An orientation workshop was organised for the Committee by the Public Service Commission (PSC) on its mandate and functions, and the envisaged legislative reforms that would strengthen its performance.
The Committee was asked to consider the financial position of the PSC when it determined the frequency of its appearances before them and the type of delegates to be in attendance. The barrage of requests from the executive and Parliament -- in particular, the Portfolio Committee -- to the Department of Public Service and Administration and Monitoring and Evaluation, the Standing Committees on Appropriations and Public Accounts, and provincial legislatures, for research, investigations and/or advice was constraining, as the Commission’s human and financial capacity to respond to these requests was limited.
On the legislative reforms, the PSC was leaning towards the Malaysian model, where four of their members sat on the appointments committee panel. The PSC did not agree with the present arrangement whereby the Directors General (DGs) and Deputy Directors General (DDGs) were appointed by Cabinet, and that was one of the reviews being envisaged. The PSC wanted to take total control of these appointments. Another important reform sought by the PSC was the present arrangement where Ministers, as members of the Cabinet, were members of panels that could dismiss a DG. There were several cases of frosty relationships between Ministers and DGs. and this was leading to an abuse of power.
Members wanted timelines on when the envisaged legislative reforms would be completed. They asked when and how the PSC monitors could institute an investigation into particular government institutions, considering the numbers of such cases reported across the country. Did the PSC have an idea of the pending cases, especially those against health care staff in the country? How far had the PSC gone in implementing lifestyle audits for civil servants and the declaration of their financial interests?
Members also suggested the appointment of the National Commissioner was another area that should be considered, because the renewal or non-renewal of the Commissioner’s term should rest with the Committee that appointed them, and not the President. Since the Committee had the power to appoint, it should also have the power to renew or not renew appointments.
The Chairperson said the leadership of the Public Service Commission (PSC) had been requesting the Committee to organise an orientation workshop on the mandate and functions of the Commission. The Commission would like to propose interventions aimed at strengthening this institution in order to safeguard its independence. The workshop would be an opportunity for the Commission to state its case to be given more powers so as to ensure that public administration processes and structures deliver quality services to the people. At the end of the workshop, the Committee would be in a position to decide on the structural mismatch and the constitutional imperative hindering the work of the PSC. All of the above compromised the independence of the Commission, and Section 10(196) of the constitution was explicit on the importance of the PSC.
Public Service Commission presentation
Ms Fienie Viviers, Chief Operating Officer: PSC, said the Commission’s main objective was to provide effective technical oversight over the public service nationally and provincially. Its mandate did not extend to the local sphere of government and public entities. It conducts evidence-based research, investigations, inspections, monitoring and evaluation involving the gathering and collation of qualitative and quantitative data on public administration for use by the legislatures and the executive.
Application of constitutional values and principles
Since 2001, the PSC had produced over 170 reports on the evaluation of the constitutional values and principles (CVPs) in the public service. The PSC applies an indicator-based Institutional evaluation tool that is based on the CVPs and:
- evaluates whether the intention of the public administration principles is achieved on an outcome level;
- ensures that contextual application of the principles determines how institutional processes could be changed to make sure that the public service is value driven rather than (only) by law and regulations;
- identifies systemic public administration issues which are currently hampering the development of the public service, rather than a list of deficiencies, and;
- makes recommendations to change key features of the institution of the public service.
Public administration investigations
The PSC conducts public administration investigations of own accord, on receipt of complaints lodged by the public servants and the public through various access mechanisms, and following requests by the executive, Parliament and the provincial legislatures. These investigations mostly relate to human resource management practices, supply chain management practices and poor service delivery. Through investigations, the PSC reports on compliance with national norms and standards, provides advice on best practice, and recommends corrective actions that must be undertaken by departments. Such reports not only provide valuable information to Parliament and the provincial legislatures in performing their oversight responsibilities, but also serve as a conduit through which best practice is promoted in the public service. The PSC has, since 2001, reported on the outcome of financial misconduct cases in the public service on an annual basis. These reports have heightened awareness of the negative impact of financial misconduct on service delivery.
