(Subcommittee) Renewability of Public Service Commissioner contract

Public Service and Administration, Performance Monitoring and Evaluation

26 January 2022
Chairperson: Mr T James (ANC)
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Meeting Summary

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Briefings by the Committee Content Advisor (Confidential document)

The Subcommittee on Public Service and Administration discussed the renewal process of Commissioner, Dr. TB Luthuli, of the Public Service Commission (PSC). The Subcommittee was briefed on the renewal process of the Commissioner and presented with the portfolio of evidence of Dr. Luthuli. The Committee was to explore the uncharted route of renewing a Commissioner’s contract at the end of their term, with a view to not interview them once again as had been established practice. This practice meant that the position had to be re-advertised and open to the public. It was up to the Committee to renew or not renew his contract. The Committee had written a letter to the Chairperson of the PSC to motivate for the renewal of the contract in the absence of a performance measurement tool. The Chairperson of the PSC cited ‘renewal of the Commission must be based on fit and a proper person and a commissioner is considered to have maintained a satisfactory level of performance about his or her duties’. The Chairperson of the PSC further cited that all Commissioners were equal meaning they would not be able to assess each other. The Committee then wrote a letter to Dr Luthuli requesting him to write a motivation for his renewal of the contract. Dr Luthuli had forwarded the motivation and it was circulated among the members.

Members noted with concern that there was no performance measurement tool with which to decide to either renew or not renew the Commissioner’s contract. The Committee did not want to renew contracts without any basis to do that. The Committee needed to have a performance measurement tool in place to make an informed decision. The PSC had been allowed to develop criteria that would assist the Committee in the renewal process. The PSC had failed to develop that criteria and now it was in the hands of this Committee to ensure that it came up with an appropriate mechanism to judge whether someone’s contract should be renewed. Members expressed deep dissatisfaction with this. The PSC had not done justice to the Committee or the whole process. The PSC did not do what was expected of them even though it was requested more than once. There was noncompliance on the part of the PSC. A member of the African National Congress (ANC) suggested that the Subcommittee receive legal advice on the matter. The Committee needed a legal perspective so that it had a clear way forward to deal with this matter. The Committee had already listened and gone through the document submitted by Dr Luthuli. The Subcommittee needed to take a sober decision and therefore needed legal advice. The Subcommittee resolved to source legal guidance on the matter so that it could see how it was going to take the process forward.

Meeting report

The Chairperson welcomed Members to the Subcommittee meeting. There were no apologies and all Members were present. Before he put his views on the table, he invited the support staff to introduce the matter. The Committee would be dealing with the renewal of the contract of the Commissioner. Before the Committee could deliberate further on the matter, he invited the support staff to introduce the matter to the Committee.

Briefing by the Committee Content Advisor on the renewal process of a Commissioner for the Public Service Commission

Mr Julius Ngoepe, Committee Content Advisor, briefed the Committee on what had been done since the matter had been referred to the Portfolio Committee. He would then hand over to Mr Biyela who would provide an analysis on the motivation that the Committee received from Commissioner Luthuli on the renewal of his contract. He briefed the Committee on a draft document he compiled that detailed the legal background and the sequence of events that led the Committee here.

Sequence of events

Having received a request to renew the contract of the Commissioner post, the Committee, through the office of the Chairperson, had written a letter to the Chairperson of the PSC to motivate for the renewal of the contract in the absence of a performance measurement tool. The Chairperson of the PSC cited the fact that ‘renewal of the Commission must be based on fit and proper person and a Commissioner is considered to have maintained a satisfactory level of performance in relation to his or her duties’ as the reason for renewing the contract. The Chairperson of the PSC had further cited that all Commissioners were equal meaning they would not be able to assess each other. The Committee then wrote a letter to Dr. Luthuli requesting him to write a motivation for his renewal of the contract. Dr Luthuli had forwarded the motivation and it had been circulated to the members.

Briefing by Researcher on the Portfolio of Evidence from Commissioner TB Luthuli

Mr Mlungisi Biyela, Committee Researcher, briefed the Committee on the analysis of Dr Luthuli’s motivation. Dr Luthuli had sent the Committee a portfolio of evidence. The Committee was to explore the uncharted route of renewing a Commissioner’s contract at the end of their term, with a view to not interviewing them once again as had been established practice. This practice meant that the position had to be re-advertised and open to the public. It was up to the Committee to renew or not renew his contract. A set of structured questions would be prepared by the support staff and put to the Commissioner.

Portfolio of Evidence from Commissioner Luthuli

The portfolio of evidence discussed the reports produced under his programme of work which was labour management practices. These reports dealt with issues like recruitment, retention, career pathing and utilisation of senior management service members’ expertise and skills in the Public Service. Other reports were on evaluation and effectiveness of the recruitment and selection system of the Public Service. The portfolio of evidence also detailed the investigations and grievances regarding labour and management practices. These were the matters his portfolio referred to the Investigations and Anti-Corruption Branch of the PSC.

