Local Government: Municipal Systems Amendment Bill; with Deputy Minister

Meeting report

A clause about the Limitation of Political Rights in the Municipal Systems Amendment Bill was introduced. After this, on 20 May 2020, the Department of Cooperative Governance and Traditional Affairs (COGTA), and South African Local Government Association (SALGA) agreed to submit evidence supporting the submission for the improved professionalisation of local government.

The Chairperson said Members must be satisfied if the clause is amended. The Minister must have sufficient evidence to support the amendment in case the constitutionality of the clause is challenged. The Department and SALGA were given a deadline of Tuesday, 2 June 2020 to make submissions. To date, only SALGA submitted.

A request to extend the Department’s submission period came late at night, on the eve of the meeting. The Chairperson was not pleased about this. In a follow-up with the Department, the responsible COGTA Deputy Director General (DDG) replied on 3 June 2020, saying motivation about the Limitation of Political Rights of Municipal Managers will be submitted when the Minister approves.

The Chairperson suggested the Committee proceed with the meeting without input from the Department. The matter is on the table and the Committee’s programme must be followed. Parties agreed to make submissions, but when the submissions were due there was no feedback.

The Chairperson said the Department created the impression the Committee’s work was not taken seriously. As Parliament, the Committee must comply with court judgements. The Department must respect the Committee. Lack of respect poses a serious problem. Members of the Committee will have an opportunity to give their views on the matter.

The State Law Advisor and staff members of the Ministry were present. The Chairperson told Members a vague generic apology, signed off by the Parliamentary Liaison Officer, was submitted on behalf of the Department. It expressed a wish for the apology to be accepted. The Chairperson asked if it meant no one from the Department can attend.

Mr B Hadebe (ANC) said this was an on-going matter. He wanted to know what the implications will be if

(a) the meeting proceeded without the Department, and

(b) the extension was granted as requested.

The Committee should take a decision from an informed point of view. He said the sooner the matter is disposed of the better, as the Committee might be in breach of the court order because of timeframes. The Committee must tread carefully as the challenge of the Act concerns tagging which excludes provinces. He wanted clarity on proper tagging according to Section 76.

Mr H Hoosen (DA) agreed with Mr Hadebe about considering the implications of continuing with the meeting. The pattern of conduct from the Department, over a long period, showed a broader problem. The Department missed the deadline for submitting the Annual Report. The Committee raised concerns with the Minister about her absence, reasons provided by the Minister seemed reasonable at the time. The Committee was not unreasonable after considering the Minister’s explanation.

Subsequent meetings were scheduled weeks in advance to accommodate the Minister. Mr Hoosen asked why the Minister will agree to other meeting requests after agreeing to the advanced scheduled meetings of the Committee. His experience was, the Minister will prioritise other meetings instead of attend the Committee’s meetings. During the lockdown period, the Department dealt with a number of court cases in addition to other deadlines and parliamentary questions. The problems appeared to be both political and administrative. In written responses to parliamentary questions, the Minister had a standard answer, saying the information was not available. There was a pattern of conduct on both fronts, namely, the Department and the Ministry.

He asked how the Department could miss simple deadlines. The matter must be brought to the attention of the Leader of Government Business to intervene. He noted his deep disappointment in the Department’s reply. Constitutional Court cases have deadlines the Committee struggled to meet, because the head of the Department was not assisting to get the Bill passed.

Ms H Mkhaliphi (EFF) agreed with her colleagues, saying the Department’s conduct was unacceptable. The Committee’s programme was drafted to prioritise COVID-19. The Programming Committee raised the Municipal Systems Amendment Bill, maintained by the Speaker in Parliament. The Committee accepted the matter must be processed because of its importance.

Members acknowledged Parliament’s duty of oversight, according to the Rules. This must be done and the Committee cannot accept the Department’s behaviour. The Leader of Business Government, which is the Deputy President, must be informed about the unacceptable conduct. All South Africans wanted to see any mechanism implemented to address the crisis within local government through this Bill. The Department was supposed to lead with solutions, and if it did not assist the Committee, it must be condemned. The Speaker as head of the institution must also be informed to make sure the Executive is held accountable. If both the Leader of Government Business and the Speaker fails, then Parliament also fails.

Mr Hadebe asked if the Committee will not be dragged into a quagmire if the meeting continued and challenges arose about resolutions the Department must defend. He said he was concerned about continuing the meeting without giving the Department an opportunity to get involved.

