Intergovernmental Relations Framework Bill: public hearings

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Cooperative Governance and Traditional Affairs

14 March 2005
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Meeting Summary

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Meeting report

 

PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE
15 March 2005
INTERGOVERNMENTAL RELATIONS FRAMEWORK BILL: PUBLIC HEARINGS

Acting Chairperson:
Mr M Lekgoro (ANC)

Documents handed out
Intergovernmental Relations Framework Bill [B3-2005]
Submission by National House of Traditional Leaders
Submission by Community Law Centre (UWC)
Submission by Department of Land Affairs
Submission by SALGA
Submission by Childline South Africa
Submission by COSATU
Submission by South African National Civic Organisation
Department Presentation on the Bill

SUMMARY
The Department’s presentation on the Bill outlined its Constitutional context, government’s programme of action, the need for the Bill, government’s lengthy consultation process, the Department’s key programmes in 2005, the objectives of the Bill and an overview of each chapter of the Bill. During the discussion the Committee sought clarity on the following matters:
-
whether structures that currently existed that might fall away if they did not conform to the Bill;
- whether the introduction of the Bill would affect pending legal cases on intergovernmental disputes;.
- how it justified the limitation of the Bill to executive action only when Chapter 3 of the Constitution included Parliament;
- the extent to which the Department had investigated less adversarial dispute resolution and whether it investigated the establishment of a special court or tribunal to deal with these matters; and
- whether the Bill would have any effect on the Integrated Development Programme (IDP)..

The Department of Land Affairs submission was a brief input that focused on that department’s support to the Bill from the point of view of land reform. Members asked that department to provide examples of instances in which the absence of the Bill had proved a problem and whether the Bill was completely necessary for the achievement of that department’s goals.

The submission by the UWC Community Law Centre outlined its views on the objects of the Bill, the contents of the objects of the Bill, the consultative objective of intergovernmental structures, the nature of the intergovernmental forum, the Bill’s implementation protocols, provincial policies and legislation affecting local government and the responsibility in the Bill for co-ordinating intergovernmental relations of provinces and district municipalities. Members raised the following issues during the discussion:
- the steps needed to guard against the rewriting of the Constitution to accommodate the Bill;
- whether the Bill was an enforcement instrument;
- whether the Bill was seen as a replacement of the structures that currently governed the country; and
- whether the Bill fit in with the concepts of South Africa as a federal state.

The National House of Traditional Leaders submission did not support the Bill because it failed to accord traditional leadership structures the recognition they deserved. Members sought clarity on:
- whether the NHTL believed that the Bill should still make provision for traditional leadership;
- whether the NHTL could reconsider its views on the Bill; and
- whether the NHTL could be represented in some of the structures contained in the Bill in the absence of the amendment of the Constitution in the broader picture.

The South African Local Government submission outlined its concerns with the composition and meetings of the intergovernmental relations forums, the provincial policies and legislation affecting local government, intergovernmental forums, intergovernmental disputes and the role of the facilitator. He concluded that SALGA supported the Bill as its enactment would ensure coherent government. During the discussion Members raised the following issues:
- the level at which it currently participated in intergovernmental relations;
- clarity was sought on SALGA’s contention regarding Clause 33;
- why SALGA did not require a provision equivalent to Clause 33 that would be applicable to the national sphere of government;
- whether SALGA was in a position to intervene in disputes that might occur in municipalities; and
- whether organs of State like could become involved in disputes.

After the lunchbreak, the Committee was briefed by the SA National Civics Organisation (SANCO) and the Congress of SA Trade Unions (Cosatu). SANCO felt that the Bill was necessary but it should include more communication and consultation with, as well as capacity-building of stakeholders.

COSATU highlighted that relations between government and communities were overshadowed by public private partnerships. The federation had lauded the good intentions of the Bill but they called for public participation in policy formulation at all levels and to ensure that jobs were created. Furthermore, there was an urgent need to develop a framework to collect credible municipal data.

Members concerns included the effect of the Bill on pending legal cases. They also questioned the impact of SANCO participation in SALGA, and how the Department should determine the structure of ‘organised communities’ in view of the right to freedom of association.

