FOR THE CONGRESS OF THE PEOPLE
BACKGROUND
Local Government elections are set to be held in the first quarter of 2011.
Coupled hereto, the newly named Department of Cooperative Governance and Traditional Affairs is in the process of finalising a Policy Paper on the Review of the Powers and Functions of the Three Spheres of Government. This will be taken to cabinet later this year where -after it is envisaged that parliament will facilitate a process of public participation.
Issues involving provincial governments are also in the spotlight with the ANC wishing to undertake a review process including matters such as the number and boundaries of provinces and their powers and functions.
Further, recent ‘service delivery ‘ protests have thrust local government to the forefront of public debate; resulted in serious admissions on the part of the ANC and its Minister and Deputy Minister of Cooperative Governance and Traditional Affairs regarding the state of local government; and necessitated the recent launch of a government-led initiative which will begin a process of substantiating issues and shaping the roles of government and its partners in the planning and implementation of a National Local Government Turn Around Strategy.
It is within this context that there is a need for the Congress of the People to commence a process towards the development of a policy position statement on local government and local government reform – within the context of the Constitutional composition of government in the Republic of South Africa and the imperatives of cooperative governance.
THE LEGISLATIVE CONTEXT OF LOCAL GOVERNMENT
Before reviewing the performance and current state of local government it is necessary to understand its legislative context.
The Constitution
Local Government as part of the Government of South Africa
Ø Section 40 of the Constitution stipulates that in the Republic government is constituted as national, provincial and local spheres of government which are distinctive, inter-dependent and inter-related.
Ø This indicates that there has been a fundamental constitutional change in the way South Africa is governed post 1994.
Ø The Constitution moved South Africa from a parliamentary (or Westminster) system of government to democratic government within a constitutional state.
Ø It was the Interim Constitution that first established a constitutional democracy for South Africa and such a constitutional democracy was reinforced by the adoption of the Constitution of the Republic of South Africa Act No 108 of 1996, the current Constitution.
Ø In a parliamentary system of government, the legislative authority is vested with unfettered power, whilst in a constitutional state all organs of state must act in accordance with the principles enshrined in the Constitution.
Ø The South Africa Act of 1909, which established the then Union of South Africa, contained a number of federal elements, one of which was that “municipal institutions, divisional councils and other institutions of a similar nature” fall within the legislative competence of provincial councils.
Ø The provincial councils retained their legislative competencies over municipal institutions until 1 June 1986 when they were abolished in terms of the Provincial Government Act No 69 of 1986.
Ø Until the advent of the new constitutional dispensation, municipalities possessed no rights or powers – either expressly or implied – other than those conferred upon them by a competent authority.
Ø In these circumstances local government was well and truly a third and subordinate tier of government.
Ø The introduction of the Interim Constitution on 27 April 1994 commenced a process of emancipation for local government that was confirmed in the Constitution of current application.
Ø The recognition in the new Constitution of local government as a sphere of government has significantly enhanced the status of local government as a whole – and of municipalities in particular – and has given to them a new and dynamic role.
Ø It is important to re-iterate that “government” in South Africa is constituted as national, provincial and local spheres of government.
Ø Section 156(1) of the Constitution sets out the functions of local government as being those matters listed in Part B of Schedule 4 and Part B of Schedule 5 of the Constitution.
Ø Section 156(4) of the Constitution provides that the national and provincial governments must assign to a municipality, by agreement and subject to any conditions, the administration of a matter listed in part A of schedule 4 (Functional areas of concurrent National and Provincial legislative competence) or part A of schedule 5 (Functional areas of exclusive Provincial legislative competence) which necessarily relate to local government – if such matter would most effectively be administered locally and the municipality has the capacity to administer it.
Ø This underscores the notion that the local sphere of government is seen to be the instrument for delivery.
Ø It is important to re-iterate that “government” in South Africa is constituted as national, provincial and local spheres of government.
