FINAL REPORT ON AN INVESTIGATION INTO THE HIRING PRACTICES AND COMPOSITION OF THE FORMER MPSA’S PRIVATE OFFICE

FEBRUARY 2019

1. Introduction

1.1 On 02 February 2018, the PSC received a request from the DA Shadow Minister of Public Service and Administration (MPSA), Ms van der Walt, to investigate the hiring practices and composition of the private office of the former MPSA (Annexure A). On 6 February 2018, receipt of the request from Ms van der Walt was acknowledged (Annexure B).

1.2 Terms of Reference (ToR) of the investigation were to investigate the hiring practices and composition of the former MPSA’s private office.

1.3 In accordance with existing protocol, on 05 March 2018, the PSC informed the MPSA of the request and the investigation (Annexure C).

2. The Mandate of the PSC

2.1 In terms of Section 196(2) of the Constitution of the Republic of South Africa, 1996, inter alia, determines that the PSC must exercise its powers and functions in the interest of the maintenance of effective and efficient administration and a high standard of professional ethics in the Public Service.

2.2 Section 196(4) of the Constitution of the Republic of South Africa, 1996, determines that the powers and functions of the PSC are –

“either of its own accord or on receipt of any complaint-

(i) to investigate and evaluate the application of personnel and public administration practices and to report to the relevant executive authority and legislature;

(ii) to investigate grievances of employees in the public service concerning official acts or omission, and recommend appropriate remedies;.

(iii) to monitor and investigate adherence to applicable procedures in the public service; and

(iv) to advise national and provincial organs of state regarding personnel practices in the public service, including those relating to the recruitment, appointment, transfer, discharge and other aspects of the careers of employees in the public service”.

2.3 Section 10(1) of the Public Service Commission Act, 1997, determines that –

“The Commission may conduct an inquiry into any matter in respect of which it is authorized by the Constitution or the Public Service Act to perform any function.”

3. Regulatory framework applicable to the filling of posts

3.1 The regulatory framework applicable to the filling of posts in the offices of EAs is contained in, amongst others, the Public Service Act, 1994, as amended (PSA), Public Finance Management Act, 1999 (PFMA), Public Service Regulations (PSR) 2016, and Ministerial Handbook, 2007).

3.2 These prescripts are summarised as follows:

3.3 In order to assess the regularity of the processes followed by the DPSA during the filling of the relevant posts, supporting documentation were requested and obtained from the DPSA. These were analysed to determine adherence to the regulatory framework highlighted in paragraph 3 above. Interviews were further conducted with affected parties. A discussion in respect of the filling of the relevant posts, as well as findings and recommendations, are provided below.

4. Discussion

4.1. In accordance with the regulatory framework summarized in paragraph 3 above, and with due regard to the stipulations of Regulation 66 (1) of the PSR, 2016, an EA may only fill vacancies in the Office of an EA by means of –

4.1.1 an appointment in terms of section 9 of the PSA for

(a) the term of office of the incumbent EA; or

(b) for a period not exceeding three years; or

4.1.2 transfer in terms of section 14 of the PSA.

4.2 There is no obligation on an EA to advertise such vacant posts, Regulation 57(3) of the PSR, 2016, requires that before making a decision on an appointment of a person additional to the establishment, an EA shall-

(a) satisfy him/herself that the person qualifies in all respect for the position and that his or claim in his or her application has been verified; and

(b) record that verification in writing.

4.3 The regulatory framework alluded to above is supported by Chapter 8 of the Ministerial Handbook stipulating that –

4.3.1 the core staff will be determined by the relevant EA who may decide on the creation and grading of posts (based on proven needs and provided that sufficient funds are available); and

4.3.2 EAs may utilise for this purpose staff appointed –

- on contract linked to the political term of office of the EA; or

- as full-time public servants, provided the Job Evaluation System is utilised and sufficient funds are available.

4.4 On 1 April 2017, the former President of the Republic of South Africa, the Hon. Mr Jacob Zuma, announced that Ms Faith Muthambi is appointed as the MPSA. The appointment of the new EA therefore necessitated the appointment of staff to assist the functioning of the Office of the MPSA.

