Feldman proposal: Amend Local Government Municipal Systems Act, No 32 of 2000

Meeting report

Feldman proposal: Amend Local Government Municipal Systems Act (No 32 of 2000)
The Chairperson reminded Members that the legislative proposal had been submitted some time ago but the Committee had taken a decision not to take on any other issues before disposing of the Mofokeng and Mokoena issue, which had now been finalised.

Mr D Feldman (COPE, Gauteng) gave the background to his legislative proposal. His proposal had been triggered by the violent protests and demonstrations and burning of property, which indicated the frustrations of the people.

The main objects of the proposal were to give the National Council of Provinces (NCOP) a footing in the decision making of the Councillors. The Ward Committees and ward members did not have access to the councillors. Frustration boiled up in the people, and they then went on the rampage. It was the duty of Members of the NCOP to do oversight of the three spheres of government, national, provincial and local, but it did not play a very active role in terms of oversight of local government. The idea was not to be custodians of Ward Councillors but to partake in the Integrated Development Plans (IDPs) and the Expanded Public Works Programme (EPWP), to create a door from the communities to the councillors and to the Provincial Executive. There were so many wards – Gauteng had +400, how could the wards come together to speak one language. Monthly meetings could be arranged, the main purpose was to step in and assist communities to take their grievances to the structures in place. Most of the time the IDPs did not speak to the needs of the people, the people were not informed, and most likely the councillors ran away. The MEC of local government had to submit annual reports. The proposal was to be part of the process in the implementation of the IDPs. Before the recent elections people had been promised housing, electricity, and so on, but most Members did not know what the IDPs for the municipalities were. Mr Feldman wished to see feedback to the communities and to fulfil one of the Committee’s mandates.

Mr A Matila (ANC, Gauteng) asked for a legal opinion.

Adv Gary Rhoda (Parliamentary Legal Advisor) advised that it was ultimately the decision of the Committee as to whether or not to proceed with the proposal. He had some concerns:
- In terms of section 41(1)(g) of the Constitution, the proposal would encroach on the geographical jurisdiction of the municipal councils, or of municipalities at local government level. This section stated:
All spheres of government and all organs of State within each sphere must exercise their powers and perform their functions in a manner that does not encroach on the geographical, functional and institutional integrity of government in another sphere.
Adv Rhoda felt that the proposal would encroach in terms of the legislature into executive function of the local government.
- In terms of section 139 of the Constitution, the NCOP oversight function was rather limited. It only spoke to getting involved in situations where the Provincial Executive was involved in a municipality matter, or when national was involved in a Provincial Executive matter. That was the extent of the NCOP’s oversight powers.

Adv Rhoda asked for more clarity as to where the body would be situated, inside the actual municipality as part of that municipality that it would advise. However, if it would be externally sitauted, such as the Parliamentary Democracy offices, there would be nothing wrong with that. He was concerned that there would be financial implications. If it were a structure within the municipality, he would be concerned about the constitutionality of that.

Mr Feldman stressed that it was intended to be a door to the councillors, a custodian for the people. There would be no financial implications. People on the ground did not have access to the executive or to the councillors. During the elections people expected Members of Parliament to have powers. Ward committees were already a democratic institution that should be strengthened. The burning of the library could have been prevented. The Committee should meet the leaders of the Ward Committees and talk to the councillors. The NCOP should be visible to the Ward Committees; it was part of its function.

The Chairperson interjected that Adv Rhoda first give all his points of concern. All agreed that more efficiency was required in assisting local government, but the question was how to do that without violating the Constitution.

Adv Rhoda continued that the location in terms of the Act might be a little problematic. It should be located somewhere other than Performance Management, since Performance Management was done by the municipality itself. In terms of Section 38 of the Act a municipality must establish a performance management system commensurate with its three sources best suited to its circumstances, and in line with priorities, objectives, indicators and targets contained in its IDP. He thought the creation of such a body or monitoring tool with visibility of NCOP permanent delegates could be problematic. If it were something similar to a Parliamentary Democracy Office where the Permanent Delegates had oversight visibility and access to the Ward Committees (outside of the Performance Management system in terms of the Act), this would then be good. In principle there was nothing wrong with wanting to establish a body to have that oversight. It might even prevent situations where a province or provincial executive might have to get involved in a community (Section 39), because that could almost pre-empt the failure or lack of functioning of a local government. Adv Rhoda suggested that the Member meet with the legal team to discuss and formulate a specific area within the Municipal Local Government Act where a suitable place could be found.

Mr J Gunda (ID, Northern Cape) said it was true that local government had to be strengthened to be more of a watchdog but it would be better to have something like a Parliamentary Democracy Office to strengthen the Ward Committees, where they would not be interfering with the Constitution. He suggested that Mr Feldman sit with the Legal team and discuss the issue to avoid constitutional amendments.

