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