SALGA’s SUBMISSION : PUBLIC HEARINGS ON LOCAL GOVERNMENT MUNICIPAL SYSTEM BILL

The South African Local Government Association has considered the Municipal Systems Bill, since the first draft towards the end of 1998.

We have consulted our member Provincial Association and Municipalities on this piece of Legislation. Numerous engagement and discussion has taken place between ourselves and the Department of Provincial and Local Government Affairs, on this Bill. We have also engaged other stakeholders in this regard.

The Constitutional principles, the White Paper Policy on Local Government, and the experience of Governance in Local Government post the 1994/5 election inform the SALGA approach to the Bill.

We have embarked on a process to audit the constitutional outstanding matters in Local Government. We have re-assessed the White Paper on Local Government, engaged Government, Politicians and positioned in Local Government and this developed a considered viewing.

1. The Bill

2. Constitutionality

3. Philosophy of the Bill

Any proposed local government legislation should:

1. Further the constitutional objectives of the local government;
2. Include elements of regulation (i.e. monitoring and control) and also of enablement (i.e. increase ability and opportunity to perform functions);
3. Contribute to the process of transformation of local government while building on existing capacity;
4. Distinguish between policy, practices and procedures, and law;
5. Outline the process for determining what legislation is required and what the substance of such legislation should be;
6. Be uniform and consistent in its applicability throughout the country, while taking into account geographic or other specificity’s;
7. Be relevant to the needs of local government in the current context and at least in the foreseeable future;
8. Address existing policy and legislative gaps and not repeat other legislation (instead cross-reference) nor should it present other policies as legislation;
9. Be practical and implementable.

1. The starting point of any legislative process is clearly the constitution. The Constitution details the objects of local government and various other elements. For various of these the constitution indicates the need for national and/or provincial legislation.
2. The extent to which these requirements of the constitution have been met in existing and proposed legislation have to be assessed.
3. The local government white paper further elaborates the constitutional mandate of local government and details a policy framework for the operation of local government
4. The extent to which this policy framework requires corresponding legislation requires to be assessed
5. Finally, the extent to which the current and proposed local government as well as other legislation provides the framework for the operation of local government and the extent to which other legislation which is to fill any gap that exists in current and proposed legislation has to be assessed.

1. "Delegation"

"Delegation" this common law concept should not be extended to include an instruction to perform a duty. The delegatee has authority to take executive decisions for which s/he can be held liable and accountable. Including the execution of the instruction in this concept will have the result of removing the discretion from the "delegatee", but still holding him liable and responsible for actions where s/he had no such discretion.

2. "Delegating authority"

1. It is incorrect to assume that all authority is delegated by the municipal council, for example the Municipal Structures Act gives specific powers to the executive committee or the executive mayor. For the purpose of appeal on delegated function it is not desirable that a council be used as an appeal mechanism.

The defination of ring of ring fencing is welcomed, however the must be a tightening of the defination to avoid ambiguity:

It seems that what is intended here is that such an entity should be financially ring-fenced. This need to be clarified.

Paragraph (b) is not understood and It is suggested, it reflect:

Has been assigned financial and operational authority and responsibility by the municipality, to carry on a business activity which the Council is legally competent to carry on.

It is not understood what is meant by "statutory money" in (d)(ii) and it is suggested that this should read as follows:-

"(ii)by way of tax, levy or other monies collected in terms of any legislative

provision."

The purpose of this definition is not understood as the term is already defined in section 239 of the Constitution. Surely any legislation which attempts to define a term already defined in the Constitution in a different way to that in which it is defined in the Constitution would to that extent be in conflict with the Constitution.

6. Municipal Service

The bill must include a defination of a municipal service.

Clause 2

This section provides that a municipality consists of the governing structures and administration of the municipality and the residents and communities in the municipality.

