Flood Disaster Management; Local Government Municipal Systems Amendment Bill: Departmental briefing

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Cooperative Governance and Traditional Affairs

25 January 2011
Chairperson: Mr S Tsenoli (ANC)
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Meeting Summary

The Department of Cooperative Governance and Traditional Affairs (the Department) briefed the Committee on the recent floods. Changing weather patterns had been predicted in August 2010, and were likely to continue up to March 2010 in eight provinces, with further adverse weather moving to the Western and Southern Cape during June and July 2011. The National Disaster Management Centre was busy with drawing “Smart Planning” to try to avert or mitigate disasters, which involved creating a proper risk profile. The weather pattern outlook and results were illustrated, and portions of eight provinces were declared disaster areas, with over 70 people having died and 8 000 households affected.  Secondary hazards included epidemiological conditions and water-borne diseases, rising temperatures, exacerbation of acid mine drainage and waste water treatment problems, all of which highlighted the need for integrated management. Disaster risk was determined by the interplay between hazards and vulnerability, and several areas were currently affected because of factors including building below flood lines, illegal dwellings, and increased population. The key affected sectors were outlined, and these ministries were represented on an inter-Ministerial committee formed on 14 January, which resolved to declare state of disaster areas, to keep the public informed, to form a committee under the Disaster Management Act and to ensure that risk management was mainstreamed across all departments, and a Joint Operation Structure had been activated. Funding was being sought from National Treasury, the World Bank and private enterprises. Members were impressed with the depth of the presentation, but were concerned whether sufficient and timeous steps had been taken to address the predictions. The Department conceded that this was not done, cited capacity challenges in its own and other departments, but said there had been some positive actions in South Africa and the region. Members asked if use was made of indigenous knowledge systems, whether the Department of Science and Technology was involved, whether there had been an analysis of the causes and numbers of deaths, and several expressed concern about building below floodlines, urging that municipalities must enforce their bylaws and that illegal settlements should not be replaced at the same locations.    They noted the Department’s comments about legislation that hindered its work, and asked if the situation could have been averted if sluice gates in dams had been opened earlier, and asked about whether compensation would be offered, and the involvement of other departments.  Members stressed the need for integrated actions and planning, and noted that the economic consequences were important.  

The Department briefed the Committee on the recent debates on the Municipal Systems Amendment Bill (the Bill) at the New Economic Development and Labour Council (Nedlac). There had been agreement on ten areas, between business, labour and government, and disagreement on six, where labour differed from government and business, and each of the provisions was described. Labour had disagreed with Clause 56A, suggesting that the prohibition on municipal managers from holding political offices, encroached on personal rights. It was opposed to Clauses 57, 59, 71B, and 72(1)(g), believing that the Minister should not be given the power to regulate conditions of employment of municipal managers, nor to become involved with medical aid and pension schemes, and that such issues were more appropriately left to the Bargaining Council.  In respect of Clause 57A, labour had agreed with restrictions on immediate re-employment of dismissed municipal employees, but only in the case of corruption, fraud and serious financial misconduct, and not the more general “misconduct”.  At the moment there was a stalemate, since labour had refused to sign off on the report of the discussions. The State Law Advisors reiterated their comment that all clauses were in line with the Constitution, and COGTA outlined that its reason for suggesting the amendments was an attempt to professionalise local government, and to standardise schemes, as the collective bargaining processes had had several unintended and difficult consequences for municipalities.  Members agreed that labour should be asked to explain its views, that the report should perhaps be redrawn to reflect the different views, and that the Executive would need to find solutions. They agreed that the medical aid and pension schemes were highly problematic in their current form, and enquired whether, in principle, dismissed municipal employees should be permitted to be employed by other municipalities.   They noted that public hearings would be held on the Bill.

Meeting report

Chairperson’s opening remarks
The Chairperson noted that during the previous year an ad hoc committee had heard a briefing on how Haiti had managed its recent disasters, and had also travelled around the country on an oversight visit to disaster sites. He noted that it was not the earthquakes or weather that was primarily responsible for deaths, but inadequate structures that fell and caused loss of life and property. More recently, there were attempts to structure buildings that could stand up to the impact of natural disasters. This highlighted that proactive steps could be taken to prevent the negative impact of natural disasters, and to prevent loss of life and injury to persons and property. The South African Disaster Management Act (the Act) was clear in its expectation that all authorities, in all spheres of government, must act to minimise the impact of disasters. He also referred to the burning of magistrates’ courts, and floods, which had both resulted in loss of vital personal documents. He noted that climate change was exacerbating the situation. He noted the need for all Parliamentary Committees to ensure that not only the Department of Cooperative Governance and Traditional Affairs (COGTA or the Department), but every department, was taking steps to address these issues.