The Chairperson said the matter was now in the hands of the Committee. It was supposed to discuss if Members agreed or disagreed with all the proposals and advice from the Department and State Law Advisors. The only outstanding matter is the issue of evidence.

A Member said the purpose of the meeting is to get submissions of evidence from the Department and SALGA. She said SALGA must be allowed to proceed because of the urgency of the matter. From a procedural point of view, based on the rules of National Parliament, the Committee has the power to summon the Department to appear next Tuesday if the Committee wishes. She agreed the Leader of Government Business must be informed.

The Chairperson asked the Deputy Minister (DM), Mr Parks Tau, if he knew of the Committee’s predicament. She said the Committee felt disrespected by the Department’s attitude. It was agreed the Department will give evidence on 3 June 2020. On the due date, the Committee followed up, but was told the Department was waiting on the sign-off by the Minister. This meant it missed the deadline. The Committee received a request to extend the deadline in the early hours on the day of the meeting. So many issues were raised about the culture of non-compliance by the Department. The Chairperson asked the DM to get a brief from his staff members about earlier discussions.

The Chairperson handed over to the Deputy President of SALGA, Councillor Stofile, to deliver Salga’s presentation.

Ms Mkhaliphi asked if the DM must not be given an opportunity to comment.

The Chairperson said the DM will be given an opportunity to reply after SALGA completes its presentation.

The Deputy President of SALGA said Mr Lance Joel will make the submission on issues SALGA needs to emphasise. He was grateful for meeting the deadline as directed by the Committee, as it was in the interest of SALGA to highlight a high level of professionalism in its conduct. It is also of keen interest to the association to have systems in place, especially as the 2021 election period approaches. On 5 December 2020, SALGA will celebrate the 20-year anniversary of local government in South Africa. An important issue to celebrate is the journey traversed towards professionalism in local government. The Bill presents the opportunity to send the message of SALGA’s commitment to professionalism in local government. The focus must be on the objective of delivering services. The issue of time management will also be highlighted. The interface which must take place between the municipalities in local government, the Member of Executive Council (MEC) in the Province, and the Minister, must not hamper the operations and functions of local government. He asked for suggestions on how the relations and cooperation on these levels of government can be improved to address the challenges of local government.

Presentation by SALGA

Mr Lance Joel, Chief Operations Officer: SALGA, presented the comments on the Local Government: Municipal Systems Amendment Bill [B2-20219]. He focused on the main issue relating to the current proposal of amending Section 56 to insert Section 56 (A).

Context: Problem Statement

The focus of the meeting held on 25 February 2020, was the 2009 State of Local Government Report and the 2010 Local Government Turnaround Strategy. Both reports raised issues of political influence in municipalities. The turnaround strategy recommended the professionalisation of local government to improve service delivery. This is not a new concept. Work on it has been done since 2008. The focus at the time was on the limitation of political rights relating to municipal managers (MM) and managers reporting directly to the MM that may not hold political office in political parties.

SALGA Proposed Amendment

The experience since the implementing the 2011 Systems Act, shows Section 56 of the Act must be amended to include all municipal employees. To introduce professional behaviour, SALGA recommends no municipal position for political office bearers must be allowed.

Practical Challenges: Prior to the Systems Amendment Act, 2011

In a 2008 SALGA report, which was a 12-year old document, an analysis was done from a governance point of view. The report was used to lobby COGTA for the replacement of the Section of the Act. The SALGA study identified four key points:

• The appointment of a political party office bearer to a position in the administration, not only affects the administration but also the functioning of the Council.
• It is not uncommon for senior management to be populated by party officials.
• The appointment of a party official who occupies a position higher than any councillor, to an administrative post, runs havoc with all the legal lines of accountability.
• Where the party officials are in a position below the MM, the MM cannot exercise disciplinary supervision, even if there are allegations such as maladministration and absenteeism.

Comments from interviewees

Actual comments from interviewees were discussed. It all pointed to the negative impact of political influence on service delivery by municipalities. The results of the detailed research supported the course to revisit the limitation of political rights and the extension of the limitation to all municipal employees. The introduction of the 2011 limitation only partially achieved success as it was limited to senior managers. The rest of the municipal employees are still able to hold political office. This creates a situation where Junior Councillors will be in a position to hold senior MM’s, who are politically junior to them, to account.

