Public Administration Laws General A/Bill: input by DA MP Schreiber & Presidency; DPSA & PSC briefing on Public Service A/Bill, Public Administration Management Bill & Public Service Commission Bill; with Deputy Minister

Meeting report

The Chairperson opened the meeting by welcoming the newly appointed Commissioners of the Public Service Commission. He announced that it would be the last meeting for the term and the next meeting would be in August 2022.

He outlined the agenda. On 19 August 2021, the Speaker of Parliament referred the Public Administration Laws General Amendment (PALGA) Bill to the Portfolio Committee. The Bill was sponsored and drafted by a Member of the Portfolio Committee, Dr L Schreiber (DA).

The Department of Public Service and Administration (DPSA), the National School of Government (NSG) and the Public Service Commission (PSC) had been working on the legislative amendments since the beginning of the sixth administration. It was imperative that these departments participate in the current discussion to ensure that there were no duplications of their amendments. The unit in the Presidency responsible for the Socio-Economic Impact Assessment System (SEIAS) was also invited to provide input on the amendments.

Briefing by Dr Schreiber on the Public Administration Laws General Amendment (PALGA) Bill

Dr Schreiber outlined the context of the PALGA Bill. He said a call for comments on the original Bill had received 122 comments expressing unanimous support. He also informed the Committee of a letter submitted to the National Economic Development and Labour Council (NEDLAC) on 20 April 2021, introducing the Bill as a part of regular processes. No response had been received from NEDLAC. 

He said that one of the first recommendations from the State Capture Commission’s volume one report indicated that appointments related to state-owned enterprises (SOEs) could not be left solely in the hands of politicians, as they had failed to appoint people with integrity to lead the institutions successfully.

Many of the issues highlighted in the Bill were not new, and the most recent issue was noted by the Portfolio Committee on Public Service and Administration on 16 March 2022. The Committee had raised concerns about the high number of complaints lodged with the PSC, signalling that the recruitment processes in the public service needed to be reviewed and strengthened to ensure capable and competent personnel were appointed based on merit.

The Committee had also stated that the appointment of the PSC’s Director-General through the Public Service Act and participation in the Forum of South African Directors-General (FOSAD) structure compromised the independence of the Commission.

Parliament should reconsider the Kader Asmal recommendations, which proposed the relocation of budget allocations of institutions supporting democracy (ISDs) from national departments to the Budget Vote of Parliament, which was consistent with the notion of giving effect to the financial independence of ISDs.

Dr Schreiber highlighted that the letter and the spirit of the PALGA Bill did not entirely consist of recommendations made by the State Capture Commission but included recommendations made by the Portfolio Committee. Beyond flagging problems and recommendations, it was time to take action. 

He took the Committee through the aims of the PALGA Bill. The six core pillars of the PALGA Bill included the prohibition of political office-bearers from public service employment, and the provision had recently been adopted in the National Assembly. Should the President sign the Bill, it would prevent any political party member from holding office within the administration.

The Bill prohibited special service benefits for Directors-General (DGs) and heads of department (HODs) who had been dismissed. The Public Service Act left the door open for individuals who had been dismissed to receive special service benefits. It was illogical to provide any sort of bonus to an individual who had been dismissed. If they deserved such a benefit, they would not have been in any position to be dismissed.

The Bill would enhance the financial independence of the PSC from the organs of state over which it had oversight. The amendment aimed to add the PSC to the constitutional institutions listed in Schedule One of the Public Finance Management Act of 1999. In the interest of preventing any legal consequences, the amendment fixed the error made during the previous amendment to schedule one, ensuring that entities that were incorrectly gazetted were included in constitutional institutions. 

The fourth pillar was an enhancement of the administrative independence of the PSC. It would remove the Office of the PSC from the purview of the Department of Public Service and Administration by designating the Chairperson of the PSC as the executive authority of the Commission.

The Bill would mandate the PSC to enforce merit-based appointments. Section 197 of the Constitution stated that no employee of the public service may be favoured based on their support for a particular political party. Any person who failed to comply with a direction under this section would be guilty of an offence and liable to a fine or imprisonment not exceeding 12 months or even both.

