Local Government: Municipal Systems Amendment Bill: deliberations

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Cooperative Governance and Traditional Affairs

04 March 2020
Chairperson: Ms F Muthambi (ANC)
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Meeting Summary

The Committee met to deliberate on the Local Government Municipal Systems Amendment Bill, and received a number of proposals from the Western Cape government.

The province proposed that the acting period for municipal officials should be extended for a period of up to nine months, compared to the current three months. The proposed acting period of six months was not sufficient for municipalities to start recruiting and complete the selection process where a vacancy unexpectedly arose, or where a municipality experienced challenges in finding a suitable candidate for the advertised post. It also pointed out that in terms of the proposed amendment, an acting municipal manager was not required to have “skills, expertise and competencies.” The province also called for municipalities to be compelled to respond timeously to directives from Ministers or Members of Executive Committees (MECs).

Members felt most of the proposed amendments were not substantive, and referred mainly to time extensions. These were discussed at length, but there was eventually consensus that the time lines proposed in the bill were appropriate.

Meeting report

The Chairperson welcomed everyone and DCOP, Western Cape government and all monitoring groups. She allowed everyone to introduce him/herself. She went on to say that she was going to leave early and authorised Mr G Mpumza (ANC) as the acting Chairperson of the meeting.

Western Cape submission on Amendment Bill

Clause 1: Definitions

Ms Anneke Clark, Deputy Director: Legislation Support, Western Cape Government, said the Bill introduced important provisions related to the appointment of senior managers, including the professionalisation of public administration in municipalities and the secondment of a municipal manager.

Their first proposal was to amend the definition of political office bearer by inserting the word “whip,” to ensure alignment with the definition in the Municipal Systems Act. She proposed an addition to the definition of “secondment,” to clarify the applicable condition when it came to secondment. She gave an example by asking if it was permissible for someone who was not in the public services to be seconded into the municipality. The description of secondment must say “public office.”

Clause 2

She said the second proposal was related to section 54A(2)(a) and (b), and they were proposing that the acting period should be extended for a period of up to nine months. She pointed out that section 54A(2A) provided that a person acting may not be appointed to act for more than three months, and a municipal council may, in special circumstances and on good cause shown, apply in writing to the Member of the Executive Committee (MEC) for local government to extend the period of appointment for a further period that did not exceed three months. She said the acting period of six months was not sufficient for municipalities to start recruiting and completing the selection process where a vacancy unexpectedly arose, or where a municipality experienced challenges in finding a suitable candidate for the advertised post. They were therefore proposing that section 54(2A) (a) should provide for a period of nine months.

On the second amendment, she said they were proposing to include incumbents appointed as acting municipal managers in the “requirements, skills and competencies.” Section 54A (1) provides that a municipal council must appoint a municipal manager, and must appoint an acting municipal manager under certain circumstances. She went further to note that subsection 54A (2) says a person appointed as a municipal manager in terms of subsection (1) must have skills, expertise, competencies and qualifications as prescribed. In light of this, she pointed out that the acting manager was not required to have skills, expertise and competencies. She proposed that the acting manager should have the skills, expertise and competencies required.

Section 54A(8) stipulates that if a person is appointed as a municipal manager in contravention of this section, the MEC for local government must, within 14 days of receiving the information provided for in subsection (7), take appropriate steps to enforce compliance by the municipal council with this section, which may include an application to a court for a declaratory order on the validity of the appointment or any other legal action against the municipal council. She said that the 14-day period should be extended to a 30-day period. Where there was a contravention of the Act and the MEC for local government took action to such an extent that the matter had to go to court, the question arose as to at what point the 14-day period commenced. The 14-day period to take action, where the appointment had been made in contravention of the Act, was not practical because municipalities failed to provide all the required documentation of the Act to the MEC, and the process involved in briefing the State Attorney and Counsel did not enable strict compliance with the 14-day period to take appropriate action.

They were also proposing a change in relation to acting municipal managers, which was directly related to the appointment of municipal managers. She proposed that section 56(1)(c) be amended to allow for an acting period of nine months. This was to ensure that only one person acted as a manager, and was not replaced after three months to ensure continuity.

