Members welcomed the briefing by the Committee's content advisor and researcher in a virtual meeting on the public submissions received on the Public Administration Management Amendment Bill and the Public Service Amendment Bill, as they felt there was a lack of legislation regarding local government employees.
They emphasised the importance of barring state employees from conducting business with government, and urged the Department not to leave any gaps in this regard. They were concerned over the ‘cooling off’ period included in the Bill, and questioned whether it was not too excessive. It was pointed out that a submission by the City of Tshwane in the original document had been left out in the summary. The Committee was most concerned over provisions in the Bill that sought to encroach on the powers of local government, particularly regarding human resource processes. Members questioned the constitutionality of compromising the autonomy of municipalities and local government in general.
Members welcomed submissions that concerned the political rights of members in executive committees. The Committee felt it important that no contradictions or gaps occurred when prescribing the role of the Public Service Commission, as well as how it related to the Public Service Act amendments.
The Chairperson said she would hand over to the Committee content advisor and researcher to take Members through the submissions from individuals and organisations regarding the Public Administration Management Amendment Bill and the Public Service Amendment Bill. This was so they may prepare themselves for the next leg of processing the Bills, which would take place in October. After oral submissions were received, the Department of Public Service and Administration (DPSA) would be given a chance to respond to the written and oral submissions. The Committee had invited the Department to the meeting so they may listen to the submissions and the analysis by the content advisor and researchers.
Submissions received on Public Administration Management Amendment Bill
Mr Mlungisi Biyela, Committee Researcher, took the Committee through submissions for changes to be made to clauses in the Bill.
Western Cape Government - Proposed that a definition for the term “second” be included in the Bill.
City of Cape Town - The System Act followed the constitutional definition, and so the Municipal Finance Management Act (MFMA) by implication. “Organ of state” meant an organ of state as defined in section 239 of the Constitution. The reason for using a more restrictive definition in this Bill was not explained.
Nomfondo Tefu – Proposed expanding the clause to include “transfer should not interrupt employee’s continuity of employment.”
Local Government Advocacy Learning Network – Noted the problem in practicality of transfer of local government employees to national/provincial government, due to different mandates.
Western Cape Government – Clarity was required on who would bear any resettlement costs.
National Education, Health and Allied Workers Union (NEHAWU) – The amendments were prejudiced against employees in the public service, and there may be personal reasons as to why an employee may not be able to be transferred.
Congress of South African Trade Unions (COSATU) – The transfer of employees was a matter of great concern to workers, as it could result in unnecessary litigation.
NEHAWU – Rejected the proposed amendment, as there must be alignment of section 5 and 6 in terms of its wording.
Western Cape Government – Noted there was no elaboration of what may be considered “operationally justified.” The term was also not defined in the Bill.
NEHAWU – Welcomed the principle of restricting an employee’s ability to conduct business with the state.
Western Cape Government – Proposed that “ex-office” be classified to include employees nominated to serve on the boards of state-owned companies (SOCs) by members of the executive.
Public Affairs Research Institute (PARI) – Welcomed the classification of terms used in this section, but suggested the section be strengthened to safeguard the public administration from corruption.
COSATU – Supported the amended provision of the Bill.
Nomfondo Tefu – Clause 6 contradicted existing rights in the constitution and labour legislation.
Western Cape Government – Suggested the limitation period not be 12 months of the conclusion of the contract, but rather up until termination of the contract and a further 12 months thereafter.
PARI – Supported the ‘cooling off’ period in the Bill.
City of Cape Town - The Supply Chain Management Regulations provided for Committees of officials i.e., a bid specification Committee, a bid evaluation Committee, and a bid adjudication Committee. Singular employees did not "set criteria," or "evaluate or adjudicate." It was suggested that this clause was amended to refer to "an employee who was a member of, or provides administrative support to, a Committee that..."
Western Cape Government – Suggested the duty to disclose be limited to employees who may have certain influence and those of a certain employment level.
PARI – Proposed that the clause be amended to include employees of public entities.
NEHAWU – Rejected compulsory training as a prerequisite for employment.
Western Cape Government – Noted the amendment required making a budget available for development needs.
NEHAWU – There was no need to create another Department. This function should be allocated to the Department of Higher Education and Training.
Western Cape Government – Proposed the word “may” in section 11(2A) be replaced by the word “must.”
NEHAWU – Rejected the amendments to sections 9, 11 and 12 in their entirety without providing reasons.
NEHAWU – Rejected the proposed amendment.
NEHAWU – Rejected the amendment that seeks to remove the obligation of the Minister to consult with an executive authority when prescribing norms and standards.
Western Cape Government – Proposed section 18 be amended to afford the Minister the power to make regulations on norms and standards.
NEHAWU – Rejected section 17A in its entirety, stating the collective bargaining process should be more fleshed out in this section.
