Municipal Systems Act applying to municipal managers

What follows are the legal outlines for Wallace Mgoqi's employment. The exact details of his contract are private between him and his employer.

The Act quoted below states the task of the municipal manager is leader of the city's civil service, and the manager should not be unreasonably pushed around by elected political office bearers. Well and good - so long as the manager in this case behaves like a member of the civil service.

Mgoqi's non-cooperation with the multi-party government makes city government difficult. His behaviour amounts to breach of any reasonably-construed performance agreement (but then again, the ANC was in charge of defining that for Mgoqi).

In this way, he is abusing his office twice: he claims the benefits of the Act in protecting his job, and so makes us ratepayers pay for destroying the government's effectiveness; and he also forces us to pay his salary while he turns the civil service into a political grandstand, which is against the spirit of the Act.

From the Municipal Systems Act:

Inconsistency with applicable labour legislation

52. In the event of any inconsistency between a provision of this Chapter, including the Code of Conduct referred to in section 69, or a regulation made for the purposes of this Chapter, and any applicable labour legislation, the labour legislation prevails.

Part 2: Political strictures, political office bearers and roles

Roles and responsibilities

53. ( 1 ) A municipality must, within the framework of and in accordance with relevant provisions of the Municipal Structures Act, this Act and other applicable legislation, define the specific role and area of responsibility of each political structure and political office bearer of the municipality and of the municipal manager.

(2) The respective roles and areas of responsibility ot’ each political structure and political office bearer and of the municipal manager must-

(a) be defined in precise terms by way of separate terms of reference, in writing, for each political structure or political office bearer and the municipal manager; and

(b) be acknowledged and given effect to in the rules, procedures, instructions, policy statements and other written instruments of the municipality.

(3) instruments defining, acknowledging or giving effect to the roles and areas of responsibility of these political structures and political office bearers and the municipal manager must be appropriate to the category and type in which the municipality falls.

(4) Terms of reference mentioned in subsection (2)(a) may include the delegation of powers and duties to the relevant political structure or political office bearer or the municipal manager in terms of section 59.

(5) When defining the respective roles and areas of responsibility of each political structure and political office bearer and of the municipal manager, the municipality must determine—

(a) the relationships among those political structures and political office bearers and the municipal manager, and the manner in which they must interact;

(b) appropriate lines of accountability and reporting for those political structures and political office bearers and the municipal manager;

(c) mechanisms, processes and procedures for minimising cross-referrals and unnecessary overlapping of responsibilities between those political structures and political office bearers and the municipal manager;

(d) mechanisms, processes and procedures for resolving disputes between those political structures and political office bearers and the municipal manager; and

(e) mechanisms, processes and procedures for interaction, between—

(i) those political structures and political otlice bearers and the municipal manager and other staff members of the municipality; and

(ii) councillors and the municipal manager and other staff members of the municipality.

(6) If a municipality has a decentralised regional administration in any part of Its area, the municipality must determine mechanisms, processes and procedures for interaction between the regional management of the municipality and—

(a) the ward councillor or other councillor responsible for that part of the municipality’s area:

(b) any subcouncil or ward committee, where applicable, in that part of the municipality’s area; and

(c) the local community in that part of the municipality’s area.

Code of Conduct for councillors

54. The Code of Conduct contained in Schedule 1 applies to every member of a municipal council.

Municipal managers

55. (1) As head of administration the municipal manager of a municipality is, subject to the policy directions of the municipal council, responsible and accountable for—

(a) the formation and development of an economical, effective, efficient and accountable administration—

(i) equipped to carry out the task of implementing the municipality’s integrated development plan in accordance with Chapter 5;

(ii) operating in accordance with the municipality’s performance management system in accordance with Chapter 6; and

(iii) responsive to the needs of the local community to participate in the affairs of the municipality;

(b) the management of the municipality’s administration in accordance with this Act and other legislation applicable to the municipality;

(c) the implementation of the municipality’s integrated development plan, and the monitoring of progress with implementation of the plan;

(d) the management of the provision of services to the local community in a sustainable and equitable manner;

(e) the appointment of staff other than those referred to in section 56(a), subject to the Employment Equity Act, 1998 (Act No. 55 of 1998);

(f) the management, effective utilisation and training of staff;;

(g) the maintenance of discipline of staff;

