Question NW4184 to the Minister of Public Service and Administration
29 December 2023 - NW4184
Gondwe, Dr M to ask the Minister of Public Service and Administration
(1)What (a) are the triggers and processes to periodically amend Public Service Regulations and (b) is the reason that Public Service Regulations 62 was amended to include operational reasons determined by her when she does not know the operational requirements for other executive authorities; (2) what (a) are the reasons that transfers were never prescribed in terms of section 14 of the Public Service Act, Act 103 of 1994, and only regulated now by the insertion of Public Service Regulations 62A and (b) are the reasons that this was not previously challenged when unilateral transfers were done in her department without regulations; (3) what has she found is the import that the definition of the public interest clause with regard to the Saloojee vs Minister of Police 2004 matter have on transfers when abused as punitive weaponised instruments against targeted Senior Management Service employees; (4) what are the reasons that (a) the proposed amendment to the transfer provision is overlapping with operational requirements reasons as such overlap allows for arbitrariness in decision making and (b) a conflict in decision making clause by a complicit functionary not included in the Public Service Act, Act 103 of 1994, as a necessary amendment to protect whistleblowers?
Reply:
1. (a) The authority for the Public Service Regulations is contained in section 41 of the Public Service Act. The review of regulations is usually triggered by gaps or challenges identified, policy changes, strengthening processes or managing interpretational challenges, amongst others.
(b) The requirement to seek the Minister’s determination on secondments that exceed 12 months is to ensure that secondments do not affect service delivery and do not become a mechanism to create long term employment which places undue burden on the seconding department and its employees to carry the tasks of the seconded employee over a protracted period. The Minister therefore assesses the operational requirements taking into account the circumstances and the impact of the secondment in excess of 12 months as motivated by relevant departments. It must be noted that this requirement was not introduced in the recent Public Service Amendment Regulations, 2023.
2. (a) Prior to the Public Service Amendment Regulations, 2023, transfers were regulated by section 14 of the Public Service Act. It became necessary to provide further clarity to ensure proper implementation of transfers by requiring-
- in respect of a transfer to another department, the executive authorities of the two relevant departments must agree in writing to such a transfer;
- due regard be had to the inherent requirements of the job and the employee’s competencies to perform the functions of the post to which he or she is being transferred; and
- that an employee is not transferred into a post in the Office of an executive authority, Deputy President or Deputy Minister.
(b) A challenge on transfers of employees without their consent cannot be sustained as it is authorised by section 14 of the Public Service Act and is not dependent on regulations.
3. We are not aware of a case of Saloojee v Minister of Police 2004 and therefore we are unable to respond on the import thereof in relation to transfers.
4. (a) The Public Service Amendment Regulations, 2023 does not make reference to operation requirements in respect of transfers.
(b) Regulation 7 of the Public Service Regulations, 2016 provides for decision-making in cases of conflict of interest.
End