PUBLIC SERVICE ACT, 1994

AS PROPOSED TO BE AMENDED BY PUBLIC SERVICE AMENDMENT BILL [B31-2006]

NOTE:

Text strike-through are also proposed be omitted or text in square brackets and bold are proposed to be omitted

Underlined text are proposed new provisions or insertions/amendments

To provide for the organisation and administration of the public service of the Republic, the regulation of the conditions of employment, terms of office, discipline, retirement and discharge of members of the public service, and matters connected therewith.

ARRANGEMENT OF SECTIONS

CHAPTER I

INTERPRETATION AND APPLICATION OF ACT

1. Definitions

2. Application of Act

CHAPTER II

ADMINISTRATION OF THE PUBLIC SERVICE, INCLUDING THE SOUTH AFRICAN MANAGEMENT AND DEVELOPMENT INSTITUTE

3. Functions of Minister and executing authorities

3A. Functions of Premiers

4. South African Management and Development Institute and Training Fund

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

6. Access to documents and information by Minister

CHAPTER III

ORGANISATION AND STAFF

7. Public service, departments and heads of departments

7A. Government agencies

8. Composition of public service

CHAPTER IV

EMPLOYMENT IN PUBLIC SERVICE

8A. Mechanisms for obtaining services of persons

9. Appointments in public service

10. Qualifications for appointment

11. Appointments and filling of posts

12. Appointment of heads of department and career incidents

12A. Appointment of persons on grounds of policy considerations

13. Appointment or transfer on probation

14. Transfers within public service

14A. Change in employment capacity

15. Transfer and secondment from and to public service

CHAPTER V

TERMINATION OF SERVICE

16. Retirement and retention of services

16A. Failure to comply with Act

16B. Discipline

17. Discharge of officers

CHAPTER VI

INEFFICIENCY AND MISCONDUCT

18 to 27. . . . . . .

CHAPTER VII

OBLIGATIONS, RIGHTS AND PRIVILEGES OF EMPLOYEES

28. Rights and obligations

29. Saving regarding rights and obligations

30. Other remunerative work by employees

31. Unauthorized remuneration

32. Direction to perform other functions or to act in another post

33. Cession of emoluments

34. Reduction of salaries

35. Grievances of employees

36. Employees as candidates for, and becoming members of, legislatures

CHAPTER VIII

MISCELLANEOUS

37. Remuneration of employees

38. Wrongly granted remuneration

39. . . . . . .

40. Limitation of liability

41. Regulations

42. Public Service Handbooks

42A. Delegation

43. Repeal of laws and savings

44. Short title

Schedule 1 Departments and heads of department

Schedule 2 Provincial departments and heads of provincial departments

Schedule 3 Organisational components and heads thereof

Schedule 4 Laws repealed by section 43 (1)

CHAPTER I

INTERPRETATION AND APPLICATION OF ACT

1.   Interpretation.—(1)  In this Act, unless the context indicates otherwise—

“Academy” means the South African National Academy of Intelligence as defined in section 1 of the Intelligence Services Act, 2002;

[Definition of “Academy” inserted by s. 40 (1) of Act No. 65 of 2002.]

“Agency” means the Agency as defined in section 1 of the Intelligence Services Act, 2002 (Act No. 65 of 2002);

[Definition of “Agency” inserted by s. 32 (1) of Act No. 38 of 1994 and substituted by s. 25 (1) of Act No. 52 of 2003.]

Wording of Sections

“agreement”  . . . . . .

[Definition of “agreement” substituted by s. 27 (1) of the Public Service Labour Relations Act, 1994 and deleted by s. 1 (a) of Act No. 47 of 1997.]

Wording of Sections

“calendar month” means a period extending from a day in one month to a day preceding the day corresponding numerically to that day in the following month, both days inclusive;

“central level”  . . . . . .

[Definition of “central level” substituted by s. 27 (1) of the Public Service Labour Relations Act, 1994 and deleted by s. 1 (a) of Act No. 47 of 1997.]

Wording of Sections

“Commission” means the Public Service Commission established by section 196 (1) of the Constitution;

[Definition of “Commission” substituted by s. 1 (b) of Act No. 47 of 1997.]

Wording of Sections

“Commission Act” means the Public Service Commission Act, 1997;

[Definition of “Commission Act” substituted by s. 1 (c) of Act No. 47 of 1997.]

Wording of Sections

“Constitution” means the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996);

“department” means a national department, a provincial administration or a provincial department;

“educator” means a teacher or other person performing education functions at a state educational institution;

“employee” means a person contemplated in section 8 (1) (c);

“executing authority”, in relation to—

(a) the Office of the President, means the President acting on his or her own;

(b) the Office of the Deputy President, means the Deputy President;

(c) a department or organisational component within a Cabinet portfolio, means the Minister responsible for such portfolio;

(d) the Office of the Commission, means the Chairperson of the Commission;

(e) the Office of a Premier of a province, means the Premier of that province acting on his or her own; and

( f ) a provincial department within an Executive Council portfolio, means the member of such Executive Council responsible for such portfolio;

“fixed establishment” means the posts which have been created for the normal and regular requirements of a department;

“head of department”, “head of a department” or “head of the department” means the incumbent of a post mentioned in the second column of Schedule 1 or 2, and includes any officer acting in such post;

“information technology” means all aspects of technology which are used to manage and support the efficient gathering and utilisation of information as a strategic resource;

“Minister” means the Minister for the Public Service and Administration;

“month” means a period extending from the first to the last day, both days inclusive, of any one of the 12 months of a year;

“national department” means a national department referred to in section 7 (2);

[Definition of “national department” substituted by s. 1 (d) of Act No. 86 of 1998.]

Wording of Sections

“officer” means a person who has been appointed permanently, notwithstanding that such appointment may be on probation, to a post contemplated in section 8 (1) (a), and includes a person contemplated in section 8 (1) (b) or 8 (3) (c);

“prescribed” means prescribed by or under this Act;

“provincial administration” means a provincial administration referred to in section 7 (2), but does not include a provincial department in so far as this Act deals with any matter in respect of which a power or duty is entrusted or assigned by or under this Act or any other law to the head of the provincial department or the relevant executing authority;

“provincial department” means a provincial department referred to in section 7 (2);

“public service” means the public service contemplated in section 8;

“regulation” means a regulation made or deemed to have been made under this Act;

“revenue” means the National Revenue Fund established by section 213 (1) of the Constitution or, in relation to any province, the relevant Provincial Revenue Fund established by section 226 (1) of the Constitution, as the case may be;

“salary range” means a minimum and maximum salary limit linked to a specific level of work;

“scale”, in relation to salary, includes salary at a fixed rate;

“Service” means the Service as defined in section 1 of the Intelligence Services Act, 2002 (Act No. 65 of 2002);

“state educational institution” means an institution (including an office controlling such institution), other than a university or technikon, which is wholly or partially funded by the State and in regard to which the remuneration and service conditions of educators are determined by law;

Wording of Sections

“the services” means—

(a) the Permanent Force of the National Defence Force;

(b) the South African Police Service; and

(c) the Department of Correctional Services;

“this Act” includes the regulations and Public Service Staff Code mentioned in sections 41 and 42, respectively;

“transfer” includes a change-over to a regraded or renamed post, or from one grade to a higher grade connected to the same post, or from one rank to a higher rank;

“Treasury” means—

(a) the Minister of Finance or a duly authorised officer in the Department of State Expenditure; or

(b) the member of an Executive Council of a province responsible for the execution of the treasury function in that province or a duly authorised officer in his or her office or department,

as the case may be.

Definitions

1. In this Act, unless the context otherwise indicates—

‘accounting officer’ means an accounting officer as defined in section 1 of the Public Finance Management Act;

‘calendar month’ means a period extending from a day in one month to a day preceding the day corresponding numerically to that day in the following month, both days inclusive;

‘collective agreement’ means a collective agreement referred to in section 5(3);

‘Commission’ means the Public Service Commission established by section 196(1) of the Constitution;

‘Commission Act’ means the Public Service Commission Act, 1997 (Act No. 46 of 1997);

‘Constitution’ means the Constitution of the Republic of South Africa, 1996;

‘days’ means any days other than Saturdays, Sundays or public holidays as defined in terms of the Public Holidays Act, 1994 (Act No. 36 of 1994);

‘department’ means a national department, a national government agency, the Office of a Premier, a provincial department or a provincial government agency;

‘educator’ means an educator as defined in section 1 of the Employment of Educators Act, 1998 (Act No. 76 of 1998);

‘electronic government’ means the use of information and communication technologies in the public service to improve its internal functioning and to render services to the public;

‘employee’ means a person contemplated in section 8, but excludes a person appointed in terms of section 12A;

‘employment practice’ includes—

(a) recruitment procedures, advertising and selection criteria;

(b) appointment and the appointment process;

(c) job and occupational classification and grading;

(d) remuneration and other conditions of service;

(e) job assignments;

(f) the working environment;

(g) work facilities;

(h) training and development;

(i) employee performance management systems and practices;

(j) transfer and secondment;

(k) discipline;

(l) management of poor performance and ill health;

(m) termination of employment;

‘establishment’ means the posts which have been created for the normal and regular requirements of a department;

‘executive authority’, in relation to—

(a) the Presidency or a national government agency within the President’s portfolio, means the President;

(b) a department or national government agency within a Cabinet portfolio, means the Minister responsible for such portfolio;

(c) the Office of the Commission, means the Chairperson of the Commission;

(d) the Office of a Premier or a provincial government agency within a Premier’s portfolio, means the Premier of that province; and

(e) a provincial department or a provincial government agency within an Executive Council portfolio, means the member of the Executive Council responsible for such portfolio;

‘government agency’ means a national government agency or a provincial government agency;

‘gratification’ means gratification as defined in section 1 of the Prevention and Combating of Corrupt Activities Act, 2004 (Act No. 12 of 2004);

‘head of department’, ‘head of a department’ or ‘head of the

department’ means the incumbent of a post mentioned in Column 2 of Schedule 1, 2 or 3 and includes any employee acting in such post;

‘Labour Relations Act’ means the Labour Relations Act, 1995 (Act No. 66 of 1995);

‘member of the Intelligence Services’ means a member of—

(a) the National Intelligence Agency appointed, or deemed to have been appointed, in terms of the Intelligence Services Act, 2002 (Act No. 65 of 2002);

(b) the South African National Academy of Intelligence appointed, or deemed to have been appointed, in terms of that Act; or

(c) the South African Secret Service appointed, or deemed to have been appointed, in terms of that Act;