Co-operative Government
Ø Chapter 3 of the Constitution deals with co-operative government and in particular section 41 outlines the principles of this concept as follows:
l All spheres of government and all organs of state within each sphere must:
• Preserve the peace, national unity and indivisibility of the Republic;
• Secure the well-being of the people of the Republic;
• Provide effective, transparent, accountable and coherent government for the Republic as a whole;
• Be loyal to the Constitution, the Republic and its people;
• Respect the constitutional status, institutions, powers and functions of government in the other spheres;
• Not assume any power or function except those conferred on them in terms of the Constitution
• Exercise their powers and perform their functions in a manner that does not encroach on the geographic, functional or institutional integrity of government in another sphere; and
l Co-operate with one another in mutual trust and good faith by:
• Fostering friendly relations;
• Assisting and supporting one another;
• Informing one another of, and consulting one another on matters of common interest;
• Co-ordinating their actions and legislation with one another;
• Adhering to agreed procedures; and
• Avoiding legal proceedings against one another.
Ø An Act of parliament must:
l Establish or provide for structures and institutions to promote and facilitate inter-governmental relations; and
l Provide for appropriate mechanisms and procedures to facilitate settlement of inter-government disputes.
Legislative Authority
Ø Section 43 of the Constitution stipulates that in the Republic, the legislative authority –
l of the national sphere of government is vested in parliament, as set out in section 44;
l of the provincial sphere of government is vested in the provincial legislatures, as set out in section 104; and
l of the local government sphere of government is vested in the municipal councils, as set out in section 156.
Ø The new constitutional order conferred on local government the status of an autonomous and distinct component of government. Local government generally (and municipalities in particular) no longer merely exercises powers delegated to it by national or provincial government
Ø Municipal councils are legislative bodies in their own right and their legislative acts, which include the levying of taxes and adopting budgets, are accordingly not subject to administrative review by the courts.
Ø The Constitutional Court has also held that local governments (municipalities) are no longer public bodies exercising delegated powers only. A duly convened municipal council is a deliberative legislative assembly with legislative and executive powers recognised by the Constitution.
Ø Local government is an autonomous sphere of government (it is a component part of government in South Africa as a whole); its original powers flow from the Constitution and are no longer merely delegated from either the national or provincial governments. Although a municipal council’s legislative acts are not administrative acts and are not therefore reviewable by the courts in terms of administrative law, they do remain subject to the principle of legality and can be reviewed for compliance with the principles set down in the Constitution and other legislation.
Executive Authority of Municipalities
Ø Section 85 of the Constitution provides that the executive authority at national level is vested in the President, which authority he or she exercises together with the cabinet.
Ø At provincial level, the executive authority as provided for in section 125 of the Constitution is vested in the Premier, which authority he or she exercises together with other members of the executive council.
Ø In terms of section 151(2) of the Constitution, the executive authority of a municipality is vested in its municipal council.
Ø The executive authority of a municipality is, however, tempered by the provisions of section 155(7) of the Constitution which provides that the national government and the provincial governments have the legislative and executive authority to see to the effective performance of municipalities of their functions, and this they may do by regulating the exercise by municipalities of the executive authority referred to in section 156(1) of the Constitution.
Ø Section 151 of the Constitution deals specifically with the status of municipalities as follows:
l The local sphere of government consists of municipalities (they must be established for the whole of the territory of the Republic);
l Executive and legislative authority of a municipality is vested in its municipal council;
l A municipality has the right to govern, on its own initiative, the local government affairs of its communities, subject to national and provincial legislation as provided for in the Constitution;
l The national or provincial government may not compromise or impede a municipality’s ability or right to exercise its powers or perform its functions.
Ø The aforementioned clearly demonstrates the enhanced constitutional position of municipalities individually and of the local government sphere as a whole.
The Council
Ø It is important to draw a distinction between a “municipality” and its “municipal council”.
Ø The municipality as a whole is an entity within the sphere of local government. They are organs of state that collectively consist of the political structures, the administration of the municipality and the inhabitants of the municipal area as whole.
