Public Service A/B: Public Hearings Report, Motion of Desirability and Deliberations

Meeting report

The Chairperson said the meeting would adjourn earlier than scheduled because they had a physical sitting to attend in Parliament. Consequently, they would not be able to adopt the Bill on that day, but they would discuss it clause by clause.

Draft report on Public Service Amendment Bill [B13-2023] public hearings

Mr Julius Ngoepe, Committee Content Advisor, presented the draft report on the two public hearings on the Public Service Amendment Bill held the previous week.

The report encompassed both the oral and written submissions to the Portfolio Committee. Its purpose was to serve as a means of documenting the public participation process. They would be able to provide this information to the President if necessary.

The Committee went through the draft report, page by page.

Ms M Kibi (ANC) expressed her view that the report seemed clear and had no apparent corrections.

Ms M Ntuli (ANC) concurred with Ms Kibi, and proposed the adoption of the report.

The report was adopted without any corrections.

Motion of desirability of PSA Bill

Mr Ngoepe explained that it was standard parliamentary procedure for a Committee to conduct a motion of desirability before discussing a Bill clause by clause. If the Bill was deemed undesirable, it would not be discussed. Conversely, if it was deemed desirable, the Committee would proceed with the clause-by-clause deliberation of the Bill.

He elaborated that the report provided a brief background, highlighted the clauses, and underscored the objectives of the PSA Bill. Additionally, he indicated that the Committee had undertaken the public participation process through both written and physical public hearings in Parliament.

The Chairperson said that the Committee Members had participated in the public hearings and received both written and oral presentations. She mentioned that there were stakeholders and individuals supporting the Bill, but had expressed certain concerns. The Department had addressed these concerns in the presentation on the previous day. The Committee now had to agree or disagree with the motion of desirability to proceed with the report.

Ms Ntuli said that, based on the Committee's journey, she found the Bill desirable.

Dr M Gondwe (DA) said that the DA reserved its position regarding the desirability of the PSA Bill.

Ms S Maneli (ANC) seconded the desirability of the report.

Ms Kibi agreed with Ms Maneli.

The report was adopted by the Portfolio Committee, with the DA expressing its reservation.

Clause by Clause Consideration: PSA Bill

The Chairperson repeated that they would not be able to adopt the Bill on that day due to time constraints, which would prevent them from completing a thorough review of all the clauses. However, the Committee would resume the following week.

Mr Ngoepe said the Committee would discuss the bill clause by clause, making the necessary amendments. The parliamentary legal service would work concurrently on amending the Bill itself while the Members deliberated.

The Committee's support staff compiled all the responses from the Department and the parliamentary legal service, and incorporated them into each clause for deliberation.

He also informed them about the colour scheme used in the document, which could be found on the last page. Blue denoted no amendment, green signalled that the Committee should deliberate, and black indicated the need for additional emphasis on a clause.

Clause 1 – Definitions

There were no suggested amendments for this clause.

Dr L Schreiber (DA) sought clarification on the meaning of 'executive authority' within the Bill. He explained that when the Bill mentioned executive authority in relation to the national government, it referred to the President. In the context of a national government component, it referred to the Minister. In the provincial government, it meant the Premier, and within a specific government Department, it referred to the relevant Members of Executive Councils (MECs). Dr Schreiber emphasised the importance of clarifying this, as it could imply a change in the formal appointing authority within a government department.

Ms Renisha Naidoo, Chief Director: Legal Services, Department of Public Service and Administration (DPSA), responded by agreeing with Dr Schreiber's definition of executive authority. Regarding the amendment, she mentioned the intention to include an additional definition. Regarding a national department or government component, 'EA' referred to the President, and in a provincial context, it refers to the relevant Premier.

She explained that they maintained the remaining provisions, where 'EA' signified the President for the presidency, the Minister for a national department or a national government component, the Premier for the office of a premier or a provincial government component, and the MEC for a provincial department. For the office of the Public Service Commission (PSC), 'EA' refers to the chairperson. They had included this additional definition in the Bill.

