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PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE
16 March 2005
INTERGOVERNMENTAL RELATIONS FRAMEWORK BILL: DELIBERATIONS
Documents handed out:
Intergovernmental Relations Framework Bill [B3-2005]
Documents discussed during the public hearings held on 15 March 2005:
Submission by Community Law Centre (UWC)
Submission by SA Local Government Association
Submission by Mr Graeme Gotz
The Department of Provincial and Local Government responded to concerns raised by the South African Local Government Association (SALGA) and the University of the Western Cape (UWC) Community Law Centre on the Intergovernmental Relations Bill. During the Committee’s clause-by-clause analysis of the Bill, they raised concerns regarding the definitions of the terms ‘’consultation’, ’Council’, ’district’ and ‘government’.
Department response to submissions
The Chairperson stated that the Department would respond to issues raised by the South African Local Government (SALGA) and UWC Community Law Centre (CLC) during yesterday’s public hearings.
UWC Community Law Centre submission
Mr D Powell, Acting Deputy Director-General: Governance, Policy and Research, informed Members that the CLC had in general made a huge contribution to intergovernmental relations over time. The Bill was really government organising itself to face the delivery challenges in the 3 spheres of government. It balanced the separation and interdependence of the 3 spheres of government in a fairly restrained way, given the Section 41 mandate. He stated that several of the CLC proposals found distinctions that bore very little resemblance in practice.
There were however one or two technical issues on which Professor Steytler had a point:
(i) "concept of co-operative government". The Department was prepared to concede to this point.
(ii) "monitoring implementation of policy and legislation". The Department did not draw a distinction between monitoring and the implementation of policy and legislation, as contended by Professor Steytler.
(iii) "consultative objective of intergovernmental structures". The CLC submission contended that the Bill established a loose understanding of co-operation whereas the Department was all for a more aggressive approach, and the Bill moved away from the current reality in which the role players could participate if they so chose.
(iv) "responsibility for co-ordinating intergovernmental relations of provinces and municipalities". The President was the executive authority of the entire country. There were however problems in the provinces with the boundaries of the roles of the MEC for Local Government and the Premier, and the aim of the Bill was to state unequivocally that the Premier was responsible for intergovernmental relations co-ordination, especially oversight, support and the Intergovernmental Development Programme (IDP). The mayors and Premiers must meet personally to decide how the province would be developed, and this must not be mediated. Since the Departmental deliberations on the Bill began there had been significant work done by the Premiers to ensure integration. The second reason for disagreeing with Professor Steytler was that most of the national budget was allocated to provinces and therefore the provinces were critical to the question of alignment with the municipalities, as envisaged by the White Paper on Local Government. The relationship between the provinces and municipalities had historically been problematic, and the Bill aimed to resolve it.
(v) "implementation protocols". The intergovernmental relations forum did not deal with implementation, and would therefore not be used to co-ordinate implementation. The Department again was of the view that the CLC submission created a forced distinction.
(vi) "agreement based notions of support". This was an academic distinction that had no practical importance.
(i) Clause 9(d). Mr T Fosi, Department, stated that Clause 28(1) provided a broad enough mandate to accommodate this concern.
(ii) meetings of intergovernmental forums. This was dealt with yesterday.
(iii) Clause 30. The Department was of the view that the Standard Internal Rules would apply to all intergovernmental forums, not just one.
(iv) Clause 33(1)(c). The Department believed that the replacement of "or" with "and" would cure the concern.
(v) Clause 39. Clause 39(1) made provision for the instance in which the Minister would be party to a dispute.
(vi) Clause 40. This was addressed yesterday.
Mr P Smith (IFP) stated that he did not agree with the Department on its objections to the first SALGA concern and a broader formulation was indeed needed, as contended by SALGA, to accommodate instances in which an agreement was reached with individual municipalities. Secondly, with regard to the CLC concern regarding a hard or soft approach to the consultative objective of intergovernmental structures, a looser formulation was needed.
Mr W Doman (DA) stated that he disagreed with the Department’s rejection of the CLC concern regarding the consultative objective of intergovernmental structures.
Mr Powell replied to these two questions by stating that even though the MECs felt that it reduced their dignity, the fact of the matter was that it was a hierarchical relationship. In most cases, the MINMECs dealt with the implementation of national policy. It was a legally incorrect assumption that the 3 spheres were equal as the national government had extensive policy-making powers.
Mr W Dorman (DA) stated that he disagreed with the Department’s assertion regarding the CLC concern with the consultation process, as monitoring was not part of Chapter 3 of the Constitution.
Mr Powell agreed that Chapter 3 provided the over-arching framework but the Bill focused on the intergovernmental relations of government, and behaviour had changed greatly in this regard.
The Chairperson stated that all the issues that could be attached to a specific clause would be replied to by the Department during the clause-by-clause discussion.
Mr Powell stated that it set the tone of the Bill and expressed the political message.
Mr S Mshudulu (ANC) stated that the commitment to an integrated and developmental state must be included. Secondly, the words "and efficient" must also be included in the fifth paragraph.
Mr Powell responded that the Department had tried to include these sentiments, and the decision was not to refer to a developmental state because the Bill dealt specifically with intergovernmental relations.
Mr M Nonkonyana (ANC) sought clarity on the second last paragraph, as he was under the impression that the Bill would supersede all other legislation that dealt with intergovernmental relations.
Mr Powell replied that this would be looked into.
Mr Smith asked whether there was merit in contextualising the Bill in Chapter 3.
Mr Powell answered in the affirmative. He stated that the Bill was the only one dealing with intergovernmental relations that gave compete expression to the mandate stipulated in Section 41 of the Constitution.
