Municipal Systems Amendment Bill 2019: Eastern Cape & SALGA submissions; with Deputy Minister

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Cooperative Governance and Traditional Affairs

26 February 2020
Chairperson: Mr G Mpumza (ANC) (Acting)
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Meeting Summary

The Eastern Cape Department of Cooperative Governance and Traditional Affairs (COGTA) and the South African Local Government Association (SALGA) made recommendations about the 2019 Municipal Systems Amendment Bill based on their practical experience of local government.

Eastern Cape COGTA noted the need to address critical skills in rural municipalities; senior manager job descriptions and responsibilities need to be standardised; there were divergent views on holding political party office while being a senior manager; timeframes were critical for appointments and to prevent secondments; secondments created hostility and sabotage; MEC timely concurrence on appointments was a challenge.

SALGA proposals for specific clauses were:
• Clause 2 'Appointment of MMs and Acting MMs' was supported with the possible review of the timeframes given to the MEC to assess compliance with the Act.
• Clause 3 'Appointment of managers accountable to MMs' should be amended to read: “After consultation with Council, the MM appoints, as head of administration, a manager or acting managers directly accountable to the MM”. This section was also to be amended to include a provision for the appointment of an acting manager, including a MM, where the manager is incapacitated or unavailable for a limited period.
• Clause 5 ‘Limitation of Political Rights of MMs and managers directly accountable to MMs’, was supported, with the addition that the section should provide that no municipal employee, whether in a permanent, temporary or acting capacity, may hold political office in a political party.
• Clause 6 ‘Employment Contracts’ was supported, with addition to create certainty if there is a discretion to either appoint a manager directly accounting to the MM on a fixed term or permanent basis.

The ensuing discussion included: Section 106 investigations; capacitation of municipal managers (MMs); blacklisting; municipal appointment process; attracting scarce skills; streamlined educational qualifications; holding political office; political interference and political bullying; conflict of interest; secondment of municipal managers; intervention sabotage; Constitutional Court findings on 2011 Municipal Systems Amendment Bill ; independence and impartiality; concurrence on appointments by MECs; micro-management; municipal cadre deployment; distinction between administration operational staff and ministry advisory staff; accountability and consequence management; powers of municipal managers to appoint senior managers; selection panel; and performance reports.

Meeting report

The Acting Chairperson welcomed Mr Obed Bapela, COGTA Deputy Minister. In response to a Member's complaint, the Committee Secretary noted that the Eastern Cape submission had only been sent now and copies would be made for the Committee.

Eastern Cape Department of Cooperative Governance and Traditional Affairs submission
Ms Gabisile Gumbi-Masilela, Head of Department: Eastern Cape COGTA, said the submission focused on the broad issues; regulatory environment; observations and recommendations.

The Eastern Cape Department looked at the ripple effect they had when the regulations were annulled. There were a number of items that opened up floodgates due to unintended purposes. The interest in this has been that it is important for municipalities to attract skilled and competent managers and staff to drive the strategic thrust of the municipalities.

The limited regulatory framework prescribes the recruitment processes. There was a number of fights with SALGA on competency assessment. A competency assessment is necessary whether you wanted to go to national or provincial government. On the long reach in attracting skills and advertising nationally in newspapers so that a larger pool of skilled people is reached, educational qualifications had to be streamlined. People were increasingly seen asking for the Minister’s condonation on educational qualifications. However, in some of these areas there were serious challenges to do with the size of the municipality and the budget in terms of the three streams in the regulations. A challenge was where a smaller municipality wanted to attract services of an engineer but their budget only allowed them to employ someone with a technical qualification. The legislation needed to look at the regulations and whether value was actually being added for a rural municipality that never had municipal services and was starting its infrastructure from scratch. One needed someone who understood the standards required. The circumstances needed to be looked at to prevent the loss of money due to not having the right skills.

On Section 56 and 57 of the Act, job descriptions and responsibilities need to be standardised because the responsibility and functions of municipal managers (MMs) are the same. The MM recruitment panel needed to be explained in detail the role and responsibilities. Sometimes, there was a perception that, if you came from the Department and sat on the panel, you were just observing and could not advise on the process. There were diverging views on holding political party office. There was some value in precluding political party office bearers for people that would be serving the municipality, to address conflict of interest and the perception that communities would have. For objectivity, the party membership can be allowed but holding office was something that needed to be discussed as lack of role separation was a challenge as there were instances where judgement could be clouded by the party role that a person held. Thus, more emphasis was to be put on objectivity. On the secondment in terms of existing law, a municipality could ask an MEC to second somebody. As there was limited capacity in the Department between the number of municipalities and the department programmes in place. It was a costly exercise to find somebody to fill the position externally from a database kept for interventions. This was an unplanned exercise. If somebody external could not be found, somebody internal would be sent but the Department still had to look for staff which was not budgeted for as it was unplanned. An increasing number of these requests was experienced, which meant that this may result in no senior managers within the Department as they are seconded to all these municipalities.

When these people were seconded, in most cases they were met with hostility at the municipal level. The council resolution may have requested the MEC to send somebody, but the people that they worked with were hostile. This made work very difficult as work colleagues withheld information, there was sabotage, not doing what they are supposed to be doing and so on. There should be some guidelines for council, on how to manage the process when they ask for assistance.

There was also a challenge where one person was sent to a municipal environment, who was not an MM. As they would be exposed to so many things, they needed to be given backup which increased the cost of this person to operate and perform the functions. This person could not do everything that an MM did when getting support from others, as the seconded person did not have the support. This ate into the capacity of the Department. Municipalities had various challenges every day, and people needed to intervene from time to time. If someone was put on a secondment or loaned to another municipality, it meant that the municipality from which they came would be significantly affected. The Eastern Cape proposed that it would be efficient if COGTA was centralised and the districts were fully capacitated to provide support on an ongoing basis without having to be stuck in the process. As COGTA National looked at the structure of the provincial departments, these functions requested from the provincial department needed to be captured and dealt with on an ongoing basis.

On concurrence in the recruitment, there had to be a very deliberate section in the regulations which said what the concurrence was to achieve. This would allow the MEC to run the requisite checks. Currently, concurrence was requested after the person had already been appointed. Even if one were to come back and say that there were challenges about the appointment of a certain person, the person would go to court and would get paid because they could not just be dismissed. In such cases, concurrence did not serve the purpose that it was intended for.

