Intergovernmental Relations Framework Bill: briefing

Meeting report

LOCAL GOVERNMENT AND ADMINISTRATION SELECT COMMITTEE
3 June 2005
INTERGOVERNMENTAL RELATIONS FRAMEWORK BILL: BRIEFING

Acting Chairperson: Mr L Mokoena (ANC)

Documents handed out:
Department presentation
Intergovernmental Relations Framework Bill [B3-2005]

SUMMARY
Members met to hear a briefing on the Intergovernmental Relations Framework Bill by representatives of the Department of Provincial and Local Government. The presentation covered the context behind the proposed legislation and the relationship to Constitutional principles. The Bill was based on the Government’s Programme of Action and sought to address challenges to development initiatives and unco-ordinated actions. A brief overview of each chapter was provided. Members asked various questions including the consequences for provincial and local government structures, associated costs of implementation and maintenance of forums, an apparent distinction between prescriptive and discretionary regulations, the challenge of defiant municipalities within certain provinces, and the scope for alternative municipal priorities.

MINUTES

Department briefing
Mr D Powell (Department Deputy Director-General: Governance, Policy and Research) outlined the purpose of the presentation, namely to explain the context for the legislation on intergovernmental relations and to provide a brief overview of each chapter of the Bill. The Bill sought to create coherent government, co-ordinate implementation, facilitate effective service provision and monitor development initiatives. The context behind the Bill was elucidated including reference to constitutional principles and other pertinent legislation. Government sought to align the three spheres of government and co-ordinate executive decision-making. The Bill was necessary to improve government’s implementation capability and discourage self-regulation of forums. The intention was to retain best practice that had been identified and introduce innovative mechanisms to enhance overall efficacy. The role of municipalities within development strategies required greater certainty and predictability. Decentralisation usually resulted in lack of progress due to contradictory decisions and actions. Government investments could be implemented in a co-ordinated manner involving all three spheres. The Bill had arisen out of the Local Government White paper and various cabinet decisions.

The Bill focused on the relationship between the President, the provincial Premiers and mayors. Dispute resolution procedures were articulated and development could be managed within a specific geographical location. A key objective of the Bill was not to over-regulate existing decision-making structures but to implant best practice and promote partnership within government structures. Established forums would retain some discretion in composition and internal functions. The Bill sought to reduce duplication in service provision and encourage overall commitment to particular goals. The Bill contained a default measure that ensured that existing dispute-resolution mechanisms would not be over-ridden such as section 139 of the Constitution. The intention was to encourage internal settlement of disputes and thereby avoid expensive and disruptive litigation. The Minister would report to Parliament on a regular basis to inform Members and assist in the oversight role.

Discussion
Mr J Le Roux (DA) asked whether the proposed regulations would restrict provincial governments and municipalities to operate in accordance with ruling party policy to the possible detriment of the majority policy within particular councils. He asked whether the legislation would reduce the likelihood of dispute pertaining to future policy initiatives between provincial governments and local authorities.

Mr Z Ntuli (ANC) asked for clarity on the success rate of court cases involving provincial intervention into local government in accordance with section 139 where interdicts were sought against intervention. He asked whether the chairpersons of Parliamentary Committees could attend constituted forums as observers and whether traditional leaders were incorporated. He asked whether additional costs would be involved in the establishment of intergovernmental forums.

Mr D Worth (DA) stated that some additional cost implications had to accompany the proposed legislation and asked whether duplication could result as many similar structures were in place. He noted a distinction in the Bill between "must" and "may" which indicated a clash between prescription and discretion. The Bill required the creation of technical support structures that could impact negatively on co-ordination if too many were formed.

Mr D Powell replied that envisaged forums would not replace executive government but would deal with aspects of co-ordination. Technical forums would not prescribe to provincial executives but would encourage a particular approach to intergovernmental relations focused on enhanced dialogue and matters of common interest. National direction was useful to provinces and local government. The Bill sought to promote technical structures that served executive government. No carry-through costs would be involved but administration costs would accrue. Opportunity costs could not be quantified and the purpose was to reduce these costs and avoid wasted resources on unnecessary meetings. SALGA was accommodated and served a representational role. The Bill would identify where the representation of organised local government was the key focus such as service delivery issues and would facilitate discussion between Mayors and provincial government. Traditional leadership was not catered for in name but was included in a number of ways. A legislative regime for traditional government was in place and sufficient flexibility existed in structures to include certain parties and interest groups. Forums would remain at the executive level but would not replace government decision-making structures. Representatives of state utilities could attend if need be to achieve particular objectives. Chairpersons could attend forums as observers and forums would retain certain discretion in permission to attend. The notion is to prevent irrational government where disputes arise from vexatious agendas such as a disregard for aspects of government policy. Legitimate mechanisms would be provided as precursors to court action. The right to court action could not be excluded. Informal approaches to the settlement of disputes would be discouraged such as the creation of excuses to avoid court appearance. Rational procedures would be provided which were not onerous. The Constitution governed the introduction of the proposed regulations such as the duty of the three spheres of government to co-operate. National government could establish policies and directives that the other two spheres were required to implement. The Bill would not impede the actions of provincial and local government.

Ms L Msengana-Ndlela (Director-General) stated that the principles underpinning the legislation could be located within the Preamble of the Bill. The three spheres of government were interrelated and interdependent and fragmentation in government activity should be discouraged. The Bill sought to facilitate co-ordination between national, provincial and local government. Service provision would be effected through combined efforts. The Bill would focus on effective implementation and the sound reporting thereof. Accountable government should be established by the stipulations of the proposed legislation.

