PUBLIC SERVICE COMMISSION

REPORT ON

THE RATIONALISATION OF PUBLIC ADMINISTRATION
IN THE REPUBLIC OF SOUTH AFRICA 1994-1996

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CONTENTS

FOREWORD

CHAPTER I :
GENERAL OVERVIEW OF THE RATIONALISATION PROCESS

Introduction
A fragmented public service
Amalgamation and rationalisation
Rationalisation, reconstruction and development
Challenges of rationalisation

CHAPTER 2:
SELLING A NEW LEGAL FRAMEWORK IN PLACE

Introduction
Legal framework
Rationalisation of legal instruments
Subsequent developments
Evaluation

CHAPTER 3:
ASSIGNMENT OF POLITICAL EXECUTIVE POWERS FOR THE ADMINISTRATION OF LAWS

Introduction
Complexity of the task
Execution
Assignment of Laws to Provincial Governments
Evaluation

CHAPTER 4:
ORGANISATIONAL RATIONALISATION

Introduction
Scope
Execution
Challenges and constraints
Evaluation

CHAPTER 5:
RATIONALISATION OF TERMS AND CONDITIONS OF SERVICE

Introduction
Constitutional guarantees.
Steps to achieve uniformity in conditions of service
Disparities to be addressed
Amendments to legal instruments Statutory mandate
Negotiations Uniformity measures
Support initiatives
Pensions rationalisation
Evaluation

CHAPTER 6:
STAFFING THE RATIONALISED STRUCTURES

Introduction
Staffing implications
Approach to staffing
Chapter B (Special)
Right sizing
Policy on representativeness
Staffing the rationalised sructures
Progress on representativeness
Statutory review bodies
Evaluation

CHAPTER 7:
MANAGING THE RATIONALISATION PROCESS

Introduction
Planning
Organisational arrangements
Intergovernmental co-ordination
Interaction with Directors-General
Assignment and delegation of powers
Support of provinces
Reporting
Costs

CHAPTER 8:
CONCLUSION

Rationalisation as a precursor to the transformation of the public service
Evaluating rationalisation

LIST OF ANNEXURES

ANNEXURE A
The Constitution of 1993 and the public service
ANNEXURE B
Summary of Constitutional provisions dealing with the transitional arrangements for and the rationalisation of public administration
ANNEXURE C
Departmentalisation models: national level
ANNEXURE D
Departmentalisation models: provincial level

FOREWORD

This is a special report of the Public Service Commission for tabling in Parliament, in terms of the Public Service Commission Act. Various aspects of the rationalisation of the Public Service were reported on briefly in the Commission's annual reports for 1994 and 1995. In view of the magnitude and historical importance of the rationalisation of public administration, the Commission considered it necessary to submit a special report on rationalisation. The work presented in this report is a contribution to the building of a unified and democratic public service.

A considerable amount of preparatory work, research and reflection on the public service was undertaken in the period preceding the first democratic election. This preparation consciously anticipated and contributed to the multi-party negotiations around the Interim Constitution. The work constituted timeous recognition of the magnitude and complexity of setting up a new system of administration and a new public service for the country. The task of operationalising the Constitutional mandate of rationalisation required visionary leadership, innovation and creativity. Professionals in the field of government organisation and personnel administration were sensitised to the mammoth task at hand.

Given the magnitude and historical importance of the rationalisation exercise, tribute must be paid to the following individuals:

• the President, Dr N R Mandela, for his support throughout this arduous process and timely promulgation of the legal instruments required to rationalise the Public Service;
• Dr Z S T Skweyiya for his leadership in this process as Minister for the Public Service and Administration;
• the Ministers and Premiers for their leadership in implementing rationalisation;
• the Portfolio Committee on Public Service and Administration for their interest in monitoring progress on rationalisation;
• the Provincial Service Commissions for sharing the responsibility of rationalisation in the provinces;
• the Directors-General for their frontline leadership in the actual implementation of the rationalisation measures;
• organised labour for their invaluable contributions to the rationalisation measures, as well as monitoring its impact on public servants;
• the Office of the Public Service Commission for their professional and logistical support;

*Special thanks to the two former Members of the Commission, Dr Roe Venter and Mr Ian Robson, for their invaluable contribution to the process of rationalisation.

Chapter 1 of the report provides a general introductory overview of the scope and nature of the rationalisation process. Chapters 2 to 6 address the major aspects of rationalisation, i.e. the legal framework, the assignment of the administration of laws, organisational rationalisation, the rationalisation of conditions of service, and staffing. Chapter 7 deals with the management of the rationalisation process. Chapter 8 provides an evaluation of the results of the rationalisation process, as well as juxtaposing and relating rationalisation to transformation and reform.

PROF. S. S. SANGWENI

MR. J. H. ERNSTZEN

DR. S. VIL-NKOMO

R. Y G. MUTHIEN

ADV. S. A. VISSER

GENERAL OVERVIEW OF THE RATIONALISATION PROCESS

DEFINITION:
In the South African context, rationalisation can be defined as the process of moving from a fragmented and dysfunctional system of administration to one which constitutes a balanced, integrated unity in which every component is essential for the effective functioning of the whole.

I. INTRODUCTION

The rationalisation of public administration to serve a democratic South Africa was mandated by the Interim Constitution of the Republic of South Africa, which came into effect on 27 April 1 994. This report covers the period from May 1994 to June 1996. The relevant provisions of the Constitution are voluminous and complex, an unavoidable feature of the Constitution necessitated by the need to establish legal certainty concerning all aspects of the metamorphosis the country was to undergo. However, the essence of the rationalisation which was to be effected is captured in the Constitutional stipulations requiring that -

1. a single public service be established in place of the plurality of services which existed in the former dispensation; and
2. all previously existing public executive institutions, excluding local government institutions, be rationalised with a view to establishing within the new, unified public service effective administrations at both the national and provincial levels of government, to deal with matters within the respective jurisdictions of the governments concerned.

To implement these basic Constitutional stipulations, clear and unambiguous in themselves, a process had to be launched and carried through which in its magnitude and complexity was without precedent in the history of South Africa.

2. A FRAGMENTED PUBLIC SERVICE

At the time of the completion of the multiparty negotiations, the coming into being of the first democratic government and the Interim Constitution, eleven systems of government and administration existed in South Africa. Each of these systems focused on a particular geographic area, thus leading to total fragmentation of governance in South Africa as a whole. These were the systems of -

• the Republic of South Africa, which could be regarded as the core system;
• the "independent states" of Transkei' Bophuthatswana, Venda and Ciskei (previously part of the Republic of South Africa); and
• the self-governing territories of GazanFulu, Kangwane, KwaNdbele, Kwa Zulu, Lebowa and QwaQwa (within the borders of the Republic).
  (see map of former South African Provinces and Homelands opposite)

Although Transkei, Bophuthatswana, Venda and Ciskei were referred to in official South African documentation as independent states, they were never accepted as such by the majority of South Africans and the international community, while their position in international law could at best be described as problematic.

Each of the ten systems of government and administration contained, at least or. paper, the three basic components of systems of governance: a legislative assembly, a political executive and an administrative organisation staffed by public servants. At the tinge of the termination of the old dispensation, the governments of three of the "independent" states were under former homeland/bantustan military leaders and the rest were in a state of total confusion, with varying implications for the particular legislative and political executive institutions, while the administrative institutions (mainly departments and linked parastatal institutions) continued with their operations as best they could under the circumstances.