Timeframes were critical. It was found that as soon the 90 days of not filling the post of a senior manager in a municipality lapses, then a request for secondment would be brought. There has to be a way of ensuring that there are consequences for not doing everything within the time period. Sometimes it was a case of having advertised and not finding the right candidate for the job, then having to go back and re-advertise – therefore causing the 90 days to lapse. There had to be a way to monitor this closely to ensure that it was unavoidable. Not filling a post was sometimes looked at as incurred savings. When asking for an external person placement, there was an expectation that COGTA would pay for that person acting in that capacity. This was problematic because it was unplanned and unbudgeted. The municipality insisted on using use their savings to pay for the people that were being provided in a support capacity.

On council agreements, the growing tendency of not paying the awards that come from council agreements lead to litigation. This litigation ate into the budget of the municipality. There needed to be regulations with specific timeframes to prevent financial burden and irregularity for municipalities that do not pay. A number of structures could not afford to pay interest paid because they ignored these awards from the council agreements, yet they were forced to go to court to pay for it.

Section 106 was a very difficult area that needed specific step-by-step requirements, regulatory timeframes and processes. This section stated that where there was suspicion it should be investigated. These investigations were costly and took a lot of time where people did not respond or not cooperate. When this was finished, the MEC was to give the council the recommendations to implement. However, none of these recommendations are implemented. This was a cost factor for the Department, but the investigation did not go anywhere. If the MEC does not have teeth then it means that there is no way that the process can go anywhere. Reports are then just shoved somewhere and never acted upon.

The Acting Chairperson called on the Limpopo Department to present, however, Limpopo had not yet arrived. He decided to allow Members to engage with the submission by the Eastern Cape Department.

Ms G Opperman (DA) said on Section 106 investigations in the Amendment Bill, more attention needed to be given to the empowerment and capacitation of the MEC. This would allow for investigations to follow suit and go more quickly. To prevent job hopping, systems needed to be put in place to prevent municipal managers (MMs) or Chief Financial Officers (CFOs) hopping from one municipality to the next while acting corruptly. There needed to be something like ‘municipal blacklisting’ to prevent hopping. If an MM or CFO acted corruptly in one municipality, their name is to be blacklisted so that they cannot be moved to another municipality.

On attracting skills, she came from a small rural municipality. These municipalities were in a disadvantaged position when offering competent salary packages. These individuals would complete their qualifications and leave for greener pastures. Small municipalities were merely used as stepping stones for career advancement – to the detriment of the municipality. There needed to be enforceable regulations. For example: if you study and you fail, you should pay for your studies; and if you study, you have to stay in the municipality for five years or longer or pay the amount incurred by your studies if you leave before. If you fail to qualify in the prescribed time you must leave, otherwise capacity in municipalities will forever be lost.

Ms H Mkhaliphi (EFF) sought clarity as her understanding was that the stakeholders from provinces were to help the process of deliberating on the Amendment Bill. If provinces were going to make generalised submissions, this was not going to help the Committee. For instance, when the Eastern Cape spoke about Section 106 of the Amendment Bill, they did not recommend anything but said that teeth needed to be put into the legislation. What did it that mean exactly? The provincial department was to come with their specific proposals in order for the MEC to have teeth. This was a very difficult situation because it was known that the environment was political. Even MECs and the Minister belonged to political parties. At some point, political decisions are taken when it comes to municipalities if a problem needs to be addressed. This was why the officials and legal department needed to help the Committee through the process.

On page 4 of the submission, the Eastern Cape agreed to holding political office. This was a bone of contention as people go to court on the basis that MM must be allowed to hold political office. This was a big challenge but Eastern Cape said that it was fine as long as there is no conflict of interest. She agreed on the Eastern Cape points about secondment of MMs. It is a costly exercise for provinces and the working conditions are made very difficult. This was why they want to strengthen the law and regulations. An individual could not be allowed to do this as this would also have an effect on service delivery because of selfish reasons. They were uncooperative as they were no longer in a managerial position and they would not give the information that needed to be given. Department capacity needed to be reworked from national to provinces. If the departments were not capacitated enough, this was where problems started. Going outside and getting skills in the form of consultants was very costly for the Department. This issue did not lie with the departments at a provincial level, it was a national department concern.

On page 7 on council agreements, Eastern Cape said the regulations need to be tightened. How? The Eastern Cape Department has to give the Committee critical proposals to find a way forward.

Mr B Hadebe (ANC) agreed about the Eastern Cape submission as it did not clearly outline what it was they were proposing. If one looked at the Limpopo submission, it was very clear – there was an amendment, an input and motivation. For example, on political office bearers, the Limpopo Department clearly and unequivocally stated that this section should be deleted and rendered not applicable. The Limpopo Department’s motivation was that the amendment was against the Constitution which enshrines that every citizen is free to make political choices. When it came to the Eastern Cape submission, this did not provide the Committee with a real sense of what they were proposing – this was a skeleton without flesh. It would be ideal if the Eastern Cape Department could at least restructure their input. The Committee did not want the public participation to be another compliance exercise.

On streamlined educational qualifications, he did not understand if the Eastern Cape Department was implying this for rural municipalities instead of applying the same qualifications as urban municipalities did. It was extremely difficult to attract skills that you would normally get urban areas. Was this what the Eastern Cape Department was trying to put across? Could he get clarity before continuing?

Ms Gumbi-Masilela replied that she was referring to an MM, whether in a smaller or bigger municipality. Yes, there was a difficulty in getting qualifications and skills in rural municipalities. Instead of lowering the standard, another mechanism needed to be put into the regulations on how to assist the municipality. It was challenges of budget and an inability to attract those people. Ways needed to be found to find the right people to do the job instead of allowing them to apply for condonation for the least qualified to do the job.

Mr Hadebe said that he fully agreed with the Eastern Cape on that point. It was unclear in the submission. He agreed that concurrence should not be done after the appointment, once the councils have resolved on the ideal candidate. As part of the final step, it should then be that the provinces do the concurrence, rather than the municipality issue an appointment letter. The Committee agreed with the Eastern Cape proposal. On holding political office, it affected the rights of individuals enshrined in the Constitution. One would normally tend to assume that a professional would uphold certain values. Whatever position is held, professionals are expected to act independently and impartially. The suggestions that once someone is a political office bearer they cease to be impartial in their profession, and are somehow micro-managed or controlled. It needed to be checked clearly whether these rights were being infringed on. There had to be ways and means in which to avoid political office bearers interfering in administration. To exclude confident people that possess the requisite skills on the basis of the office they hold in political parties, yet cry over scarce skills in municipalities, provides limitations.

