Public Service Act, 1994 (Act No. 103 of 1994)RegulationsPublic Service Regulations, 2016AnnexuresAnnexure 2 : Employment Contract as Prescribed in terms of Section 12 of the Public Service Act, 1994, for Heads of Department |
ENTERED INTO BY AND BETWEEN
The Government of the Republic of South Africa, herein represented by
___________________________________ (full name of Executive Authority or her/his delegate) in the capacity of ___________________________________ (indicate portfolio or post) (herein referred to as "the Employer")
AND
_______________________________________________ (full name) and
_______________________________________________ (identity number) in the capacity of
_______________________________________________ (indicate post) (herein referred to as the "Employee")
WHEREBY IT IS AGREED AS FOLLOWS:—
| 1. | APPOINTMENT |
| 1.1 | The Employer hereby appoints the Employee, who agrees and accepts such appointment as Head of Department of _____________________________ (National Department/Office of the Premier/Provincial Department, National/Provincial Government Component) in terms of section 12 of the Public Service Act, 1994, as amended (herein referred to as "the Act") for a period of ______ years/months commencing on _________________ (herein referred to as the "commencement date") and terminating on _________________ . |
| 1.2 | The Employee— |
| (a) | serves the Employer as Head of the ___________________________________ (National/Provincial Department, National/Provincial Government Component, or the Office of a Premier) at such place as may from time to time be directed by the Employer; |
| (b) | is responsible for the efficient management and administration of ______________ National/Provincial Department, National/Provincial Government Component, or the Office of a Premier) as provided in section 7 the Act and as set out in the performance agreement referred to in clause 7; |
| (c) | responsible for the exercise of the powers and the performance of the duties entrusted to a head of department in general or to the incumbent of Head of Department of _____________________________________(National/Provincial Department, National/Provincial Government Component, or the Office of a Premier) in particular, by or in terms of the Constitution of the Republic of South Africa, 1996, the Act or any other applicable law; |
| 1.3 | The employment of the Employee is subject to— |
| (a) | a security clearance of _________________ (state confidential, secret, top secret) being obtained; |
| (b) | a probationary period as prescribed in the regulations made under the Act (herein referred to as the Regulations); and |
| (c) | the submission by the Employee of original certificates of her/his academic and professional qualifications, service certificates, proof of SA citizenship, valid work permit or permanent residency. |
| 1.4 | Any matter arising out of this Contract, which is not specifically provided for herein, must be dealt with in accordance with the provisions of the Act and regulations, determinations and directives issued thereunder and any other legal provisions applicable to the Employee. |
| 2. | REMUNERATION |
| 2.1 | The Employee is paid an annual all-inclusive flexible remuneration package of R from the commencement date, which consists of the following: |
| (a) | a basic salary consisting of R _________________ calculated as ____ % of the inclusive flexible remuneration package; |
| (b) | the Employer's contribution to the Government Employees Pension Fund (herein referred to as "the GEPF") (R_______________________), if applicable, calculated as ______ % on the basic salary; and |
| (c) | a flexible portion of R ____________________, calculated as the inclusive flexible remuneration package minus the basic salary and minus the Employer's contribution to the GEPF (if applicable), and may be structured by the Employee in terms of the rules contained in the SMS Handbook for the structuring of the flexible portion. |
| 2.2 | The Employee is paid a monthly non-pensionable head of department allowance calculated at 10% of the Employee's all inclusive remuneration package as may be determined from time to time. |
| 2.3 | The annual remuneration and benefits is payable in 12 equal monthly instalments. |
| 2.4 | The general conditions of service and benefits are as provided for in terms of the Act and the Government Employees Pension Law, 1996 and the rules thereunder (if applicable). The parties to this Contract accept that the general conditions of service and benefits may be changed from time to time in terms of the Act or any other applicable law. |
| 3. | TRANSFER DURING CONTRACT PERIOD AND RE-APPOINTMENT ON EXPIRY OF CONTRACT |
| 3.1 | The Employee specifically accepts that the provisions of section 12 of the Act will be applicable. |
| 3.2 | If the Employee was in a permanent position in a department immediately before appointment as head of department, he or she relinquishes his or her permanent status on accepting appointment as head of department. |
| 4. | TERMINATION OF EMPLOYMENT |
| 4.1 | The Employee's employment in the public service terminates on— |
| (a) | completing the term or extended term of office, which is regarded as retirement by section 16(3) of the Act; |
| (b) | retirement in terms of any other provision of section 16 of the Act; |
| (c) | dismissal in terms of section 17 of the Act; |
| (d) | resignation after serving the required notice period; or |
| (e) | death. |
| 4.2 | Pension and other payable benefits shall be paid in accordance with the applicable prescripts. |
| 4.3 | If the Employee gives notice of resignation is as contemplated in clause 4.1(d), the executive authority may require the employee to return all official equipment, vacate his or her office and leave the department's premises before the expiry of the notice period on a day stipulated by the executive authority and not to perform any duties until the end of the notice period. |
| 4.4 | The invoking of clause 4.3 shall not affect the Employee's benefits. |
| 4.5 | In the case of incapacity and misconduct, the Employer shall deal with the Employee, in accordance with the relevant labour legislation and any directive issued by the Minister. |
| 5. | EXTENSION OF TERM OF OFFICE AND TRANSFER |
