Public Service Commission Bill: public hearings report, motion of desirability, deliberations

Meeting report

The Chairperson noted that the responses to the public submissions had been concluded the previous week from the Public Service Commission and Parliamentary Legal Services with input on the constitutionality of the Bill. The Chairperson explained that the purpose of the day’s meeting was, first, to adopt the public hearings report, which reflected on the submissions and the motion of desirability of the Bill, in order to determine its desirability based on the submissions received. Following this, Members would deliberate on the Bill on a clause-by-clause basis, guided by the submissions provided to the Committee. Both Legal Services and the Public Service Commission would play a crucial role in ensuring that any amendments to the original Bill were legally sound.

The Chairperson acknowledged the diligence and urgency demonstrated by the Committee in processing the Bill. However, he cautioned Members to avoid feeling rushed during the critical clause-by-clause deliberation phase. Time had been allocated for an all-day meeting until 16:30, and should the Committee run out of time, Members would decide whether to adjourn and resume deliberations at the next meeting or schedule an additional session. A calm and methodical approach was needed at this stage to ensure the Bill was thoroughly processed and that Members were satisfied with the outcome.

Parliamentary Legal Services would provide guidance and that the day’s meeting was an opportunity for Members to give their input on every clause of the Bill. Based on these inputs, Parliamentary Legal Services would draft the A-List of Committee proposed amendments which would be reviewed and voted on at the next meeting.

The Chairperson stressed that the day’s proceedings were not focused on voting on individual clauses but rather on allowing Members to provide their inputs and make constructive suggestions. He expressed the hope that, as legislators, the Committee would craft a Bill of the highest quality to maximise its chances of success and contribute to improving South Africa, which he believed was the shared purpose of everyone present.

Public Hearing Report on Public Service Commission Bill
Mr Julius Ngoepe, Committee Content Advisor, confirmed that all submissions, both oral and written, had been incorporated into this report. He requested that, due to the comprehensive analysis already undertaken on the submissions, he would proceed page by page. He invited Members to raise any points of clarification or to indicate if any of the submissions had not been accurately reflected in the report. Members were encouraged to correct any discrepancies as necessary.

The Chairperson reminded Members that the Committee had worked through the submissions, both during a previous presentation and in the oral hearings where stakeholders provided additional input. The report had been distributed prior to the meeting, giving Members sufficient time to review it. The Chairperson proposed that, if there were no objections, a mover be called to support the decision to adopt the report without going through it page by page, as suggested.

The Chairperson asked if there were any objections to proceeding in this manner. No objections were raised.

Mr Ngoepe continued with the presentation highlighting the background and the 12 organisations that have submitted input.

Ms L Potgieter (DA) noted that while the Western Cape Government had raised concerns about the Bill and questioned its constitutionality, particularly in its application to local government, they had not outright rejected it. Instead, they had provided extensive suggestions for amending certain provisions, such as those relating to qualifications. She emphasised that the Western Cape Government’s input appeared to reflect support for specific provisions, albeit in a modified form.

Mr Ngoepe clarified that, as reflected in the report, the Western Cape Government had rejected the Bill on the grounds of unconstitutionality, as stated on the first page of their submission. However, despite its rejection, the Western Cape Government had proposed amendments to certain clauses, which had been incorporated into the analysis presented to the Committee.

He said that while the Western Cape Government opposed specific aspects of the Bill, particularly the extension of the Public Service Commission’s mandate to local government, their input had been considered. Mr Ngoepe assured Members that the submissions had been represented accurately in the report, without misrepresentation.

He acknowledged that if Members felt it necessary, the report could further elaborate on the Western Cape Government's proposals, highlighting that although they had rejected the Bill, they had suggested amendments to certain clauses. The clause-by-clause deliberation process would take into account all submissions received from various organisations.

The Chairperson reflected on Ms Potgieter's comments and Mr Ngoepe's input, raising the question whether the report should include a detailed account of the submission from each organisation. The report followed a consistent format throughout, providing a general summary of the submissions received from the various stakeholders rather than a detailed breakdown of their specific proposals. The detailed inputs from stakeholders had been considered by the Committee, these inputs were more relevant for informing the decisions to be made during the clause-by-clause deliberations.

Dr T Letlape (Action SA) noted that the points being raised were addressed on Page 3, in the second paragraph, which clearly stated that the Western Cape Government had recommended amendments to the Bill. This captured the essence of their submission, indicating that they had not rejected the Bill outright but had instead provided suggestions for improvement. This reflected the spirit in which their submissions were made.

The Chairperson noted that the aspect of the Constitution granting the Public Service Commission jurisdiction over local government would be addressed specifically.

Dr Letlape added that this would be discussed during the clause-by-clause deliberations.

Ms Potgieter clarified that her comment was not intended as an amendment to the report but was instead a request for clarification.

Mr Ngoepe continued, covering pages 3 to 18, during which there were no additional comments or amendments. He emphasised the following key points for noting:

The detailed submissions, both written and oral, along with the support staff analysis, legal opinion, and the Public Service Commission's response, can be made available upon request from the committee secretary. This ensures that, should any individual or organisation require further details, the complete documentation will be accessible.

Mr Ngoepe said the Committee would proceed to decide on the motion of desirability, in accordance with the rules of the National Assembly.

The Chairperson asked if the Committee should first vote on the report and then proceed to the motion of desirability.

Mr Ngoepe responded that it was not necessary to vote on the report unless Members wished to propose changes. He explained that if there was consensus among the Members that the report accurately captured the critical aspects arising from the public participation process, it could simply be agreed upon, similar to the adoption of minutes. The report was a reflection of the Committee's deliberations on the submissions received during the public participation process. Voting could be reserved for the motion of desirability if consensus was not reached at that stage.

The Chairperson requested that the report be adopted.

Ms P Xaba-Ntshaba (ANC) moved to adopt the report, and Ms Potgieter seconded the motion. No objections to the adoption of the report were raised.

Motion of desirability
Mr Ngoepe explained the concept of the motion of desirability, noting that according to Rule 286(4) of the National Assembly Rules, when a Bill is brought before a committee of the National Assembly or the National Council of Provinces, the committee must, after due deliberation, consider a motion of desirability. He elaborated that this motion is based on the public participation process and the committee’s deliberations.

If the committee finds the Bill undesirable, it can decide not to proceed with it, citing reasons such as legal concerns. In such cases, the Bill and a report outlining the committee’s reasons are referred back to the National Assembly for reworking. Conversely, if the committee agrees that the Bill is desirable, it proceeds to the clause-by-clause deliberations. The motion of desirability must be resolved before the committee can begin detailed deliberations on the Bill.

The motion of desirability report is a simple reflection of the referral and the Bill's objectives, aligned with Rule 286(4). If the motion of desirability is adopted, the committee proceeds with the legislative details. If rejected, the Bill and its report are tabled immediately in the National Assembly for further action.

Mr Ngoepe said that the Committee must decide whether the Bill is desirable or undesirable. If deemed undesirable, the report will not include provisions for further deliberations. However, if it is considered desirable, the Committee will continue to deliberate on the legislation's details as part of strengthening the PSC through legislative reforms.

The Chairperson said that, in essence, the motion of desirability involves assessing the main objectives of the Bill, without delving into the detailed clauses. The purpose is to determine whether the Committee finds these objectives desirable or undesirable.

As no clarity-seeking questions were raised, the Committee adopted the motion of desirability report stating that the Bill was desirable.

Clause by clause deliberation of Public Service Commission Bill [30-2023]
The Chairperson outlined the format for deliberations. The Public Service Commission would be given an opportunity to provide input on each clause after the Parliamentary Legal Advisor had offered her technical advice or opinion on the clause. Following that, Members would give their input on each clause. If any clauses raised differing opinions on changes, additions, or deletions, and no consensus was reached within the Committee, the Parliamentary Legal Advisor would provide alternative options for the Committee to consider at the next meeting.

The Chairperson emphasised that the goal for the day was not to vote on any single clause but to ensure that the Committee followed the correct process and that everyone had an opportunity to contribute their input on each clause. Even if this resulted in differing opinions on certain clauses, the Committee would seek advice on the options presented. The aim was to ensure that the Committee had thoroughly considered the Bill and was satisfied with its content before forwarding it to the National Council of Provinces for further processing, after voting in the National Assembly.

Ms Fatima Ebrahim, Parliamentary Legal Advisor from Parliamentary Legal Services, explained that it was now up to Parliament to decide whether the Bill, in its current format, was satisfactory or whether the Committee, as an extension of the National Assembly, wished to propose any changes or amendments to improve it.

Ms Ebrahim outlined the process, stating that following the day’s meeting, an A-List would be drafted. The purpose of this document was to capture any changes recommended by the Committee for incorporation into the Bill. Once the A-List was adopted, it would be converted into what is referred to as a B-Bill. The B-Bill would then be presented before the National Assembly for adoption. If adopted, it would be transferred to the NCOP.

Long Title and Preamble

Ms Ebrahim noted that the long title of the Bill provided a concise indication of its contents. However, a public comment was raised on the promotion of the values and principles set out in Section 195 of the Constitution. The comment highlighted that the wording in the Bill did not fully reflect the provision in the Constitution. Specifically, the Constitution states that these values and principles should be promoted throughout the public service, which was not captured in the Bill’s current wording. The Committee was advised to consider whether it wished to include this phrasing.

Additionally, an issue was identified in the preamble of the Bill, which mentions investigating grievances of employees. The Constitution explicitly refers to official acts or omissions, a phrase that was not reflected in the preamble.

It was suggested that the Bill should fully align with the Constitution, and minor amendments should be made to incorporate the missing wording.

The Chairperson asked to confirm that a few changes had been mentioned, which appeared not to alter the substance of the Bill but simply aligned its wording with the Constitution.

Ms Ebrahim confirmed this, stating that the intention was to ensure the wording matched that of the Constitution exactly.

Mr Ashley Searle, Western Cape Public Service Commissioner, stated that, in his view, the preamble serves as a summary of the Bill’s intention and the objectives it seeks to achieve through the legislation. He explained that different pieces of legislation adopt varying stylistic approaches to drafting. In the Bill, the preamble does not aim to replicate the Constitution verbatim but rather summarises the main provisions related to the Public Service Commission.

He pointed out that Section 195 of the Constitution mentions basic values and principles but does not delve into specifics. He then posed the question of whether there was a defect in the way the preamble had been drafted and, if so, whether that defect was significant enough to warrant the proposed amendment. Alternatively, he asked whether the preamble, as currently crafted, sufficiently provided readers with an understanding of the Bill’s primary intentions and objectives.

Adv Shukrat Makinde, PSC Director of Legal Services, stated that it would be necessary to involve the State Law Advisor, who was present at the meeting, as well as the Office of the Presidency, in the day’s discussions.

The Chairperson stated that the State Law Advisor had collaborated with the Executive on the Bill during its initial development in the Executive Office. This made the Advisor an important voice in the discussion, as the process had originated there. He agreed that the State Law Advisor’s input would be valuable in ensuring that the Bill was processed properly.

Adv Makinde emphasised that, as the Commissioner had stated, it was unnecessary to include specific sections of the Constitution in the preamble. The preamble adequately reflected the mandate of the Public Service Commission. Referring to the first bullet point, she highlighted that while it mentioned promoting the values and principles set out in Section 195 of the Constitution, it excluded public administration, which misrepresented the Public Service Commission's mandate. The Bill aimed to ensure the PSC mandate covered both public service and public administration, and narrowing the scope to only public service could create future issues by altering the Bill’s objectives.

Adv Makinde explained that Section 195 was intended to address values across all three spheres of government, including public enterprises and organs of state, and selective referencing was inappropriate.

On the fourth bullet, she pointed out that it referred to ensuring compliance with personnel procedures such as recruitment, transfers, promotions, and dismissals. However, the PSC’s directions were broader than this and were grounded in Section 196, not Section 195, making it unnecessary to limit the preamble in that way.

Also the phrase “either on own accord or receipt of a complaint” was unnecessary as it was already covered under Sections 196(4)(f)(i) and 196(4)(f)(ii). Similarly, where the Bill referred to investigating grievances of employees in the public service and recommending remedies, adding "concerning official acts of omission" was redundant, as the term “grievance” was clear unless further defined elsewhere.

Adv Makinde explained that advising national and provincial organs of state on personnel practices was already broad, and limiting it to recruitment and similar matters was unnecessary. She highlighted that the PSC also provided advice on many other issues.

