the Bill where there were provisions for a ‘partner doing business with the state’.

Mr Biyela responded that he was speaking to ‘Disclosure of financial interests’ and that possibly he should have titled the subheading as such, but he felt that that was still related to ‘conducting business with the state’. He explained that the Bill provided as to where and when a state employee should disclose that his/her partner was doing business with the state. He found that that provision could open up the state to legal action.

The Chairperson suggested that the Committee and DPSA should allow Mr Biyela to finish his presentation as there other aspects within that presentation where the Committee had made progress.

Minister Sisulu said that she felt it would have been proper for Mr Biyela to quote per clause and subclause directly from the Bill as he was presenting his observations.

Mr Biyela thereafter continued with his presentation.  

The Chairperson said that there had been different drafts of the Bill, and recently the Minister indicated that the Bill before the Committee had gone through a number of processes, so that when it came before the Committee a few areas had changed. Therefore she asked the Committee to be quite clear and stick to the issues in the current Bill and the public hearing submissions and leave out issues that had already been finalised in earlier drafts.

Mr D du Toit (DA) said that as he had read the public submissions, he was aware that the Western Cape had not presented its submission that morning but that he had also read it as well. This brought him to the same departure point he had had the previous day, which was whether the Committee would be going through the motions or was it going to be allowed to deliberate properly over specific aspects of the Bill, considering inputs from all public submissions for inclusion in the final Bill. He felt that if the draft was going to remain as is and the Committee was merely going to comment on supposed changes that could have been effected in the final Bill, then it could simply return the following week to vote on the Bill,. However, if there were going to be new inclusions then the Committee needed to discuss these thoroughly and that could take a long time. Additionally those inclusions would have to be drafted into the final Bill, so how exactly was the Committee proposing to finalise all of that over the weekend as it was meeting the following Monday 10 March again. He was concerned about the reality of proper consultation on the submissions. The Western Cape had written just over 60 paragraphs in its submission and there were good points from the other submissions he felt needed to be included in the Bill. That would produce a complete and clear Bill because he had noted from some of the submissions that the PAM Bill was not clear to the public, even though the intention of legislation had to be so. In summary, his concern was that the time to consult on the Bill seemed too short to do justice to it.

The Chairperson said that possibly it would be fair then to allow the Committee to discuss the public submissions from earlier in the day so that DPSA could interact on some of the issues that Members possibly might have in light of the public hearing. 

Mr Marais said that from experience in Bill deliberations in other committees, DPSA should take the inputs from public submissions and the hearings, go away with them to consult on whether those were acceptable or could not be accommodated for particular reasons. The Committee would then discuss that. He wondered if DPSA could respond credibly to the submissions and the hearings, on which aspects could be included and which could not. He was concerned that the Committee went into discussing all of these aspects, only to have the DPSA return and cancel all those inputs with reasons why they could not be included.  His suggestion was that DPSA respond first as there were still some other small issues that he felt the Bill needed to address, for example, definitions. It could not be B55B, as is, that the Committee approved for finalisation.

Mr E Nyekemba (ANC) recalled that the public hearings were very lively and therefore, he agreed with Mr Marais that DPSA be given an opportunity to reflect first to both written and oral submissions. So that it could clarify any issues as the Bill before the Committee had already been before the NCOP and not the other way around, because that would have constituted a different state of affairs altogether. Based on what DPSA responded to on the public submissions, the Committee could then debate anything it felt needed discussion, so that then it could proceed to a clause by clause proof-reading of the Bill. 

The Chairperson gave DPSA an opportunity to respond to all the submissions.

DPSA response to public submissions on Public Administration Management (PAM) Bill
Minister Sisulu responded that the Bill in its current state was a product of a whole lot of submissions, even before today’s submissions. DPSA had a document that could show the extent and level of consultation that had been afforded stakeholders in developing the Bill, and DPSA felt it important that the Committee understand why it was, that the Bill was only 17 pages long whereas it had started as 168 pages. Most of the submissions from the morning seemed to be in agreement with the Bill in its current state, as they were repeats of what DPSA had been hearing all along.

