DPSA implementation of Zondo Commission Recommendations, with Ministry

Meeting report

Minister’s opening remarks
Ms Noxolo Kiviet, Minister of Public Service and Administration, made a brief opening remark given that it was the Budget Speech that day. She highlighted the significance of 21 March for a democratic South Africa. The transformation agenda was the priority of the Sixth Administration, but this has been on the government’s agenda for the past 30 years. She highlighted the President’s SONA speech and work which the ruling party had achieved.

The presentation will be briefing the Committee on what DPSA has done since the Zondo Commission investigation. As a consequence of that, there are two bills before Parliament which will be debated next week: Public Service Amendment Act and Public Administration Management Amendment Bill. Both bills aim to close the gaps identified by the Zondo investigation including a criminalisation provision as well. Even though those provisions were in place in regulations, those two bills would be formally elevating those issues to legislation.

DPSA Implementation of Zondo Commission Recommendations
Ms Yoliswa Makhasi, Director General: DPSA, led the delegation and Mr Nyiko Mabunda, Acting Deputy Director General: Human Resources Management, made the presentation.

The Presidency is responsible for managing lifestyle audits for National Executive members. The additional interventions that were prioritised for 2023/24 were:
a) Induction for New Ministers: The Presidency has initiated a Programme of Induction that provides presentations and information on the PFMA and Public Service Act for Members of the Executive (Ministers and Deputy Ministers) to clarify the relationship between the political authority and the institutions they oversee.
b) Revision to relevant sections of the Ministerial Handbook:
The Ministerial Handbook was last amended on 02 November 2022. On 09 November 2022, the Presidency requested the Independent Commission for the Remuneration of Public Office Bearers to Review the Handbook and that process is underway.
c) Development of a code of conduct for special advisers:
The Special Adviser Dispensation has been reviewed to include a Code of Conduct. This has been developed and will be submitted to Cabinet for approval as part of the review.

Two bills were currently in Parliament: Public Service Amendment Bill and the Public Administration Management Amendment Bill. They were approved by the National Assembly and have moved to the NCOP.

DPSA is in the process of reviewing public sector legislation and alignment with the National Framework towards the Implementation of Professionalisation of the Public Sector. The pillars of the Professionalisation framework were explained.

Overall, DPSA’s actions support directly the President’s response to the Recommendations of the State Capture Commission. Quarterly reports are submitted to The Presidency

Cabinet approved the Professionalisation framework in Quarter 3 of 2022/23. DPSA identified areas for implementation in 2023/24 through the planning process. DPSA is on track in implementing identified professionalisation priorities for 2023/24. DPSA is currently involved in the planning process for 2024/25 and identifying professionalisation priorities

DPSA is coordinating with DPME how professionalisation priorities are to be incorporated into the Annual Performance Plan (APP) of departments and Medium-Term Strategic Framework (MTSF) of the 7th Administration;

The Auditor-General-South Africa has committed through an MOU with DPSA to audit professionalisation priorities. See presentation

Development of a code of conduct for special advisers
Mr Dumisani Hlophe, DPSA Acting DDG: Negotiations, Labour Relations and Remuneration Management, presented the draft code of conduct for special advisors. It covered six areas: purpose, adherence to constitutional and other legislation, ethical conduct, the relationship with the public, conflict of interest and the use of official confidential information.

The draft will go through consultation with key stakeholders, analysis of inputs, amendments to the Code of Conduct and Parliament would be briefed again on the content. See presentation

DPSA Annual Report 2022/23
Ms Boitumelo Motene, DPSA Director: Human Resource Strategy and Governance, presented. DPSA had achieved 17 of its 26 total targets and failed to achieve 9 targets.

In Programme 1, 50% representation of women in SMS positions and 30% representation of youth were not achieved.

In Programme 2, submission for approval of Directive on mandatory in-service training for the public service submitted, HRM & Department strategy and implementation plan, and Job Competency Framework for public sector had not been achieved.