Mr C Brink (DA) said that it was important to respond to Mr Hadebe. The importance of an independent professional in the civil service in this country could not be emphasised enough. The reason the amendment was being proposed was because the municipal appointment process had been politicised. Even professionals had been subordinated in their activities to political considerations. Two things in particular were: 1. The appointment from a pool of available candidates is narrowed if political considerations are taken into account. It deprives the municipality of a wider base of expertise. 2. In the decision making of municipal administration, political considerations corrupt the decision-making process. This was not an assumption as the Committee had seen it play out. It was very difficult, like corruption, to prove it in a court of law, but even courts have proclaimed on municipal cadre deployment. He did not want to make it particular to the ANC, as the term was associated with the ANC. Any political party should be prevented from having this type of influence on operational jobs. This prohibition should be retained, otherwise it defeats a lot of the thinking that had gone into the progress made. There needed to be a distinction in municipal council, as there was at national government, between operational office and advisory office. At national government there was ministerial support staff, researchers, spokespersons, media, liaison officers, personal assistants, technical staff, managers, directors-general. Political loyalty could be a consideration in ministerial support staff, but not in the operations of the public or municipal service. It was crucially important to get this amendment through because the delay had probably caused a lot of trouble that still had to be dealt with. The prohibition on political office bearers being senior managers at municipalities fulfils a very important constitutional function. It was not about one political party. It was about the project of creating independent and impartial civil and municipal services.

Ms T Marawu (ATM) said the Eastern Cape Department had raised a very important point about sabotage in the secondment of MMs. In one intervention, for example, it was found that there was no cooperation at all on giving information to the intervention team. As a result, if the team were to leave, the municipality would go back to square one where there was an audit disclaimer. There was a proposal to take this to district municipality level, but the problem was that the same thing could happen if strict measures are not put in place. This included the experience of provincial government on resources. What was the Eastern Cape Department advising? These interventions were not assisting and she did not know if it was due to a lack of supervision, sabotage or something else. On the Section 106 investigation, truly speaking, the experience was telling the Committee that there would be investigations at all municipalities throughout South Africa. However, there was no implementation at all. This has resulted in the recurrence of the same programme. What can be done to avoid the recurrence?

Mr K Ceza (EFF) referred to page 4 on service delivery and membership of political parties. There was a culture of allegiance to political parties in the place of professionalism and excellence. Had the appointments of officials been based on the outcomes of what they should be judge on rather than prioritising political affiliation, there would not have been any audit disclaimers. The Committee had seen this hampering service delivery. He did not know how the Committee was going to address this. People have experienced this at a municipal level – even those people with qualifications. He had knowledge of people who had lost hope in being employed in the municipalities. This was either through not having a political membership card or being forced to have a political membership card of a particular political party regardless of their qualifications. If this could be addressed, the country would be headed towards service delivery, attracting genuine people with the necessary skills who bring value to municipalities.

On the Municipal Public Accounts Committee (MPAC) Mr Ceza agreed that MPACs had to bite, and this had been said over and over again. It was time that the MPAC had some kind of independence or a balance of political parties. The Standing Committee on Public Accounts (SCOPA) had to get the necessary reports from that body, but MPAC had no teeth to bite at all yet were told that they were independent. It was selective when it came to MPAC having the ability that SCOPA had to hold the Executive to account.

How was the Eastern Cape Department striking a balance between rural and urban municipalities in attracting the same skills often found in metros, as a result of the exodus of skills, rurality and capacity of those municipalities? Was the state of the municipalities’ rurality to be kept? Was a balance struck and capacity built so that there were similar capacities? This would prevent educated people from running away from rural areas. Competent people from municipalities were wanted in their own municipalities, but they were moving away as a result of the lack of competence and allegiance to political parties. People did not necessarily want to be members of political parties – they acquired skills so they could do genuine work in a reasonable position. People wanted to prove themselves but were running away as a result of capacity in rural areas.

The Acting Chairperson belatedly recognised and welcomed Deputy Minister Parks Tau.

Ms M Tlou (ANC) noted that the Eastern Cape Department had said that it was important to attract skilled and competent MMs. On the appointment of MMs and officials in general, it was important that certain qualifications were necessary but a strategic mechanism of capacitating appointed MMs and officials needed to be found. If they are assessed and found without qualifications, do they remain unqualified? As of now, municipalities had dismally failed on MMs as there were indications that something was wrong. Things fell apart without consequence management. The Committee and Department needed to come up with a way to keep advancing officials with new developments so that municipalities could move forward. Was the correct model being used in assessing them? They needed to come up with something that would help them do well to prevent the failure of no consequence management. The Eastern Cape Department did not outline their recommendation. What needed to be done? It worked with the municipalities so it needed to suggest how they solutions so they could all move forward.

Mr Hadebe said that he heard the other Members' comments about holding political office. From the outset, indeed, political interference has crippled service delivery in municipalities and caused a lot of difficulties and damage. The point he was arguing was about having a blanket approach or seeking to suggest that those who are not members of political parties are immune to interference or being lobbied. Previously, the challenge was appointing unqualified individuals to key positions. When there were criteria in place on the minimum requirements for a person to be shortlisted for a position, this limited some of the issues for political interference. One would now determine if a person possesses the relevant skills or expertise, if they have the necessary experience, if they have a proven track record. If such a person holds political office, is that person then excluded from being shortlisted or considered for a particular position? He thought the challenge previously was that every Jack and Jill would be taken to fill very senior positions, without having the requisite skills. He wanted an understanding that if scarce and critical skills are limited in rural municipalities, would people be excluded if they hold political office and on the basis of their affiliation. Is this regardless of whether or not they are just ordinary supporters of a political party? Did this seem to suggest that they were immune to being micro-managed or given instruction from somewhere else?

Mr M Groenewald (FF+) commented on what Mr Brink had said on MMs and Acting MMs, their responsibilities, and what they can and cannot do. The Municipal Systems Amendment Act of 2011 says that the municipality has three components: 1. Councillors, 2. Administration, 3. Community. The MM or Acting MM can combine all three parts. When looking at the responsibilities of a MM, they must be qualified, objective, and not affiliated with a political party so that a hidden agenda cannot be driven. Where there was sabotage, there had to be things going on in the municipality that they did not want the law to be applied. What was needed was a forensic investigation of the municipality. The law was straightforward on MMs and Acting MMs, in saying what could and could not be done. Provinces were to do full investigations. He had been a councillor for eight years and the most problems he found were with Acting MMs that were usually appointed just to get some contract through which the MM had not wanted to sign.