Mr Matila said he met with all local councillors and community development workers in his constituency office each Monday, when some of the issues were discussed. Mr Matila had sixteen wards in his constituency, and twice a month he met with the Ward Committees. What was the difference between what was currently happening, there was no interference with the Constitution or the municipalities? Every third month parliamentarians met in Tshwane and would get briefings where the Chief Whip of the municipality would say what the challenges and issues were and would ask how to deal with specific problems. What was the difference between what was currently happening and what was proposed? Mr Matila supported meeting with the Legal team. The Committee also had to avoid overstretching themselves; it was already undertaking three processes.

Mr F Adams (ANC, Western Cape) said that SALGA had a sitting right in the NCOP but may not vote. Did that not give the NCOP certain leeway in terms of interacting with local government? It was a South African local government structure, and was mentioned in the Constitution. The Constitution also said in section 41 that there should be a fostering of friendly relations, assisting and supporting one another, informing and consulting one another on matters of common interest. Was the proposal infringing on the rights as set out in the Constitution? This was set out in section 41(1)(h) of the Constitution.

Mr M Mokgobi (ANC, Limpopo) noted the issue of the petitioner presenting to the Committee, but going forward the petitioner also needed to understand the views of other Members. The Committee needed to note that there would be provincial and local government reviews in 2014, and among that there was also talk of review of Ward Committees. He suggested asking the COGTA to get SALGA to present in context of the process, so that this Committee should not propose amending something now, and then later the committees dealing with local government also propose amendments. In order to synergise, one would need an understanding from the Department of Cooperative Governance and Traditional Affairs (COGTA).

In terms of the Ward Committee system, Mr Mokgobi felt research was needed as to what the common challenge was. In his constituency there was a working relationship between the current system of Ward Committees, Council and Parliamentary Constituency Office (PCO). If that were stable what would be the impact of the suggested bill over and above the constitutional concerns.

Mr Mokgobi’s province had a Provincial Ward Committee Forum that was convened by the Speaker at district level and took place within the context of Cooperative Governance. South Africa had a separation of powers, the Legislature, the Executive and the Judiciary. The Legislature did not implement; it did oversight. It seemed that there was nothing to prevent Parliament from visiting Ward Committees as part of its oversight, just as it visited municipalities, depending on time and space.

If the Committee agreed to the proposal the question of location was crucial. It was a two tier system, were they not creating a third that would overburden the State in terms of resources, dynamics, politics? How would it be constituted legally, how would it be funded? Currently Councillors in some provinces became the chairs of Ward Committees. Research was needed.

The Chairperson noted all were in agreement that there was a challenge on the ground, and the question remained as to how to be efficient and effective as public representatives and Members of Parliament. A caution had been sounded to be extra careful not to violate the Constitution. There was general consensus that the Department, SALGA, and the Review process, and the advocate ensure that the Committee came up with something that would not violate the Constitution and that would allow the relevant committee to work in an efficient manner.

Mr Feldman said Members had a constitutional mandate to serve the people, and it was their duty to serve at the grass roots where the trouble lay. He thanked the Committee that the proposal was still open to discussion. They would get to a point where all concerns would be satisfied, as long as it was in the interests of the people. Mr Feldman said it was not “his” petition.

The Chairperson explained that while the petition was from Mr Feldman it was not his petition in the context that all must take ownership and responsibility - because the people on the ground were not interested in whether it was ANC or COPE.

Adv Rhoda advised that Rule 147 said it was a political party mandate, and that party would designate a specific Member.

The Chairperson wrapped up, saying the way forward was very clear. SALGA, COGTA and the Legal Unit would be part of the process and would present a holistic view in terms of the whole process, and the review that would be taking place.

He thanked Mr Feldman and asked that Mr Feldman make himself available to speak to the proposal when required.

Adoption of minutes
Minutes of Committee meetings held on 18 November 2010, 16 March 2011, 23 March 2011, and 13 April 2011, were all approved and adopted.

Report on Study Tour to the United Kingdom
Mr Adams congratulated the Committee Secretary for such a wonderful job in detailing the study tour in the report. The Committee’s general findings were that South Africa was, in terms of dealing with petitions, way ahead of the English system, but one thing was lacked, and that was e-Petitioning. The general findings and conclusions were also very well captured.

Mr Matila agreed with Mr Adams.

The report was adopted and the Chairperson thanked Members for their support.

Announcement
The Chairperson announced that Parliament had indicated that funding was available to write a book on the Mofokeng and Mokoena petition. The book would tell the positive story of that had happened in this democratic South Africa. A number of books written by former Members of Parliament all reflected very badly on government, this one would be positive.

The meeting was adjourned.