‘member of the services’ means a member of—

(a) the Regular Force of the South African National Defence Force appointed, or deemed to have been appointed, in terms of the Defence Act, 2002 (Act No. 42 of 2002);

(b) the South African Police Service appointed, or deemed to have been appointed, in terms of the South African PoliceService Act, 1995 (Act No. 68 of 1995); or

(c) the Department of Correctional Services appointed, or deemed to have been appointed, in terms of the Correctional Services Act, 1998 (Act No. 111 of 1998);

‘Minister’ means the Minister for the Public Service and Administration;

‘month’ means a period extending from the first to the last day, both days inclusive, of any one of the 12 months of a year;

‘national department’ means a national department referred to in section 7(2);

‘national government agency’ means a national government agency referred to in section 7(2);

‘Office of a Premier’ means the Office of a Premier referred to in section 7(2);

‘organ of state’ means an organ of state as defined in section 239 of the Constitution;

‘post’ means a post on the establishment for which financial provision exists;

‘prescribed’ means prescribed by regulation;

‘principal department’, in relation to a national or provincial government agency, means the department listed in column 3 in Part A or B of Schedule 3;

‘provincial department’ means a provincial department referred to in section 7(2);

‘provincial government agency’ means a provincial government agency referred to in section 7(2);

‘Public Finance Management Act’ means the Public Finance Management Act, 1999 (Act No. 1 of 1999);

‘public service’ means the public service contemplated in section 8;

‘regulation’ means a regulation made in terms of section 41;

‘revenue’ means the National Revenue Fund established by section 213(1) of the Constitution or, in relation to any province, the relevant Provincial Revenue Fund established by section 226(1) of the Constitution, as the case may be;

‘salary level’ means a set of salaries;

‘salary scale’ means a set of salary levels from a minimum to a maximum;

‘this Act’ includes the regulations, determinations, deemed determinations and directives made in terms of this Act.

(2)  Any reference in this Act to a reduction in a scale of salary or salary, in relation to an officer, shall be construed as including a reference to the application of a scale of salary which is lower than the scale previously applied as regards the maximum of the scale, or to a salary which is lower in comparison with a salary which would have applied at any time prior to that reduction, as the case may be, and a reference in that connection to a reduction in grade or to a grade being lower than another grade shall be construed correspondingly.

(3)  Where it is uncertain who the executing authority or head of department is for the purposes of any act under this Act in respect of an officer or employee, the Minister shall indicate the authority or head to be regarded as the executing authority or head of department in the case concerned.

[Sub-s. (3) added by Proclama tion No. R.171 of 1994 and substituted by s. 1 ( j) of Act No. 47 of 1997.]

Application of Act

2.(1)  Except in so far as this section provides otherwise and except where it is inconsistent with the context or clearly inappropriate, the provisions of this Act shall apply to or in respect of officers and employees whether they are employed within or outside the Republic, and in respect of persons who were employed in the public service or who are to be employed in the public service.

(2)  Where persons employed in members of the services, or state educational institutions educators or members of the Intelligence Services are not excluded from the provisions of this Act, those provisions shall apply only in so far as they are not contrary to the laws governing their employment.

(2A) Notwithstanding subsection (2) and any other legislation to the contrary, the Minister may, after consultation with the relevant executive authority or authorities, determine that any conditions of service or anyother employment practice provided for by or under this Act shall apply to all or any category of—

(a) educators; or

(b) members of the services, except members of the Regular Force of the South African National Defence Force, appointed, or deemed to have been appointed, in terms of the Defence Act, 2002 (Act No. 42 of 2002).

(3)  Where persons employed in the Academy, the Agency or the Service are not excluded from the provisions of this Act, those provisions shall apply only in so far as they are not contrary to the laws governing their service, and those provisions shall not be construed as derogating from the powers or duties conferred or imposed upon the Academy, the Agency or the Service.

(4)  . . . . . .

(5)  (a)  All posts established in terms of a law repealed by this Act and existing immediately before the commencement of this Act, and all authorisations for employment of persons additional to such posts issued in terms of such a law and in force immediately before such commencement, shall save where clearly inappropriate, be deemed to have been established or issued under this Act.

(b)  All persons who immediately before the commencement of this Act were, by virtue of a law repealed by this Act, officers or employees in an institution referred to in section 236 (1) of the Interim Constitution, shall remain in employment and shall from such commencement be deemed, without break in service, to be officers or employees, as the case may be, and the provisions of this Act shall apply to or in respect of those officers or employees.

CHAPTER II

ADMINISTRATION OF THE PUBLIC SERVICE, INCLUDING THE SOUTH AFRICAN MANAGEMENT AND DEVELOPMENT INSTITUTE [AND THE TRAINING FUND]

3.   Functions of Minister and executing authority.—(1)  (a)  The Minister may exercise the powers and shall perform the duties entrusted to the Minister by or under this Act or any other law.

(b)  Where it is a requirement of this Act or of any other law that any executing authority or other person shall act in consultation with the Minister, the Minister may express his or her concurrence with the act in question or refuse to express it.

(2)  (a)  For the purposes of this subsection, any policy may relate to any of or all the following matters, namely—

(i) the functions of, and organisational arrangements in, the public service;

(ii) employment and other personnel practices, including the promotion of broad representivity as well as human resource management and training, in the public service;

(iii) the salaries and other conditions of service of officers and employees;

(iv) labour relations in the public service;

(v) information management and information technology in the public service;

(vi) public service transformation and reform.

(b)  The Minister shall accept responsibility for—

(i) any policy which relates to a matter referred to in paragraph (a); and

(ii) the provision of a framework of norms and standards with a view to giving effect to any such policy.

(3)  The Minister may—

(a) advise the President regarding the establishment or abolition of any department or organisational component in the national sphere of government, or the designation of any such department or organisational component or the head thereof, in order to enable the President to amend Schedule 1 or 3;

*(b) after consultation with the relevant executing authority or executing authorities, as the case may be, make determinations regarding the allocation of any function to, or the abolition of any function of, any department or the transfer of any function from one department to another or from a department to any other body or from any other body to a department: Provided that the provisions of this paragraph shall not be construed so as to empower the Minister—

(i) to allocate any function to, or to abolish any function of, any provincial administration or provincial department except in consultation with the Premier of the province concerned; or

(ii) to transfer any function from one provincial administration or provincial department to another or from a provincial administration or provincial department to any body established by or under any provincial law or from any such body to a provincial administration or provincial department;

(c) subject to the provisions of this Act, make determinations regarding the conditions of service of officers and employees generally, including the scales of salaries, wages or allowances of all the various classes, ranks and grades of officers and employees as well as salary ranges in respect of particular classes, ranks and grades of officers and employees;

(d) make regulations under section 41 (1);

(e) issue directives which are not inconsistent with this Act to elucidate or supplement any regulation.

(4)  (a)  If so requested by the President or an executing authority, the Minister may advise, or assist in such manner or on such conditions as the Minister may determine, the President or the relevant executing authority as to any matter relating to—

(i) the public service;

(ii) the employment, remuneration or other conditions of service of persons employed in a department in terms of any law other than this Act or of functionaries employed by any board, institution or body established by or under any law and which obtains its funds, either wholly or in part, from revenue;

(iii) the remuneration or other conditions of appointment of the officebearers of any such board, institution or body; or

(iv) the staffing, employment or other personnel practices of any such board, institution or body.

(b)  For the purposes of paragraph (a), the Minister has access to such official documents or may obtain such information from the chief executive officer of the relevant board, institution or body as may be necessary to advise or assist the President or the relevant executing authority.

(5)  Subject to the provisions of this Act, an executing authority shall have those powers and duties—

(a) regarding the internal organisation of the office or department concerned, including the organisational structure and the transfer of functions within that office or department;

(b) regarding the post establishment of that office or department, including the creation, grading and abolition of posts and the provision for the employment of persons additional to the fixed establishment where the class of work is of a temporary nature;

(c) regarding the recruitment, appointment, performance management, promotion, transfer, discharge and other career incidents of officers and employees of that office or department, including any other matter which relates to such officers and employees in their individual capacities,

which are entrusted to the executing authority by or under this Act, and such powers and duties shall be exercised or performed by the executing authority in accordance with the provisions of this Act.

(6)  (a)  The relevant executing authority may perform any act in connection with any matter which relates to or arises from the employment or the conditions of service of a former officer or employee whilst he or she was an officer or employee, provided that executing authority 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 officer or employee.

(b)  No such act shall be to the detriment of a former officer or employee, and the relevant executing authority shall not perform any such act in respect of any former officer or employee after the expiry of a period of two years after he or she ceased to be an officer or employee.

Functions of Minister and executive authorities

3. (1) The Minister is responsible for establishing norms and standards relating to—

(a) the functions of the public service;

(b) the organisational structures and establishments of departments and other organisational and governance arrangements in the public service;

(c) the conditions of service and other employment practices for employees;

(d) labour relations in the public service;

(e) health and wellness of employees;

(f) information management in the public service;

(g) electronic government;

(h) integrity, ethics, conduct and anti-corruption in the public service; and

(i) 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) (a) 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).

(b) 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—

(a) 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;

(b) after consultation with the relevant executive authority or executive authorities, as the case may be, make determinations regarding—

(i) the allocation of any function to, or the abolition of any function of, any national department or national government agency; or

(ii) the transfer of any function from one national department or national government agency to another or from a national department to a national government agency or any other body or from a national government agency to a national department or any other body or from any other body to a national department or national government agency;

(c) in consultation with the Premier of the province concerned, make determinations regarding—

(i) the allocation of any function to, or the abolition of any function of, the Office of the Premier, provincial department or provincial government agency; or

(ii) the transfer of any function from—

(aa) the Office of the Premier, provincial department or provincial government agency of a province to the Office of the Premier, provincial department or provincial government agency of another province;

(bb) the Office of the Premier, provincial department or provincial government agency 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 agency.

(5) (a) 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.

(b) Adetermination involving expenditure from revenue shall be made in consultation with the Minister of Finance.

(6) (a) 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—

(i) the public service;

(ii) any staffing arrangements or employment practice regarding any organ of state; or

(iii) the remuneration or other conditions of appointment of the office bearers of any board, institution or body.

(b) 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—

(a) 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

(b) 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 theirindividual capacities, and such powers and duties shall be exercised or performed by the executive authority in accordance with the provisions of this Act.

(8) (a) 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.

(b) 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.

(c) 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.

