PSC Bill: PSC briefing; PAM A/B Bill & Public Service A/B: finalisation; Committee Annual & Legacy Report; with Deputy Minister

Meeting report

The Chairperson said she hoped that the meeting would end a bit earlier so that Members could attend the debate on the State of Nation Address (SONA). The Minister of Public Service and Administration, on behalf of the Public Service Commission (PSC), had tabled the Public Service Commission Bill [B30-2023] to Parliament through the announcements, tablings and committee (ATC) reports, in 2023. The PSC Bill has been referred to this Committee. The first stage, which was the advertisement, had been completed. The PSC would now brief the Committee on what the PSC Bill was about. Members would have an opportunity to ask clarity-seeking questions. Since the advertisement had been published, inputs from the public regarding the PSC Bill would be received.

The Committee would be adopting reports on the Public Administration Management Amendment (PAMA) Bill and the Public Service Amendment (PSA) Bill.

Deputy Minister's opening remarks

Dr Chana Pilane-Majake, Deputy Minister of Public Service and Administration (DPSA), said that the Chairperson had already introduced the PSC Bill before Parliament. The PSC Bill was in the ATC after it was adopted by Cabinet. The PSC would be presenting the PSC Bill before Parliament for deliberations. She asked whether the DPSA would be presenting its performance achievements for 2023/24.

The Chairperson responded by going over the agenda for the meeting, and said the performance and non-performance information would be dealt with next week.

PSC briefing on the Public Service Commission Bill [B30-2023]

Prof Somadoda Fikeni, Commissioner, PSC, thanked the Committee for going so far with the PSC Bill -- previous committees had never gone this far. The PSC Bill had been in the making for a decade in different forms. It had been adopted by Cabinet and was now before Parliament. The end of this administration and marking 30 years of democracy was only a few months away. There was a reminder that the PSC ought to have its autonomy as designed by the Constitution. The PSC Bill was meant to do just that.

Building a capable, ethical and developmental state had to do with rebuilding the capacity of the public service. The overseer of this process was the PSC. If the PSC was crippled by not having the autonomy to do several things, the entire project of professionalisation, overseeing the implementation of lifestyle audits and assisting anti-corruption, would be impaired. For this reason, the PSC Bill ought to be a priority, and the presiding officers of Parliament, led by the Speaker, Deputy Speaker and the Chairperson of the National Council of Provinces, should send an urgent message to all the committees so that the PSC Bill could be approved before the end of the sixth administration. If the PSC Bill was not passed, it could take another two to three years, and it would be a serious blow to the effort and momentum that had been created in the entire project.

The Committee had been saying that the PSC should have some teeth, and the Commission had requested assistance from the Committee to make this happen with the PSC Bill. If the PSC Bill was not passed in time, the PSC would have gums with no teeth. In the future, it could not be blamed for all the efforts made. All the documents had been corrected and were ready. If the PSC Bill was not passed, it would mean that the chairperson of the PSC could not sign a performance agreement with the Director-General (DG) supporting the PSC without having to go through the Department of Planning, Monitoring and Evaluation (DPME) and the DPSA. It would also mean that the PSC could not rent offices and would have to depend on the Department of Public Works and Infrastructure (DPWI), unlike all other constitutional bodies. If the PSC Bill was not passed, the PSC would not have an information and communications technology network to organise itself. Its hands would remain tied and it would not be able to extend itself to local government spheres and state-owned companies (SOCs). This would be a serious blow, and cause a setback of years, if the Bill was not treated as serious and urgent.

The total experience of 63 million South Africans and residents in the country -- how they experience democracy and the quality of democracy on a daily basis -- was not through what judges, ministers or Parliament did, but through what ordinary public servants do. The quality would improve if people worked together and strengthened the public service and oversight bodies, which was the PSC. However, no matter the grand policies, wishes and dreams, the quality of life would remain where it was if it remained weak. The stakes were very high to ensure that the ecosystem of the oversight of public service was more at stake than any other bill. This was the only entity that had been given the role to oversee and advise on policies.

He thanked the Committee and the Minister for their assistance in getting the PSC Bill up to this point.

