Department Quarter 1 Performance; Municipal Structures Amendment Bill: negotiating mandate

Meeting report

Department of Local Government (WCDLG) Quarter 1 Performance and Expenditure Report
Mr Graham Paulse, Head of Department (HOD), WCDLG, said that this has been a difficult time in the province, particularly for the Department, as the coordinating department in response to the Covid-19 pandemic. There has been an immense pressure on the Department, both on a technical, operational and administrative level. In response to Covid-19, the Department used the Joint District and Metro Approach (JDMA) methodology where nine districts were identified, five in the rural and four in metro and with Cabinet endorsement, HODs and Provincial Ministers were deployed to these hotspots areas to facilitate and help manage the response to Covid-19.

Mr Albert Dlwengu, Director: Policy and Strategic Support, WCDLG, presented on Quarter 1 performance from April 2020 to June 2020. The department is in the process of reviewing its Annual Performance Plan (APP) and adjust it given the impact of the Covid-19.

The Department had 60 indicators to report on for the year; 12 indicators were due for reporting in Quarter 1, nine indicators were fully achieved, two indicators partially achieved, and one indicator not achieved..

Ms B Sewlall-Singh, Chief Executive Officer (CFO), Western Cape Department of Local Government, presented the expenditure part of the report. The Department’s expenditure was at 20.48% on 30 June 2020.
Compensation of Employees (CoE) has an overspending for additional capacity required to assist Disaster Management during the pandemic. Goods and Services shows underspending for reprioritisation of humanitarian relief to municipalities. Transfers and subsidies shows an over expenditure of R16.2 million for financial assistance to Municipalities. Payment of Capital Assets includes the procurement of laptops in response to the alternative working arrangements required by Covid-19. The separate Covid-19 expenditure was also noted.

Discussion
The Chairperson applauded the Department for its comprehensive report. It is the first time that there is this level of transparency in the report, and this allows the Committee to interpret the performance of the Department. It is also useful in assessing the Department’s performance in response to a crisis. While at the forefront of coordinating the Province during the disaster while at the same time conducting business as per normal, it did a good job.

Mr A van der Westhuizen (DA) agreed with the Chairperson on the level of reporting details of the department. His first question was the Department had to move quickly in securing equipment for staff to work from home (data lines, telephone lines) which was unplanned for and the Western Cape administration was able to move quickly and efficiently. These procurements had to be done under special emergency procurement rules. He asked for the extent of the challenge this could pose to the Western Cape in its proud history of clean audit outcomes and asked the Department to provide a risk analysis.

His second question was that many local governments have been in dire situation long before the closing of offices and the lockdown. The government was never geared to allow staff to work from home. He asked for the extent municipalities required additional support from the Department to recover, not only outstanding monies due to them, but also other expenditure they have incurred. He asked for an explanation on the additional pressure this will put on the Department going forward in assisting these municipalities with their challenges.

Ms M Maseko (DA) praised the Department for compiling a comprehensive report as it gives them confidence and puts them at ease about its functionality. Her first question was why its Disaster Management budget for fires was reduced this year. She asked for an explanation on the behavioural patterns of communities in their compliance with the pandemic regulations. Her next question was on the Covid-19 expenditure, specifically the allocation of funds to municipalities for humanitarian and other types of relief. She asked if they were using a formula for the allocation and monitoring of funds given to municipalities so they know which sectors were covered by those funds. Were those funds attached to the business plan of the Department or a directive from the Department to say how they should be used.

Her last question was on the Review of Public Participation and Ward Committee Policies in Matzikama, Bitou, Laingsburg, and Cederberg Municipalities. She asked for the Department’s criteria in selecting those municipalities - were their policies lacking or are they still going to roll out the review to other municipalities.

Department’s response
Mr Paulse replied that they followed a due diligence process with the emergency procurement. However, in the interpretation of those regulations, there will always be a risk that the Auditor General interprets them differently from the Department. An example of this is applying procurement legislation in emergencies. However, this has been monitored and ensured that there is an absolute track record in the documentation.

For the municipalities, they have made a report showing to what extent their front line staff are working and on their service delivery. Municipalities have given rebates on rates for certain community members and payment holidays for payment of accounts. This was done even before the lockdown period had begun.