(d) 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—

(a) subject to the provisions of section 7 (5), establish or abolish any department of the provincial administration concerned;

(b) make determinations regarding the allocation of any function to, or the abolition of any function of, any office or department of the provincial administration concerned or the transfer of any function from one such office or department to another or from such office or department to any body established by or under any law of the provincial legislature or from any such body to such office or department.

Functions of Premiers

3A. The Premier of a province may, in the province concerned—

(a) subject to [the provisions of] section 7(5) to (8)—

(i) establish or abolish any provincial department [of the provincial administration concerned], designate such department and the head thereof or amend any such designation;

(ii) after consultation with the Minister and the Minister of Finance establish or abolish any provincial government agency or establish an existing body as a provincial government agency, designate such agency 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

(b) make determinations regarding the allocation of any function to, or the abolition of any function of, any [office or] department [of the provincial administration] or government agency in the province concerned or the transfer of any function from [one] such [office or] department or agency to another department or agency in the province or from such office, [or] department or agency to any body established by or under any law of the provincial legislature or from any such body to such office, [or] department or agency.

3B.   Handling of appointment and other career incidents of heads of department.—(1)  Notwithstanding anything to the contrary contained in this Act, the appointment and other career incidents of the heads of department shall be dealt with by, in the case of—

(a) a head of a national department or organisational component, the President; and

(b) a head of a provincial administration, department or office, the relevant Premier.

(2)  Any person appointed as head of department may before or at the expiry of his or her term of office, or extended term of office, be deployed with his or her consent by the relevant executing authority referred to in paragraph (a) or (b) of subsection (1) in the case of—

(a) a head of a national department or organisational component, to perform functions in a similar or any other capacity in any national department or organisational component in a post or against a post of equal, higher or lower grading, or additional to the establishment, as the executing authority deems fit; and

(b) a head of a provincial administration, department or office, to perform functions in a similar or any other capacity in the administration, department or office of the relevant province in a post or against a post of equal, higher or lower grading or additional to the establishment, as the executing authority deems fit.

(3)  Any person appointed as head of department who thereafter is deployed in accordance with subsection (2), shall—

(a) for the unexpired portion of his or her term of office, or extended term of office, be appointed at the same salary and conditions of service; and

(b) at the expiry of his or her term of office, or extended term of office, be appointed at the salary and conditions of service attaching to the post or capacity in which he or she is appointed.

(4)  The executing authority referred to in paragraph (a) or (b) of subsection (1) may delegate or assign any power or duty to appoint the head referred to in that paragraph, as well as any power or duty regarding the other career incidents of that head, in the case of—

(a) the President, to the Deputy President or a Minister; or

(b) the Premier of a province, to a Member of the relevant Executive Council.

South African Management and Development Institute and Training Fund

4.(1)  The management and administration of the South African Management and Development Institute shall be under the control of the Minister.

(2)  The Institute—

(a) 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: South African Management and Development Institute may with the approval of the Minister decide or as may be prescribed as a qualification for the appointment, promotion or transfer of persons in or to the public service;

(b) may issue diplomas or certificates or cause diplomas or certificates to be issued to persons who have passed such examinations.

(3)  Notwithstanding the substitution of section 3 (5) (a) (iii) by the Public Service Laws Amendment Act, 1997, the Training Fund established under the said section shall continue to exist, and the Fund shall consist of—

(a) all moneys which immediately prior to the commencement of the said Act were moneys of the Fund;

(b) such moneys as may from time to time be appropriated by Parliament with a view to promoting training under this Act;

(c) any other moneys accruing to the Fund in terms of this Act or from any other source.

(4)  (a)  The Fund shall be administered by the Head, who shall be the accounting officer charged with the responsibility of accounting for moneys received by, and disbursements made from, the Fund.

(b)  Moneys in the Fund shall be utilised to promote training under this Act, but moneys or other property donated or bequeathed to the Fund shall be utilised in accordance with the conditions of the donation or bequest concerned.

(c)  Moneys in the Fund not required for immediate use may be invested with the Public Investment Commissioners or in such other manner as the Minister may with the concurrence of the Minister of Finance approve.

(5)  (a)  The financial year of the Fund shall terminate on the last day in March in each year.

(b)  The Head shall—

(i) cause records to be kept of moneys received by, and disbursements made from, the Fund and of its assets, liabilities and financial transactions;

(ii) as soon as may be practicable after the end of each financial year, cause annual financial statements to be prepared reflecting, with appropriate details, moneys received by, and disbursements made from, the Fund during, and its assets and liabilities at the end of, that financial year.

(c)  The records and annual financial statements shall be audited annually by the Auditor-General.

Implementation or limitation of actions affecting public service or its members

5. (1)  For the purposes of this Act or any other law—

(a) a concurrence or determination of the Minister shall be deemed to have been expressed or made on the date of the communication in writing conveying such concurrence or determination;

(b) where any executing authority or other person is required to act in consultation with the Minister, such act shall be deemed to be implemented by the relevant executing authority or person on the date of the communication in writing conveying to the affected person or body that the executing authority or person is acting in consultation with the Minister;

(c) where the Minister is competent to make a determination, such determination shall be deemed to be implemented on the date on which such determination is made, unless expressly stated otherwise in the communication in writing conveying such determination.

(2)  Subject to the provisions of subsection (3), any determination of the Minister may be withdrawn or varied or further varied by the Minister at any time within a period of six calendar months from the date upon which it was made by the Minister or varied the previous time.

(3)  A determination by the Minister involving expenditure from revenue shall not be implemented unless the Treasury approves the expenditure.

(4)  Every act of the Minister, any executing authority or any other person, irrespective of whether such act consists of the making of any regulation or other enactment, the making of any determination or the taking of any decision, which relates to any matter which constitutes the subject matter of any collective agreement contemplated in item 15 (i) of Schedule 7 to the Labour Relations Act, 1995 (Act No. 66 of 1995), or of 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, shall be performed only in accordance with any such collective agreement.

(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 any provision of this Act which relates to all employees, a category of employees or a particular employee may be effected retrospectively if—

(a) circumstances exist which justify such retrospective effect; and

(b) 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—

(a) any collective agreement contemplated in item 15(i) of Schedule 7 to the Labour Relations Act, 1995 (Act No. 66 of 1995); or

(b) 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.

(b) by the substitution in subsection (5) for the words preceding paragraph (a) of the following words:

(5) Notwithstanding the provisions of subsection (4), but subject to the Labour Relations Act

(a) any executing authority or other person may act in respect of a particular officer or employee in accordance with the provisions of this Act or any other law: Provided that where any such act constitutes any deviation from a collective agreement referred to in the said subsection (4), it shall not derogate from or annul such a collective agreement or the collective bargaining relationship, or reduce the remuneration or other service benefits of the particular officer or employee, or deprive that officer or employee of his or her remuneration or other service benefits, except in accordance with section 34; or

(b) 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) (a) Any provision of a collective agreement contemplated in subsection (4), concluded on or after the commencement of the Public Service Amendment Act, 2006, 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).

(b) Subject to subsection (4), the Minister may supplement or elucidate such deemed determination by means of a determination made in terms of section 3(5).

(7) (a) 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.

(b) 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) (a) The Minister may investigate any alleged non-compliance with this Act and, if the investigation confirms a non-compliance, take such steps as may be necessary to correct the consequences of the noncompliance.

(b) Any steps taken by the Minister under paragraph (a) may include the exercise of any power conferred, or the performance of any duty imposed, on the relevant executive authority or head of department by this Act—

(i) in the case of a national department or national government agency, after consultation with the relevant executive authority;

(ii) in the case of the Office of a Premier or a provincial government agency falling under that Premier’s portfolio, in consultation with the Premier in question; or

(iii) in the case of a provincial department or provincial government agency, in consultation with the relevant Member of the Executive Council.

(c) Any power so exercised or any duty so performed by the Minister shall be deemed to be a power exercised or a duty performed by the relevant executive authority or head of department.

(d) The Minister shall inform the Chairperson of the Public Service Commission of—

(i) an intended investigation in terms of this subsection, before its

commencement; and

(ii) the outcome of an investigation conducted in terms of this subsection.

Access to documents and information by Minister

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

CHAPTER III

ORGANISATION AND STAFF

Public service, departments and heads of departments

7.(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 national departments and provincial administrations mentioned in the first column of Schedule 1, provincial departments mentioned in the first column of Schedule 2 and the organisational components mentioned in the first column of Schedule 3.

(2) For the purposes of the administration of the public service there shall be—

(a) national departments and Offices of the Premier mentioned in column 1 of Schedule 1;

(b) provincial departments mentioned in column 1 of Schedule 2;

(c) national government agencies mentioned in column 1 of Part A of Schedule 3; and

(d) provincial government agencies mentioned in column 1 of Part B of Schedule 3.

(3) (a)  Each department shall have a head of department who as an officer shall be the incumbent of the post on the fixed establishment bearing the designation mentioned in the second column 2 of Schedule 1, or 2 or 3 opposite the name of the relevant department or agency, or the officer employee who is acting in that post.

(b)  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.

(c)  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 a provincial administration, the said head shall—

(i) be the Secretary to the Executive Council of the province concerned;

(ii) subject to the provisions of sections 85 (2) (c) and 125 (2) (e) of the Constitution, be responsible for intergovernmental relations between the relevant provincial administration province and other provincial administrations provinces as well as national departments and national government agencies and for the intra governmental co-operation between the relevant provincial administration Office of the Premier and and its various provincial departments and provincial government agencies, including the co-ordination of their actions and legislation; and

(iii) subject to the provisions of paragraph (d), be responsible for the giving of strategic direction on any matter referred to in section 3 (2) (a) 3(1).

(d)  The head of the Office of a Premier a provincial administration 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.

(e)  The incumbent of a post mentioned in the second column of Schedule 2 shall not by virtue only of such incumbency be entitled to the rank, status or salary scale and accompanying benefits of the incumbent of a post mentioned in the second column of Schedule 1.

(4)  (a)  An organisational component mentioned in the first column of Schedule 3 and the officer who is the incumbent of the post bearing the designation mentioned in the second column of the said Schedule 3 opposite the name of the relevant organisational component, or the officer who is acting in that post, shall for the purposes of the this Act be deemed to be a department and a head of department, respectively.

(b)  The incumbent of a post contemplated in this subsection shall not by virtue only of such incumbency be entitled to the rank, status or salary scale and accompanying benefits of the incumbent of a post mentioned in the second column of Schedule 1.

