Amending Municipal Governance Laws: New Rules, New Directions? A focus on the Municipal Structures Amendment Bill

After the 2019 national and provincial government elections, Parliament revived deliberations on the Municipal Structures Amendment Bill. The Bill seeks to strengthen oversight and governance in local government. Many of the proposed amendments touch on issues that have been prevalent in local government for the longest of time. This report provides a summary of the proceedings of a webinar on the Municipal Structures Amendment Bill (as well as the Municipal Systems Amendment Bill that is covered in a different report).

The webinar, titled “Amending municipal governance laws: new rules, new directions?”, was held by the Dullah Omar Institute (DOI), in partnership with the Hanns Seidel Foundation and the South African Local Government Association. Members of Parliament (MP), local government practitioners, researchers and civil society actors attended the webinar, which took place on 30 October 2020.

The chair, panel and key questions for discussion

The webinar was chaired by Prof Nico Steytler, who is the SARChI Chair in Multilevel Government, Law and Policy at the DOI. The panel consisted of Ms Faith Muthambi MP, the Chairperson of the National Assembly’s Portfolio Committee on Cooperative Governance and Traditional Affairs; Councillor (Cllr) Thembisile Nkadimeng, who is the President of SALGA and also serves as the Executive Mayor of City of Polokwane; Dr Louis Scheepers, who is the Acting Municipal Manager of Knysna Municipality and Prof Jaap de Visser, who is the Director of the DOI. The panel discussion engaged with the following questions:

  1. What challenges will the Municipal Structures Amendment Bill bring?
  2. What are the Bill’s most important features and which parts require further debate?
  3. Is the Municipal Structures Amendment Bill likely to improve governance in municipalities?

Overview

Prof de Visser gave a short introduction to the Bill. He highlighted that the Bill regularises existing practices (such as Municipal Public Accounts Committees (MPACs)), and includes refinements and amendments to the electoral system. Many of the Bill’s themes touch on the division of roles between the executive and legislative arms of the municipality. This is a challenge in local government because the Constitution does not prescribe a separation of powers as is the case at provincial and national levels.

Prof de Visser mentioned some of the key changes in the Bill and raised some questions for consideration.

On MPACs: given the fact that municipal finances are not in good shape in many municipalities despite the existence of MPACs, this leads one to ask ‘have they made a difference’? What will it take for MPACs to make a difference? And importantly, will municipalities support MPACs?

Concerning the move of the Code of Conduct for Councillors back to the Structures Act, Prof de Visser asked how do we stop the weaponisation of the Code of Conduct? Furthermore, how do we lessen the inconsistent use of the Code of Conduct?

Regarding the tightening of rules on the declaration of vacancies, which essentially falls on the municipal manager, Prof de Visser asserted that it is very difficult to assess whether there is a vacancy as it often depends on internal party disputes and interpretations of party rules on whether or not a councillor is still a councillor. In light of this assertion, he argued that the Bill misses an opportunity to deal with the question “why do we force municipal managers to adjudicate intra-party disputes?” He questioned why the Independent Electoral Commission (IEC) could not be tasked with the declaration of vacancies.

Formalisation of MPACs

Cllr Nkadimeng noted that the issues addressed in the Bill have been on the table for some time and that the delays in solving them have deepened the crisis in local government. She reflected on what was established in the study on local government in 2009, which “correlates with what is still on the table today – for example, undue interference from the councillors and excessive use of political interference in municipal governance”.

Cllr Nkadimeng commented on the role of MPACs and in particular the oversight reports that they must produce. She argued, “the problem is the sanitisation of these reports and how they are structured and how the system is structured now – if you want true oversight it means you have to be able to have a system, which allows some form of neutrality even if it is attached to the same council.” To strengthen her argument, Cllr Nkadimeng drew comparisons between national and municipal legislative arms as follows: “in the [National Assembly], usually [the Standing Committee on Public Accounts (SCOPA), which is similar to an MPAC in terms of duties and functions, is mostly headed by a member of the opposition party but in councils we usually do not have that distinction. You are forwarded by your party…in most instances, the Mayor will be politically senior in that council, in that region and it is difficult to get the support you are supposed to have for oversight.” This example shows just how political interference hampers effective municipal governance.

