Hearing of evidence on the White Paper on Local Government

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Cooperative Governance and Traditional Affairs

23 April 1998
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Meeting report

CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE
24 April 1998
WHITE PAPER ON TRANSFORMATION OF LOCAL GOVERNMENT: HEARINGS

SUMMARY

This meeting was the final hearing to receive input regarding the White Paper on Transformation of Local Government. The meeting was divided into three sections. Several parties made presentations during the first two sections: the first on demarcation and electoral issues, and the second on local government training and capacity building. The third section was a presentation by Dr. Olver of the Department of Local Government charting the next steps in the process of transforming South Africa’s local government system. Discussion followed the presentations in each section. Contents of the presentations and the discussions are contained in the detailed minutes below.

The presenters in the first two sections were as follows:
Demarcation and Electoral Issues
Independent Electoral Commission - Harold Sackstein (Appendix 1)
Gender Advocacy Program - Mirjam Van Donk (Appendix 2)
Department of Local Government - Dr. Chippie Olver
South African Local Government Association
Professor Rob Cameron, University of Cape Town
Commission on Gender Equality - Acting Chair

Local Government Training and Capacity Building
Local Government Training Board – CEO (Appendix 3)
Independent Municipal and Allied Trade Union - Clive Dunston (Appendix 4)
Fair Share, a program of the University of the Western Cape - Elroy Paulus (Appendix 5)
South African Local Government Association


DETAILED MINUTES

The chair of the Select Committee on Constitutional Affairs and Public Administration, M. Bhabha, opened the meeting by welcoming all who were present.

Part I: Demarcation and Electoral Systems

The chair observed that the success of local government will depend on how municipalities are demarcated. He stated that the importance of demarcation cannot be overemphasized.

The chair noted that a bill concerning local demarcation has been tabled in the NCOP and will be discussed in early June. He noted that external input would be sought and encouraged the public and stakeholders to contribute.

1. Presentation by the Independent Electoral Commission

Harold Sackstein of the IEC opened his presentation by stating that the IEC would not and should not play a role in demarcation, the process by which the boundaries of municipalities were to be established. Rather, the IEC coordinates delimitation, the process by which boundaries are established for electoral areas within municipalities. The IEC sees delimitation as a purely administrative procedure, the goal of which is to create an area which can reasonably be serviced by a single polling station on election day. The delimitation process will therefore be depoliticized.

In planning for the local elections, the IEC is guided by section 157 of the South African constitution. The IEC supports the move to adopt a dual-system approach to the election of councillors: that is, a system of ward representation combined with a system of proportional representation. This system allows independent candidates to participate and ensures direct accountability of ward representatives to their constituents and ensures that parties are represented proportionally.

The IEC believes that only 1 ballot should be used in the local level. The IEC opposes the use of 2 ballots because this approach may be unconstitutional.

2. Presentation by Department of Local Government

Dr. Olver of the Department of Local Government supported the establishment of a dual (ward/proportional representation) system, observing that the constitution envisages such a system. He stated that democratic governance will likely be enhanced by use of a ward system. He expressed support for a two-ballot system, noting that most voters would prefer to have 2 ballots. He suggested that the reason for the IEC’s opposition to a two-ballot system was administrative rather than constitutional and urged the IEC to explain why it was reluctant to accept a two-ballot approach.

Dr. Olver explained that demarcation would be undertaken by an independent statutory board appointed for the purpose. The board would be selected to ensure fairness and independence. The board would consider a range of factors, including financial viability, in making demarcation decisions.

3. Presentation by Gender Advocacy Program

Mirjam van Donk of the Gender Advocacy Program observed that the structure of electoral systems can either block or facilitate the election of women. She recommended that the electoral system should be designed so that at least 30% of those elected should be women.

Ms. van Donk noted that in the last local government elections, 19.4% of councillors elected were women. Under the ward system, approximately 10.9% of elected candidates were women. Under the proportional representation system, approximately 30% of candidates elected were women. Ms. van Donk remarked that this reinforce international experience showing that the PR system better facilitates the election of women than the ward system. She suggested allowing the election of 50% of candidates by PR and 50% through wards.

The GAP proposed enactment of legislation requiring political parties to include a certain number of women on their PR candidate lists. The GAP suggests also establishing a quota for female candidates in ward positions. The GAP suggested a level of 35% for the latter.

Ms. van Donk concluded with the comment that the GAP regarded quotas as a temporary but necessary step. She emphasized the need for additional kinds of training and capacity building and other kinds of empowerment of women to complement the quota approach.

4. Presentation by the South African Local Government Association

The SALGA representative stated that the success or failure of the policies proposed in the White Paper would depend on the systems established to implement the policies. He stated that past demarcations of municipalities have not taken into account adequately the need for viability of the localities.

SALGA supports the White Paper’s position on the importance of community participation in local governance. SALGA believes that the constituency-based ward system can enhance participation. SALGA supports a 60%/40% ward/proportional representation ratio.

SALGA expressed concern to the IEC regarding preparations being made for the elections. SALGA urges the IEC and national and provincial government not to give local government unfunded mandates. Local government should not be made responsible for conducting elections. The IEC should be responsible for this, and local government can make resources available to assist with the task.

5. Presentation by Professor Rob Cameron, UCT

In a presentation condensed because of time constraints, Professor Cameron made the following points:
the independence of the demarcation board should be ensured
the demarcation board should include regional as well as national representatives
demarcation is not an administrative exercise and should not be undertaken "in a vacuum"
demarcation criteria should express national policy and priorities
demarcation decisions should recognize traditional community relationships

6. Presentation by the Acting Chair of the Commission on Gender Equality

The acting chair acknowledged that the White Paper contains a commitment to gender equality. She expressed support for gender quotas, asserting that they are constitutional. She supported the provision of capacity building opportunities for potential and actual women candidates. She also noted the need for training of men on gender issues. She suggested that the Commission on Gender Equality engage in bilateral talks with the committee conducting the hearings to discuss gender issues further.

7. Discussion

Mr. Smith of the Democratic Party expressed support for use of a double ballot. He stated that he believes improving the representation of women in government is important but expressed concern that legislating gender quotas would be unconstitutional. He requested a legal opinion on this question.

Dr. Sutcliffe, an observer, stated that international experience indicates that the more criteria established to guide demarcation, the more that the criteria are ignored. He suggested narrowing the list of criteria to three or four key elements. On the issue of improving representation of women in government, he suggested that a national fund be established to support women candidates for ward positions.

Mr. Watson of the National Party expressed opposition to the two-ballot system, noting that it could allow a situation in which the ward councillors are from one party and the PR councillors from a different party.

Professor Du Toit of the ANC expressed concern over the cost of by-elections to replace ward councillors, noting that there was no cost if a PR councillor was replaced. He suggested that the committee conduct a study to assess the relative effectiveness of ward vs. PR councillors.

A National Party MP asked how people who moved from one constituency to another after registering but before the election would be enabled to vote.

An ANC MP asked when the IEC believed that local elections should be held, considering the logistical constraints. The MP asked what mechanisms have been created in other countries to promote the election of women to local government positions. He suggested that gender representation should be one of the criteria used to determine allocation of election funds from government to the parties.

Sally Timmel of UWC’s Fair Share asserted that having parties at local level was an obstacle to delivery because political differences between parties led to impasse and inaction.

Mr. Sackstein of the IEC responded that the IEC’s reservations about using a two-ballot system had to do with concerns about its constitutionality, noting that it was not significantly more difficult to administer a two-ballot system than a one-ballot system. In response to the question regarding voter relocation, he explained that a voter who relocates would have the opportunity to re-register in her/his new place of residence at any time until the voter lists close a few weeks before the election.

Dr. Olver of the Department of Local Government acknowledged that delimitation of wards is a difficult process that must take into account community interests, identify, and coherence. He expressed concern that the IEC does not have the administrative capacity to delimit wards. He stated his belief that gender quotas are not the best way to address gender imbalances, suggesting that instead a system of training and support for women candidates should be established. He noted that one of the problems of establishing a gender quota on parties’ candidate lists is that the parties could place all women at the bottom of the list. He said that the constitution seemed grey on the issue of gender quotas.

An observer noted that in Namibia, a significant decline in representation of women occurred when the system of representation shifted from proportional to ward-based.

Ms. van Donk of the GAP stated that the GAP intends the quota system to be a temporary measure that should be undertaken in combination with a variety of other measures. She noted that GAP has proposed a national fund to support training and capacity building of women candidates.

Part II: Local Government Training and Capacity Building

1. Presentation by the Local Government Training Board

The CEO of the Local Government Training Board noted that a new board had recently been selected and would be meeting for the first time at the end of April. Members comprised 5 representatives from SALGA, 5 from the unions, and 2 from the constitutional development department.