In response to that today’s submissions she referred the Committee to clause 8 Conducting business with the state and clause 9 Disclosure of financial interest. She could foresee general challenges if DPSA did not address those issues raised by Mr Biyela in those clauses. She then read out clauses 8 and 9. It seemed to her that Mr Biyela had conflated what the intention of the Bill was on state employees with the declaration of financial interest of the employee’s spouse or friends or family. The reason why disclosure of financial interest was important was so that the state could ensure that there was no conflict of interest. Mr Marais had raised that matter; asking why a partner could not be included in the declaration of financial interest and DPSA had explained that that would be unconstitutional. The intention of that provision where the relationship of the employer with the family of the employee was put under the spotlight was for the state to protect itself from conflict of interest.

The public hearing submissions today seemed to indicate that the earlier draft of the Bill covered stakeholders better than B55B. Unfortunately, though, DPSA had had to concede extensively where matters of interpretation were found to be unconstitutional. B55B had been certified constitutional in every matter by the state law advisors. Even though some of the matters raised were important, DPSA had had to forego them because they had been both contentious and unconstitutional in some cases.

NEHAWU was also supporting the Bill, even though it was concerned about the working environment of an employee. It suggested that secondment of staff should be linked to specific assignments and be time bound.  DPSA agreed with that  - provided that proposal was to become part of the regulations. The Bill was a framework legislation which laid out the framework so that everything else, the details, would bein the regulations. NEHAWU wanted clarity in the Bill over whether payment in kind would be classified a financial interest for the employee. That detail would be put in the regulations, if DPSA found it pertinent, but it was not fundamental to the Bill itself. She said that NEHAWU felt that DPSA did not indicate sufficiently whether it would give the necessary support to whistle blowers, in terms of chapter 6 of the Bill.

DPSA responded that that issue was thoroughly covered in the legislation within the ambit of the Justice and Constitutional Development Ministry (DOJ& CD). DPSA’s biggest problem was that it had been made aware that the incidence of whistle blowing had declined, which was not a legislative issue, but one of discerning the patterns and identifying what was problematic. In its view, DPSA did not find that essential to the purpose of chapter 6 of the Bill. The Bill dealing with whistle blowers and their protection under DOJ& CD had been developed in consultation with DPSA in terms of section 10(4) of the Protected Disclosures Act of 2000, and that was where perhaps the state might want to strengthen the protection of whistle blowers.

From the Open Democracy Advice Centre (ODAC) submission, DPSA was glad that it was women that were becoming more concerned about issues of democracy and ethics. ODAC also supported the current draft even thought it preferred the earlier version as well. It felt that government could play a different role in allowing more proactive interaction between itself and the public and to get inputs from the public as well, instead of always supplying the public with information first. Those issues were dealt with quite extensively in the Bill when DPSA was dealing with the Thusong Centres. However, because DPSA had agreed during the National Economic Development and Labour Council (NEDLAC) process that it would remove that matter in the Bill, it had indeed done so. Over and above, it was mindful of that recommendation by ODAC and would structure its future interactions with the public to ensure that the basic values and principles of public administration included a proactive citizenry. That aspect was also part of what DPSA did in its performance assessments with the President, because the reporting cycle for Public Administration was Outcome 12, which extensively spelled out and covered that aspect as well. Additionally ODAC commended the referral of corruption cases to law enforcement by DPSA and felt it could be dealt with decisively under the Prevention and Combating of Corrupt Activities Act of 2004. DPSA agreed with that. ODAC further noted that that Act made provision for reporting of corruption to law enforcement. DPSA differed in that regard, because it established the Ethics, Integrity And Disciplinary Technical Assistance Unit, to deal with the administration of an individual, especially in terms of discipline within the public service, even if the matter had been referred to law enforcement. ODAC also recommended additional measures to encourage disclosure of acts of impropriety in the public service. DPSA said that was already covered in legislation and if ODAC felt that that was not sufficiently covered; there was the General Code of Conduct for public servants. There was also the Public Service Charter were those matters were dealt with. All those matters would also be captured in the “how to”, in the regulations.

