STELLENBOSCH MUNICIPALITY

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1 STELLENBOSCH MUNICIPALITY ROLES AND RESPONSIBILITIES OF POLITICAL STRUCTURES, POLITICAL OFFICE BEARERS AND THE MUNICIPAL MANAGER INDEX Preface Chapter 1: Introduction 3 Chapter 2: The Municipal Council The Speaker Committees of the Council Statutory Committees The Executive Mayor The Executive Deputy Mayor The Mayoral Committee The Municipal Councillor The Municipal Manager 40 Chapter 3: Relationships, Accountability and Interaction 54 Chapter 4: Disputes 58 Preface Good governance is built upon an effective interface between political office bearers, political structures, councillors and officials, the delegation of appropriate powers to achieve maximum operational and administrative efficiency and the amicable resolution of disputes between the respective role-players. In this document we attempt to identify the functions, roles and responsibilities of the political office bearers, political structures, councillors and Municipal Manager of the Municipality of Stellenbosch. Index 1

2 Glossary The essential terms used in this document have the following meanings - Accounting Officer the Municipal Manager; A-G the Auditor-General; Chief Financial Officer a person designated by the Accounting Officer as Chief Financial Officer; delegating authority - (a) (b) in relation to a delegation of a power or duty by the Municipal Council, means the Municipal Council; or in relation to a subdelegation of a power or duty by another political structure, or by a political office bearer, councillor or staff member of a municipality, means that political structure, political office bearer, councillor or staff member; IEC, the Independent Electoral Commission; MFMA the Local Government: Municipal Finance Management Act, No.56 of 2003; Municipal Manager a person appointed in terms of section 82 of the Act; NT the National Treasury; political office bearer means the Speaker, Executive Mayor or Deputy Executive Mayor of the Municipality; political structure, means the council of the Municipality or any committee of the municipality elected, designated or appointed in terms of a specific provision of the Municipal Structures Act; PAIA, the Promotion of Access to Information Act, No 1 of 2000; PT, the Provincial Treasury; SD+BI plan service delivery and budget implementation plan; Structures Act, the Local Government: Municipal Structures Act, No.117 of 1998; Systems Act, the Local Government: Municipal Systems Act, No. 32 of 2000; Glossary 2

3 CHAPTER 1 INTRODUCTION Legislative requirements The Systems Act 1 requires the municipality to clarify the roles and responsibilities of the most important role players in the municipality. Municipalities are complex institutions with wide-ranging powers and duties governed by politicians and assisted by a staff component whose the main purpose it is to ensure and maintain services to the community. This goal is only achievable if there is harmonious interaction between the various role-players. They must know and understand their respective roles follow protocols and co-operate with each other but, when they fail, they should be able to correct their mistakes in terms of pre-determined processes. Because terms of reference is closely associated with delegations the latter is included in this document. Format for defining roles The Systems Act does not prescribe a format for defining roles and areas of responsibility. The method adopted in this document is to identify and define all the functions of every role player in precise terms, their respective terms of reference 2 and to also (a) (b) (c) (d) relationships among these lead role-players and the manner in which they must interact; appropriate lines of accountability and reporting for these lead role-players; mechanisms, processes and procedures for minimising cross-referrals and unnecessary overlapping of responsibilities between these lead role-players; mechanisms, processes and procedures for resolving disputes between these lead roleplayers; and (e) mechanisms, processes and procedures for interaction, between - (i) (ii) these lead role-players and other staff members of the municipality; and councillors and the Municipal Manager and other staff members of the municipality. Roles that are defined The following roles are defined as required by the Systems Act - Municipal Council Speaker Committees of the Council Statutory committees Executive Mayor 1 Section 53(1): A municipality must, within the framework of and in accordance with relevant provisions of the Municipal Structures Act 1, this Act and other applicable legislation, define the specific role and area of responsibility of each political structure and political office bearer of the municipality and of the Municipal Manager. 2 Section 53(2) Introduction 3

4 Executive Deputy Mayor Mayoral Committee Councillor Municipal Manager Introduction 4

5 CHAPTER 2 ROLE DEFINITION 1. THE MUNICIPAL COUNCIL 1. THE ROLE The role of the Municipal Council is inter alia to (a) represent the local community; (b) ensure the well-being and interests of the municipality; (c) ensure the provision of services to the local community; (d) develop and evaluate the policies and programs of the municipality; (e) maintain the financial integrity of the municipality; (f) carry out the duties of council under the Constitution or any other act; (g) ensure that administrative policies, procedures and oversight policies, practices and procedures are in place to implement the decisions of council; and (h) ensure the accountability and transparency of the operations of the municipality. The Municipal Council fulfils that role by governing as contemplated in the Constitution. The Constitution not only confers on a municipality the right to govern the affairs of the community within the municipal area, but also empowers the Municipal Council to make decisions concerning the exercise of all the powers and the performance of all the functions of the municipality 3. To this end the Municipal Council is clearly the principal political structure and the ultimate decision maker of the Municipality. The Stellenbosch Municipality therefore acknowledges that it has the right to govern within the municipal area 4 and will by effective use of its constitutionally conferred powers and functions 5 strive to achieve the objects of local government 6, by (a) (b) (c) (d) providing democratic and accountable government for local communities; ensuring the provision of services to communities in a sustainable manner; promoting social and economic development; promoting a safe and healthy environment; and 3 See sections 151 and Section 151(3): A municipality has the right to govern, on its own initiative, the local government affairs of its community, subject to national and provincial legislation, as provided for in the Constitution. 5 Section Section 152 5