The CEO noted that concerns have been expressed by trainees about the lack of portability of training qualifications from one municipality to others.

The CEO recognized a need to train councillors, many of whom may not be aware of the intricacies of local government. This lack of awareness can lead to misunderstanding between councillors and civil servants.

The CEO also noted that the RDP funds made available to the Board in previous years were not renewed at the same level this year, creating a financial constraint.

The CEO acknowledged that too much had been spent on training centers, noting that several alternatives were being considered. The centers might be closed soon, or a decision may be delayed until the skills development bill is promulgated in approximately four months.

2. Presentation by the Independent Municipal and Allied Trade Union

Clive Dunston of IMATU complimented the department for its competence and vision. Mr. Dunston disagreed with a statement made earlier in the week that local government was not responsible for job creation. He asserted that local government plays an important indirect role in expanding employment opportunities.

Mr. Dunston asserted IMATU’s position that parity of wages and services should be finalized within 5 years rather than within the 10-15 year timeframe suggested by the White Paper.

He stated that the White Paper is "timid" on the issue of constructive involvement of unions in local government, asserting that a special chapter on this relationship is needed. He stated that the White Paper should include explicit reference to IMATU and COSATU as well as to SALGA.

Mr. Dunston noted that IMATU opposed contracting out or privatizing service provision.

3. Presentation by Fair Share, a program of the University of the Western Cape

Mr. Elroy Paulus of Fair Share asserted that it is vital to consider measures by which community participation in local government can be enhanced. These measures should include efforts to train and build the capacity of both communities and local government officials.

Mr. Paulus noted that most local government departments do not have a way of involving communities in policy processes. Local government tends to give information rather than seeking input. Often, many documents are released late, so that community response is not possible.

Mr. Paulus asserted that local government performance indicators should be based on a developmental perspective. In particular, they should be oriented towards addressing the needs of the poor rather than promoting jobless economic growth.

4. Presentation by the South African Local Government Association

A representative of SALGA identified the following key issues in building the capacity of local government:
Policy and legislation regarding local government must facilitate integration of communities within each municipality.
Specific tools are needed to facilitate emergence of a developmental local government, including an integrated development program and budgeting process.
Councillors are often lacking in capacity and need to be fully funded and trained. Priority areas of training include: change management, human resource management, labor relations, and administrative systems.
Government should ensure that all functions delegated to local government are fully funded and supported from the national level.
A national system of performance assessment should be developed to facilitate comparison of performance of local government across municipalities. This system should be developed by a team of experts with the involvement of all stakeholders.

5. Discussion

An ANC MP asked the Fair Share representatives what policies are necessary at national level to promote citizen participation at local level.

Another ANC MP asked the Fair Share reps for examples of the ways that political parties hamper delivery at the local level.

Sally Timmel of Fair Share recommended that a national policy framework on participation of communities in government be developed. Specific measures within this framework would include:
giving Parliament the power to approve the national budget
requiring departments to have hearings before the budget is approved
conducting bi-annual reviews of local government with substantial community input

Elroy Paulus of Fair Share then cited two examples in which party politics inhibited service delivery.

An IMATU representative stated that IMATU opposes linkage of council terms and contracts of public servants. He asserted that unions should be involved in negotiating public/private partnerships.

The chair asked for comments regarding the appropriate dates for local elections, noting the potential problems of election fatigue and costs with the current plan for holding local elections by November 1999. The chair noted that a constitutional amendment would be necessary if the elections are to be held later than November.

SALGA responded that elections should be held as soon as possible if preparations are adequate.

Fair Share expressed concern that an extension of the election period might lead to additional political maneuvering and thus to additional delay of delivery.

The IEC estimated that it would take at least six months to delimit wards after the demarcation of municipalities is completed.

An observer suggested that local government elections should be held at the same time in all provinces.

Part III: Next Steps in Transformation of Local Government

Dr. Olver of the Department of Local Government noted that some municipalities are facing serious problems. Some seem to be on the brink of collapse. Progress in the transformation of local government is thus urgent.

Dr. Olver noted that the dates for the next local government elections are as follows:
1 Nov 1999 Majority of communities
29 May 2000 Western Cape metro and transitional representation councils
1 July 2000 KwaZulu-Natal

Dr. Olver identified the following steps before the next elections:
legislation dealing with demarcation and electoral systems at national and provincial levels to be submitted and passed
demarcation process to be completed
municipalities to be established and allocated resources by provinces based on decisions of demarcation board
administrative procedures for elections to be made

Dr. Olver noted that the demarcation legislation had been submitted and would hopefully be passed by early June 1998. If all goes well, then the demarcation board could be assembled in approximately three months so that it could begin its work by 1 September 1998. The board must complete its work by February of 1999 if the IEC is to have enough time to delimit wards in advance of the elections.

Dr. Olver noted that the critical issue in this tight timeframe is if 6 months of demarcation will be adequate. Adhering strictly to this timeframe may reduce amount of public participation possible. This casts serious doubt on whether the timeframe is viable.

Dr. Olver then discussed the future of the process of administrative transformation in which the country was engaged. He emphasized that this process would occur over 5-10 years.

He identified several elements contributing to a change in the paradigm of local government, including:
the Labor Relations Act
the Skills Development Bill
decentralization of functions to local government
fiscal constraints and incentives
innovation in service provision at local level, not limited solely to privatization and public/private partnerships

Dr. Olver discussed the following levers for advancing transformation in local government:
legislation - on topics including developmental planning, performance management, accountability, and administrative reorganization; he perceives this as the least important of the levers
discussions in National Bargaining Council - he perceives these to be the ‘powerhouse that will drive transformation;’ he stated that transformation needs to be worked out by SALGA and the unions
devolution of oversight and transformation mechanisms from provincial to local level

Discussion

The acting chair of the meeting, Mr. Carrim, noted the ANC was committed to holding the next local elections in new boundaries; the apartheid-era boundaries, he said, were unacceptable.

Professor DuToit of the ANC noted that if the present system of holding national and provincial elections every 5 years and local elections every 4 years, then the elections would be in the same year every 20 years. He remarked that political parties did not have the capacity to undertake elections at national, provincial, and local levels simultaneously.

The acting chair observed that were all three elections to be conducted simultaneously, local issues would be obscured or buried by national or provincial issues.

An observer noted that some communities have not yet had elections and asked if they will vote soon or wait until the general local elections.

Johaan Mettler from UWC stated that the department should invest in the development of model by-laws for adaptation by local councils.

In response to these comments, Dr. Olver stated that neither the government nor the parties had adequate capacity to undertake elections in all three spheres of government at the same time. He also noted that the department aims to synchronize local elections eventually so that they are held at the same time nationwide, observing that the particular circumstances of 1994 resulted in an unusual arrangement for 1999/2000.

Dr. Olver discussed several options for preventing the coincidence of national, provincial, and local elections. One option he mentioned was changing the term length of local government from 4 to 5 years, then staggering the election dates so that local elections take place 1.5 to 2 years after the national and provincial contests.

Dr. Olver explained that if elections are not held before municipal councillors’ terms of office expire, the municipalities cannot function according to the constitution.

Dr. Olver noted that most areas where elections have not occurred are areas still struggling over boundary disputes. People in these areas, he said, generally do not want elections until the disputes are settled.

The acting chair stated that the committee invites submissions on the demarcation legislation that has been tabled in the NCOP. He then thanked those in attendance for their participation during the day and throughout the week and closed the meeting.

Appendix 1: Independent Electoral Commission

THE INDEPENDENT ELECTORAL COMMISSION

Municipal Electoral Systems

24 April 1998

Constitutional requirements

The parameters of all electoral systems were entrenched in the Constitutional Principles agreed between the parties prior to the transition to democracy in South Africa. Constitutional Principle VIII states

"There shall be representative government embracing multi-party democracy, regular elections, universal adult suffrage, a common voters' roll, and, in general, proportional representation." (my emphasis)

This concept of proportionality was carried over into the municipal electoral system contained in section 157 of the Constitution. That section states that:

"Composition and election of Municipal Councils

157. (1)A Municipal Council consists of-

(a) members elected in accordance with subsections (2), (3), (4) and (5); or

(b) provided for by national legislation -

(i) members appointed by other Municipal Councils to represent those other Councils; or

both members elected in accordance with paragraph (a) and members appointed in accordance with subparagraph (i) of this paragraph.

(2) The election of members to a Municipal Council as anticipated in subsection (1) (a) must be in accordance with national legislation, which must prescribe a system -

(a) of proportional representation based on that municipality's segment of the national common voters role and which provides for the election of members from lists of party candidates drawn tip in a party's order of preference; or

(b) of proportional representation as described in paragraph (a) combined with a system of ward representation based on that municipality's segment of the national common voters roll.