She concluded that the preamble was not intended to replicate the Constitution verbatim but to introduce the Bill. Since the preamble was neither incorrect nor unconstitutional, she proposed leaving it as it was, arguing that the suggested changes were unnecessary.

Ms Fatima Ebrahim explained that drafting legislation is not an exact science and is often influenced by drafting styles and preferences. Much of what had been raised in the submission stemmed from a perceived constitutional disconnect. This disconnect, she clarified, was likely the reason for the insistence on including certain phrasing in the Bill.

It was ultimately up to the Committee to decide whether they wanted to amend the text. However, she pointed out that the Constitution itself included the phrase "throughout the public service," which had contributed to challenges on constitutionality. As she had explained in her previous presentation, this phrasing created a constraint on PSC powers and functions. Whether or not this phrasing was included in the Bill, the PSC would always remain bound by the provisions of the Constitution. Should any disputes arise, it would ultimately be for the courts to interpret the matter.

The Chairperson stated that the first two proposed changes – the insertion of "throughout the public service" and the phrase "set out in section 195" – were significant amendments. There was no consensus on these changes and invited members to provide their inputs on the matter.

Ms Potgieter agreed with Parliamentary Legal Services, stating that the preamble closely mirrors the wording of the Constitution, with only a few words omitted. Section 195 outlines the principles from subsections (a) to (g), which are largely reflected in the preamble, except for certain omissions, such as "throughout the public service" and "as set out in Section 195." She was uncomfortable with selectively including parts of the Constitution. If it is quoted, it should be quoted verbatim. The Constitution specifically mentions "throughout the public service" and not "throughout the public administration," concluding that the wording of the Constitution should not be altered.

Ms Tikana-Gxatiwe expressed her expectation that the meeting would focus on the amendments, as other issues had been addressed in the previous meeting. During the last meeting, the committee had advised the PSC and Parliamentary Legal Services to engage on these matters beforehand to avoid presenting conflicting views before the Committee. These entities, being subject-matter experts, should resolve any differences to prevent confusion among Committee members.

Ms Tikana-Gxatiwe was disappointed at the lack of collaboration between the two parties – they were expected to address minor issues prior to the meeting. She urged the Committee not to seek further legal opinions, as this would delay the process, and affirmed her support for proceeding with the definitions, particularly on local government and municipality.

PSC has a mandate, specifically in relation to the values and principles outlined in Section 195 of the Constitution, in alignment with Section 196. Referring to case law, The President of the Republic of South Africa and Others v South African Rugby Football Union and Others, all provisions of the Bill of Rights are binding on the executive and all organs of state. She referenced Section 151(3) of the Constitution, which grants municipalities the right to govern their own affairs, subject to national and provincial legislation.

She appealed to Parliamentary Legal Services and PSC to clarify any remaining grey areas in the Bill.

Ms Xaba-Ntshaba agreed with Ms Tikana-Gxatiwe, noting that issues of public service administration and human resources are addressed in the Municipal Systems Act. That Act requires the principles of public administration, as outlined in Section 195(1) of the Constitution, to apply to local government and municipalities.

She pointed out that the Constitution, under the section on public administration, sets out the values that must govern public administration across all spheres. The Constitution establishes the PSC to promote these values in public administration.

Ms Xaba-Ntshaba concluded by affirming her support for the preamble of the Bill.

Dr Letlape asked if the omission of the phrase throughout the public service was intentional to address the issue of administration being left out. He suggested that the committee consider explicitly including both terms—throughout the public service and public administration—to ensure clarity. Section 195 of the Constitution refers to public administration and asked if the inclusion of both terms would reinforce the PSC mandate over both service and administration.

Dr Letlape proposed that this intentional inclusion be reflected in Section 4(a) of the Bill. He referenced past debates on the scope of the Commission's authority, including whether it extends to local government. Public service is important but also including administration to prevent ambiguity on the Commission's oversight, ensuring that entities cannot claim they fall outside its jurisdiction or report solely to a minister.

Ms Potgieter cautioned against amending constitutional provisions within the preamble. The preamble primarily quotes the Constitution. For instance, Section 196 outlines certain principles, while Section 196(4) specifies the powers and functions of the PSC. The Committee does not have the authority to alter these constitutional provisions, and they must be reflected exactly as they appear in the Constitution.

Ms Potgieter warned that attempting to modify constitutional provisions could lead to significant issues. Such changes could render the entire preamble and references throughout the Bill unlawful, as the Committee would be attempting to amend the highest law in the land—a function beyond its mandate.

The Chairperson stated that in a process such as this, where the Bill originated in the Executive, was drafted by the State Law Advisor, went through the PSC, underwent a public consultation process, and is now before the Committee with assistance from Parliamentary Legal Services, it is entirely expected that differing opinions will arise. it is common for legal practitioners to have varying perspectives, and he was not uncomfortable with this, as it reflects the nature of legal discourse. It is the Committee's responsibility to navigate these differing opinions and determine the way forward.

Referring to the Commissioner’s earlier remarks, the Chairperson said that the preamble does not aim to establish legislative clauses, which will be addressed later in the Bill. He agreed that if the Constitution is quoted, it should be quoted verbatim, particularly in the preamble. While he acknowledged the rationale behind crafting slight changes to constitutional wording, he was hesitant in doing so in the preamble. However, he indicated openness to exploring this possibility when addressing the clauses in the Bill.

The Chairperson proposed a balanced approach: the Committee could review both versions—one reflecting the proposed changes and another without the changes—when considering the A-List. He suggested that Members should have the opportunity to deliberate on both versions and decide on a preferred option during the next session. Members indicated no objection to this approach.

Ms Ebrahim stated that, as indicated by members in the previous meeting, there is an intention to move forward with the understanding that the Constitution can be interpreted to include public administration. The Constitution provides for the exercise or performance of additional powers or functions prescribed by an act or legislation, with this Bill serving as such an act.

She explained that even if the Constitution is correctly quoted, this does not preclude the inclusion of public administration, as this inclusion has already been addressed in the definitions in the Bill. The focus would be on ensuring that the wording is correctly reflected. She assured the Committee that this would be captured accurately in the A-List.

Clause 1: Definitions

Ms Ebrahim took the lead in explaining the definitions section of the Bill. She clarified that terms that are commonly understood do not require definitions, which is why not every term used in the Bill is included in this section. She provided the following comments and suggestions:

Definition of "Commission":
The term "Commission" is defined as the PSC as referred to in section 196(1) of the Constitution. Ms Ebrahim suggested deleting the word "Commission" in brackets, stating it was unnecessary since the definition already specifies the Public Service Commission. She noted this as a drafting preference.

Definition of "Employee":
She proposed clarifying the definition to state "employee means in relation to the secretariat of the Commission" to avoid any confusion, as section 16(3) of the Constitution makes it clear that commissioners cannot be employees. She considered this addition optional and a matter of drafting style.

Definition of "Prescribed":
Adv Makinde explained the process by which the Commission makes rules, equating them to regulations that originate from the executive.

Definition of "Public Administration":
This definition broadens the scope to include municipalities and public entities.

Definition of "Departmental Bargaining Forum":
Ms Ebrahim noted that this definition needed to be reordered alphabetically to appear under "Constitution." She also suggested that the term "secretariat" be omitted in this context as it is already defined as the secretariat of the PSC, making its repetition redundant.

Definition of "Rule":
She recommended amending the definition to state: "a rule means a rule prescribed under section 20." This adjustment would align the definition with its context and improve precision.

Commissioner Searle agreed with the proposed changes to the definitions section. PSC had engaged with Parliamentary Legal Services on the amendments and noted that, with the minor additions and other proposed changes, they were satisfied with the definitions as revised.

Adv Makinde noted that changes had already been made to the definitions section, but highlighted the addition of a definition for "fit and proper person." She explained that the Constitution requires commissioners to be fit and proper individuals, both at the time of their appointment and renewal. However, challenges have arisen in interpreting this requirement.

To address these challenges, the proposed definition specifies that a fit and proper person must demonstrate objectivity, integrity, reliability, and honesty. The individual should have no record of disciplinary dismissal, maintain neutrality, and possess integrity. This definition aligns with existing case law.

Adv Sisa Makabeni, Senior State Law Advisor, Office of the Chief State Law Advisor, agreed with the proposed definitions but raised a practical concern on the application of the definition of a "fit and proper person." While he found the inclusion of attributes such as integrity, reliability, and honesty acceptable, he questioned how the criterion of objectivity could be practically assessed and applied.

Ms Ebrahim agreed with the State Law Advisor, noting that the term "fit and proper" is typically not defined in legislation and tends to be interpreted by courts when disputes arise. She explained that the concept is somewhat fluid and may evolve over time. For example, behaviours or characteristics once deemed inappropriate, such as cannabis use, may no longer disqualify someone as societal norms and laws change.

She expressed concern that defining specific characteristics could create a closed list, potentially limiting the Committee's discretion in determining if a person is fit and proper. However, she acknowledged that it is a policy matter for the Committee to decide whether to include a definition and, if so, how to define its boundaries.

Ms Potgieter supported the inclusion of the definition of a "fit and proper person" noting that there is sufficient case law where courts have provided guidance on this concept using similar terminology. She acknowledged, however, that the application of this standard varies on a case-by-case basis, as the facts differ for each individual. Nevertheless, she agreed that there is a standard definition that aligns with what Adv Makinde presented.

On the definition of the "Departmental Bargaining Forum," she requested clarification. The definition refers to a majority trade union in the PSC Secretariat but expressed concern that if extended to local government, it might include a broader range of unions that only exist at the municipal level. Municipalities have labour forums specific to their structure and asked if the definition as drafted accommodates these forums, suggesting it may be overly restrictive by focusing solely on national government contexts.

Ms Tikana-Gxatiwe expressed her support for the inclusion of the definition of a "fit and proper person" but raised a question about its practical application. She asked how one would assess the integrity of a person during an interview if the definition were included.

Dr Letlape cautioned against overcomplicating the matter. The panel's role is to determine if a candidate is appropriate for the position. Integrity is assessed through a person's history, profile, and background, such as whether they have been arrested or committed offences like sexual misconduct. Integrity is not evaluated in a single moment but through the character and history of the individual. He acknowledged that objectivity might be harder to assess, as it relies on judgement rather than historical evidence, but supported retaining integrity as a criterion, assessed based on the candidate's pedigree and CV.

Mr Ngoepe agreed with Dr Letlape and supported the inclusion of the definition of "fit and proper" in the Bill. He recounted an experience from the 5th Parliament where a candidate recommended for a commissioner position faced delays due to character concerns. Despite the Committee finalising the process and submitting its report to the National Assembly, the President was unable to approve the appointment due to unresolved issues surrounding the candidate's character, which resulted in the matter being referred back to Parliament.

Mr Ngoepe said that during that time, the committee sought legal opinions on the "fit and proper" standard. He emphasised that the Bill's clarity on this definition is vital and noted that the vetting process conducted by the Committee during commissioner appointments ensures adherence to this standard. He recommended that this process and its alignment with the "fit and proper" standard be reflected in the new Bill.

Commissioner Searle expanded on Mr Ngoepe's points, clarifying the comprehensive process involved in appointing a commissioner. The process does not end after the interview but includes further evaluation, culminating in a state security clearance. This clearance process encompasses the "fit and proper" test, thoroughly assessing the candidate’s background, including qualifications, work experience, financial standing, and personal life. The final decision rests with the President, who applies his mind to determine if the candidate meets the "fit and proper" standard.

On the matter of objectivity in the definition of a "fit and proper" person, he agreed with concerns raised and expressed willingness to remove objectivity from the definition.

On the Bargaining Forum, Commissioner Searle clarified that it pertains solely to the interim operations of the PSC, specifically within its secretariat, and does not extend to external forums such as those in municipalities

The Chairperson remarked that the intention behind the proposed insertion of the “fit and proper" definition, aimed at strengthening the objectivity and desirability of a candidate, is commendable. However, the Bill already addresses such concerns later, where it outlines minimum qualifications and conditions, such as whether a person has been rehabilitated or declared of unsound mind. These provisions inherently filter out individuals who may be unfit for the role. He asked if adding a specific "fit and proper" definition to the Bill might inadvertently narrow its scope, potentially creating unintended limitations.

Dr Letlape said that narrowing the criteria is necessary to reach a final decision and should not be feared. This narrowing process helps in sifting through candidates and facilitates decision-making. Consequently, he was comfortable with the proposed insertion.