The Bill would ensure that the PSC could take remedial action. Measures, directions, and recommendations issued by the PSC would become legally binding. Relevant authorities would have 60 days to report to the PSC on implementing recommendations. Failure to implement must be reported to the provincial or national legislature.

Dr Schreiber said that the Bill was a comprehensive effort to address the problems the Committee was aware of. It sought to remove the influence of politics in public administration. He highlighted that the Bill should apply across the board and not just in the political sphere. No party should be able to capture the administration and appoint candidates based on political affiliation rather than merit.

 The Chairperson indicated that the discussion on the presentation made by Dr Schreiber would not be finalised in the current meeting. The Committee would be allowed an opportunity in the next meeting to engage on the contents of the Bill.

Presentation by the Presidency: Impact Assessment of the Public Administration Laws General Amendment Bill

Ms Pulane Kole, Chief Director: Socio-Economic Impact Assessment System (SEIAS), presented the impact assessment of the PALGA Bill.

She said SEIAS was an ex-ante policy tool aimed at strengthening policy and law-making and assisting in decision making. Cabinet introduced the system in 2015 to replace the system of regulatory impact assessments, which had been piloted from 2007 to 2009.

SEIAS enabled departments to analyse broader socio-economic challenges, associated costs and risks and develop mitigation actions. It ensured alignment with the National Development Plan (NDP) by considering the impact of policy proposals on transformation and inclusive economic growth. The Presidency conducted independent analysis of SEIAS reports. 

Ms Kole said the key aspects of the PALGA Bill sought to address the three pieces of legislation which governed the public service - the Public Service Act (PSA) of 1994, the Public Service Commission Act (PSCA) of 1997 and the Public Administration Management Act (PAMA) of 2014.

She said the current administration placed “building a capable, ethical and developmental state” as a top priority in advancing delivery of quality services to citizens. Government undertook a comprehensive approach to address the state's capacity in line with the NDP. The interventions taken by government included efforts to stabilise the political-administrative interface and ensure that senior appointments were based on merit, including in the local government sphere. They aimed to prioritise digital transformation to improve delivery of services, address the governance of SOEs, and implement mechanisms to curb fraud and corruption. The District Delivery Model aimed to ensure integrated planning and implementation of national priorities.

She outlined initiatives taken by government, such as the designation of the DG in the Presidency as the Head of Public Administration. Work had been done on the finalisation of a framework for the professionalisation of the public service. Government was in the process of conducting lifestyle audits. Training programmes were being rolled out for government officials from entry-level to senior management and the executive through the National School of Government.

The impact assessment of the Bill showed that it did indeed cohere with the work being implemented by government. The basis of the Bill was testimony given at the Commission of Inquiry into Allegations of State Capture in August 2018 and not on recently released reports handed over to the President by the Commission. The President had committed to submitting a full report and the implementation plan based on the Commission’s recommendations to Parliament. The Bill did not holistically address the priority of building a capable, ethical, and developmental state, and it parallelled other important legislative amendment bills.

The Bill assumed the independence and impartiality of the PSC were being compromised, hence the need to change its form. The NDP recommended the PSC be repurposed and repositioned to assert its standing as the custodian of meritocracy in the public service. Proposed amendments to its institutional setup in the Bill were not supported by a business case that considered the views of staff and labour unions.

There was no clarity on how the proposed institutional arrangements would contribute to the independence and impartiality of the Commission.

Regarding the special service benefits, the Bill assumed moral authority and sought to correct the challenge of rewarding unethical behaviour, which led to dismissals. Adding this clause into the legislation might serve as a deterrent for those engaging in unethical conduct.

The Public Service Regulations approach was not to criminalise those with political ambitions but to protect the integrity of the public service in serving the public in an unbiased and impartial manner. The Bill focused on an independent bureaucracy rather than investing in a professional public service. Government was attending to this through the framework for professionalising the public service. The Bill did not entirely address the political-administrative challenges.

Government interventions emphasised that the public service should be insulated from political interference.

