The North West Department of Social Development, Head of Department (HOD), Relebohile Mofokane had on Friday last week written a scathing attack against the MEC, Boitumelo Moiloa for suspending employees of the department without “authorization of the Accounting Officer”, (in this instance him Mofokane).
“I have received several complaints from staff members complaining about being called to the MEC’s office to receive letters of suspension. In addition, some of the staff members have been removed from offices and those offices locked without authorization of the Accounting Officer,” the letter stated.
In the letter, the HOD also outlined the powers vested in him in terms of the Public Service Act. “I would like to bring the following to the attention of all staff members. The relevant provisions of the PSA read with subordinate legislations affords the Head of Department original legislative powers and responsibilities about the efficient management and administration of the Department,” the letter added.
The letter further contained that in terms of section 7(3)(b) of PSA, the Head of Department shall be responsible for the maintenance of discipline in the Department. Chapter 7 of the SMS handbook and Resolution 1 of 2003 (Disciplinary Code and Procedure) defines the Head of Department as the employer, while Disciplinary Code and Procedure further or defines an employer as any member of the department designated to perform the specific action unless the context indicates otherwise.
Chapter 7 of the SMS handbook applies to the Members of SMS, while Resolution 1 of 2003 applies to employees who are below the seniority level of SMS. The letter also outlined the powers of the MEC in respect of discipline.
“An MEC of a Provincial Department enjoys direct disciplinary powers only in respect of the employees appointed on fixed-term contracts in his/her private office, in terms of section 12A of the PSA and not who are defined as employees in terms of section 1 of the PSA,” it read further.
According to the HOD, the above indicates that the MEC does not have any powers to suspend employees of the department as the letter served to some of the employees’ claims.
“The letter signed by the MEC indicates that her actions to suspend the employees are in terms of section 33.1.3 of the Treasury regulations read with section 85 of the PFMA. Section 33.1.3. of the Treasury Regulations forms part of Part 9, which applies to Public Entities. This provision reads as follows:33.1 Investigation of alleged financial misconduct [Sections 85(1)(b), (c) and (d) of the PFMA] 33.1.1. If an employee is alleged to have committed financial misconduct, the accounting authority of the public entity must ensure that disciplinary proceedings are carried out following the relevant prescripts,” the letter further stated.
The HOD also cited Part 9 of the Treasury regulations which is misused to suspend employees defines an employee as follows:” In this regulation, unless the context indicates otherwise, a word or expression to which a meaning has been assigned in the Act, has the same meaning, and “employee” means a person in the employ of a public entity,” he said further.
The Public Finance Management Act, which is also allegedly misused in the letter of the MEC, defines an accounting authority as a body or person mentioned in section 49. Section 49 of the PFMA states that “every public entity must have an authority which must be accountable for this Act (meaning PFMA)
Section 49 (2)(a) states that if the public entity has a board or other controlling body, that board or controlling body is the accounting authority for that entity; or Section 49 (2)(b) if the public entity does not have a controlling body, the Chief Executive Officer or the person in charge of the public entity, unless specific legislation applicable to that public entity designates another person as the accounting authority.
Section 85 of the PFMA dealing with regulations on financial misconduct procedures states that the Minister must make regulations prescribing—the manner, form, and circumstances in which allegations and disciplinary and criminal charges of financial misconduct must be reported to the National Treasury, the relevant provincial treasury and the Auditor-General.
It is evident from the above sections of the PFMA and regulations that the actions taken are illegal and abuse of power. “There is nowhere in the provisions of the quoted sections that refer to the Executive Authority. An accounting authority refers to a board or any other person designated to be accountable for an entity for this Act (PFMA). In addition, the treasury section quoted applies to public entities and not the departments. Accordingly, the MEC has since acted ultra vires and is creating further instability in the Department. These precautionary suspensions are invalid and all staff members who have received these letters should disregard them. All those who acted to close offices and push staff members out will have to answer why actions cannot be taken against them. Should there be a need to institute disciplinary action against any employee, due processes shall follow.
In response to the latest developments within the department. The NEHAWU DSD Provident House Branch issued a statement that welcomed the decision of the MEC for placing the Director: Supply Chain Management and three other officials in Financial Management and administration under pre-cautionary suspension for their alleged involvement in the Security Tender irregularities.
“Nehawu has on numerous occasions called on the effecting authority to intervene in the maladministration of the department and irregular procurement of goods and services. The union further calls on the MEC to take the strongest measures to safeguard the soul of the department from the hands of those managers and officials whose intention is to loot the resources of the department for their selfish gains. We are aware that the HOD enjoys the full protection of the NW Premier and it is for this reason that the HOD undermines the MEC and does as he pleases,” stated Anele Xhati of the DSD Provident House Secretary.
