The Standing Committee on Local Government was briefed by the Department of Cooperative Governance and Traditional Affairs, supported by the Independent Electoral Commission (IEC), on the proposed amendments to the Municipal Structures Amendment Bill 2018.
Members were told the changes were informed by challenges that had been experienced by the IEC in the administration and management of local government elections. There were amendments that were related to the establishment of the executive committee, the councillors’ code of conduct, and the powers of the speaker and the Member of the Executive Council (MEC).
Members raised questions about the proposed changes affecting the code of conduct, and on the role of the MEC, whose impartiality might be compromised through being a political appointment.
The Committee agreed to make use of all virtual platforms to canvass public opinion on the amendments, rather than delaying the process because of the challenges posed by the COVID-19 pandemic.
Local Government: Municipal Structures Amendment Bill, 2018 [ B19-2018]: Briefing
Dr Kevin Naidoo, Director General: Department of Cooperative Governance and Traditional Affairs, and Mr Granville Abrahams, National Senior Manager: Independent Electoral Commission (IEC), briefed the Committee on the proposed amendments to the Local Government: Municipal Structures Amendment Bill, and commented that the amendments were related to proposals received from the IEC.
These changes were informed by challenges that were experienced by the IEC in the administration and management of local government elections (LGEs). The Committee was advised that there had been engagements, and stakeholders had made their presentations on 13, 14 and 20 November 2018. The Bill had been debated in Parliament on 13 February 2019, and thereafter submitted to the National Council of Provinces (NCOP) for concurrence. The Minister had subsequently requested the NCOP to consider the Bill in June of 2019, but it had been revived by the NCOP in October 2019.
Dr Naidoo said that the definitions section had been amended with the term, “Declared elected” defined. It was proposed that the date of the declaration of the results by the IEC was the date of assumption of duty. The definition of “DMA” was deleted, and there was the insertion of the definition for “whip”. The Committee was also advised that Section 6, which dealt with District Management Areas (DMAs) and other related provisions dealing with it, were repealed. Sub-sections 7 (c), 9(e) and 9(f) were deleted to do away with plenary type municipalities, which limited executive authority to the full council.
Section 20 had been amended by prescribing a minimum of 10 councillors in a local or district municipality. This was aimed at including the geographical size of a municipality as a criterion when determining the number of councillors. This meant that if fewer than 35 councillors resulted from the application of the formula in a large municipality with an area of no less than 20 000 square kilometers, then the Member of the Executive Council (MEC) may deviate the number by no more than 20%. This clause was intended to deepen democracy in instances where fewer councillors had been determined for large municipalities.
On the qualifications of councillors, any councillor removed from office by an MEC for a breach of the code of conduct may not stand as a candidate in an election for any municipal council for a period of two years after being removed from office.
Coming to by-elections, the proposed amendments require the municipal manager (MM) to inform the MEC and the IEC of a vacancy within 14 days after such a vacancy has arisen. The MEC -- not the MM -- must call and set the date for a by-election in the Provincial Gazette, and not the local newspaper. The MEC -- not the MM -- may not call a by-election within nine months, and not six months.
Regarding vacation of office, Section 27 had been amended to make a cross-reference to the definition of authorised representative in the Municipal Electoral Act. On meetings of municipal councils, the section would be amended to ensure a person designated by the MEC must call a meeting in instances where the Speaker refused to do so. This had been done because experience had shown incidences where a Speaker/Acting Speaker had deliberately delayed or refused to call a meeting. In Section 30, which referred to quorum decisions, the proposed amendment confirmed that the number to be considered to determine the quorum in a meeting must be the number of councillors as determined by the MEC in terms of section 12 of the Structures Act, and not the number of incumbents, which excludes vacancies.
Focusing on Clause 27, the Members were advised that item 18 (1) (b) had been amended to provide for the MM to report a vacancy within 14 days and not seven days, which was presently the case. Item 18 (1) (c) had also been amended to provide that if the MM did not inform the IEC of a vacancy, the MEC must do so. This entire clause was aimed at providing more time for the reporting of a vacancy by the MM, and also at allowing the IEC to prepare for elections without disruptions from parties who continuously changed their lists in the run-up to elections.
In Clause 29, the item had been amended to also include the whip as an office-bearer. This essentially gave effect to the provision of the whip as proposed in the section.
Focusing on Clause 30, which deals with code of conduct, the Committee was advised that the proposed amendments noted that Schedule 1 of the Municipal Systems Act had been migrated to the Municipal Structures Act (MStrA), which requires compliance with the code of conduct in the council and council committees.
Dr Naidoo referred to Section 36 whose focus was on the election of speakers, and said the section had been amended by the substitution for subsection (5) of the following sub-section: “A councillor may not hold office as speaker and mayor or executive mayor at the same time, but in a municipality of a type mentioned in section 9(e) or (f) or 10 c), the speaker must be called the mayor.”
This alignment with the abolition of the plenary type municipality emphasises that a councillor may not hold office as speaker and mayor in any municipality. Also, in Section 37, the Committee was advised that there had been new additional sub-sections (g) on the legislative arm, (h) on the executive authority, and (j) on ethics and accountability. These sections’ thrust was to strengthen the role of the Speaker, and to promote the proper functioning of the executive and legislative arms of the municipality.
Mr A van der Westhuizen (DA) referred to the issue of the minimum of ten councillors per municipality, and argued the practicability of that amendment, since they did not have an even number. In the case of an election dispute and results were postponed because of appeals to the IEC, when would the definition of “elected” be in effect? He also sought clarity on when the cooling-off period started.
Dr Naidoo said the issue of ten councillors was to deepen democracy in instances where fewer councillors had been determined for large municipalities.
Mr Abrahams responded on the appeals question, and said that after the appeal had been settled, the dates would be backdated.
Focusing on the cooling-off period, Dr Naidoo said this would start as soon as the Act became law.
Mr D Smith (ANC) was concerned about the impartiality of the MECs, as many were political party executives, and these powers might lead to a conflict of interest.
Dr Naidoo responded that they would look into that clause and strengthen it to address this concern.
Mr Van der Westhuizen suggested the code of conduct clause might be problematic in instances where a councillor missed meetings due to illness, because the code stated that if a councillor missed three consecutive meetings, he must be fired. Dr Naidoo noted the query, and agreed that there was a need for that clause to be tightened up.
The Chairperson thanked Dr Naidoo and Mr Abrahams for the presentation, and asked Members on how they should proceed with taking the Bill to the public for input.
Members agreed that due to the challenges which were being compounded by the COVID19 pandemic, the Committee should make use of all virtual platforms to harness people's ideas and opinions on the Bill.
The meeting was adjourned.
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