(h) the promotion of sound labour relations and compliance by the municipality with applicable labour legislation;

(i) advising the political structures and political office bearers of the municipality;

(j) managing communications between the municipality’s administration and its political structures and political office bearers;

(k) carrying out the decisions of the political structures and political office bearers of the municipality;

(l) the administration and implementation of the municipality’s by-laws and other legislation;

(m) the exercise of any powers and the performance of any duties delegated by the municipal council, or sub-delegated by other delegating authorities of the municipality, to the municipal manager in terms of section 59:

(n) facilitating participation by the local community in the affairs of the municipality;

(o) developing and maintaining a system whereby community satisfaction with municipal services is assessed;

(p) the implementation of national and provincial legislation applicable to the municipality; and

(q) the performance of any other function that may be assigned by the municipal council.

(2) As accounting officer of the municipality the municipal manager is responsible and accountable for—

(a) all income and expenditure of the municipality;

(b) all assets and the discharge of all liabilities of the municipality; and

(c) proper and diligent compliance with applicable municipal finance management legislation.

Appointment of managers directly accountable to municipal managers

56. (a) A municipal council, after consultation with the municipal manager, appoints a manager directly accountable to the municipal manager.

(b) A person appointed as a manager in terms of paragraph (a) must have the relevant skills and expertise to perform the duties associated with the post in question, taking into account the protection or advancement of persons or categories of persons disadvantaged by unfair discrimination.

Employment contracts for municipal managers and managers directly accountable to municipal managers

57. (1) A person to be appointed as the municipal manager of a municipality, and a
person to be appointed as a manager directly accountable to the municipal manager, may
be appointed to that position only—

(a) in terms of a written employment contract with the municipality complying with the provisions of this section; and

(b) subject to a separate performance agreement concluded annually as provided for in subsection (2).

(2) The performance agreement referred to in subsection (1)(b) must—

(a) be concluded within a reasonable time after a person has been appointed as the municipal manager or as a manager directly accountable to the municipal manager, and thereafter, within one month after the beginning of the financial year of the municipality;

(b) in the case of the municipal manager, be entered into with the municipality as represented by the mayor or executive mayor, as the case may be; and

(c) in the case of a manager directly accountable to the municipal manager, be entered into with the municipal manager.

(3) The employment contract referred to in subsection ( l)(a) must include, subject to applicable labour legislation, details of duties, remuneration, benefits and other terms and conditions of employment,

(4) The performance agreement referred to in subsection (l)(b) must include—

(a) performance objectives and targets that must be met, and the time frames within which those performance objectives and targets must be met;

(b) standards and procedures for evaluating performance and intervals for evaluation; and

(c) the consequences of substandard performance.

(5) The performance objectives and targets referred to in subsection (4)(a) must be practical, measurable and based on the key performance indicators set out from time to time in the municipality’s integrated development plan.

(6) The employment contract for a municipal manager must—

(a) be for a fixed term of employment not exceeding a period ending two years after the election of the next council of the municipality;

(b) include a provision for cancellation of the contract, in the case of non-compliance with the employment contract or, where applicable, the performance agreement;

(c) stipulate the terms of the renewal of the employment contract, but only by agreement between the parties; and

(d) reflect the values and principles referred to in section 50, the Code of Conduct set out in Schedule 2, and the management standards and practices contained in section 51.

(7) A municipality may extend the application of subsection (6) to any manager directly accountable to the municipal manager.

Remuneration of municipal managers and managers directly accountable to municipal managers

58. A municipality must, on or before 31 October of each year, publish in the media the salary scales and benefits applicable to posts of the municipal manager and every manager that is directly accountable to the municipal manager.

Response to Cassandra

The critics this week are all very negative. But most suggestions made are meant constructively and some ideas are worth close scrutiny.

The DA can't form a majority government on its own in Cape Town. We polled over 40% of the votes in Cape Town, and the ANC nearly 40%. The next city government is balanced on a knife's edge.

I believe this week's Cassandra complex misses the mark. In its own right, 40% of the vote in Cape Town is hardly insignificant. This 40% is the DA's core constituency: 40% of the voters of Cape Town vote DA when they are asked. We've known the extent of our core constituency since about 1998 or 1999. Before that, many of those people voted National Party in the past and, in fact, nearly all previous National Party supporters now vote DA. This should surprise nobody, and can be instantly verified by cross-checking with the results of previous elections in which the Nats participated.

