CHAPTER TWO
ADMINISTRATION OF THE PUBLIC SERVICE, INCLUDING THE SOUTH AFRICAN MANAGEMENT AND DEVELOPMENT INSTITUTE AND THE TRAINING FUND (ss 3-6)

 

3.   Functions of Minister and executive authorities

  1. The Minister is responsible for establishing norms and standards relating to-
    1. the functions of the public service;
    2. the organisational structures and establishments of departments and other organisational and governance arrangements in the public service;
    3. the conditions of service and other employment practices for employees;
    4. labour relations in the public service;
    5. health and wellness of employees;
    6. information management in the public service;
    7. electronic government;
    8. integrity, ethics, conduct and anti-corruption in the public service; and
    9. transformation, reform, innovation and any other matter to improve the effectiveness and efficiency of the public service and its service delivery to the public.

  2. The Minister shall give effect to subsection (1) by making regulations, determinations and directives, and by performing any other acts provided for in this Act.

  3.  
    1. The Minister may, by regulation, establish one or more bodies consisting of prescribed employees or other persons or both such employees and persons to serve as a consultative body for, or an advisory body to, the Minister on any matter referred to in subsection (1).
    2. Provision for representation on any such body by organised labour and other stakeholders shall, where appropriate, be prescribed.
    3. The functions and procedures of such body, the remuneration (if any) of its members and any matter necessary to be regulated for its effective or efficient functioning may be prescribed.

  4. The Minister may-
    1. for the purposes of section 7 (5), advise the President regarding the establishment or abolition of any department, the designation of any such department and the head thereof or the amendment of such designation;
    2. after consultation with the relevant executive authority or executive authorities, as the case may be, make determinations regarding-
      1. the allocation of any function to, or the abolition of any function of, any national department or national government component; or
      2. the transfer of any function from one national department or national government component to another or from a national department to a national government component or any other body or from a national government component to a national department or any other body or from any other body to a national department or national government component;

    3. in consultation with the Premier of the province concerned, make determinations regarding-
      1. the allocation of any function to, or the abolition of any function of, the Office of the Premier, provincial department or provincial government component; or
      2. the transfer of any function from-

        3. (aa)   the Office of the Premier, provincial department or provincial government component of a province to the Office of the Premier, provincial department or provincial government component of another province;
        (bb)   the Office of the Premier, provincial department or provincial government component to a national department or any body established by or under any law, other than a provincial law; or
        (cc)   a national department or such other body to the Office of the Premier, provincial department or provincial government component.
  5.  
    1. Subject to the Labour Relations Act and any collective agreement, the Minister may make determinations regarding any conditions of service of employees generally or categories of employees, including determinations regarding a salary scale for all employees or salary scales for particular categories of employees and allowances for particular categories of employees.
    2. A determination involving expenditure from revenue shall be made in consultation with the Minister of Finance.

  6.  
    1. If so requested by the President or an executive authority, the Minister may advise, or assist in such manner or on such conditions as the Minister may determine, the President or the relevant executive authority as to any matter relating to-
      1. the public service;
      2. any staffing arrangements or employment practice regarding any organ of state; or
      3. the remuneration or other conditions of appointment of the office-bearers of any board, institution or body.

    2. For the purposes of paragraph (a), the Minister, or any person authorised in writing by the Minister, has access to such official documents and may obtain such information from the chairperson or head of the relevant board, institution or body as may be necessary to advise or assist the President or the relevant executive authority.

  7. An executive authority has all those powers and duties necessary for-
    1. the internal organisation of the department concerned, including its organisational structure and establishment, the transfer of functions within that department, human resources planning, the creation and abolition of posts and provision for the employment of persons additional to the fixed establishment; and
    2. the recruitment, appointment, performance management, transfer, dismissal and other career incidents of employees of that department, including any other matter which relates to such employees in their individual capacities, and such powers and duties shall be exercised or performed by the executive authority in accordance with this Act.

  8.  
    1. The relevant executive authority may, subject to paragraphs (b) and (c), perform any act in connection with any matter which relates to or arises from the employment or the conditions of service of a person formerly employed in the public service whilst he or she was so employed in the department concerned.
    2. An executive authority may only so perform an act if he or she would at the relevant time have been competent in terms of this Act or any other law to perform any such act in respect of a serving employee.
    3. No such act shall be to the detriment of the person concerned, and the relevant executive authority shall not perform any such act in respect of any such person after the expiry of a period of three years after he or she ceased to be so employed.
    4. On request of the relevant executive authority and on good cause shown, the Minister may in respect of a particular person extend the period of three years with such period as the Minister considers appropriate.

