ADV TERRY MOTAU SC
IMRAAN MAHOMED
SMS HANDBOOK
STATUS & EFFECT IN LAW
Senior Management
Service - Handbook
STRUCTURE OF PRESENTATION
Introduction – what is the SMS Handbook?
Legal Status of Handbook.
Where does the Handbook apply?
Litigation emanating from SMS Handbook :
1. Precautionary Suspensions;
2. Heads of Department.
 Performance Management & Development
(Chapter 4).
 Conclusion.




What is the SMS Handbook?
• Prepared by: Dep of Public Service &
Administration
• Ms Fraser-Moleketi (2003) described purpose of
Handbook as being set out: “…., in clear and
concise terms, (the) handbook will be an
invaluable tool to guide and inform, … senior
managers in the Public Service…”
What is the SMS Handbook (cont)
•
•
First edition of Handbook - January 2001. Current
2003 edition.
Consists of following Chapters:
(1) Recruitment and Selection
(2) Remuneration and Conditions of Service
(3) Performance Management and Development
(4) Competency Framework
(5) Ethics and Conduct
(6) Misconduct and Incapacity
(7) Employment of Heads of Departments
(8) Financial Disclosure
What is the SMS Handbook (cont)
•
Applies to (PSA Regulations, Chapter 4 I.B.1) :
- Persons employed before 1 Jan 2001 at
grade 13 and above.
- Persons employed after 1 Jan 2001 in
capacities referred to in Regulation 11B of
Chapter 4.
- Regulation 11B not entirely clear as it deals
with employment capacities.
The Legal Status of Handbook
• Issued in terms of Regulation 1D of Chapter 4 of
the Public Service Regulations, 2001.
• The Public Service Act, 1994 and PSR, 2001
states: "The Minister may include any or all of
the determinations, directives, guidelines and
provisions applicable to the SMS in a Handbook
for the SMS."
• Certain provisions of Handbook applicable to the
SAPS.
The Legal Status of Handbook (Cont)
•
Contains both peremptory and advisory provisions (clause
2.3).
•
Authoritative ranking of Handbook depends on the chapter:
- Some chapters are a result of directives issued by
the Minister,
- Other chapters are summaries of applicable
legislation; and
- Others serve merely as a guideline in achieving
government aims.
•
2 resolutions of the PSCBC deal with the SMS specifically:
•
•
Resolution No. 13 of 1998;
Resolution No. 9 of 2000.
The Legal Status of Handbook (Cont)
• Chapter (2) - Remuneration and Conditions of
Service - applies to SMS members as well as
personnel employed in :
- Correctional Services.
- Defence.
Where does the SMS Handbook feature
• Wide application - see various Chapters
• We will only consider:
1. Litigation (Chapter 7 – Misconduct &
Incapacity & Chapter 8 - (Heads of
Department))
2. Performance Management and
Development (Chapter 4)
Litigation emanating from SMS
Handbook – Precautionary
Suspensions
•
•
Majority of reported cases relate to chapter 7
(misconduct and incapacity) and specifically clause
2.7(2) – Precautionary suspensions.
Manamela Nnanda Ida v Department of Cooperative Governance: Limpopo Province &
Others (as yet unreported), Sep 2013, LC:
- Application to uplift suspension
- Court held that: “the conditions of employment of
the applicant are subject to specific regulatory
provisions, … the SMS Handbook … will
accept that the provisions of the SMS Handbook
form part and parcel of the applicant’s
employment conditions.”
Litigation emanating from SMS
Handbook (cont) - Suspensions
Held:
- A proper reading of chapter 7 is that where it
comes to the assessment of whether conduct
ito the Handbook is fair, LRA applies. (See:
Introduction to Chapter 7, clause 1.2).
Also held that:
- The Handbook does not detract from the
LRA dispute resolution mechanisms.
Litigation emanating from SMS
Handbook (cont) - Suspensions
• In Chibi v MEC: Department of Co-operative
Governance and Traditional Affairs
Mpumalanga Province & Another (2012) 33
ILJ 855 (LC), held that the Handbook
incorporates the LRA's Code of Good Practice.
