The Department of Public Service and Administration (DPSA) provided a clause-by-clause summary of the draft amendments to the Public Service Administration Management Act and the Public Service Act, following which the Minister requested that the Committee assist in their mutual interest of speedily passing the two Bills once they were introduced into Parliament.
Committee members raised concern about the amendment permitting the transfer of public servants without their consent to different departments in different spheres; how abuse of power would be prevented in such cases, if there would be compensation adjustments with such shifts and if the cost of a move across provinces would be borne by the department. Would these transfers affect unskilled officials and how would it ensure the budget for training was used? They commended the Department for reducing the number of public officials who conducted business with the state from 1000 to 400 but asked that it reduce this to zero. There was a concern about approval of outside remunerated work. The wording of the clause dealing with the exclusion of ex-officio public servants who were board members was raised as a concern to ensure they did not do business with the state. It was noted that the National School of Government would no longer join the Department of Higher Education but the importance of training was emphasised. Whilst the devolution of administrative powers to the HOD within legislation rather than by executive authority delegation was important, some remained concerned about the lack of transparency in HOD and DG appointments.
The Acting Chairperson, Ms M Lesoma (ANC), explained that the Committee Chairperson was still on sick leave. The Minister and Deputy Minister would arrive late as there was a Cabinet meeting. The Director General was present. The Committee will recall agreeing to meet during recess on 24 March but the Minister was not available. However, he indicated his availability today, notwithstanding the Cabinet meeting. The Committee asked that the Director General or an official mandated by the Minister come and present to the Committee. One agenda item was an implementation progress report on the public service. The DG would speak to the matter raised in June 2020 on the Public Service Wage Bill. She recalled that in its last two meetings, Dr L Schreiber sought permission to give the Minister an alternate Private Member's Bill, which speaks to a single public service, as it was agreed by the Committee to present it to the Minister.
The Department was here not only to deal with the Draft Amendment Bills which are before Cabinet but also to take the Committee through the progress towards a single public service. Members would recall that one of targets of the Sixth Administration was to review the structure of public service administration. She believed that one of the activities of the single public service is to review the public service structure for all departments so that costs are cut, people are placed where they ought to be and procedures comply with the law. She thanked the Director General for attending but noted the DG's network was terrible and asked if someone else could present.
Public Service and Public Service Administration Management Amendment Draft Bills
Ms Renisha Naidoo, Chief Director: Legal Services, DPSA, said she would present whilst the DG was addressing her network challenge. The Minister was still engaging with stakeholders on the Draft Bills as part of the consultation process. This was an introduction to the two Bills which DPSA wanted to table before Parliament in this financial year (see document for details).
DPSA has identified four pillars of public administration: Citizens; Government; The service; The employees in the public administration. These four pillars are interdependent – if one fails, the others will not be able to function. The approach of these Bills is to consider the public administration holistically, taking into account the four pillars, to:
- create a people-centred public administration
- professionalise the public administration and
- improve the state’s capacity to deliver services to citizens.
Draft Public Administration Management Amendment Bill, 2021
The Department had initially sought to replace the existing legislation: the Public Service Act as well as the Municipal Systems Act. The achievement of a cohesive public administration was envisaged through the Single Public Administration initiative, which formed the central basis of PAMA. However, as it worked through the Public Administration Management Act (PAMA), it realised that the PAMA does not repeal or replace the other pieces of legislation. The initial view of having a single piece of legislation that regulates all spheres of government is replaced with the view of leveraging the existing legislation for better coordination across government.
Therefore, it is proposed that-
• the different pieces of legislation be retained and processes to align norms and standards across the public administration should be undertaken;
• The areas in the PAMA that have posed implementation challenges must be amended;
• The following critical areas that are not catered for in legislation, but which are necessary to achieve Chapter 10 of the Constitution, must be introduced to -
- Remove unjustifiable disparities across government, including public entities;
- Clearly define the factors to be taken into account when determining remuneration and conditions of service, which affects the fiscal framework;
- Efficiently manage financial resources in employment matters by co-ordinating collective bargaining through a central mandating process.
