Background

The “initial” Municipal Structures Amendment Bill came into existence to address some of the challenges the Independent Electoral Commission had encountered in managing or facilitating local government elections in the past. For instance, there had been numerous disputes around the filling of vacancies on the council. Further amendments to the initial Bill were included, among other things, to promote certainty on governance matters, such as the composition, powers and functions of various committees of the council. The inclusion of these reforms to strengthen governance in municipalities culminated into the “final” Bill which served before Parliament until its lapse on 7 May 2019. The temporary pause was as a result of the Bill not being finalised before the legislature’s term ended in the wake of the national and provincial government elections that took place on 8 May 2019. It appears that there is no significant action taken on the Bill after the national and provincial elections. This article briefly analyses some of the proposed major amendments whose implementation we will be observing keenly.

The role of the MM in announcing a vacancy on the council

Clause 11 of the Bill states that section 25 of the Municipal Structures Act will have a new subsection (2A) which obliges the Municipal Manager to inform the MEC for local government and the Independent Electoral Commission of a vacancy in a ward. At present, the Act does not mandate a specific person to carry out this role. This new section would mean that the determination of a vacancy will lie in the hands of the Municipal Manager, which may be problematic as it will bring the Municipal Manager into the political decision-making realm. What is good about this amendment is that there will be clear and speedy reporting of vacancies, with minimal interference and fighting amongst the councillors and their respective parties on whether a vacancy exists or not as has been the case in Nelson Mandela Bay Metropolitan Municipality. Once a Municipal Manager has made a determination, the matter will be escalated to the MEC for local government and the Independent Electoral Committee. Municipal Manager’s decisions are, however, reviewable. This means that a municipal manager’s decision to declare or not to declare a vacancy could be taken on review, which may result in legal quarrels and long periods of uncertainty.

The Speaker’s casting vote powers in the determination of matters set out in section 160(2) of the Constitution could be abolished

The Bill proposes to take away the power of the Speaker to exercise a casting voting when the municipal council takes decisions on matters set out in section 160(2) of the Constitution, namely the passing of by-laws, the approval of budgets, the imposition of rates and taxes, and the raising of loans. This follows the decision of the Constitutional Court that found the section to be inconsistent with section 160(2) of the Constitution. The Speaker is still, however, permitted to exercise a casting vote on any other matter if there is an equality of votes.

Redefining the functions of the Speaker

Clause 17 of the Bill seeks to amend section 37 of the Municipal Structures Act by widening the functions of the Speaker to improve the effective, ethical, accountable and functional exercise of the legislative and executive of the municipality section 79 committees, the council and ward committees. The proposed section 37(h) of the Municipal Structures Act may raise some eyebrows. It explicitly grants the Speaker the responsibility to oversee the Executive Committee or Executive Mayor. This proposed change may result in conflicts between the Speaker and the Executive Committee or Executive Mayor. Oversight over the executive authority is a function already performed by the council, which the Speaker chairs. This proposed role of the Speaker differs from the role played by the speakers in the National Assembly and in the provincial legislatures, whose responsibilities revolve around providing leadership and maintaining order and decorum during proceedings in their legislatures. Hence, what this amendment seeks to do is give the Speaker extra “oversight” powers in addition to those the Speaker already exercises as part of the council.

The introduction of whips of municipal councils

The Bill introduces a new position of the office of the whip of the council as is the case at national level. The proposed section 41B to the Municipal Structures Act (see clause 18 of the Bill) states that the whip will ensure representation of the different political parties in council and council committees; maintain relations between the different political parties; assist the Speaker with vote counting in meetings; facilitate communication between the legislative and executive oversight structures in a municipality; and resolve disagreements between the Speaker, mayor or executive mayor or members of the mayoral committee. The whip will be elected in the same way as a Speaker. The formalisation of the office of the whip should be commended. Hopefully, it will result in the enforcement of discipline and good conduct amongst the members of council and strengthen cohesion between the executive and legislative branches of a municipality.

The composition of Executive Committees will now be strictly regulated

Clause 19 of the Bill proposes to change how Executive Committees are constituted (see section 43 of the Act). The regulation of the composition of Executive Committees is important as they play a crucial role in governance even though not all municipalities have such structures. At present councils are empowered to establish such committees in accordance with the Municipal Structures Act with substantial discretion on how to structure them. The council will now be required to determine the number of councillors that sit in an Executive Committee in accordance with a prescribed formula to be implemented in all municipalities. The proposed amendment will also empower political parties to nominate their party representatives to fill Executive Committee seats. However, it might prove difficult applying the formula in coalition municipalities as the number of seats the majority party receives on the EXCO may not reflect that party’s majority in the council.