| 5.1 | The Employer must in writing confer with the Employee at least four calendar months before the expiry of the term contemplated in clause 1.1 whether he or she proposes to retain the Employee in service for any extended period not exceeding five years or not. If the Employee is so informed of such intention to retain him or her in service for an extended term, he or she shall in writing inform the Employer, within one calendar month from the date of that communication, of his or her acceptance or not of such extended term. |
| 5.2 | If agreement is reached that the Employee's term of office is extended, this contract shall be amended through an addendum indicating the new term of office and changes (if any) in remuneration and duties of the Employee. |
| 5.3 | If the Employer does not renew the contract period beyond the initial term as stated in clause 1, the Employee shall be entitled to the applicable pension and other benefits (if any). |
| 5.4 | If the Employee is transferred in terms of section 12(3) of the Act, the Parties shall either amend this contract through an addendum or sign a new contract. |
| 6. | CONDUCT |
| 6.1 | The Employee undertakes to the Employer that he or she— |
| (a) | shall not, without the applicable consent and during his or her employment or at any time, disclose any record, as defined in section 1 of the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000), that must or may be refused upon a request for access to a record of a public body in terms of that Act; |
| (b) | shall not, during his or her employment or at any time thereafter, use any record so defined and obtained as a result of his or her employment, to the detriment of the State, except if it is used in the exercise or protection of any right, or legitimate expectation, conferred by law; |
| (c) | will— |
| (i) | if so requested by the Employer during his or her employment or on the termination of his or her employment, submit to the Employer any record so defined and in the Employee's possession as a result of his or her employment; and |
| (ii) | not retain any copies of or extracts from such record, except with the written consent of the Employer; and |
| (d) | will comply with the prescribed Code of Conduct as contained in the Regulations. |
| 6.2 | The parties agree that clause 6.1(a) and (b) is severable from this Contract and shall remain in effect when this Contract terminates for whatever reason. |
| 7. | PERFORMANCE AGREEMENTS |
The Employee must enter into a performance agreement with the Employer as prescribed in the Regulations and directives issued by the Minister for the Public Service and Administration under the Act and the Regulations.
| 8. | OTHER DUTIES OF HEAD OF DEPARTMENT |
Any other specific duties of the head of department:
| 9. | GENERAL |
| 9.1 | Good faith |
In the implementation of this Contract, the parties undertake to observe the utmost good faith and they warrant in their dealing with each other that they will neither do anything nor refrain from doing anything that might prejudice or detract from the rights, obligations, assets or interests of each other.
| 9.2 | Interpretation of Contract |
The interpretation of this Contract shall be governed by the laws and legal principles applicable in the Republic of South Africa.
| 9.3 | Jurisdiction of courts |
| (a) | The Employee submits to the jurisdiction of the Courts of the Republic of South Africa in the event of any legal proceedings arising from the provisions of this Contract. |
| (b) | It shall not be a breach of this Contract if a party to this Contract is prevented from or hindered in the performance or observance of its obligations hereunder by any Act of Parliament or other action of the State or by any cause or event outside the control of that party. |
| 9.4 | Variation |
| (a) | This Contract constitutes the whole of the agreement between the parties to this Contract relating to the subject matter of this Contract, and save as otherwise provided, no amendment, alteration, addition or variation of any right, term or condition of this Contract will be of any force or effect unless reduced to writing and signed by the parties to this Contract. |
| (b) | The parties agree that there are no other conditions, warranties or representations, whether oral or written and whether expressed or implied or otherwise, save those contained in this Contract, the Act, the Regulations and other relevant legislation. |
| 9.5 | Waiver |
No waiver of any of the terms and conditions of this Contract will be binding for any purpose unless expressed in writing and signed by the party giving the same, and any such waiver will be effective only in the specific instance and for the purpose given. No failure or delay on the part of either party in exercising any right, power or privilege precludes any other or further exercise thereof or the exercise of any other right, power or privilege.
| 10. | NOTICE AND DOMICILIUM |
| 10.1 | The parties choose as their respective domicilium citandi et executandi for the purpose of legal proceedings and for the purpose of giving or sending any notice provided for or necessary in terms of this Contract, the following addresses— |
Employer Employee
Physical address
Postal address
Telefax Number
provided that a party reports any change of his or her domicilium to any other physical address, postal address or telefax number by written notice to the other party. Such change of address will be effective seven days after receipt of notice of the change of domicilium.
| 10.2 | All notices to be given in terms of this Contract will— |
| (a) | be given in writing; and |
| (b) | be hand delivered or sent by prepaid registered post or by telefax; and |
| (c) | if hand delivered, be presumed to have been received on the date of delivery; or |
| (d) | if sent by prepaid registered post, be presumed to have been received within three business days of posting unless the contrary is proved; or |
| (e) | if sent by telefax, be presumed to have been received on the first business day following the date of sending of the telefax unless the contrary is proved. |
SIGNED by the Employer at on the day of
AS WITNESSES:
| 1. | ……………….........................………………………… |
EMPLOYER (PRESIDENT/PREMIER OR DELEGATE ON BEHALF OF THE GOVERNMENT)
| 2. | ……………………………….......................………….. |
SIGNED by the Employee at on the day of
AS WITNESSES:
| 1. | …………………………………………...................…. |
EMPLOYEE (HEAD OF DEPARTMENT)
| 2. | ……………………………………….........………....... |