Public Service Commission Bill: SEIAS briefing & public hearings

Meeting report

The Chairperson stated that public participation is a crucial process, enabling the public and organisations to engage in decision-making and ensure their inputs are incorporated into the legislative process. Invitations had been extended to all who had submitted written inputs on the Bill, inviting them to engage on areas where they believe the Bill requires improvement.

The Committee also invited the Office of the Presidency to provide an impact assessment of the Bill which is a requirement for all Bills.

The Chairperson stated that each stakeholder would have 15 minutes to present, followed by questions after each submission.

Socio-Economic Impact Assessment of Bill
Ms Pulane Kole (Chief Director: Socio-Economic Impact Assessment, Office of the Presidency) presented the Socio-Economic Impact Assessment (SEIA) report on the Bill. She introduced the SEIA System, outlined the priorities of the Seventh Parliament—which include building a capable, ethical, and developmental state—provided context on the Public Service Commission Bill, and elaborated on the impact assessment of the Bill. In discussing the Bill’s impact, Ms Kole conducted a problem analysis, reviewed its alignment with national priorities, and highlighted the Bill's potential benefits and risks. She concluded her submission with recommendations from the SEIA report.

Discussion
Mr K Sithole (IFP) appreciated the briefing and sought clarity on political interference mentioned in it. He inquired, according to the Office of the Presidency’s analysis, how the Committee intends to address political interference, as it may persist if not effectively managed. He also raised a question about alignment concerning the Government of National Unity (GNU), asking how that issue would be handled.

He voiced concerns on the PSC expanding mandate, specifically to municipalities as many municipalities lack adequate capacity. He asked if powers, processes, and functions currently governed by the PFMA would be transferred or altered, given that the municipal system differs. He questioned how the distinct powers of municipalities would be managed and aligned, given the differences outlined in the Constitution.

Ms L Potgieter (DA) raised costing. She understood from the Minister’s statement that National Treasury is currently reviewing a proposed deviation from DPSA on the integrated human resources management system, submitted in June 2024. However, she noted references to both a Financial Management System and a Human Resource Management System and queried why these are combined, as she was not aware that the Financial Management System was part of the HR System.

On the development of the terms and conditions of service, she asked how the SEIAS arrived at the figure. The development of conditions typically ranges from a minimum of R20 000 to a maximum of R200 000 to R500 000 and she requested a breakdown of these costs.

Ms Potgieter inquired about the analysis of socio-economic challenges, including the associated costs, risks, and mitigation actions. She asked if this analysis pertains specifically to the Public Service Department or applies across all government departments, as she foresees implementation challenges in other departments.

Dr T Letlape (Action SA) appreciated the briefing and agreed with Mr Sithole’s remarks on the challenges of concurrency and the need for streamlining. He raised concerns on the submission of the Bill for agreement and promulgation, questioning if this process should be one of negotiation or prescription. He argued that the process should be prescribed, rather than subject to negotiation, to prevent power struggles and ensure smooth operation, noting that administrative authority should rest with PSC which would then handle the details.

Dr Letlape also addressed the transfer of the Office of Standards and Compliance (OSC) to the Public Service Commission, suggesting that rather than investing in new systems, it would be more effective to fund and enhance existing systems. He cautioned against creating parallel systems, such as an IT system from the old OSC and a separate tendered system from the PSC, which could lead to confusion and strain limited resources.

Dr Letlape highlighted the potential for conflict between municipal and provincial legislation and suggested that a constitutional amendment might be needed to clarify authority. He expressed concern that a municipality relying on unrepealed legislation could challenge the PSC authority, potentially leading to legal disputes. To prevent such conflicts, he proposed a constitutional amendment to streamline authority, enabling the PSC to oversee public service administration without ambiguity.

Dr Letlape emphasised his support for a unified national structure, with a single Commission overseeing public service administration and public servants. However, he stressed the importance of amending language and legislation to eliminate any residual authority that could lead to confusion or power struggles and to avoid resources being wasted on redundant administrative efforts.

On political interference, Dr Letlape advocated that it be clearly defined as a criminal offence enforceable by imprisonment, to ensure politicians remain within their designated roles and to avoid power struggles. It should not be left to the discretion of politicians.

Ms M Pholwane (ANC) welcomed the SEIA report and asked if the Medium-Term Budget Policy Statement had allocated funds for the Bill’s implementation. Is there a constitutional basis to oppose a single public service as outlined in Section 196 of the Constitution?

Ms W Tikana-Gxotiwe (ANC) welcomed the report and asked about the autonomy of local government, noting that local government has traditionally been considered an autonomous body. She inquired about the risks introduced by this Bill, given this longstanding view of local government autonomy.

Secondly, she asked about the implications of the Bill’s limitations on political affiliation for Commissioners.

On the costing model, she questioned if it would impact human resources and office space or if reprioritisation would allow the work to continue if the fiscus cannot support it. The drafting of the Bill has taken six years. Parliament has been criticised for delays in approving Bills and she urged the Committee to address any factors hindering the Bill’s progress.

Ms P Xaba-Ntshaba (ANC) asked about the constitutionality of the expansion of the PSC mandate to local government as local governments have their own governing laws. She inquired about the risks associated with Option 1 which proposes financing the Bill through reprioritisation of the existing budget. She sought clarity on the parameters of concurrent functions within the state and any limitations the PSC may face about this.

Mr Barry Mitchell from NEHAWU wanted to ask questions about the SEIAS report but it was agreed that external stakeholders submit questions in writing to Ms Kole due to time constraints.

Office of the Presidency response
Ms Kole replied that various interventions address the challenge of political interference. Cabinet has approved that the Director General in the Presidency serve as the Head of Public Administration (HOPA), responsible for managing the career progression of Directors General and Heads of Department, especially in provinces, and for mediating tensions between political heads and DGs. Additionally, the Public Service Amendment Bill proposes transferring human resource responsibilities from the political head to the accounting officer, in line with their responsibilities under the Public Finance Management Act. This measure aims to prevent confusion by ensuring that HR and finance management are not split between multiple leaders, thereby promoting consistency in policy implementation.

Ms Kole emphasised that public servants must be insulated from political interference to deliver services impartially and effectively. Regardless of the government of the day, public servants should be able to implement government priorities within the legislative framework, ensuring consistent application across all administrations, including the Government of National Unity (GNU). The principles and values set out in Section 195 of the Constitution apply to all administrations. Political affiliation should not influence service delivery or create bias in the workplace. Public services should be delivered fairly, without revealing an official’s political affiliation, maintaining an emphasis on neutrality and impartiality.

On local government, Section 154 of the Constitution mandates that national and provincial governments support municipalities to manage their own affairs, exercise their powers, and perform their functions. She clarified that the PSC’s role is to instil the values of Chapter 10 of the Constitution rather than to interfere with local government functions. She noted that the Municipal Systems Amendment Act is an example of local government legislation aimed at professionalising the public service and fostering adherence to the Chapter 10 principles. Appointments within local government should reflect qualifications, ubuntu and integrity, reinforcing the constitutional principles in the workplace.

Ms Kole pointed to Chapter 13 of the National Development Plan, which emphasises the need to support local governments in fulfilling their responsibilities. PSC’s work is not an encroachment but rather an effort to ensure the application of fundamental values. She drew a parallel with Chapter 9 institutions, such as the Auditor-General South Africa (AGSA), which operates independently and provides accountability insights without interfering in national or state-owned enterprise (SOE) functions. PSC’s role similarly aims to improve accountability and governance practices.

