Public Service Laws Amendment Bill: discussion

Amendment; Legal Representation

Memo; Department of Finance Budget Office

SUMMARY

Consultation was made with the Provinces, Department and Trade Unions on the Public Service Laws Amendment Bill (B62-98)

EMPHASIS WAS PLACED ON SECTIONS 3 AND 7

Provincial Administrations were refered to as being in the same light as National departments and ignored the executive authority vested in provinces by the Constitution. In the past this concept created serious problems as it failed to reflect the executive decision making powers of MECs in the Province and the relationship between the MEC and Head of Department or Director General. It also created tensions between the role of the provincial Director General and the provincial Heads of Departments.

Please see Section 1 of the Bill.

According to the Auditor General, the concept of accoutability in (Act 66 of 1975) of the Exchequer Act, a need arises where Parliament or the legislative hold someone specifically accountable for an act of unstatutory utilisation of monies. This arises where monies voted for specific purposes are instead used for his own personal interest. It is therefor vital that accountability is vested at the appropriate level and State Expenditure recommends that the head of departments should act as accounting officers. It is only logical therefore that if th Heads of Provincial Departments are the persons with the necessary decision-making powers and receiving the funding on their respective votes from their legislature to administer and disburse, they should beclearly designated by the bill as the accounting officers and to be held accountable in terms of the Exchequer Act.

It was thus suggested that clause 3(b) of the Bill clearly designate the Head of Department as the "accounting officer" and further define his or her responsibilities as defined in Section 15 of the Exchequer Act.

"(1) There shall be an accounting officer for each vote who shall be charged with the responsibility of accounting for all State monies received, all payments made by him and the acquisition , receipt, custody and disposal of all state property.

REFERENCE WAS MADE TO Sub s (1) substituted by s 9 (a) of the Act 69 of 1993 This in essence states that an accounting officer shall exercise the powers confered upon him and perform the duties assigned to him by law, by regulation, by treasury instructions or by the Treasury. Sub s (2) and (3) make it very clear that unless otherwise directed by the Treasury, the accounting officer for (a) the vote or votes of a department shall be the head of the department appointed for that department.

It was decided the Bill should avoid creating dual accountability. Therefore in conclusion on the issue of accoountability , it was decided that there be included a clause which states very clearly that all heads of department must immediately act upon any complaint relating to an irregularity or misconduct referred to him or her by a member of his or her staff, the Auditor General or any other institution or person. It is necessary to appoint a Deputy Director General as accounting officer so that the Director General can also exercise his her treasury responsibilities in the case of his own department. It was the general concensus that the accounting officer should be the head of the department. In the case of extraordinary circumstances arising however, the head of department would not act as an accounting officer.

To summarise therefore it can be said that the proposed new role of a provincial DG(Director General) provides that he or she be the head of the Premiers Office and the provincial heads of department (PHOD) be accounting officers for their respective departments. This would free the DG of accountability and responsibility for the day to day adminisration of the departments. The DG would then be able to focus on the assisting of the Premier in various ways. In Policy coordination and management and EXCO and Strategic coordination management and leadership and in the coordination of transformation. Dangers arising if the DG were accounting officer in the Office Department of the Premier are he would be so engrossed in the daily running of the administration that there would be little time to focus on policy and strategic issues. This can be resolved by the DG being the accounting officer in the Office of the Premier and then delegate the responsibility for the day to day management to a Senior Official. Alternatively, the DG would concentrate wholly on the policy and strategic functions outlined . This would mean that the PHOD would have to be appointed as accounting officer in the Office of the Premier. The later option seems more feasible as it would ensure effective policy management and strategic leadership a function hitherto not adequately performed. Please see Schedule one of the bill. Provision is made here that the DG is head of the Office of the Premier with the understanding that there exist a corporate service department under the control of an existing authority, other than the Premier. The NW Province advised that the ex offices of the Premier and the DG have been merged into one fully fledged department which renders coordination advice and leadership functions. This department is headed by a DDG who is accountable to the Premier and the DG.

It is noted that the bill lists DG as an accounting officer for this department and places an onerous task on the DG would defeat the very purpose of improving the policy and strategic support for the Premier.It was noted that the Premier has the perogative to decide on executive portfolios. This is no doubt a dynamic process and there are no doubt continuous changes to portfolios in order to ensure optimal governance. Such changes have necessitated amendments to schedules 2 of the Act and this will no doubt result in bureaucratic delays. Its therefore proposed that Schedule 2 of the act be altered. "Portfolios as determined by the Premier", and column 2: "Head of the Portfolios as determined by the Premier."

