By JONATHAN WALTON
The appointment of senior managers and municipal managers in several municipalities across the country has always been controversial for a number of reasons. Many of the unsuccessful applicants who applied for managerial and leadership positions successfully challenged unlawful appointment decisions of municipal councils in high courts and labour courts[i]. In many cases, the courts found that the appointment decisions of municipal councils were unlawful, irregular and invalid.
In several cases involving the unlawful appointments of municipal managers by municipal councils, the courts emphasized and re-emphasized that the applicable laws and regulations should not be overlooked.
In this regard, I am referring to the appointment processes and procedures as prescribed in the Local Government: Municipal Systems Act (2000)[ii], Local Government: Regulations on Appointment and Conditions of Employment of Senior Managers (2014)[iii] and Municipal Finance Management Act (2003): Municipal Regulations on Minimum Competency Levels (2007)[iv]. Councillors must ensure that all prescribed appointment processes and procedures have been followed to the letter. Councillors must remember the consequences of unlawful decisions.
Managers and councillors can be held personally responsible for unlawful decisions. Litigation is expensive. In 2020, Makana Municipality, a financially distressed municipality, spent R44 437 982; in 2021, it spent R38 661 497 on court cases[v]. There is no evidence that a senior manager was held accountable for spending more than R83-million in two years on litigation.
In the case of Makana Municipality, the vacant positions of Chief Financial Officer (CFO) and Director, Local Economic Development and Planning, were externally advertised. The unlawfully removed MCF councillors are hoping that the appointment decisions of the Chief Financial Officer (CFO) and Director of Local Economic Development would not be tainted by politically-motivated and frivolous decisions.
In collaboration with the Municipal Manager, Municipal Council (all councillors) appoints senior managers accountable to the Municipal Manager[vi]. It is not the Executive Mayor, Mayoral Committee or Speaker’s Office who must decide on appointments. The municipality’s Manager for Legal Services must explain this legal provision in easy-to-understand language.
If the majority of councillors vote in favour of a dubious appointment decision (resolution) in direct contravention with the prescribed legal processes and procedures, the minority of councillors have a right to vote against the majority’s decision. What recourse would be available to the minority councillors if the appointments were in contravention of the law? The minority councillors can submit a grievance to the MEC for CoGTA in Bhisho.
Section 56(5) of the Municipal Systems Act states that: “If a person is appointed to a post referred to in subsection (1)(a) in contravention of this Act, the MEC for local government must, within 14 days of becoming aware of such appointment, take appropriate steps to enforce compliance by the municipal council with this Act, which steps may include an application to a court for a declaratory order on the validity of the appointment or any other legal action against the municipal council.”
Councillors must remember that if an unsuccessful applicant received a tip-off of any contravention of the appointment process, the councillors who supported the decision (resolution) to appoint a person who is not qualified, skilled and experienced for the managerial positions might face severe financial consequences if a dispute is declared in a court of law.
In exercising their oversight duties, opposition Councillors must ask for the written report submitted by the Municipal Manager to the MEC for CoGTA[vii]:
On 28 September 2021[viii], At the ANC’s manifesto launch, President Ramaphosa said: “We will make sure that municipal staff must be made up of competent people. We want competent municipal managers. We want a competent financial officer. We want competent engineers, and we want all the people who [are]appointed to be competent. We don’t want fly-by-nights,” explains ANC President.”
“He says the party has not always chosen the best people to run government institutions, has not always been responsive to people’s needs, and has not done enough to hold its officials accountable.”
The people who voted for the Makana Citizens Front (MCF) expect transparency and openness on the pending appointments. Unlawful decisions influenced by malfeasance can always be revisited and reviewed through special investigations.
On the pending appointment of the Chief Financial Officer and Director, Local Economic Development and Planning, can ANC councillors in Makana act on what the ANC promised to voters? I do not think so because ANC councillors are not allowed to critically think for themselves.
I hope that Makana Council (employer) will respect the rule of law.
References:
[i] http://www.saflii.org/za/cases/ZAECGHC/2020/42.pdf /
[ii] http://www.saflii.org/za/legis/consol_act/lgmsa2000384/
[iii] Government Gazette, No. 37245, 17 January 2014
[iv] http://www.saflii.org/za/legis/consol_reg/mromcl2007509/
[v] 2020_2021 EC_104 Makana Annual Financial Statements 30 June 2021
[vi] Section 56(1)(a) of Municipal Systems Act (2000)
[vii] Regulation 17(4), Local Government: Regulations on Appointment and Conditions of Employment of Senior Managers (2014)
[viii] https://www.sabcnews.com/sabcnews/anc-vows-to-appoint-capable-committed-leaders-in-municipalities/
