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PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE
17 March 2005
INTERGOVERNMENTAL RELATIONS BILL: DELIBERATIONS ON CHAPTER 2
Acting Chairperson Mr M Lekgoro (ANC)
Documents handed out:
Intergovernmental Relations Framework Bill [B3-2005]
The Committee deliberated the President’s Co-ordinating Council (PCC) framework established to enhance intergovernmental co-operation. It was questioned, whether it was appropriate for the detailed management of the framework to be addressed in the BiIl. The role of the Department of Provincial and Local Affairs in the PCC was discussed at length. The Committee also discussed the hierarchical nature of the PCC framework, with certain members suggesting that more provision be made for provinces to raise their policies with national government.
Chapter 2: Intergovernmental Structures
Part 1 President’s Co-ordinating Council
Clause 7 Meetings
Mr D Powell, Acting Deputy Director-General: Governance, Policy and Research in Department of Provincial and Local Government (DPLG), said the reference to the Minister administering the meeting in Clause 7(3) was part of the practical implementation of the Minister’s mandate to manage the intergovernmental relations of government. It was only logical for the DPLG to play the role of a conduit of intergovernmental relations. However the ultimate responsibility for the PCC Framework was still vested in the President. The PCC generally submitted its work programme for the forthcoming year to the Cabinet. It was merely called a framework and included in this Bill to ensure predictability and clarity on functioning of the PCC within government. He said the DPLG played a secretariat role to the PCC and simply proposed agendas to ensure that appropriate issues were raised and not matters that could be better dealt within a particular ministry. The PCC framework was intended to serve the national government and especially the sector ministries, and not any ministry in particular.
Mr Lekgoro asked whether would it not be preferable for the Presidency itself to administer the PCC directly.
Mr P Smith (IFP) said the Office of the Presidency was a well-established department, with ample capacity and budgetary allocations, and thus capable of administering the PCC itself. The Presidency hosted all sorts of issues and forums, and always maintained the right to delegate a task if it so required. He appreciated the need for the framework to be established but questioned whether it should be placed in a national Bill. He said the whole approach seemed uncomfortably hierarchical.
Mr W Dorman (DA) said he was very positive about the Bill but suggested that Clause 7(1)(a) and b) were sufficient. That would be that the President convened the meeting and determined the agenda. He recommended that the Committee be more concise. Alternatively Clause 7(2) could simply end after ‘Suggestions for inclusion in the agenda for a meeting may be submitted to the Minister’.
Mr Smith said he understood the role of the Minister of the DPLG as a gatekeeper to the PCC, but cautioned against micro-managing. He reiterated his agreement with the need for a framework but asked whether it was necessary to have it in national legislation.
Mr Powell said it was very important to acknowledge that the Minister was responsible for the management of intergovernmental relations and therefore best placed to advise the national president on issues the other ministers would want to raise at the PCC. The ultimate authority for deciding the PCC agenda rested with the President and not the DPLG. The Minister should not be viewed as a gatekeeper, as his role was merely to rationalise issues raised at the PCC, especially matters that could be more effectively dealt with at a ministerial level. The PCC was not a DPLG preserve but an operational framework for the PCC and therefore a framework for the entire national executive, including other sector ministries.
Mr Smith said Clause 30 (Internal procedures of intergovernmental structures) was sufficient to regulate the PCC framework, and cautioned against micro-managing.
Mr Powell said he conceptually understood the issues Mr Smith raised, however it was an immense practical challenge to ensure the PCC agenda was suitable for the national executive's attention and valuable time. The Department had been very specific in establishing internal rules to ensure predictability and visibility to the structure of government as a whole.
Mr Mashudulu asked where the PCC would fit in the hierarchy of the state organogram as he was unsure of power relations between the PCC and Cabinet.
Mr Lekgoro said it was conceivable that a minister could be uncomfortable with the role of the Minister of Provincial and Local government in the PCC, given their equal status as ministers.
Mr Smith said it seemed there was almost a fear that the executive would not be able to manage the PCC if there were not very specific and definitive rules established.
Mr Powell said practice on setting regulations for government bodies differed substantially but that several such institutions were regulated in considerable detail. He added that an act of parliament was required to establish the PCC structures while Cabinet was a constitutionally established body. The PCC therefore could not replace the Cabinet, but merely served as an intergovernmental structure. Cabinet was still the supreme decision-making body of the executive government but it was a not an intergovernmental co-ordination structure. A variety of state organs and ministries were involved in the governance of South Africa. The PCC was an attempt to establish a rational process of intergovernmental communication and streamline its structure to focus directly on the most appropriate issues.
He said the Department was eager to avoid informality and uncertainty in governance and wanted to make it abundantly clear that the PCC was a framework for the entire national executive and not the preserve of any one minister or department. The PCC was a national executive platform and the Minister of Provincial and Local Government simply carried the responsibility of facilitation of intergovernmental relations.
Part 2 National intergovernmental forums
Clause 8 Establishment
Mr Smith said if the Department was taking the route of naming the PCC because it was an established practice, the MinMec (Ministers and Members of Executive Councils) structure which had been established before the PCC and was much more familiar, had a much stronger claim to be recognised as such.
Mr Powell said the reason for not establishing a category called ‘MinMecs’ was the need to allow a certain level of discretion in their organisation especially given the potentially sensitive nature of MinMecs. In practice meeting forums for Ministers and Members of Executive Councils were euphemistically known as MinMecs because of the composition of such forums. He added that the majority of intergovernmental structures were non-statutory bodies as few statutory bodies were established prior to 1997.
Mr Mashudulu asked what the department would label a meeting of the Minster of Labour, who only had Provincial Directors and not provincial MECs, with his provincial subordinates.