In Programme 3, submission for approval of Job evaluation System for the Public Service final report had not been achieved. As the APP had been compiled in the last month of the financial year, the handover to new Minister delayed the completion of some projects as there had been a few policy documents that needed to go through the approval processes. The Committee was reassured that those policies were issued in the current financial year.

None of the items in Programme 4 had been achieved.

DPSA’s staff composition showed that it had a 13.73% vacancy rate. Solutions were provided. Some issues affecting DPSA performance were related to capacity. Since 2020/21, DPSA had to cut 60 positions that affected HR and development units.

Mr Masilo Makhura, DPSA CFO, noted 93.7% expenditure of its R550 million budget. The economic classification of variances was provided as well. See presentation

Discussion
Mr T Brauteseth (DA, KZN) found it concerning of the conduct of directors at public entities which are effectively regulated under the Companies’ Act.s218 of the Act refers to the removal of directors if they are found to be delinquent such as directors grossly abusing their positions, acting in gross negligence, etc. He called it a huge gap in the governance in South Africa that the government does not act against delinquent directors when they are directors of entities which fall under Ds. He thus wanted to know what DPSA was going to do to address the delinquency directors issue.

Mr T Brauteseth (DA, KZN) found the conduct of directors at public entities concerning. They are effectively regulated under the Companies’ Act. Section 218 of the Act refers to the removal of directors if they are found to be delinquent such as directors grossly abusing their positions and acting with gross negligence. He called it a huge gap in the governance in South Africa that the government does not act against delinquent directors when they are directors of entities. He asked what DPSA was going to do to address delinquent directors.

He enquired about merit-based appointment versus cadre deployment. Without intentionally making it too political, he did believe that South Africa has reached a stage where appointments should be made on merit rather than party affiliation and loyalty.

Mr Brauteseth asked about the DPSA’s solution to errant employees being shifted around to different department and spheres of government. What has been observed is that employees who are guilty of misconduct in one department would often pop up in another department or another sphere of government. This trend has to be stopped.

He sought clarity on the cooling off period on page 9 of the presentation. For employees found guilty of procurement irregularity, there should be disciplinary action and not cooling off.

Mr Brauteseth asked how many lifestyle audits had been conducted and what the outcomes were. He requested DPSA provide that in a detailed report since 2016 when lifestyle audits became a policy.

He commented that most South Africans would gasp with surprise at the idea of a probation period for misconduct. He asked for how long this probation is and why. In his opinion, they should be removed rather than being placed on probation as they sabotaged the economy of South Africa. He urged DPSA to pay attention to the leniency in contrast to the harsh sentencing some of its BRICS partners have adopted in dealing with misconduct.

He asked why it took so long to develop a single disciplinary recording system because the Act had been adopted in 2016. It is unacceptable that eight years later, the government is still talking about its establishment. Further, how many matters have been dealt with by this disciplinary technical unit and what are the outcomes?

He emphasised the importance of providing ethics training to public servants. What sort of ethics training had been provided for senior public service members? State employees often struggle in dealing with ethical issues.

Mr Brauteseth asked about the progress on the establishment of a professional degree in public service as recommended by the Zondo Commission. No reference was made to that in the presentation. The degree has to be established in universities and should be an NQF 7 qualification.

He welcomed the initiative to hold special advisors to account and asked when Cabinet had adopted that position and why it took so long for government to implement that.

Mr M Rayi (ANC, Eastern Cape) wanted to find out the departments and public entities that have to respond to the Zondo Commission recommendations. The Committee had met with DTIC at the end of last year, but his concern was that there is too much information around what would be done. He asked how those generic recommendations could be integrated into the department annual plans in order to be monitored on a regular basis.

He welcomed the initiative to regulate the conduct of special advisors. He asked the Department how many special advisors Ministers and the President are entitled to and if those appointments go through the normal recruitment and interview process.

He welcomed that the DPSA included monitoring and evaluation in its annual reports and appreciated DPSA’s performance and financial management. He sought clarity on the recruitment of senior management which was picked up by the Auditor-General.

Mr Rayi asked why the Department was unable to achieve the target for 30% youth.