Adv Dinkie Dube, Director General (DG), PSC, took the Committee through the presentation.

Objectives of the PSC Bill

Adv Dube said the first objective of the PSC Bill was to strengthen the PSC to enable it to operate as an independent and impartial constitutional body with its secretariat. The second objective was to implement and apply the PSC mandate to municipalities and public entities.

Effects of the PSC Bill

The PSC was recognised and listed as a constitutional institution in terms of schedule one of the Public Finance Management Act (PFMA) 1 of 1999. The Bill would improve the enforcement mechanism of the PSC as per the recommendations of the National Development Plan (NDP), and would focus on effective governance and the promotion of an ethical public service and public administration. It would align the conditions of service of commissioners with the Determination of Remuneration of Public Office Bearers, to be in line with section 219(5) of the Constitution and as clarified in the PSC Act.    

Priority areas of the PSC

The preamble indicated that the purpose of the PSC Bill was to regulate the PSC in accordance with the provisions of section 196 of the Constitution, to regulate the process for the appointment of commissioners of the Commission; to provide for the establishment of the secretariat of the Commission; to support the work of the Commission; and to provide for matters connected therewith.

Part A: Application of the Act

Clause one: Definitions

The definition section seeks to provide clarity on the definitions of local government, public entity, public service, the secretariat of the Commission, and other critical matters that require a definition.

Clause two: Application of the Act

The PSC Bill applies to the administration of the public service and public administration, including municipalities and public entities.

Part B: Public Service Commission

Clause three: Constitution

This clause deals with the PSC's Constitution, comprising 14 commissioners appointed by the President. Five of these would be appointed by the President for the national office of the PSC on the recommendation of Parliament, and one for each of the nine provinces, on the recommendation of the provincial legislatures and the premiers.

Clause four: Appointment of commissioners

This clause deals with the recommendation of the minimum appointment requirement for a commissioner. It recommends the qualifications and experience requirements for a competent applicant. In relation to an applicant's qualifications, he or she should have a bachelor’s degree recognised by the South African Qualification Authority (SAQA) or an equivalent qualification at the level of the National Qualifications Framework (NQF) level 8 in at least one of the following related fields: public administration; business administration; human resource management; human behavioural sciences; finance; social science; science; the law; or other related fields. There was also a requirement of eight to ten years of management experience in the proposed areas, as stated in clause 3(3)(b) of the PSC Bill, 2023.

Clause five: Disqualification from appointment as commissioner

This clause was aligned with the constitutional provisions. The provisions were introduced to ensure that fit and proper persons were appointed as PSC commissioners.

Clause six: Limitations on performing other work by commissioners, renewal of the term of office of commissioners, and vacation of office by commissioners

This clause deals with the limitations on other work by a commissioner, their renewal and terms of office. The renewal of the term of office for a commissioner must be based on the relevant commissioner remaining a fit and proper person, as required by section 196(10) of the Constitution. The PSC commissioner may not be a political party office holder or perform remunerative work outside the PSC without the President’s approval. A commissioner may resign by giving 120 days’ notice to the President. The clause also addresses other conditions that may lead to the removal of a commissioner from office.

Clause seven: Chairperson and deputy chairperson

This deals with the designation of a chairperson and deputy chairperson by the President. If both the chairperson and the deputy chairperson were absent or, for any reason, unable to act, the President must designate one commissioner to act as the chairperson of the Commission for a period not exceeding 30 days.

Clause eight: Remuneration and other conditions of appointment by commissioners

This clause provides that the remuneration and other conditions of appointment of commissioners shall be determined by the President from time to time by notice in the Gazette, after taking into account the recommendations of the Independent Commission for the Remuneration of Public Office Bearers.

Clause nine: Inspections by the Commission

This clause provides the authority for the PSC to conduct an inspection of documents and have access to the premises of a government institution within the public service or public administration, should such inspection or access be required for the performance of its function.

Clause ten: Investigations by the Commission

This clause deals with the power of the Commission to conduct investigations within the public service and in public administration, and to have access to all the required information.