MINUTES
Mr L Brown, Committee Secretary, informed Members that the Chairperson, Ms R Ntshulana-Bhengu (ANC), was unable to attend today’s meeting due to prior arrangements and an Acting Chairperson needed to be appointed. He noted that the Committee nominated Mr M Lekgoro (ANC) as Acting Chair. He informed Members that neither the Children’s Institute nor the Centre for Public Participation would be addressing the Committee today, as originally planned.

The Acting Chairperson informed Members that the Bill was primarily informed by elements from the Presidential Review Commission (PRC) as well as the Intergovernmental Relations Audit and a number of other discussion documents.

Department briefing
Mr D Powell, Acting Deputy Director-General: Governance, Policy and Research, outlined the Constitutional context and objectives of the Bill; government’s programme of action and government’s lengthy consultation process; the Department’s key programmes in 2005; and an overview of each chapter of the Bill.

Discussion
Mr S Mshudulu (ANC) stated that the Bill needed to be user-friendly to municipalities and relevant spheres of government. Secondly, there might be structures that currently existed that might fall away if they did not conform to the Bill.

Mr Powell replied to these two questions by stating that the Bill was an attempt to identify the processes and institutions that were informal but necessary to effect executive government co-ordination, and provided for those. Clearly the concern was the proliferation of institutions at different levels, and it was hoped that over time the Bill would become an organising point to assess the utility of the other mechanisms which may have evolved through practice but did not continue to have any relevance. The Bill thus did not simply create statutory processes out of every process that existed, but was also centered almost exclusively on executive government as defined, as opposed to technical processes at the level of the administration.

The Bill would clearly have to be user friendly in order to provide that level of clarity, and this was one of the Department’s key objectives. During the clause-by-clause analysis done by the Committee, the Department would ensure the user friendliness of the provisions of the Bill.

Mr Mshudulu he asked whether the Bill placed a duty on municipalities to exhaust the procedures provided in the Bill before taking the legal route. Finally, he asked the Department to explain whether the introduction of the Bill would affect pending legal cases.

Mr Powell responded that it was fairly clear from emerging case law on intergovernmental disputes that a failure to comply with statutory dispute mechanisms at the instance of an intergovernmental dispute as defined, meant that the courts would refuse to entertain an application. A good example was the National Gambling Board case. The Department thus believed that the measures in place were consistent with the line of thinking in the Constitution that government itself must resolve intergovernmental disputes before approaching the courts.

Mr B Solo (ANC) stated that there were small executive councils of approximately 10 members that were headed by a Speaker rather than a Mayor. They thus appeared to be excluded from the ambit of the Bill. He asked whether this was a deliberate measure or whether it was merely an oversight.

Mr Powell replied that this was not an oversight nor exclusion. There was in fact an inclusion in Clause 23(1)(c) that allowed the designation of a councillor in those municipalities that did not have a Mayor.

Mr P Smith (IFP) asked the Department to explain how it justified the limitation of the Bill to executive action only, when Chapter 3 of the Constitution stipulated that all organs of state were subject to Chapter 3 and thus included Parliament. Furthermore, Section 41(4) of the Constitution referred specifically to legislation. Surely the restriction of the Bill to executive governance posed a conceptual problem.

Mr Powell responded that in practice intergovernmental relations was about relations in executive government, and the executive implemented laws. The Bill thus sought to provide for the institutional machinery of these two spheres at the executive level to co-ordinate their actions. There was no intention in the Bill to legislate on behalf of Parliament, and it was thus focused expressly on organs of executive government.

Mr L Modisenyane (ANC) asked the Department to explain the extent to which it had investigated less adversarial dispute resolution, as the ordinary court system was very adversarial.

Mr Powell replied that the Department had tried its best to focus its attempts in the Bill on effective intergovernmental relations. It must also be remembered that the Bill was not developed in an adversarial process but rather via a co-operative process between all 3 spheres of government. The chapter that dealt with dispute resolution provided for various facilitation mechanisms which were really an attempt to get the parties to resolve the dispute using the procedures before court action. The Bill was thus well within the scope both of the Constitution and judicial decisions.

The court had held that the need to use these alternative dispute resolution mechanisms was a key feature of the Constitution and the court looked for instances of the dispute settlement mechanisms being utilised by the parties to a dispute.