Ms Gumbi-Masilela noted the comments and apologised on behalf of the Eastern Cape Department legal manager, who had prepared the submission. Ms Opperman talked about the impact of capacitation. This was focused on. There was very comprehensive training done by Rhodes University. The Eastern Cape Department needed to measure if they were getting the right impact. On skills attraction, they were concerned that the budget would end up determining the number of people appointed when high capacity levels were needed. The Committee was interested about political office bearers. The Eastern Cape Department was cautious as they were saying that consideration needed to be taken of how to deal with this. They were not dismissing the issue but were saying that a lot of work needed to be done, otherwise people with the right skills could be lost. The Eastern Cape was drained of skills that went to KwaZulu-Natal, Gauteng and the Western Cape. However, at the same time, there were a lot of university graduates that were unemployed. This were a compilation of factors that could be put in place. They were hoping that, through a five-year partnership with students, they would be able to get engineers, planners and those with critical skills in local government registered professionally. This would provide support to municipalities. Sometimes people went to Gauteng and still do not find a job so it is a vicious cycle. The concern about political office bearers was that one did not want to throw the baby out with the bathwater. On urban versus rural, this was something that the sector needed to look at. Service delivery was required more in rural areas where it had never existed before. Perhaps the National Department could make a motivation for engineers to go to the rural areas because they have the capacity. On support, the District Model was referred to that would now be closer to the municipalities and provide support. The Eastern Cape Department was looking at capacitating District Offices so that they did not go out looking for people to send to the municipalities, but rather send the people that work with them on a day-to-day basis and are familiar with the environment and the local municipality.

On concurrence, they proposed strengthening the reservations around when to concur, when to appoint. Ms Marawu spoke about decentralisation but the Eastern Cape Department was not talking about the District Model but rather their own district offices that would be the support. On the question by Mr Ceza, it did not mean that people did not have skills or capacity as the shortlisting process looked at that. However, MPACs had to bite. A lot of capacity had been given to MPACs by the Eastern Cape Department via the Sector Education and Training Authority (SETA) and SALGA training of MPACs. The private sector was interested in training MPACs, and the Eastern Cape Department’s partnership was with the private sector to ensure that they are given teeth and strengthened. The Eastern Cape Department believed that if MPACs were strengthened that they would deal with the municipality challenges of irregular expenditure and other audit findings and these would be resolved.

The capacitation of municipal staff was an ongoing process undertaken by the provinces, National, SALGA, and the SETA. Therefore, when interviews are done – they look at skills, experience, and training, to ensure that the person recommended fits the bill. MMs needed to have standardised requirements. On Mr Groenewald’s question, the Eastern Cape Department looked at it as two separate issues. There were interventions, which was where COGTA actually thought that there was something going on in the municipality and an intervention takes place using the Constitution. The appointment process must be regulated to ensure that people have the experience and training for the job they are being appointed for. In interventions, they ensure to look for people who previously worked in the sector who can go in and deal with the challenges.

Mr Hadebe was interested in concurrence and wanted a sense of exactly what was being proposed. Was concurrence to be done prior to or after appointment? This was taking into cognisance the chapter in the Constitution on the powers and functions of municipalities, which says that national and province should not impede on the right of municipalities to exercise its right to perform its functions. What was the Eastern Cape Department’s point of view when it came to concurrence - was it before or after appointment?

Ms Mkhaliphi thought that no one had a solution about MMs, skills and political office. The Eastern Cape Department was saying it needed skills. No one could claim to have a solution. The premise was to say that there was a court judgment and a constitutional right for every citizen to say that their constitutional rights could not be taken away. Everyone present is required to find a solution to this. The Deputy Minister belonged to the ANC but in this meeting, he was the COGTA Deputy Minister. The Acting Chairperson was an ANC member, but he was chairing the meeting in such a way that all Members were satisfied with. Everyone would agree there was an outcry when SADTU union members were used by the Independent Electoral Commission (IEC) to staff voting stations during elections. There was an outcry as the SA Democratic Teachers' Union (SADTU) is affiliated to COSATU, which is aligned with the ANC. When it came to elections, as an opposition party, the EFF said that a teacher or principal from a school cannot be used as an IEC person. During the campaign, this person was campaigning for a political party but, at the same time, the IEC is saying that they are not using SADTU people but rather schoolteachers. It is their constitutional right to serve as IEC people - one could not run away from this. At the end of the day, one did not want a problem when it came to service delivery – this was the bottom line. Everyone has to differentiate between when they are political party members and when they are managers responsible for a municipality and must act ethically correct. This would be an ongoing debate until everyone decided that this was the way to go.

Mr Brink thought that it was important to make it clear that the Constitutional Court did not reject the Amendment Bill in its previous form on substantive grounds. The Court made no finding that it is impermissible to limit the political rights of a Section 56 manager. The finding was on technical grounds that the Bill was not tagged correctly. In the court case, the concession was made that it was a justifiable limitation of political rights, as the political rights of a judge sitting on the bench would be limited. There was an important imperative at play. Reading Section 56A in its current form, it did not prevent a person who held a political office from applying for a job in the municipal administration. It just forced them to make a choice as to if they would be wearing the hat of a municipal official or the hat of a party-political office bearer. In this sense it was not unfair as many people had to make choices about their involvement with companies and professions etc. Forcing somebody to make a choice in the interests of service delivery and independent official municipal services is a constitutional imperative. No problematic aspect could be seen, and one had to be very careful not to put words in the mouth of the Constitutional Court on this issue.

Ms Gumbi-Masilela thought that the difficulty was that Eastern Cape Department could not impede all the rights of municipalities to perform their powers and functions. Concurrence was put in just to ensure that the recruitment process is streamlined and thoroughly checked to see if people meet the requirements as required in the regulations. The question was whether the concurrence requirement was impeding the powers and functions of municipalities or was it streamlining the efficiency of appointment? This was something that needed to be dealt with as the Bill and regulations are finalised. To what extent does it impede or facilitate efficiency in the municipality?

The Acting Chairperson said that the spirit and intent of the Amendment Bill was to objectively professionalise the local government sector. The bone of contention was holding political office and being an accounting officer. Now the amendment was seeking to balance the rights enshrined in the Constitution as well as the injunction on how public administration should be professionalised, standardised and orientated.

SALGA submission
Councillor Bheki Stofile, SALGA National Executive Council Representative, in his introduction, said that a year ago on the same date, SALGA had been summoned to the Committee share the platform with the KwaZulu-Natal province where they deliberated and expressed particular views. Such views were views canvassed between SALGA and COGTA, where they agreed to focus on the amendment. Ultimately, there had to be focus on what the court judgment had said. SALGA yearned for the moment in which the Committee would also summon SALGA and look at the entire Act. He was currently hearing, as was heard a year ago, concurrence. The critical question that he posed to the Committee then, at that time, was: Who is the employer? The Constitution defined government in three legs, being the national, provincial and local government. Each leg had a responsibility as enshrined in Section 152 of the Constitution. There was a deliberate intention, when reading the Amendment Act properly, that said that as local government did its work, there were certain prescribed periods for performing certain tasks. SALGA wished to come back to this debate at some point. Unfortunately, there was a serious lack of appreciation of the provisions of the Constitution, which is the supreme law of the land, in trying to correct South Africa going forward.