(3) An electoral system in terms of subsection (2) must ensure that the total number of members elected from each party reflects the total proportion of the votes recorded for those parties.

(4) If the electoral system includes ward representation, the delimitation of wards must be done by an independent authority appointed in terms of and operating according to, procedures and criteria prescribed by national legislation.

(5) A person may vote in a municipality only if that person is registered on that municipality's segment of the national common voters roll.

(6) The national legislation referred to in subsection (1) (b) must establish a system that allows for parties and interests reflected within the Municipal Council making the appointment, to be fairly represented in the Municipal Council to which the appointment is made." (my emphasis)

Section 157(2) of the Constitution accordingly provides for two options

· a proportional representation list system ("PR"); or

· a proportional representation list system together with a ward system ("a mixed system").

The constitution also allows for different categories of municipalities to follow different electoral system models. Small and rural municipalities may be better suited to a purely list system, while urban municipalities may be better suited to a mixed ward/list system.

Should a mixed PR/ ward system be used, section 157(3) requires that such a system must still result in a proportional outcome (at least insofar as parties are concerned) This principle is in accordance with the requirements of Constitutional Principle VIII, as certified by the Constitutional Court. Public policy appears to favour a mixed system, where appropriate, in order to create a closer bond between the electorate and elected representatives.

Few questions arise from a simple proportional list system and accordingly, this presentation focuses on the workings of a mixed ward/ PR system as envisaged section 157(2)(b) of the Constitution.

Some questions have arisen over the interpretation of section 157(3) of the Constitution and in particular whether the proportionality requirement stipulated in section 157(3) applies to a mixed ward/PR system or only to the PR party list element itself.

Interpretation of section 157(3)

Given differences over the interpretation of section 157(3) of the Constitution, the Independent Electoral Commission sought the advise of Advocate Jeremy Gauntlett S.C. Counsel was categorical in his opinion that section 157(3) applies to both the ward as well as the party list elements of a mixed municipal electoral system. A copy of Counsels opinion is annexed hereto marked "J".

Given the need for section 157(3) to apply to all elements of a mixed system, the focus of attention should shift to how best to achieve a mixed system that complies with the constitutional requirement of proportionality.

Proportionality in General

Since the Constitution requires that the electoral system should result, "in general, in proportional representation", it may be necessary to define the concept.

Complete or overall proportionality means that the membership of a legislature will accurately reflect the proportions of the votes recorded for each participant in an election. "Accurately" implies the mathematically truest reflection of proportions which is possible and which therefore best represents complete mathematical proportionality.

The concept of "in general, in proportional representation" is more difficult to define because of the inherent lack of precision in the term. Any definition is inherently debatable. What is clear from the Constitutional Principle is that "in general proportional representation" is the principle which has to apply to electoral systems in all three spheres of government.

In our view, the requirements of Constitutional Principle VIII are met when an electoral system provides for the achievement of overall or complete proportionality bar the deviation caused by the participation of independent candidates. Complete proportionality must be achieved in respect of the political parties participating in an election.

Proportionality in general is therefore ensured by an electoral system which permits participation by independent candidates without thereby placing any political party in a more or less advantageous position than any other political party in terms of their relative support as measured by recorded votes in an election.

A broader interpretation of "in general proportional representation" may be possible. However, the looser one's interpretation the more subjective it becomes, and the less clear it is where to draw the line in terms of the acceptable degree of deviation, in mathematical or other terms, from complete proportionality - if a 1% deviation is acceptable, why not 2%? If 2%, why not 3%? The qualification can therefore not lie in the percentage deviation permitted but should rather be sought in the basic objectives of an electoral system and the degree to which the system can consistently be applied in a fair and even-handed manner.

How to achieve proportionality in a mixed ward/list system

The simplest and easiest way to achieve a mixed system which results in proportionality is to use a single ballot paper. An example of such a ballot paper is annexed marked "A". A voter is required to vote for a ward candidate (by name) who is also affiliated to a party. The vote is tallied in each ward and each ward seat is allocated on a first past the post system. A mathematical calculation is then done to determine how to allocate the party list candidates. Party list candidates are allocated in a manner as to restore overall proportionality, rather than in a manner that merely awards a party the percentage of the vote which its candidates achieved. The list element is accordingly used as a "top-up" to restore overall proportionality. Annexure "D" demonstrates the effective use of this system.1 On some occasions, a party may receive no "top-up" seats from a party list at all, as is demonstrated by the example contained in Annexure "G". In this proposed system no candidate who has won a ward, would ever lose that ward because of dis-proportionality contained in the election results.

Do you have to use a "top-up"

It has been suggested that the party list element, using a single ballot paper, should be awarded on a proportional basis rather than on a "top-up" basis. This however does not comply with the constitutional imperative of proportionality and is accordingly, in our view, not acceptable as a potential system for municipal elections.

Independent candidates

An essential element of this proposed system is that it permits the participation of independent candidates. The wording of section 157(3) requires merely that "the total number of members elected from each party reflects the total proportion of the votes recorded for those parties" (my emphasis). The votes cast for independent candidates are accordingly discounted when calculating the "top-up" to be allocated to parties from the party lists. A voter who decides to vote for an independent candidate will accordingly have his/her vote count for the ward element only and not for the PR list element. See Annexure "E" for details of the working of this system.

Civic Organisations and Ratepayer Associations

The definition of "party" contained in the Electoral Commission Act, 51 of 1996 allows for a wide definition of the term. Specifically a party is not a political party but rather "means any registered party, and includes any organisation or movement of a political nature which publicly supports or opposes the policy, candidates or cause of any registered party, or which propagates non-participation in any election". This definition allows civic organisations as well as ratepayers associations to be parties for electoral purposes and accordingly to participate in the PR list element of an election.

Similar to national electoral system

The system proposed by the Independent Electoral Commission is almost identical to that system used for the National Assembly. The Constitution divides the 400 seats of the National assembly into two elements, 200 allocated from a central party list, and 200 from nine multi-member "constituencies" (also off a list system), which correspond to the nine provinces.

Must a party field candidates in every ward

It is certainly advisable for parties to field candidates in each ward. Practical considerations, however, may mean that a party may wish to avail itself of the PR element in a specific area, but not the ward candidate element. Annexure "B" illustrates a method whereby a party may list itself on a ballot for the PR element only, but not be eligible to have a candidate elected from a specific ward. A voter who decides to vote for a party which has failed to field a ward candidate will accordingly have his/her vote count only for the list element and not for the ward candidate element (the inverse position to that of an independent ward candidate).

Advantages and disadvantages

The advantages and disadvantages of a single ballot mixed system are set out below. Most importantly the proposed system complies with the constitutional requirement of proportionality.

Advantages: Disadvantages:

Constitutional & proportional Limits voter choice

Reflects the will of the people Does not allow a voter to split a vote

Easy to administer Internal mechanism difficult to explain

Cost effective

Similar to system used in national sphere

Allows independents, civics, ratepayers

Certain result

How many ward and how many list seats

Should a mixed system be introduced, an allocation must be made as to the percentages to be allocated to ward candidates and party list candidates. Two proposals have been suggested

· 50% ward and 50% list; and

· 60% ward and 40% list.

Proportionality is best served by a 50%/50% split between ward and party list elements. In elections with large or landslide victories, little impact is felt by the percentage split. In this regard you are referred to Annexure "F" which, using similar figures to Annexure "D" produces the same result as the example contained in Annexure "D", which is proportional. When, however, elections are more closely contested, the 60%/40% split has a significant impact. In this regard you are referred to the example in Annexure "H". In the final allocation of seats in this example, the Green Party has received even more seats than it is proportionally entitled to. Three options are possible to resolve this problem, but none of these options offer an acceptable or desirable solution. The options are:

· leave a dis-proportionate result (unconstitutional); or

· force a party to abandon a ward (unworkable); or

· increase the size of the municipal council to restore overall proportionality (uncertain undesirable and with financial implications).

Two ballot system

A two ballot system allows the voter the maximum choice. A voter will vote separately for a ward candidate and separately for a party list element. This system however, only works when voters vote in the same numbers for party representatives as they do for party lists. The moment a voter is given the opportunity to vote differently in a two ballot system, proportionality is impossible to restore. Annexure "l" illustrates two examples (using a 50%/50% split as well as a 60%/40% split between ward and list elements) showing the inherent dangers of this system. The only method to achieve proportionality in a two ballot system is to force ward candidates to stand for election as independents rather than party representatives. Annexure "C" illustrates potential ballot papers for this method. In reality, this would create a notional fiction of independence and could not be sustained in an open and transparent democratic process

Conclusion

What is clear from the issues demonstrated above, where a mixed ward/ list system is implemented, it must still result in overall proportionality. Proportionality is best achieved by using a single ballot system. A dual ballot system inherently leads to a dis-proportionate and accordingly unconstitutional results. While methods may be found to deal with a 60%/40% split between wards and PR lists, none of these solutions appear ideal. A 50%/50% split not only leads to certainty but proportionality as well.

