Sound Policy & Legislative Framework to Accelerate Service Delivery

LG Week 31 July - 03 August Sound Policy & Legislative Framework to Accelerate Service Delivery Session 2: 31 July 2012 Cllr J. Matlou – NEC member & Chairperson of Governance & IGR Working Group of SALGA 1

Outline • Introduction • Background / Context • Problem Statement • Key Focus Areas • Recommendations

1. Introduction • The Constitution is underpinned by principles of cooperative governance, providing that in South Africa, government is broadly constituted as national, provincial and LG, which are distinctive, interdependent and interrelated. • Each sphere of govt must respect constitutional status, powers and functions of the other spheres and exercise its powers and perform its functions without encroaching on the geographical, functional or institutional integrity of another sphere. • However, should any sphere of govt be unwilling or unable to meet its obligations, the Constitution provides for a system of interventions, in terms of which the national govt may intervene in provinces and provinces may intervene in municipalities.

2. Background Context • The vision of the Constitution and the White Paper on LG (1998) is that of a strong LG, supported by a firm subsidiarity principle and original powers. • Thus, LG is the key site of delivery and development and is central to the entire transformative project of the country – it is therefore a key mandate of LG (with the support of provincial and national govt) to eliminate the disparities and disadvantages that are a consequence of the policies of the past and to ensure, as rapidly as possible, the provision of services to all communities. • The underlying assumption and premise of this Week is that LG is the sphere that is most crucial in accelerating service delivery and, in that context, this input seeks to highlight some key policy and legislative areas requiring attention or where significant innovation is possible.

Background & Context • While improving national and provincial support and oversight of LG is necessary and in many instances welcome, the ultimate objective is and must be to build and strengthen the decentralised form of govt. • The LG Week is thus an important platform (bringing all spheres of govt and various stakeholders together) to discuss the challenges and share best practices so that we can move towards building a more efficient, effective, responsive and accountable LG that is highly capacitated to contribute meaningfully to the development of the State. • SALGA has previously, in our National Conference of 2011, highlighted some of the fundamental policy or legislative constraints hampering LG which we believe if addressed will create a more stable, sound and equitable policy and legislative framework to deliver on the developmental mandate.

3. Problem Statement • Over the last decade, a comprehensive and necessary suite of policy and legislation has been directed at LG. • volume of the policy and legislative framework for LG has undergone continual tinkering with sector being the object of much policy and regulation, and is increasingly feeling the effects thereof. • At the same time, (seemingly annual) policy and legislative interventions in LG have the unintended consequence of breeding instability and a lack of confidence in and among LG fraternity. • In other areas, undue encroachment on the discretion of municipalities is compromising the sector’s innovative potential. • 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.

Problem Statement • A further important observation is that the effects of national and provincial policy incoherence is inevitably manifested and experienced at the LG level • It is LG, 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 prov or national area, almost everyone lives and works in one of our wall-to-wall municipalities. • In this context, an important realisation is that the march towards developmental LG is not, and will never be, a linear one. • There must therefore be recognition in our 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 differentially.

4. Key Focus Areas • Pursuant the context provided above, the following are some of the key focus area, relating to the policy and legislative framework, for discussion and attention: • The policy and legislative framework – enabling or constraining acceleration of delivery? • The support framework of national and provincial government to local government and cooperation between the three spheres (including interventions) • A differentiated approach to municipal powers, functions and governance arrangements • Functionality of governance structures and systems and enhancing oversight and accountability at local government level (such as MPACs, Executive Mayor System and Separation of Functions)

4.1 Towards an enabling Policy and Legislative Framework • Whileimproving national and provincial support and oversight of LG (including through policy and regulation) is necessary and in many instances welcome, the ultimate objective is / must be to strengthen decentralisation & create an enabling policy and legislative environment for municipalities to deliver services. • Moreover, there is a dialectical relationship between capacity and responsibility; both works to condition and define the other – the absence of responsibility diminishes the force to build capacity and vice versa. • Therefore, any policy or legislative intervention and support should not take away responsibility for service delivery from municipalities. • There is indeed a need to focus on fixing the internal environment of underperforming municipalities but this is inadequate on its own. • But there is also a need to for priority actions that seek to improve the external environment or context that undermines the ability of municipalities to perform their service delivery functions.

4.1 Towards an enabling Policy and Legislative Framework • Much emphasis is placed on the municipal internal environment and the manner in which support is provided with regards to improving this is concerned with: • Fixing the internal issues of underperforming municipalities; and • Improving and coordinating govt support and interventions that that seek to improve the internal environment of nonperforming municipalities. • But the national policy and legislative project should also entail: • Ensuring that work is being done towards the resolution of the external issues that are beyond the scope of a municipality; • Building the capacity of provincial governments to monitor and support municipalities; and • Review legislation impeding speedy and effective service delivery and reduce reporting burden on municipalities imposed by legislation.

4.2 Support Framework for LG and Cooperation between 3 Spheres • Despite strong evidence confirming the soundness of our IGR system, concurrent functions present particular challenges and continue to test the robustness of the system. • If we are to move closer to achieve integrated development planning across the three spheres of govt, then three key issues require greater attention: • How do we ensure successful Development Planning policy concurrency with emerging new legislation (e.g. the SPLUMB), models on differentiation, decentralised governance, and mechanisms for oversight and coordination? • How do we better assign development planning responsibilities between national, provincial and LG – roles and functions of each sphere with regard to intergovernmental planning and their budgetary allocations. • How do we introduce integrated planning for service delivery, i.e. the concept of a value chain from bulk to reticulation / sequencing of roll-out?

