Public Service A/B & Public Administration Management A/B: DPSA briefing; Committee Oversight visit Reports; with Deputy Minister

Meeting report

The Chairperson welcomed the Members to the meeting and noted the apologies for those who were unable to attend. She said this meeting was critical for the Committee, because it was the beginning of the legislative process of the two Bills being presented. After the presentation, Minister Kiviet would be asked for her remarks before the Department of Public Service and Administration (DPSA) got an opportunity to comment.

Deputy Minister remarks

Dr Chana Pilane-Mijake, Deputy Minister of Public Service and Administration, said presenting these two Bills to the Committee was a pleasure. She pointed out that Minister Kiviet would not be in attendance to present because she was attending another meeting. These bills have undergone a lot of consultation over the last few years. The Department hoped that the bills would enable public service and the government to operate optimally in a civil administration to provide the best possible service.

The bills would advocate for developmental, professional and ethical action by the state. It was necessary that routine day-to-day powers were allocated as close as possible to the administration, to promote efficiency and expediency in order for government to have high levels of performance. These bills provide that the Director-General in the Presidency would be the head of administration to coordinate spheres of government to support the President. This would also remove any possible conflict of interest that may arise by prohibiting a head of Department and employees reporting directly to this head from holding an office of authority in a political party, and by imposing a cooling-off period for employees involved in the procurement of services. These improvements would enable the National School of Government to be a training facility that caters for the education and training of employees, and was tailored to creating a capable public service.

Public Service Amendment bills

Ms Renisha Naidoo, Chief Director: Legal, DPSA, said that in 2019 the amendments to the Public Service Administration Bill and Public Administration Management Amendment Bill were initiated. It was predominantly around ensuring that the public service operated to meet the needs of the public and government regarding service provision. The origin of these provisions arose from the National Development Plan (NDP), the changes in labour policies and professionalisation framework, and the Zondo Commission reports. The bills were people-centred. The Department had considered how public administration was realised and utilised. All of these changes were made with the goal of improving the state's capacity.

The bills were gazetted for public comment in April 2021, and extensive feedback was received. These bills had been amended accordingly. All the prescribed processes were followed in getting them to Parliament.

The Public Service Amendment Bill would effect changes to the Act last amended in 2007. These changes took into account all the changes that the public service had experienced since 2007 until the present.  

The Public Administration Management Amendment Bill amends the definition of Executive Authority, amended in section 3(7) of the Act. It would amend the definition of the Head of Department (HoD). A definition for Clause 15 of the Bill had to be inserted in terms of political office. The Bill defines the powers of the Executive Authority.

Clause 2 in the Public Service Amendment Bill speaks to the powers of the Minister of Public Service and Administration, amending section 3(1) of the Act.

The administrative and financial responsibilities would be administered by the HoD, enhancing the Department’s accountability. The Department would also be able to better align budget resources to human resource matters if the powers vested were located with the HoD. Executive Authorities (EAs) would be able to focus on strategic matters and deal with their constitutional obligations without having to deal with routine daily administrative matters. The EA would be held accountable to the Department and would also be responsible for approving strategic plans. The EA would also be responsible for establishing clear relationships and facilitating cooperation and communication with the HoD. This was all outlined in section 3(7).

The Bill proposes the deletion in section 2(d) of the Act and moves it to section 3(8). The Department had to make a careful decision not to erode the responsibilities of the political head in terms of his/her constitutional responsibilities in these amendments. These provisions also allow for the instance where the HoD fails to perform, requiring that the EA take the appropriate steps to rectify this, and that these appropriate steps were then to be recorded in writing. Where the HoD failed to take these steps to remedy a failure, some provisions would refer the matter to the President or Premier.

Ms Naidoo said that clauses 3, 5, 6, 7, 9-14, 17 and 18 delete the reference to EAs, and replace them with the administration of the HoD.

Clause 4 contained a further amendment to section 7. This clarifies the role of the Head of Public Administration. A coordination point had been created between the President and the Director General (DG) for interaction between national departments, provincial departments and government components. Currently, under the Public Service Act, a provision exists that allows the DG to assist and support the President at a provincial level, but this has now been extended in the Bill to the powers the DG would receive on a national level -- similar to the powers the office of the Premier holds.

