The Department of Cooperative Governance and Traditional Affairs (COGTA) briefed the Committee on the 2019 Local Government: Municipal Systems Amendment Bill in a virtual meeting.
It said that the impact of the 2011 Act had led to various governance achievements that had enabled the Department to continue to monitor and assess the appointment of senior managers in accordance with the required criteria to this day. However, since the 2011 Act had been declared unconstitutional because of a misunderstanding on the process after a Constitutional Court order was made on Parliament administering the Bill, the Department had lost all the gains that it achieved with this Act.
In discussion, Members raised concerns over loopholes in the proposed amendments dealing with the appointment of municipal managers and acting municipal managers in section 54A, it requested further clarity on the employment contracts and performance agreement of senior and municipal managers in section 57, the fit for purpose of staff establishments in section 66, the prohibition of staff members holding political office in section 71B, and the limitation of rights.
The Department had implemented administrative procedures to ensure that it followed up and traced that municipal managers were suitably qualified and met the minimum standards, and that those holding political office were not appointed. It had also developed prototype organograms that were fit for purpose for all types, sizes and categories of municipalities that would be implemented in the provinces.
The Committee noted that this was the beginning of a process from the National Council of Provinces (NCOP) to facilitate the passage of this law and to ensure that it was watertight and was adopted in a way that would add value and contribute to the stabilisation of the system of local government. Members were requested to ensure that stakeholders at the municipal level were involved in the provinces, especially the unions, and that all other important stakeholders were properly consulted and participated in the consultation process.
The Chairperson welcomed Members to this important meeting, commenting that this was its first meeting for 2021 after the reopening of Parliament. He wished Members a successful year ahead under the COVID-19 pandemic that was ravaging the country and the world at large. He hoped that with the rolling out of the vaccine, it would go a long way in reducing the negative impact of the virus on communities, and that operations could return to normal to ensure that Members of Parliament could carry out their work. This applied to oversight, law-making and community participation, which was important in taking the country forward given the nature of the challenges that the country was facing.
The Chairperson expressed his grief over the loss of an outstanding Member of Parliament, Mr S Mfayela (IFP, KZN), who had been part of this Committee. On behalf of the Committee, he expressed his heartfelt condolences to Mr Mfayela’s family, to his political home, the Inkatha Freedom Party, and to the people of KwaZulu-Natal to whom he had dedicated his life in service. The Committee had lost a very capable, talented, respectful and engaging Member, and “one of our own”.
He said that the Committee was meeting to consider the Amendment to the Municipal Systems Act. The Committee would recall and understand that this was the repeat of a process that was started a long time ago. An Act was passed around 2011 as an Amendment to the Municipal Systems Act. The whole law had been declared unconstitutional by the the Constitutional Court (ConCourt) because of the way it was tagged.
The Committee was now restarting the process afresh. He hoped that Members would be more vigilant to avoid the loopholes that had led to the nullification of this important Bill in the sphere of local government.
This was an important Bill, as it must stabilise municipalities and must regulate how appointments were made at a senior level. It was important for the Committee to ensure that it was thorough, detailed, and that it did things accordingly to ensure that it succeeded in this regard.
He welcomed the delegation from the Department, and commented that the Committee had a good engagement with Dr Nkosazana Dlamini-Zuma, Minister of Cooperative Governance and Traditional Affairs (COGTA), the previous day, although she was not present for this meeting.
Minister Dlamini-Zuma interjected to correct the Chairperson that she was indeed present.
The Chairperson expressed his apologies for the oversight, as he had logged on to the meeting platform late. He explained that the meeting with the Minister and the team yesterday had been productive, and that the Committee was excited as it was pursuing matters in a way that was appropriate.
He invited the Minister to provide opening remarks and to take the Committee through the process on how the Department would proceed with the presentation on this important Bill.
