Municipal Systems Bill: Chapters 6, 7, 10, 11 & 12

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Cooperative Governance and Traditional Affairs

24 August 2000
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Meeting report

PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE

PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE
25 August 2000
MUNICIPAL SYSTEMS BILL: CHAPTERS 6, 7, 10, 11 AND 12

Documents handed out:
Municipal Systems Bill
Working Document: Proposed Amendments to Municipal Systems Bill

SUMMARY
The committee reviewed their proposed amendments as incorporated by the Department in Chapter 6, 7, 10, 11 and 12 in the Working Document..

The Chairperson identified some issues that he felt still needed to be addressed:
· No clarity exists on the relationship between the Executive Manager and the Municipal Manager.
· How does one differentiate between a councilor and an official.
· Salaries of Municipal Managers
· Performance contracts of Municipal Managers
· Questions relating to delegation
· Ministerial interference in Bargaining Councils

MINUTES
Chapter 6: Performance Management
Part 1: General
Clause 35: Establishment of performance management system
The Chair, Mr Carrim, noted that the Department had included all the changes that they had recommended and that he was impressed by the manner in which they had done them.

Clause 36 and Clause 37: Development of performance management system, Monitoring and review of performance system
The committee accepted these clauses.

Part 2: Core components of performance management system
Clause 38: Core components
The committee accepted this clause.

Clause 38(A): Community involvement
The Department stated that this clause addressed the need for community involvement in the development and implementation of the municipality's performance management system, as well as being involved in the setting of the municipality's Key Performance Indicators (KPI) and Performance Targets (PF).

Ms Borman (DP) asked how exactly the community could participate in giving effect to KPI. The Department answered that this would be left to the municipality to determine. They added that when the municipality set up their IDPs they must also formulate their KPIs.

Clause 39: General key performance indicators
Subclause 39(1)(a)
Ms Borman (DP) asked if the words 'after consultation' and not 'in consultation' should be used. The Chair stated that 'in consultation' would create a positive obligation on the Minister to consult with the MECs when passing regulations prescribing KPIs.

Subclause 39(1)(b)
The committee expressed their concern over the provisions here but agreed to comment on it at a later stage.

Subclause 39(2)
This was to be referred to the 'technical sub-committee' (comprising Mr Smith, Mr Bhabha and the Department). The reason being that it is linked to the problematic subclause 39(1)(b).

Clause 40 Notification of key performance indicators & performance targets
The committee accepted this clause.

Clause 41 Audit of performance management
The Department explained that the clause provides for the Auditor General to audit the municipality in terms of its KPI and whether they had achieved what they had set out to do.

Mr van Deventer (NNP) wanted clarity on whether it is the performance management that is being audited. The Department stated that the aim of the audit is to verify that the municipality has done what they had set out to do.

The Chair was not convinced that the clause should be included in the Bill as yet and wanted the Department's financial experts to come to the committee and explain fully the ramifications of such an audit.

Clauses 42, 43, 44, and 45: Annual reports, Adoption and publication of annual report, Reports by MEC and Reports by the Minister
The committee accepted these clauses.

Clause 46: Regulations
The committee reached consensus on the inclusion of Subsections 46(a)-(e) in the Bill. However they had reservations on the inclusion of Subclause 46(f). The Chair felt that the inclusion of the word 'internal' before the word 'auditing' in (f) would make the subclause more acceptable.

Chapter 7: Local Public Administration and Human Resources
Mr Bhabha replaced Mr Carrim as chair for the rest of the meeting. Mr Carrim identified some issues that he felt needed to be addressed by the committee:
· No clarity exists on the relationship between the Executive Manager and the Municipal Manager.
· How does one differentiate between a councilor and an official.
· Salaries of Municipal Managers
· Performance contracts of Municipal Managers
· Questions relating to delegation
· Ministerial interference in Bargaining Councils

Part 1: Basic principles
Clause 47: Basic values and principles governing local public administration (deleted)
The Department stated that the provisions of this clause have been included in Clause 5(a) in this Working Document. The committee however feels that these provisions need to be redrafted in order to capture the basic values and principles.

Clause 48: Organisation of administration
The Chair informed the committee that subclauses 48(a), (b) and (c) had been taken out by the 'technical sub-committee' and inserted in Chapter 2.

Clause 49: Inconsistency with applicable labour legislation
The committee accepted this clause.

Part 2: Structures, functionaries and roles
Clauses 50 and 51: Roles and responsibilities, Municipal Managers
The committee had concerns relating to these clauses and as a result the Chair referred them to the 'technical sub-committee' to sort out.

Clauses 52 and 53 - accepted by the Committee.

Part 3 - Delegation System
Clause 54 Delegations
Mr Bhabha said there might be a problem where a ward system is being used and a municipality is so huge that it requires decentralisation of administration as this would require some element of political decentralisation as well. He said there might be a problem that the link would only be between the Chief Executive Officer, district manager and the managers and that a political link would not exist and this would pose problems of accountability. He suggested that a political link be looked at with the managers.

Clause 55 Delegation of certain powers to councillors or officials disallowed
The Department explained that such a clause is needed to restrict the delegation of the decision of the district manager to appoint personnel. The Committee agreed that such a formulation is necessary.

