The conduct of members of municipal councils is guided by the Code of Conduct for Councillors as provided in schedule 7 of the Local Government: Municipal Structures Act No. 117 of 1998 (as amended). If a Councillor has breached the Code, item 16(2) of the Code provides that the municipal council may impose sanctions on the Councillor, including requesting the MEC to remove the Councillor from office.
It is the responsibility of the municipality to act against officials and political office bearers who have failed to address unauthorised, irregular, fruitless and wasteful expenditure as required in terms of section 32 of the MFMA. Section 32 of the MFMA enables the municipal council to resolve on the recoverability or write off of unauthorised, irregular, fruitless and wasteful expenditure.
Where the municipal council fails to address the unauthorised, irregular, fruitless and wasteful expenditure, then section 173 of the MFMA read together with Chapter 3 of the Municipal Regulations for Financial Misconduct Procedures and Criminal Proceedings and the Code of Conduct for Councillors, sets out the processes that must be followed including when a councillor fails to or does something that impedes compliance with the MFMA etc. Therefore, under the MFMA, the Minister has not been granted the power to act specifically against political office bearers.
The MFMA provides in section 38, for the National Treasury to stop funds for serious or persistent breach of the measures in line with section 216 of the Constitution or breaches or fails to comply with any conditions subject to which the allocation is made.
If a Councilor fails to adhere to the legislative prescripts and the Minister becomes aware of any maladministration, fraud, corruption, or any other serious malpractice which, in the opinion of the Minister, has occurred or is occurring in a municipality, the Minister will request the MEC, in terms of section 106(4) of the Local Government: Municipal Systems Act No. 32 of 2000 to investigate the matter. Council may then be requested to institute appropriate disciplinary proceedings where required, and where instances of corruption, fraud and related offences have been identified, such reports are handed over to law enforcement agencies for further processing.
Further, it is important to indicate that the Special Investigating Unit (SIU) referrals to municipalities are not done through the Minister, but through the MEC. If the MEC does not take the necessary action, then the SIU will escalate the matter to the Premier in the Province.