Soon after lockdown, they realized that certain municipalities were experiencing financial challenges in cash flow. Businesses had closed down during lockdown levels 4 and 5, and people subsequently did not get salaries and could not pay their municipal bills. The HOD, the Minister as well as the municipalities had conversations. WCDLG was tasked to look at how fast they can assist those municipalities to restore their cash flow organically for financial sustainability. The approach was immediate action: to speak to the Auditor General; to delay municipal payments; reduce the amounts; provide discounts to people. The HOD and the Minister concluded that a reference group should be established to deal with immediate matters between municipalities and the department.

Mr Paulse said the Department joined forces with Stellenbosch University to look at long term sustainability. This has been an unstable period for municipalities. The lockdown has affected service delivery because staff members could not go to work for long periods of time. They petitioned government for municipal cash offices to be opened for people to pay their accounts. Eventually, the regulations were amended and allowed those offices to operate. They are still in difficult times and they are monitoring all angles, especially since there have been allegations of corruption and fraud around expenditure in certain municipalities.

On compliance and obedience to Covid-19 regulations, Mr Paulse said that in most districts and hotspot areas, there was civil disobedience. The Department has spoken to psychologists and academics to figure out why people behave in that way and what they can do to improve people’s behaviour about wearing masks, maintaining social distancing, washing hands regularly and sanitizing, monitoring queues. The Department advanced R27.5 million to help communities in hot spots with masks.

Mr Paulse said since people were no longer working there has been a desperation for food. There was significant unrest due to food insecurity, with people hijacking trucks for food and there were protests. The Department advanced R16.2 million, which cabinet endorsed, and transferred this to all municipalities except City of Cape Town. This was done based on a signed Memorandum of Understanding (MOU) with municipalities. District municipalities were each given R100 000. This has been monitored and checked on how the money is being spent. He noted that humanitarian relief was not given to the City of Cape Town because it had its own initiatives.

The Chairperson acknowledged the abnormality of Quarter 1 and said that employees were expected to be always available even though they were not in office and once again gave credit to the Department.

Mr Paulse said the credit needs to go to everyone within the Department, and there is still lot to be done because cabinet has endorsed three priorities which the Department needs to monitor.

Ms Maseko again raised the choice of the four municipalities for the Review of Public Participation and Ward Committee Policies.

Ms Nozuko Zamxaka, Chief Director: Integrated Service Delivery, WCDLG, replied that in that particular performance indicator on the number of support actions to improve citizen interface, there were five initiatives for completion. These include the Client Service Charter, Ward Committee Training, Review of Ward Committee Policies, and Municipality Developments. On the Review of Public Participation and Ward Committee Policies, every municipality develops its own policy on public participation and ward committee policies. On an annual basis WCDLG assists with reviews of these policies to see if there are areas that need to be strengthened. Therefore, choosing these municipalities was to see if there are areas needing to be strengthened. It could be around ward committee policies on vacancies. The Department assists all 24 local municipalities to see if there is a need to review policies.

Ms B Sewlall-Singh added that Ms N Zamxaka has covered almost everything, and another expenditure had gone through as petty cash.

Mr Colin Deiner, Chief Director: Disaster Management and Fire Brigade Services, WCDLG, addressed the budget for fire fighting. Before every fire season which is around November, they do preparations. However, these preparations had been curtailed by the fact that we have been in a lockdown. The Department was also curtailed by bad weather. The Department expects a severe fire season this year; it is doing a lot of work on coordination. In informal settlements, there has been a high death rate, because people are not at work and violent activities are also taking place.

The Chairperson once again on behalf of the Committee commended the Department and wished them well in leading the municipalities to high levels of service delivery and excellence.

Break

Resolutions
The Chairperson called on Members to give resolutions based on the Department Quarter 1 report.

Ms Maseko raised the procurement of PPE. For the funds allocated to municipalities there should be a breakdown of what the money was used for. She would like to get a report on the high death rate and violence in the informal settlements.

Mr van der Westhuizen asked for a resolution to call the Department to report on fires in informal settlements. The Committee should try to understand the problem as to what causes the fires.

He said the Department should report on the financial position of municipalities and assess if these municipalities have been able to recover from Covid-19. There must be a track record on the financial position of local governments going forward. This will help to understand how effective municipalities can be in recovering from the crisis. Hopefully municipalities will be able to learn from each other in recovering from the pandemic.