Ms Muthambi indicated that the Portfolio Committee on Cooperative Governance and Traditional Affairs (COGTA) has always emphasised the functionality of MPACs. If MPACs perform their oversight role effectively, it will lessen the oversight burden of the Portfolio Committee on COGTA, the Select Committee on COGTA (COGTA committees) and their counterparts in provincial legislatures. Referring again to her experiences with the Portfolio Committee, she opined “as the parliamentary COGTA committees travel across the country, they often find that MPACs are in existence but are not performing the work they are supposed to do. In many cases this arises from insufficient appreciation of the significance of the MPAC as an oversight structure in a municipality”. Another worrying trend was the attitude towards the MPAC, which Ms Muthambi suggested manifests in various ways such as “the non-implementation of recommendations by councils, poor resourcing in terms of personnel or in some instances a complete failure to establish an MPAC due to political dysfunction”. In light of the aforementioned, she noted, “by insisting on an MPAC as a statutory requirement and codifying its functions, then the Bill will go a long way towards strengthening governance”.

Prof de Visser warned that “at local government level, the reality is that these issues are approached with the thought ‘who gets the full time position?’ and unfortunately this plays a major role in the background”. He indicated that, in light of that, “having an MPAC chaired by the opposition would be a welcome change but the reality at local government is that a lot is centred around the full-time versus part-time position of councillors. We need to move towards seeing MPACs as a necessary element of good governance and that it is much better to pick up anomalies and issues internally through an MPAC as opposed to letting it fester and allowing it to be picked up by the courts, Public Protector or journalists”.

Abolition of plenary-type municipalities

Ms Muthambi revealed that in a recent oversight visit to Mpofana Municipality in KwaZulu-Natal “the Portfolio Committee encountered anomalies where the function of the Mayor and Speaker vests in one person. The municipality is then unable to delegate its executive responsibility because it does not have the minimum number of councillors required to enable it to establish an executive committee.” In light of such experiences, Ms Muthambi is hopeful that the abolishment of the plenary executive system, coupled with the requirement of a minimum number of councillors in a municipality will assist to address these anomalies.

Cooling-off period in the Code of Conduct for Councillors

With regards to the introduction of a cooling-off period for a councillor who was dismissed under the Code of Conduct for Councillors, Ms Muthambi reflected on what she encountered in Maluti-A-Phofong Municipality in the Free State:

“as the Portfolio Committee we have encountered many cases of municipal dysfunction that warrant intervention in terms of section 139(1)(c) of the Constitution. What we have encountered and experienced as a major problem with this type of intervention is that after 90 days [, following elections,] the same councillors responsible for the dissolution of the council return to office and continue to destabilise council as before.”

She was, therefore, optimistic about the two-year cooling-off period expressing, “it should assist tremendously, provided that MECs act decisively and speedily in terms of investigating and removing councillors in breach of the Code of Conduct”.

The Bill’s impact on municipal governance

Dr Scheepers noted that the Bill presents some long-term sustainable solutions, but also contained “knee-jerk” reactions to problems.  He argued that “one of the challenges of local government is that we have a very complex legislative environment and going forward we need to work on how we simplify the legislation that local government has to deal with and that regulates what local government does.” He expressed delight that the Bill was addressing the unclear separation between the legislative and executive authority in municipalities.

In discussing local government capacity, Dr Scheepers defined capacity in two ways: first, it is the ability to do something and secondly, it is the will to do something: “you can have all the ability to do something but if you don’t have the will to do it, then you don’t have capacity”. Dr Scheepers expressed concern that whenever municipal capacity is spoken about, it does not include national and provincial government’s capacity to fulfil their monitoring and oversight functions: “It is important to also discuss the provincial and national government’s capacity to perform their functions in respect of local government”.

Reflections

Reflecting on the question “what difference will the amendments make?” Ms Muthambi stated, “the Portfolio Committee believes that, as with any law, its success lies with how it is interpreted or translated to execution. Many of the failures at municipalities are not as a result of inadequate progressive and developmental laws being in place, but they are as a result of poor capacity or lack of political will to implement.”

Whilst the amendments to the Municipal Structures Act are welcome, they are unlikely to solve all the problems being experienced in local government. Much depends on underlying social conditions, and the political and administrative will in municipalities, as well as the provincial and national spheres of government. Implementation is key. If properly implemented, the proposed legislative changes to the Municipal Structures Amendment Bill will make a difference.

 

by Thabile Chonco

 

The publication of the Bulletin is made possible with the support provided by the Hanns Seidel Foundation and the Bavarian State Chancellery.