The Chairperson asked DPSA to comment on the proposal to stabilise the interface between political office and administrative office to ensure merit-based recruitment and selection and effective consequence management. He also noted DPSA’s need to align to the National Framework towards the Professionalisation of the Public Sector which was adopted on 19 October 2022.

He requested an update on the feedback from the Presidency on the DPSA review of the Ministerial Handbook and when it would be finalised.

He noted that 20 000 records had been on the central disciplinary register by November 2023. To date, which departments contributed to the register, which departments used the record in their recruitment process and if local government was incorporated into the register.

The Chairperson sought clarity from the Ministry on the prohibition that special advisors not act in the interest of political parties. He would understand if the prohibition is confined to not furthering their own interests, but he found it confusing that the prohibition is placed on them not to further a political party's interests since the appointment of advisors are made to support the executive which is a political office.

He needed clarity on the discrepancy between the 93.7% expenditure and overall achievement of 65%.

The Chairperson appreciated the MoU between DPSA and Auditor-General which led to the commendable performance of the Department in incurring no irregular expenditure.

DPSA response
Director General Makhasi explained that the code of conduct of directors of companies is not covered by the Public Service Act. The question should be directed to either the Department of Trade, Industry and Competition (DTIC) or the Department of Public Enterprises (DPE).

The DPSA emphasised that the meritorious approach is embedded in the recruitment of the public service sector through the Public Service Act (PSA). The regulations as well as the directives by DPSA both speak to that. Moreover, departments and heads of departments (HoDs) who fail to do so will face consequences and the Public Service Commission is very effective in processing all those complaints.

She suggested Members directly engage with the National School of Governance to get more details on the training programmes for public service. DPSA only sets norms and standards in that matter.

Following the Zondo Commission recommendations, the Department participated in a project in the Presidency to establish a single disciplinary management system. It is an online system that would be used to deposit all disciplinary cases. This is to prevent people running from one governmental department to other departments or to local government. The operation of the system would commence on 1 April 2024.

DPSA monitored its own work. The Department has a system in place in planning which included its Annual Performance Plan (APP), annual operation plans and unit plans. The presentation that was shared with the Committee spreads across all those plans.

On the Department’s performance for the MTSF, it had presented its catch-up plan to address areas where it was behind. The Department regularly undergoes assessment to evaluate the progress of implementing those catch-up plans. The outcome is that there is significant improvement of professionalisation in the public service.

Ms Makhasi indicated that the Department struggled to implement the 30% youth target as it was not included in the affirmative action. From the Department’s policy making perspective, the Department could internally have an affirmative action policy to ensure 50% of women. For youth, it was unable to issue such a policy. Given the nature of the Department’s structure, it is not easy to recruit young people unless the Department introduced substantive portfolios, technical portfolios and operational roles at the entry level. She was confident that at the entry level of the public service sector, young people should be able to be appointed in positions such as researchers and policy analysts. DPSA also needed to change its structure as it is top-heavy at the management level. Contrary to service delivery-dominant departments which had more people on the ground, regulatory and policy making departments such as the DPSA relied heavily on the management level which may be a barrier to the appointing of youth.

She confirmed that the Department has not been engaged substantively by the Presidency on the Ministerial Handbook, so she was unaware when the report would be issued. She recommended that the Committee should invite the Presidency to brief it on the matter.

She commented on the special advisors and indicated that the prohibition to pursue political party interests is related to the work which an advisor would do in a department. By virtue of being an advisor to a minister, the advisor has access to the department. So the DPSA certainly would not want an advisor to come to work and distribute posters of one political party. But advisors have the responsibility to advise the minister on political matters since they are recruited with the understanding that they are advising politicians.

DPSA has measures in place to address the Auditor-General findings. One finding was to have a Monitoring and Evaluation system of DPSA’s own work. So the Department had to integrate the Monitoring and Evaluation system into its APP. Members would see that the Department’s 2024/25 APP contained Monitoring and Evaluation targets as well. The Department tracks the progress of its performance on a monthly basis. DPSA also convenes a meeting for HoDs every month to discuss public service issues.

