(Subcommittee) Renewability of Public Service Commissioner contract

Meeting report

The Chairperson said that the Subcommittee had met the previous week to go through the last batch of applicants for the position of Public Service Commissioner. The Committee got stuck on an issue about the renewal or not of the term of office of a Commissioner. The Subcommittee had adjourned after agreeing that it needed to seek legal opinion on whether it could renew the term of office of Commissioner Luthuli. The Chairperson welcomed all the Members to the meeting. The Chairperson said that the Subcommittee would first deal with the two sets of minutes. Thereafter, the Committee would deal with the business of the day which was getting a response from Parliament Legal Services on the request the Committee made.

Draft Minutes of the Subcommittee of the Portfolio Committee on Public Service and Administration for 25 January 2022

The Committee considered the minutes.

The Chairperson asked if there were any corrections that the Members wanted to make on the minutes? If not, the Chairperson presented the minutes for adoption by the Committee. The Chairperson asked if there was a proposal for adoption.

Ms M Kibi (ANC) commented on the last page of the minutes, on paragraph 2.5. She was not sure about the way the objection was captured in the minutes. It was captured that the Democratic Alliance raised an objection. Was the Committee capturing it as the DA? Or was the Committee saying that the objection was raised by Dr Schreiber? She wanted clarity on that matter. 

The Chairperson said the Members represented political parties in this Committee. He did not see anything wrong with the way it was captured. Dr Schreiber was in that meeting representing the DA. He did not see anything wrong with the way it was captured. The expression any Member in the Committee made represented the party they came from.

Ms Kibi responded that the reason why she raised this concern was because when Dr Schreiber raised his objection, he did not say that the DA was raising an objection. He said that it needed to be noted that he was objecting. That was the reason why she was asking. She agreed with the Chairperson that the Members were representing their parties in this Committee and that capturing it like that was acceptable. It was because of the way Dr Schreiber raised his objection that she had a concern. He did not say that it was the DA.

The Chairperson said that the Members’ political expressions were not the same given that the Members’ political orientation and background were not the same. In the ANC, the Members spoke in plural all the time. In the ANC, the Members did not express a view individually. The Chairperson asked if this set of minutes would be adopted after his explanation.

Dr M Gondwe (DA) said that she was a bit concerned. She did not recall any other set of minutes pointing to a political party raising an objection. It would be worded as ‘an objection was raised’. This was a Committee of Parliament. It may be a multiparty Committee but when the Members deliberated and took a stance then it stood as a collective. When one person raised an objection it was not necessarily an indication of affiliation to a particular party. It was the role of Parliament to hold the Executive accountable. How were the Members going to do that if they did not object as individuals? That was her opinion on the matter. It would be better worded as ‘an objection was raised’. She did not recall any set of minutes that the Committee adopted indicating that the ANC or the DA or the IFP raised an objection to this effect.

The Chairperson responded that in a number of meetings in the Committee, and even in the House, political parties indicated their objections. It was not written in the minutes that that specific Member objected but rather that political party from which the Member was from. It was always noted like that. This was not causing division. It was because this Committee was a multiparty Committee. The Chairperson asked for a proposal to adopt this set of minutes.

Ms Kibi moved for the adoption of the minutes.

Mr C Sibisi (NFP) seconded the adoption of the minutes.

The minutes of 25 January 2022 was adopted by the Committee.

Draft Minutes of the Subcommittee of the Portfolio Committee on Public Service and Administration for 26 January 2022

The Committee considered the minutes.

The Chairperson asked if there were any corrections. If not, was there a proposal for the adoption of this set of minutes?

Ms T Mgweba (ANC) moved for the adoption of the minutes.

Ms Kibi seconded the adoption of the minutes.

The minutes of 26 January 2022 was adopted by the Committee.

The Chairperson handed over to the Parliamentary Legal Advisor to brief the Committee on the matter that the Committee requested a legal opinion on.