6 (e) encouraging the involvement of communities and community organisations in the matters of the municipality. In order to do this the Municipal Council is committed to annually consider and, where necessary, review (a) (b) (c) (d) (e) the needs of the community; its priorities to meet those needs; its processes for involving the community; its organisational and delivery mechanisms for meeting the needs of the community; and its overall performance in achieving these objectives. The Municipal Council is incapable of performing its constitutional mandate on its own and has consequently appointed political office bearers, established political stuctures and employed staff to assist it in this enormous task. 2. THE AREA OF RESPONSIBILITY The area of responsibility of the Municipal Council may be defined in geographical and functional terms. The geographical area of the Municipality is determined in terms of the Local Government: Municipal Demarcation Act, 1998 (Act No. 27 van 1998). The Municipal Council may however function outside its geographical area with the approval of the council of the municipality having jurisdiction in that area. 7 The functional area of the Municipal Council s responsibility extends to all the powers of the Municipality as contemplated in - the Constitution 8 read with sections 83 en 84 of the Structures Act; other empowering laws; matters, powers, functions and duties delegated or assigned; and powers emanating from its status as a legal persona. 3. POWERS AND FUNCTIONS The Municipal Council governs, exercise and perform powers and functions by virtue of its status as an organ of state, employer, member of organised local government and being a legal persona The Municipal Council Governs Governing does not only confer a right but also imposes a duty. 9 The Municipal Council has the right to (a) exercise the municipality s executive and legislative authority, and to do so without improper interference; and 7 Section164 (1)(b) of the MFMA: No municipality may.. provide a municipal service in an area outside its jurisdiction except with the approval of the council of the municipality having jurisdiction in that area 8 Sections 156 (Powers and functions of municipalities) and 229 (Municipal fiscal powers and functions) 9 Section 4 of the Systems Act 6

7 (b) finance the affairs of the municipality by- (i) (ii) charging fees for services; and imposing surcharges on fees, rates on property and other taxes, levies and duties where authorised. The council also has the duty to- (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) exercise the municipality s executive and legislative authority and use the resources of the municipality in the best interests of the local community; provide, without favour or prejudice, democratic and accountable government; encourage the involvement of the local community; strive to ensure that municipal services are provided to the local community in a financially and environmentally sustainable manner; consult the local community about the level, quality, range and impact of municipal services and the available options for service delivery; give members of the local community equitable access to the municipal services; promote and undertake development in the municipality; promote gender equity; promote a safe and healthy environment in the municipality; and contribute to the progressive realisation of the fundamental rights. The municipal council governs by making and administering laws; levying rates; taking decisions that affects the rights of people; consulting the community; overseeing the delegation of appropriate power to maximise administrative and operational efficiency Legislature In terms of the Constitution 10 the legislative authority in respect of the municipal area is vested in the municipal council. The council may therefore adopt and administer by-laws for the effective administration of the matters which it has the right to administer. 11 The legislative function is the exclusive function of the Municipal Council. The power to adopt laws may not be delegated. 12 Some procedural functions may however be given to a member of a committee of the municipal council, 13 and the Executive Mayor 14, whilst other functions may be 10 Sections 43 and 156(2) 11 Matters listed in parts B of Schedules 4 en 5 as well as additional matters assigned in terms of national and provincial laws. 12 Section 160(2) 13 Section 12 of the Systems Act 7

8 delegated by the council, e.g. advertising for comments, publication in the Provincial Gazette, public participation, compiling the municipal code, law enforcement etc Tax Authority The Municipal Council may levy rates on property and surcharges on fees for services provided by or on behalf of the municipality and, if authorised by national legislation, other taxes, levies and duties appropriate to local government. 15 The Local Government: Municipal Property Rates Act 16 was enacted to regulate the power of a municipality to impose rates on property. It imposes primarily two powers/duties on a municipal council, i.e. the adoption of a rates policy; 17 determining an area within that municipality as a special rating area. 18 The general power to levy and recover fees, charges or tariffs is derived from the Systems Act. 19 In terms thereof the Council may (a) (b) levy and recover fees, charges or tariffs in respect of any function or service of the municipality; and recover collection charges and interest on any outstanding amount. The Municipal Council may not delegate the power to levy rates Primary decision maker The municipal council exercises the legislative and executive powers of the municipality en take all decisions of the municipality, except those that have been delegated or have been conferred by law to a political structure, political office bearer, individual councillors or staff members. 21 Only the municipal council may take decisions regarding the following matters - Legislative 1. Adoption of by-laws 22 s. 160(2) of the Constitution. Financial 2. Approval of budgets; Levying of property rates and other taxes, levies and duties; Raising of loans; 25 5 Adoption and amendment of an IDP; Section 56 of the Structures Act 15 Section 229 of the Constitution 16 No 6 of Section 3 18 s Section 75A(1) 20 Section 160(2) of the Constitution 21 Section 160(1) of the Constitution and section 11 of the Systems Act 22 Section 160(2) of the Constitution 23 Section 160(2) of the Constitution and Section 24 of the MFMA 24 Section 160(2) of the Constitution, Section 75A of the Systems Act and Section 14 of the Municipal Property Rates Act 25 Section 160(2) of the Constitution, Section 45 and 46 of the MFMA 8

