PUBLIC ADMINISTRATION MANAGEMENT BILL

PRESENTATION TO THE PORTFOLIO COMMITTEE FOR PUBLIC SERVICE &

ADMINISTRATION

6 NOVEMBER 2013

INTRODUCTION

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THE PAM BILL

The PAM Bill is the longest serving Bill that is essential

for creating an effective Public Service as contemplated

in the Constitution, our own negotiations with labour, the

NDP, as encapsulated in the service charter as signed

with labour, an effective public service as required by all

our citizens, and most importantly a public service that

members of Parliament have been demanding ever since

my appointment.

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DEVELOPMENTS OF THE BILL SINCE 2002

• 2002: : It became clear the Bill was an urgent necessity.

2005: The DPSA began work on the Bill

May 2006: Cabinet approved proposals regarding the establishment of a Single Public Service

July 2007: Cabinet approved a process of consultation on the first draft Bill

May 2008: The Bill was passed by Cabinet

May 2008: The draft Public Administration Management Bill was introduced in Parliament, familiarly known as the ‘Single Public Service Bill’

November 2008: Withdrawal for extended consultation

July 2012: Bill was revived and re-crafted in the mold of the Constitution

May 2013: Cabinet approved the draft bill for public comments

31 May 2013: Publication of the bill for public comments

June 2013: At the request of the Premier of the Western Cape period of consultations was extended for an extra month

July 2013: Closure of public comments

Consultations with Cabinet

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WHAT CHALLENGES DO WE SEEK TO ADDRESS

Build a Framework Legislation for a seamless Public Administration.

Address challenges raised by the Auditor General, HSRC and other State entities on

the problems and challenges faced by government.

Respond to the NDP Diagnostic Report – the Bill provides elements for the building

of a capable state.

Aligning government with the challenges pointed out by Auditor General.

Ensure there is a streamlined set of values throughout all three spheres of

Government.

Take on board concerns raised by Members of Parliament e.g. concern of officials

doing business with the State.

Equitable distribution of resources across the three spheres of government.

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PUBLIC SERVICE COMMISSION REPORTS

• The Public Service Commission has identified the following priority areas to improve the quality of service delivery and a development oriented public administration management system:

– Enhanced leadership and performance management

– Improve accountability through more effective financial management

– Use of people better through improvements in Human Resource Management

– Root out corruption and mal-administration by addressing ethics and integrity

– Improving performance in a developmental state

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PUBLIC SERVICE COMMISSION REPORTS

• The Public Service Commission furthermore indicates:– Financial disclosures for 2009/10 showed that level of compliance by

SMS members was not improving. It is registered that disclosure had not been more than 50% over the past 3 years and the provinces that registered the lowest compliance rate were North West (39%), Gauteng (21%) and Free State (18%)

– 660 financial misconduct cases reported by national departments for 2011/2012 (primarily fraud and financial mismanagement)

– 583 financial misconduct cases reported by provincial administrations for 2011/2012 (primarily fraud and financial mismanagement)

– Total cost of financial misconduct reported at national and provincial level is R229 866 763.15 of which R149 407 626.99 is national for 2011/2012

– Out of 1243 financial misconduct cases reported, 953 resulted in guilty findings against employees.

– Out of the 953 cases, criminal proceedings were instituted in 305.

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AUDITOR GENERAL REPORT: A GRIM PICTURE

• The march towards wholesale clean administration:– Progress towards clean audit has been slow with the number of clean audits

remaining at the same low level of 5% for past three years.

– The overall audit outcomes regressed.

– Efforts to address the root causes and remove impediments to total clean administration have not yet had the desired effect on audit outcomes due to lack of capacity in local government. These affected the ability to account for public resources administered on behalf of society.

– At 73% of the auditees, vacancies in key positions and key officials without the minimum competencies and skills continued to make it difficult for these auditees to produce credible financial statements and performance reports.

– Municipalities are not always using opportunities available for skills development.

– 70 % of the auditees lack consequences for poor performance and transgressions. This slowed down improvement in local government audit outcomes.

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LIMPOPO INTERVENTION PROGRESS: A SNAPSHOT

• The National Treasury risk assessment identified the following departments as priority areas for criminal investigation by the Anti Corruption Task Team:– Education;

– Transport and Road Agency of Limpopo;

– Health and Social Development

– Public Works; and

– Provincial Treasury.

• Out of the 27 forensic reports, there are 13 criminal investigations and a further 13 are in court at various stages of criminal proceedings.

• 22 forensic reports produced to facilitate disciplinary proceedings by the DPSA. 2 HODs have been suspended and 45 officials charged.

