Director-General Turnover; Integrated Planning Framework Bill; Guide on Governance Practice for Executive Authorities & HODs; with Minister Mthembu

Meeting report

The Chairperson said the Minister and Deputy Minister offered apologies due to the regular Wednesday cabinet meeting. He noted Statistics SA would give a briefing on 11 March on the amendments to the Statistics Act.

Integrated Planning Framework Bill: Department of Monitoring and Evaluation (DPME)
Mr Stanley Ntakumba, Acting Director-General at the Department of Monitoring and Evaluation (DPME), apologised to the Committee that the DPME could not bring the proposed Bill to the Committee meeting due to the urgent timing that the District Development Model had only been adopted in the Sixth Administration.

The District Development Model is an engaged and robust system which is in line with National Development Plan. Although it was still at piloting stage, the Minister had already instructed DPME to draw experience from these pilot sites and engage with traditional leaders and many other stakeholders. He commented on the legislation as transversal as well as enabling DPME's work in monitoring and evaluation. Its aim is to deal with the fragmentation currently found amongst government spheres. He would have been great to have implemented this in 1994 to monitor RDP Housing and so on. He assured Members that the proposed Bill will comply with requirements in the Constitution which requires a socio-economic impact assessment (SEIAS) of a Bill.

The Acting DG said that the Bill does not include the District Development Model (DDM) and one cannot determine if the DDM should be included until the DDM is finalised. The Bill has limitations in terms of definitions and no associated guidelines. He informed Members that there is a high risk of legal dispute and challenge to the existing draft Bill with its limitations and failure to factor Constitutional Court judgments on development planning – this will challenge the legality and constitutionality of the existing Bill. Amendments to the current Bill will require the consultation process to be revisited

The Acting Director-General made the following recommendations to the Committee.
• The existing Integrated Planning Framework Bill is re-drafted to be the Integrated Development Planning Framework Bill (IDPFB).
• The IDPFB is to include, if applicable, the DDM and the Development Planning function shift in the Spatial Planning and Land Use Management Act and the roles and responsibilities of DPME, DALRRD and COGTA
• The IDPFB provide clear definitions and associated guidelines and factor the Constitutional Court judgments related to development planning
• A comprehensive stakeholder engagement exercise be undertaken for the IDPFB and a SEIAS
• The IDPFB to negate any legal challenges to the Bill or its constitutional muster.

Discussion
Ms M Ntuli (ANC) enquired about the engagement level of the District Model at ground level. She requested DPME provide a full guiding document on the possible repeal of existing legislation to help Members stay informed.

Mr M Malatsi (DA) asked DPME to provide a committed time frame so that Committee could hold it accountable according to those timelines.

Dr L Schreiber (DA) commented on the District Development Model (DDM) that Members needed more clarity on where this proposed Bill positions itself within existing legislation. He asked if this Bill would create more bureaucracy especially around integrated planning.

The Chairperson responded that this question is on the agenda of the meeting next week. The key question is to know if the DDM would be under the jurisdiction of the DPME.

Acting Director-General’s response
Mr Ntakumba replied that the District Development Model is a new way of regulating all three spheres of government. The element of a development state is written in the Constitution. The President and the Cabinet both agree that currently what is lacking is the connection between state and people. There was sufficient research evidence that shows the South African government needs more actions in place to ensure the closeness between government and people to pull all efforts from all parts of the society to work together. He rejected the view that it would create more bureaucracy because the running of those piloting sites has debunked that claim. It was a pity that this model had not been implemented earlier in 1994, then the RDP housing issue would have been dealt with in a more efficient manner. The President is a champion of District Development Model and has conveyed the message to stakeholders such as traditional leaders, business sector, civil society. The objective is to find out what the obstacles are between state and business, state and people, state and civil society. The key is to listen to their voices. He assured Members that a collaborative presentation with COGTA on the integrated framework would be presented next week.

The Minister in the Presidency, Mr Jackson Mthembu, arrived and the Chairperson welcomed him.

Further questions
Ms M Kibi (ANC) suggested DPME consult key departments such as Department of Cooperative Governance and Traditional Affairs, Department of Public Service and Administration and National Treasury. She asked about their involvement in the drafting of the Bill. She enquired about the willingness of community to adopt this model.