The support for the DA in other cities is quite as resilient, and similarly shouldn't be trivialised. In Johannesburg our share of the vote is slightly eroded, but in Pretoria it is slightly increased. The DA's not going to disappear, it is not in decline, and we have no reason to think that the writing is on the wall.

So why is everybody worrying about Cape Town? Because the DA vote went from 53% last election to 41% in this? Laurence Caromba says: 'The problem is that as fast as the ANC is losing support, the DA is losing it faster.' Let's now look at that.

Some observers look at a 'decline' of support for the DA from the 53% in 2000 that created a government (later demolished by floor-crossing) to 41% in 2006 and describe it as an absolute decline in DA support. This is ludicrous. We know where those 'missing votes' are - in the back pocket of the Independent Democrats. Do the maths. If you add the ID's vote to the DA's you are back where you started in 2000 - or, indeed, 1994. The ANC has made no gains, and the DA's message of 'don't split the opposition vote' is precisely on target.

I don't for a minute want to describe the ID's support as somehow illegitimate. On the contrary, we in the DA should be asking ourselves hard questions about how it came about that this new party can take a fifth of the vote away from us. We just know that these voters will be disappointed at the next floor-crossing. It will give the ANC a lot of trouble to poach the minimum nine DA councillors in order to erode our elected numbers. But the ANC will find it relatively easy to steal a minimum of three ID councillors. Splitting the opposition vote has never been more dangerous or costly. Maybe we didn't make that clear enough to the voters of Cape Town.

This 10% of voters who lent their support to the ID in this election are not to be dismissed lightly. We know, roughly, who they are. Most of them live in Mitchell's Plain, and some of them live in Atlantis, Kensington, Grassy Park, Lotus River and Ottery. In those suburbs, the vote split three ways. In all of them except Mitchell's Plain the ANC benefitted from the split.

What's psephologically interesting about these voters is that they voted for the Nats in the 1996 and 1999 elections, for the DA in 2000 and for the ID in 2005 and 2006. These are, unexpectedly in South Africa, undecided voters. South Africans believe that voter support for parties is very fixed, and so it is; but here is the great exception.

Electorally, here is a place where the DA must be critical of itself. We have, perhaps, grown excessively used to the idea of a core constituency; and though we work hard during elections to mobilise these people, we do not devote sufficient time and resources to persuading the undecided voters of Cape Town to elect our candidates. We can and will work on changing that. What we know is that this 10% of Cape Town voters have, in the past, voted for the DA, and now vote for the ID. They did not vote for the ANC, and never have. These voters are not the ANC's to gain, they are the DA's to lose.

From a core constituency a party can draw supporters, funds, a definite base of votes and, most importantly, a sense of legitimacy and permanence. In this country, only the ANC, the DA, the IFP and, in a special sense, the ACDP have this kind of legitimacy and permanence. All other parties depend on the degree to which the three biggest parties have tiny undecided margins. The PAC, Azapo and the UDM feed on voters on the periphery of the ANC. The VF+ is absorbs marginal DA voters. The only place in the country where undecided voters are a fairly large block is Cape Town, which explains why some marginal parties like the ID tend to do well here. But the ID requires to do well solely among undecided voters: their support base is volatile and transient by its nature. I will be surprised if ID support stabilises, and will feel vindicated if it evaporates, UDM-style, at the next election.

Whether or not we pursue and persuade this group of 10% undecided voters, the DA simply can't forget the 40% of Cape Town voters who already vote for us. The 40% have always supported the DA, and they really, really matter. At base, it is these people who we must represent most fiercely. We will disappoint them if we spend all our time chasing after new votes at their expense.

Brendan Boyle in the Sunday Times has this about the ANC:

'As the provincial leadership of the ANC hunkered down yesterday to plan its recovery from the electoral disaster wrought by months of bitter party in-fighting, a source said its strategy for the next five years would be "to break the back of the DA in this province".'

Very well then. The DA doesn't wish any harm to come to the ANC or its supporters. Our nation is a liberal democracy, in which people may champion causes that one does not like and with which one does not agree. We in the DA contest the ANC's ideas, policies and government, but we don't oppose their democratic rights.

