Regulations on competency must take centre stage

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Academics sometimes receive the most psychedelic excuses for a student not meeting the deadline for an assignment. Many of these are genuine but some are not. Coming to grips with the true reason for the non-compliance is often difficult.

As former finance minister Pravin Gordhan often reprimanded municipalities for not complying with financial rules and deadlines.

He also twice postponed his own deadline for municipalities, though. In his new role as minister of co-operative governance and traditional affairs, his key priority will be to ensure that local government capacity is improved.

The tale of the so-called “minimum competency regulations” shows that throwing law at the problem doesn’t guarantee success.

In 2007, then finance minister Trevor Manuel promulgated minimum competency levels for financial officials in local government. Municipalities were prohibited from employing officials without the prescribed competencies.

These rules affect individual employment conditions and may just be the most talked-about piece of law among senior local government officials.

At the time, the Treasury knew that many senior officials in local government did not yet meet these requirements. So the regulations were phased in. All municipalities were given five years to meet the prescribed competency levels.

Coupled with that, a comprehensive training programme was instituted to help affected officials to meet the requirements in time. The period of grace was supposed to have ended on December 31, 2012.

However, in April 2012, Gordhan extended the deadline for “special merit cases” and the Treasury would decide, on a case-by-case basis, whether or not a particular official was such a case. On March 14, the deadline was further extended to September 30, 2015. The latest extension no longer speaks of “special merit cases” but covers every affected official.

The Treasury thus twice backtracked on a deadline for local government to be brought in line with a new skills order. This raises questions about how realistic the original deadline was, but also about how seriously local government is taking these deadlines.

More about that later, let’s first turn to two key questions, namely: which officials are targeted by these regulations and what happens in the event of non-compliance?

The vast majority of the 300 000 officials in local government fall outside the regulations. However, if you fall within their reach and if you don’t comply, your job could be on the line.

How wide has the net been cast? “Supply chain management officials” and “financial officials” at both senior and middle management levels are affected.

“Supply chain management officials” are those officials involved in the implementation of the supply chain management policy of a municipality and these include the heads of municipal supply chain management units and all managers reporting to them. The second category is those officials exercising financial management responsibilities and this one is more ambiguous. It includes municipal managers and chief financial officers, but also financial officials at senior and middle management level.

Are human resource managers, specialised technical services managers, corporate services managers or water and sanitation services managers or their equivalents exercising financial management responsibilities for the purposes of these regulations? Their job has a financial aspect because they oversee departmental budgets but do they exercise financial management responsibilities?

We argue that many of them do. For example, the water and sanitation services manager of the City of Cape Town oversees the compilation and implementation of a massive capital budget (R620 million as at 2011) and an equally impressive operating budget (R2.5 billion as at 2011).

This must surely constitute exercising financial management responsibilities and this category of managers therefore attracts the attention of the regulations. We argue that all managers that report to the municipal manager are affected by them.

The appointment date is critical to determine the consequences of non-compliance. First, there are those officials who were appointed before the regulations came into effect, before July 1, 2007. These officials are safe, as long as they comply with the competency requirements before September 30, 2015.

Second, there are officials that were appointed after July 1, 2007, but before September 30, 2015. Their employment contract should stipulate that they must attain the competencies before September 30, 2015. If they don’t meet the deadline, the employment contract is breached.

The regulations are not clear, though, on what happens if an official does not meet the deadline. They are not automatically dismissed on D-Day. Our labour laws don’t allow that. So the municipality must do something, but what? Must the official be dismissed? Or perhaps demoted?

The Treasury has not explained to municipalities what to do. With the extension of the grace period, it has kicked the can further down the road and the number of officials that will ultimately fall short has obviously been diminished as there is now more time to complete the homework.

However, come September 2015, there will be municipalities faced with that difficult question: what to do with the official who did not meet the Treasury’s competency requirements in time?

The last category is those officials appointed after September 2015. For those, the consequences of non-compliance are clearer. After the end of the grace period, any appointment in violation of the regulations will be unlawful and can be challenged in court.

What should be read into the Treasury extending the deadline twice? Is the local government the proverbial student that twice convinced the lecturer with creative excuses to postpone the deadline for submitting the assignment?

Or is it a reflection on the government’s unrealistic ambitions? The Treasury would not be alone in setting unrealistic targets, given the failure of the Clean Audit 2014 target.

Compared to the many capacity-building efforts that have seen the light of day in local government over the past decade, the Treasury’s one may prove to have the highest impact.

At the same time, it seems that the Treasury fleetingly proclaimed a five-year deadline and subsequently bumped into the stubborn reality of how difficult it is for the sector to bring thousands of past and new officials up to that level.

The different approaches to the two different extensions bear testimony to a growing insight. The first extension was a reluctant one: only for “special merit cases” and to be determined individually by a brave Treasury that wasn’t going to lose face. In the latest extension, the Treasury let go of the reins completely: it covers all officials and no individual assessment is needed.

The Treasury must also have become fearful of its own law. It must have realised that an unmitigated application of the original deadline would have thrown local government into disarray as it would have sown uncertainty into the employment status of many senior officials in local government. This would have seriously destabilised local government. There wasn’t much choice but to extend the grace period.

Still, the practice of putting a target in a law and then softening it as the deadline approaches is not good for the rule of law. This is not a philosophical argument.

It is a practical one: in his new role, Gordhan needs to implement the minimum competency requirements in the recently proclaimed regulations on appointment and conditions of services of local government officials.

These regulations will apply immediately. Given what happened to the competency regulations, how seriously will this new set of regulations be taken?

* Phindile Ntliziywana and Professor Jaap de Visser work at the Community Law Centre.


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