The Department of the Premier briefed the Committee on the Public Service Commission Report on the appointment and further extension of the Superintendent-General (Head of Education) for the Western Cape, Mr Brian Schreuder.
The Premier disagreed with the finding of irregularity on the appointment of the Head of Department. The Department said it acted on advice granted to it by the Department of Public Service and Administration (DPSA) for the initial appointment. There was no need to deviate from the advice when it came to the extension of the contract.
The advice from the DPSA had said that Heads of Department are not permanent members of staff, but contracted members of staff. This meant that the rules around age of retirement did not apply to these members of staff. Further, the approval of Parliament (National Assembly), under section 16 (7) of the Public Service Act, is not required. This advice was applied.
An anonymous request was sent to the Public Service Commission to answer questions around the legality of the HOD’s contract.
The PSC found that the advice given to the Western Cape government, by the Department of Public Service and Administration, was wrong and therefore the appointment was irregular.
The Department said the report was one-sided and did not take into account any of the reasons given by the provincial government as to why the appointment was made.
The confusion was also about the fact that the PSC first published a final report and then sought clarity from the DPSA. The Department had advised that the PSC consult with the DPSA in the initial stages, but this advice was declined.
Members of the Committee wanted to know if there was a succession plan in place at the Department. They also wanted to know if the post had been advertised.
Members wanted clarity on whether the parliamentary approval referred to in the Act extends to the Provincial Parliament.
Members wanted clarity around how to proceed with the matter, as there was outstanding input from the DPSA.
Briefing on the Public Service Commission Report
The Department of the Premier briefed the Committee on the Public Service Commission (PSC) Report on the appointment and further extension of the Superintendent-General (Head of Education) for the Western Cape, Mr Brian Schreuder.
Mr Alan Winde, Premier of the Western Cape, disagreed with the findings of the report. He said that in January 2017, the Western Cape government asked the Department of Public Service and Administration (DPSA) for advice on section 16 of the Public Service Act (PSA), with regards to extending contracts of Heads of Department.
He said the advice came back that the age of retirement did not apply to Heads of Department (HOD), because they were not permanent members of staff, but contracted members of staff. This meant that the approval of Parliament (National Assembly), under section 16 (7) of the PSA, was not required. This advice was applied.
He said Mr Schreuder’s contract was to expire on 31 March 2019. The Department of the Premier decided that contracts would not be extended beyond two years, as there was an election coming up. The Premier said it would be unfair to the new government to be burdened with long-term contracts. The new government should be the one to make those decisions. He said Mr Schreuder’s contract was extended from 01 April 2020 to 30 March 2021.
He said an anonymous request was sent to the Public Service Commission (PSC), to respond to the legality of the specific contract, in February 2020.
Premier Winde explained that the Department conducted an investigation on 9 July 2020. He said it reached out to the PSC to say ‘these are our reasons; this is the advice we received; based on the advice, this is why we made the following decisions’. All the information had been sent to the PSC, but none of their advice and comments had been included in the final report.
Premier Winde felt the report is one-sided and that is why he disagrees with it. He said he has written to the PSC on 07 August 2020. On 13 August 2020, he asked the Director-General to engage directly with the DPSA to get confirmation of the PSC’s position. He said we cannot have a report tabled before the Committee saying one thing, and advice that was actually acted on saying another thing. He said they are still waiting for a meeting with the DPSA.
He said if the confirmation comes through, the department would have to apply its mind.
Mr Harry Malila, Director-General, Department of the Premier, said a letter has been sent to the DPSA. The Deputy Director-General at the DPSA said the matter has been referred to an internal team. The DPSA will confirm when a meeting will occur. He said they did have any communication that contradicts the initial advice, and far as they are concerned that advice is still intact.
Mr Lucas Buter, Deputy Director-General: Legal Services, Department of the Premier, said the Premier had requested that the PSC consult with the DPSA before finalising the report. This is because the previous Premier had acted on the DPSA’s advice, and that advice is the source of extending Mr Schreuder’s contract without Parliamentary approval, as well as the source for the finding of irregularity.
He said the PSC offered no reasons for finding the advice from the DPSA to be wrong.
The other reason the Premier suggested consultation with the DPSA, is because this is not an issue unique to the Western Cape but will impact the entire Public Service.
The Premier said Mr Schreuder has given many years of his life ensuring that we perform really well as a region. Even during the discussion of extending contracts, HOD was awarded the Batho Pele Award for best-performing department in South Africa. He said it was unfair that his appointment was being questioned.
Mr G Bosman (DA) said he was quite startled that on page three of the Public Service Commission Report, the PSC said it was ‘investigating irregularities in the Western Cape Education Department’. He said he assumed the Commission knew that Heads of Department were appointed by the Premier and not the Western Cape Education Department.
He asked the Premier’s legal team to shed light on point four under the investigation part of the report. In this part of the report, the Public Commissioner is looking for a copy of the resolution by the Western Cape Parliament (WCPP) approving the retention of Mr Schreuder beyond the initial two years. He wanted to know which part of the Public Service Act requires that.
Mr M Kama (ANC) said holding the Executive to account does not undermine anybody’s service provided to government. He asked if the HOD’s post was advertised when Mr Schreuder reached the age of 65. If not, what were the reasons? He asked if the post was advertised after the first two years. If not, what were the reasons? Where there any other senior officials within the Western Cape Education Department (WCED) that had their contracts extended beyond the age of 65 years? What was the rationale?
