Intergovernmental Relations Framework Bill: briefing

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Cooperative Governance and Traditional Affairs

14 February 2005
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Meeting report

PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE

PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE
15 February 2005
INTERGOVERNMENTAL RELATIONS FRAMEWORK BILL: BRIEFING

Chairperson: Ms R Ntshulana-Bhengu (ANC)

Documents handed out:
Preview on IGR Framework Bill (included in minutes)
Intergovernmental Relations Framework Bill [B3-2005]
Committee Budget
Committee Programme

SUMMARY
The Committee was taken through a preview of the Intergovernmental Relations Framework Bill by the Department of Provincial and Local Government (DPLG). The following issues, amongst others, were discussed:
- the importance of incorporating public representatives in the process on intergovernmental relations
- the importance of intergovernmental co-operation in the creation of a single public service;
- how intergovernmental disputes should be resolved;
- the relationship between the intergovernmental relations structures required in terms of the Bill and other existing structures; and
- the importance of aligning the Provincial Growth and Development Strategies (PGDS) and Integrated Developments Plans (IDPs).

Public comments and submissions on the Bill would be invited from the public in general. However, it is worth noting that the IFP are opposed to the Bill as it feels that the informal structures currently active in inter-governmental relations should be given more time to naturally evolve and improve before a formal, regulated system was created by law.

The Committee’s revised programme based on adjustments made to its budget was adopted it.

MINUTES
Intergovernmental Relations Framework Bill briefing
Dr D Powell (DPLG Acting Director-General: Governance, Policy and Research) drew the Committee’s attention to the briefing the Department had provided on this Bill
on 9 November 2004,. He thereafter took the Committee through a further preview. Here follows a summary:

Context for Bill
- Government's program of action (policy context)
- Constitutional framework for intergovernmental relations
- Current reality, challenges and opportunities
- Initiatives to strengthen intergovernmental cooperation

Policy context
- Constitutional requirement of Section 41(2) that there be an Act providing for structures to facilitate IGR and procedures for dispute resolution
- Makgotla resolutions – Integrated governance
Ten Year Review – Realising national vision given relative autonomy of provincial and local government
Target for 2014 Government’s Programme of Action: Improving performance of the state

The Constitutional context
1 Constitution assigns powers and functions to three spheres, unassigned functions vest in national government
2 Constitution invests organs of state with authority to perform allocated functions and to account for performance.
3 Coherent government of Republic requires spheres to cooperate and to cordinate actions effectively

Concurrency
1. National government performs functions that are not or cannot be located to provinces and municipalities (37.4% of national budget)
2. National government and provinces share social service functions (health, social grants and welfare and education). National's role is policy, regulation coordination, oversight and support. Provinces plan, budget and spend (58% of national budget:
93.7% is transfers)
3. National government and local government share basic service functions that are cost recoverable (water provision, sanitation, electricity). Similar role division as for national-provinces (4.6% of national budget: 85.4% is own municipal revenue)
4. Division of revenue is determined according to s214 of the Constitution and coordinated through multi-year budget process
5. Provincial and local equitable shares are unconditional (authority plan, use, expenditure and accountability vest in provinces and municipalities).
6. Municipal functions are primarily funded through own revenue (rates, user charges, and RSC levies) and transfers
7. Provincial and municipal performance is subject to national policy and legislation, powers of monitoring, support, override and intervention,
8 In practice, spheres coordinate their distinctive responsibilities through intergovernmental institutions and practices in order to forge coherent government and equitable service provision for the country as a whole!!

Intergovernmental relations: Current reality
- Intergovernmental process largely informal
- Certain statutory structures exist
- Pressure on all three spheres to accelerate delivery of services
- Emphasis on performance and effective coordination
- Policy issues of the day cut across jurisdictional boundaries

Challenges, opportunities
- Informality means intergovernmental relations can become discretionary
- Lack of certainty about inclusion of local government
- High transaction costs of ineffective coordination
- Stronger, spatially integrated forms of cooperation required in key areas of priority
- Vertical and horizontal integration
- Define a predictable and certain system of coordination
- Develop capability for intergovernmental relations