On resources for implementing the Bill, Ms Kole acknowledged the challenges of expanding the PSC mandate given fiscal constraints. She suggested a phased approach, starting gradually with municipalities and SOEs. Collaboration with existing systems is essential, as seen with the AGSA findings on SOE challenges. In the context of complementary legislation, such as the SOE Bill, the PSC will streamline efforts to ensure that core values are upheld across institutions. For municipalities facing challenges, targeted interventions will prioritise areas in need, avoiding broad application and instead focusing on a systematic, phased approach.

PSC response
Adv Shukrat Makinde, PSC Director of Legal and Litigation Services, addressed the costs associated with implementing the Bill. PSC, as an oversight—not an implementation—body, ensures that operations are conducted correctly by issuing guidance, such as the appointment of the Head of Administration, to ensure consistency in the appointment of DGs, Heads of Department, and municipal managers. Discrepancies in appointment terms across municipalities—where some managers serve for three years, others for five, and some indefinitely—undermine accountability. Standardising terms would allow for holding managers accountable for actions taken while in office, such as financial misconduct, preventing loss of recourse when managers leave prematurely. The Public Audit Act provides mechanisms, such as reclaiming funds or withholding pensions, to enforce accountability.

PSC seeks to professionalise and depoliticise public administration by ensuring that appointments of municipal managers and Heads of Department (HoDs) meet competency criteria. The PSC proposed deploying representatives to interviews to oversee fair and proper appointment processes but clarified that it would not interfere in municipal operations.

Sections 156 and 195 of the Constitution establish interrelated and independent governance across spheres while adhering to constitutional principles. PSC’s mandate to oversee public service professionalism is constitutionally grounded, not discretionary. Previous limitations in the Public Service Commission Act were due to capacity constraints. Parliament had previously resolved to empower the PSC fully to fulfil its constitutional role, prompting the current efforts to introduce this Amendment Bill despite ongoing financial limitations.

To address resource constraints, it was suggested that the PSC bill for certain services it provides, similar to the Auditor General and the State Attorney. The estimated R15 million initial funding would establish the Secretariat, independent from the Public Service Act, to avoid perceived conflicts of interest. PSC staff would no longer be appointed under the Public Service Act but rather directly to the Secretariat, which would administer functions independently from the existing public service systems like PERSAL, opting for alternative systems as needed.

Adv Makinde outlined a phased implementation plan. The first year would focus on establishing the Secretariat, deferring local government and SOE implementation by 12 months to allow time for necessary capacity building and training. The subsequent years would involve incremental rollout, with cost recovery measures in place for investigative functions. Some administrative tasks, such as policy support, would not incur costs. Treasury had committed to progressively increase the PSC budget as needed, and regulations for billing mechanisms would be gazetted.

On government autonomy, Adv Makinde assured the Committee that the Bill would not affect the structure or independence of local government as outlined in Schedules 4 and 5 of the Constitution. The PSC would provide oversight and be available to assist with disputes, allowing officials, such as municipal managers, to refer cases voluntarily to the PSC or an alternative forum like the Bargaining Council. Once a case is referred, the PSC would issue a report and, if needed, provide defence.

In closing, Adv Makinde reaffirmed the principle of a single public service, noting that implementing policies to give effect to this mandate would be gradual.

Further questions
Ms Xaba-Ntshaba raised concerns on the proposed standardisation of municipal manager appointments across municipalities, as suggested by Adv Makinde. She pointed out that municipalities differ in size, status, and by-laws, making a uniform approach potentially unhelpful. Smaller local municipalities have different needs compared to larger metros, which may justify varying term lengths, such as three or five years, based on their scale and operational requirements. How would these differences amongst metros, districts and local governments be taken into account by enforcing a uniform policy across all municipalities?

Ms Potgieter expressed concern about the technical details on the implementation costs of the Bill, noting that the financial breakdown seemed fragmented and incomplete. She suggested that a comprehensive feasibility study be conducted, consolidating all projected costs over a specified period. This should include not only the initial implementation costs but also expenses related to human resources, system independence from DPSA, and the sustained capacity required across different government spheres.

Ms Potgieter highlighted that the lack of a holistic cost analysis could hinder implementation, as approval might be granted without adequate funding, leading to resource shortages and potential failures in executing the Bill's mandate. While she acknowledged the PSC’s oversight role in ensuring municipal compliance with local government legislation, often directed by COGTA, effective implementation could be compromised without a clear understanding of the total cost and human resource requirements.

Dr Letlape acknowledged the need for the PSC to operate independently but raised concerns about efficiency in a resource-constrained country. He questioned if synchronisation between constitutional bodies could be achieved, suggesting a common platform for pricing and support. He noted that such alignment could reduce costs, particularly when systems fail and require costly repairs, highlighting the potential benefits of a unified approach for resource management.

PSC response
Adv Makinde clarified that the PSC recognises the different categories of local government as outlined in Section 155 of the Constitution (Categories A–C) and understands the necessity of tailoring systems to ensure that all municipal managers meet a required standard, regardless of the category. PSC plans to start implementation with a phased approach, possibly beginning with two metros as test cases over a two-year period, with further rollouts based on consultations and the development of regulations to handle specific operational details not covered in the Bill or Constitution.

Adv Makinde addressed concerns about PSC funding needs, stating that the PSC has never requested R200 million. Instead, it has provided an initial cost for establishing a Secretariat and requested Treasury’s support, allowing a year to phase in the Secretariat after the Bill is passed. Treasury has agreed to consider the appropriation once the Bill is enacted, at which point budgeting will align with the resources available. PSC has emphasised that its funding approach, which includes provisions for billing, allows for a progressive rollout based on affordability. PSC views resource constraints as a significant challenge to constitutional implementation but has secured Treasury’s commitment to support this phased approach once legislative approval is in place.

The Chairperson remarked that it seems as though the PSC intends to assemble a large, complex puzzle, taking it one piece at a time to build the complete picture gradually.

Public Affairs Research Institute (PARI) and The Ethics Institute (TEI)
The submission was delivered virtually via Zoom by Mr Ryan Brunette (Research Associate at PARI), expressing PARI's support for the Bill but suggesting it could go further in realising the vision outlined in the NDP and the Professionalisation Framework, particularly the regulation of the political-administrative interface. The submission addressed several areas: appointment of Commissioners, restrictions on remunerative work by Commissioners, the establishment of a PSC Secretariat, and the PSC’s prospective role in supporting the selection process for senior public service managers. It included both elements of the Bill that PARI endorsed and further recommendations and proposals.

Mr Kris Dobie, TEI Senior Manager of Organisational Ethics, highlighted the critical need to regulate the appointment process for senior managers in the public service and to depoliticise this process. He underscored the importance of checks and balances to prevent issues from arising. As an example, he cited former President Zuma's administration, noting that during Zuma's first 100 months, there were 126 changes to the National Executive, which was made up of 74 members. On average, this meant the Cabinet changed every eight months. This rapid turnover was possible because executive authorities could appoint Directors-General without oversight, which led to cycles of patronage politics. Consequently, 172 different individuals held DG positions in 38 departments, with an average tenure of less than two years per DG. This instability hindered the establishment of a stable public service, making it essential to regulate the political-administrative interface to support an impartial public service capable of implementing government policies effectively.

Discussion
The Chairperson requested the updated version of the submission.

Mr Letlape expressed agreement with most of the points but sought clarity on the appointment process for the CEO who is appointed by the PSC Chair. He questioned why these appointments were not made by the entire PSC, stating his discomfort with such decisions being handled in a one-on-one manner. The Chair could sign but the responsibility for appointments should rest with the full structure, not solely with the Chair.

