CHAPTER FOUR
EMPLOYMENT IN PUBLIC SERVICE (ss 8A-15)

 

8A.   Mechanisms for obtaining services of persons

Services of persons may be obtained in terms of this Act by means of-

  1. appointments in terms of section 9, including appointments of heads of department in terms of section 12;
  2. appointments in terms of section 12A on grounds of policy considerations; or
  3. deployments in the form of-
    1. transfers in terms of section 14, including transfers of heads of department in terms of section 12 (3);
    2. secondments in terms of section 15; and
    3. assignments in terms of section 32.

9.   Appointments in public service

An executive authority may appoint any person in his or her department in accordance with this Act and in such manner and on such conditions as may be prescribed.

10.   Qualifications for appointment

  1. No person shall be appointed permanently, whether on probation or not, to any post on the establishment in a department unless he or she-
    1. is a South African citizen or permanent resident; and
    2. is a fit and proper person.

  2. ......(deleted)

11.   Appointments and filling of posts

  1. In the making of appointments and the filling of posts in the public service due regard shall be had to equality and the other democratic values and principles enshrined in the Constitution.

  2. In the making of any appointment in terms of section 9 in the public service-
    1. all persons who applied and qualify for the appointment concerned shall be considered; and
    2. the evaluation of persons shall be based on training, skills, competence, knowledge and the need to redress, in accordance with the Employment Equity Act, 1998 (Act 55 of 1998), the imbalances of the past to achieve a public service broadly representative of the South African people, including representation according to race, gender and disability.

  3. ......(deleted)

12.   Appointment of heads of department and career incidents

  1. Notwithstanding anything to the contrary contained in this Act, but subject to this section and sections 2 (2B) and 32 (2) (b) (i), the appointment and other career incidents of the heads of department and government component shall be dealt with, in the case of-
    1. a head of a national department or national government component, by the President; and
    2. a head of the Office of a Premier, provincial department or provincial government component, by the relevant Premier.

  2.  
    1. A person shall be appointed to the post of head of department in terms of section 9 for such term, not exceeding five years, as the relevant executive authority may approve.
    2. The head of department shall conclude the prescribed contract within the prescribed period.
    3. The relevant executive authority may at the expiry of the term of office of a head of department or at the expiry of an extended term of office extend the term for a period of not more than five years at a time.

  3.  
    1. The President may transfer the head of a national department or national government component before or at the expiry of his or her term, or extended term, to perform functions in a similar or any other capacity in a national department or national government component in a post of equal, higher or lower grading, or additional to the establishment, as the President considers appropriate.
    2. The Premier of a province may transfer the head of the Office of the Premier, a provincial department or a provincial government component before or at the expiry of his or her term, or extended term, to perform functions in a similar or any other capacity in the Office of the Premier, a provincial department or a provincial government component of the relevant province in a post of equal, higher or lower grading or additional to the establishment, as the Premier considers appropriate.
    3. The President may, in consultation with the Premier or Premiers concerned, transfer before or at the expiry of his or her term, or extended term-
      1. the head of a national department to perform functions in a similar or any other capacity in the Office of a Premier, a provincial department or a provincial government component; or
      2. the head of the Office of a Premier, a provincial department or a provincial government component, to perform functions in a similar or any other capacity in the Office of a Premier, a provincial department or provincial government component of another province or in a national department or national government component, in a post of equal, higher or lower grading or additional to the establishment, as the President, in consultation with the Premier or Premiers, considers appropriate.

    4. A transfer in terms of this subsection may only occur if-
      1. the relevant head of department consents to the transfer; or
      2. after due consideration of any representations by the head, the transfer is in the public interest.

    5. Any person appointed as head of department or government component who is transferred in terms of this subsection-
      1. during his or her term of office or extended term-

        2. (aa)   shall for the unexpired portion of that term not suffer any reduction in salary and change of other conditions of service, unless he or she consents thereto; and
        (bb)   to a higher post shall not by reason only of that transfer be entitled to the higher salary applicable to the higher post; and
      2. at the expiry of his or her term of office, or extended term, shall receive the salary and conditions of service attached to the capacity in which he or she is so transferred.

  4. If it is in the public interest and it is allowed by a determination made in terms of section 3 (5), an executive authority may, on the conditions provided for in such determination, grant a special service benefit to head of the relevant department before or at the expiry of his or her term of office or an extended term, or at the time of retirement or dismissal from the public service.

