About this site

This resource is hosted by the Nelson Mandela Centre of Memory, but was compiled and authored by Padraig O’Malley. It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.

The big myth - sunset clauses and the public service

Change in the public service has been slow since the elections. Are "sunset clauses", transitional 5-year guarantees, the reason for this slowness? Absolutely no, argues PHILLIP DEXTER.

Since the April election an impression has been created that "sunset clauses" extend to public servants. There is an idea that the restructuring of the public service is being held up because the incumbents cannot be removed. It is said that their jobs or the posts they occupy have been guaranteed, and that we are, therefore, stuck with all the bureaucrats who helped create and administer apartheid.

Despite these claims, which are being repeated over and over again, no such guarantees exist. In fact the Constitution, together with existing legislation, makes it possible to negotiate the smooth, relatively quick transformation of the public service. Together with measures outlined in the Reconstruction and Development Programme, it is quite possible for the government to begin overhauling this outdated, inefficient and ineffective machine.

The confusion arises from sections of the Constitution which guarantee the continuity of public service to the public, and the normal tenure of employees - such as section 236 (2), (3) and (4). Nowhere is there any guarantee of jobs. Indeed, there is even provision made in the Constitution for a special labour tribunal to settle any disputes arising from the rationalisation and restructuring of the public service (section 237). There is also an explicit mechanism for reviewal of all appointments, promotions and awards given in the period April 1993 to April 1994 (section 236, paragraph 6). These sections would be meaningless if no change for five years was intended.

Existing legislation

Apart from the Constitution, there is also a series of new laws that are relevant to public service jobs. These laws include the Public Service Act of 1994, the Public Service Commission Act of 1994, the Public Service Labour Relations Act of 1994, and also the Education Labour Relations Act of 1994. All of these laws give fairly wide powers to the relevant Ministries to restructure the public service. After these acts were passed, all existing Directors General and Commissioners had to be appointed. Obviously, this meant that there were no job guarantees, and indeed a number of previous DGs did not have their appointments renewed (for instance, in Trade and Industry, Housing, and Education).

Ordinary workers in the public service can testify to how draconian the old Public Service Act, which the new Act does not substantially alter, can be. In the past this Act was used to retrench and dismiss workers regularly. I am not suggesting that we emulate this kind of authoritarianism. I am trying to debunk the notion that management in the public service has no prerogative to manage progressively and in an accountable manner.

The present Public Service Act allows for departments to be structured as seen fit by their various Ministers and their DGs. The Act allows for the transfer or retrenchment of any existing incumbent, while it also accords to workers in the public service the same basic rights as workers in the private sector. In other words, the entire public service can be redesigned and new posts created. The complete reshuffling of personnel is possible, not that I am suggesting that such an enormous task should be undertaken.

But there is simply no earthly reason why a thorough-going transformation should not be undertaken immediately. Former ambassadors of the TBVC "countries" (the "independent" bantustans of Transkei, Bophuthatswana, Vencla and Ciskei) are still on the state payroll! There are also dozens of Directors, Chief Directors, Deputy Director Generals and DGs from the 14 former Education Departments, and numerous other duplicated departments.

What's holding up change?

It is clear that there are some very real causes for the slowness in the process of rationalisation and restructuring of the public service. It is going to be a very complex process, and there is a lack of a proper forum where such rationalisation and restructuring could be negotiated. There is also a shortage of experiencecl managers from the historically disadvantaged section of the population who could fill vacant posts. Then there is the predictable resistance to change from reactionary public servants and their staff associations. But there is no legal blockage to transformation

In the RDP document, the ANC-led alliance recognised the centrality of the public service to the reconstruction and development of our country. Without a public service that is more accountable and more responsive to the communities that are the recipients of the services, these goals will not be attainable. In addition to that, the public service can be an important vehicle for the advancement of black men and women not through any corrupt or illegal means, but by creating training and experiential opportunities that the private sector is unwilling to provide. This could mean the difference between simply a few individuals or a large majority of people benefiting from the advent of democracy.

The transformation of the public service will not be an easy task. It requires hard political decisions. The alliance should take up a campaign for the thorough-going transformation of the public service, integrating the need of the community, the workers and the government in a programme that will deliver a public service of which we can all be proud. This, in turn, will help to ensure the success of the transition to democracy in our country and the consolidation of the national democratic revolution.

This resource is hosted by the Nelson Mandela Centre of Memory, but was compiled and authored by Padraig O’Malley. Return to the Nelson Mandela Centre of Memory site.