By JONATHAN WALTON
|“Democracy requires that citizens be continuously engaged in governance through interaction with those who make decisions. Marking a ballot and dropping it into a ballot box every few years is an important element of democracy, but it is only one step in building a society that genuinely serves the interests of all its people. Those elected to make policy and laws on behalf of the people are required to fulfil their mandate in continuous consultation and dialogue with the citizens on whose behalf they act. In South Africa, the gap between those with the resources to influence government and those whose influence, for historical reasons, is limited by poverty and disadvantage is deep and wide. Thus there is a genuine danger that, while the voices of the powerful may be heard, the majority remain imprisoned in the silence to which their history and circumstances have condemned them. If these imbalances are allowed to persist, we will be jeopardising our transformation into a meaningful democracy. By failing to create and maintain the channels through which the majority of the people may express their views and participate in decisions that affect their lives, we will reinforce patterns of marginalisation and exclusion. The reconstruction and development of our society cannot be reduced to words on paper. We must secure and maintain consensus among all our people – by involving them, empowering them and engaging them in the issues at the very heart of transforming our society. The voices of the people must be heard in our legislative and executive institutions, but this will not happen if we sit back in our committee meetings and offices. We need, instead, to seek out those voices and opinions and facilitate ways and means of engaging all sectors of society in crucial debates. This is what is meant by a “people’s parliament”. It is what we must strive for in our endeavours to open the doors of our political processes and discussions. We must work particularly hard to ensure that the voices of the hitherto voiceless are heard in the debates that shape their lives. This means reaching far into rural areas and accessing the views of the poor, particularly women. We must find ways to open the doors of our institutions to those who may struggle to enter because of disability, age or poverty so that they may speak frankly and openly about the issues that concern them. This must be the vision that guides our daily work.[i]” Dr FRENE GINWALA, Speaker of the National Assembly, Parliament of South Africa|
In a reply to a motion from Councillor Geoff Embling (DA), the Mayor and Speaker expressed their satisfaction that the local community was consulted. Interestingly, both acknowledged that residents in Ward 4 were not consulted at all. This in itself is problematic because every resident must be consulted and involved in the municipality’s decision-making processes regardless of social status or political affiliation.
The Mayor and Speaker must explain why residents in other wards were denied an opportunity to express their views on such an important issue. An answer such as “we are happy with the consultation process” is not good enough.
Before answering the question of whether the local community was indeed consulted on the budget and determination of tariffs for the new financial year, it is essential to remind the Mayor and the Speaker about their legal obligations regarding community participation. I hope that the reminder will help them to change their attitudes.
The short answer to the question is no. The local community, which includes ratepayers, businesses, sports clubs, NPOs, etc., was not consulted. If the Mayor and Speaker claim that the local community was indeed consulted, the opposition (DA/EFF) must demand that the Speaker table a detailed report on the consultation meetings.
The Speaker is the custodian of public participation in the municipality. The fact that the Speaker brushed aside Councillor Embling’s enquiry on the consultation process is cause for concern. It is evident that the Speaker cannot fulfil his legal obligations regarding community participation in the municipality’s affairs.
The Manager for Legal Services should bring the following legal precedents to the attention of the Mayor and Speaker: Doctors for Life International v Speaker of the National Assembly (2002)[ii], South African Property Owners Association v The Council of the City of Johannesburg (2012)[iii] and Borbet South Africa (Pty) Ltd and others v Nelson Mandela Bay Municipality (2014)[iv].
It seems that the Mayor and Speaker do not have a good grasp of their legal obligations as specified in the Municipal Systems Act (2000)[v] and Municipal Finance Management Act (2003)[vi].
When the Mayor and Speaker ignore the residents and law with impunity, the ANC leadership and MECs for Cooperative Governance and Finance must be summoned to Makana to rescue the municipality from its incompetent cadres.
When the community is undermined and marginalised from participatory decision-making processes, it is a recipe with unavoidable consequences.