Clause 11: Inquiries by the Commission

The Commission may conduct an inquiry into any matter that falls within its mandate. It further deals with the process of issuing summons/subpoenas for witnesses or documents. Fines may be issued for non-compliance with a subpoena, and subsequent consequent management.

Clause 13: Implementation of the decisions of the Commission

The relevant executive authority, or relevant person to whom a decision of the Commission has been issued, must implement it. If a person to whom a direction of the Commission had been issued believes that he or she has a valid reason not to implement the direction, the matter must be taken on review in a court of law.

Clause 14: Independence and impartiality

This clause affirms the independence and impartiality of the commissioners and employees of the PSC in performing their constitutional duty. No commissioner or employee may deal with a matter in which they have a pecuniary interest, or any other interest which may preclude him or her from performing his or her duty in an unbiased manner.

Clause 15: Obstruction of Commission

Clause 15 provides remedies/penalties for where any person obstructs and/or hinders the work of the PSC. This includes fines and opening a criminal case at a police station.

Part C: Secretariat of the Commission

Clause 16: Secretariat of the Commission

This deals with establishing the PSC secretariat to provide administrative and technical support to the PSC. This would be without any change to the conditions of service of employees who are transferred to the PSC secretariat.

Clause 17: Powers and functions

This clause provides for the delegation of powers or functions amongst commissioners.

Part D: Finances and accountability

Clause 18: Finances and accountability

This regulates matters pertaining to finance and accountability for funds appropriated to the PSC. The Auditor-General must audit the records and accounts of the PSC.           

Part E: General

Clause 19: Legal proceedings by or against the Commission

This clause provides measures for dealing with legal proceedings by or against the PSC.

Clause 20: Rules

The Commission is empowered to make rules such as grievance rules, complaints rules, rules on the issuance of summons, rules to gazette management fees, and any other matter permitted to be regulated under a rule.

Clause 21: Repeal and amendments of law

This clause deals with the laws that have been repealed or amended.

Clause 22: Transitional provisions

This clause provides for the transfer of existing staff to the secretariat, recognition of the PSC bargaining forum, and the implementation of the PSC mandate to public entities and municipalities.

Clause 23: Short title and commencement

The PSC Bill 2023 provides a short title and commencement in line with legal drafting protocols.

The PSC provided a progress update and the way forward.

(Please see presentation attached for further information)

Discussion

Ms M Kibi (ANC) welcomed the presentation and the inputs that had been made. She was comfortable to hear all the efforts made to assist the PSC with the PSC Bill, and allow it to do its job. She appreciated the comments about the PSC not having any teeth -- that was why all the wrongs were happening. The PSC would be able to carry out its responsibilities in the future.

Ms R Komane (EFF) asked why the PSC secretariat would be assisted by public service employees when the chief executive officer had powers to recruit suitable and competent staff. Was this not against the independence of the secretariat? What did the management fee entail when the PSC provided advice and conducted investigations into personnel and public administration management in municipalities and public entities, as envisaged in clause 18? In clause 10, what would happen if the executive authority did not implement a direction within 60 days of receipt?

Ms M Ntuli (ANC) said there had been an outcry about the need for the PSC Bill from the beginning of the term. She was pleased that it was now before the Committee. She had noted the comment about the PSC having no teeth, and that this Bill would allow it to have teeth. It was unfortunate that it had come to the Committee only today. One could not have the right hand of the government being paralysed. The PSC had been working its level best in terms of outcomes, but there had been some hindrances.

It was painful to see that the Bill had come just before the end of the term, as the Committee was now faced with time constraints. It would love to have passed it as soon as yesterday. There had been a gap for the PSC Bill for quite some time. The Committee was going to work with the PSC to take the Bill forward.

Ms S Maneli (ANC) asked about clause eight, and the commissioners' standardisation through the independent Commission for the remuneration of public office bearers. What was the level of disjunction in the current remuneration framework? Clause 11 focused on the inquiries by the PSC and the authority to summon and issue subpoenas and fines. What capacity was required to effectively undertake an inquiry in relation to the current authority of the PSC? What circumstances would require the PSC to undertake inquiries?

