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CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE
23 March 1999
MUNICIPAL SYSTEMS BILL
Members of the Department on Constitutional Development briefed the Committee on the timeframe and contents of the Municipal Systems Bill. The Bill is scheduled to be published in April and tabled in Parliament by the end of July. The legislation is the third and final Bill aimed at implementing aspects of the Local Government White Paper. It addresses issues including integrated development planning, municipal performance management, local public administration, human resource management, municipal service partnerships, and monitoring and intervention mechanisms.
Mr Bhabha (NCOP, ANC Mpumalanga) opened the meeting and said he would be acting as Chair since Mr Carrim was ill. He informed the Committee that they would meet the next day (24 March) to discuss Y2K compliance issues, and the following day (25 March) to discuss the Fifth Constitutional Amendment. He then asked Mr Willemse to introduce the Municipal Systems Bill on behalf of the Department.
Mr Willemse said the Municipal Systems Bill represents the most comprehensive legislation on municipal issues since 1992. It is the third part of legislation aimed at implementing the Local Government White Paper, along with the Municipal Structures Act and the Demarcation Act. The Municipal Systems Bill represents a comprehensive approach to local government issues, and involved input from all departmental Chief-Directors with responsibilities in the local government branch. The Bill is still being drafted, and the Department hopes to publish it by the end of April. This will allow time for public response, review by the State Law Advisers, and submission to Cabinet before the Bill is tabled in Parliament by the end of July.
Mr Louw said he would discuss the first several chapters of the Bill, which address the legal nature of municipalities. The Bill makes provision for consultation between municipal and provincial governments. It also deals with such issues as the procedure for adoption of by-laws by a municipal council, as well as the handling of public submissions or complaints to a municipal council.
Mr Matosa (ANC) asked how they can guarantee strong participation of residents in a council meeting, because in certain areas council members are known to prevent community members from contributing to the meetings.
Mr Louw said the code of conduct for municipal council members is the only vehicle they can use to assure that council members act appropriately.
An MP said it sounded as if the Bill makes provision only for the handling of written complaints – what about verbal complaints or communications?
Chairperson Bhabha said he understands the question, especially in the context of illiteracy in some areas, but the purpose of this briefing is to deal just with the broad principles of the Bill. There will be plenty of opportunities in the future to get into the detail. The Chair then asked the Department to discuss the next section.
Mr Africa said he will discuss chapter 4 of the Bill, which addresses the issue of integrated development planning. This section first establishes a direct link between planning and the Constitution, as the Constitution quite clearly addresses the developmental responsibilities of local government. The Bill also defines integrated development planning as a purely integrated approach to planning, as opposed to other narrow or sectoral approaches to planning that have been used in the past, such as land-use planning.
Next the section establishes the minimum requirements that must be included in any integrated development plan. For example, any integrated development plan must have a long-term vision, and it must begin with an assessment of current capabilities and needs. The Bill will lay out these minimum requirements in more detail. The section then begins to characterise and explain the process of planning, i.e., it explains how a municipality goes about creating an integrated development plan. The section finally addresses the legal consequences of the adoption of an integrated development plan, in terms of obligations to the municipality. In sum, the integrated development plan should be the principal, overarching development plan for a municipality. It should be the primary planning instrument.
Ms Verwoerd (ANC) said this issue of planning is one aspect of the role of municipal government where it is crucial for public participation to be facilitated, and Mr Africa has not addressed whether it will be included in this Bill. It is worrying that the entire process is often driven by outside consultants, with very little perspective from the ordinary people whose lives stand to be most affected.
Mr Africa replied that the Bill does address the issue of community involvement. Included in the minimum requirements for an integrated development plan is a statement from the municipality on how input from the local community will be built into the process.
Mr Bhabha left the meeting at this point, and asked that Mr Du Toit (ANC) take over as Chairperson.
Chairperson Du Toit called on Ms Hendricks from the Department to discuss the next part of the Bill.
Ms Hendricks said she would discuss chapters 5, 6, and 7 of the Bill, dealing with performance management, local public administration, and human resource management. Performance management is covered in chapter 5 of the Bill, and serves several functions. It allows for a public process of inquiry into local management. It also deals with intervention in the event that minimum performance standards are not met. A key component is the creation of core development priorities by each municipality. Within each core development priority must be stated the indicators through which performance will be measured, as well as targets to be met. The municipality is then responsible for measuring and assessing performance against those targets. They will also be responsible for making annual progress reports.
Mr Watson (NNP) mentioned that performance management and assessment is becoming an important part of the Auditor-General’s office.
