Local Government: Municipal Systems Amendment Bill: Final Mandates and Committee Report

Meeting report

The Committee received an apology from Mr E Mthethwa (ANC, KwaZulu-Natal). There was also an apology from Ms Avril Williamson, Director-General, Department of Cooperative Governance and Traditional Affairs (COGTA).

Mr Tebogo Motlashuping, Deputy Director-General (DDG), COGTA was present in the meeting, and was leading the delegation from the Department.

The Chairperson noted that the Select Committee (SC) was meeting to consider the final mandates from the different provinces in respect of the Municipal Systems Amendment Bill [B2D-2019]. Thereafter the Committee would consider and adopt the report of the Committee, so that it could report to Parliament on how it undertook a journey to amend the Municipal Systems Act. He reminded Members that this piece of legislation was important, especially in the context of normalising and stabilising South Africa’s municipalities, which were in the main facing a number of challenges, ranging from the political, governance, administrative, financial, and service delivery. This piece of legislation was as per the imperatives of the Constitution. Around 2019, the Constitutional Court made a declaration of invalidity on the law itself, and questioned the way in which it was tracked, it unfolded, and ultimately the way Parliament adopted it. Parliament was given some time to look at the law afresh, and restart the process in order to ensure that it complied in all respects. The Committee was at the stage where after embarking on a laborious process in respect of this piece of legislation, provinces were tabling their final mandates. The Committee would look at the final mandates and take the process forward.

The Chairperson noted the meeting was taking place in the context of the time period immediately after South Africa’s local government elections, held on 1 November 2021. The Committee knew what had happened, and knew the outcomes. All the Committee could say was that it was looking forward to working closely with the new councillors and new municipalities with a view to achieving the developmental objectives of local government.

Mr Motlashuping would guide the Committee on the agenda item of the clause-by-clause tabling of the Local Government Municipal Systems Amendment Bill, when it would consider all of the necessary aspects in that regard.

Final mandates

All the provinces had approved the amendments to the Bill, and they had approved the processes that were unfolding. As per the procedure, the Committee needed to confirm in the meeting in respect of the final mandates from the provinces.

Eastern Cape
Mr Z Mkiva (ANC, Eastern Cape) was not on the platform at the moment he was called on, but the Chairperson noted that in the Committee’s records, the Eastern Cape had supported the amendments.

Free State
Mr G Michalakis (DA, Free State) read that the province of the Free State supported the Bill.

Gauteng
Mr K Motsamai (EFF, Gauteng) read that the province of Gauteng supported the Bill.

KwaZulu-Natal
Mr Mthethwa was absent with an apology. The province had submitted a notice to support the amendments.

Limpopo
Ms S Shaikh (ANC, Limpopo) read that the province of Limpopo supported the Bill.

Mpumalanga
Ms N Nkosi (ANC, Mpumalanga) read that the province of Mpumalanga supported the Bill.

Northern Cape
Ms B Bartlett (ANC, Northern Cape) read that the province of the Northern Cape supported the Bill.

North West
The Chairperson read that the province of the North West supported the Bill.

Western Cape
Mr I Sileku (DA, Western Cape) read that the province of the Western Cape supported the Bill.

All nine provinces were unanimous in their support for the amendments.

Clause-by-Clause Tabling of the Local Government Municipal Systems Amendment Bill

The DDG was accompanied by Mr Jackey Maepa, Senior Manager: Local Government Policy and Systems, COGTA.

Adv Frank Jenkins, Senior Parliamentary Legal Adviser, Parliament of South Africa, went through the amendments on the D version of the Bill. There were one or two typographical errors that would be corrected in the final version that would be sent to the printers.

Clause 1
Certain definitions were changed. This clause dealt with new definitions, such as “municipal manager”, “political office” and “secondment”.

Clause 2
This clause dealt with the appointment of municipal managers and acting municipal managers. It was a change in how the council must appoint municipal managers as well as the “fit and proper requirements” and how the process must work.

AdvJenkins asked the Chairperson if he should read out the contents of the clause.

The Chairperson replied that he should not “over elaborate”, but should just take the Committee through, and pinpoint the areas of amendment.

The clause showed what the council needed to do, and the process that needed to be followed to appoint a person as a municipal manager. There were provisions in the Bill for advertisements. If the council did not find the right person, further advertisements must be made.

The clause also dealt with the powers of the Member of the Executive Council (MEC) for local government, and what the MEC can do if the appointment process is not going according to the timeframes, or if the council did not find someone to appoint within that timeframe.

There were provisions to ensure that there was a municipal manager in office at all times, and someone that could be held accountable for what was happening within the municipality, and to get rid of the exorbitant amounts of acting municipal managers.

Clause 3
This clause dealt with the appointment of managers directly accountable to municipal managers. This was the executive team within the municipality. What the amendment in clause 3 did was to indicate that managers must be appointed either permanently, or if they were appointed on a contract basis, how that would be dealt with going forward, as well as the process. The clause also dealt with the process of advertising posts, and the qualifications of persons. It included the powers of the MEC to deal with irregularities that may occur.

Clause 4
This clause amended section 57 of the Act. It dealt with when employment contracts must be signed. There was a discussion in the Committee previously about when contracts are signed and when one commenced with one’s service to the municipalities. The clause also dealt with the renewability of certain contracts. Subsection 7 stated that a contract must be on a permanent basis. That was to facilitate a better tenure of the position, as well as to have more of independence within municipal managers; it would not be a contract position that could easily fall away. It would also facilitate retaining scarce skills.