9 6. Dissolution of municipal councils; Election of speakers; Removal of the speaker; Election of an acting speaker; Election of an executive mayor and executive deputy mayor; Removal of the executive mayor or executive deputy mayor; Establishment of committees; Determining the salaries and allowances of councillors s. 7 of the Remuneration of Public Office Bearers Act. 14. Determining fines for non-attendance of meetings; Impose sanctions for breaches Determination of the salary and allowances of councillors. 17. Entering into service delivery agreements. Staff 18. Appointment and dismissal of a Municipal Manager; Appointment of a departmental head/manager directly accountable to the Municipal Manager; Appointment of a Building Control Officer. 38 Legal Matters 21. Concluding a service delivery agreement; Alienation of capital assets. 40 General 23. Delegation of powers, duties and functions. 24. Disposal of immovable capital assets. 26 Section 30 of the Structures Act 27 Section 34 of the Structures Act 28 Section 36 of the Structures Act 29 Section 40 of the Structures Act 30 Section 41 of the Structures Act 31 Section 55 of the Structures Act 32 Section 58 of the Structures Act 33 Section 79 en 80 of the Structures Act, Section 166 of the MFMA and item 14(1)(b) of the Code of Conduct for Councillors 34 Item 4(1) of the Code of Conduct for Councillors 35 Item 14(2) of the Code of Conduct for Councillors 36 Section 54A of the Systems Act and Mbana v Mnquma Municipality 2004 (1) BCLR 83 (Tk) 37 Section 56 of the Systems Act 38 Section 5 read with s. 28 of the National Building Regulations and Building Standards Act, No. 103 of in terms of s. 59 and 76(b) of the Systems Act 40 Section 14 of the MFMA 9

10 25. To authorise the Municipal Manager to conduct a public participation process prior to the council considering the transfer or disposal of a non-exempted capital asset of a value in excess of R50 million. 26. To authorise the Municipal Manager to conduct a public participation process prior to Council considering the proposed granting of a right to use, control or manage a capital asset of a value in excess of R10 million and for a proposed period of longer than three years. The Municipal Council is a body comprising of elected members and the council can only act collectively and then only by taking lawful decisions at meetings of the duly convened and constituted Consultant of the Community According to the Systems Act 41 a municipality functions in its area in accordance with the political, statutory and other relationships between its political structures, political office bearers and administration and its community. The Act also encourages meaningful community participation and involvement. 42 Community participation in local government affairs gives expression to the democratic principles and values of our Constitution and the political rights of the individual entrenched in section 19 of the Constitution. The Municipal Council is obliged to encourage participation of the community and community organisations in local government matters and must also adhere to the democratic values and principles enshrined in the Constitution which governs the public administration. The council 43 must also respond to the people s needs and encourage the public to participate in policy-making. foster transparency by providing the public with timely, accessible and accurate information. The Municipal Council must also engage the community in consultation in matters such as the IDP, budget, performance management, provision of services etc Overseer of the Executive and Administration Oversight is a crucial role of the municipal council in monitoring and evaluating the actions of the executive and administration in the discharge of the vast powers they possess. The laws pertaining to local government contains numerous provisions requiring the executive and administration to report to council. The object of oversight obviously goes much wider; it also includes avoidance of abuse of power and guarding against under-performance. Consequently, the Municipal Council has important policy setting and oversight roles especially in regard to the IDP, budgets, policies, rendering of services, strategic objectives and priorities, and by-laws. Oversight also means that councillors cannot perform an operational role as this would interfere with the role of the executive and administration. It would also weaken the accountability of the executive mayor and officials of the council. 41 Section 2(c) 42 Section 4(2)(c); see also section 152(e) of the Constitution 43 Section 195 of the Constitution 44 Section 16 of the Systems Act 10