PAMA areas of amendment
Clause 1: Definitions
The definitions of ‘head of institution,’ ‘Labour Relations Act,’ ‘public administration’ and ‘public entity,’ are to be amended.
Clause 2 -Individual transfers.
This deals with the provision for transfers of employees who may be transferred without the consent of the employee—this is to address the lacuna in the law. It proposed that an insertion be made that the employer have the ability to transfer employees without the consent of the employee if it is operationally justified and after due consideration of the representations, subject to all the other criteria that is already in the law itself. Accordingly, it had provided some provisos which deem that when an employee is transferred— with or without their consent, there must be both operational justification and reasonable grounds. The second provision, which is already in PAMA and part of the law, is that when an employee is transferred to a particular position, that employee must be suitably qualified as defined in the Employment Equity Act (EEA)—to perform those functions. This remains a requirement that is not to be changed. The third requirement is that that when an employee is transferred, whether employer or employee initiated, the employee must not suffer detriment to salary or reduction in benefits. The principles of transfer have taken into account all employee rights and all employer obligations.
The reason behind creating legislation giving the employer the ability to transfer an employee without consent is only where operational circumstances justify it. Operational circumstances usually arise where functions are transferred; departments are restructured, where government priorities and resources change and where there is a need to change the way departments are structured, it then becomes an inherent part of this process that people have to move as one needs to be able to move resources to where they are needed. This is one element of where a transfer would take place. The second element would be where resources are deficient in a particular department or municipality and the employer needs the ability to deploy skills to where they are needed. These are the operational requirements to be addressed in this amendment.
DPSA has been very cautious in the amendments to ensure that the processes do not impede the rights of employees or lend themselves to abuse by employers and to ensure that whatever risk is inherent in the process, the need for the provision must outweigh the risk. It felt the Committee should know that the amendment is necessary and that it has put in place all of the checks and balances to ensure that the employees are not victimised or abused through the process.
Clause 3: Secondments
There is one amendment to section 6 of PAMA to align it to clause 2.
Clause 4: Transfer of employees on transfer or assignment of functions
Two amendments are made under this clause.
Clause 5: Conducting Business with the State
This amends section 8 of the PAMA to clarify that an employee who is a director of a company may not conduct business with the State including a state-owned company, private company , personal liability company, public company or non-profit company. It clarifies that employees appointed ex-officio on boards are not within the scope of the prohibition as these people will retain their fiduciary duties. It empower the Minister to determine that certain transactions between the State and an employee are not construed as “conducting business with the State” to remove the unintended consequences that are encountered.
Clause 6: Capacity development by institutions
The amendment is to section 10(2) of PAMA.
Clause 7: National School of Government
This clause amends that the National School of Government will not be created as a Higher Education institution that provides generic qualifications. It is to be retained within the Department to train officials in ethics, supply chain management, and other necessary skills.
Clause 8: Directive by Minister relating to education ‘
The repeal of section 12 of PAMA is proposed
Clause 9: Compulsory education requirement for employment
This amends section 13(1) to remove the unnecessary burden placed on Cabinet in determining prerequisite and mandatory training.
Clause 10: Minimum norms and standards
The repeal of section 16(2) of PAMA is proposed.
Clause 11: Office of Standards and Compliance
The removal of ‘and its members' from section 17(7) of PAMA is proposed.
Clause 12: Removal of unjustifiable disparities
This clause inserts new sections 17A and 17B into PAMA.
Clause 13: Regulations
This amends section 18(2) of PAMA to provide for the making of regulations for municipalities by the DPSA Minister, in consultation with the Minister for local government and the Minister of Finance, after consultation with organised local government.
Clause 14: Conflict provisions
This ensures there is certainty to manage conflicts that may arise with other legislation. In the event of conflict with other Acts, the provisions of the PAMA will prevail.