When the ANC speaks of breaking the back of the DA in the Western Cape, they suggest not only that the ANC does not accept the legitimacy of the opposition party, but they question also the legitimacy of opposition voters. They are actually attacking our core constituency.

And when, in consequence of attacks of this kind, the DA seems pugnacious and inclined not to cooperate with the ANC, we essentially have the interests of our constituents at heart. Ah, but 'the DA simply doesn't seem patriotic enough,' says Laurence. But we are patriotic, in the same sense that our constituents are patriotic. When they and we are attacked by the government of the day we defend the rights to which we are all are entitled, because we are citizens of South Africa. South Africa is not monolithic like the ANC; we are a people of many parts and traditions, and there must be room for all of us. Our definition of patriotism requires a synthesis of these traditions, and we believe that if the back of our liberal tradition is broken, then South Africa will be a much poorer place.

Laurence also says that 'for the good of the both the party and the country, [the current DA leadership] should take the opportunity to usher in a new generation of leaders, and then step aside.' In due course this will happen; and as you rightly say, it will happen for the good of the party and the country. It will not happen now. We elect our leaders in a constitutional manner at the Federal Congress of the DA after sober reflection on the interests of our constituency and our nation.

He continues with 'the DA's biggest mistake was getting too caught up in their own anger towards the government.' We are caught up in a much more general public anger towards the government, Laurence. Forgive me if I mistake you, but I gather you also are angry with the government in many ways. You voted for the DA. Should we not represent your interests? How would it serve better to misrepresent you? What anger should we discard? Should we welcome the Firearms Control Act? Should we practice Aids drugs appeasement? Should we peacefully accept tender corruption as a fact of patriotic South African life? Angry we may be, but we are not unguidedly angry, because there are good reasons to be angry.

And we are not blindly rude to the ANC. The ANC government has done some things well. We may well govern some municipalities with them, perhaps Cape Town itself, but this will not hinder the DA's usual mode of constructive criticism.

Farrel Lifson says that the DA 'desperately need a prominent municipality (like Cape Town) to prove to voters that they are capable of governing effectively and can do a better job than the ANC.' I also think the DA will be more credible when we show we can govern. The point is largely political, though - we can and will represent the interests of our constituency whether or not the DA is in government.

zaBlogger says: 'If current opposition parties can't take a large bite out of ANC support in this environment then frankly they should quietly wander off into the sunset a let a new set of opposition parties/leaders come to the fore.' Must the DA's existence be judged by our ability to destroy or undermine the ANC? We don't accept that. The ANC has its own business to attend to, and we will ever be the faithful watchdog. Our own success will be measured by our loyalty to our constituency.

I'm not sure if a true rebuff was needed to the depressed and anxious articles on the future of the DA. The sense is that the writers all have an interest and enthusiasm for oppositional politics; they fear to be let down by the DA; they fear we will not fulfil the mandate given to us. If I write a rebuff it suggests that I somehow believed their pessimism was fundamentally wrong. It is not wrong to be pessimistic; but pessimism is misplaced. Oppositional politics isn't going away in South Africa, not while the DA can help it. The oppositional mode is needed just as much as ever because the ANC seems to see a chance finally to flatten it altogether.

Do not see the ANC's arrogance as a cause for despair, because it is an opportunity for all South Africans. In the DA we have mobilised potent support against the ANC, as we demonstrated in the local election. Having done that, and so refreshed our mandate, we again will attempt to teach the leaders of the ANC the lesson they must learn: that democracy is a resolution of the many parts of Man.

I got a job

Right guys - I'm employed from the New Year. I can stop wittering about my personal future now and start thinking about the state of the nation.

Delport's reaction to gay marriage ruling

It looks as though the DA's going to class gay marriage as one of those free vote issues. Tertius Delport says he's surprised by the ruling.

Hm.

A debate in the DA about gay marriage is of no material importance towards the process towards legalising marriage for everybody. So I think I'm grudgingly prepared to accept that the DA has a few homophobic members so long as their opinions a) don't have any effect on the rights of gay people and b) don't publicly damage the tolerant reputation of the party. Practical reasons towards internal unity only. But the moment a bigot raises his or her head above the public parapet, you can count on me to take aim. You already know my opinion of Tertius Delport's ability to involve the party in scandal.