Strengthening the PSC
The major challenges and concerns highlighted in the review of Chapter 9 institutions and associated statutory bodies done by an ad hoc committee of the National Assembly in 2006/7, the Kader Asmal Committee, should be considered by the 6th Parliament. These are the relocation of budget allocations of Institutions Supporting Democracy (ISDs) from national departments to the budget vote of Parliament, which is consistent with the notion of giving effect to the financial independence of ISDs, as a marker for constitutional independence; and the establishment of a single human rights body.
In determining the programme of the Parliamentary committee each term, serious consideration should be given to the financial position of the PSC when it determines the frequency of appearance and the type of delegates to be in attendance, such as where the head of an PSC is expected to attend, instead of the content expert. The PSC is also at times called to present on matters that it has not previously researched, which has an adverse effect on available capacity. Not all reports generated by the PSC are necessary tabled – for example, reports on individual grievances are submitted to executive authorities (EAs).
Parliament has, for the most part, accommodated the PSC in the presentation of its tabled reports to the Portfolio Committee on Public Service and Administration, Planning/Monitoring & Evaluation. The PSC tables government-wide reports that do not necessarily fit into the mould of this Committee. A mechanism is necessary to present specific reports to other portfolio committees (PCs). The PSC would like to see its reports tabled in the National Assembly and resolutions to assist in the enforcement of recommendations. The uneven tabling of reports in the provincial legislatures has also been raised with the Speaker and the Speakers’ Forum. The PSC has regular engagements with the Standing Committee on Appropriations (SCOA) and the Standing Committee on Public Accounts (SCOPA).
Ways PCs may utilise outputs
Ms Viviers described the various ways portfolio committees may utilitise outputs. These were:
- Written submissions may be requested from departments;
- Interactive meetings with departments to account for the progress made in implementing the recommendations. The PSC could make presentations on the report to assist the PCs Parliamentary questions to obtain responses from departments;
- In order to supplement the PSC’s reports, information could be sourced through public hearings or inspections at departments.
- Calling the executive to account.
Ms Viviers said the PSC would continue conducting its oversight work in the public service, as this served as a basis for its engagements with Parliament. The PSC would have to continuously try to strike a balance in conducting its work within the confines of its limited budget, while also trying to meet the ever increasing demands for its services by stakeholders. In this regard, the PSC previously had various requests from the executive and Parliament -- in particular, the Portfolio Committee on Public Service and Administration and Monitoring and Evaluation, SCOA, SCOPA and provincial legislatures -- for research, investigations and/or advice, whereas human and financial capacity to be responsible to these requests were limited.
Dr Henk Boshoff, Commissioner: PSC, added that the Commission had commenced on the legislative review process and based on the aspects that had been identified, it had conducted an independent practice review (IPR) in respect of the efficacy, desirability and legal compatibility of the independent constitutional institution being supported by the PSC. The Office of the Public Service Commission (OPSC) did not best serve the independence of the PSC, being that it was a public service department.
Dr L Schreiber (DA) thanked the PSC for the work that had gone into the producing the presentation that aimed to strengthen its mandate. Where was the process on these proposals now? Could the Committee be given timelines on when this could be achieved? On work done on the job profiles, was it something that could be shared with the Committee? In order not to duplicate the work already done, could the Secretary ensure that the Committee gets the information, and the studies undertaken and profiles were shared with Committee Members as soon as possible? On the tabling of the recommendations to the National Assembly (NA), what did the PSC want to happen there? On the legislative proposals, was there any mention of appointment powers?, Could the Committee get an insight into the processes being followed to deal with the independence of PSC and its relationship with the Department? Was there an example to show that the PSC was being hampered in its ability to deal with this? Who could fire the Director General (DG)? Was it the President? Were these the kinds of issue that the PSC was struggling to deal with because of the current framework?
Ms M Ntuli (ANC) referred to service delivery monitoring, and asked when and how the PSC monitored or instituted an investigation into particular institutions, considering the numbers of cases reported across the country. Did the PSC have an idea of pending cases against health care staff? Seeing that the legislative proposals envisaged by the PSC were to expand its powers, in terms of the ethical conduct of senior management what measures had the PSC taken to stamp out favouritism in various departments? As the constitution was the supreme authority of the country, had the PSC come across its contravention in departments of government, and how had they dealt with this?
