Local Government: Municipal Systems Amendment Bill [B2-2019]; with Deputy Ministers

Meeting report

Deputy Minister’s overview

Mr Parks Tau, Deputy Minister of Cooperative Governance and Traditional Affairs (COGTA), outlined the background for the deliberations on the Municipal Systems Amendment Bill. This was an ongoing discussion and not a new subject to the Committee. The court had ruled that the Bill should be tagged to the National Council of Provinces (NCOP), and thus required that the process be restarted. The Bill had been presented to Parliament, and at this point the legislature was meant to sort out issues in relation to management and administration, including the qualifying criteria for senior officials in government, possible conflicts of interest, and so on. Submissions and comments had been received from various stakeholders, including the South African Local Government Association (SALGA) and labour.

Municipal Systems Amendment Bill

Mr Tebogo Motlashuping, Acting Deputy Director-General (DDG): COGTA, outlined the various provisions that were up for deliberation, comments from stakeholders and the Department’s response to stakeholder comments on each issue. The issues that were placed before the Committee included the definitions’ inclusion of “whip and secondment,” the appointment of municipal managers and acting municipal managers, the extension of the acting period; a penalty for non-compliance with the 14-day period for the Member of the Executive Council (MEC) to take appropriate action; concurrence; and the appointment of an acting municipal manager where the municipal manager was incapacitated (sick leave) and it was not practical for council to meet to appoint an acting municipal manager.

The presentation also highlighted considerations on the acting period of six months for the recruitment and selection process; the skills, expertise, competencies and qualifications of a manager vs an acting manager accountable to the municipal manager; the secondment of municipal managers; the secondment of managers directly accountable to municipal managers; the municipal manager appointing managers directly accountable to him/her; and the fixed term contracts of managers directly accountable to municipal managers. The presentation closed off by also highlighting the issues on the limitation of political rights of municipal managers and managers directly accountable to municipal managers; the renewal of fixed term contracts; collective agreements; and maladministration, malpractice and mismanagement

Discussion

Mr C Brink (DA) appreciated the brevity of the presentation, and flagged that it would still be useful if reference was made to the actual clauses of the Bill in the presentation. His comment was based on s54A(8), which involved a provision saying that once the MEC received details about the appointment of a senior manager, the manager would have 14 days to take certain actions, including going to court to set the appointment aside. He said the point of contention before the Committee was that 14 days was inadequate for the process of instituting legal proceedings. The municipal manager would have 14 days since the date of appointment to submit papers to the MEC, and then the MEC would have a further 14 days once the MEC had received the information to act on any patent illegalities. The reasons for rejecting this were not clear.

He said there was a legal challenge on the restriction of senior managers to hold political office. When the matter initially went to court, the court had not made a decision about this substantive issue, and had instead set the matter aside on the basis of a tagging issue. This limitation, as it stood in the Bill, was probably above reproach because it was justifiable in its purpose to achieve a professional local government, as senior managers holding political office undermined this important constitutional objective. He asked that the Department comment on the proposal of SALGA to extend the limitation in s56(A) to all municipal officials, including both junior and senior managers. This sounded like a good idea on the face of it, as it would make the municipal administration completely apolitical. He also asked that the state law advisors comment on the constitutionality of the proposal, considering the s36 constitutional limitation clause.  

Ms H Mkhaliphi (EFF) asked for clarity on where the Committee was in the process of deliberations because stakeholders were present.

The Chairperson responded to say that the stakeholders present were just there as observers. The Department had consolidated all stakeholder submissions and in the previous meeting it was not able to finish its responses, which led to the current meeting. She explained that at the moment members of the Committee were asking questions in order to decide whether the Committee agrees or disagrees with the proposals. The law advisors’ input would guide the Committee’s considerations.

