Public Service Amendment Bill and Public Administration Management Amendment Bill: public hearings; DPSA, NSG & PSC BRRRs

Meeting report

Public Service Amendment Bill: COSATU submission

Mr Matthew Parks, COSATU: Parliamentary Coordinator, made the submission to the Committee, and said COSATU welcomed and supported the Public Service Amendment (PSA) bill. It had engaged extensively on both the PSA and the Public Administration Management Act at the Public Service Coordinating Bargaining Council (PSCBC) and the National Economic Development and Labour Council (Nedlac). It was pleased with the consensus it had achieved on the final drafts.

They were, however, deeply concerned that the Department of Public Service and Administration (DPSA) had chosen to delete the entire section governing how the recovery of over-payments would be effected. This was unacceptable, and the DPSA needed to be held accountable in this regard. He urged the Portfolio Committee to intervene and reinsert the agreed wording that government had signed with business and labour.

(See the attached document for details)

Discussion

Dr M Gondwe (DA) asked COSATU how the country would have an ethical public service sector that was characterised by values of honesty. An ethical public servant should be telling the human resources (HR) service if that person was being overpaid in that month.

Ms M Ntuli (ANC) emphasised the importance of upholding the Constitution, and appreciated COSATU’s support of the bill. She reminded everyone of the spirit of "ubuntu" during the legislative process.

Dr L Schreiber (DA) enquired about the limitation of political rights. He expressed his concern that should a public servant in the administration hold a political position whilst working in a senior position in the administration, that person may exert their authority to implement policies in the administration, as dictated by their political influence. If this was limited to the heads of departments and the officials who were reporting to them, he questioned whether a senior political figure working in positions in the administration other than those two categories, could use their political influence to implement policies.

COSATU's response

Mr Parks said COSATU’s view was indisputably clear -- that any overpayment must be recovered. Everyone had had an overpayment of their salaries in the course of their careers because of travel claims, overtime, HR error, etc. In most cases, those were honest mistakes. What COSATU had tried to highlight was that it would be more reasonable if those affected employees could be given a payment plan, instead of being asked to pay back the money at once, similar to the approaches which banks and the South African Revenue Service (SARS) do. The principle that guided the recovery plan should be based on justness and humanity.

He understood Dr Schreiber’s concern to ensure that civil servants would be impartial in their service delivery, but he also highlighted the limitation of the constitutional rights and a blanket ban. COSATU thus supported a limited ban, because a blanket ban would be infringing on people’s constitutional rights. He said it was highly unlikely that a junior public servant would bully a director-general who was 15 to 16 levels higher in terms of superiority in the organisation. Even if that perverse scenario existed, there were measures in place to discipline that civil servant.

Joint Submission by Public Affairs Research Institute, Public Service Accountability Monitor, Ethics Institute and Corruption Watch

The joint submission welcomed the bill, which it commended as an important step in ensuring a vision of a public administration that was professional, effective, impartial etc, as outlined in the Constitution.

These organisations felt that the bill could do more to fit the vision outlined in the National Development Plan (NDP) and the professionalisation framework, particularly regarding regulating the political-administrative interface. Reforms were needed to stabilise the political-administrative interface and to better insulate the public administration from patronage politics.

It was highlighted that there had to be a clearly defined role for the executive in relation to the public administration, with the role of the executive being to define policy, to exercise oversight over implementation and to discipline senior administrators for noncompliance. The role of the administration was to implement policy within the framework of the Constitution and the laws and democratic mandates of the elected ruling party.

This bill supported the move to address major problems highlighted recently by the State Capture Commission. Placing friends and allies in strategic positions across the state was a key mechanism to facilitate state capture. It was thus viewed that broad executive powers of appointment and removal without effective checks and balances had left a lot of space for patronage considerations to enter the public administration. It had blurred the lines in the political-administrative interface. Also, there were tensions between the Public Service Act and the PFMA.

The comments of the joint submission focused on six particular themes:

1. The roles and authorities of Ministers and Members of Executive Councils (MECs);
2. The devolution of authorities to the Heads of Departments (HoDs);
3. The appointment process for HoDs and other senior officials;
4. the Head of the Presidency;
5. A gap around delinking the administrative from the political term;
6. Prohibitions on senior public service officials holding political office.

(See the attached document for details)

Discussion

Dr Schreiber commented that some very good inputs had emerged from the presentation, and the Committee should take them forward.

He supported the proposal on the executive committee membership.  

