1. PRESENTATION TO THE SELECT COMMITTEE ON COOPERATIVE GOVERNANCE AND TRADITIONAL AFFAIRS
REGULATIONS ON THE PARTICIPATION OF MUNICIPAL STAFF MEMBERS IN THE ELECTIONS
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2. 1. BACKGROUND
This regulation represent the departure from a dispensation that did not prescribe limits and conditions for the participation of municipal staff members in any election to the dispensation that prescribes such limits and conditions.
These Regulations are in terms of Section 71A of the LG: Municipal Systems Act,2000 ( Act No. 32 of 2000) as amended in 2008.
This provision of the Act empowers the Minister to prescribe limits and conditions in a form of regulations for all municipal staff members who during election period stand to be elected into public office.
d) Participation by public servants in the election as candidates in the National and Provincial sphere are regulated through the Public Service Regulations, 2001 that prescribes limits and conditions for public servants.
e) The participation of municipal staff members in the National, Provincial and Local government spheres has been regulated by legislation only without prescribed limits and conditions.
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3. 2. PROVISIONS OF THE REGULATIONS
Regulations 1 and 2 provide respectively for definitions and the scope of application for the regulations;
Regulation 3 provides for conditions applicable to a staff member after being issued with a certificate by the IEC as a candidate for public office, a staff member shall be deemed to be on annual leave from the date following the date on which the certificate was issued;
Regulation 4 provides for steps that should be taken by the municipality to ensure maintenance and continuity of job functions and services;
Regulation 5 provides for staff members with performance agreements who are on leave that the municipality shall ensure that arrangements are made to continue with all performance objectives and time-frames as set out in the performance plan of such staff member;
Regulations 6 and 7 respectively provide for the prohibition of the usage of municipal equipments and facilities and municipal data and information;
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4. 2. PROVISIONS OF THE REGULATIONS (CONT)
f) Regulation 8 prohibit the use of services of any staff member by the candidate, or acceptance of assistance from any other staff members for the purpose of promoting his or her candidature in elections;
g) Regulation 9 provides for municipality’s right to urgently request critical information and documentation for the purposes of business continuity and management of the municipality;
h) Regulation 10 provides for consequences should there be any breach of these regulations; and
i) Regulation 11 and 12 respectively provide for the short title of these regulations, and the effective date of these regulations.
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5. 3. IMPLICATIONS
Municipalities will be able to effectively manage staff members who participate in any election;
Participation of municipal staff member in any election would have consequences;
A municipal staff member would be deemed to have resigned from his/her employment from the date of occupation on a full time basis, either in the national Parliament, Provincial Legislature or Municipal Council;
a municipal staff member who is a candidate for any election and is not elected to public office will retain his/her employment in the municipality;
municipal staff member who chooses to participate as a candidate for any election and is issued with a certificate in terms of section 31(3) Electoral Act,1998 shall take leave from not later than the next working day;
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6. 3. IMPLICATIONS (CONT)
f) Protects municipality’s resources against misuse by municipal staff members who chooses to stand for public office;
g) Regulations will apply uniformly across all municipalities; and
h) The proposed regulations would also ensure stability, in the administration of the municipality and continuation of uninterrupted service delivery during a period of any election.
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7. 4. DEPARTMENTS AND ORGANISATIONS CONSULTED
a) All Provincial Departments responsible for local government
b) South African Local Government Association.
c) The Department of Public Service and Administration
d) The South African Local Government Bargaining Council
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8. 5. SELECT COMMITTEE COMMENTS ON THE REGULATIONS
The comments were in a form of questions and concerns, they are as follows:
a) Whether prior to the election corrupt interaction between candidates and municipal electoral officers will be prevented by the draft regulations;
b) How will COGTA limit corruption in the period leading to the election;
c) Draft regulations need to be specific to ensure effective monitoring activities of such candidates prior to the election;
d) Whether candidates must resign once declared their candidacy;
e) The municipal election will be politicised rather than being solely about the local communities; and
f) Concern about loophole where full time councillors shall also hold job elsewhere.
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9. 6. RESPONSE TO THE SELECT COMMITTEE COMMENTS ON THE REGULATIONS
a) In limiting corrupt practices, Regulation 3(2) stipulates that a candidate would not have access to municipal resources which would advantage him/her prior to the election because he/she will be on leave. Any corrupt practices prior to the election shall be considered as misconduct by any official and the necessary steps shall be undertaken by the municipality.
b) In terms of Regulation 3(4) a candidate shall resign only if is elected as member of the National Assembly, Provincial Legislature, nominated to the National Council of Provinces, or elected as a municipal councillor who is designated as full time.
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10. 7. PORTFOLIO COMMITTEE COMMENTS ON THE REGULATIONS
The comments were in a form of questions and concerns, comments are as follows:
a) Clarity is sought whether contracted municipal workers could still work for a municipality when they are candidates in the election and do not get elected;
b) Clarity on the timeframes for issuing of an official candidacy certificate from the IEC;
C) Candidates who are employed by the municipality must be given an ordinary citizen status when entering a building they are employed prior to the election which they intend to contest as candidate, in order to prevent corruption; and
d) Members suggested that the department consult with SAMWU and other organised labour prior to the promulgation of this regulations
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11. 8. RESPONSE TO PORTFOLIO COMMITTEE COMMENTS ON THE REGULATIONS
a) Municipal Staff Member who is contracted to the municipality is regarded as an employee of the municipality.
b) The issuing of a candidacy certificate by IEC would be a maximum of
20 days and a minimum of 2 weeks.
c) In limiting corrupt practices, Regulation 3(2) stipulates that a candidate would not have access to municipal resources which would advantage him/her prior to the election because he/she will be on leave. Any corrupt practices prior to the election shall be considered as misconduct by any official and the necessary steps shall be undertaken by the municipality.
d) SAMWU and IMATU are consulted ( see attached comments)
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12. 9. COMMENTS RECEIVED
Comments were received from the following organizations:
a) The Department of Public Service and Administration;
b) Uthungulu District Municipality;
C) City of Cape Town Metropolitan Municipality
d) Western Cape Provincial Department of Local Government
e) IMATU
The South African Local Government Bargaining Council and SAMWU are not yet received.
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13. THE END
1/17/2019
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