Briefing by Parliamentary Legal Advisor on renewal process of a Commissioner of the Public Service Commission

Ms Noluthando Mpikashe, Parliamentary Legal Adviser, said the office was requested to provide an opinion on whether the Committee could or had the power to renew the contract of a Public Service Commissioner in terms of the Public Service Commission Act. The office was also requested to provide a view on whether the criteria or yardstick to determine efficient performance or non-performance was that which was spelled out in the Constitution in Sections 196(4) and 197(2). The office was further requested to give a view on what process should be followed by the National Assembly in renewing a contract of the term of office of a Commissioner in the Public Service Commission. The Committee had received a letter from the Presidency instructing the Committee to renew the contract of Dr Luthuli or to fill the vacancy if that contract was not renewed. There was also an absence of set criteria as per the requirements of the Act. The contract in question expired on 16 January 2022. Based on what was provided by the Committee, the legal advisors summed up the legal question for consideration: Did the Committee have the power to renew the expired contract in terms of the law and what was the criteria of the process to be followed by the Committee to renew a contract of a Commissioner?

Section 196 of the Constitution established the Public Service Commission and regulated the appointment of its Commissioners. The requirements contained in Section 196 of the Constitution were that there be 14 Commissioners to be appointed by the President, of which five had to be recommended by the National Assembly and approved by the National Assembly. In terms of Section 196(10), a Commissioner was appointed for a term of five years which was renewable for one additional term only. Section 196(9) stated that Parliament must regulate the procedure for the appointment of Commissioners or the renewal thereof. Section 4 of the Public Service Commission Act dealt with the appointment of Commissioners. Subsection 5 dealt with the renewal. The President may, as indicated in Section 196(10) of the Constitution and within 90 days before the expiry of the term of office of a Commissioner, renew the contract of that Commissioner for one additional term only. Subsection 4 did not apply to the renewal of the contract of a term of office. The renewal of a term of a Commissioner needed to be based on a Commissioner remaining a fit and a proper person as required by Section 196(10) of the Constitution and having maintained a satisfactory level of performance concerning his/her duties.

Ms Mpikashe addressed the issue of whether the Committee could renew the contract of Dr Luthuli which had expired on 16 January 2022 and if possible what would be the criteria of such renewal. Section 4, 5, 6 and 7 of the Act dealt with the renewal of the contract of a Commissioner. Ms Mpikashe noted that previously there was no process in the Act for renewal but now that the amendments were in operation there were guidelines to guide the Committee and Parliament on how to renew a contract of a Commissioner. In terms of those provisions, the President was empowered to renew a contract of a Commissioner for one additional term only 90 days before the expiry of the first term of office of the Commissioner, if that Commissioner had been approved by the National Assembly. The Committee did not have the power to renew a contract of a Commissioner. The power to renew a contract of a Commissioner rests with the President. However, the process where the President had to sign to renew the contract of a Commissioner could not commence without the approval and the processes of the National Assembly. The criteria set out in Section 4 of the Act did not assist and did not apply to the contract of Dr Luthuli as that contract had come to an end. There was no contract to renew because the contract expired already. In the Act it was stipulated that the contract had to be renewed at least 90 days before the contract expired. It was the President that had to do that. The process for the renewal should have commenced long before the 90 days. It was not possible to renew what had already expired. With the contract having already ended, the Committee had to follow the recruitment process in accordance with Section 4 of the Act. However, this would result in a new appointment and not a renewal of Dr Luthuli’s contract.

The second question on which the Committee had requested a legal view was what the criteria or yardstick was to determine the performance or non-performance of a Commissioner. This question had become moot because Dr Luthuli’s contract had already expired. The office provided a legal view on it for the sake of future clarity. Section 4, 6 and 7 of the Public Service Commission Act provided that for the contract of a Commissioner to be renewed, the said Commissioner should still be a fit and a proper person as required by Section 196(10) of the Constitution and must have maintained a satisfactory level of performance concerning his/her duties. This was the only criteria set by the Act to measure the performance of the Commissioner. If a Commissioner had not done anything during their tenure to render him/herself unfit and improper to serve as a Commissioner then that Commissioner could be considered for a renewal of his/her contract. The Commissioner also had to maintain a satisfactory level of performance concerning his/her duties in the Commission.

