CHAPTER THREE
ORGANISATION AND STAFF (ss 7-8)

 

7.   Public service, departments and heads of departments

  1. The public service established by section 197 (1) of the Constitution shall be structured and organised as provided for in this Act.

  2. For the purposes of the administration of the public service there shall be-
    1. national departments and Offices of the Premier mentioned in column 1 of Schedule 1;
    2. provincial departments mentioned in column 1 of Schedule 2;
    3. national government components mentioned in column 1 of Part A of Schedule 3; and
    4. provincial government components mentioned in column 1 of Part B of Schedule 3.

  3.  
    1. Each department shall have a head who shall be the incumbent of the post on the establishment bearing the designation mentioned in column 2 of Schedule 1, 2 or 3 opposite the name of the relevant department or component, or the employee who is acting in that post.
    2. Subject to the provisions of paragraphs (c) and (d), a head of department shall be responsible for the efficient management and administration of his or her department, including the effective utilisation and training of staff, the maintenance of discipline, the promotion of sound labour relations and the proper use and care of State property, and he or she shall perform the functions that may be prescribed.
    3. In addition to any power or duty entrusted or assigned by or under this Act or any other law to the head of the Office of a Premier, the said head shall-
      1. be the Secretary to the Executive Council of the province concerned;
      2. subject to sections 85 (2) (c) and 125 (2) (e) of the Constitution, be responsible for intergovernmental relations on an administrative level between the relevant province and other provinces as well as national departments and national government components and for the intra-governmental co-operation between the relevant Office of the Premier and the various provincial departments and provincial government components, including the co-ordination of their actions and legislation; and
      3. subject to paragraph (d), be responsible for the giving of strategic direction on any matter referred to in section 3 (1).

    4. The head of the Office of a Premier shall in respect of a provincial department of the relevant province exercise no power or perform no duty which is entrusted or assigned by or under this Act or any other law to the head of the provincial department.
    5. ...... (deleted)

  4. ...... (deleted)

  5. Subject to section 7A and the principles contained in section 195 of the Constitution, the President may by proclamation in the Gazette-
    1. on the advice of the Minister amend Schedule 1 so as to establish or abolish any national department, designate such department and the head thereof or amend any such designation; or
    2. at the request of the Premier of a province amend Schedule 2 so as to reflect the establishment, abolition, designation or amendment in respect of any provincial department contemplated in section 3A (a) (i);
    3. at the request of the relevant executive authority and on the advice of the Minister and the Minister of Finance amend Part A of Schedule 3 so as to establish or abolish any national government component or establish an existing body as such a component or designate any such component and the head and principal department thereof or amend any such designation; or
    4. at the request of the Premier of a province amend Part B of Schedule 3 so as to reflect the establishment, abolition, designation or amendment in respect of a provincial government component contemplated in section 3A (a) (ii).

  6. The President shall give effect to any request referred to in subsection (5) (b) or (d) if the President is satisfied that it is consistent with the provisions of the Constitution, this Act and any other applicable law.

  7. Only the head of a national department and the Office of a Premier may bear the designation of 'Director-General'.

7A.   Government components

  1. An executive authority may only request the establishment of a government component in terms of section 7 (5) (c) or (d) if the prescribed feasibility study is conducted and its findings recommend the establishment of such component.

  2. Subject to subsection (3), the head of a government component, established in terms of section 7 (5) (c) or (d), may have any one or more of the following powers or duties or both such powers and duties:
    1. Powers conferred, or duties imposed, by national or provincial legislation;
    2. powers or duties assigned in terms of subsection (5) or other legislation;
    3. powers or duties delegated in terms of subsection (6) or other legislation; and
    4. functions allocated or transferred in terms of section 3 (4) (b) or (c).

  3. No power, duty or function regarding the realisation of a right contemplated in section 26, 27, 28 or 29 of the Constitution and other prescribed powers, duties and functions, may be assigned or delegated, allocated or transferred in terms of subsection (2) (b), (c) or (d).

  4. For each government component, the relevant executive authority, after consultation with the Minister and the Minister of Finance, and by notice in the Gazette-
    1. shall list-
      1. the relevant provisions of legislation which confer powers, and impose duties, on the head of the component; and
      2. a reference to each notice regarding assigned powers and duties of the head of the component contemplated in subsection (5);

    2. may list the delegated powers and duties of the head of the component contemplated in subsection (6);
    3. shall, subject to applicable legislation, determine the reporting requirements to the head of the principal department to enable that head to advise the relevant executive authority on the oversight of the component on policy implementation, performance, integrated planning, budgeting and service delivery (insofar as applicable);
    4. may include any administrative or operational matter relating to the component, including the sharing of internal services with the principal department;
    5. may establish an advisory board without executive functions for the component and determine the board's composition, appointment procedure and remuneration and all matters required for its effective and efficient functioning; and
    6. may include any other matter necessary for the effective and efficient functioning of the component.