Ms Potgieter stated her strong support for the insertion of the definition of a fit and proper person. The Bill already mentions inviting fit and proper persons to submit applications. The definition provides clarity, particularly in cases where a person challenges their exclusion from an appointment. By outlining that a fit and proper person must have qualities such as objectivity and integrity, the definition mitigates potential legal challenges. This clarity is crucial, given the history of legal disputes on the interpretation of a fit and proper person in both employment and government contexts.

Ms Xaba-Ntshaba supported the definition of a fit and proper person. She also supported clause 4 but proposed that the phrasing "his or her qualifications" should be replaced with "the applicant's or candidate's qualifications." She recommended using the term "persons" instead of "his or her" throughout the entire PSC Bill to ensure consistency and inclusivity.

The Chairperson noted that the Committee appeared to support the inclusion of the definition of "fit and proper" in the Bill. Additionally, the Committee seemed in agreement with the proposed technical wording changes, which were also acceptable to the PSC. The Chairperson requested that these updates be reflected in the A-List.

Adv Makabeni expressed concern about making the list a closed one, noting that he had only just considered it in light of the question raised. He proposed that the Committee allow the legal practitioners to review the wording to ensure the list remains open. Referring to section 196(11), which addresses the grounds for the removal of a Commissioner, he highlighted that misconduct, incapacity, and incompetence are among the reasons for removal. An individual removed on these grounds could not be considered a fit and proper person. He therefore suggested that the Committee incorporate these nuances into the definition without significantly altering what had already been agreed upon.

The Chairperson said that he would be happy for the relevant practitioners to meet and review any potentially unforeseen consequences that may arise. He was satisfied with the plan and requested that whatever conclusions are reached be presented in the A-List.

Ms Ebrahim said that Parliamentary Legal Services would work with the State Law Advisor to craft a definition that the Committee could then consider, taking into account the prior agreement that it should not be a closed list. On the gendered language in the Bill, specifically the use of "he" and "she," she noted that these issues would be addressed, as they had been highlighted in public submissions and supported by the Committee's recommendation. This would be reflected in the A-List.

Clause 2: Application of Act

Ms Ebrahim explained that the purpose was to clarify that the PSC's jurisdiction is limited to the administrative components of the public service and public administration. She proposed a slight revision to the wording: "the provisions of this Act apply to the administration of the public service and public administration," in order to remove the phrase "in relation," which she found somewhat confusing. She would discuss this revision with the State Law Advisor, and if agreed on, the change would be reflected in the A-List. This revision, however, would not alter the substance or meaning of the clause. There were no objections to this proposal.

Clause 3: Constitution of Commission

Ms Ebrahim did not anticipate any Members having substantive additions to this clause, as it merely reflects the current legal position. There were no objections to this.

Clause 4: Appointment of Commissioners

Ms Ebrahim stated that, as the State Law Advisor had pointed out in Clause 4(1)(a), the Committee would need to consider the definition of a "fit and proper person" and whether this definition should be inserted. If it is already a defined term, there would be a need to determine how to reference the Constitution, and this would be addressed during the crafting of the definition.

She clarified that the committee referred to in Clause 4(2)(b) is this Committee.

On Clause 4(4)(b), Ms Ebrahim noted that during the previous session, Members had commented that the provision should read "at least eight years." There was agreement that the reference to "eight to ten years" should be amended to "eight years," and this change would be reflected consistently throughout the list.

Ms Ebrahim also suggested condensing the drafting slightly, as the current approach, while not incorrect, separates references to national and provincial government throughout instead of addressing them alternately, as the case may be. This adjustment would be a drafting matter that would not alter the meaning.

She noted that a public submission on Clause 4(4) highlighted that the current wording was somewhat confusing. Ms Ebrahim proposed amending the text in consultation with the State Law Advisor. The revised wording might read: "When considering whether a person is suitable for appointment as a commissioner, the relevant committee contemplated in subsection (2) must consider," followed by a drop-down list.

In terms of policy, Ms Ebrahim said that it was for the Committee to decide on the fields listed and the nature and type of experience required. For instance, for a person's experience, there is a reference to lecturing at a recognised institution of higher learning. She posed the question whether this must be an institution within the Republic or if institutions outside the Republic would suffice.

Additionally, Ms Ebrahim raised the point about whether any combination of experience must amount to at least eight years, as eight years is consistently used throughout the Bill. However, the Committee is at liberty to adjust these requirements as it sees fit.

Commissioner Searle stated that, as the Legal Advisor had mentioned, the proposed changes on the reference to the Constitution are a matter of drafting style and would be discussed with the State Law Advisor.

He confirmed agreement on "eight years" and that some of those changes had already been incorporated into the Bill.

He assured the Committee that the comments on the use of "his" and "her" pronouns had been taken into account and that these references had also been amended.

The Chairperson stated that the State Law Advisor, Parliamentary Legal Services, and the PSC would collaborate to find common ground on the drafting and technical issues and ensure the proposed changes are satisfactory.

Adv Makinde explained that the drafting style was not a concern, as it would be aligned with the Constitution. Separate provisions for national and provincial matters were included because that is how the Constitution addresses these issues.

She highlighted a new concern raised in the Content Advisor's presentation, which referenced a precedent from the Fourth Administration. A similar situation currently exists in another province, where recommendations for appointments have experienced delays due to prolonged decision-making by the President. In some cases, there has been no feedback on the reasons for these delays.

To address this, a provision is proposed requiring the President to make a decision within 60 days of receiving a recommendation, either from the Speaker of Parliament or the Premier. If the President has concerns on procedural issues, these should be referred back to the Speaker or Premier for reconsideration, rather than delaying the process indefinitely.

Adv Makinde clarified that while the President approves appointments based on the National Assembly recommendations, this process is not merely ceremonial. The President may exercise discretion if procedural concerns arise.

The proposed insertion, to appear before Clause 4(5), would stipulate:

"The President must appoint the approved Commissioner from the National Assembly or the Premier of the province within a period of 60 days upon receipt of the request and confirmation that all due processes have been followed, or return the recommendation of the candidate to the Speaker or the Premier for further consideration where due processes have not been followed in the recommendation for the candidate to be appointed as a Commissioner."

The Chairperson stated that a primary concern that immediately arose was that the objective was to establish a politically independent PSC, whereas the President, as a political figure, holds political authority. If the President were granted the power to challenge the process on the grounds that the procedures set out in the Constitution were not followed, it could create an opportunity for political interference, undermining the integrity of the process.

Ms Ebrahim stated that she had no objection to imposing a time frame for the President to comply with, as she understood that it had become a practical issue where the matter sits on the President's desk, affecting the functioning of the Commission. However, in her view, the President has no discretion whatsoever in this matter; it is Parliament that decides who the Commissioner should be. There are instances where, under other legislation, the President may be provided with a shortlist, from which they have the discretion to select a candidate. The Constitution, however, provides that it is a committee of the legislature that makes the recommendation, and the legislature then decides, submitting the decision to the President merely for appointment. Therefore, the President's role is simply to effect the decision made by the legislature, as stipulated in the Constitution. Her view was that introducing discretion for the President would not be legally sound. If anyone were to object to the process, there are other legal avenues they could pursue to challenge it. She cautioned that doing so would open a "Pandora's box," as it would be inevitable that the President would become an appeal authority for individuals who are aggrieved by not being recommended and who seek to challenge the legislature's decision on appointments.

Adv Makabeni agreed with the proposed time frame. In terms of the Constitution, Parliament is empowered to regulate the appointment process; therefore, it cannot add to or diminish the powers of the President. The time frame pertains to the process itself and that there is no issue with its inclusion.

Ms Tikana-Gxatiwe said that consideration must be given to what constitutes a reasonable time to fill a public service post, as exceeding the 90-day period would require an assessment of what is deemed a reasonable time frame.

The Chairperson proposed that the inputs, along with those from Parliamentary Legal Services, the State Law Advisor, and PSC, be used to develop wording for insertion in the A-List, based on the feedback received. This was agreed to.

Adv Makabeni said about Clause 4 that one of the challenges encountered when drafting this clause was that the Constitution refers to regulating the appointment process but does not prescribe specific qualifications. As a result, the intention was not to be overly prescriptive on qualifications. The Constitution remains silent on this matter. Therefore, a middle ground was reached where the qualifications included here serve as a recommendation, given that the Constitution does not provide a closed list of required qualifications.

Ms Potgieter said that in Clause 4(a) it would be beneficial to place the word "bachelor's" in brackets. This is because it is not necessarily a bachelor's degree that corresponds to an NQF Level 8 qualification, and specifying it too narrowly may be limiting. For qualifications, the "s" should also be in brackets to allow for recognition of an NQF Level 8 qualification, even if it is not a bachelor's degree.

The Chairperson stated that an NQF Level 7 corresponds to a bachelor's degree, while an NQF Level 8 represents a postgraduate degree. Therefore, it seems that the way it is stated in the Bill presents a contradiction. He asked what the desirable option is – whether it is someone with a bachelor's degree or someone with a postgraduate qualification.

Adv Makinde said that in the public service, the current NQF system requires an NQF Level 9 for positions such as Deputy Director-General, which corresponds to a master's degree. This is the standard used in the public service. Therefore, if individuals are to be appointed at that level, particularly commissioners, they should possess qualifications at a similar level in order to provide the leadership required for the role. The intention was to strike a balance by specifying NQF Level 8, which is generally equivalent to a bachelor's degree, but more likely an honours degree.

Ms Tikana-Gxatiwe said that this discussion brings her back to recognition of prior learning. One might have an NQF Level 8 qualification but possess 10 or 15 years of experience. In her view, we should leave the qualification requirement as it stands, with the additional consideration being covered by experience. Those with higher qualifications would naturally have an advantage. For example, if a Member of Parliament has an NQF Level 8 qualification and 10 years of experience, recognising the prior learning would be acceptable.

Ms Potgieter stated that the issue is not with NQF Level 8, which refers to an honours or postgraduate qualification, but with the fact that a bachelor's degree is an NQF Level 7. While she agrees with the NQF Level 8 requirement and acknowledges that the Employment Equity Act also addresses the recognition of prior learning, which would be considered in relation to appointments, the concern is that you cannot mention both a bachelor's degree and NQF Level 8 in the same sentence. It must be one or the other.

The Chairperson asked if the NQF level should be 7 or 8, given the distinction between the two. Following Adv Makinde 's comment on the NQF requirements for deputy director-general positions, he suggested that NQF Level 8 may be the appropriate qualification. He proposed for the sake of clarity, removing the word "bachelor" from the wording.

Dr Letlape asked what the rationale was behind considering a bachelor's degree as acceptable. He suggested that if a bachelor's degree was deemed sufficient, then the requirement should revert to NQF Level 7. He emphasised that this serves only as the minimum requirement. While a range of qualifications should be considered, it should not be a disqualifying factor if someone with 15 years of experience holds only a bachelor's degree and not an honours degree.

Adv Makinde responded that the intention was to set the requirement at NQF Level 8, given that in the public service, NQF Level 9 is typically required. She explained that the PSC had lowered the standard to NQF Level 8, but this decision was made in the context of professionalising both the public service and the commissioners. She clarified that the commissioners would be engaging with individuals appointed at NQF Level 9, so it was essential for them to be sufficiently knowledgeable and capable of engaging at a similar level.

Dr Letlape said that, if that is the case, why not set the requirement at NQF Level 9?

Adv Makinde responded that the reason is that experience is also being taken into account.

Ms Xaba-Ntshaba said that perhaps it can be stated that the requirement is from NQF level 8 upwards, which is acceptable. The Chairperson agreed with this, requesting that it be stated as NQF level 8.

Ms Potgieter said that Clause 4(4)(b)(iv) is highly confusing, and she is uncertain about the expected combination of those particular levels of experience. She expressed the view that the clause is unnecessary, as it appears to serve as a fail-safe that limits openness.

On Clause 4(4)(b)(iii), which pertains to being a Member of Parliament, provincial legislature, or municipal council, she indicated that while the clause is acceptable, it should specify that such individuals must also have public or private sector experience of at least three to five years in addition to their membership. This amendment is necessary because stringent requirements are imposed on other candidates, such as having at least eight years of experience. For individuals coming from a municipal council or another level of government, relevant experience within that field should also be required.

On Clause 4(4)(v), Ms Potgieter suggested that it should include requiring individuals to have worked in senior management positions in public administration, either in the public or private sector, for at least three to five years. This experience would align them with the other stringent experience requirements mentioned in the Bill and ensure they possess the requisite expertise.