Ms M Clarke (DA) commented that the District Development Model proved to have failed in rural areas and asked the government to look at its approach which she called not proactive. She commented on the public-private partnerships (PPPs). Many from the business sector would love to do business with government but eventually are forced to give up due to the stringent bureaucratic requirements.

Minister’s response
The Minister asked if the Committee could provide the impediments described in the discussion in writing so that the Department could consult National Treasury. He pointed out the difference between this model from what used to be done. In the past when local government discovered a challenge, it was not obligated on both national and provincial governments to be involved in addressing the issue. This model consolidates the roles of national and provincial governments in planning to work with local government which is the essence.

Responding to how to deal with failures in this model, the Minister replied that the involvement of national and provincial governments depends on what local government needs and the model brings every relevant stakeholderstogether with their roles clearly defined under this model which improves accountability. For instance, at a district level, it asks what the plan is for finance, health, service delivery etc for that district.

The Minister clarified that the custodian of the District Development Model is the Department of Cooperative Governance and Traditional Affairs thus they will present on the DDM. He assured Members that every governmental department has been involved in the drafting process as in line with the practice of any democratic government which follows a public participation process.

Further questions
Ms C Motsepe (EFF) welcomed Minister’s assurance that all governmental departments have been involved in the drafting process. She emphasised the role of citizens in the process and asked the Department to come with a coordinated plan to engage with citizens at the district level.

Dr Schreiber cautioned the Department against the “one size fits all” approach. He argued that Department should not impose this model on the municipalities that are performing well such as his constituency the Stellenbosch Municipality. He asked if this District Model would create another layer of bureaucracy in terms of the government wage bill.

Responses
Minister Mthembu admitted that whilst the rationale for this model was due to the failing municipalities across the country, he acknowledged the performance of those that are performing great such as Stellenbosch Municipality. He assured the Committee that it was not national government’s intention to interfere in those performing municipalities. The Minister also assured them that there would not be an administrative burden in the system. The DDM required the people that are already there; this framework is to make effective use of those who are there. The key challenge is rather how DPME could facilitate COGTA to monitor and evaluate the performance of this model after its implementation. This is where this Bill comes in to define the role that each stakeholder plays to ensure coordination of all three spheres of government in the making of policy and policy implementation. The Minister said that the key term in this process is synergy.

The Acting Director-General appreciated the inputs from the Committee and thanked the Minister for his responses. He assured them that DPME would review the relationship between the proposed Bill and existing legislation. He would also inform them of a concrete time line in due course. He pointed out that it was crucial to table this Bill in Parliament this year. On DPME’s commitment, the Minister’s presence shows the Department’s dedication to this model. The District Development Model was part of the Department’s plan last year, but since then the environment has changed so the Bill has to be adaptive for service delivery. DPME’s earlier consultation with stakeholders indicates there is fatigue in implementation. Thus, the Minister has instructed them to draw lessons from the pilot sites and conduct the socio-economic assessment impact in order to speedily draft the Bill.

Director-General Turnover
The Minister said that the executive authority assesses Directors-General and Heads of Department from time to time.

Mr Stanley Ntakumba, Acting DPME Director-General, noted that the turnover of Directors-General was beyond scope of DPME since it was regulated under the auspices of the Public Service Act. His briefing could only inform Members of the parts which related to the mandate of Department of Planning, Monitoring and Evaluation. The Department of Public Service and Administration (DPSA) could not join for the meeting due to the arrival of a new Director-General in DPSA this week.

Mr Ntakumba explained that DPME had conducted a study in November 2017 to investigate the tenure of Directors-General (DGs) and Head of Departments (HoDs) and understand the challenges behind their tenure. A high turnover of DGs and HoDs suggest administrative turmoil and makes continuity and the allocation of responsibility for service-delivery outcomes challenging.The Political Head is responsible for developing policies and set the political agenda whilst the administrative Head of a Department is responsible for the implementation of those policies. Each of these roles must work closely with the other to deliver on the mandate. It is important to have a harmonious relationship between Political and Administrative Heads.