  5.  
    1. Notwithstanding anything to the contrary in any other law, but subject to subsection (3), the executive authority of a government component may assign to the head of that component any power conferred, or duty imposed, on-
      1. that executive authority (except the making of regulations) by national legislation; or
      2. any official of the principal department of that component by national legislation.

    2. Such assignment is subject to-
      1. if the executive authority is not the Minister responsible for the administration of the national legislation in question (in this section referred to as 'the responsible Minister'), consultation with that Minister;
      2. the approval of Parliament of the intended notice as contemplated in this subsection; and
      3. publication by notice in the Gazette.

    3. The notice shall stipulate-
      1. the powers and duties to be assigned in terms thereof;
      2. the effective date of the assignment; and
      3. the conditions that the executive authority considers appropriate.

    4. The responsible Minister shall table the notice in Parliament for approval.
    5. Parliament may reject the notice within 90 days after it has been tabled, if Parliament is then in ordinary session, or, if Parliament is not then in ordinary session, within 45 days after the commencement of its next ensuing ordinary session.
    6. If Parliament rejects such notice, the responsible Minister may table an amended notice in Parliament.
    7. If the responsible Minister tables an amended notice and Parliament-
      1. approves the amended notice, the responsible Minister must publish that notice in terms of paragraph (b) (iii) within 30 days of the Parliament's approval; or
      2. rejects the amended notice within 90 days after it has been tabled, if Parliament is then in ordinary session, or, if Parliament is not then in ordinary session, within 45 days after the commencement of its next ensuing ordinary session, paragraph (f) and this paragraph apply.

    8. If Parliament does not reject a notice as contemplated in paragraph (e) or (g)(ii) -
      1. such notice shall be deemed to have been approved by Parliament; and
      2. the responsible Minister must publish the notice in terms of paragraph (b) (iii) within 30 days after the periods referred to in paragraph (e) or (g) (ii), as the case may be.

    9. A notice may at any time in like manner be amended or withdrawn.
    10. Any assignment in terms of this subsection shall divest the person whom was vested with the assigned power or duty.

  6. Notwithstanding anything to the contrary in any other law, the executive authority of a government component or the head of the principal department of that component may, except a power or duty to make regulations-
    1. delegate to the head of the component any power conferred on that executive authority or head of the principal department by this Act or any other national legislation; or
    2. authorise the head of the component to perform any duty imposed on the executive authority or head of the principal department by this Act or any other national legislation.

  7. The head of a government component may-
    1. delegate to an employee of the component any power assigned or delegated to that head in terms of subsection (5) or (6) (a); or
    2. authorise an employee of the component to perform any duty assigned to that head in terms of subsection (5) or any duty that that head is authorised to perform in terms of subsection (6) (b).

  8. Any delegation of a power or authorisation to perform a duty in terms of subsection (6) or (7)-
    1. shall be subject to the conditions the person who made the delegation or granted the authorisation considers appropriate;
    2. shall be in writing;
    3. does not prevent the person who made the delegation or granted the authorisation from exercising that power or performing that duty himself or herself; and
    4. may at any time be withdrawn in writing by that person.

  9. Nothing in this Act prevents the assignment or delegation of powers or duties to the head of a provincial government component in accordance with provincial legislation of the province in question.

7B.   Specialised service delivery unit within department

  1.  
    1. An executive authority of-
      1. a national department may, in consultation with the Minister;
      2. the Office of the Premier may, after consultation with the Minister; or
      3. a provincial department may, in consultation with the Premier and after consultation with the Minister, establish or abolish a special service delivery institution within that department or Office and designate any such unit and the head thereof, or amend any such designation.

    2. The Minister shall by notice in the Gazette give effect to such establishment, abolition, designation or amendment.

  2. An executive authority may only request the establishment of a unit if the prescribed feasibility study is conducted and the outcome thereof recommends its establishment.

  3. The head of a unit may have any one or more of the following powers or duties or both such powers and duties:
    1. Powers conferred, or duties imposed, by national or provincial legislation;
    2. powers or duties assigned in terms of subsection (5) or other legislation;
    3. powers or duties delegated in terms of subsection (6) or other legislation; and
    4. functions allocated or transferred in terms of section 3 (4) (b) or (c).