Western Cape Government – Recommended clarity be expressly provided for the term “unjustifiable disparities.”
PARI – Supported the introduction of developing norms and standards in the public sector.
COSATU – Welcomed the provision that empowers the state to place limits on senior personnel outside the collective bargaining processes.
South African Local Government Bargaining Council (SALGBC) - Section 17A and 17B of the Bill also seeks to regulate local government matters which infringe on the mandate, scope and jurisdiction of the Minister of Cooperative Governance and Traditional Affairs.
NEHAWU – Rejected the amendment, as the Act contradicts the constitution.
COSATU – Supported the provisions outlining ministerial coordination.
(See presentation for full details)
The Chairperson thanked Mr Biyela for a detailed presentation, and gave an opportunity for Members to deliberate on the presentation.
Ms M Ntuli (ANC) said the Bills required greater expertise, but Members had a very good understanding of what was happening on the ground. This Bill would assist a lot on the issues lamented by the Committee, seeing as there was a lack of legislation pinning down those employees. Regarding conducting business with government, she hopes the Department would fine-tune the Bill in terms of the officials so that there is no gap or exemption in this regard. Did the Bill concern only private services? For instance, could university professors, who fall under the Department of Higher Education, offer their services to government without remuneration? She said the ‘cooling off’ period prescribed in the Bill was quite extensive. Did the ‘cooling off’ period apply to former government employees working in departmental boards?
Dr L Schreiber (DA) said there were comments on this Bill submitted by the City of Tshwane that were not reflected in the analysis. He asked that they look into this potential omission, and reconsider the submission.
His main concern was related to all the provisions that seek to exercise control or influence human resource processes at the municipal level. There was a very serious question regarding the constitutionality of these provisions. It was important that the Committee be reminded that the constitution very specifically designates the local sphere of government as autonomous. Section 156 states that a municipality has executive authority regarding a whole range of government matters. Section 153 states that a municipality must structure and manage its own administration, budgeting and planning processes. The public service was a subset of public administration. Public service relates to national and provincial government. The Committee could not have a situation where there was a constitutional question hanging over this Bill for any of the clauses that impede or intervene in matters that were the constitutional domain of local government.
Ms M Kibi (ANC) asked for clarity on the submission by the Western Cape Government. Was this a submission by the provincial government?
Ms R Komane (EFF) said the proposed Bill would disadvantage some of the functions carried out by municipalities. She said the Bill needed to be reviewed on its constitutionality, considering the constitutional obligations given to municipalities. After that, they would need to be guided by the content advisor as to how municipalities could be left to their own affairs.
The Chairperson said she had noted the issues raised by the Members. The Department would be given an opportunity to respond to the submissions and the discussions of the Committee. She afforded Mr Biyela and Mr Julius Ngoepe, Committee Content Adviser, a chance to respond to the questions and comments.
Mr Biyela welcomed the comments of Members, and said further clarity would be given as the process continued, and when the Department addresses the Committee.
Mr Ngoepe said he would respond to the question regarding the submission by the City of Tshwane. When they released the names of the institutions that had submitted, they made a note regarding the submission by the City of Tshwane. The submission was only a letter, and was not specific to any clauses in the Bill. Therefore, it was not included in the analysis. He added that the Bill did not intend to encroach on the powers of municipalities, only to ensure that the national government could facilitate cooperation between the different spheres of government.
Ms Chana Pilane-Majake, Deputy Minister of Public Service and Administration, welcomed the submissions, saying she looked forward to more public input on the Bill so that they may facilitate the process. She asked whether the summary report concerned a section 75 or section 76 bill. The Public Service Act afforded the involvement of provinces, and this might mean it was a section 76 bill. What was most important regarding the Bill was the interface between the executive and the administration, besides the fact that there was the dissolution of certain powers of the administration.
Mr Given Mditshwa, Director, National School of Government (NSG), said the NSG had noted an omission they had made in the Bill. For instance, they had made provisions only for tests and excluded examinations by the National School of Government. They would require leave to submit minor amendments for section 11. They also noted the corrections that needed to be made.
Mr Ngoepe said both Bills were classified as section 76, not section 75.
The Chairperson said they could move on to the next agenda item.
Submissions received on Public Service Amendment Bill
Suid-Afrikaanse Onderwysers Unie (SAOU) – Supported the definition of executive authority in the Bill, as well as the definition of political office.
NEHAWU – Also supported these definitions.
PARI – Proposed that the related clauses be amended.
SAOU – Supported the amendment in section 2.
Western Cape Government – Proposed section 3 be removed, as it was administrative in nature, and the executive authority should be responsible for providing direction to the Department.
PARI – Proposed section 3 be clarified by inserting the executive authority. If heads of departments refuse to fulfil their duties, the executive authority may intervene to ensure the fulfilment of duties.
