Constitutional Court Judgement on Local Government: Municipal Systems Amendment Act

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Cooperative Governance and Traditional Affairs

03 May 2017
Chairperson: Mr M Mdakane (ANC)
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Meeting Summary

The Department of Cooperative Governance and Traditional Affairs (COGTA) briefed the Committee on the Constitutional Court judgement on the Local Government Systems Amendment Act of 2011. In 2011 the Department introduced a Bill which subsequently became law and at that time it was called the Municipal Systems Amendment Bill. The Department was proposing subsequent major amendments to that Bill.

The amendments covered the definition of the term ‘municipal manager’ and ‘political office’. It also covered the criteria to appoint a municipal manager and senior managers and the expertise and competencies required. It further addressed the role that the municipal council should play once a senior manager was appointed; that municipal managers and senior managers had to sign an employment contract within 30 days; the employment of dismissed staff; the duty of a municipal manager to develop and submit an organogram to municipalities; and that the Minister had the right and responsibility to develop uniform norms and standards to be applied in local government.

The proposed amendments also stated that organised local government had to consult with the Financial and Fiscal Commission (FFC) and Ministers before going to the Bargaining Council and that all municipalities had to budget for capacity building of staff. It also proposed giving the Minister power to institute investigations where there were allegations of financial misconduct and the MEC failed to act to investigate the matter within 90 days and that councillors could not vote against any legislation applicable to local government. The proposed amendment also dealt with the limitation of political rights of managers, because of the perceived political instability in municipalities. This latter point was the only substantive matter that was challenged by the South African Municipal Workers Union (SAMWU) as being unconstitutional. The Court did not rule on this matter, only on the incorrect tagging of the bill and suspended its ruling for 24 months for the tagging to be corrected. It also ruled that there would be no retrospectivity attached to the judgement. It was now up to the Committee to decide the way forward. The South African Local Government Association (SALGA) was calling for further amendments arising from challenges in implementing the Bill. If this was also taken into account the process might take longer than 24 months, thus falling foul of the court deadline and the entire statute would disappear.

Members asked whether the Bill was deemed unconstitutional on major issues or on technical grounds and why the Bill was tagged as Section 75 as municipalities were clearly involved in the Bill. Members also wanted to know what the implications of the Constitutional Court judgement were and how SAMWU had communicated after the judgement was delivered. SAMWU would probably take the matter to court again after the tagging had been sorted out and the court had in a sense referred the substantive issue back to Parliament for a resolution. The tagging of the Bill was easily accomplished but the substantive issue was a political rather than a legal issue that needed to be dealt with soon. Members asked if there had been similar cases heard by the courts on the politics of a bill and proposed that SAMWU be invited to a Committee meeting to hear their views on the issue. Members supported the call for SAMWU to be invited to a meeting because it would be interesting to know how SAMWU was dealing with procedural matters in the amendments. 

Meeting report

Department of Cooperative Governance and Traditional Affairs (COGTA) on the Constitutional Court Judgement on Local Government: Municipal Systems Amendment Act

Mr Tebogo Motlashuping, Acting Deputy Director-General, COGTA, gave background on the work done by the Department up to the time judgement was given. In 2011 the Department introduced a Bill which subsequently became law. At that time, it was called the Municipal Systems Amendment Bill. There were subsequent major amendments that the Department proposed.

The first amendment proposed, was defining the term ‘municipal manager’ to bring it into line with the Structures Act, as well as defining the term ‘political office’. 

There was an insertion into section 54(a) of the Systems Act, putting forward the criteria to appoint a municipal manager and the expertise and competencies required. The Department also clarified the processes and role that council should play once a senior manager was appointed and a report had to be submitted to the MEC and subsequently to the Minister. This amendment was intended to provide checks and balances and allowed the MEC and Minister to look into appointments and whether appointments had been done correctly and whether processes had been followed.

The Department had also substituted section 36, regarding senior managers, being accountable to municipal managers, and whose appointments would follow the same criteria and processes as that of municipal managers.

Section 54(a) and section 56 was introduced and it dealt with the limitation of political rights of managers, because of the perceived political instability in municipalities. Municipal managers and managers accountable to the municipal manager may not hold political office. This was the only substantive matter that was challenged by SAMWU as being unconstitutional and proposed to be removed.

Section 57 was also amended such that municipal managers and senior managers had to sign an employment contract within 30 days. Failure to sign within 60 days made the appointment null and void.

Section 57(A) was inserted and dealt with the employment of dismissed staff.

