GIZ/ AMCOD/ UCLGA INTERNATIONAL COLLOQUIUM

GIZ/ AMCOD/ UCLGA INTERNATIONAL COLLOQUIUM: DECENTRALIZATION AND
NEW CHALLENGES – CRITICAL ANALYSES OF ACHIEVEMENTS AND PROSPECTS
26 – 28 MAY 2014
COTONOU, BENIN
REALISING DEVELOPMENTAL LOCAL GOVERNANCE IN SOUTH AFRICA:
PROGRESS, CHALLENGES AND PROSPECTS
ABSTRACT:
Prior to the democratic state in South Africa, local government was the lowest tier of
government in a strict hierarchical structure. As creatures of statute, municipalities derived
their powers from national and provincial government, serving, by and large, as the latter’s
administrative arm. The new constitutional order conferred a radically enhanced status on
municipalities which is materially different from the pre-constitutional era. The
transformation of South African society, from one rooted in disparity, to a constitutional
democracy poses profound challenges at local government level. It is therefore fair to say
that the full scope of the transformation project and its historic and systemic complexities
falls primarily on local government, as the sphere of government closest to the people. Local
government is thus the key site of delivery and development and is central to the entire
transformative project of the new South Africa.
Local government in South Africa is now an integral part of the constitutional system of
decentralised government ushered in by the democratic elections of 27 April 1994. For the
first time in the history of South Africa, local government received constitutional recognition
as a sphere (not tier) of government in the furtherance of democracy and development. Its
role was further expanded and entrenched in the 1996 Constitution, in terms of which the
Constitution put in place the framework for a developmental sphere (as opposed to a tier it
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had been under the apartheid regime), which would rely on the principles of cooperative
government and intergovernmental relations for its successful transition to a peoplecentered implementation sphere of the democratic state.
The transition process gave birth to a sphere of government that is now profoundly
democratic, enjoys a measure of self-government, is mandated to be developmental, and
functions in co-operation with and has the right to govern on its own initiative the local
government affairs of the local community. The fulfilment of this role has seen major
progress over the first 15 years of local democracy, but transformation takes time.
Investment and patience in the development of capacity is therefore critical to the longterm success of decentralisation and subsidiarity.
1.
INTRODUCTION AND BACKGROUND
The transformation of South African society, from one rooted in disparity, to a constitutional
democracy poses profound challenges at local government level. It is here that acute
imbalances in personal wealth, physical infrastructure and the provision of services are
often most visible. The establishment of non-racial municipalities did not eliminate the
divisions of the past and therefore the provision of services and distribution of resources are
the challenges that the legacy of apartheid poses to local government.
It is therefore fair to say that the full scope of the transformation project and its historic and
systemic complexities falls primarily on local government, as the sphere of government
closest to the people. Local government is thus the key site of delivery and development
and is central to the entire transformative project of the new South Africa.
Prior to the democratic state in South Africa, local government was the lowest tier of
government in a strict hierarchical structure. As creatures of statute, municipalities derived
their powers from national and provincial government, serving, by and large, as the latter’s
administrative arm. The new constitutional order conferred a radically enhanced status on
municipalities which is materially different from the pre-constitutional era. Local
government in South Africa was an integral part of the constitutional system of
decentralised government ushered in by the democratic elections of 27 April 1994. On that
date the interim Constitution came into operation, bringing together again in one country,
areas which had been separated by apartheid, and at the same time, establishing a
constitutional state based on respect for human rights, with a decentralised form of
government in place of what had previously been authoritarian rule enforced by a strong
central government.
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For the first time in the history of South Africa, local government received constitutional
recognition as an institution of government in the furtherance of democracy and
development. In this context, the Constitutional Court noted that the local government
elections of 1995 were of national importance and that the establishment of local
governments is widely seen as being necessary for reconstruction and development to
proceed at a grass roots level.
Making local government a key institution of democracy and development was further
expanded and entrenched in the 1996 Constitution. The Constitution, adopted as Act 108 of
1996 (and further amended), is the supreme law of the land and puts in place the
aspirations and parameters for the development of the post apartheid State. In relation to
local government, the Constitution put in place the framework for a developmental sphere
(as opposed to a tier it had been under the apartheid regime), which would rely on the
principles of cooperative government and intergovernmental relations for its successful
transition to a people-centered implementation sphere of the democratic state. Indeed, in
so doing, the Constitution has established many sound principles for local government to
indeed ensure that ultimately ‘the people shall govern’.
Section 40(1) of the Constitution of the Republic of South Africa stipulates that government
is constituted as the national, provincial and local spheres of government, which are
distinctive, interdependent and interrelated. The three spheres of government and organs
of state in each sphere are constitutionally bound by the principles of cooperative
governance. It is widely accepted that the interdependent and relatively autonomous status
of the spheres of government under the Constitution provide significant strengths to the
country. However, it also means there are limits to the extent to which spheres can direct or
control approaches taken by another sphere.