Dr Salomon Hoogenraad-Vermaak, Chief Director: Public Administration Ethics, Integrity and Disciplinary Technical Assistance Unit (TAU), explained that those delinquent directors of public entities were the work of the Companies Act and was thus not within the DPSA domain. However, the Department has identified issues such as delinquency. One of the issues is public servants conducting business with the state. In 2016, the Department introduced Regulation 13(c) which prohibited public servants conducting business with the state. That was followed by Section 8 of the Public Administration Management Act which further criminalises public servants conducting business with the state. Since 2017, the Department monitors the central supplier database with National Treasury and identifies public servants who are doing business with the state. After those employees are identified, DPSA would inform the relevant department and request those employees remove themselves from the system. This prohibition is applicable to special advisors as well. To date, it has worked with SAPS and NPA and eight public servants had been found guilty.

Dr Hoogenraad-Vermaak informed the Committee that the Department is developing a central register for public servants for provincial and national departments which would be effective from 1 April. It is also working with the Presidency and SALGA in the aim to cover the local government sphere as well. Once that system is in place, an individual who is guilty of misconduct at the national level will be flagged if the person applies to a different department or sphere of government.

On lifestyle audits, the Department had received 9 536 financial disclosures of 9 899 SMS members in 2022/23. Once it received such information, the next step would be for the Department to do verification. It checks the CIPC system and identifies any conflict of interest, unexplained wealth, etc. The finding was that 636 did not disclose their financial interests and were being monitored. Of those submitted by the end of October 2023, only four national departments and nine provincial departments did not implement lifestyle audits at all. Investigation would take place in areas where red flags were raised. So far there were 200 SMS that had been referred for investigation. That number is significantly improved from 38 of the previous financial year.

The Department realised that there is a huge suspension backlog in national and provincial departments. In October 2023, the Department had identified those with the highest number of case backlogs and suspensions which associated with the highest costs. Then DPSA started its backlog project which involved DPSA hand-holding 27 departments, seven at national and 20 at provincial level to address those cases. So far, 422 case backlogs had been addressed, 52% were finalised, 40% were addressed in provinces. The project would be taken forward in 2024/25.

Ms Renisha Naidoo, Chief Director: Legal Services, explained that the cooling off period referred to a provision which had been introduced to deal with employee procurement processes. DPSA noted a pattern that some public servants would terminate employment in public administration and join companies that are successful in those tenders. To deal with that, the Department has put in place a prohibition on employment which is a legal obligation that service providers and employees may not be employed in that business for a period of twelve months. She called the provision a fundamental move towards ensuring the procurement process is not biased in any way.

Ms Naidoo explained that the safeguards in place for the management of power in public service emanates from the Public Service Act. It clearly delineated powers that belong to the HoD and those for the executive authority. The HoD is responsible for administrative power whereas the EA has an oversight responsibility. She acknowledged the power confusion in the interface between political and administrative functions . She assured the Committee that the Department has articulated clear roles and responsibilities for EA and HoD respectively. More details can be presented to the Committee in due course when the Public Service Amendment Bill and Public Administration Management Amendment Bill are passed by the National Assembly and come to this Committee.

Mr Dumisani Hlophe, Chief Director: DPSA, indicated that the policy on the code of conduct of special advisors had been agreed to by the Cabinet on 15 September 1999. The reason that it took so long for the department to get to this point is because it started to pick up trends in the executives’ submissions to DPSA. The challenge which those submissions pointed to were largely an administrative issue. The appointment of advisors in all cases were made by ministers or premiers, but the actual remuneration of those advisors was approved by DPSA. So it needed to be clarified at what point is the actual appointment and DPSA also needed to normalise the appointment process. There are also issues of relevance and experience in the appointment. Sometimes DPSA would request more information be provided for those appointments. As DPSA is a policy department, it is working to strengthen the system.

Ministers can appoint two full-time advisers and so do premiers. In the case of premiers, should they need additional advisers, they would need to get the approval from the provincial executive council. In most cases, if a third advisor is to be appointed, not all those advisors can be appointed on a full-time basis. The Presidency may appoint an unlimited number of special advisors. There were no interviews in the recruitment of those special advisors. In most cases special advisors are mainly people at some strategic level who have worked with those that appoint them.

