The Draft White Paper on Local Government aims to cultivate a culture of ethical governance in municipalities. Cultivating a culture of ethical governance is no easy task. The status of municipalities across the country confirms that having a robust legislative framework is not enough to cultivate an ethical culture. Therefore, the Draft White Paper on Local Government correctly acknowledges that ‘ethical leadership is not secured by rules alone’. For this reason, the proposal of enforcing an ‘ethical leadership governance code’ may have limited impact in practice.

Municipalities do not require more laws or codes. Cultural change in this regard depends on better enforcement of existing legislation and codes of conduct, as argued by the Dullah Omar Institute before. This begs the question: To what extent are the Codes of Conduct for Councillors and Staff Members adequately enforced in municipalities? The fact that this is a question that cannot be answered with relative ease presents the first difficulty. These codes are not guidelines, it is cemented in national legislation. Any conduct that does not adhere to the standard outlined in the codes are unlawful and appropriate sanctions ought to follow. A stronger focus should therefore be on how consequence management is undertaken in regard to breaches of the codes of conduct, and how this process can be made transparent. 

As with corruption or maladministration, countering unethical conduct is likely to be effective when there is more transparency. For this reason, it is submitted that the Draft Paper on Local Government should direct its attention to how consequence management processes surrounding the enforcement of these Codes can be illuminated. This will enable the public and other spheres of government to ascertain whether municipalities are doing enough to respond to unethical governance practices.

Moreover, the Draft White Paper on Local Government should make it mandatory for municipal councils to implement consequence management where councillors breach the Code of Conduct. For example, Item 3 of the Code makes it compulsory for councillors to attend council and committee meetings unless they have obtained leave of absence or are required to withdraw from the meeting. Item 4(1) of the Code, however, provides municipal councils with a discretion to enforce consequence management, directing that it ‘may’ impose a fine for not attending a meeting without the requisite authorisation, or for failing to remain in attendance at such meetings. 

In coalition-led municipalities where no single party holds an outright majority, failure to attend council meetings can be disruptive, given that it generally results in a municipal council deprived of a quorum to lawfully continue business as usual. Walkouts from council meetings in this regard have become common practices to evade accountability by obstructing the tabling of no confidence motions or to delay a municipal council from taking important decisions. Countering such obstructionist behaviour and promoting professionalism within political structures can thus be achieved by making it compulsory for municipal councils to enforce Item 4(1) of the Code when necessary. This will further enhance oversight within municipal councils as it has the effect of obliging municipal councils to act against misconduct.

Consideration must also be given to the role players that are responsible for enforcing the codes of conduct, being the speaker, the municipal manager and, in the case of the code of conduct for councillors, the MEC for local government. In the absence of transparency, it is difficult to determine whether the codes are being implemented fairly and consistently. This is essential for the purpose of cultivating a culture of ethical governance. Selective enforcement of the codes by either the speaker or the municipal manager constitutes a major risk as any perception of favouritism can derail the process of inculcating a culture of ethical governance. Countering this risk through appropriate reforms may thus be a step in the right direction. It is submitted that the responsibility for enforcing an ethical culture should go beyond the speaker and the municipal manager. To this end, the proposal of having ‘properly constituted ethics or disciplinary committees’ is welcome.

Establishing ethics or disciplinary committees would not be an innovation, given that municipalities do have these structures in place. However, municipalities’ Terms of Reference could be used to afford them the independence and authority they require to be effective in cultivating a culture of ethical governance in municipalities. Even where it is alleged that it is the speaker or the municipal manager that are unethical, such committees should be adequately empowered to investigate the alleged breach. Moreover, to enhance accountability, transparency and to depoliticise these committees, the Draft White Paper on Local Government can consider how to encourage municipalities to invoke section 79(2)(d) of the Structures Act. This section allows the council to appoint advisory members who are not members of the council to serve on Section 79 committees. By ensuring that the membership of ethics and disciplinary committees comprise a balance of political and non-political actors, councillors are incentivised to ensure that their processes are free from political manoeuvring. This can have desirable outcomes for ethical governance in municipalities.

Finally, the Draft White Paper on Local Government proposes that where a speaker fails to ‘institute, progress or conclude a Code process’ within the prescribed time, then the matter must automatically escalate to the MEC responsible for local government in a province. This proposal will have consequences for the autonomy of municipalities, given that it has the effect of bypassing the municipal council. The onus to investigate alleged breaches of the Code resides with the council. Therefore, if a speaker fails to execute this duty diligently on behalf of the municipal council, such conduct in and of itself constitutes a breach of his or her delegation, for which accountability must be enforced. 

If, however, the council itself fails to ‘institute, progress or conclude a Code process’, then section 16(5) of the Code of Conduct for Councillors finds application. This item authorises the MEC to appoint a person or committee to investigate any breach of the Code and to make a recommendation as to the appropriate sanction in accordance with Item 16(2) of the Code if a municipal council does not conduct the requisite investigation. To this end, the Draft White Paper on Local Government seeks to do away with the discretion currently exercised by the MEC under Item 16(5) of the Code by making this intervention compulsory. In effect, the Draft White Paper on Local Government aims to make intervention in this regard mandatory, a proposal that is welcome. Investigations conducted at the provincial level should similarly be transparent to guard against selective enforcement of, and encourage consistency in, the application of the code and concomitant sanctions.  

By Jennica Beukes