Each of the states and territories had its own body of statutes and subordinate legal prescripts regulating matters within its legislative competence. The legislatures of the four TBVC states adopted laws covering virtually the whole array of functions of the state. The legislatures of the six self-governing territories were, as their subindependent categorisation suggests, restricted to passing laws on matters specifically assigned to them by the central Parliament of South Africa. Their competence nevertheless encompassed a great many matters covering most of the state functions, notable exceptions being foreign affairs, defence, police and public finance. As far as the Republic of South Africa itself was concerned, the body of statutes contained, in addition to the Acts of Parliament, four sets of ordinances applicable respectively to the provinces of Transvaal, the Orange Free State, Natal and the Cape Province. These ordinances had been adopted by the former provincial councils up to their dissolution in I 986, had not been repealed, and were of equal force and effect in the respective territories as if they were Acts of Parliament.

In its pre-rationalised state, South Africa therefore operated under not one, but a multiplicity, of statute books and subordinate legal prescripts, individual laws differing as to their territorial applicability and often differing in the ways in which they dealt with the same or similar matters. The awesome problem presented to the rationalisation of public administration by this large and confusing mass of laws and other prescripts, applying in a differentiated manner to various parts of the national territory, is self-evident.

Each of the eleven systems of government and administration had its own public service. There was general agreement as to what the public service was, i.e. a body of persons or personnel corps deployed in departments, administrations, offices and services, each under the direct control of a political office holder, and having the terms and conditions of service of its members regulated by a law applying specifically to it. However, each of the eleven public services was a separate entity under its own Public Service Act, with its own public service commission or other form of central personnel authority. Although officers of the South African (central) public service were seconded in quite substantial numbers to the other ten public services, there was no provision for career movement of individuals between the various public services. If an individual wished to become a member of another public service, he or she had to resign his or her position and be appointed anew in the other public service.

Historically, each of the other ten public services had been hived off from the South African public service at the time of the granting of self-government to a particular territory. 'when a territory- opted tor "full" independence, as was the case with Transkei, Bophuthatswana, Venda and Ciskei, its public service was absorbed into the new state. The "family relationship" of these public services with the mother South African public service, in terms of their regulatory prescripts, and, in general, the formal model of administration, was clearly discernible. However, each system underwent varying degrees of change with the passage of time, with the public services of the self-governing territories remaining quite close to the parent model, while those of the TBVC states tended to change quite markedly in certain aspects. This was particularly the case as far as the classification and grading structure, as well as remuneration and other conditions of service, were concerned. In the final days of the old dispensation, there was mounting evidence of irregular and unjustified manipulation of the formal system in order to benefit certain of ficials and classes of officials, prompting the Constitution writers to establish a Special Tribunal to review such cases. These issues are dealt with in the chapters which follow.

The approximate size of the eleven public services was as follows at the end of September 1993:

3. AMALGAMATION AND RATIONALISATION

The new Constitution envisaged a single public service deployed between a central administration and nine new provincial administrations, with the continuance in service of all public servants in the employ of all former governments on the day preceding the implementation of the new Constitution, and with the retention of certain terms and conditions of service guaranteed. To convert eleven public services, with varying degrees of similarity and dissimilarity, and numbering approximately 1,2 million people, into a single public service, implied a massive exercise. Extensive legal drafting would be necessary, together with a comprehensive re-ordering of the personnel corps to establish uniformity not only in structure but also in terms and conditions of service. This was essential in order to ensure that every class of official, and indeed every individual official, would be absorbed into the new public service in a Constitutionally accountable manner.

3.1 Organisational rationalisation

Turning to flee question of organisational structures, it should be noted that, prior to rationalisation, South Africa was served by fifteen discrete administrations: the central administration of the Republic of South Africa, the administrations of the four provinces of the Republic, the administrations of the six self-governing territories within tile Republic, and the administrations of the four "independent" states. The Interim Constitution stipulated that there would be one central administration and nine provincial administrations; in effect, fifteen existing administrations had to be consolidated into ten new administrations (see map often Provincials Admi/?isirafions opposite). This would be a major and complicated exercise requiring the division, combination, integration or phasing out of a great many organisational components, with the almost inevitable disruption, uncertainty and concern attendant on large scale reorganisation.

3.2 Division of powers and functions

The most challenging technical factor to be dealt with in redesigning the machinery of government was the division of functions and powers as directed by the Interim Constitution. The Constitution essentially linked functions to legislative powers so that, simply stated, each level of government would perform functions in line with its assigned legislative competence. Legislative competence in matters not specifically dealt with in the Constitution would vest in the national Parliament. The matters concerning which tile provincial legislatures could make laws were stipulated in a schedule to the Interim Constitution. I lowever, and this would be of crucial importance in the reorganisation of government strrictures, an Act of Parliament would prevail over a provincial law in certain respects stipulated in the Constitution. These Parliamentary "overrides" are focused on effective regulation in general; regulation or co-ordination by uniform norms and standards; the setting of minimrin~ standards; economic unity and development; protection of the environment; maintenance of national security; and the safeguarding of public health. To determine what had to be done by national departments in relation to the provincial domain would require careful function analysis, interpretation of the Constitutional language on overrides and, in many instances, agreement on limits of competence between political office holders at national and provincial level.

3.3. Staffing

Staffing logically follows organisation and, to achieve effective administration, it is a Sikh qua noes that, having redetermined the organisational structures of government, such structures must be properly staffed. In practice, staffing is a matter of placing people in posts or, more precisely, placing the right people in the right posts. In the rationalisation context, staffing would understandably be a highly sensitive, and, in certain respects, also a contentious matter.

There were two major considerations which would influence and complicate the staffing of the rationalised structures. In the first place, although the Constitution stipulated that all serving public servants would continue in service on its mplementation, it was surmised that there were a greater number of people in the employ of government than were realistically required to ensure effective administration under the new dispensation. The probability of situations of large scale redundancy arising, with serious implications for the careers and personal lives of many public servants, had to be faced. Secondly, staffing processes would have to abide by the Constitutional stipulations concerning the characteristics of the new public service. This included an injunction that the public service be broadly representative of the South African community. While requiring broad representativeness in the composition of the public service, and stipulating that the public service should be accessible to all South African citizens, the Constitution also retained the merit principle, widely recognised in the administration of public services, by further stipulating that in the making of any appointment or the filling of any post, the qualifications, level of training, merit, efficiency and suitability of qualifying candidates were to be taken into account. By acknowledging and mandating both representativeness and merit in making public service appointments, the Constitution directed the staffing process into largely uncharted waters, placing tremendous demands on the Commission as the body charged with providing leadership in this highly sensitive area of administration.

The staffing of the rationalised structures had to take place in a psychological environment in which, on the one hand, a great many serving public servants were deeply concerned about their jobs and prospects in the new public service while, on the other hand, a large number of previously excluded people, who through circumstance of the past had been prevented from joining the public service, cherished the hope of being, and indeed expected to be, admitted to the new public service. Reconciling the manifest fears, anxieties, hopes and expectations of a great many people would obviously place great demands on the staffing process.

