PSC Report on Education Head of Department contract: legal opinion

Education (WCPP)

17 November 2020
Chairperson: Ms L Botha (DA)
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Meeting Summary

Video: Standing Committee on Education, 17 November 2020, 13:00

15 Sep 2020

PSC Report on WC Education’s head contract extension: Premier & MEC briefing

The matter of the Western Cape Education Department’s Head of Department, whose contract would end in March 2021, was before the Committee after a Public Service Commission (PSC) report stated his contract extension was irregular. If the contract was extended for more than two years beyond retirement age it should have been approved by Parliament. The Premier had stated in the 15 September 2020 Committee meeting that the Department of Public Service and Administration (DPSA) had advised at the time that retirement age does not apply to Heads of Department because they are not permanent members of staff but are on contract. The Standing Committee had then requested a legal opinion which was presented today.

The WCPP Legal Advisor outlined his legal opinion that the PSC report had misinterpreted section 16(7) of the Public Service Act. According to principles of statutory interpretation, the word "Provincial" could not be added in front of "Parliament" and the provincial legislature did not have jurisdiction over extension of staff contracts. Nowhere in the Public Service Act could the provincial legislature be mistaken for National Parliament.

Members asked if National Parliament had been approached for approval of the contract extension; whether the Public Service Act should be amended to allow for permission to be sought from the provincial legislature for contract extensions and whether the PSC report was a draft or final report. They commented that the PSC report had been issued without care and the Western Cape Public Service Commissioner should have verified his finding with DPSA before issuing the report.

The Committee accepted the legal opinion presented. There was a detailed debate whether the Committee could close the matter. Some Members proposed the Committee should first call in the Western Cape Commissioner as the author of the PSC report. Others suggested that the Standing Committee on Premier and Constitutional Matters should rather meet with the Commissioner since the Premier was head of the provincial cabinet responsible for the appointment of Heads of Department. The point was also made that the Committee had not yet received outstanding annexure documents requested from the PSC.

The Senior Procedural Officer was asked to advise the Committee. He said that the Committee could close the matter however in terms of parliamentary procedure the author of the document should be heard before the Committee decided against it. It was resolved that the Chairperson would write to the Public Service Commissioner requesting the outstanding documentation and final report, if any. Thereafter, a date could be set to invite the Public Service Commissioner, Premier and DPSA if needed to hear all viewpoints.

The Committee adopted four Committee Reports dealing with oversight visits to schools.

Meeting report

Legal Opinion on Public Service Commission report
Adv Romeo Maasdorp, WCPP Legal Adviser, summarised the legal opinion he had forwarded to the Committee.

The Public Service Act serves as the primary legal instrument providing for the appointment of public servants. Section 16 of the Act provides for the “Retirement and Retention of Services” of public servants. In section 16(7) it states that: “If it is in the public interest to retain an officer, other than a member of the services or an educator or a member of the State Security Agency, in his or her post beyond the age at which he or she is required to be retired in terms of subsection (1), he or she may, with his or her consent and with the approval of the relevant executive authority, be so retained from time to time for further periods which shall not, except with the approval of Parliament granted by resolution, exceed in the aggregate two years”.

Adv Maasdorp said that the opinion was sufficiently explicit in its unpacking and interpretation of the provision of Section 16(7). He had prepared the opinion at the request of the Speaker’s Office in September and a similar request had been received from this Committee, and with the permission of the Secretary he had sent the same unrevised version to the Committee.

Adv Maasdorp found it unfathomable that the Provincial Public Service Commissioner had erred in the reading of the Act that defined his own mandate. His report had been co-signed by two other individuals who had also erred about the role of the Provincial Parliament with regard to the approval of Superintendent-General Brian Schreuder’s contract entered into under the relevant section of Act 16(7).