SAOU – Supported the amendments in section 5.
NEHAWU – Proposed amendments that would limit tension between the executive authority and heads of departments.
Western Cape Government – Proposed the memorandum should provide the rationale for setting the three-year period.
SAOU – Amendment of section 7 was supported. Heads of departments should perform powers free from interference from political office.
Western Cape Government – Recommended heads of departments should be responsible for intergovernmental relations between provincial departments.
PARI – Supported the proposed amendments to section 3(7).
SAOU – Substitution of executive authority with heads of department in this section was supported.
Western Cape Government – Removing responsibility from the executive authority would detract from the executive authority’s accountability for delivery.
NEHAWU – The clause contradicts existing provisions and may cause conflict.
Western Cape Government – The executive authority must retain decision-making powers of human resource management.
SAOU – Section 14 of the Public Service Act had been repealed by section 19 of the Public Administration Management Act of 2014.
NEHAWU – Current circumstances of public service employee transfers were already covered in the Public Administration Management Amendment Bill (PAMAB).
Western Cape Government – Suggested the proposed amendment of section 14 of the Principal Act should have only one statute that deals with employee transfers, to avoid inconsistency.
SAOU - The Department must provide clarification in terms section 14 of the Public Service Act, repealed by section 19 of the PAMAB.
Western Cape Government – Proposed section 14(A) be mirrored in section 15 of the Principal Act.
SAOU – Propose the substitution of "officer" with "employee," "executive authority" with "head of department," and "office" with "post."
Western Cape Government – Proposed that “mutatis mutandis” be replaced with “necessary changes required.”
Western Cape Government – In the absence of a delegation by the President, an executive authority would have the power to take disciplinary action against their head of department. They proposed that the clause be redrafted.
PARI – The Bill should clearly assign powers to dismiss heads of department on grounds of poor health, poor performance, and operational requirements.
Western Cape Government – Proposed that the clause be amended to include an appeal measure.
Western Cape Government – The clause gives heads of departments authority to approve allowances, thereby removing this power from an executive authority.
NEHAWU – Rejected the amendment due to a number of posts that remain and would remain unfilled.
Western Cape Government – Positions where the post was not vacant should be clarified in the Amendment Bill.
Coordinator of Local Government – Concerned there was no mention of time periods to lodge grievances.
SAOU - In as much as the amendment to the subsection was supported, it was not clear how the amendment confers powers to the Minister as indicated in the memorandum on the objects of the Bill.
NEHAWU - Proposed that the Commission’s powers be subjected to any applicable collective agreement which seeks to regulate the procedure relating to grievances.
Mr T Nzuza - The specific concern was that the prescribed prohibition of re-employment periods did not provide for a minimum time that must be served in outside employment before something like "parole" -- a kind of administrative action -- may be considered, as was the case for sentenced offenders.
Western Cape Government – Constitutionality of the provision had not been confirmed. Recommended Parliament’s legal team consider the constitutionality of the provision.
PARI - Proposed that the definition of political office be extended to include a party’s executive committee membership.
NEHAWU - Proposed that the head of department be granted the power to determine higher salaries and special advancements. It was not clear how this would be monitored.
SAOU - The Act should provide for a procedure that precedes legal proceedings, or such procedure may be contained in regulations. The fact that the Act complies with the Basic Conditions of Employment Act (BCEA) does not mean that public servants would not be subjected to unnecessary and unaffordable legal action.
NEHAWU – Opposed the amendment, as an agreement from the employee was required.
COSATU - Proposed that the Bill reinsert agreed provisions in the Bill, as signed at the National Economic and Development Labour Council (NEDLAC) by government, labour and business.
See presentation for details.
The Chairperson thanked Mr Ngoepe, and asked if Members had any questions or comments.
Dr Schreiber said he really liked the proposal from PARI to look at the membership of executive committees in the clause concerning political rights. This was a very constructive suggestion. Mr Biyela’s analysis of that process had also been correct. The constitutionality of the process had already been questioned when it came to the Municipal Systems Act, so the Committee was on safe ground regarding that clause. He said they could look at the proposal of PARI to include membership of executive committees. It was worth noting the final comment by the Helen Suzman Foundation regarding the Public Service Commission. There would be an overlap when they got to that Bill. As they moved forward, it was important not to have contradictions or gaps where they envisioned a role for the Public Service Commission, and how that would relate to the Public Service Act amendments.
Ms Ntuli welcomed the presentation, and said it had enlightened Members on the clauses concerning the Bill.
The Chairperson said there would be more deliberations on the Bill next month when they took oral submissions. She asked the Committee to familiarise themselves with the analysis of the submissions to prepare themselves for the deliberations next month.
They would adopt the minutes of the meeting during next week’s meeting.
The meeting was adjourned.
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