SALGA LIMPOPO SPEAKER S FORUM PRESENTATION BY SPEAKER

SALGA LIMPOPO SPEAKER ’S FORUM PRESENTATION BY SPEAKER OF COUNCIL: CLLR MORAKANE MOSUPYOE-LETSHOLO ON INSTITUTIONALISING THE CITY’ S GOVERNANCE MODEL, OVERSIGHT PROCESSES INCLUDING DETERMINATION OF COUNCIL BUSINESS

BACKGROUND In order to strengthen governance at Local Government level the City of Tshwane Metropolitan Council engaged in a process of separating powers between the Executive and the Legislature (Council). This was done as a tool to improve the following: • Public Participation • Law Making process (By-Law process). • Oversight and Accountability It was envisaged that this will clarify the role between the Executive and Council, as well as hold the Executive accountable to Council. Due to lack of existing legislative models the City adopted a Governance Model.

1. • • GOVERNANCE MODEL FOR THE Co. T The previous Section 80 approach (where MMCs were the chairpersons) resulted in a situation where it could be argued that the Executive was both referee and player at the same time. With a view to strengthen the oversight function and to bring about a clear distinction and separation of powers between the Executive and Legislature, the Council on 9 June 2011 adopted a New Governance Model for the Co. T, by disestablishing then ten (10) Section 80 Portfolio Committees and establishing Section 79 Oversight Committees. Eleven (11) Section 79 Oversight Committees and five (5) Section 79 Standing Committees are currently fully operational and are chaired by non executive fulltime Councillors. Chairpersons of Section 79 Oversight and Standing Committees were appointed by Council.

2. PURPOSE OF SECTION 79 COMMITTEES • The Section 79 Oversight and Standing Committees are used to strengthen Council’s oversight role on the Executive. It puts Council in a position to: ►Determine priority areas for oversight in respect of each Committee; ► Provide the respective Committees with guidelines on how to deal with and implement their oversight role; ► Ensure oversight reports are written within the required format and according to approved guidelines (Circular 9); ► Ensure that departments receive oversight reports and provide feedback within the stipulated timeframes provided; ► Evaluate the oversight process at regular and appropriate intervals; ► Monitor and evaluate each department’s performance against departmental SDBIPs and the allocated budget ; ► Evaluate critical success factors; and ► Ensure that proactive and reactive investigations/inspections in loco are conducted as and when required. ► The Section 79 Oversight Committees have 3 functions namely: 1) scrutinising reports referred to them by Council emanating from the Executive Mayor and/or Mayoral Committee and advising Council; 2) an oversight role on the performance of the Executive on behalf of Council; and 3) an advisory legislative role. • Reports which serve before the Oversight Committees are reports legislatively reserved for approval by Council i. e. By-laws, policies of the municipality, the IDP, the budget, tariffs, alienation of immovable property, etc.

• Oversight Committees may from time to time request the Executive to make representations to the committee and/or submit reports on the work of the Executive. • S 79 Oversight Committees monitor the delivery and output of the Executive and may therefore request departments and MMCs to account on matters serving before such S 79 Oversight Committees. • Oversight Committees may summon MMCs to appear before them and to produce any additional documents required for clarity on matters before the Oversight Committee. • • Section 79 Committees submit reports to Council in line with the City’s legislative an policy directives. The monitoring role of these Committees may be extended to: ► ► Convening public hearings on proposed by-laws and/or policy, Calling for evidence, including summoning MMCs and officials to appear before the Committee and to produce any documents required. • Standing Committees are committees established to deal with any Council matter. These Committees are advisory committees of Council with no decision-making powers related to the business of Council and are also required to submit reports to Council from time to time. • Standing Committees may also request departments and MMCs to account on the exercise of their function. • Non Executive full time Councillors chair all Standing Committees.