Ms Hendricks said that the Department is planning to co-ordinate with them to make sure that there is governmental consistency in dealing with issues of performance management.
Ms Verwoerd said this sounds very valuable, but it is very big-picture oriented in terms of stating and meeting certain performance goals. She would like to see something built in to understand how the public perceives and is impacted by municipal governments. There is a need to develop more of a "customer relations" mindset to the work of local government.
Chairperson Du Toit said that a clear message being sent by this Committee for the Department to consider when finalising the Bill is the public interest.
Ms Hendricks said the Department has recognised this as an important issue. She is unsure if it can be built into the legislation, but it can be established as one of the indicators in the development priorities.
Chairperson Du Toit asked whether the establishment of these structures will be possible on a practical level for many municipalities, in terms of financial and personnel requirements.
Mr Matosa added that this seems to be a very costly system. Not all municipalities have the resources to implement all these performance monitoring and evaluation structures. Even some of the public participation components mentioned earlier, such as allowing members of the public to attend council meetings, could be difficult to implement. Not all municipal councils are able to meet in a venue that can accommodate public attendance.
Ms Hendricks replied that the system of performance management to be mandated by the Bill will build on systems that already exist in the local government structure. They will not require the creation of entirely new structures. There will, of course, be some incremental cost involved, and the Department will be better able to provide an understanding of those costs in a few months.
To finalise her discussion of this sections, Mrs Hendricks said that chapters 6 and 7, dealing with local public administration and human resource management, will be combined into one chapter in the final Bill. This chapter will aim to provide structure for the Constitution’s requirements for local administration, and give effect to Section 195(3) of the Constitution.
Chairperson Du Toit asked Ms Moloi to give her presentation.
Ms Moloi said that she would discuss chapter 8 of the Bill, dealing with municipal service partnerships (MSPs). The Constitution says that municipalities are responsible for service delivery. They can either provide it themselves or arrange for its provision from someone else. These arrangements take the form of contractual agreements with a second party. The second party can be another municipality, a public entity, an organisation in the private sector, or an NGO or community partner.
Municipal service partnerships are tools – they are not an end in themselves. They are part of the integrated development plan process. In the course of that planning process a municipality is expected to recognise those areas in which they are not equipped to provide the required services, and then enter into arrangements to meet their obligations. It needs to be stressed that this does not involve privatisation of government functions and responsibilities, but rather the creation of partnerships to make sure that obligations are met.
This chapter of the Bill defines the ways that services can be provided, both internally and externally, through MSPs. It will also address issues of procurement, to limit fraud and to make sure that affirmative actions objectives are met.
Chairperson Du Toit said that the Department and the Committee both need to consider the level of detail in which this Bill should be written, i.e., whether it is to be very detailed or cover broad principles only. On the one hand, circumstances can change quickly in areas such as the ones this Bill addresses, and in such an environment it is best to just have broad principles in the Bill. The details can then be hammered out in regulation, where they are more easily changed as circumstances warrant. At the same time, however, the Committee is aware that local governments are looking to this legislation for specific frameworks and answers to problems they currently face. This issue does not need to be discussed now, but the Chair asked that the Department bear in mind the balance to be struck, and be prepared to justify the decisions they make when the Bill is ultimately tabled in Parliament.
Mr Louw said he would finish the briefing by covering the last two chapters of the Bill. Chapter 10 addresses monitoring and intervention mechanisms, and gives effect to Section 139 of the Constitution. The Bill will lay out the process by which an MEC exercises oversight over a municipal council. If the MEC has reason to believe that a municipal council is not meeting certain of its executive functions, he can request further information or set up a Committee of Inquiry. If the MEC is satisfied that the municipality cannot meet its obligations, he then has certain responsibilities which will be set out in the Bill. These responsibilities include issuing a written directive to the municipality, or potentially taking over the functionality in which the municipality is not meeting its obligations. The Bill will establish clear guidelines for such intervention, including notification of the Minister.
Chapter 11 deals with legal matters, and is still being developed. It will contain general provisions for addressing legal matters arising from the Bill.
Mr Botha (NNP) said it appears that there will be widespread consultation in the finalisation of this Bill. The NNP welcomes that process.
Mr Matosa asked whether the title of the Bill is appropriate. The Bill might be more appropriately titled the "Municipal Operations Bill" as opposed to the "Municipal Systems Bill."
Mr Lowe answered that they are still considering alternate titles for the Bill.
The Chairperson thanked the members of the Department for their input. The meeting was adjourned.
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