Session 2 - Parliament of South Africa

LG Week
31 July - 03 August
Sound Policy & Legislative
Framework to Accelerate Service
Session 2: 31 July 2012
Cllr J. Matlou – NEC member &
Chairperson of Governance & IGR Working Group of SALGA
• Introduction
• Background / Context
• Problem Statement
• Key Focus Areas
• Recommendations
1. Introduction
• The Constitution is underpinned by principles of cooperative
governance, providing that in South Africa, government is broadly
constituted as national, provincial and LG, which are distinctive,
interdependent and interrelated.
• Each sphere of govt must respect constitutional status, powers
and functions of the other spheres and exercise its powers and
perform its functions without encroaching on the geographical,
functional or institutional integrity of another sphere.
• However, should any sphere of govt be unwilling or unable to meet
its obligations, the Constitution provides for a system of
interventions, in terms of which the national govt may intervene in
provinces and provinces may intervene in municipalities.
2. Background Context
• The vision of the Constitution and the White Paper on LG (1998) is that
of a strong LG, supported by a firm subsidiarity principle and original
• Thus, LG is the key site of delivery and development and is central to
the entire transformative project of the country – it is therefore a key
mandate of LG (with the support of provincial and national govt) to
eliminate the disparities and disadvantages that are a consequence of
the policies of the past and to ensure, as rapidly as possible, the
provision of services to all communities.
• The underlying assumption and premise of this Week is that LG is the
sphere that is most crucial in accelerating service delivery and, in that
context, this input seeks to highlight some key policy and legislative
areas requiring attention or where significant innovation is possible.
Background & Context
• While improving national and provincial support and oversight of LG is
necessary and in many instances welcome, the ultimate objective is
and must be to build and strengthen the decentralised form of govt.
• The LG Week is thus an important platform (bringing all spheres of
govt and various stakeholders together) to discuss the challenges and
share best practices so that we can move towards building a more
efficient, effective, responsive and accountable LG that is highly
capacitated to contribute meaningfully to the development of the State.
• SALGA has previously, in our National Conference of 2011,
highlighted some of the fundamental policy or legislative constraints
hampering LG which we believe if addressed will create a more stable,
sound and equitable policy and legislative framework to deliver on the
developmental mandate.
3. Problem Statement
• Over the last decade, a comprehensive and necessary suite of policy and
legislation has been directed at LG.
– volume of the policy and legislative framework for LG has undergone
continual tinkering with sector being the object of much policy and
regulation, and is increasingly feeling the effects thereof.
• At the same time, (seemingly annual) policy and legislative interventions
in LG have the unintended consequence of breeding instability and a
lack of confidence in and among LG fraternity.
• In other areas, undue encroachment on the discretion of municipalities is
compromising the sector’s innovative potential.
• The result is a lack of appetite on the part of municipalities to invest
resources, capacity and energy in the short-term, knowing that another
policy or legislative intervention is just around the corner.
Problem Statement
• A further important observation is that the effects of national and
provincial policy incoherence is inevitably manifested and experienced at
the LG level
– It is LG, as the sphere closest to the people, who bear the brunt for any
failures regardless of who the responsible sphere or entity is.
– Indeed, there is no such thing as a prov or national area, almost
everyone lives and works in one of our wall-to-wall municipalities.
• In this context, an important realisation is that the march towards
developmental LG is not, and will never be, a linear one.
• There must therefore be recognition in our policy and legislative
approach that municipalities, rooted in their particular historic, spatial
and economic circumstances, are at different stages of their own
development cycle, and treat them differentially.
4. Key Focus Areas
• Pursuant the context provided above, the following are some of the key
focus area, relating to the policy and legislative framework, for discussion
and attention:
– The policy and legislative framework – enabling or constraining
acceleration of delivery?
