Local Government Municipal Systems Amendment Bill: NCOP amendments

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Cooperative Governance and Traditional Affairs

16 March 2022
Chairperson: Mr F Xasa (ANC)
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Meeting Summary

Local Government: Municipal System Amendment Bill [B2C-2019] NCOP amendments

The Portfolio Committee met on the virtual platform to discuss the D version of the Local Government: Municipal Systems Amendment Bill as proposed by the National Council of Provinces (NCOP). The contentious issue was if appointments of senior managers who directly reported to municipal managers should be permanent or a fixed-term contract. The NCOP had decided to amend the decision of the Portfolio Committee that they be fixed term. The NCOP view was that these should be permanent appointments.

As this is a Section 76 Bill, if the Portfolio Committee rejected the NCOP amendment, the Bill would be referred to the Mediation Committee so an agreement could be reached between the two Houses. This Amendment Bill should have been passed by March 2019 according to the Constitutional Court judgment so the Committee was aware that it was running against time on this Bill. Should the Bill be referred to the Mediation Committee, it might face the risk of the Bill lapsing.

Committee members noted the advantages of fixed-term appointments as well as the reality that fixed-term appointments became a political playground for factionalism which disrupted service delivery. Other Members emphasised the advantages of permanent employment for senior managers that would provide stability and institutional memory capacity for municipalities. The Committee finally resolved to adopt the NCOP amendments.

Meeting report

The Chairperson noted that the Minister and both Deputy Ministers were attending a Cabinet meeting but the Director-General is on the platform.

Ms H Mkhaliphi (EFF) noted with concern that the Minister and both Deputy Ministers were absent given that they were all absent the day before. The reason was the same as the Committee had received the day before. She questioned if they had to attend cabinet meetings every day because one needed a political head present for the Committee to do its work.

The Chairperson said the meeting was for Members to deliberate on the NCOP Report dated 20 November 2021. It contained the decision of the NCOP on whether the appointment of senior managers directly reporting to the Municipal Manager should be permanent or a contract. The NCOP view was that the position should be made permanent. This Committee resolved to allow time for Members to deliberate on the matter as well as to engage the NCOP Select Committee on this.

The Chairperson indicated that the engagement with the NCOP showed that some form of mediation might be needed to resolve the matter. He hoped that the presence of legal advisors in the meeting would assist the Committee in its deliberations on this.

Legal advisor inputs
Adv Frank Jenkins, Senior Parliamentary Legal Advisor, indicated that he was on the platform with Adv Yolande Van Aswegen who was the State Law Advisor.

After asking if Adv Van Aswegen had any comments she would like to make, Adv Jenkins said that he had reviewed the NCOP amendments. The major issue before the Committee is the nature of the employment contracts for senior managers who are reporting directly to Municipal Managers – whether those contracts should be made for an indefinite period of time. The original Act and the original Amendment Bill had designated such power to the municipal council and Adv Jenkins confirmed that the appointments could be made either permanent or fixed-term from a legal point of view.

Secondly, Adv Jenkins commented on clause 10 of the Bill which prohibits municipal employees from holding political office. From a legal point of view, he did not think that there would be much risk.

If the Committee does not accept the NCOP recommendation, then this Bill would have to undertake a mediation process.

Deliberations
Mr C Brink (DA) enquired about the timeframe for mediation if the Portfolio Committee stuck to its original policy position giving municipal councils the discretion to decide if appointments of senior managers should be made on a permanent or fixed-term basis. He asked the Committee to be mindful that the Local Government: Municipal Systems Amendment Act, 2011 had been struck down by the Constitutional Court in March 2017 and Parliament was given two years to replace this Amendment Act. He expressed his concern on the legal effect as the Amendment Act still had not been passed by Parliament. He questioned if the Committee could afford to wait the prolonged period which might be caused by the mediation route.

Ms Mkhaliphi suggested the Committee Content Advisor be present to assist on this matter.