The Public Service Act never referred, in any of its iterations since 1994, to a role to be played by the Provincial Parliament when needing to approve a contract post-retirement, at least for a Head of Department (HOD). His

Adv Maasdorp said the legal opinion simply set out to show that where the word Parliament is used, at least in this Act, the reference and unmistakable interpretation was to National Parliament.

Section 16(7) provided for a number of pre-conditions for the extension of a contract of employment when an “employee” had reached retirement age. Nowhere in the definitions or anywhere in that Act was there an indication that a literal reference to 'Parliament' shall be or was interchangeable with a reference to 'Provincial Parliament'. The Commissioner’s report at Paragraph 5.9 stated: “The key provision of section 16(7) is the extension of the employment contract beyond a 24-month period for officers at age 65 years and older”. Then alarmingly the Commissioner continued saying that: “the provision is unambiguous by explicitly stating that the approval of the Provincial Parliament by resolution must be sought in this instance”.

According to Adv Maasdorp, this was patently wrong and he was not sure where the Commissioner had derived that; it appeared to him that Commissioner Goosen had taken generous liberty to insert the word “Provincial” before “Parliament” to make his point. The provision was unambiguous by explicitly stating “Parliament" but it does not explicitly state "Provincial Parliament". That was the Commissioner's own insertion and fabrication which made his Paragraph 5.9 patently incorrect.

Adv Maasdorp said that he was certain that the present Committee, mindful of its constitutional powers, and mindful also of a Commissioner’s reporting responsibility to that legislature, would deal with the matter whenever it deemed necessary to summons Mr Goosen to the Provincial Parliament.

Adv Maasdorp concluded that his opinion was simply that the reference in section 16(7) without a doubt was to National Parliament and not to Provincial Parliament when "approval of Parliament" is necessary.

This means that the Provincial Parliament is not and was never intended to be seized with this matter. That was what the Advocate had told the WCPP Speaker in early September. The Committee had no legal role nor obligation nor onus to do anything as they were not seized with that matter. The matter had been brought to the Committee because of an erroneous, inexplicable interpretation by the Commissioner when he submitted his report.

Mr M Kama (ANC) said Adv Maasdorp had explained the Commissioner had interchangeably used National Parliament and Provincial Parliament. Parliament is the legislative arm of the state and he wondered what the legislative procedure should be to deal with the misunderstanding.

Mr M Sayed (ANC) said that there was a slight difference in interpretation between the text of PSC report and the explanation by Adv Maasdorp. The Advocate was not saying that the opinion should not have gone to a legislative body, but that it should have gone to National rather than Provincial Parliament. The main issue was what they – as a legislative body holding the executive accountable – should do to hold Province accountable particularly on education matters. He asked what could be done to ensure that the executive authority went to National Parliament to actually get the approval it was supposed to get. Even though they did not need to go to Provincial level to get the approval, he asked how it should be possible to ensure that the National Assembly was approached for the approval. There was also the question of the role of the NCOP, given that NCOP delegates at National Parliament were delegates of the Provincial Legislature.

Mr G Bosman (DA) asked if Adv Maasdorp could give guidance on whether the Public Service Act stipulated that the Provincial Government had to get permission from National Parliament to make changes to the contract of a Head of Department. He had never heard of that being done. The decision had been taken at the level of the Director General of the Province with the Premier in terms of executive oversight. He asked if that fell within the limits of this Committee or the Standing Committee on Premier and Constitutional Matters.

Adv Maasdorp replied that the answers to all these questions were contained in the Public Service Act. Wherever that script was unclear one used principles of interpretation of statutes to seek clarity. One used case law to corroborate interpretation. The Public Service Commission derived its framework and mandate from the Public Service Act. Section 16(7) of that Act said that the approval of Parliament must be sought. That was the express and literal provision to which they as lawmakers should give life.

Adv Maasdorp said that it was unfortunate that the Public Service Commission got the application and interpretation of its own Act wrong, causing lawmakers now to be seized and overly occupied with that matter. One should read that which is written in the Act as opposed to that which one wanted to see.