4.2 Support Framework for LG and Cooperation between 3 Spheres • Most sector depts prepare their own dose of strategic plans in which they identify roles for LG, often without the knowledge of LG and often ignoring the capacity of the municipality concerned. • From an instrumental approach, it is now apparent that IGR should be measured in terms of development results rather than in terms of processes, forums and meetings. • We need to coordinate govt priority setting, resource allocation & implementation – through aligning our strategic development priorities in all planning and budgeting processes (use IGR structures) to arrive at agreement on the space economy & strategic dev spending. • There is no tangible policy on migration/ urbanisation, urban development, rural development, agrarian reform, for eg, backed up by financial & institutional support to municipalities. • It remains our firm belief that Integrated Dev Planning should be cornerstone of all development in South Africa.

4.2 Support Framework for LG and Cooperation between 3 Spheres Interventions: • General increase in the number of municipalities under s139 interventions - mechanisms, processes and procedures in terms of s105 of the Systems Act are often overlooked in favour of a s106 investigation and or a s139 intervention. • It is proposed that 3 main principles need to guide provincial interventions in municipalities: • 1st, the assumption of responsibility should be last resort in a process of provincial supervision which should normally commence with review & monitoring of a municipality, followed by steps to strengthen / support. • 2nd, the integrity of LG as a sphere of govt exercising original powers should be respected as clearly delineated in the Constitution - this should protect municipalities from provincial interferences with municipal legislative functions. • 3rd, the aim of the intervention should be restorative rather than punitive.

4.3 Differentiated Approach to Powers and Functions • Over the last two LG terms, we have seen a progressive delegation of functions to municipalities by a range of nat and prov depts 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. • Incremental decentralisation should not mean that there is a series of isolated policy decisions that each provide an opportunity to review the end objective – the approach to decentralisation should 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 safeguarding the results of transformation.

4.3 Differentiated Approach to Powers and Functions • Need to accelerate the recreation of cities as a different level of govt able to tackle all the challenges of poverty, urbanisation and economic growth - larger cities must have full control and authority over the built environment & the creation of liveable sustainable human settlements in their areas, including fiscal and regulatory control related to that function. • Functional competences of LG must reflect the constitutional vision of a developmental sphere as outlined in the White Paper. • In this regard, it is especially functions such as housing, public transport and roads, that must be fully assigned to metropolitan municipalities. - costing of powers and functions is critical to inform devolution model. • This approach also requires the present system of two-tier LG to be revised. • The principle of differentiation must be applied in finding the most appropriate functional and structural arrangements.

4.4.1 MPACs • One of the strategic objectives of the LGTAS is to build clean, effective, efficient, responsive and accountableLG. • Accountability needs to happen by way of internal and external oversight. Internal oversight is done within the municipality and the external oversight by the Prov Govt as contemplated in the LGTAS. • The traditional oversight committee of the municipality should be established as a Municipal Public Accounts Committee (MPAC). • To date, most municipalities have established MPACs and have been assisted with roles and functions by SALGA and the Department of Cooperative Governance. • But we need to ensure that MPACs are strengthened and entrenched at local level if it is to really enhance accountability and oversight, the audit outcomes must indicate improvement and success over time.

4.4.2 Continued Appropriateness of Executive Mayoral System • In general, the appropriateness of the executive mayoral system for all types and sizes of municipalities need to be reconsidered. • Currently there are municipalities with a total of 13 councillors functioning as an executive mayoral system. • In terms of the provisions of the Structures Act, 15 cllrs are required to have a mayoral committee of 3 councillors, with any less members of a mayoral committee to serving the purpose. • In such smaller municipalities a collective executive system may be more appropriate. • Although the determination of the type of municipality is a provincial function, it is proposed that certain norms and standards for such classification be agreed upon.

4.4.3 Separation of Powers at LG Level? • In essence, there is clearly good reason why a separation of powers was not envisaged for LG - diverse size of municipalities, as well as the nature of LG functions renders such a separation impractical. • Rather, the legislative framework gave municipalities the leeway to determine their own structural arrangements that would best suit their particular circumstances. • To formally introduce separation of powers at the municipal level would require legislative and constitutional amendment - requires a radical revision of the political structures in LG and an arduous amendment process. • Reality is that, apart from massive transformation yet again, this option will not address the fundamental challenges peculiar to LG’s role and functions. • Other than in large metro councils where it is practical and enhances oversight, the separation of powers is of little import to good local governance & a separation of functions should be pursued instead.

5. Recommendations • With much of the transition of govt having been completed and with the policy, legislative and fiscal framework in place for LG, it is timely to reflect and draw on experiences and lessons learnt over the years to achieve better developmental outcomes. • While we only highlight some of the key issues for debate, the focus must be on ensuring that LG has a sound policy and legislative framework in place conducive to accelerating service delivery. • LG has been given a very broad and challenging set of responsibilities, the execution of which requires a coherent and co-ordinated set of support initiatives from the other two spheres of govt and an appropriate and differentiated fiscal framework. • The emphasis must therefore be on more effective cooperative governance.

Sound Policy & Legislative Framework to Accelerate Service Delivery