PSC investigation reports submitted to WCPP

Premier & Constitutional Matters (WCPP)

12 August 2022
Chairperson: Mr C Fry (DA)
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Meeting Summary


The Western Cape Provincial Standing Committee on the Premier and Constitutional Matters met virtually to be briefed by the Public Service Commission on investigative reports into Western Cape departments. Three complaints concerned the provincial Department of Health and Wellness involving three hospitals: Eerste River, Stellenbosch and Red Cross. The grievances were the alleged assault of a patient by a staff member, the rape of a minor by a patient, and a lack of maintenance. The investigation from the Department of Education involved financial mismanagement at Tafelsig Primary and Walmer Secondary School. At the same time, there was an investigation of irregular appointment of the Head of Department.

The Committee asked for a full report on the nature of these grievances.

The term of office for the Western Cape PSC Commissioner ended on 30 September 2022. The Committee asked what would happen if the post was re-advertised. Would the current Commissioner be eligible to apply? Were the Labour Equity Laws considered during the new Commissioner's appointment? The Committee asked if they require the approval of the Premier to appoint the Commissioner if they decide to renew his appointment.

Mr Christopher Fry was elected as the new Chairperson of the Standing Committee.

During discussion on the Committee programme, some Members expressed concern that the Committee was not meeting as regularly as it should, considering the important matters before the Committee, particularly concerning legislation.

Meeting report

Election of Chairperson
Ms Waseemah Kamish-Achmat, Procedural Officer, asked the Committee to nominate a Chairperson according to Standing Committee Rule 82 (1).

Ms D Baartman (DA) nominated Mr C Fry (DA).

Ms W Philander (DA) seconded the nomination.

There were no further nominations, and Ms Kamish-Achmat congratulated Mr Fry on his new position.
Mr Fry thanked the Committee Members for electing him.

Public Service Commission investigation reports
Mr Leonardo Goosen, Commissioner: Public Service Commission (PSC), said the PSC was an independent body that was established in terms of Chapter 10 of the Constitution to provide oversight over the public service. It conducted research, investigations and inspections, and also provided advocacy to maintain an effective and efficient public administration and a high standard of ethics.

The presentation highlighted complaints from three hospitals under the Department of Health and Wellness, Western Cape. These were:

Eerste River - Alleged patient assault by the staff member.
Stellenbosch - Rape of a minor (girl) by a patient.
Red Cross - Lack of maintenance of staff quarters and nepotism.

(Please consult the presentation for further details on these cases and the resolutions.)

There were also three investigations at the Department of Education. These involved:

Tafelsig Primary School - Financial mismanagement.
Walmer Secondary School - Financial mismanagement and irregular staff appointment.
Head Office - Irregular appointment of a Head of Department.

(Please consult the presentation for further details on these investigations and the resolutions.)

The Chairperson asked Mr Goosen to share the statistics and the terms of reference for the PSC Commissioner's term coming to an end.

The Western Cape term of office of the Commissioner ended on 30 September 2023. The provincial Parliament was urged to initiate this process soon, as early as 30 November 2022. There were two pathways for the position -- renewal of the term or advertising the position.

Mr C Dugmore (ANC) asked for a full report on the nature of the grievances. He asked the Committee to discuss the matter of the renewal and advertising of the Commissioner post. He wanted to know what would happen if the Committee decided to re-advertise -- did that imply that the current incumbent/commissioner was not allowed to apply?

Mr P Marais (FF+) asked how the Labour Equity Law affected the person who would be appointed. Did the Labour Equity Act apply? Could the appointed person always be of one culture or language group? Was equity applied when the person was appointed?

PSC's response

Mr Goosen said that the report on the grievances and complaints would be made available to the Standing Committee. He said nothing precluded the current serving Commissioner from applying and competing with other candidates. It had, in fact, happened in other provinces and nationwide, prior to the amendments in 2019.

Regarding the labour equity laws, he said that the Committee had to note that the Public Service Commissioners were not regarded as employees -- it was a presidential appointment on recommendation, so the equity issues did not apply. He was certain that the equity issues had been addressed by the Speaker at the national level concerning the makeup of the Commission. He said that the Standing Committee might choose not to accept the decision.