Ms R Lesoma (ANC) appreciated the work the PSC was doing. She suggested that the Committee and PSC should seek areas of common interest and work together while awaiting the legislative reforms. The appointment of the National Commissioner was another area that should be considered because the renewal or non-renewal of the Commissioner’s term should rest with the Committee and not the President. Since the Committee had the power to appoint, it should also have the power to renew or not renew that contract. The Committee should consult with the House about Chapter 9 of the constitutions in terms of legislative reforms and when it received the report, it should make clear recommendations and not mere observations. How far had the PSC gone in implementing lifestyle audits for civil servants and the declaration of their financial interests? Due process should be ensured in the employment of persons into the civil service, and favouritism, corruption and nepotism should be wiped off the system.
Mr C Sibisi (NFP) believed that the Committee should decide on how it could support the PSC in passing the legislative reforms, and not merely state that it supported them. In fact, the Committee should start to act. What was pertinent was that the very poor in society were affected with what was happening in various government departments, especially in the Home Affairs and Department of Health centres. What could the PSC do to instil the Batho Pele principle among the public servants?
Ms B Maluleke (ANC) agreed with previous speakers that the Committee should support PSC in its legislative reform agenda. As a national Commission, did the PSC have a working relationship with its provincial arms? If complainants were not attended to in provincial offices, did they have the right to get remedies directly from the national PSC office? Did the PSC assist with learnership contracts? Some departments were said to sign learnership contracts without following due process. Could aggrieved learners contact the PSC directly?
Ms M Kibi (ANC) pledged to support the PSC. If people were not getting satisfactory services from provincial PSC, what measures were in place to enforce its will on its provincial counterparts? This was because it was in the provinces where most of the people were served. On the financial disclosure framework for senior managers in the public service, since the introduction of the Public Management Act of 2016, one was still seeing cases of public servants doing business with the state. Why was this still happening? Was the right message not being sent to these repeat offenders? Those who ventured to flaunt the legislation -- what consequences were meted out to them? Who was responsible for irregular appointments -- was it the executive authority or the accounting officer, and what happened to the officials irregularly appointed?
Ms V Malomane (ANC) asked how many financial misconduct cases the PSC was dealing with at this time? Why was this continuing, even after there were laws that dealt with financial misconduct? When would a provincial PSC office established in Mpumalanga?
Dr Bosshoff acknowledged that the Bill had to be tabled first before Cabinet, and said the PSC had drafted a draft Cabinet memo laying out a comprehensive business case that foresaw the financial business implications, what should be achieved and the consultation process. The conclusion of the business case was in its final stages and would be completed in February, and a meeting had been requested through the DG with the Minister. At the PSC’s meeting with him earlier in Cape Town, the Minister had been provided with the approach being taken, and it had been well supported. The other processes of providing him with the draft, Bill, the Cabinet memo and the business case would be done this February. After that it would be up to him, the Cabinet and the legislators on how to move the process forward.
Referring to appointment powers, and whether the PSC would want to have such powers in the appointment of all public servants, he said that what the Committee had to consider was that if PSC have those powers, what recourse would the employees have in the event that they wanted to submit a grievance or complaint? The Committee should consider this, as there might be a conflict of interest, as the PSC acted as the referee.
Adv Richard Sizani, Chairperson: PSC, said that the National Development Plan (NDP) envisaged the PSC playing a role in the higher echelons, especially with regard to appointments. In Malaysia, for instance, their PSC did not appoint, but they had three or four of their members that sat on the appointment committee panel. This was what the PSC was leaning towards, and if it was acceptable then amendments had to be made to this effect to eliminate this conflict of interest. Also, the PSC felt that if it was independent and sat in on the appointment of the DG, and as well having the DG accounting to them, it would be improper and undermine the PSC’s independence. It was the opinion of the PSC that the DG should not have dual loyalty, and should account to the PSC. The PSC did not agree with the present arrangement whereby the DG and Deputy Directors General (DDGs) were appointed by Cabinet, and that was one of the reviews being envisaged. The PSC wanted to take total control of these appointments.
