Venue: Ground Floor, Marks Building, Parliament 5 August 2015

Portfolio Committee on Public Service and Administration/ Planning, Monitoring and EvaluationBriefing by DPSA on thePublic Administration Management Act, 11 of 2014 Venue: Ground Floor, Marks Building, Parliament 5 August 2015

Contents • Introduction and Background • Historical Background • Constitutional Context • PAM Act Overview • Syntax Analysis and Work Areas • Project Management and Governance Arrangements for Implementation

Introduction • PAM Act is a RSA ‘country first’ in its conceptualisation and arguably one of the most significant public administration reform initiatives since the promulgation of the PSA, MSA, PFMA and MFMA. • It seeks to provide a legal framework across the three spheres of government for bringing a modicum of uniformity of purpose in key pillars making up the public administration, namely : people, processes, systems and institutions. • Provisions of the Act have not yet been brought into effect. This will be done through a further proclamation that the DPSA will facilitate to be signed by the President. • It is envisaged that the Act will be brought into effect once the draft regulations have been finalised as most of the sections require regulations. • An incremental approach will be adopted in the development of the regulations (S20)

Historical Background • 2013 - 2015 • 31 May 2013: Publication of PAM Bill for public comment • 31 July 2013 – Oct 2013: The PAM Bill underwent an intensive consultation process prior to its introduction into the National Assembly that included Executive Authorities, structures within the various spheres of government, municipalities, officials in the administration, organised labour, business, Nedlac and gazetting for broader public comment. • In August of 2013, a decision was made to retain the Public Service Act and the Municipal Systems Act and to create what was referred to as ‘Framework’ legislation, culminating in a revised PAM Bill.

Historical Background • 2013 - 2015 • 26 Feb 2013: The Select Committee considered the provincial final mandates and adopted the PAM Bill. • 12 March 2014: The PAM Bill was passed by the NA. • 19 Dec 2014: the President assented to the PAMA and it was gazetted on the 22 Dec 2014.

Public Administration Challenges • An accumulated body of evidence on the deficiencies in the institutions of government have been highlighted by the PSC, the Auditor-General SA, the DPME and DPSA dedicated research • Progress towards clean audit has been slow with the number of clean audits remaining at the same low level for past three years although with slight improvement. • 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. • Vacancies in key positions and key officials without the minimum competencies and skills continue to make it difficult to produce credible financial statements and performance reports. • Lack consequences for poor performance and transgressions. • Poor management of discipline.

Public Administration Challenges • 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.

PAMA response to PA Challenges • Continued building of a professional public service and local government through the introduction of enabling policy and legal frameworks. • Mechanisms for equitable distribution of resources across the three spheres of government. • Address challenges raised by the Auditor-General and other State entities on the problems and challenges faced by government. • Respond to the NDP by making provisions in the PAMA that are catalysts for building of a capable state. • Ensure there is a streamlined set of constitutional values and principles 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

Constitutional Context of the PAM Act • The Constitution- • Provides that South Africa is one, sovereign, democratic state and that government is constituted as national, provincial and local spheres of government which are distinctive, interdependent and interrelated. • Determines basic values and principles governing public administration - section 195(1). • These principles apply to: • Administration in every sphere of government • Organs of state; and • Public enterprises • National legislation be enacted to ensure the promotion of values and principles listed in section 195(1) - section 195(3)

Constitutional Context • S 151(3): A municipality has the right to govern, on its own initiative, the local government affairs of its community, subject to national and provincial legislation. • S 153: A municipality is required to structure and manage its administration and budgeting and planning processes to give priority to the basic needs of the community, and to promote the social and economic development of the community. • S 154(1): national government must, by legislative measures and other means, support and strengthen the capacity of municipalities to manage their own affairs, to exercise their powers and to perform their functions;

Constitutional Context • S 195(5) and (6): legislation regulating public administration can differentiate between different sectors, administrations or institutionsthrough taking into account their nature and functions; • S 196(2) and (3): provides for a public service within the public administration, which must function, and be structured, in terms of national legislation, and the terms and conditions of employment in the public service to be regulated by national legislation. • S 197(4): Provincial governments are responsible for the recruitment, appointment, promotion, transfer and dismissal for members of the public service in their administrations within a framework of uniform norms and standards applying to the public service.

