2.1 Introduction
2.2 Constitutional Mandate
2.3 Framework Legislation
2.4 Decentralising Authority
2.5 The Presidential Review Commission (PRC)
2.6 The Way Forward
The first set of legislative changes after 1994 was focused on the amalgamation and rationalisation of the various organisational units inside and outside (e.g. non-statutory forces in the military) the then public service framework into a single public se rvice. This included setting uniform structures and establishing a norm of service conditions and benefits for all the staff.
The complexity of this task is usually under-estimated by most commentators. Part of the process required, for example, public servants to be deployed in new localities different entities had to be integrated into single institutions, often putting incompa tible work and organisational cultures together, and that provincial administrations and homeland authorities had to be turned into provincial governments. The integration and rationalisation process, in fact, constitutes a major achievement by the various managers of the process. Its success was a critical factor in ensuring the smooth transition and continuity of administration of public services. As soon as the basic integrated structure was in place, the cha llenge of building a public service that embodies the values and norms of the new constitutional order, as well as deliver an equitable and expanded range of services, began.
In terms of Section 197(2) of the Constitution of the Republic of South Africa "the terms and conditions of public service employees must be regulated by national legislation". Chapter 10 of the new Constitution describes the basic values and principles go verning public administration, provides for the establishment of a new Public Service Commission (PSC) and provides for the structure and functioning of the public service. Section 195 describes the values and principles that must govern administration in every sphere of government, organ of state and public enterprise.
These values and principles are the following:
In addition, public management must be broadly representative, with employment and personnel management practices based on ability, objectivity, fairness and the need to redress the imbalances of the past to achieve broad representation. The issue of repre sentivity in the public service goes beyond simply employment equity requirements. Representivity of a public service is also an integral part of its legitimacy (in relation to the citizenry, and in terms of being considered loyal to the constitutional dis pensation) and nation-building role. These in turn are necessary for the developmental and leadership role of the public service.
Accordingly then, framework legislation was put in place, namely the Public Service Act, through Proclamation no.103 of 1994. This was complemented by other legislation covering the employment of teachers, police and other sectors. Since then, these laws have undergone an evolution consistent with the evolution of approaches regarding transformation.
One of the most important of these changes was the transfer of the management authority for the public service from the PSC to the Minister of Public Service and Administration. Following the Public Service Laws Amendment Act No 47 of 1997, the policy-making powers with regard to administration of the Public Service were now firmly vested in the Minister for Public Service and Administration.
According to Section 3 of the Amendment Act, the powers and duties of the Minister are the following:
The Minister also has the power to provide a framework of norms and standards with the aim of giving effect to any of the above policies. Her duties include advising the President on the establishment of national departments and related matters, allocating , transferring and abolishing public service functions, and advising the President, Ministers, Premiers and Members of Executive Councils (MECs) on a range of public service and linked issues.
Vesting such authority in the Minister was seen as an essential precondition for the devolution of such powers to line ministries and heads of departments, which was the intended next step. The devolution of powers to Ministers and Head of Departmens (HODs ) was seen as critical in that it would simplify the management accountability framework and align the accountability for policy outcomes with effective management controls and budget accountability. Only once there was clarity of the accountability framew ork could there be effective accountability of Ministers and HODs for the performance of individual departments. However, the Minister for Public Service and Administration still maintains the overall responsibility for a regulatory framework that sets the norms and standards, including authority to determine pay and other conditions of service.
As part of the decentralisation process, there was a need to repeal the centralised Public Service Staff Code to enable sectors or departments to be able to adapt public service frameworks to the peculiarities of their sectors. This was achieved by the ins titution of Public Service Regulations on 1 July 1999, on the basis of the Public Service Amendments Laws of 1996. The new regulations are consolidated, simplified and captured in plain English in order to make them accessible to public service managers an d employees. More work, however, is still needed to change and fill gaps in the regulatory framework, and this will be captured in future regulatory and legislative change.
Another important step introduced by the Public Service Amendment Act, was the recognition of provincial departments as fully-fledged departments that are accountable politically through the MEC and administratively through the HOD. This shift simplified t he accountability framework and put accountability squarely with the people who hold the levers of management. Failure to do this would have had the effect of a confused accountability chain for 70 per cent of the public service.
As part of the continuous search to improve organisation and management of the public service, government recently received the report of the Presidential Review Commission (PRC). The commission took longer than initially anticipated but eventually came up with far-reaching proposals when it did report in February 1998. Some of its proposals on macro- and micro-organisation of government are still being debated in various forums. Some of its proposals, e.g. an integrated Presidency and integrated provision of information technology (IT) services, are already being implemented. The key point is that the recommendations of the PRC will influence public service reform debates and policymaking for a long time to come. It is in the nature of the far-reaching recommendations the PRC has made that further debates are inevitable. The PRC has, however, raised crucial debates that go a long way into consolidating and refining the institutional framework that supports the new constitutional order. The PRC also had the effect of opening up the public service transformation debates to a much wider pool of commentators than had been the case previously.
Among the issues the PRC has grappled with is the nature and mandate of the department that deals with public service and administration issues in government. This is an important debate, since it goes to the essence of how best to regulate, supervise and support the ongoing development of the public service as an institution. Everyone recognises the need for an institution that exercises overall res ponsibility for the public service. There is nothing wrong, however, with exploring various ways in which such a department could be structured and function in fulfillment of its mandate. Such debates improve the quality of policy discourse and decision-ma king.
The PRC also makes comments on the Public Service Commission (PSC). This is also a debate which should be encouraged in the interest of a well-structured, accountable and effective public administration. The PSC is a constitutional requirement, thus the is sue can only be how best it can fulfil its functions. The powers and functions of the PSC are set out in Section 196 of the new Constitution and are the following:
The matter of how best to promote capacity-building and management development and the role for the South African Management and Development Institute (SAMDI) in the public service is part of this debate. This too is a matter of great significance if the public service is to overcome its initial problems and position itself to play a leading role in support of the development of the country. There can be no question that many intentions of public service reform and policy are but dreams unless we have succ eeded on this question. It is important to note, however, that there are no easy solutions to the issue of capacity building if it is to be done properly.
Having gone through a period of institution-building, rationalisation, and the initial transformation steps, there is now the question of the way forward. Despite all the problems that continue to plague the public service, there has been great progress si nce 1994. Many people do not appreciate just how low the starting base was in many areas of delivery. Many do not appreciate the effort it took simply to sustain the same level of service in an expanded context according to the constitutional principles. I t is in the nature of managing complex changes in a wide range of areas on a massive scale that encountering problems were inevitable. Many who have had experience in similar challenges relating to public service reform have commented on the scale of the ambitions of reform. In some cases reforms have proven too ambitious especially where basic institutional systems proved to be much weaker than had previously been anticipated. In other cases, however, we have realised such ambitions, and achieved what would normally have taken far longer.
Given the point we have reached and the lessons we have learnt, the question of what the next phase of policy and legislative reform should be is raised. In some instances there are gaps and ambiguities in the policy framework. In other instances there are opinions that the legislation and regulations could be simpler, smarter and more enabling. There is also a view that we need a unified management framework through a consolidated law. As provinces and sectors begin to map their particular challenges, there is the question of the extent to which variation is allowed in the public service framework. Does the public service have to look the same in order to be considered a coherent whole? If differentiation is to be allowed, how far should it go? In what kinds of areas would it be appropriate? The legislative changes that would come at this point would in many ways capture the new level of policy debates regarding the issue of public service reform.
We are at a time now, like in the constitution-making process, where we are in a position to make choices that will indelibly mark the governance institutions for decades to come. The choices are, thus, not to be made lightly.