Rules for the sometimes unruly

The Minister for Cooperative Governance and Traditional Affairs published a Code of Conduct for Councillors on 14 June 2023 (the new code of conduct). This Code of Conduct was made under section 92 of the Municipal Structures Act 117 of 1998. The new Code of Conduct acts as a supplement to the one in Schedule 7 of the Municipal Structures Act.

The existing Code of Conduct already addresses the following:

  1. How councillors should conduct themselves generally.
  2. Votes for resolutions in conflict with applicable local government legislation.
  3. Councillors’ conduct involving the attendance of municipal council meetings.
  4. Sanctions for the non-attendance of meetings.
  5. Councillors must disclose their interests before the municipal council or committee. This includes disclosing the interests of their family’s interests that may benefit directly from a contract concluded with the municipality.
  6. Prohibition against using their position or any information and privileges obtained during a councillor’s duties for personal gain. A councillor may also not be a party or beneficiary of a contract for the provision of goods and services to the municipality.
  7. When elected, a councillor must declare in writing his or her financial interests to the municipal manager. The municipal council must decide which of the financial interests should be made public.
  8. Full-time councillors may not take up any other paid work without the consent of the municipal council.
  9. Councillors are prohibited from asking for, soliciting, or accepting a reward (gift or favour) for exercising their influence by voting, disclosing information, or persuading the municipal council to act in a certain way.
  10. A councillor may not disclose information without the consent of the council that is deemed confidential.
  11. A councillor may not unduly interfere with the administration and management of any department of the council.
  12. Councillors may not benefit from any assets owned, controlled, or managed by the municipality to which they have no right.
  13. Councillors may not be in arrears to the municipality for rates and service charges for more than three months.
  14. Municipal council chairpersons have a duty to investigate and report suspected breaches of the Code of Conduct to the MEC for local government. The report of such investigation must be made public.
  15. Breaches of the Code of Conduct.
  16. The Code of Conduct, where relevant, is also applicable to traditional leaders.

The new Code of Conduct addresses eight key points:

  1. How councillors are expected to conduct themselves generally.
  2. Councillors conduct involving the attendance of municipal council meetings.
  3. Votes for resolutions in conflict with applicable local government legislation.
  4. Prescribed value of gifts received by councillors and their disclosure.
  5. Councillors in arrears to the municipality for rates and service charges.
  6. Duties of the Speaker.
  7. Breaches of the Code of Conduct.
  8. Reports on the compliance of the Code of Conduct.

Like the existing Code, the new Code of Conduct requires that all councillors act in the best interests of the municipality and perform their duties in good faith, honestly and transparently. A welcome addition to the new Code is that it explicitly states that councillors should conduct themselves in a good and orderly manner during meetings. If councillors behave improperly, the chairperson must order them to leave the meeting or have them removed by an enforcement officer. Councillors shall be disciplined if they are seen or known to be involved in the organisation of violent protests or labour unrest against the Municipality. If such protests or disturbances have taken place, criminal charges must be brought against the councillor and the municipality must recover from the councillor any loss or damage suffered by the municipality.

The new Code provides more detail on attendance at Council meetings and how often these meetings should be held. Meetings should be scheduled at least once a quarter. Special arrangements must be made for councillors with disabilities to ensure that they can participate effectively in such meetings. In the event that a quorum is not present, the Code provides that the Chairperson may suspend the meeting twice for 20 minutes (or the period provided for in the Standing Orders) before adjourning the meeting to another date. In the case of walkouts, meetings should continue if a quorum is still present. The Code also states that Councillors who engage in walkouts are in breach of the Code.

Both the existing and new codes prohibit a councillor from voting in favour of a resolution that conflicts with applicable local government legislation. In addition, offences committed in terms of section 173(4) and (5) of the Municipal Finance Management Act of 2003 (undue influence in financial administration matters) are also considered breaches of this Code.

The prescribed value of gifts is replaced by the new Code to R 1000.00, or such higher amount as the national Minister responsible for cooperative governance may determine. All gifts exceeding this amount, or gifts cumulatively exceeding this amount in a year from a single donor, must be entered in a register.

The new Code provides more details that relate to councillors being in arrears to the municipality for rates and service charges. It also changes the default period from three to two months. These rates and service charges must be settled without delay in accordance with the credit control policy of the municipality. When the arrears are for three or more months, a councillor will be deemed in breach of this Code and the Speaker must ensure that the arrears are recovered from the councillor.

The Speaker now has a duty to ensure that each councillor, traditional and Khoi San leader receives a copy of the Code and that they familiarise themselves with its content. The Speaker should also report to the MEC for local government on the compliance of this Code in January and July each year. The MEC should then within 30 days submit a consolidated report to the Minister.

Lastly, the Chairperson must report suspected breaches of the new Code within seven days of the alleged breach. Breaches of the new Code must be investigated according to the processes contained in the existing Code.

Hopefully, these new provisions on walkouts, disruptive behaviour and participation in violent protests will discourage councillors from disrupting council meetings and will contribute to an overall smoother functioning of councils, specifically those of coalitions. It is commendable that speakers must report on the compliance (or lack thereof) to the MEC and subsequently the MEC to the Minister. However, it is unfortunate that the Code does not provide particulars on what follow-up actions should be taken upon receipt and review of these reports.

By Johandri Wright, Postdoctoral Research Fellow

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