Ms Maseko requested that the Department explain how it is going handle public participation as the Integrated Development Planning (IDP) season is drawing closer – considering that the country is still in lockdown. How is WCDLG going to help municipalities handle public participation and has it already taken initiatives to assist municipalities?

Municipal Structures Amendment Bill: negotiating mandate
The Chairperson noted that the Committee was briefed on this Bill on 5 May 2020 by the Department of Cooperative Governance and Traditional Affairs and the Independent Electoral Commission . He stated this Bill has gone through public participation, and various stakeholders and South African Local Government Association (SALGA) provided inputs for the proposed amendments. The Committee will decide on what the negotiating mandate will be. Other clauses of the Amendment Bill have already been dealt in the previous engagement.

The Chairperson said the Western Cape government supports the Municipal Structures Amendment Bill with the expectation that the proposed amendments in the Committee Report will be negotiated by their NCOP delegates. He said the support is not subject to accepting their proposal on the definitions. Most of the proposals in the Committee Report were presented to the Committee by the Department. If the Department is not successful in their proposals, the Committee will support the Bill because they believe it is a good Bill.

The Chairperson asked the Committee if it endorses support for the Bill and confers upon the delegation the authority to do so and that the proposed amendments shall be the basis of the engagement in the NCOP.

Mr van der Westhuizen proposed that the meeting adjourn so they can go through the document. This was opposed by Ms Maseko who suggested the Committee go through the Bill together. The Committee agreed with Ms Maseko.

The Chairperson read through the draft Committee Report and the proposed amendments (see document).

• Comment on section 29(1) of the principal Act
Mr van der Westhuizen referred to the request for clarity in sections 29(1) and 30(2) of the Act on whether the majority of councillors means a majority of the members allocated to a municipality or the majority of councillors in office at the time of the meeting. He proposed that the Committee support the "majority of councillors in office at the time of the meeting".

The Chairperson called the Legal Advisor to provide interpretation and guidance on this.

Ms Maseko shared her views on "majority of councillors" and said the meeting happens because there is a quorum. In that instance, it has to do with the majority of councillors in the meeting and not in office. The quorum itself already stipulates what the number should be.

Mr Kamal Makan, Director: Municipal Governance, WCDLG, said that Ms Maseko was correct in her interpretation. When you are talking about quorum it would be the majority of councillors as per the determination. When you are taking a particular decision it will be based on the majority of councillors present in the meeting.

Adv Romeo Maasdorp, Legal Advisor of the Western Cape Provincial Parliament, agreed with Mr Kamal and said that as to which would apply or which is correct would be the call of the province particularly its Committee because it is a policy decision. He said the quorum is determined by the number of members present and the decision to be taken and there is no legal substance to it.

Mr A van der Westhuizen said section 29(1) deals with councillors approaching the speaker to determine a date for a council meeting and the speaker should then call for a meeting. On the other hand, section 30(2) speaks to all matters mentioned. These speak to completely different issues. He would propose in section 30(2) that it be added "with supporting vote of the majority of the councillors in office at the time of the meeting". He said the problem with section 29(1) is that there have been councils governed by coalitions with a majority of one and that situation could be exploited. The opposition councillors would then call a special meeting to remove the mayor and this led to instability in councils. Therefore, the proposal is that a special meeting may be called only by the majority of councillors as per the establishment notice.

The Chairperson said this particular section speaks to what a majority council is and not to the particular decision to be taken. He acknowledged that he may be wrong and called Adv Maasdorp for further clarity.

Mr Makan said on the support vote of the "majority of councillors" there is clarity from the courts to the effect that it needs to be the majority of councillors as per the determined number. It is a policy decision which the Committee needs to make and indicate what it wants each of sections 29(1) and 30(2) to mean.

Mr Anton Coetsee, Western Cape SALGA Provincial Executive Committee Chairperson, agreed with Adv Maasdorp and Mr Kamal on the interpretation of "majority of councillors".

• Clause 13
The Chairperson continued to read the draft Committee Report on the Negotiating Mandate. Clause 13 attempts to address the situation where a speaker or acting speaker refuses to call the meeting of the council as requested by a majority of the councillors in terms of section 29(1) of the principal Act. The proposed amendment is supported but it is problematic as it is confusing. It does not address ordinary meetings. Further the action of the Municipal Manager or MEC for Local Government is discretionary based on a further requirement of good cause. The Western Cape proposes that the new proposed section 29(1A) must be clear and provide for the Municipal Manager to be empowered to call and chair both types of meetings contemplated in section 29(1) in the event that the Speaker or Acting Speaker refuses, fails or is absent to call meetings. In the event that the Municipal Manager is absent, refuses or fails to call such meetings, then the MEC for Local Government must designate a person to call and chair the meetings for electing an Acting Speaker for the remainder of the meetings.