Mr Modisenyane proposed the term ‘intergovernmental’ be replaced with ‘interspheral’ as there was only one South African government, and the Bill referred to the interaction between the 3 different spheres of government.

Mr Powell responded that the Constitution itself used the term "intergovernmental" and the Department was very strict about adhering to Chapter 3. Furthermore, the use of the term ‘interspheral’ when referring to executive government was tricky because there was no executive government for, for example, the local government or provincial government sphere. There were instead nine provinces and 284 municipalities.

A Member (ANC) asked whether the requirement in the Bill that parties to a dispute attempt firstly to resolve it via non-judicial avenues would be precluded from pursuing legal action should they be unable to settle the dispute amicably.

Mr T Fosi, Department, replied that Section 41(3) of the Constitution clearly stipulated that an organ of State must make every effort to resolve the conflict, and can resort to court action in the final instance.

The Member stated that this was important because there would be several court challenges under the Bill and he asked whether the Department had investigated the establishment of a special court or tribunal to deal with these matters, because these issues could unnecessarily clog ordinary courts.

Mr Powell replied that the Department looked at a variety of mechanisms for facilitating dispute settlement, and the Department felt that the Bill was in fact the alternate dispute resolution procedure envisaged. The point was not to create special judicial structures but was instead to ensure a non-adversarial and facilitated manner to resolve disputes. Thus the machinery in the Bill was established to operate before parties went to court. In practice the incidences of disputes in courts were fairly low, and approximately 17 disputes were heard in court over the last 10 years. Government was however of the view that this amount was 17 too many. Special courts were never considered as the approach to follow, as the aim was for government to resolve these disputes internally.

Mr Solo asked the Department to explain the extent to which the Bill would address key national priorities in the implementation of the transformation programme, especially with regard to development.

Mr Powell responded that this was a key focus throughout the Bill. The Department believed that the Bill provided the opportunity to really integrate government around achieving key priorities for the country.

Mr Mshudulu asked the Department to provide and example of a municipal by-law that might be over-ridden by the Bill, as contained in Clause 1(4).

Mr Powell replied that Clause 1(4) was aimed at providing for any form of conflict, similar to the provisions contained in the Constitution. The Department felt it was a necessary precondition to have a clause that dealt with the application of the Act, where it dealt with fields that were either currently unregulated or those that were currently regulated.

Mr Mshudulu sought clarity on the effect of the Bill on the Integrated Development Programme (IDP).

Mr Powell replied that the IDP was a central instrument for municipal development. The IDP was designed to be a participatory instrument of government in that it allowed a wide range of community and stakeholder participation in the decisions that affected an IDP. It was critical that an IDP as a statement of strategic intent in a municipality was able to ensure government acting in unison to ensure the results of expenditure and performance was integrated.

Mr Solo sought clarity on Clauses 5(3) and 16(3) of the Bill which related to the co-ordinating council.

Mr Powell responded that the Department was very careful in identifying the membership of the structures very explicitly. The Bill did however create the possibility that where a particular issue was important, it was possible to invite a Director-General or anyone who could help the structures to reach a decision. The structures referred to in those clauses were thus structures of executive government.

Department of Land Affairs submission
Mr Kaba Kabagambe stated that the Department was supportive of the Bill as it created an effective vehicle for co-operative government. Ms C Van Der Merwe, outlined the Department of Land Affairs’ brief input which focused on that department’s support to the Bill from the point of view of land reform.

Discussion
Mr Mshudulu asked the Department to provide examples of instances in which the absence of the Bill had proved a problem.

Mr Kabagambe responded that the beauty of the Bill was that it did not solely provide for the resolution of disputes but also provided a platform for co-operation, communication and co-ordination. With land, for example, the Bill provided a platform for all parties concerned to enter into that compensation and would identify the most appropriate land to be used and the role played by the different spheres, which would include discussions with the landowners.

Mr P Smith (IFP) asked whether the Department of Land Affairs no longer envisaged the setting up of the Intergovernmental Relations forums and, if so, whether the Department of Land Affairs envisaged the establishment of more than one such forum.

Ms Van Der Merwe replied that the Department of Land Affairs was still to establish this forum. She stated that at this stage the reference to more than one such body merely reflected the Department of Land Affairs’ intention to establish the relevant intergovernmental forums.

