Legislation: Key municipal turn-around Bill in limbo

With the final leg of parliamentary activities for the year scheduled to begin next Tuesday, perhaps some of the 38 lapsed Bills inherited from SA’s fifth democratic administration will finally be revived. If so, given its history, the 2019 Local Government: Municipal Systems Amendment Bill should be among them, reports Pam Saxby for Legalbrief Policy Watch.  Tabled in February (just weeks before Parliament rose for May’s general elections), once in force the Bill will repeal and replace an Act with the same title and provisions in effect since July 2011 but declared invalid in March 2017 by the Constitutional Court. Having been given 24 months to ‘correct the defect’ and having missed the deadline, between them Parliament and the Department of Local Government & Traditional Affairs eventually decided to approach the court to request an extension – which was declined. This rendered unenforceable a piece of legislation understood to be critical to successfully implementing the 2009 local government turn-around strategy.

Legalbrief Today reported on each of these developments, as well as on a circular to municipalities and provincial departments that followed. Sent on 14 April by former Local Government & Traditional Affairs Minister Zweli Mkhize, its purpose was to reassure everyone affected that – while the 2011 Act is ‘inoperative and cannot be enforced’ – the principal statute ‘and all amendments made before 2011’ remain ‘operative and enforceable’. What has never been explained is why it was left until the 11th hour to attempt to remedy the situation.

In short, the 2011 Act empowered the Minister to close loopholes in the process of appointing municipal managers and their senior staff with a view to addressing issues around competency, performance, remuneration, benefits, conflicts of interest, dismissal and re-employment. Because of its implications for the provinces, as a Bill it should have been classified a section 76 piece of legislation and followed parliamentary procedures prescribed in the Constitution under that section, as well as in the National Assembly rules. These include public hearings held under the auspices of each provincial legislature. Instead, it was mis-classified and processed as a section 75 Bill not perceived at the time to affect the provinces.

This fundamental blunder went unnoticed for more than 12 months, which is how long it took Parliament to process the Bill. It left egg on the faces of the State Law Adviser (responsible for classifying Bills), senior parliamentary administrators and legal advisers, MPs serving in fifth administration National Assembly and NCOP committees dealing with local government matters (regardless of political persuasion), Department of Local Government & Traditional Affairs officials, Ministers and Deputy Ministers at the time and the Presidency. Now, because of a procedural dilemma that has never arisen before when lapsed Bills have been revived, the piece of legislation required to reinstate powers the Minister had for six years but has since lost is in limbo.

Legalbrief Today has already reported on gaps in the National Assembly and NCOP rules understood to be responsible for this debacle (People’s Assembly). However, since the new Local Government: Municipal Systems Amendment Bill was tabled in the National Assembly and was before one of its committees when the previous Parliament rose, why is its revival affected by problems apparently implicit in reviving Bills introduced in one House but before a committee falling under the other House at the time of rising? Even if the Bill is revived as soon as Parliament reconvenes next week, it is likely to take at least a year to process. The implications of this for addressing municipal management and service delivery problems affecting economic development and growth are glaringly obvious.