A 2018 study conducted by the DPME on Tenure of DGs for the period 2006/7 to 2017/18 revealed that:
• 50% of terms of Heads lasted three years or less.
• Average duration of terms of office for DGs/HoDs increased from 39 to 44 months over the period studied.
• North West and Gauteng had the highest turnover rates during the first year of service.
• Northern Cape and Limpopo Province had high turnover rates between one and two years.
• Free State, Mpumalanga and KwaZulu-Natal had relatively high turnover between years two and three.
• The number of male Heads is almost double the number of females. The survival rates of either the male or female were similar.
• The survival rate of the Indian group was the lowest. Africans and Whites had the highest and similar survival rates.
• Till May 2019, the Directors-General of national departments who had left were Departments of Public Service and Administration, Cooperative Governance and Traditional Affairs, Planning Monitoring and Evaluation, Health and Justice. The causes of their departure were revealed to be management and leadership issues; internal politics; maladministration; or corruption.

There seems to be a notable difference in the tenure of DGs towards the Sixth Administration and currently. The high number of Acting DGs/HoDs over the years is a challenge in government, as it contributes to leadership instability.

The Minister commented that he did not want to show disrespect to Parliament. However, the answers that the Committee was seeking on matters such as reshuffling, suspension, re-employment of DGs was not within the DPME jurisdiction. He advised the Committee to ask relevant departments to present on that.

Discussion
Ms Ntuli agreed with the Minister and asked if the Committee could invite DPSA as DPME had suggested in the presentation

Mr Malatsi said although he understood the Minister’s view, it was unfair for Members that the wrong delegation came to advise them. He suggested closing the topic for now and wait for right department to brief them on this item.

The Chairperson agreed to postpone the matter until next week when DPSA is in front of the Committee.

Ms R Lesoma (ANC) pointed out that a new Director-General at DPSA was not a valid excuse. Parliament performs oversight function on DPSA as an institution, not on an individual. She thus recommended the Committee to write an invitation letter to DPSA on this item.

The Chairperson commended Ms Lesoma’s view in concluding the matter.

The Minister advised the Committee to understand the responsibilities of each ministry. The responsibility of appointing a Director-General is under the auspices of Department of Public Service and Administration. His department is involved in certain aspects such as the assessment of Directors-General’s performance. Due to this relation, he proposed Parliament to inform his department when inviting DPSA.

Mr Schreiber asked the Minister when Committee Members could see those signed performance agreements

Ms V Malomane (ANC) said that the provided documents could not help the Committee deliberate and thus need Department of Public Service and Administration to come address the issue.

The Minister responded that the progress of signing those performance agreements was well under way. All performance agreements would be signed before 2019/20 financial year which ends in March.

Guide on Governance Practice for Executive Authorities and Heads of Department
Ms Moira Marais-Martin, Commissioner at Public Service Commission (PSC), provided PSC’s mandate and coverage of key areas of oversight as well as stressed the important value of this Guide. Public servants and senior management need to adopt a value-driven approach informed by the Constitution. The PSC has developed a programme to promote and evaluate the extent of application of the public administration values and principles in the policies, systems and practices of the Public Service.

The role and legal mandate between the executive authority and the administrative government staff was outlined. The Executive/Administrative interface is a complex and dynamic feature which attracts scrutiny from stakeholders within and outside government.The roles and responsibilities of Executive Authorities (EAs) are stipulated in sections 92 and 133 of the Constitution, sections 3(7) and 3A of the Public Service Act (PSA), the PFMA and other legislation that empower Ministers with department and sector specific responsibilities as well as powers they may delegate to appropriate functionaries within departments. Key Human Resource Management functions are conferred to EAs by the PSA, while some are delegated in section 7(3)(b) and 16B to HoDs. Financial Management functions are assigned to HoDs by the PFMA. The interpretation of the separation of powers and roles in the PSA and PFMA is a key source of tension at the political-administrative interface. Further, the hesitancy by EAs and HoDs to delegate authority also impacts negatively on the functionality and effectiveness of departments.The authority that gives effect to the sanction imposed is provided for in sections 16B and 17(1) of the Public Service Act is the President, through the issuing of a formal minute.

