The Portfolio Committee considered and adopted the National Council of Provinces’ (NCOP’s) proposed amendments to the Public Service Commission Amendment Bill.
Clause 1 sought to amend Section 4 of the Principal Act. The NCOP had thus expanded on the criteria put in place by the Portfolio Committee, stating that the appointment of a commissioner must be based on the commissioner ‘remaining a fit and a proper person required by S 196(10) of the constitution’. Secondly, the NCOP had inserted Clause 1(7)(b), stipulating that the commissioner must ‘maintain a satisfactory level of performance in relation to his or her duties’. Thus, the appointment should not be based solely on the ‘fit and proper’ requirement.
The proposed Clause 2 sought to amend Section 5 of the Principal Act, which allowed the President to designate the commissioner to act in the absence of the chairperson or deputy chairperson within the Public Service Commission. The NCOP had inserted a limiting period of 30 days to Clause 2 (3).
The majority of the Members welcomed and accepted the proposed amendments after much deliberation. The ANC Members said that the legal advisors had cleared any concerns they may have regarding the amendments, particularly the matters of satisfactory performance and determining a fit and proper person. They requested that the Committee refer everything to the regulations. The DA indicated that Section 11 of the Public Service Act already covered what a ‘fit and proper’ person may or may not do, and was included in the regulations.
Consideration of Public Service Commission Amendment Bill
Mr Julius Ngoepe, content advisor, presented the amendments made by the NCOP to the Portfolio Committee on Public Service and Administration. Accompanying him were the chief director of legal services from the Department of Public Service and Administration and the director of litigation and legal services from the Public Service Commission. He provided a breakdown of the amendments to the Bill, and the legal advisors supplied insight into the reasoning behind the specific amendments to the Bill. He said that the Bill had been sent to the NCOP for further deliberation and it had made amendments. In addition, he highlighted the objective of the Bill, namely to ensure the efficiency and certainty regarding the procedure for the renewal of the term of a commissioner.
Clause 1 seeks to amend Section 4 of the Principal Act. The NCOP had amended line 16 to substitute subsection 7(a). The NCOP had thus expanded on the criteria put in place by the Portfolio Committee regarding the renewal of the term of office of a commissioner, stating that the appointment of a commissioner must be based on the commissioner ‘remaining a fit and a proper person required by S 196(10) of the constitution’. Secondly, the NCOP had inserted Clause 1(7)(b), specifying that the commissioner must ‘maintain a satisfactory level of performance in relation to his or her duties’. Thus, appointment should not be based solely on the fit and proper requirement.
The proposed clause (Clause 2) seeks to amend Section 5 of the Principal Act, which allows the President to designate the commissioner to act in the absence of the chairperson or deputy chairperson within the Public Service Commission. The NCOP had inserted a period of 30 days to Clause 2 (3). Mr Ngoepe stated that the 30-day period was in the original Bill.
Mr Ngoepe said that in terms of rule S 311(2)(b), it is not the Committee’s decision to approve or disapprove the amendments made to the Bill by the NCOP, but to accept the proposed amendments. Thus, it is for the Committee to deliberate the amendments made by the NCOP.
Mr M Ntombela (ANC) asked what happened if the period of 30 days lapsed and the person designated to the position remained. Did, the President appoint another?
Ms Z Dubazana (ANC) acknowledged the house rules (rule 311(2)(b)). She said that in terms of Clause 1, the Committee had previously referred to the contemplation of S196 of the Constitution regarding the ‘fit and proper’ and ‘performance’ requirements of a commissioner. She asserted that the NCOP had inserted the criteria again, but she was uncertain as to the criteria put forward by the NCOP for assessing the ‘fit and proper’ and ‘performance’ requirements. She needed further clarity regarding whether the NCOP had used S 196, putting it as a criterion in the bill.
Mr Ngoepe, responding to Mr Ntombela’s question, referred to Clause 2(3), stating that the President should notify Parliament if both the chairperson or deputy chairperson’s term of contract was ending. This was So that Parliament was notified on time, and thus could advertise within the 90 days. Furthermore, the 30-day period of acting gives them time to fill the position. He asserted that if they were alerted within 90 days, it was unlikely that the Commission would run without a chairperson or a deputy chairperson. He asked if a colleague from the Public Service Commission (PSC) could assist him on Ms Dubazana’s question.
Ms Dubazana pointed out that the introduction of the Bill, on page 3, and Clause 1(5) defined the content of S 196 of the Constitution.
Mr Ntombela pointed out a scenario where the chairperson was not available, and the deputy chairperson gave notice within a short period of time. In addition, the commissioner appointed had been active for 30 days. He further asked what happened if the chairperson and deputy chairperson were still absent? He also questioned the kind of measurements that could be used to determine a satisfactory person, for continuity purposes.