Key initiatives 2005
1. Intergovernmental Relations Framework legislation: Hands-on implementation support program to build capability centred on standardised practitioners manual
2. Process (lead by Presidency) to align development priorities of all three spheres
3. Supporting provinces to develop Provincial Growth and Development Strategies (PGDS) and municipalities to review Integrated DevelOpment Plans (IDP): IDP Hearings (commencing March 2005) will focus on engagement with Government prorities and municipal capability to implement lDP

Objectives
Promote and Facilitate:
a) Coherent Government
b) Co-ordination in the implementation of policy and legislation
c) The effective provision of services
d) Monitoring the implementation of policy and legislation; and
e) Overall realistion of national priorities.

Scope and content
Executive government
Institutional Framework
National, Provincial & Local Gvt
Promote and facilitate IGR
Integration
Dispute Resolution

Section 41(2)of the Constitution
Structure and Institutions
Settlement of Disputes

Chapter One: Interpretation Application end Object of Act
- Applies to government and Organs of State of executive
- Does not apply to:
Parliament
Legislatures
Courts and judicial Officers
Institutions established in terms of Chapter 9
(eg. Public Service Commission etc)

Chapter Two: Intergovernmental structures
- Chapter provides a broad legal framework for extsting non-statutory structures
- Defines primary purpose of each institution
- Linkages between intergovernmental structures are broadly defined (especially between MinMecs Budget Council and PCC)

Chapter Three: Conduct of Intergovernmental Relations
- Organs of State must assist and support one another as Contemplated in Constitution and National Legislation
- Chapter also provides for implementation protocols to assist the division ot responsibilities between spheres in key areas of national priority in spatially integrated ways

Chapter Four: Settlement of intergovernmental disputes
- Organs of State must seek to resolve own disputes without resorting to iudicial proceedings
- Default measure (Chapter not apply to disputes concerning interventions in terms of Section 100 or Section 130 of the Constitution)
- Compliance with procedures mandatory
- Non-compliance precludes court action

Chapter Five: Miscellaneous
- Main purpose of chapter is to provide for reporting, regulation and other incidental matters
- Ministerial Report to Parliament in both Houses with regard to inter alia: General conduct of IGR in Republic and Incidence and Resolution of lntergovernmental Disputes

Discussion
Mr B Solo (ANC) asked whether the Bill provided for the establishment of a forum, which would incorporate public representatives and would thus ensure that guidance was provided on oversight and development programmes whenever needed, especially at the local municipality level.

Dr Powell responded that the Bill focussed on local government at it was a new branch of government which needed to be further developed. Thus, they believed that some of the concerns raised regarding public representivity had definitely been catered for through a number of key linkage points within the system.

Mr Solo (ANC) expressed concern at the non-applicability of the Bill to regulators and lawmakers as he felt that if it was also applicable to that level then perhaps the Mkhize issue would have been dealt with differently. Nonetheless, he asked whom the Committee should approach if it wanted to oversee community development workers.

Dr Powell responded that they deliberately omitted the legislative branch of government from the Bill so as not to disturb the balance in the separation of power between the Executive and Parliament. However, should Parliament also require this Bill to deal with legislatures and the manner in which they should organise themselves, they could do so during their deliberation process. He further noted that they had release guidelines, through the National Treasury, to assist Parliament in effecting its oversight role.

Mr Green, while commending the Department on its well-structured presentation, questioned the feasibility of Chapter 4 of the Bill, especially on local government level where different municipalities were usually controlled by different political parties. He asked what measures were in place to ensure that municipalities, despite who controlled them politically, worked together for the betterment of the people and how Chapter 4 would assist in this regard. .

Dr Powell said that it should be borne in mind that the Bill was the result of a Constitutional provision, which required national legislation to be enacted to regulate intergovernmental relations and as such, a duty to co-operate was a duty imposed on all government structures by the Constitution. Thus, what the Bill did was simply to provide practical ways and intergovernmental mediation processes in which such co-operation could be realised.

