The Department of Cooperative Governance (DCG) and the South African Local Government Association (SALGA) briefed the Portfolio Committee on the comments that had been made on the Municipal Structures Amendment Bill.
The Northern Cape had proposed a definition for the Municipal Public Accounts Committee (MPAC), and wanted it to be accepted because it followed the logic of the ward committee as it was presently defined in the Structures Act. The Committee proposed that the definition of the MPAC should be broadened, and that it should be specific about holding municipal officials and municipal councillors to account.
The second clause dealt with District Management Areas (DMAs). The only stakeholder that had a problem with the deletion of the reference to DMAs was the Municipal Demarcation Board (MDB). The comment they made was that a review of the local government architecture was taking place, and therefore the DMA should be retained. The Committee failed to understand why the MDB had objected to the removal of the reference to MDAs from the Structures Act, given that MDAs were no longer in existence and there were no plans to reinstate them.
Clause 16 dealt with the amendment to section 30 with regard to quorums and decisions. The understanding was that the majority of councillors, determined in terms of section 20 and present at a meeting in council, constitute a quorum before a vote may be taken on any matter. However, the clause did not go far enough in requiring that the quorum be checked when the vote was taken. The Committee suggested that there needed to be some way to force the Speaker to make a determination for each vote as to whether or not there was a quorum in the room.
In clause 18, section 37 dealt with the functions of Speakers. SALGA and the Free State proposed three additional sub-paragraphs which dealt mainly with public participation in relation to ward committees, ward councillors, and the participation of traditional leaders. One of the proposals was that the Speaker should be responsible for the performance of ward councillors. A Member had a problem with this proposal, saying it was not the job of the Speaker to determine whether councillors were doing their job. That was the job of the electorate.
Municipal Structures Amendment Bill
Dr Kevin Naidoo, Executive Manager: Municipal Governance: Department of Cooperative Governance (DCoG), and Mr Granville Abrahams, Senior Manager: Independent Electoral Commission (IEC), briefed the Committee on the comments on the Municipal Structures Bill.
On clause one, which deals with the definitions, there were proposals from the South African Local Government Association (SALGA), the Free State and the Northern Cape. The SALGA-Free State proposal dealt with a whip for a party, as well as a single council chief whip. On this specific clause, the Northern Cape proposed the definition for the Municipal Public Accounts Committee (MPAC). They wanted this to be accepted because it followed the logic of the ward committees presently being defined in the Structures Act.
The second clause dealt with District Management Areas (DMAs). The only stakeholder that had a problem with the deletion of the reference to DMAs was the Municipal Demarcation Board (MDB). The comment they made was that there was a review of the local government architecture that was taking place, and therefore the DMA should be retained. The Department's position was that the proposal to remove the reference to DMAs should be retained.
Clause 16 dealt with the amendment to section 30 around quorums and decisions. The Department's position was that it should be retained. However, the Western Cape requested clarity on what number of councillors must be considered for a quorum.
Clause 18, section 37 dealt with functions of Speakers. SALGA and Free State proposed three additional sub-paragraphs which dealt mainly with public participation in relation to ward committees, ward councillors, and the participation of traditional leaders. The Department's position was that they should be accepted, because it aligns itself also with the proposals that were made by KwaZulu-Natal.
In clause 19, there were new sections 41A to 41F, that dealt with whips of the municipal councils
Mr K Mileham (DA) suggested that if the meeting was going to be in the form of a clause by clause discussion on the amendment bill, the Committee needed to have the version of the bill that was being considered -- the one with definitions, such as that of the Municipal Public Accounts Committee (MPAC), for example.
He proposed that the definition of the MPAC needed to a bit broader than what was proposed. It had to be specific to holding municipal officials and municipal councillors to account. It should have certain rights and functions, and there was need for a section in the Act that defined what the powers and functions were. All that had been done at this point was to say that they were a section 79 committee. It had to be a bit more defined that.
He commented that in the document, Consolidated Summary of Oral and Written Submissions, the Western Cape had pointed out that if the definition of whip was going to be inserted, there was a need for a consequential amendment to the definition of a political office bearer. He wondered why there had been no comment on that.
Dr Naidoo responded that the Department did not have the bill that incorporated the changes. There was no version that provided the definition of the whip, or of the MPAC. There was an entire section, a new 79(a) that deals with the MPAC. The definition of a whip was provided in the schedule to the Structures Act, which deals with office bearers generally. Later, on in the bill, there was a section that provided the definition of a whip.
The Chairperson suggested that the meeting should just deal with issues that were very contentious. The definition of a whip and MPAC had never been a big a problem.
Mr Mileham had a query about clause 12 of the Amendment bill. Section 25 of the Principal Act, sub-section six, states: "A municipal manager may not call a bye-election in terms of sub-section three if:
(a) the next election of all municipal councils must be held:
(1) within nine calendar months of the applicable date;
(2) if it was a bye-election in a ward within six calendar months of the applicable date.”
