Local Government: Municipal Systems Amendment Bill [B22-2010]; public hearings with the Deputy Minister

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Cooperative Governance and Traditional Affairs

06 February 2011
Chairperson: Mr S Tsenoli (ANC)
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Meeting Summary

In the presence of the Deputy Minister, the Committee welcomed submissions from civil society organisation AfriForum, Mr Ian Dewar, the South African Local Government Association, the Good Governance Learning Network, the South African Municipal Workers Union, and the Independent Municipal and Allied Trade Union.

AfriForum raised a number of issues pertaining to the proposed Bill and its eligibility to adequately address the problems facing local government and municipalities. The organisation asserted that there was a lack of political will to adequately address the problems affecting municipalities and local government. A large proportion of municipalities lacked the capacity and/or the ability to provide basic services for the residents of those municipalities. The organisation lamented the lack of tangible solutions to the problems faced by municipalities and the level of inadequate management that existed in some municipalities. AfriForum welcomed the intent by the Government to address some of the problems facing local government through the Bill.

The South African Local Government Association submission focused on the need to protect collective bargaining. The Association submitted that collective bargaining should remain in the scope of the municipality as an employer constitutionally and carried out through an employer’s organisation. The Association took issue with the provision in the Bill pertaining to secondment of municipal workers. There was a lack of clarity on who would determine the terms and conditions of secondment. The Association submitted that, although appointed by the Member of the Executive Council or Minister, the seconded person must report to municipal council where he or she had been seconded so that he or she fell within the authority of the municipal council and could therefore exercise delegated authority, and be subjected to performance management processes and mechanisms. The Association contended that Section 3 of the principal Act blurred the lines of accountability and should be clarified accordingly.

The Good Governance Learning Network submitted that the Bill was not retrospective enough and the provisions in the Bill would not address problems which had arisen in the past and were yet to be addressed. Appointments made prior to the Bill taking effect where a municipal manager or a manager directly accountable to a municipal manager held political office in a political party remained unaltered and this was problematic. The Network contended that the Bill was not explicit about performance contracts and the time frame granted to ratify such contracts (60 days) in a municipality was too long and impractical. The organisation submitted that in relation to the separation of political office from the administrative sphere of a municipality, this should also apply to those appointed below a Section 56 manager and not only to a municipal manager or a manager directly accountable to the municipal manager as it  stood in the Municipal Systems Act of 2000. Lower ranking officials who held senior positions in a political party could exercise an equal or potentially greater political influence over other officials within the municipal administration. The Bill fell short in addressing the issue of municipal councils having the power to appoint managers which were directly accountable to the municipal manager.

The Community Law Centre presented its submission as part of the Network. The Centre submitted a case which had been decided in November 2010 in which a municipal employee, Mr Manana, took the King Sabata Dalindyebo Municipality to court after his promotion to the position of Manager of Legal Services by the Municipality’s Council was not recognised through proper financial recompense.

Mr Ian Dewar presented his submission to the Committee in his private capacity. He submitted that a municipality must develop a culture of municipal governance that complimented the ward committee system so as to encourage civil society’s participation in the governance of their local areas. His submission focused on the promotion of capacity building in municipalities as well as an emphasis on the participation of citizens in their respective municipalities. He submitted that more mechanisms for complaints to be made against errant municipal staff needed to be included in the Bill as there was not enough in terms of recourse in the Municipal Systems Act of 2000.   

The South African Municipal Workers Union submission generally supported the ideals set out in the proposed legislation to improve the ability of municipalities to deliver to their respective residents.
The Union felt that some of the provisions in the Bill impacted on its rights of collective bargaining and this should be addressed before the Bill was taken any further. The Minister’s powers on regulating on municipal workers offences were too broad and should be devolved to the municipality councils. The Union sought greater clarification on the necessity for a provision relating to municipal managers not being permitted to be members of a political party and queried why the provision only related to senior municipal managers and not other municipal employees. The proposals appeared to be inconsistent in that political office was restricted to traditional office bearer positions and not executive committees as a whole which were collectively responsible for political decision-making within a political party. The Union supported the need for clear performance indicators for senior managers in relation to the proposed amendment to Section 57 of the Act. The Union remained steadfastly opposed to the concept of performance bonuses which accompanied the contracts.