4.5 In addressing the needs of the Office of the former MPSA, the following approved post establishment as at 31 January 2018 (Annexure D1), supplemented by the information at Annexure D2, applied:

Ministerial Services

Note: The establishment at Annexure D1 excludes Adv TC Nematswerani appointed on a three year contract from 18 July 2017 to 16 July 2020 (Annexure D2).

4.6 In terms of the Ministerial Handbook the core staff that may be utilized for the private office of the ministers is 10. On 26 November 2013, the former MPSA Ms Lindiwe Sisulu approved the following structure of the office of the Minister (Annexure D3):

- Media Liaison

- Appointments/ Secretarial Support

- Secretary/ Reception

- Parliamentary Support

- Registry

- Driver/ Messenger

4.7 In accordance with the approved post establishment in paragraph 12 dated 31 January 2018 –

4.7.1 35 posts/positions were provided for of which, –

- 32 were filled, and

- 3 were vacant

4.8.2 of the 32 posts/positions that were filled, –

- 3 employees were appointed permanently in that they were transferred to the MPSA in terms of section 14 of the PSA (i.e. MTE Matidze, AD Melton and VM Mafana); and

- 29 employees were appointed on contract in terms of regulation 66 (1) (a) of the PSR 2016 (alluded to in paragraph 7.3 above).

4.8.3 The period of the appointment of the 29 employees on contract differed from one another, ranging from a year to three year contracts (some linked to the term of office of the MPSA). These are summarized as follows:

4.9. In accordance with the information reflected as per the approved post establishment at Annexure D1, the following employees were appointed on contract additional to the establishment:

4.10. In accordance with the information reflected as per the approved post establishment at Annexure D1, the following employees were appointed on contract additional to the establishment:

4.11 In terms of regulation 57 (4) of the PSR, 2016, the employment of a person additional to the establishment in terms of sub-regulation (2) (a) or (b) shall not exceed 12 consecutive calendar months unless otherwise directed by the Minister.

4.12 The following employees were appointed for a period of 12 months in line with the above mentioned regulation:

- L Motsoeneng

- O Nkashe

- TK Mokgaladi

- K Kone

4.13 The following employees were appointment for a period exceeding the 12 consecutive calendar months as required by Regulation 57 (4) of the PSR 2016.

- DT Moswane

- NI Mndaweni

- NG Mandiwana

- KD Mauba

4.14 As highlighted above, Regulation 57(3) of the PSR, 2016, read in conjunction with Regulation 67(9), requires that before making a decision on an appointment of a person additional to the establishment, an EA shall-

(a) satisfy him/herself that the person qualifies in all respect for the position and that his or her claim in his or her application has been verified; and

(b) record that verification in writing.

4.15 In order to determine adherence to the afore-mentioned, information regarding the post/position requirements, vis-à-vis the qualifications and experience of the incumbent, is summarized as follows:

4.16. It is indicated that a request was made and approved as per submission 2017-04-07/0111 (Annexure 3) in terms of Regulation 4 of the PSR, 2016, to deviate from Regulation 66(2) “… which indicates that employees must have the inherent requirement of the post” for the following employees who did not meet the minimum requirements for the posts:

- Mr Mofokane

- Ms Mosedi

- Ms Bonga

- Ms T Moswane

- Mr K Mauba

- Mr NG Mandiwana

4.17. In the same submission at Annexure 3 a further request was made to deviate from Regulation 43(2)(b) of the PSR, 2016, stipulating that an EA shall set the commencing salary of an employee on the minimum notch of the salary level attached to the relevant grade, unless a higher salary is awarded in terms of Regulation 44.

4.18. In accordance with Regulation 44, an EA may set the salary of an employee above the minimum notch of the salary level indicated by the job weight in order to retain or recruit an employee. Regulation 44(3): The setting of a higher salary notch, as contemplated in subregulation (1) to retain an employee shall only take place on the first day of the month following the date of approval, if –

- the executive authority has complied with the process contemplated in regulation 64;

- employee occupied an equally graded post immediately before the date of the appointment;

- the higher salary shall not exceed that of the employee prior to the appointment; and

- the higher shall not exceed the salary level of the post, unless such employee has been awarded a higher salary attached to the grade of the post in terms any other provision of the Act.

