Department seeks to amend the legislation governing the public service, but squanders the opportunity for meaningful reform

First published in Daily Maverick.

The Department of Public Service and Administration has introduced two amendment bills – the Public Service Amendment Bill (“PSA bill”) and the Public Administration Management Amendment Bill (“PAMA bill”).

The bills seek to make changes to the legislative framework governing the public service in South Africa. However, as presently formulated, the bills are a missed opportunity for meaningful reform.

The Constitution envisages a public service that maintains a high standard of professional ethics; uses its resources in an efficient, economic and effective manner; provides services impartially, fairly and equitably; responds to people’s needs; and is accountable and transparent. However, corruption, rent-seeking and the politics of patronage in the public service have impeded service delivery and the ability of the State to fulfil the rights enshrined in the Constitution.

This situation is largely attributable to the virtually unfettered power held by political actors over appointments, promotions and removals in the public service, coupled with the governing party’s policy of deploying party supporters to posts in the public service.  Although this policy may have been appropriate to ensure the transformation of the public service and the implementation of the new government’s policies in the early years of our democratic transition, this justification is no longer valid. 

Appointments – particularly for senior-level employees (heads of national departments, provincial departments and government components) – are, thus, dominated by political considerations, notwithstanding that the Constitution requires employment in the public service to be based on “ability, objectivity, fairness and the need for redress”.

There have long been calls for the professionalisation of the public service to counteract this – not least in the National Development Plan 2030 (“NDP”). The NDP recommends that an administrative head of the public service be created, with the responsibility for managing the recruitment, performance assessment and discipline of senior-level employees. The NDP further recommends that the appointment of senior-level employees should occur through a “hybrid system” incorporating both political and administrative elements, while the appointment of lower-level employees should follow a “purely administrative approach” with administrative leaders given full authority to make appointments in their departments.  

Additionally, the National School of Government published a draft National Implementation Framework towards the Professionalisation of the Public Service at the end of last year. The draft Framework recognises that professionalising the public service requires “a non-partisan approach” and calls for the public service to be depoliticised and insulated from politics. Like the NDP, the draft Framework recommends the creation of an administrative head of the public service. It also recommends the involvement of the Public Service Commission in the appointments process for senior-level employees.

The PSA bill falls far short of the comprehensive reform effort needed to professionalise the public service. The PSA bill does not seek to create an administrative head of the public service as recommended, but instead to give more functions to the Director-General in the Presidency. Moreover, the expanded functions are not those contemplated in the NDP. The power over the appointment, performance assessment and discipline of senior-level employees is to remain firmly in the hands of political actors – namely, the President and the relevant Premier. 

The bill does seek to devolve the power over appointment, promotion, removal and other career incidents of lower-level employees from political actors to heads of departments. However, while heads of departments remain political appointees, the politicisation will filter down to lower-level employees.

It is, therefore, recommended that an independent entity play a role in appointments and other career incidents of senior-level employees. The Public Service Commission is a ready-made constitutionally mandated independent entity, which may appropriately perform this task.

The Public Affairs Research Institute in its Position Paper on the Appointment and Removal in the Public Service and Municipalities recommends that the Commission be given the power to plan and administer the appointment process for senior-level employees, including the establishment of the selection committees to recommend appointments. This will more effectively shield the public service from undue political interference in the performance of its functions.  

The PAMA bill is also a missed opportunity. The Public Administration Management Act 2014, which the bill seeks to amend, aims to promote a high standard of professional ethics in the public service and to eradicate and prevent unethical practices. The Act was championed for introducing a ban against public servants conducting business with the State and for imposing obligations on public servants to disclose their financial interests.

However, the ban has not been properly monitored and enforced – leading to year-on-year increases in the number of public servants conducting business with the State. This is arguably a direct result of the scrapping of the Anti-Corruption Bureau, which was proposed in the initial 2003 bill, and its replacement with the Public Administration Ethics, Integrity and Disciplinary Technical Assistance Unit (“Integrity Unit”) in the version of the bill that was ultimately passed.

The Anti-Corruption Bureau was to have had far more extensive powers, including the power to investigate corruption-related misconduct and to institute disciplinary proceedings if the relevant institutional head failed to do so within a specified time period.

To ensure that the ban is effectively monitored and enforced, the Integrity Unit’s powers should be expanded to resemble those of the proposed Bureau, and its structural and operational independence should be secured so that it can perform this oversight role without undue political interference.

Meanwhile, the Act’s disclosure obligations have not yet been brought into effect. Only “designated employees”, including senior-level employees, have an obligation to disclose their financial interests, in terms of the Public Service Regulations 2016. The Act’s disclosure obligations imposed on all public servants should be brought into effect as soon as possible, and expanded in the bill to more effectively safeguard against corruption.

Fortunately, the process to pass the bills into law is at an early stage and there is still an opportunity for real reforms to be made.

Catherine Kruyer
Legal Researcher
Catherine@hsf.org.za

Zeenat Emmamally
Legal Researcher
Zeenat@hsf.org.za