The Independent Electoral Commission accordingly has no hesitation in strongly urging this committee to pursue a single ballot system based on an even split between ward candidates and proportional lists which results, in general, in proportional representation.

It is neither the function nor the role of the Independent Electoral Commission to prescribe a municipal electoral system. We understand our mandate to manage and administer the system prescribed by Parliament. Our understanding of the narrow parameters of a permissible municipal electoral system stems from our interpretation of the constitution and its requirements. It is our view that a mixed system which does not result in proportionality would require a constitutional amendment, if possible.

[Ed. note: Annexures "A" to "I" are not included]

Annexure "J"

EX PARTE: THE INDEPENDENT ELECTORAL COMMISSION - Consultant

IN RE: SECTION 157 OF THE CONSTITUTION. 1996

OPINION

J.J. GAUNTLETT SC

A difference of opinion has arisen between my Consultant, the Independent Electoral Commission, and the Office of the President on the one hand, and the Department of Constitutional Development and the Chief State Law Adviser on the other, in relation to the ambit of section 157(3) of the Constitution, 1996. This difference of views arises in the following way.

The relevant provisions, all are agreed, are subsections (1) to (3) of section 157 of the Constitution. These provide as follows:

"Composition and election of Municipal Councils

157.(1) A Municipal Council consists of-

(a) members elected in accordance with subsections (2), (3), (4) and (5); or

(b) if provided for by national legislation -

(i) members appointed by other Municipal Councils to represent those other Councils; or

(ii) both members elected in accordance with paragraph (a) and members appointed in accordance with subparagraph (i) of this paragraph.

(2) The election of members to a Municipal Council as anticipated in subsection (1)(a) must be in accordance with national legislation, which must prescribe a system -

(a) of proportional representation based on that municipality's segment of the national common voters roll, and which provides for the election of members from lists of party candidates drawn up in a party's order of preference; or

(b) of proportional representation as described in paragraph (a) combined with a system of ward representation based on that municipality's segment of the national common voters roll.

(3) An electoral system in terms of subsection (2) must ensure that the total number of members elected from each party reflects the total proportion of the votes recorded for those parties

The Department and the Law Advisers accept that section 157(3) applies to

section 157(2)(a). What remains is the enquiry whether it also applies to section 157(2)(b). This latter provision, as they pertinently observe, provides for an electoral system based on proportional representation combined with a system of ward representation. The law advisers then invoke a dictum by Levinsohn, J in Democratic Party V Miller NO and Others 1997 (2) BCLR 22R (D) in which some general remarks are essayed relating to the system of proportional representation. (Neither this dictum nor any other part of the judgment is however directed at the question which arises for determination here). Then they reason that "there can be little doubt that in the proportional system of representation a voter votes for a political party and not a candidate", citing the students' textbook Basson & Viljoen SA Constitutional Law (1st ed.) 128 et seq. in support of this uncontentious statement. Finally, it is reasoned that the words "reflects the total proportion of the votes recorded for those parties" in section 157(3) "are indicative of the fact that section 157(3) of the Constitution can only refer to that part of section 157(2)(b) which provides for proportional representation" (my emphasis).

This reasoning is offered by the law advisers in support of a somewhat different approach adopted by Mr K.P.S. Roome on behalf of the Department and its brief memorandum. There too possibilities are suggested in relation to the construction of section 157(3), read with section 157(2)(b), namely that the former means

"that only the system of proportional representation must ensure that the total number of members elected from each party reflects the total proportion of the votes recorded for those parties", not that

"a system of proportional representation combined with a system of ward representation must ensure that the total number of members elected from each party reflects the total proportion of the votes recorded for those parties".

The latter construction, Mr Roome contends, "seems to require an extremely tortuous and stretched interpretation which is quite unnecessary, unless.... some other requirement imposes the obligation for total or general proportionality".

Mr Roome further contends that

"As a result of the interpretation that Principle VIII of the interim [Constitution] and section 157(3) require total proportionality, a spectrum of mathematical and procedural gymnastics becomes necessary to adjust the total election result of a dual ward system and a proportional representation system".

In my respectful view, both sequences of reasoning in support of the conclusion that section 157(3) does not refer to section 157(2)(b) other than "to that part... which provides for proportional representation" is unsound and unpersuasive. In the first place, it does violence to the ordinary (and, it may be said, "simple English") of section 157(3). If the Cartesian distinction contended for had been intended, it could easily have been so stated. It is inherently improbable that it was intended in the setting of a section where a careful distinction is drawn between the two situations for which section 157(2)(a) and (b) make a carefully distinguished provision. Following immediately upon those provisions, the generic and inclusive reference in section 157(3) simply to "[a]n electoral system in terms of subsection (2)" is hardly likely.

These considerations aside, what in effect the protagonists of the contrary interpretation would wish to do is imply words into (3). Even (and perhaps especially) in a constitutional setting, the Constitutional Court held in Bernstein v Bester 1996 (2) SA 804 (CC), applying Rennie v Gordon 1988 (1) SA 1(A) at 22E-G, words are not to be implied unless without them the provision makes no sense as it stands.

That does not seem to me to be the result at all. Certainly the ensuing position gives rise to complexities but these are not incapable of rational explication and practical execution (details in this regard appear from the memorandum to Mr Du Plessis from Mr Sackstein of 17 March 1997, and Mr Du Plessis' letter of 25 July 1997 to Mr Brent Gerber).

In conclusion, in my view the clear and conclusive wording of section 157(3) is deliberate, and it must indeed be taken to refer to section 157(2)(a) and (b), in their entirety. Thus if it is decided to have a mixed ward I PR electoral system, section 157(3) applies. I agree that whichever approach is followed, the final outcome of a municipal election should still appear as if a total PR system was used.

I have chosen to reach this conclusion without any recourse to constitutional Principle VIII (as to the survival of which, in the light of the three certification judgments of the Constitutional Courts, see (1997)114 SALJ 542).

I advise accordingly.

J.J. GAUNTLETT SC

Chambers, Cape Town and 4/5 Gray's Inn Square London

14 October 1997

Appendix 2: Gender Advocacy Program

The Electoral System: Barriers to Access to Local Government for Women & Strategies to Increase the Representation of Women

Submission by the Gender Advocacy Programme (GAP) to the Portfolio Committee on Constitutional Affairs regarding the White Paper on Local Government

April 1998

Electoral systems can present specific obstacles for women to become elected as local government councillors. Certain electoral systems better facilitate the representation of women than others.

An analysis of the results of the 1995/6 local government elections reveals that women are under-represented in local government; less than 20% of all councillors are women. It is internationally accepted that the minimum representation of women in political structures and government should be 30%. This amount is recommended by the United Nations as the minimum requirement to ensure a 'critical mass' of women in these structures.

The White Paper on Local Government acknowledges that women are under-represented in local government. To increase the representation of women, the White Paper proposes that political parties introduce a gender quota of 50% on their party list. It encourages political parties to ensure that in the next three municipal elections at least half of the candidates on party lists are women, and that party lists are drawn up so that the first candidate on the list, and every second candidate thereafter, is a woman.

The White Paper also states that the present ratio of 40% PR to 60% ward seats will be retained.

Some facts:

² In the 1995/6 local government elections, the electoral system was a parallel system, based on 60% ward representation and 40% Proportional Representation.

² In the 1995/6 elections, 10.9% of all elected councillors via the ward system were women. Of all councillors elected on the basis of PR lists, 28.7% were women. The total representation of women on local government councils stands at 19.04%.

² These figures illustrate that it is more difficult for women to be elected as ward candidates than via party lists. This data is supported by international research, which demonstrates that women's representation is more likely to be secured by a PR system.

² Given the historical and structural nature of women's marginalisation, support mechanisms are required to increase the representation of women to the required 30%. The quota system is a temporary and short-term measure; other strategies are required to ensure that in the longer term women are empowered to compete against male candidates on an equal footing.

² The White Paper appears to favour a mixed system over the parallel system; in small urban municipalities only the PR component should be applied.

Option 1: Quota on PR lists

² Given the proposals in the White Paper (an electoral system based on 60% ward and 40% PR), and assuming that the percentage of women elected as ward candidates remains unchanged, the representation of women can potentially increase to a maximum of 26%. This would require that all political parties impose a quota system of 50% on their party lists, as suggested in the White Paper, and that political parties do not withdraw their support for women as ward candidates.