Minister Dlamini-Zuma clarified that she would not be doing the presentation herself, as she had requested one of her colleagues to lead the Committee through the presentation of the Bill. She would respond to any questions, however.
Local Government: Municipal Systems Amendment Bill
Mr Tebogo Motlashuping, COGTA, said he would be presenting to the Committee on the 2019 Local Government: Municipal Systems Amendment Bill that had been set before the National Assembly, and was now referred to the National Council of Provinces (NCOP).
He would provide an overview on the background to the Bill so that Members were abreast with the steps that led to the current status. The Municipal Systems Amendment Act that was introduced in 2011 sought to look into municipal councils to appoint a municipal manager as the head of the administration, as well as the appointment of senior managers that would be accountable to the municipal manager. It indicated that the senior managers that were appointed must have the relevant skills and expertise to perform the duties associated with that post.
The Bill was approved by Parliament on 19 April 2011 and assented to by the President for implementation on 5 July 2011.
Both the Structures Act (s82) and Systems Act (s56) prior to 2011 did not prescribe the relevant competencies and expertise required to be appointed as a senior manager and/ or to perform the duties associated with the relevant post. As a result, municipalities were appointing senior managers in municipalities without them having the minimum norms relevant to the standards and requisite qualifications that senior managers ought to have.
This legislative lacuna led to disparate human resource practices in municipalities, the appointment of persons without the requisite professional and technical skills; municipalities’ under-expenditure on capital budgets; ineffective revenue collection strategies; the collapse of the rule of law, which led to surging fraud and corruption; poor service delivery; lack of consequence management; and prolonged labour disputes. There was a need for the Minister to have regulatory power to eliminate these issues and inefficiencies that had been identified.
The process around the Local Government: Municipal Systems Amendment Bill [B2 -2019], which was introduced to Parliament on 19 July 2010, was a result of the local government turnaround strategy (LGTAS) led by the late Mr Sicelo Shiceka, former COGTA Minister.
Mr Motlashuping said that the Chairperson had already indicated that the Amendment Bill had been tagged by Parliament as an ordinary Bill not affecting the provinces – a section 75 Bill -- and that he would not be going through the other issues on the processing of the Bill.
It was evident that the issues that had been identified in the presentation were attended to by the introduction of these appointments of 2011. The objects of the Bill were instigated as a result of responding to the inefficient systems identified in local government before the promulgation of the Bill in 2011.
Mr Motlashuping said the impact of the Act had led to various governance achievements and issues:
- The Department ensured that all the senior managers that were appointed were suitably qualified and competent to be appointed as senior managers.
- It introduced the competency framework that laid the foundation for uniform competency requirements for senior managers. The introduction of the competency tests was compulsory for all senior managers to write before they could be appointed in municipalities.
- All senior managers participated in the overall performance management system of the municipality, which laid the basis for the evaluation of performance and consequence management for sub-standard performance of senior managers.
- It strengthened the checks and balances by ensuring that municipalities complied with the minimum competency requirements.
- It contributed to the realisation of the ideals of the National Development Plan (building a capable state), and provided for the consequences of appointments made in contravention with the regulations promulgated by the Minister.
- It prohibited the employment of staff found guilty of serious misconduct. There was a cooling off period of between two and ten years before those found guilty of misconduct could again be appointed in local government.
- The Minister had established a register of all staff members that had been dismissed for misconduct. These people would be prohibited from being appointed as senior managers.
- 130 staff members had resigned prior to the finalisation of disciplinary proceedings. These names were included in the Department’s database.
- It had cleaned these challenges that the Department faced, and prohibited any other person from being appointed in instances where such positions were not included in the organogram of the municipality.
Mr Motlashuping said that the presentation slide 7 provided a background to the Department’s achievements and the impact of the Bill that was declared unconstitutional by the Constitutional Court. This slide was primarily in summary form, and referred to the court action brought by the South African Municipal Workers Union (SAMWU). On 9 March 2011, this Bill had been declared defective and unconstitutional as a result of a misunderstanding on what should happen after the court order was made in relation to Parliament having to deal with the Bill.