He reminded Members about the case law emanating from Tshwane. He asked for comment from Members.

Mr Coetsee referred to the case of Premier of the Western Cape v Overberg District Municipality where the Speaker left in the middle of the meeting.

The Chairperson acknowledged Mr Coetsee’s bad network connection. He concluded that Mr Coetsee is in agreement with the suggestion for Clause 13.

Mr van der Westhuizen proposed that the Committee should provide clarity to the NCOP representatives because they could not expect their representatives to read their mind. Therefore, they should take a position. That is unless this should be dealt with under municipal bylaws where municipalities can also determine under what circumstances an urgent or emergency meeting may be called. In short, it would be better if we take a position.

Adv Maasdorp made his observations on Mr van der Westhuizen’s call for the Committee to take a position in the report to empower the NCOP delegates. Point 10 of the Committee Report deals with section 29(1) and 30(2) of the Principal Act and are mere comments by the Department and this section is not provided for in the Amendment Bill. Even though the Committee wants clarity on this, he is of the view that it is not the mandate of the Committee. He advised that this not to be dealt with and left for another forum or dealt with in another manner later. As far as the negotiating mandate is concerned, the Amendment Bill is the frame of reference.

The Chairperson welcomed Adv Maasdorp’s view and said that is also his interpretation. One cannot add new things into the tabled Bill to amend the Principal Act.

• Clause 14
The Chairperson said it is proposed that the terms “ordinary”, “special” and “urgent” meeting are clearly defined.

Mr Kamal said if one looks at clause 14 it distinguishes between ordinary, special and urgent meetings. However, there is no definition of these terms in Principal Act as well as in the current Bill. He proposed that the terms be defined so that there can be consistency when applied by all municipalities. A proposal to have these defined in a bylaw will create inconsistencies in the definitions. The legislature should be the one defining these terms

The Chairperson thanked Mr Kamal and asked if Members agree that these terms should be defined to provide consistency among municipalities.

The Committee agreed to the proposal.

The Chairperson asked Mr Kamal for the Department to provide drafts of how they see the definitions of these terms.

Mr Kamal agreed. He stressed that he was not sure if it would be in time for the NCOP submission but drafts can be provided on the definition of these terminologies.

• Clause 23
The Chairperson said no time periods are provided for the reports and reviews in the new proposed section 79A. Also section 79A(5)(b) is already provided for in section 166(1) of the MFMA so the new proposed provision is superfluous. The Committee should be specific if there are no time periods and propose that clause 23 must be reconsidered.

Mr Kamal said the Audit Committee is already described and referred to in the MFMA. Therefore it is a repetition of section 166(1) of the MFMA.

The Chairperson asked Mr Kamal to provide a relationship between this and the Municipal Public Accounts Committee (MPAC).

Mr Kamal replied that there is no problem with the introduction of MPAC in section 79A and the insertion of section 79(5)(A) in the Act. However, the provision in the new proposed section 79A(5)(b) is already provided for in section 166(1) of the MFMA. Therefore, the new proposed provision is superfluous as noted in the negotiating mandate.

The Chairperson mentioned there are no time periods in section 79A for when it is envisaged that the reports and reviews should be completed. He asked if they are bold enough to propose these time periods or if it is perhaps not prudent for the Committee to do so

Mr Kamal replied that it would not be necessary for this Committee to deliberate now and give time periods for the reports because it will be dependent on particular matters. The legislature can contemplate this based on this comment in the negotiating mandate. It is something that the legislature should look at when considering their comments.

• Clause 26
The Amendment Bill does not contain transitional provisions if sections 9(e), (f) and 10(c) are deleted as listed in this clause. Should a MEC intend to change the type of municipality from the type referred to in section 9(e), (f) and 10(c), then what will govern the election of members of an executive committee?.

Mr Kamal said there should be a transition provision for the deletion to allow to move from one to another. When there is a deletion of a system there should be a transition period which allows one to move from one system to another.

