Role & Independence of Public Service Commission; Review of Chapter 9 & 10 Institutions: briefing by Minister of Public Service

PUBLIC SERVICES PORTFOLIO COMMITTEE
21 June 2006
ROLE AND INDEPENDENCE OF PUBLIC SERVICE COMMISSION; REVIEW OF CHAPTER 9 & 10 INSTITUTIONS: BRIEFING BY MINISTER OF PUBLIC SERVICE AND ADMINISTRATION

Acting Chairperson: Mr M Baloyi

Documents handed out:
Powerpoint presentation on Role and Independence of Public Service Commission

SUMMARY
The Minister of Public Service and Administration gave a report on the history and current legal framework of the Public Service Commission. The 1996 Constitution had laid the way for a single Public Service Commission, and gave it a new role, without a range of executive powers, of an independent constitutional body performing monitoring, investigating and reporting functions. The Minister outlined the legislative reforms supporting the constitutional requirements, and summarised the current framework, structure and functions. She indicated the provisions aimed at ensuring independence, and summarised the functions of the Commission. She noted that a review of institutions supporting democracy was pending. She stressed that independence was not a matter regulated only in law, but related also to the manner, quality and contribution made in conducting its work. She suggested how independence could be enhanced.  Members queried the timeframes for appointing new commissioners, the necessity to expand its role to cater for the single public service, the scope of its functions, and the review process. 

MINUTES
Mr M Baloyi noted the apologies of the Chairperson of the Committee and announced that he had been asked to act as Chairperson for this meeting. It was important for Members to remind themselves of the independence, role and function of the Public Service Commission (PSC) to ensure that they played their part in accelerating public service delivery in terms of the Constitution.

Presentation by Minister of Public Service and Administration on the Role and Independence of the Public Service Commission (PSC)
The Hon. Minister of Public Service and Administration, Ms Geraldine Fraser-Moleketi, reported that the discussions on the Interim and Final Constitution had recognised a clear need for independent bodies that would have original powers, fixed in the Constitution, to ensure development of democracy. The preamble and founding provisions of the Constitution provided for commitment to valuing the supremacy of the Constitution and the rule of law. It was clear that public administration was one of the fundamental areas in which transformation must occur, and therefore there was a need for a Public Service Commission that was independent, impartial, and able to exercise its powers in the interest of maintaining effective public administration.

The Minister outlined the historical context of the PSC and pointed out the main differences in its role in the interim and final Constitutions. The 1996 Constitution had set a single PSC, but nine commissioners were nominated by their respective provincial Premiers. The PSC’s role no longer included executive powers. It was primarily an independent constitutional body performing monitoring, investigating and reporting functions.

The PSC had 14 Commissioners – five recommended by the National Assembly and one commissioner for each province, nominated by the Premier. They held office for five years, renewable for one further term. The PSC reported at least once a year to the National Assembly, and to the provincial legislatures on provincial activities, and provided evaluations on compliance with values and principles of the Constitution. The Constitution stipulated that the PSC must be independent, impartial, regulated by national legislation, that other organs of state must protect its independence, impartiality, dignity and effectiveness and that no person or organ of state should interfere with its functioning.  Similar provisions applied to Chapter 9 Institutions. The Public Service Commission Act (PSCA) laid down the processes for appointments, inspections and access to documents and inquiries, rule making and delegation powers for the PSC, and provided criminal penalties for hindrance or obstruction of its duties. The Minister summarised the functions of the PSC in terms of the Constitution, and noted that it could, of its own accord, or on receipt of a complaint, investigate and evaluate application of personnel and public administration practices, and report to the relevant executive authority and legislature, investigate grievances of public service employees regarding official act or omissions, and recommend remedies, monitor and investigate adherence to applicant procedures in public service and advice national and provincial organs of state on personnel practices in public service.

The pending review of the Chapter 9 Institutions would include a review of the PSC. The review would focus on mandates, employment arrangements and budgeting or funding. Any legislative changes following that review would be decided upon by Parliament. The PSC had previously formed the subject of a Presidential Review Commission, which culminated in proposals to revise the PSC’s role.

The independence of the PSC was protected by the Constitution, by powers relating to inquiries under the PSCA, and by the criminal penalties for hindrance or obstruction of its functions. It was given administrative support by the Office of the Public Service Commission (OPSC), with the Chairperson of the Commission being the executing authority. Independence also could be measured by the way in which the functions were performed. In this regard the Minister noted that the President’s Budget Vote speech had paid tribute to the way it had asserted its role, and she recognised the role of the current Director General of the Commission under the leadership of the Chairperson.

Possible ways to enhance independence could include receiving the budget directly by way of allocation from Parliament – although the Minister was not sure that this would have a direct effect on independence. Unlike Chapter 9 Institutions, its secretariat was a public service department (although there were historic reasons for this) with the OPSC head  appointed by the Executive. Appointment of the secretariat by the Commission could strengthen its independence. Its functions could be reviewed by incorporating grievance procedures for employees, in view of the advanced labour remedies set out in the Labour Relations Act and by amending its advisory function, which appeared at variance with its non-policy, non-regulatory and non-executive role. It needed clarity on its power to give directions, and needed to address the overlap and duplication of some functions. its composition could be problematic since it was not considered duly constituted if a vacancy occurred.

