HIV/AIDS in Public Service; Promotion of Administrative Justice Act: implementation

PUBLIC SERVICE AND ADMINISTRATION PORTFOLIO COMMITTEE
13 September 2006
HIV/AIDS IN PUBLIC SERVICE; PROMOTION OF ADMINISTRATIVE JUSTICE ACT: IMPLEMENTATION

Acting Chairperson: Mr M Baloyi (ANC)
 
Relevant Documents:
Implementation of the Public Service Workplace HIV and AIDS policy, Department of Public Service and Administration Powerpoint Presentation
HIV and AIDS Strategic Plan and Resolution of 2001
Public Service Commission Report 2006: Assessing the Capacity of the State to Deliver [available at www.psc.gov.za]
Implementation of the Promotion of Administrative Justice Act (PAJA), Department of Justice and Constitutional Affairs
Rapid Assessment Report on progress of implementation of PAJA, Department of Justice and Constitutional Affairs  
The Promotion of Administrative Justice Act (PAJA)
Narrative on the implementation of Public Service Workplace HIV and AIDS Policy
The Promotion of Administrative Justice Act: Administrators' Guide
Promotion of Administration Justice Act
User Manual For PAJA Desk Audit

SUMMARY
The Department of Public Service and Administration briefed the Committee on implementation of the Public Service Workplace HIV and AIDS policy. The HIV and AIDS epidemic would be tackled within an integrated framework of the Employee Health and Wellness policies and all sectors must participate. An impact and action project was launched in January 2000, based on the HIV and AIDS Strategic Plan, the International Labour Organisation and SADC Codes, and supported by the Public Service Co-ordinating Bargaining Council. This had been recognised by the International Labour Organisation as an international model of good practice and best practice case studies were being done. The policy incorporated confidentiality and non-discrimination, information, education and awareness, occupational exposure and safety kits where necessary, monitoring and evaluation, care and support. There was no requirement of pre-testing, except for military personnel. Dedicated budgets remained a challenge but it was hoped that incorporating these policies would enhance management of HIV and AIDS, and improve monitoring. Senior Managers would be held accountable for performance on the programmes. The Public Services Commission and Parliament would also be called upon to support these strategies.  The Hon. Minister of Public Service and Administration expanded upon the policy of testing, comprehensive intervention programmes, the need for greater collaboration with NGOs and the public sector, and compliance.

Questions raised by members on the HIV and Aids Policy included the reasons for public dissatisfaction with the response to the policy, the apparently high attrition rate amongst school teachers, dedicated budgets and management of programmes, the question of pre-testing, involvement of traditional healers, and the role of Trade Unions. The Committee commended the Departments’ reports and endorsed the need for Government to communicate better on its successes and achievements.

The Department of Justice and Constitutional Affairs reported on the implementation of the Promotion of Administrative Justice Act, which had commenced in 2000, using an integrated approach. Initiatives included the writing of manuals, training for legal advisors, and development of sector specific awareness materials. A joint task team had found that compliance was low, because there was no enforcement provision within the legislation. The Office of the Public Service Commission had now agreed that departments should report on implementation of PAJA as part of their evaluations. The Department of Justice had increasing capacity in its implementing department, provided training to the project steering committee and departments, had held workshops, and developed a uniform evaluation tool. Collaboration had been established with five provinces. Pilot projects were planned and rollout should take place in at least one local government office per province. The Department would offer evaluation tools, courses and workshops, audits of legislation, communication of court decisions and information for the public. Challenges included motivation of senior management, allocation of dedicated personnel, the need to include PAJA implementation in performance agreements, promoting a fair organisational culture, finalising the jurisdiction issues around PAJA and finalising the Code of Good Administrative Conduct.

Questions raised by members addressed the role of parliament, citizens’ awareness programmes, the effects of non-compliance on costs and on service delivery, and cooperation between departments.

MINUTES
Implementation of the Public Service Workplace HIV and AIDS Policy
The Hon Ms Geraldine Fraser-Moleketi (Minister of Public Service) stated that the presentation would outline the extent to which the HIV / AIDS Policy had been implemented, as well as highlight levels of compliance and challenges faced. The Department of Public Services and Administration (DPSA) had been tasked with implementing this Policy in a sustainable manner within a challenging environment. The public sector, being one of the largest employers in South Africa, should be held accountable for its actions, but it should also acknowledge its achievements. The International Labour Organization (ILO) had hailed South Africa’s HIV and AIDS Workplace Policy as one of the best.

Ms Dilekedi Tsukudu (Chief Director, Employee Health, DPSA) gave a background on the evolution of the HIV and AIDS epidemic, and its implications for the public service. She reported that the HIV and AIDS epidemic had grown from below 1% in 1990 to about 30% in 2005. The Department of Health (DOH) was leading the response and all sectors must participate. Government spending on this epidemic increased from R30 million in 1994 to R3 billion in 2005-6. HIV and AIDS affected every sector of society. Workplaces were important partners from a moral, business and legal standpoint. The public service stood to suffer because it was one of the largest employers, was labour intensive and required a strong workforce, and therefore it had to address all potential challenges, including HIV and AIDS.

