Regulations on the Participation of Municipal Staff Members in Elections: briefing by Department of Cooperative Governance and Traditional Affairs

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Meeting Summary

The Department of Cooperative Governance and Traditional Affairs gave a follow-up presentation on municipal staff and elections. The regulations had been published for public comment. Members now had before them the amended version of the regulations embodying their comments and those of members of the public. The Department had also presented before the Portfolio Committee on Cooperative Governance and Traditional Affairs, which had raised questions on whether the draft regulations would prevent corruption in the municipal offices. The Department believed that the regulations indicated that any staff member participating in elections was understood to be on leave on receipt of a certificate from the Independent Electoral Commission. This period of leave would end when the Commission pronounced that the person involved had become a member of council, provincial legislature or national legislature. The regulations also prohibited any interaction between the staff member participating in elections and other staff members. The Department had decided that there was no way it could outline in the regulations how it would monitor activities of a staff member candidate outside the municipality. Once the Commission had declared an individual a full-time councillor he or she could no longer be employed by the council. A full-time councillor would not be allowed to hold any other work.

Members questioned specific wording, particularly the use of ‘’senior’’ in certain situations.  There was some confusion over whether this actually appeared in the updated regulations or not. They also took issue with the suggestion that part time municipal employees could run for positions as councillors in other municipalities, and asserted that this was a conflict of interest. It was suggested that the Department look into this matter further because the Department was arguing that it was illegal, but the Committee knew of instances where this was taking place and believed that this could cause issues in the future.


Meeting report

Introduction
The Chairperson reminded Members that in July or August they had been briefed on the draft Disaster Management Regulations, but they had not since raised any issues on it. He also noted the lack of questions on the Volunteer Regulations and suggested it was an oversight on the Committees part. It was then determined that the Committee had agreed with the regulations and had actually had no questions to ask.

Mr George Kilian, Senior Manager, Department of Cooperative Governance and Traditional Affairs (COGTA) explained that on 28 July 2010 the volunteer regulations were presented to the Select Committee; no comments were made by Members. It had been assumed that Members approved. The Department had submitted a draft to the Minister.

Department of Cooperative Governance and Traditional Affairs. Regulations on the Participation of Municipal Staff Members in Elections: briefing
Mr Tebogo Motlashuping, Senior Manager, COGTA, briefed the Committee on Regulations on the Participation of Municipal Staff Members in the Elections. He explained to the Committee that since the last meeting the Department had received 17 comments from the public. The regulations had been published for public comment; the Department had then waited for these comments before making changes in the draft; thereafter the Department would be submitting it to the Minister. He reminded the Committee that there were a number of issues raised by Members previously with regards to the different clauses. The Department had discussed how it would do in the light of the comments made by Members.

Mr Motlashuping said that Members now had before them the amended version of the regulations embodying their comments and the comments of the public.

The Department had also presented before the Portfolio Committee, which had raised certain issues, particularly questions on whether the draft regulations would prevent corruption in the municipal offices.

Mr Motlashuping explained that the Department believed that the regulations indicated that any staff member participating in elections was understood to be on leave on receipt of a certificate from the Independent Electoral Commission (IEC). This period of leave would end when the IEC pronounced that the person involved had become a member of council, provincial legislature or national legislature. The concern of the Committee had been addressed as it was stipulated that prior to the elections there could not be any interaction between the person participating in the election and other staff members because the person would be on leave. Any transgressions of this would be understood as misconduct and would then be pursued by the relevant municipality. He stressed that corruption would be curtailed because the person involved would be understood to be on leave until he or she had been confirmed as elected by the IEC.

Mr Motlashuping said that the regulations also prohibited any interaction, between the staff member participating in elections and other staff members. He reiterated that any corrupt relationship between the two parties should not take place prior to the election - there were two clauses in the regulations that addressed this matter directly.

Mr Motlashuping said that corruption in the period leading up to the election would be managed by ensuring that the person would be on leave, he or she would not have access to council property and would not be allowed to be involved in the day to day running of the municipality. The granting of leave to that person would thus ensure that the person could not have any corrupt involvement in the municipality.
 
The Select Committee had raised a concern that the Draft Regulations would need to be more specific to ensure effective monitoring of candidates prior to the election. Mr Motlashuping stated that this had caused much debate but the Department had decided that there was no way it could outline in the regulation how it would monitor activities outside the municipality. There was no way to include a monitoring mechanism that would deal with members outside the dealings of the municipality. This would be impossible for the municipality to monitor and implement.