• A typical report flow process in terms of the structure can be illustrated as follows: Municipal Departments Mayoral Committee Clusters Mayoral Committee Executive Mayor Council Speaker Chairperson of Committees Section 79 Oversight and Standing Committees

3. • v v v THE EXECUTIVE STRUCTURE The Executive Structure comprises of the following: The Executive Mayor; The Leader of Executive Business; The Mayoral Committee; The City Manager and Deputy City Managers; Heads of Departments. 4. THE LEGISLATURE/OVERSIGHT STRUCTURE • The Council Oversight/Legislature Structure comprises of the following: v The Speaker – Chair of Council; v Chairperson of Committees (Chair of Chairs) ( Waiting political decision on the status of this position); v Chairpersons of Section 79 Oversight Committees for each function; v Chairpersons of Section 79 Standing Committees. v City Manager v Secretary to Council ( Strategic Executive Head: Secretariat of Council)

5. • 6. DECISION-MAKING AT EXECUTIVE LEVEL If a matter cannot be disposed of by the administration, this matter is referred to the relevant MMC to dispose of by means of the delegated powers assigned to them by the Executive Mayor or the matter must be referred to the Executive Mayor where the MMC does not have the delegated powers. Where the Executive Mayor wishes to deal with the report on a collective basis or where Council specifically requires the Executive Mayor to dispose of a matter through the Mayoral Committee collective, the report is referred to the Mayoral Committee for finalisation. DECISION-MAKING AT LEGISLATURE LEVEL • Where, in terms of the approved Corporate System of Delegations, an item requires Council approval / decision, the Executive Mayor / Mayoral Committee will submit such an item directly to Council for a decision / approval. • Council will either take a decision on such an item during its sitting or refer an item to one of its Section 79 Committees for further interrogation and advise to Council. • Such an item will then be tabled in Council by the Chairperson of the S 79 Oversight Committee with additional recommendations from the relevant S 79 Oversight Committee

2. DETERMINATION OF OFFICIAL COUNCIL BUSINESS • The foundations of Council Business and Functions of Speakers are enshrined in the following legislation- 1. THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA, 1996 • Chapter 7, Section 151 to 164 – Speakers must note, among others, in particular- Section 152(1)(a) “the objects of local government are to provide democratic and accountable government for local committees” • (my emphasis) - Section 152(1)(e) “the objects of local government are to encourage the involvement of committees and community organisations in the matters of local government” (my emphasis) - Section 160(1)(b) “A Municipal council must elect a chairperson”, i. e. a Speaker - Section 160(4)(b) “No by-law may be passed by a Municipal Council unless the proposed by-law has been published for public comment” (my emphasis)

2. DETERMINATION OF OFFICIAL COUNCIL BUSINESS 2. THE LOCAL GOVERNMENT MUNICIPAL STRUCTURES ACT • Speakers must note, among others, in particular- - Section 18(2) “A municipal council must meet at least quarterly” Section 18(4) “A municipality has the power to designate councillors determined by the MEC for local government as full-time” Section 19(3) “A municipal council must develop mechanisms to consult the community and community organisations in performing its functions and exercising its powers” (my emphasis) Section 29(1) “The Speaker of a municipal council decides when and where the council meets” Section 30(4) “If on any question there is an equality of votes, the councillor presiding must exercise a casting vote in addition to that councillor’s vote as a councillor” Section 31(1) “A municipal council must conduct its business in an open manner, ”

2. DETERMINATION OF OFFICIAL COUNCIL BUSINESS • • • - Section 37(2) “At its first sitting after its election, a municipal council must elect its speaker from among its councillors” Section 37 “The Speaker of a municipal council(a) presides at meetings of the council (b) performs the duties and exercises the powers delegated to the Speaker (c) must ensure that council meets at least quarterly (d) must maintain order during meetings (e) must ensure compliance in the council and council committees with the Code of Conduct for Councillors (f) must ensure that council meetings are conducted in accordance with the rules and orders of the council. Section 41 “If the speaker of a municipal council is absent or not available to perform the functions of speaker, the council must elect another councillor to act as speaker” Section 73(1) “If a metro or local council decides to have ward committees it must establish a ward committee for each ward in the municipality”

