Public Service Commission Bill: Committee proposed amendments

Meeting report

The Chairperson said that the aim was to have the A-List finalised today. If today's process went as planned, the Committee would vote on the adoption of the final A-List in a virtual meeting the following week.

The Chairperson said that this was likely the last opportunity as a Committee to amend or suggest changes to the A-List before the following week. He looked forward to the final input of Committee members. He was encouraged by the work that everyone had put in so far.

The Chairperson emphasised the importance of avoiding any potential challenges to the Bill due to procedural issues. He urged the Committee to take the advice of Parliamentary Legal Services seriously to ensure adherence to the correct procedure.

The Chairperson noted Mr P Ndamase (ANC) apology that due to scheduling conflicts he might not attend some meetings and acknowledged the pressures of serving on multiple committees.

Committee proposed amendments (Draft A-List): briefing
Ms Fatima Ebrahim, Parliamentary Legal Advisor, stated that the Committee had deliberated on the Bill and it was now at the stage of making amendments. These proposed amendments are referred to as the A-List which she would present.

Based on the A-List as finalised and adopted, those amendments would be incorporated into a redraft of the Bill, known as the B-Bill, printed by Creda for adoption by the Committee before submitting it to the National Assembly. This process would be completed within the week, provided all matters were resolved during the current meeting.

General changes
Ms Ebrahim said that the first amendment pertained to gendered language. Members had the previous week agreed to make the Bill gender-neutral, in line with Parliament drafting practice. However, upon further consultation with the State Law Advisor, it was recognised that the Constitution, when referring to commissioners, uses gender-specific terms such as "he," "she," "man," and "woman." Consequently, it was deemed inappropriate to alter constitutional provisions.

Ms Ebrahim clarified that while references to commissioners retained gender-specific language, references to other individuals, such as employees, were revised to use gender-neutral terminology. Additionally, cross-referencing issues were addressed, ensuring consistency in terms such as "employee" and "official." These adjustments were drafting refinements without substantive impact on the content of the Bill. She encouraged Members to review these changes and confirm their satisfaction.

Long Title
No changes were made to the Long Title of the Bill.

Preamble
A modification was made to the Preamble by removing the reference to Schedule 6 of the Constitution. Ms Ebrahim explained that Schedule 6 pertained to the continuation of the pre-1994 Public Service Commission, which comprised a national branch and provincial commissions. This reference was deemed inaccurate in the current context. The revised Preamble now reflects that section 196 of the Constitution provides for a single, independent and impartial Public Service Commission.

The Chairperson noted that the technical changes being reviewed were not substantive. To expedite the process, Members were asked to raise questions about specific technical changes as they arose, rather than deliberating after each adjustment.

The Chairperson acknowledged the request by Ms M Pholwane (ANC) that the page number be mentioned to assist Members in locating the changes under review.

Ms Ebrahim proceeded to explain that certain portions of the Preamble required alignment with the exact wording of the Constitution. She noted that some words had been inadvertently omitted and that these were now reinstated to ensure accuracy.

Arrangement of Sections
The clause was revised to read Inspections and Inquiries by the Commission. Clause 11, which was previously titled Inquiries, has now been amended to address the Summonsing of Witnesses.

Definitions
The definition of Commission was amended by deleting "Commission" in brackets, as it was deemed unnecessary.

The definition of Departmental Bargaining Forum was adjusted to correct an error and to ensure it was in alphabetical order. The term Public Service Commission Secretariat was revised, as "secretariat" is already defined, making the reference redundant.

The definition of employee added the phrase "in relation to the secretariat" to avoid confusion between a commissioner and an employee under the Act.

The definition of Departmental Bargaining Forum was deleted, as it was deemed redundant.

Clause 3: Constitution of Commission
There were no amendments to this clause.

Clause 4: Appointment of commissioners
Under clause 4(1)(a), the phrase "and this Act" was added for completeness. This clause outlines the President’s obligation to request the appointment of a fit and proper person as outlined in the Constitution. The addition of "fit and proper" within the context of this Act ensures consistency, and this change was also made in 4(1)(b).

In clause 4(1)(b), the term "legislature" was expanded to "relevant provincial legislature" for completeness. This change was applied throughout the document wherever the term provincial legislature appears, ensuring that it refers to the appropriate legislature based on the commissioner’s region.

In clause 4(4)(a), the requirement of a bachelor's degree at an NQF level below 8 was revised. The new minimum requirement is now a NQF level 8 qualification, rather than specifically a bachelor’s degree.

Mr K Sithole (IFP) asked if foreign qualifications would be recognised as it refers to qualifications recognised by the South African Qualifications Authority (SAQA).

The Chairperson clarified that the qualification does not need to be South African, but must be recognised by SAQA. For example, an MBA from Oxford would be acceptable if recognised by SAQA.

Ms Ebrahim confirmed that qualifications from recognised institutions, whether local or international, would be acceptable. Only qualifications from unrecognised institutions would be excluded.