• There were officials who simply resigned before the conclusion of disciplinary processes. This makes disciplinary processes vulnerable. There is therefore a need for the DPSA to make these processes efficient and effective.

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GOVERNMENT SUMMIT OBSERVATIONS

• The NDP has elevated the task of building a capable and developmental state to a higher priority. Therefore there is a need for a professional and competent civil service.

• The NDP also has principles that are rooted in the Constitution. They are informed by an understanding of the role of the state as a key agent of transformation acting with and on behalf of the poor and the most marginalised.

• Proposals for transforming the public service include the need for accountability, professionalism, for service to the citizenry, for being neutral in relation to party political contestation, for public servants to be dynamic change agents seeking to change society while adhering to the law at all times, for public servants to be prudent with the use of public funds and to be responsible stewards of the public trust.

• Three main problems identified by NDP: – High policy turnover– High turnover of staff especially senior and technical staff– Critical shortage of technical skills and no effective staff development strategy.

CONSTITUTIONAL IMPERATIVES

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THE CONSTITUTION AS POINT OF DEPARTURE

Our point of departure is Chapter 10 section 195 of the Constitution which deals with the management of public administration and states the following:

“(1) Public Administration must be governed by the democratic values and principles enshrined in

the Constitution:

a) A high standard of professional ethics must be promoted and maintained;

b) Efficient, economic and effective use of resources must be promoted;

c) Public Administration must be development-orientated;

d) Services must be provided impartially, fairly, equitably and wthout bias;

e) People’s needs must be responded to and the public must be encouraged to be involved in policy making;

f) Public administration must be accountable;

g) Transparency must be fostered by providing the public with timely, accessible and accurate information;

h) Good resource management and career development …

i) Public administration must be broadly representative of the South African people …”

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THE CONSTITUTION : CONTEXT

Chapter 10 section 195 of the Constitution continued:

“(2) The above principles apply to –

a) Administration in every sphere of government;

b) Organs of state and;

c) Public enterprises.

(3) National legislation must ensure the promotion of the values and

principles listed in subsection (1).”

This national legislation is what this Bill seeks to achieve.

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THE CONSTITUTION : CONTEXT

The scheme of the Constitution provides that resources shall be shared

equally in society, having regard to the history of the country.

In order to do this, Government needed to be structured in accordance with

this scheme of the Constitution. This is not the case. For example, the

best areas in the country are those serviced by national and provinical

governments. Those areas serviced by local government are left out.

Therefore there is a need for government to ensure that there is an

equitable distribution of resources across the country.

Local government is characterised, inter alia, by a lack of skills, infrastructure

problems, and the highest level of rollovers.

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THE CONSTITUTION CONTEXT

In the management of public administration government at all levels must

create the conditions necessary to realise the promise made to improve the

quality of life of people; the freeing of potential of each person; the equal

protection by the law of every citizen. Equally important, public

administration must be based on the will of the people.

These values and principles in section 195(1) cannot be limited only to the

public service. They are values and principles informing the whole of public

administration. This includes local government. This has not always been

properly indicated and expressed in the way public administration is

managed. The PAM Bill therefore seeks to correct this and ensure that

future governments are able through programmes to intervene directly and

with purpose to improve lives.

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INTERGOVERNMENT INTERFACE

Addressing local government concerns– The Bill does not undermine or interfere with the Constitutional

mandate of local government. Rather it seeks to ensure compliance with the Constitution by complimenting public administration that is integrated across the three spheres of government.

– The Bill also does not undermine or interfere with the powers of the Provincial Governments.

– The Bill ensures the realisation of the values and principles contained in section 195 (1) of the Constitution.

– Each Clause in this Bill therefore seeks to address / solve a particular problem – this is about the management of public administration.

PROCESS AND CONTENT OF THE BILL

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PUBLIC COMMENTS

Consultations started prior to the Bill’s adoption by Cabinet.

The Bill was published on 31 May with 28 June 2013 as deadline for submission of comments.

Due to public demand the deadline for comments was extended to 31 July 2013.

Submissions were received from: The Minister of Finance; The Minister of Performance Monitoring and Evaluation, and The Minister for Cooperative Governance and Traditional Affairs.

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PUBLIC COMMENTS CONTINUED

Extensive consultations were embarked upon at all levels27 written submissions received from institutions;Numerous individuals;Written submissions from Government:

National Treasury; Department of Higher Education and Training; Department of International Relations and Cooperation; Department of Performance Monitoring and Evaluation; Department of Environmental and Water Affairs; Department of COGTA; Office of the Premier Kwazulu-Natal; Western Cape Premier; Free State Provincial Administration; Mayor of Cape Town; DG of the Western Cape; and University of Nelson Mandela.