The budget cannot be prepared and adopted without any input from the local community. The law[vii] is very clear on this issue. The Mayor and Speaker cannot be allowed to impose their own will and laws on the local community. If this is allowed, the municipality will remain dysfunctional in the hands of persistent lawbreakers, and residents will continue to suffer.
What are the options for ratepayers and businesses predominantly financing an incompetent and non-responsive administration? I suggest that ratepayers across wards and businesses reject the adopted budget and unaffordable tariffs. Furthermore, I suggest that ratepayers and businesses institute legal proceedings against the municipality for not adhering to the rule of law. A punitive personal cost order against the Municipal Manager, Mayor and Speaker would be a lesson for officials who treat the local community as irrelevant.
[v] 16. Development of culture of community participation
(1) A municipality must develop a culture of municipal governance that complements formal representative government with a system of participatory governance and must, for this purpose—
(a) encourage, and create conditions for, the local community to participate in the affairs of the municipality, including in—
(i) the preparation, implementation and review of its integrated development plan in terms of Chapter 5;
(ii) the establishment, implementation and review of its performance management system in terms of Chapter 6;
(iii) the monitoring and review of its performance, including the outcomes and impact of such performance;
(iv) the preparation of its budget; and
(v) strategic decisions relating to the provision of municipal services in terms of Chapter 8;
(b) contribute to building the capacity of—
(i) the local community to enable it to participate in the affairs of the municipality; and
(ii) councillors and staff to foster community participation; and
(c) use its resources, and annually allocate funds in its budget as may be appropriate for the purpose of implementing paragraphs (a) and (b).
(2) Subsection (1) must not be interpreted as permitting interference with a municipal council’s right to govern and to exercise the executive and legislative authority of the municipality.
17. Mechanisms, processes and procedures for community participation
(1) Participation by the local community in the affairs of the municipality must take place through—
(a) political structures for participation in terms of the Municipal Structures Act;
(b) the mechanisms, processes and procedures for participation in municipal governance established in terms of this Act;
(c) other appropriate mechanisms, processes and procedures established by the municipality;
(d) councillors; and
(e) generally applying the provisions for participation as provided for in this Act.
(2) A municipality must establish appropriate mechanisms, processes and procedures to enable the local community to participate in the affairs of the municipality, and must, for this purpose, provide for—
(a) the receipt, processing and consideration of petitions and complaints lodged by members of the local community;
(b) notification and public comment procedures, when appropriate;
(c) public meetings and hearings by the municipal council and other political structures and political office bearers of the municipality, when appropriate;
(d) consultative sessions with locally recognised community organisations and, where appropriate, traditional authorities; and
(e) report-back to the local community.
(3) When establishing mechanisms, processes and procedures in terms of subsection (2) the municipality must take into account the special needs of—
(a) people who cannot read or write;
(b) people with disabilities;
(c) women; and
(d) other disadvantaged groups.
(4) A municipal council may establish one or more advisory committees consisting of persons who are not councillors to advise the council on any matter within the council’s competence. When appointing the members of such a committee, gender representivity must be taken into account.
18. Communication of information concerning community participation
(1) A municipality must communicate to its community information concerning—
(a) the available mechanisms, processes and procedures to encourage and facilitate community participation;
(b) the matters with regard to which community participation is encouraged;
(c) the rights and duties of members of the local community; and
(d) municipal governance, management and development.
(2) When communicating the information mentioned in subsection (1), a municipality must take into account—
(a) language preferences and usage in the municipality; and
(b) the special needs of people who cannot read or write.
19. Public notice of meetings of municipal councils
The municipal manager of a municipality must give notice to the public, in a manner determined by the municipal council, of the time, date and venue of every—
(a) ordinary meeting of the council; and
(b) special or urgent council meeting, except when time constraints make this impossible.
20. Admission of public to meetings
(1) Meetings of a municipal council and those of its committees are open to the public, including the media, and the council or such committee may not exclude the public, including the media, from a meeting, except when—
(a) it is reasonable to do so having regard to the nature of the business being transacted; and
(b) a by-law or a resolution of the council specifying the circumstances in which the council or such committee may close a meeting and which complies with paragraph (a), authorises the council or such committee to close the meeting to the public.