Public Service Amendment Bill, 2021
This Public Service Act (PSA) was last amended in 2007 aimed at introducing a new dispensation to the public service in line with the Constitution. Following the policy reforms necessitated by the National Development Plan 2030 (NDP) and other policy, various court decisions on public administration and matters identified by the South African Law Commission’s Report on DPSA legislation it has become necessary to review and amend the Public Service Act.
Clause 1: Definitions
This effects changes to the definitions of 'executive authority' and 'heads of department' for ease of interpretation. The amendment of the definition of 'executive authority' will clarify the powers of the President and the Premiers in respect of Heads of Department (HODs).
Clause 2: Powers of executive authorities
This amends section 3(7) of the PSA.
Clause 4: Powers of heads of department and the creation of the head of the public service
This clause amends section 7 of the PSA to provide for the devolution of powers to heads of departments as well as additional functions to be placed on the Director-General in the Presidency to align to the National Development Plan (NDP).
Clause 3-13 and 16: Clauses affected by the evolution of administrative powers to the HOD
These clauses delineate HOD powers listed in detail on slide 18.
Clause 9: Retirement
Section 16 of the PSA is to be amended to substitute 'officer’ with the defined term of ‘employee.’
Clause 13: Remuneration
This makes a technical amendment to section 31(3).
Clause 14: Acting appointments and re-assignment of employees
This clause amends section 32 as outlined on slide 19.
Clause 15: Grievance procedures
This clause amends section 35 for the Minister to determine the internal grievance process.
Clause 17: Recovery of wrongly granted remuneration
This clause amends section 38(2)(b)(i) as it was declared unconstitutional by the Constitutional Court and needs to be brought in line with the Basic Conditions of Employment Act.
Clause 18: Delegations in respect of heads of department
This amends section 42A and clarifies interpretational challenges to s42(A)(3)(a) of the PSA.
Ms M Ntuli (ANC) welcomed the informative presentation. However, she wanted to check on the approval of having outside remuneration. She asked if this would not weaken the work of officials and find people covertly prioritising outside work. DPSA said that the power to transfer an employee with or without consent would not be exercised recklessly. However, she wondered about this, particularly when looking at the rights of the employee. Would this not cause unnecessary animosity between organised labour and employers? Would this not allow senior managers to victimise staff? She reminded the Committee that it had heard about themes of favouritism and victimisation by senior management. She asked what would happen if the employee is not happy. On the secondment process, she wanted to check if the process would not happen under unfair conditions as well.
In terms of Directors General, there had been numerous cases of the DG and Minister not finding each other and the Minister not being happy with the DG's work. If there is a case where a DG is said not to be performing properly; what would inform that the duties are not performed properly? Looking at the four pillars, she asked if this Bill is not going to open loopholes for the public to handle things incorrectly. Would it not cause the public to vandalise what had been provided to it because it was not happy with certain matters instead of following the proper channels?
Dr M Gondwe (DA) spoke to Clause 2 of PAMA Draft Bill and the transfer of individual employees. She was concerned until they explained that there were measures in place to prevent abuse. She asked if there were other procedures to prevent abuse by accounting officers and executive authorities (EAs). How would the Department ensure that the process is rigorous, thorough and precludes abuse?
On the clause 5 amendment to conducting business with the state, she recalled that according to the DPSA and Public Service Commission briefings, there are possibly 400 public service employees conducting business with the state. She asked if this proposed amendment really would go a long way towards ensuring that the number comes down to zero. She appreciated that it was now down to 400 from 1000, but there needs to be no public service officials conducting business with the state at all as it is prohibited.
She asked about the exclusion of public service employees appointed to company boards as ex-officio board members. With her legal background she knew that ordinary board members and ex-officio board members have more or less the same rights. The exclusion is proposed as sometimes Ministers appoint representatives on the boards of state-owned enterprises (SOEs). Where an employee is appointed not to an SOE board but in an ex-officio capacity to a company board, how did the Department intend to prevent that board member from conducting business with the state? It was either that one was conducting business with the state or not – for her it was black or white. If such an inclusion is to be put in place, it should be explicit and indicate the nature of the company be being served as a board member in an ex-officio capacity. This should be clearly stated as there are a lot of people serving as board members in an ex-officio capacity but the companies they serve on are not necessarily SOEs and the appointments are not done by Ministers. How would it ensure that public service officials falling into this category do not conduct business with the state?