In response to Mr Sithole asking if there is a list of South African institutions not recognised by SAQA, Ms Ebrahim said that there is a list of recognised institutions, though she did not specify which are unrecognised.

Adv Shukrat Makinde, PSC Director of Legal Services, explained that the process for foreign qualifications involves submission to SAQA for evaluation. SAQA would then issue a certificate of evaluation to confirm equivalency to the relevant NQF level.

Mr Ndamase agreed that as long as the qualification is recognised by SAQA, it would be acceptable, regardless of its origin.

Ms P Xaba-Ntshaba (ANC) requested clarity on which South African institutions are not SAQA-recognised. She asked for transparency on this matter for the benefit of all.

Ms Ebrahim explained that while she did not have a list of unrecognised institutions, it is likely that SAQA maintains a list of recognised institutions rather than those that are unrecognised. She noted that educational facilities that "pop up" often require individuals to verify their qualifications with SAQA. She suggested that the Committee researchers could engage SAQA to obtain the relevant information.

Dr T Letlape (Action SA) clarified that recognising an institution differs from recognising a qualification. Recognised institutions might offer new courses that have not yet been accredited by SAQA, which could result in unrecognised qualifications. He emphasised that any qualification, regardless of origin, must be recognised by SAQA.

An official added that the Department of Higher Education annually publishes a list of recognised institutions and degrees.

The Chairperson acknowledged the importance of ensuring qualifications are properly vetted but stated that no changes to the Bill were necessary, as SAQA is the government agency tasked with verifying qualifications. He emphasised that it is the responsibility of individuals seeking to become commissioners to approach SAQA for verification of their qualifications.

Ms W Tikana-Gxatiwe (ANC) raised concerns about unrecognised qualifications obtained from recognised institutions, which disadvantages students. She called for increased public awareness of this, particularly as public funds such as NSFAS are sometimes used to support students pursuing such qualifications, leaving them unemployable. She proposed engaging with the Portfolio Committee on Higher Education to address these concerns.

The Chairperson committed to engage with the Higher Education Committee on the matter.

Ms Xaba-Ntshaba suggested that the Committee directly call upon the Department of Higher Education to present on this.

The Chairperson responded that he preferred to follow protocol by first engaging with the Portfolio Committee on Higher Education, ensuring proper procedure and collaboration with colleagues managing that portfolio.

Ms Xaba-Ntshaba countered that the Chairperson may not fully appreciate the extent of his authority, noting that protocol is procedural and should not prevent the Committee from addressing urgent concerns directly.

Dr Letlape cautioned against directly summoning other departments, asserting that such a practice could lead to chaos if other committees adopted the same approach. Concerns should be directed to the relevant Committee for clarity and further action. This Committee’s focus should remain on ensuring that candidates present SAQA-verified qualifications. Matters beyond this scope should be addressed by other committees.

Ms Ebrahim resumed her briefing, noting the Committee’s prior instruction to simplify the phrasing "8 to 10 years" to "at least eight years." This adjustment had been applied to subclauses (ii), (iii), and (iv), with a slight reversion to the original wording proposed for subclause (iv).

Ms L Potgieter (DA) referred to subclause (iii) on Members of Parliament, Provincial Legislatures or Municipal Councils. She proposed introducing a cooling-off period of three years to ensure independence and prevent immediate transition from a political role to the Public Service Commission.

Ms Ebrahim agreed that this could be addressed but suggested it be included under the disqualification provisions related to eligibility.

Ms Potgieter clarified her proposal, advocating for a specific amendment to clause 4(4)(b)(iii) which would explicitly prohibit current Members of Parliament, provincial legislatures, or municipal councils from being appointed to the Public Service Commission. A minimum three-year cooling-off period was necessary to safeguard the independence and professionalism of the Commission.

Mr Sithole questioned the rationale for a three-year cooling-off period, suggesting that two years might suffice. He sought clarity on why three years was deemed necessary.

The Chairperson provided context, recalling last week’s robust discussion on whether political experience should count towards eligibility for appointment as a commissioner. Although some Members were uncomfortable with allowing politicians to transition directly into the Commission, the Committee had agreed not to exclude them entirely. However, a measure was introduced to prevent sitting politicians from being nominated to the Commission, aiming to maintain its independence and minimise political influence.

The Chairperson elaborated on the purpose of the proposed cooling-off period, noting its potential to prevent "revolving door" practices where political parties might strategically place their members in the Commission, undermining its objectivity. He emphasised the Committee's commitment to creating a professional and independent Public Service Commission aligned with its oversight role and mandate.

Mr Sithole reiterated his concern about the three-year cooling-off period, questioning its rationale and arguing that a two-year period would suffice. South Africans are inherently political as voting aligns individuals with political identities.

The Chairperson acknowledged the differing opinions, stating that the cooling-off period, whether two or three years, serves the same principle of ensuring independence in the Public Service Commission. He highlighted the importance of adding a measure to safeguard the Commission's objectivity.