Mr Smith asked whether the Bill was completely necessary for the achievement of its goals as indicated in the last paragraph of the submission.

Ms Van Der Merwe responded that the objectives could be achieved without the Bill. The Department of Land Affairs was stating that the intergovernmental forums would support the achievement of the objectives.

Mr Smith stated that the intergovernmental systems envisaged in Clause 9 essentially related to vertical alignment of similar functional areas, and suggested that the formation of a land/local government MINMEC did not fall within the composition of Clause 9.

Mr Powell replied that he did not agree entirely with Mr Smith regarding the establishment of "like with like". He stated that the issue of land was critical to sustainable human settlement, as land development and land use management impacted on the municipality and indeed on a variety of Departments. The Department of Land Affairs was saying that the Bill would assist departments, other than the Department, to achieve greater predictability in the structure of that relationship in that particular key area of national priority. The Bill was thus not limited solely to "like with like".

Mr Mshudulu asked why the Department was not defined in the Bill.

Mr Powell responded that the Bill focused on executive government, and thus the Minister responsible was defined. It was thus implicit in that that the Department would play that kind of role. He definition could however be included if the Committee so wished.

UWC Community Law Centre submission
Professor Nico Steytler, Director: UWC Community Law Centre (CLC), outlined its views on the objects of the Bill, the contents of the Bill, the consultative objective of intergovernmental structures, the nature of the intergovernmental forum, the Bill’s implementation protocols, provincial policies and legislation affecting local government and the responsibility in the Bill for co-ordinating intergovernmental relations of provinces and district municipalities.

Discussion
Mr Mshudulu asked Professor Steytler to explain the steps needed to guard against the rewriting of the Constitution to accommodate the Bill.

Professor Steytler agreed that this must be guarded against, and the Bill stuck to the essence of Chapter 3 of the Constitution and provided tremendous assistance in giving meaning to that Chapter.

Mr Mshudulu asked Professor Steytler to explain whether he viewed the Bill as an enforcement instrument.

Professor Steytler replied that the Bill needed to be careful because Chapter 3 of the Constitution did not stipulate a "hard instrument of enforcement", and the co-operation provided in the Bill was a soft form of enforcement. Due to the distinctiveness of each sphere and the division of power, there was not a top-down approach to the giving of instructions.

Mr Mshudulu asked whether the Bill was seen as a replacement of the structures that currently governed the country.

Professor Steytler responded that the structures included in the Bill displayed a very important principle that the Bill dealt with the relationship between executive authorities, in the form of the President interacting with the 9 Premiers and the collective executive heads of municipalities in the form of organised local government. Although the Bill stipulated that the Intergovernmental Relations Forum was not a decision-making body it could make decisions, recommendations and resolutions which could be implemented not by the Intergovernmental Forum but rather by the constituent members.

On the face of it, it appeared that there would be duplication of a range of institutions, but as Mr Powell explained the Bill came at the end of the maturation of a system of intergovernmental relations. There was an informal PCC, MINMECs and a host of provincial intergovernmental relations forums, and the Bill made it clear that the PCC would solidify the structure. The MINMEC would continue but, with the adoption of the Bill, they would have to conform. The schematic outline of the Bill was not very prescriptive, and there would thus ultimately not be a duplication. The greatest changes could come at provincial level.

The Chair suggested that the current formulation of the Bill provided direction on the content of the consultation itself.

Professor Steytler replied that the Bill did not prescribe consultation "just for the sake of consultation" but it set out the issues that needed to be discussed. The question was whether the Bill could expressly state that the PCC would be the consultation forum for all parties to it, and not only for the President.

Mr Smith asked whether best practice had been captured in the Bill.

Professor Steytler responded that the best practices had been covered more or less, especially those of the MINMECS that had joint decision-making processes.

Mr Modisenyane asked whether there were other concepts of a unitary state that clearly defined the rules and powers of the central government and the provinces.

Professor Steytler replied that the very nature of Chapter 3 was agreement for South Africa not having a totally centralised state. It was decided that South Africa would have a form of decentralisation that created provinces as well as strong local government, but this would be done on the basis that South Africa was not a competitive decentralised state but instead a co-operative state. Chapter 3 was thus critical to the nature of the South African state and it was thus crucially important that the Bill captured the notion of co-operation. Emphasis was placed on avoiding disputes through political solutions as opposed to legal solutions.