Clause 3

Ms Clark said clause three was related to the appointment of managers directly accountable to municipal managers. She suggested that an acting period for up to nine months should be allowed. She pointed out that the acting period of six month, as she had alluded to before, was not sufficient for a municipality to start the recruitment and selection process where a vacancy unexpectedly arose, or where it experienced challenges in finding a suitable candidate for the advertised post, and the designated post involved a scarce skill. For sake of continuity, the bill should enable the same appointee to act in the vacant post for a period beyond six months.

She proposed that section 56(1)(b) should be amended. She pointed out that the section as it stood provided that a municipal council, after consultation with the municipal manager, must appoint a manager and an acting manager. However, it was only the person who was appointed as a manager who had to have skills, expertise, competencies and qualifications. It meant that if one was acting manager, one was not required to have skills, competencies and qualifications. She pointed out that section 56(1)(b) required a manager directly accountable to the municipal manager to have the skills, expertise, competencies and qualifications as prescribed, but did not require an acting manager directly accountable to the municipal manager to have the required skills, expertise and qualifications as prescribed. However, section 56(2) regards a decision by the council to appoint an acting manager who does not have all the listed requirements under section 56(1)(b) as null and void. She argued that at first the section allows for the appointment of an acting manager who does not have the required skills, and in the second part it says such a contract is null and void. Such contradictions had to be clarified. They were proposing that the acting municipal manager need not necessarily be required to have the skills and competencies. The regulations provide that based on the competencies of certain outcomes, the municipality must decide whether to appoint a person or not. Where the person fails the basic criteria, the regulation says one must apply caution. This meant it may not be practical to assess someone’s competence, regardless of the results. What one had to do was ask oneself if the person could act until the assessment had been done. Some people had many years of experience and skills, but they did not have the competency.

On section 56, the Western Cape government was proposing the same amendments as they had made on the appointment of the municipal manager and the appointment of the manager directly accountable to the municipal manager. Section 56(5) provides that if a person is appointed to the post, the Minister must in 14 days of becoming aware of such an appointment take appropriate steps. She said there was a need for clarity, because there were cases where there was an appointment but the Minister may not receive all the required information. She suggested that the 14 days should start ticking the day the Minister was provided with the all necessary information. She went on to propose that the 14 days should be extended to a time period of 30 days, and clarified that the 30-day period would start only when all the required documents had been submitted by the municipality.

Ms Clark said the bill as it stood now only mentioned the provision for the secondment of a municipal manager, but did not make provision for the secondment of a municipal manager directly. It was a reality that municipalities were struggling to appoint directors with technical skills. They were going for a year without being able to approve a suitably qualified person. She proposed that there should be an amendment, that the MEC was empowered to second a vacant and advertised position of manager directly accountable to the municipal manager, especially at under-capacitated municipalities.

She said section 57(6)(c) makes provision for the renewable clause within the employment contract of the municipality. It provides that if you are a municipal manager who needs to renew, the post does not have to be advertised or follow recruitment and selection processes. She proposed that section 57(6)(c) should be deleted and a new provision inserted that prohibits the renewal of employment contracts for municipal managers. She further suggested that there should be an express provision for when a contract of employment must be signed.


Mr H Hoosen (DA) said most of the proposed amendments were not substantial. They referred only to time extensions. He asked about the circumstances where the presenter suggested that where the municipality could not find a suitable manager, and the MEC had to find one. He questioned whether it was necessary to put that into law, since it amounted to compelling someone to do something that could be done without putting it into law.

Mr C Brink (DA) said they needed to be honest about the fact that local government depended heavily on compliance. He was aware that there was a review by the Law Commission into burdensome conditions on the local authority. He said the input made make sense by making the timelines realistic, and it would allow a municipality to realistically comply with the law.

Ms F Muthambi (ANC) commented on clause two contraventions. She asked about the time period proposed by the Western Cape government, and what amounted to a reasonable time in which all the issues being raised could be accomplished. On the proposed amendment with regard to contract renewals, she said as long as they kept the process open to everyone who was keen to apply, they could bring new skills from outside, but if they were to link it to the performance management system, then they should leave it as it was.

Mr K Ceza (EFF) said he had not heard a proposal about attracting skills, and asked what their proposal was for attracting managers with skills.