Another question was how the Committee could do an appraisal of the performance of a Commissioner as an individual member of the Commission. That was an operational issue that the Committee needed to discuss with the Department and put into the regulations or in the policy of the Commission.

In conclusion, Ms Mpikashe said the Committee did not have the power to renew the contracts of Commissioners as that power rested with the President. The Committee may simply recommend to the President, subject to approval by National Assembly, that the expiring term of the Commissioner be renewed. That needed to be done at least 90 days before such an expiry. In the case of Dr Luthuli, the renewal process was not possible as the contract had expired already. If the Committee decided to appoint Dr Luthuli, that would constitute a new appointment and not a renewal.

Discussion
The Chairperson asked for the views of Members. The Chairperson wanted to comment first. He thanked Ms Mpikashe for the briefing. The matter was very clear. If ever a contract of a Commissioner needed to be renewed, that had to be done 90 days before the expiry of such a contract. In the case of Dr Luthuli, his contract had already expired. Therefore, there was no contract to renew. The Chairperson suggested that the Committee add Dr Luthuli to the list of shortlisted candidates for interviews because there was no contract to renew. He wanted to hear the opinion of members and opened the floor.

Ms Kibi said that the Committee had heard the explanation from the legal team around this renewal. Because the contract had already expired, as explained, she supported what the Chairperson had said. The Committee should include Dr Luthuli into the shortlist of candidates if the Committee was allowed to do so. The Committee could not renew the contract but it could still include him in the shortlist and have him go through the interviews like any other applicant for this post.

Ms Mgweba said that she agreed with the Chairperson and Ms Kibi. The presentation was very clear in terms of the process. The Subcommittee should take the issue of Dr Luthuli through a normal process like all the other applicants. There were already 16 names that had been recommended for public comments and interviews. The Committee had gone through the submission of Dr Luthuli and discussed the issue of Dr Luthuli the previous week. It was important for there to be fairness and transparency in the Committee’s work. The Subcommittee needed to agree that it was going to amend the shortlist to 17, including the name of Dr Luthuli. As part of the Committee’s discussion the previous week, Dr Schreiber spoke about Dr Luthuli being part of those that had applied. Dr Luthuli was applicant 101 on the list of applicants. The Committee needed to take the Committee through a normal process like all the other applicants and include him as candidate 17. It needed to be noted that the renewal of the contract was not in the Committee’s powers. She agreed with the Chairperson and Ms Kibi that Dr Luthuli be included in the 17 names and then have those names republished.

Dr Gondwe said that she agreed with the prevalent view that the Committee needed to include the name of Dr Luthuli in the list of shortlisted candidates. The list would now be 17 from the initial 16. She requested that the Committee seriously look into the issue of setting out the criteria and ensuring that the criteria were in place so that the Committee avoided a situation such as this one in the future. The legal advisor had indicated that these criteria could be included in the regulations or in the policy of the Commission. It was up to the Committee that the criteria be in place. Going forward the Committee should avoid a situation where it had to have such deliberation and delay the process of a Commissioner being appointed. She was happy for Dr Luthuli to be shortlisted and included in the list of shortlisted candidates.

Ms R Komane (EFF) said that she welcomed the legal advice. She agreed with the sentiments of the other Members. The Committee should include the name of Dr Luthuli in the list of the people it was going to interview. However, it needed to be recorded and noted that it was disappointing that the Committee was confronted with a situation like this one. Should the Committee not have gotten the yardstick or criteria to measure the performance of Dr Luthuli. The Committee incurred wasteful expenditure going through this process only to find out that it was irrelevant. Going forward, could the Committee be on its toes in terms of what was happening/ how it should happen and who was the responsible person? People needed to account for this. This had been a delay for the Subcommittee, and it was not caused by the Subcommittee. She agreed with the other members. The Committee should submit the name of Dr Luthuli onto the list of people who were shortlisted for interviews.