Dr Gondwe expressed her gratitude to Ms Naidoo for the clarification, citing concerns raised in both written and oral submissions about the lack of clarity in the Bill's current form.

Clause 2 – Power and duties of the Executive Authority

The Department agreed to the proposal of inserting the words 'executive authority of a Department' and 'must' into subsection 3(9)(a)(ii).

Dr Gondwe expressed satisfaction with the subsequent amendments made by the Department. However, she pointed out a concern regarding the absence of provisions in the Bill dealing with scenarios where the executive authority (EA) failed in the execution of their duties. While the clauses addressed instances where the Head of Department (HoD) fails, there was no similar provision regarding the EA. She recommended the inclusion of such a provision in the Bill.

Ms Naidoo directed Dr Gondwe to section 16(A)(iii) of the Public Service Act. She explained that the Act currently contained a provision stating that the Minister may report any non-compliance with the Act by an EA to the Cabinet or, through the relevant Premier, to the executive council of the respective province. In cases of non-compliance by an EA according to the Public Service Act, provisions within Section 16(A) addressed such matters.

Ms Ntuli acknowledged that while the Bill would lay the foundational groundwork, additional regulations would also be essential. She appreciated Ms Naidoo's reference.

Clause 3 – Amend provision of Section 5

The clause aimed to amend section 5, which contained a three-year period as stated in the principal Act. The three-year period was aligned with the Prescription Act, and the memorandum would be adjusted accordingly.

Dr Gondwe raised a concern that while the three-year period in that clause aligned with the provisions of the Prescription Act concerning civil matters, it might not be appropriate when dealing with criminal acts. She requested clarification on this matter.

The Chairperson noted that Dr Gondwe referred to the Department’s last interpretation of the three-year period.

Ms Naidoo pointed out that the provision currently existed in the Public Service Act under Section 3(8), and since they were amending Section 3, they had moved it to Section 3(9). Regarding the three-year time frame, the provision aimed to allow an Executive Authority (EA) or Head of Department (HoD) to handle employment matters arising from a former employee within a period of three years.

Clause 4 – Devolution of administrative powers

The response from the Department primarily emphasised that grievances from existing employees could be addressed through the Public Service Commission (PSC).

Dr Gondwe expressed concern regarding the proposed section concerning intergovernmental relations between departments. She suggested provisions be included in the Bill for this purpose. She highlighted the need for the Bill to elaborate on fit and proper standards, especially for the merit-based potential appointing of individuals. She also raised the issue that the Bill did not outline the PSC's supporting role in recruitment and appointment processes, particularly at senior management levels. While the Department had responded that the PSC's role would be considered during the development of regulations, Dr Gondwe insisted that the Bill should mandate the PSC to play a critical role in these processes. She proposed that the regulations should further elaborate on the PSC's role.

The Chairperson emphasised the imminent arrival of the Public Service Commission Bill. She stressed the importance of the Committee's role in advocating for the PSC as an independent entity. She also urged the Committee to focus on the sections highlighted in green text, as previously instructed by Mr Ngoepe.

Ms Naidoo addressed the HoD's role in a province, referring to Section 7(D) of the Bill and Clause 4. She clarified that the provision explained the role of the HoD in the office of a premier, which mirrored the role of the director-general in the presidency. Concerning roles in the recruitment process, she agreed with the Chairperson that these matters would be handled in the forthcoming Public Service Commission Bill, or during the drafting of regulations. She highlighted the importance of not hindering the PSC's oversight role.

Regarding employee competency, she pointed out that Section 9 allowed for appointments based on terms and conditions as prescribed in the regulations. This included considerations beyond mere 'fit and proper' measures, such as qualifications, experiences, and inherent requirements. Ms Naidoo mentioned the recent amendment to the public service regulations, which included requirements for HoDs in terms of 'fit and proper' standards for individuals.