Ms Tikana-Gxotiwe asked about a constitutional basis for arguing against a single public service as section 196 of the Constitution expressly states that there is a single Public Service. On the observation that the Bill should do more to give effect to the National Development Plan and Professionalisation Framework on regulating the political-administrative interface, what measures is PARI proposing?

Ms Xaba-Ntshaba agreed that a single Public Service is outlined in Chapter 10 of the Constitution. She asked how the Bill should more strongly support the regulation of the political-administrative interface. She questioned why PARI recommends centralising the powers of appointment and removal of the CEO. She asked why these powers should not be granted to the PSC Chairperson who represents the PSC structure.

Ms Potgieter sought clarity on PARI’s request about the appointment of positions below Deputy level. PARI noted that clause 16 states that the CEO is responsible for the formation and development of an efficient administration and organisational management and administrative control over all employees appointed, including the maintenance of discipline. She asked if this clause is insufficient for the power of appointment or if PARI is looking for something more specific to be included in the Bill.

She referred to PARI mentioning two clauses using "may" and "must." One is prescriptive, while the other is not. She noted that this duality could create challenges in interpretation at the local and provincial government levels. She requested the updated PARI submission.

PARI response
Mr Brunette responded that PARI broadly supports the Committee’s position on the appointment of the CEO and Deputy CEO. The submission reflects a broader body of work by PARI on reforming the appointment process, within which PARI argues for Commissioner involvement in constituting selection committees with the PSC Chair playing an authorising role in the appointment process.

On a single public service, while this vision has been longstanding, it would take considerable time to implement fully. PARI does not believe the Bill establishes a single public service; rather, it expands the regulatory power of the PSC to additional domains within Public Administration. He referenced the Constitution that, in PARI’s view, empowers the PSC to engage more broadly within Public Administration.

Addressing the need for strengthening the political-administrative interface, Mr Brunette explained that current mechanisms, such as those in the Public Service Amendment Act and Municipal Systems Act, aim to regulate this interface but lack checks and balances. This deficiency enables politically-aligned appointments without adequate scrutiny, as highlighted by the State Capture Commission. While PARI does not propose centralising appointment powers within the PSC, it suggests creating a mechanism to involve the PSC in selection processes to ensure support and oversight for appointments.

PARI also advocates for clearer CEO appointment powers for roles below as the current wording seems vague. On the language around "must" and "may," PARI views these as distinct mechanisms and is open to refining the language. The “may” clause allows an appointing authority to seek PSC involvement to boost public confidence, similar to President Ramaphosa’s approach with the National Director of Public Prosecutions. The “must” mechanism, on the other hand, would specify mandatory PSC involvement in certain cases as part of a gradual rollout aligned with policy momentum and the Public Service Commission Act, adaptable to Parliament’s intent.

[Inaudible segment: 02:10:44 – 02:10:58; 02:12:39; 02:12:58; 02:14:27 – 02:14:39]

Ms Xaba-Ntshaba complained that PARI presented a different version of the submission that the Committee had which made the Committee appear disorganised, which is not the case.

The Chairperson noted that technical difficulties were affecting PARI's ability to hear and see the Committee. After a short break to address a technical issue, it appeared to be resolved. When asked if Ms Xaba-Ntshaba wanted to continue, she noted that she did not believe PARI was still online. The meeting then proceeded without them.

Public Service Accountability Monitor (PSAM) submission
Mr Jay Kruse, PSAM Director, presented the submission which was prepared on behalf of the Action for Accountability Project (AAP), which is a collaborative project involving the Ahmed Kathrada Foundation and the Accountability Lab South Africa. He provided a brief background and mentioned the Sustainable Development Goals and how the PSC is linked to SDG 16 – “build effective, accountable and inclusive institutions at all levels”.

Ms S Gcilishe (EFF) interjected to complain that the Committee did not the submission.

The Chairperson apologised and assured the Committee he would have a meeting with the staff afterwards about not providing the submission. This is not the way it should be. However, he is not going to let the presenter stop due to time constraints.

Mr Sithole said that was not a valid excuse for the Committee to proceed without the submission. The Committee should have a physical or digital copy readily accessible. If the Chairperson insists the meeting cannot pause, that was unreasonable.

The Chairperson acknowledged Mr Sithole's concerns, but explained that the submission from PSAM had indeed been sent; it simply had not been printed on the Committee’s side. He would not delay the presenter due to this oversight by the Committee. He suggested that the Committee members follow the submission on the screen as it would be displayed.

Ms Xaba-Ntshaba said that if the submission is available, it should be sent to the Committee members' devices to allow them to follow along properly. It would not be fair to merely listen to the submission without a document in front of them. Without the document, it would be challenging to develop meaningful questions. However, she would not halt the submission.

The Chairperson instructed the presenter to proceed with the submission. The submission would be shared with Members via WhatsApp, allowing them to follow on their devices to avoid wasting time.

Mr Kruze continued noting that the submission covered the accountability ecosystem and was generally supportive of the proposed amendments to the PSC mandate. Their inputs included recommendations on Clauses 4(4)(b)(i)-(v), 5(e), 5, 6(1), 12, and 13.

Discussion
Ms Potgieter sought clarity on the provisions on remunerative work. She mentioned a scenario, previously discussed by the Committee, where someone might serve as a guest lecturer or engage in other forms of work that are not full-time and do not detract from their responsibilities to the Commission, but rather contribute positively to the community. She questioned if prohibiting all remunerative work might be overly restrictive in such cases.

Ms Tikana-Gxotiwe expressed that, while some of the issues raised seem to mirror those from other submissions, her question was a follow-up. She noted that other public servants are permitted to apply for permission to undertake additional remunerative work. She asked why, in this case, the Commissioners would be restricted from engaging in outside remunerative work, which could create a separation from other public servants who are allowed to apply for such permissions as per existing policy. She also inquired if there is a constitutional basis for advocating against a single Public Service, as outlined in Section 196 of the Constitution.

Ms Xaba-Ntshaba agreed with Ms Tikana-Gxotiwe's observations, noting that the documents presented seem to convey the same points. She asked if the Bill, in its current form, poses a risk to the autonomy of local government.

PSAM response
Mr Kruze acknowledged the concerns about restricting remunerative work. Various stakeholders had mentioned earlier in the day that the Commission needs better resourcing to fulfil its mandate effectively. Ideally, PSAM would prefer Commissioners to be fully dedicated to the Commission to support its mandate. However, the clause on remunerative work is not a major focus in the PSAM submission. Other clauses are more critical for advancing the Commission’s mandate.

On the mandate and role of local government, Mr Kruze explained that PSAM’s interpretation of section 195 is that the public service administration principles apply to all organs of state. The definition of "organ of state" in section 239 clearly encompasses local government as well as the other two levels of government.

City of Cape Town submission
Mr Daniël Eloff, Principal Legal Advisor for the Office of the Executive Mayor, City of Cape Town, presented the City’s submission, stating that it opposes the Bill in its current form. He outlined the primary constitutional concerns, highlighting issues such as the exclusion of municipalities from the public service, threats to municipal autonomy, insufficient consultations, implications for local government accountability and performance, and potential unintended consequences of the Bill.

Discussion
The Chairperson informed Members that Parliamentary Legal Services would provide the Committee with an opinion on the constitutional aspects central to the views expressed next week. The concerns raised by the City of Cape Town appear to be strongly focused on these constitutional matters.