Flood Disaster Management December 2010/January 2011: Department of Cooperative Governance and Traditional Affairs (COGTA) briefing
Mr Elroy Africa, Director General, COGTA, noted that the National Disaster Management Centre (NDMC) was being strengthened and although the Department was attending to a number of appointments, it had not yet succeeded in appointing the Head of this Centre.

Mr Africa said that it was clear that the weather patterns would not change substantially over the next few months, and the Department needed to be prepared for similar events over the next few months. In addition, the situation was ever-changing and the information he would present was based on reports up to the end of the previous week.

Dr Mmaphaka Tau, Senior Manager, National Disaster Management Centre, cited a comment that “bad decisions came about because people were not held to account early enough”. This was particularly apposite for disaster risk management (DRM), where people must be held to account very early. There must be compliance with the legislation, to enable the country to manage disaster risk effectively. He said that the Portfolio Committee could play a supportive role and provide guidance to the sector leaders, including the management of the current disasters.

Dr Tau pointed out that, unlike other countries, South Africa, did not constantly face the threat of such hazards as earthquakes or tsunamis, and it could therefore have the space to provide Smart Disaster Management, which allowed for proper and more conventional planning, to ensure that service delivery was sustainable and not threatened by hazards. However, this necessitated obtaining a proper risk profile, and this cut across all sectors.

Dr Tau said that the tropical weather systems had moved further south than normal, as a result of La Nina. If South Africa had been well prepared it could have dealt with the excessive rains and flooding more efficiently, although he noted that some of the actions taken still deserved to be commended. He said that during December there had been unusually high precipitation and thunderstorms, which had caused the flooding situation. The Southern African Climate Outlook Forum (SACOF) had issued a statement in August 2010, predicting these weather patterns, and this was also verified by South Africa Weather Services (SAWS). Meetings were held in the Southern African Development Community (SADC) countries to enable them to prepare and this enabled South Africa to activate resources.

He presented photographs, and pointed out that a bottom-up approach was taken to ensure that top management, political heads and those at grass roots level all were adopting risk-aversion methods. However, without political guidance and buy-in, this would be a huge challenge.

Dr Tau noted that above-normal rainfall was experienced in eight provinces, excluding Western Cape, whilst other weather extremes in Western and Southern Cape included drought, veld fires and lightning. Official reports indicated that over 70 people had died, from flooding and lightning incidents, although some of the reported deaths could also be attributed to other causes, such as vehicle accidents. An estimated 8 000 households were affected, although this would change as further reports were received. Preliminary damage estimates were R1.5 billion, but this was likely to rise. A state of national disaster was declared in eight provinces and 33 districts or metros.

Dr Tau reiterated that it was predicted that these unusual weather patterns would continue, perhaps until March 2011, drifting to Western Cape in June or July, so the declaration of disaster areas had also encompassed those likely to be affected in future months. He added that there were secondary hazards, including epidemiological conditions and water-borne diseases, which would need preemptive action in order to protect public safety. He added that temperatures would continue to rise in the areas that had been flooded. Sinkholes could develop in dolomitic areas and the problems of acid mine drainage would be exacerbated. Some waste water treatment facilities had been affected. Mosquito breeding was higher. Veld fires could also increase. All of this highlighted the need for integrated management.

Dr Tau pointed out that disaster risk was determined by the interplay between hazards and vulnerability. The currently high vulnerability was affected by locations, economic conditions, and people choosing to build on high floodlines. The flow of the Vaal River in 2011 was equal to the flow in 1996, but it had a higher impact because of the increased number of people living on the banks. High exposure created high impact.

He outlined the status quo in KwaZulu Natal (KZN), Eastern Cape, and the Vaal River catchment in Free State, which caused significant flooding, downstream of the dams. Most of the floods had been flash floods of rapid onset. He presented a table of dam levels, and said that the opening of dam sluice gates could affect those below the Orange River Basin, but the Northern Cape province was preparing to deal with this.