Clause 56 - accepted by the Committee.

Clause 57 Appeals
Mr Bhabha said the problem with appeals was that they were previously made to the person whose decision was being challenged. Two optional formulations were then proposed to deal with the problem.

The Department gave a brief outline of the three formulations as they appear in the Working Document:
- Where the appeal is against a decision taken by a staff member other than the municipal manager, the municipal manager is the appeal authority;
- Where the decision is taken by the municipal manager, the executive committee or executive mayor is the appeal authority, or, if the municipality does not have an executive committee or executive mayor, the council of the municipality is the appeal authority;
- Where a decision is taken by a structure or functionary or a councillor, the municipal council is the appeal authority where the council comprises less than 15 councillors; or a committee of councillors who were not involved in the decision and appointed by the municipal council for this purpose is the appeal authority where the council comprises more than 14 councillors

Mr Sithole said his experience is that in such appeals the person who took the decision in the first place conferred with his superiors over the phone. He said he foresees a problem of conflict of interest with a situation where a person who hears the appeal is the same person who gave instruction for the decision to be taken. He suggested that the formulation of the provision should guard against such a situation.

Mr Sithole added there needs to be a time frame to say an appeal must be dispensed with within a certain period to remove uncertainty on the part of the affected official.

Mr J Ngubeni (ANC) reminded the member that there are cases where an investigation needs to take place and in such instances it is not possible to put in time frames.

The Department said a formulation that is found in a number of statutes may be inserted to say the appeal must be dispensed with within "a reasonable time".

The Chairperson said that drafters should look at a formulation to say the appeal body must sit within six weeks and that it should table its decision within a reasonable period.

Clauses 58, 59, 60 - accepted by the Committee.

Part 4: Staff matters
Clause 61 - Staff establishments
The Department pointed out that the reference in section 61(1) to the Employment Equity Act should actually appear in clause 62(1).

Mr D Sithole (ANC) suggested that it state that approval of a staff establishment by the municipal manager should be in line with labour legislation in clause 61(1).

The Department said staff establishment is an internal matter and it is hard to see why such a requirement should be imposed as internal requirements will dictate the staff establishment in a municipality. The Department also pointed out that Clause 49 carries an overriding provision saying in case of inconsistency between labour laws and this chapter of the Bill, the labour legislation prevails.

Mr Sithole said a formulation to say "in line with labour legislation where applicable" should be looked at.

The Department said Labour had a problem with clause 6(1)(c) because it felt the use of "align" suggests an alteration or a taking away of something that already exists, hence the Department proposes the use of the word "attach". A formulation to say "attach to those posts remuneration and other conditions of services on the staff establishment" was agreed on.

Subclause 61(2)
The Department felt that "systems and appropriate procedures" should be retained in the Bill since a municipality deals with systems.

Clause 62 - Human Resource Development
Subclause 62(1)(c)
The Department said there is a feeling that the word "control" is fascist and that "management" should replace it.

Sub-clauses 62(2) and 62(3)
It was agreed the word "systems" be retained.

The Department said "recognised union" is an old order term no longer used in legislation and that in clause 62(4) "trade union" is more appropriate.

Mr Sithole said it is not automatic that every trade union should be recognised but it should be representative according to the thresholds set by the Labour Relations Act. The Committee agreed that "representative trade union" should be retained in the clause.

Clauses 63 and 64 were accepted.

Clause 65 - Code of Conduct to be provided to staff members
Mr Sithole suggested that a provision be added to say a copy of the Code of Conduct must be prominently displayed on notice boards.

The Committee agreed that a formulation to say the code needs to be prominently displayed should be looked at. A suggestion was made that those parts of the Code of Conduct that relate to the relationship with the members of the public should also be displayed in a prominent place. The Committee gave the drafters instruction to look into the required formulation for the provision.

Part 5: Miscellaneous
Clause 66 Regulations and guidelines
- accepted by the Committee.

Chapters 8 and 9
The Committee held over discussion on these chapters.

Chapter 10 Provincial and National Monitoring and Standard Setting
The Department explained that this chapter was brought about by the need to regulate interventions from provincial government to the local level. The Department felt that there needs to be reference in the chapter to section 35 of the Municipal Structures Act and the Constitution.

Chapter 11 Legal Matters
Clauses 101, 102, 103, 104, 105, 106 and 107
- accepted by the Committee.

Clause 108 - Public servitudes
The Committee agreed to omit "of the council" from the clause.

Chapter 12 Miscellaneous
Clause 111 Offences and penalties
The Committee felt that it needs a way to prevent unscrupulous persons from coming back to a municipality but that a better formulation to say how it should be done is needed to bring the clause in line with the Constitution. The Committee agreed to flag the clause to be dealt with at a later stage.

Clause 112 - Regulations and guidelines
Subclause 112(2)(d) and (e)
The Committee agreed to flag these to be dealt with at a later stage.

Subclause 112(3)
The Chairperson believes this clause needs to be linked to subclause 111(1).

Clauses 113, 114, 115 - accepted by the Committee.

The meeting was adjourned.

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