Clause 5 - Head of Department to appoint person

No amendments were suggested.

Ms Ntuli and Ms Kibi expressed their satisfaction with clause five as it stands.

Clause 6 - Head of Department and employee probation

A concern was raised regarding potential contradictions with other legislations. The Department had responded effectively, stating that in cases where the Public Service Act (PSA) conflicted with other laws governing employment, such as the South African Police Service (SAPS) Act or the Educators Act, the other Act would take precedence.

No amendments were proposed.

The Clause was accepted as it stands.

Clause 7 – Transfer of employees

No amendments were suggested.

Dr Gondwe expressed concern about the proposed amendment to Section 14 of the Principal Act, dealing with the transfer of employees. She highlighted that Section 5 of the Public Administration Management Act (PAMA) of 2014 also addressed employee transfers within or between institutions. She stressed the need for clarity, suggesting that having both statutes addressing the same subject matter might lead to confusion and potential inconsistencies in interpreting and applying the Bill. She proposed that only one statute should handle employee transfers to ensure coherence, and recommended the rationalisation of the two statutes.

She sought further clarification, stating that the Department's response to the submissions made on the Bill did not adequately address this issue.

Ms Naidoo explained that during the consultation process, they had initially planned to repeal Section 14 of the Public Service Act and incorporate provisions within the PAMA to manage transfers within the public service. However, challenges had arisen during these consultations, as various sector legislations, such as the Municipal Systems Act, the Educators Act, the Correctional Services Act, and the SAPS Act, already addressed transfers within their respective sectors. As a result, they had decided to retain the Public Service Act's role in managing transfers within the public service, limited to employees between national and provincial government, and between national and provincial departments. The PAMA was revised to facilitate transfers which no existing legislation currently covered, specifically allowing transfers between the public service (national and provincial government) and local government, as well as transfers between municipalities.

Clause 8 – Continuous employment

No amendments were suggested.

Dr Gondwe mentioned that the DA chose to reserve its position rather than comment on this amendment. She sought clarification on whether Section 19 repealed Section 14 of the Principal Act.

The Chairperson noted that Dr Gondwe reserved her position not to comment on the clause and suggested that the Committee move forward to adopt the clause.

Dr Gondwe reiterated that she was not commenting, but seeking clarity. She emphasised that the Department was supposed to have provided clarification on this matter, but had not done so.

Ms Naidoo addressed the issue, mentioning that they had attempted to clarify how Section 14 would operate in their responses. She clarified that Clause 8 dealt with Section 14(A), not Section 14. Regarding Section 14, the PAMA did repeal it, but they had not enforced that repeal. Instead, they had re-enacted Section 14 through the amendment of the PAMA. If one examined the PAMA bill, a re-enactment of Section 14 could be seen, thus preserving Section 14 while amending it as per Clause 7. Section 14(A) was different, as there was no repeal -- there was only an amendment currently before the Committee.

Clause 9 – Retirement and retention of service

The clause was accepted without amendments.

Clause 10 – Prohibition of shorter notice of resignation

The clause was accepted without amendments.

Clause 11 – Power to dismiss an employee

No amendments were suggested.

Dr Gondwe expressed concerns about the devolution of power, indicating that without delegation by the Premier, it might limit the Executive Authority (EA) in disciplining a Head of Department (HoD). This situation might lead to reduced oversight and accountability, as the EA would not have the power to act against the HoD if the proposed amendment of section 7 (1) (a) and (b) were pursued. She suggested reconsidering and redrafting the clause.

Dr Schreiber built on Dr Gondwe's point, proposing a simple solution without extensive redrafting. He suggested clearly stipulating, either in the same clause or as an additional one, that the power to dismiss an HoD lay with the Executive Authority. This distinction would prevent confusion, ensuring that matters concerning the HoD were under the EA's purview, preventing any claim by the HoD that they could discipline or dismiss themselves.