Adv Michelle Melim, Legal Advisor: Department of the Premier, said this relates to the point that not all the consequential amendments have been effected in the proposal to delete the plenary system of governance in Clause 3. The point is if the plenary system is to be deleted throughout the Principal Act, then there are consequences throughout the Act. What would happen in the absence of the plenary system should the deletion proposed by the Amendment Bill proceed? There are municipalities already using the plenary system and the Amendment Bill does not provide any transition in this regard. Therefore, the deletion of the plenary system is not supported in the absence of a provision for transition.

The Chairperson thanked her for the clarity and contextualisation and once again asked for inputs.

• Schedule 7- Item 5(2)
There were no comments.

• Schedule 7- Item 16
This provides for the appointment of an investigator or initiator in the conduct of investigations that may lead to disciplinary steps taken against a councillor. The Chairperson asked Mr Kamal for comment.

Mr Kamal said that clarity is being provided that the municipal council authorises the appointment an initiator.

Adv Maasdorp expressed his reservations and said for the appointment of the initiator, one would expect this kind of obligation to be in a policy or operating procedure because if one invokes the rules of natural justice it presupposes a number of other things, not least being due process such as persons being properly charged. All those things are part of the natural justice philosophy. There is nothing substantively wrong but to isolate that part only raises concern. Those things are part of the rules of natural justice so one should include the right to representation as part of the rules of natural justice.

Mr Kamal noted Adv Maasdorp’s position and said the entire code of conduct is subject to the rules and principles of natural justice. Therefore the appointment of an initiator takes into consideration the rules of natural justice. If one is dealing with the disciplinary procedure itself, that procedure is provided for in the code. He acknowledged that it is open for debate. By council appointing the initiator it is now quite clear who does the appointment because there is uncertainty now with councillors designating municipal managers as acting speakers. Therefore, the proposal needs clarity on that.

Mr van der Westhuizen said his recollection is that municipalities should adopt a procedure to deal with disciplinary action for councillors. The legislation states that municipal councils must adopt disciplinary procedure for disciplinary action against councillors. It used to be like this in the past. He expressed his concern that they are taking away the rights of local councils to determine their own affairs in the way that they see fit. If the section which deals with this is still there then they should not be prescriptive towards councils on this.

The Chairperson asked Members to take a position on the proposal for Item 16(4)(b).

The Chairperson said his concern is the importance of amending Item 16(4)(b) by adding “by the MEC”. This will ensure that the MEC is assured that the appeal was received by the municipality when making the finding on the appeal. The final authority rests with the MEC and clarity needs to be provided that the process is separate from the MEC until the MEC makes the final determination. This is his view and Mr Kamal can help him there so that he does not mislead the meeting.

Mr Kamal confirmed that Chairperson had explained it very clearly.

The Chairperson asked Members if they agree to the Item 16 proposals.

• Schedule 7- Item 17(7)
It is not clear whether the reference to “rules of natural justice” means that the listed actions are subject to the Promotion of Administrative Justice Act (PAJA). It is proposed that Item is redrafted to provide clarity.

Mr Kamal said PAJA provides for administrative action which is subject to the rules of equality and fairness. So what they wanted is clarity as to the rules of natural justice pertaining to that. As legal people applying the law they are looking for guidance from case law when it comes to rules of natural justice. There is sufficient case law relating to that but it will be helpful for that to be elaborated as well.

The Chairperson asked if it is possible to provide the wording to give effect to this proposal.

Mr Kamal agreed and asked the Committee when it would like the definitions of ordinary, special and urgent meetings and the drafting on Item 17(7) so they have the time to prepare.

The Chairperson said it is the first Bill to be dealt with by the Committee. Ms Maseko has experience of being in the Fifth Parliament. Some Members were new and did not have that experience. He expressed heartfelt thanks to the legal advisors and the Department for assisting in processing the Bill. The Committee will decide whether it supports the Committee Report. He asked Mr Kamal for a reasonable timeframe to provide the additional information.

Mr Kamal said it is in the Committee’s hands; if it gives them a timeframe they will provide that information.

The Chairperson asked if seven working days would be appropriate and Mr Kamal agreed.

The Chairperson asked that the Committee adopts the Committee Report now and the additional information will be circulated once received. Does the Committee adopt the negotiating mandate conferred on its NCOP delegates?

The Committee adopted the Committee Report on the Negotiating Mandate aw well as its previous minutes.

The meeting was adjourned.