12A.   Appointment of persons on grounds of policy considerations

  1. Subject to this section, such executive authorities as the Cabinet may determine may appoint one or more persons under a contract, whether in a full-time or part-time capacity-
    1. to advise the executive authority on the exercise or performance of the executive authority's powers and duties;
    2. to advise the executive authority on the development of policy that will promote the relevant department's objectives; or
    3. to perform such other tasks as may be appropriate in respect of the exercise or performance of the executive authority's powers and duties.

  2. The maximum number of persons that may be appointed by an executive authority under this section and the upper limits of the remuneration and other conditions of service of such persons shall be determined by the Cabinet in the national sphere of government.

  3. The special contract contemplated in subsection (1) shall include any term and condition agreed upon between the relevant executive authority and the person concerned, including-
    1. the contractual period, which period shall not exceed the term of office of the executive authority;
    2. the particular duties for which the person concerned is appointed; and
    3. the remuneration and other conditions of service of the person concerned.

13.   Appointment on probation

  1. If so required by regulation, an executive authority shall appoint an employee on probation for such period as may be prescribed for the relevant category of employees.

  2. After the completion of a probationary period contemplated in subsection (1) an executive authority shall confirm the probationary appointment if the employee concerned has-
    1. performed at least satisfactorily during the period; and
    2. complied with all the conditions to which his or her appointment was subject.

  3. If the probationary appointment is not confirmed in terms of subsection (2), the executive authority may extend the period of probation or dismiss the employee in accordance with the Labour Relations Act.

14.   Transfers within public service

  1. Subject to subsections (2), (3) and (4), any employee of a department may be transferred-
    1. within the department, by its executive authority;
    2. to another department by the executive authorities of the two relevant departments.

  2. Such transfer shall be made in such manner and on such conditions as may be prescribed.

  3. An employee may be transferred under subsection (1) only if-
    1. the employee requests the transfer or consents to the transfer; or
    2. in the absence of such request or consent, after due consideration of any representations by the employee, the transfer is in the public interest.

  4. Before employees may be transferred in terms of subsection (3) (b) as a result of a determination regarding an allocation, abolition or transfer of a function, contemplated in section 3 (4) (b) or (c) or 3A (b), consultation shall take place in the applicable bargaining council established in terms of the Labour Relations Act for the public service as a whole or for a particular sector in the public service.

  5.  
    1. The transfer of an employee in terms of subsection (1) who is on probation shall remain subject to probation as prescribed.
    2. Any regulation so prescribed shall take due regard of the respective functions before and after the transfer to avoid detriment to the employee concerned.

  6. An employee who has been transferred to a post with-
    1. a lower salary than his or her salary before the transfer shall not upon such transfer suffer any reduction in salary, except if he or she requested the transfer or he or she consented to the reduction; or
    2. a higher salary than his or her salary before the transfer shall not by reason only of that transfer be entitled to the higher salary.

14A.   Change in employment capacity

An employee of a department who is appointed in terms of section 9 in another capacity in the same or another department, or transferred in terms of section 12 (3) or 14, shall be deemed to continue employment in the public service without any break in service.

15.   Transfer and secondment from and to public service

  1. Any person who was employed by an organ of state immediately before he or she is appointed in terms of section 9 shall be deemed to be transferred to the public service in respect of such conditions of service and to such extent as the Minister may determine in terms of section 3 (5).

  2. If it is in the public interest and if the prescribed conditions (if any) have been complied with, the executive authority of a department may, with the approval of the employer concerned, approve the secondment of a person in the service of an organ of state, another government or any other body to the department-
    1. for a particular service or period not exceeding the prescribed period (if any); and
    2. on the prescribed conditions (if any) and such other conditions as agreed between the relevant functionary of the body concerned and the executive authority.

  3.  
    1. The executive authority of a department may second an employee of the department to another department, any other organ of state, another government or any other body-
      1. for a particular service or period not exceeding the prescribed period (if any); and
      2. on the prescribed conditions (if any) and such other conditions as agreed upon between the executive authority and the relevant functionary of the body concerned.

    2. The secondment of an employee of a department may occur only if-
      1. the employee requests, or consents to, the secondment; or
      2. in the absence of such request or consent, after due consideration of any representations by the employee, the secondment is in the public interest.

    3. While on secondment, an employee remains subject to this Act and any other laws applicable to employees in the public service, except to the extent otherwise agreed upon, as provided for in paragraph (a) (ii).