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David Harrison/M&G
The Department of Cooperative Governance and Traditional Affairs (COGTA) has opened the Local Government: General Laws Amendment Bill, 2024 (the General Municipal Bill), for public comment until 31 August 2024.
While the Bill, which affects municipalities, proposes making certain good changes to the law, the main rub is its proposed extension of the timeframe within which irregular appointments must be rectified.
This is no doubt something that interests the public, who want their municipalities to deliver services efficiently and have no interest in paying inflated salaries that fall outside of the legal salary scales.
The Bill would extend the timeline for legal compliance, in the case of an irregular appointment of a municipal manager (or a manager that is directly accountable to them), essentially from two weeks to two months.
What does the General Municipal Bill propose?
The Bill aims to amend three of the laws that govern local government. (i.e. municipalities). The changes it would make include, amongst other things:
- Extending 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;
- Changing 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
- Transferring some of a district municipality’s functions and powers, e.g. bulk supply of electricity, to a local municipality.
Extending time frames to rectify irregular appointments
It is important to keep in mind at all times that service delivery is the core function of local government. Municipalities are tasked with striving to meet the basic needs of their community, promoting economic development and ensuring a safe and healthy environment and so on.
Thus, the Bill’s proposal to extend the time frame for irregular appointments to be rectified must be considered in light of this: would it help service delivery, or would it hamper it?
The Bill wants to increase the time that the MEC for local government 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 FW de Klerk Foundation is of the view that this proposal would not help service delivery at all. In the Foundation’s written legal submission to COGTA on the Bill, it submitted that this proposal must be scrapped for the following reasons: 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.
Additionally, the Constitution requires that municipalities have a high standard of professional ethics; are accountable and use their resources economically and effectively. The Foundation’s position is that extending the timeline to rectify irregular appointments directly contravenes these duties and is unreasonable given that no attempt is made to justify such extension.
Other concerns
In its submission, the Foundation also points out procedural concerns: The Coalition Bill, which has been much in the news, is something that the public are aware of.
However, 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 changes law governing municipalities and both are open for comment to the same entity, namely COGTA. The Foundation pointed out to COGTA 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 Bill’s proposal to transfer some of a district municipality’s functions and powers to a local municipality, not all the functions and powers it proposes removing from district municipalities are indeed then allocated to a local municipality, creating a lacuna. Such powers and functions must either remain with district municipalities, or be transferred to local municipalities.
Good suggestions
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 in the Local Government: Municipal Finance Management Act, 2003.)
The next steps
COGTA has currently asked for public comment on the Bill until the end of August 2024. The Foundation encourages South Africans to exercise their democratic right to be part of the law-making process and tell COGTA how they think the Bill should be changed.
The FW de Klerk Foundation promotes and defends the South African Constitution.