Ms D Direko (ANC) agreed that there is an issue about the senior managers accountable to Municipal Managers. However, if the matter is referred to the Mediation Committee, she believed that there would be sufficient time and room for negotiation and persuasion to reach an agreement.

Mr G Mpumza (ANC) agreed with his colleague’s view.

Adv Jenkins outlined the three scenarios for the Bill. The B version of the Bill is the amendments made by the National Assembly and the D version are the amendments made by the NCOP. If this Committee does not accept the NCOP amendments, this Bill would be referred to the Mediation Committee. Members from both Houses will then decide if they would accept either the B or the D version of the Bill. A third scenario is that the Mediation Committee draft another version of the Bill which would need to be approved by both Houses. However, this has a 30-day timeframe. If the Mediation Committee cannot agree on a Bill within 30 days, then the Bill will lapse.

Adv Jenkins asked the Chairperson if he still wanted to go through every clause of the D version of the Bill. His understanding was that the meeting was focusing on the employment contract issue.

The Chairperson said that the Committee should focus on only this issue for this meeting.

Mr Andile Sokomani, Committee Content Advisor, said that there were quite a number of Members that had already indicated that they did not have an issue with the NCOP amendment which states that senior managers be appointed on a permanent basis. It was only members of the ruling party ANC who had expressed doubt about such an amendment. He suggested Committee Members try persuading each other in the Committee before referring the matter to the Mediation Committee.

Ms Mkhaliphi said that the EFF was happy to accept the NCOP proposal as it has always been the position of the EFF. It was now up to the ANC to accept that.

Mr Mpumza gave his support for the NCOP recommendation. He pointed out that allowing senior managers directly accounting to Municipal Managers to be appointed permanently would stabilise local government administration as well as build institutional memory capacity in order to provide good service delivery.

Mr K Ceza (EFF) said that he cannot recollect any negative experience of a municipal council that consisted of permanently employed senior manager directly reporting to the municipal manager. The Committee was mindful of s151 of the Constitution which stated that the authority of making appointments of municipal officials was embedded in the municipal council. He still believed that it was desirable not to have those managers being recycled to other municipalities which led to instability and non-functional municipalities.

Mr Brink reiterated that the DA was supportive of permanently-employed senior managers reporting to Municipal Managers. The theory behind fixed-term contractual employment of municipal senior managers is that they would want to perform in order to be re-appointed. Unfortunately in practice this has not been the case in many municipalities as the five-year appointments became an opportunity for political parties to fight for their factionalism. The factionalism which put their favourite political candidates into those positions has led to devastation in the local government sphere. Since fixed-term contracts do not seem to be changing performance of those senior managers, the DA would support appointing permanent staff members who do not owe allegiance to a political party.

Mr Brink pointed out that the DA had initially thought it would be easier to replace someone on fixed-term contract. However, from a labour law perspective, there seems to be no difference between removing someone who is employed permanently and on a fixed-term basis. The same onerous procedure still applied. Thus he did not see the point of making fixed-term appointments.

Mr Brink pointed out that the Committee is facing an extreme legal uncertainty as it could not tell if a person who had previously been dismissed under Disciplinary Regulations could approach a court of law and argued that the dismissal no longer applied because the Amendment Bill has validated their employment.

Ms Direko agreed that the Committee had no time to refer the NCOP amendment for mediation. She suggested that the department should set the bar high on who qualifies to be a senior manager.

Ms E Spies (DA) highlighted the importance of greater productivity and stability in local municipal councils. As the local elections had just ended, she encouraged the new municipal councils to use this opportunity to improve their oversight role.

The Chairperson summarised that there is consensus among Members that they agree with what the NCOP has recommended.

The Chairperson thanked Members for their inputs and consensus on the matter. He expressed appreciation for Members trying to avoid mediation. He was of the view that the impact of the Amendment Bill would be seen once it is implemented.

The Chairperson adjourned the meeting.

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