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PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE
20 June 2000
MUNICIPAL SYSTEMS BILL: CHAPTER 2 & 3
Documents handed out:
Department's responses to submissions on each of the chapters of the Bill
Local Government: Municipal Systems Bill [B27-00]
In its afternoon session, the committee analysed Clauses 3, 4 and 5 of Chapter 2 and overviewed Chapter 3. Many of the issues, such as whether or not to legislate on the right to dignity and respect, the use of the phrase "communities, residents and ratepayers" throughout the Bill and the "right to perform a duty", had been raised before. A concern was raised that the Department was too easily accepting objections and proposed amendments by the committee and not defending the Bill vigorously enough.
Chapter 2: Legal Nature of Municipalities and Internal Relationships
Clause 3: Co-operative government
Ms Borman (DP) proposed that the term municipalities should be replaced with municipal council since the clause clearly outlined specific tasks that the councils must seek to achieve. Mr Smith (IFP) agreed stating that it was not the municipality that exercised legislative and executive authority, but rather the municipal council on behalf of the municipality. Mr Bhabha (ANC) disagreed stating that a municipal council is seen both as a corporate entity, and as a juristic person, and as such was not the applicable term. Municipality was correct as it referred to the "generic sphere" of the municipality, and not specifically to the council. He admitted that the opposing arguments were valid, but felt it necessary to have this bill be consistent with other legislation. The committee agreed.
Mr Smith (IFP) queried whether local governments had to seek to integrate their legislative and executive authority with the programmes, and policies of the national and provincial governments, or vice-versa?
The Chair responded that all spheres of government must be sensitive towards each other in co-ordinating programmes and policies. It was thought that the bill needed to make specific provisions to protect the needs of local government. Ms Manche stated these could be incorporated into Chapter 5: Integrated Development Planning.
Ms Borman (DP) also questioned the constitutionality of making municipalities participate in organized local government as stated in 3(1)(b). She felt the wording was too prescriptive when read in conjunction with 3(1). Reference was made to Section 163(b) of the Constitution which uses the term "may consult" in regards to determining procedures by which local government interact with national or provincial governments. The Chair felt that the clause did not create a compulsion to participate, since it clearly states "to the extent necessary". It was thought this phrasing diminished any implication of obligation.
Mr Bhabha (ANC) felt it was possible that 3(1)(b) could raise constitutional questions since it did create a compulsion on municipal governments to participate in organized local government. Mr Smith (IFP) felt that the clause was further problematic in that it did not allow for municipalities who do not even want to seek to participate in organized local government. Ms Manche admitted that they had been warned by the Department's lawyers that 3(1)(b) could be unconstitutional as stated.
In answer to Mr Smith asking whether it was necessary to include this, Mr Bhabha felt it was necessary as it establishes a balance to measure what municipalities must seek to achieve, and what is within their capabilities. Dr Bauer of the Department added that it was necessary to have a measure to test the validity of the term "seek to" in 3(1), and to question whether municipalities had taken sufficient measures to accomplish what was set out in 3(1).
Members were clearly unhappy with the formulation of Clause 3 saying it did not adequately clarify what was intended to be said. The Chair asked the Department to rephrase the section, taking into account what is laid out in the Constitution regarding local government.
Clause 4 Rights and duties of governing structures
The committee resumed its deliberations on Clause 4. Mr Carrim, the Chairperson, noted that in 4(1)(a) the word "its" is missing from "its own initiative" and there was agreement that it be included. He said that 4(1) (a) was otherwise fine except for the difficulty which the committee had with the phrase "communities, residents and ratepayers."
On 4(1)(b) Mr Smith (IFP) reiterated a point raised in a previous meeting. He said that he was not sure that one had a "right" to perform a duty. He said that duties connoted obligations rather than rights.
Ms Borman (DP) proposed that "right" be deleted. Mr Carrim said that this is merely a proposal with no agreement on this. He said that one did have the right to exercise one's powers so why not the right to perform duties?
The Department said that Clauses 4 and 5 were a philosophical reflection of their relationship. In using the word "right" it was saying that it was, for example, not parliament's right, not the province's right but the council's right. This reasoning would be in line with the fact that the heading of the Chapter was "Legal Nature Of Municipalities And Internal Relationships".
Mr Carrim suggested that "Internal" be deleted in the chapter heading.