He suggested that the selection panel for the HoD or Director-General (DG) should include HR experts as well.

Given the rising prevalence of coalition governments, he anticipated that the bill should be prepared to deal with that eventuality. One of the key concerns of those coalition governments was that the President or the Premier, who had the authority to appoint DGs, may come from different political parties from those of the Ministers or MECs. He therefore asked whether it would be necessary to remove the authority of appointment from President and Premiers, and to designate that authority to Ministers and MECs.

Dr Schreiber was of the view that the PSC should maintain a pool of recognised subject matter experts who could serve on selection panels. The head of that selection panel would then be able to constitute a panel out of that pool of recognised experts. He did not think that the PSC should be left out of the discussion, nor should one have a situation where the HoD was exempted from the scrutiny of the panels of experts. He asked how experts could be involved in the selection panels for HoDs.

Ms Ntuli thanked the presenter for the submission.

Response

The Public Affairs Research Institute (PARI) agreed with the prohibition on political office, which this bill aimed to address -- that the public service was steerable in the face of political parties.

It responded that Dr Schreiber's question was being debated by the public in the document which the Public Service Commission (PSC) had recently released. The PSC had proposed that on the point of efficiency, as the President often delegated such authority to Ministers, so it would be better to be legislated in law. PARI did not think that was a good idea, precisely because of the coalition government situation, because that would make it difficult to make appointments across the board given that Ministers or MECs may come from different political parties. PARI thus supported the bill on that in its current form.

PARI agreed that the PSC should play a role in providing subject matter experts, and have a database as such. However, it should still be the ruling party’s prerogative to make appointments in favour of their own political party mandates. The framework was already in the legislation, but it just needed to be enabled.

Submission by Auditor-General of South Africa

Ms Sybil Grootboom, Chief Director: Legal Services, AGSA emphasised the entity’s role in supporting democracy by ensuring transparency, accountability and propriety in the use of public resources.

AGSA’s submission included its comments on the definition of executive authority, the executive authority's (EA’s) power to intervene where the HoD refuses or fails to fulfil his/her power of duty, devolution of administrative powers to heads of departments, limitation on political rights, wrongly granted remuneration.

(See the attached document for details)

Discussion

Ms Ntuli thanked the AGSA for its submission on the bill.

The Chairperson thanked AGSA and noted its support of the bill.

Submission by Helen Suzman Foundation

Mr Chris Fisher, Senior Legal Researcher, Helen Suzman Foundation, made its submission on the bill.

In summary, the Foundation submitted that:

• Heads of department should be placed under a positive obligation to report public servants who did business with the state in breach of section 8(2) of the Public Administration and Management Act No. 11 of 2014 (“PAMA”);
• The PAMA’s Ethical, Integrity and Disciplinary Technical Assistance Unit's mandate should be expanded to include monitoring for, and reporting on, public servants doing business with the state;
• The PAMA’s prohibition on public servants doing business with the state should be extended to their family members, when business was sought from the department in which the public servant was employed; and
• Section 9 of PAMA should be brought into effect, which would oblige senior public servants to disclose their financial interests.

(See the attached document for details).

No Member had made any input.

Submission by the Presidency

Ms Pulani Kole, from the Office of the Presidency, presented the socio-economic impact assessment (SEIA) of the Public Service Act (PSA) and the Public Administration Management Act (PAMA) to the Committee.

She explained the definition of the socio-economic impact assessment system (SEIAS). It was a tool to strengthen policy and lawmaking, to assist decision-making, and had to be applied to policy development as well as to the development of legislation.

The rationale and impact assessments for both bills were provided.

The Office of the Presidency pointed out that:

• The Public Service and Public Administration Management Amendment Bills were instrumental towards the professionalisation of the public service that was based on meritocracy, ethical and internalised humanism.
• The Bills on their own would not achieve the above, but were to be complemented with other initiatives such as recruitment reforms, capacity building, improving mechanisms to curb fraud and corruption, introducing consequence management, and improving service delivery through digitisation.
• Ultimately, the country needed a development-oriented public administration that responds to the people’s needs swiftly, and was accountable and transparent in all its dealings.

See attached for full submission

Discussion

Ms Ntuli thanked the Office of the Presidency for its submission on the bill. She appreciated the fact that the presentation was aligned with the country’s socio-economic state. It also gave a clear background on the motive behind those two bills and a caution to the Committee on the potential risks it may face.