(2) A municipal council, or a committee of the council, may not exclude the public, including the media when considering or voting on any of the following matters—
(a) a draft by-law tabled in the council;
(b) a budget tabled in the council;
(c) the municipality’s draft integrated development plan, or any amendment of the plan, tabled in the council;
(d) the municipality’s draft performance management system, or any amendment of the system, tabled in the council;
(e) the decision to enter into a service delivery agreement referred to in section 76(b); or
(f) any other matter prescribed by regulation.
(3) An executive committee mentioned in section 42 of the Municipal Structures Act and a mayoral committee mentioned in section 60 of that Act may, subject to subsection (1)(a), close any or all of its meetings to the public, including the media.
(4) A municipal council—
(a) within the financial and administrative capacity of the municipality, must provide space for the public in the chambers and places where the council and its committees meet; and
(b) may take reasonable steps to regulate public access to and public conduct at meetings of the council and its committees.
21. Communications with the local community
(1) When anything must be notified by a municipality through the media to the local community in terms of this Act or any other applicable legislation, it must be done—
(a) in the local newspaper or newspapers of its area;
(b) in a newspaper or newspapers circulating in its area and determined by the council as a newspaper of record; or
(c) by means of radio broadcasts covering the area of the municipality.
(2) Any such notification must be in the official languages determined by the council, having regard to language preferences and usage within its area.
(3) A copy of every notice that must be published in the Provincial Gazette or the media in terms of this Act or any other applicable legislation, must be displayed at the municipal offices.
(4) When the municipality invites the local community to submit written comments or representations on any matter before the council, it must be stated in the invitation that any person who cannot write may come during office hours to a place where a staff member of the municipality named in the invitation, will assist that person to transcribe that person’s comments or representations.
(5) (a) When a municipality requires a form to be completed by a member of the local community, a staff member of the municipality must give reasonable assistance to persons who cannot read or write to enable such persons to understand and complete the form.
(b) If the form relates to the payment of money to the municipality or the provision of any service, the assistance must include an explanation of its terms and conditions.
21A. Documents to be made public
(1) All documents that must be made public by a municipality in terms of a requirement of this Act, the Municipal Finance Management Act or other applicable legislation must be conveyed to the local community—
(a) by displaying the documents at the municipality’s head and satellite offices and libraries;
(b) by displaying the documents on the municipality’s official website, if the municipality has a website as envisaged by section 21B; and
(c) by notifying the local community, in accordance with section 21, of the place, including the website address, where detailed particulars concerning the documents can be obtained.
(2) If appropriate, any notification in terms of subsection (1)(c) must invite the local community to submit written comments or representations to the municipality in respect of the relevant documents.
[S 21A ins by s 5 of Act 44 of 2003.]
[vi] The budget preparation process is regulated by s21 of the MFMA. Overall responsibility s placed on the Mayor of a municipality to coordinate the processes for the preparation of the annual budget and for reviewing the municipality’s IDP. In terms of subsection (1) (b), the Mayor is obliged at least ten months before the start of the budget year to table a schedule outlining key deadlines for the preparation, tabling and approval of the annual budget; the annual review of the integrated development plan and any consultative processes forming part of the process of budget preparation and/or review of the integrated development plan. Section 22 provides that immediately after the tabling of an annual budget in a municipal Council, the accounting officer of the municipality must make public the annual budget and invite the local community to submit representations in connection with the budget.
Section 23 sets out the consultative process to be followed in relation to a budget that has been tabled. It requires a council, inter alia, to consider any submissions from the public or national treasury and allow the mayor to respond to such submissions. It envisages a notice and comment procedure for any amendments to a tabled budget. Borbet South Africa (Pty) Ltd and Others v Nelson Mandela Bay Municipality (3751/2011)  ZAECPEHC 35; 2014 (5) SA 256 (ECP) (3 June 2014)
[vii] Section 16(1)(a)(iv), Local Government: Municipal Systems Act (2000)