There is a familiar saying about the road to hell being paved with good intentions. SA, with its fondness for ambitious plans and solemn policy papers, seems determined to make it so. The latest example in a long and tragic list is the Public Service Commission (PSC) Bill, which was recently before the National Council of Provinces.
It might sound noble on paper and, coming from a parliamentary committee chaired by the DA, one might imagine these noble intentions to be genuine. On paper, the bill aims to strengthen oversight, professionalise the state and harmonise public administration. Who could possibly object to such altruistic causes? In a country where service delivery failures are a daily misery, the impulse to bring in firmer oversight mechanisms is surely more than understandable.
But the trouble with good intentions is that they often obscure hard realities. The PSC Bill is a prime case of policy romanticism — the belief that if something reads well in a bill, it will also work well in practice. Instead of addressing what actually breaks municipalities, it adds another layer of law, another body of oversight, another excuse to push decisions away from those who are meant to be accountable.
The effect, if passed, will not be renewal but paralysis.
Constitutional overreach
The first and most glaring problem with the bill is that it is unconstitutional. That is not hyperbole, but the considered view of legal advisers, municipalities and civil society.
Section 196 of the constitution is clear. The PSC promotes values and principles in the public service, a term that is explicitly defined in section 197 as national and provincial departments of state. Municipalities are excluded. Local government falls under public administration, a broader concept. The drafters of the constitution deliberately made this distinction. They wanted local government to stand as a separate sphere of authority, with accountability to their residents rather than to Pretoria.
Yet the PSC Bill tries to slip municipalities into its mandate. Clause 10 empowers the PSC to investigate municipal grievances, issue binding directives and compel compliance within 60 days. In other words, a national body would gain coercive authority over municipalities, even though the constitution grants no such power.
That isn’t a technical quibble but a breach of the principle of legality, the foundation stone of constitutional democracy. Public bodies may only exercise powers they are expressly given. If parliament wants to put municipalities under the PSC, it must first amend the constitution. Anything else is ultra vires.
Undermining autonomy
Beyond the legal defect lies a political one. Municipalities are constitutionally meant to govern — on their own initiative — the affairs of their communities (section 151). They are not junior branches of the national state but a constitutionally distinct sphere. Their councils are elected by local residents, not appointed by the presidency.
To hand the PSC directive powers over municipal staff and labour disputes is to sideline those councils. A grievance lodged in Cape Town could end up on the desk of a Pretoria commissioner who has never attended a ward meeting, never faced a ratepayer and never had to balance a metro’s budget.
That may sound like a technicality. But in practice it hollows out accountability. If a municipal worker is reinstated or dismissed because of a PSC directive, who is answerable to the community for the outcome? Not the PSC commissioners, who are unelected and remote, but the mayor and councillors, who will be blamed for decisions they no longer control.
It is a recipe for buck-passing.
The PSC Bill also introduces a parallel system that duplicates and collides with existing frameworks. Local government already has its own elaborate regime: the Municipal Systems Act, the Municipal Finance Management Act (MFMA), the Labour Relations Act and a dense web of collective agreements under the SA Local Government Bargaining Council. These instruments regulate everything from grievance procedures to procurement, with enforcement by the auditor-general, provincial treasuries and the courts.
Far from lacking rules, municipalities are drowning in them. About 258 separate laws already govern local government. The problem is clearly not an absence of laws or regulations but an absence of compliance and accountability. Councils routinely ignore audit findings and provincial departments shirk their supervisory duties. Political interference trumps the rule book.
Centralisation
Against this backdrop the PSC Bill just adds yet another forum. Employees dissatisfied with municipal processes could forum shop between the bargaining council and the PSC. Municipal managers would face conflicting obligations. Collective agreements painstakingly negotiated over years could be overridden by unilateral PSC directives.
Most concerning is that the PSC Bill is a clear step towards increased centralisation. President Cyril Ramaphosa has spoken often of building a “single, harmonised public service”. The PSC Bill attempts to complete that goal.
It means bringing municipalities under the same machinery as national and provincial bureaucracies. That may please the ANC and ideological statists, but it undermines the principle of subsidiarity: decisions should be taken as close to the community as possible. SA is already excessively centralised. Adding the PSC to this mix would further tilt power upward, away from the communities that are most directly affected.
The irony is that centralisation rarely brings competence; it brings uniformity, red tape and distance. Local government works best when it is locally responsive, not when it is treated as a branch office of the Union Buildings.
Misdiagnosis
Perhaps the greatest flaw of the PSC Bill is that it misdiagnoses the problem. SA’s municipalities are in crisis; not because they lack oversight bodies, but because existing oversight is ignored.
Each year the auditor-general reports on financial irregularities but nothing comes of it. Financial misconduct provisions in the MFMA are routinely breached without consequence. Councils refuse to act against errant officials because political loyalties outweigh the law. In short, the malady is not an absence of regulation but an absence of accountability. Adding the PSC does nothing to change that. It may even worsen matters by giving municipalities yet another excuse that “we are waiting for the PSC”.
Real reform would focus on enforcing existing laws, strengthening local capacity and curbing political interference in appointments. Those are hard, unglamorous tasks. They require political will rather than new statutes. But they are the only route to genuine improvement.
The PSC Bill is a textbook case of what might be called policy romanticism: the belief that a problem can be solved by passing a new law with lofty language. SA is addicted to this habit. Each crisis elicits a new framework, a new regulator, a new commission.
But law is not a substitute for political courage. You cannot legislate accountability into being. You can only enforce it. And until enforcement becomes the norm, new statutes are just paper shields, and adding another one that unconstitutionally empowers the PSC will not fix anything.
• Maritz is campaigns director at Free SA.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.