In a virtual meeting, the WCPP Standing Committee on Local Government considered, finalised, and supported its Negotiating Mandate Report regarding the Municipal Systems Act Amendment Bill. Sticking points concerned section 2.5 which deals with resignation by a staff member prior finalisation of the disciplinary proceedings, and section 106 that deals with investigations the MEC should initiate, conduct, and finalise within 90 days; and the matter dealing with staff members not holding an office in a political party.
Members wanted to know the point at which the 90 days start for the carrying out of the investigation; wanted to understand the definition of disciplinary proceedings and enquired the point at which the disciplinary proceedings start because an offender is usually asked to state reasons why he/she should not be suspended. Members wanted to find out if the matter of relinquishing political office would come into effect when the Act is enacted or on the date of the appointment of the staff member, or if this is a transitional arrangement.
The Chairperson informed the Committee the purpose of the meeting was to consider and finalise the Negotiating Mandate Report regarding the Municipal Systems Act Amendment Bill. He took the Members through the document, page-by-page. Some of the comments and remarks came from the discussion the Committee had the in the previous meeting.
Mr A Van der Westhuizen (DA) wanted to establish, on Clause 2.5, the point at which the disciplinary proceedings start because an offender is usually asked to state reasons why he/she should not be suspended, and asked if there is a definition of disciplinary proceedings.
Adv Romeo Maasdorp, legal advisor: Western Cape Provincial Parliament, explained the definition of disciplinary proceedings is contained somewhere else in the legislation. In the municipality code of conduct, there might be a definition of disciplinary proceedings. Ordinarily, disciplinary proceedings would be those proceedings that commence when the charge sheet is submitted to the accused person. Once the staff member realises the case is pending or on-going or imminent, then that staff member, in anticipation of the conclusion of the case or investigation, would resign. That is the indication the staff member resigns prior the conclusion of the disciplinary proceeding. Therefore, the definition of the disciplinary proceedings is contained in a code, but if it is not, it could be found in common law or labour-related legislation. There are other legislative instruments that define what disciplinary proceedings are. So, it would be difficult to incorporate the definition of disciplinary proceedings in this piece of legislation. It would be out of place to include it here.
Mr Van der Westhuizen remarked it is important to be specific of when disciplinary proceedings start because the local government arena is highly contested and often people are subjected to frivolous complaints. Staff members should be protected from these frivolous complaints and some of them do not resign to escape disciplinary proceedings, but because they know new promotion opportunities are coming. Concerning the matter of a staff member not to hold office in a political party, he wanted to know if this would come into effect when the Act is enacted or on the date of the appointment of the staff member, or if this is a transitional arrangement.
Adv Maasdorp indicated if the person is appointed today, then the appointed staff member must comply with subsection (1) within one year of the commencement of subsection (1). There must be no tolerance for conflicted people for 12 months. It is arbitrary. The termination of a political office should be immediate.
Mr Van der Westhuizen maintained he does not believe the 12-month period is arbitrary because if one has been elected to a political position, then one would not accept the nomination if the legislation was in effect. Such meetings happen in a 12 month cycle, and this allows one to vacate one’s position in an ordinary way in the next AGM.
The Chairperson agreed with the Adv Maasdorp, arguing if one had a paid position in a municipal council or government office, one should resign from the political office, or choose to remain in it and not take up a position in a government office. He supported the amendment.
Mr Van der Westhuizen remarked that in future, this means the appointed person will have to choose either a political office or government office, not both should subsection (1) takes effect.
The Chairperson added that for the transitional period of three months, the conflicted person must either choose a government office or political office. The 12-month period is too much and arbitrary.
Ms L Maseko (DA) indicated she agrees with Adv Maasdorp because in the Cederburg municipality, such a scenario exists and has become a movie.
The Chairperson, with regard to section 106: investigations, wanted to understand who is going to take responsibility or appropriate steps when the MEC fails to conduct an investigation because most MECs are appointed by the premier, not the minister.
Mr Van der Westhuizen asked if the 90 days is meant to be the period for requesting the investigation or if it is the period when the MEC starts to know about the problem.
The Chairperson said the 90 day period is the time when the MEC starts to be aware of what needs to be investigated. It is not the minister who instructs for the start of the investigation.
Mr Van der Westhuizen pointed out it is unfortunate that these investigations take many months to complete. He wondered if it should not be proposed that the 90 day period be shortened.
Adv Maasdorp said he understands the sentiment Mr Van der Westhuizen wants to protect. Members are aware of the political dynamics at local level between political members and officials. Systems and processes are abused. The MEC can start an investigation within a day, but it will be protracted and delayed. He made a suggestion to change the existing line to read, “Where an MEC fails to conduct and finalise an investigation within 90 days, not withstanding request from the minister, the minister may conduct the investigation.” The MEC has all the resources to outsource the investigation.
Mr Van der Westhuizen wanted to know the point at which the 90 days start.
Adv Maasdorp admitted he did not read the provision about that in the principal Act. This is subsection 5. Subsections 4, 3, 2, and 1 may give an indication about that. An investigation can start when a formal complaint under oath/affidavit is lodged. If an MEC receives a complaint, then the investigation starts. He indicated he would read further on the matter. It is prudent to suggest the MEC should initiate, conduct, and finalise an investigation within the stipulated time.
Ms N Makamba-Botya (EFF) asked for clarity on the permanent appointment of managers who report to the municipal manager and who should be employed on a contract basis. This decision lies with the council and this, in the end, could have an unfair result.
The Chairperson indicated there have been no different views on the matter. The previous meeting expressed support for it.
The Chairperson then asked if Members were supporting the negotiating report before it was to be taken to the NCOP.
Mr Van der Westhuizen expressed support for the report.
Ms Maseko seconded the motion.
The Chairperson noted the report still has to go to the provinces. Some recommendations would be accepted and others not.
The meeting was adjourned.
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