On the National Assembly and the NCOP, Adv Maasdorp replied that he would not want to venture on the right process to follow. However, as a Committee they could not really ensure that process because they were not in the equation. Provincial Parliament had no role to play in that. In the same way there was no need for Provincial Parliament to give concurrence because the Act did not say so.

This was an acutely provincial matter because it was in the service delivery domain, and there could have very well been a plausible argument to be made for the Act to provide that concurrence. Even consultation with the provincial Parliament could be explored, so that those in the province could have a direct bearing on an outcome such as the extension of a person’s contract for two years after his retirement.

Adv Maasdorp agreed with Mr Kama that there was a plausible prospect for a legislative amendment because it would make for good governance, good oversight, and kept a matter that had a provincial bearing within the headlights of a provincial committee such as theirs. It was a good observation.

Further discussion
Mr Kama suggested that Adv Maasdorp focus on giving legal advice rather than “characterising” the questions, because up to now he was still in the dark about what the clause required. He asked if it was compulsory for Provincial Government to seek approval from National Parliament.

Adv Maasdorp asked if Mr Kama was requesting an actual interpretation and Mr Kama said he was.

Adv Maasdorp pointed out that Mr Kama’s question had been covered by what he had said earlier. However, he re-read section 16(7). Mr Schreuder retired at 65; it was deemed by the Executive Authority at the time, that the officer needed to be retained beyond the retirement age. It was then incumbent upon that executive authority, with the consent of the officer, to approve further retention of the officer. But the duration of that continued retention could only happen for two years at a time, and only if Parliament had given approval with a necessary resolution. That was the deconstructed version of section 16(7). It says explicitly and expressly that if someone beyond retirement needs to be retained for any reason, for example, due to experience or to ensure institutional stability, the executive authority with the consent of that person, may extend that person’s tenure for periods of more than two years at a time with the approval of Parliament. That is the interpretation of 16(7). And to underline that, the approval of Parliament is a direct reference to the National Assembly.

Mr Kama said the committee minutes noted two parts to what was requested of Adv Maasdorp. The one was about Section 16(7) and the other had been clarification of the legal status of Mr Schreuder as an employee, as the Public Service Act clearly distinguishes between an employee and a contractor which is what an Head of Department is. The Standing Committee needed to be sure what the framework was when reference was made to retirement and retention of services. 

The Chairperson said that the Committee would deliberate on that and she excused Adv Maasdorp.

The Chairperson noted Mr Schreuder’s employment contract would end on 31 March 2021. A new HOD had already been appointed and would start on 1 April 2021. She asked if this matter was still relevant to this Committee.

Mr Kama asked if Mr Schreuder was an employee of the Department, or a contractor.

Mr Bosman replied that he was not sure if that question would fall under the jurisdiction of the Provincial Committee. Ultimately it was not the Department of Education that appointed an HOD but rather the Provincial Cabinet. The Committee should not dictate to the cabinet how cabinet should conduct its business. He asked if the report Mr Goosen had tabled in Parliament was a draft or a final report. He asked because the PSC report had not taken into account the Premier and the DG response sent on 23 July.

In light of the legal opinion, he was slightly alarmed as to what the intent of the Public Service Commissioner had been in rushing that report. There was something very sinister about the way the report was written and how the Act had been interpreted. For the Public Service Commissioner not to make contact with the Department of Public Service and Administration before issuing the draft report made Mr Bosman very uncomfortable, especially since he had just re-read the section of the Constitution on the role of the Public Service Commission. There was no record of the Public Service Commissioner engaging with DPSA to find out what its position was. The Committee needed to accept the legal opinion given which is that the Public Service Commissioner had made an error in his interpretation of the very legal framework that governed how a Public Service Commission was supposed to operate.

Mr Sayed said they had received the Premier’s input and analysis of the PSC Report in September. The Premier did not account to this Committee but it had called in the Premier and there had been no objection to that. The Premier had given his view and the Committee then sought a legal opinion which they had now.