Self-recommendation as to why Commissioner Luthuli believed his contract should be renewed

Commissioner Luthuli argued in his motivation that a developmental state required a capable and highly ethical and professional cohort. He implied that Parliament could take him as a candidate to still be developed further, through a renewed contract. He also raised the matter of the professionalisation of the public service. This policy strategy and programme was expressed by the President during the State of the Nation Address (SONA). It was a significant area that government and the public service had identified in the 2020-2025 Strategic Plan of Government. As Convenor of Programme Two: Labour and Management Practices, the professionalisation of the Public Service fell within his area of work. He would like to see it through as he had started oversight on it as the Commissioner.

Discussion

Dr L Schreiber (DA) discussed the process that the Committee was to follow. He had a proposal that needed to be discussed. As he understood it, the Chairperson wanted to allow Dr Luthuli to present. He proposed that the Committee should consider whether Dr Luthuli should not go through the normal application process that the Committee had discussed the day before. If Dr Luthuli presented today and Dr Schreiber’s proposal was carried then the Committee might prejudice other candidates. Dr Schreiber proposed that Dr Luthuli go through the normal application process. Dr Luthuli did apply and was candidate 101 in the documents the Committee reviewed yesterday. Before the Committee allowed him to present, the Committee needed to discuss the possibility where he would go through the normal application process with all the other candidates. If Dr Luthuli presented now he might prejudice himself for the interviews later. That was a matter to be discussed.

The Chairperson agreed with Dr Schreiber’s suggestion. He did not want the Committee to renew contracts without any basis. The Committee needed to have a performance measurement tool in place. That performance measurement tool must be the only basis to renew or not renew a Commissioner’s contract. The Chairperson was persuaded by what Dr Schreiber had said. He asked for the opinion of the other members.

Mr C Sibisi (NFP) asked a clarity-seeking question. Since the Committee was shortlisting yesterday and today the Committee was speaking about Dr Luthuli. Was it for the same post? Or were these two different posts? How could the Committee shortlist candidates but at the same time speak about renewing? He thought it was two different posts and sought clarity on the matter.

Ms M Kibi (ANC) did not think that Committee should take Dr Luthuli through the same process that it would be taking the other applicants through. Dr Luthuli had already applied and it was just for the Committee to renew. The Committee needed to check whether it was satisfied with what he had done over the past five years. The Committee needed to consider on what basis it would renew or not renew his contract.

Ms R Komane (EFF) echoed the sentiment of Dr Schreiber. In the absence of a performance measurement tool, the Committee could comment on whether to renew or not. Because Dr Luthuli had also applied and was in the pool of 16, the Committee should not jeopardise his chances. The Committee should take him through the same processes that all the candidates would go through. The Committee would only be listening to him because it did not have a tool or yardstick with which to measure his performance.

Ms T Mgweba (ANC) said that she was covered by Ms Kibi. The question raised by Mr Sibisi must be responded to. The Committee could then discuss how it would manage this process. She heard the issues raised by Ms Komane and Dr Schreiber speaking about Dr Luthuli being part of the 16. She noted that Mr Sibisi needed to be given an explanation and understand the process. Thereafter the Committee could start discussing the fate of Dr Luthuli and what route the Committee would take.

Mr Ngoepe responded to the question asked by Mr Sibisi. He drew the Committee’s attention to the referral letter that was sent from the Speaker’s Office according to which the ‘National Assembly is also requested to consider initiating a process of a possible renewal of Dr TB Luthuli’s term of office in January 2022 or to fill his vacancy’. If the Committee allowed Dr Luthuli to be part of the shortlisted candidates then it meant that it was not a renewal but it was the filling of a vacancy. The Committee had the option of renewing or re-appointing. It had the option to renew or to fill the vacancy. It was up to the Committee whether Dr Luthuli would be among the 16 or if it renewed his contract.

Ms Kibi said that based on the letter if the Committee took Dr Luthuli through the process of interviews with other candidates it would mean Dr Luthuli would be starting a new term. It would not be a renewal. It would be a re-appointment. She suggested that the Committee initiate the process of renewal of Dr Luthuli’s contract and not taking him through interviews like the other candidates.

Ms Komane agreed. However, there was still the challenge of what yardstick the Committee would use? Would the Committee rely on the report that was given by Dr Luthuli? The Committee did not have anything with which to measure his performance. The Committee needed to agree on what yardstick it would use so that it treated him with all the fairness that he deserved. The Committee had heard his side of the story but it needed to hear both sides of the story to come to a decision. The decision should be based on the employer’s and the employee’s side of the story. The Chairperson of the PSC could not recommend anything because the Chairperson and Dr Luthuli had the same line of duties. That made the work of this Committee difficult. Which yardstick would the Committee be using the maybe she would be convinced to follow the first recommendation?