Ms Kole concluded that the Bill was based on the testimony before the Zondo Commission and not on the Commission’s final reports and recommendations. A business case did not support proposed institutional arrangements for the PSC and there was no clarity on the modality of funding that would secure its full independence. The Bill had a narrow approach to building a capable, ethical, and developmental state.

The recommendation was that government be allowed to continue with its initiatives and expedite the finalisation of enabling legislation through amendments to the PSA, PAMA, PSCA and the Municipal Systems Act (MSA). The framework for professionalisation of the Public Service should be finalised and implemented. 

 Discussion

Ms M Ntuli (ANC) welcomed the presentations by Dr Schreiber and the Presidency. She commended the good work that was currently being done on the three pieces of legislation. It reflected stances taken by the Committee from time to time. The Committee looked forward to the outcomes.

She once again commended Dr Schreiber for taking time to present the proposed amendments, keeping in mind that the Bill would not be deliberated on in the current meeting.

Dr M Gondwe (DA) appreciated both the presentations, especially that of Dr Schreiber. The Bill would ensure that the separation between the state and the political realm was firmly entrenched. She noted that the Chairperson had asked for no deliberations on the Bill and would move on from that. 

The SEIAS presentation claimed that government had taken a comprehensive approach to address the capacity of the NDP. She was shocked that the Presidency would make such an assertion, considering that recently government had admitted that some of the goals and targets in the NDP would not be achieved, given circumstances such as the slow economic growth and the state of corruption in government. She believed that one goal that would not be achieved was ensuring that an ethical and capable state was built. Referring to the NDP at this stage was quite puzzling.

There was no denying that government had introduced several initiatives in the public service, such as the framework for professionalisation of the service. However, none of the initiatives were bearing fruit. When would the initiatives come into effect? The pace at which lifestyle audits were being implemented was slow, and some departments had not even begun. The National School of Government had also admitted that their post-evaluation feedback indicated that public servants could not implement some of the things they had learnt. There needed to be a connection between the courses on offer and the problems faced by the public service.

She asked for clarity on the assertion that the Bill did not holistically address the priority of building a capable and ethical state. Did the Presidency feel that other Bills, such as the PAMA, holistically addressed these priorities?

The PSC had admitted itself that it required more independence and impartiality, hence the introduction of the Bill. She asked if it would not have been better to state that the Bill would add more value to the PSC. Eleven years into the NDP, the PSC had not repositioned itself. The PALGA Bill wanted to assist in repurposing and repositioning the PSC.

She asked for clarity on what the Presidency meant when they referred to the Bill as not addressing the political-administrative interface.

Ms T Mgweba (ANC) appreciated both presentations. She said that she did not have any initial comments on the presentation by Dr Schreiber. However, she would like to highlight what the Bill did not consider. The NDP stipulated that there was a need to stabilise the political-administrative interface. It also spoke on the terms of recruitment to avoid political connections. However, the Bill assumed that there were no clear lines of appointment in the public service, and it did not consider work being undertaken by the public service on the amendment of the PAMA. It was important to note the work being done by the government on measures for dealing with maladministration.

The Chairperson reiterated that the presentation made by Dr Schreiber would not be debated in the current meeting. He appealed to Members to honour the ruling.

Ms Mgweba responded by saying that she needed to clarify a few issues so that government was not portrayed as not implementing policy. She said that she understood the Chairperson's instructions.

Mr J McGluwa (DA) agreed with the Chairperson that the Committee should stick to the ruling. 

Ms Mgweba said she understood that the President would be submitting a full report and implementation plan to the Parliament on the State Capture Commission’s recommendations. She asked for clarity on the best way to develop and strengthen the existing legislation.

 Ms R Komane (EFF) commended the ruling by the Chairperson.

She asked what informed the comment on a comprehensive approach towards the NDP because there were high rates of unemployment and corruption in the country. Government had already indicated that goals would not be achieved as anticipated. Did government have the capacity to realise some of its goals?

Would the framework for professionalising the public service guard against departments and state institutions appointing incompetent people in senior management positions?