4. RATIONALISATION, RECONSTRUCTION AND DEVELOPMENT

The Government White Paper on Reconstruction and Development was tabled in Parliament on 15 November 1994. Chapter 5 of the White Paper dealt with public sector restructuring. The importance of building a unified, cost effective and efficient public service was emphasised, while at the same time requiring strict control of its size. As far as the latter aspect was concerned, the White Paper took the line that there ought to be no, or only minimal, growth of staff complements, while a concerted effort was made to redeploy personnel to meet the staffing requirements of reconstruction and development programmes. Reference was made to the revision of public service legislation, regulations and coded instructions which had taken place up to that point. An indication was given of the need for further revision, including revision of the Public Service Commission's role in the system of public administration.

The White Paper envisaged fundamental revision of the public service system, with particular emphasis being placed on affirmative action, training, productivity enhancement and labour relations. The White Paper on Reconstruction and Development was the first statement of Government policy with a bearing on the rationalisation of public administration. Chapter 5 of the White Paper especially would serve as a general directive in giving effect to the Constitutional injunctions of a unified public service and efficient 8 administrations at the national and provincial levels of government. The fact that the White Paper was tabled many months after the rationalisation process had commenced did not present substantial difficulties for rationalisation. This was so partly because the Commission had been privy, and indeed had contributed, to successive drafts of the White Paper, and partly because the White Paper was to a large extent an affirmation of the Reconstruction and Development Programme of the majority party in the Government, which had already been published in 1993. In giving direction to rationalisation, the Commission was therefore able to anticipate the final content of the White Paper. The Commission was committed, on the basis of its Constitutional mandate, to pursue rationalisation as rapidly as possible, and at no stage considered delaying the process until a formal statement of Government policy on the matter had been issued.

5. CHALLENGES OF RATIONALISATION

The problems, indeed also the challenges, of rationalisation were characterised throughout not only by the magnitude and technical complexity of the steps to be taken to bring about what the Interim Constitution required, but also by the very practical question of how best to proceed. A metamorphosis of epic proportions had to be accomplished; it had to be completed within a credible period of time; a great number of role players with divergent orientations and concerns would be involved; the delivery of services had to continue with minimal disruption while fundamental change was taking place; and the morale and confidence of both public servants and the public had to be maintained at an acceptable level. Clearly, some plan of action was required. The Commission set itself the task of devising a plan of action which would identify the essential steps and actions which would need to be taken to effect the rationalisation of public administration without compromising the orderly maintenance of essential services. Particulars of the plan are included in Chapter 7 of this report.

It was impossible to say how long rationalisation would take; indeed, it was debatable what particular action would actually signal the completion of rationalisation. The Commission envisaged at the outset that rationalisation would take a year or more. In the event, more than two years were to pass before it could be said that rationalisation had substantially been finalised.

1. INTRODUCTION

For the rationalisation of public administration in South Africa to occur, a revised and adjusted legal framework had to be set in place. Since the creation of the South African state in 1910, public administration was governed by a specific framework of laws for the public service. Thus, as far as organisation, staffing and financial administration were concerned, government departments, services, offices, and parastatal institutions generally, were regulated by specific statutes.

2. LEGAL FRAMEWORK

The foundation of the new legal framework was provided by the Interim Constitution of 1993.

'I'he Constitution provided for a Public Service Commission and a unified South African public service, functioning on the basis of democratic values. The powers and functions of the Public Service Commission were enshrined in the Interim Constitution and the framework for the administration of the Public Service was elaborated in a revised Public Service Act.

The Public Service Labour Relations Act (PSLRA) was also amended in line with the Constitutional principles. The PSLRA, which was adopted at the end of 1993, extended full labour rights to members of the South African public service for the first time. No corresponding Acts had been adopted in the other ten public services in South Africa. The Constitution and the PSLRA extended labour rights to all workers, including public servants, in South Africa.

The Public Service Regulations, proclaimed by the President, supplemented the provisions of the Public Service Act, while the Public Service Staff Code, issued by the Public Service Commission, regulated the administration of the public service in greater detail. These legal prescripts were voluminous. The Public Service Regulations consisted of 113 pages of print and the Staff Code of some 1380 pages. The Regulations and the Staff Code formed an integral part of the legal framework regulating the staffing and administration of the public service, and they therefore needed to be systematically reviewed, and, where necessary, amended, to be consistent with the Constitutional provisions.

The Constitution stipulated that a provincial legislature may provide by law for a provincial service commission to act as a central personnel authority in the province. Such a commission would be "subject to norms and standards applying nationally". In building a new legal framework, provision had to be made for the establishment of provincial service commissions. Two aspects were of particular importance: there would have to be an alignment of the roles of the Public Service Commission and provincial service commissions within a single public service, and national norms and standards would have to be issued on all aspects of administration.

The Interim Constitution included comprehensive provisions on the National Defence Force and Police Service. Both formed part of the public service, but separate legislation, distinct from the F'ublic Service Act, was necessary to give full effect to the Constitutional provisions. Although educators, a major component of the public service, were not specifically regulated by the Constitution, the employment of educators was regulated by a separate service Act.

Clearly, the legal framework regulating tile total public service had to be designed to accommodate intra-public service differentiation. It was, however, inevitable that uncertainty or ambiguity would arise, especially over the division of roles and competences of key role-players at both national and provincial levels.

The consolidation of public services and administrations and the setting up of a new national administration and nine new provincial administrations required a comprehensive review and rationalisation of financial and audit legislation. Legislation on these aspects of public administration was not under the Commission's purview and is thus not dealt with in this report of the Commission.

The scope and complexity of developing a rationalised legal framework for public administration, as well as the urgency to complete the task, presented the Commission with a major challenge.

The Government of National Unity was sworn in in May 1994, followed soon after by the election of provincial Premiers and the appointment of the provincial executive councils. The public service is the executive arm of government. A new, unified public service, replacing the eleven separate public services of the former dispensation, had to be available to the newly appointed political executives at both national and provincial levels, as a matter of urgency.

The bridging provisions in the Constitution could keep public servants in employment and public institutions functioning. It was, however, in the interests of efficient and credible government and administration to have the new public service functioning under the new political leadership as soon as possible. Indeed, the establishment of the major administrative units of government of the reconstituted state could only be effected in terms of a new Public Service Act. In view of its role in the administration of the public service, the same urgency applied to legislation concerning the Public Service Commission.

3. RATIONALISATION OF LEGAL INSTRUMENTS

The necessity to establish the new public service speedily short-circuited the normal Parliamentary route for the enactment of new or amended legislation. Indeed, the newly elected Parliament and provincial legislatures would only commence their initial sessions weeks after the political executives had been appointed. The Commission accordingly advised Government that Presidential proclamation be utilised to establish the basic legal framework required for the staffing and administration of the new public service, including the F'ublic Service Act, the Publie Service Commission Act and the Publie Service Labour Relations Act. The Public Service Regulations and a new Staff Code could be created in terms of the new Public Service Act, the former by proclamation of the President, on the recommendation of the Commission, and the latter by directive of the Commission. The route of promulgation, due to the urgency to have a regulatory framework in place and to avoid a legal and administrative vacuum from arising, forfeited the legitimacy that the Parliamentary process would have accorded these legal instruments.

