L.G.L.A.B [12]
SALGA SUBMISSION ON THE LOCAL GOVERNMENT LAWS
AMENDMENT BILL, 2002
10 October 2002
INTRODUCTION
There is general agreement with the contents of the bill. SALGA is also in agreement with the stated intention to pass at least certain sections of the amendment bill during the current session of Parliament especially the provision dealing with the extension of the transitional period to 30 June 2003. In us submission, SALGA will comment only on those sections where it proposes certain changes to the proposed amendments. Where necessary, the submission will indicate particular support for certain proposed amendments and the submission will also propose certain new amendments to the Bill.
1.Amendment of section 2(1)(a) of Act 52 of 1997 (new proposal)
"(a) recognise one national organisation representing the majority of the [provincial associations contemplated in paragraph (b)] municipalities as contemplated in section 1 55 of the Constitution"
SALGA is in the process of restructuring itself. Part of this process is the amalgamation of the administrations of the provincial associations into the SALGA national structure and the direct affiliation of municipalities to the national SALGA structure.
In view of the above, SALGA is proposing that the Organised Local Government Act be amended to reflect the new composition of SALGA.
The consequences of the proposed amendment have bearing only on the recognition criteria for SALGA as a national structure and not on the provincial organisations and can be summarised as follows:
1.SALGA must be recognised in terms of section 2(1 )(a) where it represents the majority of municipalities;
2. A provincial organisation must be recognised where it represents the majority of municipalities in that province; and
3. SALGA must be recognised in terms of section 2(1)(b) where it represents the majority of municipalities in that province. 2. Amendment of section 34(3)(b) of Act 117 of 1998 (new proposal)
an intervention in terms of section 139 of the Constitution has not resulted in the council being able to fulfil its obligations in terms of legislation or the Constitution".
3. Amendment of sections 49 and 56 of Act 117 of 1998
paragraphs 17 and 18 of the Bill are supported because it brings certainty to the situation.
4. Amendment of section 81 of Act 117 of 1998
Paragraph 20 of the Bill is supported.
5. Amendment of section 84 of Act 117 of 1998
Paragraph 21 of the Bill is supported. SALGA is proposing the following addition to the proposed section 3(d).
"Provided that where the Minister revokes an authorisation without issuing an authorisation as contemplated in paragraph (a), the Minister must comply with the consultation procedure as contemplated in paragraph (a)"
6. Insertion of item 8Ato Schedule 1 to Act 117 of 1998
This item dealing with uncontested ward elections is supported. The proposed amendment merely clarifies how the ward candidate is elected unopposed. It is in line with item 13(1)(b) of Schedule 1 in that it assumes that all votes cast for the party to which the unopposed candidate belongs, would have been cast for the candidate had there been an actual ward election.
7. Amendment of section 1 of Act 32 of 2000
Paragraph 40 (a) of the Bill dealing with the definition ot "municipal service" is supported.
8. Amendment of section 59 of Act 32 of 2000
"59A (1) The municipal manager of a municipality may
(a) delegate appropriate powers conferred to the municipa manager to a staff member;
(b) instruct any such staff member to perform any of the municipal manager's duties; and
(c) withdraw any delegation or instruction.
(2) A delegation or instruction in terms of subsection (1) -
(a) must not conflict with the Constitution. this Act. the Municipal Structures Act, a by-law of the council or any other legislation:
(b) must be in writing;
(c) is subject to any limitations, conditions and directions the municipal manager may impose;
(d) may include the power to sub-delegate a delegated power: and
(e) does not divest the municipal manager of the responsibility concerning the exercise of the power or the performance of the duty.
(3) The municipal manager may review any decision taken by a staff member in consequence of a delegation, sub-delegation, or instruction, and either confirm, vary or revoke the decision subject to any rights that may have accrued to a person.
Motivation
There are a number of functions assigned to the municipal manager in terms of legislation. Examples of these are sections 55, 62, 66, 67(4), 70, etc of the Systems Act. Whilst there are clear provisions for the municipal council to delegate its authority in respect of certain matters, there are no similar provisions for the municipal manager. It will certainly provide certainty that a municipal manager may delegate appropriately and within a particular framework as is the case with the council. In terms of the current system of delegation employed by all municipalities, the municipal managers are indeed delegating their authority to other staff members.
9. Insertion of a new section 75A
Paragraph 43 of the Bill is supported. It is in line with Chapters 3 and 4 of the Systems Act.
10. New section 109 of Act 32 of 2000
It is proposed that paragraph 47 of the Bill be amended as follows:
"109A. A municipality may, subject to such terms and conditions as it may determine, provide an employee or a councillor of the municipality with legal representation where -
(a) legal proceedings have been instituted against them as a result of any act or omission by them in the exercise of their powers or the performance of their duties; or
(b) they have been summoned to attend any inquest or inquiry arising from the exercise of their powers or the performance of their duties.
Motivation
SALGA supports the provision of legal representation to employees while they act within the course and scope of their employment. The right to legal representation should be extended to councillors in similar circumstances. The new local government dispensation creates a much more interactive role for councillors in local affairs and it is conceivable that a councillor may find herself in a similar position as that of an employee. The Gauteng Rationalisation of Local Government Affairs Act, 10 of 1998 makes similar provision for employees and councillors.
11. Substitution of section 117 of Act 32 of 2000
Paragraph 48 of the Bill is supported. If, however, there is a general authority for the municipal manager to delegate as per our proposal above, there would be no need for the addition.
12. Substitution of section 118 of Act 32 of 2000
Paragraph 49 of the Bill should be amended by the deletion of the proviso to the new subsection (4) to section 11 8 of the Systems Act. The proviso merely shifts the responsibility to pay service charges to predominantly poor first time homeowners. This amounts to an equally serious impediment to the provision of housing to the poor. Whilst the Systems Act cannot address the underlying issue of outstanding municipal debt, it should facilitate the provision of services, in this case housing, to the poor.
13. Amendment of section 13 of Act 33 of 2000
This provision is strongly supported. The failure to pass this provision will result in wholesale disruption of services as municipalities will have to engage in the transfer of staff, assets and liabilities in the middle of a financial year in respect of functions that may be performed by another level of local government.