The Chairperson asked if they were obliged to adopt amendments that came from the NCOP.
Mr Ngoepe responded that its arguments were based on the National Assembly (NA), rules and the rules stated that the Committee could not amend, only deliberate on the amendments.
Addressing Mr Ntombela’s question, Clause 1 of the Bill said that the President may, as contemplated by S 196 of the constitution, within 90 days before the expiry of the first term of office of a commissioner, renew the term of a commissioner for one additional term only. This would be applicable where a commissioner had served for a second term. He was certain that one might not encounter a situation where the commissioner must act for more than 30 days. He further urged the Committee to look at the way the bill had been drafted, stating that if Parliament was alerted or informed within 90 days, it would guard against a situation where a Commission ran without a chairperson or deputy. He said that the Public Service Commission appointed a chairperson and deputy chairperson at different times, thus the situation was unlikely.
The Chairperson asked if there was a measure to determine the satisfactory level of a commissioner in relation to his or her duties. What was the scientific instrument of measuring that satisfactory level?
Mr Ngoebe responded that the constitution says the criteria must be determined by the NA on the renewal part. He added that it did not have measures and in ‘most cases the performance is measured by the person who appoints you’. In this case, it would be the President who would measure the performance of the commissioner.
Ms D van der Walt (DA) asked whether there was a legal person to guide the Committee in discussing the Bill. Regarding the President appointing the commissioner, she said that a legal expert might have a different opinion on the technicalities. Furthermore, she felt uncomfortable discussing the Bill without that guidance.
Ms Dubazana agreed with Ms Van der Walt — the Committee should have a legal advisor and then discuss the Bill.
Ms Van der Walt added that this was a concerning, issue because it was the fourth year of getting the bill passed.
Mr Ngoepe said the Department and the PSC had drafted the Bill, and then the Minister had taken the Bill to Parliament.
Ms Renisha Naidoo, Head; Legal Services, Department of Public Service and Administration (DPSA), said the Department has been assisting and supporting the Minister as she appealed the Bill. She added that the Public Service Commission’s legal advisors were also present. Furthermore, the Department had been part of the processes at the NCOP. She hoped to give an idea of the discussions that took place at the NCOP.
Amendment to the criteria
Ms Naidoo started with the amendment to S 4 (Clause 1(7)) of the principle act. When the bill was at the NA, the amendment suggested that the criteria should be managed by the NA or the Provincial Legislature. When the Bill went to the NCOP, the discussion was that if one left it like that for the criteria to be adopted by the NA or provincial legislature, there would be disparities regarding the criteria. Owing to this, each legislature would develop different criteria, and the NA would develop a different criterion for national commissioners. Thus, the NCOP thought the Bill should have a minimum criterion and try to implement this through the ‘fit and proper’ person and ‘satisfactory level of performance’ in the requirement.
The NCOP had debated the satisfactory level would be determined and part of the discussions were that these commissioners had to report to the relevant legislatures, as would the national commissioners to the NA. The renewal would be based on the recommendation from the relevant legislature or the NA. The NCOP recognised that the provincial legislature would be in the best position to determine the level of performance of commissioners, based on the commissioners’ previous term regarding their engagements and their accountability. Thus, the NCOP has inserted ‘satisfactory level,’ so that the recommendation from the legislature would consider how the commissioner’s interactions had been during the previous years to determine that satisfactory performance, and based on that recommendation, the President would then look at the renewal and make the appointment.
Amendment to S 5
The NCOP felt that this should be limited, because there should not be a position that is filled through acting. Furthermore, the NCOP did not want ‘acting’ to become a way that someone could become designated as chairperson. She said that the limitation of 30 days was when the Commission did not have a chairperson or a deputy chairperson. In those circumstances, the limitation came in for 30 days. The NCOP stated that if there was no limitation, the Commission could sit indefinitely wihout a deputy and chair being designated.
Advocate Shukrat Malainde, Director: Litigation and Legal Services, Public Service Commission, addressed the issue of acting for a period of 30 days. This measure was in place to monitor the duration when a chairperson or deputy chairperson was not in the office. She pointed out that this was not a normal situation, because one of them had to be in the office to ensure the commission could function effectively. In addition, an acting appointment could not go on indefinitely to guard against incumbency in the post. In addition, the Bill did not prohibit the extension of the 30 days or the reappointment of another person or the same person. She reiterated that it was simply to monitor the process.
Ms Van der Walt further questioned if an acting commissioner was appointed and the 30 days passed, could someone else be appointed? She added that one could not appoint the same person, to prevent incumbency.
The Chairperson asked what the key performance areas were that could used to measure the performance of an outgoing commissioner. Would it be left to the Portfolio Committee to decide? ‘If someone takes this appointment for review, how do we explain this?’ He said that the acting period was clear, and questioned the rationale for the 30-day period. He also wanted to discuss the renewal of the term of a commissioner.
