Local Government Laws Amendment Bill: discussions

Meeting report

LOCAL GOVERNMENT AND ADMINISTRATION SELECT COMMITTEE
05 February 2008
LOCAL GOVERNMENT LAWS AMENDMENT BILL: DISCUSSIONS

Chairperson: Mr S Shiceka (ANC, Gauteng)

Document handed out:
Local Government Laws Amendment Bill [B 28B-2007]

Audio recording of meeting

SUMMARY
The Department of Provincial and Local Government engaged the Committee’s questions on the Local Government Laws Amendment Bill. Members posed questions about the out of pocket expenses incurred by ward committees and the participation of staff of local municipalities in local government elections. Additionally, the Committee scrutinised the term of contract of municipal managers, ability of public servants to benefit from government contracts and the alleged infringement of the NCOP in the autonomy of provinces.

MINUTES
The Chairperson invited Members to raise any issues or point of clarifications with the Department of Provincial and Local Government (DPLG) regarding the Local Government Laws Amendment Bill (the Bill).

The Chairperson queried whether ward committees would continue to operate if a ward council was to be dissolved. In addition, he asked how these committees would then function and to whom they would report.

Mr N Mack (ANC, Western Cape) maintained that ward committees became dysfunctional when a ward councillor was suspended. He cited the situation in the Beaufort West Municipality to buttress his point.

Mr Elroy Africa, Deputy Director-General: Systems and Capacity Building, DPLG, explained that when a municipality was subjected to an intervention in terms of Section 139 of the Constitution, all legislative responsibilities of the council were suspended, and authority was transferred to an Administrator. Furthermore he specified that ward committees were advisory structures and therefore did not have any executive responsibilities in municipalities. He concluded that ward committees could indeed continue to function and offer their views, despite the invocation of section 139.

Mr Malusi Ncolo, Senior State Law Advisor, agreed with the explanation provided by the Department.

Kgoshi L Mokoena (ANC, Limpopo) expressed a degree of uneasiness about the terminology- “out of pocket “-utilised in clause 6 of the Bill.  He failed to understand how the expenses of ward committees could be given such a designation when it came out of the budget of the municipality. Finally, he found it undesirable that a ward committee should rely for financing on the very people over whom it exercised oversight.

Mr Africa explained that this provision was intended to recognise that ward committees incurred out of pocket expenses, which came out of the budget of municipalities. He added that this was a common terminology that referred to sundry and incidental expenses.

Mr J Le Roux (DA, Eastern Cape) insisted that the Department should introduce a cap on the spending of ward committees.

The Chairperson mentioned that certain ward committees had extravagant tendencies and therefore needed to be regulated. He recommended that municipalities should be instructed to develop a policy on out of pocket expenses. Provincial departments would be required monitor such a policy to ensure transparency and uniformity across all municipalities.

Mr Mokoena observed that the clause, dealing with the participation of staff of municipalities in local government elections, was inconsistent with the Public Services Amendment Bill. As a result, he called for the alignment of both pieces of legislation.

Mr Africa summarised that the rationale behind this clause was to ensure good corporate governance. Nevertheless, he claimed that the Department would abide by the decision of the Committee and seek additional legal advice on the constitutionality of the clause. Finally, he suggested that instead of the staff member resigning, specific regulations could be put into place to regulate his or her conduct in the transitional period.

Mr Ncolo disclosed that the Office of the State Law Advisor had been instructed by the Department to investigate the constitutionality of this issue. The study revealed that “there was nothing unconstitutional” about this particular clause. Finally, he urged that the two pieces of legislation be compatible.

The Chairperson asserted that in terms of clause 13 (1), a resignation of a staff member would be precipitated by his/her election. He was adamant that the conduct of such an official needed to be regulated.

Advocate Zuraya Adhikarie, Senior Parliamentary Legal Advisor, and Mr Ncolo highlighted that the Public Services Amendment Act and the Municipal Systems Act regulated the conduct of a staff member who participated in elections.

Mr Z Ntuli (ANC, KwaZulu-Natal) noted that a previous version of the document had made an exception for part time councillors, with regard to their resignation, if they were elected for public office. In the current document this had been omitted, and he wanted to know if this had been an intentional omission, and what the current status was.

Mr Le Roux believed that clause 19(b),-which precluded a councillor from benefiting from municipal tenders, was unfair.

Ms F Nyanda (ANC, Mpumalanga) pointed out that clause 21(b) had a similar stipulation.

Mr Africa countered that these provisions were congruent with the Municipal Finance Management Act.

The Chairperson stated that this was a policy consideration that needed to be debated further. He added that mechanisms such as the disclosure of interest prevented public servants from unduly benefiting from government contracts.

Adv Adhikarie proposed two amendments to clause 19(b). The proposed new wording was  aimed at prohibiting a councillor’s family from also benefiting from municipal tenders, and making a distinction between a contract for the provision of goods with a contract for the delivery of services

Mr Mokoena argued that the term “family member” needed to be defined, because it had different meanings in different cultures. Also, he reiterated the view advocated by Mr Le Roux on this matter.

The Chairperson clarified that the definition was restricted to an individual’s immediate family member.

The Chairperson expressed satisfaction that municipal managers would be given five-year contracts. However, he disagreed that such officials should be retained for a further 12 months after the election of a new municipal council. This could be problematic if the municipal manager was from a different political party to the municipal council. Accordingly, he favoured a six-month handover period.

Mr Africa remarked that there was general consensus on this issue. The only area of dispute involved whether the term in respect of the hand-over for the municipal manager, after the election of a new council, should be twelve or six months. The Department would be happy to amend the clause if the Committee wished.

Mr Ntuli wondered whether a suspended councillor could continue chairing a ward committee. Consequently, he reasoned that a ward committee would not be able to function.

Mr Africa suggested that a clause be inserted in the Bill authorising an Administrator to appoint an Acting Chairperson when a ward council was disbanded. This would ensure that the ward committees continued to discharge their responsibilities.

The Chairperson argued that under clause 17(c), the amendments to section 106(4)(a) of the Municipal Systems Act should also confer authority to the NCOP to request an MEC to investigate maladministration in a municipality.  Furthermore, he contended that the new subclause 106(4)(b) should be strengthened to include the steps to be taken after such an investigation.

Advocate Adhikarie expressed concern regarding the two clauses and the basis of the reporting structure envisaged.

Mr Africa cautioned the Committee against usurping the role of the executive when it sought such authority.

Mr Ntuli rejected this assertion. He rationalised that the Committee normally called MECs to account and foresaw no problems with the proposed amendment to the clause.

The Chairperson understood the concern of the Department but nevertheless agreed with Mr Ntuli’s assessment.

Mr A Manyosi (ANC, Eastern Cape) commented that this was something obvious that was happening in practice.

The Chairperson noted that the Department did not tend to resist when the Committee opposed its view. He appreciated this approach and indicated that it was not a method adopted by other departments. He indicated that further discussions would continue on the following day.

The meeting was adjourned.