The Committee discussed the outstanding issues pertaining to the Local Government Municipal Systems Amendment Bill. The Community Law Centre had called for an amendment which would prevent political interference where municipal appointments were made. The case of Manana v King Sabata Dalindyebo Municipality was taken as case in point. The contention by the Law Community Center was that in terms of Section 55(1) of the Municipal Systems Act, the Municipal Manager had the authority to appoint Mr Manana and not the Municipal Council. The Court however held that the Municipal Council had the power to make an appointment. In terms of Section 55(1) a municipal council may delegate some of their functions. The appointment by a municipal manager was a delegated function of the municipal council. The case further confirmed the power of Section 154(2) of the Constitution relating to the capacity of municipalities.
The Principal State Law Adviser’s opinion was that the case did not impact much on the Bill. It only confirmed the authority as set out in the Constitution. There was no divestment of authority from municipal councils. There was no interference in the function of municipal councils by the Bill. The Community Law Centre was proposing to limit the powers or the executive authority of municipal councils. The case made it clear that ordinary legislation could not divest powers from municipal councils which were bestowed upon them by the Constitution. If what the Community Law Centre proposed was to be accepted, a constitutional amendment would be required. The Committee was unanimous that no constitutional amendment would be made. The decision by a municipal council to delegate authority to a municipal manager to make appointments could, in any case, be reviewed.
The Department proceeded to take the Committee through its proposed amendments clause by clause. SALGA was also given the opportunity to ask questions. The database of staff dismissed for misconduct was discussed as was the limitation only for five years of the re-employment of a municipal staff member found guilty of fraud, corruption or misconduct. Some members stated that such person should be barred from being employed in a municipality indefinitely.
Local Government Municipal Systems Amendment Bill
The Chairperson noted that there was the unresolved issue of the 2010 court case of Manana v King Sabata Dalindyebo Municipality which the Community Law Centre had referred to the Committee. This dealt with the relationship of municipal councils with their administration: specifically, political interference in municipal appointments. The State Law Advisers Office was asked to shed light on the court case.
Advocate Yolande Van Aswegen, Principal State Law Adviser, proceeded to set out the facts of the case. Mr Manana had been appointed in terms of a resolution that had been taken by the municipal council. The resolution had taken place after a grievance procedure. It was agreed that Mr Manana would be compensated for back pay. He was appointed but no back pay was paid. Mr Manana took up the matter in the Eastern Cape High Court. The Court held that it lacked jurisdiction as it was a labour matter. The matter was then referred to the Supreme Court of Appeal. The Supreme Court noted that the Eastern Cape High Court did in fact have jurisdiction over the matter. It also confirmed the principle in Section 151 (2) of the Constitution about the executive authority of a municipality. The contention by the Community Law Centre was that in terms of Section 55(1) of the Municipal Systems Act, the Municipal Manager had the authority to appoint Mr Manana and not the municipal council. The Court however held that the municipal council had the power to make an appointment. In terms of Section 55(1) a municipal council may delegate some of their functions. The appointment by a municipal manager was a delegated function of the municipal council. The case further confirmed the power of Section 154(2) of the Constitution relating to the capacity of municipalities. The Bill before the Committee was as a result of Section 154(2) of the Constitution. The intention was for national government to strengthen the function of municipalities. Adv Van Aswegen stated that the case did not impact much on the Bill. It only confirmed the authority as set out in the Constitution. There was no divestment of authority of municipal councils. There was no interference in the function of municipal councils by the Bill.
The Chairperson was thankful for the explanation but asked what prevented a provision to be included in the Bill to prevent political meddling as was being proposed by the Community Law Centre.
Adv Van Aswegen responded that the Community Law Centre was proposing to limit the powers or the executive authority of municipal councils. The case made it clear that ordinary legislation could not divest powers from municipal councils.
The Chairperson asked if the Committee agreed with what the Community Law Centre was proposing.
Mr J Matshoba (ANC) stated that there was no need to make the change.
Mr J Lorimer (DA) agreed that no change was required. He suggested that in order to prevent political meddling by a municipal council, was to change the municipal council.
Adv Van Aswegen stated that the issue was not simply about making a change or not. A change would be limiting authority that was given in terms of the Constitution. A constitutional amendment would be required.
Mr Johan Mettler, representing the South African Local Government Association (SALGA), was satisfied with the explanation given by Adv Van Aswegen. He asked if a municipal council could withdraw its delegation of power to a municipal manager in order to make an appointment. He had been under the mistaken belief that a municipal manager had the authority to employ, rather than a municipal council.
The Chairperson confirmed that in fact it was the municipal council which made appointments.
Adv Van Aswegen explained that Section 55 of the Municipal Systems Act provided that authority was given to a municipal manager subject to a policy direction of the municipal council. As authority was delegated, so too could authority be withdrawn.
Mr T Botha (COPE) asked if it was the intention of the Bill to create a separation of powers in municipalities between the executive and the legislature.
The Chairperson answered in the negative and stated that the issue of the Community Law Centre was to give administration that authority to appoint and to stop political meddling. He noted that the general view of the Committee was that the municipal council should still have the authority to appoint. Section 59 of the Municipal Systems Act provided that the delegation could not be withdrawn but the decision to delegate could be withdrawn. In the event that a new municipal council was elected, the decision to delegate authority had to be reviewed.