Professor Franks had highlighted to the state, through his narrative, things which it needed to be cautious about. He had conveyed his concern over the thin line between public administration and the interference of politics in that domain. DPSA had taken cognisance of his inputs. 

Minister Sisulu explained that DPSA was responding to every submission so as to satisfy the Committee that it was not rushing through inputs, and that it had and was taking time to process the Bill.

Strangely, the Western Cape provincial government supported the Bill; she noted that the Bill had been published last year in May, and the window for public comments had been until 30 June. The province had asked for an extension of the deadline by one month, so that it could engage with the Bill. DPSA had granted that extension, and the Minister said that she was mentioning that for the Committee to understand how far DPSA had bent over backwards to accommodate that province. That province had certain reservations about the Bill, and those would be dealt with as they were in the purview of Adv Menzi Simelane. Those issues concerned definitions of heads of institutions, including Premiers and MECs. She noted that the Bill only referred to administrative heads and not to political office bearers. The Bill’s intention was to deal with administrative issues generally and not political issues, but Adv Simelane would deal with those issues more comprehensively. That province was also not clear why DPSA could justify secondment. DPSA said that it would do so as a last resort, should it require the very rare services of an individual in an area of expertise, which was not available in a particular municipality. DPSA would first request that individual to support the state by going to where their services were required. Should that be not possible then it would try and reach an agreement, which as proposed in that Bill would be, secondment. As NEHAWU had requested that secondment should be clearly defined in terms of time. DPSA had agreed to that.

She said South Africa had large inequalities where skills resided in particular areas because those areas were better developed than others. Therefore the state found that there were municipalities and areas that were completely disadvantaged by not having the necessary skills. Constitutionally it was provided for, that state resources would be equally distributed and that was why DPSA could justify secondment. The province also had wanted to know whether the Bill covered State Owned Enterprises (SOEs) and DPSA said that it had indicated from the beginning that the area covered by the PAM Bill was public administration. Perhaps in an amendment later, the Bill would cover SOEs.  She said that the President was currently engaged in a commission to understand the workings of SOEs, and that then excluded SOEs from that Bill. The province was also concerned about the current disclosure system. DPSA, in its similar concern, had introduced an e-disclosure system, to improve on what was available, and any deficiencies therein.

Corruption Watch also lamented the amending of the original draft Bill. DPSA said that in its interaction with Cabinet, it had felt that it would be duplication to have all the corruption services all at once, provided for in chapter 6 of the Bill. The Ethics, Integrity And Disciplinary Technical Assistance Unit would be as effective as envisaged though, in routing corruption from the roots up, especially in the public service.  It had been also concerned that DPSA had removed the cooling-off period. That period came under attack at NEDLAC and in legislation where labour was concerned. DPSA had to receive a certificate noting all that was agreed upon for the Bill to come before Cabinet and Parliament. Be that as it may, that did not stop DPSA in ensuring that in the regulatory framework, the code of conduct of public service and administration, and in its charter, that those matters would be dealt with. In the School of Government, DPSA ensured that it created an ethical, professional, effective and efficient public service. Underlying that was teaching public servants how to interpret the law, what their responsibilities were and what was expected of them. The syllabus and reorientation of the new public servants DPSA wanted; would cover all the concern of Corruption Watch.

DPSA had listened very carefully and were very grateful for the time allowed for that discussion, and the advice that had been given to it. It had taken note of all that had been said and would do things better.        

The Chairperson said that DPSA had responded to all the areas of contention, all processes had been undertaken, including the public hearings and consultation with NEDLAC. The NCOP process which allowed all provinces to have inputs, including inputs via the National Assembly (NA) that morning, therefore the Committee could not complain about consultation.