He said that the Executive was expected to reintroduce the Bill before Parliament and before the expiry of the deadline given to the Department by Parliament.
The 2011 Act had been declared unconstitutional and the gains that the Department had achieved because of its introduction had then been lost.
As a result, the Minister had revived the Bill, and it was approved by Cabinet on 5 December 2018. It was certified by the Chief State Law Adviser on 20 December 2018 and introduced to Parliament on 6 February 2019. It was then revived when the Sixth Parliament came into being in October 2019, in accordance with Rule 286.
The Department had undertaken public participation as a process in consequence to the administrative processes that were followed. There were various organisations, national and provincial departments, municipalities and institutions listed on slide 8 that had responded and were widely consulted to ensure that the Bill received the necessary support from all spheres.
The revival of the Bill had led to the contributions and comments received from the Western Cape Department of Local Government, the Departments of CoGTA in Gauteng, Mpumalanga and the Eastern Cape, and the South African Local Government Association (SALGA).
The Department had received further written inputs from the Limpopo Department of Cooperative Governance, Human Settlements and Traditional Affairs (CoGHSTA), the Independent Municipal and Allied Trade Union (IMATU), the Organisation for Undoing Tax Abuse (OUTA), and oral inputs from SAMWU.
It heard further submissions from SALGA and National CoGTA on 5 and 25 June 2020 on the limitation of political rights of municipal managers, and managers directly accountable to municipal managers.
It noted that the limitation of political rights was demonstrably the least restrictive means of achieving local government professionalisation and justifiable in terms of section 36 of the Constitution. The Portfolio Committee at the time believed that this clause on limiting political rights should not only be restricted to senior managers, but to all employees of a municipality.
The Bill was approved by the National Assembly. and had been referred to the NCOP for concurrence on 4 December 2020.
Mr Motlashuping said that the last point he would be presenting was on the Bill itself. He would take the Committee through each clause of the Bill as it was agreed upon in the National Assembly and referred to the NCOP.
He experienced some technical issues with the shared screen. He referred to the Bill on slide 10.
The Bill defined the proposed amendment about the municipal manager, which meant a person appointed in terms of section 54A. It also defined the definition of ‘political office,’ which referred to the chairperson, deputy chairperson, secretary, deputy secretary, treasurer or an elected or appointed decision-making position of a political party. It included any position in the party equivalent to these positions, irrespective of the title designated to the position.
Section 54A referred to the appointment of municipal managers and acting municipal managers. This was to provide the criteria for the minimum requirements for all senior managers to be appointed in municipalities to have certain requisites, expertise, qualifications and competencies. To ensure that this process was finalised, the Minister and Member of the Executive Council (MEC) was given the responsibility to oversee that when appointments were made, they were done within the prescribed processes and timeframes, and in compliance with the regulations.
This had led to the reintroduction of the issue of secondment of acting municipal managers by the MEC or Minister if the municipality failed to attract a suitable candidate. These secondments should also include people who were qualified to be appointed as senior managers in municipalities. It would ensure that the MEC or Minister did not second people who were not suitably qualified, as was specified in the principal Act, including the regulations subsequent to the Act itself.
Section 56 outlined the appointment of managers directly accountable to municipal managers. There should also be a criterion for the people who were accountable to municipal managers to meet those requisite qualifications. In instances where appointments were not made in accordance with the Act and regulations, the Minister or MEC may inform the municipal council to nullify the appointment.
The clause on the substitution of words in section 54A and 56 of Act 32 of 2000 related to the words ‘‘municipality,’’ as referred to ‘‘municipal council.”
Section 57 referred to the employment contract and performance agreement of senior managers in municipalities. This section noted that after an appointment had been made, the contract should be concluded between the municipality and the senior manager within 60 days. In instances involving a municipal manager, the employment contract and the performance agreement must be signed between the municipal manager and managers accountable to the municipal manager.