The Chairperson noted that two key issues had been raised. The first pertains to potential confusion on the combination of the different types of experience outlined in the Bill. The second concerns public representatives, such as councillors and Members of Parliament or provincial legislatures, who may have eight years of experience in their roles but lack senior management experience. This scenario is also applicable to academic lecturers.

He said that there appears to be a suggestion to amend the provisions by stipulating that public representatives or academics should also possess three to five years of actual senior management experience. This addition would align their qualifications with the requirements specified in the Bill.

Dr Letlape stated that attempting to specify particular positions and reduce the required period within the Bill would introduce significant complexity. In his view, clause 4(4)(b)(vi) already provides the necessary flexibility by allowing for a cumulative consideration of diverse experiences. This approach ensures that a candidate’s combined experiences, even if scattered across different roles, can collectively meet the requirement of at least eight years to qualify. The current phrasing of the clause accommodates various combinations of experience and avoids unnecessary confusion within the Bill.

The Chairperson remarked that his understanding is that the matter hinges on the concept of a combination of qualifications and experience, a point with which Dr Letlape agreed.

Ms Xaba-Ntshaba asserted that public representatives inherently occupy management positions by virtue of their roles.

Ms Tikana-Gxatiwe said that candidates who meet the qualifications must accumulate the requisite experience. In her view, public representatives inherently gain relevant experience through their roles, such as conducting oversight and engaging in lawmaking. This experience is often undervalued in practice, leading to such individuals being excluded during the selection process, despite their qualifications and practical insights into public administration.

The Chairperson added that, based on the discussion, the requirements, as currently framed, already set a high standard by mandating an NQF level qualification along with eight to ten years of experience.

Ms Potgieter disagreed, arguing that the provision does not mandate a combination of experiences but allows for an either-or approach based on the first five criteria listed. Her concern was that the inclusion of the "combination" clause at the end acts as a fail-safe that could be misused, allowing candidates who might not meet the required standard to qualify.

She suggested that individuals from non-practical positions, such as lecturing or political roles, should be required to demonstrate an additional three to five years of senior management experience. This provision would serve as a safeguard, ensuring appointees possess both the theoretical knowledge and the practical administrative capabilities required for the demanding responsibilities of a commissioner.

She said the Bill's objective is to minimise political interference. Allowing MPs, councillors, or members of provincial legislatures to qualify solely based on their tenure in those positions, risks creating a loophole for political influence. Requiring demonstrated senior management experience would mitigate this risk and ensure candidates are equipped to fulfil the role effectively.

Dr Letlape remarked that South Africans hail from diverse backgrounds, and when one becomes a commissioner, neutrality in service is essential, irrespective of their origin. He acknowledged that no individual operates in a neutral environment, citing institutional politics prevalent in sectors like academia. Commissioners, he argued, must rise above their background—be it parliament, municipal administration, or another industry—and focus on serving the people of South Africa. Individuals with varied experiences across sectors bring a broader perspective compared to those who have spent a decade in a singular role, as the provision accommodates such cumulative experience.

Ms Tikana-Gxatiwe agreed with Dr Letlape, noting that many politicians transition from administrative roles, where they have gained substantial experience. On the importance of political impartiality, appointees are required to withdraw from political affiliations upon becoming commissioners. Prior political experience should not disqualify candidates, as their accumulated experience remains valuable. Politicians often come from diverse backgrounds, including academia, and the existing provision accommodates such candidates.

The Chairperson agreed that councillors, Members of Parliament, or similar individuals should not be excluded solely due to their political background. However, he expressed concern about candidates who may have transitioned directly from academia or school into politics without any practical senior management experience. Most Members of Parliament have prior management experience, often outside of politics. He warned against having someone qualify as a commissioner based on eight years of political or academic experience alone, without practical senior management exposure.

The Chairperson suggested that the legislation include a safeguard requiring at least three to five years of senior management experience in addition to academic or political experience. This would strengthen the applicant pool, ensuring that commissioners have practical experience necessary to oversee top managers and executives in government.

Commissioner Searle addressed the concerns on academics as potential commissioners, highlighting the valuable expertise they can bring to the Commission despite not having three to five years of senior management experience in the public sector. Many academics at the top of their fields have conducted extensive research on public sector issues, which exposes them to the complexities and intricacies of public administration. Through teaching and research, such academics gain a deep understanding of the public sector and can be considered experts in the field. He argued that it would be overly restrictive to exclude candidates based on a lack of direct public sector management experience, as their cumulative experience and contributions to the public sector through academic work often surpass practical experience alone. He cited examples of successful commissioners with academic backgrounds, stating that their work in the Commission has flourished, even without prior public sector employment, due to their expertise and broad exposure.

Adv Makinde added that the recommended qualifications for commissioners intentionally focus on fields related to public administration, such as human sciences, human resource management, and business. These qualifications ensure that candidates are highly skilled and prepared for administrative roles. She emphasised the importance of combining diverse experiences to meet the eight-year requirement, allowing for cumulative contributions across various fields rather than requiring a singular background.

Adv Makinde addressed political neutrality, stressing that candidates must relinquish any political affiliations before joining the PSC. This requirement ensures impartiality, preventing any individual from serving as a commissioner while holding membership in a political party.

Adv Makinde supported Commissioner Searle's point, noting that skilled academics bring unique perspectives and contribute significantly to the Commission's work through research, integration, and comparative analysis. The diversity of experiences and fields within the Commission allows its members to complement one another, creating a robust and well-rounded body capable of addressing a range of challenges effectively.

The Chairperson posed a technical question, asking if an active Member of Parliament could be nominated to the Commission and go through the selection process, only resigning from their political position if successfully appointed.

Adv Makinde clarified that this would not be permissible. At the time of nomination, a candidate must have already decided to step away from active politics and pursue an administrative role. Allowing active politicians to apply could create conflicts of interest, particularly during the application process.

Ms Potgieter expressed concern about potential loopholes in the Bill. The wording does not explicitly prohibit current members of Parliament, legislatures or municipal councils from applying. The clause simply references having eight years of experience in such roles without distinguishing between current and former membership. She argued that the lack of clarity could lead to misinterpretation and abuse, potentially allowing unqualified individuals to ascend to a senior oversight role. She advocated for a balanced approach, requiring additional qualifications, such as three to five years of relevant management experience, as a safeguard. She highlighted the broader context of the Bill, which seeks to address systemic issues in public service and administration, including corruption and declining standards. She supported tightening the legislation to ensure the integrity of the process.

Dr Letlape acknowledged the importance of tightening the rules but highlighted the inherent political nature of the appointment process. As the appointing authority is ultimately a politician, political considerations cannot be entirely eliminated. However, a robust and fair selection process to identify the most suitable candidates was important. He cautioned against excluding individuals from political backgrounds, noting that such exclusions could contravene constitutional principles. Instead, one needed to rely on the process to filter out unsuitable candidates and select those who meet the requisite standards of competence and integrity. Senior management responsibilities often come with roles outside formally designated managerial positions, and these should be recognised as part of the required eight years of experience. He called for a broad yet selective approach to ensure the best candidates emerge from the process.

The Chairperson noted that while politicians conducting the selection process is not inherently problematic, the risk lies in candidates being politically aligned with those selecting them. There is potential for bias, particularly in scenarios where a dominant political party in a province, municipality, or national government might favour a politically aligned candidate. This dynamic could compromise the impartiality required for the oversight role of a commissioner. The intent is not to exclude former politicians but to ensure that active politicians are not nominated, mitigating conflict of interest or undue influence. He requested the legal advisors and PSC review the clause to reflect Adv Makinde's point that commissioner nominees must not be active politicians at the time of their nomination.

Adv Makabeni proposed adding the phrase "for a cumulative period of eight years" to the clause to address concerns about the experience requirement. The Constitution defines commissioners as fit and proper persons with knowledge and experience in administration, management, or the provision of public services. He cautioned against imposing overly restrictive criteria that could inadvertently amend constitutional provisions through the Bill. The Constitution envisions a Commission comprising individuals with diverse expertise and this should guide the drafting of the Bill.

Dr Letlape supported explicitly stating that active politicians cannot apply. He had no objection to requiring politicians to resign from their positions before applying for a commissioner role.

The Chairperson acknowledged the consensus on this suggestion and tasked the legal advisors and PSC to refine the clause to incorporate the concerns raised.

Ms Ebrahim referenced clause 4(5) and noted that Schedule 1 includes the oath or affirmation to be taken by commissioners. There were no further comments on this provision.

Clause 5: Disqualification from Appointment as Commissioner

Ms Ebrahim stated that clause 5 provides an opportunity for Members to consider adding additional disqualification criteria. She highlighted the potential inclusion of a clause disqualifying individuals currently serving in provincial or national legislatures.

She raised two points for consideration: first, whether the disqualification in clause 5(f) should be limited to the current Prevention of Corruption Act, as older legislation cited in the clause has been repealed. However, she acknowledged that convictions under the repealed laws might still be relevant, which could explain the inclusion of these provisions. Second, she suggested the Committee consider excluding individuals removed from constitutional positions, such as the Gender Commission, for improper conduct. This might already be covered under clause 5(e), which disqualifies persons removed from positions of trust due to misconduct.

Commissioner Searle expressed similar concerns on the repealed legislation, agreeing that individuals convicted under those laws could still be relevant to the disqualification criteria. He proposed broadening the criteria to include individuals dismissed from employment for misconduct, beyond those removed from positions of trust. He suggested explicitly disqualifying sitting politicians from applying for commissioner roles, advocating for clarity and alignment with the intent of the legislation.

Adv Makabeni supported the inclusion of repealed legislation, noting that it ensures individuals convicted of offences related to dishonesty, forgery, or similar misconduct under previous laws remain disqualified. This aligns with the broader objective of maintaining integrity within the Commission.

Dr Letlape raised concerns about the minimum age requirement, currently set at 21 years. He argued that this age is too low, given the qualification (NQF 8) and eight years of required experience, which typically places candidates closer to 30 years of age. He recommended removing the age limit or increasing it to 30 or 35 years, aligning it with the National Youth Development Agency (NYDA), which accommodates younger individuals. He suggested that younger candidates gain experience through the NYDA before advancing to a PSC role.

Ms Potgieter expressed concerns about age as a qualification criterion, suggesting it be removed entirely to avoid perceptions of discrimination against younger individuals. She argued that the qualifications and experience requirements sufficiently ensure suitability for the role, allowing for exceptional candidates who may meet the criteria at a younger age.

On disqualifications, she recommended broadening the scope of offences beyond those currently listed, including crimes such as gender-based violence, violations under the Municipal Finance Management Act, and other offences under national legislation. She cautioned against creating an overly specific list, suggesting a general clause that encompasses all relevant legislation to avoid unnecessary complexity.

Ms Potgieter proposed including explicit exclusions for individuals removed from high-trust positions, such as former presidents, judges, Chapter 9 institution officials, and legal practitioners struck off the roll without reinstatement. She also suggested disqualifying those removed from the registers of auditors or accountants for dishonesty and individuals who willfully failed to disclose their interests under Section 14 of the Act. It was important to hold commissioners to high standards of integrity, especially in light of widespread failures to disclose interests in local and provincial governments.

Ms Tikana-Gxatiwe asked if these detailed exclusions were already covered under clause 5(a), which disqualifies individuals removed from positions of trust due to misconduct. Specifying such instances might be unnecessary if the clause's intent is sufficiently clear.

The Chairperson noted the importance of ensuring impeached individuals are explicitly barred from positions of power. He asked if adding specific examples, such as accountants or legal practitioners struck off their respective registers, would enhance clarity without limiting the scope of the disqualification criteria.

Adv Makinde clarified that the Bill already addresses disqualifications for those convicted of criminal offences, including common law offences, gender-based violence, and fraud. She acknowledged the difficulty in exhaustively listing every offence or circumstance and proposed adding a general clause, such as "and other related matters," to cover unspecified but relevant disqualifications. While impeached judges or presidents and disbarred legal practitioners would logically fall under "removal from a position of trust," explicitly listing them could provide additional clarity.

The Chairperson agreed, noting that adding specific examples would enhance clarity without restricting the broader intent of the clause. He sought confirmation that listing examples would not inadvertently limit the scope of disqualifications.

Adv Makabeni proposed amending clause 5(e) by removing the phrase "involving a breach of such trust" to broaden its scope. The revised clause would then disqualify any individual "removed from a position of trust by reason of improper conduct," making it a catch-all provision. He supported a broader definition of offences to ensure comprehensive coverage.