On the National School of Government, she understood that the Department wanted to elevate it to the status of a government department, however, this would have budget implications for the fiscus. Could it really afford to have another government department? She asked for an explanation on what this would entail as the fiscus was currently under enormous pressure with considerable budget cuts across all government departments. The addition of another department worried her but perhaps she was not understanding this correctly.
On clause 14 on conflicting provisions, this pre-empts conflicts arising between PAMA and other pieces of legislation. Previously, she had asked DPSA what legislation could be in conflict with PAMA. This clause pre-empts the conflict.
On the Public Service Amendment Bill, clause 4 on HOD powers was of concern to her. Whilst she welcomed the devolution of administrative powers to the HOD and the DG as important, she remained concerned about HOD and DG appointments. She asked what mechanisms would be put in place to ensure that HOD and DG appointments are purely based on merit and that the process to appoint competent persons is as transparent as possible.
On clause 14 on acting appointments and re-assignment of employees, she asked if it was possible for the amendment to stipulate the acting period for public service employees in the same manner that the public service regulations stipulate an acting period for public service employees. Lastly, on the Private Member's Bill proposed by Dr Schreiber, she asked if this had been considered at all as DPSA had given the Committee the impression that it would be considered.
Ms R Komane (EFF) welcomed the presentation. Her first concern dealt with the transfer of employees. She asked what methods would be used to guard against victimisation and to safeguard junior staff members victimised by senior members in the administration. A senior member might want to transfer a junior member for their own interest so what would happen to safeguard those employees. Would transfers not result in over-staffing in the departments they are transferred to. She asked what would happen to public servants who do not have skills as not every employee had skills.
On public servants who are ex-officio board members, she asked if this would not have a direct influence on officials, particularly in supply chain management (SCM) as there was a lot of corruption. She asked for assurances that this system would not benefit people who are close to such public servants. On availing budget for training, she asked what a department would do if it had no budget available for training. On clause 13 on regulations, she asked if the clause meant that the Minister has to consult the South African Local Government Association (SALGA) or organised labour or both about regulations for municipalities as the proposal was not very clear. On the approval of outside remunerative work by an HOD, she asked if this would not allow abuse of this responsibility by officials which would ultimately affect service delivery. When it hands such powers over to officials, it could be risky.
Ms B Maluleke (ANC) said that some of her questions had already been asked, but she wanted to emphasise the concern raised by Ms Komane about a department not having the budget for training. She had a further concern that the department may not use its training budget to the maximum and attempt to transfer employees. She asked what mechanisms are in place to ensure DPSA uses that entire budget so that the public service is appropriately trained.
Mr C Sibisi (NFP) said most of his concerns were raised, but he wanted to return to transfers without consent. He asked if this would not cause a number of challenges for DPSA as it is common for there to be employees that are not favoured and there are vindictive humans. He asked what would be done to avoid this. Transfers without consent would result in there being a lot more disciplinary hearings in DPSA. How would it ensure that this did not end up being the case?
Ms M Kibi (ANC) appreciated the presentation. Most of her questions had been asked. She referred to the DPSA aim to remove unjustifiable disparities across government, including public entities. She asked which sector would need to adjust up or down between the public service and public entities given the challenges of the wage bill, the high salary structure in public entities and the long-term effects of COVID-19 on the state budget.
Ms C Motsepe (EFF) asked who would be responsible for reorganising the workplace organogram affected by staff mobility. Where deficiencies exist or where resources and skills are required, she asked if certain workplaces would not be over-staffed? What would happen to the employee who has not the skill in a workplace to which the required skill is transferred? What would happen when the department does not use its training budget to upskill an employee which may lead to the employee becoming redundant? She repeated the question on would happen when consent is not given. She asked if transfers will include cross-provincial transfers and how that would happen.