Advocate Malainde tried to explain the measurement used to determine satisfactory performance. She said that S 196(4)(e) of the Constitution provided guidance. Additionally, it required a commissioner to report annually to Parliament, the Portfolio Committee and the respective provincial legislatures. Each year, if the legislature was satisfied, it would adopt the reports. Through this measure, they were monitoring and evaluating the performance of that commissioner on a continuous basis. At the end of five years, if the reports of the commissioner were consistent, there was evidence of satisfactory performance and a recommendation to the President could be made.
The Chairperson said that the Constitution made a provision directed to the legislation and clear performance, thus it provided broadly what should occur. However, he was still not clear about the measures used for actual performance. He also asked whether they should put the Bill aside until there was a full team, or whether it should be adopted today.
Ms Van der Walt said that if they were not ready to adopt, then some issues had been raised. She requested that the Committee put this on the agenda for next week and put the decision on hold, adding that the Committee could not go into the elections without having dealt with such a simple bill.
Ms Dubazana asked if this Bill would ‘go to the regulations’? While the PSC’s legal team had explained her concerns regarding matters of satisfactory performance, she thought that her concerns were a matter supposed to be in the regulations. She requested that the Committee refer everything to the regulations. This meant passing the Bill and then requesting the regulations.
The Chairperson said there were two suggestions the Committee could adopt — those of Ms Dubazana and the counter proposal of Ms Van der Walt.
Mr Ntombela said that his concern regarding the issue of satisfactory performance had been addressed by the legal advisor, as well as how the measurement of performance would be done. However, the measurement was open to litigation and thus anyone could challenge it. However, he was happy with the explanation given regarding the 30-day period and the satisfactory performance. Thus, he proposed adopting the Bill, and seconded Ms Dubazana.
Ms W Druchen-Newhoudt (ANC) questioned the PSC about Ms Dubazana’s proposal concerning the regulations. She questioned whether the current regulations spoke about performance.
Advocate Malainde stated that currently there was no regulation to the Public Service Commission Act, but it hoped to develop one in due course. The Committee was currently working with the constitution as it is, which simply states that the PSC must report to Parliament on its findings.
Ms Druchen-Newhoudt said there was nothing in the regulations that spoke about performance. She then went on to second Ms Dubazana’s proposal and said that they should pass this Bill, but with a proviso that the PSC must work on the regulations and they must evaluate each commissioner’s performance on an ongoing basis.
Ms Naidoo said that in the current Act, there was a committee that could conduct its business proceedings, and make applicable recommendations. Thus, the recommendations that came from the legislature or the NA could use these committees to set up rules that would guide assessment of performance. This would be within the scope of the committee when they made that decision or the when legislature mades the decision to consider rules and processes, essentially establishing a performance criterion.
Ms Debuzana states that she might not be here when the Sixth Parliament opens, and these regulations must be submitted because alterations had been made to the principal act. Thus, the Committee needed the regulations which would include specifications and the concerns that had been raised.
The Chairperson questioned who was supposed to develop the regulations. Was it the NA, the President or the PSC?
Mr Ngoepe responded that in this case it would be the Public Service Commission, in consultation with the Department.
Ms Naidoo said that in terms of this Act under Section 11, the commission developed the rules. I her view, it would fall under rules because there already existed a provision for regulations.
The Chairperson asked when those rules would be written, because it did not look like there was a draft. Would the draft be ready before 27 May?
Advocate Malainde said that the PSC did not have a draft, but it would consider what had been deliberated and the drafting would not take long. She also stated that if it was a matter of urgency, it would draft one before this session was over.
Ms Van der Walt said that Section 11 of the Public Service Act covered what a ‘fit and proper’ person may or may not do, and included regulations. To her, regulations could come in the Sixth parliament. The Committee had agreed on an amendment bill that went to the NCOP, and it had slight amendments, and according to her, this was what they should consider. Furthermore, to force regulations while an act was covering all those aspects, would make it illogical to keep the Bill from being passed. She concluded that section 11 encompassed all the issues the Committee had raised.
The Chairperson said that the consensus was that the Committee adopts the amendment with the proviso that in the Sixth Parliament, the PSC would develop rules for performance assessment. Thus, when the Bill was taken to the NA, it would be clear. In addition, the 30-day period was straight forward. The satisfactory level aspect was initially vague, but had been clarified with a performance tool.
The Committee considered the minutes of 28 November 2018. Ms Druchen-Newhoudt moved their adoption and Ms Van der Walt seconded.
Mr Ntombela moved adoption of the minutes of February 13, and was seconded by Ms Druchen-Newhoudt.
The meeting was adjourned.