Local Government: Municipal Systems Amendment Bill: Department of Cooperative Governance briefing

Meeting report

Local Government: Municipal Systems Amendment Bill: DCoG briefing

Mr Jackey Maepa, Senior Manager: Local Government Policy and Systems, Department of Cooperative Governance, said the Amendment Bill was aimed at:

• providing procedures and competency criteria for the appointment of municipal managers and managers directly accountable to municipal managers;
• providing consequences for appointments made in contravention of such procedures and criteria;
• determining timeframes within which performance agreements of municipal managers and managers directly accountable to municipal managers must be concluded;
• making further provision for the evaluation of the performance of municipal managers and managers directly accountable to municipal managers; and
• requiring employment contracts and performance agreements of municipal managers and managers directly accountable to municipal managers to be consistent with the Systems Act and any regulations made by the Minister.

The amendments further required all staff systems and procedures of a municipality to be consistent with uniform standards determined by the Minister by regulation; prohibit municipal managers and managers directly accountable to municipal managers from holding political office in a political party; regulate the employment of dismissed staff; empower the Minister to regulate the duties, remuneration, benefits and other terms and conditions of employment of municipal managers and managers directly accountable to municipal managers; empower municipal councils to approve the staff establishments of municipalities; and prohibit the employment of personnel additional to the approved staff establishment of a municipality.

The Amendment Act prohibited employment against non-approved posts. The competency framework laid a foundation for uniform minimum competency criteria/ requirements, skills audits and skills development programmes. It gave the Member of the Executive Council (MEC)/Minister authority to enforce compliance through declaratory orders. A total of 257 corrective measures/declaratory orders had been instituted to enforce compliance with the Act. It fostered participation of senior managers in the Performance Management System (PMS) of the municipality. It ensured alignment between individual, departmental and municipal performance; and laid the basis for the evaluation of performance.

The Amendment Act prohibited the employment of staff dismissed for financial misconduct, fraud and corruption (over a period ranging between two to ten years). A national register had been established to blacklist dismissed staff from gaining employment in local government until after the expiry of the prescribed rehabilitation period. A total of 1 653 had been dismissed for misconduct, while 130 had resigned prior to the finalisation of disciplinary proceedings.

The Amendment Act was invalidated by the ConCourt on 9 March 2019 before the procedural defect was corrected due to a misunderstanding between the Department and Parliament. The Amendment Bill was approved by Cabinet on 5 December 2018. It was introduced to Parliament on 6 February 2019. The Portfolio Committee had considered the written and oral inputs on the Bill during its stakeholder engagement process that took place on 26 and 27 February 2020, and 4 March 2020.

On 5 and 25 June 2020, the Portfolio Committee heard further submissions from the South African Local Government Association (SALGA) and National CoGTA relating to the limitation of political rights of municipal managers and managers directly accountable to municipal managers. The Committee had noted that the limitation was demonstrably the least restrictive means of achieving local government professionalisation and arguably justifiable in terms of section 36 of the Constitution. It had resolved to expand the limitation clause to all staff members of a municipality, including staff below the senior management echelon, to curb the influence of individuals holding office in a political party, as described.

The Committee was then taken through the amendments clause by clause.

Discussion

Ms L Maseko (DA) wanted to know why the universities of Johannesburg and Wits had not made submissions; asked how the performance of the municipal manager was going to be evaluated if the municipal manager got a permanent contract; enquired what the case would be if there was no agreement between the Minister and the Council over the appointment of a senior manager; and wanted to know if there were systems in place to ensure a blacklisted official found guilty of fraud and corruption  was rehabilitated, to avoid a re-occurrence of fraud when the official came back to join the municipality.

Mr Maepa explained that written comments in the Bill had been reflected in the presentation. Once the Bill was approved by Cabinet, it was published for public comments, which meant that any stakeholder that did not appear in the presentation had not submitted anything. He added that municipal managers would continue to be appointed on fixed term contracts. It was proposed that the contracts of Heads of Department (HODs) be extended.

On appointments concluded by councils, but not approved by the MEC, he explained that the constitution stated the Council was the employer of the municipal manager. Once the council had concluded its work, it had to report to the MEC/Minister. The MEC/Minister came after the Council had made an appointment to check if the requirements had been met for compliancy. Since the Act came into power, 257 corrections had been done on compliance.

