Unlawful instructions warning to new GNU bosses

Public Service Commission chairperson Prof. Somadoda Fikeni has urged new ministers and heads of departments to follow the letter of the law and stop blaming subordinates when they make wrong decisions. Picture: Jacques Naude/Independent Media

Public Service Commission chairperson Prof. Somadoda Fikeni has urged new ministers and heads of departments to follow the letter of the law and stop blaming subordinates when they make wrong decisions. Picture: Jacques Naude/Independent Media

Published Jun 23, 2024


The Public Service Commission (PSC) has warned members of President Cyril Ramaphosa's new executive adhere strictly to the prescripts governing the functioning of the state, and desist from issuing unlawful and partisan instructions.

The PSC said that ministers and public servants were expected to execute their duties within the bounds of the Constitution and the law.

”As such, public servants can never say they were instructed and executive authorities (ministers, premiers and MECs) can never say they were advised as an excuse for ill practice,” the commission warned.

It cited the case of the Life Esidimeni tragedy in which 144 mentally ill patients died after the Gauteng provincial government terminated a contract for their care by the healthcare group, and transferred them to facilities run by unregistered non-governmental organisations.

In his ruling, retired Deputy Chief Justice Dikgang Moseneke, said: “The Constitution goes further to impose overarching duties on wielders of public power. As elected office bearers and so too those in the public service go about their duties, they must first and foremost be faithful to the law.

“They must act within the stricture of the law and eschew unlawfulness. They may not elevate their personal or arbitrary or political or other preferences above or in a breach of binding law. That is the bare minimum of the constitutional tenets of the rule of law.”

Ramaphosa is due to announce his new executive (deputy president, ministers and deputy ministers) from members of the government of national unity (GNU) comprising the ANC, DA, IFP, Patriotic Alliance and the PAC, soon.

In a circular issued earlier this month, PSC chairperson Professor Somadoda Fikeni, stated that executive authorities sometimes hid behind the notion that they did not know the law and acted on officials’ advice.

”In the Life Esidimeni arbitration award, the claims by the executive authority that she was incorrectly advised by the administration and claims by the administration that they acted on instructions from the executive authority were rejected,” he reminded.

Fikeni continued: “Accordingly, they were held accountable for their actions. This demonstrated that ignorance of the law is not an adequate defence for issuing and implementing unlawful instructions.”

Additionally, the PSC highlighted the implementation plan for the final report of the commission of inquiry into state capture chaired by outgoing Chief Justice Raymond Zondo.

In terms of the plan, there must be measures in place to ensure the devolution of administrative powers from executive authorities to heads of department, and requirements that executive advice and directives be channelled through accounting officers (directors-general and heads of department) to have force and effect.

It was hoped that this would prevent the proliferation of conflicting instructions to officials, and interference by executive authorities in departments’ operational matters.

Fikeni said the issuance of unlawful instructions in the public service had a crippling effect on service delivery, departmental stability, and respect for human rights, which derailed the achievement of the developmental state objectives.

”The evidence that emerged from the judicial commission of inquiry into allegations of state capture has shown how some leaders and businesses were able to act with impunity,” Fikeni said.

He added that it was even more distressing that senior official acting in cahoots with businesses, looted the state in the procurement of personal protective equipment during the Covid-19 pandemic.

The commission has also directed newly appointed or redeployed ministers to ensure that they undergo orientation programmes which include introductory meetings with department heads for detailed discussions on existing strategic plans, and the progress in implementing them.

According to the PSC, if possible, the previous minister should be available in the meeting and the new executive authority (minister, premier) should be provided with all relevant documents.

”For a newly appointed executive authority the environment he/she enters may be foreign to him/ her. Even an executive authority that has been deployed from another portfolio must be familiarised with the organisational culture and operational functions of the new department,” the commission stated in a guide issued earlier this month.

The PSC has suggested that a meeting of each department’s executive committee should be held as soon as possible after a new minister or head of department is appointed; and that, if possible, the outgoing minister should also be involved. The successor should not only be introduced to the team and the portfolios of the senior managers involved, but the plans, accomplishments, critical areas of non-performance, financial concerns and the filling of critical vacancies should also be discussed.

During the first meeting, all relevant progress reports and documentation should be provided to the new minister.

Another meeting involving the heads of department, corporate services, chief financial officer, chief operations officer and other persons deemed necessary should be held with the new minister to familiarise them with the applicable administrative, financial, and human resource management practices.

In addition, new ministers should be introduced to staff through various mechanisms such as staff meetings, emails and internal newsletters.

However, first an introductory meeting should be held between the new minister and head of department and should involve the deputy minister, in departments where this is applicable.

To prepare for new department heads’ assumption of duties, state institutions at all levels of government are urged to facilitate these early meetings to avoid any unintended consequences and close the gaps that could hamper the smooth transition of the process.

In national government departments, there should also be a meeting with the director-general and executive committee without the new minister to start fostering leadership role of the new head with his/her executive team following by a gathering with all staff, if possible, at once or if not, through a series of meetings to introduce the new boss.