Follow-up questions
The Chairperson asked about the correlation between the grading of special advisors and their qualifications. For instance, what would be the grading if the appointee has a PhD qualification?

He noted that the transfer of employees covered the transfer within the three spheres, but what about the transfer from the executive to other organs of state. From his experience, the legislature and the executive have different conditions of services and requisite skills.

Government is aiming to look at its organisational functionality framework, which according to the National Treasury, has the potential of saving R27 billion in the medium term by addressing ineffective programmes and consolidating entities. He asked about the progress on the framework and if it has been done.

Mr Brauteseth commented on the employee prohibition period and asked if the 2016 regulation on prohibition has been followed through. He did not agree with that approach and was of the view that if someone was found guilty, they should not be allowed back in public service.

He asked for a response to his query on the establishment of a professional public service degree or body similar to that of chartered accountants, as it was the recommendation by the Zondo Commission. Have they consulted academics and universities?

The Chairperson commented that the nine provincial legislatures and Parliament have a number of courses that are related to capacity which are funded by the European Union. In most cases, Members are encouraged and invited to do public leadership courses. There is now even room made for funded doctoral study. He asked about the relationship between the National School of Governance and Parliament and if DPSA would consider tapping into this platform to strengthen the DPSA's work and building capacity for MPs.

Follow-up responses
Mr Nyiko Mabunda, DDG: Human Resource Management and Development, explained the department’s interpretation of the Zondo Commission recommendations. One of the Commission findings was that professionalisation framework and a revision of regulations are needed to adapt to the new developments coming from the public service. The Commission also found that there was misunderstanding of the 2016 regulation. The Commission recommended that the Department infuse the curriculum of universities and the National School of Governance into the norms and standards for the public service sector. The DG has established South African Public Management Association, had various engagements with heads of government across South Africa, and hosted 26 universities. Some universities even invited DPSA to speak on the courses it has developed.

He clarified that the Department did not view Zondo Commission’s recommendation as establishing a course but rather strengthening how people get into senior management level. So the Minister has issued minimum requirements. At the director level, the minimum standard is NQF7 and for the DG / DDG level it is NQF8 level.

He assured the Committee that the DPSA had implemented the finding highlighted by both Zondo Commission and Auditor-General and institutionalised all initiatives linked to the professionalisation framework to its APP.

Mr Willie Vukela, DDG: Government Service Access & Improvement (GSAI), commented on functionality assessment and BPM of which both are instruments of the MTSF targets. The Department has done the assessment of the current model. It has done the assessment at both the national and provincial government. The assessment had been done with Parliament only last week. The impression was that there was a huge appetite for public service modernisation. DPSA has issued a directive and the Department is on board. The DPSA is also preparing a report on the impact of functionality and the productivity of public service. The key question is what we can do to improve public service. The Department can present a full report in due course.

Ms Naidoo replied that section 17 of the Public Service Act states the Minister should prescribe regulations to give the periods after which an employee who had been found of misconduct can re-enter public service. That clause means that there is no total ban. DPSA extended the period of time. In 2016, the regulation then set the periods between one to five years. In 2023, the revised Public Service Regulations extended that prohibition to two to ten years. For instance, if an employee is found guilty of financial misconduct, that prohibition would be about 10 years. The Department has also looked at the applicability of that into the local government sphere.

At the moment, there is no mechanism to completely prohibit someone from re-entering the public service as the policy decision which had been taken is that it is possible that people may reform and be better.

Ms Naidoo explained that both the Public Service Act (PSA) and Public Administration Management Act (PAMA) are limited to public administration which included the national, provincial and local government. They do not extend into the three arms of government. But there are different pieces of law that deal with those areas. One must also bear in mind the constitutional imperatives of the separation of power. There are other handbooks in the legislature and judiciary which deal with benefits and that will be for the President, the Speaker and the Chief Justice to streamline those processes.