11 Although oversight is a function of all councillors acting in unison individual councillors may and should initiate an oversight venture subsequent to consultation with the public as required by the Code of Conduct for Councillors; see the preamble which provides Councillors are elected to represent local communities on municipal councils, to ensure that municipalities have structured mechanisms of accountability to local communities, and to meet the priority needs of communities by providing services equitably, effectively and sustainably within the means of the municipality. In fulfilling this role councillors must be accountable to local communities and report back at least quarterly to constituencies on council matters, including the performance of the municipality in terms of established indicators. The Municipal Council oversees the activities of the executive and administration, inter alia, by 1. ensuring that the Executive Mayor 45 and Municipal Manager reports regularly and timeously to the Municipal Council on all decisions taken by the Executive Mayor. This duty relates to decisions taken in terms of statutory as well as delegated 46 powers. 2. ensuring that the Executive Mayor consult the members of the mayoral committee on matters of importance 47 designation of powers. 3. ensuring that the Municipal Manager personally takes decisions on important matters by disallowing delegation or sub delegation of such power entertaining questions posed by Councillors in terms of the Municipality s Rules of Procedure. The Municipal Council has the following remedies in the event that the Executive Mayor under performs or abuses power review, amend or revoke 49 the powers delegated to the Executive Mayor or Municipal Manager. review any decision taken by Executive Mayor or Municipal Manager in consequence of a delegation. 50 discipline the Executive Mayor or Municipal Manager if his/her actions constitute a breach of the relevant Code of Conduct; remove the Executive Mayor from office in the event of persistent negative action 51. evaluate the Municipal Manager in terms of his/her performance and employment agreement Delegator of powers and duties The Systems Act 53 and the MFMA 54 requires the Municipal Council to delegate executive powers to ensure fast and efficient decision-making and to provide for good management and monitoring of the municipal administration. 45 Section 56(5) and 63 of the Structures Act 46 Section 63 of the Systems Act 47 section 60(3) of the Structures Act 48 Section 59(4) of the Systems Act 49 Section 59 of the Systems Act 50 Section 59(3) of the Systems Act 51 Section 58 of the Structures Act 52 Section 57 of the Systems Act 11

12 The municipal council may delegate appropriate powers, excluding certain prescribed powers, to any of the municipality s other political structures, political office bearers, councillors, or staff members. The municipal council may also review any decision taken by such a political structure, political office bearer, councillor or staff member in consequence of a delegation or instruction, and either confirm, vary or revoke the decision subject to any rights that may have accrued to a person. 55 A delegation of powers and duties by the municipal council does not divest the council of the responsibility to ensure that the power is exercised and the duty performed. Measures are therefore necessary to ensure that delegatees report on decisions they have taken in terms of delegated authorities. This will also assist the municipal council in evaluating whether the delegatee has properly exercised the delegated power or duty. If not, the municipal council may review the decision and may even decide to review or revoke the delegation The Municipal Council is an Appeal Authority A person whose rights are affected by a decision taken by a political structure, political office bearer, councillor or staff member of a municipality in terms of a power or duty delegated or subdelegated may appeal against that decision. When the appeal is against a decision taken by a political structure or political office bearer, or a councillor the Municipal Council is the appeal authority. 57 Because the Municipal Council of Stellenbosch comprises of more than 14 councillors an Appeal Committee has been established to consider appeals. The appeal authority must consider the appeal, and confirm, vary or revoke the decision, but no such variation or revocation of a decision may detract from any rights that may have accrued as a result of the decision The Municipal Council is an organ of state The Municipal Council is an organ of state 58 and this status has specific consequences. First and foremost, the Municipal Council must comply with the duties and responsibilities of an organ of state imposed by the Constitution and other laws. Furthermore as an organ of state the Municipal Council must comply with the principles of cooperative government and intergovernmental relations as contemplated in section 14 of the Constitution and further regulated by the Intergovernmental Relations Framework Act, 13 of The status of being an organ of state also has significance regarding delegation. In terms of section 238 of the Constitution an executive organ of state may- delegate any power or function that is to be exercised or performed in terms of legislation to any other executive organ of state, provided the delegation is consistent with the legislation in terms of which the power is exercised or the function is performed; or 53 Section 59 A municipal council must develop a system of delegation that will maximise administrative and operational efficiency and provide for adequate checks and balances. See also the White Paper on Local Government GN 423 of 13 March e.g. sections 14,52, See in this regard sections 59 and See in this regard sections 63 and where the council comprises of less than 15 members. 58 In terms of section 239 of the Constitution it is - (a) any department of state or administration in the national, provincial or local sphere of government; or (b) any other functionary or institution (i) exercising a power or performing a function in terms of the Constitution or a provincial constitution; or (ii) exercising a public power or performing a public function in terms of any legislation, but does not include a court or a judicial officer; 12