Mr Modisenyane asked whether South Africa could then properly define itself as a unitary state.

Professor Steytler responded in the negative. The Constitution clearly established that South Africa was not a unitary state as a unitary state would have one Parliament as the single source of authority, whereas South Africa had 9 provincial Parliaments and 284 municipalities with their own democratic legitimacy. South Africa was clearly a centralised state but working within the framework of Chapter 3 which stipulated that the three distinctive spheres of government were ascribed certain powers, were inter-dependent and inter-related.

A Member (ANC) asked whether the Bill encapsulated the provisions in Section 146 of the Constitution that sought to attain uniformity of standards across the nation.

Professor Steytler replied that provinces might argue that they could establish additional forums, as there were only two types envisaged at provincial levels by the Bill. These additional forums could thus come into conflict and Section 46 of the Constitution could then kick in. The Bill did not dominate the entire field of intergovernmental relations, and there should just be scope for provinces to deal with municipalities and institutions within the province.

Mr Mshudulu stated that Section 41(1) of the Constitution did not appear to be expressly covered in the Bill, and questioned whether its omission was problematic.

Professor Steytler responded that it must be remembered that Chapter 3 of the Constitution still applied, and exclusion of the legislatures from the Bill did not mean that the legislatures now no longer needed to take account of Chapter 3. They were still bound because all spheres of government were bound by Chapter 3. The basic principles in Section 41(1) were captured in the Bill

National House of Traditional Leaders submission
Nkosi M Mzimela, Chairperson: National House of Traditional Leaders (NHTL), argued that over the past 10 years government had failed to properly accommodate traditional leadership in the governance structure, that the Bill failed to accord such structures the recognition they deserved and thus, for these reasons, the NHTL was unable to support the Bill.

Discussion
Mr Smith asked whether the NHTL believed that the Bill should still make provision for traditional leadership.

Nkosi Mzimela replied that the NHTL was hopeful that the Bill would adequately accommodate it, but instead it has marginalised and excluded the NHTL. It was for that reason that it could not be supported. The fact was that all the legislation referred to took their cue from the Constitution, yet they failed to give full expression to the rights of traditional leadership. The Constitution thus needed to be amended. At this point it was very difficult for the NHTL to endorse the Bill.

Mr Mshudulu stated that the submission did not appear to address the contents of the Bill directly

The Chair urged both presenters and Members to confine their input to matters that the Committee had the capacity to deal with.

Mr Tolo stated that the Bill in fact ensured a dialogue amongst the different sphere, and Clause 3 accommodated some of the issues raised by the NHTL. He reminded the NHTL that the Bill was primarily aimed at ensuring co-ordination between the executive authorities of the three spheres. The Committee could not affect the manner in which traditional leadership was dealt with in the Constitution, but he assured the NHTL that significant steps had been taken to accommodate traditional leadership, such as the passing of the Traditional Leadership Act and the Communal Land Rights Bill. He encouraged the NHTL to reconsider its views on the Bill.

Nkosi Mzimela responded that it would be difficult for the NHTL reconsider its position and accept the Bill because the present version of the Bill excluded traditional leadership structures completely. The problem was that the Bill was a result of other legislation that also ignored the role of traditional leadership, and it was thus impossible for the NHTL to allow the trend of non-accommodation to continue. It was for that reason that it could not agree with the Bill, and it was not out of order in raising the issues. This was the very Committee in which the NHTL would raise constitutional issues, because it accounted to the Committee.

Mr Smith asked whether the NHTL had amendments in mind apart from the amendment of the Constitution. Perhaps the NHTL could be represented in some of the structures contained in the Bill, in the absence of the amendment of the Constitution in the broader picture.

Mr W Dorman (DA) stated that he understood the concerns of the NHTL but the fact of the matter was that the Bill dealt solely with executive authority, which the NHTL was not. He asked whether the NHTL could be represented in any of the other structures in the Bill. Mr Solo agreed.

