In the previous edition of the Transformer Journal Volume 10 No 2 we asked whether the municipal legislative framework was part of the problem of failing municipalities. This was done in an attempt  to analyse service delivery protests. We argued that part of the problem with regards to poor service delivery can be attributed to the cumbersome legislative framework that gave birth to local government. Furthermore we argued that “the core of service delivery problems and challenges within municipalities’ lies in weak crafting of legislation governing this sphere as well as the fact that local government is the most regulated and legislated sphere of government. We further argued that corruption and inequality appears to have sky rocketed in local municipalities under the leadership of the ANC. Inappropriate Cadre deployment continues to be at the centre stage of a flawed transformation, leading to the employment of ill-qualified staff and to poor performance and lack of service delivery. The above arguments concluded by suggesting amongst other matters that there is a high need to review the amendments of the legislative framework governing local municipalities in order to complement Section 152 of the Constitution of the Republic of South Africa.

This Act has been welcomed by most political parties including the opposition, though vigorously opposed by some elements of the labour movement like the South African Municipal Workers Union which is an affiliate of COSATU. Let us take time to analyse some of the provisions and amendments in the Act.

Examining the Amendments of the Municipal systems Amendment Act

The Act opens a new chapter in local government and helps turn the sphere into a responsive, accountable, efficient and effective local government system that will help service delivery and build of a better life for all, of course that is if it is applied and adhered to.

The provisions of the Act include:

• The prohibition of senior political party office bearers from also holding top municipal jobs. This is aimed at ensuring that municipalities are managed by people with the right skills rather than party loyalists - thereby depoliticising local government.
• Professionalising local government by ensuring that the administrative apparatus of municipalities is staffed by appropriately qualified and competent persons to improve on ser vice delivery.
• Require employment contracts and performance agreements of municipal managers and managers directly accountable to municipal managers to be consistent with the uniform systems and procedures set nationally.
• Extend the Ministers regulatory power to make regulations relating to macro benefits such as medical aid and pension benefits af ter consultation with the minister of Health and Finance.
• The South African Local Government Association [SALGA] to consult the minister of Co-operative Governance and Traditional Affairs, the Financial and Fiscal Commission and “any other parties as may be prescribed“ before entering into salary negotiations.
• A municipal employee dismissed for misconduct may only be re-employed after expiry of the prescribed penalty period which is 10 years.
• Any municipal employee subjected to a disciplinary hearing may not be employed in another municipality until their case has been concluded.
• Appointing a person to a post that does not exist within the municipality ’s organogram is prohibited.

These amendments are good for our democracy though some have”unintended consequences”  for workers. COSATU and SAMWU are up in arms and are opposing this Act as they feel politically betrayed and lied to by President Jacob Zuma who undertook before the 18 May 2011 local government elections to discuss the union’s objections before signing this bill into law, thereby averting a national strike by SAMWU before the local polls.

The Objections Made by SAMWU and COSATU

Unions have threatened anarchy, strikes and petitioning the courts to suspend the act pending full engagement on the matter. Two critical clauses are a bone of contention between organised labour and government. One is the clause on wage negotiations which unions view as stripping SALGA of its ability to make independent agreements and would frustrate the spirit of collective bargaining as the Act empowers the minister to interfere in the process. The second is the clause that prohibits political office bearers from holding top municipal jobs.
Unions view this clause as unconstitutional as it encroaches on Section 18 of the Constitution that guarantees the right of freedom of association.

Conclusion

Though this act seeks to professionalise local government and to address fundamental issues that had negative impacts on service delivery, normalising the political-administrative interface in municipalities and fighting corruption in local government, one can only hope that the ruling party will, as a strategic and leading partner in the alliance, find political solutions to these differences and avoid any negative impact as a result of opposing views within the alliance.
In the absence of a political solution to these challenges the public needs to monitor any litigation process that the unions may institute against the state, while being mindful of the constitutional imperatives of separation of powers between legislature, executive and judiciary. It would be interesting to see how the courts would pronounce on these alleged unconstitutional clauses in the Act without pre-empting any outcome of the constitutional court. If this matter ever gets to the Constitutional Court, it is likely to be an uphill battle for the unions to argue and convince the constitutional judges on how these clauses infringe the Constitution or how they are inconsistent with the supreme law of the republic.

References: Municipal Systems Amendments Bill | COSATU and  SAMWU Submissions | Transformer Vol 17 No 2 | Constitution of Republic of South Africa | Labour Relations Act | South African Local Government Association | Sunday Times 10 July 2011