As to whether candidates should resign when declaring candidacy, it was decided that the Constitution allowed all citizens to take part in national, provincial and local elections. It could not therefore consider it an act of misconduct should a person decide to participate. Mr Motlashuping explained that the law would unilaterally curtail any expectation that a person should resign because he or she was declaring candidacy. To include a clause requiring resignation would curtail the rights of the person involved and would be unconstitutional.

The Select Committee had previously raised concern over the politicisation of elections and staff members in elections. He explained that the overall spirit of the regulations was not based on the political inclination of an individual. The only person with the power to regulate the limit and conditions of members participating in election was the Minister in terms of Section 74. The Minister would not be able to regulate on any issues not covered in the Enabling Clause. The Department would not be able to regulate this particular aspect because the Minister was not empowered to do so.

As to the issue of councillors working full or part time, Mr Motlashuping explained that once the IEC had declared an individual a full time councillor the council of origin could no longer employ him or her. A full time councillor would not be allowed to hold any other work. On announcement from the IEC the person would cease to be on leave and would take up his or her new position. In terms of a part time councillor, Mr Motlashuping explained that should a staff member win an election in another municipality he or she would be allowed to be a councillor in one municipality and work in another. He would not be allowed to work and be a councillor for the same municipality but only for two different municipalities.

Mr Motlashuping said that these were the issues that the Committee had raised, although he reiterated that the Department had received seventeen public comments. The Portfolio Committee had also strongly instructed the Department to interact with the Independent Municipal and Allied Trade Union (IMATU) and the South African Municipal Workers Trade Union (SAMWU). The Department had received answers and suggestions from IMATU. The Department had supported the proposed work but had suggested amendments to the municipal systems legislation. All laws governing local municipalities would be reviewed.

The municipal manager of Uthugulu District Municipality had suggested that the legislation removed the right of the employer to refuse or approve the granting of leave to an employee as reflected in the leave policy. He explained that the Constitution of the country gave a person the right to take part in elections. The Minister was simply confirming this right and highlighting the stipulations.

The Department of Public Service and Administration had also suggested that the regulations be amended to ensure that resignation would come into effect a day before the councillor assumed office to ensure that they were not doubly employed on the day of their taking office. This was accepted and the regulations were amended.

The Mayor of Cape Town had also raised some points. He had highlighted that there was no sub regulation of regulation two. Mr Motlashuping said that this was a numbering mistake, which had subsequently been corrected. The Mayor of Cape Town had also said that the regulations implied that the staff member would have to apply for annual leave in order for it to be granted. He had requested that clarification be provided for how and when a staff member would be understood to be on annual leave and how and when this leave would be granted. It was explained that the regulations gave provision that once the certificate had been issues by the IEC to a member participating in elections the member would be considered to be on annual leave. The issue here would be a situation where a person had already exhausted his or her allotted annual leave before the declaration of the IEC. He clarified that after the expiry of normal annual leave days the member would be understood to be on unpaid leave. The final issue raised was with regards to the requirement that leave be taken into account in staff management reviews and performance appraisals. The Mayor had suggested that it was unclear exactly what this point meant, particularly since some members of council did not have performance agreements.

Mr Motlashuping explained that provision for this had been made within the regulation and that municipalities were expected to make the adequate preparations for such a situation internally. A staff member, having signed a performance agreement, who was running for election and thereby going on leave should not have an effect on the day to day running of a municipality. Mr Motlashuping reiterated that it was up to the municipality to ensure that it had internal systems in place in order to continue its work towards agreed upon targets as per the performance management system.

Mr Motlashuping said that the Mayor of Cape Town had also raised issues with Clause 9.  The Mayor had suggested that the regulation be reviewed for purposes of clarity. The clause had examined and it was decided that it was clear and understandable in simple terms.

The Municipal Manager of Uthungulu had also raised an issue with Clause 9; he had suggested that the word “seniority’’ be removed when referring to the ‘’seniority’’ of a staff member. It was decided that any senior staff member of a municipality who wanted to participate in elections could go on leave. There had been agreement on the point raised and the word was removed to ensure that the clause covered all municipal members and not simply senior ones.