Dr Tau outlined that the key sectors affected were agriculture (recording R2 billion losses), tourism (especially along river banks), energy (where Eskom reporting high volumes of calls for maintenance), education (where children were not able to attend schools because conditions were unsafe), business (particularly fruit marketing and export), and human settlements (affecting both formal and informal settlements, with floods or inability of storm water systems to cope with the volumes).   |

Dr Tau gave an indication of the national state of readiness. The NDMC had been in contact with provincial centres and all relevant sectors, and had also kept the public informed by various methods. He tabled the current statistics of numbers of municipalities affected.  He noted that a special inter-Ministerial committee meeting took place on 14 January, to discuss the preliminary reports compiled by the NDMC. This included representation from the Ministries of Water and Environmental Affairs, Social Development, Agriculture Forestry and Fisheries, and State Security. This committee had adopted resolutions to declare a national state of disaster in the affected areas, to keep the public informed, and to move for the formal establishment of an inter-government committee in terms of Section 4 of the Disaster Management Act, both to deal with the current situation and to ensure that disaster risk mainstream would become mainstreamed and factored into the programmes of other departments, including making the necessary appointments. A joint operation structure would be activated with immediate effect to manage the current situation. Further meetings were held on 18 and 21 January to take this further.

Dr Tau noted that funding would be required for repair and upgrade of public infrastructure, agricultural relief, repair of houses and immediate and medium term humanitarian relief, including health services. The National Joint Operating Committee (JOC) had been activated and the World Bank’s Global Facility for Disaster Reduction and Recovery had pledged support, and guidelines were being formulated.  He tabled a map showing the declared disaster areas. He concluded that NDMC would continue to engage with relevant stakeholders, ensure proper coordination, and continue with joint operations structures in all affected areas. All relevant sectors and stakeholders, within and outside government, would assist with disaster relief, including taking pre-emptive steps. A Disaster National Relief Account was being set up to mobilise additional relief funds, and private enterprises had pledged support. He stressed that disaster risk management was everybody’s business. Communication was a priority, and this would also advocate prevention, preparedness and mitigation of the effects of hazards, as a developmental measure.

Discussion
The Chairperson asked for further details about the difficulty in appointing a head of the Centre. He also expressed his concern that the decision to activate a Joint Operating Committee was taken only after 14 January, despite the predictions in August 2010. Although he commended the depth of the presentation, he indicated that the Committee would like to see more proactive steps being taken. He asked that the presenters also address the economic impact and comment on government compliance.

Nkosi M Nonkonyana (ANC) also asked what the Department had done to mitigate against the weather conditions, when made aware of them, pointing out that this was required by the Act.

Mr Africa conceded that, with hindsight, COGTA had not done enough. It had realised that there was a need to send out clear messages, particularly to Western and Southern Cape, to enable them proactively to put plans in place.

Dr Tau wished to highlight that the concept of disaster risk management dated only from 1987, following the conference that had reviewed why natural hazards were beginning to undermine development, and in light of the concept of sustainable development. Various previous developmental models had failed, partially because they were, whilst addressing development in some areas, in fact creating vulnerability in others, and it was now realised that account must be taken of individual situations, rather than blindly following other developmental patterns. This then required mainstreaming of risk assessment and reduction. The 1990s were declared the International Decade for Disaster Reduction, and all countries were encouraged to put risk management at the forefront of their policies.  The later questions were also considered against this background.

Dr Tau commented that COGTA had engaged with the sectors and had constituted technical task teams to deal with various hazard scenarios, including health, and public hazard issues. He commented that there were also capacity challenges in the Department of Water and Environmental Affairs (DWEA). Meetings had been held since August with SADC countries, and SADC asked COGTA to submit contingency plans, but it had been unable to do so because of its own capacity challenges. Another meeting was held in Botswana to discuss preparedness, and some countries were more advanced than others.

Mr Africa added that at the moment the inter-Ministerial committee was effectively an ad hoc committee, as it had not yet been duly constituted in terms of the legislation, although COGTA was taking this process further with the President, who must concur with the formation of the committee. This was a top priority. Ministers had already agreed that they needed to adopt a more hands-on approach and understand the impact on their sector better.  The process was being led by COGTA.

Mr Nonkonyana asked about the use of indigenous knowledge systems to minimise damages, and asked whether any expertise had been sought from the science and technology sector, which was not listed in the inter-Ministerial committee.