The Independent Municipal and Allied Trade Union submission focussed predominantly on issues pertaining to collective bargaining and the powers granted to the Minister/Member of the Executive Council to influence municipal staff appointments. This Union submitted that municipal managers and managers reporting directly to municipal managers should, in its view, not hold any political office at the time of submission of their application for employment at any municipality. The Union further submitted that it was concerned that the ability of the Minister to issue regulations to ensure effective, fair, efficient and transparent personnel administration would undermine existing collective bargaining processes undertaken in the South African Local Government Bargaining Council. The Union supported the amendment relating to certain minimum competencies, skills and experience of municipal managers and managers directly accountable to municipal managers. The regulations needed to provide and take into account the vast differences between metropolitan and rural municipalities. The regulations would therefore need to be adjusted to meet the needs of the different categories of municipalities. The Union was further concerned that the ability of the Minister to issue regulations to provide a framework for human resource management would undermine existing collective bargaining processes undertaken in the South African Local Government Bargaining Council.

Members queried the case that was presented as part of the Good Governance Learning Network submission. They discussed extensively the issue of separation of powers at a local government level and the powers that the national Executive had to rule on local government issues.


Meeting report

The Chairperson welcomed the civil society organisations present as well as the individual submitters. The Committee would have to make the final decision on the nature of the provisions in the Bill but it welcomed input from the public. The Bill under discussion would be important in light of the local government elections which were scheduled to take place later in the year.

The Hon. Yunus Carrim, Deputy Minister for Cooperative Governance and Traditional Affairs (COGTA) made some opening remarks. He said that the Local Government: Municipal Systems Amendment Bill would be important in light of the local government elections scheduled for later in the year. It would be a busy year for COGTA as the Department hoped to present a number of Bills to parliament in the course of the year. Some of the major pieces of legislation to come from the Department would do so after the ruling party’s 2012 conference. The purpose of the Bill under discussion would be to provide for stronger provincial governments which would ultimately strengthen municipalities and national government.

AfriForum Submission
Mr Cornelius Jansen van Rensburg, AfriForum spokesperson for local government issues, presented the organisations submission. AfriForum raised a number of issues pertaining to the proposed Bill and its eligibility to adequately address the problems facing local government and municipalities. The organisation asserted that there was a lack of political will to adequately address the problems affecting municipalities and local government. A large proportion of municipalities lacked the capacity and/or the ability to provide basic services for the residents of those municipalities. Some of the problems related to lazy and inept municipality officials who were unable to provide proper service. This was demonstrated by the figures below:

Table 1: Municipal service delivery ability

203 Municipalities

Cannot provide sanitation to 60% of their residents

155 Municipalities

Cannot provide water to 80% of the households.

182 Municipalities

Cannot provide refuse removal to 60% of households

122 Municipalities

Cannot provide electricity to 60% of their residents

116 Municipalities

Cannot provide housing to 60% of residents

42 Municipalities

Are not capable to execute even half of their basic responsibilities

139 Municipalities

Earmarked to receive assistance from Project Consolidate


The organisation lamented the lack of tangible solutions to the problems faced by municipalities and the level of inadequate management that existed in some municipalities. AfriForum welcomed the intent by the government to address some of the problems facing local government through the Bill.

AfriForum took issue with the lack of acknowledgement by provisions in the Bill on the restrictive nature of criteria for the employment of local government staff in other governmental policies. This led to vacancies in councils and municipalities not being filled in certain areas. The proposed amendments to Section 66 of the Municipal Systems Act of 2000 and the insertion of Clause 71b alluded to the qualitative nature of the managerial positions within municipal administration.  Given the dire state of municipalities the time had come to adjust employment policies in such a way that adequate skills and experience were considered before any equity criteria was applied, especially where key critical positions was identified and needed to be filled urgently.


AfriForum submitted that if an employee of a council or municipality was found guilty of a grievous case of misconduct involving corruption then that individual should be dismissed and disallowed from working for local government ever again. Allowing rehabilitation periods before allowing re-appointment, as proposed by the Bill, would be to allow for people to take advantage of that branch of government.

The organisation argued that in light of the proposed amendment to Section 72 of the Act, relating to remuneration packages, money should not be spent excessively and wasteful expenditure on luxury items should be monitored closely and discouraged. AfriForum further argued for there to be better mechanisms for people to lay complaints and seek recompense where they had been wronged by local government.

Dewar Submission
Mr Ian Dewar presented a submission to the Committee as a private citizen with an interest in local government issues. He submitted that a municipality must develop a culture of municipal governance that complimented the ward committee system so as to encourage civil society’s participation in the governance of their local areas. His submission focused on the promotion of capacity building in municipalities as well as an emphasis on the participation of citizens in their respective municipalities. He submitted that more mechanisms for complaints to be made against errant municipal staff needed to be included in the Bill as there was not enough in terms of recourse in the Municipal Systems Act of 2000. Local government was not working in his community.    

