Constitution of the Republic of South Africa, 1993/1996-03-29/Chapter 13

by ratified by the Multiparty Negotiating Forum and adopted and amended by the Parliament of South Africa

Chapter 13

Public Service Commission and Public Service

Public Service Commission

Establishment

209. (1) There shall be a Public Service Commission for the Republic, which shall have the powers and functions entrusted to it by this Constitution or by a law of a competent authority.

(2) The Commission shall in respect of the exercise and performance of its powers and functions be accountable to Parliament.

Powers and functions

210. (1) The Commission shall be competent—

(a)

to make recommendations, give directions and conduct enquiries with regard to—

(i)

the organisation and administration of departments and the public service;

(ii)

the conditions of service of members of the public service and matters related thereto;

(iii)

personnel practices in the public service, appointments, promotions, transfers, discharge and other career incidents of members of the public service and matters in connection with the employment of personnel;

(iv)

the promotion of efficiency and effectiveness in departments and the public service; and

(v)

a code of conduct applicable to members of the public service;

(b)

when so requested, to advise the President, a Minister or a member of the Executive Council of a province in regard to any matter relating to the public service or the employment, remuneration or other conditions of service of functionaries employed by any institution or body which receives funds wholly or partly appropriated by Parliament or a provincial legislature;

(c)

to exercise such other powers and perform such other functions as may be entrusted to it by a law of a competent authority; and

(d)

subject to any limitation imposed by law, to delegate any of its powers to a member of the Commission or an official in the public service or authorise any such member or official to perform any of its functions.

(2) Until amended by law, the powers and functions of the Commission set out in subsection (1) shall be exercised and performed in accordance with the laws in force at the commencement of this Constitution.

(3) A recommendation or direction of the Commission shall be implemented by the appropriate person or institution within six months unless—

(a)

such recommendation or direction involves expenditure from public funds and the approval of the treasury for such expenditure is not obtained; or

(b)

the President rejects it and refers it back to the Commission before its implementation.

(4) The Commission may appoint, in a manner prescribed by law, such persons as may be necessary for the discharge of its work.

(5) Expenditure incurred in connection with the exercise and the performance of the powers and functions of the Commission in terms of this Constitution or any other law shall be defrayed from money appropriated by Parliament and from fees raised or money obtained in a manner authorised by an Act of Parliament.

(6) On the recommendation of the Commission the President may assign by proclamation in the Gazette any power or function of the Commission to a provincial service commission.

(7) The Commission shall annually submit a report on its activities to Parliament.

Composition

211. (1) (a) The Commission shall consist of not fewer than three members and not more than five members appointed by the President, one of whom shall be designated as the Chairperson of the Commission by the President.

(b) The Commission shall exercise its powers and perform its functions fairly, impartially and independently.

(c) The remuneration and other conditions of service of a member of the Commission shall be determined in accordance with an Act of Parliament, and such remuneration and the other conditions of service shall not be altered to his or her detriment during his or her term of office.

(d) A member of the Commission shall not hold office in any political party or political organisation and shall be non—partisan in the performance of his or her functions.

(e) A member of the Commission may be removed from office by the President on account of misconduct, or unfitness for his or her duties, or incapacity to carry them out efficiently, or if, for reasons other than unfitness or incapacity, his or her removal from office will promote efficiency, and particulars of the removal, including the reasons therefor, shall be submitted by the President to Parliament within 14 days after such removal.

(2) A person shall be qualified to be appointed to the Commission if he or she—

(a)

is a South African citizen; and

(b)

is a person who has sufficient knowledge of or experience in the administration, management or rendering of public services.

(3) The composition, appointment, tenure, vacation of office, conditions of service and functioning of the Commission shall be as determined by Act of Parliament, and such Act shall ensure the independence and impartiality of the Commission and the efficient and effective exercise and performance of its powers and functions.

The Public Service

212. (1) There shall be a public service for the Republic, structured in terms of a law to provide effective public administration.

(2) Such public service shall—

(a)

be non-partisan, career-orientated and function according to fair and equitable principles;

(b)

promote an efficient public administration broadly representative of the South African community;

(c)

serve all members of the public in an unbiased and impartial manner;

(d)

be regulated by laws dealing specifically with such service, and in particular with its structure, functioning and terms and conditions of service;

(e)

loyally execute the policies of the government of the day in the performance of its administrative functions; and

(f)

be organised in departments and other organisational components, and the head of such department or organisational component shall be responsible for the efficient management and administration of his or her department or organisational component.

(3) Employment in the public service shall be accessible to all South African citizens who comply with the requirements determined or prescribed by or under any law for employment in such service.

(4) In the making of any appointment or the filling of any post in the public service, the qualifications, level of training, merit, efficiency and suitability of the persons who qualify for the appointment, promotion or transfer concerned, and such conditions as may be determined or prescribed by or under any law, shall be taken into account.

(5) Subsection (4) shall not preclude measures to promote the objectives set out in subsection (2).

(6) Provision shall be made by law for a pension for a member of the public service by means of a pension fund or funds established by law, and members of the public service who are required by law to be members of a pension fund shall be entitled to fair representation on the body which manages the applicable fund.

(7) (a) In the event of changes to the law governing pension funds which prejudice a member of a fund, the real value of the accrued benefits of such member of a fund, and his or her beneficiary, as represented by the fund’s actuarial liability towards the member or his or her beneficiary, shall be maintained.

(b) The retirement age applicable to a public servant by law as at 1 October 1993, shall not be changed without his or her consent.

(8) For the purposes of this section the public service shall include the permanent force of the South African National Defence Force referred to in section 266(1).

[Sub-s. (8) amended by s. 13 of Act No. 44 of 1995.]

Provincial Service Commissions

213. (1) A provincial legislature may provide by law for a provincial service commission and, subject to norms and standards applying nationally, such commission shall, in respect of public servants employed by the province, be competent—

(a)

to make recommendations, give directions and conduct inquiries with regard to—

(i)

the establishment and organisation of departments of the province;

(ii)

appointments, promotions, transfers, discharge and other career incidents of such public servants; and

(iii)

the promotion of efficiency and effectiveness in departments of the province;

(b)

when so requested, to advise the Premier or a member of the Executive Council of a province in regard to any matter relating to the public service or the employment, remuneration or other conditions of service of functionaries employed by any institution or body which receives funds wholly or partly appropriated by a provincial legislature;

(c)

subject to any limitation imposed by a law, to delegate any of its powers to a member of such commission or official in the public service or authorise any such member or official to perform any of its functions; and

(d)

to exercise and perform such other powers and functions of the Public Service Commission assigned to it by the President with the approval of the Premier of the province.

(2) The provisions of sections 210(2), (3), (4), (5) and (7) and 211 pertaining to the Public Service Commission, shall mutatis mutandis apply to a provincial service commission, except that any reference to an Act of Parliament, Parliament or the President shall be deemed to be a reference to a provincial law, a provincial legislature or the Premier of a province, respectively.