Public Service A/B & Public Administration Management A/B: CLSO on constitutionality of bills & NSG Input; with Deputy Minister

Meeting report

Deputy Minister's overview

Dr Chana Pilane-Majake, Deputy Minister of Public Service and Administration, said the meeting would focus on assessing the constitutionality of two Bills -- the Public Service Amendment Bill and the Public Administration Management Amendment Bill. On 16 October, the Minister corresponded with the Chairperson of the Portfolio Committee, offering recommendations for further amendments to the Public Administration Management Amendment Bill. These proposed changes pertained primarily to the second section of the Bill, addressing the National School of Government's (NSG's) role as a government department responsible for providing education, training, and development within the public sector.

During the presentation, the NSG would primarily address the proposed amendments, specifically focusing on clause 11 of the Bill. The amendments put forth by the Department specifically concern the administration of examinations or tests, and the issuance of certificates.

Public Administration Management A/Bill

Ms Telana Halley, Parliamentary Legal Advisor, said the Office had considered the legal and constitutional issues raised in the oral submissions that took place on 18 October 2022, and the purpose of this presentation was to address only the legal and constitutional issues. Policy issues had been left to the Executive to address.

Drafting issues raised in the submissions were related to definitions of terms such as secondment, organ of state, operational, justified, and ex officio.

Constitutional and interpretation issues and questions raised in the Bill involved the following clauses:

• Clause 2 – Amendment to section 5: Individual Transfers. Did the amendment to section 5 mean that all the requirements in s5(2) (a) – (d) would need to be present to transfer an employee? Would an employee be transferred only if he or she requested to be transferred? Who did the onus of the transfer rest on?
• Clause 5 of the Bill: Amendment to section 8 – conducting business with organs of state. The section 8(1) amendment included “directors,” meaning a director who was a director of a company as defined by section 1 of the Companies Act, 2008.This therefore meant that it included directors who were directors of non-profit organisations (NPOs).
• Clause 6 of the Bill: Section 8A – new insertion. Section 8A restrained trade of a former employee and infringed constitutional rights.
• Clause 7 of the Bill: Amendment to Section 9. Insertion of definition 9(3) – “employee” should be extended to include a person contemplated in section 12A of the Public Service Act (PSA) -- public entities -- and someone performing a similar function in a municipality.
• Clause 8 of the Bill – Section 10. The amendment prescribed that the head of the institution must make a budget for compulsory education and training to develop the needs of any category of employees.
• Clause 14 of the Bill: New 17A – Removal of Disparities in Public Administration. What were unjustifiable disparities? Should there not be a definition for this?
• Clause 14 of the Bill: New Section 17 B. Did 17B limit the bargaining power of a municipal employee and employer and undermine the autonomy of municipalities, therefore conflicting with existing legislative measures and creating tension between these matters? Did 17B infringe on the mandate of the Minister of Cooperative Governance and Traditional Affairs (COGTA)?

Public Submissions on PAMA Bill: NSG’s Response and Proposed Changes

Mr Given Mditshwa, Director, National School of Government, presented the NSG's response and proposed changes to the Public Administration Management Amendment (PAMA) Bill.

He said the NSG wished to confirm that the Minister welcomed and accepted the proposed changes to sections 11(2)(c) and 11(2)(f) of the PAMA bill, wherein it was proposed that the discretionary word “may” be replaced with the peremptory word “must,” to entrench the legislative mandate of the NSG. This had a bearing on the mandatory requirement of government to provide education and training programmes, conduct examinations, recognise non-formal education through skills development training, and award certificates of qualifications.

It was also proposed that a number of definitions be added to the Bill, covering "certificate," "education and training programme," "education laws," and "qualification or part-qualification."

(See attached presentation)

Public Service Amendment Bill

Ms Thiloshini Gangen, Parliamentary Legal Advisor, delivered a presentation which sought to address the concerns relating to the constitutional content of the Bill, and referred to Clauses 16 and 18:

• Clause 16 – Insertion of a new clause 36A – Limitation of Political Rights. Clause 16 sought to insert section 36A to the Principal Act to prohibit heads of department and employees reporting directly to a head of department from holding an office of authority in a political party. The purpose of the prohibition was to ensure that there was a clear demarcation of politics from the administrative roles and responsibilities. This sought to eliminate any potential conflict of interest that may arise in so far as it related to heads of department and employees reporting directly to a head of department.
• Clause 18 proposed to amend section 38(1)(a) of the Public Service Act to provide that a head of department (as opposed to the relevant executive authority) shall correct an incorrect salary, salary level, salary scale or reward that was awarded to an employee. Clause 18 also sought to amend section 38(2)(b)(i), which was declared unconstitutional by the Constitutional Court in the matter of Public Servants Association obo Ubogu v Head of the Department of Health, Gauteng, and Others.