Discussion
The Chairperson thanked Mr Dewar for his submission and said that the Committee would look at his submission seriously. There would be further opportunity for the Committee to interrogate the proposals made by Mr Dewar.

South African Local Government Association (SALGA) Submission
Councillor Clarence Johnson, National Executive Committee member of SALGA and Mr Johan Mettler, Executive Director of SALGA presented the Association’s submission to the Committee. SALGA noted that some of its concerns have been incorporated into Bill however a number of its concerns have not been addressed.

The Bill did not stipulate the framework within which the Minister may regulate.  The Minister was granted unchecked authority to regulate in the area of collective bargaining. SALGA submitted that collective bargaining should remain in the scope of the municipality as an employer constitutionally and carried out through an employer’s organisation.

SALGA took issue with the provision in the Bill pertaining to secondment of municipal workers. There was a lack of clarity on who would determine the terms and conditions of secondment. SALGA submitted that, although appointed by MEC or Minister, the seconded person must report to municipal council where they had been seconded so that they fell within the authority of the municipal council and could therefore exercise delegated authority, be subjected to performance management processes and mechanisms. SALGA contended that Section 3 of the principal Act blurred the lines of accountability and should be clarified accordingly.

The Section should be amended to make it clear that the municipal manager appointed, as head of administration, a manager or acting manager directly accountable to the municipal manager.  SALGA submitted that no municipal employee, whether in a permanent, temporary or acting capacity, may hold political office in a political party whilst serving as a senior municipal employee. No potential municipal employee may be hired should it emerge that they were dismissed from another municipality for under performance or irregular activities.

SALGA submitted that the provision relating to collective bargaining was too wide and impacted on SALGA's position as far as it related to collective bargaining and mandating processes thereof. Regulating the appointment of municipal managers as well as empowering the Minister to prescribe regulations on local government staff establishment and human resources systems violated the institutional integrity of local government and effectively disregarded the intergovernmental relations. SALGA recommended that the principals of each sphere meet and set parameters on wages but the Minister of COGTA should not be given those wide ranging powers to decide solely. The provision could have unintended negative consequences.

Good Governance Learning Network (GGLN) Submission
Ms Chantelle de Nobrega, Coordinator: GGLN presented the Network’s submission to the Committee. The GGLN supported the drive towards professionalisation of local government. The GGLN submitted that through installing clear procedures and guidelines for the appointment of municipal managers or managers who were directly accountable to municipal managers, local government could be improved. The organisation was in support of the proposals to increase accountability among local government employees and the drive to put in place stronger management systems. The GGLN applauded the move to limit the amount of political influence in municipal structures as proposed by the Bill.

The GGLN submitted that the Bill was not retrospective enough and the provisions in the Bill would not address problems which had arisen in the past and were yet to be addressed. Appointments made prior to the Bill taking effect where a municipal manager or a manager directly accountable to a municipal manager held political office in a political party remained unaltered and this was problematic. The GGLN contended that the Bill was not explicit about performance contracts and the time frame granted to ratify such contracts (60 days) in a municipality was too long and impractical.

The organisation submitted that in relation to the separation of political office from the administrative sphere of a municipality, this should also apply to those appointed below a Section 56 manager and not only to a municipal manager or a manager directly accountable to the municipal manager as it  stood in the Municipal Systems Act of 2000. Lower ranking officials who held senior positions in a political party could exercise an equal or potentially greater political influence over other officials within the municipal administration.
The Bill fell short in addressing the issue of municipal councils having the power to appoint managers which were directly accountable to the municipal manager. The implication was that the Council was influential in the decision-making process regarding municipal appointments. The GGLN contended that the power to make such appointments should not lie in the political domain if the overall agenda of COGTA was to professionalise municipal structures. The appointment of municipal managers and acting municipal managers needed to be clarified in the Bill. The relevant provision proffered that the Minister of COGTA was potentially to be involved in administrative matters where in fact the Member of the Executive Council (MEC) for COGTA at a provincial level should be regarded as the first point of reference to settle such issues.

Professor Jaap de Visser, Project Coordinator for the Community Law Centre (CLC) and Mr Phindile Ntliziywana, Researcher at the CLC presented the Committee with the Centre’s supplemented presentation. The CLC was a member of the GGLN and the submission was made in conjunction with the Network.