It became law that the appointment of a senior manager and municipal manager was not complete unless the employment contract and performance agreement had been signed by the municipal council and municipal manager, and managers accountable to the municipal managers. If this was not done, the entire appointment process was not concluded and was void.
Some of the Department’s gains were to ensure that senior managers that had been found guilty in one municipality should not resurface in another municipality. Section 57A dealt with the employment of dismissed staff and records of disciplinary proceedings. The Minister must maintain a database of all staff members that had been dismissed and resigned prior to the finalisation of the disciplinary proceedings. When municipalities made new appointments, they must communicate with the Minister or the Department to check if short-listed candidates appear on the database. The municipality must be informed if short-listed candidates appear on the database to ascertain when these people could be re-employed in the sector according to the cooling off period. This was to tighten the process of getting the rot out of the system for a specified period to ensure that municipalities were cleaned up.
The section on staff establishments provided for the municipal council to have an organogram or the staff establishment in all municipalities. No person would be appointed if the position was not included in the organogram. In most instances in municipalities that were not financially viable, there were bloated organograms because of people who were appointed when the position was not in the organogram. It was illegal for any municipality to appoint any person who was not in the organisational structure. The Minister had the authority to ensure that organograms were not bloated. This was intended to curb the bloating of municipal administrations in areas other than those linked to service delivery.
Section 71 on bargaining council agreements was also important. When SALGA and IMATU negotiate in a bargaining council, the salaries agreed to for staff members below senior managers make it difficult for the Minister to regulate and have a notice that determines the proper salaries of senior managers in municipalities. This clause made it compulsory for SALGA to communicate with the Financial and Fiscal Commission (FFC) and the Minister before embarking on any negotiations with parties in the bargaining council established for municipalities.
On the new insertion of section 71B on staff members prohibited from holding political office, the original section was only for senior managers. Because of the dimensions within local government, the Portfolio Committee had noted that the prohibition of holding political office must be extended to all staff members in municipalities. They could be members and participate in activities of a political party, but they were now prohibited from holding political office. The concepts of political office and positions of influence were discussed in the section on definitions.
On section 72, the Minister would have authority to promulgate regulations around the principal Act on training, competency, minimum level of skills, and skills development of staff members of municipalities. These regulations must not conflict with existing labour laws on medical aid and pension funds. The Minister undertook this in the previous Municipal Systems Act of 2000, 2004, and 2008. Section 72 allowed the Minister to regulate minimum norms and standards in municipalities to ensure standardisation.
Section 106 was on non-performance and maladministration, and included a new insertion of section 71B. This would enable the Minister to investigate maladministration, fraud, corruption or any other serious malpractice in a municipality if the Member of the Executive Council (MEC) failed to conduct such investigation within a specified period.
Section 120 on the processes of the Minister to regulate and develop guidelines in local government was already included, but because of the invalidity of 2011, this section was being reintroduced. The Minister responsible for Local Government was the only person allowed by law to determine the regulations, guidelines and policies in municipalities.
Schedule 1 referred to voting at meetings. A councillor may not vote in favour of, or agree to, a resolution which was before council or a committee of council which conflicted with any legislation applicable to local government.
Mr Motlashuping concluded the presentation and handed over to the Chairperson.
The Chairperson thanked Mr Motlashuping for the presentation. He commented that this was the beginning of the process to ensure that this Bill became an Act of Parliament, which was very important in the life and sphere of local government.
He said that after this engagement, the Committee would publish this Bill in the newspapers for public comment. It would then schedule meetings with the provinces. The provinces and municipalities would make some contributions in terms of the section 76 process, and thereafter the matter would come to the NCOP for the negotiating mandate and for the finale mandate on the process itself.
He said the Committee should note this as it made comments and sought clarity, as this was the beginning of the process that it would unfold in the NCOP.