The Chairperson thanked all stakeholders for their submissions. Next week, the Department would provide responses to all those submissions.

That brought an end to the public hearings process for the Public Service Amendment Bill [B13 - 2023].

Adoption of draft Budgetary Review and Recommendation Reports (BRRRs)

The Budgetary Review and Recommendation Reports for the budget votes of the Department of Public Service and Administration: Vote 11 of the DPSA and the Centre for Public Service Innovation was adopted.

Dr Gondwe highlighted the concern of the Office of the Auditor-General, that although the DPSA had some bright ideas for policy design, it fell significantly short on implementation and the monitoring of compliance. She therefore believed that the recommendation section should include that all the AG’s concerns should be attended to, and that the Committee request a progress report on that.

She urged that the discipline management strategy be put in the recommendation section, stating that the Committee required the Department to develop tangible interventions so that the government was spared the need to pay unnecessary and exorbitant funds to people on suspension.

She raised concerns about the lifestyle audits that some departments had outsourced to law enforcement agencies, such as the Special Investigating Unit (SIU). However, it was still the sole responsibility of those departments to make sure that lifestyle audits were being completed. Those departments must not use that as an excuse to steer away from their responsibilities.

Ms Ntuli welcomed the report, but felt that the Department was defending the areas where it had failed, rather than taking a constructive approach to address them.

She urged the Department to expedite its disciplinary processes, without being placed on suspension and milking the state’s coffers.

The Chairperson indicated that Ms Ntuli referred to points 12.5 and 12.6 of the recommendation section.

She noted the Members were satisfied with the report in terms of its content and the language.

The report was duly adopted with amendments.

The Democratic Alliance reserved its position on the report.

Adoption of draft BRRR for National School of Government

Ms M Kibi (ANC) sought clarity on 10.4, and pointed out a typo.

She asked the Content Advisor to indicate on 10.9, where it mentioned the decline in enrolment, from which actual figure the enrolment had declined.

Dr Gondwe was dissatisfied with the funding model as proposed by the NSG, as she did not believe that the proposed model would enable it to be financially self-sustainable.

The Content Advisor pointed out that the NSG was proposing that a certain percentage of the Department’s budget should be directed to the School, but what was lacking was the legislative aspect of it.

Dr Gondwe indicated that training would be the first part that would face budget cuts, given that there was a whole discussion around cost containment.

The content advisor suggested that Committee Members await the concept document and review its content before considering the sustainability of the NSG’s financial model.

The report was duly adopted.

The Democratic Alliance reserved its position on the report.

Adoption of draft BRRRs for PSC

Dr Gondwe sought clarity on 11.1, and asked what informed the date of 30 April 2024.

She suggested that the recommendation should include the vacancy for the Western Cape, as it had done with the one in Mpumalanga.

The content advisor replied that the rationale behind the April 2024 date was because the Committee would not be able to do the fourth quarter until the new financial year arrived.

Dr Gondwe suggested leaving that as part of the legacy of this Committee in terms of formulating this particular framework.

Regarding the Western Cape vacancy, the term of the Commissioner had ended somewhere between August or September, and was in the process of being filled.

The Chairperson suggested changing 30 April 2024 to "the end of April 2024."

Ms S Maneli (ANC) sought clarity on 11.3. She did not think that filling the vacancy in Mpumalanga should be recommended, but should rather be instructive to ensure the filling happened, because that commissioner position had been vacant for four years, since 2019.

Dr Gondwe suggested the content advisor should ask the Speaker to write to the Speaker of the Mpumalanga legislature to get an indication when that position would be filled.

Ms Ntuli asked if this Committee could subpoena the Premier of the Mpumalanga province to explain the appointment.

The legal advisor replied to Ms Ntuli that according to the Public Service Commission Act, the appointment of the commissioner did not go through the office of the Premier, but rather through the office of the provincial legislature. There was no formal mechanism to subpoena the chairperson of the provincial legislature. The Act was explicitly clear that within a certain period before the incumbent commissioner’s term ended, the National Assembly and the provincial legislature should kick start the renewal process. There was no consequence management in the event that the legislature failed to do so. He believed that Dr Gondwe’s suggestion would be more appropriate.

The Chairperson indicated that 11.3 must be more instructive and include the content of the Public Service Act.

The report was duly adopted.

The Democratic Alliance reserved its position on the report.

Condolences

The Committee expressed the Members' condolences on the passing of Mr C Sibisi (NFP).

The Chairperson adjourned the meeting.