An impact and action project was launched in January 2000, based on the HIV and AIDS Strategic Plan, the International Labour Organisation and SADC Codes. A resolution from the Public Service Co-ordinating Bargaining Council (PSCBC) had expressed support for workplace programmes. The Public Service Regulations had been amended by improved employee benefits.

This model had been recognised by the International Labour Organisation as an international model of good practice, had been set as the benchmark for South Africa, and best practice case studies were being done. An annual conference would be held. A large communication campaign had been started, including Braille information, and the policy formed part of the comprehensive Employee Health and Wellness approach. Reports on implementation were requested from 130 departments and 91 had already submitted reports. There was a low response from Mpumulanga, Northern Cape and Free State. Support was planned for these three provinces. In the workplace 78% had signed off policies and 14% had created drafts. National departments had performed better than provincial offices.

The policy incorporated confidentiality and non-discrimination, information, education and awareness, occupational exposure and safety kits where necessary, and monitoring and evaluation – which was so far the weakest area. Care and support required in house and outsourced models. There was no requirement of pre-testing, except for military personnel, to satisfy medical and United Nations requirement. All contextual factors and local conditions were now used for human resource planning forecasts. Implementation of the policy required a person to be designated as “champion”, but performance management remained a challenge, as some departments did not have dedicated budgets. It was anticipated that the institutionalisation of the broader Employee Health and Wellness incorporating these policies would enhance management of HIV and AIDS, and monitoring would be improved through implementation of the evolving frameworks. Performance Management processes must be used to hold senior managers accountable for implementing the policies. The report had already been considered and discussed in July 2006 and a plan to respond to issues raised was adopted.- The Public Services Commission report and Parliament will also be called upon to support these strategies.

Discussion
Mr M Sikakane (ANC) asked the Department to explain why, despite the reported positive progress, there was an outcry against South Africa’s response to the epidemic.

Ms Tsukudu replied that South Africa was an open society and therefore its citizens were entitled to express their views. However, she stated that the government had often been weak at publicising its achievements.

Mr B Mthembu (ANC) commended the Department for developing such a comprehensive framework, as this was crucial for monitoring. He wished to know the impact of HIV and AIDS on education. He cited a recent report that attributed high teacher attrition rates to HIV and AIDS. He recommended that dedicating budgets to HIV and AIDS should become a minimum standard norm for departments; and management of HIV and AIDS programmes should be included in performance contracts for senior managers.

Ms Tsukudu responded that a range of factors influenced teacher attrition rates, and projections were based on the level of demand. There were plans to make dedicated budgets a standard norm and policy, but there were still debates as to whether they should be ring fenced or earmarked. Senior Managers already had a provision in their contracts relating to management of HIV and AIDS in their contract, but more focus would be placed on enforcing these contract terms and ensuring that they carried some performance focus.

Mr K Khumalo (ANC) enquired why the Department was not considering pre-testing as a standard policy, and why it was not being reinforced. Without pre-testing, human resources planning in the public sector’s was seriously affected. He argued that public servants’ rights had a corresponding obligation and that disclosure of such issues would assist their employers.

Ms Tsukudu responded that firstly, the legal framework did not provide for pre-testing. Secondly, pre-testing could not determine the extent of productivity and therefore had minimal influence on planning. She stated that there were no intentions of advancing such a policy in the public service.

Ms P Mashangoane (ANC) recommended that the DPSA and the Department of Health should investigate age and gender relationships between councillors and citizens, especially in rural areas. She also asked DPSA to elaborate how traditional healers were involved in HIV and AIDS programmes, and if first aid kits were mandatory at local level.

Ms Tsukudu agreed that these relationships were an issue and the Department of Health was tackling this issue. Traditional healers and NGOs were collaborating in many areas, but the nature of partnerships was defined locally. First aid kits were mandatory, and this has been stipulated in a recent set of guidelines available at Municipal level.

Dr Norman Maharaj (Commissioner: Public Service Commission) stated that the HIV and AIDS Policy was an excellent one and needed 100% compliance for positive results. This called for a joint responsibility between employer and employee.  He said that 23% of non-compliance by the departments was a high figure, showing that more needed to be done. There had been much focus on the employer to date, but Trade Unions also had a role to play, especially around voluntary Counselling and Testing (VCT). The pre-testing aspects were crucial. He also argued for a close review of the pre-testing policy, and urged that this should be done on a non-discriminatory basis.

The Hon Fraser Moleketi concluded the discussion by raising certain broad issues. In regard to Government response to the epidemic, she confirmed that Government recognised its responsibility for implementing a comprehensive intervention.  The maxim “ABC” (Abstinence, Being faithful and Correct and consistent condom use) was an integral part. Prevention, treatment and support would be central to this programme. In the same vein, citizens had the right to articulate their views. It was important to recognise that the context within which statistics for HIV and AIDS were analysed had changed. There were many players, and the stakes were high.

