Extension of Western Cape education head's contract was 'irregular'
Premier Alan Winde disagrees with findings by Public Service Commission
The Public Service Commission (PSC) has found the extension of the employment contract of Brian Schreuder, head of education in the Western Cape, for a second time was irregular.
His contract was initially extended by two years and four months after he reached the retirement age of 65 in 2017. This contract expired on March 31 2019. The further extension of his contract from April 1 2019 to March 31 2021, when he will be 69 years old, has become a hot potato because it did not receive the blessing of the provincial parliament.
This is according to a 10-page investigative report compiled by a PSC commissioner, dated July 31 2020, which TimesLIVE has seen.
The powers and functions of the PSC include monitoring and investigating adherence to procedures in the public service.
The PSC conducted an investigation into the second extension of Schreuder’s contract after receiving an anonymous complaint on February 11.
The investigation was aimed at establishing whether his appointment was valid and regular, and whether it complied with the requirements of the Public Service Act (PSA).
It found the PSA “states explicitly that the approval of the provincial parliament by resolution must be sought” if Schreuder was to be retained for a further period.
“This [the further extension of the employment contract] was done without approval by the provincial parliament by resolution.
“Unless the provincial parliament approval is provided, it means Mr Schreuder’s further employment contract is irregular.”
According to the report, a request from one the commissioner to Western Cape premier Alan Winde for a copy of the resolution approving the further extension of Schreuder’s contract “was not made available”.
“The premier is duty bound to approach a court to set aside the irregular administrative act of appointing Mr Schreuder,” the report stated.
It also found the exclusion of the provincial parliament “from the process of approval for the further extension of the contract of Mr Schreuder is a serious breach”.
“It must be brought to the attention of members of the provincial parliament.”
The report stated that the provincial parliament “is a necessary oversight structure to oversee and expose any excesses on the part of the executive”.
“This sidestepping of the provincial parliament is a serious concern to the PSC.”
In a scathing report, the commissioner said there was no evidence the provincial government had advertised Schreuder’s post “in anticipation of his first two year and four month contract coming to an end on March 31 2019”.
“Instead, the available evidence points to the fact that Mr Schreuder’s further contract was approved as early as June 2018 — 10 months before the expiry of the initial contract.”
The report found there was no attempt made to test the talent pool available in SA and abroad.
“The very circumstance [exceptional as it is] of an official aged over 65 years being contracted to perform the role of head of education compels one to have at least advertised the post once more before concluding a second two-year term.”
It recommended that Winde approach the courts to declare Schreuder’s appointment unlawful and his contract irregular.
“The process of contracting Mr Schreuder should be reviewed to address the legal gaps that exist.”
According to the document, a copy of the draft report was given to Winde on July 9, and he provided written feedback on July 23.
He provided the PSC with a copy of a letter sent by the director-general of the department of public service & administration (DPSA) to the Western Cape’s director-general of public administration.
“The advice [from the DPSA] was that it is commonly accepted that a head of department is appointed on a fixed-term contract, therefore temporary, and is not subject to Section 16 of the PSA. The retirement age of 65 does not apply.”
However, the report insisted “the furnishing of incorrect advice by the DPSA cannot render an irregular appointment regular”.
Winde’s feedback was also given to two other PSC commissioners, and all three concluded their findings and recommendations were final.
After releasing its final report to Winde, the provincial parliament and the complainant, the PSC “will engage the DPSA on the findings and recommendations”.
Schreuder referred queries to Winde’s office. Winde’s spokesperson, Bianca Capazorio, said he disagreed with the findings and recommendations of the PSC.
She said the DPSA advised the provincial government in January 2017 that approval by parliament was not required for extending the term of office of a head of department beyond the age of 67.
She said Winde had submitted a comprehensive response to the PSC’s draft report on July 23.
“He highlighted that the extension of Mr Schreuder’s term of office, without obtaining parliament’s approval, was based on the advice received from the DPSA in 2017.”
She said he indicated there might be directors-general and other heads of departments who have been appointed and/or retained beyond the age of 67 without obtaining parliament’s approval.
“The premier suggested the commission consult the DPSA before the finalisation of its report.”
She said though the PSC regarded the premier’s suggestion about consulting the DPSA as meritorious, it nevertheless proceeded to declare its draft report final without consulting the DPSA.
The Public Service Commission essentially dismissed, in its entirety, the premier’s response to the draft report.Winde's spokesperson Bianca Capazorio
“It essentially dismissed, in its entirety, the premier’s response to the draft report.”
She said the premier wrote to the PSC on August 7 questioning why none of the matters he had raised had been taken into account or incorporated in the final report.
“In this letter the premier recorded his disagreement with the PSC’s findings and recommendations in the final report.”
She said Winde had also informed the commission that “in the light of the differing and mutually destructive views of the commission and the DPSA on the matter”, he had requested the province’s director-general to urgently initiate a process of consultation with the DPSA.
Capazorio said a letter was forwarded to the DPSA on August 13 in which the director-general of the DPSA was requested to elaborate on the advice provided to the Western Cape government in January 2017.
“The director-general was asked to comment on the PSC’s final report and [to] provide such further advice, direction or guidance as may be considered appropriate.”