Public Sector Management Act Over View
Sidwell Mofokeng
Vice President General
GFIMFO, GACP
OUTLINE OF PRESENTATION
 General Comments – The Constitutionality of the Act
Definition clauses and application of the Act
 Section 1 – Definitions
 Section 2 – Applications and conflicts
 Section 4 – The service charter
 Section 5 – Service Centers
 Section 8 – The establishment of government components
 Section 9 – Transfer of functions
 Section 12 and 13 – Senior Management service and
appointment of SMS
 Section 14 and 15 – Terms and conditions of SMS
 Section 18 – Employment
 Section 24 and 25 Transfer and secondment of staff
 Section 29 and 30 – Collective Bargaining and removal of
disparities
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OUTLINE OF PRESENTATION
 Section 32 and 33 – School of Public Administration and
Management and compulsory training
 Section 35 and 40 Conditions of Service
 Section 45 – Anti-corruption Bureau
 Legislative amendments
 Conclusion
* SALGA (Organised Local Govt) comments on the Bill and Act
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The Constitutionality of the Act
• Section 195 (5) of the Constitution provides that national
legislation regulating public administration may differentiate
between different sector, administrations and institutions
• Section 195(6) provides that the nature and functions of different
sectors, administrations or institutions of public administration
are relevant factors to be taken into account in legislation
regulating public administration.
• Section 151 provides that national and provincial government
may not compromise or impede a municipality’s ability or rights
to exercise its powers or perform its functions.
• The Act does not allow for this differentiation, and in particular
does not allow for differentiation in terms of the objects of local
government.
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The Constitutionality of the Act
•
The objects of local government as set out in the Constitution are as follows:
To provide democratic and accountable government for local communities;
To ensure the provisions of services to communities in a sustainable
manner;
To promote social and economic development;
To promote a safe and healthy environment;
To encourage the involvement of communities and community organisations
in the matters of local government.
•
It proceeds to provide that a municipality must within its financial and
administrative capacity strive to achieve the above-mentioned objects.
• The object of the act contained in section 3 is stated as being the following:
To ensure efficient, quality, collaborative and accountable service delivery by
all institutions to alleviate poverty and promote social and economic
development by inter alia removing and preventing unjustifiable disparities in
conditions of service of employees in institutions across the three spheres of
government
*The Act does not contain a single section addressing either the alleviation of
poverty of the promotions of social and economic development
• The object of the Act does not take into account the Constitutional role of local
government.
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The Constitutionality of the Act
•
Section 153 provides that a municipality must structure and manage its
administration and budgeting and planning processes to give priority to
the basic needs of the community.
• Section 160 of the Constitution provides that a municipality makes
decisions concerning the exercise of all the powers and the
performance of all the functions of the municipality and may employ
personnel that are necessary for the effective performance of its
functions.
• By requiring a municipality to consult the provincial executive when it
wishes to establish a department or unit in the municipality clearly
infringes on the rights of a municipality set out above.
*The opinion is held that the Public Administration act is unconstitutional in
that it impairs the Constitutional right of municipalities to arrange its own
internal affairs and also impairs its ability to employ personnel and to
effectively manage its administration and perform its functions as it needs
to consult provincial government on the structuring of its administration
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Section 1 – Definitions
The Act purports to provide for a single administration, but State Owned
Entities and municipal entities are not covered by the act. This defeats
the object of removing disparities in conditions of service across all
spheres of government.
• The executive authority of a municipality is stated to be the municipal
council, and while the role of the President and Premier is recognized
in the act, the role of the executive on municipal level is not
recognized.
• The definition of government component includes a municipal
component, but the definition is not clear and needs to be improved.
• The definition clause only provides for permanent and temporary
positions, not fixed terms contracts, except for heads of institutions,
yet the SMS contemplated can be appointed permanently or for a
fixed term.
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Section 2 – Application and
conflicts
•
The Act provides that where framework developed in terms of the
Actl and a provision of the Systems Act is in conflict with a
determination in or in terms of such a framework, the content of the
framework will prevail.
