NORTH WEST LOCAL GOVERNMENT MEC
LOCAL GOVERNMENT MUNICIPAL SYSTEMS AMENDMENT BILL,2003 REQUEST FOR COMMENTS
At the outset we would like to Indicate that due to recent policy decisions made and Legislative action taken in relation to local government at the national sphere of government, some of our inputs may to a considerable extent ,be superceded by such new developments which are addressing the existing shortcomings in local government .
As far as the Bill is concerned, there are a number of positive aspects deserving mentioned namely:
1. Section 2: Substitution of 9 of Act 32 of 2000-The assignment of additional functions and powers to municipalities by Parliamentary Acts.
The above clause of the Bill is important in that it makes it a legal requirement that every additional function assigned to a municipality should be effected by an Act of Parliament and not by a General Notice, Determination or Ordinance made by the Minister or MEC. It is an involved process that will require broader consultation with all stakeholders. Secondly, consultation with the Minister of Finance at national level and national treasury at Provincial level is required. Thirdly. assessment by the Financial and Fiscal Commission and the publication of the draft legislation in terms of section 154(2) of Constitution, 1996, is required.
2. Section 3; Substitution of section 10 of Act 32 of 2000 - The assignment of additional functions and powers to municipalities in terms of legislation or ;agreement
The above section of the Bill places a legal duty on an organ of state, before assigning an additional function or power to a municipal, to submit to the Minister and the National Treasury, a memorandum giving a three year projection of the financial implications, disclosing the financial implications and indicating how any additional expenditure by the municipality will be funded.
This will assist considerably in ensuring accelerated. successful and efficient service delivery in that before any additional function is assigned, proper mechanisms to ensure successful completion thereof, will be put in place.
3. Section 4; Insertion of section I0A In Act 32 of 2000 - Funding and capacity building
This section will go a long way in ensuring that funds provided to a municipality, serve the purpose for which they were provided. The above section and the corresponding sections 5, 6.11, 12.14 and 15 will also go a long in ensuring transparency and accountability in service delivery by municipalities In that they incorporate broad consultations and report back mechanisms.
4. Section 8 ; Amendment of section 57 ofAct32 of' 2000
The above amendment to section 57 of the Principal Act will go a long way as far transparency' and accountability are concerned in the awarding of a performance bonus in favour of a municipal manager. Section 5, however, does not specify who is the competent authority to grant such bonus. It is, therefore, submitted that it would be advisable to add a sub clause granting the municipality, by resolution, exclusive discretionary powers to grant such performance bonus.
Recent meetings on rationalization of both provincial and national local government legislation Will also, to a certain extent, assist In repealing legislation which Is obsolete or redundant. and which impacts negatively on accelerated transformation and does not reflect the spirit of the new constitutional dispensation. It would. therefore, have been important If some of the provisions of the old Acts and Ordinances that still govern the current legal position (and which we are still constrained to apply). were addressed in this Bill. By way of example, there are clauses in the old Ordinances, regulating powers and functions of Municipalities regarding disposal of unused immovable properties, authority to set aside sites for the purpose or erection of public or municipal buildings, acquisition and alienation o( property and related matters which, as anomalies, are still applicable today. and for the sake of transformation, added certainty and uniformity may have been incorporated into the Bill.
The recent policy developments will, to a certain extent. assist in repealing legislation which impacts negatively on transformation and service delivery at local government level. Nonetheless, one has to admit that there are still areas of the law that have defects which could Impact negatively on transformation and service delivery at local government level . The said shortcoming , in our view, in local government legislation and the above Bill, are inter alia:
1. Schedule 2 of the Local Government Municipal Systems Act, 2000( Act November.32 of 2000)(hereinafter referred to as "the Principal Act" ) does not assist in providing a Municipality with a clear cut procedure to follow when a Breach of the Code of Conduct has been committed . Again , the Bill also does not address this defect , the said Code and in the process , include detailed procedures to be followed when a breach of Code is committed , and outline the procedures to be followed independently of the internal standing rules of municipalities.
2. Schedule 2 of the Principal Act , does not provide council with any remedy to take any action against the chairperson of council for ignoring his/her legislative mandate of taking action against any councillor who has breached the provisions of the Code of Conduct in terms of the Act. The Bill does not in any way address this important deficiency.
3.The provisions of both the Local Government Municipal Structures Act , 2000 and the Local Government Municipal Systems Act ,1998 do not provide for any recourse to municipalities in the event that the municipal manager has ignored his /her legislative mandate for taking action against a staff member who has breached the provisions of the Code of Conduct for Municipal Officials. The Bill also does not address this further deficiency.
4. The Provisions of the Bill and the Principal Act do not properly regulate , inter alia , the use of the Mayoral discretionary fund . Fairly old provincial Ordinances still regulate the use of this fund , and this again is an undesired anomaly .
5.The current local government legislation does not regulate the appointment of a councillor as an employee of a council.
6. Section 6 of the Bill is not explicit in the definition of a service provider . One needs to be specific on what one means by service provider . Does the definition refer to organizations that provide services on behalf of the municipality to the community, or to those that provide services directly to the municipality?
In conclusion , it is respectfully submitted that the above deficiencies in the provisions of the Principal Act fall under the ambit of matters connected to what is contained in the preamble to the Bill .It is therefore , our sincere hope that such will be considered , in the spirit in which it is suggested , and offered, to be in the final draft of the Bill