Mr Sithole asked if the City of Cape Town was presenting solely on its behalf or representing all municipalities on prior notification about the Bill. He questioned if the City aimed to persuade the Committee against implementing the Bill due to perceived risks to its powers, which it felt might be transferred to national government. The Presidency’s intention seemed to be aligning national, provincial, and local governance structures, which raised concerns about municipal capacity and finances. If the City of Cape Town opposes the Bill’s implementation, what alternatives would it propose. This hearing is an opportunity to gather input from different sectors. He added that municipal, provincial, and national systems should align towards a cohesive national framework, questioning the City of Cape Town’s stance on excluding local government from these efforts.

Ms M Pholwane (ANC) said that some of her points had been addressed by Mr Sithole. She asked what the legal definition of "public service" is and on what authority the City of Cape Town is relying to argue that this definition excludes municipalities.

Ms Tikana-Gxotiwe stated that South Africa is a unitary state, despite the existence of different spheres of government. No municipality or entity can be isolated when laws are being made. She requested that the City of Cape Town clarify why it believes it should be excluded, especially laws that will bind all organs of state, regardless of government sphere.

The lawmaking process involves consultation, and the Committee is still in that phase. Some stakeholders may have been left out of the initial stages but the Committee is affording everyone the opportunity to make submissions whether written or in person.

She asked if the City of Cape Town represents all municipalities under the Western Cape Government or just the City itself. She understood the challenges the City may be facing. However, the drafting process began in 2015 and the Committee aims to conclude the Bill within the next financial year, ideally within the current year. The City of Cape Town had been given time to make a submission, as have all interested stakeholders, and the Committee values a democratic process where everyone can contribute.

She asked if the City of Cape Town believes that the PSC constitutional mandate addresses the critical aspects of government that could enhance the local government sphere.

Ms Xaba-Ntshaba agreed with Ms Tikana-Gxotiwe. She asked what aspects of the Bill would infringe upon sections 151(4) and 153, which prohibit the national government from compromising a municipality’s ability to perform its functions, thereby infringing on its administrative autonomy.

Ms Potgieter said that although she does not disagree with the City of Cape Town on the distinction between the Public Service and Public Administration, it is clearly differentiated. However, the intention of the Constitution seems clear that the principles and values governing Public Administration apply to all spheres of government. It states “There is a “single Public Service Commission for the Republic” in section 196, and it is clear from this that the intention of the lawmakers was to have a PSC with a mandate over all spheres of government. While the wording may be slightly problematic, the intention of the legislation is more important than the differentiation between local, provincial, and national government. She asked what the serious concern is on this, as much of what is proposed is already being done by COGTA, but not effectively. COGTA has a mandate to review appointments made by municipalities, including senior managers, and even to revisit municipal appointments. The issue is that it is not functioning properly, possibly due to a lack of resources or a dedicated committee like the Commission to manage such complaints. Coming from the City of Johannesburg, she affirmed that this is a serious issue.

While Cape Town may have processes in place that work for them, many municipalities do not, so the idea of not having legislation that applies to everyone does not make sense. If legislation applies to everyone, municipalities that are functioning well will likely not face many calls from the PSC.

Another issue is case precedent, as municipalities are increasingly being ordered by courts to compensate residents due to failure to perform basic functions, which is often caused by poor HR and officials in unsuitable positions. This is costing residents money because they have to pay for things that should have been done in the first place.

The aim is to regulate this, and she asked if the City of Cape Town has considered case precedents that have led to the need for something that should have already been in place: an ethical and accountable workforce. She does not think this particular piece of legislation is any different from the Office of the Public Protector, for instance. While it may add an extra layer of reporting, these matters are already being reported to COGTA. Municipalities send briefs to COGTA. Only in extreme cases would the Commission need to investigate what is happening within a specific sphere.

The Committee received extensive comments from the Western Cape Province, which offered input on the clauses. However, she believes the Bill needs to be viewed from a holistic perspective. If there is a constitutional issue, she pointed out that there is already a constitutional issue by not including local government in the Bill. The argument can be made both ways, and any Act could be challenged in court. She asked if there is an inherent issue about streamlining all of this together.

Dr Letlape asked about the City stating that the process not being inclusive from the beginning. For the country coming up with legislation, the process has been defined and this was the process. The City of Cape Town has been able to comment and was given an audience. He asked if there is any other defined process that has been ignored so that the Committee is made aware and can correct it, if such a process exists.

The City of Cape Town opposes the extension of the PSC’s mandate to include municipalities, which seems to be a viewpoint rather than a constitutional issue. If that is the case, Dr Letlape suggested that clarity could be sought from the Constitutional Court on that aspect, rather than engaging in back-and-forth arguments. The submission also calls for “focus on improving oversight effectiveness within the national and provincial spheres". From his understanding, the PSC will be an oversight structure, which would do exactly what the City of Cape Town wants done. However, the City of Cape Town appears to be calling for something that is already required by the Constitution but has not been adequately implemented. The Bill is aimed at ensuring that this happens, yet the City of Cape Town opposes this. Dr Letlape sought an explanation for that.

On the City’s expectation of the PSC to recognise constitutional limitations and respect municipal autonomy, Dr Letlape emphasised that the PSC is not intending to take away municipal autonomy but is focused on oversight, ensuring that everyone is held accountable. The PSC does not plan on running municipalities.

South Africa is one nation, and Dr Letlape asked if the City of Cape Town holds a different opinion on that. He would welcome the City working with the Commission, especially since it is one of the better-performing municipalities. He suggested that lessons could be taught to other municipalities to lessen the burden on the PSC for oversight, although this responsibility would not be taken away.

Dr Letlape’s hope is that, from the successes of the City of Cape Town and any shortcomings, lessons could be learned. He expressed the desire for the Seventh Parliament to conclude this Bill in this session. He was not fighting with anyone. No one wants to take over anyone’s job, but accountability must be ensured. Oversight must be carried out to get things done, without resorting to strikes, property destruction, or litigation, especially as there are insufficient funds for such actions.

Ms S Gcilishe (EFF) reminded the City of Cape Town that the province would not become independent in the way that the City of Cape Town seems to desire. She suggested that perhaps the City of Cape Town is moving from an attitude of assuming independence, but what applies to all other municipalities applies to it as well.

She expressed interest in understanding what form of consultation would have been considered sufficient or satisfactory to the City of Cape Town, as even the Western Cape Province itself had made a submission. She assumed that if the province was aware, the City of Cape Town would have been informed as well.

Ms Gcilishe sought clarity why the City of Cape Town perceives the implementation of a constitutional mandate as overstepping. She asked what exactly this means, as she was trying to understand the City of Cape Town’s concerns with the Bill. If it could provide clarity on this point, it would make the issue clearer.

The Chairperson observed that it appears that the core concern is a fear of overregulation and interference in the affairs of a government sphere. He clarified that this is not the intent of either the Bill or the Constitution. As crafted, the Bill does not suggest overregulation but instead grants the PSC powers and obligations across various clauses. He directed this statement not only to the City of Cape Town but to all stakeholders.

It was important to test each clause’s effectiveness in preventing overregulation while empowering the PSC as envisioned by the Constitution. The Committee will continue to invite written submissions on how to enhance the Bill’s effectiveness, and any such submissions will be distributed to all Members for further consideration. As he mentioned earlier, the Committee is awaiting one final opinion from Parliamentary Legal Services on the Bill’s constitutionality, ensuring that the Committee meticulously addresses all details.

The Chairperson added that there should be no narrow focus on the constitutional implications of extending the PSC’s mandate to local government and state-owned enterprises. Ultimately, the Committee must consider the Constitution’s intent for public service in any part of the state administration.