Inkosi R Cebekhulu (IFP) used the example of KZN and the lodging houses in Pietermaritzburg. If this system were implemented, does DPSA have enough places for transfer employees to stay? If an employee living in Eastern KZN was transferred to Newcastle, this might cause a problem. Who would bear the cost of the move of the employee's whole family?
The Acting Chairperson said she was encouraged by the boldness of DPSA to move to a single public service. She looked forward to equal payment of public servants. Recently, DPSA had advertised almost 300 senior management posts in all government departments. However, what does this mean if one of the goals of the Sixth Term is to review and streamline the public service structure to ensure no duplication or overlap? What does the advert in conjunction with the Amendment Bills mean in light of this since if a person is employed for longer than three months, the person is considered permanently employed? To give an example of the ever-growing restructuring, it seems there are talks in Cabinet that Brand SA and the Department of Tourism are going to merge eventually. What does this mean in terms of the amendments and if they synergise all applicable processes to ensure everything is neater and the public service is able to attract scarce skills across national, provincial and local government. She thought that this was a question needing to be looked at and addressed in one of the Bills.
Director General response
Ms Yoliswa Makhasi, DPSA Director General, replied that for employer-initiated transfers, the provision ensures employee rights are protected. Employees will be afforded an opportunity to make representations and transfers must be linked to operational requirements and not the public interest. For example, an operational requirement might be that the department structure has changed due to a number of reasons. As part of DPSA's review of structures, some department structures are overstated and it is advising departments to readjust its structure. DPSA has readjusted its own structure, where in the past it had a Chief Directorate for Communications, when the Minister approved its reorganised structure, the Chief Director position was changed to a Director position. Transfers could be made to different roles either internally in the department or through the PAMA Act. Transfers would permit transfers from national to local government and the reverse without any hassles. Currently, prevailing prescripts do not make it easy to do that. Further, reasonable grounds for the transfer must exist in terms of section 5(2)(a). Employees must be suitably qualified for the intended position as envisioned in the EEA. Employees shall have continuity of service and shall not suffer any reduction in remuneration unless the employee consents according to section 5(3) of the Act.
Operational requirements are those connected with the way an organisation functions. Public interest is wider than this. Usually, operational requirements come into play where organisations restructure and reorganise or where functions are transferred. Employees are used effectively and efficiently and are not employed without rendering a service. If Members remember the National Macro Organisation of Government (NMOG) at the start of the Sixth Term, there were a number of senior management service (SMS) members who could not be placed anywhere in other departments but who are in excess within their own department. For example, the Department of Minerals and Energy has a number of SMS members who used to work in the Office of the Minister who are now in excess of the staff establishment with no space to accommodate them as two departments were merged. There are several other examples of departments that were merged. As only on person is needed for the SMS role, the other should be moved to where they are useful. There is a need for movement from national-to-local government. There is already a process in place for national-to-provincial transfers.
Danger of remunerated work outside the public service
Director General Makhasi felt that often members of the public service should be allowed to have remuneration after hours as most of the time the income comes from work after hours and on weekends and mostly through the sale of products. This is disclosed and there are processes in place to approve this.
Devolution of decision-making powers
DPSA is interested in the devolution of administrative powers from the EA to the HOD through legislation. If it is left to the EA, authority would be delegated as and when it wishes and the stability of the department gets affected; creating confusion within the department at times. Where the Minister or EA is not in agreement with the HOD on a matter, they sometimes withdraw the delegation. This 'throws a spanner' into departments when delegations are withdrawn. The legislative measure is to ensure that there is alignment between the financial responsibility with the administrative functions of this human resource, which will enable the EA to focus on providing strategic and policy direction, whereas the HOD will manage administrative powers. This measure will assist the management of the political-administrative interface between the EA and HOD. It should improve accountability and remove current conflicts that exist or can arise. Oversight of the work of HODs still remains the responsibility of the EA who is responsible to ensure that there is performance feedback given to the HOD during performance reviews as well as ensuring that the performance assessment of the HOD is done. The performance assessment process starts with the HOD's self-assessment, and then proceeds to the EA, who must concur or give their own scores. Following this, it proceeds to an external panel outside of the department consisting of other Ministers and the DG in the Presidency. The EA will still have an opportunity to give feedback to the DG on whether the DG is performing or not. The delegation of responsibility is for administrative powers only.