The Chairperson said that the PSC Bill seeks to develop a legislative framework that regulates the PSC as a chapter ten institution, to strengthen its independence and to enhance the functionality of its constitutional mandate. The Bill aims to assert the independence and constitutionality of the PSC as an established entity. What were the key limitations of the current institutional arrangement?

PSC's response

Prof Fikeni appreciated the positive and complimentary remarks, and said the current limitations came in many forms. The PSC could not have the DG all to itself. As a government department, there were structured arrangements of duties which the DG had to fulfil, and sometimes, these things had nothing to do with PSC. The DG would have to go into Forum of South African Directors-General (FOSAD) meetings with the very same DGs who could be under investigation by the PSC. Some at those meetings might be trying to blunt whatever the PSC was trying to do. That was why the AG and the Human Rights Commission (SAHRC) were not seated there, because there had to be some critical distance. If the DG had to sign a performance agreement, some things had to be done as per the Constitution, but the format of a DG’s performance agreement did not allow for the prominence of the PSC. The PSC had been discussing this with the Minister and other departments, such as the DPME, because it could not file that agreement due to it was simply stating what the Constitution says, primarily that the DG supports the PSC.

There were many other things the PSC wanted to do, but as it was supported by a government department, it had to go via that department. This took time, so it did not have the same independence as other chapter nine and chapter 13 institutions. If a chief director was employed today, he or she would see pay progression and many other things, but a commissioner would remain way below, hence the need for introducing an independent commission on remuneration.

There were other constraints for not being independent. Prof Fikeni was working from home due to network problems at the office, so imagine hosting anti-corruption networks but being unable to go outside and procure the services that were needed. The PSC had to wait in the queue with all the other departments, whereas other entities, such as the AG and the SAHRC, could go straight ahead. The turnaround times for them were much quicker. These were some of the things in a nutshell that were blunting the capability of the PSC to do what it wanted. Even with the recruitment of the DG, which was the secretariat of the PSC, only the chairperson, two ministers and another DG would sit there, which meant that the very entity that was to be serviced became a minority, and had less to say in the appointment of the chief executive officer who was supposed to support it. This was crippling the PSC, and was going against the very essence of a chapter ten institution.

Therefore, the PSC did not seem to have the teeth it was supposed to have. It had seen what the AG had to go through, and the legislation had been improved. It had also seen what the Public Protector had gone through with a court case judgment which had become case law, and its powers had been improved. The PSC was looking at the same situation, to say that public service was the most important thing to implement policies, fight corruption, deliver service and serve as an institutional memory from one administration to the next. It was a critical catalyst for any professionalisation of the public service. If the PSC Bill was deferred to 2029, it would broadly defer the watchdog for the public service, which was the key role player in implementing its professionalisation. It was not just about the PSC or its commissioners -- it was about trying to breathe life into what the framers of the Constitution had in mind that had been deferred for so long.

Adv Dube said that the current PSC Act has already empowered the PSC to conduct inquiries. A system of analysing trends from complaints and grievances was used to determine the need for an inquiry. If there was a system problem in the public service, the PSC may then determine whether to deal with it through a public inquiry or conduct a further study. From a resource perspective, public inquiries were quite costly. The reinforcement of the mandate of the PSC and dealing with local government and public entities would require a huge financial investment to ensure that it was capacitated to deal with these matters. This was especially in the case governance issues in the entities, as indicated by the AG. The PSC would determine at that stage whether or not it had sufficient resources to address the matter by way of a public inquiry or another intervention. The PSC Bill would allow the PSC to do so. If the PSC Bill was passed, the PSC would hopefully get additional funding, and this would allow for more public hearings that would be quite impactful, as this would address the systemic matters in the public service.

The Chairperson said the Committee had expressed the need for the PSC Bill to be processed. There was only a month left to conclude this administration. The Committee would communicate with the PSC for further processes.

Prof Fikeni wished the Committee well in trying its best to inject magic into the time and speed of processing the PSC Bill.

Draft report on the Public Administration Management Amendment (PAMA) Bill

Mr Julius Ngoepe, Committee Content Advisor, took the Committee through the report.