Context of the Public Administration Management Act South Africa’s system of governance is based on three distinctive, interrelated and interdependent spheres of government

Context of the Public Administration Management Act To achieve development outcomes, there is need for convergence and shared accountability of all vertical and horizontal governance structures of state in so far as they need to work in unison to achieve unity of purpose

4th Administration’s Resolve • In order to comply with section 195(1) and (3) and to ensure Constitutional compliance/muster: • Introduce framework legislation encapsulating the values and principles of the constitution. • Include in the framework legislation: • Ethics, integrity and disciplinary measures, • Prohibition of employees from doing business with the state, • Minimum norms and standards in key dimensions of public administration for both the public service and municipalities, • Establishment of the Office of Standards and Compliance, and • National School of Government as a higher education institution • Retain the Municipal Systems Act and the Public Service Act

Bringing the Act into Force and Effect: Rationalism and a Logical Approach • Regulations are required for the proper implementation of the PAMA. • Section 20 of PAMA provides that different dates may be determined in respect of different provisions of the Act or categories of institutions. • This allows the President to bring different sections of the Act into operation at different times or to target categories of institutions. • An analysis of the PAMA indicated that all of the provisions will require regulations before bringing into force and effect. • A staggered approach is being adopted to phased PAMA in initially in the public service and thereafter in local government

Regulations affecting municipalities • It should be noted that regulations covering municipalities must be done with the agreement of the Ministers for local government and finance and public service and administration. • SALGA’s concurrence will also be required. • It is a further requirement that the draft regulations be published for no less than thirty days for public comment and this step must be factored in as part of the consultation process.

Purpose of the Act • The Act is legislation that entrenches section 195(1) of the Constitution in the Public Administration. The central thrust is to: • provide for the transfer and secondment of employees in public administration; • regulate the use of information and communication technologies in public administration; • prohibit employees from conducting business with the state; • provide for ethics, integrity and disciplinary matters in the public administration • set minimum norms and standards and inculcate a culture of compliance by institutions within the public administration • provide for the establishment of a higher education institution for the public administration;

Key Definitions (Section 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 • "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

Basic Values and Principles governing Public Administration Each institution must― • Promote and maintain a high standard of professional ethics; • Promote efficient, economic and effective use of resources; • be development oriented; • Provide such services impartially, fairly, equitably and without bias; • Respond to public needs and encourage public participation in policy-making; • Be accountable to the public; • Foster transparency by providing the public with timely, accessible and accurate information; • Ensure good human resource management and career development practices, to maximise human potential; and • Ensure broad representation of the South African people within the institution, taking into account race, gender and disability.

Individual transfers (Section 5 – 7) • Any employee may be transferred within an institution or transferred to another institution in the three spheres of government. • An employee may only be transferred― • if the employee is suitably qualified for the intended position upon transfer; • if the employee requests or consents in writing to the transfer;and • the relevant authority or executive authorities of the transferring and recipient institutions concurs. • If an employee is transferred between a national or provincial institution and a municipal institution or from one municipal institution to another municipal institution: • the conditions of service of the employee upon the transfer are as agreed between the executive authorities of the transferring and recipient institutions. • Unless the employee consents, those conditions of service may not be less favourable than those on which the employee was employed immediately before the transfer.

Secondment: (Section 6) • Any employee may be seconded to another institution or to any other organ of state if the employee― • Possesses the necessary skills and knowledge for the intended position at the time of the secondment; and • Requests or consents to the secondment. • In the absence of consent after due consideration of any representations by the employee if the secondment is justified • Anyemployee of an institution may only be seconded in terms of to— • Another institution in consultation with the relevant authorities of the seconding and recipient institutions; or • An organ of state other than an institution, on request of the organ of state and in consultation with the relevant authority of the seconding institution. • If an employee is seconded, the remuneration and conditions of service of the employee upon the secondment are as agreed between the executive authorities of the transferring and recipient institutions.

Prohibition on doing business with the State (Sec 8) • The Act prohibits employees from: • Conducting business with State; or • Being a director of a public or private company conducting business with the State. • Failure to comply with this section is an offence, and any person found guilty of the offence is liable to a fine or imprisonment for a period not exceeding 5 years or both such find and imprisonment; and constitutes serious misconduct which may result in the termination of employment by the employer.