Mr Smith said that 4(1)(b) was talking about exercising the powers of the municipality because it also performed functions. If one looked at the next sub clause 4(1)(c), it stated that the council had the right to perform its function without interference [the rest of 4(1)(c) having been deleted by agreement]. Mr Smith could not understand why the council had the right to perform its function without interference but did not have the right to exercise the powers of the municipality without interference.
Ms Manche of the Department said that 4(1)(a) and (b) (although (b) was amended slightly) were both in line with what was in the Constitution - 151(3) stated that "the municipality had the right to govern on its own initiative"â€¦.and 156(5) said that "A municipality had the right to exercise any power concerning a matter..".
Mr Carrim suggested that (b) and (c) be combined. This was agreed to.
In respect to 4(1)(d) Ms Borman said that one could simply have referred to 229(1) (a) and (b) of the Constitution. Instead there was completely different wording. She had a problem with the deviation from the Constitution.
Ms Manche said that this issue had been debated in a previous meeting and the Department had already responded to by saying that the charging of fees for services were essentially tariffs. The Department had said that these were user charges and in its reading of the Constitution and other national legislation like the Water Services Act, it had come to this particular view. The Department had asked their lawyers to look at whether the municipality could devolve the tariffs to a service provider.
Mr Carrim said that the Department seemed to be saying that 4(1)(d) was not meant to be a repetition of 229 but instead it was looking at other legislation as well. He said that Ms Borman should nevertheless consider her objection and bring it to the technical sub-committee.
Mr Carrim, looked at 4(1)(d)(ii) and asked for an example of "levies" and "duties". A representative of the Department said that it was a bit difficult because most duties were imposed by National Government. They gave an example of transfer duty.
Clause 4 (2)
Ms Manche noted that if a municipality did not have the administrative or financial capacity to govern then in terms of the Municipal Structures Act the MEC could decide to give those powers to a neighbouring municipality.
Ms Borman understood 4(2) to be saying that one should not live beyond one's means.
Ms Manche said that the Constitution had clearly given the municipality the mandate to provide access to services. The department was saying that they would do this within their means. However, what was being addressed was that if the community did not have the capacity to function at all, then there were provisions in another Act which allowed the MEC to give those powers and functions to another municipality. The point being made was that the municipality had to operate within their financial and administrative capacity.
Mr Smith said that this could be applied to most of the list, however he could not see how this could be applied to 4(2)(a). If one read (a) one could say that a municipality had to use its resources in the best interests of the community â€¦ only if it has the power to do this. This did not seem to make sense. Whatever resources one had always had to be used in the best interests of the community.
The Department replied that the problem raised by Mr Smith was because of where the emphasis was being placed in (a). However it would still make sense that one had to - within one's capacity and resources - do one's job primarily for the best interests of the community.
Mr Carrim felt that what the members were saying was reasonably sound. The Department had to rework the section, consistent with the Constitution, separating out issues meant to be separated and come back to the committee. He said that the technical sub-committee comprising Mr Smith, Ms Borman, Mr Bhaba, Mr Lyle and Mr Nonkonyana would negotiate with the lawyers of the Department and Ms Manche to sort this out.
Mr Carrim suggested that where amendments were agreed to, the Department should come the next day with the amendments in writing. The committee would look at them before moving on. If the Department only brought all the amendments to the committee in August, it may be discovered that they had not captured them fully. However the Department foresaw difficulties with this suggestion.
Mr Smith said that most of Clause 4 seemed to be giving effect to the Constitution. However he asked where 4(2)(g) came from.
Ms Manche said that "the progressive realisation of fundamental rights" in (g) captured the essence of the Bill of Rights - Chapter 2 of the Constitution.
Ms Borman felt that one would be creating a problem since it seemed as if one was dumping the responsibility of national government on local government.
Mr Carrim noted that (g) did state "together with national and provincial organs of state". However SALGA's concern was the same as Ms Borman's.
Mr Smith suggested a reformulation of (g): "The council of a municipality must respect, protect, promote and fulfil the rights in the Bill of Rights."
Mr Carrim said that it had been agreed that promoting equity had to be included in 4(2) as well. The Department will look at a reformulation.
Clause 5 Right and duties of communities, residents and ratepayers
Mr Smith felt that in principle there had to be some way of linking Clauses 4 and 5. Mr Carrim agreed saying that this would create greater clarity.
On Clause 5 Mr Carrim said that the structure had to be changed as there was a problem with the sequencing of 5(1)(a) - (g). For example, (c) should become (a) and (a) should become (b) since the main item was to participate in the decision-making process, not to "demand that proceedings be open".
