MINISTRY
PUBLIC SERVICE AND ADMINISTRATION
REPUBLIC OF SOUTH AFRICA

TO ALL EXECUTIVE AUTHORITIES OF NATIONAL AND PRO V1NCL4L DEPARTMENTS AND GOVERNMENT COMPONENTS

CIRCULAR: PARTICIPATION OF PUBLIC SERVICE EMPLOYEES AS CANDIDATES IN ELECTIONS (Ref 10/8)

I hereby wish to inform you of changes to the Public Service Act, 1994 (the "Act") and Public Service Regulations, 2001 (the "Regulations"), allowing public service employees appointed in terms of the Act and certain other employment laws to remain in employment after they have been issued with certificates as candidates. In previous elections employees were required to resign from the public service when they were issued with certificates as candidates by the Independent Electoral Commission.

2. The amended section 36 of the Act, effective 20 March 2009 (Proclamation No. R. 18 of 20 March 2009), provides that -  

(a) employees are permitted to be candidates for elections subject to the Public Service Code of Conduct and the limits prescribed by regulation by the Minister for the Public Service and Administration;

(b) if an employee is elected and assumes office, the employee is deemed as having resigned from the public service with effect from the date immediately before the date he/she assumes office as a member of the National Assembly or a provincial legislature or as a full-time municipal councilor (s36(2));

(c) an employee elected as a part-time municipal councillor (s36(4)) may continue as employee, but must seek approval in terms of section 30 of the Act from his/her executive authority (Minister/MEC) to receive remuneration; and

(d) if an employee is appointed as a permanent delegate of the National Council of Provinces, he/she is deemed as having resigned from the public service with effect the date immediately before the date he/she assumes office as delegate (s36(3)).

3. Regulation G.2.4 in part VII of Chapter 1 of the Public Service Regulations (the "Regulations"), requiring resignation when issued with a certificate, has been deleted and a new regulation D of Chapter 2 has been inserted, both effective 20 March 2009, which provides that

(a) an employee must not later than the next working day after he/she is issued with a certificate in terms of section 31(3) of the Electoral Act, 1998, inform his/her department in writing that he/she is a candidate for election;

(b) the employee must furnish a copy of the certificate to the department; and

(c) the employee will be deemed to be on annual leave (and unpaid annual leave, if insufficient annual leave) from the date the certificates are issued until the election results are finalized (see Government Notice No. R. 332 of 20 March 2009).

4. Attention is drawn to the Public Service Code of Conduct which stipulates in regulations C.2.7 and C.33 of Chapter 2 of the Regulations that an employee (including those who are candidates)

(a) may not abuse his/her position in public service to promote or prejudice the interest of any political party; and

(b) must refrain from party political activities in the workplace.

5. Departments are requested to timeously inform employees of these provisions that regulate their participation in the 2009 elections.

6. It should be noted that these provisions apply to employees appointed in terms of the Public Service Act, 1994, the Employment of Educators Act, 1998 and the Correctional Services Act, 1998. I have been informed that these provisions do not apply to employees appointed in terms of the South African Police Service Act, 1995, Defence Act, 2002 and the Intelligence Services Act, 2002 (see s2(2) of the Public Service Act).

7. Copies of Proclamation No. R. 18 and Government Notice No. R. 332 of 20 March 2009 and the amended Public Service Regulations are accessible on the DPSA website at www.dpsa.ciovza. Enquiries in this regard can be directed to Adv F van Schoor.

Circular issued by Minister for the Public Service and Administration, Masenyani Richard Baloyi, March 23 2009 (see here -PDF)

Text of new regulations issued by DPSA, March 20 2009:

D. EMPLOYEES AS CANDIDATES FOR ELECTION AS MEMBER OF NATIONAL ASSEMBLY, PROVINCIAL LEGISLATURE OR MUNICIPAL COUNCIL

D.1 An employee who is issued with a certificate in terms of section 31(3) of the Electoral Act, 1998 (Act No. 73 of 1998), stating that she or he is a candidate in an election, shall, not later than the next working day, inform her or his department in writing thereof and submit a copy of the certificate.

D.2 The employee shall be deemed to be on annual leave from the date following the date the certificate is so issued until, if she or he-

(a) is elected and accepts election, the date immediately before the date she or he assumes office;

(b) is elected, but declines election, the date that she or he declines election; or

(c) is not elected, the date of the designation of representatives in terms of item 16 to Schedule 1A to the Electoral Act, 1998.

D.3 If the employee has insufficient annual leave, she or he shall be deemed to be on unpaid leave for the period in question.

[Regulation D as inserted by Government Notice No. R.332 of 20 March 2009 with effect from 20 March 2009]

Text of old regulations issued by DPSA, April 1 2008

G.2.4 An employee who is to become a candidate in an election of the members of the National Assembly or of any provincial legislature, or who is to be nominated as a permanent delegate to the National Council of Provinces, must resign from the public service beforehand.

Text of relevant section of Local Government Laws Amendment Act, 2008

"Participation of staff members in elections

71A. (1) A [municipal] staff member may be a candidate for election to the National Assembly or a provincial legislature or may be nominated as a permanent delegate to the National Council of Provinces subject to the Code of Conduct for Municipal Staff Members contemplated in Schedule 2, and any other prescribed limits and conditions as may be regulated by the Minister.

(2) A staff member who is nominated as a permanent delegate to the National Council of Provinces, must resign not later than the date on which he or she is appointed as a permanent delegate to the National Council of Provinces in the manner contemplated in section 61 (2)(b) of the Constitution of the Republic of South Africa, 1996.

(3) A staff member may be a candidate for election to a municipal council subject to the Code of Conduct for Municipal Staff Members contemplated in Schedule 2 and any other prescribed limits and conditions as may be regulated by the Minister."

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