He said that sub-clause two was confusing. When would one not have a bye-election in a ward? The understanding was that every single bye-election was in a ward. Therefore sub-clause two was redundant, because it was already covered in sub-clause one. It was not clear why sub-clause two should be added.
Mr Abrahams responded that sub-clause two specifically referred to 1(d), whereas sub-clause one referred to the A, B and C part of it. It did not necessarily refer to a bye-election in its normal sense. Clause A referred to the case where the electoral commission did not declare the result of an election. Clause B referred to when the court had set aside the election, and Clause C referred to situation where there was a dissolved council.
Mr Mileham said that a bye-election was defined being ward based. The only time there was a bye-election was if there was a ward vacancy. If there was a ward vacancy, then A, B, C or D would apply. He failed to understand the reason for splitting hairs on this. What was accomplished by splitting a bye-election from a bye-election in a ward?
Mr Abrahams clarified that the Department was trying to address that problem. Clause A referred only to where the IEC did not declare the result. It did not matter whether it was a bye-election in a ward. It referred only to a case where the IEC did not declare. Clause B referred to where the court set aside the election, so it did not speak to a bye-election in the normal sense. Clause C talked to a dissolved council, which was the entire municipality. It also did not speak to a ward bye-election in normal the sense. Therefore, D had been introduced. While the intention was that the same applied as for A, B and C, it was not currently covered. There was a need to incorporate D into either A, B or C.
Mr Mileham disagreed with that. Clause three said that the municipal manager must call and set a date for a bye-election. It then says within 90 days of the date, and it specifies A, B, C or D. That was what gave raise to the bye-election. Then In clause six, he may not call a bye-election within nine months of the date of the national election in terms of A, B or C, or within six months in terms of D. It was not clear why D was different. Why was D different from A, B or C?
Mr Abrahams said that the Department and the Committee agreed about what was expected to be achieved. The Department would have a look at the issue, with the assistance of the state law advisor. In essence, the Department and the Committee wanted to achieve the same thing.
Mr Mileham failed to understand the Municipal Demarcation Board's objection to removing MDAs from the Structures Act. Were there any plans to reinstate DMAs? It was obvious that DMAs were not going to be reinstated, because they caused more administrative hassle than they were worth. What was the MDB's objection to removing it from here, when the MDAs were not in existence and there was no plan to have them in existence? The Demarcation Act was going to be amended anyway in the near future. Why the would they object to taking it out of the Structures Act?
Dr Naidoo was not sure if reference was made to the DMA in the Demarcation Act. It might have been removed. There were no DMAs – they had all been done away with by the Demarcation Board. Reference to DMAs in the Property Rates Act had also been removed. The substance of the position was because there was work being done around the architecture of local government. For the Department, that was not enough motivation to still have it there. If the architecture comes up with a different model, it could not be called DMA, but could be called something else. At that time it might be desirable to have in the legislation the appropriate terminology. Therefore, the Department was of the view that reference to the DMA be removed.
Mr Mileham had problem with clause 18 of the amendment bill, specifically with the proposal from SALGA and the Free State. The proposal was to make the Speaker responsible for the performance of ward councillors. There was a problem with this. The Speaker had no authority to determine whether or not a ward councillor was or was not doing their job. That was up to the electorate to decide. The Speaker had the responsibility to oversee the well-being of councillors and to ensure the smooth operations of council, but performance management was outside the mandate of a Speaker.
He was concerned about the wording about public participation. There was an overlap with the municipal administration and with the office of the mayor, all of whom had their own public participation responsibilities. There was need to decide where the ultimate responsibility for public participation lay. He argued that, it was not with the Speaker, because the Speaker had no executive role in council. It must either be with the mayor or the municipal manager to make it happen. The concern was that the Speaker would be interfering with the administration of the municipality if he or she was responsible for public participation.
The Chairperson said that the Speakers currently facilitated participation in council, and also facilitated the setting up some ward committees. There seemed to be no problem having the Speaker perform that function. Although the Speaker was not a mayoral committee member, Speakers of the council did have the responsibility. So far, it was not causing harm to have it that way.
Mr Mileham said the issue was that to some extent, the Speaker was being set up as an alternative mayor. They were being given a certain amount of executive authority that they should not have. The Speaker's role was to chair the council, to make sure that council was operating smoothly, to be impartial, to ensure that council meets regularly, and that the council does its job. The Speaker's role was council. it should not be an administrative role or an executive role. It should not be a role where they were responsible for ensuring that the public participation process around the Integrated Development Plan (IDP) was in place. That was the function of the mayor. If this clause was put in, where the responsibility for public participation was a function of the Speaker, the mayors would get a “get out of jail free” card. as it would now allow them to say it was not their job to ensure that there was public participation around their budget, but that of the Speaker's. An unnecessary tension would be created between two political offices.
The Chairperson said that the comment made by Mr Mileham would be noted and would be revisited once the Committee had a clause by clause discussion of the amendment bill. The Department could only clarify how they think it should be working. It was already working in many areas, and it did not seem to be causing tension between the two offices. As it worked right now, it seemed very smooth and well managed. If a major problem had been observed, then there could be a discussion on it.