Public servants conducting business with the state
The amendments are meant to clarify challenges which have been noted in implementation. It is the desire of DPSA to reach zero; however, it will only be reached when public servants who are doing business with the state stop doing so. The most important thing now is to raise awareness on this matter and to get law enforcement to do something about those who are caught. Once there are cases with public servants going through the criminal justice system, this will send a strong message to others who are doing business with the state.
Officials who are appointed to boards of entities cannot do business with the state, meaning they cannot receive remuneration from the entities for which they are board members. She noted that she was a member of the Film and Publication Board. As a public servant, she was not allowed to receive remuneration for this work and was effectively volunteering when conducting this responsibility. This is an issue it wants to cut across the entire government, especially for SOE employees who often receive remuneration from some boards. This becomes double-dipping. DPSA had picked up some instances of employees in political offices, who may not define themselves as public servants, and yet they are because they are remunerated from the same purse as other public servants.
National School of Government (NSG)
NSG is already a government department at this stage. It stands alone and reports to the Minister. It would require more resources to move it to be an institution of the Department of Higher Education. Ms Naidoo could give more detail on this point.
Devolution of powers and mechanisms in place for HOD appointments
The current process of appointing HODs is seen as public in that there is advertising. There is discussion as to how public to make this process. There is a debate on whether to include independent and technical expertise in the appointment panel. She did not think there was anything on these points included in the Bill as there was still a lot of work to do on the Bill, however Ms Naidoo could speak to this.
Dr Schreiber's Bill
DPSA received the draft private member's bill. It has gone through it, analysed it and a number of issues in the bill are covered in its proposals. There is one issue relating to public servants who occupy political positions in political parties to which it is still doing some policy work and it would update the Committee at the relevant time. It is observing the debates taking place in terms of local government and the review of the legislation on local government. It is in the process of finalising its policy position on this particular issue and the revised and consolidated draft which takes into account the input received from various players including Dr Schreiber will definitely include the issue of participation in the leadership of political parties, it is simply still working on the formulation and policy stance.
Overstaffing in receiving departments
A transfer cannot simply be done considering only one department. Both departments have a structure and transfers happen within that context.
Transfer of employees who lack skills
This should not arise as employees are not transferred because they do not have skills. Employees may only be transferred due to operational reasons and not necessarily due to skills. DPSA is supposed to use a certain portion of its budget to develop and train employees and to provide bursaries for employees. Whether an employee is transferred or not, they qualify to participate in applying for a bursary or requesting training. Employees have their own personal development plans (PDPs) which they do as part of performance contracting where they highlight the skills they require. Employee supervisors are allowed to suggest to an employee skills they think the employee requires to perform effectively as part of the performance feedback process.
Clause 13: Regulations
It was her understanding that SALGA would have to be consulted. The current set of regulations needing to be issued is delayed due to consultations with SALGA. Last she checked, SALGA was meant to submit to DPSA in February. SALGA had asked for an extension, however she believed that it had still not submitted yet. This means DPSA cannot move forward with the set of regulations that are ready because it is waiting for SALGA.
Compensation and training budget
This training budget is monitored whether it pertains to transferred employees or not. It is unlikely that a department would use the training budget to do other things because the part of the budget for training is ring-fenced.
She missed the question on salaries and the question on the impact of transfers and the resettlement of employees and she asked that Ms Naidoo address these.