Mr Motlashuping said that the last comment was a general one from Mr T R Zema, who questioned whether the Minister had the authority to regulate the leave of municipal staff members who stood for candidature in elections since the granting of leave was the prerogative of the municipality. This was noted but it was reiterated that everyone, as provided for by the Constitution, had the right to participate

Minutes

Mr J Bekker (DA, Western Cape) asked for clarification over the statement that the IEC declared an individual a full time councillor. He explained that once a person was elected the mayor created his council; accordingly the IEC really had nothing to do with the set up

Mr I Gunda (ID, Northern Cape) suggested that only Senior Managers had performance agreements with the Mayor of the council; removing the clause would discriminate against ordinary workers. If a Senior Manager had a performance agreement with the council, running for election would affect his or her performance

Mr A Matila (ANC, Gauteng) questioned why the part addressing Senior Managers should be removed. He suggested this would create a problem for municipalities trying to hold those members accountable

Mr D Bloem (COPE, Free State) asked whether there would be a second round on this document, since amendments had been made

Mr Motlashuping replied that Members would be provided with the final document before its promulgation by the Minister. As to the issues of the performance agreements and senior staff members, he explained that Members were raising the same issues that the Department had in response to public comments. In municipalities there had been issues over how to ensure performance management systems would reach downwards to ordinary employees. The performance management agreements for practical reasons applied only within the upper regions of the municipal structure. He suggested it would be ideal to review the matter and perhaps reinstate the original wording, according to which the performance management system would relate only to senior members of the municipality taking leave. He noted the issue of the full time councillors and stated that it would be accommodated within the final regulation. 

Mr Gunda stated that Members were suggesting that the word ‘senior’ should be removed in order to make space for everyone.

Mr Motlashuping agreed. 

Mr Elroy Africa, Director General, COGTA, asked if he was missing something. The reference to ‘senior’ no longer appeared in the document

Mr Bloem stated that he was confused by the question.

Mr Matila also expressed confusion and asked the Department to arrive better prepared next time.

Mr Bekker suggested that municipalities should be able to deal with a staff member on leave regardless of whether this was over the IEC period or not. He agreed with the regulations laid out in the presentation and suggested that if there were issues, the municipality should already have a plan in place in order to be able to handle them. He argued that this was the point of a managerial system

Mr Bloem asked for clarity over what would happen should a staff member be on leave but be urgently needed by the municipality for work. He also asked for more information on how a person could stand and win in two different municipalities.

Mr Motlashuping referred to Clause 9 and explained that in the event that the municipality had granted an employee leave but needed him or her for very urgent work then it could call upon that person; once the urgent work had been performed, the employee would resume his or her leave.

The Chairperson repeated the question on being employed on one area and winning in another

Mr Motlashuping replied that the municipality would need to go on with its work but if it could not do so because the person on leave had critical information, it would be within its rights to call the person in. The person would be able to provide the information needed and then would revert to being on leave

Mr Bloem interrupted and argued that the question was not being answered.

Mr Africa explained that the law in the country did not allow any person to be an employed official and an elected political representative at the same time.

The Chairperson interrupted and stated that the Department was contradicting itself because it had referred to this being a possibility earlier.

Mr Africa reframed his answer.

Mr Motlashuping informed the Committee that the particular scenario that Members were raising had not been captured within the regulations.

Mr Gunda stressed that it was impossible to be a public representative and an official of another council.

Mr Motlashuping reiterated that the particular scenario was not captured in the regulations because it would be illegal for a person to be an employer and an employee of two separate municipalities

Mr Africa offered to get a second and third legal interpretation although he agreed with what the Committee was articulating since the law clearly stated that one could not be an official and a representative at the same time. He stressed that the principle would always have to apply and take effect.

The Chairperson explained that he was aware of people who were both employees and councillors in some provinces and that this would need to be resolved. He suggested that there were examples of this in Limpopo. He suggested that Members would need to find out what the political practice was nationally as this would eventually create substantial issues.

Mr Gunda asked for more information on people holding dual positions. He suggested that it was a general circumstance they were struggling with. He asked for legal information on this and what could be done and what was its standing. As an example he highlighted that there were people from Correctional Services and teachers who were now councillors.

The Chairperson noted that this was a long-standing situation prior to democracy. He suggested that organs would become disadvantaged if situations like this continued. This was important although not something that could be dealt with at present. He asked about part-time and full-time employers; the IEC did not determine this. It was rather the council’s responsibility.

Mr Bloem asked the Mr Africa if all municipal workers were not allowed a connection to a political party for electioneering.

Mr Africa replied that this was not the case and that the Constitution protected all South Africans by allowing them to participate in electioneering and have political connections.

Mr Bekker stated that a municipal official could not be a member of any council.

Mr Africa agreed and explained that the Department was busy dealing with municipal officials and not public servants in general. He suggested that this could be an issue for another meeting.

The Chairperson stated that Members were in agreement with the amendments but they would need to see the draft again before promulgation.

The meeting was adjourned






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