Ms T Marawu (ATM) commented on the issue of appointing a manager to act for a period of nine months. She wanted to understand the six months and nine months alternatives, because they were saying they needed to appoint a person who had skills and competencies, meaning that they had been appointing people without skills and competencies. This was the reason why municipalities in South Africa were failing. When they advertised that they wanted a person with certain skills, what criteria did they stipulate, or did just employ someone with a degree? She pointed out that municipalities were having a problem, and they were supposed to write a letter to the Minister of Education saying accounting and economics were very important subjects for municipalities. Most students were running away from doing these subjects, because of mathematics. They needed to go back and look at themselves so that they could run the country properly. She did not understand why they were they were still discussing issues relating to schooling. Where a municipality was having problems, the human resources department should assess whether the there was anything wrong with the people working in the municipality.

Western Cape government’s response

The presenter said it was necessary to include secondment together with their recommendation in inserting definitions. The secondment would be for a person acting in a post. The Act provided that even if the Minister seconds, that secondment would not be for more than six months. She further pointed out that secondments would be from someone within the public service or another municipality. Where the Minister assigned someone from the Department of Local Government to go to a municipality to work as director of technical service for six months, she questioned if that was a problem -- where was the municipality going to get a fulltime person developed in the municipality? The intention was for the municipality to either to approach Cooperative Governance and Traditional Affairs (COGTA) for a database of candidates that they may consider for a post. This would give relief for the six months, to ensure that there was still someone at the municipality who could do the job. The secondment would be provided during that period when the municipality was struggling to find a suitable person.

Mr Hoosen raised a follow up question, and said there were a lot of regulations for local government. On the issue of the appointment of a manager by an MEC in the event of municipality failing to find one in the department, he asked how the MEC would find a manager if the municipality could not find one. If the MEC could do it, then they could do it without putting it into law. They could not add something to the law that would be more burdening at the higher level, where the MEC and the Minister could be involved.

The presenter responded by giving an example. She said this was applicable for a sudden vacancy, when a manager says he is resigning and the recruitment process that follows fails to find a suitable person. The proposal was that the Minister may assign one of his heads of department to that municipality for six months. The Minister could draw any person from his department who would not resign if he was assigned to the municipality. That would answer how the Minister would assist in appointing managers. During that six months, the municipality should be able to recruit a suitable person.

He asked if this could be done now, without it being in law.

Ms Clark said it could not be done. When it came to rural municipalities, fortunately the upper limit for remuneration made provision for a rural allowance. Their recommendation for the secondment of managers, together with the existing upper limits provision for rural allowances attracted people to rural municipalities, and ensured that at all times the municipalities had qualified managers. If there was a problem with selection processes and they could not find someone, the Minister would second someone to occupy up the post up to the end of the period, and the remuneration and rural allowance would attract people to come and work in these municipalities. This would provide additional support to these municipalities.

Mr Ceza asked how these interventions would assist rural municipalities to escape the rural challenge of lack of capacity.

Ms Clark said the appointment of senior managers was but one component of the bigger project to capacitate rural areas. There were many municipalities that were not financially stable, and which needed capable managers.

Mr Ceza asked what the mandate would be for the municipal managers who were seconded to take a municipality out of the status of being broke.

The presenter said they would have to implement whatever mandate the municipality had. For different reasons, there were some advantages to being classified as a rural municipality. Rural municipalities were allowed to attract managers with additional remuneration.  The appointment of senior managers would make sure that rural municipalities were sufficiently resourced and funded. There was a need to mainstream the inspection of rural capacities throughout all departments.

Mr Ceza asked whether giving managers more renumeration translated to quality service delivery.

A member of the panel responded said geographical location was a challenge for many municipalities, and one way this could be mitigated was by remote allowances. The Department should have a look at this so that they attracted suitable candidates. He agreed, however, that there had to be capacitation in terms of skills development in municipalities.

The Chairperson invited the Department of Cooperative Governance and Traditional Affairs (COGTA) to make comments on the presentation, and also to make their own contributions.