The approach followed was to revise the existing prescripts (Acts, regulations and coded instructions) in line with the Constitution. While it was foreseen that a complete revision and redrafting of prescripts would be necessary at an early date, the urgency of the matter precluded such an approach. While the revision of the existing prescripts was not the optimal approach, the need to have the new public service established and functioning in line with the Constitutional directives speedily was conclusive.

On the proposal of the Commission, it was decided to replace the Publie Service Act, 1984, and the Public Service Labour Relations Act, ] 993, in toto by Presidential proclamation. The existing content was amended to bring the Acts into line with the Constitutional provisions. The Commission envisaged a similar replacement action in respect of the Commission for Administration Act, 1984, but was advised by the State Law Advisers to simply amend the Commission for Administration Act, 1984, in line with the Constitutional provisions. The amendments included the deletion ot sections already fully stipulated in the Constitution. An interesting amendment was the substitution of the title of the Act, while retaining the year of assent, leading to the oddity of a body created by a Constitution of 1993 being regulated in certain r espects by an Act of 1984.

The detailed work involved in the systematic revision of the relevant Acts, the Public Service Regulations and the Public Service Staff Code was entrusted to the Office of else Commission. Ale specialised components in the Office of the Commission dealing respectively with government organisation, personnel structures and conditions of service, and staffing and personnel management, were all closely involved in the work, each attending to its particular area of concern. Inputs were fed to a central co-ordinating point where final consolidation and processing took place. In the drafting of the replacement Publie Service Act and F'ublic Service Labour Relations Act, the Office of the Commission was assisted by project teams composed of experienced officials drawn from the secretariats of previous service 12 commissions. In accordance with established practice, the final vetting, adjustment and certification of the draft Acts was done by the State Law Advisers.

The draft Public Service Act and draft E'ublic Service Labour Relations Act were cleared with the recognised employee organisations of the former public services, senior management of the different public services, the national Ministers and the Premiers of the provinces. The amendments to the Commission for Administration Act were cleared with the outgoing central personnel authorities.

The components of the package of revised prescripts were proclaimed or issued as follows:

Some importent features of the revised legal framework set In place in Jure I 994 are discussed below.

3.1 Public Service Commission Act, 1984

The Commission for Administration (CFA) Act, 1984 was amended to bring it into line with the Constitutional provisions on the Public Service Commission and the title of tile Act was substituted. Other significant alterations were as follows:

• Provisions dealing with the establishment and constitution of the Commission, the appointment of its members, the continuity in office of serving members, the grounds for discharge of members, the removal of members from office and their conditions of service were deleted from the Act, as these matters were henceforth regulated by the Constitution itself.
• Definitions of the expressions "Constitution" (emphasising the Commission's position as a Constitutional body) and "executing authority" (to align the Commission Act with the Public Service Act, 1994) were inserted in the definitions section of the Act.
• A new deeming provision, to the effect that organisational components listed in Schedule II of the Public Service Act, 1994, be deemed to be departments and designating the office of the heads of departments for purposes of the Act, was inserted in the Act.
• The provision for serving heads of departments to act as members of the Commission in the absence of permanent members was deleted, as such an arrangement was no longer necessary in the light of the increase in the permissible size of the Commission (from 3 to 5 members).
• The provision in the CFA Act for the exclusion of the Commission from certain specified matters and the assignment of such makers to the political heads of departments was repealed. The State Law Advisers considered the provision to be contrary to the intention of the Interim Constitution. The provision for the Commission to delegate its powers to officers in the public service was, however, retained.
• The limitation provision in the Act, requiring legal proceedings to be instituted within twelve months, was softened by an amendment providing that a court may direct otherwise.

3.2 Public Service Act, 1994

The new Act followed the structure and content of the Public Service Act, 1984, as amended. However, a substantial number of changes and innovations were made:

• Nineteen of the 22 definitions of terms were retained, but revised to bring it in line with the provisions of the Constitution and the revised Public Service Commission Act, 1984. With the demise of separate government structures for Blacks, as well as the former provincial administrations, the definitions of "Black authority" and "Administrator" fell away. The definition of "Minister" was replaced. A substantial number of new definitions were inserted, reflecting the emergence of a unified public service and the extension of full labour rights to all public servants. These included "Constitution", "educator", "executing authority", "information technology", "national department'', "provincial administration", "provincial service commission", "state educational institution", "agreement", (bargaining) "Council" and "employer".
• The expression "executing authority" was coined to refer to the political heads of various departments, offices and services at national and provincial level, and to reflect their role as the executing authorities of public service policy in their departments. The expression replaced the terms "Minister" and "Administrator" used in the old Act.
• The Act repealed the laws regulating the eleven former public services, effectively abolishing them. To ensure continuity in employment of all public servants as directed by the Constitution, the Act provided that existing posts and authorisations for employment be deemed to have been established or issued in terms of the new Act, and that serving public servants remain in employment and be deemed to be officers or employees under the new Act.
• As the Constitution had not made the establishment of provincial service commissions obligatory, the Act provided that the Public Service Commission would fulfil its role as a central personnel authority in respect of a province, except where a provincial service commission had been established, in which case the Commission's role would be limited to matters not falling within the Constitutionally determined competence of a provincial service commission.
• As far as the Commission's powers and functions in relation to the public service were concerned, a number of significant additions were inserted in the new Act. The Commission's powers of recommendation were expanded to include the promotion of sound labour relations, while its powers of direction were expanded to include the application of information technology. The Commission had power of both recommendation and direction in cases of uncertainty over the jurisdiction of the Commission vis-a-vis that of a provincial service commission. The Commission was also authorised to establish, on such conditions as the Treasury may approve, a training fund to be financed by donations and grants.
• A time-limitation was included in the Act enabling the Commission to establish uniformity in the terms and conditions of employment of all serving public servants absorbed into the new public service within one year. The power conferred on the Commission to effect uniformity in terms and conditions of employment lapsed on 27 August 1995, the first anniversary of the commencement of the Interim Constitution. Certain procedures, conditions and qualifications appertaining to the achievement of uniformity were included in the provision and are dealt with in Chapter 5 of this report.
• Thc provisions in the old Act regarding the implementation, rejection and variation of recommendations of the Commission were substantially altered in the new Act. In the old Act, reference was made only to recommendations, and not directions, of the Commission. The head of state could reject or vary a recommendation. The Constitution stipulated that the recommendations and directions of the Commission could be rejected and referred back to the Commission by the President. Every recommendation and direction, irrespective of whether or not it related to a particular person, could be rejected or referred back, but not varied, by the President.
• The gender bias manifested in the wording of the old Act by repeated references only to the male gender was eliminated by the inclusion of references to both genders in the wording of the new Act.
• As far as the composition of the public service is concerned, persons holding posts on the fixed establishment of state educational institutions, and who had been excluded from the public service in 1993 (to informally constitute an educational service), were re-integrated in the public service.
• The new Act provided that a transfer from a national department to a provincial administration, or vice Mensa, or from one provincial administration to another, would be subject to a recommendation by the Commission in addition to a recommendation by a relevant provincial service commission.
• The Constitutional guarantee that a serving public servant would retain the right to retire on or after reaching a retirement age applicable to him as at 1October 1993 was incorporated in the new Act.
• The circumstances under which the salary or scale of an officer can be reduced without his consent were expanded in the new Act to include the Constitutional provision concerning irregularities, as well as the rationalisation measures issued in terms of the Constitution.
• The prescriptive provision requiring legal proceedings to be instituted within twelve months, and stipulating a notification period of one calendar month, was qualified by a stipulation that a court of law could dispense with such requirements where the interests of justice so required.
• The Act contained a number of provisions regulating the transition from a multiplicity of public services to a single, new public service. Of particular interest in this connection were the following: the abolition of all existing public service commissions or other forms of central personnel authority simultaneously with the commencement of the Act; the deeming of the offices of such bodies to be regional offices of the (new) Office of the F'ublic Service Commission; provision for the continuation of uncompleted misconduct investigations and grievance proceedings under the new legal framework; and the placement of those Directors-General and other administrative heads whose institutions were to be replaced by new departments and other organisational components, under the control and directions of the newly designated heads.
• Finally, and importantly, the new Act brought into existence a new structure of 35 national departments, offices and services, nine new provincial administrations, and six "Schedule 2" organisational components. The Act at the same time created a post of Director-General, or a post under another appropriate designation, to head each of the departments, offices, services, administrations and "Schedule 2" organisational components that it established.