* Such a provision and concept is foreign to the hierarchy of
legislation, as sub-ordinate legislation cannot amend or over-ride
national legislation and will thus be invalid.
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Section 4 – The Service Charter
 The Act l requires a service charter to be established by the
Municipal Manager to be included in the IDP, and amends the
Systems Act accordingly.
 The Municipal Manager cannot on own accord develop a part
of the IDP as it is a document approved by the municipal
council. In addition, the IDP in particular determines the plans
and priority areas to ensure effective and efficient service
delivery, which informs the budget.
*The inclusion of this section reflects that the drafters of the
legislation do not have a full understanding of local government
and its internal processes.
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Section 5 – Service Centres
•
The Act requires the establishment of service centres and sites for
the delivery of services across spheres of government.
• COGTA MinMEC is required to coordinate, monitor and support
municipalities to implement protocols for the establishment of the
service centres.
• The areas of concern in this regard are twofold:

1.How will COGTA/ MinMEC be able to monitor and support these
centres as it has no jurisdiction over provincial and national sector
departments?

2.What will the impact of this be on local government- will it create
a second generation of Thusong Centres where local government
must carry the cost for national service delivery?
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Section 8 – Establishment of
Government components
In order to establish a department in a municipality, the following
requirements must be met:
• Feasibility study required to establish or abolish;
• Municipality may only establish or abolish a component after
consultation with MEC for LG and Finance;
• For each component, council must issue directive that list all
legislative provisions that confer powers and impose duties on the
head of the institution and list the powers delegated.
*This impairs the Constitutional authority of a municipality to arrange it
own internal affairs (section 153) but is also in contradictions with the
Systems Act as far as it related to the requirement for the terms of
reference and system of delegations of a municipality.
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Section 9 – Transfer of Functions
 Section 9 only speaks to National and Provincial
Government and excludes Local Government.
 The objective and can therefore only be applicable to
National and Provincial Government.
 If Local Government is to be included in the section, it
should be set out in clear terms.
*The opinion is however held that assignment to local
government should remain to be done in terms of the
provisions of the Systems Act .
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Section 12 & 13 – SMS
Appointments
 The definition senior management service is unclear
 Heads are appointed for a period not exceeding 5 years, which
period may not exceed 6 months after elections. This is in
conflict with the Systems Act
 In this regard theAct does not appear to set a general standard
but on the contrary set standard only applicable in Local
Government.
 The Act also provides that the SMS may be appointed
permanently or for such period of time as the council may
approve
 Remuneration and bonuses of heads on national and provincial
level dealt with, but the Bill is silent on the position in
municipalities.
*The provision discriminates against local government as there is
no parity in the determination of salary and bonuses of heads on
municipal level
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Section 14 & 15 Terms and
conditions of SMS
•
The President may appoint head at municipal level to act in national
provincial or other municipal institution.
•
The Actl also infringe on the right of a municipality as employer as the
President may take decisions on the redeployment of municipal officials,
without providing for the President to consult or interact with the
employer municipality.
•
Minister of DPSA after consultation with Minister of Finance, determine
framework for minimum and maximum remuneration and benefits of the
SMS. The Minister must consult Minister responsible for Local
Government and act in concurrence with Organised Local Government,
if there is no concurrence within 60 days, Minister may proceed.
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SMS members may be employed permanently, temporary, full time
or part time posts additional to the staff complement
All appointments are to be made in accordance with the Systems
Act, while section 56 is being deleted
Section 18 also contradicts the Municipal Systems Act in that it
provides that employees can be appointed in addition to
establishment.
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Section 24 & 25 – Transfer and
secondment of staff
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Employees may be transferred to another institution, if the employee requests
or gives consent or without consent where the transfer is fair. Thus there is no
regard to the rights of the employee.
In case of a transfer the transferring and recipient institutions will agree on
conditions of service, with no reference being made to any input by the affected
employee or his /or her trade union.
Similar provisions apply for secondment.
The recipient institution bears cost of secondment, but no indication is given on
whether a recipient institution will be consulted prior to a transfer or
secondment.
Appeals to the Labour Court on transfers and secondments does not suspend
any decision in this regard, thus seriously affecting the labour rights of affected
staff members.