Ms S Shaikh (ANC, Limpopo) noted the Chairperson’s explanation of the process that would follow, and that the Committee would be able to engage further with this Bill in the various provinces. She said she understood the explanations on the rest of the Bill, as well as the issue of staff members not holding political office. She asked for a further explanation on the rationale behind this, and whether it impacted on other rights of individuals.
Mr I Sileku (DA, Western Cape) asked for clarity on clause 2 of section 54A. He noted that the proposed amendment stated that if the Minister or MEC in the province did not respond in the required time, that particular appointment would be deemed as if they had followed the required prescription and that particular candidate would then be automatically appointed as a municipal manager. He was concerned that this would open a loophole for Ministers or MECs not to respond. Unfortunately, questionable people were appointed, and the only hope was that the MEC or the Minister would intervene to state that the candidate did not meet the required prerequisites and criteria. When it stated that a Minister could not respond, could this be changed to “a Minister must respond” so that it did not open a loophole? He asked for clarity on this.
He said he agreed and full heartedly supported that office-bearers in political parties should not occupy senior positions, and asked how one would ensure that a candidate was not a member in good standing or was not a leader in a particular branch of a municipality? What checks and balances were in place? People could become ordinary members instead of office-bearers in an organisation to have an opportunity to be appointed. These people would have to sacrifice their positions, but would still be active in different communities. How would the Committee monitor to ensure that the Bill achieved its objectives?
He said the approval of a staff establishment was mainly up to a particular council. How would the Committee ensure in this Bill that when a staff establishment or an organogram was approved, that it was affordable, that it would assist the municipality, and would enable services to be rendered? It was evident in municipalities that staff establishments were being approved by councils just to sort out cadres, and people just got paid while not doing the work. Going forward, how would the legislation ensure that a municipal council actually approved a particular staff establishment that was the cheapest and most affordable for that particular municipality?
Did the staff establishment include temporary positions as well? How would the Department deal with temporary positions? In the office of the executive mayors, there were programme directors and managers on a temporary basis. Did the staff establishments deal with such issues as well?
Mr Sileku asked for clarity on the contract of the municipal manager. He was unsure whether he understood it correctly, as it stated that a municipal manager could be appointed on a fixed term contract or the council could decide whether a municipal manager was appointed on a permanent basis. He asked for clarity on these issues.
The Chairperson thanked Mr Sileku, and noted that there were no other questions from Members.
He asked if delegates from SALGA and from the provinces wanted to pose questions.
In the absence of further questions, the Chairperson raised two points. When this law was passed in 2011, it had been heralded as a very good one because it was regulating appointments at the municipal level and ensuring that people appointed as municipal and senior managers met the minimum requirements for the job. Suddenly, this had been stopped because of the judgment of the Constitutional Court. He asked what the difference was between the law that was passed in 2011 and the current Bill, notwithstanding the areas that had been identified by the Constitutional Court as problematic, especially as it related to the occupation of positions by political party office-bearers prohibiting municipal officers from occupying those particular positions.
The Chairperson said that in his view, this law was fine and it was working very well in his province as municipalities would not simply appoint people without the necessary expertise. Since this particular process, it became a very serious problem.
On the suspension of the invalidity on this issue, the Constitutional Court had given this process 24 months to be completed. The date of 2019 had come, and Parliament had not even started on a process. What was the problem? In his view, this had contributed to the problem of the situation where municipalities had begun again to appoint unqualified and unsuitable senior managers with impunity because there was nothing at all in the law or regulations proclaimed by the Minister to regulate this situation. What was causing the delays? How would it ensure this time around that these delays were prevented and ensure that this process was smooth, efficient and expedited in a way that it contributed to stability at the municipal level?