Clause 5
This clause dealt with employment of dismissed staff and record of disciplinary proceedings. It also dealt with the conditions under which people could be reemployed, and the powers of various decision-makers in that process. Additionally, the clause dealt with “hopping from municipality to municipality because you are always chased by some kind of disciplinary action”, and to prevent that from happening.

Clause 6
Clause 6 dealt with certain responsibilities of the municipal manager, and the decisions that must be taken, as well as when those employment contracts can be invalidated.

Clause 7
This clause connected with clause 6, and said that there must be systems and procedures for people who are appointed in the municipality, specifically for the validity of contracts, how contracts must be terminated.

Clause 8
This was a new insertion in the Act to deal with bargaining council agreements, and set out responsibilities for the South African Local Government Association (SALGA) etc. (see the attached Bill version).

Clause 9
This clause dealt with combatting corruption where a staff member of a municipality may not be a political office bearer in a political party. That person needs to resign, if that is the case, within a certain time to comply with that clause. This was one of the issues that went to court, and “it was not decided in court”.

Clause 10
This clause dealt further with specific obligations of the accounting officer or the municipal manager. To guide and to authorise any municipal manager to do certain things, it needs to be in some form of legislation or regulation. This clause added certain responsibilities to the municipal manager such as how to train and develop staff members, and what legislation is applicable. One would be looking at the Sector Education and Training Authority (SETA), the Skills Development Act, the Skills Development Levies Act, etc. and how these would then apply. That would facilitate better governance within the staff of a municipality.

Clause 11
This clause dealt with reporting on the state of a municipality, investigations of MECs within a municipality where the council did not take action, etc. and how that must be reported from the MEC to the Minister.

Clause 12
Clause 12 was more consequential amendments, and removed certain sections to align the Act with the amendments that were coming into place.

Clause 13
The clause dealt with voting, and conflict of interest.

Clause 14
This clause dealt with the transitional period where government would go over from one regulatory framework to the other.

Clause 15
This clause dealt with the repealing of laws and certain section.

Clause 16
This clause dealt with the short title and commencement of the Act.

The Committee had thus been given an overview of the amendment Bill as amended by the National Assembly and the Committee.

Adv Jenkins asked the Chairperson if the Committee wanted to be taken through the Memorandum on the Objects of the Local Government: Municipal Systems Amendment Bill.

The Chairperson asked if there were any changes in respect of the Memorandum

Adv Jenkins replied that there were no changes.

Discussion

The Chairperson said that these were very important amendments and corrections in respect of the amendments to the Act. He asked if Members wanted to make any input or to make suggestions.

Ms Bartlett said that the amendments were straightforward, and that the Bill was straightforward. She suggested that if no-one had anything to say, then the Committeee could adopt the Bill.

The Chairperson said that there were no issues raised by Members. He then thanked the Department for helping the Committee when it was going through that particular process. The Bill process had been a very important process, especially in the wake of fact that this law was declared invalid by the Constitutional Court. The Committee had to be very meticulous and very observant. It had to ensure that everything was in place.

Consideration and Adoption of the Committee Report

The Chairperson read out paragraphs six and seven of the report.

6. Consideration of the Local Government: Municipal Systems Amendment Bill [B2D-2019]

He asked for a typographical error to be corrected in this paragraph; there needed to be a comma between “Northern Cape” and “North West”.

7. Recommendations

(See the report for the full details.)

Ms Nkosi moved for the adoption of the report.

Ms Bartlett wanted to refer to item 6.1 from the report, which was on the provinces that agreed on the Bill. She did not see KwaZulu-Natal listed in the report.

The Chairperson replied that he did not take that (KwaZulu-Natal’s omission) lightly. He asked for KwaZulu-Natal to be included under 6.1.

Ms Bartlett said that with that correction, she seconded the adoption of the report.

There were no objections to the Bill. The Committee took the Bill as being adopted, and it would be referred to the House for its consideration.

The Chairperson said that the Bill was important because it sought to stabilise municipalities. He hoped that municipalities, in the implementation of this law, especially in respect of appointing municipal managers, seconding people, appointing people in an acting capacity, and looking at the timeframes thereof, in respect of section 56 on employees and senior executives, would comply with the law once it was adopted by Parliament. He hoped that the municipalities would establish all of the posts, and ensure that nobody would be appointed outside the post establishment set by the council. He also hoped that only skillful, capacitated, and knowledgeable people with the requisite expertise would be appointed by municipal councils. The role of the provinces was critical, especially that of the MECs responsible for Cooperative Governance & Traditional Affairs, in concurring with the recommendations on the appointment of municipal councils. With that chain, the Bill could go a long way in bringing about the necessary stability in municipalities. The Committee was looking forward to seeing the municipalities implementing this law. As Parliament, the Committee would continue to play its role of ensuring that it would oversee what municipalities were doing. This was going to be quite important, because if municipalities did not do that, the Committee would have to make some “drastic interventions” to ensure that municipalities complied. This Bill could go a long way towards stabilising municipalities, and afford them the possibility to accomplish the developmental objectives which were encapsulated in section 152 of South Africa’s Constitution.

The meeting was adjourned.