In regard to policy issues, Hon. Fraser Moleketi noted that one of the strong policy debates was around across-the-board testing. South Africa was currently managing issues of discrimination, and questions should be asked if it was ready to deal with HIV and AIDS in such a non-discriminatory manner. This also had serious implications on the insurance industry. The debate would be followed through, and political parties should begin to take a stance. The public sector would also do its part.

Partnerships and closer collaboration between the public sector and NGOs would be crucial. It was also important to make sure good news was shared and well reported. Compliance was another important issue, and DPSA would work closely with the Public Service Commission in moving towards compliance goals. She stressed that it was important to note that the period under scrutiny showed dramatic improvements, but that at the same time issues such as attrition must also be addressed in a comprehensive manner..

Promotion of Administrative Justice Act (PAJA): Briefing on implementation by Department of Justice.
Mr Deon Rudman (Deputy Director General, Legislation, Department of Justice and Constitutional Affairs (DoJ)) reported on the progress in the implementation of the Promotion of Administrative Justice Act (PAJA). Implementation had commenced in 2000, using an integrated approach, with technical support from the German Technical Cooperation (GTZ) and partnerships to assist in trainer capacity with the DPSA and South African Management Development Institute (SAMDI). Initiatives to try to ensure compliance included the writing of a Benchbook and Administrator’s Guide, training for legal advisors, training trainers at national and provincial level, and development of sector specific awareness materials.

A joint task team had undertaken an audit to assess the extent to which procedural fairness was being met. Because there was no enforcement provision within the legislation, compliance was low. Discussions had been held with DPSA and with the Public Service Commission and Office of the Auditor General. The Office of the Public Service Commission (OPSC) had now agreed to include PAJA as a standing item, so that departments being evaluated must report upon it. PAJA was now been included in the State of the Public Service Report 2006.

The Department of Justice had adjusted its own strategy by increasing the capacity of the Chief Directorate of Constitutional Development, which was responsible for implementation of PAJA, providing training to the project steering committee and departments, holding workshops, and developing a uniform evaluation tool. Efforts were coordinated through the Premier’s offices in the provinces. Collaboration had been established with five provinces already. Experts from local government were included in a workshop to address the approach to be used to ensure the successful implementation of PAJA, and this should result in planned pilot projects in North West, and rollout of the sub-projects in at least one district municipality in each province. DOJ would offer evaluation tools, courses and workshops, audits of legislation, communication of court decisions and information for the public.

Challenges included motivation of senior management level in all spheres, allocation of dedicated personnel, the need to include PAJA implementation in performance agreements for public service personnel, ensuring an organisational culture that was fair and just, finalisation of the court rules to move jurisdiction of PAJA disputes to the Magistrate’s Courts and finalisation of the Code of Good Administrative Conduct.

Discussion
Mr K Khumalo (ANC) asked about the role of Parliament, especially Chairpersons of Portfolio Committees, in PAJA.

Mr Rudman responded that this was an important issue, but should have also been discussed when the Act was approved by Parliament. Parliamentary Officials had been involved, and had recommended that a workshop could be convened to disseminate information on PAJA and its provisions to parliamentarians.

Mr B Mthembu (ANC) enquired why PAJA awareness campaigns had been limited to Departments. He asked if similar campaigns could be targeted to citizens. He recommended that PAJA campaigns should build on the Batho Pele awareness strategies.

Mr Rudman agreed with these suggestions, and stated that even the Minister had highlighted the importance of raising civic awareness for PAJA. The Department had set out to develop a Constitutional Education Program, in response to the President’s speech of 8 May which emphasised the need to engage citizens on the Bill of Rights. In addition, the Department was also producing sector specific awareness materials on PAJA, to be finalised with Departments and NGOs. There were plans to have one pilot project in all nine provinces. DoJ would work closely with the Municipalities to ensure better citizen awareness. The Department was also working with the University of Pretoria. The Department would roll out to all nine provinces, as mentioned, but would need to increase its capacity to meet these needs, especially at local government level. DoJ was currently liaising with the South Africa Management Development Institute (SAMDI) on this issue.

Dr Norman Maharaj commented that implementation of PAJA was crucial. The State of Public Service Report had highlighted some specific areas, and the Public Service Commission was working closely with departments to ensure implementation of recommendations, despite the capacity problems. He observed that non-compliance would result into departments being sued in court and this had huge implications on cost and delays in service delivery. He suggested that the implementation should be reviewed from a service delivery perspective. 

Mr Rudman responded that departments were encouraged to report instances of maladministration, with a view to ensuring that they were dealt with speedily and did not recur, particularly for social grants. The Department of Justice would be reviewing the State Liability Act; engaging with the Department of Finance, and strengthening its own capacity, developing warning systems and preventative mechanisms.

Mr I Naidoo (Chief Director, Public Service Commission) endorsed the importance of PAJA and the Public Service Commission’s support for it. He also stressed the need to monitor its progress, echoing that “what gets measured gets done”. DPSA was compiling statistics and scorings of State Departments’ adherence to PAJA. This information would be placed in the public domain. He stressed that this was a strong area of accountability in the public service.

The Acting Chairperson thanked the Departments for their informative presentations.

The meeting was adjourned.