Mr Powell said the Bill aimed to create a communication conduit. Should the Minister of Labour or a department in a similar position want to meet with a provincial MEC or any other provincial official, they could create a ‘MinMec’ although such bodies could not strictly speaking be defined as such. This he said was precisely why the department did not want to narrowly define Min/Mecs. The Department aimed at allowing extensive latitude for ministers to meet with provincial officials, even those not within their respective departments. Strictly speaking such interactions would not be MinMecs but a joint meeting format used for cross-functional communication.
Mr Lekgoro said the Department should revisit the categorisation of MinMecs with the aim of enhancing uniformity as far as possible.
Mr Smith said he initially thought all meetings between a Minster and Provincial MECs were referred to as MinMecs, and he was now informed that was not the case. In practice a name change in this Bill would have serious legislative consequences for similar bodies, not strictly speaking viewed as MinMecs.
Clause 9 Composition
Mr Smith asked why a differential approach on the chairing of meetings was employed in this clause as compared to its equivalent in Part 1 dealing with the PCC.
Mr Powell said Mr Smith’s question was dealt with in Clause 13 of the Bill.
Mr Dorman said the term ‘person’ should be changed to ‘councillor’ if it referred to a politician, as he believed it should. He said the South African Local Government Association (SALGA) could appoint any one as long as that person was a politician.
Mr Mashudulu said the committee had agreed the previous day that the Bill should explicitly refer to a politician.
Clause 10 Role
Mr Smith said the PCC should ideally have been a forum for mutual participation and sharing of ideas instead of the hierarchical approach presently employed. The top-down approach was objectionable and asked whether the provinces would be allowed an opportunity to influence the national government as well.
Mr Mashudulu said it appeared the IFP was not prepared to take instruction in terms of policy from the ANC.
Mr Lekgoro agreed that the fundamental philosophy that informed the Bill was a top-down approach possibly predicated on the mindset of the Ministry and the dominant party. He said this would no doubt manifest itself throughout the Bill. He encouraged the Committee to constructively work towards improving the Bill.
Mr Powell said it was necessary to define the operation and functions of these intergovernmental forums, which played a vital role in national development policy. The Department understood its own mandate regarding this Bill as enhancing the quality of co-ordination of intergovernmental forums.
He said national government’s oversight responsibility was vested in the Constitution as elucidated in the decision of the Constitutional Court and stated by Judge Chaskalson ‘to confirm that the Constitution does not contemplate the establishment of sovereign independent provinces.’ The Bill was clearly in conformity with the Constitution as national government’s authority to regulate was only limited by the principle of not removing in its entirety, the executive function of another sphere of government. The Bill was simply regulating the co-ordination between the various spheres of government to ensure enhanced quality of co-ordination and improved intergovernmental relations.
Mr Smith said there was no provision in this Bill for provinces to discuss their own policies with national government. He asked what legal status national policy, not articulated in legislation, had and whether provinces were obliged to implement such national policy.
Mr B Solo (ANC) said that not all policies were contained in law thus the need for additional regulations.
Mr O Kellner, State Law Advisor, said that according to the Schools Act, provinces were obliged to implement the Education Minister’s policy, even if it was not articulated in law.
Clause 11 Reports and referrals to President’s Co-ordinating Council
Mr Smith asked why the Department did not follow the same process in this clause as in Clause 7(2).
Mr Powell said MinMecs could forward an issue to the PCC once the discussions at the primary level were completed. Clause 7(2) created the possibility for the Presidency, a department or similar processes to suggest agenda items to the PCC whereas Clause 11(2) dealt specifically with resolutions emanating from within that MinMec structure.
Clause 12 Referrals to Budget Council and Budget Forum
Mr Lekgoro asked why the Bill did not simply state the Minister of Finance instead of the cumbersome "Cabinet member responsible for finance".
Mr Powell said the range of functions of any portfolio might change with time or alternatively it was even possible that two ministers could share the financial responsibility in question. This clause was intended to deal with ‘linkages’ in intergovernmental relations, in an attempt clarify the conduit through which issues were dealt with, in government.
He said the second aim of this clause was to guard against the creation of ‘unfunded’ mandates. Decisions taken at a sectoral level could result in ‘unfunded’ mandates if a mindset was not created through national legislation that clarified that critical linkages existed between matters discussed at MinMecs that affected the national budget.
Mr Mashudulu said this clause might unwittingly raise people’s expectations of their ability to influence the allocation of resources beyond the budgetary process, when this was not the case.
Clause 13 Meetings
Mr Powell referred to Clause 13(2) and said that it was important that matters such as when submissions should be submitted, be clarified. Guidelines for these structures usually required submission within seven days. However, this Bill was intended as a normative framework, and it was important to appreciate that these authorities were constitutionally mandated and a degree of flexibility regarding regulations, were appropriate. The framework was intended to serve as an incentive for more precise arrangements, as ministers had complete discretion to meet with anyone they chose.
Mr Smith asked whether MinMecs were allowed to interact with technical experts.
Mr Powell said ministers had full discretion to meet with anyone they chose.
Mr Smith asked whether the word ‘formal’ in Clause 20 (Other provincial intergovernmental forums) was not redundant.
Mr Powell said the Department would review the wording in Clause 20.
Mr Dorman said there was often friction between the district and metropolitan mayors and suggested that district mayors as well as metropolitan mayors be allowed to attend the forum mentioned in Clause 16 (Composition of Premier’s intergovernmental forum) .
Mr Powell said approaches differed in the various provinces, however he did not foresee a problem should a premier want to include the district mayors in the forum. The section only sought to establish a minimum composition of meetings, but he cautioned against creating large unwieldy meetings.
Mr Smith commented that it was unacceptable that SALGA was not present at the meeting.
The meeting was adjourned.