The consequences of a breakdown in the tripartite alliance

Political trade unions are common the world around, particularly in countries where the workers speak English: Britain, America, Australia (at least historically, and even then not socialist), Zimbabwe. Among non-English nations: Germany and Poland. COSATU is not shy of political involvement, and might very well pursue the mode of socialist labour party. Our labour movement is not only already politicised, but there are many good international templates they might choose to copy if they abandon the tripartite alliance. And COSATU, or a Workers' Party front uniting them with non-COSATU unions, would surely contest elections after a split.

It's most troubling to imagine the state of the nation after a split. It's not like the deceptively simple breakdown of the DA when the Nats left. The government itself would be destabilised, even if it didn't fall. A conflict between urban and rural people would emerge if COSATU is as electorally strong as they hope. Even if the ANC holds on to the government, the position and credibility of the president and his government would be weakened because he could and would be accused of destroying the power base of the governing party. If the ANC is forced to protect its black African constituency, it might elaborate in unforeseeable ways on an African nationalist project.

This isn't only party-political stuff, people. COSATU leaders must know that a split might well precipitate a South African constitutional crisis. The country's political systems are not well-adjusted to a real contest for power. To begin with, the floor-crossing rules would face a more serious challenge of legitimacy. The extensive pattern of ANC 'cadre deployments' throughout the administration may cause a breakdown in the civil service, pitting ANC ideologists against the COSATU shop-stewards who were their erstwhile colleagues.

But this is the worst that could happen. South Africa would not break down. Civil society can function in South Africa even with unstable democratic government. South Africa actually needs a peaceful constitutional crisis of this kind so as to develop political systems necessary to make democracy permanent.

Highly toxic

Until last week, I'd say the fight between COSATU and the ANC was engineered by COSATU using the well-established second-rank mechanism. The second-rank mechanism is a variety of kite-flying employing spokespeople of an organisation, whose statements can later be 'clarified'. The man who started the fight about Zimbabwe, who issued calls for a blockade at Beit Bridge, and who poked Smuts Ngonyama in the eye about the Telkom deal, is Patrick Craven and he, as COSATU spokesperson, can't be considered anything more than a mouthpiece.

Only on Friday last week Zwelinzima Vavi got involved personally. Thabo Mbeki and Jacob Zuma haven't yet replied in kind; they've just turned Ngonyama and Malusi Gigaba loose.

As usual, all this adds up to another spate of jockeying between the first- and second-strongest partners in the tripartite alliance. People are again talking of a split. But what does it take for COSATU to split from the ANC?

1. Motive. COSATU is going to need a reason to split from the ANC. Not the touted reasons involving tactics in Zimbabwe or Telkom. Rather: when will COSATU get its chance to form a government on its own terms?
2. Opportunity. Political decisions are taken when the omens are good, and at no other time. Observers of the fighting must realise that, to the extent that COSATU wants to break from the alliance, they would prefer the ANC to throw them out. They don't want to secede; voters don't like a loser.
3. A fast getaway. COSATU will need electoral support after the split. They will need exact metrics of how many voters will back them out of the alliance. The moment it looks like they can form a government without the ANC is the moment they'll split. They will also need to split shortly before an election or, if not then, to be sure they can bring down the government and force them to renegotiate power sharing. (An additional requirement is that they must be sure they won't be frozen out if the rump ANC decides to turn to alternative sources of support, such as the DA.)

The ANC must feel very sure that none of the following conditions will emerge any time soon, if can taunt Zwelinzima Vavi by calling him a 'young child'.

What of the role of the non-COSATU unions in all this? Some of those unions, particularly Solidarity, have interests in what's going on at Telkom, and they might be very keen on messages coming out of COSATU about this subject. And I'm guessing that COSATU may have more to say to the non-affiliated unions after a split from the tripartite alliance. Might the emergence of a truly multi-racial labour party be possible after all?

Kent Morkel knew his father

The southern Cape is a funny place for the Democratic Alliance. The split between the liberals and the rump Nats in the Cape Town metropolitan DA is well-known, and I've written about it before.

Many have commented that the DA is essentially an urban party. Some believe that the Western Cape and Northern Cape vary this because of a strong country vote, particularly from coloured agricultural labourers. Whatever the truth, the pattern of the DA's electoral support in the Western Cape particularly profoundly shapes how the party operates internally.

