Public Service A/B & Public Administration Management A/B: Department response to public submissions; with Deputy Minister

Meeting report

Dr Chana Pilane-Majake, Deputy Minister of Public Service and Administration, said that the Department of Public Service and Administration (DPSA) had prepared a detailed presentation on the Public Service Management, Administration Management Bill and the Public Service Amendment Bill. The bills aimed to create an environment that ensured that the public service was professionalised, and that public servants uphold the values and principles enshrined in the Constitution.

Public Administration Management Amendment Bill

Ms Renisha Naidoo, Chief Director: Legal Services, DPSA, provided an overview of the Public Administration Management Amendment Bill, addressing concerns about potential conflicts with existing laws and the need to avoid duplication. She said the Bill respected section 40(1) of the Constitution, which provided that government was constituted as a national, provincial and local sphere which were distinctive, interdependent and interrelated. The Bill therefore sought to enable and strengthen the public administration to promote effectiveness, efficiency, and good governance with a common purpose and better coordination across government without encroaching on the constitutionally identified roles of the different spheres of government. The Bill did not seek to erode existing laws, but rather to leverage the existing frameworks and strengthen them to ensure an integrated public administration system accompanied by a strengthened legislative, governance, and implementation framework. The Bill had been scrutinised to avoid duplication or conflict.

The Act did not refer to “second,” but used the words ‘secondments’ in the heading of section 6, and after that “seconded” and “seconding”. In this context, the ordinary meaning of the words within the context of secondments (the temporary transfer of an official or worker to another position or employment) was used and therefore it was not necessary for a definition to be inserted. The definition in the Bill aligned with the Constitution, but did not provide for the exclusion of a court or judicial officer who would fall within the scope of the prohibition contemplated in section 8 of the principal Act. The definition refers to departments, public schools, municipalities, public entities and institutions performing Constitutional powers or public functions, for ease of interpretation. The transfer provision enabled transfers between municipalities and between the public and municipalities, to allow for the mobility of people and skills to where they may be required without requiring termination of employment (loss of benefits) and reemployment elsewhere.

In terms of secondments:

• The Principal Act already provided that an employee may be seconded without consent, after due consideration of any representation by the employee, if the secondment was justified. The Bill sought to insert the word “operationally” to ensure that secondment was justified in a way related to the work of the affected department.
•  The word “operationally” which was inserted, ssought to avoid arbitrary secondments.
• The ordinary meaning of the word “operationally” (in a way that relates to the work or activities of the institution) applied.

Sections 17A and 17B constitute an impermissible infringement of the right to collective bargaining.

• The proposed new sections 17A and B did not infringe on the right to collective bargaining.
• The wording of both sections clearly indicated that the removal of unjustifiable disparities was subject to the Labour Relations Act (LRA) and collective agreements.
• The purpose of section 17B was to ensure coordination between the different spheres and organs of state. It did not infringe on collective bargaining -- if labour did not agree to the South African Local Government Association's (SALGA’s) mandated offer, the unions were free to go on strike or refer the dispute to arbitration in respect of essential services.

Sections 17A and 17B of the Bill sought to regulate local government matters that infringe on the mandate, scope and jurisdiction of the Minister of Cooperate Governance and Traditional Affairs (MCOGTA). The Bill did not encroach on the jurisdiction of the MCOGTA. Any regulations issued would be done with the concurrence of the MCOGTA. The Minister of Finance (MoF) and the Minister of Public Service and Administration (MPSA) had a role to play in managing finances and coordinating the public administration. In any event, section 71 of the Municipal Systems Act allowed other parties to be consulted. This provision would require the MoF and MPSA to be consulted as a norm across the public administration.

Ms Naidoo closed off the presentation, and said concerns had been raised that the provision impeded the collective bargaining authority of local government. The DPSA was of the view that the provision did not offend the Constitution. If the Portfolio Committee required an alternative provision, the following was proposed around the following principles:

• Section 17B be redrafted to distinguish between the public service, local government and public entities;
• The Committee of Ministers (CoM) be retained for the public service, and the employer be required to obtain a mandate from the CoM before a collective agreement with financial implications was entered into;
• In respect of local government and public entities, it be required that the Minister of Finance and the MPSA be consulted before collective agreements with financial implications are entered into.
• In determining a mandate, before entering into any agreement or before determining conditions of service, employers must consider affordability and any other factor prescribed by the Minister, in consultation with the Minister of Finance.

