The stern warning comes after the SA Municipal Workers’ Union challenged the validity of the Local Government: Municipal Systems Act Amendment Act 7 of 2011.
In its High Court and Constitutional Court applications, Samwu argued that the act was incorrectly tagged as an ordinary bill not affecting the provinces rather than an ordinary bill affecting provinces.
The labour union also argued that it was unlawful for the act to forbid municipal managers from occupying senior positions in political parties of their choice, saying the regulation was inconsistent with the Constitution and was limiting their rights to freedom of association
On March 9, 2017, the Concourt agreed with Samwu and declared the Amendment Act constitutionally invalid. It ruled that incorrect parliamentary processes were used to pass it into law. The Concourt found that the act excluded inputs from provinces.
“Parliament had processed it as a Section 75 bill (an ordinary bill not affecting provinces) instead of as a Section 76 bill (an ordinary bill affecting provinces),” the Concourt found.
It also suspended the declaration of invalidity for 24 months to give Parliament time to remedy the defect while the amendment remained in place.
However, the Department of Co-operative Governance failed to meet the March 9, 2019, deadline to introduce the new Amendment Bill before Parliament.
As a result, Mkhize approached the Concourt on March 20 for an extension for 12 months but the court rejected his application.
Due to the court’s decision, Mkhize issued a circular to all municipalities warning them that the Concourt's decision did not affect all laws governing municipalities in the country.
“The invalidation of the Amendment Act does not apply to the Local Government Municipal Systems Act 32 of 2000, including all amendments made prior to 2011 (the principal act). This means that the principal act and all amendments made before 2011 remain operative and enforceable,” Mkhize said.
Regulations on appointment and conditions of employment of senior managers including systems and procedures of employment conditions of municipal managers and managers directly accountable to municipal managers were still valid and enforceable and municipalities were legally required to comply with them even after the March 9, 2019 deadline.
Mkhize also said municipal councils were required to report to the Local Government MEC on the appointment process and outcome of senior appointments.
The performance regulations regarding municipal managers, including the disciplinary code covering their scope of work, was still valid and enforceable, he said.
Mkhize urged all municipalities in the country to fill senior manager posts which became vacant before March 9, 2019 deadline. “Municipalities are encouraged to continue submitting reports on the outcome of the appointment processes of senior managers for monitoring by the Local Government MEC and the Minister Co-operative Governance and Traditional Affairs,” the circular reads.