The Chairperson added that shortly prior to the tsunami in Phuket, many villagers had noticed that elephants were moving to higher ground, and followed them, thereby ensuring their survival, which was a clear indication of the value of such knowledge.

Dr Tau agreed that indigenous knowledge was important, and the bottom-up approach accepted that there was much to be learnt from leaders on the ground, and this was being well inculcated in some provinces. SAWS had launched a publication on indigenous weather knowledge, and this had been factored into the risk reduction priorities in various areas. The Department of Science and Technology had also prepared a hazard profile of South Africa, which would help COGTA to identify priority areas for attention. Other departments were attending to administration of their legislation, such as veld fire management.

Mr J Lorimer (DA) asked whether the Department had analysed why and where people were killed, and what could be done to assist the situation.

Dr Tau responded that there were various contributing factors to the fatalities, but a further report would be submitted after research.

Mr Africa said that COGTA had to distinguish between fatalities directly linked to the incidents, such as those caused directly by lightning, storms, floods and drowning, and those that may not be, such as road accidents or injuries by falling buildings. KZN and Eastern Cape had been worst affected.

Mr Lorimer also referred to building below flood lines, and asked if this was an indication that town planning regulations had failed, and, if so, what COGTA was doing about it.

Ms W Nelson (ANC) asked a similar question, pointing out that many of the homes were those of affluent people. She enquired whether the municipalities were to be asked to tighten up on their by-laws.

Dr Tau responded that development below floodlines was a developmental issue, and there was a need for thorough enforcement of laws. He reiterated that South Africa had the chance now to attend to Smart Development, but this required a “carrot and stick” approach. Although the public may raise objections, there was the need to move them from certain places, for safety considerations, both in rural and urban areas. He indicated that although he would not like to be unduly critical, some legislation was actually hindering the Department.

The Chairperson encouraged him to be critical, and urged that if there was conflict in any legislation, he should bring this to the attention of government.

Dr Tau said that the Prevention of Illegal Eviction (PIE) legislation, for instance, provided that if a person had lived illegally on land, but the municipality had not taken action, the illegal occupier would be assumed to have obtained tacit permission from the Municipality to continue living there. This resulted in people establishing homes, and acquiring rights, in areas where there were dangers, such as sinkholes, risk of explosion or other hazards, and this legislation definitely required amendment. In addition there were problems arising from the requirement, under the protection of informal land rights legislation  of 1996, to provide compensation for certain rural settlements. Although this was to be replaced by the Communal Land Rights Act, the latter was not yet in operation.

Mr Lorimer referred to complaints that sluice gates in dams had not been opened early enough, saying that had this been done, this could have mitigated the disaster. He asked for comment whether COGTA had done anything about these reports.

Ms Nelson asked whether a slow and systematic opening of sluice gates could not have eased the situation.

Dr Tau noted that development was multi-dimensional, and Integrated Development Planning (IDP) principles were applied. He agreed that the NDMC had to deal with disasters, but said that risk reduction and management had to be done by all other departments, and this was not well established in all departments. Dam levels should have been monitored properly, and it was possible that perhaps attention was being paid rather to filling the dams, without proper monitoring or appreciation of the increased inflow and problems downstream. COGTA would like to propose that this Committee should engage with other portfolio committees, urging them to make sure that the departments whom they oversaw must have clear plans for, and mainstream, risk reduction. He suggested that perhaps the DWEA could be asked to account for their actions in this regard. He added that in light

Mr James asked, whether, where informal dwellings had been destroyed, these would be repaired or replaced, who would take that decision, and who would fund any repairs.

Ms Nelson added that during the Committee’s oversight visits, it became apparent that many informal settlements existed in areas that were regularly flooded. She asked if the Department was trying to move people out of those areas timeously.

Dr Tau responded that in respect of informal dwellings, there would be assessments made after the flood waters had subsided, and decisions would be taken on whether, and how, help would be offered. COGTA would advocate against replacement of dwellings in those areas. However, the JOC would deal with this.

The Chairperson noted that the Department of Human Settlement had a programme of providing emergency housing and he would assume that it would work with municipalities in making the necessary determinations about the numbers and locations of dwellings, and ensure that there was not rebuilding in inappropriate areas.

