Local Government: Municipal Structures Amendment Bill: Department of Local Government & SALGA input

Meeting report

The Chairperson said the purpose for the meeting was to receive a briefing from the Western Cape Department of Local Government, the South African Local Government Association (SALGA) and other stakeholders on the proposed amendments to the 2018 Local Government: Municipal Structures Amendment Bill. It followed a call by this Committee to solicit comments from the public and other stakeholders. The Committee had received written and electronic comments, so this meeting was convened to consider inputs from the public and stakeholders, and even from those who wished to make inputs in person today.

Western Cape Department of Local Government submissions

Mr Kamal Makan, Director: Municipal Governance, Western Cape Department of Local Government, referred to Clause 1(a), and said the purpose of the proposed definition for “declared elected”, per the memorandum on the Objects of the Bill (Memo), was to provide clarity. To fully clarify, it was proposed that the words “by the IEC (Independent Electoral Commission)” be included at the end of the proposed definition.

He moved on to Clause 3, read with clauses 4(e) and (f), 5 (c), 16, 26, which dealt with the deletion of the Plenary Executive, and made the following comments:

• It was the view of the Western Cape Government that the deletion of the plenary system of governance would restrict the possible governance structure options that a Member of the Executive Council (MEC) may consider appropriate, and therefore it was not supported.
• What happened when an MEC established a municipality?
• Establishment of a municipality was a consultative process.
• What happened when a municipality and the MEC did not agree on an executive system?
• It also removed the ability of a municipal council to revert to a plenary system by default if it decided not to exercise its election in terms of section 42(2) or 54(2) of the Principal Act.
• With an increasing number of coalition governments in the country, it was very possible that a municipal council and an MEC may not agree on a particular system – which in this case, the plenary system by default comes in.
• A plenary system also minimised costs for the municipality in relation to the number of full-time councillors, in contrast to other types.

Mr Makan said that in Item 5(2), the words “must be removed from office as a councillor” must be changed, to “may be removed from office as a councillor.”  This would align the provision to the rest of the provisions in item 5 thereby allowing for a uniform procedure to be followed that complied with the rules of natural justice before a councillor could be removed or fined.

With regard to the conduct of investigations, it was proposed that provision be made in the Code that a person who could act as an initiator in the investigation be appointed.

Referring to Clause 23 -- Establishment of Municipal Public Accounts Committee – he said it was not clear from the provisions of the new proposed clause 79A, when it was envisaged that the reports and reviews referred to should be done, because no time periods were provided for. The provision in the new proposed clause 79A(5)(b) was already provided for in section 166(1) of the Local Government: Municipal Financial Management Act, 2003.  The new proposed provision was superfluous. It was proposed that clause 23 be reconsidered and elaborated upon to be more decisive and clear.

SALGA submissions

Mr Johan Coetzee, SALGA Chairperson, submitted that SALGA resolved to support:

• The insertion, deletion and substitution of the definitions as proposed for “declared elected”, “district management area” and “election”;
• The insertion of a new definition of “whip”, with the exception that a similar practice, as at the national and provincial level, should apply for local government through the recognition of the appointment of whips at a political party/political interest level, and a single “Chief Whip” or “Council Whip,” as elected by the municipal council.
• The deletion of Sections 7 (c), 9 (e), 9 (f) and 10 (c) and all reference to plenary type municipalities, with the following further proposals for consideration:

• In light of the broader implementation implications, it may be necessary for these amendments to come into effect only with the next local government elections;
• Plenary type municipalities were generally small municipalities with a small number of councillors, where having an Executive Mayor with a Mayoral Committee may not be feasible. It was therefore proposed that these types of municipalities should be collective executive systems, combined with a ward participatory system, with a threshold placed, based on the number of councillors;
• There was a clear link between these proposed amendments and the policy framework for recognition of full-time and part-time councillors (Section 18 (4) of the Act). The policy framework should likewise be subjected to review.

Section 11 – By-elections

Currently, in terms of section 25(1)(a) of the Act, a by-election must be held if the IEC did not declare the result of the election of a municipal council within the period specified in the Electoral Commission Act, which was seven days. Should the IEC not declare the results within the seven-day period, the amendment provides the IEC with recourse to apply to the Electoral Court for an extension.

The amendment also inserts a new section (2A), which requires the municipal manager to inform the MEC for local government and the IEC of a vacancy in a ward within 14 days of a vacancy occurring. The MEC for local government in the province was also required, after consulting the IEC, to call and set a date for by-elections.