Ms Naidoo reiterated the policy position regarding HoDs, stating that the Premier or President handled all matters concerning HoDs, including appointments and dismissals. She said the rationale behind this setup was to create a buffer between the President or Premier and the administration, ensure impartial handling of matters, and prevent any challenge to the HoD's ability to work. She stressed that while the President or Premier exercised authority over the HoD, sections 3 and 7 of the Public Service Act, through these amendments, mandated specific accountabilities between the HoD and the EA in running the administration. She emphasised the foundational policy of the entire Public Service Act in dealing with HoD-related matters.

Dr Schreiber sought further clarification, noting a potential contradiction in Ms Naidoo's earlier statements regarding the Executive Authority (EA) definition. He referred to the amendment in the Bill, which presented a definition of EA that varied depending on the context -- for national government departments, it referred to the Minister; for the presidency, it referred to the President; for provincial departments, it designated the Premier or MEC as the EA.

Dr Schreiber proposed a couple of potential scenarios. One scenario suggested that all EAs mentioned in the Bill would refer to the ministers or MECs as appropriate. Another scenario implied that the Bill might suggest that the EA, in the case of appointments, would be the Minister, meaning the issues might be invested in the President, not the Minister. He sought clarity regarding who would be responsible for dismissing or disciplining a Head of Department or a Director-General in a national government department.

Ms Naidoo agreed with Dr Schreiber concerning the definition of the EA. She explained that the Bill distinguished a separate definition for HoDs, specifying that at the national level, it was the President, and at the provincial level, it was the Premier. She referred to sections 12 and 16(B) in the Bill, which specified the President and Premier as the authorities responsible for career incidents, appointments, and the dismissal of HoDs.

She emphasised the consistency throughout the Act, highlighting that all references to EAs concerning HoDs would always be the President or Premier.

Clause 12 – Remunerative work outside employment

It was noted that every employee must seek permission from the HoD while engaging in business outside the public service. No specific amendments were proposed, but clarification was requested from the Department on this matter.

Dr Gondwe expressed ongoing concerns. If a HoD refused to approve an employee's request for remunerative work outside the public service, there appeared to be no recourse for the employee. She was uncertain about the opposition to including an appeals process. She emphasised that the 30-day timeframe seemed inadequate, particularly if the nature of the work might result in conflicts of interest or impact on the employee's performance. She suggested extending the period given to the HoD for consideration before the deeming provision took effect. The recommendation was to address these concerns seriously, consider extending the time frame, and include an appeals mechanism within this specific clause.

Ms Naidoo addressed the matter by focusing on the appeal process. She expressed concern that introducing an appeals mechanism could potentially burden institutions, as numerous appeal procedures were already in place. She clarified that the provision under discussion pertained to an employee within the public service seeking permission for external remunerative work, which was not part of their regular duties. The fundamental aspect was that the HoD served as the employing authority responsible for determining if the requested external remunerative work may lead to a conflict of interest, or compromise the employee's responsibilities. According to Ms Naidoo, the reasons for such decisions would remain unchanged, and she highlighted that the introduction of an appeals process required a change in the system to generate a different outcome.

Ms Naidoo pointed out that employees had the choice to work within the public service or seek employment elsewhere. She suggested that if another job offered better benefits, individuals could opt for it. She stressed that this provision had been in the Public Service Act for many years without encountering challenges in terms of approvals or implementation.
Addressing the second issue concerning the time, she explained that initially, there had been a provision stating that employees could not undertake external remunerative work without permission. Subsequently, the deeming provision was introduced in the Public Service Act, and to date, there have not been any issues regarding the 30-day compliance period. However, she said the Portfolio Committee could consider a longer time frame, asserting that the 30-day period was thought to be a reasonable duration for individuals to engage in external remunerative work. Nonetheless, she expressed a willingness to review the time frame, as employees might face disadvantages in the process.

Clause 13 – Paying out revenue

Clause 13 was approved without amendment.