2. DETERMINATION OF OFFICIAL COUNCIL BUSINESS - Section 79(a) “A municipal council may establish one or more committees necessary for the effective and efficient performance of any of its functions or the exercise of any of its powers” Section 81(1) “Traditional authorities that traditionally observe a system of customary law in the area of a municipality, may participate through their leaders, identified in terms of sub-section 2, in the proceedings of the council of that municipality, and those traditional leaders must be allowed to attend and participate in any meeting of council” 3. THE LOCAL GOVERNMENT: MUNICIPAL SYSTEMS ACT • Speakers must note, among others, in particular- - Section 5 “Rights and duties of members of local community” Chapter 4, “Community Participation” (Sections 16 – 21) Section 54 “The Code of Conduct contained in Schedule 1 applies to every member of a municipal council” Section 59 “A municipal council must develop a system of delegation…. . ”

3. HOW TO MANAGE COUNCIL MEETING (CORPORATE SYSTEM OF DELEGATIONS) • The City of Tshwane reviewed its Corporate System of Delegations through Council resolution of 26 January 2012, inclusive of officials’ and political office bearers’ delegated functions, powers and duties.

3. HOW TO MANAGE COUNCIL MEETINGS (CODE OF CONDUCT FOR COUNCILLORS ) • Schedule 1 (Municipal System Act), contains the Code of Conduct for Councillors to which all Councillors, part-time and full-time, must abide • The Speaker, in terms of Item 13(4) of the Code, must ensure that each Councillor has a copy of the Code and that a copy is available in every room or place where the Council or its Committees meet • The Speaker is the custodian of the Code of Conduct for Councillor

3. HOW TO MANAGE COUNCIL MEETINGS (RULES AND ORDERS BYLAW) • • • The City of Tshwane saw its most recent amended Rules and Orders By-law (providing the City with legislative measures to conduct orderly meetings of the Council and its Committees) promulgated on 14 January 2013 The Speaker must ensure that each Councillor has a copy of the Rules and Orders By -law. The Speaker is the custodian of the Rules and Orders By-law The Speaker applies the provisions of the Rules and Orders diligently, consistently and in an unbiased manner during Council meetings (as do the Chairpersons of Section 79 Committees during their meetings) Unacceptable conduct by Councillors or alleged breaches of the Rules and Orders, are upon such decision referred to the Section 79 Rules and Ethics Committee for investigation and a report-back to Council

4. View on matters of Municipal Governance: Recent 53 the Conference

4. View on matters of Municipal Governance: Recent 53 the Conference • The Conference noted the lack of clarity on the role of different functionaries in governance of municipalities and the need for more effective governance of municipalities and thereafter resolved as set out below: v There should be greater separation of the executive and legislative arms of municipalities (City of Tshwane adopted the governance model in June 2011) v There should be more effective oversight of the executive by Council and Council Committees (The Implementation of the model is an on-going process).

4. View on matters of Municipal Governance: Recent 53 the Conference v The Council oversight Committees should be properly resourced and capacitated ( All posts on the structure that supports the oversight committees are in the process of being filled and adequate funds are requested in the 2013/2014 financial year) v Where affordable, Chairs of Council Committees should be full time ( Council approved the full time status of Chairpersons of Committees after the MEC s proclamation)

4. View on matters of Municipal Governance: Recent 53 the Conference • A policy paper be developed on the greater separation of the executive and legislative arms of the municipalities, taking into consideration the need for a differentiated model of local government ( Co. T through Gauteng Legislature is contributing towards the development of the said paper which might culminate into a legislative framework)

5. CONCLUSION • In conclusion – Council meetings can only be managed effectively by observing and adhering to • the Council’s Governance Model • the Corporate System of Delegations • the Code of Conduct for Councillors • the Rules and Orders By-laws

Typical Illustration of oversight

• “A Life spent making mistakes is not only more honourable, but more useful than a life spent doing nothing” by George Bernad Shaw • Ke a leboga