Municipal Structures Amendment Bill: stakeholder engagement

Meeting report

SALGA on Municipal Structures Amendment Bill [B19-2018]

Mr Rio Nolutshungu, Executive Director: Municipal Institutional Development, South African Local Government Association (SALGA) said the entity had had the benefit of forming part of the all-inclusive technical team that considered proposals for various pieces of local government legislation. It had also had the benefit of participating at the political level with Cooperative Governance and Traditional Affairs (COGTA) Ministers and Members of Executive Councils Meeting (MinMEC) in the processing of the draft Bill. Several SALGA proposals had been incorporated in the Bill, and it would assist in strengthening governance in municipalities.

SALGA, however, had several suggestions and comments on the draft Bill. SALGA had resolved to:

• Support the insertion, deletion and substitution of the definitions as proposed for “declared elected”, “district management area” and “election”;
• Support the insertion of a new definition of “whip”, with the exception that a similar practice, as at national and provincial level, should apply for local government through the recognition of the appointment of whips at a political party/political interest level and a single “Chief Whip” or “Council Whip” as elected by the Municipal Council. 
• Support the deletion of Section 6 and all reference to “district management area”.
• Support the deletion of Sections 7 (c), 9 (e), 9 (f) and 10 (c) and all reference to plenary type municipalities.
• Oppose the deletion of Section 12(4)(a) and Section 16(3)(a)

Considering the broader implementation implications, it may be necessary for these amendments to come into effect only with the next local government elections

Section 29 of the Act provided for the Municipal Manager to convene the first meeting of the Council. The same principle should apply where the Speaker refused to convene a Council meeting as requested by a majority of Councillors. As such, the following amendment is proposed:

• “If the speaker or acting speaker refuses to call a meeting of the Council as requested in terms of subsection (1), the municipal manager of the municipality or, in the absence or refusal by the municipal manager, a person designated by the MEC for Local government in the province may designate a person to call and chair the meeting”.

In addition, SALGA proposes the following functions to be allocated to speakers:

• They must ensure the effectiveness and functionality of Ward Committees;
• Must ensure the performance of ward councillors and Ward Committees; and
• Must ensure the meaningful participation of Traditional Leaders in Council.

The nature, stature and authority of Municipal Public Accounts Committees (MPACs) should be very similar to the Standing Committee on Public Accounts (SCOPA) at the national and provincial legislature level.

Discussion

Mr K Mileham (DA) commented that the Committee had not been briefed about the Bill by the Department, so they still did not know the COGTA’s views. He suggested the Department first present to the Committee before Members asked questions to the other presenters.

The Chairperson clarified that the Department had in fact presented the Bill to the Committee on 19 May 2018.

Mr Dan Mashitisho, Director General, Department of Cooperative Governance and Traditional Affairs (Cogta) added that there were two pieces of legislation. The Systems Act had been the subject of a briefing in May 2018, but the Structures Act would be briefed at the current session.

Mr Mileham complained that “we are trying to bulldoze this legislation through, but further down the line, it will be subject to constitutional review.”

COGTA KZN on Municipal Structures Amendment Bill [B19-2018]

Mr B Duma, Cogta, KwaZulu-Natal (KZN), presented the provincial Department’s comments on the proposed Bill and apologised for submitting an unsigned document. The reason was that the Member of Executive Committee (MEC) was travelling, but he promised to have the document signed and submitted to the Committee within the following week.

The proposed amendment to section 20 provided for a minimum of 15 councillors, compared to the previous minimum of three. It was submitted that this may lead to undesirable implications as there would be an increase of at least 22 councillors for KZN alone. This could have a significant cost implication for relevant municipalities, as most of the municipalities were small, rural and financially constrained;

It was noted that it was proposed that section 20(4) of the current Act be substituted by a new clause which provided that a deviation of the determination of the number of councillors by an MEC was restricted to a deviation of not more than 20% if the geographical size of the municipality was greater than 20 000 square kilometres, and it had fewer than 35 councillors. In terms of this proposed amendment, it appeared that an MEC may not decrease the number of councillors, as provided for in terms of the current Section 20(3)(b) of the Act, as the new subsection (4) provided for a deviation only in the number of councillors based on geographical size of more than 20 000 square kilometres. In a municipality of less than that size, a deviation would no longer be possible. It was therefore submitted that the proposed amendment should be amended to provide for a deviation as envisaged in the current sub-section (3)(b) of the Act.

The Department suggests that section 27(e) of the current Act be amended by the insertion after the word “replaced”, of the words “in terms of Item 23 of Schedule 2 to this Act.” This was to ensure that there was certainty on local representatives to district councils and to clarify that such a replacement did not entail a re-election. It was suggested that Clause 15 of the Bill, which required public notices of council meetings, be extended to meetings of other committees of council, as these were also open to the public.

Section 139 of the Constitution had been amended during 2003 to provide for a procedure for a provincial government to intervene in local government.  However, the current section 34(3) and (4) of the Act did not fully address the 2003 Constitutional amendment of section 139, as the sections still provide the MECs responsible for local government with a prerogative to dissolve a municipal council, although reference is made in the section to section 139 of the Constitution.