Clause 14 – Temporarily perform other functions

The Committee did not propose any amendments to Clause 14. They sought further clarification on the practical implementation of the clause, and after discussion, the clause was approved without any changes.

Clause 15 – Procedure for grievances

There were no amendments suggested.

Dr Gondwe acknowledged the concerns that had been raised regarding this clause limiting constitutional aspects related to political rights. However, it had been conveyed that the socio-economic impact assessment (SEIA) conducted by the Office of the Presidency had not identified any constitutional issues with this specific amendment. Similarly, the parliamentary legal services' offices had not raised any concerns about its constitutionality. Consequently, support for this amendment has been expressed. They had suggested broadening its scope to encompass employees who were part of executive committees, and had recommended extending the prohibition to middle management.

Dr Gondwe thought they were already on clause 16.

Clause 15 was approved without amendment.

Clause 16 – Prohibit HoDs and Employee from holding political office

The Department offered further elaboration on the clause, but did not propose any amendments.

Dr Gondwe acknowledged the concerns that had been raised regarding this clause limiting constitutional aspects related to political rights. However, it had been conveyed that the socio-economic impact assessment (SEIA) conducted by the Office of the Presidency had not identified any constitutional issues with this specific amendment. Similarly, the parliamentary legal services' offices had not raised any concerns about its constitutionality. Consequently, support for this amendment had been expressed. They had suggested broadening its scope to encompass employees who were part of executive committees, and had recommended extending the prohibition to middle management.

Ms Naidoo explained the complexity surrounding the first issue of expanding the prohibition to other employees within the public service. At the Bill's outset, a complete prohibition on holding political office had been drafted. However, as consultations progressed, constitutional concerns had arisen, leading to alterations in the Bill. The limitation was consequently narrowed to cover only HoDs and those reporting to them. This shift aimed to address the constitutional challenges that had emerged throughout the consultation process. The Municipal Systems Act presented similar challenges related to an overall prohibition. Justifying why individuals reporting to HoDs fell under the prohibition was itself a stretch, particularly as it pertained to conflicts of interest at that level. Any conflict of interest at lower levels required compliance with the public service regulations, codes of conduct, etc., to ensure that those involved recused themselves.

Ms Naidoo emphasised the need for careful consideration from a constitutional perspective to avoid potential challenges in constitutional courts once the law was enacted. Extensive work has been conducted to justify the limitations on constitutional rights. Any further expansions would require additional justifications that were not found within the parameters of the Bill as it currently stood before Parliament.

Regarding the proposal to extend the definition to the entire National Executive Committee (NEC), Ms Naidoo suggested guidance from the Portfolio Committee, and discussions on how such an extension would operate. She highlighted the importance of being cautious constitutionally not to compromise responsibility. The larger challenge could arise if members of the NECs of political parties played a substantive role in decision-making, and were then prejudiced when employed in public service positions. In such cases, imposing a rule on them might not be necessary due to the lack of conflict of interest.

Clause 17 – Granting an employee a salary higher than minimum amounts

Clause 17 was accepted without amendment.

Clause 18 – Remuneration wrongly granted

Clause 18 aims to amend section 38(2)(b) concerning the recovery of erroneously granted remuneration. The proposed new clause was put forward by the parliamentary legal service to the Committee. The clause was welcomed and accepted with the proposed amendment.

Clause 19 – President’s power to delegate

Clause 19 was accepted without amendment.

Clause 20 – Short title of the Bill

Clause 20 was accepted without amendment.

Chairperson's closing remarks

The Chairperson completed the review of the 20 clauses of the PSA Bill as presented and agreed upon by the Portfolio Committee. Nevertheless, the Committee would not be able to adopt the report on that day, but would do so at the following meeting. She expressed gratitude to all Members, colleagues, the legal team of Parliament, and the support staff.

She announced that at the next meeting, they would address the clause-by-clause review of the PAMA and proceed to adopt the PSA Bill.

The meeting was adjourned.