COGTA’s comments

Mr Dan Mashitiso, Director General (DG), COGTA, said the amendment was unique because when the executive introduced the bill to Parliament, they had introduced it as it was. At that time, it was an Act of Parliament, and national government and the provinces were implementing the Bill, as it was the act at that time. COGTA had allowed enough time for national and the provinces to come with some proposal from the experiences that they had had through implementing it since 2011. When the Western Cape presented, he had not been comfortable because they had had high expectations from the province, since they had had an opportunity to implement the law when it was still valid.

Responding to Western Cape presentation, the DG said the Western Cape was proposing to insert “whip” in clause 1, which refer to political office in relation to a political party. He said the clause provided that the chairperson, deputy chairperson, secretary, deputy secretary or treasurer of the party nationally, or in any province, region or other area in which it operated, should not be appointed as municipal managers. He asked what was going to happen if political parties had a whip as part of their top five positions, because his understanding was that the position of a whip related to whip in a municipality, and not a political party.

On the proposed time limit extension, he questioned the rationale for extending the three months’ period in an acting capacity of the municipal manager, or the manager accountable to the municipal manager.  He pointed out that the rationale behind the time periods was to ensure that the position was filled within the time prescribed in the regulations. If they were to extend the time period, the prolonged vacant municipal position would slow down progress and effective service delivery. That was the reason they had provided a time period of three months for the municipality to act. Extending that time to nine months would create laxity within the municipality because they had extended time.

On secondment, he referred to the 14-day and 30-day period, and said the 14-day period was to give the Minister and MEC an opportunity to look at the process. The municipalities, however, failed to submit within the 14-day period. The proposal from other provinces was to introduce a punitive clause in relation to non-compliance with the 14 days. He did not understand how the extension to 30 days would remedy the issue of late submission, because some deliberately gave insufficient information and the Minister may not be able to make a determination. He suggested that they needed to add a punitive clause that forced municipalities to submit within the 14 days.

On the issue of the municipal manager, and acting in the requisite scale, the proposal suggests the municipal council must (a) appoint a manager as head of administration of the municipal council or (b), an acting manager in terms of the sub-section must at least have the skills, expertise, competence and qualification as prescribed. He suggested this should read a person appointed in terms of sub-section (1) above would report to the municipal manager and the acting person. In that way, the semantics and language would solve the problem raised by the Western Cape. He pointed out the way the section 54(A)(1) was written, it appeared as if the person appointed as an acting municipal manager did not necessarily have to have the requisite skills.

On the renewal of contracts, he said they had reintroduced the Bill as it was in 2011. The renewal created a lot of problems, because when a contract came to an end, the contract was renewed with same manager who had been acting for the past five years The Western Cape clause said renewal could be implemented only if a clause was included in the employment contract between the municipality and the senior manager. Where people did not have a renewal clause in their contracts,  municipality would be advised to amend the expiring contract to include a renewal clause. Most municipalities did that. This had created a problem in the Eastern Cape, where contracts were renewed and not advertised to attract new and suitably qualified people. He suggested that they should do away with the renewal clause, since it created a lot of confusion, and that all municipal positions should be advertised when they became vacant.

With regard to rural municipalities, there was a regulation on the appointment of senior managers, and a notice was issued by the Minister every year for the determination of their salaries. This was where there was a distinction between metro municipalities and rural municipalities. In the notice regarding the total salary of senior managers, they had included what they call the reward index. In the past it was called a rural allowance. Where the municipality was rural but within close proximity of a city or town, most of the managers would stay in the cities and travel. That was when they came up with the reward index, where the Minister’s determination provides a list of municipalities that fall within the index, and was scientifically developed to help in determining the salaries of managers. Currently they had a rural allowance which they were using to attract qualified personnel. There were proposals that they should include issues relating to engineers who decide to work in rural areas, as there were no schools and there should be social allowance. They could not see the issue in the amendment, but in the notice issued by the Minister.

Regarding secondment, the Public Administration Management Act (PAMA) had a clause in section 6 that dealt with the secondment of officials from national, provincial and local municipalities. The Committee should adopt the section in PAMA so that in the Municipal Systems Act, it would read the same as PAMA. The section provided that if an employee was seconded between a national or provincial institution, or a municipal institution, or from one province to another, the remuneration or condition of service of the person seconded would be as agreed between the executive authorities of the transferring  and recipient institutions. There was synergy between the cited section and the one in the Systems Act.