The Minister stressed that whatever considerations were made into the composition of the PSC, the need for its existence should never be questioned, and it should always be viewed in terms of the needs of public services and administration. There was some pressure for it to extend its role also to local government, and a concomitant need to consider its role in the long term.

The Minister summarised that the PSC was similar to Chapter 9 Institutions. It did have a broad mandate, which meant that there was some duplication, and therefore there was a challenge on the Commissioners to ensure that they developed their functions in line with the Constitution. Independence should not necessarily prevent collaboration with the Department of Public Services and Administration (DPSA). Sometimes the PSC did perform a quasi-executive function, and there was a danger that it might be perceived as not sufficiently independent. The results of the Chapter 9 Review process would give an opportunity to Parliament to reassess the role and functioning of the PSC, and ensure that its role was enhanced to achieve separation of powers and the deepening of democracy.

Discussion
The Acting Chairperson noted that it was fundamental that no person or organ of state should intervene with the functioning of the PSC. The Minister had clarified its role in the historical and current context, and had stated the challenges succinctly. Independence was a complex concept needing to be seen in context.

Mr I Julies (DA) asked how long it took to appoint new Commissioners, as he was concerned that the PSC could not function whilst there was a vacancy.

The Minister responded that, depending upon the type of vacancy, the process of appointment may have to include provincial MECs or  Parliament. In all cases the appointments were made as quickly as possible. Prof Stan Sangweni (Chairperson, PSC) added that no timeframes were set out in the legislation, and that so far there had not been undue delays in any of the processes. There was one instance where a Councillor died eight months before expiry of the term of office, when the PSC had decided to wait until expiry of the term to make a new appointment.

Mr Julies wondered if there should not be some system of appointing “alternates” to cater for this situation.

The Minister and Prof Sangweni did not consider this necessary, nor was it legislated for.

Mr K Khumalo (ANC) enquired who was performing the Chapter 9 review.

The Minister responded that the Chapter 9 Review involved two processes; one at the level of Parliament, and the other at the level of the Minister of Public Service and Administration. In terms of the ministerial process, she commented that the Executive should not be perceived as attempting to strip the powers of the Chapter 9 and 10 Institutions, and therefore the review would be conducted on the lines stated in her presentation. The review was expected to assess whether the current and intended constitutional and legal mandates were appropriate to the South African environment, whether the use of resources was justified in terms of the outputs and contribution to democracy, whether the employment arrangements of the Commissioners and secretariat were appropriate, and whether  institutional arrangements promoted coherent and accountable governance. The Review would further seek to improve the co-ordination of work between institutions, government and civil society, and to examine the funding models to ensure accountability and independence. Some of the Institutions had commented that the Review was seen as conducted “by the executive” and these comments had been taken seriously.

Mr K Khumalo noted that the requirement that “no person or organ of state” could interfere in the functioning of the PSC was an absolute provision and he wondered if the review process should also examine this provision.

The Minister noted this comment, and stated that this issue might be considered by Parliament in examining the outcome of the Review.

Mr K Khumalo reported that many complaints were received about the lack of capacity and effectiveness of local government. He asked whether the review would also examine these processes and the question of intergovernmental relationships. 

The Minister confirmed that the governance and administrative cluster had focused on a single public service. As PSC drew its mandate from the Constitution, it would have to take any developments in the public service as a whole into account. She was sure that PSC would rise to the challenge of ensuring delivery through seamless government across all spheres. 

Ms P Mashangoane (ANC) enquired whether the PSC’s powers and functions were wide enough.

The Minister replied that the powers, as set out in the Constitution, were quite extensive. She pointed out that it could propose measures, give directions, report on activities, give directions and advice, and provide evaluations on compliance. Whether it should have the power to insist upon compliance was debatable. The PSC performed its role in collaboration with Parliament. If it reported on non-compliance, then one must ask whether Parliament was exercising its oversight role correctly. The Portfolio Committees should also assert their roles when bodies and institutions reported to them,

The Acting Chairperson paraphrased this comment by saying that the PSC acted as the tongue to complain to a body having teeth, which should use those teeth to bite. He commented that if the Portfolio Committee did not perform its function then it hindered the PSC. The Committee must play an active role, and should consider what it could contribute to the Chapter 9 Review.

The Minister agreed, emphasising that the PSC did not play an executive role.

Prof Sangweni thanked the Committee for the opportunity to attend the meeting. The Commissioners had found the Minister’s comments very useful in helping them to “unpack” their own roles. Although the Commissioners had begun to examine the concept of their independence they had not yet come up with any final conclusions. He agreed that challenges included  the overlapping, anti-corruption monitoring and financial and fiscal security.  The PSC also looked to an internal review. The PSC wished to position itself as a dynamically independent body.

The Minister summarised that she had initially been concerned as to the reasons for the meeting, but was appreciative to the Committee for the opportunity to engage and to look closely at the PSC and its role in deepening democracy. Although the PSC – and indeed all the Chapter 9 Institutions – were independent, they should be accountable, and Parliament’s role should be deepened by collaboration with them. She was gratified that this meeting had been held to assist the debate whether the role of the PSC had been optimised. There was a broad range of interpretations on what independence should mean. She did not agree that the PSC should perform a watchdog function, as she did not consider this was necessarily appropriate in building democracy. Parliament, unlike the Executive, did not have limitations on the way that it could take the debate forward, and she therefore thanked Members for their contribution and their commitment to the support of national democratic institutions.

The meeting adjourned.