The above principle is supported by SALGA. However the legal nature of municipalities is unclear. To achieve the objects of ocal government the following general empowerment clause should be included in legislation:

1. A municipality as a sphere of government has all the functions and powers assigned to it in terms of section 156 and 229 of the Constitution, subject to Chapter 5 of the Municipal Structures Act;
2. A municipality – has the right to exercise any power concerning a matter reasonably necessary for or incidental to the effective performance of its functions as government;
3. In order to promote the general objects of local government as envisaged in section 152 of the Constitution a municipal council may make any by-law for its area of jurisdiction which by-law shall be subordinate legislation;
4. A municipality as juristic person shall have all the private law rights and obligations of a natural person unless the exercise of any such or the imposition of any such obligation is specifically prohibited or regulated by any national or provincial legislation and provided further that the exercise of any right or the incurring of any obligation does not in any way inhibit a municipality from obtaining its objects or fulfilling its executive and administrative functions as envisaged in sections 152 and 156 of the Constitution."

In terms of the Constitution a municipality has municipal executive and legislative authority in its area and a municipality has executive authority in respect of and has the right to administer the matters referred to in the Constitution and the municipality is empowered to make and administer by-laws for the effective administration of the matters which it has the right to administer.

Clause 3

The content of this section is supported, save to indicate that, municipalities separately constitute the local sphere of government in their respective geographic areas (vide section 151(1) of the Constitution).

Clause 4

There is a danger inherent in provisions which place an unqualified duty upon a Council that the Council may be faced with mandamus applications if such duties are not carried out immediately.

It is therefore suggested that the introductory paragraph of subsection (2) reads as follows:-

"The Council or the Municipality and, to the extent of their delegated authority, its committees and functionaries, must within the municipality’s financial and administrative capacity and having regard to practical considerations strive to -

This is in line with the provisions of subsection (2) of section 152 of the Constitution.

Clause 4(2)(g)

This provision seems to place upon a municipality the obligation to, without agreement, become involved in the unfunded provision of housing and general health care (as opposed to municipal health services), food and social security, etc. Is this constitutionally justified?

These sub-clause should be deleted.

Clause 5

Clause 5(1)(g)

This provision implies that a resident or a "community?" has the right in perpetuity to the use and enjoyment of public facilities and municipal services. It might however occur that a municipality has to close a facility or discontinue a service for financial or other reasons. It is therefore suggested that the provision read as follows:

"(g) To the use and enjoyment of public facilities and municipal services which the municipality provided to its residents, provided they comply with the duties set out in subsection (2), and provided further that a municipality may at any time for good and sufficient practical or financial reasons temporarily or totally close any public facility or discontinue the provision of any particular service."

Clauses 7, 8 and 9

Again a positive obligations are placed upon the municipality which obligation the municipality may for various reasons from time to time not be able to meet. It is therefore suggested that the words "strive to" be inserted after the word "must" wherever it appears in these clauses.

Clause 10

Public notice need to be defined to include as wide as possible dissemination of council meetings.

Clause 11(2)

This clause should be deleted and should be dealt with in terms of the by-law or resolution of Council.

Clause 11(3)

Would this provision meet the constitutional provisions of section 160(7)? Especially where powers of a non-sensitive nature have been delegated to the executive committee or a mayoral committee.

Clause 12

The obligations under this section are imposed in local government and the authority to determine how this needs to be done, is the competence of local government in terms of section 160(6) of the Constitution and therefore falls outside the powers of the Minister and this section should be deleted.

Clause 13

How does a municipality achieve the objects of local government if its legislative power is limited to the original legislative power set out in section 156 of the Constitution. It is suggested that section 13 - General Empowerment should read as follows:

"13. (1) A municipality as a sphere of government has all the functions and powers assigned to it in terms of section 156 and 229 of the Constitution, subject to chapter 5 of the Municipal Structures Act.

(4) A municipality as a juristic person shall have all the private law rights and obligations of a natural person unless the exercise of any such right or the imposition of any such obligation is specifically prohibited or regulated by any national or provincial legislation and provided further that the exercise of any right or the incurring of any obligation does not in any way inhibit a municipality from obtaining its objects or fulfilling its executive and administrative functions as envisaged in sections 152 and 156 of the Constitution."

Clause 14

The contents of these clause is generally supported

Clause 16

The notion of the right of local government to adopt regulations in terms of its by-laws as dealt with in the previous text of the Bill, should be re-introduced for purposes of clarity.

Clause 17

There is no valid reason why the bylaw should be published and circumstances may dictate that the publication may be delayed. Regulations should be published in the provincial gazette. The following wording is suggested:-

"17. A by-law passed by the municipal council and a regulation made in terms of a by-law must be published in the provincial gazette and takes effect when published or on a date determined in or in terms of the by-law or regulation."