(5)  (a)  The President may—

(i) on the advice of the Minister amend Schedule 1 so as to establish or abolish any national department and the head thereof or organisational component in the national sphere of government, or the designation of any such department or organisational component or the head thereof, amend Schedule 1 or 3 by proclamation in the Gazette; or

(ii) at the request of the Premier of a province amend Schedule 2 so as to reflect for the establishment, or abolition, of any department of the provincial administration concerned, or the designation or amendment in respect of any provincial department contemplated in section 3A(a)(i); of any such department or the head thereof, amend Schedule 2 by proclamation in the Gazette, which amendment, if the President considers it necessary, may be effected retrospectively to the date of the said advice or request, as the case may be.

(5) Subject to subsection (8), section 7A and the principles contained in section 195 of the Constitution, the President may by proclamation in the Gazette—

(a) 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

(b) 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);

(c) 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 agency or establish an existing body as such an agency or designate any such agency and the head and principal department thereof or amend any such designation; or

(d) 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

agency contemplated in section 3A(a)(ii).

(6) If considered necessary, the President may effect an amendment contemplated in subsection (5) retrospectively to a date requested by the Minister, the relevant executive authority or the Premier, as the case may be.

(7)  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 or this Act and any other applicable law.

(8) Only the head of a national department and the Office of a Premier may bear the designation of ‘Director-General’.

Government agencies

7A. (1) The head of a government agency, 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:

(a) Powers conferred or duties imposed by national or provincial legislation;

(b) powers or duties assigned in terms of subsection (3) or other legislation; and

(c) powers or duties delegated in terms of subsection (4) or other legislation.

(2) For each government agency the relevant executive authority, in consultation with the Minister and the Minister of Finance and by notice in the Gazette— (a) shall—

(i) list the relevant provisions of legislation which confer powers and impose duties on the head of the agency; and

(ii) include in that notice a reference to each notice regarding assigned powers and duties of the head of the agency contemplated in subsection (3);

(b) may list the delegated powers and duties of the head of the agency contemplated in subsection (4);

(c) 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 agency on policy implementation, performance, integrated planning, budgeting and service delivery;

(d) may include in that notice any administrative or operational matter relating to the agency, including the sharing of internal services with the principal department;

(e) may establish an advisory board without executive functions for the agency and determine the board’s composition, appointment procedure and remuneration and all matters required for its effective and efficient functioning; and

(f) may include in that notice any other matter necessary for the effective and efficient functioning of the agency.

(3) (a) Notwithstanding anything to the contrary in any other law, the executive authority of a government agency may assign to the head of that agency any power conferred or duty imposed on—

(i) that executive authority (except the making of regulations) by national legislation; or

(ii) any official of the principal department of that agency by national legislation.

(b) Such assignment is subject—

(i) 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’’), to approval by that Minister;

(ii) to the approval of Parliament of the intended notice as contemplated in this subsection; and

(iii) to publication by notice in the Gazette.

(c) The notice shall stipulate—

(i) the powers and duties to be assigned in terms thereof;

(ii) the effective date of the assignment; and

(iii) the conditions that the executive authority considers appropriate.

(d) The responsible Minister shall table the notice in Parliament for approval.

(e) 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.

(f) If Parliament rejects such notice, the responsible Minister may table an amended notice in Parliament.

(g) If the responsible Minister tables an amended notice and Parliament -

(i) approves the amended notice, the responsible Minister must publish that notice in terms of paragraph (b)(iii) within 30 days of Parliament’s approval; or

(ii) 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.

(h) If Parliament does not reject a notice as contemplated in paragraph (e) or (g)(ii)—

(i) such notice shall be deemed to have been approved by Parliament; and

(ii) the responsible Minister must publish the notice in terms of paragraph (b)(iii) within 30 days after expiry of the periods referred to in paragraph (e) or (g)(ii), as the case may be.

(i) A notice may at any time in like manner be amended or withdrawn.

(j)Any assignment in terms of this subsection shall divest the person who was vested with the assigned power or duties.

(k) Nothing in this Act prevents the assignment of powers or duties to the head of a provincial government agency or the agency itself in accordance with provincial legislation of the province in question.

(4) (a) Notwithstanding anything to the contrary in any other law, the executive authority of a government agency or the head of the principal department of that agency may, except a power or duty to make regulations—

(i) delegate to the head of the agency any power conferred on that executive authority or head of the principal department by national legislation; or

(ii) authorise the head of the agency to perform any duty imposed

on the executive authority or head of the principal department by national legislation.

(b) Any person to whom a power has been so delegated or who has been so authorised to perform a duty shall exercise that power or perform that duty subject to the conditions that the person who made the delegation or granted the authorisation considers appropriate.

(c) Any delegation of a power or authorisation to perform a duty in terms of paragraph (a)—

(i) shall be in writing;

(ii) does not prevent the person who made the delegation or gave the authorisation from exercising that power or performing that duty himself or herself; and

(iii) may at any time be withdrawn in writing by that person.

8.   Composition of public service.—(1)  The public service shall consist of persons who—

(a) hold posts on the fixed establishment—

(i) classified in the A division and the B division;

(ii) in the services;

(iii) in the Academy, the Agency or the Service; and

(iv) in state educational institutions;

(b) (i) having ceased to hold posts on the fixed establishment contemplated in paragraph (a), and not having retired or having been discharged, are employed additional to the fixed establishment or who are deemed to continue to hold posts under the circumstances contemplated in subsection 3 (c);

(ii) are appointed permanently additional to the fixed establishment;

(c) (i) hold posts on the fixed establishment other than posts referred to in paragraph (a);

(ii) are employed temporarily or under a special contract in a department, whether in a full-time or part-time capacity, additional to the fixed establishment or in vacant posts on the fixed establishment.

(2)  The Minister may make determinations regarding the posts to be included in the A and the B division, respectively.

(3)  (a)  The Minister may make a determination that any post included in one division shall be removed from that division and be included in the other division, or that any post included in the A or B division shall be excluded from both those divisions.

(b)  A determination under this subsection shall not deprive any officer of any prescribed privilege or right which arose from the occupancy by him or her of a post in one of the said divisions.

(c)  Any officer whose post has been excluded from both the divisions aforementioned shall, for the purposes of this Act and the applicable pension law, be deemed to continue to hold a post in the division in which his or her post was included immediately before the determination whereby such exclusion was effected came into force.

Composition of public service

8. (1) The public service shall consist of persons who are employed—

(a) in posts on the establishment of departments; and

(b) 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—

(a) the word ‘permanently’ or ‘permanent’ means an employee to whom a retirement age in section 16 applies; and

(b) the word ‘temporarily’ or ‘temporary’ means not permanently employed.

CHAPTER IV

APPOINTMENT, PROMOTION AND TRANSFER

EMPLOYMENT IN PUBLIC SERVICE

Mechanisms for obtaining services of persons

8A. Services of persons may be obtained in terms of this Act by

means of—

(a) appointments in terms of section 9, including appointments of heads of department in terms of section 12;

(b) appointments in terms of section 12A on grounds of policy considerations;

or

(c) deployments in the form of—

(i) transfers of heads of department in terms of section 12(3);

(ii) transfers in terms of section 14;

(iii) secondments in terms of section 15; and

(iv) assignments in terms of section 32.

9.   Powers of executing authority.—(1)  The appointment of any person or the promotion or transfer of any officer or employee in the employ of a department shall be made by the relevant executing authority or by an officer or officers to whom the said authority has delegated his or her power of appointment, promotion or transfer.

(2)  Subject to the provisions of this Chapter, appointments and promotions in, and transfers in or to, the public service shall be made in such manner and on such conditions as may be prescribed.

Appointments in public service

9. 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.

Qualifications for appointment

10.(1)  No person shall be appointed permanently or be transferred and appointed permanently under section 15 (1), whether on probation or not, to any post in the A or B division on the establishment in a department unless he or she—

(a) is a South African citizen or permanent resident; and;

(b) is of good character; and

(c) in so far as his or her condition of health is concerned, complies with such requirements as may be prescribed. a fit and proper person.

(2)  Notwithstanding the provisions of subsection (1) (c), a person may be appointed on probation, but his or her appointment shall not be confirmed unless he or she complies with the requirements contemplated in that paragraph.

Appointments and filling of posts

11.(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 or the filling of any post in terms of section 9 in the public service—

(a) all persons who applied and qualify for the appointment, transfer or promotion concerned shall be considered; and

(b) 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 No. 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)  Notwithstanding the provisions of subsection (2), the relevant executing authority may, subject to the prescribed conditions, approve the appointment, transfer or promotion of persons to promote the basic values and principles referred to in section 195 (1) of the Constitution.

12.   Appointment of heads of department.—(1)  Any person who immediately prior to the commencement of the Public Service Laws Amendment Act, 1997—

(a) was appointed in the office of head of department or to any post mentioned in the second column of Schedule 2 or 3, or was promoted or transferred to that office or post; or

(b) was promoted or transferred from the office of head of department referred to in paragraph (a) to another office of head of department,

shall occupy, subject to the provisions of Chapter V and any collective agreement contemplated in section 18 (b) of the Public Service Laws Amendment Act, 1998—

(i) in the case of a person referred to in paragraph (a)—

(aa) that office for a period of five years as from the date of his or her appointment, promotion or transfer, or the shorter period approved by the relevant executing authority, and if the term of office was extended at the expiry thereof, for the extended period approved by that executing authority;

(bb) that post for a period of five years as from the date of commencement of the Public Service Laws Amendment Act, 1997;

(ii) in the case of a person referred to in paragraph (b), the latter office for the remainder of the term of office which applies to him or her in terms of paragraph (i) in respect of the former office, and if the term of office was extended at the expiry thereof, for the extended period approved by the relevant executing authority.

(2)  As from the date of commencement of the Public Service Laws Amendment Act, 1997—

(a) a person shall be appointed in the office of head of department in the prescribed manner, on the prescribed conditions and in terms of the prescribed contract between the relevant executing authority and such a person for a period of five years from the date of his or her appointment, or such shorter period as that executing authority may approve;

(b) the term of office as head of department of such a person may be extended at the expiry thereof in accordance with the terms and conditions of the contract or a further contract, as the case may be, concluded between that executing authority and such a person for a period or successive periods of not less than twelve months and not more than five years, as that executing authority may approve;

(c) the term of office as head of department of any person referred to in subsection (1), or any extended term thereof, may be extended at the expiry of the term of office or extended term, as the case may be, in the prescribed manner for a period of not less than twelve months and not more than five years, as the relevant executing authority may approve, provided the said person concludes the prescribed contract with that executing authority, whereupon any further extension of his or her term of office shall, subject to the provisions of paragraph (b), take place in accordance with the terms and conditions of that contract or a further contract, as the case may be.