The intention of the amendment was to avoid micro-management of municipalities. When linked to micro-management of municipalities by political parties, there was also a possibility of micro-management of municipalities by various departments. Thus, micro-management could not be looked at in one way only as there was a multiplicity of way to micro-manage municipalities. This was based on the fact that one would want to preserve the powers of the employer, to employ and exercise their responsibility. He hoped that one day the Committee would look at the micro-management of municipal space. The submission would provide detail on this. Micro-management was not limited as the other spheres of government intend to micro-manage and fight the affairs of municipalities, which impeded the Constitution on the powers and functions of municipalities. The submission was to reflect those areas agreed upon in SALGA’s engagement a year ago, on what was seen to be considered as an amendment to the Act. For example, micro-management would be funny if it was only limited to MMs. What about a cleaner that happened to work in the municipality and happened to occupy a senior position in a political party? The professionalisation of the local government sphere had become important to SALGA. The other issue was to deal with interpretation. The President of SALGA raised an important matter that needed to be focused on, concerning how to create an institution that intervened and was responsible for the challenges people were facing, without being influenced by political party views, to ensure service delivery to communities of South Africa irrespective of political affiliation. It would be found that the submission was the same as presented a year ago, with a little bit of change.

Mr Lance Joel, Chief Operations Officer, SALGA, presented SALGA’s comments on the Amendment Bill. Five main points to be taken from the 2009 COGTA State of Local Government Report were:
1. Undue interference of councillors in the administration is a very real hindrance to service delivery;
2. A fundamental concern is detrimental impact of excessive and undue political interference by external party political structures in municipal governance;
3. Senior and middle management employees occupying positions in political parties can distort the reporting line within the municipal administration;
4. Wider party structures should not intervene in internal council processes;
5. Senior managers to have minimum qualifications and competencies and should professionalise the administration.

The Local Government Turnaround Strategy (LGTAS) identifies core areas of concern in municipalities as:
1. Serious leadership and government challenges in municipalities including weak responsiveness and accountability to communities;
2. Inadequate human resource capital to ensure professional administrations and positive relations between labour, management and councils;
3. Political parties undermining the integrity and functioning of municipal council through intra and inter-party conflicts and inappropriate interference in councils and administrations.

The LGTAS recommended professionalisation and administrative stabilisation of local government by:
1. Section 57 managers must belong to a professional organisation;
2. Ensure that professional associations monitor the Code of Conduct of their members in local government; 3. Qualified and skilled staff be appointed.

Clause 2 (Section 54A) – Appointment of MMs and Acting MMs
In Section 54A(7) municipalities make an appointment and must inform the MEC within 14 days. MECs take longer than 14 days to consider the municipal appointment. Taking the appropriate enforcement steps include instructing municipalities, at times more than three months later, to reverse decisions which at times is contrary to the Rules and Orders of Council and is illegal. The role of MEC is loosely interpreted as “concurrence”, meaning prior approval. SALGA’s comments were: It should be accepted that municipal councils have the executive authority to appoint a MM and does not require “approval” from the MEC. The role of the MEC is to assess if a municipality has contravened the appointment processes as defined in the Amendment Act (including the Regulations). In instances of contravention, the MEC has the option to apply for a declaratory order on the validity of appointment.

Clause 3 (Section 56) – Appointment of managers accountable to MMs
This clause further blurs the lines of accountability and authority between the council and administration. In practice, the appointment of managers directly accountable to the MM, by council after consultation with the MM, has led to managers directly accountable to the MM actually reporting, or feeling obliged to report, to council members who appointed them rather than to the MM.
SALGA’s comments were: The intention was always that council appoints the MM but that the MM, after consultation with council, would and should make the appointments as head of administration. The problem were are trying to address in local government is precisely where council (and political parties represented) appoints people to the administration but they must then report to the MM. The amendment provision as it stands will only perpetuate this problem in local government, rather than assisting in solving it.

Clause 5 (Section 56A) – Limitation of political rights of MMs and managers directly accountable to MMs
The problem the Amendment Act tried to solve is defeated by limiting only MMs or managers directly accountable to him/her, as the scenario often painted in local government is one where junior officials (because of their political ranking) hold the MM and other senior managers to account. The fact that only MMs and managers directly accountable to the MMs are excluded from being officer of political parties may, in addition, create a discriminatory practice. SALGA’s comments were: The politicisation of local government detracts from professionalisation of local government. Section 56A effectively allows staff in the administration or junior staff to still politically “manage” managers and MM.

Clause 6 (Section 57) – Employment contracts for MMs and managers directly accountable to MMs
There are interpretation challenges on whether the employment contracts for managers directly accountable to MMs, are for a fixed term period or permanent basis. SALGA’s comments were: The section previously provided that the requirements for the employment contract of the MM as set out in Section 57(6) could be extended to managers directly accountable to the MM (this is no longer the case as per the proposed amendment). This repeal does, however, not take away the discretion of the municipality to determine the terms of employment of the mangers directly accountable to the MM. Such managers can be appointed permanently, or on a contractual basis, for a period determined by the council. Such appointment does not have to be aligned to the term of the council as required for the MM and can be determined by the council.

SALGA proposals for specific clauses were:
• Clause 2 'Appointment of MMs and Acting MMs' was supported with the possible review of the timeframes given to the MEC to assess compliance with the Act.
• Clause 3 'Appointment of managers accountable to MMs' should be amended to read: “After consultation with Council, the MM appoints, as head of administration, a manager or acting managers directly accountable to the MM”. This section was also to be amended to include a provision for the appointment of an acting manager, including a MM, where the manager is incapacitated or unavailable for a limited period.
• Clause 5 ‘Limitation of Political Rights of MMs and managers directly accountable to MMs’, was supported, with the addition that the section should provide that no municipal employee, whether in a permanent, temporary or acting capacity, may hold political office in a political party.
• Clause 6 ‘Employment Contracts’ was supported, with addition to create certainty if there is a discretion to either appoint a manager directly accounting to the MM on a fixed term or permanent basis.

It recommended that the Committee consider SALGA's detailed response to the amendments in the context of the challenges of the current implementation of the Municipal Systems Amendment Act No 7 of 2011.