300 advertised senior management posts
Departments have structures that are approved. According to policy, departments must come to DPSA every five years to consult on their structure. Vacancies are advertised according to these structures. There are different attrition levels in departments. There are a number of reasons vacancies arise in departments, some people are promoted, some pass on, some retire and some chose to leave the public service. These positions must be filled as there is work that needs to be done. As such, there is a vacancy circular that advertises vacancies every two weeks. All departments submit their positions and DPSA advertises these vacancies in the circular.
Merging of government entities
Public entities like Brand SA are not governed by the Public Service Act. They have their own board that put policy in place and have their own executive authority. DPSA was not able to reflect on the matter of a merge with the Department of Tourism. However, it knew that there was a project by the Department of Public Enterprises (DPE) on a review of state entities in the public service starting with state owned companies (SOCs) and SOEs that are reporting to departments. She could not comment much on this process as she was unsure what the developments were. This was a Presidency project which is being implemented through DPE.
The idea behind these acting positions is that people should not act for long periods in these positions as this causes challenges. DPSA therefore tries to advise departments not to act for long periods as this creates instability in the organisation and leaves a vacuum.
The DG asked that Ms Naidoo respond to the remaining questions.
The Acting Chairperson welcomed the Minister and Deputy Minister and noted that their apologies had been received. She invited them to comment after Ms Naidoo’s response should they need to.
Chief Director of Legal Services response
Ms Naidoo replied that sections 196 and 197 of the Constitution require there is legislation that governs the public service to ensure that it is efficient. To ensure it delivers on its mandate, these Bills need to ensure that the public service can do what is expected of it by citizens. The mandate of the Bills is to ensure that there is good governance and does not mean that citizens can vandalise what is provided.
Legislation conflicting with PAMA
It had identified some PSA provisions that conflict with PAMA. These are provisions on financial disclosures, ethics, integrity and corruption where there is a dual mandate. DPSA intends to deal with this through a conflict clause. However, as it progresses through consultation, there might be other mechanisms that might be better placed to deal with these conflicts and it will consider these. For now, only those in the PSA has been identified.
The process to make regulations currently under PAMA was that the Minister for Public Service and Administration needed concurrence of the Minister of Finance, the Minister of Cooperative Governance and Traditional Affairs (COGTA) as well as SALGA. This is the current legislation, which says that the regulations will be made 'in consultation with' the Minister of Finance, COGTA and SALGA. DPSA is now proposing alignment with the Municipal Systems Act, which says that regulations should be made in consultation with the Minister of Finance, the Minister of COGTA and 'after consultation' with SALGA. This alignment does not require the concurrence of SALGA and leaves regulations with the executive to manage – which makes legislation easier to implement if done in this manner.
Ms Naidoo suggested that DPSA look into this clause 5. Its understanding of ex-officio has been as it relates to an employee acting in his/her capacity as an employee to represent on a board. The way the provision is written in clause 5 speaks to the fact that 'director' does not apply to an employee appointed ex-officio as a director. The focus of the exclusion is not on other persons who are appointed as directors, but employees who are appointed as such. The 'ex-officio' is then limited to employees; however, it would look at the comments which raised some questions to consider.
Budget for training
The PAMA Bill provides that departments must set aside a compulsory portion of the budget for training as directed by the Minister to address developmental needs of employees.
Unjustifiable disparities and salaries
The intention is not to either move salaries up or down. It recognised that in different organisations and different spheres, the requirements, job descriptions, and services provided differ. Moving forward, the idea is to remove disparities where there is no justification. There should be no need to remove disparities if there are officials who are performing the same function at a municipal or national level. Over time, it wants to remove these disparities. The idea is not to drop salaries or increase salaries but to find alignment into the future.
The executive authorities currently determine the structure and transfers are then a matter that follow organisational restrictions.
Relocation of employees upon transfer and the impact on their family life
These are matters which the transferring authority must consider, because if the transferring authority does not consider them, the decision becomes irrational and is open to challenge.