Dr Schreiber shared the concern of Ms Komane. He responded to Ms Kibi and said that the Constitution was very clear that it did not matter through what process a Commissioner be renewed. A Commissioner could only serve for a total of two terms. It was not that the Commissioner’s term would restart. It would simply be his second term. That was quite clear from what the Constitution said. The concern was about what yardstick the Committee used. The PSC had been allowed to develop criteria that would assist the Committee and the PSC in these processes. The PSC failed to develop those criteria and now it was in the hands of this Committee to ensure that it came up with an appropriate mechanism to judge whether someone’s contract should be renewed. He proposed that the Committee use the interviews and the discussion with other candidates as a way to measure whether the contract should be renewed. If the Committee did interviews with 15 other people then it would get a sense of what the other candidates looked like. The Committee could then compare Dr Luthuli’s interview and what he was able to provide about his term to the other candidates. If Dr Luthuli was the best candidate then his contract would be renewed. At least the Committee could then say that it had gauged him versus the other candidates and it was that yardstick that the Committee used to measure in the absence of the clear criteria that the Committee wished existed. 

Ms V Malomane (ANC) suggested that the Committee could use the performance agreement that Dr Luthuli had entered into and any achievement that he accomplished to measure his performance. The lack of a performance measurement tool remained a problem, however.

Ms Mgweba was concerned that the Committee had already listened to the presentation by Mr Biyela on the evidence from Commissioner Luthuli. An analysis of Dr Luthuli’s evidence had been presented. She noted the letter from the Speaker which was signed by the President. The Committee should consider initiating a process of a possible renewal of Dr Luthuli or to fill his vacancy. Dr Luthuli had presented a submission to this Committee for the possible renewal. The problem of this process was now the yardstick. She wished that a legal advisor had been present to advise the Subcommittee. She wanted the legal perspective so that the Committee had a clear way forward to deal with this matter. The Subcommittee needed to take a sober decision and that was why she wanted legal advice.

Mr Sibisi said that after looking at the letter from the President and the Speaker, the Committee was given a directive to either renew his contract or to fill his vacancy. Why was the Committee not just doing what it was told and simply renewing Commissioner Luthuli’s term? Coming up with a yardstick at this time would not be fair. During the five-year term, there should have been a yardstick to check whether all of the Commissioners were performing according to the yardstick. It would be procedurally unfair to bring in a yardstick now.

Ms Komane observed that the Committee had agreed to listen to Commissioner Luthuli’s presentation. However, the PSC had not done justice to the Committee or the whole process. It had not done what was expected of them despite being requested more than once. Now the candidate was a victim of the consequences of the non-compliance of the PSC. Commissioner Luthuli was one of the people who had applied. She did not shortlist him because she knew that he was going to appear before the panel today to hear his side. It was a fact that the Committee did not have a yardstick. She disagreed with Mr Sibisi. The Committee had not been commanded to renew a contract, it had been recommended and it had two options. It needed to be noted that the Commissioner was a victim of non-compliance. If the Committee took him through the line of interviews then it would have deprived him of the Constitutional right that he had to enjoy. The Committee had listened to the presentation. It had listened to his side of the story. The Committee was preparing itself on how to engage and where to look for loopholes. The Committee needed to satisfy itself on whether to renew or not to renew. It needed to protect Commissioner Luthuli from becoming a victim of other people’s non-compliance. 

Ms Kibi proposed, to make sure Dr Luthuli did not become a victim, to call in Dr Luthuli to come and present to the Committee. Then the Committee could ask him questions based on his presentation. Then the Committee could decide to renew or not to renew. Taking him through the process of interviews with other applicants would be unfair to him.

The Chairperson noted Ms Mgweba’s request for the Committee to receive a legal opinion. Members were raising valid points that Dr Luthuli was a victim of a situation which was not of his own making. Someone else who was supposed to do their work did not do their work. The Chairperson listened carefully to both views which were both valid. He proposed that the Committee source legal guidance on this matter. Hopefully a meeting could be arranged very soon for that purpose so that the Committee could understand how it was going to take this process forward. It needed to be done urgently so that the process of interviewing applicants who had applied did not kick out Dr Luthuli.

Dr Schreiber supported the Chairperson’s proposal. This was the responsible way to go about it. There were valid points on all sides. He suggested that the Committee capture the exact question it wants answered from legal services. Was it something like ‘in the absence of clearly defined performance criteria, on what basis is this Committee supposed to consider the renewal?’? The answer the Committee received would be premised on the question. Since the Committee did not have clearly defined criteria, what should this Committee do to fairly consider the renewal application and what was the best way for the Committee to do that?

The Chairperson agreed and said that the support staff would have to arrange this quickly.

Ms Malomane supported the Chairperson’s proposal. The Subcommittee should include Dr Luthuli as part of the 16 applicants but also continue with the issue of getting advice from legal services. If the Committee renewed his contract that meant he would not be part of the interviews. If the Committee did not renew his contract then he would be part of the interviews.

The Chairperson said that was the meaning of what the Committee was summing up now. He agreed with Ms Malomane. The Committee wanted to be on the safe side and not do things that violated the law.

Ms Mgweba said that the Chairperson’s remarks were supported by the Subcommittee.

The Chairperson said that he would hold discussions with the support staff outside the meeting so that the Committee could arrange this very fast. The matter would be processed further once the discussions had taken place and once the Committee had received the legal opinion.

The meeting was adjourned.

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