Within that framework, the Constitution defines the objects of local government to:
• provide democratic and accountable government for local communities;
• ensure the provision of services to communities in a sustainable manner;
• promote social and economic development;
• promote a safe and healthy environment; and
• encourage community and community organisation involvement in local government
matters.
The objects of local government, as defined in Constitution and expanded by White Paper,
makes it clear that local government is to be focused on working with communities in
promoting socio-economic development and providing services in a sustainable manner.
The notion of developmental local government was formally introduced by, first, the
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Constitution and then the 1998 White Paper on Local Government. The White Paper in fact
calls on local government to be developmental through “leading by learning”. Thus, local
government in South Africa is premised on the notion of being developmentally orientated.
Section 153 of the Constitution is in fact entitled ‘developmental duties of municipalities’
and enjoins Councils to structure itself to fulfil that purpose.
2.
THE PACE OF LOCAL GOVERNMENT TRANSFORMATION – DECENTRALISATION
SUCCESSES AND LESSONS LEARNT
The constitutionalisation of local government from a creature of statute, subject to the
whims of national and provincial government, to a fully fledged developmentally orientated
sphere of government was a major victory for the post democratic South Africa, meant to
ensure that ‘the people shall govern’. The constitutionalisation of the sphere has ensured
that we bring together again in one country, areas which had been separated by apartheid,
and at the same time, establishing a constitutional state based on respect for human rights,
with a decentralised form of government in place of what had previously been authoritarian
rule enforced by a strong central government. In itself, this can be no small feat. The
establishment of the sphere of local government is widely seen as being necessary for
reconstruction and development to proceed at a grass roots level.
While some of the objects of the constitutionalisation of local government have been
realised, there have been many lessons learnt during the transition phase which will be
reflected on below. Local government, in its democratic form, is now more than a decade in
practice. However, the amalgamation and consolidation of municipalities and the
establishment of new ones have all taken place at different stages. The result is that the
exact stage of development within which any given municipality finds itself may differ vastly
from that of its neighbour. In the pursuit of developmental local government, the
establishment, consolidation and sustainability phases that the sphere has undergone (and
continues to undergo) have been well documented.
Some municipalities, despite the turbulence of economic crises and the inevitable
challenges of servicing vast municipal areas (as a consequence of having the largest
municipalities in the world), are already sustainable or in the sustainability phase. Yet
others, where there was some historic form of local government and a record of service
delivery, could either be in or marching towards the consolidation phase. These may be
even on their way towards achieving sustainability. Then there are those municipalities who
started from scratch and are still very much in the establishment phase. Finally, there are
those municipalities who, due to their particular spatial and economic circumstances, are
and will continue to grapple with their mandate.
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Considering the vast divergence in capacity, skills and resources, across 278 municipalities,
the objective of stable municipal governance and effective cooperative governance is critical
if local government is to fulfil the developmental vision of the White Paper and Constitution.
2.1
Key Successes – the transformation and objects of local government
advanced
It is critical to emphasise, and often hard to believe, that wall-to-wall democratic local
government has only been in place since 2000. Given the fact that local government was
vastly disparate in nature and practice (racially based) before then, it is important to bear in
mind the acute imbalances in personal wealth, physical infrastructure and the provision of
services that the local government system was set up to address. Some of the major
successes are highlighted briefly below.
2.1.1 Establishing the policy and legislative framework in less than a decade
In a short space of time, South Africa has moved from a highly fragmented racially based
local government system to an integrated democratic system. Local government has also
moved away from being a tier of government to being a full sphere in the developmental
state, with a uniform system of wall-to-wall municipalities. The success of this is that
democratic local structures were established in areas with little or no history of local
government, which shifted responsibility for service delivery from various utilities to
municipalities.
Given the speed at which the drafting of the Constitution and transition phases took place,
and the enormity of the apartheid legacy it sought to reverse, the fact that there was (after
less than 10 years) now a strong suit of local government legislation dealing with municipal
demarcation, organised local government, municipal structures and systems, financial
management, property rates and fiscal division of revenue is nothing short of remarkable.
The principles of the Constitution and White Paper on Local Government guided every step
of the development of this suite of legislation.
The key issues around which the development of the comprehensive framework took place
included, but were not limited to:
•
Ensuring compliance with the constitutional provisions;
•
Demarcating previously racial municipalities into democratic entities (boundaries)
•
Resolving legal uncertainty and or addressing omissions;
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•
Facilitating the implementation of legislation and the system of local government;
•
Resolving operational matters;
•
Addressing key political imperatives; and
•
Strengthening accountability, effective management and greater efficiencies.