Ø The municipal council is a body consisting of directly or indirectly elected councillors and is the primary political structure within the municipality.
Ø Thus it should be noted that when referring to a “municipality” one envisages a broad church of institutions, structures and interest groups within the municipal area including the municipal council and the municipal administration.
Ø A municipality and its council are therefore not one and the same thing, the council being the legislative and executive authority of the municipality; and in some cases the quasi judicial authority.
Ø A municipality, in terms of section 151(3) of the Constitution, has the right to govern on its own initiative the local government affairs of its community. This it does through the legislative and executive authority vested in the municipal council.
Ø Governmental authority is defined as the authority to make the rules that generally apply to everyone within the area of jurisdiction of the governmental body which makes the rules – and enforces them.
Ø Generally speaking, governmental authority consists of three distinct powers, namely:
l Legislative power (ie the power to make laws, to enforce them and to oversee their enforcement);
l Executive power (to take decisions within a prescribed legal framework); and
l Judicial power (ie the power to adjudicate and interpret a law)
Ø A municipality exercises its executive authority through its municipal council which determines policy and decides how such policy will be implemented. The council also makes bylaws for the effective regulation of matters falling within its jurisdiction.
Ø The Constitution, vide section 141(2), vests the legislative and executive authority of the municipality it its municipal council.
Ø Generally, municipalities do not have judicial powers like the courts; however there are instances when a municipality exercises quasi-judicial powers.
Ø The municipal council makes decisions concerning the exercise of all the powers and functions of a municipality; however a council may delegate decision-making powers to another body or person.
Ø The municipal council’s decision-making authority is limited to those matters that are expressly by law assigned to the municipality or to the council itself; and matters reasonably incidental and necessary to those assigned matters.
Ø Consequently, it cannot make decisions regarding matters that by law have been assigned to other bodies or persons.
Ø The Municipal Structures Act was enacted, amongst other things, to regulate the internal systems, structures and office bearers of municipalities.
Ø The Structures Act has given new shape and form as to the manner in which municipal councils are intended to operate. It provides:
l For the office of Speaker – Chairperson of the Council;
l That the Mayor will chair a small executive committee or mayoral committee;
l That the council need only meet once in every three months; and
l That besides the executive committee or mayoral committee, the council may appoint other committees, and provision is made for the establishment of ward committees.
Ø Ward committees have been provided for in the relevant legislation to provide municipalities with an additional optional tool towards the encouragement of community participation in municipal affairs.
Ø They are created in terms of the Structures Act, and consist of not more than 10 members in each ward with the ward councillor as chair.
Ø The municipal manager is the head of the municipality’s administration as stipulated in terms of section 82 of the Structures Act which also designates the municipal manager as the accounting officer for the municipality.
Ø The interface between the political office bearers and other role players within the municipality and the administration is extremely complex, founded upon the desire that policy formulation is generated and controlled collectively by councillors who have been mandated by the community.
Ø Whilst it is acknowledged that policy decisions are the function of the council, municipal managers and their respective heads of departments can make a valuable contribution towards policy formulation, provided it is clearly understood and respected by the municipal administrative management cadre that the council has the final decision-making say when it exercises its executive authority.
Ø The role and responsibility that defines the interface between the political role-players within the municipality and the administration headed by the municipal manager are regulated currently by the Municipal Structures Act and the Municipal Systems Act, the Municipal Finance Management Act and other legislation.
Ø The powers and duties of the executive committee and other committees of the council should be clearly set out in unambiguous terms of reference or bylaws: and, in terms of the legislation, the areas of responsibility devolving upon the political role-players and managers within the municipality are required to be clearly defined and codified.
Ø Delegation of powers and functions need to be clearly prescribed with adequate checks and balances, having regard to the codes of conduct applicable to both councillors and officials.
Ø Whilst it is the Council, Committee or functionary to whom the Council has delegated the power who exercise executive authority and make decisions, it is for the Municipal Manager, the Departmental Heads and municipal administration to action and implement such decisions, subject to political oversight.