He said the Commission had said furnishing of incorrect advice by the DPSA cannot render an irregular appointment regular.
Mr F Christians (ACDP) said the Committee now has a lopsided report because the Committee was not privy to discussions with the DPSA. He asked if the Department had a succession plan in place. Is nobody capable of taking over? He said he hoped come March 2021, the Committee will not be looking at a further extension. He said the Department needs someone to take it forward. He asked why there would be a second extension beyond the age of 65.
Mr R Mackenzie (ANC) wanted clarity on how the Committee will proceed without input from the DPSA.
The Chairperson agreed with the Member that there is some information outstanding, but Members can ask questions based on the report received.
Mr R Allen (DA) said he echoed the sentiment that the report is lopsided.
The Premier said it is a good thing to hold the Executive to account, but pleads for fairness. He said the post was advertised twice and the incumbent was asked to put his name forward. He said it was not easy to appoint a Head of Department, and it was difficult to get people to apply. He said even the DDGs that would be in line for succession were in the range of retirement. He said the issue of succession planning will be dealt with in the next Human Resource (HR) cycle.
Mr Malila read from an email sent on 14 September 2020. In the email, the DDG at the DPSA is informing an official at the PSC that the matter is still being discussed and that once it has been externally validated, the DPSA would send out a communication. He said this was clear indication that the PSC had not read their letters and was reaching out to the DPSA after the fact.
The Premier said it angered him that the PSC would take so long to consult with the DPSA, when this was recommended to them in the first place.
Mr Buter said the original advice of the DPSA made it so that there was no requirement for parliamentary approval.
Mr Andre Joemat, Superintendent-General: Corporate Services, Department of the Premier, said the recruitment process for HODs was very rigorous and candidates are usually not successful at both the internal and external competency assessments. This is why head-hunting was sometimes necessary.
Mr K Sayed (ANC) said he does not think this should be the last meeting on the topic, because outside of the province needed accountability. He asked if the appointment of Mr Schreuder was the result of a recruitment drive. He also asked if there was a succession plan after the first post-65 contract extension. He asked if Mr Schreuder’s age was taken in to account when he was appointed. Were matters of equity taken into account? Is it a usual step to renew a contract nine months before expiry?
Mr Mackenzie said he wanted to clarify that there was no malfeasance from any side but rather a difference of interpretation between the PSC and the DPSA.
The Premier said the Western Cape had made a decision not to put five-year contracts in place before the end of the term of the Fifth Parliament. He said he believes the new government must make those decisions. This is why the renewals were sought earlier.
Mr Michael A Hendrickse, Deputy Director-General: People Management, Department of the Premier, said the Department has looked at succession planning, and employment equity does feature but it is not the only criteria.
Ms Debbie Schafer, Western Cape MEC for Education, said Mr Schreuder was given a two-year contract because he was 65 years old. She said the two-year contract was not long enough and the Department was finding it difficult filling the post in the first place. She said the changing of HODs creates destabilisation and uncertainty in the organisation. She said Mr Schreuder was head and shoulders the best candidate at the time. She said she hoped a suitable candidate would be appointed in the upcoming recruitment cycle.
Mr Kama said there is still a discussion between the PSC and DPSA. He wanted to know what the Premier’s response was, to the fact that the PSC made the report final. Will the Premier not comply because he does not agree, or is he finding ways to register his disagreement via the courts?
The Chairperson said that is not what the Premier said, but she would let the Premier respond to the question.
The Premier said he disagreed with the draft report, and now disagrees with the final report, especially in light of the fact that PSC is only now asking for clarity from the DPSA. He said the provincial government is complying with the advice that was given.
The Chairperson thanked the guests for their presence before the Committee and excused them from the meeting.
Members asked the WCED to provide a succession plan for the Department.
Members requested an urgent legal opinion from the WCPP regarding which Parliament is being referred to in the Act.
Members recommended requesting a presentation from the DPSA as well as the PSC on the subject matter.
Members requested that the Department of the Premier send their viewpoint to the Committee, in writing.
Members recommended that once the legal opinion is obtained, someone from Legal Services should take the Committee through the opinion.
Members requested clarity on what Mr Schreuder’s status is, as an employee. They also requested copies of annexures that were mentioned in the report, but were not part of the final report tabled before the Committee.
Members recommended requesting the Speaker to reach out the Public Service Commissioner to confirm if the report is final. This recommendation is made in light of the fact that the PSC has provided a final report and then went on to ask for clarity from the DPSA.
The Chairperson recommended that the Committee first obtain the legal opinion from the WCPP, and then write to the Speaker. Following that, the rest of the recommendations can be acted on.
Members agreed with the Chairperson’s recommendation.
Mr Bosman recommended not speaking about the matter to the media, out of respect for Mr Schreuder.
Mr Sayed said this is a political terrain and that matters will be discussed as they are raised. It is not about the individual, but the processes.
Mr Christians said the matter is already in the news. He also said that Members have a right to make political statements from the point of view of their respective political parties.
The Chairperson said she would be speaking to the media if this matter is raised, but Members can make political statements.
Adoption of Committee Minutes
The draft minutes for the meeting held 25 August 2020 were considered.
The minutes were adopted without amendment.
The Chairperson thanked everyone and the meeting was adjourned.
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