Towards professionalising local government: The Crisis of undue political interference in municipalities

The importance of political parties to representative democracy is well documented. In South Africa’s municipal councils, a majority of councillors serve at the behest of their political parties. Councillors, especially those who serve in the municipal executive, work closely with the municipal manager (MM) who is responsible for ensuring an effective, efficient, and accountable administration.

The MM and managers directly accountable to the MM, the so-called “section 56 managers”, are key drivers of organisational change and exercise important functions such as resource mobilisation, monitoring compliance with legislation, overseeing performance management, maintaining records, and the implementation of municipal policies.

The municipal executive exercises political oversight over the municipal administration to ensure that the administration functions properly. To this extent, the municipal administration is exposed to the risk of undue political interference from local politicians. This article discusses the issue of undue political interference in municipalities and reflects on the judgment of South African Municipal Workers Union v Minister of Cooperative Governance and Traditional Affairs and Another (J945/2023) [2023] ZALC (17 November 2023), in which the Labour Court grappled with this issue.

What is undue political interference?

Councillors are, in general, prohibited from interfering with the administration. Item 12 of the Code of Conduct for Councillors in the Local Government: Municipal Structures Act, provides strict circumstances in which councillors may lawfully interfere in the management or administration of the municipality. A councillor may not interfere, except as provided by law i.e. in the manner envisaged by the legal provision and for the legitimate purpose that the exercise of such provision is meant to achieve.

Item 12 of the Code further suggests that councillors can interfere when they act upon a mandate by the council and give instructions to municipal employees if authorised to do so by the council. Beyond these limited circumstances, interference by councillors in the administration is unlawful and amounts to undue political interference.

It can, thus, be deduced that political interference in the municipal administration by local politicians who are not councillors is automatically unauthorised and constitutes undue political interference. The above exception applies exclusively to councillors in the municipal council. An inference can, thus, be drawn that the conduct of a municipal employee which is aimed at influencing decision-making in top management structures for the improper purpose of advancing political objectives in the municipal administration is unauthorised, unlawful and constitutes undue political interference. Such conduct ought to amount to gross misconduct for which a sanction of dismissal should be considered in appropriate circumstances.

Evidence of cases of undue political interference in municipal administrations

The issue of undue political interference in municipal administrations is a longstanding problem in local government. A 2009 Research study, undertaken by de Visser, Steytler and May, established that political interference is one of the main institutional challenges that impede sound governance in municipalities. The researchers found extreme cases of political interference which involved the appointment of “party office holders” to the municipal administration. They found that “it is not uncommon for senior management to be populated by party officials”. The report recommended that consideration be given to a legislative provision that prohibits party officials from being municipal employees.

The adoption of reforms to reduce undue political interference in the municipal administration.

The insertion of section 56A to exclude top management officials from occupying political office

The adoption of the Local Government: Municipal Systems Amendment Act 7 of 2011 was aimed at, among other things, responding to the problem of undue political interference in municipal administration through the insertion of section 56A. This provision effectively bars MMs and section 56 managers from holding political office in a political party, whether in a permanent, temporary or acting capacity. Hence, the provision limits the political rights (section 19 of the Constitution) of individuals employed in these capacities. In South African Municipal Workers Union v Minister of Co-Operative Governance and Traditional Affairs and Others (CCT54/16) [2017] ZACC 7 (9 March 2017), SAMWU brought a substantive challenge to declare section 56A of the Amendment Act invalid on the basis that the provision constituted an unjustifiable limitation of, section 19 political rights. The Court, having found that the entire amendment unconstitutional on procedural grounds for want of non-compliance with section 76 of the Constitution, declined to decide on the substantive challenge (see para 96). The Court ordered Parliament to correct the defect which led to the declaration of invalidity of Act 7 of 2011. This resulted in the promulgation of the Local Government: Municipal Systems Amendment Act 3 of 2022.

The insertion of section 71B to exclude all municipal staff from occupying political office

In Act 3 of 2022, the drafters of the legislation sought to widen the restriction of the involvement of party office holders in the municipal administration. This was achieved by inserting a new section 71B, which expands the limitation of political rights to all staff members by barring staff members from holding political office in a political party, whether in a permanent, temporary or acting capacity. In South African Municipal Workers Union v Minister of Cooperative Governance and Traditional Affairs and Another (J945/2023) [2023] ZALC (17 November 2023), SAMWU again challenged this amendment by arguing that barring municipal employees outside the top management structure is unconstitutional and invalid. In the absence of any procedural arguments against Amendment Act 3 of 2022, the Labour Court was compelled to decide this substantive challenge.

Section 71B of Act 3 of 2022 declared unconstitutional and invalid

SAMWU submitted before the Court that there may be legitimate reasons for limiting the political rights of senior municipal management since these managers exercise significant influence over municipal resources and policies. This situation increases the potential for a conflict of interest between their fiduciary duties as employees and the interests of the political organisation in which they hold positions. It was, thus, argued by the Union that section 71B, to the extent that it applies to and limits the political rights of all municipal employees including, technicians, receptionists, gardeners, librarians, or artisans who are far removed from the realm of municipal decision-making, is substantively irrational because it is not connected to a legitimate governmental purpose. The Labour Court concurred and declared section 71B of Act 3 of 2022 unconstitutional and invalid. The order of invalidity was referred to the Constitutional Court for confirmation, as required.

Opinion

Undue political interference in the municipal administration is a reality in many municipalities across the country. Reports of the Auditor General of South Africa provide direct substantive proof of this culture which prevails in these municipalities. These reports indicate a general trend of councillors being involved, directly or indirectly, in procurement processes, approving irregular appointments in top management structures, and formulating networks within municipal administrations to facilitate illicit cashflows, among other ills. Undue political interference poses a major risk to professionalism in municipal administrations and makes them vulnerable to capture by political elites. In this way, service delivery is no doubt compromised as resources are wasted and used for unauthorised and unintended purposes. The objective of SALGA and the Department of Cooperative Governance and Traditional Affairs (CoGTA) to reduce undue and unwarranted political interference in the municipal administration is thus a legitimate governmental purpose that must be achieved through legislative and other measures. In instances where such measures or reforms have the effect of limiting one or more rights in the Bill of Rights, the least restrictive means must be used to achieve this purpose. In addition, there should be a rational nexus between the measure adopted and the purpose it aims to achieve.

By Jennica Beukes, Legal practitioner and Doctoral Researcher