In addition theAct does not suggest or provide for how implementation
complexities that relates from a transfer from one employer to another will be
managed.
The Act doesn’t deal with the process of consultation in the case of transfers
and secondments, which contradicts the principles of S23 of fair labour
practises as contained in the Bill of rights.
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Section 29 & 30 Collective
Bargaining
•
If Collective bargaining refers to employees per the definition of
employees. Then it will includes the Senior Management Service.
 If a collective agreement is not reached between the employer body and
the trade unions, the Minister may make a determination provided
negotiating procedures have been exhausted and Organised Local
Government consents.
*This is contrary to section 23(5) of the Constitution as alluded to above.
 A trade union may still strike on a determination made by Minister, but
no further right of recourse is allowed for the employer body. This in itself
prejudices the employer body and is unfair.
 Organised Local Government is obliged to introduce terms and
conditions in the Bargaining Council if requested by the Minister. It does
not provide Organised Local Government with any option or input on the
applicability thereof or not. This will compromise the position of the
employer body.
 The framework for consultation should be determined, in particular who
all the consultation, such as with National Treasury, will take place. The
Act does not take into account the requirement of the Systems Act.
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Section 32 & 33 - School of Public
Administration and Management and
compulsory training
•
•
•
A school of public administration and leadership will be
established that will provide training and issue diplomas and
certificates.
The Minister may require that successful completion of specified
education, training and tests are prerequisites for specific
positions. In determining these, the Minister must act in
consultation with Organised Local Government.
The relation between these requirements and the National
Treasury Minimum Competency requirements are not alluded to
but should be addressed.
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Conditions of Services
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Section 35 of the Act also contains prohibitions on doing business with the
state as is already the case for municipal employees
Despite provisions of Systems Act, section 37 provides that an employee
who is nominated as candidate for election has his/her employment
terminated upon certificate of nominations being issued by IEC.
Despite the actl stating that it only provides for frameworks, it deals in
detail with abscondment, and internal appeals post disciplinary processes
following abscondment.
Section 40 provides that when applying for another position, an applicant
must declare any prior action taken against him or her including pending or
incomplete matters. If appointed in the position applied for, the previous
employer may insist that the current employer complete any investigation
and hearing and impose appropriate sanctions. *The opinion is held that
this will unduly prejudice both the employer and employee.
The Act imposes the internal remedies, including the grievance procedure
of the Public Service Commission on all employees, thus again imposing
on the collective bargaining process.
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Section 45 – Anti-Corruption
Bureau
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The act establishes an Anti-Corruption Bureau
The head of an institution may request the Bureau to investigate or
institute disciplinary proceedings in cases of corruption related
misconduct.
This will include the appointment of presiding officers and employer
representatives.
The Process contemplated is completely different to the Disciplinary
Regulations for Senior Managers or the collective agreement on
discipline.
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Legislative Amendments
The Act proposes various amendments to and the repeal of certain section
of the Systems Act:
• The definition of Code of Conduct is amended and the Code of Conduct
for Municipal Employees is deleted
• Section 26 is amended to include the service charter
• Sections 55(1)(e)(h) - appointment, management, training and discipline
off staff as well as the promotion of sound labour relations
• 56 - appointment of managers directly accountable to the municipal
manager
• 57 - employment contracts for MMs and section 56 managers
• 66-72 - staff matters and the power of the Minister of COGTA to issue
regulations or guidelines
are repealed.
• Notable: section 54A and 56A are not deleted
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Conclusion
•
•
•
•
•
•
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Certain sections of the Act still is clearly remain unconstitutional
The bargaining ability of Organised Local Government (SALGA) and
trade unions are seriously limited
Minister of DPSA will legislate LG administrative and employment
matters, no longer COGTA
Future role of COGTA uncertain
Certain provisions does not take into account the unique mandate and
nature of Local Government
Although municipalities remain the individual employers, they will have
very limited powers with regard to employees
Current regulations issued in terms of the Systems Act and MFMA and
conflicting with the Act is not being addressed
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THANK YOU
Institute of Municipal Finance Officers