Disclosure of financial interests (Sec 9) • An employee must disclose all his or her financial interests and the financial interests of his or her spouse and a person living with that person as if they were married to each other including all: • Shares and other financial interests in an entity • Sponsorships • Gifts above the prescribed value, other than gifts received from a family member; • Benefits; and • Immovable property. • Failure by an employee to comply with this provision constitutes misconduct

Capacity Development and Training (Section 10 – 13) • The head of the institution must through education and training of its employees, develop the human resource capacity to a level that enables the institution to perform its functions in an efficient, quality, collaborative and accountable manner. • Establishment of the National School of Government as an institution of higher learning to enhance the quality, extent and impact of the development of human resource capacity in public administration. • The Minister may, after consultation with or on recommendation of the Head of the School, direct that the successful completion of specified education, training, examinations or tests as prerequisites for specific appointments or transfers and compulsory training for development of any category of employees • If the capacity development and training applies to municipal institutions, the Minister must act in consultation with national organised local government (SALGA).

Use of ICT in Public Admin (Sec 14) • Provisions place the onus on the head of the institution to: • Acquire and use information and communication technologies (ICT) in a manner which- • Leverages economies of scale to provide for cost effective service; • Ensures the interoperability of its information systems with other institutions to enhance internal efficiency or service delivery; • Eliminate unnecessary duplication of ICT in public administration; and, • Ensures security of its information systems. • Use ICT to develop and enhance the delivery of services; • Improve the access of people who don’t have access to electronic services to those services; and • Align the use by staff of ICT to achieve optimal service delivery.

Ethics, Integrity and Discipline (Section 15) • The Act establishes the Public Administration Ethics, Integrity and Disciplinary Technical Assistance Unit with the following functions: • Technical assistance and support to institutions in all spheres on the management of ethics, integrity and disciplinary matters relating to misconduct; • Developing the norms and standards on integrity, ethics, conduct and discipline; • Build capacity in institutions to initiate and institute disciplinary proceedings into misconduct • Strengthen government oversight of ethics, integrity and discipline, and where necessary, in cases where systemic weaknesses are identified, to intervene; • Promote and enhance good ethics and integrity; • To cooperate with other institutions and organs of state to fulfil its functions • The organisational form of the Unit must be determined in terms of applicable legislation.

Minimum Norms and Standards (Section 16) • Minister may prescribe minimum norms and standards on- • the promotion of values and principles referred to in section 195(1) of Constitution; • capacity development and training; • information and communication technologies in the 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 Act. • 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

Office of Standards and Compliance (Section 17) • The Minister has a leadership role to ensure that the management of the public administration is exercised within checks and balances, control points, norms and standards, performance management and reporting, and compliance mechanisms. • The rationale for establishing an Office of Standards and compliance is focused primarily to provide technical support, advisory services and intervention support to the public administration to ensure compliance to the applicable norms and standards. • The Act establishes the Office of Standards and Compliance. • The organizational form of the Office must be determined in terms of applicable legislation. • The Minister must prescribe (through regulations) the powers of the office and its members.

Regulations (Section 18) • The Act empowers Minister to make regulations • Critical for the promulgation of regulations is the different consultation requirements required for the effective and proper promulgation of regulations under Section 18(2), namely – • Where regulations apply to municipalities the Minister responsible for local government, Minister responsible for Finance and organised local government (SALGA) have to be consulted and have to approve them. • This requires a full and detailed consultation process not only with the responsible Ministers but with SALGA. • SALGA’s agreement will require an internal process involving its governance structures • The MPSA must publish the proposed regulation for public comment for a period not less than 30 days in the Gazette.

Ch 2 S4: Values and principles governing public administration Syntax Analysis: • Obligatory for each institution to comply with section 195 of the Constitution. • Existing legislation does contain reference to these principles explicitly or implicitly and therefore a scrutiny of the different pieces of legislation will be required. • E.g. PFMA: The object of this Act is to secure transparency, accountability, and sound management of the revenue, expenditure, assets and liabilities of the institutions to which this Act applies. • E.g. MPFMA: S2(1)(a) of the MFMA which provides that: “The Accounting Officer of a municipality must take all reasonable steps to ensure that the resources of the municipality are used effectively, efficiently and economically.” Work Area / Regulations required: • Legislation within the public administration is required to be analysed to identify gaps which should be addressed through regulations in terms of PAMA.