City of Cape Town response
Mr Eloff replied that the City only speaks for itself and cannot represent other local governments, though it welcomes their participation in the legislative process.

On consultation, Mr Eloff accepted responsibility, clarifying that the City is not complaining about a lack of consultation but is instead explaining that no local governments or SALGA were consulted before the Bill was drafted. The City’s presence now is to express its views on why local governments should not be included in the Bill.

On distinguishing Public Service from Public Administration, Mr Eloff said that Section 196 of the Constitution, which outlines the powers and duties of the PSC, references national and provincial organs of state but does not include local government. This exclusion indicates that local governments were not intended to fall within the PSC remit. Additionally, the appointment and removal of Commissioners are responsibilities assigned to national and provincial governments, with no involvement from local government. Including local government in the PSC’s oversight would thus disrupt the horizontal relationship between governmental spheres, relegating local government to a subordinate position.

Mr Eloff stated that the City does not seek an exemption from regulations applicable to it but contends that the PSC should not oversee local government, given the Constitution’s framework. Section 197 of the Constitutio defines the Public Service as a single entity regulated by national legislation and designates provinces as responsible for personnel management in their administrations. Local governments lack similar constitutional powers, creating a dissonance between the Constitution and the Bill’s provisions.

Chapter 7 of the Constitution grants local government legislative and executive authority over their functions. Section 151(4) specifies that neither national nor provincial governments may compromise or impede a municipality’s ability to fulfil its functions. Additionally, the original Public Service Commission Act references only “public service” and omits “public administration,” aligning with the constitutional framework that excludes local government. If the legislature had intended a unified public service across all spheres, it would have been specified.

City of Cape Town acknowledges South Africa as a unitary state but believes that local government should be excluded from the PSC scope due to constitutional considerations. Changing the constitutional framework would be a prerequisite for bringing local government under PSC’s authority. The Bill conflicts with this framework.

On whether the Bill would enhance governance at the local level, Mr Eloff suggested that the real question is its constitutional permissibility. Given that the Committee has requested a legal opinion on the matter, this uncertainty underscores the constitutional concerns. The City is also worried about reporting duplication, which could burden less efficient municipalities, drawing resources from other areas. The City argues that existing reporting mechanisms are sufficient.

Mr Eloff listed specific clauses that restrict local government authority:

- Clause 10 allows the PSC to investigate and issue directives on grievances in municipalities, overriding local control over administrative and personnel matters.

- Clause 13(1)(e) mandates that local governments report back on actions taken in response to PSC directives, limiting local administrative discretion.

- Clause 16(7) allows for the secondment of municipal employees to the PSC, indicating local government inclusion in the PSC’s remit.

- Clause 10(3) requires municipalities to implement PSC directives within 60 days, constraining local government autonomy.

In summary, Mr Eloff argued that these provisions, along with broader constitutional concerns, indicate a need to address the constitutional framework first.

Further discussion
Dr Letlape questioned if it might be more practical to pass the Bill first and then address any necessary constitutional amendments. Otherwise, the Committee could find itself in a Catch-22, potentially leaving this unresolved for future administrations. He proposed that, despite incongruencies, citizens might allow the Bill to pass, enabling a Constitutional Court challenge to address specific problematic areas. Without this approach, he cautioned that the Bill might ultimately stall and fail to progress.

Mr Eloff replied that from his perspective as an admitted attorney, it would not be appropriate to proceed with a Bill believed to be unconstitutional from the outset, only to amend it afterward. He argued that ensuring constitutional compliance must be the initial step. There are several ways to achieve this; for example, given that the primary concern lies with the inclusion of local government, it could be temporarily excluded from the Bill. This approach would allow the Bill to proceed while resolving constitutional issues later. Mr Eloff expressed doubt that it would be proper for the Committee to approach the Constitutional Court, fully aware of constitutional issues, and seek guidance on resolving them. This would not constitute an appropriate or genuine course of action.

Dr Letlape said it was important to clearly define and address these matters, expressing discomfort with lawyers who advocate future adjustments rather than providing concrete clarity at the outset. He urged a pragmatic approach, highlighting the need to take immediate, effective action to ensure the country’s functionality amidst challenging circumstances.

Mr Eloff responded that he completely understands the need for clarity and acknowledges the urgency. His role is to bring these issues to the Committee's attention and to convey the concerns raised. He expressed trust in the legislative process to address these matters [inaudible: 04:00:44].

Adv Makinde stated that she has listened to the arguments but still does not perceive any conflict or lack of clarity in the Constitution. Section 1 of the Constitution establishes the Republic of South Africa as one sovereign democratic state based on specific values, which serve as a standard for governance. Regardless of the powers afforded to local government, they remain part of this sovereign democratic nation.

The second principle is the supremacy of the Constitution, which is the highest law of the Republic. Any law or conduct inconsistent with it is invalid, and all constitutional obligations "must" be fulfilled—not optionally. The Constitution mandates one Public Service Commission for the Republic, which is defined as this single, sovereign nation. Chapter 10 of the Constitution, addressing public administration, applies to all individuals employed by the state, regardless of their governmental level, as they all serve the state and provide services within the scope of the state's mandate, including municipal services as listed in Schedules 4 and 5. Those performing such functions are considered state officials and are responsible for executing state duties, and therefore subject to accountability and oversight.

According to Adv Makinde, the PSC’s role is solely to oversee public administration across all three levels of government in line with Section 195 of the Constitution. The PSC is not intruding on local government functions or intervening in municipal administration but simply establishing standards applicable throughout. Section 155(1) says municipalities are created by provinces and must exist across the entire Republic as they are an integral part of the country. Section 151(3) states that municipalities have the right to govern their own local affairs, but this is still subject to national and provincial legislation under the Constitution.

Adv Makinde pointed to Section 40, which defines government as encompassing three spheres – national, provincial, and local – that are distinct, interdependent, and interrelated. She argued that municipalities cannot claim full autonomy within a system of government that is inherently interrelated. Therefore, there is no conflict; the Constitution is clear on these matters. She aimed to clarify these constitutional principles without delving further into the subject.

The Chairperson expressed gratitude to Adv Makinde and he looks forward to hearing her responses in the Committee the following week.

Ms Potgieter noted that there seem to be two sides to the argument. The comments on the exclusion of local government are significant, particularly on the lack of local government input in the Commissioner appointment process. The directives from the Commission could impact local government autonomy and she suggested that the Committee receive these concerns in writing.

Ms Potgieter questioned how these directives differ from those issued by bodies like the Special Investigating Unit (SIU) and the Public Protector. It currently allows the Commission to report cases of failure or unwillingness to comply with directives without mandating strict compliance. If there is an issue with a directive, she proposed that providing a channel for dispute resolution might be a viable solution.

The Chairperson agreed, suggesting that if the submission needs to be updated with comments raised during the discussion, the Committee and the PSC can provide feedback on those points in the following week.

Afternoon session

National Education Health and Allied Workers Union (NEHAWU) submission
Mr Barry Mitchell, NEHAWU Parliamentary Officer, introduced the submission by stating that NEHAWU supports the Bill but has certain concerns. There were comments on the PSC’s capacity constraints, the organisational and personnel implications of the Bill, Clause 6 which states that a Commissioner may not belong to any political party or organisation, Clause 13 on Commission reporting and accountability, and Clause 16 on the establishment of a Secretariat for the Commission. He also provided recommendations.

