Municipal Systems Amendment Bill [B2-2019]: stakeholder engagement Day 2

Meeting report

By way of introduction, the Chairperson said that the new incoming Parliament would need to look at the Municipal Systems Act (MSA) legislation comprehensively.

Western Cape Province input
Ms Thobela Mdledle, Deputy Director, Legislation Development: Western Cape, said that apart from what would be presented, the Western Cape would still be submitting more in writing on all the problems in the MSA. 

She spoke to the alignment of the MSA with the Structures Amendment Bill and that the definition of “political office bearer" should be the same as referred to in the Municipal Structures Act.
She proposed the following amendments to ensure that municipalities display or update by-laws on their website:

On section 54A (2A)(a), read with Section 54A (2A)(b) and Section 56 (1)(C), she proposed an amendment to extend the six months recruitment process and acting period to either nine or 12 months. She said Section 54A (2) should be amended so as to include incumbents appointed as acting municipal managers.

On Section 56(1)(b) read with Section 56(2), she proposed an amendment such that Section 56(1)(b) must include Section 56(1)(ii) (acting manager directly accountable to the municipal manager).

On Section 54A (7)(a), (b) and (8) and Section 56(4A)(a), (b) and (5), she proposed amendments to clarify Section 54A (7)(b) by including the words “that the 14 day period will start only when all the required documents have been submitted by a municipality and that the period under Section 54A(8) must be extended to 30 days”.

On Section 56 she proposed that secondment of people by the MEC to a manager directly accountable to the municipal manager position in a municipality be extended to positions of senior managers

On the same Section 56A she proposed amendments on the political rights of municipal managers and managers directly accountable to the municipal manager. She proposed that:
* A municipal manager or manager directly accountable to a municipal manager may hold political office in a political party, whether in a permanent, temporary or acting capacity.

* A municipal manager or manager directly accountable to a municipal manager who holds political
office in a political party, must disclose such information to the municipal council -
            (a) annually at the first meeting of the municipal council; or
            (b) at the first meeting of the municipal council after being elected to a political office.

* A municipal manager or manager directly accountable to the municipal manager must at all times
be impartial when performing his or her administrative roles, responsibilities and duties.

On Section 57, she proposed an amendment to delete Section 57 (6)(c) and insert a new provision that prohibited the renewal of employment contracts for municipal managers and that a provision which must state when a contract of employment be signed should be inserted.

On Section 58, she proposed an amendment that a political office bearer may appoint one or more persons under a contract in a part-time or full-time capacity.

On Section 59, she proposed an amendment to ensure that certain powers must be excluded from delegation, only the municipal council must exercise them.

On Section 71, she proposed an amendment that there be an express provision in the Municipal Systems Act which provides that bargaining council agreements are not applicable to a municipal manager or manager directly accountable to a municipal manager in municipalities as far as remuneration packages of senior managers are concerned

Discussion
Mr A Masondo (ANC) said it was important to remember why there was an attempt to separate politics from the independent functioning of municipalities. It was because of practical problems that had arisen because of the appointment of political people. The appointment of senior political people in municipal positions at municipalities dictated how municipalities work, leading to corruption and other problems as in the case of Nkangala Municipality in Mpumalanga. The matter must be avoided and not be entrenched as this was an untenable practice.

Mr J McGluwa (DA) said government attempts to professionalise local government was important. He was concerned because if one wanted to professionalise local government then why would one extend a six-month period to nine months. Why relax the requirements of a position when one was looking to employ competent people? He said he agreed with the 14-day requirement, but it had to be dealt with professionally and there should be no outstanding documents. He said that in 2011 the legislation was passed without having in mind the notion of political interference in municipal work. He himself had had experience of municipal managers not appearing for SCOPA meetings because the municipal manager was at a rally of a political party. He said the bottom line was that local government needed to be professionalised.

On the extension of six months to nine months, Ms N Shabalala (ANC) said six months was enough time and a clause could be included that said that the timeframe should not exceed nine months. She said it was right that the MSA and the Municipalities Structures Act be aligned. On the issue of staff that would be employed and reporting to the municipal manager, she said there was nothing wrong in the Municipal Manager appointing staff that would be reporting to him. She said it was correct that one should not hold political office while being a Municipal Manager because ‘you’ could not be accountable to ‘yourself’. She said micromanagement by political office bearers in municipalities resulted in corruption. She said she had no problem with the extension from 14 days to 30 days, but one should have timeframes that were strict and could be met. 

On Nkangala municipality, Mr X Ngwezi (IFP) said it would be best if political parties prohibited their leaders from being leading officials in municipalities. The IFP had such a policy so that lines of accountability were clear. Regarding persons in an acting capacity, he said they should have the same competencies as the municipal manager. He suggested that one not talk of municipal managers but rather use the term senior managers because some senior managers were also on contract.