Ø Legislative authority may not be delegated.
Ø Quasi–judicial decisions may be delegated, usually subject to appeal procedures.
Ø The Constitution in Section 151(2) obliges every municipality to strive, within its administrative and financial capacity, to meet the objects of local government which are to:
l Provide democratic and accountable government for local communities;
l Ensure sustainable provision of services to communities;
l Promote social and economic development;
l Promote a safe and healthy environment; and to
l Encourage communities to become involved in local government matters.
Ø The Constitution also requires municipalities to structure and manage their administrations, budgeting and planning processes in such a manner as to:
l Prioritise the basic needs of the communities;
l Promote social and economic development; and
l Participate in national and provincial development programmes.
Ø These constitutional stipulations are also reinforced in section 73(1) of the Systems Act.
Ø There are further stringent administrative and financial stipulations required in terms of section 95 of the Systems Act in relation to the imposition of taxes and service charges, and in terms of section 4(2) the council must within the municipality’s financial and administrative capacity:
l Exercise the municipality’s executive and legislative authority and use the resources of the municipality in the best interests of the community;
l Provide, without favour or prejudice, democratic and accountable government;
l Encourage the involvement of the community’;
l Strive to ensure that municipal services are provided to the community in a financially and environmentally sustainable manner;
l Consult the community about the level, quality, range and impact of municipal services and the available options for service delivery;
l Give members of the community equitable access to the municipal services to which they are entitled;
l Promote and undertake development in the municipality;
l Promote gender equity in the exercise of the municipality’s executive and legislative authority;
l Promote a safe and healthy environment in the municipality; and
l Contribute, together with other organs of state, to the progressive realisation of the fundamental rights contained in sections 24, 25, 26, 27 and 29 of the Constitution.
Ø Local government transformation, as envisaged in the Constitution and supporting legislation, seeks to change the direction of municipal government to that of sustainable developmental local government which requires municipalities to make a genuinely visionary transition in terms of which the community, the council and the municipal administration define through the integrated development plan and the budgetary process a common goal.
Ø This requires the municipality as the governmental entity to develop a system of collective leadership in terms of which the council, individual councillors and the municipal administration, although having separate functions, act in harmony with each other towards the attainment of the goals of the municipality as a whole.
GOOD GOVERNANCE
The issue of governance is included herein as governments across the world will only succeed if the notion of good governance is given effect to.
The concept of “governance” is not new. It is as old as human civilization. Simply put “governance” means: the process of decision making and the process by which decisions are implemented (or not implemented).
Good governance has 8 major characteristics. It is:
– Participatory
– Consensus oriented
– Accountable
– Transparent
– Responsive
– Effective and efficient
– Equitable and inclusive and
– Follows the rule of law.
In terms of distinguishing the term governance from government (both of them nouns) “governance” is what a “government” does.
Governance is the kinetic exercise of management, power and policy, while government is the instrument (usually, collective) that does it.
The Constitution and the legislative environment relating to local government in the Republic reinforces and in many instances calls for the implementation of the principles of Good Governance:
• Constitution:
– Section 151(3): A municipality has the right to govern, on its own initiative, the local government affairs of its community, subject to national and provincial legislation…
– 152(1): The objects of local government are – to provide democratic and accountable government for local communities….
• Municipal Systems Act:
• Section 2: A Municipality –
• Is an organ of state within the local sphere of government exercising legislative and executive authority within an area….