Constitutionality Challenges

SALGA sought legal opinion from Senior Council to establish if the provision, as currently set out in the Bill, will meet constitutional muster. Section 19 (1) which was enshrined in the Bill of Rights, allows for the right of political association and activities to every citizen. Section 56 (A) must be tested against Section 19 (1) read with Section 36 of the Constitution, to test if there will be an infringement of the Section 19 (1) rights. The circumstances SALGA faced, was the reality of basic services as prescribed by the Constitution. SALGA was aware of the link between the challenges faced by municipalities and political connections. An article by a leading academic on the topic of local government, Professor Jaap de Visser concluded the political connects often leads to perennial power struggles that spill over into service delivery problems. The amendment sought to address the problem identified by Professor De Visser.

The Importance of the Purpose of the Limitation

• The limitation by the Section is important and its benefits will be enjoyed by millions of South Africans. The anticipated outcome is improved service delivery.
• The effect of Section 56A is, it precludes municipal staff from being political office bearers. However, are still free to participate in a political party in whatever manner wished.
• Retain all the other rights guaranteed under Section 19. The limitation imposed by Section 56A is a rather soft or minor one.

Legal Opinion Summarised

• Section 56A infringes on Section 19(1) of the Constitution.
• However, the limitation imposed by the Section is reasonable and justifiable in an open society based on human dignity, equality and freedom.
• The limitation will certainly benefit millions of South Africans who are affected by essential services challenges.
• The benefits of the limitation are considerable compared to the minor impact it will have on municipal officials.

Recommendations

SALGA recommends the Committee resolve to:

• Note the municipal experiences on municipal officials holding political office.
• Note the SALGA legal opinion on constitutionality of the limitation to hold political office.
• Retained Section 56A but amend it to provide no municipal employee may hold political office in a political party whether in a permanent, temporary or acting capacity.

Discussion

Ms G Opperman (DA) referred to the statement made by the State Advisors the previous week, indicating the Minister only needs to prove the limitation to be reasonable and justifiable. The main goal was to improve service delivery. She praised SALGA’s good presentation and said the Committee should not have a problem passing the Bill.

Mr Hadebe said :

• Members who previously worked in local government could relate to the issues raised.
• He said however, the SALGA presentation did not consider who may become MMs within the structure of between 40 to 50 people.
• The limitation only pointed to Regional Executive Committee (REC) and Provincial Executive Committee (PEC) levels.
• He asked if SALGA was suggesting elements who need to be gotten rid of were not regarded as being professional.
• He said SALGA could be challenged by the South African Municipal Workers Union (SAMU) if the limitation was extended to all municipal employees.
• He questioned the reason for focusing on only five officials and said recommendations only solved part of the problem.

Mr C Brink (DA) said the proposal made a strong case to extend the definition to all officials and not restrict it to certain officials. It is logical for it not to apply to only senior managers. He agreed with Mr Hadebe, saying the Committee must review the definition to include members of the Executive Committee and all equivalents. The intention must be made clear; the limitation must apply to all officials and not only to office bearers. This amendment was not going to be the final solution as there is a bigger problem with officials getting involved in politics. He suggested the disciplinary code for staff members be reviewed as officials are prevented from disciplining politically connected office bearers. Undue political influence is used, especially in hung Councils. The Committee must ensure officials understand the regulations.

Ms Mkhaliphi said the matter dated back to 2013. It is still an unsolved problem in 2020. She strongly proposed the Committee proceed with the issue. She agreed with colleagues, there is a bigger problem in municipalities. The SALGA presentation painted a clear picture of what was happening in municipalities. She suggested a Bosberaad to deliberate on the issue of political connections. The Committee must involve all stakeholders but must lead the pack on finding solutions to the problem. She asked for clarity regarding if the MEC is expected to comment within 14 days after the appointment of the MM. She said the MEC must not be given powers that are not in the regulations. In terms of Section 136(1), the MEC of a Province must act according to the code of ethics. The MEC cannot disagree with the appointment of a MM made by the municipality. She agreed the proposal to professionalise municipalities is long overdue. The problem with the current situation at municipalities is as a result of cadre deployment. After 20 years, it was now haunting the country. People with qualification must be appointed to occupy positions at municipalities. The solutions are in the hands of the politicians. Professionalisation must not stop at senior manager level. Administration must not be confused with political activism. She said Member’s expand member’s knowledge of what was done elsewhere, and how other countries succeed in managing municipalities. All political parties must join hands to correct the situation. If the roles of the police and the National Prosecuting Authority (NPA) are not clear and arrests are not made, the situation will not change.