Mr Ndamase expressed conflict over the proposal, sharing his personal experience transitioning between administrative and political roles in the Eastern Cape provincial legislature. He argued that such transitions do not necessarily compromise professionalism or neutrality, citing his own ethical conduct. He supported a two-year cooling-off period, noting that three years might be excessive.

Ms Pholwane voiced her support for the two-year cooling-off period.

Dr Letlape stressed the importance of consensus on having a cooling-off period, irrespective of its length. While he personally preferred a longer period, even advocating for a lifetime restriction, he was willing to compromise at two years.

Ms Tikana-Gxatiwe raised philosophical questions about what defines a politician, noting that everyone, by voting, aligns politically to some degree. She argued that professionalism and integrity depend on the individual, rather than their political affiliation. Reflecting on her own transition from a sensitive administrative role to a political position, she maintained that ethical conduct ensures neutrality. She supported the two-year cooling-off period but noted she would have accepted even one year as sufficient.

Ms Xaba-Ntshaba opposed extended cooling-off periods, expressing concern about their impact on an individual's livelihood. She questioned the necessity of such restrictions, noting that everyone engages in political activity through voting. She criticised longer waiting periods as punitive, particularly for former Members of Parliament or councillors who must still provide for their families. She advocated for a one-year cooling-off period, warning that extended unemployment could lead to adverse mental health effects.

Dr Letlape emphasised the importance of understanding the role of a commissioner, highlighting that it should not be viewed as a position for job seekers. Commissioners must be above reproach and serve with integrity. A job seeker in survival mode could be dangerous in such a role, as they might be vulnerable to inducements. He compared this principle to corporate practices, such as restraint of trade, and stated that political office bearers must take pride and responsibility in their role. He stressed the need for a cooling-off period after serving as a political office bearer to recalibrate and ensure independence. He cautioned against assuming everyone is ethical, advocating for rules that protect society and the future for the benefit of future generations. A cooling-off period could serve as a beneficial "fasting time" for personal and professional growth.

The Chairperson acknowledged the valuable contributions and repeated the Committee's priority of establishing an independent and effective Public Service Commission. He agreed with the proposed two-year cooling-off period as it aligns with the Committee’s goals of fostering independence and oversight. He invited input from PSC and Parliamentary Legal Services to ensure the proposal is seamlessly integrated into the Bill.

Mr Ashley Searle, Western Cape Public Service Commissioner, supported the proposal, noting its alignment with the Commission’s principles of impartiality and independence. The clause would strengthen the existing framework and commissioners undergo a rigorous selection process to ensure compliance with the Act.

Adv Makinde also expressed support, adding that the proposal clarifies the process and avoids potential conflict of interest. The cooling-off period ensures candidates are not sitting members at the time of application, thus eliminating automatic conflicts of interest. She drew a parallel to corporate practices, where individuals transitioning to competitor companies are required to take a break to avoid conflict of interest. This principle upholds fairness and protects the integrity of the process for all South Africans.

Adv Sisa Makabeni, Senior State Law Advisor from the Office of the Chief State Law Advisor, understood the concerns raised by Members. He cautioned, however, about the balance between what the Constitution permits the Committee to regulate and what can be prescribed. The Constitution allows the Committee to regulate the process of appointment but does not extend this authority to adding substantive qualifications or criteria for candidates. Exceeding this scope could lead to constitutional challenges in the future. He cited past cases, such as the extension of the Chief Justice’s term, to illustrate the risk of provisions being struck down by the courts if they overreach constitutional authority. He urged caution while acknowledging the validity of Members' concerns.

The Chairperson acknowledged Adv Makabeni’s input but expressed a preference for strengthening legislation to address contemporary challenges and prevent abuse of power. He highlighted gaps in the current legislative framework and stated a desire to err on the side of over-legislation rather than under-legislation, referencing past issues with oversight structures.

Ms Ebrahim stated her support for the principle of the proposed two-year period but acknowledged Adv Makabeni’s concerns about potential constitutional limitations. She had consulted with the head of the legislative drafting unit, who agreed that there might be a constitutional issue with the proposed provision. She requested time to review the matter further and undertook to provide the Committee with a written response after additional discussions. She assured the Committee that if determined that the provision could be included despite potential risks, it would be drafted accordingly, based on the proposed two-year period.

The Chairperson emphasised the importance of adhering to legal advice to ensure compliance with constitutional processes.

Mr Sithole reflected on his experience in a previous portfolio committee, where legislative adjustments were made to the term of office for board members. It was important to balance constitutional compliance with practical considerations. He expressed scepticism about the constitutional concern raised, while underscoring the need for constitutional adherence.

Mr Ndamase appreciated the contributions of legal practitioners but asserted that parliamentarians, as lawmakers, must not relinquish their legislative authority. Lawmakers should be allowed to explore all avenues within the constitutional framework, even if these avenues extend into contentious areas, to ensure robust law-making. He warned against becoming mere "rubber stampers" and called for meaningful debates that empower Parliament to fulfil its legislative mandate effectively.