He also said the legislation provided that once a person had been found to have contravened the code of conduct, the person would be charged. If the person was found guilty, and it was found to be a dismissal offence, the details would be forwarded to the Minister to decide on the length of the penalty.

Ms Maseko asked if blacklisting was across the board, or only for local government.

Mr Maepe said it was only for local government. Others were handled by the Minister of the Department of Public Service and Administration (DPSA).

Mr A Van der Westhuizen (DA) wanted to establish if there was a mechanism in place should there be a stalemate in the performance agreement. He said it was a two-sided affair because it appeared there was no consequence for not signing contracts with timeframes. He asked if staff members were allowed to hold office in a political party; if political appointees should hold office; what would happen when councillors were not voting in favour of any existing piece of legislation; and wanted to know if it was possible to have a third party for people to clear their names during and after a disciplinary hearing, because the hearings sometimes could be vindictive.

Mr Maepe explained the proposed amendments on performance agreements with timeframes took into consideration the two parties involved. It was the supervisor who was liable. In the case of a dispute, there was a mechanism -- the parties would get into an agreement on who would be the mediator.

He said that all staff members were prohibited from holding a political office, even in an acting capacity. Staff members could participate in the activities of a political party of their choice. The Systems Act did not allow political appointees.

The appointment of a senior manager was clearly defined. For councillors who did not vote in favour of existing laws, the onus lay with the council. It had to ensure councillors were voting correctly, in line with the laws of the country. Disciplinary cases should be completed with or without the presence of the official charged. The amendments made provision for those discharged to be in the database so that they did not resurface in another municipality. Vindictive or abusive disciplinary hearings could be settled in a court of law.

Ms N Makamba-Botya (EFF) commented that the amendments sought to combat irregular and fruitless expenditure incurred by municipalities by incompetent municipal managers that had been appointed. It also tried to do away with cadre deployment. She hoped it would be applied in a good way to avoid certain senior positions being dominated by one white race.

The Chairperson asked, should there be no compliance with legislation on the appointment of a municipal manager by the council, if it was the MEC/Minister who would decide to make the position vacant.  He wanted to know who decided on the length of the penalty when an employee had been found to be guilty of an offence

Mr Tebogo Motlashuping, Chief Director, COGTA, commented that they continued to monitor and support the implementation of these amendments in all municipalities. If municipalities were not complying, the MEC/Minister could approach the courts over such behaviour. He said it was the Minister who decided on the length of the penalties, and that was gazetted. The disciplinary hearing had to happen and the outcome submitted to the Minister to decide on the penalty.

Ms Amanda Kotze, SALGA representative, asked if there was any way that the municipal manager could find out about the issue of staff members being prohibited from holding a political office, because most people did not know about this in the rural areas.

Mr Motlashuping said the proposal of extending political rights to staff members had come from SALGA. When senior managers were recruited, the person had to make a declaration and sign it. It the municipality found out the person had not disclosed he/she was holding a position, then the appointment got nullified.

Adv Romeo Maasdorp, Legal Advisor, briefed the Committee on his observations. He said the socio-political context necessitated legislation of this nature because there was a lack of capacity within the municipalities, leading to fruitless and irregular expenditure, etc. Part of this legislation stipulated the kind of qualifications the person should have. Clause 2 of the Bill provided for a new insertion. Sub-clause 8 stated that if a person was appointed in contravention of the legislation, the MEC must ensure there was compliance, and even go to court to ensure compliance. If the MEC failed to take the appropriate steps, the Minister may take the steps contemplated. There were no consequences for the MEC.

Clause 6 referred to the employment of a staff member dismissed for financial misconduct. The offender would be blacklisted and the period would be determined by the Minister. Usually, the staff member jumped ship before the hearing could be concluded. One could presume there were financial losses for the municipality. It was incumbent on the municipality to take steps to recover that money, but that may not happen. There needed to be a provision that stated the municipality must try recover its money or losses incurred, and this must be legislated.

Regarding a staff member occupying a political office, he said the idea that the member should vacate within six to 12 months was arbitrary. He asked why six to 12 months of conflicted interest should be tolerated.

Clause 12 mentioned that when an MEC failed to conduct an investigation within 90 days, there should be an intervention by the Minister. He asked why it could not be legislated that there should be consequences for an MEC who failed to do his or her work.

Resolutions

The Chairperson took the Members through the public participation process that would be followed so that there could be comments on the bill.

Members agreed unanimously with the process.

The meeting was adjourned.