² If the ratio ward:PR is modified to 50:50, and with the proposed 50% gender quota on PR lists, the representation of women can potentially increase to the required 30%. The same requirements as above (see 5) apply.

² It is unlikely that all political parties will impose a 50% gender quota on their party list, as recommended in the White Paper, unless it is mandatory by legislation.

² The requirement for political parties to include a high percentage of women on their party lists is likely to serve as a disincentive to put women forward as ward candidates. This would result in an even lower representation of women councillors elected via the ward system and, subsequently, a lower total representation of women.

Option 2: Quota on combined ward and PR lists

² The mixed system is based on the premise that the majority of ward candidates are affiliated to a political party. This is illustrated by the results of the 1995/6 local government elections, where 83% of all seats (ward and PR) were won by candidates with a party political affiliation. The remaining 17% were not affiliated to a political party (Ratepayers Association, independent candidates or other). In fact, independents gained only 7.4% of the total seats.

² In a mixed system, the proportional component is deliberately geared to adjust distortions on party representivity. As such, it could also be used to adjust distortions on gender representivity.

² To reach a total representation of 30% women councillors, political parties could be required to ensure that 37% of their elected candidates from wards and PR lists combined are women. They could be presented with options as to how to reach this objective: whether they encourage more women to stand as ward candidates or whether they ensure a higher percentage of women on their party lists. If a political party would fail to secure seats for women ward candidates, it would have to adjust the gender imbalance by giving 75% of its seats won via the PR system to women.

² This measure could serve as an incentive for political parties to encourage women to stand as ward candidates.

Long term strategies:

² A quota system in itself is insufficient in achieving the required objective of ensuring a strategic and effective presence of women. It should be accompanied by capacity building programmes for those elected into office, which take into account the gender specific barriers facing women. It should also be supported by a broader process of institutional transformation, which includes gender sensitivity training for all councillors and local government employees.

² In the longer term, the Department of Constitutional Development (DCD) needs to develop a national programme to support the ward candidacy of representatives of marginalised and under-represented groups, including women. Such a programme could entail providing training and capacity building opportunities and establishing a national fund to support these candidates, amongst others.

² One mechanism to build the capacity of women and provide them with opportunities to participate in public life is to introduce a quota system for ward committees or other community forums. This may have a significant positive impact on women's candidacy in future local government elections (after 1999).

² These measures must be supported by a public education programme to change public perceptions about women and leadership.

The Gender Advocacy Programme (GAP) is a non-partisan research, training and advocacy & lobbying organisation. GAP has five programmes: Domestic Violence, Local Government, Reproductive Health, Women & Governance, Women & Social Policy.

GAP's Local Government programme has various components:

policy research for the White Paper on Local Government

advocacy & lobbying for gender sensitive legislation on Local Government

meetings between women & councillors in selected communities in the Western Cape

capacity building programmes with community based organisations to access and influence local government

primary research on Local Government & Gender: survey in the Western Cape

Appendix 3: Local Government Training Board

REPORT TO PORTFOLIO COMMITTEE

On 5 and 6 May 1997, the Training Board submitted its report for the 1996/97-financial year, and for its activities for the 1997/98-financial year to the Portfolio Committee on Constitutional Affairs. In response to the report, the Portfolio Committee raised the following concerns:

"The Local Government Training Board has a central role to play in the transformation of municipalities. The numerous problems experienced over the past three years in establishing a functional Board and a reorganised and re-orientated training system were viewed in an extremely negative light by the committee. There is an urgent need to address the following:

(a) A new legislative framework for the training of councillors and officials,

(b) The rationalisation of training institutions and resources;

(c) The apparent disparity in the salaries of training centre staff and payments to consultants;

(d) The appropriateness and qualifications of trainers in the new constitutional and development context within which municipalities work;

(e) The distinction between technical/artisan training and the governance capacity of councillors"

It is against this background that the following steps have been/will have to be taken during

1998:

1.The appointment of a small Training Board in terms of the Local Government Training Act 1985, to perform the functions provided for in this Act as well as in terms of the Manpower Training Act 1981, until such time as the Skills Development Bill has been promulgated. The appointment of a small Training Board who will be meeting for the first time for 1998 on 30 April 1998, comprising five (5) representatives from SALGA, five (5) representatives from the Unions and two (2) representatives from the Department of Constitutional Development will have the following advantages:

(B) Project Viability

Based on the Mosley report and the research done by C J Kapp and Associates, commissioned by the Department of Constitutional Development, the Board during October 1997 invited the following stakeholders viz. SALGA, Unions, Department of Constitutional Development, Institute of Municipal finance Officers (IMFO), Institute of Municipal Personnel Practitioners (IMP), Institute of Local Government Managers (ILGM), NGOs, Banks, Tertiary Institutes, Office of the Auditor-General, private providers etc. to participate in the Project Viability programme.

This exercise has proved to be extremely successful. Through the involvement of First National Bank who sponsored the workshops from October 1997 through January 1998, huge savings were made for the Board relating to venues, meals and accommodation for participants.

Through the identification and development of outcomes-based material, the following procedures were followed:

(i) Stakeholders were requested to submit their material for evaluation.

(ii) Modules were identified and stakeholders were invited to apply as developers of material. Adverts were also placed in major national newspapers for developers, trainers and mentors.

(iii) Criteria, guidelines and time frames were developed and agreed on for the development and evaluation of modules.

(iv) An Evaluation Committee was established representing SALGA, IMFO and IMP:

D Lamprecht: IMP

LJ Cloeto: IMP

JN Swanepoel: IMP

SM Jwili: IMFO

Ms J Murphy: SALGA

N Patel: SALGA

E Mnyakeng: Training Board

The following modules have been evaluated, using the expertise identified by the Evaluation Committee namely, experts from IMFO and IMP. [See Annexure I]

MODULE 1 Operating Budget

MODULE 2 Capital Budget

MODULE 3 Managing current Assets (Cash Management)

MODULE 4 Current Assets (Debtors)

MODULE 6 Managing Finance Department

MODULE 7 Creditors General and Payroll

MODULE 8 Stores

These modules were found to be in line with the principles of the National Qualifications Framework QIQF) and the SAQA process, relevant to local government needs and outcomes-based. [See Annexure II]

(v) RUP funds which were only available up to 31 March 1998 were utilised for the development of the aforementioned modules. Currently the Training Board management is negotiating sponsorship for the printing of modules with FNB, ABSA and NBI. An initial amount of R40 000,00 has been guaranteed by ABSA Bank.

(vi) The following modules viz:

Module 5 Meter reading

Module 9 General Ledger Maintenance (Information Technology)

Module 10 General Ledger Maintenance financial statements)

Module 11 Managing Fired Assets Management of Flied Assets)

Module 12 Finance (Setting Tariffs and Taxation)

were not developed during the 1997/98-fmancial year due to time constraints and due to the fact that RDP funds could not be rolled over to the 1998/99-financial year, as well as new regulations which will be implemented by the Department of Finance regarding taxation, financial statements and general ledger maintenance.

(vii) Guidelines for the remuneration of trainers and mentors will be developed as well as a 'train the trainer' programme prior to the implementation of the Municipal Finance programme to ensure that individuals are competent to train and that there is a uniform methodology which achieves the expected outcomes.

(viii) The target groups identified for the implementation process are:

Municipal financial officials without formal adequate qualifications employed in the financial departments of the 240 municipalities identified through Project Viability as being in financial difficulties. All finance officers and those interested in a municipal finance career, subject to the financial constraints of the programme.

(ix) Regular monitoring and evaluation processes will be put in place to determine the success or shortcomings of the programme.

(x) The competence of the learner will be assessed through uniform assessment instruments, including recording the competence of learners in log books by mentors.

(xi) Unlike in the past where learners were issued with certificates of attendance, certificates of competence will be issued by the Training Board which will guarantee portability within local government and hopefully the portability and recognition of competence will apply across industries in terms of the principles of NQF and SAQA process.

(xii) The evaluated material will be accredited by the Training Board and will be given recognition by IMFO, either as licentiates or associates of the Institute.

(xiii) Copyright of the material rests with the Board an will be made available to providers who can prove that they have the capacity, competent trainers and venues, which are conducive to learning for employees within local government. This will guarantee that the provision of training within local government is of the highest quality and cost effective.

(xiv) A national data bank will be installed at the Training Board where the following informational nationally and per province will be stored:

Records of competence, achievements of learner:;

Record of accredited providers;

Statistics of trainers relating to their level of competence and their location;

Hard copies of accredited material;

Record of applicants for training courses.