Ms Opperman said she had studied the Constitutional Court ruling page by page. The court ruled that the unconstitutionality, inconsistency and invalidity directly stemmed from the procedural flaw of the Bill not being tagged or categorised correctly. It was therefore invalid for want of compliance with Section 76 of the Constitution. This meant that it was a bill affecting the provinces and not a Section 75 bill not affecting the provinces. SALGA argued that Section 56A(1) was inconsistent with the freedom to make political choices, as stated in Section 9 of the Constitution, yet the CC ruling did not say that Section 56A(1) on not holding political office was an unjustifiable limitation. She agreed with SALGA in that no employee should hold both political and municipal office.

Ms Opperman referred to concurrence being interpreted as approval from the MECs for municipal appointments. Having been in council for a decade she believes in the authority of the executive. The council had executive authority to appoint but there were other avenues that an MEC could follow. The MEC could assess if there had been a contravention in the process and then apply for a declaratory order on the validity of the process. She had a problem with political allegiance hampering the responsible persons from obtaining declaratory orders and had spoken on this thrice before. National could only interfere where the province failed to do so, yet she had given in letters from various MECs that told the council their recommendation was to get rid of the MM who did not have the necessary qualifications and experience. Where the councils have failed to implement the MEC recommendation, the MECs should have gone further to obtain a declaratory order as per the Act, to enforce compliance, yet the MECs failed to do so. The Amendment Act also made provision for the Minister to intervene through a declaratory order. It seemed as though political allegiance was hampering the process and there was no appetite to proceed. She had handed one such letter to the Minister and one to Deputy Minister Tau. Party allegiance should never be put before the people if there is seriousness in professionalising local government.

Ms P Xaba-Ntshaba (ANC) wanted to understand what happened to that municipality where the MEC did not follow the procedure of 14 days after the MM appointment, and the MEC came with a recommendation after six months. SALGA was there to assist the municipality. Why could SALGA not reprimand and tell the municipality that, if they are not stable, they must assist to ensure the people do not suffer the costs of the negligence of the MEC?

Mr Hadebe pointed that Members played the role of devil’s advocate and they held no particular view at this point until all views and the proposal have been put forward. When the Committee probed, they should not be understood to hold a particular view. On concurrence, municipalities acted under Section 54A of the Amendment Act in making an appointment within 14 days. This meant that an appointment would first be made and then the MEC is informed, not consulted. The MEC was to do the same thing, by informing the Minister within 14 days. If there is a contravention, only then could the court be asked to set the appointment decision aside. The Amendment Act itself acknowledged that the powers itself lay with municipalities.

On the appointment of Acting MMs in the event that a municipality is unable to convene a council meeting, this was covered under Section 59 of the Amendment Act on delegation. Each municipal council is obliged to have a system of delegation which reflects in which event certain individuals would be delegated. Currently, as the Amendment Act stood, the appointment of managers was with the approval of council. The selection panel was constituted, which includes members of the municipal council. SALGA’s proposal had unintended consequences on other sections in the Act . If it is changed to state that MMs may appoint "in consultation with council", one would also have to amend the section that speaks about the selection panel as it would have to exclude council members. MMs became the chairperson of the selection panel with the relevant Mayco member. If it was the appointment of the Human Settlements director, the Mayco member of Human Settlements formed part of the selection panel. These were issues that also needed to be taken into consideration with SALGA’s proposal. How was a selection panel to be constituted? Would the selection panel exclude Mayco members of the portfolio that was vacant at the time? Should council members be completely excluded from the selection panel if the appointment is done by the MM?

Mr Brink said that the recommendation to extend the limitation of political rights to all staff members was an interesting one. He was not sure if its objective could necessarily be achieved, but there was a possibility of it sending a strong message. Does SALGA’s legal opinion on Section 56A of the Amendment Act also speak to the proposal of a blanket prohibition of holding political offices by municipal officials? Could this reassurance be given? Was this relevant? Should legal opinion be sought on a blanket prohibition? The proposal on giving the MM, instead of council, the first prerogative or more power to appoint officers was also interesting. The problem was that it was quite difficult for good councils to get rid of recalcitrant MMs. Here there would be too much concentration of power in the hands of one accounting officer. He was not presuming there would be but he asked if such risks had been considered so that the Committee could properly consider this proposal.

Mr Ceza said he similarly did not care if a person was from the ANC, DA, FF+ as long as they had the right skills to get into the right position and deliver. However, the SALGA submission said there was a problem of political interference and political bullying. There could not be a situation where a political party branch member comes into the administration and tells others what to do. This was wrong. If there was medicine to remedy this madness, it was to be brought about by the Department immediately. He was afraid that unless they act forthright, the Committee would later revisit similar circumstances. Change was painful. To professionalise municipalities would give rise to quality service delivery. Currently there was a problem. What needed to be done to turn the situation around permanently? He agreed with SALGA's comments. There certainly needed to be a sense of direction. The same problems could not be spoken of repeatedly, only to come back and talk about the same problems. It should be madness to discuss the problem and expect a different result. A mechanism had to be found to professionalise local government – the sooner the better.

Ms Tlou agreed that the municipality system needed to be professionalised. In the interpretation challenges of employment contracts for managers, they should be accountable to the MMs. SALGA mentioned that specific senior managers were appointed, but it infringed on the rights of individuals. Why did this happen? SALGA mentioned that there were four areas of limitation. She wanted to understand why senior managers should report to the council instead of MMs. She welcomed everything that had been said. If the municipality system was professionalised, the recent circumstances would not have been seen.

Ms Mkhaliphi thought that SALGA’s proposals were very clear. If someone wanted to be in the administration, this meant that they could not wear their political cap if they were serious about making a difference in service delivery. The SALGA submission provided a clear direction as the matter had started a long time ago in 2010. As the current year was 2020, this was 10 years later. When listening to SALGA’s submission, they gave a clear background. SALGA stated that it was exactly one year later and they were doing the same submission. Was he irritated by having to come and do the same submission? SALGA's problem statement had provided context. The 2009 State of Local Government Report had identified five key challenges. This spoke to what had been discussed by the Committee the previous day. However, it spoke to the challenges in 2009, 10 years ago. She asked for an updated report on what the key challenges were and what had been done. This would help the Committee.

She noted that the Committee had said that COGTA was to come on a monthly basis to update the Committee on interventions. On Section 57 on the professionalisation and administrative stabilisation of local government, the SALGA amendment proposal was clear that one needed the ability to distinguish between the politicians and administrators then the problems would be resolved. She wanted clarity on the specific proposals, especially where SALGA spoke about the appointment of managers accountable to MMs. What was meant by consultation? To her it seemed as though it was the same thing. The council made appointments in consultation with MMs, but SALGA said that the MM was to appoint and consult.