Mr Nyekemba said that during the ODAC submission, fines had been raised as a concern. He had asked ODAC if it would be comfortable if that issue was put in the regulations. He felt that it was important to clarify whether that issue could be dealt with either through a policy that DPSA could establish or if permissible, addressed in the regulations. Professor Franks presentation was for the Committee and not the DPSA.

Minister Sisulu asked the Chairperson to protect her.

The Chairperson replied by asking the Minister what if she agreed with Mr Nyekemba. 

Mr Marais said that the Western Cape supported the principles of the Bill as well as the DA, but that did not say that the province supported the Bill itself. Its concerns were not with the intent and objectives of the Bill. The problems were in the lines in-between. He had noted a few things where even he, after consultation with Adv Simelane, had submitted a written submission. He asked if the Committee was approving the current Bill, as all that deliberations had done had to do with regulations. Since Mr du Toit had asked about the process of discussing the Bill, he needed clarity on whether anything could be included in the Bill. DPSA had to tell the DA if there were no further additions that would be allowed. Was DPSA prepared to change anything in the current Bill?

The Chairperson said that it would be very difficult for DPSA to answer on behalf of the Committee, because the Committee would have to deliberate on what it wanted to do with the Bill.  

Mr Nyekemba agreed with the Chairperson and said that all that DPSA had been doing was to respond to the submissions in the public hearings. It was not dependent on DPSA to conclude the Bill process, because even the public submissions were submitted to Parliament. If the Committee had no issues to discuss in light of the submissions and the responses by DPSA, the next item on the agenda was the clause by clause proofing of the Bill.

Mr A Williams (ANC) agreed with Mr Nyekemba that the Minister had no say about how the Bill proceeded from then on. For the DA to infer that DPSA had any say was incorrect.

The Chairperson then thanked the Minister and DPSA for its inputs in clarifying all issues submitted on. She asked how the Committee would like to proceed with the Bill, but her intention was to do a clause by clause.

Mr Williams agreed with the Chairperson’s recommendation but reminded the Committee that the Bill had a name and description which were not clauses and that they needed to be adopted as well.

The Chairperson proceeded to read the Bill from the first page.

Mr du Toit said that he did not think a “clause by clause” reading would work for the DA, as it was clear that the Western Cape submission to the Committee would not be entertained, seeing that the DA had clarified what it did and did not agree with, and what was unclear. He did not know how many people had read that submission, because the DA would have liked to see those changes in the Bill. Seeing that he understood that that was not going to be done, he asked to be recused from the meeting.

Mr Marais added that if the Chairperson had read through the Western Cape submission, that there was even reference to the Municipal Systems and Structures Acts, which was possibly being contradicted by the Bill before the Committee.  He had thought that after he had sent through his submission which seemed to be linked with the Western Cape document, that at least that would be entertained. There were quite a number of things in both submissions, and even in Mr Biyela’s presentation, that indicated that the Committee needed to sort out certain issues and clauses in the Bill. Only after that had been done, the normal process of ‘clause by clause’ could be followed. Nevertheless, if the Bill was going to be bulldozed through then the Chairperson had to record the DA’s unhappiness with that process. 

The Chairperson raised a point of order with the DA and said that she did not understand why its Members were behaving the way they were, because if they had issues, then they certainly could raise those. She said that the purpose of today’s meeting was for issues of clarity to be ironed out as well as dealing with areas where the Committee still found challenges within the Bill. If there were objections, those were not impermissible, but the manner in which the DA Members were conveying their dissatisfaction was not moving the process forward. If there was a suggestion of an alternative process in moving the Bill forward, those Members were free to suggest it. 