CH 3: EMPLOYMENT IN PUBLIC ADMIN S5. Individual transfers • Syntax Analysis: • Any employee of the transferring institution may be transferred within an institution or transferred to another institution in a manner and on such conditions as prescribed. • Regulations must be drafted for the proper implementation and administration of individual transfers. • The manner and conditions under which transfers of employees may take place will need to be prescribed. • Work Area: • There is a need to develop a regulatory policy framework to place limitations on the remuneration and conditions of service that may be agreed between executive authorities in respect of transfers as envisaged in section 5(4). • In the absence of such a regulatory policy framework, there is a risk of disparities being created within the spheres of government.

CH 3: EMPLOYMENT IN PUBLIC ADMIN S5. Individual transfers • Work Area / Regulations required: • The effect of repeal of the Transfers of Staff to Municipalities Act must be further explored. • Consideration of including sections of this Act into the PAMA regulations to cover employees who transfer from the public service to the municipality must be investigated. • Impact on Local Government: • For local government it must be noted that in terms of S19 of PAM, the Transfers of Staff to Municipalities Act, 1998 will be repealed. • In drafting the regulations for municipalities, the extent to which the repeal affects their existing legislation and practices with individual transfers must be established. • Ongoing partnership with CoG, SALGA and local stakeholders to develop regs applicable to the local government sphere

CH 3: EMPLOYMENT IN PUBLIC ADMIN S6. Secondments Syntax Analysis: • Any employee of an institution may be seconded to another institution or to any other organ of state in such manner, and on such terms and conditions as may be prescribed. Work Area / Regulations required: • For the proper implementation and administration of secondments. • To prescribe the manner and conditions under which secondments of employees may take place.

CH 3: EMPLOYMENT IN PUBLIC ADMIN S8. Conducting Business with State Syntax Analysis: • Sections 8 and 9: "employee" includes persons contemplated in section 12A of the Public Service Act and a person performing similar functions in a municipality. • An employee may not― (a) conduct business with the State; or (b) be a director of a public or private company conducting business with the State. • A contravention is: (a) an offence, and any person found guilty of the offence is liable to a fine or imprisonment for a period not exceeding 5 years or both such fine and imprisonment; and • (b) constitute serious misconduct which may result in the termination of employment by the employer Regulations required: • For the proper implementation and administration of the prohibition on conducting business with the State, including transitional measures, systems readiness and processes. .

CH 3: EMPLOYMENT IN PUBLIC ADMIN S8. Disclosure of financial interest Syntax Analysis • An employee must in the prescribed manner, disclose to the relevant head of the institution all his or her financial interests and the financial interests of his or her spouse and a person living with that person as if they were married to each other, including all— (a) shares and other financial interests in an entity; (b) sponsorships; (c) gifts above the prescribed value, other than gifts received from a family member; (d) benefits; and (e) immovable property. • Failure by an employee to comply with the constitutes misconduct. Regulations required: • For the proper implementation and administration of the disclosure of financial interests, including prescribing the manner in which an employee must disclose his or her financial interest and ensuring systems readiness.

CH 4: CAPACITY DEV and TRAINING S11. NSG Syntax Analysis: • The object of repealing section 4 of the PSA which established PALAMA (now known as the National School of Government) was to expand the scope of the school to include municipal employees and give it the status of a higher education institution as contemplated the Higher Education Act, 1997. • The process and the establishment will have to follow the provisions of the Higher Education Act, 1997 (HEA) which include: • consultations with the Council on Higher Education, • a declaration by the MHE&T by notice under Section 21, • a gazetted establishment of the NSG as a higher education institution, and • the establishment of the governing structures of the NSG in accordance with Chapter 4 of the HEA.

CH 4: CAPACITY DEV and TRAINING S11. NSG Work Area: • Section 11 states that the NSG “will... be established as a higher education institution...”. • The provision contemplates a future establishment of the NSG as a higher education institution. • However, these processes follow a critical first step: A feasibility study on the model for the institution (university, technikon or college) that includes: • The funding model for the NSG; • The linkage between the NSG and the PSETA; • The qualifications that the NSG will provide and the processes for accreditation through the NQF and SAQA; • The role of MPSA in directing the provision of qualifications, part qualifications and non-formal education. • Ultimately, in terms of section 3 of the HEA, the MHE must determine a policy on higher education (for the public administration) after consulting the Council of Higher Education. • This policy must be developed by the MPSA in collaboration with the MHEandT.