(3)  Notwithstanding the provisions of subsection (1), any person referred to in that subsection may at any time after the commencement of the Public Service Laws Amendment Act, 1997, conclude a contract contemplated in subsection (2) with the relevant executing authority.

(4)  Notwithstanding the provisions of subsection (2), a contract contemplated in that subsection may include any term and condition agreed upon between the relevant executing authority and the person concerned as to—

(a) any particular duties of the head of department;

(b) the specific performance criteria for evaluating the performance of the head of department;

(c) the grounds upon, and the procedures according to which, the services of the head of department may be terminated before the expiry of his or her term of office or extended term of office, as the case may be; and

(d) any other matter which may be prescribed.

Appointment of heads of department and career incidents

12. (1) Notwithstanding anything to the contrary contained in this Act, but subject to this section and section 32(2)(b)(i), the appointment and other career incidents of the heads of department and government agencies shall be dealt with, in the case of—

(a) a head of a national department or national government agency, by the President; and

(b) a head of the Office of a Premier, provincial department or provincial government agency, by the relevant Premier.

(2) (a) 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.

(b) The head of department shall conclude the prescribed contract within the prescribed period.

(c) 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) (a) The President may transfer the head of a national department or national government agency 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 agency in a post of equal, higher or lower grading, or additional to the establishment, as the President considers appropriate.

(b) The Premier of a province may transfer the head of the Office of the Premier, a provincial department or a provincial government agency 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 agency of the relevant province in a post of equal, higher or lower grading or additional to the establishment, as the Premier considers appropriate.

(c) 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—

(i) 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 agency; or

(ii) the head of the Office of a Premier, a provincial department or a provincial government agency, to perform functions in a similar or any other capacity in the Office of a Premier, a provincial department or provincial government agency of another province or in a national department or national government agency, 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.

(d) A transfer in terms of this subsection may only occur if—

(i) the relevant head of department consents to the transfer; or

(ii) after due consideration of any representations by the head, the transfer is in the public interest.

(e) Any person appointed as head of department or government agency who is transferred in terms of this subsection—

(i) during his or her term of office or extended term—

(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

(ii) 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 discharge from the public service.

Appointment of persons on grounds of policy considerations

12A.(1)  Subject to the provisions of this section, an executing authority such executive authorities as the Cabinet may determine may appoint one or more persons under a special contract, whether in a full-time or part-time capacity—

(a) to advise the executing authority on the exercise or performance of the executing authority’s powers and duties;

(b) to advise the executing authority on the development of policy that will promote the relevant department’s objectives; or

(c) to perform such other tasks as may be appropriate in respect of the exercise or performance of the executing authority’s powers and duties.

(2)  The maximum number of persons that may be appointed by an executing 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 executing authority and the person concerned, including—

(a) the contractual period, which period shall not exceed the term of office of the executing authority;

(b) the particular duties for which the person concerned is appointed; and

(c) the remuneration and other conditions of service of the person concerned.

13.   Appointment, transfer and promotion on probation.—(1)  The appointment of a person and the transfer or promotion of an officer in the A or B division shall be made on probation—

(a) unless, in the case of an appointment the person having the power to approve such an appointment, directs otherwise; or

(b) if, in the case of a promotion or a transfer the person having the power to approve such a transfer or promotion, so directs.

(2)  (a)  Subject to the provisions of paragraphs (b) and (c), the period of probation shall not be less than 12 calendar months.

(b)  If an officer who is serving on probation is transferred or promoted to another post, a lesser period of service on probation may be directed in the new post which, together with the period of probation served in the former post, shall total at least 12 calendar months.

(c)  The period of probation of an officer shall be extended by the number of days leave taken by him or her during the period of probation or any extension thereof.

(3)  If the head of the office, branch, subdepartment, institution or department certifies that, during the period of probation or extended period of probation, the officer concerned has been diligent and his or her conduct has been uniformly satisfactory and that he or she is in all respects suitable for the post which he or she holds, and if the officer has complied with all the conditions to which his or her appointment, transfer or promotion was subject, the person having the power to make the appointment, transfer or promotion concerned, may confirm that appointment, transfer or promotion, but if the probationary appointment, transfer or promotion is not so confirmed the person having the power to make the appointment, transfer or promotion concerned may extend the period of probation or act in accordance with the provisions of subsection (5).

(4)  . . . . . .

(5)  Notwithstanding anything to the contrary contained in subsection (2) or in any

collective agreement contemplated in section 18 (b) of the Public Service Laws Amendment Act, 1998, but subject to the provisions of subsection (6), an officer who is serving on probation may be discharged from the public service by the person having the power of discharge, whether during or at or after the expiry of the period of probation—

(a) by the giving of one month’s written notice to such officer; or

(b) forthwith, but subject to the provisions of the Labour Relations Act, 1995 (Act No. 66 of 1995), if his or her conduct or performance is unsatisfactory.

(6)  Notwithstanding anything to the contrary contained in sections 14 and 34, a person whose transfer or promotion on probation is not confirmed and who immediately prior to that transfer or promotion on probation was an officer, other than an officer on probation, shall be transferred to the post formerly held by him or her, or to a post of equivalent grading, and shall receive such salary as he or she would have received in the said former post if he or she had not been transferred or promoted on probation.

Appointment or transfer on probation

13. (1) If so required by regulation, an executive authority shall appoint or transfer 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 or transfer if the employee concerned has—

(a) performed at least satisfactorily during the period; and

(b) complied with all the conditions to which his or her appointment or transfer was subject.

(3) If the probationary appointment or transfer 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 the provisions of this Act, every officer or employee may, when the public interest so requires, be transferred from the post or position occupied by him or her to any other post or position in the same or any other department, irrespective of whether such a post or position is in another division, or is of a lower or higher grade, or is within or outside the Republic.

(2)  (a)  The transfer of an officer or employee from one post or position to another post or position may, subject to the provisions of paragraph (b), be made on the authority of the person having the power of transfer.

(b)  In the case of a transfer from one department to another department the approval of the persons who in respect of each of those departments have the power to transfer, shall first be obtained.

(c)  . . . . . .

(d)  . . . . . .

(3)  An officer—

(a) shall not upon transfer suffer any reduction in his or her salary or scale of salary without his or her consent, except in accordance with the provisions of section 38 and any collective agreement contemplated in section 18 (b) of the Public Service Laws Amendment Act, 1998;

(b) . . . . . .

(c) who has been transferred to or who is employed in a post which is graded higher than his or her own grade, or which is regraded or converted to a post of a higher grade than his or her own grade, shall not by reason only of that transfer or employment be entitled to the higher scale of salary applicable to the post;

(d) . . . . . .

(e) holding a post in the A or B division shall not without his or her consent be transferred to a post in any branch of the services or the Agency or the Service.

(4)  A member of any of the three branches of the services shall not without his or her consent be transferred to a post in any other of those branches or to a post in the A or B division, and a member of the Agency or the Service shall not, subject to the provisions of any law regulating the service of such a member, without his or her consent be transferred to a post in such a division.

Transfers within public service

14. (1) Subject to subsections (2), (3) and (4), any employee of a department may be transferred—

(a) within the department, by its executive authority;

(b) 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—

(a) the employee requests the transfer or consents to the transfer; or

(b) 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) An employee who has been transferred to a post with—

(a) 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

(b) 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.’’.

Change in employment capacity

14A. 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 in respect of such conditions of service and to such extent as the Minister may determine in terms of section 3(5).

15.   Transfer and secondment of officials.—(1)  A person holding a pensionable appointment in a department under any law other than this Act or in any institution or body established by or under any law and which obtains its funds directly in whole or in part from revenue, may be transferred to, and appointed in, a post in the A or B division.

(2)  A person in the service of a department under any law other than this Act, or in the service of another government, or of any council, institution or body established by or under any law, or of any other body or person, may be employed by another department or a department, as the case may be, for a particular service or for a stated period and on such terms and conditions, other than conditions laid down by or under any pensions law, as may be agreed upon by the employer of the person concerned and the relevant executing authority and approved by the Treasury.

(3)  (a)  An officer or employee may with his or her consent and on such conditions, in addition to those prescribed by or under any law, as may be determined by the relevant executing authority after consultation with the Treasury, be placed at the disposal of another government, or of any council, institution or body established by or under any law, or of any other body or person, for a particular service or for a stated period.

(b)  Such an officer or employee remains subject to the laws applicable to officers and employees in the public service while so placed at such disposal.

(4)  (a)  A person (in this paragraph referred to as the official) in the service of a department under any law other than this Act, or in the service of another government, or of any council, institution or body established by or under any law, or of any other body or person, may be employed by another department or a department, as the case may be, for a stated period and on such terms and conditions, other than conditions laid down by or under any pensions law, as may be agreed upon by the employer of the official and the relevant executing authority and approved by the Treasury, and in such a case, on such conditions, in addition to those prescribed by or under any law, as may be determined by the said authority after consultation with the Treasury, an officer or employee may with his or her consent and in terms of such an agreement be placed at the disposal of the employer of the official for the same period on an exchange basis.

(b)  Such an officer or employee remains subject to the laws applicable to officers and employees in the public service while so placed at such disposal.

Transfer and secondment from and to public service

15. (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—

(a) for a particular service or period not exceeding the prescribed period (if any); and

(b) 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) (a) 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—

(i) for a particular service or period not exceeding the prescribed period (if any); and

(ii) 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.

(b) The secondment of an employee of a department may occur only if—

(i) the employee requests, or consents to, the secondment; or

(ii) in the absence of such request or consent, after due consideration of any representations by the employee, the secondment is in the public interest.

(c) 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).

CHAPTER V

TERMINATION OF SERVICE

Retirement and retention of services

16.(1)(a)  Subject to the provisions of this section, an officer, other than a member of the services or an educator or a member of the Agency or the Service, 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 any other law applicable to him or her on that day.

(b)  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)(a)  Notwithstanding the provisions of subsection (1), an officer or employee, other than a member of the services or an educator or a member of the Agency or the Service, 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.

(b)  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—

(i) 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

(ii) 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 the fourth month after the month in which the notification is received. 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.

(c)  (i)  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.

(ii)  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)  (a)  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 Agency or the Service, 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.

(b)  The provisions of subsection (2) (b) shall apply with the necessary changes to an officer who wishes to retire in terms of paragraph (a).

(3)  (a)  Subject to the provisions of 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 12(1) or (2), or of any extended term contemplated therein, as the case may be.

(b)  If an officer retires or is retired in terms of paragraph (a), he or she shall be deemed to have been discharged from the public service in terms of section 17 (2) (b).