MPACs may be compulsory soon

There has been confusion around the role and composition of Municipal Public Accounts Committees (MPACs). These committees assist the council in carrying out its oversight function over the executive, especially around finance related issues. These committees are, however, not present or functional in some municipalities. The proposed new section 79A makes it compulsory for every municipal council to establish an MPAC. It also sets out the mandatory functions to be performed by MPACs, whilst leaving room for the council to also determine further functions. An MPAC will be required to review the Auditor-General’s audit reports and internal audit reports and to make recommendations to the council on how to deal with matters raised in these reports. The MPAC must also initiate and develop the oversight report. The MPAC will be required to attend to and make recommendations to the council on any matter referred by the council, Executive Committee, a committee of the council, a member of a committee, a councillor and the municipal manager. Important to note is that the Executive Mayor has been excluded from the list of persons who may refer a matter to the MPAC. The MPAC will also be required to investigate and report on any matter affecting the municipality when prompted by the council to do so. The mayor or executive mayor, deputy mayor or executive deputy mayor, any member of the Executive Committee, any member of the mayoral committee, speaker, whip and municipal officials are not allowed to form part of the composition of the MPAC. The clear indication of which councillors may be members of the MPAC as well as their responsibilities removes the misconceptions that currently exist. Importantly, the proposed amendment stresses that the MPAC must submit all of its reports to the Speaker who must table the reports in the next meeting of the municipal council. This is important to ensure that reports from the MPAC get the priority that they deserve. More importantly, it ensures that MPAC reports to the council and not to the Executive Committee or Executive Mayor.

More sanctions for unscrupulous councillors on the way

Currently section 21 of the Municipal Structures Act sets out the qualifications for one to be a councillor. Clause 8 of the Bill introduces a new subsection (1A) which provides that a councillor who is removed by the MEC for local government as a result of misconduct is barred from standing for elections in any municipal council for a period of two years from the date of their removal. This provision should be read together with the Code of Conduct for Councillors (see clause 30 of the Bill), which regulates the conduct of all councillors. The proposed section 21(1A) is not limited to the municipal council from which the councillor was removed ‑ it applies to all other municipalities and municipal councils. This proposed amendment should be commendable as it will prevent councillors from hopping from one municipality to another in order to evade the consequences of their misconduct. It provides a “cooling off” period and removes the possibilities of the removal being rendered futile. It also bolsters consequence management and attempts to ensure that councillors are held “accountable” for their actions to a certain extent.

Absence of the Speaker will no longer stalk council business

Under section 29(1) of the Act, the Speaker takes responsibility for calling and chairing council meetings. There have been instances where the council comes to a standstill due to a Speaker’s failure to convene a meeting of the council, with disastrous consequences (for example the case of Premier of the Western Cape v Overberg District Municipality). However, through clause 13 of the Bill, the proposed section 29(1A) states that a Municipal Manager will be empowered to call a meeting of the council should a Speaker or acting Speaker refuse to do so. This will ensure that the business of the council continues in the face of a vexatious Speaker or in the case where a municipal council has no Speaker at all.

It will now be compulsory to establish ward committees

Ward committees can be effective in enhancing participatory democracy at the local level. Currently, section 73 of the Municipal Structures Act makes it optional to establish ward committees. However, clause 22 of the Bill, which seeks to amend section 73(1) makes it mandatory for each council to establish ward committees. These committees must be in place within 120 days after the Amendment Act comes into force. Much like the MPACs, ward committees were always legislated for but now their existence is obligatory. This amendment may promote greater public participation or rather representation of the public or communal views when it comes to service delivery and municipal affairs. It has potential to solidify the avenue available to foster public relations between the community and a municipal council. The challenge however remains that of ensuring that the ward committees are genuine and effective structures for public participation.

Comment

The expanded Municipal Structures Bill has developed into a rich Bill that addresses not only the initial “electoral” issues but also seeks to promote effective and efficient municipal governance. What will be important to observe is the actual implementation of the Amendment Act once it comes into force and the potential unintended consequences that could stem from clauses 11 and 17 of the current Bill.

With reference to clause 11, the questions to ask is whether granting the Municipal Manager the power to make the determination with regards to council vacancies will give rise to better decision-making and elimination of delayed processes. Or will it affect the relationship between elected politicians/councillors and the Municipal Manager and potentially deepen the conflicts and tensions, as a result? If the former happens, it is a win for good governance and, ultimately service delivery. However, if the latter happens, it will hamper the functioning of the municipality as a whole and consequently will be bad for service delivery.

With reference to clause 17 of the Bill regarding the role of the whip, the executive-legislative interface is important for ensuring that policy and legislative frameworks become achievable and implementable goals. And in order for this to happen there needs to be a good working relationship between the executive and legislature, coupled with good oversight mechanisms. This is achieved when parties know their functions and carry them out accordingly. This is where the whip’s role will be crucial should a Speaker overstep whilst carrying out the “additional” oversight function given in the proposed section 37(h) of the Municipal Structures Act.

The Bill presents more positive changes by solidifying the establishment and functions of MPACs, Executive Committees, ward committees, Speakers and Whips. The aforementioned amendments are geared at effective oversight, improving accountability, enhancing discipline in council, improving functionality in the legislative and executive branches of the municipality and removing delays in municipal processes. The roles of these different structures, which the proposed Amendment Act seeks to clarify and redefine, may improve the functionality of municipalities, if they are effectively undertaken. Whatever tension these amendments present, one hopes that they will give rise to better decision-making. For now, we will have to wait and see.

By Thabile Chonco