She asked whether the PALGA Bill would complement the existing legislative framework and close loopholes in the public service. She sought clarity on how the PALGA Bill parallelled other amendment bills and whether the Committee should wait for the tabling of the amendment bills by the DPSA to assess if there were duplications.

Mr Z Mbhele (DA) thanked Dr Schreiber for the much-needed initiative. It was indeed a proactive effort by Members of Parliament.

He shared his colleague's sentiments on the admission made to the Committee by the Department that the NDP would not be meeting most of its goals by 2030 as projected due to previously mentioned challenges. He asked for clarity from the Presidency on whether the efforts to reform and reorientate SOEs had been successful or not. 

Dr Schreiber thanked the Presidency for their participation in the current process. He asked why the SEIAS did not include an assessment of what it would mean if the public sector enforced merit-based appointments.

He commented on the argument that there were duplications in the Bill. He asked whether the Presidency did not believe there was a package of comprehensive reforms when the Bill was considered in conjunction with other bills.

The Chairperson reiterated that the presentation by Dr Schreiber would not be debated in the current meeting but rather in the next meeting. The Presidency should, therefore, not be tempted to get into discussions.

 Responses 

Ms Kole said recommendations from the National Planning Commission (NPC) on the achievement of the NDP provided valuable information and early warning signs on implementing the NDP goals. That did not mean that the Presidency remained idle, and early warnings that NDP goals might not be achieved indicated that government should introspect and accelerate the delivery of priorities.

She responded to the concerns about the framework for professionalising the public service. The framework was currently at an advanced stage and should shortly be going to Cabinet for approval. It ensured that there was a professional public service with an ethical administration in which appointments were based on merit. There was a focus on improving governance and accountability. The framework also looked at mainstreaming gender empowerment, youth and persons with disabilities. There would be engagement with key stakeholders.

She could not speak much on the courses the National School of Government offered - the DPSA could address that issue.

Several issues should be noted regarding a comprehensive approach toward building a capable society. Amendments were made to ensure the strategic goals were addressed. The relationship with political advisors needed to be managed through proper mechanisms. To deal with issues such as ethical behaviour, systems needed to be approached comprehensively to ensure institutional performance. It was about collaborative efforts across all spheres of government.

Government was consulting extensively on the human resources implications of the bills being considered. When the bills became law, there should be efficient implementation done by the department.

The Presidency looked at the efficiency of institutional arrangements and whether certain SOEs would need to be rationalised or merged. The rationale was how best to reconfigure SOEs to deliver services and optimally address challenges such as poverty.

On criticism of the SEIAS report on the PALGA Bill, she said that when departments developed bills and policies, they completed a SEIAS template which the Presidency would thereafter analyse. The Presidency did not receive this from the custodians of the Bill and had to do their own analysis based on what was given.

 DPSA: Legislative Amendments

Dr Chana Pilane-Majake, Deputy Minister of Public Service and Administration, said that the comments during the previous deliberations had been quite interesting. She said she was concerned about the spirit shown when matters of such a nature were presented before the Committee. She wondered whether when Members came to the meetings, they considered the spirit of ubuntu outlined in the Constitution. 

She said there was indeed a challenge in the interface between the executive and the administration, and these matters need to be addressed in legislative provisions. She highlighted the importance of performance before anything else in meeting the needs of South Africans.

Ms Yoliswa Makhasi, Director-General, DPSA, said the DPSA had begun reviewing its regulations for the Public Service Act (PSA). The amendment process of some of the other bills took a bit longer and the DPSA had decided to go ahead with the PSA. 

The regulations under the PAMA had been finalised and processes of implementation were being undertaken.

She said that the responsibility of DPSA in terms of the NDP was covered in Chapter 13. The Department had not yet appeared before the Committee to indicate what specific targets had been met. She assured the Committee that the Department was working around the clock to achieve the targets and they could return to the Committee at another time.

The principal of the National School of Government had indicated that the professionalisation framework would be ready for submission to Cabinet in June. The Department had already aligned its legislative amendments with the framework, and some issues around driving meritocracy in government were covered. 

