In South African Municipal Workers’ Union v Minister of Co-Operative Governance and Traditional Affairs, the Constitutional Court ruled that Parliament followed the wrong procedure in processing the Bill. The Court directed Parliament to fix this irregularity by 2019, but Parliament only managed to do so in May 2022. At the point of writing, the Bill was awaiting presidential assent to become law.

While the new Bill is not different from the one which was passed in 2011, it does come with some significant changes. For instance, it adjusts the criteria and procedures for the appointment of senior managers in local government. The Bill requires provincial oversight over the appointment of these managers.

The Bill makes it clear that managers directly accountable to the municipal manager (MM), the so-called ‘section 56 managers’ may be appointed on a permanent basis. While this was never prohibited, it has now been made clear. The objective is to provide security of tenure for section 56 managers, against the background that, too often, they are beholden to the politics of the day. Politics often determines how they are appointed, disciplined and removed from office. Will this attempt aimed at insulating section 56 managers from politics result in stable municipal administration service delivery?

Another significant feature of the Bill is that it prohibits all municipal employees from holding positions in political parties whether in a permanent, temporary or acting capacity. Such political positions include the position of chairperson, deputy chairperson, secretary, deputy secretary or treasurer whether at national, provincial or local level. Once the Bill becomes law, municipal employees who hold these political party positions have a year to either relinquish them or resign as municipal employees. In the 2011 version of these amendments, only municipal managers and senior managers directly accountable to the MM - section 56 managers - were prohibited from holding positions in a political party. This has now been extended to all municipal staff members. Three key issues arise from this widened prohibition.

First, the 257 municipalities are some of the biggest employers in the country. The total staff complement of municipalities is over 250 000 employees. The prohibition targets all these employees. Within a year of the law becoming effective, it must somehow be verified whether municipal employees are not office-bearers in any political party. This may appear simple, but will be demanding given the large number of municipal employees.

Municipalities appoint staff all the time. For ‘ordinary’ staff, i.e. other than the top two echelons, they follow the rules set out in the collective agreements, concluded in the South African Local Government Bargaining Council as well as their own municipal policies. Who is going to check that every person appointed by a municipality does not hold office in a political party? Is it just the municipality that must enforce this prohibition, or will provinces and/or national government somehow oversee this? If it is the province, does this mean that a municipality will have to furnish the province with information about every staff appointment to enable the latter to check if the person does not hold office in a political party? Are we then not creating additional reporting obligations for municipalities considering that they are already over-burdened by reporting requirements? 

While the objective of creating an ‘a-political’ local government civil service is the correct one, there could be significant enforcement challenges on the horizon. Hopefully, it will not be another case of legislative enactment without effective enforcement, something which is very common in local government.

The second key issue is that only municipal employees will be prohibited from holding political party positions. Their counterparts in national and provincial governments will still be able to be members of the public service and hold a political party position at the same time. For instance, a Director- General of a national government department or a Head of a Department in a province can be a treasurer of a political party, a regional chairperson or a branch chairperson. The key question is why are employees of municipalities being treated differently? Do municipalities experience a different set of challenges than provincial and national departments? And what happens when a national or provincial official is seconded to a municipality? Do the municipal rules then apply to him or her? It is possible that local government is the first entry point of this prohibition aimed at creating an ‘a-political’ civil service across all spheres of government. We would argue that there is no reason why this rule should not apply to the provincial and national levels too.

Lastly, the potential effect of this legislation should not be overestimated. Much of its content had become standard practice since 2011 (despite the 2011 amendment being struck down). But this did not stop political interference in local government administration, which seemed to have become more widespread since then. These ‘not so new’ rules are there to prevent politicians from taking up administrative roles in municipalities, on the one hand, and prevent administrators from bringing politics into municipal administration, on the other. The rules will help, for sure. The question is whether the rules tinker in the margins, while the situation on the ground requires more radical change. For example, there have been calls for the Public Service Commission to play a more prominent role in recruitment decisions of municipalities. Another option that has been mooted, is to make membership of a professional association compulsory for senior managers in local government. If the politicisation of local government administration continues unabated after this Systems Amendment Act, it will be necessary to seriously consider these, and other more radical interventions.

But no matter what changes will be made to the law, the only real and meaningful change will have to come from political parties, political incumbents and senior administrators in local government. The political arm of a municipality must determine the policy, strategy and by-laws of the municipality and oversee the administration. The administrative arm, led by the MM, must implement these policies, strategies and by-laws and account to the council and its committees. Both politicians and administrators must act with the necessary restraint, informed by their respective roles.

By Tinashe C Chigwata & Jaap de Visser