• Consists of –
• The political structures and administration of the municipality; and
• The community of the municipality; and
• Functions in its area in accordance with the political, statutory and other relationships between its political structures, political office bearers and administration and its community;
The organisational structuring of local government is explicitly prescribed in the Municipal Systems Act and specifically in Section 51 which provides that:
“A municipality must, within its administrative and financial capacity, establish and organise its administration in a manner that would enable the municipality to:-
a) be responsive to the needs of the local community;
b) facilitate a culture of public service and accountability amongst its staff;
c) be performance orientated and focussed on the objectives of local government set out in section 152 of the Constitution and its developmental duties as required by section 153 of the Constitution;
d) ensure that its political structures, political office bearers and managers and other staff members align their roles and responsibilities with the priorities and objectives set out in the municipality’s integrated development plan;
e) establish clear relationships, and facilitate co-operation, co-ordination and communication, between –
i. its political structures, political office bearers and its administration
ii. its political structures, political office bearers and administration and the local community
f) organise its political structures, political office bearers and administration in a flexible way in order to respond to changing priorities and circumstances;
g) perform its functions through operationally effective and appropriate administrative units and mechanisms, including departments and other functional or business units…; and
h) assign clear responsibilities for the management and co-ordination of these administrative units and mechanisms; and
i) hold the municipal manager accountable for the overall performance of the administration.”
It is primarily against these and the Constitutional prescripts that the effectiveness of municipal performance may be assessed. The ideal functional municipality can thus be measured against these indicators outlined above.
ANALYSIS OF THE ROOT CAUSES UNDERPINNING THE POOR PERFORMANCE OF LOCAL GOVERNMENT
Systemic Factors
(two tier system; limited revenue base; demarcation)
Legislative Factors
(inappropriate legislation; over- and under-regulation)
Political factors
(inter- and intra-political conflicts and polarisation)
Accountability Systems
(lack of performance management systems; poor oversight; poor community participation mechanisms)
Capacity & Skills
(lack of capacity in small & rural municipalities)
IGR support & oversight
(fragmented national and provincial support; weak monitoring & oversight)
Intergovernmental Fiscal Regime
(poor grant design & limited impact; grant dependency)
Sample assessment of key problem areas and root causes per thematic area – obtained from the current assessment undertaken nationally.
Problem Statement (Symptom)
Root Causes
Governance
1. Insufficient human and financial capacity to
deliver on constitutional and legal mandates and on citizen expectations
Policy inconsistency and incorrect policy assumptions between spheres and communities with regard to municipal ability to deliver which results in a gap between citizen expectations, policy goals and municipal ability to deliver
Clear measurable targets not communicated locally with communities and differentiated:
a) spatially
b) organizationally
c) individually
2. Over-complexity in the system;
Municipalities fail to manage their powers and
functions and related responsibilities
Persistence of the one- size-fits-all approach to the governance framework for local government
Inability of municipalities to refuse unfunded mandates / additional responsibilities
Undeveloped concept of spatial differentiation between municipalities to guide functional assignments, monitoring and levels of oversight,
support
3. Little positive impact on coordinated and
cooperative governance through either national intergovernmental system, political
leadership, IGR Forums, sector engagements et al
Undefined and voluntaristic nature of cooperative governance and IGR Instability between spheres of government; lack of governance or policy coherence
Proliferation of new mandates; unsustainable ‘over-reach’ of mandates – onerous and costly regulatory regime
Ineffective 2-tier system unable to deliver on its governance role
Over-complex undertakings and reporting
4. Weak oversight, supervision, support,
intervention mechanisms across government
Absence of clear and spatially targeted indicators for local, provincial and national government
Absence of ‘early-warning system’ to alert provincial / national of impending failure / stress / disaster
Weak Council leadership and oversight over their administrations in