The CLC submitted a case which had been decided in November 2010 in which a municipal employee, Mr Manana took the King Sabata Dalindyebo Municipality to court after his promotion to the position of Manager of Legal Services by the Municipality’s Council was not recognised through proper financial recompense. There was a delay in the altering of his pay grade and as a result, Mr Manana sued the Municipality.

The case was heard before the Supreme Court of Appeal (SCA) where the judge ruled that the Municipal Council did not, according to the Municipal Systems Act, have the power to make resolutions to employ people to the municipality. That power lay solely with the municipal manager. This was an area of concern as there was not enough clarity on who had the power to appoint municipal employees and should rightly be addressed by the proposed legislation.

Discussion
The Chairperson commented that there was no ambiguity in the Municipal Financial Management Act (MFMA) of 2003, in his view, in relation to the powers granted to Municipal Managers and the Municipal Council in employing municipal employees and sorting out financial recompense.

Prof De Visser said that he was puzzled by the phrase in the Act relating to the powers granted to Municipal Managers and the Municipal Council.

The Chairperson restated his view that the MFMA was explicitly clear on the issue. He said that the SCA judgement on the Manana issue implied that the Committee and Parliament had passed an unconstitutional Act with regard to the MFMA.

Prof De Visser said that in his view the MFMA made it mandatory for the municipal council to delegate the employment function to the municipal manager. Thus the municipal manager did not have the right to unilaterally appoint municipal employees but could only do so if the task was delegated to him/her by the municipal council.

The Chairperson said that task delegation should be in writing, or included in the contract signed by municipal managers. The municipal council had the ultimate responsibility for appointments.
Mr Mohammed Bhabha, Technical Advisor to the Deputy Minister: COGTA said that there was an understanding between national government and provincial government which was contained in the Constitution. In local government affairs, there was no clear guideline in the constitution addressing the issue of separation of powers. He asked Prof De Visser whether it was possible to bring law into being which delineated powers at a local government level, without altering or adding an amendment to the constitution.

The Chairperson said that his interpretation was that if the delineation of powers was decided by the Executive through the relevant Minister then it would fly in the face of the Constitution in relation to the constitutional dispensation. Municipalities had the right to govern their own affairs and that right could not be impinged on.

Prof De Visser responded that the Constitutional Court had made pronouncements which seemed to differ from the SCA’s ruling in the Manana case. The Constitutional Court’s ruling on the Masondo case relating to whether the Constitution dealt with the delineation of executive powers at a local government level seemed to suggest, in the words of Justice Albie Sachs, that the Constitution was unclear on the matter. This was at odds with the SCA’s judgement on the Manana case.      

Councillor Johnson interjected and said that if a councillor sat in a committee that was appointing a manager, there was no way that the councillor could then hold the municipal manager accountable if the appointed manager failed in his job. This was why the municipal council had to have the powers of delegation, to hold people to account.

The Chairperson said that often people avoided doing something if it was not explicitly stated in the law.

Mr Bhabha said that the Constitutional Court permitted the Executive to delineate a separation of powers at a local government level. It would be bizarre and absurd to say that a municipal manager would be expected to not have a say on who was employed under him when he was expected to deliver efficient service.

Ms Yolande van Aswegen, Principal State Law Advisor said that in the view of the State Law Advisor, Section 154 (1) of the Constitution obliged national government to support and strengthen local government. That Section was a justifiable reason for the Minister to have the power to intervene in local government issues.

Mr Bhabha agreed that there was a balance in the Constitution which allowed for the intervention of the Minister in certain local government issues such as the separation of powers.

Mr Nhlakanipho Nkontwana, Special Advisor to the Ministry of Cooperative Governance and Traditional Affairs, said that there was an obligation on national and provincial government to ensure that local government and municipalities carried out their functions properly.

The Chairman said that it would be useful to see the CLC’s proposals on a remedy to the problem raised by the Manana judgement. The interaction had been useful and good, the Committee would come back to the issue at a later stage.

South African Municipal Workers Union (SAMWU) Submission
Mr Roger Ronnie, SAMWU General Secretary presented the Union’s joint submission with the Congress of South African Trade Unions (COSATU). The Bill was an indictment on the state of local government as it sought to address pervasive problems.

SAMWU submitted, under Section 54A of the Act, that every municipal employee be subject to the sectoral terms and conditions of employment determined by the relevant bargaining council including municipal managers. In this regard it argued that the entire section/s regulating the appointment of municipal managers, acting municipal managers or any other manager accountable to the municipal manager be revised. The Union supported the thrust of the Bill to attempt to make it necessary to employ people with relevant qualifications.

