Warwick Bruce Chapman

The Local Government Systems Amendment Act (Act 7 of 2011) was signed into law by the President on 2 July 2011.

In March when it passed unanimously through Parliament the Acting Minister, giving us a hint of the importance that this legislation holds, said, “Local government will never be the same again. This Bill will open a new chapter in local government and help turn it around into a responsive, accountable, efficient and effective local government system that will help accelerate service delivery.”

The Departmental press release from April this year reads, “in some cases Municipalities … are staffed with employees who are not necessarily qualified to undertake their duties. It is for this reason that this Bill makes it mandatory for Municipalities to employ appropriately qualified and competent people.”

The Department goes on to say, “the … Act is aimed at professionalising local government for improved service delivery and performance management…”

National CoGTA Circular 19 of 2011 says of this Act that it “outlines government’s resolve to professionalise local public administration.”

Section 3 of the Amendment Act, (adding section 54A and amending section 56), provides strict new rules governing the appointment of municipal managers and managers directly accountable to municipal managers to the extent that “any contract of employment entered into between the municipality and [the appointed municipal manager or manager directly accountable to the municipal manager] is null and void if the appointed person does not have the prescribed skills, expertise, competences and qualifications…”

Section 5 of the Amendment Act (inserting a new section 56A), requires that a municipal manager or manager directly accountable to a municipal manager may not hold any political office in a political party, whether in a permanent, temporary or acting capacity.

There can be little doubt that these changes seek to address the cancer of cadre deployment at the level of senior municipal management. For nearly 15 years now, political cadres have been deployed to positions of management regardless of qualifications. This Amendment now requires unambiguously that managers henceforth not be politically active and are qualified and able to perform the job at the level required for the turnaround of local government.

The states aims of this act include:

1. Professionalise local government by ensuring that the administrative apparatus of municipalities is staffed by appropriately qualified and competent persons to improve on service delivery.

2. Require employment contracts and performance agreements of municipal managers and managers directly accountable to municipal managers to be consistent with the uniform systems and procedures set nationally.

3. Prevent staff dismissed for serious misconduct (financial misconduct, corruption, fraud) from being re-employed in any municipality for 10 years. Other categories of misconduct now carry prescribed waiting or rehabilitation periods before a dismissed member may be re-employed.

4. Prevent the bloating of municipal administrations in areas that do not constitute the core business of municipalities by requiring municipalities to pass a staff establishment through council and only positions indicated on that establishment may be filled.

5. Amend the Code of Conduct for Councillors to make it illegal for councillors to vote in favour of a resolution which conflicts with any local government legislation.

There is little doubt that this legislation is a response to the ANC’s abysmal performance in Local Government. The opposition in this council has a responsibility to ensure that the measures taken in this Amendment Act are applied in this municipality henceforth.

The Speaker
eThekwini Municipality
Councillor Logie Naidoo

NOTICE OF MOTION IN TERMS OF RULE OF ORDER 13

This council noting:

1. The public, political parties, civil society organizations, trade unions and the chamber of commerce have stated their opposition to the tolling of highways within eThekwini;

2. There is no single, safe, effective public transport system that would provide an alternative to the residents of eThekwini;

Resolves that:

1. Council declares its opposition to the proposed tolls within eThekwini;

2. Council directs the Mayor and Executive Committee to take steps to intervene on behalf of eThekwini residents against the tolls, by engaging SANRAL through the avenues afforded by the Intergovernmental Relations Framework Act;

3. That, should SANRAL proceed with the tolling regardless of the engagement, that the metro interdict SANRAL from implementing tolling.

Proposer
WB Chapman

Seconder
A Beetge

Below, please find an extract of the minutes of the eThekwini Council meeting held on 5 September, 2011.

3. Question submitted by Councillor WB Chapman: Cable Theft (27/1/1/5/R):

3.1 What were the cable theft losses in eThekwini for the financial years 2007/2008, 2008/2009, 2009/2010, 2010/2011, 2011/2012 to date?