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PUBLIC CONSULTATIONS

• Consultations within Government: Department of Home Affairs; Department of Science and Technology; South African Police Services Limpopo Provincial Administration; Free State Provincial Administration; North-West Provincial Administration, Eastern Cape Provincial Administration; Mpumalanga Provincial Administration; Northern Cape Provincial Administration; Gauteng Provincial Administration; HRD Council; Auditor-General South Africa; Public Service Commission; PSETA; SALGA; MUNIMEC Western Cape; and National Development Commission; and Johanesburg Metro.

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PUBLIC CONSULTATIONS CONTINUED

• Further written submissions were received from the following Municipalities: Ethekwini Municipality; Emalahleni Local Municipality; City of Cape Town; and Mossel Bay Municipality.

Consultations and written submissions from Labour: IMATU; FEDUSA; COSATU; NAPTOSA; and SAMWU.

Three workshops with various legal experts. Workshop held with legal advisers of Ministers.

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PUBLIC CONSULTATIONS CONTINUED

Written submissions from the following Organisations: Corruption Watch; Public Service Accountability Monitor; National Steering Committee of Municipal Managers; Cape Chamber of Commerce; Public Servants Association; Municipal Retirement Organisation;

Consultations were held with the following Organisations: National Labour Relations Forum; Community Development Workers Coordinating National Task Team; Major Municipalities Human Resources Forum.

Mpumalanga Provincial House of Traditional Leaders were consulted. Furthermore, the Nedlac consultation process that commenced in

January 2013 was finalsed on 26 Septemner 2013. Following the consensus on these submissions and consultations, a

revised Bill was developed to reflect the public comments. This Bill therefore is the net outcome of the product of the consultations.

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PUBLIC ENGAGEMENT

MPSA breakfast with the Press Gallery Association; MPSA Budget Vote Speech Tshwane Branch of the Black Management Forum Breakfast with academics TNA Business breakfast post Budget Vote Speech TNA Business breakfast on the launch of the Service Charter DENOSA Nursing Conference Launch of the National School of Government

CONTENT OF BILL

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DEFINITIONS

DEFINITIONS (Clause 1)•"employee" means a person appointed in the public administration, but excludes a person appointed as a special adviser in terms of section 12A of the Public Service Act and a person performing similar functions in a municipality•"family member", in relation to any person, means his or her parent, sister, brother, child or spouse―

(a) including a person living with that person as if they were married to each other, namely a spouse or life partner;

(b) whether such relationship results from birth, marriage or adoption;

(c) including any other relative who resides permanently with the member; and

(d) including any other relative who is of necessity dependent on such person.•"institution" means a national department, a provincial department, a municipality or a national or provincial government component;•"public administration" means the public service, municipalities and their employees

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CONTENT OF BILL – SCOPE OF APPLICATION

APPLICATION OF BILL (Clause 2)

• Bill applies to the public administration. Section 195(2) of the Constitution provides that the principles governing public administration applies to—

(a) administration in every sphere of government;

(b) organs of state; and

(c) public enterprises

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KEY AREAS OF THE PAM Bill

MOBILITY OF STAFF WITHIN PUBLIC ADMINISTRATION (Clauses 5-7)

• Greater mobility of staff and the transfer of functions from one sphere to another is desirable in certain instances to allow services to be delivered at the most appropriate sphere and to enable deployment of staff to where they are most needed in government.

• To enhance mobility within the public administration, Bill provides for transfer of employees with their consent.

• Where there is skills shortage, employees with necessary skills and knowledge may be seconded, without their consent, if secondment is justified.

• Bill also provides for transfer of employees upon transfer or assignment of function

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KEY AREAS OF THE PAM BILL – PROHIBITIONS & DISCLOSURES

PROHIBITIONS ON CONDUCTING BUSINESS WITH STATE AND DISCLOSURE OF FINANCIAL INTEREST (Clauses 8-9)• As part of promoting professional ethics and integrity by employees, Bill

prohibits employees from conducting business with State or being a director of a public or private company conducting business with State

• Failure to comply with this prohibition constitutes serious misconduct which may result in termination of employment

• Employees are required to disclose their financial interest and the financial interest of their spouses and persons living with them as if they were married to each other (for purposes of this clause "employee" includes persons contemplated in section 12A of Public Service Act and a person performing similar functions in a municipality)

• Failure to comply with the obligation to disclose financial interest as required constitutes misconduct

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KEY AREAS OF THE PAM BILL – CAPACITY DEVELOPMENT

CAPACITY DEVELOPMENT AND TRAINING (Clauses 10-13)

• Bill seeks to promote capacity development of employees by providing for establishment of National School of Government