(See attached presentation)

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Discussion

Dr L Schreiber (DA) responded on the constitutionality of the Public Administration Management Bill, stressing the Bills’ implications for the local government sphere. Legal advice had clarified that extending the influence of the Ministry of Public Service and Administration (PSA) into the local government sphere would be deemed unconstitutional. He emphasised the potential for this Bill to spark conflict concerning the expansion of the Department of Public Service and Administration's (DPSA's) authority and its impact on specific human resources practices.

The potential parties involved in this conflict might include the DPSA, various local municipalities, and potentially the Ministry of Cooperative Governance and Traditional Affairs (COGTA). There was a pressing need for a thorough reassessment of the Bill’s approach, particularly related to Clause 17 and other sections of the Bill, that suggest its applicability to the local government level. The Constitution explicitly safeguards the autonomy of local governments, making it crucial to prevent any potential conflicts.

To avert such conflicts, it was advisable for Legal Services to provide clear indications that the Bill did not grant additional powers to yet another national government minister in the local sphere.

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Ms M Kibi (ANC) asked the NSG about the most suitable and comprehensive terminology to use in the context of "may" conduct examinations, tests, or course evaluations pertaining to educational and training programmes. What was the optimal way to describe these assessments, including examinations, tests, and evaluations?

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Regarding the parliamentary legal advice concerning Clause 7 of the Bill, which involved an amendment to Section 9, it was essential to determine the extent of the consequential amendments required. Had the Parliamentary Legal Service conducted an assessment to identify the acts or entities that would be affected by these amendments?

She also asked about the restrictions on former employees and potential infringements on constitutional rights, specifically referring to Section 8A - Clause 1. What were the proposed parameters that the Parliamentary Legal Service believed should define the limitations on employees to be restrained?

Dr J Nothnagel (ANC) inquired about Clause 5 of the Bill, which pertained to the amendment of Section 8 concerning ‘’conducting business with organs of state’’. She asked whether the Parliamentary Legal Service had identified any potential risks associated with directors of NPOs engaging in business transactions with organs of the state.

Ms R Komane (EFF) restated her concerns regarding the possible conflict and legal disputes between COGTA and the Ministry of Public Service and Administration. She also sought further clarification on the boundaries of local government autonomy, specifically in terms of where it begins and ends.

Dr M Gondwe (DA) urged the Parliamentary Legal Service to ensure that the Committee received the Public Service Amendment Bill presentation by the close of business. This was crucial, as the presentation would be needed for tomorrow's deliberations within the Committee.

The Chairperson requested that the presentation in response to the DPSA from the Legal Services be distributed to the Members, to enable them to critically evaluate it. Without prior access to the presentation, it would be challenging for Members to raise questions and concerns during the meeting.

Responses

Ms Halley, in response to concerns regarding litigation and potential conflicts between the DPSA and COGTA, emphasised that Clause 17, Section 8, did not encroach on the municipality's power to enact regional legislation. The Parliamentary Legal Services was aware of the limitations of the municipality's authority to govern, as outlined in the presentation. Clause 17, Section 8, should accurately reflect that its sole purpose was to enhance the municipality's capacity to manage its own affairs.

Regarding the Legal Services' proposal for a redraft, the entity was not currently inclined to propose a redraft, as the Committee had not yet deliberated or reached an agreement on a redraft of Clause 17A. There had been no resolution to redraft that section. However, if there was a decision to redraft the section in the future, Legal Services would consider the various proposals made in this Committee and present the redrafted outcome to the Committee.

She said Legal Services had not conducted an impact assessment concerning public entities, as the authority to include public entities fell under the jurisdiction of the DPSA. However, it suggested that incorporating public entities would require an extensive amount of legislative oversight and might involve considering numerous consequential amendments.

Regarding Clause 5, Legal Services believed that the risk associated with conducting business with NPOs was a matter of content and policy, and the entity had not assessed the risks involved in doing business with NPOs. The DPSA made the decision to include NPOs to prevent employees from receiving remuneration even from non-profit organisations.

Ms Faith Nyaka, NSG, clarified the appropriate and all-encompassing term for "assessment." She emphasised that "assessment" was the correct term, because it encompassed formal assessment, which included tests. Practice included projects, practical assessments, and summative assessments, which referred to examinations. The current assessment model used by the NSG included portfolios of evidence, practical work, and support. Therefore, the most suitable term to include was "assessment," because it covered both tests and examinations.

Deputy Minister's closing remarks

Deputy Minister Pilane-Majake acknowledged that the Department was making significant progress in professionalising the public service and building capacity for the state to deliver services more effectively. The DPSA noted concerns regarding potential conflicts and the need for guidance in the Committee's deliberations. The Department would continue to make themselves available for further technical advice to refine the Bill.

The Deputy Minister reiterated that the Department would thoroughly review the interface of administration and the state to avoid and mitigate any risky policies. The DPSA would also ensure close collaboration with COGTA and the NSG.Top of Form

Top of FormThe meeting was adjourned.