Mr Ndamase asked if lecturers, particularly those without management experience, should qualify for Public Service Commissioner, suggesting that such qualifications require further scrutiny.

The Chairperson provided feedback on the Committee's previous discussion on the academic qualifications required for the PSC, particularly the consideration of individuals from academia. Many current commissioners have come from academia due to their in-depth technical knowledge of public service and their extensive experience in academic management, including supervising students. The Committee was satisfied with the conclusion that individuals from an academic background with eight years of experience would be qualified for the role.

Mr Ndamase agreed, noting that such qualifications should be at the postdoctoral level, a point with which the Chairperson agreed.

Dr Letlape raised concern about the practicality of implementing these changes, asking if the desired adjustments would require a constitutional amendment or a new interpretation of the Constitution. He emphasised that if the Constitution is treated as an immutable document, it could limit the country's ability to govern effectively. He referenced Section 27 and the challenges in interpreting it for the creation of a National Health Insurance (NHI) system as an example. He argued that the Constitution should be seen as a flexible document that evolves with the country's realities and lived experiences. He called for advice on how to make necessary changes happen, including potential amendments, and expressed willingness to engage with experts to ensure that such changes are viable.

Ms Tikana-Gxatiwe acknowledged the two scenarios at hand: the urgency of the Bill currently before the Committee and the possibility of a constitutional amendment, which she described as a significant challenge. While recognising the potential for pursuing constitutional changes in the future, she emphasised that the immediate priority should be the Bill before the Committee. She proposed waiting for legal advice on how to proceed while ensuring that any actions taken remain constitutionally sound.

Ms Xaba-Ntshaba expressed frustration with the current Constitution, stating that it has placed South Africa in a difficult position, particularly its clauses on equality and the rights of foreigners. The Constitution has led to challenges, including issues with unregistered spaza shops, and called for a fresh discussion on its provisions after completing the Bill.

The Chairperson acknowledged her comments and indicated a willingness to proceed carefully, ensuring that any decisions made align as closely as possible with the Constitution to minimise the risk of legal challenge.

Ms Ebrahim explained that lawmaking often involves balancing different views. She highlighted the constitutional requirement that a person must be both South African and fit and proper, though the term "fit and proper" is not explicitly defined. The Committee could argue that someone who served as a member of the legislature in the past two years may not be fit and proper due to potential conflict of interest. While there is a risk of constitutional challenge, it is ultimately for the Committee to decide if it is willing to take that risk.

The Chairperson repeated that the goal is to find the most qualified and independent individuals, not to eliminate people – the provisions are designed to ensure the highest standards. He expressed confidence in proceeding with these provisions, which were aimed at ensuring the best candidates are selected.

Ms Potgieter spoke of the importance of being able to test the constitutionality of legislation. The inclusion of such a clause was intended to protect the integrity of the institution and professionalise the service. While there is always a risk of challenge, the nature of the position means that candidates are typically highly skilled and ethical.

Dr Letlape raised concern about categorising political influence as "unfit and improper," suggesting that it may be more appropriate to treat it as a separate issue. The focus should be on addressing political influence rather than labelling someone as unsuitable for the role.

Ms Tikana-Gxatiwe, acknowledging the role of Parliament as the custodians of the Constitution, expressed support for referring the matter to the legal practitioners for consultation. It was important to align with the Constitution and avoid potential risks that could lead to challenges.

The Chairperson concluded that the legal practitioners would seek further advice on how to proceed and would return with their recommendations later in the day.

Ms Ebrahim continued her briefing addressing the concern about the phrase "any combination of experience" in subparagraphs (i) and (v) that lacked a time frame. In response, the provision has been amended to specify a cumulative minimum of eight years of experience, aligning with other provisions in the Bill.

She introduced a new subclause to address practical challenges identified by the Public Service Commission during a meeting with the President. Although the President receives approval from the National Assembly or provincial legislature, the actual appointment is often delayed, resulting in vacancies that affect the Commission. To resolve this, the new provision stipulates that the Speaker of the legislature must notify the President of its Commissioner recommendations and the President will then have 45 days to appoint.

Finally, Ms Ebrahim explained that subclause 6 had been simplified for clarity and updated to align with relevant constitutional provisions based on her review of the wording.

Clause 5: Disqualification from appointment as commissioner
Ms Tikana-Gxatiwe expressed uncertainty on subclause (f) in clause 5.

Ms Ebrahim clarified that the clause was under discussion and proceeded to address several points. Members had previously debated the necessity of an age requirement. It was ultimately removed because it was deemed unlikely that a candidate meeting the required qualifications and experience would not already meet the age threshold.

The Committee had instructed the inclusion of a definition of "fit and proper," specifically addressing integrity, reliability, and honesty. However, Ms Ebrahim explained that defining "fit and proper" narrowly could inadvertently exclude other critical attributes. Instead, these requirements were incorporated into the criteria as "a person who has shown integrity, reliability, and honesty." She acknowledged potential practical difficulties, such as subjective assessments of honesty, which could lead to complications during the vetting process. However, she maintained that the broad understanding of "fit and proper" was sufficient to encompass these attributes without explicitly listing them.

