CHAPTER FIVE
TERMINATION OF SERVICE (ss 16-17)

 

16.   Retirement and retention of services

  1.  
    1. Subject to the provisions of this section, an officer, other than a member of the services or an educator or a member of the State Security Agency, shall have the right to retire from the public service, and shall be so retired, on the date when he or she attains the age of 65 years: Provided that a person who is an employee on the day immediately before the commencement of the Public Service Amendment Act, 1996, has the right to retire on reaching the retirement age or prescribed retirement date provided for in any other law applicable to him or her on that day.
    2. If such an officer attains the said age after the first day of a month, he or she shall be deemed to have attained it on the first day of the following month.

  2.  
    1. Notwithstanding the provisions of subsection (1), an employee, other than a member of the services or an educator or a member of the State Security Agency, employed with effect from a date prior to 1 October 1993 in terms of a law repealed by this Act, shall have the right to retire from the public service at or at any time after the retirement age applicable to him or her as at 1 October 1993, and that retirement age shall not be changed without his or her consent.
    2. An officer who has the right to an earlier retirement age in terms of paragraph (a), and who wishes to be so retired, shall give written notification to his or her head of department of his or her wish to be so retired, and he or she shall-
      1. if that notification is given at least three calendar months prior to the date on which he or she attains the retirement age applicable to him or her in terms of paragraph (a), be so retired on the date on which he or she attains that age or, if he or she attains it after the first day of a month, on the first day of the following month; or
      2. if that notification is not given at least three calendar months prior to the date on which he or she attains the said age, be so retired on the first day of such month as the executive authority may approve, which day may not be before the date on which he or she attains the said age and not be later than the first day of the fourth month after the month in which the notification is received.

    3.  
      1. In the case of an officer who occupies the office of head of department, he or she shall give notification of his or her wish to be retired from the public service at least six calendar months prior to the date on which he or she attains the said age, and if he or she has so given notification, the provisions of paragraph (b) (i) apply mutatis mutandis.
      2. If such an officer has not so given notification at least six calendar months prior to the date on which he or she attains the said age, he or she shall be so retired on the first day of the seventh month following the month in which that notification is received.

2A.    

  1. Notwithstanding the provisions of subsections (1) and (2) (a), an officer, other than a member of the services or an educator or a member of the State Security Agency, shall have the right to retire from the public service on the date on which he or she attains the age of 55 years, or on any date after that date.
  2. The provisions of subsection (2) (b) shall apply with the necessary changes to an officer who wishes to retire in terms of paragraph (a).

  1.  
    1. Subject to this section and the terms and conditions of a contract contemplated in section 12 (2), an officer who occupies the office of head of department has the right to retire from the public service and he or she shall be so retired at the expiry of the term contemplated in that section, or of any extended term contemplated therein, as the case may be.
    2. If an employee so retires or is retired in terms of paragraph (a), he or she shall be deemed to have been dismissed from the public service in terms of section 17 (2) (b).

  2. An officer, other than a member of the services or an educator or a member of the State Security Agency who has reached the age of 60 years may, subject in every case to the approval of the relevant executive authority, be retired from the public service.

  3.  
    1. Subject to the terms and conditions of a contract contemplated in section 12 (2), an executive authority may, at the request of an employee occupying the office of head of department, allow him or her to retire from the public service before the expiry of the term contemplated in section 12 (2), or any extended term contemplated therein, and notwithstanding the absence of any reason for dismissal in terms of section 17 (2) or the contract concluded with the employee, as the case may be, if sufficient reason exists for the retirement.
    2. If an officer is allowed to retire from the public service in terms of paragraph (a), he or she shall, notwithstanding anything to the contrary contained in subsection (4), be deemed to have retired in terms of that subsection, and he or she shall be entitled to such pension as he or she would have been entitled to if he or she had retired from the public service in terms of that subsection.

  4.  
    1. An executive authority may, at the request of an employee, allow him or her to retire from the public service before reaching the age of 60 years, notwithstanding the absence of any reason for dismissal in terms of section 17 (2), if sufficient reason exists for the retirement./li>
    2. If an employee is allowed to so retire, he or she shall, notwithstanding anything to the contrary contained in subsection (4), be deemed to have retired in terms of that subsection, and he or she shall be entitled to such pension as he or she would have been entitled to if he or she had retired from the public service in terms of that subsection.

  5. If it is in the public interest to retain an officer, other than a member of the services or an educator or a member of the State Security Agency, in his or her post beyond the age at which he or she is required to be retired in terms of subsection (1), he or she may, with his or her consent and with the approval of the relevant executive authority, be so retained from time to time for further periods which shall not, except with the approval of Parliament granted by resolution, exceed in the aggregate two years.

16A.   Failure to comply with Act

  1. An executive authority shall-
    1. immediately take appropriate disciplinary steps against a head of department who does not comply with a provision of this Act or a regulation, determination or directive made thereunder;
    2. immediately report to the Minister the particulars of such non-compliance; and
    3. as soon as possible report to the Minister the particulars of the disciplinary steps taken.