2.1.2 Local democracy and citizen participation
Inclusive and people centered local government is vital for the sustainability of the
institution and enhancement of democracy. The local government system in South Africa is
premised on bringing government closer to the people through both representative and
participatory democracy. One of the key gains of the new dispensation is democratic
participation which has brought government closer to the people
In particular, the country has moved from a highly fragmented system of local government
to an integrated democratic system, with uniform wall-to-wall municipalities that has
yielded:
•
Democratic participation – no citizen is unrepresented and government has indeed
been brought closer to the people;
•
The consolidation of over 1000 local authorities into 880+ before the 2000 elections
and 283 municipalities in 2000, now 278 – this is massive transformation at any
scale; and
•
Local government structures and administration has been established in areas with
little or no form of local governance previously;
Beyond being represented by councillors, community participation, in various forms, is now
a legal requirement in nearly every key municipal process. A municipality must establish its
own mechanisms, processes and procedures to enable the community to participate in
municipal affairs, including through ward committees and other consultative forums.
Legislation lists a number of structures and mechanisms for community participation.
2.1.3 Enhancing Accountability and Good Governance
South Africa’s local governance system is premised on the principles of transparency and
accountability, including through:
•
Open Council Meetings;
•
Consultation with communities on all key municipal projects and processes;
•
Citizens access to information and decisions; and
•
Complaints mechanisms and democratic institutions to uphold democracy.
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While the Constitution gives expression to the principle of separation of powers by
recognising the functional independence of the three branches of government (executive,
legislature and judiciary), at local government level, however, a municipal council is vested
with both legislative and executive authority. Subsequent legislation requires a certain level
of oversight by the municipality over the executive authority. This entails amongst others,
the annual report which includes the financial statements, the Service Delivery Budget
Implementation Plan, and also the performance of the municipal manager and other senior
managers.
Since there is no neat distinction between the ‘executive’ and ‘legislative’ arms of council as
it were, effective and proper oversight of the ‘executive’ at local level thus requires
members of Council to fully understand the justifications and rationale behind accountable
government and the purpose it serves. Oversight and accountability helps to ensure that the
executive implements programmes and plans in a way consistent with policy, legislation and
the dictates of the Constitution.
The Local Government: Municipal Structures Act, 1998, provides that a municipality, taking
into account the extent of its functions and powers, the need for delegation and the
resources available, may establish committees. Clearly, a municipality has substantial
discretion on how to structure its committee system. Importantly, the manner in which a
municipality uses that discretion can have consequences for the capacity of the council to
hold the executive to account, which directly affects the quality of the governance in the
municipality and ultimately the sustainability of such a municipality.
Important gains have been registered and the overall understanding of accountability has
improved substantially in local government over the last 14 years:
•
Governance structures and committees of municipalities improving steadily;
•
Municipal Public Accounts committees, Audit Committees and Internal Audit units
have been increasingly established in all municipalities (nearly 100% in 278
municipalities); and
•
Steady progress in municipal audit outcomes as the Auditor-General’s report has
taken hold and driven greater accountability.
While financial management and audit outcomes remain a major concern in the local
government sector as a whole, there are steady and positive signs of improvement,
including the technical capacity to manage municipal finances – indeed, chief financial
officers tend to be better qualified with longer experience in than any other category of
managers in local government.
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2.1.4 Service delivery and developing municipal capacity
Given this short time frame (democratic local government established in 2000), the
expansion of service provision and eradication of many of the backlogs in that regard is no
less than remarkable. Indeed, there are many good practices and pockets of excellence to
be found at local government level. Tremendous strides and progress has been made (with
local government as the implementing agent) in expanding the provision of services to the
majority of South Africans. This is confirmed by a direct comparison between the Census
statistics released in 2001 as compared to those of 2011.
Significant progress has been made in relation to addressing the basic service backlogs.
There has also been significant progress in determining service delivery mechanisms, a
growing body of knowledge on the use of entities and shared service models being
implemented. The democratic element of local government being extended to every area in
the country is similarly no small achievement. It is important the every South African now
has a ward and a councillor representing their interests in a democratic local institution. The
ability of local government to keep pace with the demands of citizens raised in this
democratic process, is a different matter, but nonetheless a significant achievement
considering South Africa’s excusive past.
While the capacity of those municipalities is under significant strain due to their socioeconomic circumstances, in particular as it relates to their ability to attract the necessary
technical skills and expertise, a number of support programmes have been rolled out in local
government over the last decade with varying levels of success. Nevertheless, capacity
assessments do indicate a slow but steady settling into the rendering of powers and
functions allocated and signs of improved capacity. It is critically important, in our view, to
bear in mind the tremendous strides and progress that has been made (with local
government as the implementing sphere) in expanding the provision of services to our
people. Many South Africans now have access to water, electricity, roads and clean towns
and cities.