Mr Nyekemba recalled that after Mr Biyela’s presentation, he had suggested that DPSA be allowed to respond to all submissions including Mr Biyela’s presentation, so that the Committee could then isolate issues that it felt warranted further discussion. The Chairperson had thereafter asked for a way forward, after DPSA’s responses. When it seemed there was nothing more to discuss; she had proceeded to clause by clause proofing of the Bill. The threats of recusal from the meeting over the Western Cape’s submission was an indication that all political stances had been allowed, but the Committee could not at that stage remain stuck on one issue. However, because the ANC cared; if the DA had issues, it only needed to raise those. He asked Mr du Toit to retract his statement over how many Members had read the Western Cape’s submission, as that bordered on undermining the Committee’s integrity.   

Minister Sisulu said that she had not been aware that Directors General (DGs) had been requested to give submissions on that Bill’s processing. She then read the introduction from the Western Cape submission. She said that she did not understand beyond that what DPSA was expected to do. Over and above that, DPSA was there to listen to anything else, but she certainly did not know why that province had not come to present its submission. That introduction had confirmed that DPSA had considered all submissions in terms of that Bill and that from 168 pages that Bill was currently only 17 pages; most of that conceding and bending over backwards to accommodate the Western Cape, because it was part of SA. She therefore took exception to the attitude of some of Committee Members, as DPSA had worked hard to consult very widely on that Bill.   

The Chairperson said Members in disagreement would be accommodated, but they also had to say where they agreed. Pulling in different directions would not move the process forward.

Mr du Toit said that the introduction and the conclusion of the Western Cape document were only parts of what was contained within it. He repeated that the document contained the DA’s disagreements and concessions about the Bill and that there were also matters of seeking clarity therein as well. He then read a that there were many provisions in the Bill, empowering the Minister to make regulations, norms and standards on particular matters. That province was not in favour of empowering that Minister nor DPSA, to deal with specific matters in the regulations as the consultation process was considered to be less meaningful than the parliamentary process. His question then related to whether there was anything in that document, that the Committee would want to be introduced into the Bill. If there was nothing, then he had no further business in being at that meeting. 

Mr Williams said that it was highly unusual for Mr du Toit to talk about what they liked and disliked as the DA, when talking to an input from a public hearing, because fundamentally there seemed to be a conflict of interest. If that were the case, the ANC could have had a representative at the public hearing, and that representative would have been in support of the Bill. He suggested that the Committee move onto ‘clause by clause’ and continue.

Mr Marais asked then if he could receive feedback on his submission on issues he had with secondment.

The Chairperson said that that matter could be discussed if he had written a submission and DPSA could also respond to it as well.

Ms C Mohale (ANC) said that she was worried by the current procedure of the meeting, because to her it seemed to be moving back and forth.

The Chairperson said that she was simply trying to accommodate everyone.

Mr Nyekemba reiterated that he had said that Members with points of contention regarding the submissions should bring those forward so that they could be argued. Instead of that happening, the Committee was being referred to a submission that had been made. Strangely, an MP also had made a written submission to the same Committee that he or she sat in, and expected that submission to be considered. It was unfortunate, because the Committee had been given submissions for consideration and the Bill processing was not with DPSA, therefore if the secretary was to be used as a go between, between Members and DPSA, that matter was not for the Committee. It seemed that the DA had no point of contention, if there was, those issues needed to be brought before the Committee.

Mr Marais asked for an opportunity to respond since he had written his argument on secondment based on the Chairperson’s ruling the previous day that he do so. It was unfair for Mr Nyekemba to go against the Chairperson’s ruling and it was not in good faith as well. 

Ms J Maluleke (ANC) said that she had supported the Chairperson’s ruling the previous day that where Members did not understand anything in the Bill, DPSA was still there for clarification and not for submissions. 

The Chairperson said that DPSA had Mr Marais’ submission and could respond to it, but he could also just read it if he preferred to do so. She asked DPSA if it could respond.

DPSA responded that that issue was a clause matter.

The Chairperson said that if Mr Marais’ matter was in relation to the School of Government then it was contained within the clauses in the Bill. She accepted that she had ruled as he had recalled, but then the Committee could proceed with the reading of the clauses and his issues would be addressed as the Committee was going through clauses.