Mr P Smith (IFP) noted that the IFP would not support the Bill as it did not agree with the arguments advanced by the Department and felt that the informal arrangements presently in place had not been evolved sufficiently to warrant their formalisation in the manner proposed in the Bill. Furthermore, he noted that the IFP believed that the manner in which the Bill was drafted seemed to send the wrong political message that other spheres were merely agents of the national government and should therefore pursue national policies. The IFP thus believed that while pursuing the notion of a developmental state, the provincial and local government spheres should be allowed a greater slice of policy formulation and not be subjected to national policies.

Dr Powell said that it was important for Members to bear in mind that the Bill simply "unpacked" the governmental structure that was already provided for in the Constitution and did not introduce anything new in this regard. Therefore, while they tried to balance the different responsibilities within the three spheres of government, they had to also realise the significant policy role that was played by the national government within the governmental structure. Therefore, the provincial and local government spheres would be required from time to time to implement national policies.

Ms X Mdludlu (State Law Advisor) also noted that the Preamble to the Bill stated very clearly that the aim was to harmonise relations between the three spheres of government and this would be done by ensuring that they all co-operated at an equal level.

Mr M Lekgoro (ANC) said that while it was important for government spheres to share the same vision, it was not enough. These forums had been proposed since they would see to it that the spheres also shared information amongst another to encourage the implementation process. He further noted that history had taught us that the problems regarding the lack of impact on local government level could only be resolved by an "action-down" approach.

Mr Smith (IFP) said that it should be noted that their objection was not based on the issue of autonomy as they did not contend that provincial and local government should be autonomous but rather should be given a relative position of independence. He said that their problem with the Bill lay in the fact that they believed that the informal arrangement structures, presently in place, should be given sufficient time to evolve before they could be formalised into the institutional structures in the Bill.

Mr W Doman (DA) asked why the South African Local Government Association’s (SALGA) membership in the National MinMEC forum had been put in brackets.

Dr Powell noted that considerable work had been done to ensure that SALGA was effectively represented in all key government processes and therefore Members should not confuse the issue of representivity with structural dialogue between government organs.

Mr Smith (IFP) asked whether the idea that compliance with the procedures would be mandatory in slide 29 also meant that participation in the forums would be mandatory.

Dr Powell responded that participation in intergovernmental forums was not an essential executive government process and as such, was not mandatory but based on orientation in creating effective government relations. However if one chose not to participate in these intergovernmental structures, one could not expect to approach the Constitutional Court and allege the existence of a dispute as the Court would not put itself in a position to resolve what was essential a government dispute. Thus, once one was part of the intergovernmental structures, compliance with the Bill’s dispute settlement procedures would be mandatory.

Mr Lekgoro (ANC) asked what mechanisms were in place to ensure that decisions that had been agreed on as protocols would become binding on all members of the relevant forum.

Dr Powell responded that the issue of a dispute resolution mechanism was a constitutional prerequisite and as such, the Constitutional Court would require government organs involved to demonstrate which reasonable efforts they made in resolving the disputes, as part of their evidentiary value.

Mr Green (ACDP) also noted that the provisions of Clause 37(2) of the Bill stated very clearly that whenever members sign a protocol they would also have to include dispute settlement mechanisms or procedures.

Mr Dorman (DA) welcomed the explanation and noted that he hoped the Committee would go into much more detail on this issue of protocols in its deliberation.

Mr Lekgoro (ANC) acknowledged that the Bill’s main focus was structural issues, but asked whether there would be any attempts to align the Provincial Growth and Development Strategies (PGDS) and Integrated Developments Plans (IDPs) with the view of ensuring coherency throughout the spheres.

Dr Powell said that it should be acknowledged that while the Bill provided a very good framework for executive co-ordination, it would not necessary deal with all the complexities facing government and therefore other measures had been put in place to complement its intended goals.

Mr Doman (DA) was concerned about the feasibility of the Premiers chairing the Premiers Forum, noting that their workload might hinder the progress of these forums and as such, they should rather be chaired by the MEC’s.

Dr Powell responded that since the Premiers were responsible for the exercise of executive authority in the provinces, it was felt that it was necessary that they should head this forum as it would give them an opportunity to consult with other structures within the province. He however noted that the Bill, in Clause 20, made provision for the creation of other provincial intergovernmental forums, which would be headed by the MECs.