2.2 Lessons learnt – preconditions for successful translation of constitutionalism to
development
While constitutionalisation of local government is the most fundamental tenet of peoplecentered government, its realisation as such is dependent on, among others, the coherence
of the supporting policy, legal and fiscal framework as well as the political will and vision to
follow that framework through. Certainty and stability in that framework are necessary
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preconditions for the development and transformation of local government from a creature
of statute to a people-centered developmentally orientated sphere. While in the South
African context there is as yet no questioning of the value or legitimacy of
constitutionalising developmental local government, , many of the preconditions for the
successful realisation of the constitutional intent have been either absent, or not followed
through as had been articulated or implicitly required. This has certainly contributed to the
negative perception of local government and the recent spate of service delivery protests
the country has witnessed at local level.
2.2.1 Constitutional status and autonomy of Local Government
While the comprehensive legislative framework is complete as in many respects, old
provincial ordinances continue to apply, particularly to sectoral matters such as land use
planning. While the 1996 Constitution has been given its full effect by the Constitutional
Court, ever since its adoption there has been a slow rolling-back of the boundaries of
decentralisation.
Since the adoption of the Local Government Turnaround Strategy in 2009, government as a
whole and the Department of Cooperative Governance in particular has put on the table a
formidable policy and legislative review project concerning local government. Without fail,
almost all of the proposed policy and legislative interventions is encroaching, in one way or
another, on the geographic, functional and institutional integrity of local government. In
many instances, the proposals go far beyond the regulatory, supervisory and oversight role
allocated to national and provincial government by the Constitution.
It appears that national government has started to lose faith in the decentralised system of
government and is creepingly, through policy and legislation, attempting to re-centralise
powers and functions. Initiatives such as the establishment of a special purpose vehicle and
technical support units are further indications of direct national intervention. It thus
presents a challenge to local government in that creeping erosion of its constitutional status
appears to be gathering momentum. Moreover, this growing level of encroachment appears
to detract from the White Paper’s vision of building a strong developmental local
government system and the premise that local government is at the coalface of delivery and
as such must be capacitated to perform that role.
National governments must realise that there is a dialectical relationship between capacity
and responsibility; both work to condition and define the other - absence of responsibility
diminishes the force to build capacity and vice versa. Therefore, any policy or legislative
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intervention and support should not take away responsibility for service delivery from local
government.
Literature and experience suggests that decentralisation initiatives are most successful if
they are implemented ‘incrementally’, which seems to be taking place. The ‘primary
constitutional expression’ of local government competencies contained in the schedules
must be complemented and refined by incremental decentralisation that does not detract
or deviate materially from the vision enunciated in the Constitution. This approach is also in
line with the role and function of the Constitution, which is a ‘blue print’ or ‘transformative’
Constitution, aimed at guiding transformation rather than capturing and safeguarding the
results of transformation.
2.2.2 Regulation vs Local Innovation
There is a fundamental tension in the system which is espoused in two opposing
constitutional principles underpinning local government:
•
First, section 151(3) of the Const, entrenches a municipality’s “right to govern, on its
own initiative, the local government affairs of the community”.
•
The second, competing principle, is the duty of both the national and provincial
governments to oversee local government through regulation, monitoring and
supervision.
The power to regulate may not, however, “compromise or impede a municipality’s ability or
right to exercise its powers or perform its functions.” However, this has indeed been the
(unintended) consequence of local government regulation to date. Currently, there is an
extremely onerous legislative and regulatory burden on municipalities, comprising many
pieces of complex legislation /regulations. Reporting requirements are extremely complex
and cumbersome and highly technical in nature, with low levels of compliance. In some
respects, form has overtaken substance, with local government also guilty of overcomplicating governance arrangements.
The vision of the Constitution and the White Paper is that of a strong local government,
supported by a firm subsidiarity principle and original powers. But what we have seen if a
type of command and control approach over local government across and by many sectors.
National and prov governments appear to have simplified their own tasks by adopting this
one-size-fits-all approach, under the guise of uniformity, norms and standards without
providing the requisite institutional support. An example is the legislative suite applicable, in
equal measure, to all municipalities, regardless of their status in the developmental chain.
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The expectation that a major city and rural municipality (perhaps starting from scratch in
2000) adopt the same governance frameworks, structures and systems was unreasonable
and has led to many practical challenges. In this context, the question arises as to whether
we have complicated and overloaded some of our municipal categories with unreasonable
expectations. Due to lack of sufficient skills in complex areas, too many munis have become
too reliant on consultants to do work of paid staff.
There is clearly a balance to be struck between regulation (to prevent mismanagement,
corruption and incompetence) and local initiative and innovation (right to govern on our
own initiative), particularly to be developmental. Make the framework as complex as is
necessary, but as simple as possible.