Mr Marais said that to go clause by clause was for the Committee’s benefit, and he would not have had his feedback because DPSA was finished, it could not be involved in clause discussions.

The Chairperson asked Mr Marais to read his submission in summary.

Mr du Toit said that his view was that public hearings were to hear what citizens had to say about specific legislation, and for parliament to apply its mind to those comments. The laws MPs were making were for the people, so citizens came to Parliament, including stakeholders like provinces, which also represented people. Their submissions needed consideration so that legislation could then be rectified, because the Committee could not sit there and finalise that legislation, without those inputs having been drafted into a new version of that piece of legislation for adoption by Parliament. He reiterated that he would like to be excused if the Western Cape Government’s submission would not be entertained.  

The Chairperson said that was not how that meeting would be conducted because he had not been recognised. He asked Mr du Toit to not deal with that matter sentimentally and for the Committee to allow Mr Marais to read his submission.

Mr Marais said that his contention had to do with secondment without consent, because as it was in clause 6 (1), it was based on prescription in the regulations. That meant that the current administration would possibly prescribe it, but the next one could say the Act did not require it to be prescribed and therefore it could or could not prescribe if it wanted. In the case of secondment without consent, it had been felt that it needed to be prescribed and he thought that the amendment needed there, as he had discussed with Adv Simelane, could be effected at the end where it would read: any employee of an institution may be seconded to another institution or to any other organ of state in such a manner, and on such terms ‘as prescribed’. That would make it obligatory to have regulations.

Then an amendment to clause 6(2)(c) which was in line with the submission from the DG of the Western Cape would include: ‘and in consultation with the executive authorities of the seconding and of the recipient institutions, if the secondment was justified for an initial period, not exceeding six months’. That would deal with the concerns raised by the Western Cape, NEHAWU and others. The Committee had to apply its mind to those aspects as they involved no ideology at all.

The Minister asked why DPSA was being blamed for the Western Cape not presenting on the day. DPSA had read that province’s submission and it was not true and it was unethical for Mr du Toit to say something that was untrue. To say that that province’s submission had not been entertained was untrue.

The Chairperson said that an additional issue possibly was that immediately when the issue was viewed along party lines, then Members became representative of matters that had been raised in the public hearing. Other Members had clearly indicated that that disadvantaged them, who had never had their parties represented in that manner, because the Committee was currently squabbling over a public matter issue. The Committee needed to be independent of their party allegiances when anchoring on the same issues. The Chairperson pleaded with the Committee to conclude that matter, so that it could proceed.

Mr Williams reiterated that he had proposed moving onto clause by clause proofing earlier and that he did not understand why the Committee was entertaining what he called, stalling tactics by the DA. If the DA did not want to vote, his proposal remained, but the Committee should vote on whether to proceed.

Mr Nyekemba agreed with Mr Williams because the NCOP was a body where provinces were represented, and they had had an opportunity to engage the Bill. However, that did not stop a particular province making a submission to the NA.  A written submission had been made to the Committee, but no one had been there to motivate for that submission, which was fine. However, what was incorrect was for some Members of the Committee to argue and defend the province which was governed by their party. He was a member of the NA within that Committee and not one of the provincial legislature, by extension then he represented the public of SA. He requested his colleagues to refrain from such arguments and reiterated Mr Williams’ proposal, that when the Committee got to the secondment clause ; then Mr Marais could argue his points so that the Committee could deliberate on them. DPSA’s response on secondment from NEHAWU’s proposal was that it would deal with those issues when making regulations.

The Chairperson said that possibly it would be best for her to indicate that it was fair for the Committee to consider the issues that the DA had raised, but alternatively it was also fair to consider and agree that the process was that the Committee start with clause by clause proofing. Therefore, all areas warranting discussion in the Bill would be thoroughly discussed and clarified, when the relevant clauses were being proof read. If  that arrangement did not work, then that would constitute an impasse.       