On subclause (f), Ms Ebrahim confirmed the inclusion of a provision disqualifying individuals who are Members of Parliament, provincial legislatures, municipal councils, or office bearers of political parties from serving as commissioners. This decision aligned with input from the Public Service Commission, which explained the importance of maintaining impartiality and independence within the Commission.

Subclause (g) has been simplified by broadening the reference to offences under the Prevention and Combating of Corrupt Activities Act, ensuring that any conviction under the Act rendered a person ineligible. Additionally, the clause now disqualifies individuals convicted of any other offence resulting in a sentence of more than 12 months’ imprisonment without the option of a fine. This mirrors existing provisions applicable to Members of Parliament.

Ms Ebrahim noted changes to subclause (d), where the phrase "involving a breach of trust" was removed as it did not add substantial value to the clause. The Committee also considered whether to specify disqualifications, such as being removed from a Chapter 9 institution or being disbarred as a legal professional. After deliberation, it was decided that a broad, catch-all provision was preferable, as a specific list could inadvertently exclude other relevant scenarios, such as accountants being struck off their professional register.

Mr Sithole raised concerns about the provision requiring the President to appoint a commissioner within 45 days of notification by the Speaker. He questioned if the Speaker has the authority to mandate the President to act within a specific timeframe, given the powers and privileges of the presidential office.

Ms Ebrahim clarified that the appointment of a commissioner is a formality, as the House determines the appointee, leaving the President with no discretion in the matter. She lamented the challenges faced by the Commission when appointments are delayed, despite a constitutional obligation requiring constitutional functions to be performed diligently and without delay. The insertion of a specific timeframe in the Bill is intended to empower the Commission to take action if the President fails to act, addressing the current scenario where the Commission is left waiting. She emphasised that this timeframe does not create a legal issue, as the President's role in this context is procedural and requires no deliberation.

Responding to concerns raised by Mr Sithole about the use of the word "must," Ms Ebrahim explained that "must" is appropriate as it removes discretion, while "may" would introduce ambiguity and undermine the provision's intent. She noted that the requirement for the Speaker to communicate the decision ensures no delay arises, even though such communication is routine.

Mr Ndamase raised concerns about vetting, referencing the Minimum Information Security Standards document, which outlines the necessity of top-secret clearance for accounting officers. He proposed that vetting requirements be explicitly included to prevent unqualified individuals from occupying positions within the Public Service Commission.

The Chairperson reflected on his previous experience in the property industry, suggesting that combining a detailed list of disqualifications with a catch-all provision might address unforeseen scenarios. However, he acknowledged the differences between drafting legislation and lease agreements.

Ms Ebrahim highlighted a practical difficulty with including security clearance requirements. She shared her personal experience of delays in receiving a clearance certificate despite being informed of her clearance status. Requiring the clearance certificate could unfairly disqualify candidates who lack control over the issuing process.

Mr Makabeni added that the existing provisions addressing integrity, reliability, and honesty might be broad enough to encompass vetting requirements. He proposed a flexible approach similar to procurement law, where tax compliance is verified later in the process to accommodate administrative delays.

Ms Ebrahim agreed, cautioning the Committee to consider such practicalities before imposing stringent clearance requirements that might disadvantage otherwise qualified candidates.

Adv Makinde explained that public service recruitment involves basic checks, including banking and references, which apply to commissioners as well. Full vetting prior to appointment is not feasible due to the extensive time required, often years. Instead, a basic vetting process is conducted initially, ensuring candidates meet essential criteria, with full vetting deferred.

Mr Ndamase stressed the importance of incorporating vetting requirements into legislation, even if full vetting occurs post-appointment. He argued that initial checks should not replace a comprehensive vetting process, which ensures the integrity of appointees and enables oversight even after they have assumed office.

Ms Potgieter highlighted delays in obtaining vetting certificates from the State Security Agency (SSA) and proposed a future discussion to explore the vetting process in depth. She suggested leveraging alternative methods, such as requesting verification letters from the SSA, which are faster and provide interim assurance.

Mr Julius Ngoepe, Committee Content Advisor, described Parliament's dual vetting approach: security checks conducted by the SSA and qualifications verification. These processes occur before shortlisting or immediately thereafter, enabling committees to make informed recommendations to the National Assembly. He cautioned against introducing overly complex procedures that could disrupt recruitment, noting that the existing processes are effective in maintaining the integrity of the Public Service Commission.

Mr Searle shared his experience with the Western Cape legislature, where nominees undergo vetting, including SSA top-secret clearance, before the President's approval. The process ensures no premature appointments and supports the view that current integrity provisions are sufficiently robust.

While Mr Ndamase reluctantly agreed to proceed with the existing framework, the Chairperson acknowledged his seriousness about maintaining high standards for public service appointments.