Under the proposed amendment to Section 56A of the Act in relation to the limitations on municipal managers to be members of executive bodies of political parties, the Union sought greater clarification on the necessity for such a provision and queried why the provision only related to senior municipal managers and not other municipal employees. The proposals appeared to be inconsistent in that political office was restricted to traditional office bearer positions and not executive committees as a whole which were collectively responsible for political decision-making within a political party.

SAMWU supported the need for clear performance indicators for senior managers in relation to the proposed amendment to Section 57 of the Act. The Union remained steadfastly opposed to the concept of performance bonuses which accompanied the contracts. All local government employees should perform their duties in the broader public interest and should receive a fair wage for doing so rather than a bonus for doing their jobs. SAMWU was strongly in support of a Recruitment, Selection, Appointment and Retention Policy Collective Agreement for the municipal sector which should be concluded in the South African Local Government Bargaining Council (SALGBC). Proposed Clauses 66 (3) – (5), which SALGA supported, could be included in such a collective agreement.


On the proposed amendments to Section 71B of the Act, SAMWU felt that the proposal encroached on the jurisdiction of the SALGBC to regulate, perform and conclude collective agreements on matters of mutual interest between employers and employees. Any proposals which sought to allow the Minister to regulate any aspects thereof potentially risked undermining the spirit and letter of the Labour Relations Act. SAMWU opposed the proposal.

The Union felt that some of the provisions proposed for Section 72 of the Act by the Bill impacted on its rights of collective bargaining and this should be addressed before the Bill was taken any further. The Minister’s powers on regulating on municipal workers offences were too broad and should be devolved to the municipality councils.

Independent Municipal and Allied Trade Union (IMATU) Submission
Craig Adams, Deputy General Secretary: IMATU presented the trade union’s submission to the Committee.

IMATU supported the amendment relating to certain minimum competencies, skills and experience of municipal managers and managers directly accountable to municipal managers. The regulations needed to provide and take into account the vast differences between metropolitan and rural municipalities. The regulations would therefore need to be adjusted to meet the needs of the different categories of municipalities. The competencies, skills and experience of a municipal manager in a metropolitan municipality may be different than that of a municipal manager in a rural municipality.


IMATU supported the power vested in the MEC and/or Minister to intervene if the appointment of municipal managers, and managers directly accountable to municipal managers were not affected in terms of the requirements of these provisions. IMATU was however concerned that those municipalities were required to report on the appointment process. The problem lay therein that the post of municipal manager is vacant at the time of the appointment process; IMATU was of the opinion that the body responsible for reporting to the MEC / Minister should therefore be more clearly defined.

IMATU supported the provision in the Bill which stated that a vacant municipal manager’s post must be filled at all times by an acting manager. COGTA should develop a pool of acting managers with the necessary skills to take over should a vacancy arise. IMATU was of the opinion that managers reporting directly to municipal managers could only be appointed, remunerated and offered conditions of service developed in the South African Local Government Bargaining Council (SALGBC), taking into account the category of the particular municipality.

IMATU submitted that municipal managers and managers reporting directly to municipal managers should, in IMATU’s view, not hold any political office at the time of submission of their application for employment at any municipality. IMATU further submitted that it was concerned that the ability of the Minister to issue regulations to ensure effective, fair, efficient and transparent personnel administration would undermine existing collective bargaining processes undertaken in the South African Local Government Bargaining Council.

IMATU was further concerned that the ability of the Minister to issue regulations to provide a framework for human resource management would undermine existing collective bargaining processes undertaken in the South African Local Government Bargaining Council.

Discussion

The Chairperson thanked IMATU for its useful input. He gave the Department an opportunity to respond briefly to submissions made. The Committee would consider the submissions made and could call upon the presenters again at a future meeting.

Deputy Minister Carrim said that if the Bill was crafted simpler, then some of the issues raised would fall away. The issue of corruption and the professionalisation of local government needed to be addressed seriously in order to improve the level of delivery at a local government level. There was a need for people who were well qualified to serve in municipalities and local government. There needed to be a balance of power between municipal managers and municipal councils.


Mr Jackie Maepa, Director, COGTA, highlighted issues which had been raised in some of the submissions and said that the Department had met with some stakeholders; there had been agreement on some issues. These issues would be addressed and amended where possible.

The Chairperson made it clear that there would be time for a formal response from the Department and that would be scheduled in the weeks ahead. He thanked everyone who had attended the meeting.

The meeting was adjourned.

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