3A.   Functions of Premiers

The Premier of a province may, in the province concerned-
  1. subject to section 7 (5) to (7)-
    1. establish or abolish any provincial department, designate such department and the head thereof or amend any such designation;
    2. after consultation with the Minister and the Minister of Finance establish or abolish any provincial government component or establish an existing body as a provincial government component, designate such component and the head thereof and designate the Office of the Premier or a provincial department as its principal provincial department or amend any such designation; and

  2. make determinations regarding the allocation of any function to, or the abolition of any function of, any department or government component in the province concerned or the transfer of any function from such department or component to another department or component in the province or from such office, department or component to any body established by or under any law of the provincial legislature or from any such body to such office, department or component.

3B.   ...... (deleted)

4.   Training institution

  1. There shall be a training institution listed as a national department in Schedule 1.

  2. The management and administration of such institution shall be under the control of the Minister.

  3. Such institution-
    1. shall provide such training or cause such training to be provided or conduct such examinations or tests or cause such examinations or tests to be conducted as the Head of the institute may with the approval of the Minister decide or as may be prescribed as a qualification for the appointment or transfer of persons in or to the public service;
    2. may issue diplomas or certificates or cause diplomas or certificates to be issued to persons who have passed such examinations.

5.   Implementation or limitation of actions affecting public service or its members

  1. For the purposes of this section the term 'act' means the making of any regulation, the making of any determination, the issuing of any directive or the taking of any decision.

  2. A determination or directive, or any withdrawal or amendment thereof, made or issued by the Minister in terms of this Act shall take effect on the date of the written communication conveying the making of the determination, the issuing of the directive or the withdrawal or amendment thereof, unless expressly stated otherwise in that communication, determination or directive.

  3. Any act by the Minister in terms of this Act which relates to all employees, a category of employees or a particular employee may be effected retrospectively if-
    1. circumstances exist which justify such retrospective effect; and
    2. the act is not to the detriment of the employee or employees concerned.

  4. Any act by any functionary in terms of this Act may not be contrary to the provisions of-
    1. any collective agreement contemplated in item 15 (i) of Schedule 7 to the Labour Relations Act; or
    2. any collective agreement concluded by a bargaining council established in terms of the said Act for the public service as a whole or for a particular sector in the public service.

  5. Notwithstanding subsection (4), but subject to the Labour Relations Act-
    1. ......(deleted)
    2. the last offer made by the State as employer in a bargaining council referred to in the said subsection (4) on a specific matter may, if a deadlock in negotiations is reached, be implemented by acting in terms of the provisions of this Act or any other law, provided any such act does not have the effect of reducing existing remuneration or other service benefits, except in accordance with section 34.

  6.  
    1. Any provision of a collective agreement contemplated in subsection (4), concluded on or after the commencement of the Public Service Amendment Act, 2007, shall, in respect of conditions of service of employees appointed in terms of this Act, be deemed to be a determination made by the Minister in terms of section 3 (5).
    2. The Minister may, for the proper implementation of the collective agreement, elucidate or supplement such determination by means of a directive, provided that the directive is not in conflict with or does not derogate from the terms of the agreement.

  7.  
    1. A functionary shall correct any action or omission purportedly made in terms of this Act by that functionary, if the action or omission was based on an error of fact or law or fraud and it is in the public interest to correct the action or omission.
    2. The relevant executive authority shall in the prescribed manner keep record of and report to the Minister any correction by a functionary of a department within the portfolio of that executive authority.

  8.  
    1. The Commission may investigate compliance with this Act and may issue directions contemplated in section 196 (4) (d) of the Constitution in order to ensure compliance with this Act and in order to provide advice to promote sound public administration.
    2. If the Commission issues a direction contemplated in paragraph (a), the relevant executive authority or head of department, as the case may be, shall implement the direction as soon as possible after receipt of the written communication conveying the direction but, in any event, within 60 days after the date of such receipt.

6.   Access to documents and information by Minister

  1. The Minister, or any person authorised in writing by the Minister, has access to such official documents or may obtain such information from executive authorities and employees in the public service as may be necessary for the performance of his or her functions under this Act or any other law.

  2. Any employee who wilfully or in a grossly negligent manner fails to furnish documents or information as contemplated in subsection (1) or section 3 (6) (b), shall be guilty of an offence and shall be liable on conviction to a fine or to imprisonment not exceeding 12 months.