the best interests of the municipality as a whole
Over-complexity in the system
5. Contested political administrative interface:
dysfunctionality and instability
Unclear allocation of roles and responsibilities of the Troika
Deployment issues and interference by political parties
No clear distinctions between councils and Administrations
MSA code of conduct not being enforced
Poor political management and leadership
Insufficient application of oversight function on all levels
Insufficient controls within the system
no clear framework or lack of understanding of party-municipal relations
Poor Councillor skills base in many areas
6. Too many opportunities for fraud &
corruption to take place
Nepotism
Cronyism
Poor ethics
Poor values
Weak accountability frameworks
Political factionalism results in territorial economic elites
7. Break-down of local democracy:
• Community alienation:
• Break-down in social compact:
• Communityprotests
• Breakdown in trust between government and the people
• Community participation weak
• Unresponsive government
Political factionalism undermines democratic principles
Ineffective implementation and support for provisions of Systems Act, Structures Act,
White paper on LG, CDW policy,
Socio-economic conditions:
• Poverty
• Living conditions
• Attitudes of Councillors
• Corruption
• Unrealistic expectations
Poor adherence to Code of Conduct
Limited effectiveness of service delivery efforts, poor communication
Governance paralysis; poor support to cope
Unclear procedure for ward committees/communities to ensure issues raised or elevated to Council agenda
IDP’s not responding to community needs
8. Insufficient institutional and organisational
professionalism /accountability
Performance management policy not rolled out to all levels (e.g.councillors)
Inability to attract skills
Few incentives for attraction of skills to poorer areas
Weak controls in the system – e.g. no enforced competency framework for officials
No accredited training frameworks for MMs and senior managers; no mandatory registrations with professional associations
9. Irregular and unprocedural suspensions,
dismissals and disciplinary procedures
within municipalities; lack of labour law
protection for senior managers (no Collective
Agreements) Wasteful expenditure on
defending of labour cases
Legal ‘space’ created where lack of regulation over Councils allowed for unaccountable practices to flourish (MSA Amendment has created set of uniform procedures – ensure complied with)
Systems and controls
Neglect of chapter 7 of the Municipal Systems Act
Weak HRM; no oversight / accountability for decisions taken by Councils
Planning, LED, Service Delivery
Poor understanding of spatial differences of
areas to deliver services; consider value-for money of service provision
Relevance of establishment of some municipalities as independent entities; institutional capacities not all sufficient to sustain services and infrastructure development
Weak economic growth and opportunity,
particularly in small towns and rural areas
Lack of intergovernmental sector focus on how to develop robust local economies and creating productive jobs and incomes for local populations;
Lack of recognition that local or regional competitive advantage rests on local interactions, knowledge ‘spillovers’ and institutional synergies;
Weak integrative focus between PGDSs and IDPs and LED plans
Uneven response to demands of rural and
urban environments
No policy focus on extraordinary measures to address funding and delivery capacity requirements
Rural municipalities challenged by existing and legacy issues re
infrastructure and economic connectivity
Uneven focus on demands of rapidly urbanising environments
Poor record of MIG expenditure outputs
Poor coordination, oversight, lack of capacity in life-cycle and infrastructure management
Community alienation
Insufficient attention to ‘bottom-up’ planning and consultative processes
Increasing backlogs
Lack of a differentiated rationale for managing infrastructure investment and insufficient leveraging of alternative approaches to service provision
Finance
1. Poor Audit Outcomes
Majority of municipalities have audit qualifications and/or disclaimers
Poor financial skills /capacity
Poor Financial management
Lack of financial controls
Non- standardised systems
GAMAP/GRAP implementation – too many national standards and targets and many were unrealistic led to report fatigue and poor and uneven responsiveness as well as officials ‘mindlessly’ trying to comply
Weak oversight and monitoring (poor quality of in-year reporting) insufficient record keeping
Fraud and corruption
2.Financially Non-viable municipalities
Insufficient revenue base/generation – i.e. the
ratio between the demand for services and
the revenue that can be generated is
unsustainable.
Spatial – Poverty relationship
Demarcation
Unfunded mandates, e.g. Maintenance of bulk infrastructure, e.g.water pipes; Health services, Library services etc.