Mr Motlashuping responded to Ms Shaikh’s question on the rationale behind the prohibition of holding political office, and said this had been a restrictive clause applying only to senior managers. After the deliberations in the Portfolio Committee, it had been agreed that this must be extended to everyone. The rationale behind this was that the limitation of political rights was in the Constitution, and it was in terms of section 36 in the Constitution that there were instances where certain political rights of members of society must be limited. In this particular instance, there was a prevalent issue on politicising local government administration.
There were instances where senior officials, who were appointed at the time, were holding political office. In consequence of being senior to the political office-bearers of a municipality, such as the mayor, the speaker, the deputy mayor, and councillors that were politically senior to them, they could not be subject to oversight. For local government administration to be professionalised and not politicised, there had been an agreement that this clause must be included to ensure stability.
Mr Motlashuping said that there were instances where a municipal manager, who was a senior office-bearer in a political party, would then be suspended by the mayor and council during the day. At night, because the person held a senior position in a political party, would subsequently suspend the mayor or even the speaker. This clause was then suggested to bring stability and have depoliticisation of local government administration. This clause had brought some sort of stability because the administration was left to administrators, and councillors in a municipal council could then deal with political matters. The clear interface between the administration and the political arm of a municipality had brought some stability. The Portfolio Committee had therefore maintained that this clause should not only relate to senior managers, but that it should be extended to all staff members of a municipality. It would discuss and determine whether this was really feasible under the circumstances, but this was the main argument to depoliticise local government administration.
In response to the question on how the Department would ensure that these people holding political office were not appointed in municipalities, he said that from the administrative point of view, the Department had developed a template or a form, such as the Z83 form, that was included in the regulations. In this form, when one applied to be appointed in municipalities, there was a section on disclosure of political involvement in the definition of political office. If the applicant held a political office, they would be precluded from being employed in a municipal position. If the applicant provided incorrect disclosure on political involvement, once this was exposed after the appointment, that appointment would be declared and void ab initio. This was the administrative way it tried to ensure that this was followed up, traced, and ensure that these people were not appointed.
There were limitations to verifying if candidates held political office by including it in the form that was compulsory for every applicant to complete and submit when applying for a job, as applicants did not apply with a CV but rather with this prescribed form, determined by the Minister. It could be used to follow up that people were not taking up political office.
Mr Motlashuping explained that in responding to the question on the loophole, he would be touching on the Chairperson’s question on the newer issues introduced in the Act. This was one of the new clauses that was proposed and supported by the Portfolio Committee. When the process of selection and recruitment of senior managers in municipalities took place, because there were no cut and fast rules on the timelines, it had taken a very long time for this process of appointing a senior manager to be finalised. He noted that this had created a problem, and this question was also debated at length in the Portfolio Committee as to whether the appointment process was totally complete after the after the MEC had made the appointment, and the Minister had issued a view on whether the process had been followed correctly and the person was suitably qualified.
There were instances where MECs did not timeously submit reports to the Minister. In consequence, the Department would become aware only after a year or so that the person being appointed was in fact not suitably qualified. Because of the late submission of this report, it became difficult for the Minister to rectify this matter. To curtail this issue, it had been agreed that the Department must force MECs to report to the Minister on the appointment processes to be done. If MECs did not respond in time, 14 days after the appointment of senior managers, it must submit the report to the Minister. This clause was included to state that this candidate would be deemed to be correctly appointed with the requisite skills.
On the intention of this clause, there were other suggestions that had been made on some punitive measures in instances where reports were not given timeously to the Minister to form an opinion. The Portfolio Committee at the time had agreed that this was the most effective way to ensure that MECs were given the responsibility, once councillors were appointed and MECs had viewed the report, to timeously submit the reports to the Minister so that the process could be concluded on the suitability of the appointment of senior managers.
In response to the question of how the Department would ensure that the organogram was fit for purpose. Mr Motlashuping clarified that the entire process was to ensure that there was no need for temporary staff members in an establishment. A staff establishment would be an organogram that had been deliberated upon in the municipal council and adopted, and only those positions in the organogram should be the ones that were being filled. No other positions could be established. It was illegal to make any appointment in a position that was not in the staff establishment.