The amendments also provide for the cessation of by-elections to nine months in all cases. Furthermore, a requirement was made for the consultation of the Minister when the MEC made a decision with regard to the by-election in terms of section 25(6)(b). SALGA resolved to support this amendment.

Section 23 – Establishment of Municipal Public Accounts Committees (MPACs)

The amendment seeks to insert a new section 79A, which provides for the establishment of the MPAC. The establishment of this specific committee was intended to strengthen oversight and promote good governance in municipalities. The insertion prohibited certain councillors from becoming members of the MPAC, and outlines the roles and responsibilities of the MPAC.

Importantly, reports of the MPAC are submitted to the Speaker, who must table such reports at the next meeting of the municipal council. SALGA resolved to support the proposed amendment with the following proposal for consideration – that the nature, stature and authority of MPACs should be very similar to Standing Committees on Public Accounts (SCOPAs) at the national and provincial legislature level.

Garden Route District Municipality submissions

Councillor Clodia Lichaba, Chairperson: Municipal Public Accounts Committee (MPAC), Garden Route District Municipality, said her submission would focus on the MPAC proposals. She agreed with SALGA that the MPACs should have similar powers to the SCOPAs at the national and provincial legislature level. The reason for this was that the Auditor General (AG) had emphasised that SCOPA was unable to investigate cases of wasteful and fruitless expenditure because they were at the mercy of the councils in situations where they had no funds and capacity. She questioned who appeared before the Committee, and said it was obviously the officials that did so, instead of the executives. This meant that the terms of reference of MPACs were not standardised. If MPAC and SCOPA had the same legislative powers, it would engender a standardised way of doing things, because currently the MPAC works on terms of reference. 

Another aspect was the public participation process. Nowhere was public participation mentioned, although it played a critical role because if it was done properly, it could eliminate a lot of anomalies, because the MPAC was there to ensure that the executive and municipalities were truly accounting to the people. In fact, public participation must be made compulsory, and even though the Speaker’s office had public participation processes engrained, it should also be done within the public accounts process.  A clause therefore should be inserted that made public participation compulsory.

Cllr Lichaba referred to the definitions of the assurance bodies -- the MPAC, the audit committee and the internal audit units. The reason there were so many irregularities taking place was because the internal audit units were internal, and were supposed to report to the audit committee, and administratively to the Municipal Manager. However, they were permanently under the municipality as part of its staff. This made them to lose objectivity. She proposed that the selection of the audit committee should be recruited externally, either from the Treasury or the Department of Cooperative Governance and Traditional Affairs (COGTA), and then placed within the municipalities. The internal audit unit should also be placed at either the Treasury, COGTA or provincial offices. They should be engaged for three years at least so they remained objective. Presently, the audit committee was a committee of the council -- they appoint and receive their reports, and that was why their objectivity and independence was lacking.

Office of the Premier’s submission

Adv Romeo Maasdorp, Legal Adviser, Western Cape Provincial Parliament, spoke about Clause 9, which addresses a reference to clause 22 of the Principle Act. The Clause states that Sec 22 of the principle Act was amended by the deletion of sub-Sec 4. It further states that Sec 22 was amended by the addition of sub-Sec (5). An elected councillor was deemed to be elected on the day of the declaration of the results of the election. If one looked at Sec 22 of the Principle Act, it did not follow that one could or should add a sub-Sec 5. It seemed that in the Bill, the reference to Sec 22 in the Principle Act, with a focus on clause C of the Bill, was exactly the same wording of clause 9 in the Bill. It appeared that if one read the Principle Act, clause 9 and 10(c), it was a grave error either in print or the draft of the Bill, because clause 9(b) in the Bill added a sub-section which could not be added to the Principle Act. Clause 9(b) was out of context and had been erroneously inserted in the Bill, because it was properly inserted in clause 10(c) of the Bill.