The Chairperson asked for the labour law equity issue to be scheduled for the medium term agenda.

Follow-up questions

Mr Marais said the built-in clause stated that the Commissioner must be appointed on the Premier's recommendation. What if the Premier and the President could not agree on the appointment? Did the President forcefully appoint somebody, even if the legislature in the Western Cape did not consider that candidate suitable? Did the President overrule the Premier's decision?

Mr Goosen responded that he did not have the capacity to answer that question, because it was a legal issue. He said that the renewal of the Commissioner was a strange anomaly, because the legislature recommended it at a provincial level. However, the President appointed a Commissioner.

Mr Dugmore asked what would happen if the Committee decided to renew the appointment of the Commissioner, based on the legislature's agreement. Did they have to ask for the Premier's approval? He said he appreciated the thoroughness of the report from the PSC.

Adoption of minutes

Committee minutes dated 27 July were considered and adopted.

Consideration of draft Committee programme

Ms Kamish-Achmat said that she had not circulated the revised draft programme because there was a handover [of Chairpersons]. Members could add or delete any matters they wanted to discuss.

Mr Dugmore stressed that the Committee had been very inactive and had a huge backlog regarding legislative matters central to the Committee's work. There had been a public hearing for the environmental commissioner issue, and there had been talks of having a few more. He was unsure if that was on the programme, so he would prefer the draft to be circulated and Members would respond via email. He would be "very uncomfortable" if they had a full discussion now.

The Chairperson said that he had been briefed on the outstanding Committee's legislative work, and believed the Committee had to be true to their name, and address the outstanding constitutional matters. They had been addressed in the draft programme, but he would sit with the Procedural Officer the next week and open that report by the end of next week to prepare for the 26 August meeting. He assured Mr Dugmore that the outstanding matters would receive attention. He added that he would confirm the draft business plan early next week and ask the Procedural Officer to circulate it amongst the Members.

Mr Marais supported Mr Dugmore's view that the Committee was not as functional as he would have liked it to be. He said that enlarging the legislation was a vital issue that needed constitutional amendments. Could more attention be given to the regularity of these Committee meetings?

Mr Dugmore said there was an urgent need for the Committee to decide on the two options outlined regarding the Public Service Commissioner and the processes. Could the urgent resolution of the Committee's approach to the two options be included in their programme of action?

Committee resolutions/actions
The Chairperson asked if there were any resolutions or actions to be adopted.

Mr Dugmore said that the deadline for the detailed written report on the Public Service Commission grievances must be noted, adding that the Committee normally gave a month for these kinds of reports to come in.

Ms Kamish-Achmat said that the information had not been circulated and was not part of the pack of any reports submitted to the Committee. The Committee may request the list of reports and the nature of the grievances.

Mr Marais said that the Committee must be reminded that there were clauses in the Public Service Commission's constitution that highlighted the action to be taken should there be any unresolved issues. In the future, there would be a time when the Committee did not agree with the appointment of the Commissioners by the President. What would happen if the provincial and national legislation was not in agreement? The constitution did not invalidate the provincial decision over the national.

Mr M Xego (EFF))) welcomed and appreciated the manner in which the Chairperson dealt with today's meeting, and hoped for a very cooperative arrangement going forward. He wished there could be no tug-of-war between the national and provincial governments on service delivery issues.

Mr Dugmore echoed Mr Xego's words, and added that they were fortunate that the country had a Constitution that clearly delineates the roles of the legislature at the national and provincial executive level, and the judiciary. If such disputes were to emerge, the Constitution would resolve them through inter-governmental routes, otherwise a decision could be taken to the courts for revision.

The Chairperson said that he would familiarise himself with the previous minutes, resolutions and other Committee-related business, and would come back to the Committee with the programme he would devise with the Procedural Officer, including possible options.

He thanked the Committee for their warm welcome and said he was looking forward to a productive and collaborative working experience with the team.

The meeting was adjourned.


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