Regarding the issue of “fit for purpose,” the Department was finalising prototype organograms. This had been developed and would be put into an implementation phase in municipalities. The Department had developed prototype organograms for different sizes and categories of municipalities. Municipalities would not have customised staff establishments from other municipalities put in place. For purposes of effective service delivery, the municipality must be able to have a particular organogram. The Department had ensured that it developed prototype organograms, and once municipalities were reviewing them, it would be in accordance with the prototype organogram developed by the Minister responsible for Local Government. This ensured that small municipalities did not try to cut and paste the organograms of big municipalities and metros. The Department had developed organograms that were fit for purpose for all types, sizes and categories of municipalities.
On the issue of contracts of municipal managers and senior managers, he said the contract for municipal managers was for a period of five years, not exceeding a period ending one year after local government elections or the term of office of the next council of the municipality. It was a fixed term contract of a period of five years, and not more than one year exceeding the term of that council. For senior managers, there would be a discussion based on the experience of municipalities, i.e. managers accountable to municipal managers. In a particular municipality, there could be a discussion as to whether they would appoint them on a fixed term or permanent contract. Based on the circumstances, the contract would depend on the circumstances in a municipality.
Responding to the Chairperson’s questions, he said that when the Bill was reintroduced to Parliament in the fifth administration, it was as it had been in 2011. There were transitional matters that were put in place, and when the Bill was discussed in the Portfolio Committee, there were new inclusions. One new inclusion already discussed involved MECs submitting timeous reports to the Minister. The second new inclusion was on holding political office being extended to all staff members. There was also the one on the contract of employment of senior managers accountable to municipal managers that had to be clarified because of the inputs of other stakeholders on what was initially proposed --that senior managers accountable to municipal managers should be appointed on a permanent basis. The Department had debated the matter and proposed that there should be a discretionary or hybrid approach on managers accountable to senior managers around their contracts.
Mr Motlashuping commented that that had been the Bill that was introduced as it was in 2011. He explained that this was the reason he had started the presentation by referring to 2011, what had been achieved because of the 2011 Act, and the challenges that had developed due to the invalidity. The Department had had to include this clause as it was in 2011, to ensure that it followed up on appointment of senior managers with suitable competencies, experience and qualifications.
The last point was on the delays that had led to the invalidity. The Department was aware that at the time when this was challenged, this had been on the clause referring to the limitation of political rights. The Constitutional Court had stated that the Bill had been tagged incorrectly and because of the process, the Court did not give its view on the substantive matter, which was the limitation of political rights. The Court had directed that this process of tagging must be done within a specific period so that it could be corrected, and that this should be tagged as a section 76, and not a section 75 Bill. Mr Motlashuping indicated that the Department did not tag Bills -- Parliament through its tagging machinery and committees would do the tagging. He said that there had been a misunderstanding around the process.
He explained that at the time, former Minister Des van Rooyen had written a letter to Parliament to state that according to the Constitution, it was tagging the Bill and that it must tag it accordingly, and the Department would provide technical support. After some time, the understanding was that the executive was supposed to reintroduce the Bill to Parliament. The discussion was on the misunderstanding and different interpretations of the processes that had to unfold during the period outlined by the Constitutional Court for the purposes of tagging the Bill correctly, which then created a lapse. When the Department went to Court under Minister Zweli Mkhize to try to get an extension, there had been a problem around this issue, and the Court had stated that an extension would not be granted, and as a result this was declared unconstitutional. In this process of invalidity, the Department had already established a forum involving the provinces with SALGA, to ensure that it met every quarter to ensure that suitably qualified personnel were appointed. The Department had assessed the regulations that the Minister had, and these were made on sections 72 and 120 of the Act in its original form of 2000.