3.3 Public Service Labour Relations Act, 1994

The Public Service Labour Relations Act, 1994, largely retained the provisions of its forerunner of 1993. However, the new Act had to accommodate the changed Constitutional situation, in which all public servants would henceforth enjoy full labour rights and there would be a new level of employment in the form of the provincial governments. The important differences between the new Act and the one that it replaced were as follows:

• The revised collective bargaining structure would consist of three levels: the central level, the departmental level (restricted to departments, offices and services at the national level of government) and the provincial level.
• Definitions of "province", "provincial administration", "provincial level ", "provincial service commission" and "executing authority" were inserted in the new Act.
• A provision in the old Act which excluded heads of departments and certain categories of personnel in the Office of the Commission from membership of employee organisations was omitted in the new Act, as such exclusions conflicted with the freedom of association guaranteed by the Constitution.
• A number of important transitional measures were incorporated in the new Act' including the continuation of existing bargaining chambers and agreements and the extension of a once-off opportunity to existing employee organisations to become members of the various bargaining chambers without going through the normal admission process.

3.4 Public Service Regulations

The newly proclaimed Public Service Regulations were especially noteworthy for the addition of a chapter dealing with organisational and establishment matters. The need for such a chapter could be adduced from the provision which was made in the Interim Constitution for the establishment of provincial service commissions. Such a commission would have powers of recommendation, direction and investigation concerning, inter alia, the establishment and organisation of departments of the province, but, in exercising its powers, would be subject to norms and standards applying nationally. With the establishment of provincial service commissions imminent, it was necessary to urgently set in place norms and standards governing organisational and establishment matters. Chapter J of the Public Service Regulations did precisely that. The main features of this innovation to the prescripts were:

• The Chapter, which would apply at both the national and provincial levels of government, provided general policy provisions on organising, as well as the creation of posts and other authorisations for the employment of personnel. In addition, the Chapter included a number of specific organisational and establishment provisions stipulating the role of the Commission, adherence to norms and standards, certain application criteria and certain procedural requirements.
• The Chapter was augmented by an annexure applicable to the provincial administrations. The measures contained in the annexure limited expenditure on the salaries of public servants to 35% of a provincial administration's total expenditure budget, and, in addition, set limits based on formulae to the number of posts that a provincial administration could utilise in structuring its management echelon.

3.5 Public Service Staff Code

As the practical manual used by departments in the day to day administration of personnel, the Staff Code was brought into line with the rest of the revised legal framework. The Staff Code was substantially revised and re-issued by the Commission:

• Twenty-seven parts of the Code dealing with a wide spectrum of matters, from advertising through to language requirements, selection procedures and official hours of attendance, to uniforms and protective clothing, were redrafted to reflect Constitutional principles, requirements, provisions and role demarcation, as well as alterations embodied in the new Public Service Act.
• A number of parts were redrafted specifically to ensure that norms and standards concerning regulated matters were clearly spelt out, in order to accommodate the role to be played by provincial service commissions.
• The patently sexist wording of the Code, manifested in the extensive use of the terms "he", "him" and "his", was adjusted to a non-sexist style of formulation by the inclusion at every point of usage of the corresponding female gender term.
• The Code was updated by the inclusion of new policies and practices which had already been introduced into the administration of the public service, but not yet codified. These improvements affected some fifteen parts or chapters of the Code.
• In a number of instances, new directives or guidelines were issued as part of the revised Code. These included procedural changes in a number of diverse areas such as publicity and recruitments, secondments and the calculation of overtime remuneration; a new chapter on state housing; the extension of the payment of leave gratuities to the surviving spouses or children of customary marriages; the extension of the payment of service bonuses to such spouses or children, as well as to casual workers; the extension of the home owner allowance scheme to accommodation situated on tribal and state land, and financed by dedicated financial institutions; and the elimination of contractual service binding in respect of study leave granted.
• The Code also included a number of interim or transitional guidelines regulating and correcting the position of non-qualifying participants in the motor vehicle financing scheme for senior officials, payment dates for the service bonus in respect of two former homelands, and the irregular payment of home owners' allowances in three former homelands.
• The part of the Code stipulating maffers assigned to Ministers for conditional disposal by them without the involvement of the Commission was deleted in line with the new Public Service Act. Delegation by the Commission of specified powers to heads of departments and other officials remained part of the Code.
• Substantial editorial improvements were effected by the inclusion of introductory overviews to certain chapters; the deletion or appropriate amendment of obsolete terms, provisions and measures; the reformulation of measures to enhance their clarity; and the amendment of certain parts to ensure consistency with the rest of the legal framework and Code format.

4. SUBSEQUENT DEVELOPMENTS

The preceding paragraphs deal with salient features of the revised and re-established legal framework for the administration of the public service which was set in place in dune 1994, following the commencement of the Interim Constitution at the end of April 1994 and the assumption of of rice of the new political executives at national and provincial level in May 1994. Since that time, a changed and enriched value system, as embodied in the Interim Constitution, has further influenced the legal framework within which the staffing and administration of the public service takes place. The major developments since June 1994 which have impacted substantially on the rationalisation of public administration are noted below:

• To give effect to a provision in the Interim Constitution that the labour appeal court, sitting as a special tribunal in terms of an Act to be passed by Parliament, would be competent to determine claims and disputes of right arising from rahonalisation, the Labour Appeal Court Sitting as Special Tribunal Act, 1995 (Act No 30 of 1995), was assented to by the President in July 1995 and came into operation on 1 September 1995. In addition to enabling the labour appeal court to sit as a special tribunal, the Act aIso prescribed, as required by the Constitution, expeditious procedures for the adjudication of claims and disputes as contemplated, including the granting of interim and final relief.
• To abolish differentiated or dissimilar treatment of officers and employees in the public service, a significant amendment was effected to the Public Service Act in April 1996, pending the drafting of a completely new Act. In terms of the amendment, employees are, for purposes of the application of the Act, deemed to be officers, posts in the B division of the public service are deemed to be posts in the A division, and all provisions of the Act applying specifically to employees and to posts in the B division cease to apply. In a further amendment, the requirement that the head of a department must be an of ricer was removed, and the way thereby opened for an employee to be appointed as head of department, provided he or she is a South African citizen and will serve in a full-time capacity.
• The Government Employees' Pensions Act, 1995, rationalising disparate pension provisions and amalgamating the multiplicity of pension funds for public servants, was proclaimed by the President on 19 April 1996. The proclamation of the Act was accompanied by the issuance by the Minister of Finance of the first set of rules for the administration of the amalgamated Fund.
• There were significant amendments to the new Public Service Regulations, concerning two matters: the limiting of provincial post establishments and the definition of "household" for purposes of the application of the Regulations and the Public Service Staff Code. The annexure to ChapterJ of the Regulations, which limited expenditure on salaries to 35% of a provincial adm~nistration's budget, and determined the maximum number of management posts which a province may utilise, was amended on a number of occasions between October 1994 and October I 995. The amendments were all aimed at improving the mechanism and bringing it to a level of general acceptability. As regards the definition of "household", the gender bias of the definition was removed by substituting the term "spouse" for the term "wife", thus achieving general, non-sexist applicability irrespective of whether the husband, the wife or both were members of the public service. The definition was further developed by the extension of the term "marriage" to include marriages solemnised in terms of customary or religious law.
• The Public Service Staff Code was amended on a number of occasions after June 1994 to facilitate rationalisation, with the main focus being the special measures adopted for the staffing of the rationalised structures. The significant amendments are listed in Table 3 below.

Some aspects of the revised legal framework which have been briefly touched upon in the foregoing discussion are further elucidated in other chapters of this report which deal separately with the major facets of rationalisation.

5. EVALUATION

The public service constitutes a unique personnel corps within the ranks of the employed. The Public Service Commission functions to ensure the basic safety, order and well-being of the population. The Commission performs its functions in a sensitive and, at times, highly charged political environment, while its activities are subject to ongoing close scrutiny by Parliament and the media. The special nature of the public service and the environment in which it operates is characterised by a comprehensive body of prescripts or legal framework regulating its staffing and administration. Every facet of a public servant's employment is anticipated and regulated in detail. This is necessary to ensure public accountability, as well as fairness and reasonableness in the treatment of public servants.

Against this background, the importance of the work undertaken to re-establish an acceptable legal framework for the new public service is self-evident. This was no easy task, encompassing, as it did, a large volume of prescripts accommodated in a number of inter-related legal instruments (Acts, regulations and coded instructions) The work was characterised by the need for great care in the revision and adjustment, where necessary, of every section, paragraph and sentence in order to ensure legality, certainty and fair and reasonable treatment for both employer and employee. A number of substantial new policy instruments and measures had to be developed in order to give effect to the Constitutional directives concerning the public service. Every aspect of the work demanded priority attention, as well as sufficient consultation with interested parties, placing considerable pressure on those engaged In its performance and oversight. In general, satisfactory and timeous progress was made in the re-establishment and further development of the legal framework necessary to address the immediate and short term needs posed by the staffing and administration of the new public service. The comprehensive and fundamental review of the public service system and its legal framework is under way as part of a transformation programme ensuing from the rationalisation process.

ASSIGNMENT OF POLITICAL EXECUTIVE POWERS FOR THE ADMINISTRATION OF LAWS

I. INTRODUCTION

Even though a new Constitution had been adopted establishing a fundamentally different state, the day to day administration of the country had to proceed on the basis of the country's existing laws until such time as the new legislatures at national and provincial level could amend or repeal legislation, or enact new legislation. An essential part of the rationalisation of public administration entailed the assignment of the administration of existing laws to the new political executives at national and provincial level.

2. COMPLEXITY OF THE TASK

The assignment of laws was obviously a matter of great urgency. Following shortly on the commencement of the Interim Constitution, a national Cabinet and Executive Councils in each of the nine provinces had assumed of rice. The executive role to be fulfilled immediately by each Minister and Member of Executive Council (MEC) would to a large extent be determined by the laws assigned to him or her for administration. Until assignment had taken place, Ministers and MEC's could in general not function effectively as political executives in their allotted areas of governmental responsibility. A law almost invariably designates a political of ficeholder who will be responsible for its general administration, as well as for the decision of matters specified in the law. With few exceptions, each one of the vast number of laws in operation in the country had to be linked to the appropriate Minister or MEC as quickly as this could possibly be done.

The task to be carried out was an enormous one. There was not just one statute book to be apportioned and assigned, but fifteen. Prior to the establishment of the new South African state, the old Republic of South Africa, the four "independent states" and the six self-governing territories each created and maintained its own body of statutes. The legislatures of Transkei, Bophuthatswana, Venda and Ciskei were competent to, and did in fact, adopt laws covering virtually the whole array of typical state functions. The legislatures of the self-governing territories were, as their sub-independent categorisation suggests, restricted to adopting laws on matters specifically assigned to them by the Parliament of the Republic of South Africa. Their legislative competence nevertheless encompassed a great many matters covering most state functions; notable exceptions being foreign affairs, defence, police and public finance. In the Republic of South Africa itself, there were, in addition to the central body of statutes, four separate sets of ordinances applicable respectively in the provinces of Transvaal, the Orange Free State, Natal and the Cape Province. These ordinances were adopted by the former provincial councils up to their dissolution in 1986, had not been repealed, and were of equal force and effect in the respective provincial territories as if they were Acts of Parliament.

The assignment of laws, especially as far as the provincial administrations were concerned, was complicated by a number of factors.

Firstly, although the Interim Constitution denoted a number of matters as falling within the provincial domain, the legislative competence of the provinces in respect of such matters was made subject to the overriding competence of the national Parliament in respect of certain matters and aspects of matters. In essence, a Parliamentary law would prevail over provincial legislation where -

1. a matter could not be regulated effectively by provincial legislation;
2. effective performance of a matter required that it be regulated or co ordinated by nationally applicable norms and standards;
3. an Act of Parliament was necessary to set minimum standards for the rendering of public services;
4. an Act of Parliament was necessary for the maintenance of economic unity the protection of the environment, the promotion of interprovincial commerce, the protection of the common market, or the maintenance of national security; and
5. a provincial law was prejudicial to the economic, health or security interests of another province or the country as a whole, or impeded the implementation of national economic policies.

As provincial executive powers are to a large extent derived from provincial legislative powers, the way in which the Interim Constitution apportioned legislative powers between the national and provincial levels of government, and especially the stipulated overriding competence of the national Parliament, was a major factor to be taken into consideration when assigning the administration of laws to provincial executives. Existing laws had been written to fit a system of government and administration vastly different to that envisaged by the Interim Constitution. By implication, a great number of laws presenting as candidates for assignment could not be assigned as they stood. They would need to be carefully scrutinised, and their assignment would have to be accompanied by appropriate amendment or qualification.

Secondly, many national laws dealing with matters falling within the newly defined provincial domain had been written to apply within a unified national area of jurisdiction, but would now have to be suitably amended to make their segmented application (in nine provinces) possible. A similar situation existed in relation to ordinances of the former Transvaal and Cape Provinces. The area to which Transvaal provincial ordinances applied had been apportioned between four new provinces, namely Northern Province, Mpumalanga, North West Province and Gauteng, and that to which Cape provincial ordinances applied between three new provinces: Western Cape, Eastern Cape and Northern Cape. To illustrate the problem, an ordinance setting up a particular fund with associated controlling body for a former province would have to be substantially amended to achieve a fair apportionment of the fund between a number of new provinces, with appropriate new arrangements for control over the apportioned funds.