13 exercise any power or perform any function for any other executive organ of state on an agency or delegation basis. 3.4 The Municipal Council is a Member of Organised Local Government Organised local government plays an important role as the official mouthpiece of local government. The provincial body established in terms of national legislation 59 comprises of members of municipal councils in the province. The Municipal Council as member of SALGA can play an important role to influence national views, sentiments and policy pertaining to local government and to (a) (b) (c) develop common approaches for local government as a distinct sphere of government; enhance co-operation, mutual assistance and sharing of resources among municipalities; find solutions for problems relating to local government generally; and (d) facilitate compliance with the principles of co-operative government and intergovernmental relations The Municipal Council is an Employer The Municipal Council must, in the exercise of its powers and the performance of its duties, establish an administration 61 and approve a staff structure 62 to accommodate the administration. It also has the sole authority to appoint a Municipal Manager and Managers reporting directly to the Municipal Manager. 63 The Municipal Council also has the exclusive power to discipline these officials. 64 The determination or alteration of the remuneration, benefits or other conditions of service of the Municipal Manager or managers directly responsible to the Municipal Manager may be delegated, but then only to the Executive Mayor or Executive Committee. 65 Although the Systems Act empowers the Municipal Manager to appoint staff (other than managers directly accountable to the municipal manager) the Municipal Council is not divest of the power to perform that particular function itself. 66 The Municipal Council also nominates members of the council to serve on labour fora The Municipal Council is a legal persona The Municipality is a legal persona. 67 The Municipal Council represents the legal persona in those instances where powers in regard to its legal personality have to be exercised, e.g. to purchase or alienate property and to sue or to be sued. These powers are in turn delegated to political structures, political office bearers or the municipal staff. 59 Organised Local Government Act, 52 of Section 3 of the Systems Act 61 Section 11 of the Systems Act 62 Section 66 of the Systems Act 63 Section 54A of the Systems Act 64 Local Government: Disciplinary Regulations for Senior Managers, published in Government Gazettes of April Section 60 of the Systems Act 66 Manana v King Sabata Dalindyebo Municipality (345/09) [2010] ZASCA 144 (25 November 2010) 67 Section 2 of the Systems Act: The Municipality.. has a separate legal personality which excludes liability on the part of its community for the actions of the municipality. 13

14 2 THE SPEAKER 1. THE ROLE It is the role of the Speaker - to preside over Municipal Council meetings so that its business can be carried out efficiently and effectively; to provide information and recommendations to the Municipal Council with respect to the role of Council; to carry out the duties of Chairperson of the Municipal Council under the Structures Act, Systems Act, the Municipality s Rules of Order, common law and tradition; to enforce the Code of Conduct; and to exercise delegated authority. 2. THE AREA OF RESPONSIBILITY The Speaker s area of responsibility from a geographical perspective is limited to the geographical area of the Municipality. Due to the municipality s involvement in co-operative governance the influence of the Speaker would also extend to the activities of a speaker s forum and other provincial bodies. As regards the functional area the Speaker possesses all the powers attached by law to the office as well as those powers that has been delegated to him/her or is derived from the common law. 3. POWERS AND FUNCTIONS The powers and functions of the Speaker are twofold, i.e. Chairperson of the Council and Enforcer of the Code of Conduct. The Municipal Council has also appointed the office of the Speaker as the appeal authority in terms of the PAIA. 3.1 The Speaker is the Chairperson of the Municipal Council A municipality must have a chairperson of its municipal council and such a person will be called Speaker. 68 The Speaker has explicit statutory powers. In addition thereto the Speaker also has wide powers which are derived from the common law Convenes the Municipal Council The Speaker decides 69 when and where the council meets. The only limitation of the Speaker s power in this regard is the requirement that the council must meet at least quarterly 70 ; and the right of a majority of councillors to request the speaker to convene a council meeting at a time set out in the request Section 36 of the Structures Act and 160(1)(b) of the Constitution 69 Section 29 of the Structures Act 70 Section 18 of the Structures Act 71 Section 29 of the Structures Act 14

15 The power to convene a meeting of the council is not limited to the giving of notice of the time, date and venue of meetings. The Speaker s has the incidental power to determine the business to be transacted at meetings and the format in which it is to be presented. The Speaker is ultimately responsible for the proper compilation of the agenda, which includes quality, jurisdictional and compliance control. To this end the Speaker has the last say in what may be included in the agenda The Speaker presides at meetings of the Municipal Council The Speaker presides at meetings of the Municipal Council 72 and must maintain order at meetings; ensure that council meetings are conducted according to the rules of order of the municipality; ensure compliance of the Code of Conduct in the council and its committees; protect a councillor s right to freedom of speech at meetings of the council; protect a councillor s right to privilege; must exercise a casting vote when there is an equality of votes on any question before the council; sign the minutes of meetings to confirm that it represents a true reflection of what transpired at those meetings; and arrange public access to meetings of the council. The Speaker must ensure that the Rules of Order serves the needs of the day and must initiate amendments where necessary. It is also for that reason that Council has appointed the Speaker as Chairperson of the Rules Committee. 3.2 Enforcer of the Code of Conduct The Speaker has the express authority to ensure compliance in the council and council committees with the Code of Conduct. 73 Council has also authorised the Speaker to grant leave of absence from meetings to councillors in terms the rules and orders of the council; to develop a uniform standing procedure for the imposition of a fine or the removal of a councillor for adoption by council; to introduce measures to ensure that a councillor is not in arrears to the municipality for rates and service charges for a period longer than 3 months. In terms of item 13 of the Code of Conduct for Councillors the Speaker must, if of the opinion that a councillor has breached a provision of this Code 72 Section 37 of the Structures Act 73 Section 37 of the Structures Act 15