  2. A head of a department shall-
    1. immediately take appropriate disciplinary steps against an employee of the department who does not comply with a provision of this Act or a regulation, determination or directive made thereunder;
    2. immediately report to the Director-General: Public Service and Administration the particulars of such non-compliance; and
    3. as soon as possible report to that Director-General the particulars of the disciplinary steps taken.

  3. The Minister may report to the Cabinet or, through the relevant Premier, to the Executive Council of the relevant province any non-compliance by an executive authority with a provision of this Act or a regulation, determination or directive made thereunder.
  4. The Minister shall at least annually submit to the relevant committees of Parliament dealing with matters relating to the public service and, through the relevant Premier, to any similar committee of the relevant provincial legislature, every non-compliance with a provision of this Act or a regulation, determination or directive made thereunder-
    1. reported in terms of subsection (1) or (2); or
    2. confirmed in an investigation in terms of section 5 (8).

16B.   Discipline

  1. Subject to subsection (2), when a chairperson of a disciplinary hearing pronounces a sanction in respect of an employee found guilty of misconduct, the following persons shall give effect to the sanction:
    1. In the case of a head of department, the relevant executive authority; and
    2. in the case of any other employee, the relevant head of department.

  2. Where an employee may lodge an internal appeal provided for in a collective agreement or in a determination in terms of section 3 (5), a sanction referred to in subsection (1) may only be given effect to-
    1. if an internal appeal is lodged, after the appeal authority has confirmed the sanction pronounced by the chairperson of a disciplinary hearing; or
    2. if no internal appeal is lodged, after the expiry of the period within which the appeal must have been lodged.

  3. The Minister shall by regulation make provision for-
    1. a power for chairpersons of disciplinary hearings to summon employees and other persons as witnesses, to cause an oath or affirmation to be administered to them, to examine them, and to call for the production of books, documents and other objects; and
    2. travel, subsistence and other costs and other fees for witnesses at disciplinary hearings.

  4. If an employee of a department (in this subsection referred to as 'the new department'), is alleged to have committed misconduct in a department by whom he or she was employed previously (in paragraph (b) referred to as 'the former department'), the head of the new department-
    1. may institute or continue disciplinary steps against that employee; and
    2. shall institute or continue such steps if so requested-
      1. by the former executive authority if the relevant employee is a head of department; or
      2. by the head of the former department, in the case of any other employee.

  5. In order to give effect to subsection (4), the two relevant departments shall co-operate, which may include exchanging documents and furnishing such written and oral evidence as may be necessary.

  6. If notice of a disciplinary hearing was given to an employee, the relevant executive authority shall not agree to a period of notice of resignation which is shorter than the prescribed period of notice of resignation applicable to that employee.

17.   Termination of employment

  1.  
    1. Subject to paragraph (b), the power to dismiss an employee shall vest in the relevant executive authority and shall be exercised in accordance with the Labour Relations Act.
    2. The power to dismiss an employee on account of misconduct in terms of subsection (2) (d) shall be exercised as provided for in section 16B (1).

  2. An employee of a department, other than a member of the services, an educator or a member of the Intelligence Services, may be dismissed on account of-
    1. incapacity due to ill health or injury;
    2. operational requirements of the department as provided for in the Labour Relations Act;
    3. incapacity due to poor work performance; or
    4. misconduct.

  3.  
      1. An employee, other than a member of the services or an educator or a member of the Intelligence Services, who absents himself or herself from his or her official duties without permission of his or her head of department, office or institution for a period exceeding one calendar month, shall be deemed to have been dismissed from the public service on account of misconduct with effect from the date immediately succeeding his or her last day of attendance at his or her place of duty.
      2. If such an employee assumes other employment, he or she shall be deemed to have been dismissed as aforesaid irrespective of whether the said period has expired or not.

    2. If an employee who is deemed to have been so dismissed, reports for duty at any time after the expiry of the period referred to in paragraph (a), the relevant executive authority may, on good cause shown and notwithstanding anything to the contrary contained in any law, approve the reinstatement of that employee in the public service in his or her former or any other post or position, and in such a case the period of his or her absence from official duty shall be deemed to be absence on vacation leave without pay or leave on such other conditions as the said authority may determine.

  4.  
    1. A person-
      1. dismissed in terms of subsection (2) (d) for misconduct, including misconduct relating to the offering or receipt of any undue gratification or the facilitation of such offering or receipt; or
      2. deemed to be dismissed in terms of subsection (3), may only be re-employed by any department after the expiration of a prescribed period.

    2. Different periods may be so prescribed for different categories of misconduct.
    3. Notwithstanding the condition contained in paragraph (a) that an employee may only be re-employed in any department after the expiration of a prescribed period, the Minister may prescribe acts of misconduct in respect of which no period need expire before a person is again employed in a department.
    4. Subject to paragraph (a), a decision whether or not to re-employ a person dismissed in terms of subsection (2) (d) shall be taken with due regard to the nature of the misconduct concerned.