Mr Botha asked how the Committee was intending to address the concerns raised by the Community Law Centre - given that in reality political meddling did take place.
The Chairperson asked Mr Botha if he had any suggestions to resolve the issue provided that it was in line with the Bill.
Mr Botha responded that perhaps the problem was the flexibility of the powers of municipalities.
The Chairperson pointed out that a review of delegation of power by municipal councils did take place.
A Department representative stated that the occurrence of delegation was not so common in the provinces.
The Chairperson suggested that perhaps the Department and SALGA should conduct an audit of delegations of authority in order to give the Committee a sense of how common an occurrence it was.
He ruled that the issue was closed and suggested that the Committee consider the proposed amendments to the Bill.
Mr Enver Daniels, Chief State Law Adviser, asked if there were any other issues on which the Committee required clarification.
The Chairperson stated that the Committee had considered the Community Law Centre proposal and the Committee had decided against it as it would require a constitutional amendment which was too profound. The review of a decision to delegate authority by a municipal council was an option. When it could be reviewed and under what circumstances should be looked at. Was reversal of a decision considered a review?
Proposed Amendments to Local Government Municipal Systems Amendment Bill
Mr Jackey Maepa, Senior Manager: Municipal Human Resource Systems, Department of Co-operative Governance and Traditional Affairs, proceeded to take the Committee through its proposed amendments clause by clause. Members were encouraged to ask questions where relevant.
Much of the clause contained omissions and substitutions. One of the most recurring ones was to omit the use of “municipality” and to substitute it with “municipal council”. The two terms had totally different definitions.
A new subsection 2A was also inserted which placed a limitation on the appointment period. The idea was to prevent abuse. Subsection 2A also made provision for the ratification of an appointment.
Mr Maepa read the proposed amendments as contained in the clause.
The Chairperson referred to Clause 3(h)(b) which provided that when the MEC received information on an appointment process and outcome, such information should be forwarded to the Minister. He was concerned about what if the MEC failed to forward such information to the Minister. What recourse was there?
Mr Mettler shared the Chairperson’s concern as response times by MECs were often slow.
Ms I Ditshetelo (UCDP) referred to “appointment process and outcome” in subclause 3(h)(a) and asked for clarification.
Mr Maepa stated that the regulations would shed light on the matter.
The Chairperson explained that the regulations would state that the municipal council would report quarterly on the appointment process and outcomes.
Clause 6 as set out in the Bill was omitted and a new clause 6 was inserted. The new clause dealt with the employment of dismissed staff.
Mr Mettler referred to the clause and suggested that an obligation be placed on the Minister to establish a database.
Mr Maepa noted the suggestion made by Mr Mettler. He explained that the Minister had published disciplinary regulations for municipal managers. The problem was that the regulations could not be finalised due to consultation issues. The regulations attached to the Bill highlighted the fact that municipalities had to keep a database and it stated what type of data needed to be stored.
The Chairperson stated that the database would be dependant on the information that was provided by municipalities.
Mr Mettler was sceptical whether the database would be formed.
Ms M Wenger (DA) shared Mr Mettler’s sentiments and stated that the database should not only be at municipal level. It should be at national level as well.
Ms Nelson felt that the provisions for the establishment of a database should be more strongly drafted. The database should be established.
Mr Lorimer referred to the provision in the clause regarding the limitation on the employment of a municipal staff member found guilty of fraud, corruption or misconduct and stated that such person should be barred from being employed in a municipality indefinitely and not only for five years as it was currently proposed.
The clause made provision for a new subsection which allowed the Minister to consult with the Minister of Health and the Minster of Finance at a national level over medical aid and pension issues.
Mr Maepa noted the two new clauses added to the Bill. The first clause called for the amendment of section 71 of Act 32 of 2000 and the second amended section 120 of Act 32 of 2000.
Mr Mettler referred to Clause 10 of the Bill which dealt with human resource management systems and asked what Parliament wished the Minister to regulate. He felt that the provisions were far too wide. What must the Minister regulate?
Mr Maepa responded that the provisions in Clause 10 allowed the Minister to make determinations where a need arose. Perhaps to review conditions of service of an occupational group in light of problems experienced by municipalities to employ and maintain skills. It allowed the Minister to consistently lead reform processes that may be warranted. The Minister could come up with a framework to realign human resources in municipalities.
Mr Mettler stated that section 72 of the Municipal Systems Act listed things which the Minister could regulate in terms of human resources.
The Chairperson, taken into consideration what Mr Mettler had stated, asked the Department what reason was there to keep the current clause in the Bill.
Mr Maepa answered that it was up to the Committee to decide on whether to keep the clause or to delete it. Legal opinions received on section 72 had highlighted the fact that the section had some limitations in regulating human resources as a whole. Clause 10 provided the Minister with enabling powers.
The Chairperson stated that for now he was not convinced by the Department’s argument but that the issue would be revisited.
Adv Van Aswegen referred to Clause 7 of the Bill and stated that issues contained in the clause required the Minister to consult with local government.
The Chairperson concluded by stating that lawmaking must be neat. The Committee would in the following week formally consider the Bill clause by clause.
The meeting was adjourned.
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