Mr Powell stated that information on the success rate of court cases between provincial governments and local authorities pertaining to section 139 interventions was unknown. The prescriptions of section 139 were excluded from the Bill and the default mechanism would not apply in such cases.

Ms Msengana-Ndlela concurred that the prescriptions of the Bill would not apply to disputes where existing dispute-resolution mechanisms were in place. The intention was to provide new mechanisms to address debilitating disputes between organs of state to prevent unnecessary use of legal channels.

The Chairperson asked for clarity if no facilitator to resolve disputes could be appointed by the Minister.

Mr Powell stated that an agreement between parties could not be enforced. Parties to a dispute would need to display a rational approach to resolution or serious intent. The duty imposed on spheres of government was to avoid irresponsible dispute and encourage co-operation. Attempts at resolution needed to be conducted in good faith in order for a court to consider the matter if need be as a final resort. The dispute would have to be an intergovernmental dispute such as the exercise of a particular power rather than a dispute with ulterior motives. Simple disagreement should not be allowed to paralyse government.

The Chairperson reminded Members of the existence of defiant municipalities within certain provinces that rejected national directives and claimed autonomy. He asked how such a dispute scenario could be avoided and whether the Bill could address uncooperative local government.

Mr Powell stated that the Constitution did not allow for independent action on the part of local authorities but such cases of defiance did occur. The question was whether such incidents were valid disputes. The provincial governments were empowered to take prescribed steps against uncooperative authorities including dissolution in the last resort. Municipalities could not act in a vexatious manner or isolate themselves from national and provincial directives. Corrective measures were in place such as section 139 to address unlawful behavior. National government could seek its own relief in certain cases. An obligation to implement a policy could not be refused on arbitrary grounds.

Ms Msengana-Ndlela stated that measures were being proposed to deal with such a situation and minimum requirements would be established to manage conduct within a dispute. Much discussion had occurred around the settlement of disputes and existing measures would apply where appropriate coupled with innovations arising from the Bill to enhance success. Law courts could be utilised as a last resort. The Department would consider alternative methods where appropriate to manage disputes.

The Chairperson referred to examples of dissension on the part of municipalities where attempts at resolution of disputes by Members or provincial authorities were hindered by cover-ups and claims of sub-judice in the case of lawsuits. The issue would need to be debated at a later stage by Members.

Ms F Nyanda (ANC) asked whether municipal by-laws would be amended by the proposed legislation.

Mr Powell stated that the Bill only dealt with possible conflict with existing by-laws but would not amend a by-law. The creation of an intergovernmental forum within a particular municipality that was in contradiction with prescriptions of the legislation would be conceived as a conflict.

Mr Le Roux asked for clarity on a potential situation where a particular municipality had different priorities to current national priorities such as poverty alleviation or housing. He asked whether such a municipality would be in contravention of provisions of the Bill if opposing priorities were pursued.

The Chairperson asked whether resolutions produced by the forums of the respective spheres of government would be compulsory.

Mr Powell responded that resolutions would be regarded as recommendations for Cabinet to consider and any replacement of the Cabinet role would not be contemplated. However, resolutions did inform decision-making and played a formative role. Resolutions would have to be endorsed by Cabinet before acquiring mandatory status. Municipalities could become accredited service providers in the case of, for example, housing provision but national government would have to regulate the function. The Bill sought to assist parties to find practical ways to implement or enhance service delivery in a coordinated manner. The purpose would be to facilitate the involvement of local government in development planning and align initiatives and foster sophisticated dialogue. For example, a plan to create new infrastructure in a particular Metro would require the input of numerous stakeholders including national and provincial government.

Ms Msengana-Ndlela responded that municipalities should devise priorities in accordance with national priorities as set out by the Programme of Action that contained practical steps to follow. Municipalities would not be forced to implement services that had been adequately provided within their respective jurisdiction but a national backlog remained that the Bill sought to address. No municipality could claim that total demand for development had been met and elements of the POA applied to local authorities in varying degrees. National consensus had been achieved on the need for the programme. The emphasis would be on the alignment of local plans with provincial and national strategies. National government would not adopt a dogmatic approach to development and flexible responses to particular needs would be encouraged.

The Chairperson concurred that development would be driven by local input and incorporate meaningful research. He asked whether the Bill would define MinMEC as a formal structure.

Mr Powell responded that MinMECs had originally been informal but had now been formalised. The name was well-known and would not be changed for practical reasons. Such structures had been identified by the Bill to avoid confusion and create uniformity.

The Chairperson stated that the definition of informal structures was problematic and would be debated further. He asked what existing structures could be retained in a formal manifestation.

Mr Powell replied that the Department was aware of certain structures operating at the provincial and municipal level but Parliament had the authority to define the structures that formed the most important component of intergovernmental relations in order to promote coordination. The Provincial Co-ordinating Forum was identified at the provincial level and the District Forum at the local level and all had to comply with the Act. The intention was not to formalise every existing structure at the provincial and local level. The Premiers and the Mayors would decide whether current forums could continue to operate as not all intergovernmental structures could be regarded as equal. Informal structures such as the Presidential Coordinating Council had been retained and transformed into formal structures. The Bill stipulated that Premiers and Mayors had to be involved in formal structures.

The Chairperson stated that the definition of informal structures would require further debate as many informal structures contained weaknesses in operation. The Committee intended to finalise the Bill before 14 June.

The meeting was adjourned.