Mr Solo (ANC) noted that some of the legislation, especially the provincial ordinances and municipal by-laws, did not always conform to the principles enshrined in the Constitution and thus asked whether this Bill would be helpful in reconciling these contradictions.

Dr Powell responded that as the Bill aimed at regulating the government interrelationship, which was presently based on an informal and unregulated system, it would ensure that government systems attended to key development priorities.

The Chair asked how the Bill envisaged dealing with those entities which, though they did not form part of government’s three spheres, were charged with the responsibility of providing services to the public.

Dr Powell said that since these entities were, by definition, part of the organs of the State they would also be subject to the principles and procedures in the Bill.

Mr Dorman (DA) asked what special reasons led the Department to include the Cabinet member responsible for public service in the membership of the President’s Co-ordinating Council (PCC) in Clause 5.

Dr Powell responded that, firstly, Cabinet members identified in Clause 5 all formed part of the national executive. Therefore, the Department felt that since this Bill fell within the governance cluster it was crucial to have these Cabinet members in the PCC as they all formed part of the critical components of that cluster which dealt with intergovernmental relations.

Mr Smith (IFP) asked why the Department had not used the same terminology in Clause 8 as it used in Clauses 5, 15 and 22, respectively.

Dr Powell said that it should be noted that the forums referred to in Clauses 5, 15 and 22 were critical in executive intergovernmental system as they would consist of the senior executive members and thus would deal with issues of policy priorities that ran across jurisdictional boundaries. However, since the MinMEC already existed, the Department did not want to be too prescriptive in this regard and thus acknowledged that sector integration may, at times, be the best level to take decisions on broader priorities.

Mr T Likotsi (PAC) asked whether the Bill was advisory or prescriptive in nature.

Dr Powell noted that since the Bill would be enacted in terms of Section 4 of the Constitution, which made it very clear that a duty to co-operate was not discretionary, it could not be advisory in nature. Thus, as the Bill sketched out the manner in which this co-operation should take place it also contained some provisions which were prescriptive in nature to ensure coherency throughout the government system.

Mr S Mshudulu (ANC) was concerned about the omission of the word "co-ordination" in the Bill and thus felt that it should have been made part of the Bill and be defined since its absence would make it very difficult to manage the whole process.

Dr Powell disagreed that "co-ordination" had been omitted in the Bill and noted that this concept formed a very critical facet of the Bill. Hence its elements, which were goal directed in nature, had been captured in the provisions of Clauses 2, 3 and 4, respectively.

Mr M Swart (DA) asked how the Department envisaged disseminating information and educating people on the ground regarding the principles contained in the Bill since without such education the whole process would be futile.

Dr Powell acknowledged that public access to key information relating to service provision was very critical to the success of the intergovernmental system. As a result, a number of measures had been put in place to ensure public access to relevant information and that they took part in their governance process.

Mr Doman (DA) asked for clarity on the exemption provided in Clause 36 of the Bill, which deatl with the application of the Bill.

Dr Powell noted that Clause 36(1)(a) provided a default provision as there were other pieces of legislation that were able to deal with issues of dispute in their context more appropriately than provided in this Bill. The exception provided in Clause 36(1)(b) stemmed from the basis that Sections 100 and 139 of the Constitution were measures of last resort aimed at correcting undesirable situations in the provinces or municipalities and therefore did not amount to policy measures.

The Chairperson noted that the normal parliamentary procedures of public consultation would be followed on the Bill. She asked Members to forward the names of structures, organisations or individuals to be specifically invited to public hearings to her office.

Committee Budget and Programme
The Chair informed Members that she had adjusted the Committee’s budget and revised the programme accordingly after being advised by the Chair of Chairs that all parliamentary committees had to cut down their budgets for this year. The reason, amongst others, was the fact that there would not be enough time for parliamentary work due to the forthcoming local government elections. She asked Members to adopt the adjustments and revisions to the budget and programme.

Mr L Green (ACDP) asked whether she had taken into account, when effecting the adjustments, the previous budget allocations. The Chair answered in affirmative.

The Committee then unanimously adopted the adjustments and the revised programme.

The meeting was adjourned.

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