Thirdly, although the Interim Constitution had denoted certain matters as provincial matters, had provided an overriding competence to the national Parliament concerning certain matters or aspects of matters, and had by implication reserved all other matters to the legislative (and executive) competence of the national authorities, it had not indicated the functions, or aspects of functions, to be performed at national and provincial levels. The precise division of functions was presumably to be resolved administratively. The correct division of functions between levels of government was, however, by no means self-evident; indeed, questions concerning such division were often open to much debate, argument and even serious disagreement. To take one of many examples, agriculture was denoted as a provincial matter. It was not specifically mentioned in the section of the Constitution dealing with the overriding competence of the national Parliament, but the language of that section with its references to effective regulation, norms and standards, economic unity, and so on, implied the applicability of overrides to the promotion and regulation of agriculture as a function of government. Assuming the existence of a national department and nine provincial departments of agriculture, the crucial question to be answered was what the exact functional content of the national department was to be, in contrast to that of a provincial department? Obviously, agreement or disagreement on this point would decisively influence the assignment of existing laws, or parts of laws, as well as the resolution of questions concerning the amendment of laws or parts of laws.

Fourthly, as the associated processes of reorganisation and the assignment of laws progressed, it became clear that in many instances administrative efficiency could be promoted if a national Minister, while retaining overall responsibility for the administration of a law dealing with a national matter, could delegate the application of certain provisions of the law to his provincial counterpart. An example of such an arrangement would be the issuing of trading licences at provincial level in terms of a national trade regulation Act. However, to enable the particular Minister to delegate, the law would have to make provision for delegation, necessitating the adoption of an amendment to the Act by the national Parliament.

Finally, the assignment of laws was complicated by the sheer volume of the existing legislation to be reviewed, with the associated consultations concerning applicability, amendments, qualifications and delegations; the drafting and clearing of amendments; and the preparation and processing of proclamations.

A task of great magnitude and substantial complexity was made even more difficult by the impatience, understandable under the circumstances, of the new provincial authorities to have the powers in question assigned to them. Their impatience was manifested in the exertion of sustained pressure on the Government of National Unity and the Commission, as well as direct appeals to the President, during the first six months or so of the new dispensation, calling for the expedition of the matter.

While noting the problems attendant on the assignment of laws, it is necessary to emphasise that the assigning authorities were dealing with existing laws. The new legislatures at national and provincial level were all in place by the end of May 1994, and fully competent to make new legislation on matters falling within their respective Constitutionally assigned domains. However, many months were to pass before the first provincial law dealing with a Constitutionally denoted provincial matter was adopted by a provincial legislature.

3. EXECUTION

The assignment of existing laws was regulated by the Interim Constitution, both as to the fixing of responsibility for the administration of laws under the new dispensation, as well as to the procedure to be followed with the assignment of laws to the provincial executives.

The Constitution stipulated that existing laws were to i1e ados nisteled by the new political executives on the following basis:

• Laws dealing with matters other than denoted provincial matters were to be administered by a competent authority within the jurisdiction of the national government - in practice this would be a Minister.
• Laws dealing with matters falling within the broad areas of legislative competence of the provinces, but referred to in the section of the Constitution dealing with the overriding competence of the national Parliament, were also to be administered by a national Minister.
• Laws, including provincial ordinances, dealing with purely provincial matters, that is to say excluding any matter which constitutes an overriding competence of the national Parliament, and which before the commencement of the Constitution were administered by members of the Government of the Republic or by a provincial Administrator, were to be administered by a national Minister until assigned to competent authorities within the jurisdiction of the governments of the provinces - in practice this would be Members of the respective Executive Councils.
• Laws similar to those referred to in the preceding sub-paragraph, and which before the commencement of the Constitution were administered by n~e!t~bers of the governments of the former hotnelancls, were to be administered by Members of the respective provincial Executive Councils.

This rather complex categorisation of existing laws for purposes of their continued administration under the new dispensation can be sutn!na! ised as follows:

The A and B categories indicated above applied to all existing laws, irrespective of their origin as to legislative authority under the old dispensation.

The assignment of laws dealing with non-provincial matters and matters constituting national overrides on provincial competences (categories A and B above) was implicit in the identification of the political office-holders who would in future be responsible for their administration. No further action or instrument of assignment was required.

As far as provincial matters were concerned (categories C and D above), the Constitution required assignment of the specific laws by procla!nation of the President. The President was given a discretionary authority to assign such laws, but placed under an obligation to assign the laws if so requested by the Premier of a province. In both cases, however, this was conditional upon a province having the administrative capacity to exercise and perform the powers and functions in question. In regard to the assignment of laws as contemplated in the particular section of the Constitution, the President was given extensive powers to amend, adapt, or partially repeal and re-enact a law, as well as to regulate any attendant matter, including the redeployment of resources, liabilities, rights and obligations, to the extent considered necessary for the efficient carrying out of the assignment.

To ensure an orderly transition, the Constitution included a provision regulating the position, should a provincial government be unable to assume responsibility for the administration of a law within fourteen days of the election of the Premier. In such event, the President was empowered to assign the administration of the law to a Minister of the national government until the provincial government could assume responsibility for the administration of the law.

Because of the inherent link between laws and functions, the Commission, after consultation with the State Law Advisers, issued guidelines to affected national departments as well as the old (RSA) provincial administrations, aimed at achieving a useable linkage between laws and functions for the purpose of the assignment of laws. The affected departments were those with responsibilities in the functional areas in which the new provinces would enjoy legislative and executive competence. Departments and administrations were requested to prepare assignment schedules in which laws and, where necessary, parts of laws were systematically linked to the component parts of the functions already identified for allocation respectively to the national and provincial levels of government.

The State Law Advisers, with the co-operation of departments and administrations, prepared proclamations for the assignment of the administration of laws in line with the provisions of the Constitution. To cope with the work a special team of State Law Advisers was assembled, consisting of a central component in Pretoria and components deployed in and focusing on each of the nine new provincial jurisdictional territories. Ale work of the team was led and co-ordinated by a Deputy Chief State Law Adviser. The Commission was associated with the project throughout, providing inputs and advice, especially as regards the demarcation and assignment of function components. All proclamations prepared by the State Law Advisers, and cleared with the affected departments and administrations, were processed via the Commission to the Government and the President.

The unique nature of the project is evident from the arrangements set in place for its execution. No single department, body or functionary could possibly accept full responsibility for execution. A co-operative, tripartite arrangement between departments, Stale Law Advisors and the Commission was the only way in which the assignment of the administration of laws could be successfully accomplished. In the event, a great many people contributed to the project. The Commission's role extended beyond the making of inputs and the giving of advice on the allocation of functions, to include general sponsorship of the project and the monitoring of, and reporting on, its progress.

