Local Government Law

• Author: Adderley, M.
• Published date: 28 March 2022
• Date: 28 March 2022
• Pages: 980-1014

980

1. INTRODUCTION

In the period under review, a number of cases ‘depict[ed] a picture of the

dysfunctional state of affa irs bedevilli ng local government’.1 In the cases

we see contestation about the growing number of provi ncial government

interventions in munic ipalities that are unable to provide basic serv ices

or pay their debts. In many cases, the inter vening provincial exec utive

committee is domin ated by a political party th at is different to the one

dominating the mun icipal council in which the inter vention has taken place,

and this had led to fierce contest ation about interventions.

An alarmi ng number of municipalities are unable, for various reasons, to

keep up with their payments to Eskom for elect ricity supply, in some cases

amassing debts of hundred s of millions of rands. I n response, Eskom has

interrupted bulk elect ricity supply in an effort to compel payment. This has

spawned a burgeoning number of ca ses aimed at ‘keeping the l ights on’.

Through these cas es, the courts have highlighted the importa nt role of other

spheres of government in supporting mun icipalities so that they can pay

their debts and provide basic services.

The judgments also shed light on t he failure of municipalities to re dress

spatial apartheid and behave with huma nity towards the poor and homeless

who have suffered due to the impact of the COVID-19 pandemic.

A significant numbe r of cases involving municipalities re late to the

award of tenders. Judgments related to tenders fall beyond the scope of

this chapter. However, proper compliance with public procurement laws is

evidently a matter of great concern for municipalit ies.

* BA LLB (Rhodes) LLM (UCT); Consultant at Webber Wentzel Attorneys and Adjunct

Lecturer at UCT.

† BA LLB (UCT); Member of the Cape Bar and Member of the Pan African Bar Association

of South Africa (PABASA).

1 Eskom Holdings SOC Ltd v Resilient Properties (Pty) Ltd; Eskom Holdings SOC Ltd v Sabie

Chamber of Commerce and Tourism; Thaba Chweu Local Municipality v Sabie Chamber of Commerce

and Tourism 2021 (3) SA 47(SCA) para 2. [In short referred to as Eskom Holdings SOC Ltd v

Resilient Properties (Pty) (Ltd) 2021 (3) SA 47 (SCA).]

Local Government LawLocal Government Law

Megan Adderley* and Achmat Toefy†

2020/2021 YSAL 980

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LoCAL goverNmeNt LAW 981

In legislative developments, the run-up to the municipal elect ions in

2021 has seen the introduction of major cha nges to the Local Governme nt:

Municipal Structu res Act (the Structures Act)2 aimed at enha ncing the

accountability of municipal counc illors through, among othe rs, enhancing

oversight provided by the municipal council speaker, the establi shment of

municipal public accounts committee s – similar in n ature to the Standi ng

Committee on Public Accounts in Parlia ment – and strengthen ing the code

of conduct for councillors.

2. LEGISLATION

2.1 LOCAL GOVERNMENT: MUNICIPAL STRUCTURES AMENDMENT

ACT 3 OF 2021

On 1 June 2021, the Local Government: Municipal Struct ures Amendment

Act3 was assented to by the Pre sident and published in the Government

Gazette (the Amendment Act). The Amendment Act came into force on

1 November 2021. Its key feature s are outlined below.

The Amendment Act provides for a range of minor amend ments

aimed at addressing electoral is sues. The most salient amendment is t he

introduction of a new s 25(2A) of the Structures Act, which provides that

the municipal manager must in form the MEC for local government in t he

province and the Electoral Comm ission of a vacancy in a ward ‘withi n

14 days from the date on which the vacancy occurre d.’ The Structures Act

did not previously identify a specific f unctionary to p erform this role.

The choice of the municipal man ager to perform this role appears to be

designed to depoliticise the identi fication of a vacancy and to provide a

clear and efficient report ing structu re. An amended s25(3) goes on to task

the MEC for local government in the provi nce with calling for and setting a

date for the by-election in the Provinc ial Gazette af ter consulting with t he

Independent Electoral Commission. T his role was previously performed by

the municipal manager.

The remainder of the Amend ment Act introduces a number of changes

intended to improve municipal governance by obliging mun icipalities to

create a range of structure s aimed at accountability, oversight, discipline and

enhancing par ticipation, and by clarifying the f unctions and constitution of

those structures.

Sections 4 and 5 of the A mendment Act remove the plenary executive

system4 as a model that category B and C municipal ities may adopt. Section 7

2 117 of 1998.

3 3 of 2021.

4 A plenary executive system is one which limits the exercise of executive authority to the

municipal council itself.

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YeArbooK oF south AFrICAN LAW

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amends s 20 of the Structures Act to i ncrease the mi nimum number

of councillors in a dist rict or local municipalit y to ten. These changes

are intended to ensure th at municipalities have a sufficient numbe r of

councillors to form an exec utive committee and appropriately delegate

executive responsibilities.

Section 8 of the Amendment Act i ntroduces a new s 21(1A) into the

Structures Act t hat provides for a ‘cooling off’ period for councillors

removed for misconduct. A councillor who is removed by the MEC for

local government as a result of misconduct i n terms of the code of conduct

for councillors may not stand in an e lection for any municipal council for a

period of two years from the date on which t hey are removed from office.

The purpose of th is amendment is to prevent those counci llors from

immediately being electe d onto the council of another mun icipality. Such

cross-council p ollination was a disti nct possibility bet ween district a nd

local municipalities, but has now been el iminated by thi s amendment. The

code of conduct for councillors is tran sferred from the Local G overnment

Municipal Systems Act and added as Schedule 7 to the Structures Act.

Section 14 of the Amendment Act introduces a new s 29(1A), which

provides that if the speaker or acti ng speaker refuses to call a meet ing of the

council, the municipal ma nager or, in the absence or refusal by the municipal

manager, a person designated by the MEC for local government in t he

province may call and cha ir the meeting. Previously, the speaker had sole

responsibility for cal ling and chai ring council meet ings. This a mendment

empowers the municipal manager or, in the case of her abse nce or refusal, a

person designated by the MEC for local government i n the province to call

and chair the mee ting. This is a welcome change to en sure that the business of

a municipal council is not obst ructed by an absent or uncooperative speaker.

At the same time, though, incrementa l interventions as contemplated by

this amendment are l ikely to be challenged by mun icipalities on the basis

that they provide the MECs with a sweeping power that may be contrar y to

the independence afforded to all sphere s of government.

In accordance with the Constit utional Court’s judgment in Provin cial

Minister for Local Government, Environmental Affairs and De velopment Planning,

Western Cape v Municipal Council of the Oudtshoorn Municipality,5 s16 of the

Amendment Act amends s 30(4) of the Structure s Act by abolishing the

speaker’s right to exercise a casting vote on matters contemplated in s160(2)

of the Constitution, which inc lude the passing of by-laws, the approval of

budgets, the imposition of rates and taxes, and the raisi ng of loans. The

speaker may, however, exercise a casti ng vote in any other matt er.

Section 18 of the Amendment Act amends s 37 of the Structures Act

to supplement the oversight powers of the speaker. It tasks the speaker

5 2015 (6) SA 115 (CC).

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