The Amendment Bill was meant to be submitted to Cabinet at the end of the previous financial year, but due to delay in consultations, it was not possible.

Ms Renisha Naidoo, Chief Director: Legal Services, DPSA, briefed the Committee on the progress of the amendment bills.

She highlighted that the DPSA looked at the bills from a holistic perspective, with the main goals focusing on how the bills would assist in service delivery. It was therefore important to take note of the four elements that formed the foundation of the public administration.

The first was citizens and how they benefited from the public administration. The second was the government and how it met its obligations to the citizens of South Africa. The third was how the public administration rendered services to meet the citizens' demands and ensure that government’s obligations were fulfilled. The fourth was the employees in the public administration and what was expected from them to ensure the service was properly rendered. 

The process to amend the Public Service Act (PSA) of 1994 and the Public Administration Management Act (PAMA) of 2014 was initiated in 2019. The Bills were published for public comment in the Government Gazette on 6 April 2021, and extensions were granted until 21 May 2021. The PSA Bill received extensive comments from a total of 13 institutions. There were 19 comments on the PAMA Bill, running to more than 100 pages.

The Bills were first presented to the Public Service Bargaining Council on 5 May 2021 and the discussions were still underway.

Consultations with the SA Local Government Bargaining Council (SALGBC) were expected to conclude shortly to allow the NEDLAC processes to continue. The Bills had labour implications and it would be important to deal with those matters accordingly.

She highlighted that the areas being presented were subject to changes.

The areas identified for amendment in the PSA were to devolve administrative powers to the HOD while retaining strategic powers with the executive authority; to augment the functions of the DG in the Presidency to include the functions envisaged by the NDP for an administrative head of the public service; to amend section 35 to clarify the role of the PSC in determining the internal grievance procedures; to prohibit HODs from holding political office in a political party; and to amend section 38  to provide an alternative mechanism for departments to lawfully deduct overpaid remuneration from an employee’s salary.

The PAMA Bill addressed legal difficulties in the implementation and application of the Act; it distinguished between transfers within the public service and transfers between municipalities and provided appropriate definitions in removing unintended consequences in interpreting the Act. The National School of Government would be established as a national department while empowering it to provide education and training to employees in all spheres of government. The Bill aimed to remove unfair disparities in the public administration and to provide for mandating arrangements for collective bargaining. 

 It was expected that the consultation processes would be concluded by 30 September 2022.

It was planned that the Bills would be tabled in Parliament in the fourth quarter of the 2022/23 fiscal year.

Discussion

Dr Schreiber referred to the prohibition of political office bearers from being employed as HODs. He said that local municipalities had also a few years ago begun to prohibit senior managers from holding political office, but challenges arose when senior political officials lower down in the administration interfered with the work of more senior officials who were not members of political parties. He asked why the DPSA amendment would not extend the prohibition to include political office bearers in the public administration. Why would it be limited to the HODs, especially given the experience in municipalities? The amendment would be unfair to officials who had been prohibited while leaving the door open for lower-level public officials, and it created a discrepancy.

Ms Naidoo said that when the process of amending the legislation began, the DPSA was aware of the need to align with what was in the municipal space. A difficulty was ensuring that constitutional prerogatives were not eroded. There were engagements to look at what was justifiable in terms of the limitations of people's constitutional rights. One of the elements considered was the obligations of employees in their respective positions and the obligations of HODs in office and therefore, how they would conflict if the HOD held political office.

The DPSA had since been advised during the processing of the Municipal Systems Act that the provision was extended to all employees.

Ms Mgweba said it became exceedingly difficult to engage in these discussions since the Chairperson indicated that the first presentation would be deliberated on in the following meeting.

She said that she appreciated the progress report from the DPSA. She asked which groups, individuals and institutions had had the greater interest in commenting on the Bills and the conclusion based on the comments. 

Did the DPSA think they were on track to table the Bills on time for further processing by Parliament?

The Chairperson said that he suggested the PALGA Bill should be deliberated on in the following meeting because he would like all the Members to have time to study the Bill and engage effectively with its contents.