Reference was made above to the provision in the Interim Constitution empowering the President to make an interim assignment of a law to a Minister of the national government should a provincial government be unable to assume responsibility for its administration within fourteen days of the election of the Premier. The fourteen day period lapsed on 2 I May I 994 in the case of provinces other than KwaZuluNatal, and on 25 May 1994 in the case of the last mentioned province. It soon became apparent that it would be impossible for the President to make the assignment of laws by the stated deadlines. The Commission consequently advised Cabinet on 20 May 1994 that a draft proclamation be issued by the President whereby the administration of all laws, or parts thereof, applicable to the provincial domain be temporarily assigned to Ministers of the Cabinet. Although this recommendation was accepted by Cabinet, and the proclamation was issued by the President on 3 June 1994, it did, however, cause considerable concern among the Premiers. In addition, provincial Directors-General also felt disempowered by this act of centralisation as it was seen to be stripping them of their powers. The Commission in its memorandum to Cabinet stressed that the recommended step should be seen as an interim measure, to be followed as soon as possible by a series of proclamations assigning the administration of laws to tile provincial governments. file Commission indicated to Cabinet that this could be done once the proper location of statutory executive powers (relating to existing laws) and the basic administrative infrastructures of the provincial administrations had been finalised.

Virtually from the start of the new dispensation, representations and demands emanated from the provinces for the assigurnent of executive powers to administer existing laws to be expedited. On 25 May 1994 the President met for the first time with the newly appointed Premiers, with a number of national Ministers and the newly appointed Commission also in attendance. The assignment of political powers featured prominently on the agenda. Although the matter was fully elucidated at the meeting, it was clear that the Premiers felt very strongly about the matter and expected it to be resolved without delay. Pressure on the national authorities to expedite the assignment of laws was maintained in the subsequent monthly meetings of the Intergovernmental Forum which was set up to formalise relations between the national and provincial governments. The Commission attended these meetings on invitation and on each occasion, assisted by the State Law Advisers, reported on progress made.

The assignment of laws to the provincial executives commenced in dune 1994, when a large number of laws of the former homelands and tile former RSA provinces, as well as some RSA Parliamentary laws, were assigned to provincial governments. However, provincial dissatisfaction about the matter, aggravated by the decision to assign all laws dealing with provincial matters to national Ministers as an interim measure, continued at a high level. Matters came to a head at a particularly lively meeting of the Intergovernmental Forum in August 1994. A decision was taken that political office-holders at the national and provincial levels entrusted with responsibilities regarding matters denoted in the Constitution as provincial matters, would establish joint structures to reach agreement on an appropriate distribution of powers and responsibilities. Arising from the decision, a two-tiered joint structure consisting of ministerial forums and technical committees for virtually all the major state functions, was activated. The decision of the Forum followed within days of a closely related decision of Cabinet, taken on the advice of the Commission, that all Ministers with responsibilities relating to the functional areas in which provincial matters lay should initiate discussions between themselves and their provincial counterparts aimed at reaching consensus on the allocation of powers and functions, or aspects thereof, between the national and provincial levels of government.

The decisions of Cabinet and the Intergovernmental Forum referred to in the preceding paragraph, which had as their common basic feature the full involvement of members of the provincial governments in a collaborative effort with national Ministers to resolve the issues at hand, had an immediate positive effect in reducing dissatisfaction and frustration concerning the assignment of powers. Clearly, the key political office-holders, by working together, and with the support of their departmental officials at the administrative-technical level, would themselves largely determine the rate of further progress to be made with the assignment of powers.

In the debates of the Intergovernmental Forum, the question of the administrative capacity of provinces to take responsibility for the administration of laws was raised on a number of occasions. A decision was taken at the Forum's meeting in August 1994 that the Commission should take the lead in convening a joint technical committee representative of the Commission, the Commission on Provincial Government, the Department of State Expenditure, and the provincial governments to "prepare specific definitions of administrative capacity in relation to function and province''. The adhoccommittee found it not feasible to prepare a set of definitions as envisaged by the Forum, but proposed a single general definition, against which capacity could be measured as and when necessary. The committee proposed that administrative capacity be defined as the ability to perform assigned functions effectively in accordance with certain basic requirements: clarity regarding the assignment of accountability to the relevant legislature, appropriated funds, sufficient suitable personnel, including supervisory and managerial personnel, and adequate support services. On the recommendation of the Commission, the proposed definition was accepted by the Forum in September 1994.

It should be mentioned that, as far as the Commission was concerned, administrative capacity was in general not seen as an obstacle to the assignment of executive powers, and therefore not as a factor causing delay. In the first phase of organisational rationalisation, the Commission had been instrumental in a massive redeployment of functioning organisational components from the erstwhile structures into the new provincial administrations with effect from I July 1994. With the exception of the Northern Cape, the provinces had in the process "inherited" substantial human and other resources. The Commission further held the view that even where the relocation of resources had not been completed, executive powers could be placed with the new political office-holders, with relinquishing departments continuing to do the administrative work as an interim arrangement. Obviously, matters requiring decision at political executive level would need to be channelled to the correct political office-holder.

4. ASSIGNMENT OF LAWS TO PROVINCIAL GOVERNMENTS

Following the issue of the nine initial proclamations in June 1994, a further 58 proclamations were issued up to 30 April 1996. Particulars of the numbers of laws assigned to the new provinces in terms of the 67 proclamations issued, are reflected in Table 5.

After the assignment process had been in operation for one year, the Commission decided to conduct a survey focused on the national departments, with the object of ascertaining how much work remained to be done in order to complete this aspect of rationalisation. On the basis of the information gathered, the following categories of unassigned laws were set up:

• Laws in respect of which consensus as to their assignment had been reached and in respect of which draft proclamations were in the process of either preparation or publication.
• Laws of which the assignment had been requested by the provinces, but which for various reasons were not to be assigned.
• Laws which were being investigated for possible assignment.

Following the initial survey, the status of each of the three categories has been monitored by the Commission on an ongoing basis. As at 30 April 1996, the position was as follows:

Amongst the reasons underlying decisions not to assign particular laws of which the assignment has been requested were the impending (and generally agreed) repeal of the law; the intended delegation of powers to the provincial governments in terms of the law, while retaining its administration at national level; and opposition on the part of the national department to the assigurtlent of the law. Considering the very large number of existing laws bearing on the functional areas in which provincial matters lay, the degree of intergovernmental consensus reached concerning assignment was remarkable.

5. EVALUATION

Arguably, the assignment of political executive powers for the administration of existing laws to fit a new governmental and administrative system was the single most demanding part of the rationalisation of public administration. By any appropriate treasure, the scope and complexity of the task was awesome. For understandable reasons, the assignment of powers rapidly established itself as a highly contentious issue, with the potential for straining relations between the national and provincial governments. However, the key political office-holders provided the necessary leadership in resolving problems arising from the assignment of laws.

Considering the nature and magnitude of the work that had to be done, the near completion of the task by 30 April 1996 was one of the major achievements of the Government of National Unity. The progress made will surely stand as a notable example of what can be achieved by adopting a co-operative, consensus-seeking approach to resolving a difficult and sensitive issue.

The Commission was privileged to have been involved in the planning, initiation, sponsoring and monitoring of the project. It is necessary to reiterate that the project could not have been undertaken or driven to a successful conclusion by any one body. At the administrative level, it required purposeful and ongoing interaction between operating departments, the State Law Advisers and the Commission. The Commission records its appreciation of the contributions made by a large number of participants. It especially wishes to note the invaluable role played by the State law Advisers.