Discussion
Ms Potgieter raised a query about political affiliation, referencing her experience at the local government level. She explained that while everyone might support a political party, holding direct membership in a party while occupying a government position has been restricted by local government legislation, specifically through the 2022 Municipal Systems Amendment Act. This legislation prevents individuals holding political party positions from simultaneously holding government roles. For instance, in Johannesburg, several people were required to choose between their party role and government position, which did not necessarily sever their political affiliation.

Ms Potgieter sought clarity if this matter was more relevant to the Commission itself than to NEHAWU, and apologised if her question was misplaced. She also raised the need for a full feasibility or costing report from the relevant departments and the Commission as discrepancies in cost estimates had emerged over the past few weeks. For effective implementation, the Committee needs clarity on the resources required, as limited capacity and resources would hinder the Bill's success. While understanding PSC's need to assess its constraints, she stressed that it must have a clear starting point.

Ms Potgieter observed that municipalities are generally regressing, indicating an underlying issue in personnel deployment or recruitment. She suggested that, while the Bill might not address every aspect in its initial phase (as it seeks to correct longstanding issues rather than starting from scratch), NEHAWU could propose additional measures or directions that would enhance the Bill's effectiveness or assist in its implementation. She concluded by affirming that their shared objective is to professionalise government broadly and deliver effective public service.

Dr Letlape invited NEHAWU to provide concrete suggestions based on their comments. He referenced politically connected individuals and asked if NEHAWU was also suggesting that religious, social, or cultural affiliations of Commissioners be considered, or if their focus was solely on political affiliation. If NEHAWU had constructive suggestions on evaluating other affiliations due to their potential impact, the Committee would consider them.

On NEHAWU's concern that the Secretariat would lack sufficient personnel for its responsibilities, Dr Letlape asked if they had proposals for expanding the current PSC Secretariat. He requested NEHAWU's views on the necessary budget and structure to make the Secretariat fit for purpose. Resource limitations should not prevent the Committee from establishing essential functions, suggesting instead that prioritisation of funding might be needed. He asked from where funds could potentially be reallocated. He noted that one in five Members of Parliament are in the Executive, with 75 ministers and deputy ministers. The Committee would value input on potential savings and funding allocations, including specific amounts. For instance, a commitment of R120 million, rather than the proposed R15 million, might be required for an effective Public Service Commission.

Dr Letlape also asked how the Secretariat could be structured to fulfil its mandate effectively, with visibility at local and provincial levels. He encouraged NEHAWU to provide detailed suggestions that would inform the Committee’s discussions in Parliament and help advocate for necessary resources based on NEHAWU's insights. He expressed a desire for more specific recommendations beyond general critiques.

Mr Sithole asked if NEHAWU had discussed its submission with other federations. He suggested that NEHAWU do so, as some of the issues would benefit from a broader approach involving other federations.

Secondly, NEHAWU expressed concern about Clause 13 on the measures proposed for when a an organ of state or public entity fails to provide a report to the PSC upon request. He sought clarity on the shortfall NEHAWU identified in this clause.

Lastly, Mr Sithole asked NEHAWU to provide the Committee with insights on preventing political interference in the independence of the PSC. He noted that NEHAWU, given its position within the federations, was well-placed to comment on the risk of political dominance within the PSC, which could hinder transformation efforts.

Ms Tikana-Gxotiwe said that she found NEHAWU’s recommendations lacking in specifics. If NEHAWU argues that the Bill falls short of comprehensively addressing the deficiencies in the PSC, it should provide concrete recommendations rather than leaving the interpretation to the Committee, which might lead to solutions that fail to address NEHAWU’s concerns.

NEHAWU mentioned subjective and objective weaknesses and capacity constraints within the PSC but did not offer specific suggestions on how these could be strengthened. She encouraged NEHAWU to be more explicit, outlining practical recommendations that could help the Committee enhance the Bill. Also, NEHAWU referenced the importance of benchmarking against other countries and she suggested that it identify specific countries where the Public Service Commission operates effectively and the principles that contribute to that success. This would help the Committee to incorporate best practices. What measures would NEHAWU propose to strengthen the Bill in line with building a capable and developmental state and advancing the Professionalisation Framework?

Ms Tikana-Gxotiwe asked for NEHAWU’s perspective on the Bill’s constitutionality, specifically on the expansion of the PSC's mandate to include local government.

Ms Xaba-Ntshaba asked NEHAWU about measures to ensure proper accountability and enhance the authority of the Public Service Commission. What steps does NEHAWU propose to bolster the PSC’s authority to address impunity effectively? She requested NEHAWU’s perspective on the constitutionality of expanding the PSC's mandate to encompass local government.

NEHAWU response
Mr Mitchell replied that NEHAWU’s primary recommendation is to strengthen the Public Service Commission by providing it with adequate resources, enabling it to fulfil its mandate effectively. He acknowledged that their formal submission might not have fully conveyed this recommendation but noted that NEHAWU views the PSC’s limited public profile and funding as critical issues, especially if the PSC mandate is extended to local government. He urged the Committee to lobby National Treasury for initial costings and to ensure adequate funding to establish a competent and capacitated PSC Secretariat.

Mr Mitchell explained NEHAWU’s nuanced stance on political affiliation, recognising that political leanings are common but recommending careful language to avoid misinterpretation in the Bill. He supported conducting feasibility studies on costing, emphasizing the need for factual and quantitative funding measures to ensure the Bill’s effectiveness. Addressing Dr Letlape’s point on other affiliations like religious or cultural associations, he agreed to refine NEHAWU’s recommendations to clarify how various affiliations might impact PSC work.

Mr Mitchell further suggested broader consultation with other labour federations and affiliates to gather diverse perspectives on the Bill, highlighting NEHAWU’s specific focus areas in public service, health and higher education. For better benchmarking, he suggested developing nations with similar socio-economic contexts, such as the BRICS countries, Southeast Asia and Latin America, offer more relevant comparisons than industrialised Western nations.

On fiscal allocation, Mr Mitchell pointed to Cabinet costs, noting that NEHAWU advocates for fiscal adjustments that prioritise local government capacity over high salaries and benefits for MPs. On Clause 13 accountability, he advised Members to review NEHAWU’s full submission for further elaboration. He confirmed that NEHAWU found no constitutional conflict in expanding the PSC mandate to local government, and appreciated Adv Makinde’s clarity on this matter.

The Chairperson acknowledged the difficulty of funding, particularly in establishing the PSC Secretariat. Unlike the extensive funding required for the NHI, the funding scope here is comparatively smaller. He suggested an approach similar to a “chicken-and-egg” scenario: if there is constitutional consensus that the PSC must be strengthened and independent, then legislation should first be enacted to solidify this mandate. Once the legislation is in place, the Committee could approach Treasury to secure funding, with a practical implementation plan developed afterward. While he recognises the need for preliminary feasibility studies to gauge potential costs, the question of funding should not hinder the legislative process if constitutional support exists for strengthening the PSC.

Dr Letlape posed a challenge to Mr Mitchell, urging him to consider the role of union influence in civil service appointments and how unions could support the Commission in creating a professional public service. He referenced sectors such as education, where principals may be absent and students lack fundamental skills, and healthcare, where workers are sometimes absent or avoid using the facilities where they work. While unions are influential in shaping public service conditions, they are not viewed as critically as politicians. He encouraged Mr Mitchell and his colleagues to reflect on practical solutions to improve service quality across public institutions, aiming for a public service system that staff would also choose to utilise personally.