Debt collection systems e.g. Billing databases are not updated
Debt collection systems are not reconcilable with financial management systems (e.g. meter reading and billing)
Two-tier system
Powers and functions – e.g. Water services provider vs Authority
Inefficient expenditure management
Mayors and municipal councils taking decisions and acting in ways that are inconsistent with the principles of good governance and compromised the sustainability of their municipalities’ finances
Inability to implement the Municipal Property Rates’ Act
Inability to manage Indigents’ registers
Fraud and corruption
3. Increasing Grant dependency
Top-down policy-making that placed the burden of alignment (in regard to policy, planning, budgeting and resolving powers and functions uncertainties) to the municipal level e.g. burden of free basic services policy
Poor IGR (Coordination): Intergovernmental Fiscal Relations Arrangements unfair, complicated (DORA & Equitable Share, MIG)
4. Credible budgets
Budgets are not aligned to expectations for service delivery
Insufficient capacity to plan/budget correctly
Over and/or under expenditure
Labour
1. Strikes
Non-adherence to labour policy
Dysfunctional Labour Forums
Local Labour Forum has very limited powers to conclude or resolve on substantive matters. The bargaining Council therefore impact directly on the relationship of the parties at municipal level due to the long delay in concluding agreements. The powers and functions of the bargaining council structures and the Local Labour Forums need to be addressed.
Non-standardised salary scales e.g. section 56 and 57 employees
Break-down in labour / management interface
2. Weak and insufficient service delivery capacity
The authority to appoint and dismiss Sec 56/57 employees should be reviewed.
Job specifications should standardised
Scarce skills to be addressed per national policy
CONCLUSION
1. Cope needs to watch both the Provincial and Local Government and the Cooperative Governance Space both in a raw political sense and in the policy formulation sense, as it is clear that the ANC intends to take some action.
2. Any reform or any new initiatives will in my view have little or no impact until the ANC accepts that there needs to be a divide between the party and the state and that the notion of deployments is at the root cause of many of the failings.
3. There needs to be electoral reform – possibly with the Mayor being separately elected and also possibly, that once elected, a councillor mat not be removed by his party.
4. The two –tier system (outside of Metros’) ie: District and Local Municipalities needs to be reviewed. In most instances, Districts have been a failure. Maybe, again electoral reform where all councillors serving at district level are directly appointed from the local municipalities. Also, as their main function relates to water and sanitation, maybe a move to the Districts operating as a utility/ Business unit such as Rand or Umgeni Water.
5. There is a need to relook at Rural local government – it is not financially sustainable
6. The One-size- fits all is problematic – this needs to be relooked at from a reporting and legislative context.
7. The Financial and Fiscal Commission needs to relook issues surrounding what constitutes local governments’ equitable share and its formula for determining each specific municipality’s equitable share – particularly in respect of rural municipalities.
8. The Skills shortage needs to be addressed – in part it must be questioned as to how severe this problem really is and how much can be placed at the door of deployment, nepotism and cronyism.
9. The roles and responsibilities of the political structures (Council, portfolio committees), political Office Bearers (Mayor, Speaker, Whips) and the Administration need further definition – if simply to create space between the former two and the latter. There should be barbed wire between the administration and the political components.
10. There is a need to ensure proper oversight and accountability structures and mechanisms – including municipal SCOPAs’.
11. Structures such as Employment Panels, SCM/Tender Boards and SCOPAs’ should make provision for the use of civil expertise and oversight.
12. Matters surrounding the conditions of employment of Municipal Managers and other senior managers needs to be relooked at – eg: there is no fixed remuneration scale.
13. The Legislative environment is too complex – it hinders development. Having said that, many of the complexities have been added to stop the rot/corruption, albeit to no effect.
14. Nevertheless, if only the current legislative environment had been properly implemented and adhered to (mainly politically) local government would be in relatively good shape. Politics as practiced primarily by the ANC is the number one reason for the failure of local government .
15. Communities need to be educated both on their rights and their obligations towards local government – ie: civic classes at schools.
16. Independent Municipal Ombudsmen should be appointed in all provinces.
17. Intergovernmental planning mechanisms and structures need to be strengthened – local commniunities and their local municipalities should be informing the provision of provincial and national government functions and services.
18. If local government is said to have failed, implies that the State and the notion of cooperative governance has failed.
The current service delivery protests which appeared at face value to be directed at a failure of local government, was in fact an indictment against all three spheres of government and the constitutional imperative of cooperative governance.