(C) Modules identified for councillor/official training

Recognising that there is an overlap between the training of officials and the training of councillors, the following modules has been identified as priorities for development: [See Annexure IIl]

MODULE 1 Integrated Development Planning

MODULE 2 Budgeting and Finance

MODULE 3 Roles, Functions and Relationships

MODULE 4 Financial Reporting

MODULE 5 Financing

The processes that was followed, leading to the accreditation of the material for financial officers, has been agreed to for the councillor training material.

SALGA will take primary responsibility for the implementation and monitoring of the training programme. These training programmes should lead to competency based outcomes with national certificates of competence issued, which will ensure that should a councillor not be re-elected, he/she could apply the acquired skills as a competent community leader, and entrepreneur or as a potential employee in local government.

(D) Other national priorities identified by the Board

(i) Administrative training

A proposed workshop with relevant stakeholders is envisaged for May. Private providers has submitted some material and indicated their willingness to participate.

(ii) Adult Basic Education and Training (ABET)

Providers and practitioners has been invited to a national workshop on 21 April 1998 sponsored by Volkskas Bank, to look at the development of national uniform material addressing 'life-skills' relevant to local government and leading to the personal development of employees and councillors needing ABET and career planning.

(iii) Law Enforcement Services

Workshop involving stakeholders from tertiary institutions, provincial traffic, providers and the unions were held to discuss a process to evaluate material submitted and determine a process for the development of material. The workshop was sponsored by Old Mutual.

Recent discussions between the Chief Executive Officer of the Board and the Department of Transport to eliminate the current duplication of material development and implement a uniform criteria and competencies for all law enforcement personnel across the local and provincial spheres of government.

Technical training

Electrical

The Training Board participated with ten (10) other industry training boards, Unions, technical institutes, Department of Labour, Department of Education and SAQA on a national unit standard setting process from 19-30 January 1998. With the assistance from the Bavarian Government the first draft is now being reviewed, followed by pilots to validate the standards. It is anticipated that the submission for the registration of the interim standards for registration with SAQA will be completed in June 1998.

Vehicle mechanic

Standard setting processes, bringing together motor vehicle, diesel, small plant, auto-electrical, agricultural plant and body repairer, was started on 17 February 1998 and completed on 31 march 1998. The involvement of the Training Board with eight (8) other industry Training Boards including the Department of Labour, has now reached the stage of the editing and issuing of interim standards.

Welding

Most of the work has been completed and agreed to by all the relevant industry training boards. The process is now at the stage where these national standards are being piloted at the Central Organisation for Trade Testing (COTT) for validation.

Assessor Unit Standards

With the assistance of the Australian Technical Industry, assessor unit standards has been developed. This has been submitted to SAQA for registration.

Trade related training

More emphasis are being placed on the area of trade related training and the material for the different levels which will culminate in the learner reaching artisan status, has been developed within local government. This will now enhance the level of competence and development of those people who has been classified as unskilled or semi-skilled and who were not able to access the formal apprenticeship training. The success rate within local government has been encouraging.

3. Similar to the restructuring of the Training Board, there is a proposal to restrict the Provincial Co-ordinating Committees' membership to ten (10) comprising 50% employer, 50% unions and a representative/s from provincial government. It is envisaged that in consultation the relevant municipalities, PCCs should identify actual training needs and programme, invite tenders for training and evaluate and make recommendations regarding training providers. This will have the following advantages:

(i) Provinces, through the PCCs will be afforded the opportunity to carry out their constitutional obligation to build the capacity of local government co-ordination of training at provincial level, will be enhanced.

(ii) Invitation for tenders will create a competitive training environment in the provision of training and thereby promote efficiency and effectiveness in this regard.

The most sensitive part of the restructuring process will probably be to disestablish the training centres. The need for the disestablishment of the training centres can however, not be disputed as the major part of the training budget (R6,6 million) is absorbed by salaries and administrative expenses. There are options that the Board has to consider:

* Close the training centres down immediately and have administrative support from the province or from municipalities at not cost to the Board.

* Limit the existence of the training centres for a period of four (4) months or until such time as the Sector Education and Training Authority with its provincial structures under the Skills Development Act is established.

* The Training Board employed its own administrative staff at Provincial level. Guaranteeing accountability and parity in terms of conditions of employment and remuneration etc.

SKILLS DEVELOPMENT BILL AND SOLACE REPORT

Taking into account the Skills Development Bill and the SOLACE report, the following issues has to be addressed:

1. Funding

The current levies viz. 0,04% of payroll under the Manpower Training Act, 1981 and 0,02% under the Local Government Training Act, 1985 has not kept abreast of the rising cost of training. Whilst under the Manpower Training Act, local authorities are legally bound to pay their levies, the Local Government Training Act does not enforce the payment of levies, resulting in planning and budgeting for training being made very difficult due to the non-payment by some local authorities for consecutive years.

Local authorities has already indicated that they find the payment of two separate levies unacceptable.

The Skills Development Bill proposes a levy of 1% (one percent) of payroll on all employers. Taking into account the current financial constraints facing local authorities, it might be necessary to phase in a single combined levy over a period of time until the 1% of payroll can be implemented.

However, it could also be argued that 1% of payroll would be a much lesser amount of the total budget of municipalities which annually budgets for increases on salaries, capital expenditure etc.

It is imperative that the annual central government grant to the Board should be retained until such time that the levy system ensures the financial sustainability of the Board.

2. There is consensus between SALGA, Unions and the Department of Constitutional Development that a Local Government Sector Education and Training Authority (SETA) should be established as soon as the Skills Development Bill is promulgated.

A draft Constitution will be submitted to the Board meeting on 30 April 1998 and thereafter to the Department of Labour. [See Annexure IV]

With the establishment of the local government SETA, nine (9) provincial structures operating under the control of the SETA, should be put in place to ensure that national priorities are based on provincial and local needs, that proper co-ordination of development and provision of training programmes guarantees cost effectiveness, efficiency and effective quality implementation.

The National Skills Authority representation should provide for a seat for the Department of Constitutional Affairs.

It is envisaged that the SETA will also perform the functions of an Education and Training Quality Assurance (ETQA) body under the South African Qualifications Authority (SAQA). Whilst the promulgation of the Skills Development Bill will automatically repeal the Manpower Training Act, the proposal from the Board and the Department of Constitutional Development to repeal the Local Government Training Act, 1985, has been accepted by the Department of Labour. The Skills Development Bill should however, guarantee the accountability of the SETA to the Minister of Constitutional Development.

3. The SOLACE report proposes the establishment of a Training Transformation Project Unit (TTPU) and acknowledges the prescriptive areas contained in the SAQA Act and the Skills Development Bill.

There are areas where we could learn from the international experience which could fast track some of the local government programmes. It would be useful to have such a transformation unit in place for the interim to consolidate the processes leading to capacity building.

This will assist in moving away from the attitudes that existed and still exists within local government, that where there is a need to deal with problems local authorities engage expensive consultants which does not lead to the sustainability of programmes. There also appears to be a perception that there is no capacity within local government, yet we find that a large number of consultants used within local government are former municipal employees. Currently tertiary institutions use employees in local government as lecturers or tutors.

There is therefore an urgent need to harness these resources and develop a culture of sharing of resources across local authorities as part and parcel of the transformation of local government to ensure an effective and efficient service delivery by competent employees.

COMPILED BY: Mr S M Jappie

CHIEF EXECUTIVE OFFICER (LOCAL GOVERNMENT EDUCATlON AND TRAINING BOARD)

DATE: 20 April 1998

Appendix 4: Independent Municipal and Allied Trade Union

INDEPENDENT MUNICIPAL AND ALLIED TRADE UNION (IMATU)

SUBMISSIONS TO THE LOCAL GOVERNMENT WHITE PAPER SUMMIT

INTRODUCTION

IMATU was requested to submit to this Summit its perspective on "Administrative Reform and Transformation This topic is addressed in Section F of the Green Paper.

Besides our perspective on this topic, we will also present a brief comment on two other local government issues that concern us as a trade union, namely:

- the relationship between elected Councillors and the staff of local authorities, who are our members.

- the finances of local government

SECTION F: ADMINISTRATIVE SYSTEMS

PARAGRAPH 2: ORGANISATION TRANSFORMATION

It is IMATU's view that structures and systems are in principle a local choice made by every Council. No uniform system and structure can be applied to large, medium and small local authorities. On the other hand, there are certain basic and generally accepted principles to which the structure of a municipality must conform. These are

(a) a clear division of functions between elected councillors and officials,

(b) a clear assignment of responsibilities of elected councillors and officials,

(c) a clear assignment of accountability-,

(d) a clear delegation of authority in respect of assigned responsibilities;

(e) a clear line of command and of reporting.