There had been issues around the constitutionality of the Bill, so Prof Halton Cheadle, Professor of Public Law at the University of Cape Town, had been called upon to share his opinions around the Bill, as well as Sections 17A and B. He had said the issue of constitutionality was to ensure that the Bill was constitutional. He had mentioned the argument that the Bill was an infringement of the right to collective bargaining, but the Department argued that the new Section 17A and B did not infringe on the right to collective bargaining, and this was because both sections indicated that the removal of unjustifiable disparities was subject to the LRA and collective agreements. Looking at the mandating procedure and the consulting procedure, none of them interfered with collective bargaining -- in fact, in the consulting procedure, which was the one presently contained, neither of them interfered with collective bargaining, the mandating stage and the consulting stage preceded collective bargaining. It was important to recognise that the collective agreement was not approved by the Committee of Ministers, but rather the mandate. If labour did not agree with the consulting process, they were free to go on strike.

(See the presentation for more details)

Discussion

The Chairperson thanked Ms Naidoo for the detailed presentation, and opened the floor to questions.

Dr J Nothnagel (ANC) asked why it should be tentative, as the Minister "may" prescribe, and not affirmative, as the Minister "must" prescribe. Could this be adapted, rather than being in the Bill as proposed?

Ms M Kibi (ANC) referred to the secondment clause, and said operational requirements could create instances of abuse, where executives could move to various departments and continuously second senior managers to various organisations. What measure would mitigate this possibility? Also, concerning conducting business with state organs, having relations with clear parameters to mitigate abuse would be necessary. What were the current abuse situations the clause sought to address, and how would the abuse be prevented?

DPSA's response

Ms Naidoo said one of the reasons why the Department used "may" instead of "must" was that when the Department made regulations, there were certain requirements to follow in terms of getting the regulations prorogated. During those processes, it was unnecessary to regulate, so if the Department used the word ‘must’, it meant that the Minister must do it, whether necessary or not. That was the challenge the Department had with the legislation, and hence the wording ‘may’ was preferred. Regarding the abuse of long term secondments, one of the things the Bill did was to ensure that secondments were a temporary measure. The secondments were regulated, and their manner and terms would be done through regulation. The Department proposed that as they moved closer to the finalisation, they would look at measures to ensure the secondments were temporary -- that they were there to solve a short-term need.

Public Service Amendment Bill

Ms Naidoo went on to discuss the Public Service Amendment Bill, and the comments received. One of these comments was removing ambiguity and further clarifying the roles of Ministers, Members of Executive Councils (MECs) and the President, in relation to heads of department (HoDs). The Department had responded that the Bill amended the definition of executive authority to provide for a definition in relation to an HoD which provided that the appointment and other career incidents of HoDs and government components should be dealt with, in the case of:

(a) A head of a national department or national government component, by the President; and

(b) A head of the Office of a Premier, provincial department, or provincial government component, by the relevant Premier.

The powers and functions of MECs were clarified. The Public Service Amendment Bill provided a definition of executive authority as follows:

“Executive authority", in relation to (a), the Presidency or a national government component within the President's portfolio, means the President; in relation to (b):

• a national department or national government component means the President;
• the Office of a Premier, provincial department, or provincial government component, means the relevant Premier;
•  a national department or national government component within a Cabinet portfolio, means the Minister responsible for such portfolio;
• the Office of a Premier or a provincial government component within a Premier's portfolio, means the Premier of that province;
• a provincial department or a provincial government component within an Executive Council portfolio, means the MEC responsible for such portfolio; and
• the Office of the Commission, means the Chairperson of the Commission.

