Municipalities (I): Evaluating executive authority in municipalities
18 July 2019
THIS BRIEF SERIES EXPLORES THREE INSTITUTIONAL ARRANGEMENTS THAT INFLUENCE MUNICIPAL FUNCTIONING. PART I EVALUATES EXECUTIVE AUTHORITY IN MUNICIPALITIES; PART II ASSESSES MECHANISMS OF MUNICIPAL OVERSIGHT; AND PART III EXAMINES THE LEGAL FRAMEWORK FOR PROVINCIAL INTERVENTION IN LOCAL GOVERNMENT.
MUNICIPALITIES IN CRISIS
Municipalities are supposed to be at the forefront of delivering the most basic services to communities, ensuring that people are provided with water and sanitation thereby realising the human rights embodied in the Constitution. But many communities are still far removed from this reality as their rights are yet to be realised. Communities slog through daily life without access to clean, sufficient or reliable water; not to mention sanitation facilities. Municipalities, meanwhile, are struggling to keep afloat – operationally and financially. There are several reasons for this: poor governance, maladministration, corruption, incompetence and, in some cases, inadequate finances. All have been ventilated in the media.1 The Auditor-General’s report on municipalities reveals a culture of non-performance and lack of accountability.2
How can the executive authority within municipalities influence their performance and management? What oversight mechanisms are there to ensure good governance? Are these mechanisms properly empowered? What measures can other spheres of government, particularly at provincial level, take to ensure these services are delivered to communities when municipalities fail? This brief series aims to answer these questions, identifying key structural systems and mechanisms that affect municipal functioning and suggesting reforms that may improve their performance. If implemented correctly, it may create a space for municipalities to improve municipal governance and enhance their performance.
THE STRUCTURE OF LOCAL GOVERNMENT
The Constitution establishes local government as an autonomous sphere, giving municipalities the right to govern the local affairs of their communities quite independently and on their own initiative.3 This is important given that during apartheid only limited functions and powers were delegated to it through statutes. Municipalities now enjoy original constitutional powers and may operate on their own authority subject to the Constitution.4 Given their developmental mandate, municipalities must now structure and manage the administration, budgeting and planning processes to give priority to the basic needs of the community, and promote the social and economic development of the community.5
The Constitution also establishes three categories of municipalities known as metropolitan, district and local municipalities, and places the legislative and executive authority of each municipality in its municipal council, which consists of democratically elected representatives. This structure differs from anything found in provincial and national governments, where a distinct separation exists between the legislative and executive authorities. The council exercises its legislative power by passing by-laws, passing a budget and imposing rates, levies, taxes, service fees and surcharges. The rest of the council’s functions can be characterised as executive. Parliament has recognised the need to separate, at least in part, legislative and executive municipal functions by establishing five different executive systems within which municipalities operate.6 Of the five systems, two are most common – the collective executive system or the mayoral executive system. Each allows for varied levels of council oversight, accountability and transparency.
EXECUTIVE SYSTEMS OF LOCAL GOVERNANCE
The collective executive system allows the municipal council to elect an executive committee from amongst its councillors. The effect is that the municipality’s executive authority is collectively vested in this committee. Legislation explicitly states that the committee must be composed in such a way that the parties and interests represented are substantially the same as those represented in the council. The municipal council then also elects a member from this committee to serve as the municipality’s mayor. The function of a mayor, different from the executive mayor discussed in more detail later, is more ceremonial in nature. She presides over meetings held by the executive committee, performs other duties which may include any ceremonial functions, and exercises the powers delegated by the municipal council or the executive committee.
Where a municipality opts for a mayoral executive system, the council elects from amongst its members an executive mayor in whom executive authority is vested. The executive mayor is assisted by a mayoral committee, solely appointed by the executive mayor from amongst the municipal councillors.7 A significant difficulty lies in how the mayoral committee is defined: in Democratic Alliance and Another v Masondo NO and Another,8 the Constitutional Court held that a mayoral committee is not regarded as a committee of the council. This has a couple of implications. First, unlike an executive committee, a mayoral committee does not need to be constituted in a manner that proportionally represents the parties and interests found in the municipal council. In practice, this means that mayoral committees often consist only of majority party representatives. Secondly, meetings of mayoral committees need not be open to the public.9 The same is sometimes true for an executive committee within a collective executive system. But in this case, the executive committee is a committee of the council which means that the executive committees are barred from closing a meeting to the public when considering draft by-laws, budgets, draft integrated development plans, draft performance management systems, or certain service delivery agreements.10 A mayoral committee is not subject to the same legislative constraints.
COLLECTIVE EXECUTIVE SYSTEM VS MAYORAL EXECUTIVE SYSTEM
Functions and powers given to executive committees and executive mayors are virtually identical.11 Key amongst them include identifying, prioritising and recommending strategies to address the needs of the community, monitoring the management of the municipality’s administration and overseeing the provision of services to the community in a sustainable manner.
An executive committee, however, is structured in a manner that seeks to promote greater transparency and accountability within the executive. As it proportionately reflects the interests and parties represented in council, important policy and strategic planning considerations are open to a more robust debate than would be possible in a mayoral committee – where members often belong solely to the majority party. This creates the space for internal accountability within the executive. Participation from ordinary community members is also enhanced as executive committees are obliged to hold open meetings when considering important issues like draft by-laws.
While the mayoral executive system is favoured amongst municipalities, accountability, transparency and public participation is enhanced when municipalities are established on an executive committee system. As one of the constitutional objectives of local government is to provide democratic and accountable government to local communities,12 structuring the executive system to optimise accountability should be a priority. While an executive committee system does not promise a complete elimination of bad faith governance or corruption within the executive, it does go a long way in establishing an executive with greater credibility amongst the people, improved participation and enhanced accountability.13
By Michelle Toxopeüs, Legal Researcher, HSF, 18 July 2019
1 See, for example, https://www.dailymaverick.co.za/article/2018-05-24-overspending-underperforming-threats-welcome-to-failed-local-government-rsa-2018/; https://mg.co.za/article/2018-10-26-00-fraud-poor-governance-cause-municipal-crisis; https://www.fin24.com/Budget/mboweni-re-prioritises-as-municipalities-fumble-with-funds-20181024.
2 See AGSA, 2019, MFMA 2017/2018 Local Government Audit Outcomes Report, accessed at https://www.agsa.co.za/Reporting/MFMAReports/2017-2018MFMA.aspx.
3 Section 151(3) of the Constitution.
4 See the description of local government powers in City of Cape Town and Another v Robertson and Another  ZACC 21; 2005 (2) SA 323 (CC) at para 60.
5 Section 153(a) of the Constitution.
6 Section 7 of the Local Government: Municipal Structures Act 117 of 1998.
7 Appointed in terms of section 60 of the Structures Act.
8 Democratic Alliance and Another v Masondo NO and Another  ZACC 28; 2003 (2) BCLR 128 (CC); 2003 (2) SA 413 (CC) (12 December 2002).
9 Section 20(3) of the Local Government: Municipal Systems Act 32 of 2000.
10 Section 20(2) of the Systems Act. Also see https://dullahomarinstitute.org.za/multilevel-govt/local-government-bulletin/volume-10-issue-2-april-may-2008/vol-10-no-2-holding-the-municipal-executive-to-account.pdf.
11 Compare sections 44 and 56 of the Structures Act.
12 Section 152(1)(a) of the Constitution.
13 For a practical illustration, see https://www.dailymaverick.co.za/article/2018-06-25-municipalities-must-change-the-way-they-are-governed/.