He concluded by saying the Department was embarking on the process of amending the whole Systems Act. The amendments they were dealing with was urgent, because it was coming from the Constitutional Court, and the municipalities were currently doing what they wanted in the absence of the sections that they were dealing with.

Mr Brink said he had the impression that on the renewal part, the Department was in agreement with the Western Cape. He did not hear suggestions about the whip from the Western Cape. He questioned the difference that the extension from 14 to 30 days was going to make.

The DG responded that they were giving the Committee the rationale behind the proposition. The intention of the whole process was for municipalities to recognise that when there was a law which stipulated days, there was reason for that and they had to comply. This would resolve the problem of not receiving reports at all. When a municipality finds out that it has made a mistake, it does not submit the report -- they submit it at a time when it is difficult for the Minister to take the matter to court. The court would say one had employed this person for two years, and now wanted the court to make a ruling.

Mr B Luthuli (IFP) said 14 days was acceptable, but he proposed that 30 days should be allowed for the Minister to approve the appointment of the person. The Minister was given only 14 days to comment and accept. There was a problem if the reports came to the Minister, who might not have enough time to look at them.

Ms M Kibi (ANC) said they should stick to 14 days so that people would do their work.

Ms Muthambi said if the 14 days was not practical, why did they not issue a directive saying seven-days after the appointment, or after a council resolution, this was what should happen? She did not understand why documents were produced in bits and pieces, because when a council had everything -- the vetting, the clearance, the qualifications and everything with a covering memo -- the resolution would go to the MEC and the Minister at the same time. She said a 14-day period was reasonable, and suggested that they should impose a penalty for non-compliance. They could not have flexible legislation where people did as they pleased. The Department must take charge in these matters by prescribing what needed to happen after the passing of a resolution.

The DG said the Chairperson would be surprised at the extent to which COGTA had gone in interacting with the municipalities. The Department had developed a template that had been circulated to provinces and municipalities to assist municipalities to just tick the information the MEC and Minister required to make a determination. The template had been workshopped to municipalities and provinces. In addition, the Department had established a structure that represented all provinces that sent delegates on a quarterly basis. It had a standardised template used for reporting. All these steps should be done timeously. Irrespective of the fact that they had been given templates, certain municipalities were sending documents in bits and pieces. He agreed with the Chairperson that the proposal made by other provinces last week, that there was a need for a clause that penalised those that did not comply.

The Chairperson asked Western Cape to respond about the whip.

The presenter said their proposal was the definition for a political office bearer, and not the definition of a political office. The definition of political office bearer must not change. It meant the speaker, executive mayor, deputy mayor or member of the executive council. She said the definition had nothing to do with the appointment of senior managers.

On the 30 days, she said their proposal referred to the days in which the Minister must take action and not the date on which the municipality must submit the report. Last night they had institute proceedings in the court because a municipality had not provided a report.

Department’s presentation

Mr Mashitiso started by saying there was a discussion point raised last week by the Eastern Cape about the concurrence of the Minister and the MEC. If one looked at the proposed bill, there was no mention of the word “concurrence.” They had advised all provinces not to expect the Minister and MEC to concur, because the law was very clear who the employer was, and who the person who appoints was. The section says that upon the appointment of a senior manager, the report would be taken to the MEC. It was only after the appointment that they take the process to the MEC and the Minister. He said the continue usage of “concurrence” confused him. The Minister would assess the process and whether the person had the requisite qualification and expertise as contained in the Act and the regulations. In that case, the Minister would not annul the appointment.

He went on to say the streamlining of qualifications had already been done. A person who wanted to be appointed as a senior manager in the municipality had to send the requisite qualifications as prescribed. The Minister prescribes the qualifications of all senior managers. The manager of the City of Cape Town must have the same qualifications and expertise as the manager of other cities.  He said they had a standardised way of assessing qualifications

There was controversy over the limitation of political rights. Some were saying people were being excluded from participation in the political activities of parties. It was put as if they were being forced to choose between a senior manager or a politician. This was not the case. Senior managers were not precluded from participating in the activities of political parties and taking leadership positions, except for the top five positions. A member on the national executive committee (NEC) could be a municipal manager. He wanted to clarify that it was never the intention of the law to preclude a senior manager from participating in the activities of a political party. The appointment of people because they held a certain political party card was not allowed, but stressed that in practice, this was happening.