Nkosi Mzimela replied to these question by stating that the NHTL was the leaders closest to the people and the NHTL believed that if the NHTL was sidelined the traditional communities would not be well represented in intergovernmental dialogue. The question raised by Members was whether the NHTL was in fact an organ of state, and it was not clear from the Bill whether it applied to the NHTL. He stated that the NHTL was not refusing to comment on the Bill on a clause-by-clause basis, and would provide such analysis to the Committee.

He stated that the NHTL believed there was a need for it to liaise with Parliament in the same way that the South African Local Government Association (SALGA) and COSATU had Parliamentary offices.

SA Local Government Association submission
Mr Dickson Masemula, South African Local Government Councillor, outlined SALGA’s concerns with the composition and meetings of the intergovernmental relations forums, the provincial policies and legislation affecting local government, intergovernmental forums, intergovernmental disputes and the role of the facilitator. He concluded that SALGA supported the Bill as its enactment would ensure coherent government.

Discussion
Mr Mshudulu asked SALGA to indicate the level at which it currently participated in intergovernmental relations, as it was involved with the day to day functioning of municipalities.

Mr Masemula responded that SALGA was not necessarily sending officials to municipalities to check whether they were functioning properly, as this was instead done through the interactive process with SALGA’s head office and the provincial structures. SALGA had administrative and political programmes in place to assess the functioning of municipalities.

Mr Smith stated that he disagreed with SALGA’s contention on Clause 33, because there could be legislation that affected specific municipalities. Clause 33 thus appeared to accommodate SALGA’s concerns.

Mr Masemula replied that SALGA participated in a number of national and provincial structures. SALGA enjoyed membership within the PCC and it was thus able to make its inputs. It was also involved in the Premiers’ Co-ordinating structures in the various provinces, and there were also district forums in which SALGA participated in finding platforms and discussing development. SALGA was thus not requesting participatory status in those structures because it already enjoyed that. Instead the submission proposed the allocation of additional points to district municipalities to enable them to function more effectively.

Mr Smith asked SALGA to explain why it was not requiring a provision equivalent to Clause 33 that would be applicable to the national sphere of government.

Mr Dorman asked whether the replacement of the word "or" with "and" in Clause 33(1)(c) would cure SALGA’s concern with the clause.

Mr Masemula responded to these two questions by stating that SALGA believed very strongly that the consultation process must not only be conducted with one municipality because, although an assignment might be given to that specific municipality, it might not only benefit that municipality alone. There was thus a shared vision and structure that benefited all municipalities across the board.

The consultation process was conducted with national government as well and it was for that reason that SALGA was able to secure participation in very critical structures on a national level. SALGA was also participating in a number of sectoral interaction meetings between Ministers and SALGA itself, thus SALGA believed in consultation at the national level as well.

Mr Dorman questioned whether Mr Smith’s concern was not accommodated by Clause 28.

The Acting Chair proposed that this important issue be postponed until the clause-by-clause discussion.

Mr Mogase asked whether SALGA was in a position to intervene in disputes that might occur in municipalities.

The Acting Chair answered in the negative, as it would be resolved by the levels of government themselves.

Mr Masemula replied that there could be areas in certain policies that needed clarity on the relationship between the officials and SALGA councillors, and SALGA was able to intervene in some of these issues by providing clarity on the policy parameters. This assisted in providing resolution management amongst SALGA’s colleagues themselves. He stated that the Acting Chair was correct that SALGA could not intervene in intergovernmental disputes.

Mr Powell explained that intergovernmental disputes did not refer solely to policy disputes, instead the dispute must relate to the power and function. The point, as made by SALGA, was that the Bill aimed to ensure effective intergovernmental relations by requiring the spheres of government to work together in dialogue.

Mr Smith sought clarity on the meaning of the phrase "from a government" in the definition of the term "intergovernmental dispute", as it appeared restrictive. He asked whether this meant that Eskom was an organ of State from the Department of Minerals and Energy, and was the NHTL an organ of State from the Department. The current definition appeared unsure.

Mr Powell responded that the dispute resolution mechanism pertained to the specific provisions in the Bill. The inclusion of organs of State in intergovernmental relations was derived from Section 41 of the Constitution itself, and the Department had to decide how widely it would regulate the dispute mechanism. The Bill stipulated clearly that organs of government would be involved in an intergovernmental dispute, as defined in the Bill. It was thus a slightly narrower definition.

