Legislative reform demands a forward-looking perspective that addresses immediate challenges while considering long-term implications. The resurgence of the Insourcing Bill comes at a particularly opportune time amid mounting concern about outsourcing practices that have contributed to a pernicious culture of “tenderpreneurship”.
This culture has been marked by labour disputes and underperformance, especially in areas where critical and recurring services for state organs have been outsourced. It is against this fraught backdrop that the bill has garnered broad political support across factions.
While the proposed reform rightly earns commendation for the transformative changes it seeks to introduce, it also carries critical shortcomings that risk unintentionally reinforcing regressive patterns.
For public sector organs to truly evolve, they must embrace the cultural shifts that legislative reforms are designed to enforce. This bill aims to fundamentally transform the structural, cultural, political and workplace dynamics that have long been shaped by a pervasive outsourcing culture.
Over the years this system has imposed significant costs on the state and taxpayers, eroding functional systems through saddling organs of state with inflated service fees and failing to effectively curb corruption and other detrimental practices.
One of the most common pitfalls in legislative reform is the failure to fully recognise and leverage the resources already at our disposal. This oversight can unintentionally lead to redundant efforts or unsustainable practices ironically, creating the same problems that reforms are meant to alleviate.
The push for prioritising insourcing
It is from this point that my concerns regarding certain provisions of the bill begin to take shape. Of particular interest is section 5, which places a clear obligation on state organs to prioritise insourcing over outsourcing.
This section, especially subsections 3-5, outlines the specific conditions under which outsourcing may be permitted, along with defined exceptions. Subsection 3 offers a detailed framework to guide when outsourcing is justifiable, emphasising the importance of verifying whether the required service can be performed internally by an existing employee within the state organ. To support this process, the bill mandates maintaining a comprehensive skills database for all employees.
The problem with ‘willingness’ as a criterion
What stands out though, is the subsection’s requirement to consider not only the availability but also the willingness of employees to undertake services that fall outside their core functions, an element that invites further reflection.
Introducing employee willingness as a factor injects subjectivity into what should be an objective, rational decision-making process focused on maximising institutional efficiency and capacity. Decisions on insourcing should be driven by whether employees have the necessary skills and ability to perform a service, not whether they personally prefer to undertake additional tasks.
— Introducing employee willingness as a factor risks creating a de facto veto power that undermines efficiency and capacity.
Relying on willingness risks creating a de facto veto power for individual preferences that may limit the state’s ability to fully leverage its existing human resources. This subjectivity undermines the fundamental goal of the bill, which is to institutionalise the prioritisation of internal resources before considering external providers.
Workplace environments naturally involve some degree of flexibility and adaptation. Core job functions evolve over time, and expectations often extend beyond narrowly defined roles. Rejecting this reality by making willingness a gatekeeper could inhibit necessary organisational agility and growth. While it is true that assigning noncore functions may present operational challenges, these are not insurmountable barriers.
Pro-active human resource strategies can mitigate potential drawbacks by formally updating job descriptions, providing targeted training, and offering structured career development opportunities. A clear, skills-based approach grounded in objective criteria provides a more rational and sustainable pathway to strengthening internal service delivery.
Subsection 5(4)(a) further introduces a critical provision requiring service providers who perform outsourced functions to offer training to employees within the state organ. While this signals recognition of workforce development needs, it falls short of articulating a clear vision for long-term capacity building, particularly for specialised or rapidly evolving technical skills.
Instead, the provision seems to rely heavily on the assumption that initial training, as implied by the clause’s language, will be sufficient to prepare state employees for future responsibilities. However, the clause lacks clarity on how this training would evolve or be sustained over time. This omission is particularly concerning given that many technical skills require continuous development and reinforcement. Leaving it unclear whether such processes are implied or intended.
Leveraging the National School of Government
This represents a missed strategic opportunity to capitalise on established institutional frameworks such as the National School of Government (NSG), which is expressly mandated to ensure responsiveness to government priorities and systems (among other factors) across all spheres of government through focused education, training and development programmes.
Leveraging the NSG’s existing expertise, infrastructure and networks could facilitate enduring capacity building for public servants.
The bill falls into a common trap by treating training as a checkbox exercise rather than as a sustained, dynamic process essential for genuine capacity building. The assumption that initial training alone is sufficient to upskill employees overlooks how rapidly skills become outdated in today’s complex and evolving service environment. Without continuous, institutionalised learning programmes (potentially developed with the assistance of the very same service providers) the risk is that public servants will remain ill-equipped to meet future challenges.
Clarity, consistency and the risk of ambiguity
It appears though that the implementation provision outlined in section 4 is intended to function as a framework to facilitate the execution of subsequent sections. While the language is generally clear, it lacks the necessary specificity regarding how adequacy or propriety will be measured and which standards must be met. Terms such as “adequately deployed” and “proper mechanisms and resources” remain ambiguous and susceptible to varied interpretation, potentially leading to inconsistent application across different state organs. There must be a clear connection between the practical considerations of enforcement and substantive policy aims.
Towards a self-sustaining public sector
Our reforms must be intentional, specific and forward-thinking, employing clear and unambiguous language. While existing structures should be adaptable, occasional external support may still be necessary to ensure these systems remain responsive to changing demands. The ultimate goal is to build a self-sustaining government through strategic partnerships and by strengthening existing institutional frameworks.
• Mayekiso is an attorney currently employed as a state law adviser at the department of justice & constitutional development.
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