The Chairperson agreed with the need for clarity and directed the legal advisors and PSC to refine the wording to ensure the provision is robust, unambiguous, and defensible in court. The objective is to create a foolproof disqualification criterion that cannot be misinterpreted or contested.

Ms Potgieter said that many of the suggested amendments arise from past instances where unclear legislation was misinterpreted, leading to the appointment of unsuitable candidates. She argued that detailing specific disqualifications would prevent recurrence of such cases and ensure stricter adherence to the law. She supported the State Law Advisor’s recommendation to reduce ambiguity by specifying instances of disqualification, drawing on real-world examples from various spheres of government.

The Chairperson acknowledged the validity of having more detailed provisions, suggesting that greater specificity could enhance the legislation's effectiveness.

Dr Letlape advocated for a stricter approach, proposing that anyone removed from a position of trust should be disqualified outright, regardless of reinstatement. Reinstatement creates room for individuals who are not fit and proper to re-enter, and disqualification should be absolute.

The Chairperson interjected, noting that such a stance could lead to disputes over what constitutes being "removed."

Ms Potgieter raised a counterpoint, cautioning against excluding individuals who were wrongfully accused, suspended, and later reinstated after being proven innocent. She explained that such individuals could face unjust consequences, including being barred from employment opportunities, despite their innocence. The reinstatement clause is crucial for protecting those who have been victimised or exonerated, including whistleblowers. Removing it entirely could lead to unintended constitutional and fairness issues.

Dr Letlape expressed caution on reinstatement as a qualifier, noting that unless a matter has been expunged and the individual’s record is clear, reinstatement alone should not suffice. He used the example of a doctor removed from the register who could return after serving a penalty. It needed to differentiate between expunged cases and others to avoid complications.

Ms Xaba-Ntshaba highlighted the potential for political interference in removals. Individuals are sometimes removed for political reasons, making reinstatement a critical safeguard against unjust exclusions.

The Chairperson agreed, suggesting that clarity in disqualification criteria is essential. He proposed explicitly listing roles such as attorneys, presidents, or judges in the legislation, disqualifying those removed from these positions from applying. He called for a "bulletproof catch-all" provision to ensure that individuals guilty of dishonesty or breaches of trust cannot qualify for nomination, reflecting the shared concern across the Committee.

Ms Ebrahim introduced another layer of complexity, recalling a case where a person convicted under the Prevention and Combating of Corrupt Activities Act contested their removal by citing an ongoing appeal. Constitutionally, Members of Parliament must exhaust all legal appeals before disqualification. She posed a policy question to the Committee: should the disqualification apply immediately upon conviction, or only after the appeal process is concluded? There was the potential for drawn-out legal processes to be exploited.

The Chairperson agreed with Ms Ebrahim’s concerns and suggested that the legal advisors and PSC consider this further. He stressed the importance of ensuring that the disqualification process cannot be undermined by prolonged appeals.

Dr Letlape clarified that disqualification criteria for applicants differ from those for individuals already in office. Exhausting appeals is relevant for removal from office, not for applying. Therefore, the appeals process should not apply to disqualifications at the application stage but should be a requirement for removals from existing positions.

Ms Ebrahim responded that the disqualification criteria would apply in both contexts—appointment and removal—as they are interconnected. If disqualified under these criteria, an individual would also face removal if already in office.

The Chairperson concluded by tasking the legal experts to consider these nuances and present refined solutions in the A-list, ensuring the final provisions are clear and robust.

Afternoon session

The Chairperson noted that following discussions with Members, there was consensus that it would not be necessary for the Parliamentary Legal Advisor to read through every sub-clause of the Bill in detail. Instead, the Parliamentary Legal Advisor would present any proposals. The State Law Advisor and the PSC would then provide their input, ensuring all stakeholders could contribute while streamlining the process and saving time. The Chairperson asked for any objections to this approach, and there were none.

Clause 6: Limitation on performing other work by commissioners, renewal of term of office of commissioners and vacation of office by commissioners

Ms Ebrahim clarified that the committee referred to in this clause is this Committee on matters concerning the office of the Commissioner. She noted concerns raised during public participation about the vague wording of the provision, cautioning against an interpretation that might require operational matters to be brought before the Committee. Given the Committee’s limited sitting days and capacity, she suggested seeking clarity from PSC on the intent of this clause.

On Clause 6(4), she referred to the Public Protector v Speaker of the National Assembly judgment where the Constitutional Court ruled that clear rules and procedures must be in place for removing functionaries. The National Assembly Rules only apply to Chapter 9 institutions, which could lead to challenges if a similar issue arose with a Chapter 10 Commissioner. She advised referring this matter to the Rules Committee to supplement existing rules.

Ms Ebrahim expressed concern about allowing complaints from "any person," warning this could inundate the Speaker and legislature with frivolous complaints. She proposed amending the clause to require complaints to originate from a member of the legislature, noting that the public could still petition a member to bring a motion.

Commissioner Searle clarified that Clause 6(7) was intended to address scenarios where the Commission needs to brief the committee on specific issues, such as suitable candidates during a vacancy, rather than inundating the committee with requests.

Adv Makinde supported this approach, emphasizing that the Commission reports to Parliament, not the Executive. Requests by Commissioners to undertake remunerative work would go through the Commission Chairperson, who would submit them to the Portfolio Committee Chairperson. The Portfolio Committee would assess the request, ensuring it would not impact the Commissioner’s responsibilities, before making a recommendation to the President. This process was introduced following public participation feedback.

Adv Makinde addressed term limits, confirming that the Constitution caps service at two five-year terms. On removal procedures, safeguards from the Public Protector process were incorporated but stopped short of limiting complaints to Members of Parliament. She stressed that Commissioners must remain independent and not feel vulnerable to complaints, advocating for substantive claims only to be considered. While internal rules could govern the process, she maintained that the focus should be on significant complaints.

The Chairperson noted that Adv Makabeni would join the meeting later due to an emergency.

Ms Ebrahim expressed concerns about the provision allowing the PSC to approach the Committee directly. The Committee's powers are limited to making recommendations on the removal and appointment of Commissioners. Removal procedures may even involve an ad hoc Committee, as done with other Chapter 9 institutions. Her main concern was the potential for frivolous complaints to flood Parliament. If complaints from any person were allowed, the Speaker would have to refer them to a Committee, which would incur significant costs for investigations, similar to the process used for Chapter 9 institutions. To mitigate this, she proposed restricting complaints to legislature members, which would help reduce the administrative burden and limit unnecessary resources being used.

Ms Potgieter sought clarity on the existing process in the Act and if it differed significantly from the proposed changes. In Clause 6(8)(c), she proposed the addition of the phrase "or exposes or could reasonably be expected to expose the Commissioner to a conflict of interest with their duty as a Commissioner." This would further define the ethical conduct of a Commissioner.

She was concerned about the renewal of Commissioners’ terms, noting that the current language lacks an objective mechanism for determining if the Commissioner has maintained satisfactory performance. While Committee oversight could mitigate unwarranted renewals, the process still seemed subjective.

In Clause 6(8)(c), Ms Potgieter proposed strengthening the second term inquiry process to ensure more objective criteria. She suggested adding language to allow provincial or national legislature committees to call for oral representations from Commissioners after reviewing written responses. This would give Commissioners the opportunity to provide oral testimony in their defence and allow the Committee to make more informed decisions, ensuring fairness and proper oversight.

Ms Tikana-Gxatiwe supported the clause as it is in the Bill.

The Chairperson acknowledged Ms Potgieter’s suggestion to allow Commissioners to present oral representations in addition to written submissions. This approach seems logical. This ensured that Commissioners have the opportunity to defend themselves both in writing and orally during an inquiry process.

Adv Makinde agreed with the suggestion. While the Commissioner should first respond in writing—given that complaints must be submitted in writing—there should be an option for a hearing as part of the investigation process. Written responses would allow for an initial assessment if the complaint warrants further inquiry. If necessary, the process could then escalate to a full inquiry, including verbal evidence from the Commissioner. It was important to test allegations first to determine their substantive merit before proceeding further.

Ms Potgieter clarified that the proposed wording would allow Committees, either nationally or provincially, to call for oral representations after reviewing the Commissioner’s written responses. This would ensure that oral representation is only required when there is a material or substantive reason. The intention is to provide clarity and fairness in the clause.

Commissioner Searle said that the proposal was agreeable and noted that rules would further define the substantive issues to be considered by the President in the renewal of a Commissioner’s term. He explained that such rules might include an assessment of whether the Commissioner remains fit and proper and has performed satisfactorily over the five-year period. A report and recommendation from the Commission Chairperson would likely accompany the renewal request to inform the President's decision.

Adv Makinde noted that the Bill seeks to address ambiguities in the current process, particularly on the renewal of Commissioners. Assessments are conducted by the Commission Chairperson, who submits a report evaluating the Commissioner’s performance over the past five years. This report serves as the basis for renewal requests. There was the inclusion of a new provision for handling misconduct, noting that such a process had been absent in the current Act and required clarification.

The Chairperson proposed that to facilitate decision-making, the PSC consult with Parliamentary Legal Services to determine the norm for similar complaint processes in other Committees. This consultation could clarify if a clause should mandate regulation by the Rules Committee or follow existing standards for Section 9 structures. He expressed uncertainty about the potential impact on the volume and nature of complaints, emphasising the need to align with parliamentary norms and standards applied in similar contexts.

Ms Ebrahim noted that the matter would be referred to Parliament to obtain substantive guidance on the rules governing removal processes. She proposed that a recommendation be drafted for consideration by the Committee.

On the proposal to include an additional element on compensated work, Ms Ebrahim explained that while written consent from the President is required for Commissioners to undertake other remunerative work, the suggestion was for the Committee to also provide a recommendation. She expressed concerns about the potential impact on the independence of Commissioners, as this process might inadvertently introduce political considerations. She also raised practical concerns, such as the Committee’s capacity to assess such requests, particularly during parliamentary recess periods, might delay decision-making.

Ms Ebrahim highlighted a broader policy question: should Commissioners be permitted to undertake compensated work, given that other Chapter 9 institutions, such as the Office of the Public Protector or Auditor-General, do not allow it? The difference between these institutions is the PSC has multiple commissioners.

The Chairperson identified two key questions: first, whether Commissioners should be subject to the same restrictions as the Public Protector or Auditor-General on additional remunerative work; and second, if such work is allowed, whether applications should be considered by the Committee or directly by the President. He also noted the recommendation that additional work should explicitly avoid conflicts of interest, a suggestion he deemed sensible.

Ms Ebrahim clarified that the proposal involves the Committee reviewing applications and making a recommendation to the President, who would then make the final decision. This arrangement would assist the President in evaluating such requests.

Ms Potgieter inquired about the number of current Commissioners engaged in additional remunerative work and the nature of such activities to better understand the matter.

Ms Tikana-Gxatiwe noted that the Committee had deliberated and acknowledged that, unlike other institutions with a single head, the PSC has multiple commissioners. She supported the recommendation requiring Commissioners to apply for approval for additional work, aligning with other public service frameworks that allow similar applications. She questioned the practicality of extending the Committee’s approval process to provincial applications as such requests might vary between national and provincial contexts.

Dr Letlape shared concerns about the potential negative impact of additional remunerative work on the Commissioners' primary responsibilities. Drawing on his experience, he cautioned that unmanaged external work could lead to diminished oversight and control, suggesting that all remunerative work be declared, including earnings, as part of the Commissioners’ disclosures. This would enhance transparency and accountability.

Commissioner Searle stated that, to his knowledge, no current Commissioners engage in additional remunerative work, although he would confirm this information. Clause 6(2) addresses potential conflicts of interest, ensuring that private remunerative work conflicting with a Commissioner’s primary functions would breach ethical standards.

Adv Makinde explained that Commissioners are required to submit annual declarations of interest, including details of any additional income earned, the amount, and the nature of the work undertaken. These declarations are reviewed by the Presidency to ensure compliance. Any extra work must be minimal, non-conflicting with official duties, and not conducted during working hours, as doing so would be unethical. Further, Commissioners are required to declare vested interests in matters being deliberated to avoid conflicts of interest, ensuring another Commissioner handles such matters where necessary.

The Chairperson asked if it might be simpler to prohibit Commissioners from engaging in outside work altogether, drawing parallels with the roles of the Auditor-General and Public Protector. He expressed scepticism about the necessity of legislating for an issue that does not currently appear to be a concern.