2.2.3 Deepening participatory democracy
Municipal documents often talk of ‘participatory process aimed at empowering the poor
and marginalised’. However, rhetorical political enthusiasm for participation is not matched
to the same extent by practice. Contrary to the RDP principles, communities have been the
passive recipients of development rather than initiators and drivers. All too often, strategic
agendas and budget allocations are agreed upon before public participation processes,
rendering the participatory efforts largely meaningless since the outcome is a fait accompli.
Thus, an official assessment by a government department of whether grassroots opinions
found its way into official decisions found that ‘mechanisms for identifying the correct
beneficiaries and the mechanisms of consultation which will lead to the incorporation of the
needs of the poor in project design are not practised. Issues of importance to the rural poor
are frequently excluded as they are regarded as not relevant. The exclusion of
disadvantaged groups from the focus of municipal attention is a manifestation of the
practice that has developed among some municipalities of becoming inward-focused – the
vehicle for a self-serving elite – rather than being community and development orientated.
In the recent past, many municipalities flagrantly neglected the public participation
requirements in the legislation or found roundabout ways of circumventing it. A key
question in this regard relates to whether the legal framework for participatory democracy
has perhaps had the unintended consequence of municipalities adopting a ‘bare minimum’
compliance approach, viewing community participation as a legal hindrance or irritation,
rather than an imperative empowering tool for the poor and marginalised. Indeed, some
critics believe that the failure of participatory democracy in practice is largely attributable to
the preoccupation with delivery and the consequent ‘bare minimum compliance’ approach
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to the policy and legal framework. In essence, participation was marginalised in the interests
of getting the job done.
But the disquiet about whether municipalities have been able to establish a sound and
interactive relationship with their communities has become increasingly public and even
violent. In recent times local government has faced the most persistent spate of violent
protests since the end of apartheid. These protests indicate a deep dissatisfaction with
municipal performance. They appear to be directed at poor service delivery, unresponsive
decision-making and ‘conspicuous consumption’ or even allegations of corruption on the
part of municipal councillors and officials.
Another challenge is the assumption that that ideally, the ratios of local representation will
be small enough to ensure that councillors are “within reach” of their constituencies. Given
the reality of ever-increasing urbanisation, however, municipal representatives are
becoming more and more distant. Moreover, elected ward councillors have all too often
drifted away from their constituencies on the flood of cooption and benefits of office.
Renewed efforts at reconnecting communities with their municipalities are therefore
necessary. There is clearly a great need to strengthen capacity of local structures and
councillors to lead in a more constructive, developmental and transformative way, and to
deepen popular democratic involvement in the development process. Compliance with the
spirit of the law giving effect to participatory democracy is as important, if not more so, than
the letter thereof. As much as anything else, it requires a change in attitude and approach
and development of an institutional culture of participatory democracy. A political ‘culture
of participatory governance’ is vital if the vision of development local government, so
eloquently articulated in the White Paper on Local Government, is to be realised.
2.2.4 Enhancing Oversight and Accountability in Local Government
Since the inception of the democratic local government system in 2000, much debate has
centered on the absence of a separation of powers at local government level, in contrast to
the clear separation at national and provincial level. The Constitution does not separate
legislative and executive roles at local government level. In a system where executive and
legislative powers are separated, the portfolio of the chairperson of legislature is clear: it is
in charge of the legislative arm of government and has little or no formal influence over the
executive (except when the executive participates in the legislature).
At local government level, the position is different: the chairperson of the municipal council
presides over an organ that is not only legislative in nature. The municipal council is an
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executive decision-maker and the Speaker presides over meetings where executive
decisions are taken. Consequently, the council makes decisions concerning the exercise of
all the powers and the performance of all the functions of the municipality, as provided in
section 160(1) of the Constitution.
On the other hand, legislation, in particular the Local Government: Municipal Finance
Management Act, 2003, requires a certain level of oversight by the municipality over the
executive authority. This has presented particular challenges at local level. Citizens’ ability to
hold municipalities, councils and their officials accountable is very limited, even though they
probably know many of the officials who live in their community. More stringent and open
oversight, as well as internal criticism of the executive, will strengthen the confidence in,
and trust of, the community in the municipality.
One of the key challenges has been interface between councillors and officials. Relations
between the political and administrative arms of a municipality should not be viewed as a
master / servant relationship, but is rather a multi-faceted and complex one. There is
inherent tension in councillors wanting to ensure that their decisions are implemented
effectively, but it must be managed to such an extent that councillors take decisions, and
officials are allowed to get on with the job. The political – administrative leadership of
municipalities and political structures should be acutely aware of the consequences that
inappropriate political leadership has on functioning and therefore on service delivery.