Mr Elroy Africa of the Department said that they had also grappled with what the organising principle was in 5(1). The Department's thinking was that one had to have almost a hierarchy of rights - one had to categorise rights. He said that they were open to such suggestions on the sequencing.
Mr Smith said that it seemed to him that (a)-(f) were all concerned with participation rights and (g) was on the right to use of public facilities. He did not believe that this was an exhaustive list. What about the right to efficient government and the right to effective delivery of services? There had to be more expectations which one could construe as rights other than participation and the use of facilities.
Mr Africa said this was a valid concern. He had picked up on the same thing.
Ms Borman looked at (f) dealing with "prompt responses from the municipal councilâ€¦" She asked what was meant by "prompt" and whether there was any reference being made to the Promotion of Access to Information Act and what sought of time frame was envisaged.
In response a distinction between the Promotion of Access to Information Act and a prompt reply to an enquiry was made. The Promotion of Access to Information Act dealt with access to records. What was being referred to in (f) was not records but simply a reply to an enquiry.
Mr Carrim suggested that in (f) "written" be removed.
Ms Borman referred to (g) which said that one had the right to use facilities provided that one had complied with the duties set out in subsection 2. This implied one could be refused access to the library if one was not up to date with payment for services.
In response to Mr Carrim's comment that this would be difficult to monitor,
Ms Borman said that if municipalities were up to date with their computer systems, this is exactly what they would be able to do.
Ms Manche agreed that whilst one had a right to receive municipal services, one had a duty to pay for them. To an extent a municipality would be able to identify the user of services and whether this user had paid for certain services as a resident.
Ms Borman was concerned that the phrase "where applicable" in (a) would be a loophole for persons to escape payment of fees.
Mr Carrim replied that "where applicable" was not a loophole but referred to the indigent. Mr Bhabha agreed.
The committee revisited the issue of 5(2)(d) dealing with the right to dignity and respect. Mr Carrim said that there this had to be balanced by including a subclause in Clause 4(2) to deal with the dignity and respect issue. Mr Carrim felt that Clauses 4 and 5 needed to remain separate after all.
Ms Borman however felt that the previous discussion had centred on leaving 5(2)(d) out. One could not legislate for people to respect one another. She said that one earned respect. She did not know how one would implement something like this.
Mr Carrim said that there had already been an agreement that there would be a need for this because history had shown that citizens had treated councillors with contempt and vice versa. There would not be a discussion on this, despite his understanding what Ms Borman was saying.
In answer to why 5(2)(e) was referring to allowing municipal officials access to private property, Ms Manche said that this was needed for officials to gain access to meters.
In 5(2)(f) it was agreed that the new formulation would read, "to comply with by-laws and other legislation applicable".
Ms Borman could not see the point of this clause as all legislation is subject to the Constitution. Secondly she did not know what the reference to "the other provisions of this Actâ€¦" meant.
Mr Africa said that when it came to participation, the reference to "the other provisions of this Actâ€¦" was important. The logic here was to set out the so-called participation rights, and as one went through the Bill, one would see how this actually played itself out. The same logic would apply with references to the governing structures and so on.
Chapter 3: Public Participation
Mr Elroy Africa presented an overview of this chapter:
Â· Participatory Governance
- The Department was clearly ground in the participatory governance approach to complement the representative democracy model of governance and to have mechanisms which went beyond voting.
- Secondly the council remained the final decision maker.
- Thirdly the Bill did not go into specific local models for participation. The department was quite open ended and deliberate on this. In fact the institutionalisation of participation was left open to municipalities.
Â· Process Vs Outcomes Approach to Participation.
[This second conceptual area related to what had come out of the hearings]
-The first point which needed to be made was that the White Paper on Local Government made a distinction between participation as an instrument that municipalities needed to use and about community empowerment as an outcome. This was a useful distinction because Chapter 3 was simply considering participation as an instrument or a tool. One was not necessarily looking at participation or community empowerment as an "outcome".
-The second point in looking at the process vs outcomes approach to participation was that what has been done was to point to the bare minimum, mandatory process requirements that needed to be put in place. Thus the department was up front that it was not trying to be exhaustive. If the committee felt strongly that there had to be more said about the "outcomes of participation" then this could be revisited. The Department however felt that the Bill in general dealt with the "outcomes of participation".
The definitional issues were:
Â· "Subjects/Agents" involved in participation (this involved the debate about communities, residents and ratepayers):
-The Department submitted that perhaps people had to start thinking about the principle of a hierarchy of agents or participants. This might assist when going through the Chapter in specifying which particular agent or subject was relevant in a particular context.