On service delivery and investigations, the PSC agreed with the sentiments put forward by the Committee, but the Commission did not even have the budget to do inspections. If the PSC was asked to rate its performance in this critical area, it might be three out of ten, as the Commissioners were unable to cover the provinces. The problem of lack of funding facing the rest of the government’s operations, which was countrywide, was also what the PSC was dealing with.
Another important issue was the relationship between the DG and Minister, which was being affected when a new Minister was appointed. Sometimes the DGs were isolated even if they came from the same party, as this leads to “double parking,” and when DGs were suspended, they stayed at home and two years later the government had to pay for their lawyers and salaries. The President had pronounced on this, and this was also the PSC’s recommendation -- that the dismissal of DGs must not be done by the Cabinet, which was made up of Ministers who abuse these relationships when they had issues with the DGs. It was the belief of the PSC that it should also form part of the envisaged legislative reforms, and this would as well strengthen the Commission.
Ms Viviers answered the question on the role of PSC in respect of lifestyle audits, and said part of the PSC regulations prohibited the PSC from digging for this information. The President had pronounced on this, and the PSC was looking at setting up a framework that would include the Special Investigating Unit (SIU), the PSC and the Auditor General (AG), to ensure that it was effective.
On financial misconduct, the PSC did not have a mandate on this, as this was a management function dealt with under the Public Finance Management Act (PFMA).
Inkosi R Cebekhulu (IFP) raised an issue pertaining to the behaviour of senior staff exploiting the juniors at a KZN hospital. The staff were said to be changing the rotational hours of the junior staffers into working for more than 20 hours, and shifting them from one area to another. This reminded one of the loss of a doctor some time ago in KwaZulu-Natal (KZN), who committed suicide owing to the fact that he was exploited by the senior staff. The Committee wanted the PSC to have teeth in such matters by collecting such information and sending it to the executive. There was another case of a member of staff who had been fired and was then employed in another province. How could that happen?
Adv Sizani said that they were worried that this was happening, and had also read about it in the media. There was a case in Mamelodi where a woman was chained to a chair, and another case in KZN where a monkey was jumping all over the food of patients, and the PSC had acted swiftly on these matters. PSC Commissioners had immediately contacted the Health Department, and action was taken. However, the PSC was unfortunately not everywhere, but would deal those matters they were able to deal with. There was a section of the law that one could not run away from, such as being fired in one province and being rehired in another. There was just one Personnel Administration System (Persal) number across the country. Any employee dismissed was blocked in the Persal system. Any other place that employed such a person had to explain why, because it took three years to remove the block so that such an employee could be reemployed. Employment of dismissed employees did happen though under certain circumstances outside the Persal system, such as consultants or as partners. The PSC did block employees under disciplinary action and those who had been dismissed.
Ms Viviers added that the chairperson was correct, because this was covered by the civil service statutory regulations, and once a person’s identity document (ID) number was entered under the Persal system a dismissed employee’s name would have a block on it. What happened in some cases was that some of those dismissed employees, when they were interviewed, failed to disclose their previous dismissal or pending disciplinary action, and the department failed to go into the Persal system beforehand. The block could not be removed by one department, because there was a whole process that involved going through the National Treasury, which ensured compliance with legislation.
Dr Boshoff added that it was not possible to attend to all the complaints encountered in the public service, but whenever the PSC was made aware of any matter that pertained to governance, it tried to act as soon as possible. When it came to dealing with issues that affected the lives of people, one had to remember that commissioners and the Commission dealt with different challenges in the provinces where they operated. In the Free State, for instance, the PSC was facilitating a memorandum of understanding (MOU) with the Health Department there and the Central University of Technology (CUT), because there were patients in the province that had malformed faces. It was so serious that some of them could not breathe properly. The CUT had agreed to provide prostheses free of charge through the Department of Health, so different challenges were being dealt with by the Commissioners in the various provinces.
The Committee’s first term programme for 2020 was adopted with amendments.
The meeting was adjourned.
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