3.2 Has eThekwini established a specialised unit to combat cable theft?

3.2.1 If yes:-

3.2.1.1 How many permanent members are assigned to the unit; and

3.2.1.2 What budget has been assigned to the unit including the costs of posts permanently assigned t the unit; and

3.2.1.3 Who heads the unit; and

3.2.1.4 When was the unit established?

3.2.1.5 Is the unit focusing on scrap metal dealers across eThekwini?

3.2.1.5.1 If yes:-

3.2.1.5.1.1 How many scrap metal dealers in eThekwini were charged for buying stolen cables during 2010/2011?

3.2.1.5.2 If not, why not?

3.2.2 If not, why not?

3.3 Given that cable theft constitutes damage to public infrastructure necessary for the priority of service delivery in local governments, has eThekwini interacted with National Government with a view to reclassifying cable theft in a more serious crime category?

3.3.1 If yes, please provide a summary of our representation and the response from National Government.

3.3.2 If not, why not?

As Councillor DG Hoorzuk was providing responses, clarity was sought in terms of the relevant Chairperson not providing answers to questions. The Head: Legal Services advised that the Rules of Order stated that the Chairperson must ensure that responses were provided appropriately and that the Chairperson could request any Councillor to provide same. Thereafter, Councillor DG Hoorzuk provided the following respective responses:-

3.1 This is only direct cost, year 2007/2008 R15 608 850, Year 2008/2009 R16 675 844, year 2009/2010 R22 683 307, year 2010/2011 22 206 718, year 2011‑2012 only two months of data would not be measured against annually figures, there had been drastic increase of copper cables theft and electrical Infrastructure since 2007 to date. This was due to the fact that copper was valued at approximately R65. 00 per kg and the demand for exports to India and China were high.

3.2 Yes, a Business Risk Control Branch was started in 2009.

3.2.1.1 There were currently, six members of staff in the division made up as follows:-Three belong to the Risk Section and two investigators and a Senior Manager.

3.2.1.2 The Branch had been assigned a budget of R29 million.

3.2.1.3 The Senior Manager of the branch was Manju Naidoo. The Unions objected both at Local and Cluster Local Labour Forums to the Business Risk organogram being amended to include network theft and investigations section. It took a year and was only finalized in November 2010. The Senior Investigator post for the Network Section had been advertised four times to date and no suitable candidates had been recruited. At present, six Task Teams from the external security providers had been appointed, to patrol, monitor and react to reported incidents of cable theft until the Branch was adequately staffed.

3.2.1.4 2009

3.2.1.5 Scrap dealers

The Unit was focusing on scrap dealers together with Provincial South African Police Services, Non Ferrous Crime Combating Committee – Brigadier Harry and Business against Crime. This Committee under Brigadier Harry is committed to more raids on scrap dealers.

Raids were conducted on suspected dealer premises at least every 3 months with SAPS. The onus ultimately lies with SAPS and NPA in charging and prosecuting these dealers. The Municipality had no direct jurisdiction over these dealers. Council could only advise SAPS the suspected dealers in the industry, surveillance and raids are then conducted by SAPS – Organised Crime Unit.

It must also be noted that illegal “Bucket Shops” represent a major problem as they were unregulated, difficult to locate and contribute to significant quantities of copper and other metals leaving our shores.

Thus far, only a few scrap dealers have received fines from SAPS. There have been no convictions against them to date regarding eThekwini Electricity property.

The Municipality had been awaiting amendments and promulgation of the Second Hand Goods Act for the past two years. This new Act will give law enforcement “more teeth to prosecute dealers who were in possession of metals in their possession where they cannot identify the legitimate source of ownership. There would be stricter fines and sentences to be imposed on these scrap dealers.

Amendments to the legislation have been formulated collectively with Eskom, Telkom, Metrorail and Transnet via the National & Provincial Saps Non Ferrous Crime Combating Committee and Business Against Crime. The Minister of Energy has also recently publicised her support for these amendments. Research has shown that countries like Brazil have banned copper exports which have dramatically reduced copper theft. To get our country to adopt such a decision will require massive support from businesses as well as stakeholders in government.

The Notice of Motion which follows was approved at the 27 September eThekwini Full Council Meeting.

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15 September 2011

The Speaker
eThekwini Municipality
Councillor Logie Naidoo

NOTICE OF MOTION IN TERMS OF RULE OF ORDER 13

This council noting that:

The WHO’s “World report on road traffic injury prevention” which says:

1. The principal road safety engineering techniques for improving the safety of pedestrians and cyclists are the provision of safer routes … and area-wide speed reduction or traffic-calming measures.