It is possible to achieve the aforementioned without becoming bogged down in too many divisions of functions, hierarchical levels and bureaucratic red tape, etc. as was the case in the past. It is IMATU's view that these basic principles must be contained in the White Paper

If changes to systems and structures are contemplated in the White Paper, those who wish to introduce new systems and structures must take cognisance of the history of the past three years and guard against making the same mistakes again. It is IMATU's view that over the past three years too much time, money and human resources were spent (wasted?) on restructuring municipalities. This resulted in service delivery, budget control and other essential administrative functions suffering. this is also addressed on pages 12 and 13 of the Green Paper).

Whatever changes are contemplated in the future, provision must be made that This be planned beforehand by all parties by agreeing to clear, nationally applicable guidelines and principles before any restructuring is implemented Implementation must be effected in the shortest possible time to prevent the unaffordable wastage of the past three years from recurring.

PARAGRAPH 3: HUMAN RESOURCE DEVELOPMENT

Capacity Building/Training

The functions of elected councillors and employees of local authorities differ. Broadly speaking, elected councillors are the policy makers and oversee that policies are implemented. The employees of local authorities are responsible to implement policies and to deliver services to the inhabitants within a local authority

This difference in functions implies a difference in training required by elected councillors and employees.

IMATU favours a system whereby, in the main. the training of councillors and employees is clearly separated. However, we agree that there are specific types of training that should more appropriately be provided jointly to councillors and officials. Examples of such training are courses in meetings procedures, administrative law, the role of councillors and of officials. municipal law etc.

The training of other employees should be conducted in the to be established Local Government Sector Education and Training Authority under the new Skills Development Bill,

The participation of local government, as employer, and the trade unions in a Local Government Sector Education and Training Authority should be regulated by the South African Local Government Bargaining Council.

As far as councillor training is concerned, IMATU holds the view that this should be undertaken by organised local government itself.

Staffing

IMATU agrees that municipalities should develop human resources information systems, staffing strategies, recruitment and selection procedures. career advancement procedures (which are to be guided by a clear affirmative action policy), job evaluation systems and performance management systems as proposed in the Green Paper.

However, the aforementioned should not be contained in the White Paper because such matters fall within the ambit of the South African Local Government Bargaining Council as matters for collective bargaining

A disturbing tendency is manifesting itself in local government, namely that some councillors are actively involved in removing employees (mostly senior management) from their posts and then using their political influence to have themselves appointed to these posts as well as to other vacant posts. IMATU holds a very strong view that the White Paper must contain a provision That a councillor may not be employed as a local government employee for a period of one year after he/she has resigned as a councillor.

Labour Relations

Labour relations as a whole fall within the ambit of the South African Local Government Bargaining Council and should not be included in the White Paper.

Local government cannot succeed if sound labour relations are not practised. To achieve this it is necessary that all concemed, namely all local authorities, through SALGA, and the unions (IMATU and SAMWU) actively participate in the promotion thereof.

It is IMATU's view that labour relations as such are given a very low priority by SALGA. IMATU bases its view on the fact that SALGA representatives (councillors) poorly attend meetings of the Central Council of the South African Local Government Bargaining Council and even worse, meetings of its Working Groups. It is not uncommon for SALGA (which has nine representatives on the Working Groups of the South African Local Government Bargaining Council) to be represented at meetings of these Working Groups by only two or three councillors - and then it is often the case that these councillors leave the meeting early after one or two hours and before the Working Group has been able to accomplish anything meaningful.

If all SALGA appointed representatives do not take labour relations seriously, local government will suffer as a result thereof.

At this point we want to rectify perceptions that may be created by the wording contained in the Green Paper. On page 21 it is stated that "Organised local government in South Africa is also an employers' organisation in terms of the Labour Relations Act of 1995". In fact SALGA, for technical reasons, is not yet registered as an employers' organisation in terms of the Labour Relations Act. Secondly, on page 73 mention is made of the "new National Bargaining Council". In fact the South African Local Government Bargaining Council is not yet registered as a Bargaining Council in terms of the Labour Relations Act. 1995. However, it is anticipated that this could be accomplished by the middle of 1998.

SECTION E: POLITICAL SYSTEMS

Paragraph 2: Political Structures

Role of the Head of Administration

If the head of administration is a political appointment or it the position is fused with that of the Executive Mayor, one does not need great insight to realise that such an appointed person will have no option but to follow the party line as opposed to observing administrative neutrally. The question arises as to what will happen if the incumbent abuses power or is negligent in the performance of his/her duties, especially if this abuse or negligence is with the knowledge and/or at the behest of a party political grouping7

In view of this IMATU favours the system that every Council must appoint a chief executive officer (career official) who must be the accountable officer for that municipality. This is consistent with section 195(1)(i) of the Constitution.

IMATU further urges that the White Paper contain provisions prohibiting councillors from interfering with employees of a municipality in the latter's performance of Their duties, and that individual councillors be prohibited from issuing instructions to employees of local authorities. Instructions may only be issued through the CEO. This principle is presently captured in Schedule 7 (Item 6: Intervention in administration of council prohibited) of the Local Government Transition Act and should be retained in the White Paper.

SECTION G: FlNANCE

Paragraph 4.4 Budgeting, Accounting and Financial Reporting Systems.

IMATU agrees with the content of paragraph 4.4 on page 80 of the Green Paper insofar as municipal accounting systems do not always reflect the real financial position of municipalities. It could be that as result of this, Councils are unaware of deterioration in their financial position.

However, what the Green paper is silent on is that

(a)Councils are in many cases made aware of their deteriorating financial position by the CEO but, for political reasons, refuse to acknowledge this;

(b)Budget proposals that are submitted to Councils by their CEO's for consideration and acceptance, in many cases in fact do reflect accurately the balance between income (with proper provision for bad debt) and expenditure. However. Councils in many cases prefer to ignore the realities and amend and approve budgets for political expediency.

It is IMATU's submission that the White Paper must spell out clearly

(a)Budgeting principles

(b)Rules for budget control.

(c)The duty of the CEO to report on any irregularities concerning (a) and (b) above to a higher authority The Financial and Fiscal Commission, being an independent and impartial body, could be utilised for this Another alternative to solve this problem could be the proposed Treasury Control Bill

CLIVE DUNSTAN

SENIOR VICE-PRESIDENT

1 December1997

Appendix 5: Fair Share, a program of the University of the Western Cape

FAIR SHARE, UWC School of Government

Local Government as an expression of democracy , growth , development and co-operative governance

Alternate title: Programme for transformation - Training and capacity building, further legislation

Introduction

Fair Share is a unit of the School of Government at the University of the Western Cape. It receives its funding from the United Nations Development Programme, the Mott Foundation, Misereor (a Catholic German funding agency) and ESSET, the economic justice unit of the South African Council of Churches.

Fair Share has two major programmes:

1. to help build community partnerships with local government and

2. to help NGOs, CBO'S, trade unions, religious organisations and other sectors of civil society to become economically literate by understanding how the economy works, how national, provincial and local budgets are important factors in the lives of ordinary people, and how citizen input and ownership of their own development is key to sustainable development.

Over the past year and a half, Fair Share has held workshops and discussions with over 2100 community people, local government officials and councillors, and business associations. We have worked in over 55 different local government jurisdictions in

Northern Province

Eastern Cape Province

Northern Cape Province

KwaZulu-Natal Province and

rural areas of the Western Cape Province.

We do not work in metropolitan areas but have targeted cities of less than 100,000 people and/or rural districts. We have successfully completed two pilot partnership programmes: Tzaneen and Paarl. We are also holding a consultation with facilitators who work with local governments and communities 5 and 6 May 1998. The Ministry has been invited to participate in this discussion.

Our staff bring multiple skills to the task of developing partnership between local communities and governments. We are fortunate to have staff with expertise in:

- community development in other African countries prior to 1990,

- local government experience from other countries,

- management and systems training,

- adult education and community organizing during the struggle, and

- a team that is multi-cultural which is essential in building local partnerships.