– The support framework of national and provincial government to local
government and cooperation between the three spheres (including
– A differentiated approach to municipal powers, functions and
governance arrangements
– Functionality of governance structures and systems and enhancing
oversight and accountability at local government level (such as
MPACs, Executive Mayor System and Separation of Functions)
4.1 Towards an enabling
Policy and Legislative
While improving national and provincial support and oversight of LG (including
through policy and regulation) is necessary and in many instances welcome, the
ultimate objective is / must be to strengthen decentralisation & create an
enabling policy and legislative environment for municipalities to deliver services.
Moreover, there is a dialectical relationship between capacity and responsibility;
both works to condition and define the other – the absence of responsibility
diminishes the force to build capacity and vice versa.
Therefore, any policy or legislative intervention and support should not take
away responsibility for service delivery from municipalities.
There is indeed a need to focus on fixing the internal environment of
underperforming municipalities but this is inadequate on its own.
But there is also a need to for priority actions that seek to improve the external
environment or context that undermines the ability of municipalities to perform
their service delivery functions.
4.1 Towards an enabling
Policy and Legislative
• Much emphasis is placed on the municipal internal environment and the
manner in which support is provided with regards to improving this is
concerned with:
– Fixing the internal issues of underperforming municipalities; and
– Improving and coordinating govt support and interventions that that
seek to improve the internal environment of nonperforming
• But the national policy and legislative project should also entail:
– Ensuring that work is being done towards the resolution of the external
issues that are beyond the scope of a municipality;
– Building the capacity of provincial governments to monitor and support
municipalities; and
– Review legislation impeding speedy and effective service delivery and
reduce reporting burden on municipalities imposed by legislation.
4.2 Support Framework for
LG and Cooperation
between 3 Spheres
• Despite strong evidence confirming the soundness of our IGR system,
concurrent functions present particular challenges and continue to test the
robustness of the system.
• If we are to move closer to achieve integrated development planning across
the three spheres of govt, then three key issues require greater attention:
– How do we ensure successful Development Planning policy concurrency
with emerging new legislation (e.g. the SPLUMB), models on
differentiation, decentralised governance, and mechanisms for oversight
and coordination?
– How do we better assign development planning responsibilities between
national, provincial and LG – roles and functions of each sphere with
regard to intergovernmental planning and their budgetary allocations.
– How do we introduce integrated planning for service delivery, i.e. the
concept of a value chain from bulk to reticulation / sequencing of roll-out?
4.2 Support Framework for
LG and Cooperation
between 3 Spheres
Most sector depts prepare their own dose of strategic plans in which they
identify roles for LG, often without the knowledge of LG and often ignoring the
capacity of the municipality concerned.
From an instrumental approach, it is now apparent that IGR should be
measured in terms of development results rather than in terms of processes,
forums and meetings.
We need to coordinate govt priority setting, resource allocation &
implementation – through aligning our strategic development priorities in all
planning and budgeting processes (use IGR structures) to arrive at agreement
on the space economy & strategic dev spending.
There is no tangible policy on migration/ urbanisation, urban development, rural
development, agrarian reform, for eg, backed up by financial & institutional
support to municipalities.
It remains our firm belief that Integrated Dev Planning should be cornerstone of
all development in South Africa.
4.2 Support Framework for
LG and Cooperation
between 3 Spheres
General increase in the number of municipalities under s139 interventions mechanisms, processes and procedures in terms of s105 of the Systems Act
are often overlooked in favour of a s106 investigation and or a s139 intervention.
It is proposed that 3 main principles need to guide provincial interventions in
– 1st, the assumption of responsibility should be last resort in a process of
provincial supervision which should normally commence with review &
monitoring of a municipality, followed by steps to strengthen / support.
– 2nd, the integrity of LG as a sphere of govt exercising original powers should
be respected as clearly delineated in the Constitution - this should protect
municipalities from provincial interferences with municipal legislative
– 3rd, the aim of the intervention should be restorative rather than punitive.
4.3 Differentiated
Approach to Powers and
• Over the last two LG terms, we have seen a progressive delegation of
functions to municipalities by a range of nat and prov depts as envisaged in
various white papers, and also a wide range of functions where creeping
delegation can be seen.