Ms Mkhaliphi remembered when SALGA had come to present their perspective, they had been very passionate, but their contribution was not clear in the presentation. She agreed with SALGA that the 14 day period to communicate with the MEC would not work, as sometimes the MEC responded three to six months later, as there was no legislative timeframe on when the MEC should respond. When the MEC responded months later, this disorganised the municipalities. This concurrency of the MEC must be debated by the Committee and addressed accordingly by the Act. In her understanding, the DDG was supporting fixed term contracts for municipal managers, and asked him to clarify whether, in terms of s198(b) of the Labour Relations Act (LRA), this position would not come back and bite the government if it contravened the LRA.

Mr H Hoosen (DA) said that the way he understood the slide in the presentation on the provision relating to SALGA’s proposal to ensure that all officials of the municipality must not hold political office, was that COGTA was proposing the removal of that clause completely. If this was the case, he suggested that the Committee support the view of SALGA to expand that provision to all officials of the municipality. He said that last year he had been having a casual conversation with a very senior manager in a municipality who had related that a junior official in his own department, who also happened to hold a very senior office in his political party, was appointed into a position at the municipality a few months ago, and had since not showed up for work. This junior official’s job was to do daily political organising. The manager could do nothing about this because the person appointed held a senior position in the political party. This was not an uncommon case. If government genuinely wanted to rid municipalities of all forms of political interference, then it should try to professionalise operations in all municipalities and isolate all political influence, so people appointed did what was in the best interests of the municipality. He asked for clarity on whether the Department wanted to remove this provision.  

Ms G Opperman (DA) said she would like to reiterate some of the comments by Mr Brink and Mr Hoosen, because the Constitutional Court did not decide that the s56 (A)(1) restriction was unjustifiable as per the s36 limitation clause in the Constitution. When the court made its ruling, it was based on the procedural flaws of the bill, as it had not been categorised correctly -- it should have been categorised as a s75 bill rather than a s76 bill. She still had some concern about how to prevent job-hopping from municipal managers and chief financial officers (CFOs), and believed that there must be some kind of blacklisting of those dismissed for financial misconduct. She asked the Department to clarify its stance on s106 investigations, saying that if the Committee decided on that, councils must be compelled to implement the resolutions.

Ms M Tlou (ANC) commented on the problem statement on page 9 regarding expenditure. She said that due to COVID-19, residents in many municipalities still needed to be rebated, particularly on water and electricity. She asked for clarification on what the response to this would be. The prolonged labour dispute needed to be avoided at all costs, and be resolved as soon as possible. The dispute should be minimised to ensure that workers were at work at all times. On the issue of the appointment of municipal managers and managers being directly accountable to municipalities, she said that based on the situation at the City of Tshwane there was a long problem of acting senior positions that needed to be urgently resolved, particularly those of acting accountant, acting deputy director and director. In some instances, one would find that a person had been in that position for 10-15 years, and sometimes this person may be unqualified according to their educational qualifications for the position. On the issue of COVID-19 she said that there needed to be adequate PPE.

She was interrupted by noise disturbances and a lack of clarity, and explained that she had been speaking on issues of nepotism and lack of performance management.  

Ms Mkhaliphi asked that Ms Tlou clarify which presentation or document she was referring to, as it seemed her questions were not related to the meeting at hand.

The Chairperson asked that Ms Tlou be muted by admin because of noise disturbances from children in her audio, and a lack of substantive clarity in her questions.

Mr G Mpumza (ANC) referred to the slide on the limitation of political rights, saying that it seemed that the Department was supporting the limitation of only the municipal managers and managers accounting to him. Perhaps the expansion of the limitation of rights to all employees, as recommended by SALGA, would be appropriate because at the moment, looking at the objectives of the amendment, underpinning those objectives was the profit marginalisation of the sector. Critically, it was to address the challenge of the political and administrative interface. If the limitation of the rights was not extended to all employees of municipalities, there would be the same unintended consequences, where a junior employee would hold a senior position in the political structure and this would pose a challenge to the administration and professionalisation of the municipality. The Department should review this recommendation from SALGA to extend the limitation to all municipal employees.  

The Chairperson shared the same sentiments with Members on the limitation being extended, though she was mindful of the question asked by Mr Brink on the constitutionality of that extension. She asked if the Department was serious about the professionalisation of local government, reiterating how common the story told by Mr Hoosen was.