• School must, through education and training, promote progressive realisation of values and principles governing public administration and enhance quality, extent and impact of development of human resource capacity in institutions

• Bill requires head of institutions, through education and training of its employees, to develop human resource capacity in their institutions to level that enables institution to perform its functions in an efficient, quality, collaborative and accountable manner

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KEY AREAS OF THE PAM BILL- INFORMATION TECHNOLOGY

USE OF INFORMATION AND COMMUNICATION TECHNOLOGY IN PUBLIC ADMINISTRATION (Clause 14)

• Bill requires a head of an institution to acquire and use information and communication technologies in a manner which-

–leverages economies of scale to provide for cost effective service; –ensures the interoperability of its information systems with information systems of other institutions to enhance internal efficiency or service delivery; –eliminates unnecessary duplication of information and communication technologies in the public administration; and ensures security of its information systems

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KEY AREAS OF THE PAM BILL – ETHICS & INTEGRITY

ETHICS, INTEGRITY AND DISCIPLINE (Clause 15)

• Building a public administration grounded by professional ethics, integrity and discipline is critical for realisation of values contained in section 195(1) of the Constitution

• Bill establishes a Public Administration Ethics, Integrity and Disciplinary Technical Assistance Unit to provide, amongst others, technical assistance and support to institutions in all spheres of government regarding the management of ethics, integrity and disciplinary matters relating to misconduct within public administration.

• The Bill requires Minister to report to Parliament twice a year on activities of Unit

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KEY AREAS OF THE PAM BILL – NORMS AND STANDARDS

MINIMUM NORMS AND STANDARDS (Clause 16)

• Bill seek to empower Minister to prescribe minimum norms and standards on-

• promotion of values and principles referred to in section 195(1) of Constitution;

• capacity development and training;

• information and communication technologies in public administration;

• integrity, ethics, discipline including disclosure of financial interests;

• measures to improve effectiveness and efficiency of institutions;

• disclosure of disciplinary action; and any other matter necessary to give effect to administration or implementation of Bill.

• Minister must prescribe minimum norms and standards promoting values and principles referred to in section 195(1) of Constitution, in consultation with relevant executive authority. This allows for a degree of uniformity in relation to norms and standards across public administration which should have a positive impact on service delivery

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KEY AREAS OF THE PAM BILL – OFFICE OF STANDARDS & COMPLIANCE

OFFICE OF STANDARDS AND COMPLIANCE (Clause 17)

• Bill establishes within public administration an Office of Standards and Compliance whose objects are to promote and monitor compliance with minimum norms and standards set by Minister, taking into account that the three spheres of government are distinctive, inter-dependent and interrelated

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KEY AREAS OF THE PAM BILL - REGULATIONS

REGULATIONS (Clause 18)

• Bill empowers Minister to make regulations on, amongst others, matters required or permitted by Bill to be prescribed

• Minister must make regulations in so far as they apply to municipalities in consultation with Minister responsible for local government, Minister responsible for Finance and organised local government

• Minister must publish proposed regulations for public comment for period of not less than 30 days in the Gazette

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KEY AREAS OF THE PAM BILL - REPEAL & AMENDMENTS

REPEAL AND AMENDMENT OF LAWS (Clause 19 and the Schedule)

• Bill repeals-

sections 4, 14 and 15 of Public Service Act, 1994 (Proclamation No. 103 of 1994), and

Transfer of Staff to Municipalities Act, 1998 (Act No.17 of 1998)

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AMENDMENTS INFORMED BY COMMENTS RECEIVED

Constitutional powers of the three spheres: Bill has been amended to recognise the Constitutional interdependence, inter-

relatedness and distinctiveness of the three spheres of government.

Transfers – Bill provides for transfer with consent only

Collective Bargaining provisions have been removed: the current collective bargaining arrangements continue to exist

Establishment of government components at local government have been removed

Employees standing as candidates for elections has been removed This will continue to be regulated under the Public Service Act and Municial Systems Act

Cooling off period: the provision dealing with cooling off period has been removed

Amendment to the Public Service Commission Act to give direction – this provision has been removed since it would be dealt with through amendments to the Public Service Commission Act

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CONCLUSION

The PAM Bill is a framework legislation which is responding to the Constitution.

This Bill seeks to solve the problems that you as the representatives of the people have identified.

Government has listened – there have been extensive consultations at all levels with all stakeholders.

Following the consensus on these submissions and consultations, a revised Bill was developed to reflect the public comments; the Bill has reduced from 135 pages and is now 17 pages.

This Bill therefore is the net outcome of the product of the consultations.

The Bill will be implemented in a phased manner.