Local Government: Municipal Systems Amendment Bill: COGTA response to Negotiating Mandates

Meeting report

The Chairperson said the purpose of the meeting was to receive a briefing from the Department of Cooperative Governance and Traditional Affairs (COGTA) on its responses to provinces’ proposals on the Municipal Systems Amendment Bill. The bill sought to improve the situation at the municipal level by regulating the appointment of senior municipal managers, as well as defining their roles in political parties, etc. The bill’s ultimate objective was for the country to have competent people appointed to achieve the developmental objectives of local government. He was happy to see that this process was being unfolded, as the Constitution had given the National Council of Provinces (NCOP) a deadline to amend the bill

The Chairperson said he had received an apology from Minister Dlamini-Zuma, who had prior commitment and was unable to attend the meeting. Deputy Minister Bapela had also tendered an apology, as the National Assembly was sitting. The Committee had received no indication from Ms Thembisile Simelane-Nkadimeng, the new Deputy Minister.

The Committee also noted an apology submitted by Ms Avril Williamson, Director-General, COGTA, due to a prior commitment. She had designated Mr Tebogo Motlashuping, her Deputy Director-General, to lead the delegation and present the briefing.

Ms S Shaikh (ANC, Limpopo) felt that the Committee needed to first confirm the receipt of the negotiating mandates from all the provinces as a matter of procedures, since it was a Section 76 bill.

The Chairperson confirmed the receipt of all the negotiating mandates submitted by all nine provinces.

COGTA responses to provinces' negotiating mandates

Mr Motlashuping went through the Department’s responses to the negotiating mandates submitted by provinces on the Municipal Systems Amendment Bill.

He said the public participation process of the Amendment Bill had involved the provincial departments and the South African Local Government Association (SALGA).

He emphasised that the Portfolio Committee had resolved to expand the limitation clause to all staff members of a municipality, giving all municipal employees a period of 12 months to vacate political offices.

The progress of NCOP public hearings was summarised for Members.

Mr Motlashuping provided detailed responses to the Department’s responses to some of the comments it had received from provinces on the Municipal Systems Amendment bill. Those negotiating mandates included amendments to the section 1 definition, the appointment of municipal managers and acting municipal managers, the appointment of managers directly accountable to municipal managers, the municipal staff register that records all staff members that had been dismissed for misconduct or resigned prior to the finalisation of disciplinary proceedings, staff establishments, the bargaining council agreement, the prohibition against staff holding political office, the power of minister to issue regulations, etc.

(Detailed responses from the Department can be found in the attached slides.)

Discussion

The Chairperson expressed appreciation for the presentation and the Department’s engagement with provinces. He emphasised the importance of engagements and public participation, as the bill sets the heartbeat of local governance. He opened the floor to Members.

Ms Shaikh wanted to ask the Department’s legal team whether it had noted the negotiating mandate submitted by Limpopo. If the answer was yes, she wanted to know whether those concerns had been considered its responses. If not, why not?

Mr I Sileku (DA, Western Cape) commented that there had been some progressive proposals submitted by the Western Cape and asked for a timeframe when those proposals would be incorporated and considered. He wanted to know, if those proposals were not considered in this phase, there would be a legal problem going forward.

In South Africa, councils knew that they could not adopt unfunded budgets, but they would still do that and put it under administration. His concern was that of staff establishment. There were municipal managers who connived and work with executive mayors to continue appointing staff outside the staff establishment. Given the importance of restoring public confidence in local governance, he wanted to know what the Department planned to do legislatively to make sure all those beautiful promises were translated into action.

The Chairperson noted that the proposed mandates included developing a register for all the officials who had been caught committing unlawful misconduct and had resigned from their positions before the disciplinary process was finalised. He expressed concern that this provision might face a challenge with its constitutionality, as the principle of innocence before guilty was applied to all in the country, regardless of whether or not a person had resigned before a disciplinary process was concluded or not. He questioned whether this was the only way of doing things.

The Chairperson asked the Department how it could ensure that all those provisions that it had proposed in the amendment, such as people jumping ship and moving from one municipality to another, would be implemented without any hassles or inhibitions.

COGTA's response

Mr Motlashuping assured the Committee that broad consultation had taken place. The Department had met with all nine provinces, the South African Local Government Association (SALGA), as well as all relevant stakeholders in the sector, in order to move toward the overall amendment of the Municipal Systems Act. He guaranteed that the Department had captured all the suggestions made by all the provinces. There were also other issues to be reviewed so that all existing challenges would be taken into account. The Department had also held quarterly forums to discuss all the challenges which the local government sector faced, in order to make the best of the amendment bill.

He said that what the Department had proposed had also checked and followed up with the Minister, to ensure that everything had been done correctly. The Minister had embarked on a Department development protocol programme for all municipalities of different sizes. An in-depth study had been completed, and the point was to make sure that each municipality had its own operational model instead of having smaller municipalities copying from bigger municipalities, as the situations of bigger municipalities may not be applicable to the smaller ones. On a quarterly basis, the Department would also host meetings to discuss the emerging issues with local municipalities in order to make improvements.

He responded to Members’ concerns regarding those officials who had jumped ship. He corrected Members by stating that the court had not invalidate the bill substantively, but had rather ruled on Sections 75 and 76 of the bill. In addition to that, the Department had also sought legal advice from Parliament’s Chief State Law Advisor, and it had been confirmed that this provision was within the constitutional ambit, and the State Law Advisor had agreed that the provision could go ahead. The Department was determined that it could not allow those who jumped ship to be employed again. What the Department had put into actions was that since 2011, it had begun using an application which contained a clause asking potential candidates to divulge whether they had been found guilty of misconduct in other places. If the information was not honestly indicated, the Department could nullify the application process. He added that the database could also safeguard the appointment to make sure that appointees were absolutely verified. For instance, upon the amendment of the bill, a municipality would be legally bound to report to the national Department on the appointment of shortlisted candidates, and those candidates would be verified against the database. If they were cleared, then the final stage of interviewing could proceed.

Mr Motlashuping elaborated on the Department’s approach to implementation. It had reviewed all the institutional arrangements that were in place. It had managed to institutionalise the processes related to appointments. It had also had engagements with all stakeholders to identify obstacles to the implementation of the proposed bill. On a quarterly basis, provinces would come together and discuss with the national Department on irregular appointees, and those appointees that had been dishonest in their applications. This would result in them applying to terminate their employment in court. However, he acknowledged that there had been challenges. He added that SALGA was also another mandated body to ensure that policies were being implemented correctly.

At this stage there was bad internet connectivity, and Ms Shaikh and the Chairperson both complained that they could not hear much of the responses. They suggested the Department should submit its responses in writing. The Chairperson requested written submissions from the Department as well as SALGA, since he was battling to get any information from those officials on the virtual platform.

After receiving the briefing, the Chairperson proposed that the Committee should embark on receiving the final mandates from the provinces. The Committee would allow the provinces to decide on their final mandates within a stipulated time period before the Committee finalised the bill.

The Chairperson concluded the meeting by emphasising the importance of having stable municipalities in the country, and the appointment of the right and qualified people working at those municipalities. He highlighted the importance of checks and balances in order to professionalise local government, which had profound implications for the people of this country.

The meeting was adjourned.