Minister Senzo Mchunu apologised for the Ministry's absence as it was not foreseen that their other meeting with Labour would run this long. He trusted that the DG and her team had made a good presentation and explained where DPSA is coming from and where it is going with the Amendment Bills. He wanted to emphasise that in the effort of ensuring that the public service is improved, there are a number of urgent processes and initiatives which it needs the Committee for in terms of processing. From where he sits, DPSA lags behind where it should be. It has been affected by interruptions in the public service which had found the Department not to be strong enough to resist the interruptions which arose in the environment in which it operates in the country. Therefore, these reforms need to be made. At the end of the day, the public service must be the facilitator or catalyst for delivery to the people of South Africa. There was no public service for the sake of it. Anything that hinders its efficient performance and ultimate delivery of services to the people must be dealt with urgency. He trusted that when the legislation process arrives in Parliament, the Bills would be able to move with the necessary speed and the process completed. The Department shared this desire with the Committee.
The Minister acknowledged that there would be contested areas in the amendments such as with labour on the transfers as well another amendment with the executive about where the line is to be drawn between the executive authority and the accounting officer. The principle of it is, however, agreeable to everybody and a line needs to be drawn so that whatever wrong happens, it must be directed to where it belongs correctly, so that there is no longer any hiding from accountability. Where an EA gives an unlawful and corrupt directive, the accounting officer should know that should they agree, they will be held accountable and there will be consequences for such wrong-doing. This was the Department's aspiration.
There was one follow-up question by Ms Komane. She said that it can never be that a question arising from the Committee can be said to be one that should not have arisen in DPSA’s opinion. These were clarity-seeking questions the Committee had the right to ask. On her question on the transfer of employees, she referred to the organogram of the department. She wanted to know what would happen to unskilled employees, particularly where transfers are needed as a result of two departments merging. Secondly, if outside remunerative work is approved, would this not mean there would be an impact on service delivery at the expense of the taxpayer? This was a practical concern. This was not answered and she would like an answer. She wanted it on the record that it cannot be that when a Member asks a question, the received response is that question need not have arisen.
The Acting Chairperson asked if the Minister wanted to respond.
The Minister explained that there are two kinds of remuneration. On the one hand, there is what is ordinarily permissible as a result of work as an employee during working hours. There is remuneration that is outside of working hours, and here there are two divisions including that for which permission needs to be gained and that for which no permission is need such as NGOs and work done outside of work hours. Cases where employees leave to attend to other work during work hours is unlawful and it relies on supervisors to prevent this as there is no state employee who is without a supervisor from the DG downwards. Should one come across an employee doing other work, either in the office by abandoning work, or by actually leaving the workplace, this must be treated as unlawful and there must be a consequence. On the first question, he asked that the DG address this as she would be aware of the context so that the question is responded to satisfactorily and all are satisfied.
The DG apologised for the figure of speech she used. She simply meant that there were already provisions to deal with that particular matte. She was not saying that Members should not ask the question but was merely saying there are already systems and processes in place for employees requiring re-skilling. She suggested that when thinking about re-skilling it should not only be thought of in the context of transfers, but as part of the commitment the public service has made to training and re-skilling. This was provided for in the salary bill and it was 1% or 1.5% of the salary bill. Whether an employee is transferred or not, they qualify for re-skilling. This was a matter that it was not worried about as a Department.
The Acting Chairperson thanked the DG and the Minister for their responses and for respecting the Committee as one of its stakeholders.
Committee announcements and programme
The Acting Chairperson noted that a letter was received from the Office of the Speaker who received a complaint from one of the senior management advocates from the Public Service Commission (PSC) who complained about the Committee Chairperson and the treatment of the PSC Chairperson. Subsequent to this, the Speaker requested the PSC Chairperson to respond to the merits of the matter, which he did. The letter and the response have been referred to the Committee and it is requested during her acting period that the Committee receive legal advice from Parliamentary Legal Services on how to deal with the matter. She requested that a day be found for a meeting on this. Next week, the Committee would be meeting twice a day on DPSA Annual Performance Plans and its meeting with Stats SA. The programme has been made in line with Parliament’s schedule for the term.
The Committee approved the Committee programme.
The meeting was adjourned.
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