On the attraction of skills to rural areas, as he had mentioned before, there was an allowance. Before senior managers were appointed, they were assessed, and COGTA had developed specific sector bodies that were used to determine the competencies of senior managers. The Department was challenged by people with basic outcomes from competence test assessments. The law said people who had the basic requirements should be appointed with caution, and must be given an opportunity to improve on their identified skills gap. There was need to review the regulation to ensure that people who were “basic” were not appointed.

There were instances where the MEC and Minister wrote letters to provinces to ask them to take certain steps, but the municipalities ignored them. The question was what the basis was for the MEC to go to court to get a declaration order. They had called all the provinces telling them that they must give the Department proof that they had responded to the MEC and the collective measures taken. They had visited the Northern Cape, and since that visit, the province had stopped taking the matters to court. The Department was following all the provinces where the MEC had sent a letter informing a municipality to take action.

He added that he wanted the Committee to know that the Department’s proposal was not the panacea to the problems facing municipalities, but they were sharing what they thought might be of assistance.

Mr I Groenewald (FF+) said the Department should be careful not to confuse itself over the definition of political office. Being a member of an executive of a branch would fall within the definition in section b. Even if one was a co-acting member of the executive, one would be excluded.

The Chairperson said they could not have officials playing politics in municipalities. Municipalities were failing because of political fights. There was a submission by Mpumalanga and Limpopo, and they wanted the Department to make their proposals.

The DG said they had compiled a report on the responses made to the presentations. He requested one of his colleagues Ms Nakedi Monyela, Deputy Director: Municipal Public Administration, to respond.

Ms Monyela referred to the 14 day period which the Eastern Cape and Western Cape were saying should be extended, and said the Department did not support the extension. It did not solve the problem of submissions. Even if there were a 30-day extension, the municipalities would still not submit.

Mr Ceza asked the Chairperson if the Committee had been given the report.

The Chairperson said they did not have the report.

Ms Monyela continued that the municipalities were supposed to submit the same report that was tabled to the Council, to the MEC, which included the appointment letter of a senior manager. They did not support the claim that they were delaying because they did not have all the supporting documents.

She pointed out that the Bill provides that the person must act for a period of three months, and if they cannot, they must allow for secondment by the MEC. While the Western Cape supports the extension of this period to nine months, COGTA does not support the extension. They should stick to the six months provided in the amendment. To address the problem, the Department had compressed the time frame for municipalities.

On the proposal of acting managers being directly accountable to municipal managers, the Department supported it because they had had implementation challenges from 2011, and the current bill did not provide for it.

On concurrence, the department maintained that there was no concurrence, so the status quo must be maintained.

On section 54(A), the Department was in agreement with the Western Cape proposal -- they should include the wording “municipal managers” and “acting municipal managers.” There was a proposal that section 56 managers must be appointed by municipal managers, but the Department did not support the proposal. Councils had a right to appoint and dismiss municipal managers and section 56 managers.

On the renewal of contracts, the Department supported the Western Cape proposal because there had been a challenge for the past nine years, with the court ruling that all positions of senior managers must be advertised. The spirit of the amendment Bill was that there should be stability in local government.

She added that the Eastern Cape had made a proposal that there must be a provision for an acting municipal manager if the municipal manager was incapacitated -- for example, if he was on sick leave. This could be provided for in the council’s policy, and it was not necessary to prescribe this in the amendment Bill. On secondment, the Department did not support the extended three months’ extension.

Ms G Opperman (DA) said there should be no renewal of contracts, because she has experience of local government. After the term of the old council ends, the municipal manager must also go. If the manager was good enough, the council would return him, and if not, there should be a renewal to bring in new expertise. She believed that the municipal manager should not appoint section 56 managers because there was too much authority in one person. She also argued that the Bill should not allow the nine months’ extension because six months was more than enough, even for rural municipalities.