Mr H Mokgobi (ANC, Chairperson of Select Committee on Cooperative Governance and Traditional Affairs) noted the predictions of likely events in the Western Cape and urged that proactive steps must be taken to address these, including public communications campaigns to inform the public.

Dr Tau agreed that the Western Cape was of concern and the Western Cape Disaster Management Centres had been included in the planning. The main concern in these areas at the moment was fire, but they were aware of the need to address possible flooding later in the year.

He added that the current water related disasters included flooding, aquifer risk, pollution of rivers, waste management, and the need for action by catchment management agencies. As COGTA anticipated secondary hazards, it was already asking the Department of Health to coordinate water borne disease response teams. There had been diarrhoea outbreaks in North West and Limpopo. Epidemiological hazards required a direct approach.

The Chairperson asked about the assistance offered through the Department of Social Development, and whether there was sufficient money. He said that the economic consequences were important. Earlier questions had already highlighted the multi-dimensional nature of flooding. He thought that Parliament also had a duty to educate the public. He pointed out that during an oversight visit, the Committee had been informed that the local people were well aware that they could not set up settlements on the football pitches, and he stressed that people should similarly be encouraged to become very aware of other community responsibility.

Dr Tau confirmed that the Department of Social Development was playing a role in humanitarian relief, along with other agencies like Red Cross.

Ms M Wenger (DA) referred to the point that in 1996 rivers were at the same levels, and said that this highlighted the questions asked earlier about the municipalities’ enforcement of regulations, including whether they were themselves adhering to the flood line bylaws. She asked whether punitive measures would be taken against those disregarding the requirements.

Mr Africa added to Dr Tau’s remarks by pointing out that these incidents provided an opportunity to look more closely at various matters, which would be taken up with the Department of Human Settlements. In many areas, town planning was either not in place, or was being ignored, and illegal construction had certainly occurred.

Mr Mokgobi referred to the possibility of food shortages, and asked if there were any plans to intervene if these occurred, including a possible import of food, or regulation of prices.

Dr Tau indicated that there had been a press briefing during which the Minster of Agriculture, Forestry and Fisheries had made some announcements, and this issue would be discussed further by the Disaster Relief and Rehabilitation Task Team, who would be approaching the National Treasury for funding, via the Public Finance Management Act (PFMA) and the adjustment budget. There was not as yet a final decision on this.

Mr Africa added that it would be difficult for COGTA to become involved in food security and possible compensation to farmers. The relevant departments were monitoring responses by the insurance industry, but had pointed out that final resolution of previous claims from previous disasters was still awaited in some instances. The Minister of Agriculture Forestry and Fisheries had indicated that direct compensation might be difficult, but other ways of support, such as providing seed to assist in regeneration, were under consideration.

The Chairperson noted that the each department had the legislative duty to present plans timeously, and he said that there was a need to find out where each was. Lack of coordination between departments and municipalities often exacerbated problems. The Committee must take this opportunity to consider the non-implementation of the legislation and non-compliance with IDP plans.  It was unfortunate that COGTA was also hindered by lack of capacity. Every Ward Councillor must be aware of risk and vulnerability in their areas, and ensure that it was taken into full consideration, and this should be encouraged by COGTA.

The Chairperson stressed that the inter-Ministerial committee must give the necessary urgent attention to tasks, and said that the Committee would like to see more coordination across departments.

Local Government: Municipal Systems Amendment Bill, 2010: Briefing by Department of Cooperative Governance and Traditional Affairs
The Chairperson indicated that the Committee had considered some submissions from stakeholders on the Municipal Systems Amendment Bill (the Bill). Both the Committee and Minister agreed that there should be further consultation at the New Economic Development and Labour Council (Nedlac), and feedback on this consultation would be provided. He indicated that the Committee would still be holding public hearings on the Bill.

Mr Elroy Africa said that the intention of the Bill was to professionalise local government. COGTA, following the request by the Committee, had submitted the Bill to Nedlac on 2 September 2010.

Mr Jackie Maepa, Director, COGTA, said that the Bill was presented to the Labour Market Chamber of Nedlac on 14 October 2010 and a task team, comprising partners from business, government and labour, was established. Three meetings had then been held, resulting in  agreement on ten areas, and disagreement on six. In general, there was consensus on the problems that were faced, but differences of opinion arose in regard to the mechanisms that would be appropriate to solve these problems.

