By Prof. Busisiwe Mavuso
- The signing of the Public Service Commission Act into law last week, alongside the Public Service Amendment Act and the Public Administration Management Amendment Act also recently signed, represents a significant overhaul of the rules governing South Africa’s civil service.
- Together, these three laws remove political patronage in appointments, close off conflicts of interest, and give the PSC real enforcement powers – including criminal penalties for obstruction – for the first time.
- The legislation does not mean effectiveness. The PSC cannot fulfil its vastly expanded mandate on its current budget, and the NPA must be willing to prosecute if the new powers are to mean anything.
- Meanwhile, we seem to be reversing progress abroad in respect of our relationship with the United States. We must be pragmatic about a relationship that is significant for our economy.
The professionalisation of the civil service is a key matter for organised business in our effort to support improved service delivery. The good news is that some important steps have been taken by the government to improve performance, including the signing into law last week of the Public Service Commission (PSC) Act. This will extend the function of the PSC to cover municipalities and public entities, and give it some real teeth to enforce improved practices across government. It comes after several other new laws and amendments that will help create competent and clean public service delivery.
The PSC Act enables the PSC to direct executive authorities in public entities to report back on progress in implementing decisions. Previously, its decisions could be largely ignored with no consequences. Now obstruction of the PSC is a criminal offence carrying up to 12 months in prison or a fine of up to R50,000, or both. The PSC will have the power to robustly impose changes to improve service delivery. No longer will it be a body that just writes reports that gather dust.
Of course, as with any legislation, the laws mean nothing if they aren’t implemented. The PSC will need the capacity to be able to investigate and monitor performance. To help, the new legislation creates a secretariat to support its operations, while the commissioners will now be appointed through a process that ensures its constitutional independence. But the PSC has in the past seen resources diverted away from it, forcing it to cut back staff even while its workload was growing. It was already struggling to monitor national and provincial government; the addition of 257 municipalities and several other public bodies will stretch its resources even further. I cannot see the PSC becoming effective without meaningful increases in its budget. Let us see if the next Budget delivers the necessary resources.
It will also need the National Prosecuting Authority to act on cases of obstruction of the PSC if its teeth are to have any bite. So while the legal architecture is stronger, we still need to see whether it will be able to make a difference at the coalface of municipal service delivery.
The new act follows several others, including last year’s Public Service Amendment Act (PSA), which removed politicians’ power to appoint civil servants below the head of department level, moving the authority to directors general and heads of department. That effectively ends political meddling in civil servant appointments below the most senior appointments and empowers the heads of departments to appoint and hold accountable their own teams. Of course, DG appointments will remain political decisions, so we do need our politicians to make good choices. But that is as a democracy should be. Beyond senior appointments, however, the managers are now left to get on with doing the job.
A third key piece of legislation was the Public Administration Management Amendment (PAMA) Act that focuses on the ethical conduct of public office bearers. It prohibits public servants from conducting business with the state or being directors of companies that do. It introduces a 12-month cooling-off period preventing those involved in assessing tender bids from providing any services to an awarded provider. It also formalises the National School of Government as a national department with a mandate to train civil servants.
Together, these three pieces of legislation amount to a significant overhaul of the rules governing the civil service. The PSA removes patronage and the cadre deployment approach to civil service appointments, the PAMA closes out conflict of interest problems such as civil servants conducting business with the state and the PSC Act provides for oversight and consequences for those who do not act appropriately.
These are all very good and credit belongs to the Department of Public Service and Administration, and specifically to former minister Mondli Gungubele and his successor, Inkosi Buthelezi, who drove this legislation through. It is a great achievement, and represents the Government of National Unity at its best, especially considering the two key ministers are from different parties. But the hard work now lies ahead to turn these powers into real effectiveness. And that cannot be done by one department alone – it needs all the state monitoring and oversight machinery as well as the criminal justice system to be effective. That is why, ultimately, we cannot succeed until we get all of government working effectively.
But do not let that high bar discourage us. The fact that these statutes are on the books shows we have made significant progress. We are not the country we were at the end of State Capture. We sometimes forget how far we’ve come, given that so much still needs to be done.
Our relationship with the United States has been difficult since President Trump began his second presidency. That is despite the many links between South Africans and Americans, made so obvious by the packed stadium when the Springboks took on the All Blacks in Baltimore recently. But while our peoples have so many professional, cultural and personal connections, relations at the political level are strained. The announcement last week by Secretary of State Marco Rubio of a new visa restriction policy targeting South African officials over what he described as “race-based discrimination” is another unhelpful move. There is no information on who specifically is targeted so it will have a chilling effect on diplomatic ties with the country.
Of course, our sovereignty is important, but we must protect both our right to determine domestic policy and our national economic interest in maintaining constructive relationships with important trading and investment partners. For business, this cannot become an ideological contest about whether you’re for Washington or Pretoria. We are for South Africa, which means defending our sovereignty and constitutional democracy while also recognising that hundreds of thousands of South African livelihoods are connected to our economic relationship with the United States. Those two positions are not contradictory. They require mature, pragmatic diplomacy.
I am confident that President Cyril Ramaphosa, and our ambassador in the US, Roelf Meyer, will navigate the line with care. It is not the time for any rash response.
