Can councillors be legally prohibited from engaging residents and/or advisors before an item is tabled in a Committee or Council?

Matters affecting municipalities have become more and more important to residents. Given the constitutional objective to encourage the involvement of communities and community organizations in matters of local government, how elected councillors are allowed by their respective councils to engage with residents, determines whether residents truly believe that their councillors are genuinely interested in their views.

Ward councillors are the representatives of their respective wards. Half of the councillors in a municipality are appointed to councils based on their position on the party list supplied to the Electoral Commission of South Africa (IEC). However, they all have, according to me, a legal duty to represent the residents within the jurisdiction of a municipality in council.

In the Rustenburg Local Municipality, with a system of an executive mayor and mayoral committee, the Rules of Order prohibit a councillor from disclosing, and therefore from engaging, any third party on an item to be tabled in a Committee or Council. The prohibition of unauthorised disclosure of any privileged or confidential information of the council or committee referred to in section 10 of the Code of Conduct for Councillors is understood and makes sense. A blank prohibition, as is done in the Rustenburg Rules of Order, is not supported. Is such a prohibition legal or constitutional? Put differently: Does it meet the constitutional obligations of transparency and participatory democracy? My humble opinion is that it does not.

The Rules of Order By-Law of Rustenburg Local Municipality has been promulgated in the Provincial Gazette (North West), No.7788 of 8 August 2017. Chapter 6 of the Rules lists and deals with all committees, including all ten section 80 committees (portfolio committees supporting the mayor) as well as council committees. The council committees are the Rules of Order Committee and Municipal Public Accounts Committee (MPAC). The heading of section 130 under the same Chapter reads “Confidentiality, prohibition on publishing of reports or disclosing of documents” and provides, amongst other things:

(1) “All reports considered or to be considered by any Committee must be treated as confidential and shall not be disclosed to any member of the public or media, provided that resolutions on reports dealt with in terms of delegated powers may be disclosed.   

(2) Any member of any Committee who publishes or discloses or causes to be published or disclosed any document…. or the agenda or minutes or document or records, or any part thereof, of the Council in committee or another committee of the Council, or any matter the publication or disclosure of which or might be prejudicial to the interests of Council, shall be guilty of an offence”.

 The word “offence” has not been included in section 1 under definitions in the Rules of Order By-law or the definitions incorporated in section 1 of the Municipal Systems Act, 32 of 2000 or in Schedule 1 to the Act, which covers the Code of Conduct for Councillors. The above must then be accepted as defining an offence related to the prohibited disclosure in section 130(2) of the Rules of Order. The only other reference closest to a definition of “offence” can be found in section 138 of the Rules of Order under the heading “Penalties”. It reads as follows: “Any person, who contravenes or fails to comply with any provision contained on this by-law, shall be guilty of an offence and liable, on conviction, to such penalty as prescribed”. No penalties have been prescribed in the Rules of Order By-law. Sections 173(4) and 173(5) of the Municipal Finance Management Act (MFMA), 56 of 2003, defines offences committed by councillors in terms of the MFMA. Section 174 provides severe penalties for these offences.  

One can understand the prohibition on the Council-in-Committee, provided it does not include matters that are not prohibited from disclosure under the Promotion of Access to Information Act, 2 of 2000 (PAIA). I have seen Rules of Order of other Councils where disclosure is linked to the provisions of PAIA. I prefer such an approach, as disclosure is then linked to the constitutional right to access to information as embodied in PAIA.

It is important to note that all reports that served before any committee will eventually be tabled in council with the recommendations of the committee. In practice, councillors are therefore prohibited from engaging any resident and/or advisor before they have resolved, as councillors (read representatives of residents in the area of jurisdiction), on an item tabled in council. Does it imply that a councillor is prohibited to even ask the input of his or her political party on an item to be tabled in any committee or council? In my view, a narrow interpretation of the prohibition would prohibit a councillor in Rustenburg to engage with any other member of his or her political party who is not a councillor in Rustenburg. Does such a prohibition meet the constitutional obligation of transparency and participatory democracy? I for one doubt that it does.

How can any councillor represent any resident in a committee or council if he or she is not allowed to obtain a resident’s opinion before he or she partakes in a discussion on it in a committee or council or vote on an item tabled in a committee or council? In my view, this prohibition negates the constitutional rights of community members to be engaged at a time when their input can still make a difference in the decisions of the committee or council.