2. Area-wide speed and traffic management can be highly effective, particularly in residential areas, where benefits have been found to exceed costs by a factor of 9.7.

3. At speeds below 30 km/h pedestrians can coexist with motor vehicles in relative safety and recommends that limit for residential roads.

Resolves that Exco investigates and reports on the following:

1. ETA be required to consider and report within 3 months on the section of the report entitled “Interventions” and consider implementation of the recommendations.

2. The budget for traffic-calming measures such as rumble strips and speed humps be doubled for the next financial year.

PROPOSER
WB CHAPMAN

SECONDER
H GUMBI

“…there is no place at all for the sub-judice rule in modern South African Law. The rule emanated from the days of trial by jury where jurors could be influenced by press speculation about the guilt or innocence of defendants. The rule is far too widely applied with the most bizarre consequences.” — James Selfe MP

Cllr Warren Burne and I collaborated on the Notice of Motion below with the intention of ensuring councillors and officials in eThekwini do not use the sub-judice rule to hide information. For this the reason the NoM itself is fairly innocuous and entirely objective such that little no opportunity is created for debate.

Unfortunately, at the 5 September eThekwini council meeting the ANC rejected this motion citing spurious and factually incorrect reasons, while at the same time agreeing and suggesting it should be workshopped with councillors and officials.

Below the notice of motion is a synopsis of the legal position of the sub judice rule in South Africa.

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The Speaker – eThekwini Council
Councillor Logie Naidoo
City Hall
DURBAN

21 August 2011

Dear Mr Speaker

NOTICE OF MOTION IN TERMS OF SECTION 13 OF THE RULES OF ORDER

This council noting:

1. The Constitution and other legislation require that public administration must be exercised with a high standard of ethics, accountability and transparency.

2. The sub judice-rule applies only where court proceedings have already commenced and not to matters still under investigation.

3. The application of the sub judice-rule has been severely narrowed since the 2007 Supreme Court of Appeal decision in the Midi Television-case.

Hereby resolves that:

The Head: Legal Services be hereby mandated to comprehensively brief all senior officials, the chairs of all committees, formal structures and forums of the municipality on the scope and effect of the sub judice-rule in the interests of transparent and accountable governance.

CLLR WB CHAPMAN
Proposer

CLLR WJ BURNE
Seconder

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THE SUB-JUDICE RULE
A SYNOPSIS OF ITS LIMITED SCOPE AND APPLICABILITY
BY CLLR WJ BURNE

1. The issue goes to the heart of our oversight role as public representatives.

2. We cannot exercise that role if reports, data and information are withheld. One of the tricks used to hide such reports, data and information is the abuse of the sub-judice rule.

3. Before dealing with what the sub judice rule is, and where it applies, we must clarify what it is not.

a. It is NOT a shield behind which to hide reports, data and information.

b. It is NOT a carpet under which to sweep reports, data and information.

4. The sub judice rule is a longstanding tenet of our Common Law (and the Common Law of most other democracies) which is part of the law relating to contempt of court. The purpose of the sub judice rule is to prevent interference in the administration of justice in a matter pending before a count.

5. I stress those words – “pending… before…a court.”

6. It applies to matters in a criminal court or in a civil court.

7. The sub judice rule does not apply where a matter is under investigation. It only applies when the court processes have commenced.

8. Criminal proceedings are commenced by arrest, summons or a warning to appear. Civil proceedings commence when a summons is issued or an application is launched.

9. The sub judice rule is said to protect judicial officers and witnesses from being influenced (or being perceived to be influenced) by statements that appear in the media. In those countries which have a jury system, there is a greater danger of the members of the jury being influenced by statements in the media. In the case of our judicial system, the legal training and experience of our judges and magistrates makes it less likely that they will be influenced by the media reports relating to events taking place outside their courts.

10. The scope and effect of the sub judice rule was considered in detail by our Supreme Court of Appeal in the matter of :

MIDI TELEVISION (PTY) LTD v DPP 2007(1) SA 56 (SCA)

[See at the end of this synopsis for the extract of the judgement where the test is set out.]

11. The court established a test as to when and where the sub judice rule applies. In doing so, it adopted the test used in England, Australia and Canada.

