Public Service Commission Amendment Bill [B21-2015]: briefing

Meeting report

The Chairperson said the draft Public Service Regulations which was part of the agenda had been removed after the Committee consulted with the Department of Public Service and Administration (the Department), the Committee was informed that the Department was still in the process of consultation, once these have been concluded, the regulations would come before the Committee. The Public Service Commission (PSC) would brief the Committee on the Public Service Commission Amendment Bill. The Committee was interested to know whether there were any financial implications as a result of the amendments. Briefing was only the beginning of the process, after which the Committee needed to allow for the Parliamentary internal processes to unfold. The PSC would only brief the Committee on what they wanted to amend. The Bill came at an important time, since one of the goals of Parliament was to evaluate the impact of legislation passed. When Members approved the Bill, they needed to consider how the Bill would improve the work of Parliament and the lives of ordinary citizens through improved service delivery.

Public Service Commission (PSC) briefing on the Public Service Commission Amendment Bill
Mr Mashwahle Diphofa, Director General, DPSA, said the Public Service Commission Amendment Bill would be presented to the Committee for consideration and further processing. There were two proposed amendments; amendments to Section 4 and Section 5. The Commission would take the Committee through the proposed amendments.

Dr Dovhani Mamphiswana, Acting Director General, Public Service Commission, indicated that the outline of the presentation would include the objects of the Bill, renewal of term, provision to appoint a commissioner to act in the absence of the chairperson and the deputy chairperson. The presentation would also include a discussion on other areas to be addressed through the amendments.

The Commission derived its mandate from sections 195 and 196 of the Constitution, which vested it with the custodian oversight responsibilities in the interest of the maintenance of effective and efficient public administration and a high standard of professional ethics in the public service. Section 196(9) of the Constitution provides that an Act of Parliament must regulate the procedure for the appointment of commissioners. The Public Service Commission Amendment Bill sought to provide for continuity in the PSC with respect to retention of commissioners with experience and with regard to the execution of the PSC mandate. With regard to the renewal of term, although the Constitution provided for the renewal of the term of a commissioner, the PSC Act did not provide for such a process. The Act only provided for the appointed of commissioners and the action to be taken by the President when he/she was required to appoint a commissioner. Therefore in practice, at the expiry of the initial five years of office of a Commissioner, the post becomes vacant and the process prescribed in section 4 of the PSC Act was followed to appoint a commissioner. The proposed insertion into the PSC Act was that:

“The President may, as contemplated in section 196(10) of the Constitution and within 90 days before the expiry of the first term of office of a commissioner, renew the term of that commissioner for one additional term only –

1. In the case of a commissioner who had been approved by the National Assembly, after consultation with the National Assembly; and
2. In the case of a commissioner who was nominated by the Premier of a province, after consultation with the provincial legislature concerned.”

With regard to the provision to appoint a commissioner to act in the absence of the chairperson and the deputy chairperson, although the Act provided for the Deputy Chairperson to act as Chairperson in the absence of the Chairperson, no provision was made in the Act for the designation of an Acting Chairperson. This led to practical challenges in instances where both the Chairperson and the Deputy Chairperson were not available. To address this challenge, the amendment of section 5 of the PSC Act 46 of 1997 was proposed through the following insertion:

If both the chairperson and the deputy chairperson –

1. Are absent, the chairperson shall prior to his or her absence designate one of the commissioners; or
2. Are for any reason unable to act as chairperson, the commissioners present shall elect from among their number a commissioner, to act as chairperson for a period not exceeding 30 days."

Discussion
The Chairperson said the proposed amendments were only for the Committee to take note of, not to discuss. There would be ample time for the Committee to do that later.

Mr M Ntombela (ANC) agreed with the Chairperson that the amendments should be discussed in detail at a later time. There were issues that were inconsistent but he would raise them when time permitted.

Mr S Motau (DA) said it would be useful for Members to be reminded about why the Act was being amended, was it just a matter of housekeeping? All these should be discussed later.

Mr A van der Westhuizen (DA) referred to Section 5(3) of the Act and said the reworded amendment was not clear. In the absence of the chairperson should the power not be allocated to the deputy chairperson? The power being given to the chairperson should also be given to the deputy chairperson to appoint a commissioner to act on behalf of the chairperson and deputy chairperson. Should both the chairperson and the deputy chairperson be absent and have failed to appoint one of the commissioners to act as deputy chairperson, he raised a concern about how the situation would be handled where the chairperson or deputy chairperson were able to get back to the office while the commissioner who was appointed to act for a period of not more than 30 days was still occupying the office. He proposed that should the original person be in a position to take up his or her role, the 30-day designate should lapse.

The Chairperson asked that Members not go into the details of the Bill. After two weeks the Committee would come back and deliberate on the proposed amendments. The Department had a new Minister, and he should therefore also be awarded an opportunity to familiarise himself with the amendments so that the Department could also be part of the deliberations. Members of the Executive sponsored the legislation.

Mr Theo Hercules, Principal State Law Advisor, said the period of renewal for commissioners was for one term, which was five years, as stated in the Constitution. The process for renewal should not follow the process for appointment. In Clause 2, which dealt with the deputy chairperson, he said when the chairperson and deputy chairperson were absent a commissioner would be appointed to act as chairperson for a period not exceeding 30 days. The proposed amendments were consistent with the Constitution and were legally sound.

Chairperson Mabe welcomed Mr Enver Daniels, the newly appointed Chief State Law Advisor. She thanked the PSC, the Department and the legal team for their inputs.

The meeting was adjourned.