Ms T Halse (DA) said she was new to the Committee, but recalled that the meeting of 29 November 2023 had not taken place. She asked if section eight was not creating a loophole for employees to do business with government, especially the insertion of subsection four. What capacities did the National School of Government (NSG) have to implement this section? What accreditation did the NSG have, and how was it acquired? The DA would reserve its position on the PAMA Bill and the Public Service Commission Amendment Bill.

The Chairperson asked why the Committee had not been informed about the new Member of the Committee.

Mr Masixole Zibeko, Committee Secretary, asked if this could be discussed on the side. Ms Halse was not part of the WhatsApp group, but she was part of the e-mail list.

Mr Sisa Makabeni, State Law Advisor, asked if he could raise a question.

The Chairperson asked if he was responding to Ms Halse.

Mr Makabeni said that his question would partly respond to the questions raised by Ms Halse, which was an issue of process. In the previous meeting, the Committee had discussed and adopted the A-list of the PAMA Bill. All those amendments had been included in the B-version of the Bill. The Committee now had to go through the B-list of the PAMA Bill clause-by-clause, and then adopt the B-list. Thereafter, the Committee should consider and adopt the Committee report on the PAMA Bill.

The Chairperson said that the understanding was that everything had been responded to by the Parliamentary Legal Unit. There were meetings in November and December, and everything in the PAMA Bill had been clarified.

Ms Ntuli emphasised that the Committee had exhausted all the processes regarding both bills, and was left with only their adoption. If there were no other processes, she moved for the adoption of the PAMA Bill.

Mr Ngoepe agreed with Mr Makabeni that the Committee should go through the B-version of the PAMA Bill clause-by-clause, and then adopt the report thereafter.

Consideration and adoption of the PAMA Bill

Mr Ngoepe went through the B-list of the PAMA Bill clause-by-clause.

Since Ms Ntuli had already moved to adopt the PAMA Bill, Ms Maneli seconded the motion to adopt the B-list of the PAMA Bill.

The Chairperson said that the B-list of the PAMA Bill and the Committee report was duly adopted, with the reservation of the DA.

Consideration and adoption of Public Service Amendment Bill (PSA) and Committee report

Mr Ngoepe took the Committee clause-by-clause through the B-list of the PSA Bill.

Ms Halse said the DA reserved its position on the PSA Bill.

Ms Ntuli said that the Committee had exhausted all the processes on the PSA Bill, and moved for the adoption of the B-list of the Bill.

Ms Kibi seconded the motion to adopt the B-list of the Bill, and the Committee report.

The Chairperson said that the DA and the EFF reserved their rights on the PSA Bill. The ANC supported the PSA Bill. The two bills would now go to Parliament for further processing.

The Committee would deal with the draft legacy report 2019-2024 and its annual report for 2023. The reports would be presented, and then adopted in another meeting. Members should note if there was anything that should be added, and verify the recommendations. In the next meeting, the Committee would discuss this.

Draft legacy report 2019-2024

The Committee went through the draft legacy report for its term from 2019 to 2024.

The Chairperson said there would be an opportunity to add to the report.

Ms Ntuli was thankful to the parliamentary staff for the work that they did. She hoped that the seventh administration of Parliament would find things in order, especially the work that was going to be left behind.

Ms Maneli acknowledged and noted the report. The report would be engaged in another meeting.

Ms Kibi said that the parliamentary team should keep track of the Committee's recommendations during this time. The parliamentary team should emphasise the temporary suspensions and the Committee's work alongside the other committees.

Closing remarks

The Chairperson thanked the Members and the parliamentary team for their work. The parliamentary team was always ready with reports, and the Committee should thank them for being part of this Committee. They assisted the Committee in ensuring that the work was done with diligence and that the Committee delivered in a manner that the people of South Africa expected.

The reports on the PAMA and PSA Bills had been adopted and would be introduced to Parliament. The Committee had noted the reservations of the EFF and the DA. She thanked the legal team for their assistance with all the bills. The PSC had said it wanted the PSC Bill to be presented to Parliament, and the Committee wished the same so that the Committee could be given its constitutional independence. The Committee understood that the PSC was passionate about its independence.

The Committee would be dealing with the DPSA's achievements next week on Tuesday, because Wednesday was the budget speech.

The meeting was adjourned.