COGTA’s response

At this point, deputy Minister of Cooperative Governance and Traditional Affairs, Mr Obed Bapela, was welcomed to the meeting. He noted that he had been listening in.

Mr Motlashuping said that he would respond to some questions, but not necessarily in defence of the position of the Department.

The rationale behind the 14-day period in relation to the reporting of the appointment of senior managers to the MEC, and subsequently to the Minister, was the tendency of municipalities to prolong the finalisation of the appointments of senior managers. The Department was not totally married to the 14 period, but was proposing that if the prolonged period was allowed, and the internal processes of the appointment had been completed, then municipalities would report within the required time, be it 14 or 30 days. Members should consider the consequences when the time period was not committed to.

Regarding the limitation of political rights, he affirmed that the Committee Members were right in saying that the court did not decide on this substantive issue. The Department was not saying that this proposal should be removed, but it was saying that Members should deliberate on this, and the state’s legal advisors should review whether the extension would pass constitutional muster. If it passed constitutional muster, then the Department had no problem with it. This provision had brought stability to the municipalities, and its extension might bring further stabilisation ipalities by differentiating between the political and administrative arms of councils.

On the issue of fixed term contracts, the Department’s point was that municipal managers may be appointed on a fixed term contract, but managers accountable to municipal managers – the so-called s56 managers -- should be employed on a permanent basis for stability, institutional memory and continuity. The Department had seen an influx of senior managers after every local government election, and a lot of money was spent on capacitating these senior managers.

In response to Ms Opperman‘s concern on job hopping, he said there was already a provision in the proposed amendment and the municipal regulations. This was to the effect that any staff member guilty of misconduct, whether financial or otherwise, would have their name included in the Department’s database and the person would be precluded from being employed in the municipal space.

In response to Ms Tlou’s concern over people remaining in acting senior positions for an excessive length of time, he said that by law, senior managers were not allowed to act for a period exceeding three months. In the event that screening processes had not been finalised, then municipalities would request an extension from the MEC. The Department would look into the Tshwane senior managers who had been acting for a long period. This may be related to other officials of council and not necessarily senior managers, because there was a committee dedicated to reviewing acting positions on a quarterly basis and where there was wrongdoing, the Minister would inform municipalities to act accordingly.

In response to Mr Mpumza on the limitation of political rights, he reiterated that the Department had no problem with the extension of this provision to all staff members in municipality, but the constitutionality of that extension needed to be looked into. It had been a bone of contention from the South African Municipal Workers Union (SAMWU) in the initial court proceedings, and the issue on tagging had been secondary. There was a possibility that there would be a constitutional challenge, but the Department was comfortable with this if Members of the Committee were also comfortable with that possibility.

Follow-up discussion

Mr B Hadebe (ANC) asked a question in relation to the provision concerning the appointment of the acting municipal manager where the municipal manager was incapacitated or on sick leave, and it was not practical for council to meet to appoint an acting manager. He noted that the proposal from the Department was that this matter should be provided for in the human resources policy adopted by council. As things stood, s59 dealt with systems of delegation, and he asked why this could not be dealt with within this section. He said systems of delegation should be clear in the event where a municipal manager was sick. The delegation should be delegated to certain individuals until council met. He raised a concern that if it was going to be in the human resources policy, this may be in conflict with systems of delegation.

Mr Motlashuping said the Department had indicated it would be prudent for the provincial and national Departments to support local government to capacitate municipalities so that within their pool, they could have competent officials to act as acting municipal managers. He found the proposal by Mr Hadebe interesting, and this would be looked into and presented as a clause to deliberate on, to strengthen delegation systems.