Dr Letlape commented that vetting processes should remain back-office arrangements to avoid disadvantaging candidates. He cautioned that delays in obtaining clearance could be used as a political tool to block appointments. On subclause (e) and its implications for considering personal character evidence, he questioned if it should be omitted or merely flagged as potentially problematic, particularly when information from a spouse is involved.

Ms Ebrahim clarified that the inclusion of integrity, reliability, and honesty in the definition of a "fit and proper person" stemmed from previous Committee discussions. These qualities, while subjective and potentially evolving with societal norms, offer a broad standard for assessment. Practical application would depend on the specifics of each case. For example, allegations unrelated to a candidate's professional functions might be excluded, whereas evidence of misconduct, such as abuse, might warrant consideration.

The Chairperson agreed that these standards remain open to interpretation and should be applied judiciously by the Committee during the selection process. While it may not be feasible to define such traits exhaustively in the legislative document, obvious violations of integrity should disqualify candidates. Judgment should rest with the relevant committee.

Dr Letlape supported the proposed amendment emphasising the importance of encouraging public input to bring unknown issues to light. It is a necessary step to uncover concerns about a candidate’s character, reflecting a shared civic responsibility to ensure suitable appointments as a top-secret clearance takes time.

The Chairperson concluded that the matter had been adequately addressed.

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

Key points on this clause:

Inputs from the Office of Institutional Support and Development (OISD) revealed that Parliament generally plays no role in matters such as granting additional remunerative work, which is typically decided by the President. This aligns with other similar legislation.

Subclause (a): A query was raised about aligning the provision with disqualification criteria, specifically on holding office in political organisations. No changes were made, but the issue was noted.

Subclause (b): The term "prior" was added to clarify that permission for additional remunerative work must be sought before commencing such work.

Subclause (2): Wording changes made for clarity without altering the substantive content.

Subclause (3): To address concerns about the renewal of a commissioner's term, the clause now includes a requirement for the Commission to provide the President with a performance report. This ensures the President has adequate information to assess the renewal request, which must still be approved by the relevant legislatures.

Subclause (6): A requirement was added for the President to notify the legislature when allowing a commissioner to vacate office. This ensures all relevant parties can plan for the resulting vacancy.

Removal Provisions:
The process largely mirrors constitutional provisions for Chapter 9 institutions where removal requires legislative committee oversight, a House resolution, and subsequent action by the President. Complaints against commissioners must be substantive and supported by evidence. Rules for handling complaints and initial testing through an independent panel or other mechanisms must be crafted by the National Assembly and provincial legislatures.
Subclause (9) empowers the President to suspend a commissioner upon receiving a complaint, provided the complaint is serious enough to prevent the commissioner from performing their duties.

Subclause (11) clarifies the President’s obligation to act upon receiving notice from the Speaker about the removal of a commissioner and appoint a replacement within the specified 45-day period.

Minor word changes were made throughout to enhance clarity without altering the content.

This approach ensures alignment with constitutional requirements, practical clarity for implementation, and safeguards against misuse of the complaint process.

Clause 7: Chairperson, Deputy Chairperson of Commission
No amendments were made.

Clause 8: Remuneration and other conditions of appointment of commissioners
Subclause 5 has minor word adjustments to clarify who determines specific processes.

Ms Potgieter questioned the use of the term "indication" in Clause 6(3) suggesting that "request" might be more appropriate. She reasoned that "indication" and a "prescribed manner" are distinct, with the latter implying a more formal process. She also raised concern about the change of the term "investigated" to "considered" in Clause 6(9), arguing that "investigated" better reflects the seriousness of allegations. She noted that removing the word "off" in Clause 6(11) when referring to the National Assembly affects readability.

Ms Ebrahim explained that the term "indication" was retained due to the Commission’s strong preference, although she initially agreed with Ms Potgieter. The term "considered" was introduced in Clause 6(9) to avoid issues like those experienced in the Public Protector matter, where the term "investigated" caused delays in suspension due to rigid interpretations. She acknowledged the need to address the wording in Clause 6(11).

Adv Makinde clarified that the use of "indication" was intentional, reflecting a process where the PSC submits a report to the President, notifying them of a vacancy and the commissioner’s willingness to renew their term. The intention is to avoid framing the renewal as a reapplication process, instead positioning it as a legislative entitlement. Commissioners notify the PSC Chairperson of their willingness to renew and the procedural aspects are handled thereafter.

Ms Potgieter reiterated her preference for "request" to ensure the formal nature of the communication, regardless of whether it is routed through the PSC.

Adv Makinde emphasised that "indication" simplifies the process and aligns with the legislative framework to distinguish renewal from a new application.

Ms Ebrahim proposed a wording adjustment to address the concern about "request," suggesting: "The President may, upon receipt of the reports by the Commission recommending the renewal of a commissioner’s term of office and supported by that commissioner..." This would allow the PSC to determine how the commissioner’s support is indicated, such as through the chairperson noting in the report that the commissioner desires renewal.

The Chairperson agreed that this suggestion resolves the issue.

