Local Government: Municipal Systems Amendment Bill - proposed amendments

Meeting report

Mr Kamal Makan, Municipal Governance Director: Department of Local Government, Western Cape, informed the Committee that the Bill was, amongst other things, aimed at the professionalisation of the public administration in municipalities, and that it had pertinent provisions related to the appointment of senior managers in the municipal context. It also re-affirms the recruitment and selection process and ratifies the appointment of qualified, skilled and competent senior managers in municipalities. It further regulates the appointment of acting appointees, nullifies appointments of incumbents who do not meet the minimum prescribed requirements, and empowers the MEC and Minister to take appropriate steps against invalid appointments.

He said the Amendment Bill requires language editing and formatting. The Commonwealth conventions on legislative drafting apply to all forms of legislation, including Bills. The Amendment Bill does not comply with these conventions. The principles and objectives of the Bill are supported and it is urgently required because the absence of Amendment Act 7 of 2011 had caused a major void in the legislative framework, especially the uncertainty in the enforcement of the prescribed recruitment and appointment process, and expressed empowerment of the MEC or Minister to take legal action, waivers, secondment, and invalidate appointments. 

He then took the Committee through the amendments, clause-by-clause. Special attention was given to Clause 1 on the definition of the “political office bearer”; Clause 2, obliging the Minister to take appropriate steps when the MEC fails to do their work and the substitution of section 56; deletion of Clause 4; Clause 13, obliging the Minister to make regulations in other sections, such as the proposed section 57A; and Clause 16, repealing Act 7 of 2011. The Committee was then taken through the comments on the Bill. The comments were mostly editorial in nature.

Discussion

Adv Romeo Maasdorp, WCPP Legal Advisor, remarked that the Bill was aimed at professionalising the capacity of the local government and to ensure prudent governance at the local level. He noted that section 54A states that if a person is appointed in contravention of the Act, the MEC must take steps, but it allows for the discretion of the Minister. He said members know about political intervention. He suggested there must be consistency, and both have to take steps equally. He said a question should be asked about who is accountable legally for appointing someone in contravention of the law. He indicated that in Clause 6–which deals with the dismissal of staff members and the recording of disciplinary proceedings–staff members always resign before disciplinary hearings are finalised. The Minister has to have records of the proceedings. He said what is important is to see in public courts the recovery of public funds even if the person has resigned. He also noted that the 12 month grace period in Clause 10– which deals with staff members holding office in a political party–should be removed because it was arbitrary. A conflicted person should not be tolerated even for one year. On Clause 14–which states that councilors may not vote in favour of any resolution that is contrary to or is in conflict with the law–there is no statutory offence which is created to go with the compliance, and there is a lack of follow-through. He wanted to understand how this was going to be monitored and what the consequences would be.

The Chairperson indicated that the comments Adv Maasdorp raised needed to be discussed by the Committee.

Mr Jackey Maepa, Senior Manager: Local Government Policy & Systems, Department of Cooperative Governance and Traditional Affairs, said that the comments made by the Western Cape provincial department are editorial in nature, but not substantive. Inputs from Adv Maasdorp look progressive, especially on the role of the MEC and Minister regarding the employment of persons in contravention of the law. The MEC and Minister must be given equal powers because, currently, the Minister acts only when the MEC has failed in their duties. The Bill is currently before the Parliament and it would deliberate on it before it goes to the NCOP.

On the introduction of Clause 14–dealing with rights of municipal councilors, the assumption was that it is meant to address the conduct of the councilors, but it is the provincial Parliament that has to make the final determination. The provision does not hold councilors accountable for voting against the law. On the 12 month grace period for municipal staff holding political office, he said the Bill was revised in Parliament and the Portfolio Committee resolved that those individuals should relinquish their political offices. The input from Adv Maasdorp is noted on this matter.

Adv Maasdorp said that the Bill was silent on consequence management for when the MEC fails to take necessary steps. Members know of the dynamics between the national government and the MEC, and local government. Each is independent and must be given space. The provision should be along the following lines: When the MEC fails to take necessary steps, the Minister must request reasons for the failure within a specified time; when the MEC fails to provide reasons, only then must the Minister step in. The Bill has to make provision of when to encroach into the other’s sphere.

Mr A Van Der Westhuizen (DA) said that some of the proposals are technical in nature and not political. He said he would appreciate if the Committee could get timelines so that no deadlines are missed for NCOP.

Mr D Smith (ANC) remarked there is a view that local government is over-legislated, and he wondered if more legislation would start to solve the problems or challenges, or if the local government should start to implement the legislation already there. This piece of legislation needs to strengthen the power of the MEC over municipalities. The local government is independent and this means it is only legislation and the Act that would make it accountable. He asked how this piece of legislation makes provisions for unions and SALGA or strengthens these bodies to have a valuable contribution to these appointments.

Ms L Maseko (DA) said that the Bills were lacking in regulations and rules because there is no consequence management. As a result, there are cases where a municipal manager is a branch chairperson of a political party.

Mr Makan commented that there has been a reported case law where the courts have held counsellors to account for their actions. There have been costs incurred.

Mr Maepa pointed out there are many amendments that needed to be introduced in the Bill because as it is now, it is a makeshift Bill that needed to be completed soon. With regard to the over-regulation of the local government, he said that has been said many times, but we need to indicate the Systems Act does not provide minimum requirements for the appointment of municipal managers. This is a necessary piece of legislation to build the capacity of municipalities to perform their functions, and professionalise them. He said it is agreed that there is no indication of what would happen to the MEC who has failed to do their work. There are MECs who are appointed by Premiers, but not by the Minister. That also should be taken into consideration in terms of who should take responsibility.

The Chairperson indicated Adv Maasdorp’s observations should be incorporated into the Negotiating Mandate Report.

Mr Van Der Westhuizen proposed that the Committee should support the amendments; and he wanted to know if Adv Maasdorp would be able to summarise his observations and list amendments from the Committee that would be considered by the NCOP.

Adv Maasdorp said he would submit his comments in a narrative format before the close of business.The Chairperson indicated the input from the Department would be incorporated into the Draft Negotiating Mandate Report, including Adv Maasdorp’s input.

Adoption of Minutes

The Chairperson took members through the minutes for 17 and 31 March 2021 page-by-page. Both were then adopted, with Mr Van Der Westhuizen proposing their adoption and Ms Maseko the seconding his motions in both cases, respectively. There were no changes to either.

The meeting was adjourned.