CH 4: CAPACITY DEV and TRAINING S12. Directive Syntax Analysis: • The Minister, in consultation with the Minister responsible for higher education and training, may direct the School to provide qualifications, part-qualifications and non-formal education as recognised by the National Qualifications Framework or the South African Qualifications Authority. • Where a directive applies to municipalities, the Minister must act in consultation with the Minister responsible for local government and, after consultation with organised local government. Regulations required: • Regulations are not necessary as the MPSA may issue a directive. Work Area:This area of work must be considered together with sect 11.

CH 4: CAPACITY DEV and TRAINING S13. Compulsory Educational Requirements Syntax Analysis: • The Minister may, after approval by the Cabinet, direct that the successful completion of specified education, training, examinations or tests is a prerequisite for specified appointments or transfers; and compulsory in order to meet development needs of any category of employees. • The Minister must consult organised local government and obtain the concurrence of the Minister responsible for local government before seeking the approval of the Cabinet in respect of a directive to be applicable to municipalities. Regulations required/Work Area: • Regulations are not necessary as the MPSA may issue a directive. Work on the directive will be required.

CH 6: ETHICS, INTEGRITY AND DISCIPLINE S15. Public Admin Ethics, Integrity and Disciplinary TAU Syntax Analysis: • Once the provision is brought into operation, the Unit is established. • Its organisational must be determined in terms of applicable legislation. • The Unit, once established, is responsible for developing norms and standards for integrity, ethics and discipline in terms of Section 15(4)(b). • The norms and standards developed by the Unit may be issued by the Minister as a regulation in terms of section 16(1)(d). Work Area: • Organisational form to be determined in terms of applicable legislation. • As an interim measure, the Unit can be incubated within the DPSA until ready for full operations as a separate institution.

CH 7: NORMS and STANDARDS S16. Minimum Norms and Standards Syntax Analysis Cont.: • Under section 16 of the PAM Act, municipalities are now included, and minimum norms and standards are envisaged to be developed for municipalities as well. Work Area: • An analysis is required on all the areas identified for minimum norms and standards in the public administration so that it assists in informing the minimum norms and standards and the crafting thereof. • The Unit once established is responsible for developing norms and standards on integrity, ethics and discipline in terms of Section 15(1)(b). • Norms and standards that apply to municipalities must be done in agreement with the Minister responsible for local government, Minister responsible for Finance and organised local government. • Norms and standards for the public service can be done by the MPSA.

CH 8: COMPLIANCE WITH THE MIN NORMS and STANDARDS: OSC Syntax Analysis: • Once the provision is brought into operation, the Office is established. • Its organisational form must be determined in terms of applicable legislation. Regulations required: • Section 17(6)(e) requires other roles of the Office in the promotion, monitoring and enforcement of the minimum norms and standards to be prescribed by the Minister. • Section 17(7) requires the Minister to prescribe the powers of the Office and its members. • Regulations will be necessary for bringing into operation the provision as it will define the powers which are essential for the functioning of the Office. Work Area: • Organisational form to be determined in terms of applicable legislation. • In the interim, DPSA can start to position for operationalisation of this provision and incubate until ready for full operations.

Area for Implementation: Proclamation • Section 20: different dates may be determined in respect of different provisions of the Act or categories of institutions. • This allows the President to bring different sections of the Act into operation at different times. • Sections 11 and 12, which purports to establish the National School of Government as a Higher Education should only be brought into force once all the ground work has been done. • Provisions may be brought into force individually by separate proclamations. • To ensure an orderly and seamless transition the repeal of Section 4 of the PSA can only come into effect when the MHE establishes by notice the National School of Government as a higher education institution. • The date for bringing provisions of the Act into force will be aligned with the gazetting of the regulations.

Consultation Requirements for Promulgation of Regs • Critical for the promulgation of regulations is the different consultation requirements required for the effective and proper promulgation of regulations under Section 18(2), namely – • Where regulations apply to municipalities the Minister responsible for local government, Minister responsible for Finance and organised local government (SALGA) have to be consulted and have to approve them. • This requires a full and detailed consultation process not only with the responsible Ministers but with SALGA. • SALGA’s agreement will require an internal process involving its governance structures. • The MPSA must publish the proposed regulation for public comment for a period not less than 30 days in the Gazette.

The Road Map DPSA in collaboration with partners to Lead and Guide Implementation

Venue: Ground Floor, Marks Building, Parliament 5 August 2015