Ms Gcilishe asked NEHAWU if they had specific proposals on PSC funding and funding strategy recommendations. She asked for NEHAWU's definition of "professionalisation," questioning how the current Bill fell short of achieving this goal. She asked why NEHAWU believed that prohibiting Commissioners from having a political affiliation might be inappropriate and if it has suggestions for improving accountability measures.

PSC response
Public Service Commissioner, Mr Ashley Searle, addressed the Committee on the PSC’s stance on funding for the Bill. PSC recognises funding as a potential challenge but does not view it as a reason to delay the Bill’s progression. The PSC considers the Bill crucial for reinforcing the independence of the PSC and expanding its mandate to cover municipalities and other entities. Although opinions differ on the inclusion of municipalities, the PSC believes that this extension aligns with its constitutional responsibilities. Mr Searle affirmed that the Bill should proceed with legislative support and that advocacy efforts for adequate funding will follow.

Addressing NEHAWU’s comments, Mr Searle clarified that the Bill alone cannot establish a fully capable developmental state, as multiple institutions contribute to that objective. The PSC, under sections 195 and 196 of the Constitution, plays a specific, limited role in oversight and accountability, particularly within the context of municipalities. The mandate extension does not grant the PSC overarching control to resolve all municipal issues but remains within a “ring-fenced” scope as defined by the Constitution.

Mr Searle noted that the PSC would hold a session the following week to address further detailed concerns raised during the discussion and ensure the Committee receives an updated projection on its planning.

The Chairperson remarked on the inherent irony in the goal of establishing a highly effective, merit-based professional civil service. If this objective were fully achieved, the PSC would have minimal oversight work to perform, as an efficient and self-regulating public service would naturally reduce the need for extensive external intervention and accountability measures.

NEHAWU response
Mr Mitchell acknowledged the Commissioner’s input, finding it constructive. He clarified that NEHAWU does not expect the Bill, once enacted, to address all issues, as it represents just one component of a broader reform and transformation agenda. He proposed sharing recommendations from the 2010 Public Service Summit, organised by Labour, which remain relevant for the PSC and the Committee’s progress.

On funding, Mr Mitchell advocated for a revised approach to budgeting, aligning it with NEHAWU’s stance on addressing South Africa’s "triple crisis." He suggested reprioritising necessary expenditures and reassessing non-essential items to mitigate local government collapse, particularly at the municipal level. NEHAWU would submit the requested feedback.

On professionalisation, Mr Mitchell raised concerns about implementing meritocracy in South Africa’s context, given its ongoing social and economic inequalities after three decades of democracy. He questioned if meritocracy, as a standard for public service professionalisation, should consider experience as well as education, given stark disparities among communities, such as those seen in Cape Town. While not claiming NEHAWU has all the answers, he underscored that its input draws from worker perspectives and longstanding resolutions.

Mr Mitchell clarified NEHAWU’s stance on political affiliation in the Bill, suggesting that political influence be nuanced by also considering cultural, social, and religious affiliation that may impact Commissioners. On punitive measures, he emphasised the necessity for clear consequences when public authorities fail to report to PSC as required. NEHAWU’s position is that noncompliance should result in real penalties—whether suspension or sanctions—to ensure accountability. He concluded by highlighting the importance of addressing cadre deployment, advocating for strengthened oversight to enforce basic accountability.

The Chairperson remarked that he understands that there might be a possibility that a DA Commissioner might have to investigate a DA member, and that is where the question lies.

Commission for Gender Equality (CGE) submission
Ms Mamello Matthews, CGE Legal Officer, provided background on the CGE mandate and outlined the submission which included recommendations on the use of gender-neutral terminology, the composition of the Commission, criteria for disqualification from appointment as a Commissioner, renewal of a Commissioner's term of office, and procedures for a Commissioner’s vacation of office.

Discussion
Ms Xaba-Ntshaba asked if the Commission for Gender Equality (CGE) is a provincial or national entity. After learning that CGE is a Chapter 9 institution, therefore operating as a national body, Ms Xaba-Ntshaba expressed her concern that this was her first encounter with the CGE. She questioned why, given South Africa’s high levels of gender inequality, CGE’s presence seems limited. She worried about individuals on the ground experiencing gender inequality without awareness of CGE’s support.

Ms Xaba-Ntshaba inquired about the number of public imbizos or awareness campaigns conducted by CGE to increase visibility and outreach. She highlighted schools grappling with gender inequality issues, mentioning incidents of racial discrimination where derogatory terms are used, particularly in the Western Cape and Northern Cape. Drawing on her recent oversight experience with the Basic Education Portfolio Committee, Ms Xaba-Ntshaba pointed out multiple instances of inequality and voiced concern that some commissions appear confined to their offices rather than engaging directly with communities.

Ms Xaba-Ntshaba referenced incidents reported in the media, including school fights and a tragic case in the Western Cape where a young girl allegedly lost her life due to her mother reportedly selling her to a traditional healer ("sangoma")—a case still under investigation with the mother currently in custody. She questioned CGE’s visibility in such matters. By increasing public awareness, CGE could play a pivotal role in educating people on their rights and helping them to fight for equality.

Ms Tikana-Gxilishe asked how CGE is addressing the use of gender-neutral language and if any case law supports its objectives. She asked to what extent individuals involved in gender-based violence (GBV) and femicide cases are appointed in the public service and what measures exist to tackle this or what are the gaps. She did not want CGE to offload its responsibilities onto the PSC, as these issues should fall under CGE’s mandate.

Ms Tikana-Gxilishe highlighted the need for a balanced approach about the appointment of individuals with past GBV offences or accusations. While it is important to address cases where individuals have committed offences, CGE must consider gender-related cases that have already been resolved, especially those within government employment.

Ms Tikana-Gxilishe asked about the prevalence of non-gender-neutral language in legislative and government policy documents. She acknowledged that as they discuss establishing a Chapter 10 institution, CGE as a Chapter 9 institution, may have relevant experiences to share. Such insights would help the Committee to fully understand the distinct roles and responsibilities of Chapter 9 and 10 institutions before making a final decision.

Ms Potgieter first addressed the language inconsistencies within the Bill, noting that terms such as “person,” “he or she,” and “Commissioners” are used interchangeably without standardisation. She acknowledged that while this may seem minor, if the language is offensive to anyone, it could easily be revised. For instance, “he or she” could be simplified to “they” which retains the meaning without specifying gender.

On gender equality in the workplace, Ms Potgieter spoke to the need for equality across various dimensions. She recognised the importance of encouraging women to participate in traditionally male-dominated roles. There is a desire to see female leaders, but many women do not apply for these positions. She suggested that the Commission could explore ways to encourage more female participation in these areas.

On legislative support for gender equality, Ms Potgieter noted that that while the Employment Equity Act provides for workplace equality, there is also the Women Empowerment and Gender Equality Bill, introduced around 2013. She questioned if this Amendment Bill was the appropriate platform to drive gender equality initiatives at the ground level, suggesting that linking the current Bill to existing legislation, such as the Employment Equity Act, might be more effective. While the PSC Amendment Bill could include references to gender equality, it is unlikely to address the broader issue across government departments and recruitment practices. Instead, these objectives may need to be pursued through a separate legislative pathway that has a wider reach than the PSC, which primarily relates to Commissioners.

Dr Letlape expressed concern over the structural limitations of the Commission. Noting that the PSC has only five Commissioners and just one per province, is this structure adequate for the substantial work required? He suggested that the Committee might consider expanding the structure to address this issue effectively.

Dr Letlape also raised gender sensitivity, pointing out that, currently, only two of the nine provincial Premiers are women. This structure could potentially lead to the appointment of nine provincial Commissioners who may not reflect gender sensitivity. He questioned how the Committee could ensure a balance without compromising other factors, given that each Premier is responsible for a single Commissioner appointment in each province.

