FORMER LOCAL GOVERNMENT DIRECTOR-GENERAL ‘NOT QUALIFIED' TO BE CITY MANAGER?

Barely three months into her new job, Nelson Mandela Bay Metropolitan Municipality's newly appointed municipal manager, Mrs Lindiwe Msengana-Ndlela, faces suspension. The United Democratic Movement (UDM) has applied to court to compel the municipality to place Mrs Msengana-Ndlela on special leave.

Interestingly, unlike many similar court battles about municipal managers, there are no allegations of misconduct or concerns about performance but questions about whether she is in fact qualified to be a municipal manager.

The fact of the matter is that her qualifications and experience are impressive by all accounts. For seven years, she was the Director-General of the national department, responsible for overseeing the entire local government system (the Department of Cooperative Governance and Traditional Affairs (CoGTA)).

During her tenure, the Department's budget grew from R6 billion to over R24 billion and she achieved seven successive clean audits while managing these funds. She oversaw a range of major policy and legislative initiatives, including the passing of the Municipal Property Rates Act, No. 6 of 2004 and the Intergovernmental Relations Framework Act, No. 13 of 2005.

Before assuming office as Director-General she was employed as a senior civil servant in various provincial and national government departments for seven years. Mrs Msengana-Ndlela holds several degrees, including a Bachelor of Commerce, a Bachelor of Education, a Masters' in Business Leadership and a PhD in Urban Governance, Leadership and Local Economic Development. There is little doubt that she is eminently suitable to take charge of the administration of a large municipality. So what is this about?

The UDM is arguing that Mrs Msengana-Ndlela actually does not have the skills, expertise, qualifications and competencies prescribed by law. They base the argument on the National Treasury's 2007 Municipal Regulations on Minimum Competency Levels. These regulations are part of government's drive to professionalise local government administration. In very general terms, professionalisation can be achieved in two ways.

Government can determine and enforce competencies, skills and ethical standards or it can allow a profession to regulate and enforce its own. When it comes to senior managers in local government, it clearly is the first approach that is being followed. National government determines minimum competency standards and expects municipalities to enforce them. If they fail to do so, anyone can challenge an appointment in court.

It is an ironic twist to this tale that government commenced this version of professionalising local government under Mrs Msengana-Ndlela's watch as Director-General. In 2006, CoGTA (or: the Department of Provincial and Local Government as it was then called) issued regulations determining managerial competencies which senior municipal officials must have.

Later legislation (the Municipal Systems Amendments Act of 2011) paved the way for further competence standards and outlined requirements for recruitment to ensure that senior officials are appointed on merit. It also demands corrective action when appointments are made in contravention of legal requirements.

In 2007, the National Treasury weighed into the professionalisation effort with regulations requiring municipal managers to possess qualifications, experience, management competencies and financial competencies. These have now become Mrs Msengana-Ndlela's nemesis. For the post of municipal manager in a city like Nelson Mandela Bay Municipality the Treasury's regulations require at least - 

• a bachelor's degree and a higher diploma in a relevant field or, alternatively a certificate in Municipal Financial Management (as shown above, Mrs Msengana-Ndlela has more than a bachelor's degree and a higher diploma);
• 5 years' experience at senior management level, a requirement she easily satisfies with her seven years' experience as a Director-General;
• the management competencies required by the Municipal Performance Management Regulations of 2006 (passed under Mrs Msengana-Ndlela's tenure as Director-General); and
• competence in the unit standards related to finances and supply chain management, which can be obtained by completing the Municipal Finance Management Programme put together by national government.

It is this last requirement that may be the problem in Msengana-Ndlela's case. It is compulsory even if you comply with the first three requirements, namely higher education qualifications, experience and management competencies.

These courses are provided through accredited training providers. This is where the UDM found a hole in Mrs Msengana-Ndlela's CV: she did not complete the Municipal Finance Management Programme. Only a review of her existing qualifications by qualified assessors registered with the LGSETA could possibly determine to what extent she already possesses the required competence unit standards related to finances and supply chain management.

These regulations are part of an elaborate suite of laws, policies and plans to improve the capability of the state and local government in particular. The National Development Plan contains capacity building proposals for local government. These cover the improvement of management, technical skills and organisational systems within municipalities. The Plan says that South Africa needs to make local government a career of choice by building a professional management that is sufficiently autonomous to be insulated from political patronage.

To make local government a career of choice, the National Planning Commission has proposed a formal graduate recruitment scheme for the public service based on merit-based selection assessments; a career path for local government; making adequate experience a prerequisite for senior posts; and improving the systems for skills development. The most recent initiatives on the professionalisation of the public service are the reforms proposed by the Minister of Public Service and Administration, Minister Sisulu. 

The Minister plans a ban on public servants doing business with the state, a new school of government and a central tribunal to process disciplinary matters faster, to mention but a few. On the professionalisation front, the Minister plans to amend the Public Service Act to set a higher bar for appointment into the service and providing for career development, fighting corruption and managing discipline. A Draft Bill has been published for comment. The Bill seeks to professionalise the public service by standardising the recruitment of accounting officers and senior managers across all levels of government.

How does our ironic tale, of the former Director-General possibly falling victim to rules she herself helped design, fit into this new policy on professionalisation? The case brings into question whether the approach whereby government determines and enforces standards is indeed the right one. Is a legislated, one-size-fits-all standard necessarily the best way to achieve professionalism?

The above scenario exposes some unintended consequences because few would argue that the intention of the scheme could have been to disqualify a former Director-General with an impeccable record from becoming a city manager. The law elevates the Certificate in Municipal Finance Management to a sine qua non. Officials without a single degree or diploma have no problem as long as they complete this Municipal Finance Management Programme. However, the converse does not apply.

No matter how many degrees an official may have accumulated or how many years of experience he or she has, the Certificate in Financial Management remains compulsory. This is how a former Director-General with a PhD can be deemed unsuitable. Can local government really afford to exclude high calibre individuals such as Mrs Msengana-Ndlela from the pool of eligible candidates? On the other hand, assuming for a moment that the UDM wins its case (which remains to be seen), could it be argued that the sacrifice is worth it? It would at least mean that an objective minimum standard for capability is upheld throughout the country.

What makes this case suggestive of fault lines in government's approach to professionalisation is the fact that the story line suggests that the rules are invoked for political reasons, rather than out of concern with service delivery. Mrs Msengana-Ndlela was appointed by a unanimous council decision. The UDM councillor who is now challenging the appointment in court, Cllr Bobani, was part of the interview panel that recommended her appointment and is a member of the council that unanimously appointed her. The change of heart is remarkable and begs the question as to what has changed in the last three months.

There is no doubt that government is right to pursue the professionalisation of local government administration: it will go a long way in addressing the problems in local government. However, the law now appears to be counterproductive: it is used to try to exclude precisely the kind of personnel required to achieve excellence. Elevating minimum qualification over proven capability and competence might backfire and undermine government's intentions. In our view, qualifications ultimately offer no guarantee for excellence. However, proven capability comes close.

Phindile Ntliziywana is Researcher: Multi-Level Government Initiative, Community Law Centre, UWC. Prof Jaap de Visser is Director: Community Law Centre

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