(4)  An officer, other than a member of the services or an educator or a member of the Agency or the Service who has reached the age of 60 years may, subject in every case to the approval of the relevant executing authority, be retired from the public service.

[Sub-s. (4) substituted by s. 13 (c) of Act No. 47 of 1997.]

(5)  (a)  Subject to the terms and conditions of a contract contemplated in section 12 (2), an executing authority may, at the request of an officer 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 (1) or (2), or any extended term contemplated therein, and notwithstanding the absence of any reason for discharge in terms of section 17 (2) or the contract concluded with the officer, as the case may be, if a reason exists which the said authority deems sufficient.

(b)  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.

(6)  (a)  An executing authority may, at the request of an officer, allow him or her to retire from the public service before reaching the age of 55 years, notwithstanding the absence of any reason for discharge in terms of section 17 (2), if in the opinion of such authority a sufficient reason exists therefor and the retirement will be to the advantage of the State.

(b)  The provisions of subsection (5) (b) shall mutatis mutandis apply to any officer who is allowed to retire from the public service in terms of paragraph (a).

(6)(a) 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 discharge in terms of section 17(2), if sufficient reason exists therefor and the retirement will be to the advantage of the State.

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.

(7)  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 Agency or the Service, 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 executing 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.

Failure to comply with Act

16A. (1) An executive authority shall—

(a) 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;

(b) immediately report to the Minister the particulars of such noncompliance; and

(c) as soon as possible report to the Minister the particulars of the disciplinary steps taken.

(2) A head of a department shall—

(a) 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;

(b) immediately report to the Director-General: Public Service and Administration the particulars of such non-compliance; and

(c) 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 noncompliance 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 and, through the relevant Premier, to the relevant committees of the relevant provincial legislature, every non-compliance with a provision of this Act or a regulation, determination or directive made

thereunder—

(a) reported in terms of subsection (1) or (2); or

(b) confirmed in an investigation in terms of section 5(8).

Discipline

16B. (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:

(a) In the case of a head of department, the relevant executive authority; and

(b) 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—

(a) if an internal appeal is lodged, after the appeal authority has confirmed the sanction pronounced by the chairperson of a disciplinary hearing; or

(b) 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—

(a) 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

(b) 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—

(a) may institute or continue disciplinary steps against that employee; and

(b) shall institute or continue such steps if so requested—

(i) by the former executive authority if the relevant employee is a head of department; or

(ii) 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.

17.   Discharge of officers.—(1)  (a)  Subject to the provisions of paragraph (b), the power to discharge an officer or employee shall vest in the relevant executing authority, who may delegate that power to an officer, and the said power shall be exercised with due observance of the applicable provisions of the Labour Relations Act, 1995 (Act No. 66 of 1995).

(b)  Notwithstanding paragraph (a), the power to discharge an officer, excluding a head of department, in terms of subsection (2) (e), shall be vested in the head of department.

(c)  . . . . . .

(2)  Every officer, other than a member of the services or an educator or a member of the Agency or the Service, may be discharged from the public service—

(a) on account of continued ill-health;

(b) owing to the abolition of his or her post or any reduction in or reorganisation or readjustment of departments or offices;

(c) if, for reasons other than his or her own unfitness or incapacity, his or her discharge will promote efficiency or economy in the department or office in which he or she is employed, or will otherwise be in the interest of the public service;

(d) on account of unfitness for his or her duties or incapacity to carry them out efficiently;

(e) on account of misconduct;

( f ) if, in the case of an officer appointed on probation, his or her appointment is not confirmed;

(g) on account of misrepresentation of his or her position in relation to a condition for permanent appointment;

(h) if his or her continued employment constitutes a security risk for the State; and

(i) if the President or a Premier appoints him or her in the public interest under any law to an office to which the provisions of this Act do not apply.

(3)  (a)  If an officer is discharged under subsection (2) (g), he or she shall be deemed to have been discharged under subsection (2) (e).

(b)  If an officer is discharged under subsection (2) (h), he or she shall be deemed to have been discharged under subsection (2) (d).

(c)  . . . . . .

(4)  . . . . . .

(5)  (a)  (i)  An officer, other than a member of the services or an educator or a member of the Agency or the Service, 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 discharged 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.

(ii)  If such an officer assumes other employment, he or she shall be deemed to have been discharged as aforesaid irrespective of whether the said period has expired or not.

(b)  If an officer who is deemed to have been so discharged, reports for duty at any time after the expiry of the period referred to in paragraph (a), the relevant executing authority may, on good cause shown and notwithstanding anything to the contrary contained in any law, approve the reinstatement of that officer 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.

(6)  . . . . . .

Termination of employment

17. (1) (a) 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.

(b) 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—

(a) incapacity due to ill health or injury;

(b) operational requirements of the department as provided for in the Labour Relations Act;

(c) incapacity due to poor work performance; or

(d) misconduct.

(3) (a) An employee of a department, other than a member of the services, 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 executive authority or head of department for a period exceeding 10 days shall be deemed to have resigned with effect from the date he or she has absented himself or herself.

(b) If an employee who is deemed to have so resigned reports for duty within one calendar month, or such longer period as the relevant executive authority may on good cause shown approve, after his or her last day of attendance at his or her place of duty, an enquiry shall be held into the reasons for such employee’s absence and the executive authority shall, on good cause shown, approve the reinstatement of that employee in the

department in his or her former post or any other capacity.

(c) If an employee is reinstated as contemplated in paragraph (b), the period of his or her absence from official duty shall be deemed to be absence on leave without pay.

(4) (a) A person 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, may only be re-employed by any department after the expiration of a prescribed period.

(b) Different periods may be so prescribed for different categories of misconduct.

(c) 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.

(d) Subject to paragraph (a), a decision whether or not to re-employ a person dismissed in terms of subsection (2)(d) shall take place with due regard to the nature of the misconduct concerned.

(5) (a) If, because of a supervening impossibility (other than incapacity referred to in subsection (2)(a) or (c)), an employee is unable to fulfil the terms of his or her contract of employment for the prescribed period, the contract shall automatically terminate and the employee shall be deemed to have resigned with effect from the last day of that period.

(b) If an employee who is deemed to have so resigned reports for duty within one calendar month after the last day contemplated in paragraph (a), or within such longer period as the relevant executive authority may on good cause shown approve, an enquiry shall be held into whether the supervening impossibility still exists and the executive authority shall on good cause shown approve the reinstatement of that employee in the

department in his or her former post or any other capacity.

(c) If an employee is reinstated in terms of paragraph (b), the period of absence from official duty shall be deemed to be absence on leave without pay.

CHAPTER VI

INEFFICIENCY AND MISCONDUCT

[18   – 27 repealed, effective 1/7/1999]

CHAPTER VII

OBLIGATIONS, RIGHTS AND PRIVILEGES OF OFFICERS AND EMPLOYEES

Rights and obligations

28.  An officer or employee shall fulfil the obligations imposed upon him by this Act or any other law, and he or she shall have the rights and may be granted the privileges which are prescribed by or under this Act or any other law.

Saving regarding rights and obligations

29.  No provision of this Act shall be construed as abrogating or derogating from any existing, accruing or contingent right, liability or obligation of any person flowing from any other law.

30.   Other work by officers and employees.—Unless it is otherwise provided for in his or her conditions of employment—

(a) every officer and employee shall place the whole of his or her time at the disposal of the State;

(b) no officer or employee shall perform or engage himself or herself to perform remunerative work outside his or her employment in the public service, without permission granted by the relevant executing authority or an officer authorised by the said authority; and

(c) no officer or employee may claim any additional remuneration in respect of any official duty or work which he or she performs voluntarily or is required by a competent authority to perform.

Other remunerative work by employees

30. (1) No employee shall perform or engage himself or herself to

perform remunerative work outside his or her employment in the relevant

department, except with the written permission of the executive authority

of the department.

(2) For the purposes of subsection (1) the executive authority shall at least take into account whether or not the outside work could reasonably be expected to interfere with or impede the effective or efficient performance of the employee’s functions in the department or constitute a contravention of the code of conduct contemplated in section 41(1)(b)(vi).

31.   Unauthorized remuneration.—

(1)  (a)  (i)  If any remuneration, allowance or other reward is received by an officer or employee in connection with the performance of his or her work in the public service otherwise than in accordance with the provisions of this Act or a determination of the Minister, or is received contrary to the provisions of section 30 (b), that officer or employee shall, subject to the provisions of subparagraph (iii), pay into revenue an amount equal to the amount of any such remuneration, allowance or reward or, where it does not consist of money, the value thereof as determined by the head of the department in which he or she was employed, or in which he or she is regarded to have been employed by virtue of the provisions of section 1 (3), at the time of the receipt thereof, and if he or she does not do so, it shall be recovered from him or her by the said head by way of legal proceedings or in such other manner as the Treasury may approve, and be paid into revenue.

(ii)  The officer or employee concerned may appeal against the determination of the head of department to the relevant executing authority, who may make such decision as he or she may think fit.

(iii)  The relevant executing authority may approve of the officer or employee concerned retaining the whole or a portion of the said remuneration, allowance or reward.

(b)  If in the opinion of the head of department mentioned in paragraph (a) an officer or employee has received any remuneration, allowance or other reward contemplated in that paragraph, and it is still in his or her possession or under his or her control or in the possession or under the control of any other person on his or her behalf, or, if it is money, has been deposited in any deposit-taking financial institution in his or her name or in the name of any other person on his or her behalf, that head of department may in writing require that officer or employee or that other person or that financial institution not to dispose thereof, or, if it is money, not to dispose of a corresponding sum of money, as the case may be, pending the outcome of any legal steps for the recovery of that remuneration, allowance or reward or the value thereof.

(1)(a)(i) If any remuneration, allowance or other reward (other than remuneration contemplated in section 38(1) or (3)), is received by an employee in connection with the performance of his or her work in the public service otherwise than in accordance with this Act or a determination by or directive of the Minister, or is received contrary to section 30, that employee shall, subject to subparagraph (iii), pay into revenue—

(aa) an amount equal to the amount of any such remuneration, allowance or reward; or

(bb) if it does not consist of money, the value thereof as determined by the head of the department in which he or she was employed, at the time of the receipt thereof.

(ii) If the employee fails to so pay into revenue the amount or value, the said head of department shall recover it from him or her by way of legal proceedings and pay it into revenue.

(iii) The employee concerned may appeal against the determination of the head of department to the relevant executive authority.

(iv) The accounting officer of the relevant department may approve that the employee concerned retains the whole or a portion of the said remuneration, allowance or reward.