Dr Letlape advocated for a prohibition on remunerative work, suggesting that such work could compromise the integrity of Commissioners, similar to allowing judges to undertake external paid work. There is potential for ethical dilemmas and conflicts of interest, particularly in public-facing roles. He proposed that while Commissioners could engage in activities like delivering lectures, they should not receive payment, although covering expenses would be acceptable.

Ms Potgieter agreed, noting that the general public might also support the view that Commissioners should focus solely on their official duties, given their workload. She questioned the original intent of the clause allowing additional work, particularly since it does not seem to address a common practice. She supported removing the clause entirely but suggested that if retained, it should explicitly prevent activities that could create or reasonably be expected to create conflicts of interest. She proposed extending this to include situations where a Commissioner works with a service provider, which might also expose them to potential conflicts.

The Chairperson noted that remunerative work involves actively working to earn additional income, which does not preclude commissioners from earning passive income, such as rental income or dividends from investments. He asked if the PSC should consider removing this provision, as they are well-placed to address such matters.

Commissioner Searle expressed understanding of the motivations for removing the provision but highlighted its potential utility. The current clause allows for situations where a commissioner might temporarily engage in remunerative work, such as finalising an academic project started prior to their appointment. He argued that retaining the provision, with its checks and balances, ensures that commissioners can apply for approval without automatically breaching ethical standards. The process would evaluate conflicts of interest and undue interference, ensuring proper governance. He believed the clause's inclusion does not weaken the Bill and allows flexibility for future unforeseen situations.

Dr Letlape disagreed, stressing the importance of commissioners dedicating their undivided attention to their duties. Opening the door to remunerative work creates a "slippery slope," potentially compromising the integrity of the office. High-level positions such as that of judges demand full commitment. Individuals wishing to complete external projects should do so before assuming such roles.

Ms Tikana-Gxatiwe said the challenges posed by civil servants who breach regulations by engaging in business without seeking approval. She suggested that prohibiting remunerative work might lead to non-compliance and concealment of such activities. Instead, she proposed a framework that allows commissioners to apply for approval, prioritising their role while regulating external work to prevent conflicts of interest. She cautioned against outright prohibition, emphasising practicality and enforceability.

Mr Andile Mphunga, Senior Manager, OISD Oversight Support, offered to compile research on how other constitutional institutions regulate external remuneration and share insights on complaint-handling mechanisms. This could inform the Committee's decision-making.

The Chairperson welcomed this offer, recognising its potential to assist the Committee in making an informed decision before finalising the A-List. He encouraged members to consider this resource to strengthen the legislative framework.

Dr Letlape urged the Committee to prioritise enforceability and uphold the rule of law. He cautioned against basing decisions on the actions of individuals who disregard regulations, emphasising the need for robust laws. It was important for commissioners to dedicate their time to their roles. He noted the potential mental health implications of managing dual responsibilities. High-level positions should demand a single-minded focus, ensuring their integrity and effectiveness.

Clause 7: Chairperson and Deputy Chairperson of Commission

Ms Ebrahim noted that the only issue raised during public submissions on this clause pertained to what happens if the two designated persons remain unavailable to act in their positions after the 30-day period.

Adv Makinde explained that no changes are being proposed as this amendment was already passed in 2019. However, a new matter raised during public submissions addressed the appointment of an acting commissioner (apart from the Chairperson and Deputy Chairperson) and the authority responsible for such appointments in case of a vacancy. The public consultations revealed that the established practice has been for the Commission Chairperson to nominate someone to act as a caretaker commissioner in cases of vacancies. This practice is being formalised, ensuring that the Chairperson continues to nominate a commissioner for such roles, as it would not be appropriate to appoint someone external.

Adv Makinde noted that if both the PSC Chairperson and Deputy Chairperson are unavailable, the President must be informed and can designate one person to act for a period not exceeding 30 days. If neither returns after 30 days, the President may extend the designation; or take further steps if the absence becomes prolonged, potentially leading to a vacancy. This approach is intended to manage the situation while adhering to the legislative framework.

The Chairperson remarked that it is important for legal experts to confirm that a 30-day absence automatically triggers the provisions for addressing a vacancy, ensuring that the relevant sections of the Bill are activated appropriately.

Dr Letlape disagreed with the assumption that the 30-day period triggers a vacancy. He clarified that the provision states "not exceeding 30 days," meaning the acting appointment lasts only as long as necessary within that period. For example, if the incumbents return after two days, the acting appointment ends. If the absence continues, the President can reappoint the acting individual for another period or designate someone else. Therefore, the 30-day threshold does not inherently activate the vacancy procedure unless a vacancy is formally declared.

Clause 8: Remuneration and other conditions of appointment for commissioners

Adv Makinde explained that the clause aims to ensure that the Commission for the Remuneration of Public Office Bearers assumes responsibility for determining the remuneration of commissioners. Currently, this process is handled by the Department of Public Service and Administration (DPSA), but the objective is to remove the executive’s involvement since the PSC is a constitutional institution.

The clause stipulates that commissioner remuneration cannot be reduced below its current level, and if a commissioner’s term is renewed, their remuneration must remain consistent with the original terms and conditions. Further, while the President retains the authority to determine remuneration, this is contingent on the recommendations of the Commission for the Remuneration of Public Office Bearers, ensuring an impartial process.

The clause also addresses differences in remuneration between the Chairperson, Deputy Chairperson, and other commissioners. The Chairperson and Deputy Chairperson may have distinct remuneration, but no incremental adjustments occur. Other commissioners, however, are aligned at Level 15, and any adjustments follow guidelines established by the Commission for the Remuneration of Public Office Bearers.

Ms Potgieter suggested that both the Cabinet member responsible for finance and the Cabinet member responsible for public service and administration (DPSA) be consulted on remuneration and conditions of appointment.

Dr Letlape raised concerns about involving two ministries, as it may create delays and inefficiencies. He argued that since remuneration is a financial matter, it falls under the jurisdiction of the finance ministry. Introducing another ministry might complicate the process unnecessarily, given the legislative framework often requires financial considerations to be handled by the finance ministry alone.

Ms Potgieter countered, emphasising that while remuneration is a financial matter, conditions of appointment are broader and cannot be determined without consulting the Minister of Public Service and Administration. The clause should require consultation with both the Finance and DPSA ministers to ensure proper oversight, especially given the significance of the PSC role. She clarified that the Minister of Finance does not determine remuneration directly; instead, the consultation process ensures that all relevant stakeholders are informed about conditions of appointment for such high-profile positions.

Ms Ebrahim expressed a concern about the potential impact on the independence of the PSC but acknowledged that the focus was on the conditions of employment rather than financial matters. She suggested that colleagues from the Office on Institutions Supporting Democracy (OISD) could review how this is handled in other Chapter 9 institutions to ensure alignment and best practice.

Commissioner Searle clarified that the Minister of Public Service and Administration does not determine commissioners’ conditions of appointment. Instead, the President issues directives on these conditions, and this practice is consistent with Chapter 9 institutions.

The Chairperson welcomed the suggestion to examine standards in other institutions to guide the discussion.

Mr Ngoepe emphasised the importance of preserving the independence of the PSC. He cautioned that involving DPSA in these matters could undermine the objectives of the Bill, which seeks to separate the Commission from the executive, as highlighted in the National Development Plan’s emphasis on an independent Commission.

Ms Potgieter proposed a distinction between consultation and determination. She argued that consultation with relevant Cabinet member for administrative purposes, should not be perceived as interference. Such consultation would be a courtesy rather than a mechanism to grant decision-making powers, ensuring that departments are informed without compromising the Commission's independence.

Dr Letlape strongly opposed any language implying consultation with DPSA or other executive bodies. The PSC operates above the DPSA and other departments, reporting directly to the President. Including provisions for consultation could create legal vulnerabilities, allowing claims of inadequate consultation, which would undermine the Bill's intention to reinforce the Commission’s independence.

Ms Tikana-Gxatiwe agreed with Dr Letlape, noting that the Commission reports directly to Parliament, not the executive. Maintaining its independence should remain the priority.

The Chairperson affirmed that the PSC remains accountable to Parliament and subject to parliamentary oversight. He welcomed the research inputs to be provided, which would inform the Committee's further deliberations.

Clause 9: Inspection by Commission

Ms Ebrahim noted that there were submissions raising concern about the lack of detail in the clause. For example, it was unclear if the inspections referred to were physical inspections, what the purpose of these inspections would be, and how they would unfold. Questions were raised if an inspection would be by notice or agreement, similar to how Parliament conducts oversight over an entity. Further questions were raised about the nature of the inspections, including if an inspection always precedes an investigation or if an investigation could occur independently of an inspection. She suggested that these practical details could be addressed in Commission rules, allowing the Commission to clarify its intentions.

The Chairperson remarked that Clause 20, which would be discussed later, addresses the scope of inspections and how they would be handled. Therefore, these issues did not necessarily need to be discussed in this context.

Commissioner Searle agreed stating that clauses 9, 10, and 11 replicate provisions from the 1997 Act, extending the scope of inspections that the Commission would be responsible for. He clarified that inspections do not always precede an investigation; they can be separate activities. For example, an inspection may be conducted to assess service delivery standards in response to a query, such as a community complaint about healthcare or police services. The Commission has rules that outline the procedure for inspections, including protocols for engaging with stakeholders and exchanging information. These rules also apply to inquiries and investigations. These rules would continue to operate once the Bill becomes an Act, with the possibility for refinements if necessary. Clause 20, which covers the rules, will provide further details on how inspections are handled, so the Bill itself does not go into these practicalities.

Adv Makabeni rejoined the meeting, and no further comments were made on the clause.

Clause 10: Investigations by Commission

Ms Ebrahim said clause 10 is about the procedure that the Commission would follow for investigations. The concerns she has are about drafting clarity she would take up with Mr Makabeni when drafting the A-List but it would be nothing substantive.

Ms Potgieter said there is no provision for employees to submit grievances directly to the PSC and it might be worthwhile inserting a clause similar to clause 10(6) because a lot of information comes from whistleblowers who do not want to submit grievances to the very executive authorities that they are lodging their grievances about. This results in a serious amount of under reporting due to whistleblowers not coming forward because they are precluded from being able to use the PSC as a platform. Having said that, one possibly does need to be rules on how they do that but the Commission rules can stipulate how a grievance must be launched about a CEO or municipal manager, particularly because these are representing municipalities. Whistleblowers will remain quiet if they have to report the grievance to the very people that they have a grievance against.

The Chairperson understood it would give a public service official the ability to lodge a complaint directly to the PSC and not go through the management structure which they want investigated.

Adv Makinde explained that there are two processes: a grievance process and a complaint process. A whistleblowing complaint can be filed directly with the PSC, even if the complaint pertains to the individual’s own department. The PSC can investigate the complaint independently or act on its own accord if it identifies an issue. On the other hand, a grievance is something that affects an employee personally, so it must be lodged first with the head of the department, CEO, or municipal manager, who must follow internal processes. If those processes are unsatisfactory, the grievance can be escalated to the executive authority. If the response from the executive authority is also unsatisfactory, the employee may approach the PSC. There are two types of grievance rules, one is managed by the Department of Public Service and Administration (DPSA). Originally, the PSC handled grievances, but recently this responsibility has been transferred to DPSA to separate internal and external processes. However, municipal managers and heads of departments, due to their seniority, can approach the PSC directly with their grievances, as their disputes are less likely to be against their executive authority.

Ms Potgieter was concerned that the distinction between complaints and grievances was unclear. She found it difficult to understand how complaints related to whistleblowing would be handled by the DPSA, especially when it might involve violations by executive authorities. She questioned how the process would protect whistleblowers, particularly in serious cases, and suggested the need for a clear whistleblower platform. She raised concern if complaints made directly to the PSC could be dismissed due to the current structure of the Bill.

The Chairperson understood the concern and clarified that the PSC currently operates a hotline that anyone, including those outside the public service, can use to lodge complaints or initiate investigations. However, he admitted to being unclear about the difference between a grievance and a complaint and expressed concern that the current Bill might negatively impact whistleblowers by not explicitly stating that they can lodge complaints directly with the Commission.

Adv Makinde explained that Section 10(1) addresses investigations by the Commission, and the term "investigation" encompasses both complaints and grievances, as well as other dispute resolution matters. The first part of the section deals with complaints, where any individual can lodge a complaint, whether they are a whistleblower or not. Complaints can be submitted in various ways, such as via email, SMS, or directly to the PSC, without the need to involve the head of the department. Clause 10(4) specifically addresses grievances, which are personal issues. However, Clause 10(2) allows for complaints related to any matter, even if it is not a personal issue, such as when an individual observes wrongdoing. The PSC is one of the institutions to which a whistleblower can report, and such individuals will be protected.

