City of Johannesburg’s Floyd Brink’s appointment was ruled unconstitutional by the court, but despite this, he was re-appointed in November 2023. Picture: Timothy Bernard/African News Agency (ANA)
THE Organisation Undoing Tax (Outa) wants mayors and councillors to pay for costs of unlawful municipal managers’ appointments and fruitless special meetings.
The organisation said the municipalities head of human resources, mayors and other councillors involved in the process must be personally liable for costs incurred.
Outa said this should apply if a municipal manager is appointed without complying with the necessary requirements.
The organisation recently raised concerns about the latest proposed amendment to local government legislation.
Outa said the proposed amendment would weaken accountability and allow municipal managers appointed irregularly to remain in office for up to three months.
This was after the Local Government: General Laws Amendment Bill 2024 introduced more than 25 amendments affecting three different acts impacting local government.
They are Municipal Systems Act, the Municipal Structures Act and the Municipal Property Rates Act.
Key changes include lengthening the period a municipal manager could remain in an acting position and allowing municipal managers appointed irregularly to remain in office for up to three months.
Outa’s local government initiative, the Community Action Network (CAN), believes this was a missed opportunity to implement greater accountability, consequence management, and transparency.
Cooperative and Traditional Affairs (Cogta) spokesperson Legadima Leso said the legislation presently provides that a municipal council must appoint a person who at least has the skills, expertise, competencies, and qualifications of an acting municipal manager for not more than three months.
He said in special circumstances, the municipal council may apply in writing to the MEC for local government to extend the period of appointment for a further period that does not exceed three months.
Leso said due the processes that need to be followed to recruit and appoint municipal managers (advertising, screening, interviews, competency testing) acting tenures exceed the presently applicable three months. He said the proposed amendment is therefore intended to respond to the practical challenges faced with the appointment of acting municipal managers.
“It is not known what informs the trust deficit, nor consequences for the municipality, as it is expected that the person that will appointed as the acting municipal manager is suitably qualified and competent,” Leso said.
Leso said as part of efforts to ensure that governance is enhanced, and that accountability and consequence management is implemented in municipal councils is sustained, his department introduced provisions through the Local Government: Municipal Structures Amendment Act, 2021 that prescribes that if councillor votes in favour of or agrees to a resolution which is before the council or a committee of the council, which conflicts with any legislation applicable to local government, such councillor will be in breach of the Code of Conduct applicable to councillors.
“If a councillor breaches the Code the MEC for Local Government in the Province may remove such a councillor from office, and such a councillor may not serve in any municipality for a period of 2 years.
“If such decision resulted in a financial loss to the State, the municipality may recover from such a councillor any financial losses occurred as a result of such decision within the provisions of the Municipal Finance Management Act,” Leso said.
Sunday Independent sent questions to the South African Local Government Association (Salga).
Many municipalities have been accused of appointing municipal managers unlawfully.
This includes the appointment of Wilfred Solomons-Johannes who was appointed as Theewaterkloof’s municipal manager. The Western Cape High Court later ruled it unlawful.
The appointment of City of Johannesburg’s manager, Floyd Brink, was also ruled unconstitutional by the court, but despite this, he was re-appointed in November 2023.
The appointment of Rustenburg Local Municipality municipal manager, Ranthekeng Khuduge, is currently subject to a court ruling. This, after the former councillor asked Mahikeng High Court to declare the appointment unlawful, irrational and invalid.
CAN’s project manager, Jonathan Erasmus, said the only way to curb negligent appointments and waste of ratepayer funds was is by ensuring that those responsible were held personally liable.
“The eligibility criteria for a municipal manager are very clear and governed by law. However, the amendments put forward would effectively allow a municipal manager appointed irregularly to remain in office for nearly 90 days, which is equivalent to a full financial quarter in the municipal calendar.
“This move to allow what is essentially an illegal appointment to remain intact has massive trust and fiscal consequences for a municipality. If a municipal manager is appointed without complying with the necessary requirements, the municipality’s head of human resources department, the mayor and other councillors involved in the process must be personally liable for costs incurred,” said Erasmus.
He added that a further amendment that would allow acting municipal managers to remain in office for six months, with an additional six months allowed thereafter, is equally troubling when the previous threshold was three months.
“The root cause of extended acting municipal manager roles is cadre deployment and political interference. Like any successful entity, there needs to be stability in leadership.
“Acting municipal managers cannot act as decisively as fully appointed municipal managers and, in practical terms, are likely to be more susceptible to political pressure due to their lack of authority within the organisation,” Erasmus said.
He added that while the amendments formalised the structure of the calling of special meetings of council, they did not go far enough to regulate how often they were called, nor did it place any requirement on being cost-conscious.
“Special meetings, as in the case of the City of Johannesburg, cost more than R500 000 each. If three special meetings occur in a month, that far surpasses even the annual earnings of councillors in a year, and is 23 times more than the annual income of someone earning South Africa’s median salary of R5 417 a month.
“We need to rein in the spending on such events and encode it into legislation that those responsible for excessive spending can be held to account and liable,” he said.
Julius Kleynhans, OUTA’s executive manager for local government, added that this broad-sweep amendment made several reasonable changes, but should have been used to strengthen accountability.
“This is a missed opportunity. Every effort should have been made to raise the bar of excellence, not lower the threshold to accept incompetence. These bills are likely being written by legislators with self-interest and political expediency in mind, not the people,” said Kleynhans.
manyane.manyane@inl.co.za
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