Clause 19

The use of the word "annotated" means that explanations and or comments must be included. This requirement is not imposed on any other legislation.

The Bill should address

• The need for integrated development planning
• The purpose of integrated development planning
• Timeframes
• Minimum requirements (outputs and processes)
• Legal status and effect; and
• Guidelines

The IDP should provide a broad framework, the draft legislation goes into too much detail around IDP. It should set out the requirement s of an IDP to council which states must emphasise that:

Within its financial and administrative capacity, a council is required to decide the best way to-

• Give priority to the basic needs of the community
• Ensure the provision of services to communities in a sustainable manner
• Promote social and economic development
• Promote a safe and healthy environment
• Structure and manage its administration and budgeting planning process
• Provide democratic and accountable local government and
• Encourage the involvement of communities and community organisations in the matters of local government

In order to give it control over these massive and sometimes conflicting matters, it is essential for a council to continuously integrate and plan these developmental duties and objects.

In doing so, it may follow a cycle of steps-

• Prioritise the needs of the municipality in terms of these duties and objects after consultation with the community
• Establish goals that will meet these needs, probably over a ten year period
• Formulate integrated strategies to achieve these goals within specific time frames and probably over a one and a five year period
• Identify and allocate financial, institutional and community resources that are needed to implement these strategies, probably also over a one and a five year period
• Adopt an annual budget that embodies this integrated development plan
• Implement the budget
• Monitor and evaluate its implementation and finally
• Report its performance each year to its residents

IDP as contained in the Bill should be informed by two positions.

• Firstly, it should cover minimum requirements necessary for integrated development planning; and

• Secondly, every municipality should be obliged to prepare an integrated development plan

NB: Please note that the content of this chapter requires further debate due to the publication of the development planning commission

This section on performance management is not linked closely enough to the IDP content. IDP and performance management must either be two integrally linked chapters that flow from one another or they should form part of one chapter.

Performance management is critical to the effective transformation of local government as delivery and development are central issues for the new local government system. Performance measurement is a gauge of its success. Local government must position itself for different attitude and method of communication, disclosure, availability and reporting between a council and its constituency.

A council should constantly ensure that:

• Its business is comprehensible to the public
• Conflicting objectives are resolved in a clear and proper fashion
• Distinct objectives and policy are stated and established for each activity
• Performance is regularly monitored and evaluated

SALGA agrees strongly that municipalities should be required to establish Performance management systems. Performance indicators should be set with due regard to their relevance and measurability. It is better to have a limited number of indicators that can be measured and reported, than a large number of indicators about which nothing happens. Each council could set its local indicators as part of the integrated development planning process, with community participation.

The legislation should provide the broad framework and establish the obligation for this to happen. However the setting of indicators and targets, the establishment of such systems, the reporting and monitoring and evaluation should be carried out by local government, not contained in detail in national legislation. Accordingly sections 38 – 46 should be deleted. SALGA should be responsible for this and the legislation could even state this.

Part 1

It is agreed that National Legislation must make provisions for the promotion of the values and principles listed in section 195(1) of the Constitution.

Provisions in section 47(2)(c) – (e) should be deleted as the issue is dealt with in the Access to Information Act the Promotion of the Administrative Justice Act.

Local government as part of the broader government and the public service is bound by the principles of "Batho pele". Thus containing these principles in the draft legislation for local government, is inappropriate unless it also deals with the other spheres of government.

Clause 55

Concern is raised whether this is an appropriate mechanism for limiting delegation beyond what is provided for in section 160(2) of the Constitution.

Even if this is the appropriate mechanism, the following is suggested as an amendment:

"A delegating authority may not delegate to an individual councillor or official …" excluding institutions such as the executive mayor.

Clause 57

The present wording of this clause would require the full council to hear all appeals. Clearly this does not appear to be the intention of the drafters and is also not practical. Provision should be made for councils to establish or appoint appeal committees from amongst its members subject to compliance with the Promotion of the Administrative Justice Act to hear such appeals. It is not desirable that a full council should act as an appeal mechanism.