The Chairperson commented on the issue on appointments, saying there was nothing wrong with the 14-day provision. She explained that the problem was not with the municipalities, but with the MECs who were delaying in responding to the municipalities. Some took up to six months, and when the municipality implemented the council resolution, the MECs then took them to court. She reminded Members that at the last deliberations, the Deputy Minister had said that they did not have control over the MECs. She would therefore have wanted to see a proposal on how to empower either the Minister or the Department to have this control over MECs who were not compliant. She pointed out that there was a proposal on penalties and remedial actions for delinquent MECs that were not compliant, to be deliberated on. It was not appropriate for the Department to say it did not have control, without providing a solution.

Deputy Minister Bapela reiterated that the court case on the Bill had set aside the Bill on tagging issues, and confirmed that these tagging issues had been resolved. Deputy Minister Tau had been delegated to deal with the substantive issues relating to the constitutionality of the contended provision.

Deputy Minister Tau said that it was clear that there was agreement on the need for professionalisation of administration in the municipal space, so there needed to be legislation to this effect. As government clarified this legislation, it should ensure that cross-pollination of political and administrative functions was limited, or mitigated to the extent that it contributed to some of the governance challenges. The drafting of the legislation should not contravene the Labour Relations Act (LRA), as had been raised by Ms Mkhaliphi, and must rather strike the appropriate balance. Government needed to make sure that it facilitated and enabled an efficient and effective local government administration and governance system. He stressed that striking the appropriate balance in this complex environment was not an easy exercise.

He said anticipating possible constitutional challenges would depend on the final draft of the bill at the point of proclamation. At this point, the Department would be able to see if it had been able to mitigate any constitutional challenges. He suggested that if government finalised this legislation to include that MECs had a duty in law to respond within a prescribed time frame, if the prescribed time was not adhered to, then tacit consent should be assumed. If this was the case, it would not mean that the government was saying that the Department would discipline an office bearer, but rather that discipline would flow from the legislation. This was so that the actions of national and provincial officer bearers did not undermine the administrative and political functions in the municipalities. Delineation of responsibility was on its own not going to be an issue, but there needed to be an appropriate balance struck in how the final draft was finalised.

Ms Yolande van Aswegen, Principal State Law Advisor, said she had not prepared a presentation, but would answer on the constitutionality of s56. SAMWU had objected on the basis that it was an unjustifiable attack on the right to make political choices, and other rights. SAMWU had also said that the definition of political office in the Bill was vague, to such an extent that a municipal manger was inadequately guided for the purpose of avoiding contravening the Act. She said the court had not decided on this substantive challenge, as it had already found the bill procedurally unconstitutional.

S56 (A), even if extended to all the employees, was a limitation on rights, but what had to be established was whether that limitation was justifiable. The onus would be on the Minister to place the necessary evidence before the court to justify the limitation on rights. In the state advisors’ opinion, they had considered the reason for the limitation and found that there would be no reason that this limitation would be unjustifiable in terms of the s36 limitation clause. It was up to the Committee to decide on whether this provision should stand and / or be extended to all employees. There would always be a possibility that the provision would be challenged in court.

Adv Frank Jenkins, Senior Parliamentary Legal Advisor, said the s56 (A) provision came from the Department in 2009, and had been a policy decision taken at that level. Parliament was responsible for the procedure and when this was in court, it had answered unsuccessfully on the question of tagging. The question on the provision was a policy issue, and not necessarily for the court to decide. The purpose of the provision was stability within local government. When the lawyers dealt with it in 2009, the purpose had been to depoliticise the public service within local government and enhance service delivery.

He stressed that there had to be proportionality between the purpose and the limitation, so there needed to be clarity on the purpose as well as the evidence that this worked. The critical issue was whether it was the least restrictive means that could be used to achieve this purpose. If SAMWU took this to court, their burden was simply to aver that it was unjustifiable and the burden would fall on Parliament and the Minister to give evidence and say that there were no less restrictive means to achieve the legitimate objective. He suggested that the Department show evidence that this was necessary and justifiable, as per the s36 limitation clause.

The Chairperson said that the comments of the law advisors were fair enough, and the Committee could move along those guidelines. She allowed Members to comment.