He outlined that there had been agreement on the need for accountability of municipal and acting municipal managers, and their appointment, set out in Clauses 54A and 56, and on the development of a staff establishment in Clause 66, as well as the human resource systems and procedures, in Clause 67. Clause 72, relating to the powers of the Minister to set uniform standards, was agreed upon, as also the conducting of investigations in Clause 106. The repeal of the Structures Act, set out in Clause 14, and the short title and transitional arrangements, were not contentious.

There had been lack of agreement in six areas. Clause 56A prohibited municipal managers and their subordinates from holding political offices. Labour representatives had argued that this encroached on personal rights. It was agreed that a legal opinion be sought, and one of the four names suggested by labour had been approached. The opinion was to the effect that Clause 56A would pass Constitutional muster, as the limitation of rights was justifiable. He reminded the Committee that COGTA felt that it was necessary to de-politicise administration, and that this would also improve service delivery to local communities.

Clause 57 dealt with timeframes within which performance agreements must be concluded, and Clause 59 allowed the Minister to regulate remuneration, benefits and conditions of employment of municipal managers. Labour had expressed opposition to subclause 59(3)(a) relating to regulation of benefits, in particular. It believed that all such issues should be dealt with at Bargaining Council level. COGTA could not support this contention, noting that the introduction of negotiated contracts created enormous disparities across municipalities, which then impacted upon their ability to attract the right appointees to improve service delivery. At the moment, Municipal managers acted effectively as both employers and employees. COGTA wished to avoid the situation where they could set large salaries for themselves. He added that the Bargaining Council, in 2003, had decided of its own accord to exclude municipal managers, which had created the disparities and competition for scarce skills.

Clause 57A prescribed a cooling-off period to allow dismissed municipal employees to rehabilitate themselves, before being allowed to employed by other municipalities.  Labour was opposed to this, although business and government were in agreement. Labour claimed that this was encroaching on Constitutional rights, and presented double jeopardy to an employee who was first dismissed, then barred from re-employment in the sector.  Mr Maepa  pointed out that the intention of the clause was to prevent dismissed employees from simply moving directly to another municipality, pointing out that an employee who had chosen to engage in serious misconduct – for instance fraud or money-laundering – should then face the consequences, and the limitation of the right to employment was, in these circumstances, reasonable and justifiable. There was a need to ensure transparency and prevent repetition of misconduct in another municipality, and this was the responsibility of COGTA.

Business and government supported the amendment to Clause 71B, dealing with enabling powers of the Minister to regulate mandating processes, but labour felt that this was interfering with collective bargaining processes. COGTA thought that this had nothing to do with bargaining processes and was in line with cooperative governance principles. It was necessary to ensure that processes were funded and affordable, which had not been the case when agreements were reached by Bargaining Councils, without consultation with the Minister.

Business and government had no problems with Clause 72(1)(g), allowing the Minister to make regulations and guidelines on medical aid and pension schemes, but once again labour was of the view that this should be left to the Bargaining Council. Mr Maepa highlighted the problems. In local government, there was no compulsory membership of pension funds, and government wanted to avoid the situation where, instead of contributing while they could to their own future, government employees would rather try to access social grants on retirement.  There were more than 73 different pension structures, and there was a need to minimise the disparities. It was necessary to create a platform to allow municipalities to get regular actuarial reports on the performance of the funds, as this was not currently happening, and some municipalities had even been called upon to contribute to deficiencies in those funds. This clause would assist in safeguarding municipalities and their employees, whose investment was at stake. There were similar problems with medical aid schemes operating in local government, where some of the lower-paid employees could not afford to participate.

The parties had agreed that a report on the engagement would be submitted to both the Minister of Labour and Minister of Cooperative Governance and Traditional Affairs. It was agreed that the social partners in Nedlac would be at liberty to advocate their individual views during the public hearings. However, although the consultation had been finalised last November, labour had been reluctant to sign the report, which led to a stalemate. Mr Maepa appealed for the Committee’s assistance in ensuring that the report was signed off by labour, to take the matter further.

The Chairperson asked the State Law Advisors  to comment.