  4. The relevant executive authority shall approve a protocol for each unit which-
    1. shall list-
      1. the relevant provisions of legislation which confer powers, and impose duties, on the head of the unit; and
      2. a reference to each notice regarding assigned powers and duties of the head of the unit, contemplated in subsection (5);

    2. may list the delegated powers and duties of the head of the unit contemplated in subsection (6), (7) or (10);
    3. shall, subject to applicable legislation determine the reporting requirements to the head of the department, including, but not limited, to enabling that head to advise the relevant executive authority on the oversight of the unit on policy implementation, performance, integrated planning, budgeting and service delivery (insofar as applicable);
    4. may include any administrative or operational matter relating to the unit, including the sharing of internal services of the department;
    5. may establish an advisory board without executive functions for the unit and determine the board's composition, appointment procedure and remuneration and all matters required for its effective and efficient functioning; and
    6. may include any other matter necessary for the effective and efficient functioning of the unit.

  5. Notwithstanding anything to the contrary in any other law, section 7A (5) applies with the changes required by the context to the assignment by the executive authority of a department to the head of the unit of any power conferred, or duty imposed, on-
    1. that executive authority (except the making of regulations) by national legislation; or
    2. any official of the department by national legislation.

  6. Notwithstanding anything to the contrary in any other law, the executive authority or the head of a department may, except a power or duty to make regulations-
    1. delegate to the head of a unit in the department any power conferred on that executive authority or head of the department by national legislation (other than this Act and the Public Finance Management Act); or
    2. authorise the head of the unit to perform any duty imposed on the executive authority or head of the department by national legislation (other than this Act and the Public Finance Management Act).

  7. Notwithstanding section 42A, the executive authority or the head of a department may, in respect of a unit-
    1. delegate a power conferred on the executive authority or the head by this Act in respect of a unit, only to the head of that unit; or
    2. only authorise the head of that unit to perform a duty imposed on the executive authority or the head of the department by this Act.

  8. The head of a unit may-
    1. delegate to an employee of the unit any power assigned or delegated to that head in terms of subsection (5), (6) (a) or (7) (a); or
    2. authorise an employee of the unit to perform any duty assigned to that head in terms of subsection (5) or any duty that that head is authorised to perform in terms of subsection (6) (b) or (7) (b).

  9. Any delegation of a power or authorisation to perform a duty in terms of subsection (6), (7) or (8)-
    1. shall be subject to the conditions the person who made the delegation or granted the authorisation considers appropriate;
    2. shall be in writing;
    3. does not prevent the person who made the delegation or granted the authorisation from exercising that power or performing that duty himself or herself; and
    4. may at any time be withdrawn in writing by that person.

  10.  
    1. Subject to the approval of the relevant Treasury, as defined in section 1 of the Public Finance Management Act, the accounting officer of a department shall-
      1. delegate all powers conferred by that Act and any regulations and instructions made or issued thereunder, on that accounting officer in respect of a unit in that department to the head of that unit;
      2. authorise the head of a unit to perform all duties imposed by that Act and any regulations and instructions made or issued thereunder, on that accounting officer in respect of the unit in that department.

    2. Any such delegation or authorisation shall be subject to section 44 (2) and (3) of the Public Finance Management Act, except that the delegation or authorisation may only be revoked under such circumstances as determined by treasury regulations or instructions made or issued in terms of section 76 of the Public Finance Management Act, read with this section.
    3. The head of the unit may, subject to section 44 (2) and (3) of the Public Finance Management Act-
      1. delegate any power, delegated to the head in terms of paragraph (a), to an employee in the unit;
      2. instruct an employee in the unit to perform a duty that the head is authorised to perform in terms paragraph (a).

    4. Accountability for the compulsory delegations and authorisations contemplated in paragraph (a) shall be as determined by treasury regulations or instructions made or issued in terms of section 76 of the Public Finance Management Act, read with this section.

  11. Nothing in this Act prevents the assignment or delegation of powers or duties to the head of a unit in the Office of a Premier or a provincial department in accordance with provincial legislation of the province in question.

8.   Composition of public service

  1. The public service shall consist of persons who are employed-
    1. in posts on the establishment of departments; and
    2. additional to the establishment of departments.

  2. Subject to the prescribed conditions, any person referred to in subsection (1) may be employed permanently or temporarily and in a full-time or part-time capacity.

  3. For the purpose of this Act, in relation to employment-
    1. the word 'permanently' or 'permanent', in respect of an employee, means an employee to whom a retirement age referred to in section 16 applies; and
    2. the word 'temporarily' or 'temporary', in respect of an employee, means not permanently employed.