Commissioner Searle added that complaints are broad in nature and are not necessarily grievances. A complaint could, for instance, be lodged by a member of the public who has concerns about an appointment made by a school governing body. These types of complaints are received daily. The Commission also receives complaints about alleged interference in processes within departments. The scope of complaints is therefore quite wide. Currently, complaints in the local government sphere are referred to the appropriate authority, as the Commission does not have jurisdiction over such matters. The National Anti-Corruption Hotline, which is administered by the PSC, allows any individual to lodge a complaint on service delivery, corruption, maladministration, or inappropriate conduct. These matters are then investigated by the Commission. In contrast, a grievance relates to an employment dispute between an individual and their supervisor, and follows a separate process from a complaint.

Ms Potgieter expressed that while the distinction between complaints and grievances was useful, she did not believe it was the crux of the issue. She raised a concern about recruitment, transfers, and promotions. For instance, if a person reports a municipal manager for corruption and the manager subsequently transfers them out of the department, they would be required to lodge their grievance with the very person they have reported. She questioned the fairness of this process. In such cases, there should be an alternative mechanism for lodging grievances directly with the PSC. It was important to have a platform that allows individuals, especially in cases where their safety is at risk, to report directly to the PSC without fear of retaliation. Specific directives should be issued by the Commission to address such situations of fear of retaliation, ensuring that individuals are not prevented from using the PSC.

Commissioner Searle acknowledged that this is a consideration and a mechanism can be built to address it.

The Chairperson stated that the intention of everyone present is to ensure protection for whistleblowers, allowing them to lodge a complaint directly with the PSC. The wording should be reviewed to ensure that individuals are aware that they are protected and covered under the Bill.

Dr Letlape noted that Clause 20(a)(i) addresses grievances. From reading this, it appears that individuals have the option not to report to the person with whom they have an issue, and they can instead report to the Executive or the Commission.

The Chairperson said that this is a practical suggestion, but they would wait for the PSC's input.

Commissioner Searle added that Clause 20 deals with the rules, but he believed that Ms Potgieter's point suggests there needs to be clarification in Clauses 11 or 10 on how such situations are handled. This could then be further detailed in the rules, which he considered to be the main issue.

Adv Makinde suggested that something could be inserted in Clause 9 that if an individual feels they have a justifiable reason not to lodge a complaint or grievance with their department first, they should provide a motivation and be allowed to lodge it directly with the PSC.

The Chairperson agreed, stating that this approach would provide an avenue for such cases.

Clause 11: Inquiries by Commission

Ms Ebrahim stated that there had been some public submissions asking for clarification on the correct term between “summons” and “subpoena”.

She noted that her concern was not with the clause itself, but rather with the fact that this important power, which allows the Commission to summon individuals to appear before it or produce documents, had been included under “Inquiries.” She believed that this power should be shifted to a standalone provision, enabling the Commission to exercise this power whenever needed. While she understood that the term "inquiry" could be used broadly, the fact that inquiries, inspections, and investigations had been distinguished made her prefer this power be standalone. This would allow the Commission to use it without the risk of individuals defending themselves by claiming that what they are being asked to do is not an inquiry for the purposes of this clause.

She also mentioned that members had raised the question of if the R50 000 fine was an appropriate amount. An alternative option she proposed was to leave the amount unspecified and allow the courts to determine the fine, as the Department of Justice had indicated this preference in previous communications with Parliament. The Magistrates’ Court Act deals with how fines are calculated. They had communicated this preference, although if the Committee preferred to retain the amount, she was fine with that as well.

Commissioner Searle acknowledged the recommendation to make the power standalone and noted that this would be part of the drafting discussions between the legal advisors and the PSC. Therefore, he was not in a position to either object to or agree with it at this stage.

On the term “summons” or “subpoena,” he confirmed that consideration had already been given to this matter, and it appeared preferable to use the term “subpoena,” but as Ms Ebrahim mentioned, it would be part of ongoing discussions.

On the fine of R50 000 or less, he agreed whether to specify an amount or leave it open for the courts to determine would also be considered during the discussions between the legal experts and PSC.

Adv Makinde explained that the term “summons” had been changed to “subpoena” to ensure consistency. On the fine, she clarified that the range was R0 to R50 000 and it did not mean that an individual would automatically be fined R50 000. The magistrate would still have discretion over the amount. The R50 000 was chosen as a reasonable upper limit, given that it was a significant sum for employees, especially in the category of people the bill dealt with. She explained that the fine was a serious matter, as it would apply only in cases of misconduct, after an individual had already undergone internal disciplinary hearings. The fine would be in addition to other disciplinary measures, and individuals could face criminal sanctions if they concealed evidence or were uncooperative. Dismissal was also a potential consequence.

Ms Potgieter requested clarity if magistrates preferred to leave the determination of the fine to the court and, if so, why an amount was specified in the clause. She asked if there was a possibility that someone could receive a fine exceeding R50 000, depending on the severity of the non-compliance or misconduct. She was uncertain if the Committee should keep the specified amount or allow magistrates to determine the fine.

The Chairperson remarked that most of these items should be addressed when the legal practitioners convene. He noted, however, that R50 000 today might not have the same value in the future due to inflation, and what seems like a significant amount now may not be as substantial in ten years. He suggested that consideration should be given to how this could be addressed. The Bill should be designed to withstand the test of time and R50 000 might not remain an appropriate amount in the long term.

Ms Potgieter acknowledged that the Chairperson’s point was a valid one.

Adv Makabeni explained about penalties in legislation that Parliament could not interfere with the sentencing discretion of the judiciary by prescribing the specific type of sentence. While there are minimum sentences for certain offences, they are not truly "minimum," as the court has discretion to depart from them if there are extenuating circumstances. However, Parliament can indicate the range of penalties it considers appropriate for particular offences. By setting a range within which the courts can exercise discretion, Parliament signals the seriousness it attaches to a specific offence. On fines in legislation, the Minister of Justice oversees the Adjustment of Fines Act, which provides a mechanism for periodically adjusting fines in response to inflation and other factors. This ensures that fines remain at an appropriate level over time.

Dr Letlape proposed the possibility of using a percentage of salary for fines rather than a fixed amount. This approach would automatically account for inflation and salary increases, as seen in penalties imposed by bodies such as the Competition Commission, which takes 10% of an individual’s annual income as a fine. This method would ensure that the fine adjusts accordingly as salaries rise.

Adv Makabeni cautioned that the unintended consequence of linking fines to salary percentages would be that it assumes all individuals subject to the fine would be employed at the time. For companies, penalties are often linked to net profits, but when it comes to employees, there is a risk that an individual may have resigned or been dismissed by the time the fine is imposed.

Dr Letlape clarified that his suggestion was intended for the period during employment, as this is when the relevant jurisdiction would apply. Alternatively, he proposed removing the specific amount entirely and allowing the courts to determine the appropriate fine.

Clause 12: Access to reports of Commission

Ms Ebrahim expressed some discomfort with the clause, stating that she was unclear about the meaning of the term “any other person.” She suggested that greater specificity would help clarify the clause. Further, she noted that the reference to “an investigation report of the Commission dealing with complaints or grievances” could be confusing, particularly with the inclusion of the phrase “once the investigation report is finalised.” She assumed that the reports referred to in subclauses 1 and 2 were two different reports, but the wording created confusion on this distinction. She admitted that she might be misunderstanding the process as written.

Adv Makinde explained that the Bill contains two key principles. First, any investigation report cannot be released until the investigation is complete. Completion is defined as when a final report has been issued to the relevant authority. The findings and recommendations are then shared with the complainant or the affected party. In some cases, the full report may not be provided to the complainant; instead, they may receive sections relevant to them. Only after the report is finalised and issued to the executive authority are the findings shared in the form of a letter with the affected individuals. Third parties are not entitled to the full report unless they have the explicit permission of the individual(s) involved. For example, if an investigation involves multiple parties, a third party can only access the relevant portion of the report if authorised by the affected individual(s). However, reports may be released to Parliament as necessary, albeit with personal details redacted.

Ms Tikana-Gxatiwe gave the example of a report on the Gauteng health department mentioned in the media today. She inquired about the whereabouts of the report, as it had already been covered in the newspapers.

The Chairperson explained that the committee had requested an investigation into a Gauteng health department official but had not yet received feedback. However, The Star newspaper had published an article this morning that referenced the findings of the investigation, which the committee had not yet seen. This raised concerns as the committee had made the request, but the findings were already in the public domain, which was an unexpected development. This highlighted concerns on the handling and dissemination of investigation reports.

Adv Makabeni agreed with Ms Ebrahim's concerns on “any other person” and the need for clearer phrasing. He proposed that in subclause 1, the term “other affected person” be used instead of the current wording to improve clarity.

Ms Potgieter supported the idea of refining the wording. The clause as written seemed clumsy, particularly in its assertion that no one could access the reports until the investigation had been completed and submitted to the relevant authority. Access could only be granted to individuals with an interest in the investigation, those who had obtained permission from other parties, or if certain information could be extracted from the reports. She suggested that this clause should be adjusted to address situations where the committee, having requested an investigation, finds that the report is leaked to the media before they have had the chance to review it. She asked how the clause could be amended to prevent this, especially for sensitive matters, such as whistleblower cases.

The Chairperson suggested that it would be appropriate for the legal practitioners to consider the recent developments, including the newspaper article published this morning on the investigation findings. He proposed that it be addressed in the legislative framework, ensuring clarity on how such situations could be legislated for. The Chairperson expressed confidence that the PSC along with the legal advisors would ensure that all legal professionals are satisfied with the final provisions.

Clause 13: Implementation of decisions of Commission

Ms Ebrahim raised concerns about the clarity of the wording in the clause, particularly on the term "decisions." Public submissions had noted that the use of the term might not always be appropriate, as some instances involve proposing measures or giving directions rather than making binding decisions. She clarified her understanding that only PSC directions would have binding effect, while recommendations, advice, or proposed measures would not. She suggested adjusting the wording in subclause (4) to reflect this distinction clearly, ensuring that directions with constitutional authority are explicitly binding.

Ms Ebrahim highlighted a potential legal issue on adverse findings in reports. Drawing a parallel with the Public Protector's process, she suggested that individuals adversely affected by a report should be given an opportunity to respond before the report is finalised, to avoid legal challenges based on procedural fairness.

Adv Makinde explained the framework for the implementation of PSC decisions. There are two categories of decisions:
- Recommendations and Advice: These require the recipient, such as a head of department or minister, to develop a plan of action and report progress to the PSC. If the recommendations cannot be implemented, the PSC must be informed with valid reasons, and the PSC must respond in writing.
- Directions: These are binding and must be implemented without further engagement. Non-compliance can be challenged in court. Directions typically address instances of non-compliance with specific legislation.

Adv Makabeni supported this position and elaborated on how PSC decisions might affect individuals. He explained that decisions, even if not binding, could still harm a person’s dignity or other rights, making them challengeable as administrative actions. He provided an example from a previous matter involving a parliamentary recommendation that had implications for an individual’s reputation, underscoring that such outcomes could be considered decisions.

Ms Potgieter commented that subclause (3) needed significant revision, particularly the portion after the comma, which she felt was unclear and poorly written.

Adv Makinde confirmed that changes had been made to improve the wording. It now reads:

"A person to whom a Commission direction is issued in an investigation report by the Commission must implement such direction in terms of the relevant Act to which the Commission has directed it to act."

The remaining portion of the sentence was redundant and had been removed.

The Chairperson agreed that the revised wording was clearer and more logical.

Clause 14: Independence and impartiality

Ms Ebrahim stated that she had no further comments on this except to note that she presumed the PSC would issue rules on ethical conduct. She affirmed that the section addressing rules is broad enough to enable the PSC to do so.

Commissioner Searle agreed and added that from their side, they had addressed the language, including the use of gender-neutral terminology.

Adv Makinde proposed a technical amendment, suggesting that references to clause 16(3) be simplified to refer to the whole of clause 16.

Ms Potgieter recommended an adjustment to clause 14(3), proposing that the phrase "fair, unbiased and proper investigation or inquiry" be amended to include the term "inspection." She suggested revising it to state: "fair, unbiased and proper investigation, inspection or inquiry," thereby encompassing all three processes.