Ms Yolande van Aswegen, Principal State Law Advisor, Office,  said that the State Law Advisors believed that all clauses were in line with the Constitution. She pointed out that the rights in the Constitution were not absolute, and could be limited in terms of Section 36, and the limitations in these clauses were justifiable. Whilst she could not comment on the collective bargaining issue, she was aware of concerns that the Minister might be granted overly-wide powers, which might impact on the independence of the different spheres. However, she pointed out that the Minister was already empowered, in certain circumstances, to  intervene in processes and functions of the municipalities.

Mr Khanyiso Nabe, State Law Advisor, Office of the Chief State Law Advisor, added that perhaps the incorrect impression might have been created on one point, since labour had not necessarily disagreed entirely with Clause 57A, and might be willing to reconsider its position.

The Chairperson asked COGTA to reflect the position entirely correctly, and agreed that labour had indicated that it would agree with placing restrictions where there had been evidence of corruption by municipal employees.

Discussion
The Chairperson asked for further explanations on the reasons for opposition to Clause 77.

Mr Nhlakamipho Nkontwana, Special Advisor to the Ministry of Cooperative Governance and Traditional Affairs, responded that labour had argued that allowing the Minister to regulate on the conditions on municipal employees would be the thin end of the wedge. However, he pointed out that the amendment was aimed at ensuring effectiveness of regulations that were already in existence. Municipal employees could join trade unions, but municipal managers found themselves in a difficult situation, because they may have to discipline others guilty of misconduct, and COGTA felt that the Minister should have the ability to act in the case of senior management matters.

Mr Nkontwana added to previous comments on Bargaining Council negotiations, saying that often the Minister was not advised of the processes, which then gave rise to problems, particularly in relation to financial matters. For proper accountability and budgeting, the South African Local Government Association (SALGA) and the Minister should work together. He confirmed the difficulties within SALGA on the medical aid benefits, and warned that if the benefits were not synchronised, a person moving from one municipality to another,  or one sphere of government to another, could be deemed to have a break in service.

Mr Nkontwana further confirmed that he had been engaging with the Executive Director of Nedlac to try to get the signed-off report, but labour had not assisted.

Nkosi Nonkonyana noted that the apparent reluctance by labour to sign off on the report prevented it from being submitted to the Ministers. He suggested that the report should reflect that there were two viewpoints, and set them both out.

The Chairperson quoted a Sotho expression to support his proposal that labour should be asked to put its own viewpoint before the Committee, but also said it would be useful to receive a copy of the legal opinion.

Mr Nkontwana said that one of the proposals was that the report should reflect that business and government had agreed, but labour had certain problems to be outlined during public hearings.

Nkosi Nonkonyana asked whether it was usual for a Bill to amend other pieces of legislation, as set out in Clause 14, rather than bringing a separate amendment to that legislation,.

The Chairperson responded that this was usual.

Ms van Aswegen noted that this Bill was dealing with municipal managers, and the amendments contained in Clause 14 were consequential amendments to avoid inconsistency between statutes. It was possible to repeal through a longer route, but this was usual.

 Mr Lorimer asked what exactly were the objections of labour on Clause 57A. In principle he enquired whether it was correct that a person dismissed from one municipality could be re-employed by another.

Mr Maepa responded that labour was concerned that the Minister was being given overly-wide powers to regulate on the nature of dismissable offences, and would prefer these to be narrowed so that the Minister’s power would extend only to cases of corruption, fraud and financial misconduct, as opposed to the current term of “misconduct”. COGTA was considering its position.

Ms Wenger agreed that medical aid and pension funds had to be interrogated. From her own experience, she knew of major problems for employees and councillors. She was surprised that labour was not in agreement with the proposals. She pointed out that SALGA claimed not to be able to  represent municipal councillors, who could also not seek assistance elsewhere. She pointed out that no audited statements had been issued for the last four years, in respect of the Councillors’ Pension Fund, and any payments were based purely on assessments, not on real figures. She questioned to whom the Executive of that pension fund was accountable.

Mr Maepa said that as far as COGTA had been able to ascertain the pension funds operating in local government had been registered. He reiterated that municipalities had been asked to make up losses, arising from bad investments, purely to protect the interests of their employees, in the absence of a proper framework.

The Chairperson noted that the main purpose of the Bill was an attempt to professionalise local government, to empower the Minister to support that objective, and to introduce standardisation. He said that the Committee would invite the labour sector to address the Committee on its concerns, and noted that the Executive would have to find ways of resolving some of the issues.

The meeting was adjourned.

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