2.2.5 Policy Review: Re-thinking Powers and Functions
In practice, the four tiers of government – national, provincial, district and local – is an
overly complex arrangement that complicates accountability and delivery of services to
communities in a efficient, effective, accountable and sustainable manner. The concurrency
of powers and functions and the consequent unclear division of responsibilities has seriously
hampered the effective performance of the spheres of government in the implementation
of policies and efficient delivery of basic services. Intergovernmental relations have failed
largely because of the absence of development planning by the other spheres and
consequently the lack of clarity of roles.
The decentralised governance model designates specific powers and functions to each
sphere of government, which, are enjoined to work together “to secure the well-being of
the people of the Republic”. Steytler opines that ‘as appropriate as such a vehicle for cooperative governance may seem within a democratic context, having three spheres of
government operating each with a degree of autonomy makes for complex relationships
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which may also impact on the effectiveness and efficiency of government.’ As a relatively
new sphere, local government is not only faced with the challenge of establishing its
autonomy, but also contends with the inherited legacies of apartheid such as the seemingly
insurmountable back-logs in service delivery.
Over the last two local government terms, we have seen a progressive delegation of
functions to municipalities by a range of national departments as envisaged in various white
papers, and also a wide range of functions where creeping delegation can be seen. In both
these latter cases the function is being envisaged but often without the concomitant
transfer of funds, or allocation of a capacity-building mechanism. The Constitution and the
Municipal Systems Act outline a procedure for the transfer of functions to local government,
but sector departments almost never follow the devolution mechanism provided for in the
Constitution and augmented by the Municipal Systems Act (i.e. assignment). It is nearly
always done in the form of instruments such as delegation, agency, sui generis instruments
that apply within the sector only, such as accreditation (housing) or the simple identification
of a responsibility in statute or policy. One key consequence of the fragmented sector-based
efforts at decentralisation is that, municipalities often end up bearing the hidden overhead
costs associated with the function.
The functional competences of local government should reflect the constitutional vision of
developmental local government as outlined in the White Paper. The decentralised
developmental strategy can only work if the institutional framework for local government
gives expression thereto. Part of this expression must be the allocation of powers and
functions that are relevant to the developmental mandate of local government. The
problem is that the current local government functions do not enable it to make the
maximum social and economic impact envisaged by the Constitution and the White Paper.
As a principle, in keeping with the principle of subsidiarity expressed in the Constitution,
those functions which have the most immediate developmental impact on citizens should
be performed by local government. Accordingly, those functions must be devolved to local
government on an incremental basis and support provided to municipalities to build their
capacity to provide those functions by national and provincial government. It is especially
functions such as housing, public transport and roads, that must be fully assigned to
metropolitan municipalities.
The idea is to enable certain municipalities to assume greater control over the planning and
implementation of functions they provide by increasing their fiscal and regulatory powers
over those functions. This approach of greater autonomy in the interests of better service
delivery supports the notion of asymmetry. It is also consistent with established City
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Development Strategies internationally, which in the context of accelerated service delivery
would seem like a logical approach to take.
2.2.6 Intergovernmental Relations and Cooperative Governance
The Constitution requires provincial governments to play an important role in monitoring
and supporting local government (s155). Local government has been given a very broad and
challenging set of responsibilities. Effective performance against its Constitutional mandate
requires a coherent and co-ordinated set of support initiatives from the other two spheres
of government. Provincial interventions in local government are an aspect of
intergovernmental relations and as such must be exercised within the spirit of co-operative
government as outlined in Chapter 3 of the Constitution.
In general, provinces lack the capacity to monitor and support local government in terms of
personnel, funds, institutional knowledge and expertise. It is also apparent that many
interventions could have been prevented if early warning systems (s105 Systems Act
mechanisms and processes) had been in place.
Consequently, the effectiveness of
interventions is highly questionable and has no curative intent – most are simply take-overs
without the necessary skills transfers or continued support taking place.
A further important observation is that the effects of national and provincial policy
incoherence is inevitably manifested and experienced at the local government level and it is
local government, as the sphere closest to the people, who bear the brunt for any failures
regardless of who the responsible sphere or entity is. Indeed, there is no such thing as a
provincial or national area, everyone lives and works in one of our wall-to-wall
municipalities. Local government is therefore everyone’s business.
In this context, an important realisation is that the march towards developmental local
government is not, and will never be, a linear one. There must therefore be recognition in
any policy and legislative approach that municipalities, rooted in their particular historic,
spatial and economic circumstances, are at different stages of their own development cycle,
and treat them accordingly. The upper spheres of government must provide the support
measures to local government, as required by the Constitution. The failure to fulfil their
monitoring, support and oversight obligations in terms of the Constitution is largely the
cause of the current uncertainty and distress surrounding the local government system.