In broad terms, the legislative environment relating to local government is essentially sound and progressive, if not over-regulatory.
District municipalities have been a dismal failure.
Fundamentally, the failure of local government can in part be ascribed to the following:
1. The electoral legislation relating to councillors 2. No clear division between the party and the state and the political bankruptcy within the ruling party 3. Deployment and the manner in which affirmative action and BEE have been given effect to.
4. A resultant inability to give effect to the principles of good governance.
1. In terms of the current electoral system, councillors serve as councillors at the pleasure of their party. A councillor who falls out of favour with his or her party or who does not follow caucused decisions, may be easily removed as a councillor by the party concerned.
This makes councillors to be more accountable to their party than to the communities that they supposedly serve and the municipal council to which they are a member of and accountable to in a legislative sense.
Incompetence and ineffectiveness are overlooked in favour of loyalty to the party.
It also means that in many instances councillors are party to decisions taken that favour the party over the interests of the municipality (and the community) as a whole.
2. The aforementioned results in a blurring of the line between the party and the state. This results in the interests of the party being placed over those of the municipality (and the community). The municipality is thus perceived as being an instrument of the party. This in turn facilitates the plundering of the resources of the municipality for party purposes. It also makes a mockery of having a municipal council and renders the council of the municipality ineffective.
In many instances, the party hierarchy at local and regional levels are populated by persons of questionable character. Given the above, this opens the door to rampant corruption and personal enrichment.
It becomes a self-consuming fire/animal that must feed-off itself. To sustain the party resources of the municipality must be siphoned off. Alternatively, contacts must be awarded to politically connected entities primarily under the guise of BBE and the party subsequently feeds off the proceeds of such deals.
3. The practice of deployment to the municipal administration, more often than not has resulted in the employment of politically connected cadres from the top to the bottom of municipal administrations. This has resulted in many instances in incompetent and unskilled persons being employed.
In many instances, the notion of affirmative action has been abused to foster and justify incompetent appointments and to force out skilled non party employees.
Again, as a politically appointed official, you become more accountable to your party than to the council to which you are legislatively accountable to.
Provided that you toe the party line and remain loyal to the party, you effectively remain immune to your underperformance and incompetence.
In some instances, politically deployed employees carry more political weight that the councillors to who they should account. In such instances, councillors (and the Council) don’t have the (political) power to enforce remedial or corrective action, or to effect oversight and accountability.
In other instance, officials are rendered powerless, when instructed to practice corruption, for failure to comply results in the termination of their services.
Alternatively politically deployed employees in the administration of the municipality work in concert with their party affiliated councillors to foster the interests of their party – and the corrupt among them – over those of the municipality (and the community).
As a result of the fact that most municipal administrations are staffed almost entirely by politically connected cadres, when crack appear within the party (generally amongst councillors), those very same cracks appear within the municipal administration rendering dysfunctionality, as the municipality is used as the battleground between the factions.
4. The aforementioned results in an inability to practice the tenants of good governance. Good governance has 8 major characteristics. It is participatory, consensus oriented, accountable, transparent, responsive, effective and efficient, equitable and inclusive and follows the rule of law. It assures that corruption is minimized, the views of minorities are taken into account and that the voices of the most vulnerable in society are heard in decision-making. It is also responsive to the present and future needs of society.
UNTIL SUCH TIME AS THERE IS SUFFICIENT POLITICAL WILL TO CHANGE THE ELECTORAL SYSTEM, UNTIL THERE IS THE POLITICAL WILL TO ENSURE THE SEPARATION OF THE PARTY AND THE STATE, UNTIL THE PRACTICE OF DEPLOYMENT IS STOPPED, UNTIL MORALITY AND ETHICS COME TO THE FORE IN THE POLITICAL ENVIRONMENT, THE NOTION OF GOOD GOVERNANCE WILL FLOUNDER ALONG WITH SERVICE DELIVERY AND DEVELOPMENT.
Tags: local government, municipalities, Policy