Clause 18 of the Bill is supported, however. It is submitted that this section should be amended by the insertion of subsection (k) to section 37 of the Structures Act, to provide that the Speaker is responsible for the community participation function, including the election and effective operation of ward committees. There is currently no custodian for this function in the current legislative framework. In KwaZulu-Natal, it had become an established practice for Speakers of councils to lead the public participation processes, particularly those surrounding the establishment and functionality of ward committees. However, this was met with challenges in some municipalities as it was not prescriptive. It had therefore become extremely difficult to hold the Speakers of councils accountable for such matters.

The Department suggested that the proposed Section 79A (3) be amended by the inclusion of an additional sub-section (f), to provide for additional functions of the Municipal Public Accounts Committee, which would read: “(f) Exercise oversight over the executive and administration of the municipality”. This was to allow the Committee to effectively exercise an oversight role without being limited to the instructions received from Councils.

The proposed Item 17A(1)(e) of Schedule 1 should be amended to include “14 days” at the end of paragraph 18(1)(c) to allow MECs responsible for local government to inform the chief electoral officer of a vacancy within 14 days, if the municipal manager does not. As for the rest of the Bill, where there are no comments, the proposed amendments to the sections are fully supported by the Department.

Municipal Demarcation Board (MDB) on Municipal Structures Amendment Bill [B19-2018]

Mr Dube continued to outline the Municipal Demarcation Board (MDB) comments on the Municipal Structures Amendment Bill [B19-2018]. The promulgation and date of effect for this legislation must be considered, in that the MDB expects the publication of the formula for councillors by the Minister in April 2019, after which the ward delimitation would begin. There might be negative implications on the wards’ public participation process if suddenly municipalities who never qualified to have wards now had wards. The promulgation must be expedited before the ward delimitation starts, or delayed until after the next general election.            

It would have been prudent and beneficial if this Bill was considered parallel with the Demarcation Amendment Bill, to ensure that certain sections that are either deleted or repealed from this Bill do not leave a policy or legislative gap re-MDB mandate. (An example would be given regarding de-linking in sec 85 sub-sections 3, 4 and 5 of the Principal Act).            

Municipalities that have fewer than seven councillors do not qualify to have wards, but with these amendments, there would no longer be any municipality with fewer than seven councillors. All municipalities would qualify to have wards delimited. This amendment renders section 22 (4) redundant and therefore the MDB agrees with the deletion of section 22(4), as proposed. The MDB agrees with the proposed amendment as it caters for sparsely populated municipalities who would most likely have more wards because of having more councillors. However, an increase in the number of wards means more changes to existing wards.            

The MDB previously held an opinion that sec 89 be repealed. However, in view of the continuing discussions regarding the role of districts, the two-tier system and the wall-to-wall municipalities, the MDBs is of the view that this provision be retained until the finality of the discussion on the architecture of the Bill. It is important that the process be instituted to ensure that this Bill and the Municipal Demarcation amendment Bill are considered simultaneously.     

The rationale provided when the Department was engaged, was to ensure that all provisions that directed the work and mandate of the MDB were consolidated into a single piece of legislation. It is the MDB’s view that the Committee should consider the promulgation and date of effect of this Bill. It is also recommended that the Committee consider the points raised regarding:

• The linking of sub-sections 3; 4 and 5 of section 85, in that if sub-sections 3 and 4 are deleted, what would the MEC be disagreeing with in subsection 5?
• The migration of all these sub-sections into the Municipal Demarcation Amendment Bill.
• The migration of section 2 of the Principal Act to the MDA. An interim solution is found if the Bill is not considered with the Municipal Demarcation Amendment Bill to ensure there is no vacuum.
• That the repeal of section 89 be delayed until the discussion on the architecture of local government (LG) is finalised by the Department.

Discussion

Mr Mileham asked why there was a proposal for a minimum number of 15 councillors for wards instead of the current three. The number 15 seemed arbitrary and there had been no financial analysis on the effect of increasing this number.

Mr E Mthethwa (ANC) said the three presentations needed to be linked together to see where the three bodies differed.

Mr N Khubisa (NFP) agreed with Mr Mthethwa that interrogating each presentation in a piecemeal manner would be a waste of time.

The Chairperson said that it was problematic that the calculation of seats was so complicated and complex, that one would need a professor to help them determine how many seats were entitled to whom. People often confused the popular vote and the constituency vote.

Mr Mthethwa asked whether it was common practice for the Municipality Manager not to inform of vacancies. He wanted to know whether the latest amendments were captured in the documents and presentations given.

A COGTA delegate said that a failure by Municipality Managers to inform of vacancies had happened in several municipalities over the years, but it usually had a political angle or vested interest.

Mr Mileham asked for clarity on the process going forward, and whether the Department would still be available to answer questions that came from the Committee.

The Chairperson said that the Western Cape provincial administration would present to the Committee the following day, and there would be an opportunity to interrogate them. He added that the MDB and SALGA were either based in the Western Cape or had local representatives that would still be available to answer the Members’ questions after the three documents were combined and analysed to see where the three bodies differed. He commented that most political parties were not happy with the formula for the allocation of seats, and there was therefore a need to explain that procedure in detail at future sessions.

The meeting was adjourned.