Deputy Minister's closing remarks
Dr Chana Pilane-Majake, Deputy Minister of Public Service and Administration, hoped that the presentation had been informative in providing information on the Department as well as its plans to address the concerns flagged by the Zondo Commission. Although DPSA had not fully achieved its 2022/23 targets, it nevertheless is committed to do so. It is crucial that the Department should develop a proper performance management system.

The code of conduct for CEOs at SOEs is regulated by the Department of Public Enterprises, but from time to time the President also delegates that function to the DPSA to address issues such as the appointment of CEOs. She suggested that there should be a joint sitting with the relevant portfolio committees to discuss the matter.

She agreed with the point raised on the special advisors. What is the problem statement? A number of issues had been forwarded to the Committee. Those may point to the importance of developing measures to ensure that the appointment and conduct of special advisors are addressed and to avoid all those contentions. She described the political poster as an over-statement and should not happen among the special advisors who should be mature enough to not do such things.

She agreed with Mr Brauteseth on ethics issues and the need to strengthen ethics training in the public sector. Where there are humans, there will always be the possibility that things happen with unintended consequences. When people are in power, that power may be interpreted or manipulated differently.

On the movement of employees, government has adopted a posture of vigorously fighting corruption. There is a lot more that is being done apart from the implementation of lifestyle audits. The Department hoped that the initiatives would reduce and limit the scale of corruption. The manner in which ethics offices across government were appointed was not satisfactory as their positions were vulnerable and could be easily compromised.

In response to Mr Brauteseth’s input on deployment, she emphasised that DPSA continued to strengthen the policy on the recruitment, appointment and selection of public servants.

The Department continued to look at removing barriers of entry to public service. It has been flagged as a challenge in the past. The Department still had to refine the graduate recruitment programme to address the unemployed graduate issue in the country. DPSA would keep the Committee informed once that framework is finalised. When it came to unemployment, it was not only the responsibility of the government to create jobs, but the country should also look at the role that the business should play in job creation. Government should, through its policy, create a good business environment in South Africa to allow businesses to thrive.

On the outcome of the organisational functionality assessment, she acknowledged the challenges to that. It has not succeeded to rationalise personnel due to the demands made by labour through Public Service Bargaining Council Chamber. DPSA would still have to consider where to place some personnel as they have been placed in positions for which they do not have the requisite skills. The process is contentious but is being looked into. The Department is looking to turn the National School of Government into a government department or a university.

Overall, the purpose of the public service sector should be to build a public service that meet the needs of people.

Minister’s closing remarks
Minister Noxolo Kiviet explained that advisers are political appointees, but their role is apolitical. They can offer political advice but cannot act in a political way. They are appointed on the basis qualification, expertise in specific areas, and professionalism.

On the concern about cadre deployment, she acknowledged that it is a political hot potato but she reassured the DA that the country’s Constitution has guarantees which the governing party had campaigned and fought for. She has been sharing that view with the DA caucus persistently that there is no cadre deployment in government. The implementation of employment equity in the workplace is DA’s concern which seems to think that it is the government’s intention to replace white people with black people. She denied that is the only means of transformation. The intention is to make South Africa a country for all. In government, there is a fair process in the recruitment process as individuals apply through public advertisements. The fear and concern of the DA is not justified since government does employ white people when they are qualified.

Lifestyle audit is only one aspect that seeks to address and detect potential corrupt officials. It is a proactive way of ensuring to nip corruption in the bud. She requested that the Department unit brief the Committee to provide a holistic context of government's drive on anti-corruption. There are other steps to tackle corruption as well such as the protection of whistleblowers and the promotion of whistleblowing.

On 27 February DPSA would be in Parliament to debate the Public Service Amendment Bill and Public Administration Management Bill. Both bills speak to professionalisation of work in the public service sector. The NSG had embarking upon some courses and some of those courses would be compulsory for public servants.

The Minister assured the Committee that 2022/23 has been a year of transition for the DPSA. At the end of that financial year, there were issues of handover which delayed a number of policies which should have been approved by the end of that financial year. The Department had recovered in the early part of 2023/24 and the performance is good. The Department is working with the Auditor-General to regularly monitor its performance. It is committed to set an example to other government departments.

The Chairperson adjourned the meeting.