Mr Hoosen looked at the amount of times where lack of consequence management was on the forefront of discussions in the Committee. The SALGA proposal presented a situation of the boss not being the boss. This indicates an erosion of consequence management and this is the underlying problem at municipalities. Mr Hoosen said Section 19 does not refer to the right to hold political office. Holding political office is not a right but a privilege, although the Constitution of some political parties might include it as a right. He asked SALGA to check with its advisors on the argument of Section 19 being an infringement of the rights of individuals. He suggested introducing a phase-out period to accommodate people who are currently employed in positions which will be impacted if the Bill comes into effect immediately. This will allow employees to either resign or make alternative arrangements.

Mr K Ceza (EFF) asked:

•  if the amendment will infringe the rights of individuals as according to Section 19(1).
• He welcomed the professionalisation of MMs and staff in the reporting line of MM’s.
• He asked what impact the amendment will have on accountability.
• He said he would like to see a competent and professional municipality where political entitlement
• is not tolerated.
• Activists join political parties voluntarily but get enticed to entitlement by party propaganda.
• He asked about incomplete projects at the JS Moroka Municipality dating back to 2009. The issues are not being resolved because of the threat of job security for people who were not part of the cabal.
• He said all the problems at municipalities stemmed from the ambiguity of the laws governing municipalities. The laws of Local Government must be clarified to address the need for change at municipalities.

Ms M Tlou (ANC) proposed a thorough discussion of about the difficulty of disciplining directors. At municipalities, the Speaker had more powers than the MM. The need for professionalisation was clear. To avoid problems, political parties must be engaged to address maladministration at municipalities. She suggested the proposal be presented to political parties to make a final decision.

Mr I Groenewald (FF+) asked SALGA to investigate the unintended consequences of the amendment, to mitigate problems. Establishing an ombudsman must be seen as a quick reference where a charge can be laid if Councillors do not reply to letters or do what is expected.

Mr Hoosen said it was a pity the Court did not express an opinion about constitutionality when the Court dealt with this matter. He suggested the Department consider the option of asking for a declaratory order to speed up the process.

Mr Hadebe said, according to the recent High Court ruling regarding a declaration infringing on human rights, the Committee must make sure all the i’s are dotted and all the t’s crossed.

Ms Mkhaliphi said the Committee will want to proceed with the matter and asked if SALGA consulted with its legal advisors about the constitutionality of the amendment.

The Chairperson referred Members to the summary of the legal opinion in the SALGA presentation and said Members can ask questions seeking clarity. She thanked SALGA for the level of professionalism, the quality of the presentation and the support given to the Committee.

Response by SALGA

Mr Joel thanked Members for all the positive comments and said SALGA needs to lead by example.

Referring to Mr Hadebe’s questions, he said SALGA might not have considered the broader implications but the concern is about the practicality of a blanket limitation or limiting it to a few positions.

On the role of the MEC, SALGA’s reading of the Bill aligned with Ms Mkhaliphi’s position. The MEC did not have a superseding role but had the duty to determine if legislative processes are duly followed. According to the provision, the municipality made decisions through the Council and must inform the MEC within 14 days. The MEC must submit the communique to the Minister. If the MEC fails, the Minister has the authority to assess if the prescribed processes are followed. If both the MEC and the Minister fails in this duty, the municipality can accept the appointment was duly made. The validity of appointments is challenged in several cases currently before the courts.

Replying to Mr Hoosen about a phased-out approach for existing employees if the Bill comes into effect, he said, the current legislation allows for an exemption. The end of the term of office coincides with election cycles.

Speaking on the constitutionality of the amendment, he said, the Constitution allows for limitation of rights if it is justifiable and reasonable. The legal opinion confirms there is good reason to infringe on rights. Mr Joel said there are different views on the recent High Court judgement and the process must be allowed to unfold. SALGA seeks sufficient advice and is confident in its position as presented and is comfortable to support the stated opinion.

Follow-up discussion

Mr Hadebe said, when SAMWU went to Court, it was based on legal opinion that every citizen had the right to participate in political activities. He asked if it will be regarded as fruitless expenditure if a second legal opinion is sought.

The Chairperson reminded Mr Hadebe about the advice from the State Legal Advisor on the matter.

Mr Hadebe said he raised the issue based on the history in the country, where in the past, political rights of people were undermined.

The Deputy President of SALGA said it is difficult to comment on legislative matters. Involvement in politics must not hinder service delivery but there is sufficient evidence gathered over the past 20 years demonstrating the hindrance politics has on service delivery. SALGA consulted senior legal minds for advice on how to professionalise local government. It also listened to the advice of the State Legal Advisors, who all

agreed, rights can be limited but a strong case must be made about the intention of the limitation. He thanked the Chairperson and the Committee for the opportunity to deliver the presentation and said SALGA is always available to engage with the Committee.