Mr du Toit said that he was going to leave the meeting since he believed the process that the Committee would undertake would proceed much quicker in his absence. Moreover, he was asking to be excused because his provincial government’s submission was not acceptable.

The Chairperson cut Mr du Toit off on a point of order.

Mr Williams said that it was out of order to say that a submission from the public “was not acceptable”, because all those submissions had been accepted and considered.

The Chairperson agreed that indeed the Committee had considered the Western Cape submission especially in light of the fact that the Minister had gone through the introduction of that document.

Mr du Toit reiterated his question.

The Chairperson replied that he was being unfair as he just wanted the Committee to jump directly to his clause when it had a Bill to conclude. There had never been a Bill in parliament that had been processed according to the requirements of a specific member’s provincial party stance. So she was proceeding with clause by clause

Mr du Toit walked out at that stage.

Mr Nyekemba asked whether the tagging of the Bill was correct by still referring to the year as 2013, even though the Committee was talking to the Bill in 2014.

Mr Marais noted that there was still a reference to the Select Committee on Cooperative Governance and Traditional Affairs even though the Committee processing the Bill was Public Service and Administration.

Adv Anthea Gordon, parliamentary legal advisor, said that the cover of the Bill was correct as it had come from the NCOP. If the Committee did amend the Bill, then the cover would change and reflect the Committee’s details on the front. 

Preamble
The Chairperson proceeded reading the Preamble.

Mr Marais said that additional to the clauses under the heading: “And Bearing In Mind That-“, he would have loved to see sections 151(4) and 156(5), because those constitutional references in that part of the Bill dealt with a lot of issues. Part of the concerns had to do with the possible infringements on the Powers of Function, which his two constitutional references stipulated and clarified so that there would be no uncertainty, as in local governments’ possible fears, over the Bill infringing on their rights of Powers of Function and to govern independently.

The Chairperson asked what Mr Marais was saying about those clauses.

Mr Marais said that he was proposing that those two clauses be included in that part of the Preamble. 

Mr Williams disagreed with Mr Marais because those clauses did exist in the Constitution and no law was bigger that the Constitution in SA, therefore it would be pointless to include those clauses there. He proposed that the Preamble be accepted as is.

The Chairperson agreed with Mr Williams that the presence of those sections in the Constitution discounted the need for their addition in the current Bill’s preamble.

Mr Nyekemba referred to section 151(3) which guaranteed municipal autonomy, and said he did not see the need to reflect each and every clause from the Constitution.

Mr Marais said he was not happy but accepted the Committee’s choice.

Clause 1 Definitions
He said that some of the definitions that were not clear were also points of contention: For example; ‘Organ of State’ and ‘Institutions’, which were referred to in the Bill. He then read the definition for ‘institution’ and contrasted that with the definition for Organ of State in the Constitution. There clearly seemed to be confusion between the two bodies, therefore he proposed that the Committee either use Organ of State as contemplated in the Constitution, which encompassed the definition for ‘institution’. The second issue was the definition for ‘Heads of Institutions’ where the Committee would assume that that meant amongst others municipalities and provinces. Who were the head of institutions, were they the executive, in terms of Powers of Function or were they municipal managers and directors general? Who was the Bill referring to? There needed to be a clear definition for that as well.  

Mr Williams said that the definitions were fine as they were and that was because, the term institution was particular to that Act. For instance, the ANC was an institution but it was not a province, National Government nor was it a municipality or a national or provincial government component. The definition for institution was particular to that Act, and the Organ of State as it was in the Constitution, was defined for the entire country.   

Mr Marais differed. The Committee could not ignore the issues that he had raised, because the Bill was not clear what was meant by ‘Organ of State’, whereas the Constitution was clear. An institution could not be interchangeable for organ of state, because there also could not be a definition only for that Act because that could only cause confusion with other Acts.