I am also of the view that Chapter 4 of the Municipal Systems Act supports the view expressed. Public participation, in my view, should not be limited to those areas where participation is legislated as compulsory. Section 17(1)(d) of the Municipal Systems Act specifically mentions that councillors are instrumental when it comes to participation of the local community. I do not think participatory governance was intended to be limited to the Integrated Development Planning (IDP), performance management, the annual budget and strategic decisions relating to the provision of municipal services. Many items, which cannot be defined as forming part of compulsory disclosure, are tabled in committees or council. Councillors should, in my view, not be prohibited to obtain the view of the community on those. How can councillors be viewed as a mechanism through which the local community can participate in the affairs of their municipality if councillors are prohibited from obtaining their views, which can only be obtained by disclosing what will be tabled in the committee or council, except those items indicated as “privileged or confidential” or to be dealt with in-Committee, as indicated in Section 10 of the Code of Conduct for Councillors? 

Likewise, Chapter 5 of the Rules governs “Mayoral Committee Meetings”. The heading of section 121 reads as follows: “Prohibition on Publication or disclosing documents”. The provision states that: “Any member of the Mayoral Committee who publishes or discloses or causes to be published or disclosed any document or record of the proceedings of the Mayoral Committee or any matter the publication or disclosure of which would or might be prejudicial to the interests of the Mayoral Committee, shall be guilty of an offense”. Some matters are delegated to the Executive Mayor and he or she reports on his or her decisions to the Council. He or she is supposed to be supported by the members of his or her Mayoral Committee, who are also the chairpersons of the portfolio committees (committees established in terms of section 80 of the Municipal Structures Act). It follows that a member of the Mayoral Committee cannot give an item tabled in the Mayoral Committee to a resident and/or advisor and ask his or her opinion. In this way, the only expertise available to the Mayoral Committee are the members of the Mayoral Committee. On a close reading of the Rules, they seem to be prohibited from disclosing an item that served in a Mayoral Committee to an ordinary (part-time) councillor who does not sit in the Portfolio Committee that dealt with the item. I fail to see that this could have been the intention of our constitutional fathers and mothers.       

Section 2(b)(ii) of the Municipal Systems Act determines that a municipality also consists of “the community of the municipality”. In section 1 of this Act, “community, in relation to a municipality, means that body of persons comprising –

(a) The residents of the municipality;

(b) The ratepayers of the municipality;

(c) Any civic organisations….; and

(d) Visitors and other people residing outside the municipality who, because of their presence in the municipality, make use of services or facilities provided by the municipality”

It follows that good governance and the definition of representation would require a councillor to be allowed to engage the “community” before he or she takes a decision on an item to be tabled in committee or council. If he or she is prohibited from engaging the “community” or even advisors to his or her political party on provincial and/or national level, can he or she really claim he or she represents the “community” in council?

A ward councillor, who chairs ward committee meetings, is likewise then prohibited from asking the views of his or her Ward Committee before attending a meeting of any committee or council. It goes against the spirit of our whole system of ward committees or if you like, participatory democracy.

What sense is there in the object of local government found in section 152(1)( e) of the Constitution,  namely “to encourage the involvement of communities and community organisations in the matters of local government” if councillors are prohibited from disclosing an item or engaging any third party before resolving or making a recommendation on local government matters in any committee, including the mayoral committee, portfolio committees and/or any committee of council, like the MPAC?

Said prohibition negates, in my view, the basic values and principles governing public administration found in section 195(1) of the Constitution, and specifically the values and principles found in the following sub-sections:

(e) “People’s needs must be responded to, and the public must be encouraged to participate in policy-making; and

(g) Transparency must be fostered by providing the public with timely, accessible and accurate information”

What value do the above basic values and principles have for residents, ratepayers and/or civic organisations if councillors are prohibited from engaging them on items to be tabled in a committee or council?

Much more can be said about the topic, but the above should suffice to get readers to think and apply their minds on the matter. Most households spend an ever-increasing portion of their monthly income on paying municipal bills and it is only fair to expect from their councillors to obtain their input before taking a resolution on any matter. It is telling that I could not find such a prohibition in the proposed “Standing Rules and Orders” drafted by the South African Local Government Association (SALGA) for their members. The prohibition in the Rules of Order is in my opinion unconstitutional. A blank prohibition, as currently practised by the Council of the Rustenburg Local Municipality, is not supported. Any input from readers will be welcomed - in the interest of the communities of Rustenburg, councillors who can only disclose information after they have resolved on a matter and the public at large in South Africa. 

By Frans Rootman (Guest Contributor)

Rustenburg

The author is the founding member of Munsolve CC, a close corporation supporting municipal account holders in obtaining accurate municipal accounts from their municipalities. He is advocating proper service delivery, good governance and effective administration by municipalities and is vocal about accountability to residents. 

Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect those of the Dullah Omar Institute.

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