• In both these latter cases the function is being envisaged but often without
the concomitant transfer of funds, or allocation of a capacity-building
• Incremental decentralisation should not mean that there is a series of
isolated policy decisions that each provide an opportunity to review the end
objective – the approach to decentralisation should not detract or deviate
materially from the vision enunciated in the Constitution.
• This approach is also in line with the role and function of the Constitution,
which is a ‘blue print’ or transformative’ Constitution, aimed at guiding
transformation rather than safeguarding the results of transformation.
4.3 Differentiated
Approach to Powers and
• Need to accelerate the recreation of cities as a different level of govt able to
tackle all the challenges of poverty, urbanisation and economic growth larger cities must have full control and authority over the built environment &
the creation of liveable sustainable human settlements in their areas,
including fiscal and regulatory control related to that function.
• Functional competences of LG must reflect the constitutional vision of a
developmental sphere as outlined in the White Paper.
• In this regard, it is especially functions such as housing, public transport and
roads, that must be fully assigned to metropolitan municipalities. - costing of
powers and functions is critical to inform devolution model.
• This approach also requires the present system of two-tier LG to be revised.
• The principle of differentiation must be applied in finding the most
appropriate functional and structural arrangements.
4.4.1 MPACs
• One of the strategic objectives of the LGTAS is to build clean, effective,
efficient, responsive and accountable LG.
• Accountability needs to happen by way of internal and external oversight.
Internal oversight is done within the municipality and the external
oversight by the Prov Govt as contemplated in the LGTAS.
• The traditional oversight committee of the municipality should be
established as a Municipal Public Accounts Committee (MPAC).
• To date, most municipalities have established MPACs and have been
assisted with roles and functions by SALGA and the Department of
Cooperative Governance.
• But we need to ensure that MPACs are strengthened and entrenched at
local level if it is to really enhance accountability and oversight, the audit
outcomes must indicate improvement and success over time.
4.4.2 Continued
Appropriateness of
Executive Mayoral System
• In general, the appropriateness of the executive mayoral system for
all types and sizes of municipalities need to be reconsidered.
• Currently there are municipalities with a total of 13 councillors
functioning as an executive mayoral system.
• In terms of the provisions of the Structures Act, 15 cllrs are required
to have a mayoral committee of 3 councillors, with any less members
of a mayoral committee to serving the purpose.
• In such smaller municipalities a collective executive system may be
more appropriate.
• Although the determination of the type of municipality is a provincial
function, it is proposed that certain norms and standards for such
classification be agreed upon.
4.4.3 Separation of Powers
at LG Level?
• In essence, there is clearly good reason why a separation of powers was not
envisaged for LG - diverse size of municipalities, as well as the nature of LG
functions renders such a separation impractical.
• Rather, the legislative framework gave municipalities the leeway to
determine their own structural arrangements that would best suit their
particular circumstances.
• To formally introduce separation of powers at the municipal level would
require legislative and constitutional amendment - requires a radical revision
of the political structures in LG and an arduous amendment process.
• Reality is that, apart from massive transformation yet again, this option will
not address the fundamental challenges peculiar to LG’s role and functions.
• Other than in large metro councils where it is practical and enhances
oversight, the separation of powers is of little import to good local
governance & a separation of functions should be pursued instead.
5. Recommendations
• With much of the transition of govt having been completed and with the
policy, legislative and fiscal framework in place for LG, it is timely to
reflect and draw on experiences and lessons learnt over the years to
achieve better developmental outcomes.
• While we only highlight some of the key issues for debate, the focus
must be on ensuring that LG has a sound policy and legislative
framework in place conducive to accelerating service delivery.
LG has been given a very broad and challenging set of
responsibilities, the execution of which requires a coherent and coordinated set of support initiatives from the other two spheres of
govt and an appropriate and differentiated fiscal framework.
• The emphasis must therefore be on more effective cooperative