Ms Naidoo responded to Ms Mgweba by saying that comments came from organised labour and public sector institutions such as The Helen Suzman Foundation. She said the inputs were supportive of the drive to amend the pieces of the legislation. There were suggestions on ways to better the Bill; some were technical and some were policy centred.

The DPSA had already engaged with NEDLAC on these processes and therefore, they were aware of the urgency without undermining the processes of NEDLAC. A plan was on track to bring the Bills to Parliament in the financial year as stipulated.

 Public Service Commission: Institutional Practice Review

Prof Somadoda Fikeni, Commissioner, PSC, made opening remarks. He thanked the Portfolio Committee for expediting the appointment of commissioners to the national office. Parliament had appointed three new commissioners. Two were men and one was a woman and this addressed the bias that had been long-standing. There had been an inexplicable two-month delay before the new commissioners' appointment, which should be avoided in the future.

He said that future generations would ask what was done about the weaknesses in the legislation and whether the interventions were impactful. The current policy reforms presented to the Committee attested to policy reforms meant to help build a capable state.

The PSC Bill was meant to give real meaning to its constitutional mandate as an autonomous entity. A major contradiction was that the PSC was expected to perform oversight of government departments, yet it relied on departmental support.  

Mr Henk Boshoff, Commissioner, briefed the Committee on the progress of the draft PSC Bill. He mentioned that the previous presenters had raised everything the draft Bill planned to achieve. 

The PSC started the process in 2014. The Kader Asmal report stated that, when supported by the national government, the Department had the potential to compromise the independence of the PSC. More recently, the same challenges had been identified in the NDP. Creating a secretariat for the PSC would address these challenges, as it would receive support from its own administration.

The focus of the Bill was to repeal the Public Service Act of 1997 and replace it with a Bill that addressed the challenges. The Bill was ready for submission to the Cabinet. 

Adv Dinkie Dube, Director-General, PSC, said that the PSC was the only constitutional body a national government department supported. The current framework made the work of the PSC quite challenging, hence the need for its own secretariat.

The PSC had embarked on an institutional practice review project and drafted a business case to support drafting a new PSC Bill in 2020.

Models were explored outside of the DPSA, which would provide clear directions and legal foundations for creating a secretariat for the PSC.

She said the Bill's focus, as Mr Boshoff indicated, was to repeal the PSC Act of 1997.

Highlights in the drafting process included a meeting with the Minister of the DPSA to discuss the intended legislative review process. The Minister supported the process and expressed government's intention to establish a single public service and appointed three DGs to assist PSC in this regard.

There was an internal PSC workshop on the draft business case.

The Draft Bill and the Business Case were submitted to the Minister of Public Service and Administration. The Minister was requested to sponsor and present the Draft Bill for in principle discussion in Cabinet.

On 10 May, the PSC met with the National Planning Commission (NPC) to discuss the PSC Bill of 2022 and the collaborative efforts to reposition the PSC's mandate. The NPC stated its support for the Bill.

She took the Committee through the process of tabling the Bill and timelines envisaged by the PSC.

The guidance and support of the Portfolio Committee in moving the Bill forward would be appreciated by the PSC.

 Discussion

Ms Ntuli welcomed the presentation. She said that the Bill sought to address many issues raised by the portfolio committee. She said that she would like to wish the PSC Bill a path with no hindrances and blockages. Hopefully, before the end of the year, the fruits of the project will be visible.

Mr Mbhele said his question would be quite challenging and provocative and the respondents should be aware of this. He understood the need for consultation and harmonisation within the cooperative governance framework. While he agreed that there should have been consultation with Cabinet, he was concerned that a Chapter Nine institution should subsume itself to normal processes and protocols. Why could the PSC not have brought the Bill directly to Parliament as an independent body? The process could have been quicker if there had not been a “preemptive deference” to the executive.

Prof Fikeni responded to Mr Mbhele by stating that the PSC was appointed by Parliament and accounted to Parliament. He said the question could be reframed by asking what Parliament could do to use its “clout” in dealing with the Presidency on matters affecting the PSC.

 The minutes of the previous meetings were adopted.

 The meeting was adjourned.