The Chairperson said that the Committee noted his objection because most of the Committee was in agreement with what was proposed already in the Bill.

Mr Marais asked over his second proposal about heads of institutions.

The Chairperson said the Committee had noted what Mr Marais had said there as well.

Mr Marais asked whether the Committee was just leaving that issue.

Mr Williams said that he felt the definitions were clear and that they should be accepted as they were. 

The Chairperson reiterated that Mr Marais’s objection would be noted in that regard as well. She then continued reading through the Bill.

Mr Marais asked whether his issues on secondment would not be considered.

The Chairperson said that those clauses were accepted by the majority of the Members.

Mr Marais felt that the Committee  had not even discussed his proposal.

The Chairperson asked Mr Marais if he wanted to start a discussion

Mr Marais replied in the affirmative, because he felt as he had made a proposal that he had qualified.

Mr Nyekemba said that whilst one understood the premise that Mr Marais was coming from, if he was correct Mr Marais was talking to clause 6(2)(c). Subclause 1 of that clause spelled out the intentions of secondment, and then when one went to clause 6(2)(c), when NEHAWU was presenting: it had raised the point, that secondment could be attended to in the regulations. Would they be comfortable with that arrangement? The Committee needed to recall that that argument was for it to understand from which premise NEHAWU was coming. Looking at clause 6(2)(c), as soon as it started with ‘in the absence of consent’, that immediately meant that consent had been requested beforehand. What normally happened then, when there was no consent/ consensus if one was an employee could be regarded as unfair labour practice, and a dispute could be referred to an institution that would mediate that issue. The manner in which clause 6(2)(c) had been worded; it had that qualification that everything had to be justified. Regarding timeframes, DPSA had said that timeframes would be captured in the regulations. As such he thought that both Mr Marais and NEHAWU’s concerns were accommodated.

Mr Marais differed because 6(1) did not say that there needed to be prescriptions, but there could be such as he had noted that the current administration could have the intention to certainly do regulations. However, the next one might not do that as the legislation did not require it to have them. The DA did not want the Labour Relations Act to come and impede what the Committee wanted to do in that Act. One of the problems with that process for him was that there had been no opportunity to interrogate other possible legislation that could have an impact on the Bill. There was merit in what had been discussed the previous day as there could be adverse effects to the employee regarding secondment. He did not feel it was right and he was strongly opposed to secondment. He then asked to be excused afterwards.

The Chairperson said she was glad that Mr Marais had clarified his contention and that he was aware the DPSA had said it would be included in the regulations. Sufficient explanation had been done.

Ms Mohale said that secondment depended on how much capacity was available because an employee would be moved because of the skill he/she had. Secondment did not have to do with moving people because they were not wanted.

The Chairperson resumed reading the Bill for the Committee. She allowed Members a short break, after which when the proceedings resumed, she started reading whole chapters instead of clauses.

Mr Williams asked at that stage whether the Committee still needed to go clause by clause or could it do it chapter by chapter.

The Chairperson replied that if Members wanted to refer to any particular clause they could do so and the Committee would do that, but she was putting everything together to ensure the meeting move faster.

She resumed reading.

The PAM Bill [B55B-2013] was adopted with objections from the DA, but without any amendments.

Minister Sisulu asked if that Bill would be called “The great walkout from the DA”.

Mr Williams said that it would be called “the little walkout”, as “the big walkout” would be in the House the following week.

The Chairperson then read out the Committee Report on the PAM Bill [B55B-2013] and it was adopted by the Committee.

The Chairperson thanked the Committee and DPSA for its diligence and dedication in working through the Bill.

Minister Sisulu also thanked the Committee for its dedication in assisting DPSA with the Bill and that it was heartening for her to understand that she belonged to an organization that was very passionate about good governance and dealing with corruption. Nothing tarnished the image of a country more than it been associated with corruption. The ANC had clearly indicated therefore that it was at the forefront of dealing with corruption.

The meeting was then adjourned.

 

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