16 (a) (b) (c) (d) authorise an investigation of the facts and circumstances of the alleged breach; give the councillor a reasonable opportunity to reply in writing regarding the alleged breach; report the matter thereafter to a meeting of the municipal council ; and report the outcome of the investigation to the MEC for local government in the province concerned. The Speaker must ensure that each councillor when taking office is given a copy of the Code and that a copy of the Code is available in every room or place where the council meets. 3.3 Appeal Authority The Speaker is appointed as the relevant authority to hear appeals in terms of the PAIA. 3.4 Recipient of Delegated Powers and Duties The Speaker may also exercise the powers delegated to him/her by the municipal council in terms of section 59 of the Systems Act. The powers and duties delegated by the municipal council to the Speaker are reflected in Schedule 1 of this document. 3. COMMITTEES OF THE COUNCIL The Structures Act permits a municipality to establish two types of committees, i.e. commonly known as section 79 committees and section 80 committees. There are also two statutory committees. Section 79 committees and 80 committees Both committees are committees of the council 74 and must therefore be proportionally composed 75. Members also enjoy privilege and immunity. 76 The following is a graphic comparison of the two types - Purpose To comply with s Number of committees Established by Members appointed by To comply with s 160(8) Dissolved by Section 79 Effective performance of functions of the Council Yes Unlimited Council Council Yes Council Council Section 80 Assist Executive Mayor Yes Equal to Mayco Members Council Council Yes Council Executive Mayor 74 Democratic Alliance v Masondo 75 Section 160(8) of the Constitution 76 Section 28 of the Structures Act 77 Prescribed criteria for the establishment of committees 16

17 Functions determined by Powers delegated by Chairperson appointed by Authorise co-option of advisory members To co-opt Advisors Members removed by Rules determined by Reports on delegated powers to 78 Forward reports to 79 Meetings open to public and media Council Council Council Yes Council Council Council Executive Mayor Yes Executive Mayor Executive Mayor No No Council Council Executive Mayor Executive Mayor Yes The Municipality of Stellenbosch has established the following committees with the terms of reference as reflected for each Section 79 Appeals Committee Disciplinary Committee Rules Committee Section 32 Committee Oversight Committee Ward Committees Audit Committee Section 80 Community Services and Public Safety Committee Meeting Finance, Strategic and Corporate and Services Committee Meeting Planning, IHS and Property Services Committee Meeting Engineering Services Committee Meeting 78 Section 63 of the Systems Act 79 Section 56 of the Structures Act 17

18 1 THE ROLE The role of a section 79 committee is to assist the council in the effective performance of its functions. The section 80 committee assists the Executive Mayor. 2 THE AREA OF RESPONSIBILITY The area of responsibility of these committees is restricted to their respective above stated terms of reference. 3 POWERS AND FUNCTIONS Stellenbosch Municipal Council has the to establish committees in terms of section 33 of the Local Government : Municipal Structures Act prescribes that A municipality may establish a committee provided for in this Act if- (a) the municipality is of a type that it is empowered in terms of this act to establish a committee of the desired kind; (b) the establishment of the committee is necessary, taking into account- (i) the extent of the functions and powers of the municipality; (ii) the need for the delegation of those functions and powers in order to ensure efficiency and effectiveness in their performance; and (iii) the financial and administrative resources of the municipality available to support the proposed committee; and (c) in the case of the establishment of an executive committee, the municipality has more than 9 councillors. Municipal Councils have the choice of two different types of committees, i.e. section 79 and 80 committees. Section 79(1) of the Systems Act prescribes that a council may (a) (b) (c) 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; appoint the members of such a committee from among its members; and dissolve a committee at any time. Section 79(2) of the Systems Act prescribes that the municipal council (a) must determine the functions of a committee; (b) may delegate duties and powers to it in terms of section 32; (c) (d) (e) (f) must appoint a chairperson; may authorize a committee to co-opt advisory members who are not members of the council within the limits determined by the council; may remove a member of a committee at any time; and may determine a committee s procedure. 18

19 Section 80(1) of the Systems Act prescribes that If a municipal council has an executive mayor, it may appoint in terms of section 79, committees of councilors to assist the executive mayor. Section 80(2) of the Systems Act prescribes that such committees may not in number exceed the number of members of the mayoral committee. Section 80(3) of the Systems Act prescribes that The executive mayor- (a) appoints a chairperson for each committee from the...mayoral committee; (b) may delegate any powers and duties of the executive mayor to the committee; (c) is not divested o the responsibility concerning the exercise of the power or the performance of the duty; (d) may vary or revoke any decisions taken by a committee, subject to any vested rights. Section 80(4) of the Systems Act prescribes that such a committee must report to the executive mayor in accordance with the directions of the executive mayor The delegations for Councils Section 80 Committees is attached hereto in Schedule 1, of this document. 19