• No general right of fairness to be implied into the
Handbook in context of precautionary
suspensions Manamela Nnanda Ida v
Department of Co-operative Governance:
Limpopo Province & Others.
Litigation emanating from SMS
Handbook (cont) - Suspensions
•
•

Clause 2.7(2)(c) of Handbook:
“If member is suspended …, the employer must hold a disciplinary hearing
within 60 days. The chair of the hearing must then decide on any further
postponement”
Important principles :
Lekabe v Minister, Department of Justice & Constitutional
Development [2009] JOL 23134 (LC):
Suspended ito the Handbook. Suspension exceeded 60 day
period.
Department instituted disciplinary proceedings after the expiry of
the 60 days.
Lekabe sought an order uplifting suspension and that the Department
lost its right to institute disciplinary proceedings after expiry of 60 days.
Held that once the 60 days lapse, suspension is unlawful (if not
extended by the chairperson in terms of the Handbook).
However, the expiry of the 60 days does not result in the
employer losing its disciplinary rights.
Litigation emanating from SMS
Handbook (cont) - Suspensions
 In Mashiane v Department of Public Works
[2013] JOL 30129 (LC), held the 60 day suspension
limit is peremptory and that any extension beyond
the 60 days is at the discretion of the chairperson.
 Handbook does not provide for the right to be heard
prior to suspension or the providing of reasons for
suspension. (see: Member of the Executive
Council for Education, North West Provincial
Government v Gradwell (2012) 33 ILJ 2033 (LAC)
& Manamela Nnanda Ida v Department of Cooperative Governance: Limpopo Province).
Litigation emanating from SMS
Handbook – Chapter 8 (Heads of Dept)
•
•
Clause 6.2 – serving employee appointed to post of
HoD automatically loses his status as a permanent
employee.
Premier of the Northern Cape v Selemela [2011]
JOL 27556 (NCK):
- Selemela employed permanently by Northern
Cape Provincial Government as Deputy DirectorGeneral Corporate Services.
- Later accepted fixed term position of HoD in the
Department of Transport, Roads and Public
Works (Northern Cape).
- Question was did Selemela waive his permanent
status when appointed HoD?
Litigation emanating from SMS
Handbook – Chapter 8 (Heads of Dept)
•
•
Full bench found on facts that employee did not waive
his right to permanent employment.
“[36] I wish to state obiter, as opposed to ratio decidendi,
that the court a quo’s observation that clause 6.2 of …
the Handbook is very drastic and takes away permanent
employees’ job security and adversely affect their long
term benefits, particularly of those who are appointed
HoDs long before their retirement age is due, has merit. I
would add that the clause is also arbitrary. It boggles the
mind, that for example, a 32 year old employee who is in
the permanent establishment of Government and who is
appointed HoD for one or two years could find herself
unemployed at the end of that short period on the basis
of this clause….” Tlaletsi J
Performance Management and
Development (Chapter 4)
•
•
•
•
•
•
•
•
Clause 8.1 – All members of the SMS shall enter into
Performance Agreements (‘PA’) by no later than 31 March
annually.
Clause 8.3 review of PA’s on quarterly basis.
Clause 10 – Contents of PA.
Clause 10.4 – Agreement on measurement of Key Result
Areas.
Clause 1.6 – Agreement on personal development plan.
Chapter 7 (Misconduct and Incapacity) provides that Chapter
must be applied in cases of poor performance.
Non-compliance with incapacity processes ito Chapter 7 will
give rise to claims of breach in the Labour Court.
It will be for the courts to give expression to the incapacity
process read with the PA.
CONCLUSION
•
•
•
•
Handbook an important instrument in the public
service.
Has given rise to disputes on rights and
interpretation and will no doubt continue to do so in
future.
Important to bear in mind that not all provisions are
mandatory. But, where provisions are advisory does
this not give rise to review power arising under
section 158(1)(h) of the LRA or even PAJA?
At the end of the day – the Handbook is far from
being “in clear and concise terms” as suggested by
erstwhile Minister 11 years ago.