The Eastern Cape commented on the role of the DG as contemplated in the Public Service Amendment Bill, 1998 and the New Public Service Regulations. They feel that the DG in Provinces should not be seen as having similar responsibilities as the DG in National departments. The variety of activities and the coordination required a Provincial level is far different from that of a unique department. The Head of a provincial department like Education or Welfare to possibly function in isolation from the other provincial departments. They feel this will lead to lack of coordination of projects and programmes in departments.

The DG is a Secretary to the Cabinet and is therefore acceptable and does give rise in a way to the coordination of policy issues. The Cabinet Secretary in the office of the Premier is supposed to also have no vested interest in the distribution of funds to the various departments as will be the case if he or she is also the accounting officer for a particular vote. The accounting responsibilities would also occupy her or him to the extent of compromising the coordinating function. It was further presented by this province that there is no problem in having heads of provincial departments delegated by MECs to perform duties related to the human recource management and also having them as accounting officers for their votes. This is already provided for in the Provincial Exchequer Act of the Eastern Cape. However it was noted that there should be no disjointed approach t the provincial human recource management, information technology and inter governmental relations. Nerve centres to coordinate these should be through the DG. They concluded that the Act should ensure that the coordinating role of the DG is built in but that it should be such that the heads of provincial departments are also freed to manage their departments.

There was input from the SAPSA. They agreed that The regulations were too narrow and leave everything to be negotiated.

The South African Public Servants Association further said that the New Public Service Law Amendment Act 1997 has given more administrative powers to ministers and MECs (Executing Authority). The result of this would be politicising the public service and the misuse of power facilitate or nepotism especially in appointments of personnel. There is no clear provision for the role of the DG in provinces and it could be better if the DG in provinces would assume the powers which were formally exercised by the commissions (recommending powers). Further, since the excessive use of intoxicants r stupefying drugs is a misconduct in the terms laid down by the Public Service Act of 1994 Section 20(j) the code and regulations do not create mechanisms to implement this provision, such as breathing test or testing of blood. The result of this failure to create such a mechanism to implement the Legislation , drunkeness in the Public Service has become a fashion. Long suspensions whether with or without pay for long periods of time was addressed. Each department or provincial administration should have a unit which will be responsible for misconduct cases to ensure that they are done within reasonable time.

MINUTES

The NP was obviously not satisfied with the Public Service Laws Amendment Bill. They argued that the Amendment Act No 47 of 1997 ("the first Amendment Act’) which contains far reaching amendments of the PS Act 1994 ("the principal Act") has not yet commenced. Section 36 of the first Amendment Act had provided for its coming into operation on the date on which the laws referred to in section 15(1) of the PSC Act no. 46 of 1997 are repealed by that section. They feel; there has been uneven progress in the process towards the recommendation of commissioners in the provincial legislatures and in the National Assembly. It now seems that recommendations for the national candidates will only be concluded in 1998.

Hands on control of the Public Service has been removed from the Public Service Commisssion and given effectively to the national and provincial executives. The NP placed a lot of emphasis on this point. They further indicated that under the IC provincial Governments are entitled to appoint their own employees but their powers are constrained in two respects. The provincial service commissions can issue mandatory directives in regard to the establishment and organisation of departments appointments transfers promotions discharge and other career incidents of provincial employees, and the directions of the provincial service commissions have to conform with the national norms and standards. Here IC refers to Interim Constitution .Provincial governments will be able to deal with the matters referred to without reference to the PSC but will have to do so in accordance with norms and standards as required by AT 197(4). There is a dimuintion in the powers of provincial governments the powers of the provincial governments are subject to frameworks determined by national legislation. In their view, this requirement does not introduce any diminution in the powers of provinces. Under the IC these powers are exercised by the provincial service commissions subject to norms and standards applying nationally.

The main issue raised was that of Accountability as already discussed in the Summary. It was agreed that the runaway expenditure of government can no longer be accommodated.

The ANC made it very clear that they had inherited a highly fragmented and demoted Public Service. The focus on the white paper therefore is to put our people first. If we were to maintain the model inherited in 1994, there will be a lot of confusion. We need good government and common sense to take precedence. The 1994 model inherited is undebateable and non viable.

The Treasury Control Bill was referred to. Introduction of measures to address mismanagement.