The regulations of the Municipal Systems Act of 2000, and the Amendments of 2004 and 2008 which were not declared unconstitutional, were then effective, and they continued to monitor the appointments of senior managers in municipalities in accordance with the regulations determined by the Minister that were not declared invalid. The Department followed up on this on a quarterly basis, and ensured that only suitably qualified officials were appointed in municipalities. Some provinces tried to interpret differently, arguing that since the principal Act was invalid, the regulations were also invalid.
The Department met as national and provincial departments, as well as SALGA. It had been agreed that the correct interpretation was that any other regulation that related to the2011 amendments were the ones that were nullified. All the other regulations that were done in accordance with the original Municipal Systems Act were applicable, and municipalities were obliged to follow the processes of appointing suitably qualified officials.
The Minister had then issued a circular to all municipalities to state that they must follow the regulations and appoint suitably qualified persons whilst there was this process of reintroducing the Bill that would address other issues that were declared unlawful in terms of the ruling of 2011. As a Department and together with the provinces, it had ensured that it monitored the appointment of senior managers in accordance with them having the necessary qualifications and competencies. Mr Motlashuping noted that all of them were still being assessed today, and having read the assessment tests, the Department could conclude that in instances where unsuitable people were appointed, it had intervened in the process during this time of invalidity of 2011.
He handed over to the Chairperson.
Minister Dlamini-Zuma responded to the question that had been asked about the rationale for staff members not holding political office, and whether it impacted on other rights of individuals. She said that it was an issue that would still be challenged in court because that was the reason it had been taken to court in the first place. The Department maintained that there was an allowance of the limitation of rights if there was a good reason why one was limiting the rights, and the extent of the limitation. The extent of the limitation was only as far as office-bearing. It was not that one could not belong to a political party. One could belong to a political party, but one could not hold office. Insofar as that limitation was concerned, it was a limitation that was relevant to the mischief they were trying to address. The Minister commented that she was sure that it would still be taken to court once it was passed because of the argument around the limitation of rights, but that the Department would be able to explain why because of the experience it had witnessed over the years of “how officials or office-bearers could even undermine decisions of their principals overseeing them.” She added that it was also not a complete limitation of rights.
In response to the concern over the loophole, the Minister responded that it was probably true that there could be a loophole, because if the law stated that one had not answered, it meant that the processes and qualifications were deemed to have been adequate. She said that loopholes should not be opened where someone could pretend to send the information when it was in fact not sent so that there would not be a response, or they could send it very late so that the response did not come during the stipulated period. She agreed that this loophole should not be opened, and handed back to the Chairperson.
The Chairperson thanked the Minister for her responses.
He emphasised that this was the beginning of a process from the NCOP to facilitate the passage of the Bill. He referred Members to the passing of the Amendments to the Municipal Structures Act in December 2020. The Committee had worked closely with the Department and had provided support through this process with the engagements in the provinces. The process had been productive, and it had enabled the Committee to be able to pass the Amendments to the Municipal Structures Act. He requested the Committee to follow the same process on the proposed amendments to the Municipal Systems Act. This would be helpful since this law had been declared unconstitutional by the Constitutional Court. It must ensure that it tightened all the loopholes and that it worked accordingly to ensure the realisation of its objectives.
He said the Committee would publish a notice in the newspapers and develop a programme on how it would interact and brief the provinces. He requested that Members ensure that municipalities and stakeholders at the municipal level were involved in the provinces, especially the SAMWU and IMATU unions, and that all other important stakeholders were properly consulted and participated in this process. The NCOP would ensure that it moved accordingly and that the Bill would be watertight and adopted in a way that would add value and contribute to the stabilisation of the system of local government.
The Chairperson thanked the Department for the briefing and the Minister for her attendance. He thanked all other stakeholders, provinces, municipalities, SALGA, and all Members for attending this virtual meeting.
The meeting was adjourned.
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