The Chairperson said this recommendation would be considered by the legal practitioners.

 Clause 15: Obstruction of Commission

Commissioner Searle said the R50 000 threshold would be discussed with the legal experts and the PSC.

Clause 16: Secretariat of Commission

Ms Ebrahim noted that her only comment was ensuring consistency in the wording, particularly whether to use "employment" or "appointed as," and indicated that this would be reviewed as a team.

On subclause (5), which stipulates that the Commission must consult with the Cabinet member responsible for finance and public service and administration on matters relating to remuneration, Ms Ebrahim noted a previous discussion about the inclusion of the latter ministry. She proposed adding the phrase “prior to submitting the budget” to clarify the consultation process but stated that this addition may not be necessary as it reflects existing practical processes. She invited the PSC to provide input on whether including the Ministry of Public Service and Administration remains necessary.

Commissioner Searle emphasised that the Cabinet member responsible for finance was included in this context to ensure a consultative process addressing the Commission's financial needs, particularly in staffing and human resources. He explained that subclauses (3) and (4) specifically address staffing requirements, while subclause (5) ensures meaningful engagement with the Minister of Finance to align the budgetary needs of the Commission with the Minister’s understanding of its unique context. He stated that the reference to the Minister of Public Service and Administration should be removed, maintaining that consultation with the Minister of Finance is essential for constitutional compliance.

Adv Makabeni agreed with the removal of the reference to the Ministry of Public Service and Administration, stating that the Commission’s accountability lies with Parliament. Consultation with the Minister of Finance is a constitutional imperative, whereas the involvement of the Ministry of Public Service and Administration does not appear relevant in this context.

Ms Potgieter sought clarity as the inclusion of the two ministers had been part of the Bill. She queried the implications of removing the Minister of Public Service and Administration, particularly on the parliamentary budget process. She raised concerns about potential unintended consequences, such as the lack of accountability for budgetary matters debated in Parliament. She also suggested introducing an oversight mechanism within the Commission for appointing the CEO. This mechanism could involve the Chairperson presenting appointments to the other Commissioners for approval, ensuring greater accountability and adherence to principles of good corporate governance.

The Chairperson said her proposal was constructive as it endorsed the notion that the Chairperson should not unilaterally appoint the CEO. Instead, the decision should involve consultation with the other Commissioners, aligning with sound corporate governance practices.

Dr Letlape expressed concern on the CEO appointment process and questioned the governance structure of the Commission. He asked if the five national Commissioners and nine provincial Commissioners operate collectively as a board or function separately in their respective jurisdictions. The appointment of the CEO should be a collective responsibility of the Commission, with the Chairperson signing off on the appointment but not making the decision unilaterally. The approach should align with principles of good corporate governance. The CEO is accountable to the Commission as a whole, not to the Chairperson alone. He suggested that the Commissioners should have a role in appointing the Chief Financial Officer, as financial oversight is critical to the organisation's success. He warned that allowing the Chairperson to unilaterally determine the structure of the secretariat could lead to governance failures and stressed that managing the CEO’s performance should involve both the Chairperson and Deputy Chairperson.

Ms Xaba-Ntshaba agreed that the five national Commissioners should work collectively and perform their duties as a unit. While the Chairperson's signature might formalise the appointment, the decision itself should reflect the collective will of the Commission.

Commissioner Searle clarified that the Commission operates as a single entity, regardless of geographical locations. The highest decision-making structure is the plenary, where all Commissioners come together to make collective decisions. This structure applies to all critical matters, including the appointment of the CEO. The provision in the Bill may need to be revisited to remove ambiguity. He explained that the plenary would conduct the recruitment and selection process for the CEO, while the Chairperson, as the executive authority, would formalise the appointment by signing off.

Adv Makinde added that clause 16(3) of the Bill explicitly refers to the Commission, meaning the PSC as a whole. She explained that the Commission is responsible for the appointment, and the Chairperson’s role is to sign off on the recommended candidate following the Commission’s decision. The CEO reports to the Commission.

Dr Letlape emphasised the need for explicit language to avoid misinterpretation of the Chairperson’s authority. He proposed that the Bill clearly state that the Commission delegates the authority to the Chairperson to sign on its behalf, ensuring that the collective nature of the appointment process is preserved. Ambiguous wording could lead to instances of overreach by a future PSC Chairperson, necessitating legal challenges.

The Chairperson concluded that there was consensus among Members that the CEO appointment should be a function of the Commission and not the Chairperson alone. He tasked the legal advisors with refining this.

Dr Letlape again suggested the CFO appointment should be done by the Commissioners. He stressed that such decisions should not be made solely by the CEO.

Adv Makinde clarified that significant appointments, such as Deputy CEO and CFO are typically addressed through a recruitment policy. This policy requires that recommendations for significant appointments be presented to the plenary for approval before finalisation. She explained that the plenary, which serves as the decision-making body, would approve these appointments, ensuring proper oversight and governance.

The Chairperson said the session was scheduled to adjourn at 16:30. Acknowledging the considerable amount of work remaining, he asked Members whether to continue the session beyond the scheduled time or to adjourn and resume during the next meeting. He expressed his willingness to extend the session, provided there was consensus among Members.

Ms Xaba-Ntshaba remarked that earlier discussions had agreed to focus solely on clauses requiring amendments or addressing critical issues to expedite deliberations. She supported the proposal to continue the session and suggested that Ms Ebrahim summarise key points to save time.

The Chairperson defended the process as Members required sufficient time to deliberate and provide input. He cautioned that extending the session might take an additional hour. He expressed his preference to proceed with deliberations.

Ms Ebrahim indicated that she did not anticipate requiring much additional time and proposed streamlining the process by focusing on clarity and policy-related changes, leaving technical drafting matters to be resolved later.

Ms Potgieter noted that she had a flight scheduled for 19:00.

The Chairperson proposed continuing the session until Ms Potgieter needed to leave, ensuring that progress would not be delayed.

Ms Xaba-Ntshaba commended the PSC for its extensive contributions, although she observed that some inputs were repetitive.

It was ultimately decided to extend the session with all participants agreeing to stay longer.

Clause 17: Delegation of Commission’s powers or functions

Ms Ebrahim noted that, based on public submissions, it is essential to respect decisions made by a delegated authority once rights have accrued to another party. Such decisions should be regarded as final to avoid potential legal challenges arising from retractions.

No further comments were raised on this matter.

Clause 18: Finances and accountability

Ms Ebrahim explained that, unlike other boards where either an individual or the entire board may act as the accounting authority, the policy in this instance designates a single person as the accounting authority for purposes of the Public Finance Management Act (PFMA).

Adv Makinde added that the Chief Executive Officer (CEO) serves as the accounting officer, as this structure does not operate as a board.

No further comments were raised.

Clause 19: Legal proceedings by or against Commission

No amendments were made to this clause.

Clause 20: Rules

Ms Ebrahim explained that the rules, akin to regulations in the executive, will be issued via notice in the Government Gazette. Public submissions suggested amending the clause to use "must" instead of "may," as the absence of rules could constrain the Commission. She had broadened the wording of subclause (f) to read: "necessary or expedient for the carrying out or furtherance of the provisions and objectives of the Act," subject to review with the State Law Advisor.

Commissioner Searle noted that this matter would be addressed further during deliberations.

Adv Makinde supported changing "may" to "must," adding that the language issue does not materially affect the intent of the provision.

Adv Makabeni, however, recommended retaining "may," emphasising that empowering provisions grant discretion, allowing them to be exercised as necessary. He agreed with the proposed reformulation of subclause (f).

Ms Potgieter suggested a compromise: making subclause (a)(i) and (ii) prescribed issues under "must," while leaving the remaining provisions under "may."

The Chairperson concluded that the legal practitioners would review the matter to ensure the language reflects the Committee's intention accurately, noting satisfaction with the proposed review process.

Clause 21: Repeal and amendment of laws

Ms Ebrahim stated that during the final preparations for the A-List, the technical details would be thoroughly reviewed to ensure accuracy. The schedule's technical nature made it unlikely that Members would have substantive contributions to add.

No additional comments or amendments were made to this clause.

Clause 22: Transitional provisions

Ms Ebrahim stated that Adv Makinde had already addressed these matters and unless the Committee felt something had been overlooked, there was nothing further she would add.

Ms Potgieter proposed an amendment to clause 22(3)(g), suggesting that the phrase "resources" be followed by the addition of "within three years from the date of coming into effect of this Act." She argued that this would provide a clear timeframe and prevent the provision from being open-ended, which could lead to indefinite delays. She proposed that the Commission be required to report to Parliament every three months for a period of three years from the Act’s commencement, detailing progress on the implementation of its mandate as outlined in clause (g). This would ensure Parliament could monitor progress and hold the Commission accountable. She recommended a further clause stating that within 12 months of the Act’s commencement, the Commission should prepare and publish in the Government Gazette a recommended implementation plan to assist municipalities and public entities in implementing the PSC mandate. This would prevent municipalities from delaying or misinterpreting the implementation process and would ensure the Commission provided necessary guidance to all stakeholders.

The Chairperson acknowledged that this proposal would strengthen the mandate for local authorities by attaching a deadline and introducing a reporting mechanism to Parliament.

Commissioner Searle responded that while the PSC had no objections to the concept of reporting to Parliament, he expressed concerns about a three-month reporting cycle, noting that this could place undue strain on both the PSC and the Committee. He suggested that a more reasonable reporting period might be considered.

The Chairperson indicated that the PSC might consider extending the reporting period to four months instead of three, ensuring that deadlines were clearly communicated to local authorities, while providing a clear reporting timeline for the Committee, which could be set to quarterly intervals.

Dr Letlape suggested a six-month reporting period might be more practical, as three months could pass quickly without significant progress being made. If the Committee required an interim report, it could be addressed separately. On the proposed three-year timeframe, he questioned the specifics of "within three years," as he understood that municipalities should be adequately resourced to complete their tasks within a shorter period.

Ms Potgieter clarified that the current wording of clause (g) required implementation on a progressive scale, subject to the availability of resources. Specifying implementation within three years would provide a clear deadline, preventing indefinite delays. The Commission would publish an implementation plan within 12 months, providing municipalities with guidance on how to proceed. During the three-year period, the Commission would report on progress, whether at three-month or six-month intervals.

Dr Letlape suggested reducing the reporting period to two years, noting that this would ensure the first report occurred within the current parliamentary term, rather than spilling over into the next parliament.

Ms Potgieter responded that three years aligned with municipal budget cycles, allowing sufficient time for planning. A two-year period would not be adequate for municipalities to adjust to the changes.

Ms Tikana-Gxatiwe emphasised that the PSC, rather than municipalities, would be responsible for budgeting for the implementation of the Act. She supported the idea of a two-year reporting period, aligning it with the urgency of implementation.

The Chairperson concluded that there appeared to be general agreement on the need for a clear deadline, whether two or three years. He suggested that the drafters return with a recommendation, which the Committee could consider during the A-List deliberations.

Ms Xaba-Ntsaba supported the two-year period, as it would ensure the report was delivered within the current administration.

The Chairperson said that the Committee would wait for the PSC’s operational and financial input before making a final decision. He acknowledged the urgency expressed by the members and indicated that further discussion would occur once the A-List was addressed.

Dr Letlape emphasised the importance of ensuring municipalities were adequately resourced to meet the deadlines, stressing that Parliament had a responsibility to ensure they received the necessary support to carry out the mandated work.

The Chairperson concluded that the Committee was in agreement about the need for a deadline, whether two or three years, and would await further input from the PSC before making a final decision.

There were no further suggested amendments to clause 22.

Ms Potgieter asked if the Long Title was to be changed, as it had been agreed that this would be revisited once the Committee had completed all other matters.

Ms Ebrahim replied that she did not foresee any changes to the Long Title at present. However, if the Committee decided to separate the section on subpoena powers, it might require a change. Otherwise, she saw no immediate need for adjustment.

Dr Letlape offered a general comment, suggesting that it would be beneficial to ensure that new municipalities start under a clean slate, following the new framework for accountability. This would ensure that the Commission would be prepared to supervise all municipalities after the upcoming municipal elections.

The Chairperson acknowledged the progress made and commended the members for their positive engagement and clause-by-clause deliberations. He extended special thanks to the Parliamentary Legal Advisor, the PSC, the State Law Advisor, and all the support staff who had remained engaged until nearly 17:00. He appreciated their commitment and the Committee looked forward to addressing the A-List.

The meeting was adjourned.