Mr Sibisi said that the Committee accepted the legal opinion which had been tabled. His main concern was about who was supposed to do this initially? Why did the Committee go through this process when it was supposed to have been done 90 days before the expiration of the contract? The person who was responsible for that needed to “shake up”. He highlighted another concern. Dr Luthuli had applied and unfortunately, he was not shortlisted. What criteria was the Committee going to use to include him as candidate 17? He did not think the Members needed to agree for the sake of agreeing to say that Dr Luthuli needed to be included. Dr Luthuli had the same opportunity as the other candidates who applied. Unfortunately, according to what the Committee did, all the Members agreed that he did not qualify. What would make Dr Luthuli qualify now? Was the Committee going to feel pity? It was not like he did not apply. He was applicant 101. If he was fit and proper then, why was his application overlooked? He raised a concern about unfair labour practice. The Committee was being unfair to the 16 candidates. Dr Luthuli had an advantage because he had been in the PSC before and therefore he had to be considered. By not shortlisting him, the Committee was sending a clear message that he was not fit and proper. Suddenly the Committee was saying that he was fit and proper. Was that a fair labour practice? He did not think it was a fair labour practice. It was not the Committee’s fault, but he underwent the same processes as the other candidates. Unfortunately, he did not meet the criteria.

The Chairperson responded to the comments made by Mr Sibisi. It was not the fault of Dr Luthuli that he was not among those who were shortlisted. It needed to be remembered that the Committee was dealing with the renewal of his term of office. Then the Committee got stuck on the issue that it did not have mechanisms of renewing a contract and how it would do that. Hence, the Committee sought a legal opinion on that matter. Now that the Committee had that legal opinion he did not think it would be fair to Dr Luthuli to penalise him for the fault of others. The Chairperson did not want to say here who was at fault. The Committee took collective blame for the sake of Dr Luthuli. This was the fairest way of dealing with this matter by having him being shortlisted and interviewed. That was the best way. The Committee would have to go back to this matter and ensure that the Committee had everything that the law said it needed to have if it had to renew a term of office of a Commissioner.

Ms V Malomane (ANC) supported the view that the Committee adds Dr Luthuli to the shortlisted candidates. The Committee had discussed including him in the list of those who had been shortlisted the previous week. She supported the view that Dr Luthuli should be part of the list of those who should be interviewed. She wanted to check on the legality of it. Were there going to be any challenges if the Committee proceeded? If there were any challenges then the Committee should be advised in the meeting.

The Chairperson said that he was not a legal person but his understanding was that there would be no legal challenges. The Committee had not concluded the processes of shortlisting. The Committee was still shortlisting and it had not conducted any interviews. If the Committee added any candidate at this juncture then he did not think that it would be illegal.

Ms Kibi said that she agreed with the Chairperson. She did not think there would be a problem if the Committee decided to add Dr Luthuli. She discussed the issue of the Committee not having shortlisted Dr Luthuli. All the members had seen the name of Dr Luthuli. What came to her mind at the time was that Dr Luthuli applied but that the Committee was about to renew his contract. There was no point in the Members shortlisting Dr Luthuli while the Committee was going through the process of renewing his contract. It was not because the Committee did not see him as being fit and proper. It was because of the process that the Committee was supposed to have followed of renewing his contract. Therefore, the Committee had shortlisted the other candidates for the two positions. That was the only reason the Committee had not initially shortlisted Dr Luthuli.

The Chairperson asked if there was any other Member who wanted to express a view.  

The Committee Secretariat said that the interviews would be on 17 and 18 February. Members of the Subcommittee were expected to be in Cape Town for those two days because the interviews would be done on the parliamentary precinct.  

The Chairperson said that the Members had to get ready to go back to Cape Town. The Chairperson would be heading to Cape Town on Monday for the State of the Nation Address. All the Members would be in Cape Town on those two dates. The Chairperson thanked the Members for availing themselves for the meeting. He thanked the Committee for the professional way it handled this issue. It was not easy but the Members had risen above any other issue to deal with this matter professionally. He thanked the Members for their work.

The meeting was adjourned.