4.19 The request to deviate in the appointment of employees who do not meet the inherent requirements of the post and the awarding of higher salaries where there were no employment offers was not supported by the DDG: Administration.

4.20 The DG also indicated that “Deviations should be kept to a minimum and under justifiable circumstances only, otherwise a dangerous precedent will be created”,

4.21 The request to deviate on the awarding of higher salaries to the following employees was on 3 May 2017 approved by the MPSA:

4.22 In a submission dated 07 April 2017, (Annexure 3) former Minister indicated that “the position of Mr Mauba is the merger of the Ministerial Secretary (6) position + Administrator (6) merged to form level (12)”. Mr Mauba’s position was at a level of Deputy Director. Mr Mauba has since resigned with effect from 31 January 2018.

4.23 The above merged positions were occupied by Mr Munene as the Ministerial Secretary and Ms Bonga as the Administrator. They have since left the organization as their terms were linked to that of the Minister’s Office.

4.24 On 25 July 2017 (Annexure 13), the MPSA approved that Mr Munene be appointed in a vacant and funded post of Ministerial Secretary at salary level 5. The afore-mentioned was based on the fact that Mr Munene did not meet the appointment requirements in respect of the post of Ministerial Secretary (salary level 6) stated in the submission as “… a Matric plus at least 1 year certificate…” since he was in possession of only a Matric Certificate. However, the appointment letter to Mr Munene was issued at a salary level 6.

4.25 On 19 July 2018, former Minister Ms Muthambi was invited for an interview with regard to the process followed in the hiring practices and composition of her previous office.

4.26 The following are the questions posed to and response from Ms Muthambi:

Question

- Former Minister, the complaint received by the PSC states that there were 40 Officials appointed in your Ministry Office. Please confirm if this was true.

Answer

> The former Minister indicated that she followed the structure that was there before she became the minister. This is the approved structure signed by her predecessor. She indicated that she had to query the structure as there were too many people. She also indicated that she was told that the ministerial handbook was just a guide.

Question

- If the answer above is more than 10. The PSC’s understanding is that in terms of the Ministerial Handbook, Ministers are allowed to appoint 10 Ministerial Staff. Please give us a brief background on the process followed in appointing the Ministerial staff when you were the Minister for Public Service and Administration.

Answer

> The former Minister indicated that she was informed that the ministerial handbook was just a guide and that the structure that she appointed people to is the approved structure that she found there. She indicated that when she joined the department the DG had already written letters to everybody informing them of the termination of contract and some had already left the department and those remaining behind had been placed to positions in the department. These are employees who were appointed on permanent positions.

> She indicated that when she joined the department there was resistance from day one and she could see that the people did not want to work with her. She was also advised that she could appoint people additional to the establishment. She inherited the department that has no working culture. She needed a team to work with.

Question

- In a submission dated 07 April 2017, it is stated that “in the current circumstances; the regulations do not authorise the awarding of higher salaries as requested, however the Minister may in terms of Regulations 4 authorize a deviation from any regulation under justifiable circumstances”.

Answer

> The former Minister indicated that she never requested any deviation as indicated. She indicated that she did not know who made the request.

- The DDG: Administration in the same submission dated 07 April 2017 indicated that proposal 4.4 and 4.5 of the submission referred to above was not supported by herself and the former DG Diphofa also indicated that “deviations should be kept to a minimum and under justifiable circumstances only. Otherwise a dangerous precedent will be created”.

> The former Minister indicated that what the former DG indicated is that you can do it but you must not go overboard it must be kept at minimum. She indicated that this was the advice from DG of Public Service and Administration who has been in the department for quite some time and he is knowledgeable of this subject. She indicated that she even went to the extent of reducing the number of staff indicating that these people are so many, somebody can do the job of two people.

> The former Minister requested the PSC to compare the structure during her tenure and that of her predecessor. She indicated that she had minimal people as compared to the others (ministers).