Councillor Bhekumzi Stofile, South African Local Government Association (SALGA) NEC member, said that when putting 14 or 30 days or six or nine months in the legislation, one was contributing to efficiencies and SALGA was looking at professionalising the sector. His experience with local government was that municipalities did invite COGTA to sit in on the candidate selection panel. The deficiencies of the system were that there were 14- or 30-day periods, yet the relevant people were on the selection panel and therefore knew about whatever decision was taken. He said that as amendments were made to the Act, there was a need to look at the detail of the politics of local government and that provincial and national government must support local government.

Ms B Maluleke (ANC) said the skills of a Municipal Manager was not the same as a director. With directors, one was looking for specific skills from different directors. So, she questioned whether there was an inference to look for managers outside of municipalities. She asked whether it was not discrimination to deny municipal leadership from holding political office as this could invite the same court challenges. What was needed was that political office bearers should not interfere with municipal duties. She wanted more clarity on not renewing the municipal manager’s employment contract. Could municipal managers only serve one term?

Ms Mdledle said the municipal manager’s period tallied with the council period but when councillors left they renewed the municipal manager’s post before leaving, in effect appointing a municipal manager for the new council and causing problems. She said there were different interpretations of the relevant clauses which needed to be clarified. She said Section 57(6)(c) dictated the terms of the renewal and must be deleted as the new council must appoint a municipal manager.

Ms Maluleke then questioned what would happen in the interim period between the old council leaving and the establishment of a functional new council. She felt that the municipal manager had to be in an acting post in this period until the new municipal manager was appointed.

Ms Shabalala said Section 57(6)(c) should not be taken out as one could not say when the new council must appoint new staff. Removing Section 57(6)(c) would create a vacuum.

Mr C Matsepe(DA) said one should not say ‘do not renew’, but the periods of office of the council and the municipal manager must be aligned.

Mr Ngwezi said it was impossible to align senior management posts with the council period because then there would be no service delivery. Normally the period for the old manager to continue was a period of six to 12 months to allow for the recruitment of the new municipal manager.

Councillor Stofile said that the law was informed by precedent and practice and extending the municipal manager’s tenure was counter to the intention that the new council appoint a new municipal manager.

Mr Teboho Motlashuping, Acting Deputy Director General: Institutional Development, Department of Cooperative Governance and Traditional Affairs, said that when Members engaged with all the proposals by all the provinces and SALGA with regard to substantive amendments, Members needed to know where the proposals were coming from.

On the appointment of senior managers, he said the MSA contract was for a period of five years with a maximum renewal period of one year after Council’s term ended. The contract might be renewed by mutual agreement and there had to be a renewal clause in the contract for this to happen. Problems were arising because municipal managers would rather renew their contract at their existing slightly higher salary rather than the new slightly lower salary they were being offered. Therefore, provinces were calling for the scrapping of the renewal clause. The Department had agreed to this as continuity would be catered for by the extra one year allowed in the MSA.

Mr Motlashuping  said that prior to 2011, contracted managers accounted to senior managers and were also contracted for a five-year period. It was proposed in 2011 that they must be appointed on a permanent basis and the legal advice was that Clause 57(7) on senior managers being accountable to municipal managers  was deleted. Provinces asked how they could expressly indicate in the Act that managers accountable to senior managers would be appointed on a permanent basis because the Act had deleted that particular section and people were interpreting the current Act differently.

Regarding the time-frames of the selection process, he said the regulations on the selection process stated a period of six to nine months and it should be shortened, however there was another process that took place outside of the legal process which he did not want to delve into further.

Ms Mdledle said her concern was not about acting municipal managers, her concern was about junior officials reporting to management who in turn reported to the municipal manager. If a person acted in a post for more than three months then the matter was brought to the provincial level, so these competency issues needed to be accommodated.

Mr Masondo said that the law-making process had to answer on what impeded the delivery of services and undermined professionalising this sphere of government. He said leaving it to political appointees would not assist in finding a solution.

The Chairperson said that the MSA must address the issues to make the country work again.

SALGA
In opening, Councillor Stofile noted that there was a SALGA award honouring Mr Amos Masondo called the Amos Masondo award.

He said that South Africa had three spheres of government. Local government was there to help change communities for the better and provincial and national government should support local government in this endeavour however it appeared as if South Africa was following the 1970s statutes in which municipalities had no powers.

He then looked at the issue of concurrency. He said municipal councils had the executive authority to appoint a municipal manager as it does not require approval from the MEC.

On the Constitutional Court judgement, he said SALGA had worked on the amendment but that it would not be completed before the 5th Parliament ended. An extension would be requested from the Court and this would offer an opportunity to relook at the MSA as a whole.

Mr Lance Joel, SALGA Executive Manager: Office of the CEO, said that they had a Bill before them that was already an Act and so had the benefit of hindsight and this was an opportunity to tweak the Bill.
He reminded the Committee of the problem statement of the original act which still remained relevant, namely, to curtail the undue influence of municipal managers and councillors; to have a local government that was professionalised; and to improve municipal competencies and skills. He said the local government turnaround strategy was still facing the same challenges. All solutions had to happen within the constitutional provisions and municipalities could govern and operate their own affairs and regulate local government functions.