The words “executive authority of a department” and “must” were to be inserted as per the comments and the amendment had been accepted. In clause three, section five, it was proposed that the rationale for the three-year period be included in the memorandum of objects -- the period of three years was contained in the principal Act. The three-year period was aligned to the Prescription Act and the memorandum would be clarified accordingly.

In clause four, section seven, it was proposed that a provision be inserted as section 7(3)(f) as follows:

"A head of the department shall perform the powers entrusted or assigned to him or her free from interference by any political office. Any interference into the independent performance of powers in terms of this section or hindrance of the performance of such powers must be reported directly to the President.” A head of department aggrieved by the actions or undue interference may lodge a grievance in terms of section 35 of the Public Service Act to the Public Service Commission.

The Bill did not provide for the PSC to play a role in supporting these appointment processes. The processes for recruitment were prescribed through regulations. The role of the PSC in recruitment would be considered during the development of the regulations, noting that the PSC had a constitutional oversight responsibility that must not be compromised. There was also a concern that accountability by executive authorities would be diminished, as oversight relied on the flow of information. The Public Service Amendment Bill provided strategic powers to the executive authority and removed administrative powers from the executive authority to enable the executive authority to focus on providing strategic and policy direction. The devolution of this power was to ensure the alignment of the financial responsibility with the human resources (HR) administrative functions. The necessary checks and balances for the delineation of the powers between the executive authority and the head of department had been provided to ensure accountability. Clause 3(7) of the Bill gave the executive authority the power to intervene if a head of department refused or failed to fulfil a power or duty as required in terms of the Act.

Concerning clause 16, there was concern that the provision may not withstand scrutiny, and it had been scrutinised for constitutionality. The proposed provision was different from the Municipal Systems Act, in that the Bill sought to limit only HoDs and those reporting to HoDs from holding political office. "Political office" was defined as the position of chairperson, deputy chairperson, secretary, deputy secretary or treasurer of the party nationally or in a province, region or other area in which the party operated, or any equivalent position irrespective of the title designated to the position. The purpose of the prohibition on HoDs, and employees reporting directly to them, from holding office in a political party was to ensure a clear demarcation of politics from the administrative roles and responsibilities. This sought to eliminate any potential conflict of interest that may arise regarding it related to HoDs and employees reporting directly to them. 

(See the presentation for more details)

Discussion

Ms Kibi said clause 16, which qualified reporting in the context of seniority and hierarchy, was important. What was the view of the Department on the principles that informed the parameters of reporting? What impact would the resolution have on the functioning of the executive authority?

Dr L Schreiber (DA) referred to the prohibition on holding political office, and said submissions had been received recommending that the definition be expanded to include MECs, and he would like to hear the Department’s response to that request.

Dr Nothnagel referred to clause 18, and asked what the proposal and implication of the Department was in relation to the advice of the Office of the Chief State Law Advisor.

DPSA's response

Ms Naidoo said that the issue of holding political office and the issue of where conflict would arise had been debated, because it impeded and affected people’s rights to belong to political parties. The Department had ensured that the provisions were brought within the constitutional parameters, and had looked not only at seniority but also at the abilities of HODs, and persons reporting to them, in terms of financial responsibilities and their decision-making responsibilities, as there tended to be a conflict between those two.

Regarding Dr Schreiber’s question, the Department had not looked at the furtherance of that provision, but perhaps it would in the future.

Ms Yoliswa Makhasi, Director General, DPSA, responded on the meaning of the term "political office," and said that it was defined as the "position of chair, deputy chair, secretary, deputy secretary, treasurer of the party, national province or region or any other equivalent, or any other equivalent position."

Regarding Dr Schreiber’s question, the prohibition on political office included those who were members of the executive committee of a political party. The "other equivalent position’ implied executive membership as well.

Deputy Minister's closing remarks

Dr Pilane-Majake expressed her appreciation for the opportunity to share all the comments that had been expressed on the Bill. The purpose of the Bill was to develop an ethical, effective, efficient and well-resourced public service. The intention was to harmonise government services, and in the process of doing so, the Department needed to correct certain aspects of the legislation that may cause other problems.  

The meeting was adjourned.