20 4. STATUTORY COMMITTEES The Systems Act provides for statutory committees comprising of councillors. These committees are also committees of the council and exercise only statutory conferred powers. 1. APPEALS COMMITTEE A committee of councillors appointed by the Municipal Council 80 is the appeal authority to consider appeals against decisions taken by a political structure or political office bearer, or a councillor in terms of delegated powers. 1.1 THE ROLE The Committee hears appeals against decisions taken in terms of delegated powers by the Executive Mayor, Deputy Executive Mayor, Speaker, section 79-committee, section 80- committee and a councillor. 1.2 THE AREA OF RESPONSIBILITY The committee functions only where an appeal is lodged against a decision taken by an identified delegating authority. 1.3 POWERS AND FUNCTIONS The committee considers appeals and may confirm, vary or revoke the decision, but no such variation or revocation of a decision may detract from any rights that may have accrued as a result of the decision. 2. DISCIPLINARY COMMITTEE The Disciplinary Committee is a special committee established by the Municipal Council to assist in the discipline of Councillors THE ROLE The sole purpose of this committee is to investigate and make a finding on any alleged breach of the Code by a councillor; and make appropriate recommendations to the Municipal Council to issue a formal warning to the councillor; reprimand the councillor; request the MEC for local government to suspend the councillor for a period; fine the councillor; and request the MEC to remove the councillor from office. 80 Where the council consists of 14 plus councillors 81 Item 14 of the Code of Conduct for Councillors 20

21 2.2 THE AREA OF RESPONSIBILITY The committee functions only when asked to consider alleged breaches of the Code. 2.3 POWERS AND FUNCTIONS The committee sits as a tribunal to investigate allegations of breaches of the Code and may request officials, councillors and other persons to testify. It may also acquire the services of experts to assist in adjudicating a matter and must make finding and recommend an appropriate sanction to Council. 3. RULES COMMITTEE 3.1 THE ROLE The terms of reference of this Committee relates to rules of procedure of Council and its Committees. 3.2 THE AREA OF RESPONSIBILITY This Multi party/rulescommittee had been established as a forum to stimulate debate by all parties of council, i.e. majority and all minority parties in an attempt to promote the principles of constitutional democracy. The Rules Committee can also be provided with delegations from Council, as the requests may be. 3.3 POWERS AND FUNCTIONS (1) To develop Rules of Order and amendments thereto, and recommend the same to Council. (2) To summons any councillor(s) and/or official(s) to appear before the committee to assist the committee in the performance of its functions. 4. SECTION 32 COMMITTEE 4.1 THE ROLE The Section 32 Committee is established by Council to investigate any unauthorised, fruitless and wastefull expenditures incurred by any member of the administration and or political office-bearer. 4.2 THE AREA OF RESPONSIBILITY This committee is established especially for doing an investigation into any unauthorised, fruitless, and wastefull expenditure referred to it for investigation. Said committee should then in terms of section 32(2)(b) be required to submit a report to Council indicating remedial measures to be taken to deal with said expenditure, which could include a recommendation to certify to council that the expenditure is irrecoverable and be written off. 21

22 4.3 POWERS AND FUNCTIONS The Section 32 Committee has no other powers and function that that which is provided for in the relevant legislation in section 32(2) of the Municipal Finance Management Act which prescribes that A municipality must recover unauthorised, irregular or fruitless and wasteful expenditure from the person liable for that expenditure unless the expenditure (a) in the case of unauthorised expenditure is- (i) (ii) authorised in an adjustment budget; or certified by a municipal council, after investigation by a council committee, as irrecoverable and written off by the council; (b) in the case of irregular and fruitless and wasteful expenditure,the council has a discretion, after investigation of a council committee, to advise the Council that the expenditure be irrecoverable and written off by council. This committee had not been given any delegations by council, so all powers and functions are limited to respective roles in terms of legislation. 5. OVERSIGHT COMMITTEE 5.1 THE ROLE The Oversight Committee is a committee established in terms of section 33 read with section 79 to assist Council with the stutotory role of overseeing the Annual report. 5.2 THE AREA OF RESPONSIBILITY The Oversight Committee is responsible for the drafting of the Oversight report, which is considered by Council with the Annual report. Said committee consisting of non-executive councillors and representatives from the community reviews the Annual report and submits the Oversight report which will form the basis of the Council decision to either approve, reject of further refer the Annual report for revision. Be advised that assistance form the Audit Committee is encouraged as they can provide specialst advice in this regard. 5.3 POWERS AND FUNCTIONS The Oversight Committee has no other delegation from Council than to perform their statutory duties referred to in terms of relevant legislation. 6. WARD COMMITTEES 6.1 THE ROLE The purpose of the Ward Committee is to assist the Ward Councillor with organising consultation, spreading information and encouraging participation with residents within any Ward Councillors ward. Section 72(3) of the Structures Act indicates that the object of a ard committee is enhance participatory democracy 22

23 6.2 THE AREA OF RESPONSIBILITY The activities of the ward committees are limited to the ward within which they operate. 6.3 POWERS AND FUNCTIONS Council has several ward committees, which had been established in terms of relevant legislation to give effect to the relevant legislation Council had approved the Policy and Procedures for Ward Committees, which prescribes that: (1) A ward committee may take recommendations on any matter affecting its ward to the ward councillor, or through the ward councillor, to the Council or to the Executive Mayor. (2) The following duties and powers are delegated to ward committees by the Council in terms of Section 59 of the Municipal Systems Act: (a) (b) To serve as an official specialised participatory structure in the municipality. To create formal unbiased communication channels as well as co-operative partnerships between the community and the Council. This will be achieved as follows: (i) (ii) (iii) (iv) Advise and make recommendations to the ward councillor on matters and policy affecting the ward; Assist the ward councillor in identifying challenges and needs of residents; Disseminate information in the ward concerning municipal affairs such as the budget, integrated development planning, performance management system (PMS), service delivery options and municipal properties; Receive queries and complaints from residents concerning municipal service delivery, Communicate it to Council and provide feedback to the community on Council s response; (v) (vi) Ensure constructive and harmonious interaction between the municipality and community through the use and co-ordination of ward residents meetings and other community development forums; and Interact with other forums and organisations on matters affecting the ward. (c) To serve as a mobilising agent for community action within the ward. This may be achieved as follows: (i) (ii) Attend to all matters that affect and benefit the community; Act in the best interest of the community; and (iii) Ensure the active participation of the community in 23