The concept of "equal representation" was another point of concern. Dr Letlape asked if the term “equal” should be understood as prescriptive, implying that each form of identity that the Commission recognises would need to be represented. He highlighted the challenge of reflecting gender diversity in a structure that traditionally views gender as binary (male-female) but needs to be adaptable to accommodate other forms of gender identity as society evolves. Given the limited number of Commissioners, he questioned how the Commission could adequately ensure gender sensitivity without expanding its size.

Dr Letlape sought suggestions for possible amendments to the Bill to prevent a male-dominated Commission and support gender transformation. He asked what measures could be implemented to ensure this consideration is prioritised and not overlooked within the limitations of the current structure.

Ms Gcilishe supported the suggestion to incorporate gender-neutral language in the Bill but emphasised the need for clarity and consistency. She asked CGE to provide specific recommendations on how this should be implemented, as opposed to shifting between terms like "Commissioner" and "she or he," which could lead to confusion.

She asked CGE for details on specific mechanisms they might propose to ensure that all groups are represented in the selection process for Commissioners. She sought clarity on how the CGE would address challenges that might arise if, despite these efforts, the Commission remains male-dominated after the selection process.

She also asked for CGE’s input on a reasonable timeframe for the process of removing a Commissioner.

Mr Sithole noted that he had expected more recommendations from CGE as a Chapter 9 institution facing numerous challenges. He expressed concern over the limited recommendations noting the importance of its thorough review of the Bill.

Mr Sithole said there are significant gaps in gender equality, even within the dynamics among women. In meetings with a majority of men, women often elect men for leadership positions rather than supporting other women. Such observations should be reflected in CGE’s recommendations.

Mr Sithole stated that there remains a disparity between men and women’s pay. He urged CGE to address this in the recommendations so that the Bill truly supports equality, reinforced by the relevant data from CGE.

Dr Letlape commented on the value of CGE providing input on directing comments specifically to the President. If the appointing authority is made explicitly aware of the importance of maintaining gender balance, it could help counter male-dominated appointments. The language in the Bill should explicitly mandate the President, as the appointer, to uphold this balance, in line with constitutional provisions. This responsibility would ensure balanced representation in society.

The Chairperson acknowledged CGE's comments on the positive correlation between legislative bodies with gender-balanced representation and the strengthening of women's rights. He found this perspective insightful and valuable. He suggested that it would be beneficial to schedule a separate session for CGE to present an in-depth overview of its powers, functions, and ongoing work, highlighting its role as an essential voice and stakeholder in public service and administration. He instructed parliamentary staff to coordinate this session with CGE to better understand its impact.

On CGE’s recommendations on the Bill, the Chairperson recognised the importance of gender balance among Commissioners. However, he questioned if this balance should be legislatively mandated or guided by moral and existing legislative frameworks. He appreciated CGE’s submission, noting that they extended beyond gender equality to include practical suggestions, which he found thoughtful and constructive.

CGE response
Ms Matthews elaborated on the CGE’s stance, saying that a balanced and representative Parliament or institution benefits not only women but society as a whole, as diversity brings different perspectives, enhancing decision-making. Balanced representation is not just about gender but extends to representing varied community experiences. This diversity allows individuals to relate better to leaders who understand their unique challenges.

On gender-neutral language, Ms Matthews highlighted CGE’s suggestions, such as using “incumbent,” “candidate,” or “they” instead of “him or her.” Gender neutrality in recruitment is part of the broader issue of transformation, a concept historically tied to racial equality in South Africa. CGE’s perspective is that transformation should permeate all aspects of government and should not be reduced to quotas but rather reflect a shift in societal mindset towards true inclusivity.

She explained that although the CGE's recommendations did not specifically mandate quotas, they encourage a transformation in thinking, aiming to foster inclusivity in recruitment processes across gender, race, and other dimensions. The goal is not to impose quotas, but rather to influence decision-makers to naturally consider gender balance without necessarily enforcing strict numbers. CGE’s commitment is to promote gender transformation and while gender balance should be integral, it should not compromise merit or functionality.

Ms Matthews also noted CGE’s resource limitations, explaining that each province typically has only one legal officer and one public education officer, making it challenging to maintain a continuous presence across large geographic areas. This limited staffing requires CGE to be strategic, choosing impactful cases that can benefit multiple people through systemic change rather than addressing issues on a case-by-case basis.

On the topic of gender-based violence (GBV) cases, Ms Matthews explained that CGE handles cases within its mandate but will refer issues outside its scope to the appropriate institutions. For recruitment, CGE advocates consideration of female participation and addresses biases that may exclude women based on stereotypes on family responsibilities.

Ms Matthews noted the recent appointment of new CGE Commissioners in provinces like the Northern Cape and Western Cape. She expressed optimism that these appointments would increase CGE’s visibility and engagement at the provincial level.

A second CGE representative said both the PSC and the CGE face similar funding challenges, as highlighted by NEHAWU. CGE has endorsed a new business model requiring substantial funding as its ability to implement and expand its outreach is limited. With only one individual per portfolio across nine provincial offices, CGE has joined forces with the Forum on Institutions Supporting Democracy to maximise resources and improve visibility.

She acknowledged a Committee Member’s suggestion on a mechanism for recommendations to the President on matters of representation, considering it an excellent idea. Such recommendations could clarify instances where individuals might be excluded, such as due to sexual offences, or outline why a particular candidate would contribute effectively to representation within the Commission. On the topic of female participation, she supported Ms Matthews’ comments about women in male-dominated sectors, noting that many women face barriers due to unpaid care responsibilities, which limit time for career development. This submission seeks to foster understanding of how such challenges impact women’s career progression.

She linked these points to the Women Empowerment and Gender Equality (WEGE) Bill, hoping it will be enacted and integrated with Employment Equity provisions. While welcoming this Committee’s invitation, she shared that the CGE regularly reports to the Portfolio Committee on Women and has also presented before the Basic Education Committee, where they discussed teenage pregnancy, a priority focus for CGE.

Ms Gcilishe stated that she disagrees with the notion of dismissing women’s issues based on assumptions about their interest or lack thereof in certain processes or topics. She likened this to the approach previously taken towards the integration of Black people, particularly African people, where specific processes were established to encourage integration. Similar systems may be needed to promote gender equality, ensuring that issues affecting women are not overlooked or attributed to disinterest or unavailability.

In response to Ms Gcilishe asking if CGE currently has Commissioners as previous Commissioner terms had ended, CGE confirmed that indeed it has active Commissioners.

Ms Tikana-Gxotiwe expressed agreement with gender equality but questioned if it is prudent to incorporate this principle directly into the Bill, especially given the complexities on achieving equity in recruitment. She asked if it might be more effective to treat gender equality as a guiding framework rather than embedding it in the Bill itself. Drawing on the experiences of others, she wondered if an understanding of the importance of equity could be sufficient, or if it must be explicitly reflected in the legislation.

The CGE representative responded by likening the situation to a "chicken and egg" scenario, questioning if they should wait to include gender equality and inclusive language in the Bill or pursue it through other legislative avenues. For CGE, it seems best to take advantage of the current opportunity to ensure that these elements are reflected in the Bill, even as other issues are addressed on different platforms. CGE receives complaints from the LGBTQ+ community across all their offices on the language used in policies and legislation, highlighting their importance based on feedback received directly from the public.

The Chairperson thanked everyone for their participation and concluded the session.