The PSC has found in its research that in many instances there is lack of established trust between some HoDs and EAs often for unclear and unsound reasons. In some instances the lack of trust is created by EAs who are uncomfortable and do not want to work with an HoD they did not appoint.There have also been many instances where EAs turn against the same HoDs they have appointed and the breakdown is often reduced to irreconcilable differences. The lack of trust between EAs and HoDs for whatever reason creates a serious strain that obstructs the effective management and day-to-day decision making of departments. 

The Commissioner also spoke on the recruitment and appointment of staff in the private offices of Executive Authorities. It is regulated by the PSA, the Public Service Regulations (Reg 66), read in conjunction with the SMS Handbook and Guide for Members of the Executive, 2019. An EA may only fill vacancies in the Office of an EA or in the office of a Deputy Minister by means of: an appointment in terms of section 9 of the PSA for the term of office of the incumbent EA or Deputy Minister; a transfer in terms of section 14 of the PSA, provided that the employment status of the transferred employees as permanent or temporary, as the case may be, shall remain unaffected by the transfer.

A person may also be seconded in terms of section 15(2) or (3) of the PSA or an employee may also be assigned in terms of section 32 of the PSA to perform the functions of a post in the Office of an EA or a Deputy Minister. These appointments may be made without following advertisement processes, but the suitability of such candidates must still be assessed on the basis of the inherent requirements of the post and as per the outcome of the job evaluation process.

The appointment of special advisors and recruitment procedures for making appointments and assessment of government officials such as HODs and DGs in the form of evaluation panels was also covered.

The Public Service is a regulated space, and any administrative decision taken is regulated by administrative law. Therefore, the PSC Guide (read in conjunction with the Guide for Members of the Executive (2019), PSA and its regulations and other prescripts and frameworks) should serve as a quick reference document for EAs and HoDs, but not a replacement of any primary, secondary or tertiary prescripts.

Both EAs and HoDs must comply with Public Service administrative law; failing to do so, could result in EAs and HoDs being held personally liable for costs emanating from litigation. It is important to note that the PSC, Auditor General, DPME and National Treasury produce oversight reports that provide invaluable information for the improvement of management and administrative practices in departments, as indicated in Chapter 11 of the Guide. EAs and HoDs are encouraged to engage with these documents and should further approach these institutions for additional information, guidance and support where necessary.The PSC is available to engage with EAs, HoDs and other relevant officials in their departments on issues addressed in the guide.

Discussion
Mr Schreiber asked about the power that the Minister of Public Service and Administration has in making appointments. He asked in the context of the Department of Water and Sanitation on DPSA’s power in the appointment of special advisors and whether the Minister has the power to appoint the whole board.

Mr Malatsi asked about the relationship between Public Service Commission (PSC) and the National School of Government on its role and mandates in ensuring the civil service is professional and ethical. He had observed the trend of recycling Directors-General across departments and the connections built over the years between some Directors-General and political principals. He asked what DPSA’s position was when handling Directors-General who leave a post to take up a post at another government department. In his view, any effort to professionalise public service must hold those people accountable.

Ms Clarke commented that to build a capable state, government needs to review the rules on how to do business. She had requested the previous week that the presentation include details about suspension and the cost of suspension for Director-General and Head of Department positions. She also wanted to know if those people had been recycled to other governmental departments.

Ms Malomane asked what government could do about conflicts of interests involving governmental employees conducting business and what can be done to mitigate such conflicts. She wanted to know the International practice on this matter.

Ms Lesoma asked about the financial implications for the department of suspended officials as well as the cost of litigation in resolving such disputes. She asked the PSC's view on the DPSA role in the recruitment of senior management and disciplinary processes.

Ms Motsepe asked for the report to be provided to the Committee.

A Committee member asked if the PSC plays a role in defending those who have been pushed aside by their senior managers because they exposed their senior manager’s unethical conduct.

The Minister asked the Commissioner about the view in government that there needs to be a Head of Administration to specially deal with this matter and asked her views on this.