-Secondly, in grappling with definitional issues, one needed to take into account both the collective and the individual and this was not a simple task.
-Thirdly context-specific involvement of agents in various municipal activities was mentioned.
Â· Forms of participation:
What was being done in Chapter 3 was to outline the minimum mandatory mechanisms or forms of participation without being specific. The way these forms would find expression would be in the particular subject matter or context. When one look at planning or performance management, for example, then one had to look at what form of participation was appropriate in that context. There could also be a hierarchy of forms of participation
The following table was a first attempt at suggesting a hierarchy for agents/subjects of participation and for forms of participation:
Hierarchy of Individuals / Groups with Rights:
Forms of Participation:
Is ranking desirable and possible?
Participation in the Bill
Chapter 2 dealt with generic "participation rights" of local communities and residents. This laid the basis for Chapter 3 as well as for the actual subject areas where these rights found expression in Chapters 5, 6 and 8.
"Participation Rights" of Chapter 2
Â· access to council meetings
Â· forward submissions
Â· access to information
Â· participation in decision making
Â· efficient and effective customer service
Â· use of public facilities and municipal services
In the chapters on Integrated Development Planning, Performance Management and Municipal Services, the Bill began to deal with actual forms of participation and the mechanisms, procedures and processes there:
Â· Preparing IDPs: Chapter 5
- consultation on needs and priorities
- participation in the drafting process & review of IDP
Â· Establishing a Performance Management System: Chapter 6
- regular access to information (KPIs, targets & annual report)
Â· Deciding on Service Delivery Options: Chapter 8
- community can request council to investigate service delivery options
- solicitation of views on above
- stakeholder consultation before service delivery agreements
- optional establishment of advisory committee on internal service districts
Line by Line Issues
Â· Clause 7:
- Consider deleting "seek to" in 7(1)
- Consider setting aside funds for participation
Â· Clause 8:
- Consider specifying "municipal council" in 8(1) &8(3)
- Refer to "affairs", not "local affairs" in 8(1)
- Include reference to women
Â· Clause 9:
- Consider specifying "municipal council" in 9(1)
- Consider strengthening the provisions to promote public participation (e.g. funding, training)
Â· Clause 11:
- Consider inserting a clause to make the decisions of closed meetings public
- Consider inserting a clause to make provision for a mechanism to appeal against closed meetings
Ms Borman felt that on the issue of definitions and the "communities, residents and ratepayers" issue, juristic persons should be included.
In answer to Mr Smith's query as to why the Department had drawn up a hierarchy of agents, Mr Africa said that the Department was responding to what they felt was quite a serious flaw in the Bill: the term "communities, residents and ratepayers" was used throughout the Bill without paying close attention to the context. The Department had found that in some instances, not all of these three groupings had the same rights. Therefore there was a need to dis-aggregate these particular groupings mentioned consistently throughout the Bill - thus the notion of a hierarchy.
Mr Smith said that at the hearings, everyone felt that the notion of "citizens" had to be included in the Bill. He was however still lost as to how one did this in a textual manner, although it was easy to talk about this conceptually.
He went on to say that Chapter 3 was not participatory governance. The focus was a system of representative governance with strong public participation. There was no participatory governance at all because the council made the final decision. Participatory governance suggested the opposite - that public participation determines the outcome as opposed to the representatives themselves.
Mr Africa said that the department had since day one heard concerns that they had started off strongly by talking about participatory governance, but in taking this philosophy through, the department had fallen back to traditional modes of participation. The major point in countering this position was the financial costs involved in taking participation further. Secondly there was also a concern that local government and councillors would be "crippled".
Mr Carrim was concerned that despite the fact that many of the original drafters of the Bill were no longer in the department, the representatives from the department were not defending the Bill adequately and were giving in to the comments and suggestions of members far too easily. New issues were being raised by members to which the department was simply agreeing whilst none of the submissions had even picked up on any of these issues.
Ms Manche said that the process of drafting the Bill emerged parallel with the white paper process. As a result, it was found at certain stages of the formulation of the Bill that certain policies had changed somewhat in the White Paper process and were inconsistent with the Bill, which necessitated further changes to the Bill. Dealing with the Bill was thus a complex task.
Mr Sledge Sekele said that the department was not agreeing to any policy shifts (which would need authority from the Minister) and the basic policy framework was still entrenched. In respect of current formulations which were not defensible, he felt that the Department did not have to defend them.
The meeting was concluded.
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