Mr Smith proposed that the definition therefore needed to be amended to reflect Mr Powell’s explanation.

Mr Dorman sought clarity on the "service providers and other role players concerned" as stipulated in Clause 25(5).

Mr Masemula replied that SALGA raised this point for discussion at a future date.

Mr Powell stated that the phrase "at least" was included as a minimum requirement, and it could be exceeded.

Congress of South Africa Trade Union (COSATU) briefing
After the lunchbreak, Mr E Paulus (COSATU) said it had engaged with government throughout its transformation process and highlighted concerns about outcomes that had impacted negatively on local government. Partnerships between communities and government had been overshadowed by the dominance of public-private partnerships. The Bill seeks to create an enabling environment for municipalities to share case studies of good practice. They welcomed the Bill and called for public participation in policy formulation at all levels. There was also the need to align national and provincial Growth and Development Summit Agreements (GDSA) and Integrated Development Plans (IDPs) taking into account the needs of a particular province or municipality. The development of projects had to ensure that jobs were created. Furthermore there was an urgent need to develop a framework to collect credible municipal data.

Discussion
The Chairperson asked that Members focus their questions and remarks on the purpose of the Bill, since COSATU’s submission was broader than the scope.

Mr Smith (IFP) made a remark that COSATU’s proposal did not relate to the Bill and asked for specific proposals.

Mr S Mashudulu (ANC) asked for clarity on the role of COSATU in the structures recommended especially public-private partnerships. How they intended to monitor engagement at local government level? Which constituents it had engaged with and made sure that the relevant sector participated? Whether they had participated in IDPs under sub-committees related to the relevant sector? It was important that participation was not limited to national government level, and perhaps they could empower the Committee to understand its engagement at all spheres of government especially at municipalities and in their relations with SALGA. As a participant at the National Economic Development and Labour Council (NEDLAC) and a custodian of GDS resolutions taken, what had been their input to guide the process at local level? If they had ensured that implementation at local government level had been tailored to the resolutions and was within the context of an IDP?

Mr E Paulus said there were regular mechanisms to ensure public participation, however it did not use a particular model. However consideration had to be given to adopt one model. There had been minimal provincial engagement with the GDS Agreement. A credible participation and municipal data were key issues they were advocating for in terms of intergovernmental co-ordination. Of the 19 affiliates of COSATU, only the South African Municipal Workers Union had been keenly involved at provincial and local government level. Their constituencies no longer engaged as a result of the restructuring at local government, since engagement was likely to be militant. Social dialogue was essential and the confederation had to respond to matters especially at the parliamentary level. Much had to be done within the affiliate for ward committees to engage at municipal level.

The Western Cape and Mpumalanga were commended for their consistent engagement at Provincial Development Councils on matters concerning the province. A project of COSATU called the Peoples’ Budget Campaign had made specific recommendations around free basic water and local government. The project was establish in 2000 and consisted of COSATU, the South African Council of Churches and the South African NGO Coalition (SANGOCO). Four different stakeholders engaged in each of the four chambers of NEDLAC. The GDS Agreement emanated from NEDLAC, however there had been different interpretations of the Act hence mixed engagement from various departments. Engagement had been unsatisfactory and he was of the opinion the Department of Provincial and Local Government (DPLG) regarded it as unnecessary. The Department of Trade and Industry (DTI) had engaged on policy and not at the legislative level. The National Treasury had engaged mainly for getting information instead of consultation and negotiation. These had been the experiences and challenges.

Mr Smith felt COSATU’s specific input was the strengthening of public participation. If so the Committee was not the appropriate venue for it, because the Bill had to do with intergovernmental relations and not communication between government and the public.

Mr Mashudulu asked if COSATU could come back and give specific proposals that would help identify areas of agreement and disagreement. COSATU welcomed the opportunity.

Mr E Paulus said there was the need for a level of participation beyond engagement of ward committees and IDPs. The Project Consolidation had looked at the strengths and particularly challenges facing local government. Levels of engagement among the 284 municipalities as provided by law had been minimal. Engagement could be formal or informal. They proposed a formal engagement where opportunity was given to a particular community and NGO organisations with credible reputations in making inputs in the formulation of IDPs and that wanted to support intergovernmental relations in a positive way.