The towns of Knysna, Hermanus and Wilderness are liberal ex-DP havens. Several of the other towns, like George, Oudsthoorn and Calvinia owe their political tradition in the DA to the NNP. And the voting pattern amongst the coloured citizens of the Western Cape hinterland differs from the pattern in Cape Town: the DA finds less traction amongst poor coloured voters in the rural Western Cape, contrasted with strong support amongst poor coloured voters in Cape Town (or at least until the ID stuck its oar in).

The southern Cape's political strength is very much buttressed because the party's Provincial Leader is the mayor of George. He commands loyal support from the ex-NNP south coast, from the conservative west coast and grudgingly from the ex-DP south coast also.

Theuns Botha's position in the party is, therefore, strong. But it is not certain. Added together, his rural support doesn't outweigh the voting strength of the (divided) Cape Town metropolis.

The reason for this is because of the credible claim that the DA is fundamentally an urban party presently - even in the Western Cape. Cape Town provides more than 50% of the votes obtained for the party in the Western Cape, overshadowing the performance of the rest of the province combined. It is always more difficult to create large political organisations in country areas, so the metropolitan DA has a natural advantage, which it could use to dominate the provincial party if so it chose.

But instead, the Western Cape DA attempted to overbalance the provincial constitution's democratic mandate in favour of the rural areas. During the 2004 candidate selection process, the Cape Town DA conceded that the rural party would fill 60% of the seats in the electoral college and the city would fill the remaining 40%. Why? It was claimed that an effort be made to prevent disaffection and walkovers. This effort, if the rationale is accepted at face value, seems to have worked fairly well: the DA in the Western Cape suffered few defections in councils since the general election. In fact, the DA gained the West Coast District Municipality: I doubt this would have been possible without placating the west coast DA. (The electoral college deal was overturned by the DA's Federal Legal Commission, but the result of the electoral college stands because the FLC's decision was not retroactive. Special case, special pleading. But it worked.)

Even this left Theuns Botha a few votes short of a mandate to write his list of candidates for the general and provincial election. So he picked up those votes in the city with a little help from the Morkels. This was an interesting choice of ally, because the Morkels are very far from being exemplary representatives of the ex-NNP faction in the city. They play a different game: populism and patronage.

Since the election, since the cross-over period, certainly since the Provincial Congress, the alliance between the Botha faction and the Morkels appears to have died. Kent is supposed to have called in the favour of his electoral college support by being voted DA chairperson. But this is a small play. The urban claim on the province's party structures has grown constitutionally and is restored to its 50% representation in party structures. The urban voice is not that of the Morkels or the ex-NNP faction but that of Helen Zille speaking her clarion voice in Parliament. The country vote, led by Theuns Botha, is scarcely heard.

And now Kent Morkel has admitted to taking about R10000 from the micro-finance company Gilt Edged Management Services (GEMS). This, he says, was for organising a meeting between them and the South African Municipal Workers' Union representing workers in George. The purpose of the meeting was to get some SAMWU applications to GEMS processed administratively by the municipality. Because he wasn't a councillor in that municipality, he believed he was entitled to claim a fee for that work.

Kent was intelligently interrogated by John Maytham a few days ago on Cape Talk. Did he have a contract from GEMS for arranging the meeting? No. Did he pay tax on his earnings? No direct answer. Kent claimed that he had a receipt for the money, and this had to prove that his intent was honest because people don't sign receipts for bribes. What is the truth? The truth is that Kent's career is at the mercy of DA members who must ask whether or not the Morkel reputation is permanently damaged. The truth is that party machinists and brokers have one less faction to manage.

Kent's political fate will be an interesting barometer of the fortunes of the Western Cape DA factions. Kent Morkel seems already to have spent his political capital; his brother Craig's career languishes for so long as the Travelgate scandal is unresolved; their father Gerald is loved by a few, but hated by far too many; the ex-NNP faction is silent; and the Western Cape DA speaks loudest in the voice of Helen Zille.

Intermission

Dear readers: I'm busy trying to find a new job. I won't bore you with the details. This is taking a lot of time in my day, and for reasons of priority DA mal is playing second fiddle.

Profound apologies. I will make post about Kent Morkel now by special request, but will resume regular posting, perhaps with an elaboration on my job situation, after I'm fully employed once again.