2.2.7 Transformation fatigue – the value of certainty and stability in developing systems
The collective sentiment makes it clear that the sheer volume of the policy and legislative
framework of local government has undergone continual tinkering and that the sector as a
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whole has been the object of much policy and regulation, and is increasingly feeling the
effects thereof. In other areas, undue encroachment on the discretion granted to
municipalities is inhibiting the sector’s innovative potential.
At the same time, (seemingly annual) policy and legislative interventions in local
government have the unintended consequence of breeding instability and a lack of
confidence in and among local government politicians, practitioners and communities. The
result is a lack of appetite on the part of municipalities to invest resources, capacity and
energy in the short-term, knowing that another policy or legislative intervention is just
around the corner. It increases the danger, as remarked by commentators, that this crucial
sphere is bedevilled with transformation fatigue.
However, understanding the transformation fatigue of the sector, in redesigning the
governance system, it is important to remember the basic principle of reform, namely that
structure follows function. It is also important to remember that the challenges persisting in
certain contexts will not be addressed through re-structuring. While there may be a need to
simplify structures, mandates and systems, whatever the model, the objective must be to
create an enabling policy and legislative environment for municipalities to deliver services to
communities. There is a need to also explicitly identify and allocate responsibilities for
complementary priority actions that seek to improve the external environment or context
that undermines the ability of municipalities to perform their service delivery functions.
Analysis indicates that municipalities have been and continue to be grossly underfunded to
perform the big five functions (hence the low capacity and backlogs), and that the country is
not producing enough skills that are required to manage technical services.
3.
ROLE OF ORGANISED LOCAL GOVERNMENT (SALGA)
In order for local government to participate effectively in intergovernmental relations, it
needs to act as a collective, through an organised local government structure. Section 163 of
the Constitution, recognises organised local government as the legitimate voice for local
government and affords it representation in key national institutions. The section further
provides that an Act of Parliament must cater for the recognition of national and provincial
organisations representing municipalities, and determine procedures by which local
government may consult the national and provincial government, designate representatives
to participate in the National Council of Provinces (NCOP) and nominate persons to Financial
and Fiscal Commission (FFC).
As the representative body of local government, the focus of SALGA’s participation in IGR
structures is and must be to optimise local government participation in key national and
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provincial structures and thereby to position local government at the centre of our
cooperative
and
developmental
governance
system.
SALGA
participates
in
intergovernmental structures and are thereby able to influence national and provincial
legislation and to gauge the impact of such legislation on local government.
SALGA’s role is to ensure that the policy reforms currently being considered by national
government flow from a coherent vision of what is needed to achieve the yet to be crafted
national strategic plan and that the role of each of the three spheres in achieving that vision
is clearly defined. Local government should not be disproportionately burdened and
bombarded with policy interventions from the centre.
Key intergovernmental processes and structures for SALGA
3.1
Legislative process
The Organised Local Government Act allows SALGA to designate up to 10 part-time
representatives to the NCOP in Parliament, who may participate, but not vote, in the
proceedings of the NCOP and its committees. Further to that, the Select Committee on
Cooperative Governance deals with all legislative matters pertaining to local government
where the interests of provincial government are also affected.
In the main, the NCOP is the platform on which SALGA engages with Parliament. In 2012,
SALGA pioneered the inaugural (and now institutionalised as annual) Local Government
Week in Parliament, held from 31 July to 3 August 2012. The purpose of the Local
Government Week was, amongst others, to ensure the advancement and investment in
developmental local government, the institutional integrity of local government and that
the objectives of our Constitution and developmental state are upheld. Indeed, SALGA made
history in the formal Debate –it was the first time ever that all organised local government’s
10 seats in the House were occupied for a formal NCOP sitting. In sum, the Local
Government Week focused on five thematic areas, which we believe are fundamental to the
success of the transformation project:
•
A sound Policy and Legislative Framework to accelerate Service Delivery;
•
Building the capacity of LG to accelerate delivery;
•
Sustainable Human Settlements and Infrastructure;
•
Role of LG in Rural and Local Economic Development; and
•
Sustainable Financial System and Appropriate Fiscal Framework for LG to deliver on
the developmental mandate.
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3.2
Budgetary process
The Budget Forum is a structure where the three spheres consult on any fiscal, budgetary or
financial matter affecting local government, any proposed legislation or policy which has a
financial implication for local government, or any matter concerning the financial
management or the monitoring of the finances of local government. Legislation requires the
Minister of Finance to convene the Local Government Budget Forum at least once a year.
The Forum is attended by five representatives from SALGA national and one representative
from each of the 9 SALGA provincial offices. SALGA therefore has a total of 14 members
representing the interests of local government in the Forum. The FFC is a critical
organisation in the budget process where the views of SALGA are incorporated. SALGA
nominates 2 persons to the FCC, which advises the Finance Ministry on budget issues.