Ms Tikana-Gxatiwe sought clarity on the process, noting that renewal submissions for commissioners are done through the Commission chairperson but who would handle the recommendation for the chairperson’s renewal.

Ms Ebrahim clarified that the PSC requires commissioners to indicate their desire for renewal, which forms the basis of the Commission’s recommendation to the President.

Ms Tikana-Gxatiwe repeated her question on the renewal process for the chairperson or would the chairperson directly declare their intent to renew.

Dr Letlape suggested that the responsibility should rest with the Commission rather than any specific designation, ensuring that reports come from the Commission as a whole.

Dr Letlape and Adv Makinde agreed that the chairperson would sign reports for other commissioners, while the deputy chair would sign in cases where the chairperson’s renewal is involved.

Mr Sithole inquired about the removal of commissioners, asking if the required majority was two-thirds or a simple majority.

Ms Ebrahim clarified that only a simple majority is required, as stipulated by the Constitution.

Mr Sithole noting the absence of specific provisions addressing the role of municipalities.

Dr Letlape referred him to Clause 5(f) noting that it addresses this concern.

Ms Ebrahim explained that the removal provisions are derived directly from the Constitution, which assigns the role to the provincial legislature for provincial-based commissioners and the National Assembly for national commissioners. Consequently, municipal governments have no role in the removal process.

Clause 8: Remuneration and other conditions of appointment of commissioners.
Minor wording changes were made that did not alter the substantive content of the clause.

Clause 9: Inspections and inquiries by Commission
Initially, inspections and inquiries were dealt with in separate clauses. The clause on inquiries granted the Commission the power to summon a witness. The question was raised if this distinction was made inadvertently, as it would be more logical for the Commission to summon a witness regardless of the nature of the function it is performing. Summoning witnesses is considered a last-resort power and it should not be limited to inquiries alone.

To resolve this, inspections and inquiries were combined, and no wording changes were made that altered the substance. In subclause (2), there is a direct copy of the original text. In terms of terminology, "documents" was replaced with "records" to account for digital information, aligning with the definition used in the Promotion of Access to Information Act. The change was made to avoid disputes over what constitutes "official" documents. Instead, the focus is on whether the record is necessary for the Commission's functions. If someone refuses to provide their records, they must justify why it is unnecessary.

For investigations, the same approach was applied, with "documents" replaced by "records." Additionally, in subclause (3) a 60-day time frame was introduced as a default for compliance with directions, allowing flexibility in specific cases for longer or shorter periods. In subclause (5) a correction was made from "and" to "or."

Clause 11: Summonsing of witnesses
This is now a standalone clause with the same content, but it is slightly shorter due to stylistic wording changes.

Clause 12: Access to reports of Commission
In last week’s deliberations, it was noted that the clause was a bit confusing. To address this, the wording was clarified and referred to the Promotion of Access to Information Act, providing a clear basis for refusing access.

Clause 13: Implementation of decisions
In 13(1) there was a long list taken from the Constitution. However, to ensure that all powers and functions are covered, it was revised to state that if the Commission has made a decision “based on any of its powers and functions”. There is no need to list them all. This approach avoids the omission of certain powers. The reference to section 196(3) has been removed as the Committee had agreed that is understood. There is a wording change but no changes to the content.

Ms Potgieter asked for clarity on the 60-day period and the ability to determine a different period. She wanted to understand the practical implications of extensions and the reasons for them.

Adv Makinde explained that when a recommendation is made, the expectation is that the recipient will either act on it by providing a plan of action or respond by agreeing or disagreeing. If there are delays, such as requiring certain information or waiting for the return of a minister, an extension may be requested. This extension would be reasonable, not excessive, likely lasting a month or two weeks.

Mr Searle provided a practical example: if a grievance report recommends that an individual's appointment process be set aside due to irregularities, and the department needs time to consider the facts and obtain legal advice, an extension might be necessary. The key is assessing each case on its merits. If the request for an extension is reasonable and there is a valid reason for it, the extension would be granted, but intentional delays would be addressed differently.

Clause 14: Independence and impartiality
The gender has been corrected in this clause. The only substantive change is in 14(2) where it originally stated that a person must recuse themselves if they are unable to perform their functions in a fair, unbiased, and proper manner. This has been revised to "and/or," as any one of these reasons—fairness, impartiality, or propriety—are sufficient grounds for recusal.

Clause 15: Obstruction of Commission
The R50 000 fine was reviewed. There has been an adjustment, as mentioned last week, which involves a formula for adjusting the amount to keep pace with changing circumstances. No further changes have been made.

Clause 16: Secretariat of Commission
In Clause 16(2), the phrase "provision for the employment" has been amended to delete "provision for" as it is superfluous, although this does not affect the meaning.

It has been clarified that the CEO is appointed by the Commission, not by the Chairperson, after the Committee had a robust discussion last week on the concentration of power in the hands of the Chairperson of the Commission.

