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Parliament Gives Green Light to Municipal Systems Amendment Bill

May 5, 2022

Parliament

Parliament has passed the Local Government: Municipal Systems Amendment Bill and sent it to president Ramaphosa for assent.

The bill was tabled in parliament in February 2019.

The proposed legislation was drawn up by the cooperative governance and traditional affairs department.

The bill aims to amend the Local Government: Municipal Systems Act of 2000, so as to:

• insert and amend certain definitions;
• make further provision for the appointment of municipal managers and managers directly accountable to municipal managers;
• provide for procedures and competency criteria for such appointments, and for the consequences of appointments made otherwise than in accordance with such procedures and criteria;
• determine timeframes within which performance agreements of municipal managers and managers directly accountable to municipal managers must be concluded;
• make further provision for the evaluation of the performance of municipal managers and managers directly accountable to municipal managers;
• require employment contracts and performance agreements of municipal managers and managers directly accountable to municipal managers to be consistent with the Act and any regulations made by the Minister;
• require all staff systems and procedures of a municipality to be consistent with uniform standards determined by the Minister by regulation;
• bar municipal managers and managers directly accountable to municipal managers from holding political office in political parties;
• regulate the employment of municipal employees who have been dismissed;
• provide for the Minister to make regulations relating to the duties, remuneration, benefits and other terms and conditions of employment of municipal managers and managers directly accountable to municipal managers;
• provide for the approval of staff establishments of municipalities by the respective municipal councils;
• prohibit the employment of a person in a municipality if the post to which he or she is appointed is not provided for in the staff establishment of that municipality;
• enable the Minister to prescribe frameworks to regulate human resource management systems for local government and mandates for organised local government;
• extend the Minister’s powers to make regulations relating to municipal staff matters;
• make a consequential amendment to the Local Government: Municipal Structures Act, 1998, by deleting the provision dealing with the appointment of municipal managers; and
• provide for matters connected therewith.

According to the bill’s memorandum, the main purpose of the bill is to grant the minister adequate regulatory powers in respect of municipal managers and managers directly accountable to municipal managers.

The bill flows from a Constitutional Court decision in 2017 declaring the Municipal Systems Amendment Act of 2011 unconstitutional for failure to comply with the procedures as set out in section 76 of the Constitution – the Act was tagged as a section 75 instead of a section 76 Bill.

The national assembly (NA) passed the bill and sent it to the national council of provinces (NCOP) for concurrence in December 2020.

The portfolio committee on cooperative governance and traditional affairs introduced amendments to the bill.

A new subsection (10) was inserted into clause 2 stipulating that “if the MEC for local government fails to respond to the appointment process and outcome within the timeframes, as contemplated in subsection (7)(b) or the Minister fails to respond as contemplated in subsection (9), the appointment of the senior manager will be deemed to be in compliance with this Act: Provided the municipality submitted all relevant documents, as prescribed”.

A new subsection (7) was also inserted into clause 6 indicating that municipal councils must decide whether the employment contract of a manager directly accountable to the municipal manager must be for a fixed term or on a permanent basis.

Such decisions must be made in consultation with the mayor or the executive committee after recommendation by the municipal manager.

A new clause 71B stipulates that staff members may not hold political office in a political party, whether in a permanent, temporary or acting capacity.

Current staff members who hold political office will have one year to comply once the clause’s subsection (1) comes into effect.

In December 2021, the select committee on cooperative governance and traditional affairs, water and sanitation and human settlements amended the bill and returned it to the NA for concurrence.

In March 2022, the portfolio committee agreed to adopt the NCOP amendments including amending the provision relating to the appointment of managers who are directly accountable to the municipal manager.

Clause 5 was amended to provide that the employment contracts of managers accountable to a municipal manager must be on a permanent basis.