Clause 58

Clause 58 presents particular problems where in large municipalities a multitude of day-to-day administrative decisions are delegated. A compilation of reports in this regard would require the employment of extra staff to monitor such matters and compile the reports. Surely such matters should be left to the relevant Council in determining its internal arrangements.

Part 4 – Staff matters

The obligation of a municipality to contribute to a pension or provident fund or a medical scheme of which any of its employees are members in accordance with the rules of such fund or of such scheme may result in higher contributions being made by the municipality in respect of any particular fund or scheme when compared to the contributions made to any other fund or scheme, which would result in some employees receiving higher "remuneration" by means of such contributions than other employees on particular grades or in particular posts which are the same.

What are Municipal Services?

Parts B of Schedules 4 and 5 to the Constitution mentioned the following services in respect of which a municipality has Executive Powers:

(i) Fire Fighting Services,

(ii) Municipal Health Services,

(iii) Municipal Public Transport,

(iv) Water and Sanitation Services,

(v) Local Amenities, Local Sports Facilities, and

(vi) Refuse Removal.

The other matters mentioned in the Schedules do no appear to be services.

There should be some definition of what municipal services are. If municipal public transport is a municipal service as envisaged in this chapter. This implies that every municipality is obliged to provide some or other form of municipal public transport for all its residents and communities.

Part 2 – Provision of services

Part 3 – Service delivery agreements

The alternative mechanisms for the provision of services are presently subject of intensive debate within SALGA and appropriate submissions will be made.

Section 89(1)(c):

The provision for indigent debtors should be addressed in terms of national and provincial government social welfare functions.

Clauses 91 and 92

These are internal arrangements for the municipalities. In any case, such matters may be dealt with by any committee of the council it deems appropriate.

Part 1

The provisions of this particular sections are dealt with in terms of section 139 of the Constitution and legislation further regulating this matter has been drafted. Therefore any matters relating to monitoring and supervision of municipalities should be left to the above process.

The focus of this section should be the capacitation of municipalities by provinces as per section 154 and 155(6)(a) of the Constitution. This section must detail the nature and the process for capacitating municipalities.

Part 2

It is not clear what this particular provision is intended to achieve. It should be borne in mind that in terms of the Constitution, the Minister has the responsibility to build capacity of municipalities. We are not convinced that these provisions will achieve that objective.

Clause 100(1)

The principles contained in this clause are supported.

Clause 100(2)

This particular clause should be deleted and this particular function should be performed by the Minister responsible for local government only. This will ensure that there is proper co-ordination and that municipalities account to one Minister.

In terms of section 52(1)(b) of the Rules of Court made in terms of the Magistrate’s Court Act 32 of 1944, amongst others, a local authority may act in the Magistrate’s Court through an officer of the local authority nominated by it for the purpose.

There are municipalities, which conduct debt collection and other civil proceedings in the Magistrate’s Court by acting through suitably legally qualified officers of the Council. In order to ensure that municipalities continue to enjoy this capability, it is requested that provisions be made under this chapter for continuing this practice in both the lower and higher courts.

Clause 101(1)

The sphere of local government consist of municipalities. The rights of municipalities are contained in a large range of legislation and what is necessary is a general transitional provision equating municipalities to local authorities and the like. Singling out the Limitations of Legal Proceedings Act, may cause interpretational problems in respect of other legislation.

Clause 101(2)

The way a municipality litigates forms part of its incidental powers and should not be legislated for. It may be necessary to allow municipalities to compromise claims in respect of debts because of the provision of clause 88(a).

Clause(102)(1)

When anything must be notified by municipality in the media, it must be left to the municipality to define the appropriate media which could include radio in areas where no newspapers are circulated.

Clause 104

The court should take judicial notice of local government legislation in the same way it acknowledges national and provincial legislation.

Clause 112

This section attempts to broaden the Constitution in that it allows for regulations to be published which impacts on the competencies of municipalities which is an autonomous sphere of government. Most of the issues referred to in clause 12, 34, 46, 66, 86 and 96 on which regulations may be made are an infringement of municipal competencies and are unconstitutional.

The only intervention that should happen is that provided for in section 154(1) of the Constitution which must be aimed at the support and strengthening of municipalities to manage their own affairs to exercise their powers and to perform their functions.