Issued by Daniela Ellerbeck on behalf of the FW de Klerk Foundation on 27/08/2024

Introduction:

The Department of Cooperative Governance and Traditional Affairs (“COGTA”) has opened two (2) bills affecting municipalities for public comment – the Local Government: Municipal Structures Amendment Bill 2024 (the “Coalition Bill”) and the Local Government: General Laws Amendment Bill, 2024 (the “General Municipal Bill”). Both Bills were opened in May for public comment, until 31 August 2024. The Foundation has made written legal submissions on both bills. This article will deal with the General Municipal Bill. (Read more on the Coalition Bill here.)

What does the General Municipal Bill aim to do?

COGTA is the government department responsible for local government, i.e. municipalities. Various laws govern municipalities and the Bill proposes to amend three (3) of these acts:

1. The Local Government: Municipal Systems Act, 2000;
2. The Local Government: Municipal Structures Act, 1998; and
3. The Local Government: Municipal Property Rates Act, 2004.

The General Municipal Bill inter alia aims to:

1. Extend the time limits for a province’s MEC for local government to take appropriate steps when a municipal manager (or a manager that is directly accountable to them) is appointed in contravention of the law;
2. Change the Code of Conduct for Municipal Staff Members to require municipal staff to refrain from committing financial misconduct and to ensure that unauthorised, irregular or fruitless and wasteful expenditure and other losses are prevented; and
3. Transfer some of a district municipality’s functions and powers, e.g. bulk supply of electricity, to a local municipality.

The Foundation’s views:

The FW de Klerk Foundation’s submission points out procedural concerns: Both the General Municipal Bill and the Coalition Bill were opened for public comment one week apart with the same extended deadline of 31 August 2024. Added to this, both bills aim to modify Local Government: Municipal Structures Act, 1998 and both are open for comment to the same entity, namely COGTA. In the submission to COGTA, the Foundation recognises that the aforementioned overlap is likely to confuse the public, who may mistakenly believe that only one bill exists, affecting the public’s participation.

Regarding the time to rectify irregular appointments: The Bill proposes extending the time that the MEC would have to force the municipality to comply with the law in its appointment of municipal managers (or managers directly accountable to them), from 14 days to 30 days. It would also, thereafter, grant the municipality 30 days to reconsider the appointment. This extends the timeline for compliance with the law from two weeks to two months since the MEC first became aware of the irregular appointments. The Bill’s memorandum fails to provide a reason for this. It simply states that it seeks to extend the time in which the MEC for local government must take appropriate action. The Foundation asked that the Bill’s proposal be scrapped, pointing out that municipalities have a legal duty to provide accountable government; use their resources in their local community’s best interests and to ensure that municipal services are provided to the local community in a financially sustainable manner (section 4(2) of the Municipal Systems Act). Additionally, section 195 of the Constitution also requires that municipalities have a high standard of professional ethics; are accountable and use their resources economically and effectively. The Foundation believes that extending the timeline to rectify irregular appointments directly contravenes the aforementioned duties and is unreasonable without any attempt to justify such extension.

The Foundation supports the Bill’s proposal to amend the Code of Conduct for Municipal Staff Members. It was submitted to COGTA that these amendments can be strengthened by incorporating the definitions of: “financial misconduct”, “unauthorised expenditure”, “irregular expenditure” and “fruitless and wasteful expenditure”. (These definitions are already found in the Local Government: Municipal Finance Management Act, 2003.)

Regarding the Bill’s proposal to transfer some of a district municipality’s functions and powers to a local municipality, the Foundation pointed out that not all the functions and powers it proposes removing from district municipalities are allocated to a local municipality, creating a lacuna. Such powers and functions should either remain with district municipalities, or be transferred to local municipalities.

Next steps:

COGTA has currently asked for public comment on the Bill until the end of August 2024. South Africans are encouraged to exercise their democratic right to be part of the law-making process and tell COGTA how they think the Bill should be changed.