> There has been an anomaly, this is the department that must lead by example. The former Minister also indicated that the handbook should be tightened people should not do as they wish. She mentioned that PA’s of other ministers are at a level of DDG she gave example of the Agriculture Ministry.

- Can Ms Muthambi provide clarity as to circumstances that justified the awarding of the higher salaries to the following 5 officials?

Question

In a submission dated 07 April 2017 (submission: 2017-04-07/011), the Minister wrote that “the position of Mr Mauba is the merger of the Ministerial Secretary (6) position + Administrator (6) merged to form level (12)”.

How did the process of merging the two positions unfold?

Answer

> The former Minister did not answer this question as she indicated that she was going to respond to the question in detail in writing as she has to get documents to enable her to respond to the information.

Question

Is there anything else the Minister would want to share with the investigating team to enrich the process?

Answer

> The former Minister did not answer this question as she indicated that she was going to respond to the question in detail in writing.

4.27. The PSR 2016 is clear on the process to be followed in awarding a higher salary to an employee. The former Minister when awarding the higher salaries to the above mentioned employees in paragraph 21, the Minister awarded the salary based on the fact that, for example employees are hard workers doing what the former Minister has asked them to do is not in accordance with Regulation 44, 2016. In terms of Regulation 44, 2016, an EA may set the salary of an employee above the minimum notch of the salary level indicated by the job weight in order to retain or recruit an employee with the necessary competencies and he or she shall record the reason why the higher salary was awarded.

4.28. The Department was engaged for clarity on the issue of the merging of the two posts of Ministerial Secretary (6) + Administrator (6) as the former Minister was unable to respond to the question as she was faced with the challenge of obtaining documents from the Department. The Department indicated that the two posts were not merged as proposed by the former Minister. However, because of the calculations done, the merger of the two posts would not amount to a level 12 post. Instead the Department used the savings from vacant and funded posts to fund the level 12 post of Deputy Director in which Mr Mauba was appointed (Annexure 31).

4.29. The Department was also requested to provide proof of the document used to benchmark the post of Food Service Aid at level 4. There is an official (Ms Mojela) who has been with the Department since 2005 in a Food Service Aid position at salary level 3. According to the submission dated 07 April 2017 requesting deviation on the salary levels, the Department indicated that the Food Service Aid post is benchmarked at salary level 4.The Department responded that the level 4 benchmarking was incorrect, it should be level 3 (Annexure 32).

4.30 The comparison of the post establishments of the four recent MPSAs is summarised as follows (for comparative purposes attention is drawn to the fact that the number of posts proposed by the Ministerial Handbook in respect of the private offices in support of EAs is 10):

4.31 The full depiction of the employees appointed in the office of the five recent Ministers is attached at Annexure I.

5. Findings

The allegations were investigated by the PSC in accordance with section 196 of the Constitution of the Republic of South Africa, 1996, as well as section 10(1) of the Public Service Commission Act, 1997, and the following was found:

5.1 The former Minister adhered to Regulation 67(5) of the PSR, 2016, (stipulating that the selection committee shall make a recommendation on the suitability of the candidate after considering the inherent requirements of the post and the departments equity plan) in that the following employees met the inherent requirement of the post when appointed:

5.2 Regulation 57 (4) of the PSR, 2016, (stipulating that the employment of a person additional to the staff establishment shall not exceed 12 consecutive months unless directed by the Minister) was adhered to in that the former Minister appointed the following employees additional to the establishment in terms of sub-regulation (2) (a) or (b) for a period not exceeding 12 consecutive calendar months :

- L Motsoeneng

- O Nkashe

- TK Mogaladi

- K Kone

5.3 The former Minister did not comply with Regulation 57(4) of the PSR, 2016, in that the former Minister approved the appointment of the following employees additional to the establishment for a period exceeding 12 consecutive calendar months. This finding is based on the fact that the following employees were appointed for a three year period:

5.4 The former Minister did not comply with Regulation 57(3) of the PSR, 2016, requiring an EA to satisfy himself/herself that a person to be appointed qualifies in all respect for the position before making a decision on an appointment in that the following employees did not meet the inherent requirements of the job:

5.5 It is found that when approval to deviate from the salary level of the post of Food Services Aid occupied by Ms Mudau was requested, the Department incorrectly indicated that the salary of the post of Food Services Aid was benchmarked at salary level 4 whereas the correct benchmarked salary is at level 3. The former Minister approved the deviation for level 4 as indicated in the submission that the Food Service Aid is benchmarked at level 4. The correct level of the post is 3 not 4. The approval for deviation from level 3 to level 4 is therefore irregular.