He directed the Committee to the code of conduct and item 15(1)(a), which referred to the role of the Speaker in breach of the code. This directed that in cases where the code was breached, the Speaker must (which was an operative word) authorise an investigation into the facts and circumstances. It further directed that the Speaker must give the councillor a reasonable opportunity to reply in writing. In this case, they were sure who the investigative entity was, but this was not clear in the text. Given the dynamics at the local government level, which was a highly polarised and politicised entity, should the Speaker given the mandate to be an investigative entity, it could give credence to partiality and credibility problems in investigation outcomes. It further states that if the Speaker was the subject of an investigation or refused to order one, the council must establish such a committee. Nowhere after that was an instance provided for what should happen in the case of a Speaker’s refusal. It was baffling that in a system of governance, the Speaker was the executive authority, and that there was this omission of disciplinary action to be taken against the Speaker for the subversion of process.

Mr Coetzee gave SALGA’s view on the suggestion that MPAC be a section 80 committee, as opposed to a section 79 one. The reason why this could never happen was because section 80 had been created to assist the Mayor in the execution of executive functions, and the oversight committee was merely tasked with executing oversight over the executive. One therefore could not report to the people one was tasked to investigate. That was why the section 79 committee reported directly to council. Another distinctive difference between sections 79 and 80 was that sec 79 had a mechanism that provided for the option of knowledgeable people, which this section did not have. This provision in sec 79 was very useful, especially for an MPAC, where sometimes special expertise was needed, and for this reason MPAC could never become a section 80 committee.

Discussion

Mr A van der Westhuizen (DA) asked Adv Maasdorp about sec 22 that deals with local and metropolitan municipalities, and sec 23 that deals with district municipalities. He had found the insertion of the words, “the elected councillor was deemed to assume office on the day of the declaration of an election” in sec 22, and then in sec 23 there was a duplication. Seeing that this action referred to different parts of a municipality, did he believe this sentence should appear in only one section instead of two? In cases where municipalities delegate representatives to a district municipality, were they also declared by the IEC?

The clause, “a councillor must be present in three consecutive meetings or be removed,” inserted in the code of conduct, was problematic. What did it mean nowadays to be present in a meeting, when they worked more online? Sometimes councillors were prevented from attending meetings, maybe due to illness or accident or other valid reasons. Sometimes this could be abused by councillors by calling meetings for three consecutive days. This provision could be tightened by inserting “three scheduled or ordinary meetings.” The steps to be taken by Speakers in the code of conduct section should also be reworded, and there should be some restrictions on the ability of MECs to call for meetings.

Adv Maasdorp noted the observations made regarding the two council elections. Section 22 of the Principle Act referred to the election of metropolitan and local councils. It had four sections. Section 23 referred to the election and appointment of district councils, and had four sub-sections. Section 9 of the amendment Bill stated that section 22 was amended by the deletion of sub-Sec 4, and that left the three sub sections of section 22.

Clause 9 of the Bill had the addition of sub-sections. An elected councillor was deemed to assume office on the date of the declaration. What one had if one followed the text of the Bill was a section 22 of the Principle Act, with four clauses numbered 1, 2, 3 and 5, because sub section four had been deleted because of the context of the new Bill.  However, if one went to clause 10(c), it stated: “the Principle Act was hereby amended by the addition of the following sub sections; 5, an elected councillor was deemed to assume office on the date of declaration.” This implied that clause 23, with its current four sub-sections got an additional sub-section numbered 5.

Mr Van der Westhuizen asked whether this was how legislation was written when amendments were introduced.

Adv Maasdorp responded that it was not just a numbering issue, because sec 22 added a fifth clause to the Act, whereas there could be three in that Act, as four was deleted.

Mr Coetzee said that in the district municipalities, there were two components -- councillors directly elected, and those sent by their local municipalities. Councillors were appointed by the IEC to the municipalities where they were initially elected.

With regard to the attendance of meetings and the abuse thereof, he fully agreed with that contention. The code of conduct for councillors was often abused, and when SALGA was asked by municipalities to assist them in preliminary investigations, it often found that there six different cases that the Speaker had to deal with, of which one or two were transgressions of the code of conduct.

With regard to absence in attending three consecutive meetings, there was a bigger consideration at play. To be absent from three consecutive meetings was difficult to envisage but the most important thing here was the speaker’s objectivity. However, because the Speaker was a political animal, belonging to a party and caucus, they were sometimes pressured to take partisan actions. The noble idea was for the Speaker to stand outside the caucus of their political party in order to be objective.

In mapping the way forward, the Chairperson said the political parties will take all the information they have gathered so far from all quarters to their respective parties where they will deliberate the amendments and seek a mandate. At a later stage, the Committee will reconvene to develop its negotiating mandate to be sent to the NCOP.

The meeting was adjourned.