Issued by Daniela Ellerbeck on behalf of the FW de Klerk Foundation on 11/07/2025

Introduction

The FW de Klerk Foundation recently submitted its formal answers to questions raised by the Department of Cooperative Governance and Traditional Affairs in its Discussion Document on the Review of the White Paper on Local Government. The Discussion Document will culminate in a new White Paper on Local Government – which will set out policy reforms that will ensure municipalities are resilient, inclusive and capable of meeting the evolving needs of South Africa’s communities.

Key Issues

The Foundation’s submission is clear: South Africa does not need more laws, rather, what it needs is the political will to enforce the existing ones. The Foundation identified two major aspects that need urgent resolution: First, the need to apply the existing laws consistently and impartially. Second, the need to regulate coalitions in order to stabilise municipal council coalitions before the 2026 local government elections.

Apply the Law

When it comes to the first issue; the need to apply the existing laws consistently and impartially, the Foundation pointed to the Auditor-General’s recent findings that only 16% of municipalities received clean audits (page 4). On the other hand, 67 municipalities awarded contracts to suppliers either owned or managed by close family members/associates of employees/councillors (page 15). A further 12 municipalities awarded contracts to suppliers either owned or managed by employees/councillors (page 15).

The problem is not a lacuna in South African law. No, the law draws a hard line against conflicts of interest in local government:

• The Municipal Systems Act, 2000, strictly bars municipal employees and councillors from decision-making roles in contracts where they, or their close associates, have a personal or private business interest (item 4(1)(b) of Schedule 2 to the Act). Similarly, they are prohibited from being a party to, or beneficiary under, a contract for the provision of goods or services to any municipality or any municipal entity established by a municipality (item 4(3) of Schedule 2 to the Act).
• The Municipal Finance Management Act, 2003 (“MFMA”), prohibits councillors from participating in procurement decisions (section 117). Should a municipal accounting officer fail (either deliberately or through gross negligence) to implement the municipality’s supply chain policy, they face up to five years’ imprisonment (sections 173 and 174).
• The Municipal Supply Chain Management Regulations of 2005, bars anyone in the service of the state from being awarded procurement contracts (regulation 44).
• Finally, under the Prevention and Combating of Corrupt Activities Act, 2004, municipal employees and councillors commit a crime if they hold a private interest in any contract, agreement or investment linked to their municipality. The penalty for such misconduct is severe: up to a decade’s imprisonment (section 26(1)(b)).

The solution is that the existing law must be applied effectively.

The Foundation argues that this will require both the strengthening audit and financial controls in municipalities’ administrations and consequence management for those councillors and employees involved in the identified 12 and 67 municipalities.

To strengthen audit and financial control, municipalities must urgently address the lack of financial management skills identified by the Auditor-General (page 9). This is essential to ensure sound basic financial management, protect the administration from unlawful/unethical political interference and prevent staff members from interfering with the procurement process illegally / unethically.

In order to restore public trust, there must be consequence management. This will also involve suing  the relevant persons in their personal capacity for unauthorised, irregular and fruitless and wasteful expenditure (section 32 of the MFMA as applied by the Supreme Court of Appeal in Mbambisa and Others v Nelson Mandela Bay Metropolitan Municipality). It will also require criminally charging and prosecuting them under the applicable laws. After all, all should be equal before the law.

Stabilise Coalitions

In the last local government elections, more than 30% of the country’s municipalities were left “hung,” with no party securing a majority. The result has been fragile political coalitions in municipal councils leading to instability and poor governance – the so-called “revolving-door” of mayors and a crisis-level lack of service delivery.

When coalitions collapse, it is the people who pay the price. Only once coalition stability is achieved, will it allow the council to meet its most important objective, namely, to meet its community’s basic needs (Joseph and Others v City of Johannesburg and Others).

To address this, the Foundation proposes two key reforms: first, that motions to remove office bearers should require a two-thirds majority to pass to prevent opportunistic power plays. Second, coalition agreements must be made public and binding. Should a political party fail to fulfil its obligations in terms of the coalition agreement, it should be held liable for any obligations and damages resulting from this.

Professionalise and Depoliticise Public Administration

The submission also addresses the need to professionalise and depoliticise municipalities’ administration. The Foundation asks for standardised, merit-based appointments for senior officials and career pathways to retain talent.

In the interest of electing competent and ethical individuals to public office, the Foundation asks that candidates be required to publicly disclose the professional skills and experience that qualify them for the public office they seek, for example, successfully running their own business. Such transparency would empower voters to make more informed choices and elect higher-quality candidates.

Conclusion

The Foundation is clear: the Constitution is not the problem. The problem is the failure to implement it. Section 195 of the Constitution sets out the basic values and principles governing public administration: accountability, transparency, responsiveness to people’s needs and professional ethics. These are not aspirational ideals. They are binding obligations and must be enforced.

Any organisation’s culture is shaped by the worst behaviour it tolerates. The current crisis in local government may be framed as a failure to internalise and enforce the Constitution’s basic values and principles governing public administration. Thus, reforming municipalities’ culture towards one that prizes these values and the rule of law will require the consistent and impartial enforcement of existing legislation. Only when municipal employees and councillors who have profited from unlawful conduct face meaningful legal consequences will such a transformation become possible.

The deadline for public comment on the Discussion Document has been extended to 31 July 2025. The FW de Klerk Foundation encourages all South Africans to participate in this process, because the well-being of local government affects us all.