(b) If—

(i) in the opinion of the head of department mentioned in paragraph (a) an employee has received any remuneration, allowance or other reward contemplated in that paragraph; and

(ii) it is still in his or her possession or under his or her control or in the possession or under the control of any other person on his or her behalf, or, if it is money, has been deposited in any deposit-taking financial institution in his or her name or in the

name of any other person on his or her behalf, that head of department may in writing require that employee or that other person or that financial institution not to dispose thereof, or, if it is money, not to dispose of a corresponding sum of money, as the case may be, pending the outcome of any legal steps for the recovery of that remuneration, allowance or reward or the value thereof.

(c)  A person or financial institution contemplated in paragraph (b) who or which fails to comply with a requirement in terms of that paragraph, shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding one year.

(d)  The provisions of this section shall also apply to an officer who is a head of department, and in such a case a reference to a head of department shall be construed as a reference to the Treasury.

(2)  (a)  Subject to the provisions of paragraph (b), any salary, allowance, fee, bonus or honorarium which may be payable in respect of the services of an officer or employee placed temporarily at the disposal of any other government, or of any council, institution, body or person contemplated in section 15 (3) or (4), shall be paid into revenue.

(a) Subject to the provisions of paragraph (b), any salary, allowance, fee, bonus or honorarium which may be payable in respect of the services of an officer or employee placed temporarily at the disposal of any other an organ of state, another government or of any council, institution or body or person contemplated in section 15(3) or (4) shall be paid into revenue.

(b)  In circumstances regarded by the relevant executing authority as exceptional, the said authority may approve of paying out of revenue an amount equal to that salary, allowance, fee, bonus or honorarium, or a portion thereof, to the officer or employee concerned.

(3)  For the purposes of subsection (1)(a)(i)—

(a) “this Act” includes any law repealed by this Act;

(b) “determination of the Minister” includes any recommendation of the Public Service Commission established by section 209 (1) of the Constitution of the Republic of South Africa, 1993 (Act No. 200 of 1993), or of any commission for administration, public service commission or other like institution established by or under, or which functioned in accordance with, any such law; and

(c) “section 30 (b)” includes any corresponding provision of any such law.

32.   Assignment of other functions to officers and employees.—An executing authority or the head of a department, branch, office or institution may direct any officer or employee under his or her control temporarily to perform duties other than those ordinarily assigned to such an officer or employee or appropriate to the grade, designation or classification of his or her post, and he or she shall comply with such a direction.

Direction to perform other functions or to act in another post

32. (1) Subject to such conditions as may be prescribed, an executive authority or the head of a department may direct an employee under his or her control temporarily to perform any functions other than those ordinarily assigned to the employee or appropriate to his or her grade or post.

(2) (a) An employee may be directed in writing to act in a post subject to such conditions as may be prescribed.

(b) Such acting appointment shall be made—

(i) in the case of the post of head of department, by the relevant executive authority;

(ii) in the case of any other post, by the employee occupying the post, unless otherwise determined by the head of department.

(3) The performance evaluation of the relevant employee shall take place

with due regard to a direction in terms of subsection (1) or (2).’’.

33.   Cession of emoluments.—No officer or employee shall without written approval of the accounting officer, as defined in section 1 of the Exchequer Act, 1975 (Act No. 66 of 1975), of the department or office in which he or she is employed, cede the right to the whole or any part of any salary or allowance payable to him or her.

Cession of emoluments

33. No officer or employee shall without written approval of the accounting officer, as defined in section 1 of the Exchequer Act, 1975 (Act No. 66 of 1975) Public Finance Management Act, of the department or office in which he or she is employed, cede the right to the whole or any part of any salary or allowance payable to him or her.

34.   Reduction of salaries.—The salary or scale of salary of an officer shall not be reduced without his or her consent except in terms of the provisions of section 13 (6) or 38 or of any collective agreement contemplated in section 18 (b) of the Public Service Laws Amendment Act, 1998, or of an Act of Parliament.

Reduction of salaries

34. The salary or scale of salary of an officer employee shall not be reduced without his or her consent except in terms of the provisions of section 13(6) or 38, or of any collective agreement contemplated in section 18(b) of the Public Service Laws Amendment Act, 1998 or of an Act of Parliament or a collective agreement or determination on disciplinary procedures in terms of this Act.

Grievances of officers and employees

35. (1) For the purposes of asserting his or her right to have his or her complaint or grievance concerning an official act or omission investigated and considered by the Commission—

(a) a head of department may lodge that grievance with the Commission under the prescribed circumstances, on the prescribed conditions and in the prescribed manner; or

(b) an officer or any other employee may lodge that complaint or grievance with the relevant executive authority under the prescribed circumstances, on the prescribed conditions and in the prescribed manner, and if that complaint or grievance is not resolved to the satisfaction of such an officer or employee, that executive authority, shall submit the complaint or grievance to the Commission in the prescribed manner and at the prescribed time or within the prescribed period.

(2) After the Commission has investigated and considered any such complaint or grievance, the Commission may recommend that the relevant executing authority acts in terms of a particular provision or particular provisions of this Act or any other law if, having regard to the circumstances of the case, the Commission considers it appropriate to make such a recommendation.

(3) For the purposes of subsection (1), the powers conferred upon the Commission by section 11 of the Commission Act shall be deemed to include the power to make rules which are not inconsistent with the provisions of this section as to the investigation of complaints or grievances concerning official acts or omissions, and ‘prescribed’ means prescribed by the Commission by rule under the Commission Act.

(4) Subject to subsection (1)(a), an employee may only refer a dispute to the relevant bargaining council in the public service, or institute court proceedings, in respect of a right referred to in subsection (1) if he or she has lodged a grievance in terms of that subsection and the department does not resolve the grievance to his or her satisfaction.

36.   Political rights of officers and employees.—Subject to the provisions of section 20 (g), an officer or employee may—

(a) be a member and serve on the management of a lawful political party;

(b) attend a public political meeting, but may not preside or speak at such a meeting; and

(c) not draw up or publish any writing or deliver a public speech to promote or prejudice the interests of any political party.

Employees as candidates for, and becoming members of, legislatures

36. (1) An employee may be a candidate for election as a member of the National Assembly, a provincial legislature or a Municipal Council, subject to the code of conduct contemplated in section 41(1)(d)(ii) and any other prescribed limits and conditions.

(2) An employee elected as a member of the National Assembly or a provincial legislature or a full-time member of a Municipal Council shall be deemed to have resigned from the public service with effect from the date immediately before the date he or she assumes office as such member.

(3) An employee appointed as a permanent delegate of the National Council of Provinces shall be deemed to have resigned from the public service with effect from the date immediately before the date he or she assumes office as such delegate.

(4) An employee elected as a member of a Municipal Council—

(a) may only remain an employee in the public service if he or she serves as a part-time member of the Council; and

(b) shall comply with section 30(1).

CHAPTER VIII

MISCELLANEOUS

37.   Remuneration of officers and employees.—(1)  Subject to the provisions of section 5, officers and employees shall be paid the salaries, wages and allowances in accordance with the scales determined by the Minister for their ranks and grades in terms of section 3 (3) (c).

(2)  Subject to such conditions as may be prescribed—

(a) officers or employees or classes of officers or employees may on appointment, transfer or promotion be paid higher salaries or wages than the minimum amounts of the appropriate scales;

(b) officers or employees or classes of officers or employees may be granted special advancement in salaries within the scales applicable to them;

(c) the salary or wage of an officer or employee of exceptional ability or possessing special qualifications or who has rendered meritorious service, and, if it is in the interest of the public service, of any officer or employee, may be specially advanced within the scale applicable to him or her or may be paid a salary or wage in accordance with a higher scale or may be granted any other fitting reward; and

(d) any special service benefit may be granted to a head of department or class of heads of department before or at the expiry of a term contemplated in section 12 (1) (a) or (b), or any extended term contemplated in section 12 (1) (c), or at the time of retirement or discharge from the public service.

Remuneration of employees

37. (1) Employees shall be paid the salaries and allowances in accordance with the salary scale and salary level determined by the Minister in terms of section 3(5).

(2) An executive authority may, only if it is allowed by regulation and to the extent prescribed—

(a) grant employees or classes of employees of the relevant department on appointment or transfer salaries higher than the minimum amounts of the appropriate salary levels of the applicable salary scales;

(b) grant employees or classes of employees of the relevant department special advancement in salaries within the salary level of the salary scale applicable to them; and

(c) grant an employee of the relevant department special advancement in salary within the salary level of the salary scale applicable to him or her or grant him or her a salary in accordance with a higher salary level or any other reward, if he or she has exceptional ability, special qualifications or rendered meritorious service and it is in the public interest.

Wrongly granted remuneration

38. (1)  If an incorrect salary or scale of salary on appointment, transfer or promotion, or an incorrect advancement of salary within the limits of the scale of salary applicable to his or her grading, was awarded or granted to an officer or employee, or was awarded or granted at the correct notch or scale but at a time when or in circumstances under which it should not have been awarded or granted to him or her, the head of the department in which that officer or employee is employed, shall correct his or her salary or scale of salary with effect from the date on which the incorrect salary, scale of salary or salary advancement commenced, notwithstanding the provisions of section 14 (3) (a) and notwithstanding the fact that the officer or employee concerned was unaware that an error had been made in the case where the correction amounts to a reduction of his or her scale of salary or salary.

(1)(a) If an incorrect salary, salary level, salary scale or reward is awarded to an mployee, the relevant executive authority shall correct it with effect from the date on which it commenced.

(b) Paragraph (a) shall apply notwithstanding the fact that the employee concerned was unaware that an error had been made in the case where the correction amounts to a reduction of his or her salary.

(2)  If an officer or employee contemplated in subsection (1) has in respect of his or her salary, including any portion of any allowance or other remuneration or any other benefit calculated on his or her basic salary or scale of salary scale or awarded to him or her by reason of his or her basic salary—

(a) been underpaid, an amount equal to the amount of the underpayment shall be paid to him or her, and that other benefit which he or she did not receive, shall be awarded to him or her as from a current date; or

(b) been overpaid or received any such other benefit not due to him or her—

(i) an amount equal to the amount of the overpayment shall be recovered from him or her by way of the deduction from his or her salary of such instalments as the head of department, with the approval of the Treasury, relevant accounting officer may determine if he or she is in the service of the State, or, if he or she is not so in service, by way of deduction from any moneys owing to him or her by the State, or by way of legal proceedings, or partly in the former manner and partly in the latter manner;

(ii) that other benefit shall be discontinued or withdrawn as from a current date, but the officer or employee concerned shall have the right to be compensated by the State for any patrimonial loss which he or she has suffered or will suffer as a result of that discontinuation or withdrawal.