3.3
Executive process
Cabinet Makgotla
In 2005, Cabinet Makgotla (extended Cabinet) was extended to include SALGA
representatives. It is attended by Cabinet members, Deputy Ministers, Premiers, national
and provincial DGs, advisors in The Presidency and office-bearers (Chairperson and Deputy
Chairpersons) of SALGA, as well as the CEO of SALGA. The Cabinet Makgotla decides on
policy actions and projects to be undertaken during the calendar year and reviews the
implementation of the government's Programme of Action. The content and outcomes of
these deliberations are articulated by the President in the annual State of the Nation
Address.
President’s Coordinating Council (PCC)
The PCC is a consultative forum for the President to raise matters of national interest with
provincial governments and organised local government and to hear their views on those
matters. Through the PCC the President is able to discuss performance in the provision of
services in order to detect failures and to initiate preventive or corrective action when
necessary; and to consider reports from other IGR forums on matters affecting the national
interest.
The PCC is chaired by the President and consists of the Deputy President, the Minister in the
Presidency; the Minister for Provincial and Local Government, the Minister of Finance, the
Minister of Public Service and Administration, the Premiers of the 9 provinces; and a
municipal councillor designated by the SALGA national office (usually the Chairperson).
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MinMECs
This forum comprises of the Minister and corresponding provincial Ministers in a particular
portfolio, and a SALGA representative. Each MinMEC consists of the relevant national
Minister, the Deputy Minister, the nine provincial MECs, and organised local government
representatives (if the function is related to Schedule 4B and 5B of the
Constitution). MinMECs are responsible for alignment and coordination within specific
sectors. The aim is to improve co-ordination of activities within that functional area across
the spheres of government.
Provincial Intergovernmental Forums are also a critical platform for SALGA’s provincial
chapters to participate and influence policy, legislative and programmatic action.
SALGA thus plays a clear strategic role in representing the interests of local government
within the system of government as a whole and within intergovernmental structures in
particular. The dynamic external context within which SALGA operates, and its own internal
manifestations, has therefore largely shaped the organisation’s strategic direction as a
pivotal beacon for local government in the South African transformation project.
4.
PROSPECTS AND CONCLUSION
One of the major innovations of the constitutionalisation of local government was the
elevation of local government to a sphere of government, making it an integral part of the
constitutional enterprise of providing “effective, transparent, accountable and coherent
government for the Republic as a whole”. Local government is no longer simply the agent or
instrument of the provincial or national government, it is a full partner in tandem with
whom all three spheres must cooperate in providing government to the people of South
Africa.
There is little doubt that local government is the key site of delivery and development and is
central to the entire transformative project of the new South Africa. The transformation and
developmental aspirations of the country, in the face of growing disparity, continues to pose
particularly profound challenges at local government level. In that context, the successful
transition of the country from a racially based municipal system to an integrated and
democratic one, as well the development of a largely supportive policy and legislative
framework for local government in under a decade is no small feat. Similarly, the
tremendous strides made in expanding the provision of services to the majority of South
Africans and eradication of many of the backlogs in that regard is no less remarkable.
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There can thus be little question about the significance of the elevation of local government
(as a sphere) to the democratic and developmental pursuit and, in that context,
constitutionalisation of local government is the most fundamental tenet of people-centered
government. However, its realisation as such is dependent on, among others, the coherence
of the supporting policy, legal and fiscal framework as well as the political will and vision to
follow that framework through.
Certainty and stability in that framework are necessary preconditions for the development
and transformation of local government from a creature of statute to a people-centered
developmentally orientated sphere. In our response initiatives, we must therefore pursue
the advancement and investment in developmental local government and ensure that the
objectives of the Constitution and developmental state are upheld. Reform and other
objectives will be unsustainable and add little value to our development process if it is done
outside those parameters.
The South African experience has highlighted that the fulfillment of local government’s
responsibilities requires a coherent and co-ordinated set of support initiatives from the
other (upper) spheres of government and an appropriate and differentiated fiscal
framework. At the same time, while improving national and provincial support and oversight
of local government is necessary and in many instances welcome, the ultimate objective is
and must be to build and strengthen the decentralised form of government. Of some
concern has been that some of the policy and legislative interventions over the last decade
appear to be eroding local government’s autonomy in favour of greater central control.
Despite the challenges, it is our proposition that the constitutionalisation of local
government is and will, in time, undoubtedly prove to be a key development in the
transformation of the South African developmental landscape.
_______________________________
XOLILE GEORGE
CHIEF EXECUTIVE OFFICER
&
REUBEN BAATJIES
HEAD OF INTERGOVERNMENTAL RELATIONS
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