Staff reporter
Bloemfontein – The Independent Electoral Commission(IEC) legal services have thrown the rule book at Ketso Makume, the new MEC for both Cooperative Governance and Traditional Affairs (COGTA) and Human Settlement (HS) in the Free State following his letter to the election body regarding vacancies in the Mangaung Metropolitan council after the ruling party expelled 8 councilors for allegedly voting for DA councilor Maryke Davies as the speaker. Davies walloped the newly elected chairperson of ANC in Mangaung, Lawarance Mathae.
It all started when Gugu Malaza, National Representative whose secondment was questioned by opposition parties wrote to Makume.
According to the letter in our possession, the letter dated 31 March 2023, requests Makume to declare vacancies.
Malaza goes further to inform Makume that her office has a media statement released by the African National Congress that some of the councilors were being expelled.
“My office has a media statement released by the African National Congress, wherein some of the Mangaung Councillors are being expelled from the party with immediate effect (meaning effectively from the 31st of March 2023).
This leave leaves the municipality manager with 1 day, up to the 14th of April 2023, to declare a vacancy and for those councilors to be replaced as required in terms of subsections 18 and 20 of Schedule 1 of the municipal structures Act. The period between the 3rd and the 10th of April 2023 is the Easter period in South Africa and many government employees will take leave to be with their families during this period.
This will then leave the council with only 4 days to undertake this process, which is onerously and handled at the IEC Head Office.”
Malaza then cautions Makume about the whereabouts or lack thereof of Tebogo Motlashung, the acting City Manager.
“My office has reliably informed me that the acting City The manager might not be back in the office. To be precise, the acting City manager was not physically in office for the whole of last week (that is from the 27th to the 31st of March 2023). If the acting City Manager continues to be out of office during Easter Week, his absence could delay the declaration of the vacancy and ultimately the replacement of the expelled councilors within the timeframes (14 days) required by the structures act.”
What is of concern is how the community of Mangaung should interpret this because there is no communication at all if the acting city manager can be off work for the whole week and not at least inform the national representative.
Also, why is the national representative referring to the media statement? Did the ANC caucus not inform her officially?
What followed was letters on the 4th of April 2023 from the ANC Chief Whip in Mangaung and Provincial Secretary in the same vein.
Two days later, on 6th April 2023, Makume who is also the Deputy Chairperson of the ANC wrote a letter to IEC’s Steven Ramapulugoana citing letters from Malaza, ANC Chief Whip in Managung and Provincial Secretary.
Makume asked Rapudungoana for advice on timeframes for by-elections.
“The state of affairs enjoins me to intervene in terms of the provisions of section 25(4) of the local government structures act 117 of 1998 read with schedule 1 (18) of the same act.
I am therefore further requesting the IEC to advise accordingly in terms of the provisions of section 25(3) regarding the process and timeframes leading to the by-elections.”
In response, IEC went for the throat.
“In terms of Item 18(1)(b) of Schedule 1 of the Structures Act, the Municipal Manager is the lawfully authorized person to ‘declare’ a PR vacancy, and he/she must do so within fourteen (14) days after the councilor has ceased to hold office.
It is only if the Municipal Manager fails to declare a vacancy on or before the expiry of the 14 days, that the relevant MEC for local government may then assume this function following Item 18(1)(c) of Schedule 1 of the Structures Act.
In application of the above to the present matter, the expulsion of the impugned PR councilors was communicated to the office of the Municipal Manager on 4 April 2023.
In terms of Item 18(1)(b) of Schedule 1 of the Structures Act, the Office of the Municipal Manager must inform the Chief Electoral Officer (“CEO”) of the vacancy within 14 days, being on or before 18 April 2023.
Should the Office of the Municipal Manager fail to inform the CEO of the said vacancies on or before 18 April 2023, the provisions of 18(1)(c) of Schedule 1 of the Structures Act are triggered, and the MEC must inform the CEO of the PR vacancies within 14 days of the expiry of the initial 14 day period, being on or before 2 May 2023.
No provision exists in law for the MEC for local government to inform the CEO of a PR vacancy before the expiry of the period in Item 18(1)(b) of Schedule 1 of the Structures Act. To do so would be premature.
In the circumstances, albeit that the office of the Municipal Manager is currently vacant, the period in Item 18(1)(b) must expire before your offices are empowered to inform the CEO of the impugned PR vacancies.
The procedure to be followed when calling and setting a date for a by-election.
In conclusion, the IEC told Makume his intervention is premature.
“When regard is had to the relevant provisions of the Structures Act, it is evident that any intervention by your offices at present would be premature as the legislative periods assigned to the Municipal Manager to perform his/her functions have not yet expired. As such, the Commission cannot, at this stage, accede to your request to commence the consultative process of calling and setting a date for the by-election, nor is it permissible for the CEO to ‘fill’ the PR vacancies.”
Did the ANC and representative mislead Makume? But he at least should seek legal advice.
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