Councillors who lose their party membership lose their seat
The best place to start is with this rule, which is central to the municipal electoral system: if a councillor who represents a political party stops being a member of that party, he or she loses his or her council membership. Whether it was a proportional representation (PR) seat, or a ward seat, is irrelevant: it will become vacant. If it is a PR vacancy, the party will determine who should fill the vacancy, and inform the IEC. If it is ward vacancy, a by-election must be held.

Councillors who ‘step aside’ keep their seats
A councillor who ‘steps aside’ in terms of the ANC resolution, keeps his or her seat, because the councillor does not lose his party membership. He or she continues to be a member of the party and therefore continues to be a member of the municipal council. Importantly, he or she continues to be paid as a councillor.

This also applies if the councillor serves on both the local council as well as the district council: both memberships are unaffected by the ‘stepping aside’ rule. This changes if the councillor is removed from the district council (by the local council or by his or party). But even then, the membership of the local council remains unaffected.

Insofar as the law on council membership goes, ‘stepping aside’ from party activities is the same as being suspended by the party. A party may suspend one of its members, pending a disciplinary procedure within the party. The law is clear on the effect of the suspension on council membership (and this has been confirmed in court rulings): the suspension from a party does not affect council membership.

Office-bearers affected by the ANC rule are expected to become ordinary councillors
Some councillors are also political office-bearers in the council, i.e. they are mayors, chief whips, chairs of committees etc. Depending on the type of office they hold, and the municipality in which they serve, they may receive a full-time salary. The ANC’s ‘stepping aside’ rule expects the councillors affected by it, to resign from any special positions they hold. In other words, the party expects them to step down from their full-time positions and become ‘ordinary’, part-time councillors, earning the same part-time salary as other councillors. From a legal and governance point of view, there is no difficulty.

However, there are problems with how the ‘stepping aside’ rule applies to ‘ordinary’ councillors, i.e. councillors who are not office-bearers in the council.

Why the stepping aside rule is problematic?
The most important duty of a councillor is to attend council and committee meetings. Failure to attend without leave of absence is an offence in terms of the Code of Conduct for Councillors. Missing three consecutive council or committee meetings is enough for a councillor to be removed from office (ultimately by the MEC for local government). The key is this: a councillor who ‘steps aside’ from party duties is not exempt from the duty to attend council and committee meetings.

Councillors failing to attend council and/or committee meetings may directly affect municipal service delivery. This is where municipalities are different from national and provincial government. When a member of a national or provincial legislature is absent, it is unlikely to affect the daily running of government. These legislatures adopt laws and conduct oversight. They don’t administer government departments. In local government, the (prolonged) absence of one councillor can directly affect service delivery. This is because municipal councils do more than passing by-laws and conducting oversight. They also take executive and administrative decisions, that are often critical for municipal service delivery. Two issues come to mind:

1. The affected councillor(s) could be the one(s) that ensure a majority in the council for their party or a coalition. Their absence may affect the balance of power and prompt instability that may affect service delivery.
2. A less likely, but not impossible, scenario is one where the affected councillor(s) are the ones that make the difference between a council or committee meeting having a quorum or not.

The above shows that it is not as simple as merely ‘stepping aside’; the consequences for governance and stability could be severe. It appears that the ANC has recognised this problem because members that ‘step aside’ are expected to attend council and committee meetings. However, it is reported that they may not speak. In other words, they must be present and vote, but may not make inputs in council or committee meetings.

Having your cake and eat it?
It may very well be that the ‘stepping aside’ resolution is an important party political instrument to combat corruption within a party. However, it is at odds with the law on how municipal councils function. Council and committee meetings rely on the full participation of all councillors. Furthermore, councillors are expected to be active and visible in their communities. The Code of Conduct for Councillors provides that –

“[c]ouncillors are elected to represent local communities on municipal councils, to ensure that municipalities have structured mechanisms of accountability to local communities, and to meet the priority needs of communities … In fulfilling this role councillors must be accountable to local communities and report back at least quarterly to constituencies on council matters…” (emph. added)

Councillors affected by this rule may not speak at community meetings, and are thus not able meet their duty to provide quarterly feedback to communities as the law requires. This is problematic. Councillors are elected to actively represent their communities in community and municipal meetings. They are elected as champions of their communities, not as muted observers. It is part of their duties as councillors, it is what communities deserve, and it is what they are remunerated for.

It could be argued that ‘stepping aside’ for a few weeks should not be a big problem. The Speaker and/or Council Whip can afford them leave of absence and/or permit them to go on a ‘go slow’ for a while. However, criminal legal proceedings easily take years. Clearly, keeping a councillor on mute for months or even years, is not how local democracy is supposed to function.

It is also an abuse of public funds. What must we make of a municipality that wilfully continues to remunerate a councillor, knowing that he or she only performs a tiny portion of his or her tasks? And what if this scheme is officially permitted or unofficially condoned by the Speaker and/or the Chief Whip? Does the continuation of salary payments to an absentee councillor not amount to fruitless and wasteful expenditure? If it is, the municipal manager is compelled by law to recover the losses from the councillor, and/or from the office-bearers that sanctioned it.

Despite its noble intentions, the ‘stepping aside’ rule is problematic in local government. It is fraught with legal difficulties. Not only does it place Chief Whips, Presiding Officers and Municipal Managers in a difficult position, it could also undermine local democracy.

What is the solution? If the rule cannot be lawfully applied to ‘non-executive’ councillors, it cannot exist. As was argued earlier, there are no legal difficulties with the application of the rule to office-bearers: they can step down from their special positions and become ‘ordinary’ councillors. However, it is suggested that it cannot be applied to ‘non-executive’ councillors: the law compels them to attend, vote and speak at council and committee meetings, and to perform their duties as fully fledged councillors in their communities.

by Jaap de Visser