Clause 1: Definitions
Mr Powell stated that this definition did not mean that the permission of another sphere of government was required before a decision could be taken, but instead merely meant that due regard must be given to the views of the other sphere.
Mr Smith questioned the failure to stipulate "national/provincial/municipal Co-ordinating Council", as only the definition of the Presidential Council was referred to.
Mr Powell replied that this would be considered, but it could possibly be accommodated under the definition of ‘intergovernmental forum’. The multitude of terms should be avoided in the interests of legal certainty.
Mr Nonkonyana agreed with the Department that the current formulation should remain, as the Presidential Co-ordinating Council was the overarching structure.
The Chairperson suggested that this matter be flagged for later discussion.
Mr Powell informed Members that this referred to the geographical description of the area in which the powers and functions would be performed.
Mr Mshudulu proposed that a definition of this term that was specific to local government be inserted instead, as this term had different meanings for different departments.
The Chairperson proposed ‘district municipality’.
Mr Powell replied that Clauses 22 and 33(1) gave effect to the Department’s commitment in the White Paper that district municipalities must be the point of co-ordination for all spheres of government. He stated that he would look at the Municipal Systems Act more closely with regard to the alignment of boundaries, especially the IDPs.
Mr Smith asked whether the definition referred to functional or geographical jurisdiction.
Mr Doman asked the State Law Advisor to provide clarity.
Mr O Kellner, State Law Advisor (SLA), informed Members that the general drafting rule was that a term would not be defined unless it departed from the ordinary dictionary meaning. This term was only referred to in Clause 22 as dealing with municipalities, and implied that only the geographical area was being referred to.
Mr Powell stated that the Bill operated within the existing definitions and merely created a forum that consisted of two municipalities, known as the district intergovernmental forum. It was bound to the district and not beyond its borders, and referred to the complete tier of district municipal relations.
Mr Smith questioned whether the definition was sufficient.
Mr Powell informed Members that the definitions of ‘district’ and ‘intergovernmental relations’ referred to conduct, affairs and functions. The definition clarified that both municipalities in the area were involved in the intergovernmental forum, and therefore did not only relate to the district municipality and its functions. The inclusion of a specific reference to geographic jurisdiction might be redundant.
Mr Kellner responded that Clause 22 referred only to geographical jurisdiction and not to functions.
The Chairperson proposed that this matter be flagged for later discussion.
Mr Powell stated that this was a term of art, and was consistent with the Constitution.
After the lunchbreak, the Chair asked for clarity on whether there were currently any arrangements preventing intergovernmental disputes, which might disrupt the implementation of the Act, or whether the Act was structured to prevent any kinds of disputes. Mr Powell replied that there were strict standards in place that would prevent intergovernmental disputes from arising.
Mr Powell continued reading the various definitions under Chapter 1 of the Act referred to as ‘Interpretation, Application and Object of the Act’.
Mr Mashudulu requested clarification on the words ‘MEC’ and Ministers. Mr Powell replied that it referred to Members of the Executive Council and the Ministers of Provinces.
Mr P Smith (IFP) asked for clarity on the numbers of bodies involved. Mr Powell replied that previously, there was SALGA and nine provincial bodies, however they now had 8 provincial bodies, whilst the Western Cape was still a separate body.
Mr Smith referred to subsection (3) of the Act which read, "This Act does not affect other Acts of Parliament regulating intergovernmental relations, and in the event of any conflict between a provision of this Act and a provision of such other Act, the provision of that Act prevails’ – and suggested that this section be moved to the application of the Act section. Mr Powell replied that the Department’s reason for putting this section under Chapter 1 was to create a general definitions section, whilst this was reiterated in the administrative section of the Act.
Mr Powell read out Clause 3, which referred to the Object of the Act saying that the object of the Act was to provide within the concept of co-operative government set out in Chapter 3 of the Constitution, a framework for the national government, provincial government and local governments as well as all organs of state within those governments to facilitate co-ordination in the implementation of policy and legislation, including (a) coherent government, (b) effective provision of services; (c) monitoring implementation of policy and legislation; and (d) realisation of national priorities.
Mr Powell added that in conducting their affairs national government, provincial governments and local governments, and all organs of state within those governments, must seek to take into the account the circumstances and material interests and budgets of other governments when exercising statutory powers. Also, they must consult with other affected organs of state in accordance with formal procedures, as determined by applicable legislation. Further, national government must seek to co-ordinate its actions when implementing policy and legislation affecting the material interests of other governments. Mr Powell noted that these were guidelines that would ensure that the environment would not become overly restricted. He added that this would co-ordinate actions, as well as ensuring that consultation and the sharing of information would take place.
Mr Smith asked for clarification on the use of the word "must". He asked whether all of these structures or institutions were obligated to seek to achieve the objects of the Act by participating. Mr Powell explained that this part of the Bill had two objectives. One was to develop a policy framework, and second was to establish a pattern of normative behaviour.
Mr Smith asked whether participation by the structures or institutions would be mandatory. Mr Powell replied in the positive, saying that participation would be mandatory on all the structures or institutions involved.
The State Law Adviser, Mr Kellner, clarified the matter further by saying that it would be mandatory to achieve the objectives of the Act; however it would not be mandatory to comply. He stated that there would be no penalty for missing a meeting or not participating.
Mr Smith asked whether the representative from SALGA would be a political office bearer attending these meetings.
Mr Powell replied that in practise it was usually the chairperson who would represent SALGA, and since SALGA had an executive structure, it would be a political representative of SALGA that would attend these meetings.
The Chairperson suggested that in light of the Members’ presence being needed in the House, the meeting should be adjourned, to which they all agreed.
The meeting was adjourned.
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