Public Service Commissioner’s response
Ms Marais-Martin agreed that there were special advisors appointed in the private offices of ministers and premiers. However, there is a process that needs to be followed in their recruitment. First of all, the application needs to be submitted to DPSA. At DPSA, there is a criterion to determine an applicant’s eligibility. This criterion is informed by international practice. On the basis of that, then the minister or premier will make a determination to make those appointments.

On appointing an advisory board, the Commissioner replied that DPSA has a guideline for government and for state institutions. This guideline provides a framework on the suitability of candidates. She used an example on financial disclosure for government employees serving on non-governmental board funded by state institutions. In Limpopo Province, there is a Premier Bursary Trust Fund set up for tertiary students and government officials were serving as board members. After it was discovered that two officials who were on the board were receiving board members’ remuneration, they were told that it was not allowed since for government officials, being a board member is part of their job description as government employees and they have already been paid by the government. However, the Commissioner conceded that she was uncertain how many people in senior management were aware of that guideline. Also she revealed the other challenge to be DPSA’s difficulty in monitoring at the provincial level due to its absence at that level.

On the Public Service Commission’s relationship with National School of Government, the Commissioner replied that the Director-General of National School of Government also reports to DPSA. It is compulsory for every new public servant to complete an induction programme designed by DPSA. At provincial level, the Commissioner suggested asking the Offices of the Premier to report to the Committee on how many new recruits from public service have completed this compulsory programme and hold accountable those who do not comply with that requirement.

On the recycling of Directors-General, the Commissioner replied that consequence management such as disciplinary measures cannot be taken unless a formal complaint is lodged. As a matter of fact, anecdote is insufficient for disciplinary action. Hence, she suggested that appropriate bodies conduct investigation to determine if the allegation from the media was true or false. This is a process government departments need to follow.

The Commissioner said that PSC is In the process of working with DPSA. A unit has been established to determine matters around suspension and disciplinary cases. Although they have not decided on when the deadline should be for the report and how long a person can be on suspension for, she suggested that such information could be found in Department Annual Reports. She cautioned that sometimes departments do not report with honesty suggesting the Committee check that section on suspension for longer than 60 days in Annual Reports to see how many of the staff fall under this category.

The Commissioner admitted to the Committee that the monetary value for suspension and the government’s loss in litigation costs sometimes amounted to an astronomical figure.

The Commissioner pointed out that the role for Public Service Commission is how to deal with matters. At the moment, there is no legal mandate on the appointment of heads of departments and senior managers. She noted the precedents which is practised in some countries that the PSC make appointments of senior managers. In South Africa, the power was removed for the sake of transformation. There has been an ongoing debate on whether or not the power can be reinstated. The Commissioner referred to the National Development Plan in which there is a hybrid model proposal that the Public Service Commission should play a role in the appointment of senior managers. She recommended that it should be the direction in which the country has to go.

The Commissioner there were not enough copies of the Guide at the meeting and said she would ensure that all Committee Members receive the Guide, given the importance of the Committee’s oversight function.

Ms Lesoma commented on the recycling of Directors-General noted by the Auditor-General’s Report and felt that DPSA did play a role in the appointments. She asked what exact role DPSA played in the appointments of Directors-General in the last administration and on what legal basis. She was aware that Directors-General were appointed by a team not by an individual alone.

Dr Schreiber asked if PSC has the mandate to conduct investigation on the advisory board appointment.

The Commissioner replied that PSC does not cover appointments at state-owned entities and local government.

Dr Schrieber said he was making reference to the ministerial advisory committee in Section 76(1) of Water Services Act. Appointments will be effective at DPSA’s hourly rate for consultants. Members will enter into contracts with Department as advisory committee members. He asked if this falls within PSC’s mandate.

The Commissioner responded that it sounds like something that the Commission could look at.

Dr Schreiber said that he would follow up on that.

The Commissioner said that Public Service Commission does mediation work when a grievance arises. If a Minister has a grievance with the Director-General, the Minister would raise this to the PSC through either a straightforward grievance or a request for mediation. PSC has already mediated on quite a few cases.

Minutes dated 20 November 2019 and 5 February 2020 were adopted with amendments before the meeting was adjourned.