Secondment – Minister speaks about its constitutionality

Minister of Public Service and Administration, Lindiwe Sisulu, and her legal adviser, Advocate Menzi Simelane, presented aspects of the constitutionality of the Public Administration Management (PAM) Bill yesterday to the Portfolio Committee on Public Service and Administration.

The issues that were raised in the National Council of Provinces (NCOP) regarding the Bill included:

• The potential negative impact that the Bill would have on Local Govenment's constitutionally enshrined power to govern in its own affairs; and
• Clause 6(2) and (3) of the Bill as it pertains to the secondment and transfer of employees/officials.

On the first issue, Simelane explained how the Bill did not have the effect of challenging local government's right to govern its own affairs, and that the Bill provided support to municipalities in building its capacity.

The DA Members of the Committee contradicted this, pointing out that such an imposition existed in the Bill. Making reference to the issue of secondment, the DA said that the process for secondment raised issues of constitutionality. They argued that the secondment procedure was a concern, as the Bill did not provide clarity on the consultation process, which would have to be engaged in before an official was transferred. Thus, if the receiving institution and the sending institution agreed to the transfer, then the consent of the official would not be necessary. This system would be hazardous for families of officials who may be seconded for an undefined time period.

The Minister responded somewhat emotionally, saying that over and above the concerns regarding secondment, the provision was a means to ensure that municipalities are capacitated. In a previous meeting last year, 6 Nov 2013, she had said that any transfers or secondments had to be mutually accepted. Government would not have the authority to send someone where they did not want to go.

During the morning session of the public hearing on the Bill, scheduled only for today, the Committee saw inputs from civil society organisations, a trade union and an individual in his personal capacity.

The National Education, Health and Allied Workers’ Union (NEHAWU) submitted that although they welcomed the revised Bill, they were concerned about employee transfers – specifically, the “secondment despite the absence of consent”. They worried it would lead to the abuse of employees and proposed that safeguards should be implemented to prevent government from using this process to address vacancy problems instead of employing staff to fill vacancies.

The Open Democracy Advice Centre’s submission praised efforts by the Minister and the Department of Public Service and Administration to combat corruption by stating in clause 8 of the Bill that is completely forbidden for public servants to conduct business with the state. However, in terms of disclosure of information by public servants, they recommended that the Bill should acknowledge “the obligation to proactively disclose this information, if an effective public service is to be advanced.”

Corruption Watch also agreed with the anti-corruption efforts shown in clause 8 of the Bill; however, they expressed disappointment that two key provisions – (1) a “cooling-off” period before public officials can enter the private sector, and (2) the anti-corruption bureau – were left out of the Bill.