Mr Brink commented that he thought the purpose of the limitation was crystal clear. He emphasised that the constitutional imperative of a professional public service was a valid objective, and he did not think there would be issues if this was in fact challenged in court. He also thought there were sufficient grounds to support the extended prohibition.

Mr Hadebe wanted to clarify that the limitation of political rights related only to those who were office bearers of political parties.

Mr Hoosen said that if he understood Adv Jenkins correctly, he had said that the Department should probably advise whether or not the provision to expand the limitation of political rights was the least restrictive measure. He said it would it beneficial to get some response from the Department, or deal with it at a later stage if the Department needed some time to apply its mind.

Mr Mpumza said that both Ms Van Aswegen and Adv Jenkins were indicating that there was a probability that the issue of a limitation might pass constitutional muster, provided that there was a critical balance between the purpose and the limitation. This indicated that the extension may be justifiable, as the Department was geared up enough to advance its argument and evidence that the limitation of political rights to all employees would achieve the objective of professionalising local government for the purpose of achieving stability. This was in line with the Acting DDG’s statement that after the implementation of this in 2011, some semblance of stability in the municipalities had been achieved. This would be one of the considerations that would have to be advanced by the Department to ensure that this was actually achieved. He added that if one looked at chapter 10 of the constitution, and how it outlined the professionalisation and the standards in the public administration of South Africa, and in line with achieving a capable developmental state, these were matters that would need to be taken into consideration for this amendment to be effected.

Ms Van Aswegen answered on the clarification of ‘political office’ and ‘political office bearer.’ She said both these terms were defined in the Municipal Act, although s56(A) speaks directly to holding political office. According to the Act, political office was a position of chairperson, deputy chairperson, secretary, deputy secretary or treasurer of the party nationally, provincially, regionally or in any other area in which the party operated. Part (b) of this definition explained that this also applied to any other position in the party that was equivalent to the position in paragraph (a), even if the position was not specifically labelled as in paragraph (a). She indicated also that ‘political office bearer’ was defined in the Municipal Systems Act as a speaker, executive mayor, deputy executive mayor, mayor or member of the executive committee.

Adv Jenkins commented on the extension of the limitation to all employees, saying that the purpose of that limitation and the efficacy of that purpose might be affected if the legislation referred to senior employees only as a generic term. One would have to deal with the discrimination between the employees on why some had their rights limited and others not, given the fact that the purpose was total professionalisation in the sector. From where he was sitting, it seemed that the distinction between senior and junior employees could be a problem in light of the purpose.

The Chairperson asked if the Department was able to share the evidence, as had been asked by Mr Hoosen.

Mr Motlashuping answered that the Department had indicated that prior to 2011, when this was enacted into law, there were other issues that had tampered with the smooth running of municipalities, and also affected the quality of service delivery. The Department had seen stabilisation after the enactment of the section that eliminated the obstacles in the administration. The Department could provide details on this evidence later.

In response to comments by Adv Jenkins, he said that whether this particular limitation was justifiable and was the least restrictive measure to ensure professionalisation of the sector, was a conversation the Department had had as part and parcel of a conglomeration of issues, including discussions around competency. The Department would develop some sort of a submission in relation to the experience on the provision to prove that there had been some improvement. He was aware that SALGA could also provide such evidence.

The Chairperson asked how soon the evidence would be available, as it affected the Committee’s deliberation process.

Mr Motlashuping said that the information would be provided after a week.

Mr Lance Joel, Chief Operating Officer: SALGA, said SALGA had compiled some work and should be able to make a comprehensive submission available to the Committee by Tuesday next week.

The Chairperson agreed with the delegation that the evidence should be provided to the Committee by the end of the business day on Wednesday. She asked Members if the Committee could wait for this evidence before proceeding with the deliberations.

Ms Mkhaliphi proposed that the Committee wait for the evidence. Mr Hadebe seconded the proposal.

The Chairperson said that this time would give other Members of the Committee the opportunity to go through the presentation document. When the Committee reconvened, it would be to consider the evidence, the legal advisors would give their input, and Members would make their proposed amendments.

The meeting was adjourned.