Ms Mkhaliphi noted SALGA had commented that junior officials due to their political ranking bully the MM and other senior managers. SALGA proposed that Section 56(A) be directed at everyone. This would also clear the air. As public representatives, if there was a problem they had to intervene. Everyone knew that there was an animal called political deployment, that was still taking place. Political leadership allowed this to happen saying that it was cadre deployment. Local government needed to be professionalised, but cadre deployment had been allowed to happen. There needed to be a balance between politics and administration.

On the MECs taking longer than 14 days, such irregularities could not be addressed by public representatives through laws and regulations – this was political will. An MEC is deployed or appointed politically. This needed to be politically understood. MECs needed to be questioned by the Ministry why they were responding too late and not doing their jobs. She had always raised this concern and hoped that there would be a response from the Deputy Minister’s office to address this. An MEC not doing the job could not be without consequences. It would be business as usual to say that there was a court case between the Department and the MM. Who was paying? Was it the Department or the taxpayers? Political intervention was necessary in such cases, otherwise this would be debated until the cows came home. Municipalities and administration were to be professionalised.

Ms Xaba-Ntshaba referred to the need for qualified and skilled staff to be appointed. There were guidelines available on requirements for MMs. She always read the advertisements which clarified what the requirements were for MMs and Section 56 managers. The advert was clear on the requirements. She did not know what happened when it came to the appointment. There was a criticism of undue interference by councils, but no recommendation on how this should be addressed. This occurred all over in many municipalities. She suggested putting a regulation on MEC timeframes. Although the regulation would take a long time to come into effect, she did not think this matter concerned the Deputy Minister or Minister.

Councillor Stofile said that sophisticated administrative questions had been asked. South Africa operated in a free market economy where a senior manager had a solid reporting line to account to the CEO. The CEO would then report to the Board. The reporting lines were very clear. It was only in the municipal environment ground where a senior manager would be employed by council. This was a challenge to accountability. If someone was employed by council (board) and performance was to be assessed by the MM (CEO), in common practice one would find that the individual would then undermine the authority of the MM. In the municipality after council appointed the senior manager, he was expected to sign a performance contract with the MM.

Professionalisation of the sector meant creating a clear distinct line of accountability and reporting so that people could be monitored. If a performance contract was signed, there had to be assessment. To professionalise local government, one needed to look into how the manager could account. This was what was meant by saying that a MM must have the right to recruit a person that he or she believed would perform. A performance contract was signed that contained targets which were informed by the municipality's Integrated Development Plan (IDP). For the professionalisation of this sector, the first thing was to administratively professionalise it. Individuals were to be held accountable for their actions on the basis of their performance contracts.

SALGA appreciated the contribution and leadership COGTA had been providing over the recent period. It was to be remembered over many years, when there was a weakness in a municipality, Section 139 of the Constitution was applied. COGTA conducted a study where it was found that Section 139 has never functioned and would never function. SALGA was comfortable with the work and systems of COGTA. On the new belief that Section 139 was a challenge, there was Section 154 of the Constitution which obligates the other spheres of government to assist municipalities and to see to their functioning.

On the MEC concern, there were many practical examples. Each municipality in a province had an MEC. At the recruitment or appointment of a senior manager, council was to constitute a panel which was to include the council, MM, COGTA and SALGA. What was strange and had been happening for some time, was that the COGTA official was expected by the municipal council to come back and brief the MEC. Having concluded the process, SALGA would comply with the prescript of the law by notifying the MEC about the decision to appoint – this would be a double up as an MEC representative sitting on the panel. The surprise was that six months down the line, the same MEC wrote a letter saying that they disapproved the decision, this impacted on the turnover of municipal employment.

It was important that the different spheres of government, as required by law, support each other. Support was to be provided and responsibilities were not just taken away from each other. SALGA was happy that this matter which had been continually raised about MECs doing this in various provinces was noted as a challenge. In the event that the SALGA was given this right of MMs being able to appoint a qualified person of their choice for the position, this would mean that a panel would be appointed by and composed by the MM who was the person that interacted with and recruited persons. Council would then have to play an oversight role as, by definition and function, it was to play an oversight role over the executive and administration. Administrators should be given an opportunity to perform the functions that they were supposed to.

Mr Joel said that many of the issues had been covered by Councillor Stofile. SALGA essentially agreed to the Amendment Bill, as it currently stood, in the processes that SALGA followed after an appointment decision was taken. This meant that within 14 days a decision was to be communicated to the MEC, who was to communicate it to the Minister within 14 days. The MECs are to apply their mind to the appropriateness of the processes followed within 14 days. Failure to do so allowed the Minister to act. SALGA was happy with this process as it allowed one to rightfully assume that once a municipality had communicated to the MEC within 14 days, after which the MEC does not respond, another 14 days was given to the Minister to act. Once these 28 days had expired, it correctly assumed that the appointment was indeed in line as no response was given. Mr Joel referenced chaos within local government. It now brought municipalities into legal battles when there was late communication. There were sufficient checks and balances, particularly with the role given to the Minister to act in the absence of an MEC acting when there were indeed discrepancies in the process that had been followed.

There were two different panels for the recruitment process for the MM versus the appointment of a senior manager. The key difference was that for the MM, the Mayor or Executive Mayor was the chairperson, whereas for a senior manager the MM was the chairperson. As it currently stood, the recommendation coming from both of the panels had to go to council. What SALGA was suggesting was for MMs it went to council, but for senior managers the MM would send the report to council saying that these were all of the processes for which the outcome recommended x, y and z. This was not an appointment by council as the MM was consulting council. Consulting meant that a decision would be discussed and an opportunity would be given to present alternate views. If there was satisfaction around what was presented, this could be considered or not considered. This placed an MM in the position where, if a recommendation was made through the interview panel, the outcome would be taken to council. Council would present to change the panel’s decision. The MM still has the authority to state that the council had been heard but that the appointee would be reporting to the MM who would be accountable for what the appointee did or did not do. An MM would thus consider the council’s proposal but the MM would make the final decision.

Lastly, the legal opinion obtained, that the limitation of political rights extended to everyone else, was true because the same legal position advanced by senior counsel would also apply to other employees in the same manner. On whether the MM would be made too powerful in being given the authority to appoint senior managers, MMs were ultimately accountable for what did and did not happen. If the people appointed were failing, the MM was held accountable for that failure. This was less about power and more about allowing a MM to execute their responsibilities to assemble the team that would assist the MM to execute their particular responsibility.