24 (aa) (bb) (cc) (dd) (ee) service payment campaigns; the integrated development planning process; the municipality s budgetary process; decisions about the provision of municipal services, and decisions about by-laws; (d) (e) No executive powers will be delegated to ward committee members; A ward committee may express dissatisfaction in writing to the Council on the non- performance of a ward councillor. Section 74 of the Structures Act then prescribes that A ward committee (a) may make recommendations on any matter affecting its ward (i) to the ward councillor (ii) through the ward councillor to the executive mayor (b) has such duties andpowers as the local council may delegate to it in terms of section 59 of the Systems Act. 7. LOCAL LABOUR FORUM 7.1 THE ROLE The Local Labour Forum is a consultative frum consisting of representatives of the employer and the trade union, in terms of clause 2.8. of the Main Collective Agreement. 7.2 THE AREA OF RESPONSIBILITY The Local Labour Forum is a consultative forum consisting of both representatives of the employer and the relevant trade unions whose area of responsibility includes all labour related matters, according to the various fields of bargaining. 7.3 POWERS AND FUNCTIONS The Main Collective agreement prescribes that the Local Labour Forum shall have powers and functions of negotiating and/or consulting; (a) (b) (c) (d) on matters of mutual concern pertaining to the employer on such matters as may from time to time be referred to such forum by the Council or it s Division. provided that it may not negotiate on any matter, which has been reserved for exclusive Bargaining in the Council or Division concluding minimum service agreements. 24

25 8. AUDIT COMMITTEE 8.1 THE ROLE The Audit Committee had been established in terms of section 166 of the Municipal Finance Management Act. 8.2 THE AREA OF RESPONSIBILITY The Audit Committee has been established to provide advise to Council on the following matters: (a) (b) (c) (d) (e) (f) (g) (h) (i) internal financial control and internal audit; risk management; accounting policies; the adequacy, reliability and accuracy of financial reporting and information; performance management; effective governance; performance evaluation; compliance with the Municipal Finance Management Act; any issues referred to it by Council. Note that the Audit Committee can also act as an advisory forum to the Oversight Committee during the drafting of the Oversight report which would be sumitted to Council when the Annual report is submitted for revision. 8.3 POWERS AND FUNCTIONS The powers and functions of the Audit Committee serves as an independent advisory body and must; (a) (b) (c) (d) (e) advise Council, the political office bearers, the accounting officer and staff; review Council s annual financial statements; respond to council on issues referred to it by the Auditor-General; carry out investigations into the financial affairs of Council; perform any other functions as may be prescribed. The Audit Committee can also have powers and functions delegated to it by Council, as required, as long as all requirements of delegations are complied with. 25

26 5. THE EXECUTIVE MAYOR The Municipality of Stellenbosch is a category B municipality with a Mayoral Executive system as contemplated in sections 7 en 9 of the Structures Act. The Mayoral Executive system allows for the exercise of executive authority through an Executive Mayor in whom the executive leadership of the municipality is vested and who is assisted by a Mayoral committee. 1. THE ROLE The Executive Mayor is not only the political leader of the Municipality but also the Enhancer of good governance; Builder of external and media relations; Promoter of civic and institutional pride; Supporter and engager with the community; and Facilitator of the process of governing. 2. THE AREA OF RESPONSIBILITY The Executive Mayor s area of responsibility from a geographical perspective is not limited to the geographical area of the municipality. Due to the municipality s involvement in co-operative governance the Executive Mayor s influence is much wider, e.g. the Premier s Co-ordinating Forum 82, District Forum 83, Salga, Mayoral Forum, etc. As regards the functional area the Executive Mayor possesses all the powers conferred by law on the office, as well as those powers that have been delegated to him/her, or can be implied, or derive from civic culture or tradition. 3. POWERS AND FUNCTIONS 3.1. POLITICAL LEADER The Executive Mayor is the political leader of Stelenosch Municipality. Political leadership is the key to better local government. Political leadership is a complex process by which persons in power influence their followers, civil society and wider public to accomplish societal goals. In local government the political leaders, under the leadership of the Executive Mayor, are necessary for initiating as well as for hastening the process of change in the community it 82 In terms of the Intergovernmental Relations Framework Act, See section 38: The mayor of a district municipality is responsible for ensuring the co-ordination of intergovernmental relations within the district municipality with local municipalities in the district. 26

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