Mr J Dube (ANC) said that under the normal operation of a municipality, there was no conflict between the Speaker and the mayor. But in those municipalities where there was a coalition, they might have that problem. Normally, it was one party sharing responsibilities between a Speaker and a mayor. But in municipalities with a coalition, there might be a problem.
Mr Lance Joel, Executive Director: SALGA, said that the legislation was currently not clear on whose responsibility it was to drive public participation, including the process of engagement on the IDP and the budget of the municipality. Because there was no absolute clarity, there had been practices where Speakers were driving the public participation process. The Mayor was invited to come and present the budget. It worked very well, but there had also been a flip side of things. Because some people knew that there was no certainty in the law, the mayor would want to drive the public participation process. What then resulted was conflict between the mayor and the Speaker.
What SALGA wanted was for there to be certainty and removal of the conflict so that the public participation was driven through the office of the Speaker as an oversight function, and where the mayor would come from an executive point of view and present to that particular platform. According to the code of conduct, the overall champion of the code of conduct was the Speaker. It was the Speaker that drives discipline in a council. He was responsible for the conduct of councillors. The Speaker was the one who would table a report to council around certain councillors not meeting the code of conduct. The proposal was to take their responsibility a bit further. Although it was debatable, it certainly did add value in giving that responsibility to Speakers.
Mr Mileham said if the code of conduct was now being extended to cover the performance of councillors, the Speaker would be in a position to determine who was performing and who was not performing. That was not right, because it was for the electorate to determine. There was no word in the code of conduct about the performance of councillors.
The Chairperson suggested that the Department should be allowed to look at the issue and then come back to Parliament and debate it.
Mr Mileham said that clause 16 of the amendment bill was about determining the quorum. One of the issues related to when the quorum must be determined. There must be an attempt to address that problem. The clause says that the majority of councillors, determined in terms of section 20 and present at a meeting in council, constitute a quorum before a vote may be taken on any matter. However, it does not go far enough in requiring that the quorum be checked when the vote is taken.
The common practice was that when councillors walk into a council chamber, they find an attendance register. At that point, they are taken as being present at the council meeting. Whether or not they were present during a particular vote was not taken into consideration. The Speaker only asks if everyone agrees with a particular item, and no vote is taken, despite the fact that the Structures Act requires that a vote should be taken on the matter. Speakers fail in their duty because they do not actually take a vote. They do not ask how many were in favour and how many were against. They just operate by vague consensus. There needs to be some way to forces the Speaker to make a determination for each vote as to whether or not there was a quorum in the room.
The Chairperson agreed that it was an important point. He thought that the quorum of any meeting was present at the time a decision was made.
Mr Mileham asked for clarity on clause 19 of the Amendment bill -- whether it was just talking about a single whip of council being elected, and not bringing in the idea of party whips being elected. He suggested that there was the need to add the definition of a whip of council in the definition of political office bearers.
The Chairperson asked if Mr Mileham was proposing that the whip of the council would become part of the officials in a council.
Mr Mileham said that in section 41 (a) to 41 (f), he proposes that the office of the whip be established and that there should be a whip of council. Each municipal council with more than 40 councillors may elect a whip, so it was now important to acknowledge the position. Before, it was not a position that was not recognized -- it was a position that was there, but it was not an official position. Now it was an official position and there was a need to include it in the definition of political office bearers.
Mr Joel said that Mr Mileham was correct. In the amendment, the proposal was to formalise the informal. There was currently no legislative framework for whips. They currently formed part of the “troika,” which was the top three -- Speaker, mayor and the chief whip. Because political parties have whips, certainly SALGA’s view was that the position should not be called a “whip,” but rather a “single whip” or a “council whip” or a “chief whip.” This was because each political party would appoint their own whip, but there would be a single person that would hold the position of council whip, elected in council.
Mr Mileham said that the definition of a political office bearer was in the Systems Act. It says that the political office bearer means Speaker, Executive Mayor, Deputy Executive Mayor, Mayor, Deputy Mayor or member of the executive committee, as referred to in the Municipals Structures Act. The whip of council should be included in that.
Adv Frank Jenkins, Senior Parliamentary Legal Advisor, said that the important thing to remember was that the definition that had been referred to was the one that also guides the categories for the remuneration of political office bearers, to set out their annual payment. If it was not there, the whip of the council would be unhappy, because he or she would not be recognised for the job that they were asked to do. It was very important to keep that in mind, so the definition needs to be expanded.
Dr Naidoo proposed that the definition should be imported from the Systems Act into the Structures Act, otherwise there was still going to be a vacuum if it was amended through the Systems Act.
The Chairperson asked Dr Naidoo to work out something to put in the bill for the Committee to have the following day for the clause by clause discussion of the bill.
Dr Naidoo agreed that it would be ready the following day.
The Chairperson said that the Dr Naidoo and the team was going to work it out, and the following day the Committee would meet for a clause by cause discussion of the amendment bill. The advantage was that this meeting had dealt with many of the issues that had been problematic.
The meeting was adjourned
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