Regarding clause 8, the Public Administration Management Act (PAMA) repeals section 51, and this Bill brings the provisions in section 51 into section 14(a). This would ensure that any employee appointed by the state into the public service had continued service. Clause 9 amends section 16 of the Act. Clause 13 amends section 31. Clause 14 of the Public Service Amendment Bill amends section 32 of the Act. The amendment would clarify issues around the reassignment of employees within the Department. Clause 14(b) would deal with the amendment of the acting appointments and who had the power of appointing acting officials. Clause 15 would amend section 35, that the Minister of the Department would be responsible for determining the procedure to be utilised when employees refer grievances within the Department. Clause 19 seeks to amend section 42(a), proposing the replacement of “Deputy President” and “Minister,” with “member of Cabinet”.

The Public Administration Management Amendment Bill aims to leverage existing legislation with better coordination across government. It proposes a process of engagement to align norms and standards across the public administration within the framework of existing laws. Clause 1 deals with the amendment of definitions for ease of interpretation and clarification, such as “head of institution”, “national government component” and “organ of state.” Clause 2 seeks to amend section 5 of the Principal Act, noting that the amendment to these transfers may have an impact on the employees’ personal lives and affect their rights, therefore these transfers would require the consent of the employees.

Clauses 3 and 4 would amend sections 6 and 7 of the Act. Provision is made in the repeal clause to retain section 14(4) of the Act which regulates the transfer of functions in the public service. Clause 5 inserts a definition of “organ of state” for sections 6 and 15 of the Act. The definition of “director” is to align with the definition of the Companies Act, 2008. This clause may bring about unintended consequences that would impair the state’s ability to fulfil its obligations, but this was counteracted with the provisions set out in the Amendment Bill.

Clause 6 inserts a new section 8(a) to address the conduct of employees or former employees who participate in the award of work to service providers. This provision seeks to prohibit an employee, who was part of the awarding of work over the prescribed amount, from accepting employment from that service provider or any gratification from that service provider for a period of 12 months. Service providers or employees who contravene that provision were guilty of an offence, and on conviction, would be found liable of a fine of R1 million or an amount prescribed by the Minister of Justice.

Clause 7 inserts the definition of “employee” in section 9 of the Act, as was the definition in section 12(a). This was necessitated as a result of the amendment in clause 5.

Clauses 8 and 9 seek to amend sections 10(2) and 11 of the Act. The amendment to section 10(2) provides that, if the budget allows, compulsory training would be provided to employees as directed by the Minister. The amendment to section 11 creates the National School of Government (NSG) as a national department, as opposed to it being created as a higher education institution. This also provides that the NSG would provide education and training to public entities upon request.

Clause 10 seeks to amend Section 12 of the Act, and Clause 11 seeks to remove the unnecessary burden placed on Cabinet to determine prerequisite and/or mandatory education and training.

Clause 12 repeals section 16(2) of the Act, allowing the Minister of the DPSA to issue norms and standards concerning the promotion of values and principles contemplated in section 195 of the Constitution. Clause 13 would amend section 17(7) of the Act, specifically its reference to “and its members,” as this did not provide for the functions of individual members.

Clause 14 provides new provisions in sections 17(a) and (b). The proposed section 17(a) seeks to address the removal of unjustifiable disparities across the public administration, including public entities. Section 17(b) provides for coordinating mandating processes for collective bargaining in the public administration, including public entities. The provisions adopted in this amendment were subject to the Labour Relations Act (LRA) and any collective agreements, and do not seek to interfere with any existing collective bargaining constructs.

Clause 15 seeks to amend section 18(2) of the Principal Act to provide for making regulations by the Minister of Public Service and Administration after consultation with organised local government. This was to align with the processes currently adopted in the Local Government: Municipal Systems Act.

Clause 16 aims to re-enact section 14 of the Public Service Act to align with clause 2, and to amend section 2(2)(a) of the Public Service Act to align with the amendment in clause 14.

The Chairperson thanked Ms Naidoo for the presentation. She asked Members to note all their comments for clarity for the next process.

Ms M Ntuli (ANC) said that this presentation showed that the Department was working really hard to pick up on the gaps noted in the Amendment. She congratulated the Department on this.

Ms Yoliswa Makhasi, Director-General, DPSA, noted that the Department was ready and waiting to support the Committee throughout this entire process, and would provide whatever data the Committee may require while they engaged with the process of taking these Bills forward to Parliament.

Deputy Minister Pilane-Majake said that these two Bills were being presented to the Committee for processing.

The Chairperson thanked the Deputy Minister for the presentation and released the Department’s team.

Committee matters

The Chairperson then moved on to adopting the oversight report for the Northern Cape and Free State provinces from 27 to 31 March.

Members approved the consideration and adoption of the sets of minutes of 23 and 29 November 2022, 15 March and 20 April 2023, from the sub-Committee.

The Chairperson thanked the Members for attending the meeting.

The meeting was adjourned.