Response by the Deputy Minister

The Deputy Minister thanked SALGA for the valuable presentation. He said a general response will be given at first and more specific matters will be addressed afterwards. As the Ministry, there is a collective commitment and agreement to account and work closely with the Committee. The Ministry will endeavour to attend meetings when required. He acknowledged the Minister will not always be available but if it is required of the Minister to attend, the Ministry will ensure there is political presence. There is no intention from the Ministry to undermine or disregard the Committee.

In the past, the deadlines for submission of the Strategic Plan and the Annual Financial Statements were not met. Although the reports were submitted late, the Ministry reiterated its commitment, as shown in the timely submission of the Strategic Plan and the Annual Performance Plan in this cycle. An area receiving attention, is the improvement of the quality of submissions.

The Deputy Minister said, the newly appointed Director General (DG), convened a special working group to address the support and submissions to Parliament. The matter is receiving attention and improvement is forthcoming.

The Ministry understands, the Nelson Mandela Bay meeting was scheduled. It is unfortunate it clashed with the meeting in Parliament but the clash was not intentional. The two meetings at the same time created the misunderstanding. After the unhappiness of the Ministry’s non-attendance was brought to its attention, the Deputy Minister was excused from the Parliamentary meeting to attend the Committee meeting. The Deputy Minister apologised for the inconvenience caused. It is important the Bill be considered, he asked for indulgence to return and deliver the presentation as required.

The Chairperson acknowledged the Deputy Minister’s reply, but said it did not address the issue of not complying with the Tuesday deadline for the submission. She said the lack of communication when deadlines passed, bothered the Committee. There was an agreement for all documents to be submitted by Tuesday. The Committee nevertheless accepted the apology.

Ms Mkhaliphi accepted the Deputy Minister’s reply but said it must not be business as usual. Since the opening of Parliament, Members are struggling to get documents on time. According to parliamentary rules, documents must be delivered 24 hours before a meeting. It is difficult to prepare for meetings if documents are received at the last minute. The Committee expected the Department to make sure all stakeholders support the work of the Committee. It is not expected of the DG to attend all meetings but the Department can delegate officials to attend different meetings. It is disappointing, the Department not playing a leading role and it is so easy to make the excuse officials are stuck in other meetings.

Ms Mkhaliphi implored the DM to crack the whip. She appreciated both Deputy Minister’s always attended the meetings. Her concern is with the conduct of the Department who is the backbone of the work of the Committee. This is why non compliance cannot be tolerated.

Mr Brink said, given the Deputy Minister said a special working group was formed to address parliamentary accountability as well as accountability to the Committee, he asked the Deputy Minister to follow up on the issue of Rule 145 (5). According to this rule, the Minister had to respond to written questions within ten days. A common response from the Minister was she needs more time as the information was not readily available. However, in many instances, a reply was not presented and compliance to this rule was zero percent. He implored the Deputy Minister take up the issue with the Ministry and hoped the Committee will keep track of this matter.

The Chairperson said she appreciates the Deputy Minister’s reply and said the people who briefed him are the culprits, and are selective in the briefing. She is concerned about the delay on a matter which has a constitutional deadline. The Committee is going to agree to another deadline but it has a negative impact on the deadlines of the Committee, and has serious implications for Parliament if it does not comply with court judgements. A new deadline of 9 June 2020 for the Department’s submission was proposed.  She said it was difficult to do follow-ups with the Department when information is not forthcoming and suggested the Department plan for contingencies to not appear to be disrespectful to Parliament. The Committee cannot deliberate on outstanding information and relies on the cooperation of the Department. However, the Committee feels like it is held ransom by the Department. She said she hopes the work of Parliament will be prioritised and trusts the Deputy Minister will advise officials to enable the Committee to do its work.

Ms Mkhaliphi reminded the Deputy Minister about the issue of the Chief Executive Officer of MISA raised in a previous meeting.

The Deputy Minister undertook to follow up on issues raised and promised to give feedback on the development of the DG processes. He said the issue of the CEO of MISA was not ignored but his interpretation was the issue was overtaken by parliamentary engagement. He will nevertheless provide the same reply if it is still required.

The Chairperson took a final roll call of Members in attendance and thanked the representatives of SALGA, the State Legal Advisor, and the Deputy Minister.

The meeting was adjourned.