5.6 The former Minister approved that Mr Munene be appointed at salary level 5 based on the fact that Mr Munene did not meet the appointment requirements in respect of the post of Ministerial Secretary (salary level 6). It was stated in the submission as “… a Matric plus at least 1 year certificate…” while he was in possession of only a Matric Certificate. However, when the appointment letter to Mr Munene was issued, it reflected salary level 6. The awarding of higher salary level to Mr Munene is irregular.

5.7 In the absence of motivation/proof that difficulty was experienced to retain (e.g. external offer of employment received) or recruit (e.g. post was advertised but no candidate of desired quality applied/could be selected), on 3 May 2017 the former Minister approved the deviation from Regulation 44 of the PSR, 2016, resulting in the awarding of salaries above the minimum notch of the salary scale to the following employees: 

Note: The above should be noted against a previous concern raised in this regard as per the PSC report on the Assessment of the Implementation of Policy Framework on the Appointment of Ministerial Staff in National and Provincial Departments “… that Ministry staff are often remunerated on higher salary notches which are not commensurate with the skills and knowledge of employees who are at the equivalent level in departments”.

5.8 Furthermore, in order to determine the appropriate salary levels of the above posts to ensure work of equal value is remunerated equally, the posts should have been Job Evaluated. This was not done.

5.9 Analysis of the former Minister’s response regarding the awarding of higher salaries to employees mentioned in paragraph 5.7 above is not in line with the requirement of Regulation 44 of PSR, 2016 in awarding of higher salaries.

5.10 Having regard to the above, the PSC finds the awarding of higher salaries to the above mentioned employees irregular.

5.11 Based on the comparison of the post establishments of the five recent MPSAs the following is found:

5.11.1 In all instances the number of posts proposed by the Ministerial Handbook in respect of the private offices in support of EAs (i.e. 10 posts) and the approved structure for the office of the Ministers were exceeded by 100 percent or more.

5.11.2 The substantial difference in the number of support staff of the five recent MPSAs (from 23 to 35 posts) exceed the 10 posts proposed by the Ministerial Handbook and all are required to render the same service. This finding is in line with a previous study conducted by the PSC into the Assessment of the Implementation of Policy Framework on the Appointment of Ministerial Staff in National and Provincial Departments finding, amongst others, an inconsistency in organizational structures across Ministries giving an impression that some Ministers are superior or more favoured than others.

5.12 Based on the findings in paragraphs 5.1 to 5.11 above, and with due regard to the fact that Ms Muthambi was removed from the portfolio of MPSA, it is recommended that the Department must ensure that thorough quality assurance is done to submissions in order to avoid mistakes of putting incorrect salary levels that ends up misleading ministers when seeking approval.

6 Recommendations

Supplementary to the above, the following recommendations made by the PSC in 2014 as per the report on the Assessment of the Implementation of Policy Framework on the Appointment of Ministerial Staff in National and Provincial Departments is reiterated:

6.1 The DPSA should develop a focused policy framework that will regulate the employment practices of persons who provide support and serve in EAs offices.

6.2 A legislation based compliance framework for Ministries should be developed by the DPSA (can be included in Ministerial Handbook).

6.3 The DPSA should review the organizational structures of Ministries according to the size and responsibility of the Ministry.

6.4 With regard to the incorrect awarding of salary level and the consequent incorrect salary payment to Mr Munene, the PSC is not in a position to recommend that Mr Munene should pay the money back as his contract has expired and he has since left the Public Service.

FINAL REPORT ON AN INVESTIGATION INTO THE HIRING PRACTICES AND COMPOSITION OF THE FORMER MPSA’S PRIVATE OFFICE

FEBRUARY 2019