Concerns were raised about the CEO term of office so it has been stipulated that the CEO will serve a five-year renewable term, which can be renewed for an additional five years, allowing the person to serve for a maximum of 10 years. It has also been specified that there is nothing preventing the individual from reapplying for the position after the 10-year term, addressing concerns about attracting candidates with the right calibre and institutional knowledge.

On clause 16(6)(iii) Ms Tikana-Gxatiwe asked about political affiliation in the appointment of the secretariat. Does this apply to individuals in lower positions than the CEO, given that heads of departments are prohibited from political affiliation?

Ms Ebrahim confirmed that there is nothing in the Bill to prevent political affiliation for those in the secretariat.

Ms Tikana-Gxatiwe suggested that the CEO should be aligned with heads of departments who are prohibited from political affiliation.

Ms Potgieter acknowledged that while the Bill already prohibits political affiliation for the Commission, it could be useful to extend this prohibition to the CEO and others in the Commission.

Ms Ebrahim agreed to insert a prohibition on political affiliation for the CEO and deputy CEO. Additionally, it was also clarified that the Commissioners would be responsible for the appointment of the CEO, Deputy CEO and CFO.

Clause 16(4) confirmed that the CEO can reapply for the post after the 10-year period, but this would require a fresh application.

Other amendments were made for clarity, including gender changes and the correction of numbering.

Clause 16(9) clarifies the Commission's power to source individuals with technical skills and specialised knowledge. These individuals will be sourced through procurement and will not be considered employees of the secretariat.

Clause 17: Delegation of Commission’s powers or functions
It has been added that the Chairperson may delegate to the CEO any powers necessary to establish and run the secretariat, under such conditions as may be determined. Additionally, it has been stipulated that these delegated powers can be revoked.

Clause 18: Finances and accountability
The only amendment was to 18(1)(c) where "independence" was added and "public service" was removed. The rest of the changes were explained last week.

Clause 19: Legal proceedings by or against Commission
An amendment was made to 19(3) to replace "Commission" with "employee."

Clause 20: Rules
The clause has been amended following last week's discussion on "must" or "may." Additional items have been included and it has been specified that the Commission must ensure these rules are prescribed within 12 months. This change makes the requirement mandatory for the agreed-upon categories.

Clause 21: Repeal and amendment of laws.
No amendments were made.

Clause 21: Transitional provisions
The Commissioner will address if municipalities should be included and if it should be implemented within three years. The Commission will consider this matter further.

Adv Makabeni mentioned that the Commission has a code of conduct under the existing rules and suggested reviewing if it is covered by the general provisions or if a specific provision is needed.

Mr Searle raised concerns about the proposed "within three years from the date of coming into effect of this Act." The concern is that the Commission relies on parliamentary funding, and if the necessary funds are not allocated after three years, the Commission would be unable to fulfill its mandate. The lack of resources could place the Commission in a difficult position. While a three-year period might provide an opportunity for funding, the risk remains that without sufficient funding, the Commission would struggle to perform its duties.

Ms Potgieter referred to the previous discussion about the PSC creating an implementation plan. Without the mention of the creation of an implementation plan, this could lead to confusion. She suggested that the three-year period might work better if tied to funding allocated in line with the implementation plan, which would detail the required budget. This would ensure that resources are provided in a structured way.

The Chairperson suggested that if the implementation plan could mandate Treasury to provide the necessary funding, this could be a solution.

Dr Letlape agreed that the PSC should create an implementation plan outlining the resources needed over the next three years. This would hold the Committee responsible for ensuring that the National Assembly provides the necessary funds. The key is setting clear targets and timelines to ensure the plan’s success.

Ms Potgieter suggested including a proviso in legal language that National Treasury must allocate funds according to the implementation plan. She agreed with Dr Letlape and proposed that the motivation for this funding should be made to Treasury. The budget for the initiative is a relatively small portion of the national budget, but the potential savings for the country would justify the allocation. Therefore, she believes that the drafting should make the funding contingent on Treasury’s provision.

Mr Searle agreed to collaborate with the State Law Advisor and Parliamentary Legal Services to ensure the correct terminology is used, balancing the Members' inputs with the Commission’s interests.

The Chairperson agreed that it had never been the Committee’s intention to set deadlines without the necessary resources, and they look forward to the suggested revisions.

Ms Ebrahim explained that, due to legislative constraints, the Bill cannot directly mandate finance, as money bills are handled separately. However, with input from the State Law Advisor, the Bill has been revised to state that the implementation of the Commission’s mandate concerning municipalities and public entities must progress within a three-year period, contingent on the availability of resources. This allows the Committee to hold the Commission accountable if the resources were made available but not utilised appropriately.

The Committee agreed to this revision. The legal practitioners will meet separately to discuss the remaining issues and communicate their conclusions with the Chairperson.

The Chairperson thanked everyone for their robust engagement and expressed anticipation for the Bill’s implementation, noting that it could serve as an example for other committees striving for nonpartisan and neutral goals to improve the country.

The meeting was adjourned.