By Michael Evans, Head of Public Law at Webber Wentzel

The announcement of the local government election on 3 August 2016 coincided with a number of reports reflecting the poor state of our municipalities.  Most significantly, the auditor-general recently reported that the financial health of 92% of the country's municipalities is a cause for concern or requires intervention.  Only 19% of all municipalities received clean audits and the irregular expenditure figure climbed to nearly R15 billion.

The reasons for the failure of municipalities are many.  One of these reasons relates to the way municipalities are governed, with the concentration of power in the hands of one person, the executive mayor.

The executive mayoral system enables the majority party to dominate completely all decision making.  This has the effect of over-politicising local government and encourages the sort of cronyism and corruption which is rampant throughout our municipalities.

When local government was reformed through the 1990's two governance systems were contemplated: the executive mayoral system and the collective executive system.  Provision for both options was contained in the Local Government: Municipal Structures Act of 1998.

At a local level the executive mayor has more power than the premier has at provincial level or even the president at national level.  The executive mayor has a mayoral committee, but this committee is appointed by the executive mayor and is beholden to the executive mayor.  Inevitably it is made up exclusively of members from the ruling party.  The executive mayor must consider the recommendations of the mayoral committee, but in most instances is not obliged to follow them.

In one municipality, for example, we have seen the effect of this concentration of power.  Soon after taking office, the executive mayor enlarged the mayoral office from 11 staff members to 58.  This had the effect of concentrating power in the executive mayor's office and simultaneously disempowering others within the municipality.  Key decisions in this municipality are now made without meaningful reference to the administration or the committees, and often without any meaningful public participation.  The mayor has often taken major decisions, for example in relation to property development applications, over the head of the political committees and the administration.  Big donors to the majority party have allegedly been favoured.

The experiences in this municipality have been mirrored in other municipalities throughout the country.

By contrast, the mayor under a collective executive system plays more of a ceremonial role, with the real executive power residing in the collective executive committee.  That executive committee is elected by the full council and is a multi-party committee, broadly reflecting party interests within the council.

While the executive mayor functions as a (more or less benign) dictator, the collective executive system has inherent in its structure the necessary checks and balances to ensure that it is more difficult for the majority party to ride roughshod over the views of minority parties and interests.  Important policy issues are more thoroughly debated and meetings are inherently transparent.  Public participation is enhanced.  This does not remove the potential for cronyism and corruption, but certainly makes it more difficult for miscreants to flourish.

The principal function of local government is to deliver services such as electricity, water, roads, refuse removal and in some cases housing.  The provision of these services would be better fulfilled if local government were to be substantially depoliticised, or at least structured in a way which facilitates a multi-party system of governance and accountability.  Only the collective executive system achieves that. 

The system of governance at municipal level is decided by the provincial MECs responsible for local government.  Inevitably their decisions are made in discussion with their own political parties and the relevant municipalities.  Almost all municipalities in South Africa are governed by the ANC or the DA, and both parties have favoured the executive mayoral system.  If there were the necessary will and commitment on the part of these parties, the system could be altered throughout the country without the need for any legislative intervention.

Alternatively, if there is not the necessary will on the part of the main political parties, the Municipal Structures Act could be amended to remove the executive mayoral option and make the collective executive system mandatory.

If Minister David van Rooyen is to turn around the fortunes of local government in this country, he is going to have to intervene at many levels: he will need to re-examine the financial management legislation, he will need to consider the cumbersome division of roles between district and local municipalities and he will need to intervene decisively to combat corruption and cronyism.

A first and relatively easy step for him to take would be to revise the government system.  The ultimate beneficiaries would be the communities served by our municipalities.