SA National Civic Organisation (SANCO) submission
Mr L Mngomezulu said the Bill aimed to regulate relations that would ensure effective service delivery. This had been necessary because of the unnecessary conflict between these structures of government. Mr D Mthalane suggested a co-ordinated approach to intergovernmental relations but not limited to policy, planning, execution and monitoring. Participation had to encompass communication, consultation, involvement and capacity building of stakeholders. Of importance was participation by structures of delivery. Submission was made for representation by NEDLAC at the Presidential Co-ordination Committee (PCC), one by the Provincial Social and Economic Forum at the Provincial Co-ordination Committee, and the district at local government Co-ordination Committee. The President at his discretion could invite any person or organisation to attend meetings of the Council. Finally metropolitan councils had to be given the opportunity to establish similar forums.

Mr Smith wanted clarity on bodies that metropolitans would engage with if they established councils.

Mr Mngomezulu said the proposal was made because the Bill provided for co-ordination at district level and not at the metropolitan level.

Mr Smith said there was a two-way relationship between the districts and local government. The district did not interact with itself unless reference was being made to district-to-district interaction. He wanted clarity on the kind of co-ordination that was being referred to. If metropolitans were part of government spheres then they had to be mentioned in the Bill.

Mr Mashudulu asked for clarity about SANCO’s level of participation at SALGA and the likely impact and how different it would be from their previous involvement with NEDLAC since it had engaged on policy compared to local government that dealt with implementation.

A Member wanted clarity if all spheres of government had to participate in the Bill, and how to determine the structure of organised community in view of freedom of association as enshrined in the Constitution.

A Member said the provisions of Section 40 of the Constitution were clear on what was intended. Section 41 defined the areas of potential dispute and related to geographical, financial and institutional integrity of institutions the Committee sought to regulate. Where institutions other than those that implemented policy were drawn into the process, there was the risk of diluting the purpose of legislation and sectoral stakeholder processes.

Mr Mngomezulu said there had been a move from the premise that the Act would not deal with issues other than those of internal organs. There were other provisions for participation in the IDP. NEDLAC had an important social dialogue structure and would input at PCC. The Bill did not intend to deal with disputes but would be proactive to ensure there was a co-ordinated approach on issues of development and service delivery. Representation would be by the director and not the politicians. It was a way to ensure that structures of government unlocked their roles and resources in reaching their target. Each provincial, regional and local conditions determined which particular organised group to engage with. There was a limitation in the sense that the structure of participation was by representation. Participation by organisations was regulated by other legislation.

Mr Mthalane said NEDLAC partners in constituencies checked the constitution and membership of organised groups to determine if they could participate. There was no engagement at provincial and local level, hence GDS Agreements had not been informed by the national one. Most of them did not know what it was and how to achieve targets.

Mr D Masemola (SALGA) said at the metropolitan level there was no structure to co-ordinate. The Bill was clear on the parameters within which it would apply. PCC was a political forum with premiers as participants. He asked whether requests could be made for representation by other bodies. He disagreed that municipalities were not familiar with GDS and targets. There had been incidents in one area, which should not be seen as a generic problem. Government had agreed that IDPs in municipalities were a statewide planning tool, which had to inform the bottom-up planning approach.

Mr Mngomezulu said if co-ordination structures did not exist, there was no need to establish metropolitan CCs. It would be wrong to say the Bill entirely looked at internal processes. CCs aimed at unlocking and facilitating resource application and monitoring and implementation of legislation. There was no other opportunity to communicate with other stakeholders or get them to provide input. It was important for metropoles to participate. In terms of IDPs, not all municipalities had consulted. He called on CCs to put mechanisms in place that would ensure that the intent to enhance participation of communities was implemented.

Mr Mthalane said that municipalities lacked the capacity to engage, and that some had not even completed the skills development targets of their GDS.

A Member cautioned that the Bill should not be in conflict with the Constitution. He expressed concern whether participation by stakeholders was within the framework of Section 41(2).

The Chairperson said it had become critical to look at matters of participation and NEDLAC process being catered for, and how to address such concerns when appropriate.

The meeting was adjourned.

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