Although they accepted the legal opinion, it was only fair within the context of governance and what was being said about the Public Service Commissioner, that they call him to account and request him to provide an explanation. It was not that the Committee had direct oversight over the Public Service Commissioner but his report had a bearing on the Education portfolio. The Premier should also attend.

The Chairperson said that after the September meeting with the Premier and DG, a request had been made to the Public Service Commissioner for a follow-up report, for which they were still waiting. The Committee should wait on the follow-up PSC report as it did not have direct oversight over the Public Service Commissioner. She would not necessarily invite him to the Committee.

Mr Bosman agreed that inviting him to a meeting would not be ideal. The Committee had planned to gather all the information needed to satisfy itself when making a decision on the matter. They had correspondence between the Premier and PSC. They had the legal opinion which said that Section 16(7) of the Public Service Act did not contemplate the imposition of a legal obligation on the WCPP so there was no irregularity in the extension. Mr Schreuder had completed his service to the Western Cape Provincial Government with exemplary skill and had been in that department for a long time. By dragging that matter out further, they would be creating unnecessary tensions. The legal opinion was very clear, and they needed to close the matter unless the PSC provided an updated report or further information as the document received from PSC did not have the actual complaint or the supporting documents; they had a nine-page report without annexures. In his opinion, they had sufficient information backed up by legal opinion. The Premier and his Cabinet had acted within the advice given to them by the National Department of Public Service and Administration. There was therefore no legal obligation on the Provincial Parliament to provide concurrence.

Mr Kama did not agree with closing the matter. The Commissioner had rushed the report, and the Committee wished to follow up as there was no need for concurrence. It was of utmost importance to find out if there had been approval by Parliament. Closing the matter too quickly would be ironic. The Committee should use its jurisdiction to sort out the matter properly, failing which it would be held accountable for poorly addressing it. They had not received the response from the Commissioner.

The Chairperson disagreed saying the Committee had followed through and played its oversight role. They had received what was requested. The follow-up report was still outstanding from the Public Service Commissioner from whom they had not had any feedback so far.

Mr Sayed agreed with Mr Kama. He put on record that the Committee had the greatest respect for the HOD and continued to work with him to this very day. However, the Committee should not avoid exploring matters to the fullest, and should not fear making media headlines. The media are always present at committee meetings and inform the public on matters of state accountability. The matter was not exhausted completely. Everyone had been heard such as Committee members, the legal advisor, even the Premier, all except the Public Service Commissioner. There was no harm in inviting him and having a discussion with him.

Mr R Allen (DA) said that the Committee should close the matter. The matter would best be handled by the Standing Committee on Premier and Constitutional Matters given that the Commissioner has appeared there as well. There might be a need for a consensus vote on which committee would be best suited to handle that. The Premier was the head of Provincial Cabinet which was charged with the appointment of HODs. The Education Committee should close the matter.

The Chairperson reiterated that they were awaiting the report from the Commissioner. She noted the various proposals by Members for the Commissioner to appear before the Committee; or to close the matter in this Committee; or to refer the matter to the Standing Committee on Premier and Constitutional Matters.

Mr Kama requested clarity on whether the submitted Commissioner’s report was draft or final. He asked if the Committee was closing the matter because it had no jurisdiction or because it did not see itself as being the competent authority on the matter. The Committee should always seek to get a better understanding on whether the HOD appointment was regular or irregular. He asked for the way forward.

The Chairperson replied that the Committee had attended to what had been requested. The only outstanding paperwork was the follow-up PSC report. However, the Commissioner should be directed towards the Standing Committee on Premier and Constitutional Matters rather than this Committee. The legal opinion was quite straightforward.