12. Simply put, the test is this:

Publication of information or the distribution of a report, or discussion in a committee can be withheld only if the publication, distribution or discussion will give rise to a real risk that demonstrable and substantial prejudice to the administration of justice will occur.

13. And even if this high threshold test is met, that is still not enough to restrain publication of a report or discussion in a committee. The person seeking to invoke the rule must be able to satisfy a court that that the ban is necessary and proportionate to prevent the prejudice from occurring.

14. This test is much more stringent than it used to be in the pre-democracy era. In this regard, the judge in the Midi TV case said: “To the extent that the pre-constitutional decisions of this court … might suggest otherwise I do not think they are consistent with what is to be expected in contemporary democracies”.

15. So, the Midi Television case was a fundamental change in the law relating to the sub judice rule. The new test requires that a real risk of substantial harm be demonstrated.

16. What does this mean in practice?

17. Firstly, no municipal official or a chair of a committee can say: “We can’t discuss such-and-such issue because it is under investigation” Or, “…because it might to go to court.”

18. Secondly, even if court proceedings are pending, further enquiry is necessary to determine whether the rule applies.

19. Thirdly, the person seeking to withhold information or to suppress free discussion, cannot simply rely on speculative harm to justify withholding information or preventing discussion.

20. So, if confronted with an official who is refusing to release a report, or a chair who refuses to permit discussion on a matter, proceed as follows:

21. Ask that person to specify what court proceedings will be affected by the release of the report or the discussion in committee. If the refusal is made in a meeting, ask that the refusal and the reason for the refusal are recorded in the minutes of the meeting. If the refusal is made outside a meeting, make a note of the request and the refusal. Include in your note the date and time of the incident and the name of the official.

22. If court proceedings have commenced and are still continuing, then ask the official or the chair to specify on what basis he or she believes that the publication or discussion will (not “might” – the “real risk” part of the test) influence the outcome of those court proceedings. Again, have the answer recorded in the minutes, or make a note of the answer given.

23. Even if the official or chair can advance a credible belief that the court case will be interfered with, weigh up whether the interference will be substantial. If you believe that it won’t be substantial, tell the official or chair accordingly. If in committee, ask for your response to be recorded in the minutes. If not in committee, add that detail to your notes.

24. Finally, if the official or the Chair can satisfy you that there will be interference in an pending court case, and that the interference in the court case will be substantial, ask the official or chair to specify why he or she believes that a court will be satisfied that the disadvantage of curtailing the free flow of information outweighs the advantages of the free flow of information in a democracy. Again, have the answer recorded in the minutes, or add it to your notes.

25. This process will not guarantee you access to the required information, nor the opportunity to discuss the issue in committee, but it should discourage officials and chairs from abusing the sub judice rule.

26. The following comments from a well known and respected commentator on matters of constitutional law, Pierre De Vos, are instructive. In a recent item on the blog site “CONSTITUTIONALLY SPEAKING” in July 2011, he wrote:

In any case, as the law stands now, the sub judice rule will almost never be applicable. Where anyone invokes this rule, they are doing so either because they are ill-informed about the law or because they are using the rule to avoid accountability. Whenever a politician invokes the sub judice rule, I for one will assume that the politician is admitting guilt or other wrongdoing, but is trying to hide from scrutiny and accountability for his or her actions.

So next time you read that a politician has invoked this rule, please do not believe for one second that the rule is applicable. It will not be applicable. Assume instead that the politician is ducking and diving because he or she is scared; or is trying to avoid being caught out in a lie.

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MIDI TELEVISION (PTY) LTD v DPP 2007(1) SA 56 (SCA)

Dealing with the sub judice rule in the context of pre-publication censorship, Nugent JA, writing for a full bench of five judges, summarised the new position as follows:
Publication will be unlawful, and thus susceptible to being prohibited, only if the prejudice that the publication might cause to the administration of justice is demonstrable and substantial and there is a real risk that the prejudice will occur if publication takes place. Mere conjecture or speculation that prejudice might occur will not be enough. Even then publication will not be unlawful unless a court is satisfied that the disadvantage of curtailing the free flow of information outweighs its advantage. In making that evaluation it is not only the interests of those who are associated with the publication that need to be brought to account but, more important, the interests of every person in having access to information.