1. The assumptions we operate from:

a. Communities already have resources within their power to uplift themselves. Their level of confidence in themselves and ability to identify the resources in their area is a key towards self-empowerment and developing capacity.

b. Communities do have control over some of the resources within their community and by identifying these areas they can unleash their energy and motivation to act.

c. Although poverty is endemic, its elimination cannot be achieved by government alone nor by communities waiting for government to act. Governments are bureaucratic, slow and cumbersome. New partnerships of pooled resources are critical for people themselves to identify and utilise whether this be coalitions within civil society or partnerships between civil society and government.

d. Economic growth will not bring jobs to the over 4-5 million unemployed in South Africa. Facing the fact that there will continue to be "jobless growth" in South Africa, new models of self-reliance must be initiated into the work of development which empowers and enhances the lives of the ordinary person. Critical alternatives to GEAR are important to share so that policies aimed at job creation can be pursued.

e. NGOs, religious groups and CBOs need to clarify their own policies and role regarding their future work with government. A number of agencies are in real difficulty because they have not clarified their relationship to each other nor do they have clear public policy positions. This leads to unnecessary organisational conflict and confusion of roles.

f. Public policy formation without input by communities is a recipe for failure. The process for input must be carefully designed so as not to raise false expectations . Yet, at the same time, there should be a genuine attempt to bring government closer to people.

2. Our experience from the ground.

Co-operative governance is the expression of democracy. In our discussions with hundreds of local officials, (who remain on the whole, white Afrikaans men) local elected councillors, (who on the whole reflect the demographics of the area), local business forums (usually white and black separate organisations) and communities leaders, there is great confusion about leadership, representative government, and citizen participation. There is also controversy about the meaning of 'development'.

a. Citizen participation. In most community development theory and best practice, citizen participation is key to the success for sustainable development. If citizens 'own' their own resources and have been part of the decisions about the priorities of their area, they will freely give their time, money [through payments], and labour.

In almost all cases both local government officials and councillors do not have a practice of involving the local communities in any on-going, authentic way. There may be 'road shows', which are precisely that. They 'give' information to the community but do not involve the community. This adds to the cycle of dependency. It is our experience that since 1994, there is more apathy and alienation towards government by local communities than before 1994. This is alarming and needs urgent attention.

b. "Party politics is hampering problem-solving." Fair Share works with local government but comes with a bias towards the local community. More often than not, the issue of party politics comes up in workshops and in discussions. We have had suggestions and pleas from every political party to lobby national government to do away with the party elections. There are obvious financial constraints to such a proposal, but the essence of the argument is how to work towards problem solving within council and between council and officials and council, officials and civil society. Other 'neutral' processes and mechanisms are needed to ensure development and delivery.

c. Unfunded mandates from national to provincial to local tiers of government has left numerous well intentioned local government officials unmotivated and in the process of resigning. In some instances, this is all to the good as it leaves room for new approaches and styles of local governance -- assuming more sympathy towards those who have been disadvantaged. However, there are some local officials who would like to make a contribution to greater equity between the areas under their jurisdiction and many feel the lack of resources and distribution mechanisms are not clear and can seem apparently unfair.

d. The new recommendations in the White Paper that national grants will go directly to local government will be highly welcomed. However, a simple and easy way to understand the 'formula' by which grants are given is key. The key performance indices to assess whether local governments are indeed implementing national policy and ensuring transformation needs to be outlined in detail. If these indices are weighted in favour of ensuring equity (e.g. human development indices, gender equity indices) it is to be welcomed. However, if these indices favour purely economic growth ( e.g. Gross Regional Product and revenue collection), these indices would be punitive to historically marginalised areas and further accelerate urbanisation.

e. Unequal power in local government procedures. It is quite obvious that the real power rests in the hands of the local government officials, and especially local treasurers. "Procedures, rules, and legal restraints" are often used to describe why certain approaches suggested by councillors cannot be implemented. The unequal 'knowledge base' leaves many councillors at a major disadvantage. Often officials make policy decisions without the councillors even being aware of it. Other tactics include greater transparency and accountability, but a refusal to implement policy decisions that will benefit poor communities and relegate these projects to the category "pending RDP funding".

f. Leadership is being questioned on many levels. Some communities have become suspicious of local councillors who have not kept strong relationships with their communities. Some believe that the councillor "is the voice of the community" and therefore consultation with the community is not needed. Others believe that the councillor is only on the council to 'bring back' information so that the community can have a voice in shaping their own destiny. This conflict is a universal problem of governance and needs careful attention. This raises the issue of the limitations of representative forms of governance, especially in South Africa where the expectations of participation are deep and have a long history.

2. Development of whom and by whom?

Fair Share staff have been running community-based national budget and development workshops in all nine provinces over the past three and a half years. It is interesting to note the trends of responses to the budgets and attitudes towards government.

For the first 2-3 years, participants would be very sympathetic to the national government's dilemma of limited resources. Many people believed that President Mandela just printed more money when he ran out of funds for anything from clinics to doctors to schools or whatever. In the past 4-6 months this sympathetic attitude has been changing to one of passive resistance. There is still sympathy to the enormous amount of work that needs to be done and appreciation of the size of the task.

But there is a deep cynicism growing that government will not listen to the people and so why even give input.

In this same line, we have participants saying that government needs to go back to the drawing board regarding bringing 'development' to the people. We have had community people suggesting that their is an arrogance and a sense of elitism coming to them that others (usually from urban areas) have the answers, and that they need to become developed like them.

With the elections looming in 1999, many councillors who are approached to promote participatory workshops and who see the need for partnerships with communities as an effective means for service delivery in local government tend to want to make the partnership an accomplishment by their political party, which defeats the purpose of co-operative governance and transparency. There are already huge tensions between councillors, specifically civics and ANC councillors (let alone conflicts within the parties) which has disastrous consequences for the community. The needs and the voice of the community are increasingly being sacrificed for political mileage. Development of people thus is placed on the backburner.

3. The model we use to ensure co-operative governance

Based on a Summary from the Draft Local Government White Paper on community participation (see also p.2 of Appendix 1) which states that local government will:

- Be accountable and transparent

- Have as a goal to achieve equality, non-racialism, gender equity and economic growth

- Develop and itegrated and co-ordinated development plan to achieve RDP goals

- Ensure participation in planning and budgeting

- Create co-operative and supportive relations with civil society

- Provide services equitable

- Be the main place of delivery to disadvantaged areas,

Fair Share has designed a 3-day strategic planning workshop which would

lead towards integrated development, ensure community involvement (especially those who have been historically marginalised), clarify roles after sufficient consensus on the issues, priorities, vision and measurable goals has been reached. It would also have an end product that has measurable outcomes with appropriate participatory evaluation mechanisms and is aimed at implementation.

The programme of the model includes the following: (for detail see Appendix 1)

Stage 1 - Identifying the issues and clarifying the assumptions that underlie our common vision for a specific local government in 5 years' time.

Stage 2 - Clarifying Goals and Roles

Stage 3 - Developing plans for implementation

Stage 4 - Setting up participatory evaluation processes

Stage 5 - Follow-up workshops to assess on-going delivery targets

Who participates in strategic planning?

Fair Share believes that at the beginning of a strategic planning process, the involvement of all stakeholders: community leaders, NGO's CBO's, the business community, town officials and councillors is critical. If one sector develops a plan without the other, there will continue to be conflict over roles and goals. We therefore strongly suggest that the following people be present for Stage 1 and 2 workshops (assuming a town of 80 000 -100 000 inhabitants)

Town officials: 8 -16 people (heads and deputies)

Town Councillors: All councillors

Community Representatives: 10-15 people

Development Forum/SANCO: 10-15 people

Private sector: 10-15 people (if they are interested)

TOTAL: 62-77 people

The participants at the strategic planning workshop would be: [Ed note: The diagram is not included]

Please also refer to the Appendix 1 entitled "Community Participation in Local Government Strategic Planning"

These workshops are available to municipalities at much lower (approx. 15-20%) costs of private consultants due to the funding we receive for our work.

4. Concluding comments - beyond the White Paper

Fair Share, in a submission on the Discussion Document on Local Government to the Ministry of Constitutional Development and Local Government in last year, highlighted key concerns. While we applaud the work you have done, especially given the time constraints you have in order for national legislation to take place, We would like to re-iterate our concerns and raise new ones:

a. Many of the documents were released late and local communities were unable to react and have input to it.

b. Many of the committees in the drafting of this process had poor representation of women.

c. When local governments first establish a strategic plan (IDP) and then have a "road show" to communities to explain their plan they alienate communities further, since this is NOT participation.

d. The roles of local councillors, officials and civil society need to be spelled out more clearly.

e. The IDP's of local governments must ensure input of civil society, not only councillors and officials.

f. The IDP process for rural areas to be facilitated by District Councils is VERY problematic, since these structures are largely non-representative in many areas and entrenches the interests of the rich and businesses.

g. The key performance indices should be based on a developmental perspective, i.e. address the needs of people (especially the poor) and not be in favour in "jobless" economic growth.

We thank you for the opportunity to make this submission and are committed to assisting local governments in ensuring community participation. We trust that you would view this submission in a serious light.

Thank you.

Sally Timmel and Elroy Paulus (on behalf of Fair Share, UWC School of Government)

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