Role of DCoG in supporting local government oversight Key provisions of the Municipal Structures Act and Municipal Sys

2. Role of DCoG in supporting local government oversight • Key provisions of the Municipal Structures Act and Municipal Systems Act • Committees of a municipal council • Privileges and immunities of municipal councilors • Code of conduct for councillors

3. The first call of providing support to municipalities is the provincial departments responsible for local government (LG), thus, both the Municipal Structures Act (1998) and Municipal Systems Act (2000) provides the MEC responsible for LG with various functions or responsibilities. • Section 18(c) of the Local Government Laws Amendment Act (2008) states that the “Minister may request the MEC to investigate maladministration, fraud, corruption or any other serious malpractice which, in the opinion of the Minister, has occurred or is occurring in a municipality in the province”

4. Continued – • Section 18(c) further states that the “MEC must table a report detailing the outcome of the investigation in the relevant provincial legislature within 90 days from the date on which the Minister requested the investigation and must simultaneously send a copy of such report to the Minister, the Minister of Finance and the National Council of provinces.” • While the primary responsibility to investigate and recommend appropriate action regarding a Councillor’s breach of the “Code of Conduct for Councillors” lies with the municipal council, the Local Government Laws Amendment Act (2008) enables the MEC to appoint a person or a committee to investigate any alleged breach of the Code and to make a recommendation as to the appropriate sanction if a municipal council does not conduct an investigation and the MEC considers it necessary.

5. With respect to anti-corruption, the DCoG is in the process of creating additional capacity to its recently established Inspectorate on Fraud and Corruption in Provinces and Municipalities.

6. Amongst other, the Municipal Structures Act provides for: • the establishment and disestablishment of municipalities; • the division of powers and functions between categories of municipalities; • The regulation of the internal systems, structures and office-bearers of municipalities • The key provisions of the Municipal Systems Act (including its Amendment Bill 2010 which has been passed by Parliament in 2011 and is awaiting the President’s assent) that has a bearing on LG oversight are captured in Schedule 1: Code of Conduct of Councilors.

7. Section 79 of the Municipal Structures Act enables the establishment of committees of a municipal council (which includes the Municipal public Accounts Committees). • A municipal council must meet at least quarterly. • The number of councillors per municipality after the May 2011 LG elections will range from 7 to 260. • In smaller municipalities councillors are likely to serve in various council committees while in larger municipalities this can be avoided or minimised. • Serving in various Council committees may impact negatively on the effectiveness of Councillors’ oversight role as well as raising conflict of interest issues.

8. Section 28 of the Municipal Structures Act states that a provincial legislation in terms of section 161 of the Constitution must provide at least – • that councillors have freedom of speech in a municipal council and in its committees, subject to the relevant council’s rules and orders. • (subject to the Municipal Systems Amendment Bill’s clause 14 - “voting at meetings”) that councilors are not liable for civil or criminal proceedings, arrest, imprisonment or damages for – • anything that they may have said in, produced before or submitted to the council or any of its committees; or • anything revealed as a result of anything that they have said in, produced before or submitted to the council or any of its committees.

9. Section 28 of the Municipal Structures Act further states that until the said provincial legislation has been enacted the privileges referred to in the previous slides will apply to all municipal councils in the province concerned. • To date only the Gauteng and Free State provincial legislatures have passed the legislation contemplated in Section 28 of the Municipal Structures Act. • The Free State’s Privileges and Immunities of Municipal Council Act (2002) is in line with the Municipal Structures Act subject to the said matters being “in the public interest”. • The Gauteng Privileges and Immunities of Councillors Act (2002) is in line with the Municipal Structures Act subject to the said matters not being “unlawful”.

10. Clause 14 of the Municipal Systems Amendment Bill (2010) regarding “Voting at meetings” states that “A councilor may not vote in favour of or agree to a resolution which is before the council or a committee of the council which conflicts with any legislation applicable to local government”.

11. Some of the critical provisions are the following: • Perform the functions of office in good faith, honestly and a transparent manner. • At all times act in the best interest of the municipality and in such a way that the credibility and integrity of the municipality are not compromised. • Clause 14 of the Municipal Systems Amendment Bill (2010) regarding “Voting at meetings” states that “A councilor may not vote in favour of or agree to a resolution which is before the council or a committee of the council which conflicts with any legislation applicable to local government”. • Attendance of each meeting of the municipal council and of a committee of which the councillor is a member (sanctions for non-attendance may be instituted which may include removal from office).

12. Some of the critical provisions - continued: • Disclosure to the municipal council or its committee of any direct or indirect personal or private business interest that the councillor, or any spouse, partner or business associate of that councillor may have in any matter before the council or its committee. - withdrawal from the proceedings if there are such interest. • A councillor may not use the position or privileges of a councillor, or confidential information obtained as a councillor, for private gain or to improperly benefit another person. • No councillor may be a party to or beneficiary under a contract for the provision of goods or services to any municipality or any municipal entity established by a municipality.

13. Some of the critical provisions - continued: • A councillor may not request, solicit or accept any reward, gift, of favour for influencing a council or committee decision. • A councillor may not without the permission of the municipal council or a committee disclose any privileged or confidential information of the council or committee to any unauthorised person. Thank You