Mr Hadebe was not convinced by the response. As the Amendment Act stood, it was clear that it was managers who were directly reporting to the MM. There were certain positions in Section 11(1)-(4) in the Act, where appointments were to be done by council directly. This did not take away the right of the MM to holding those appointees accountable by virtue of the MM not appointing them. There was nowhere in the Amendment Act that said that because you were appointed by council, you disregarded the MM and report directly to the council. This never happened and was political immaturity and an inability to understand legislation. The sins of individuals did not warrant changing legislation. If there was something fundamentally prohibiting the functioning of an MM, the Committee should be convinced that the change was warranted.

Does the composition of the selection panel also change if the MM were to appoint? Would the composition exclude council members completely? The current situation was that the MM would be the chairperson of the selection panel, shortlist and do screenings, after which they would bring only qualifying and suitable candidates to the council for consideration in order of preference. Someone would not be brought to the panel if they did not even meet the criteria. If out of 12 applicants there were three eligible and qualifying for appointment, they would be listed in order of preference. Some who was not eligible would not be included. What was the fundamental objective that warranted this change in the legislation? Were there a lot of not isolated incidents where things were not included which limited the rights of MMs? Even performance reports of managers were done by MMs. Clarity was needed for the Committee to apply its mind.

Mr Frank Jenkins, Senior Parliamentary Legal Advisor, said that there had been experiences in local government and other institutions about the appointing authority. The question was if this was the council or MM. The appointing authority was responsible to answer for whatever complaints there were. If a challenge was brought to the Commission for Conciliation, Mediation and Arbitration (CCMA) for unfair labour practice, this would become a problem if the appointing authority was not one person. This was especially true in a council where there were divergent views and opposition to a certain appointment, but the council would be accountable as a whole for CCMA and performance management challenges.

Mr Jenkins said it was easier to hold a single person accountable for the appointment. In Parliament, it was the Secretary to Parliament who was the appointing authority. Where there was a problem and he went to court, it was the Secretary to Parliament who had to answer. If it were to be the House that was the appointing authority, the question would be who represented the House and if there was legislation in this regard. In Parliament there was a Speaker that would answer on behalf of the House. Did she get a mandate from the House? What was done with opposition parties that said that they supported the person making a legal claim against the House? These kinds of challenges arose and they were not insurmountable – it was just easier to have a single person to hold accountable for the appointment of a person, conditions of service, and any performance management that was to happen during the service.

Mr Hadebe said that the same argument would arise with the appointment of the MM, because it was council that appointed MMs. Was Mr Jenkins saying that the argument would not arise when it came to the appointment of the MM, because it was the council who appointed the MM?

Mr Jenkins replied that where it arose it was for only one employee, but the problem did arise. In Parliament’s case, the Secretary to Parliament was appointed by the House and so it would have to deal with any challenges at this level. The rest of Parliamentary Services would answer to the Secretary to Parliament. Whilst the problem was not solved, the issue was minimised. There was one person accountable to the political heads, which was the accounting officer, the Secretary to Parliament, or MM, and everyone underneath was accountable to Secretary to Parliament, or MM.

Mr Joel replied that a suggestion of changes to the panels was not being made by SALGA. The interview panels would remain as they are. These panels ultimately made the recommendations. Where there was a key difference was on the appointing authority. Whereas, currently, as suggested in the Bill, the appointing authority for all senior managers resided with council, SALGA was suggesting that only for MMs did the appointing authority reside with council. For everyone else, the appointing authority was the MM. For example, he agreed with the view that there be a recommendation of three possible candidates and that they be prioritised in order of preference. There was a key difference between the first applicant and the third applicant. If council said applicant three and the MM said applicant one, where the MM was the appointing authority, they could appoint applicant one. If the appointing authority was council then they could agree on applicant three although the MM would have liked applicant one to execute the responsibilities that the MM would be held accountable for in the performance report. There was a reason why the shortlist was to be presented in order of preference. What he was trying to drive home was that one would not recommend anyone that was not appointable or that could not perform a function.

Mr Hadebe mentioned that this was administrative authority.

Deputy Minister Park Tau noted Mr Hadebe’s observation about administrative authority. In an ideal environment, the basis was the councillors were accountable to their provinces, the executive was accountable to council, the administration was accountable to the executive, and that administrative leadership had authority over the entire administration – to ensure accountability functioned normally.

Practical experience suggested that this did not always happen due to political interference and political overreach. In certain instances, there was practical experiences where, due to holding political office, people in administration undermined political representatives. This complicated the system. These appointments were not supposed to be normal as processes were to be followed to the T and everyone was to function according to the responsibilities. The reality was that this was different. The ideal was that it would have to be legislated as far as possible, to allow the system to ensure that over time, the abnormal things being legislated against, would be reversed.

The other reality was that the municipal council, as opposed to provincial and national legislatures, was both the executive and legislative as the Constitution said so. This provided complications as it provided executive powers to the Executive Mayor – which could result in necessary conflict.

A legislative framework needed to be created to enable the management of an environment where there could be efficiency, harmony and accountability in municipal administration, based on practical experience. At some point a whole range of issues needed to be looked at in a much more comprehensive way. A degree of certainty had to be created about who was responsible. On council being the executive body, this was unlike the MEC not being an executive authority. This was trying to operate in an environment that looked the same but, in reality, they were not an executive authority. Where individuals were not an executive authority, they could not be expected to do certain things but they had to work with the head of a particular department and participate in the process. Practical experiences had been very difficult. From practical experience he could say that it was possible to issue an instruction that conflicts with that of the MM. Nothing about the instruction would necessarily be irregular, but simply that different instructions are given on a similar matter. There were managers who struggled to interpret who to report and account to – but everything could not always be legislated for.

As the Committee applied its mind, it legislated to limit the number of problems. The reality was that problems happened anyway, but an attempt had to be made to legislate to ensure that the system allows for proper functioning in the future in a normal environment. The Ministry also had authority over the MEC, except in Section 100 of the Constitution where a province is not acting in line with their executive obligations. Constitutional provisions that did not have specific regulations as yet would have to be invoked. So far, the practice has been to try and resolve matters in an amicable way – as opposed to a situation where instructions are issued to MECs. This appreciation of government and the constitutional framework created the necessary checks and balances and holds them both accountable for decisions made. This was not suggested as this matter was now of concern, as there were mechanisms to deal with them.

The Acting Chairperson said that due to time constraints they would proceed the following day. He thanked SALGA, the Eastern Cape Department and COGTA. The Committee would invite them for further engagement on the issues that had been raised.

The meeting was adjourned.

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