Section 66 was amended to call for municipal managers to develop and submit an organogram to municipalities.

Section 67 was amended giving the Minister the right and responsibility to develop uniform norms and standards to be applied in local government.

Section 71 was amended so that organised local government had to consult with the FFC and Ministers before going to the Bargaining Council.

Section 72 was amended to fortify section 67 such that all municipalities had to budget for the capacity building of municipal staff.  

Section 106 was amended giving the Minister power to institute investigations, where there were allegations of financial misconduct and the MEC failed to act to investigate the matter within 90 days.
 
On voting in meetings, the Department were of the opinion that councillors could not vote against any legislation applicable to local government.

Parliament voted in favour of the amendments and the challenge to it was raised in court regarding the tagging and the issue of the political office of senior managers.

Discussion

The Chairperson asked whether the Bill was unconstitutional on major issues or on technical grounds.

A Department official replied that when the Constitutional Court made its decision, it had focussed only on the tagging of the Bill and not on the substantive issues.

The Chairperson asked why the tagging had been done as Section 75 since municipalities were clearly involved in the bill.

Adv Frank Jenkins, Senior Parliamentary Legal Adviser replied that the principal Act had already been tagged as Section 75. The Bill dealt with conditions of service and the tagging had occurred just after the Tongoane judgement by the Constitutional Court which was regarded as a watershed case on how to tag a bill. The Bill dealt with municipal issues and the Constitution was clear that public servants in the municipal sphere did not constitute public administration or public service therefore it had to be tagged as Section 75. After a few of these rulings the State Law Office was erring on the side of caution and bills were tagged as Section 76. The Constitutional Court said it had to be Section 76 because of section 195(3) dealing with the values and principles governing public administration.

Mr A Masondo (ANC) asked what the implications were.

Adv Jenkins said the Constitutional Court had been asked to suspend the invalidity judgment for 24 months and that there was no retrospectivity attached to the judgement. The Constitutional Court had agreed to this. This meant Parliament had 24 months to put through a new amendment bill. The Committee could do this through the redrafting process or the Department could present legislation.

Mr Masondo asked how SAMWU had communicated after the judgement was delivered.

Adv Jenkins said SAMWU’s main issue was section 56(a) which it wanted excluded from the suspension. The tagging issue was an afterthought to the main issue. The substantive issue was a concern because it was “the elephant in the room”.

The Chairperson said SAMWU would probably take the matter to court again after the tagging had been sorted out. The court had in a sense referred the substantive issue back to Parliament for a resolution. The tagging of the Bill was easily accomplished but the substantive issue was a political rather than a legal issue that needed to be dealt with soon.

Mr Masondo asked if there had been similar cases heard by the courts on the politics of a bill.

Adv Jenkins said the state’s counsel had the view that the state was on thin ice regarding section 56 and he asked if there was not a less restrictive way to get municipal managers to be accountable.

The Chairperson said SAMWU had to be invited to a Committee meeting to hear their views on the issue and the State had to get a legal opinion also.

Mr E Mthethwa (ANC) supported the call for SAMWU to be invited to a meeting because it would be interesting to know how SAMWU was dealing with procedural matters in the amendments.

Ms Lorette Tredoux, Executive Director: Governance and Inter-Governmental Relations (IGR), SALGA, said SALGA had indicated to the Department that there were some implementation challenges regarding the Amendment Act which might need a relook. It would not help to change the regulations if the principal Act was not changed. She felt that issues might be more than just section 56 and SALGA had indicated that there were other sections it might want revisited.  

Mr Motlashuping said the Department was arranging an urgent meeting with SALGA and the technical team of Parliament on taking a decision on the process to be followed in response to the Constitutional Court directive. In the last MinMec of COGTA the feeling was that it did not want to cloud addressing the Constitutional Court directive with other matters that would make it more difficult to achieve. The Department would however continue to engage with stakeholders on other amendments to the Act and develop a problem statement.

Adv Jenkins said the entire statute would disappear after 24 months and all regulations would fall away if the matter was not finalised within 24 months and that a new bill would take longer than 24 months to process. The re-tagging could be done and the critical implementation issues and the section 56 issue could be dealt within 24 months.

The Chairperson said the Committee would make a decision on meeting the deadline.

Ms N Mthembu (ANC) said it made sense for the matter to be dealt with in-house by Parliament to ensure the deadline would be met.

The Committee then discussed the Committee’s draft program for the term which was accepted.

The meeting was adjourned.

 

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