Procedural Advice
The Chairperson asked the Senior Procedural Officer to guide the Committee on the extension of the HOD contract. She was of the opinion that the Committee had followed through and had exhausted its options on what needed to be done. The next thing would be for them to refer the PSC report to the Standing Committee on Premier and Constitutional Matters. The current HOD would be retiring at the end of March. A new HOD had been appointed. The Committee had asked if the question was still relevant. Mr Kama had said that it pertained not to the person but rather to the process and had said whether it referred to contractor or employee, it made no difference. What was outstanding was paperwork. The Chairperson proposed that the matter be closed, pending receipt of the paperwork. The other proposal on the table was for the Commissioner to come before the Committee.

Senior Procedural Officer, Mr Ben Daza, concluded that it was really up to the Committee to decide if it had concluded the matter. He was slightly taken aback that the case would be closed without an opportunity for the Commissioner to appear before the Committee and explain himself. He suggested that the Commissioner might complain about the Committee having concluded on the report without having had a chance to explain himself. It could seem unfair to the Commissioner. In terms of parliamentary procedure, they should call the author of the report. However, if the Committee felt that the matter belonged in the Standing Committee on Premier and Constitutional Matters, he would be comfortable leaving it at that.

Mr Kama maintained his opinion that the Committee was closing the case too quickly. Mr Bosman had said that the legal opinion was enough proof, but one could not conclude the matter without having heard the author’s explanation. Further documentation was awaited. It would not be good procedure to close the matter and rely on paperwork when the author has not had a chance to appear before the Committee. The Committee should do more interrogation and not just close the case. Many questions had been raised.

Mr Sayed’s recommendation was similar to that of Mr Daza and Mr Kama. For the sake of fairness and the Committee's oversight role in education matters, concluding without actually hearing from the PSC did not set the correct tone for parliamentary duty. Also the requested documentation had not yet been received. It would be inappropriate to close the matter. Another concern was that the Standing Committee on Premier and Constitutional Matters would be under no obligation to take up the matter if the Committee referred the matter to it. The matter was with this Committee currently and it was important to invite the Public Service Commissioner to this Committee.

Mr Bosman suggested that the Committee put aside the idea of having the Commissioner at the meeting, and rather phone or write to him to asking him to send the annexure documents expected from him. As a resolution, he suggested they ask the Public Service Commissioner to confirm if the report was the final report. He had checked the PSC website and had not found the report there. The Commissioner should also provide the annexures on which he had made his decision. The report the Committee received had not contained those annexures which included the complaint lodged on 11 February 2020. Once they had perused those documents they would then be able to make a decision on whether to invite him to speak for himself. He wished to know if the Commissioner had engaged with the DPSA. His proposal was therefore to ask the Commissioner for the documentation so they could decide to invite him and other interested parties.

Mr Sayed differed, saying that they had not requested documents from the Premier beforehand. Only after the Premier had spoken at the 15 September meeting had they requested documents from him. He saw no harm in having the Commissioner in a meeting to ask him questions, such as why he had not submitted the documents required of him. However, in the interests of moving forward, he would support Mr Bosman’s recommendation. He had perused the programme and it appeared that getting the submission in writing would be the best thing to do, following which a determination could be made. Given that it was already past mid-November and going into the New Year, it made more sense to go that route.

The Chairperson stated the final recommendation on the way forward: The Chairperson would write to the Public Service Commissioner requesting the outstanding documentation and final report, if any. Thereafter, a date could be set to invite the Public Service Commissioner and all role players to a Committee meeting.

Committee Reports
The Committee adopted the following Committee Reports:
• Committee Report: Unannounced oversight visit to three Mitchells Plain schools 17 June 2020
• Committee Report: Oversight visit to three Metro Central Education District schools 17 July 2020
• Committee Report: Oversight visit to two Winelands Education District schools 22 July 2020
• Committee Report: Unannounced oversight visit to two Milnerton District schools 18 August 2020.

The Committee adopted the minutes of 15 September and 13 October 2020.

The meeting was adjourned.


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