On the issue of concurrency and regarding the ‘upper limits notice’, he said the term was specifically defined in relation to councillors’ remuneration but was loosely used elsewhere and this presented challenges.

He spoke to the practical challenges of the amendments. On Section 2 (Sec 54A) on the appointment of a municipal manager and acting municipal managers, he said the challenges were that municipalities make appointments and thereafter, within 14 days, inform the MEC. The MECs took longer than the 14 days to consider the municipal appointments and took the appropriate enforcement steps to reverse decisions. SALGA felt that municipal councils had the executive authority to appoint a municipal manager – it did not require approval from the MEC. A person was immediately employed but the MEC had to be informed within 14 days. If the MEC after three months rejected the employment of that person, for example, because of non-compliance with the process, the employee was already contracted, and this created challenges. That person could not, for example, participate in IGR structures. SALGA felt that the MEC’s approval was not required. In the example used, the MEC could go to court to invalidate the municipalities’ decision. He said one could not wait for council meetings for the ratification of appointments into acting positions.

On Section 3 (Sec 56), on the appointment of managers accountable to municipal managers, he said the section blurred the lines of accountability and authority between the council and administration. The problem SALGA was trying to address was where Council (and political parties represented therein) appointed people to the administration who then reported to the municipal manager. The amendment provision as it stood would only perpetuate this problem in local government, rather than assisting in solving it.

On Section 5 (Sec 56A), on the limitation of political rights of municipal managers and managers directly accountable to municipal managers, he said a typical scenario was one where a junior official (because of their political ranking) held the municipal manager and other senior managers to account. The fact that only municipal managers and managers directly accountable to the municipal managers are excluded from being officers of political parties may in addition, create a discriminatory practice. The politicisation of local government detracted from the professionalisation of local government. Section 56A effectively allows staff in the administration or junior staff to still politically “manage” managers and the municipal manager. He said political parties were used to reverse decisions especially if a person was not the one that a particular party wanted.

On Section 6 (Sec 57), on employment contracts for municipal managers and managers directly accountable to municipal managers, he said there were Interpretation challenges on whether the contracts of employment for managers directly accountable to municipal manager was for a fixed term period or on a permanent basis.

Discussion
Mr McGluwa wanted more information on the document mentioned by Mr Joel in his presentation.

Ms Shabalala said she had served for 21 years as a councillor.

Mr Ngwezi said the Mayor, in practise, was the Chairperson of the panel to employ the municipal manager. In the event where the municipal manager was sick, for example, the process was the same, but he did not agree that the Mayor alone must appoint, he said it should be in in conjunction with the Executive committee. He said that the professionalising of local government by prohibiting political office bearers from filling any municipal post would be like treating local government as if it was the Independent Electoral Commission. He said that in future SALGA had to look at the remuneration of councillors because councillors with 21 years’ work experience did not even have medical aid benefits.

On the non-recognition of councillors, Mr Masondo said the non-recognition extended way beyond councillors, as even mayors were not recognised by Parliament. He said that the term consultation did not mean ‘talk until there was agreement’, it only meant being informed. On the holding of political office, he said it was not the same as being a member of a political party and this needed to be clarified.

Mr Joel said the report was titled COGTA: State of Government Report (2009).

On Ms Shabalala being a councillor for 21 years, he said that in 1994 the salary of a councillor was R400. It was now R20 000 but there was not sufficient progress. SALGA had been appealing to the COGTA Portfolio Committee on this matter especially on the recognition of councillors as public representatives.

He said the SALGA called for the political party office bearer limitation to be extended to all municipal staff. One was free to belong to a political party but if one was a political party office bearer one could not hold a municipal post.

He said one could not wait for a council meeting before acting to address the fact that a municipal manager might be incapacitated and there was a need for someone to be in an acting position. 

Councillor Stofile said that in the private sector, the board appointed management so that there was a single line of accountability. There should be no confusion in the public sector lines of accountability, and this had to be instituted in municipalities.

Regarding councillors, he said SALGA was working closely with COGTA. The challenge was that municipal employees, at whatever level in a municipality, could use their political position to try and force ex gratia payments or force council to make illegal decisions. The sector could only be professionalised by de-politicising it.

Mr Motlashuping said COGTA was working with SALGA on professionalising the sector. It was also working on the remuneration of local government office bearers because local government was the coal face of service delivery and administration.

Regarding the provinces, he said he headed a committee to look at the MSA. The Constitutional Court would be approached for an extension of time to comply with the judgement. He said he had met with the parliamentary legal team to file papers and inform the Minister on their proposal for the legislation to be postponed and show the Constitutional Court that it intended to honour the Constitutional Court commitments.

Mr McGluwa said it had taken two years to get to this point on such an important Bill. Was anything done about the wrong tagging of the Bill as someone had to take responsibility for the wrong tagging. 

The Chairperson said that were it not for their elections and Parliament dissolving early, the Bill would have been finalised. He said the court could be angry that the matter was not finalised and say that the court judgement was being undermined, but he hoped that the extension that was being asked for would be granted.

The meeting was adjourned