Mr Brink said all the arguments against extension would make sense if they knew that the municipalities had the ability and capacity to respond in 14 days. For example, if the MEC for local governance in Eastern Cape realised that Nelson Mandela Bay had appointed somebody who did not have suitable qualifications, they would first have to evaluate the evidence to see if the documents were forged, whether the qualifying authority had the credentials, and had to prepare an application and submit it within the 14 days. After considering whether those MECs had the capacity, if one looked at the extent of the problems of local authorities, they cannot comply. He concluded by saying that they needed to be realistic about the abilities of municipalities

The presenter responded by saying the 14-day period was not set to suit the municipality. The senior manager regulation prescribes minimum documents that must be submitted to the Minister to exercise oversight, to see if the appointment followed prescribed procedures. One was that the municipality submit a certificate that was used by the candidate when he applied for the job, and the resolution of the council to appoint the successful candidate etc. The assumption was that at the end of the recruitment process, the municipality would have all the documents available that should be submitted to MEC to determine whether due process had been followed. The process of determination to fill a vacancy of a manager would take about 90 days.  From the day the municipality get the applications, they have time to do the reference checks. The 14 days was about putting together what was there on record. It had nothing to with municipalities checking documents, so the period was realistic. If the Department was to follow the Western Cape proposal that the 14 days should be read as being upon receipt of all the required information, an extension to 30 days would not serve any purpose.

Mr C Sibisi (NFP) said that the Western Cape and KZN were the leaders in relation to taking matters to court, and the courts were questioning the Department with regard to the time frames after the submission.  He said asked if the Department had the capacity to deal with the recommendations and approach the court with the required information.

Ms Opperman said in Northern Cape they have ignored three letters from COGTA and the MEC. They had written a letter to council saying they must remove municipal managers because they did not qualify.  She had some problems with a council delaying declaring recommendations in the Bill. A council should not be delaying declaring recommendations. The Act says the MEC must go for a declaratory order. In her case, with the recommendation letter, there was nothing moving forward. No one applied for a declaratory order. If the MEC did not go for a declaratory order, the national COGTA Minister must intervene and go for a declaratory order. She had submitted letters to the National Minister three years ago, but nothing had happened. The municipal manger was hiring and firing as he wanted. She asked who was supposed to pay at the end of the day, because people were losing their jobs to a person who was not qualified.

The Department responded that there were outstanding cases in Northern Cape, where the Minister or MEC had said they were going to take action and remove the managers. The only body that could dismiss a person was the municipality. In cases where the municipality did not convene a meeting to look at the recommendations, or sat but failed to reach consensus, the Act was silent on such issues. In such cases, the Minister had to take the matter to the court. The Department needed to look at how to flex the muscles of the MEC and the Minister, to force the municipality to adhere to their directives. The municipality should be forced legislatively to submit. The Department should maybe withhold grants to compel the municipality to comply. However, the negative part of this was that this would affect the community. He agreed with Ms Opperman, as he knew the cases which she was referring to.

The Department said the invalidation of the Systems Bill had created an atmosphere where municipalities were not complying with the spirit of the bill. COGTA was therefore fighting to get the bill back in Parliament to be enacted so that it created leverage which could be used to monitor, support and force compliance. In the absence of the legislation, it was very difficult. The office of the Auditor General (AG) was monitoring some of the directives issued by the Minister.

The Chairperson referred to the appointment of acting municipal managers when the municipal manager was in capacitated or suspended for a short time period. On the implementation of the legislation in section 66 and 67 of the Systems act, a municipality must have human resources policies that were consistent with the regulations of the applicable municipal act. She was of the view that such a matter should be provided for in the council policy. The policy could provide that an acting manager could be appointed by the council for three days if the municipal manager was on sick leave for three days.

Mr Ceza said that if the council had to be convened, and there were processes that needed to be followed, who would be managing the municipality? He was not opposing the Department’s proposal, but he wanted to highlight the challenges that came with the Bill. His view was that council must take the decision and be responsible.

The Department responded that if the municipal manager was incapacitated for three days, an acting manager must be appointed for three days.

Mr Ceza asked what action had to be taken within the period before the appointment of the acting manager.

The Department said that whenever the manager was incapacitated, a person would be appointed by the municipal council to be an acting municipal manager. One did not need to convene a special council meeting. One merely had to have a council decision stating who would be the person acting on behalf of the municipal manager.

The meeting was adjourned.

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