(3)  With the approval of the Treasury The accounting officer of the relevant department may remit the amount of an overpayment to be recovered in terms of subsection (2) (b) may be remitted in whole or in part.

39.   . . . . . .

Limitation of liability

40.  Whenever any person is conveyed in or makes use of any vehicle, aircraft or vessel which is the property of the State, the State or a person in the service of the State shall not be liable to such person or his or her spouse, parent, child or other dependant for any loss or damage resulting from any bodily injury, loss of life or loss of or damage to property caused by or arising out of or in any way connected with the conveyance in or the use of such vehicle, aircraft or vessel, unless such person is so conveyed or makes use thereof in, or in the interest of, the performance of the functions of the State: Provided that the provisions of this section shall not affect the liability of a person in the service of the State who wilfully causes the said loss or damage.

41.   Regulations.—(1)  The Minister may make regulations—

(a) regarding—

(i) the functions of departments, the transfer of functions from one department to another or from a department to any other body or from any other body to a department;

(ii) the establishment or abolition of subdepartments, branches, offices or institutions;

(iii) the control, organisation, rationalisation, restructuring or readjustment of departments, subdepartments, branches, offices or institutions;

(b) regarding—

(i) the creation, number, grading, regrading, designation, redesignation, conversion, deployment or abolition of posts on the fixed establishment;

(ii) the number of persons to be employed temporarily or under a special contract, whether in a full-time or a part-time capacity—

(aa) against posts on the fixed establishment which are not permanently filled;

(bb) additional to the fixed establishment, whether by reason of the absence of the incumbent of any post, or when it is necessary to provide staff for the performance of a class of work for which staff is not ordinarily employed on a permanent basis, or when it is necessary for any other reason to increase temporarily the staff of any department;

(c) regarding—

(i) the employment of persons and the transfer, promotion and continued employment of officers and employees, including the continued employment of officers in or against posts graded higher or lower than their own grade, or additional to the fixed establishment;

(ii) the circumstances under which medical examination shall be required for the purposes of any provision of this Act, and the form of medical reports and certificates;

(iii) the particular classes of officers and employees who may be required to provide security, and the amount and form thereof;

(d) regarding—

(i) the duties, powers, conduct, discipline, hours of attendance and leave of absence of officers and employees and their other conditions of service, including the occupation of official quarters;

(ii) the management of matters regarding conduct, including a code of conduct with which officers and employees shall comply: Provided that such a code shall only be approved by the Minister on the advice of the Commission;

(iii) the general security in departments and the security requirements with which officers and employees shall comply;

(iv) the conditions on which and the circumstances under which remuneration for overtime duty, and travelling, subsistence, climatic, local and other allowances shall be paid to officers and employees;

(v) journeys on official duty and the transport privileges of officers and employees;

(vi) medical aid to officers and employees;

(vii) the health and safety of officers and employees in the workplace;

(e) in order to promote efficient, economic and effective use of resources and to improve the management and functioning of departments, subdepartments, branches, offices and institutions, regarding—

(i) organisation, procedure and methods;

(ii) supervision;

(iii) the simplification of work and the elimination of unnecessary work;

(iv) the management of information and the utilisation of information technology;

(v) the co-ordination of work;

(vi) the limitation of the number of officers and employees of departments, subdepartments, branches, offices and institutions, and the utilisation of the services of officers and employees to the best advantage;

(vii) the training of officers and employees;

(viii) work facilities;

(ix) sound labour relations;

(x) any other matter which the Minister may consider essential;

( f ) regarding the keeping of records of the functions and organisation of departments, of officers and employees and of post establishments;

(g) regarding any matter required or permitted to be prescribed by regulation under this Act;

(h) regarding the designation or establishment of an authority or more than one authority and the power of such an authority to authorise a departure from the provisions of a regulation in respect of an officer or employee or class of officers or employees under stated circumstances;

(i) in general, regarding any matter which the Minister may consider necessary or expedient to prescribe or to regulate in order to achieve the objects of this Act.

(2)  Different regulations may be made in respect of the A and B divisions, or to suit the varying requirements of particular departments or branches of departments, or of particular classes of officers or employees, or of particular kinds of employment in the public service.

(3)  (a)  A regulation made under this Act shall be in force unless and until Parliament, by resolution, disapproves of the regulation, in which event the regulation shall lapse with effect from a date to be specified in the resolution.

(b)  The lapsing of a regulation in terms of this subsection shall not affect the validity of anything done under the regulation prior to the date mentioned in the resolution.

(c)  The provisions of this subsection shall not affect the power of the Minister to make a new regulation regarding the subject matter dealt with by a regulation that has lapsed in terms of paragraph (a).

Regulations

41. (1) The Minister may make regulations regarding—

(a) any matter required or permitted by this Act to be prescribed;

(b) any matter referred to in section 3(1), including, but not limited to—

(i) the allocation, transfer and abolition of functions in terms of section 3(4) and the staff performing such functions;

(ii) the restructuring or rationalisation of departments;

(iii) employment additional to the establishment;

(iv) the appointment of unpaid voluntary workers who are not employees and their functions;

(v) the co-ordination of work in a department or between two or more departments;

(vi) a code of conduct for employees;

(vii) the disclosure of financial interests by all employees or particular categories of employees and the monitoring of such interests; and

(viii) the position of employees not absorbed into a post upon its re-grading;

(c) the designation of one or more particular categories of employees to regulate one or more employment-related matters differently from other employees or categories of employees;

(d) the reporting on and assessment of compliance with the provisions of this Act and the review for appropriateness and effectiveness of any regulations, determinations and directives made under this Act;

(e) the designation or establishment of one or more authorities vested with the power to authorise a deviation from any regulation in respect of an employee or category of employees under stated circumstances, including the power to authorise such deviation with retrospective effect, but only if it is in the public interest and not to the detriment of

any employee; and

(f) any ancillary or incidental administrative or procedural matter that it is necessary to prescribe for the proper implementation or administration of this Act.

(2) Different regulations may be made to suit the varying requirements of particular departments or divisions of departments, of particular categories of employees or of particular kinds of employment in the public service.

(3) The Minister may issue directives which are not inconsistent with this Act to elucidate or supplement any regulation.

42.   Public Service Staff Code.—(1)  Subject to the provisions of section 5 (4)—

(a) any standing determination of a general nature made by the Minister; and

(b) any directive by the Minister to elucidate or supplement any regulation,

and which is not inconsistent with this Act may be included in a code to be called the Public Service Staff Code.

(2)  The provisions of section 41 (2) shall apply mutatis mutandis in respect of the Public Service Staff Code.

(3)  The provisions of the Public Service Staff Code shall be binding upon any department, officer or employee in so far as they apply to that department, officer or employee.

Public service handbooks

42. The Minister shall cause appropriate determinations and directives made or issued in terms of this Act to be included in one or more handbooks to be used by the public service.

45

42A.   Assignment of functions by Minister.—

(1)  The Minister may—

(a) delegate to the Director-General: Public Service and Administration or any officer or employee of the Department concerned any power conferred upon the Minister by or under this Act or any other law, excluding the power referred to in section 41 (1), on such conditions as the Minister may determine; or

(b) authorise the said Director-General, officer or employee to perform any duty assigned to the Minister by or under this Act or any other law.

(2)  Any delegation under subsection (1) (a) shall not prevent the exercise of the relevant power by the Minister himself or herself.

Delegation

42A. (1) (a) The Minister may—

(i) delegate to the Director-General: Public Service and Administration any power conferred on the Minister by this Act, except the power to make regulations; or

(ii) authorise that Director-General to perform any duty imposed on the Minister by this Act.

(b) The Director-General: Public Service and Administration may—

(i) delegate to any employee of his or her department any power delegated to him or her in terms of paragraph (a); or

(ii) authorise that employee to perform any duty he or she is authorised to perform in terms of paragraph (a).

(2) (a) Subject to subsection (3)(b), the Premier of a province may—

(i) delegate to the head of the Office of a Premier in the province any power conferred on the Premier by this Act; or

(ii) authorise that head to perform any duty imposed on the Premier by this Act.

(b) The head of the Office of a Premier may—

(i) delegate to any employee in that Office any power delegated to him or her in terms of paragraph (a); or

(ii) authorise that employee to perform any duty he or she is authorised to perform in terms of paragraph (a).

(3) The executive authority referred to in section 12(1) may, in the case

of—

(a) the President, delegate to the Deputy President or a Minister any power conferred on the President by section 12; or

(b) the Premier of a province, authorise a Member of the relevant Executive Council to perform any duty imposed on the Premier by section 12.

(4) Subject to subsection (3), an executive authority may—

(a) delegate to the head of a department any power conferred on the executive authority by this Act; or

(b) authorise that head to perform any duty imposed on the executive authority by this Act.

(5) The head of a department or other functionary may—

(a) delegate to any employee of the department any power—

(i) conferred on that head by this Act;

(ii) delegated to that head in terms of subsection (4); or

(iii) in the case of a government agency, assigned or delegated to the head in terms of section 7A(3) or (4); or

(b) authorise that employee to perform any duty—

(i) imposed on that head by this Act;

(ii) that that head is authorised to perform in terms of subsection (4); or

(iii) in the case of a government agency, assigned or delegated to that head in terms of section 7A(3) or (4).

(6) Any person to whom a power has been delegated or who has been authorised to perform a duty under this section shall exercise that power or perform that duty subject to the conditions the person who made the delegation or granted the authorisation considers appropriate.

(7) Any delegation of a power or authorisation to perform a duty in terms

of this section—

(a) shall be in writing;

(b) does not prevent the person who made the delegation or gave the authorisation from exercising that power or performing that duty himself or herself; and

(c) may at any time be withdrawn in writing by that person.’’.

Repeal of laws and savings

43.(1)  Subject to the provisions of subsection (2), the laws mentioned in Schedule 4 are hereby repealed to the extent indicated in the third column of that Schedule.

(2)  Anything done under any law repealed by subsection (1) and which could be done under a provision of this Act, shall be deemed to have been done under that provision.

Short title

44.   This Act shall be called the Public Service Act, 1994.

OTHER PROPOSED CHANGES:

1. Term “officer” replaced with “employee” and “executing authority” with “executive authority”

2. Schedules 1 to 3 replaced (pp 26-30).

3. Certain other laws amended in Schedule to Amendment Bill (p 31)