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Labour’s Submission on theMunicipal Systems BillPresented to the NEDLAC Development Chamber and the Department of Constitutional Development, 29 September 1999 |
Table of Contents
- Introduction
- Municipal Services
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Current Part 3 (sections 95-7) should follow current section 1;
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Section 88 and 93 should be merged;
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A section on disposal of assets should be incorporated in the bill.
- Credit Control and Debt Collection
- Public Participation
- Integrated Development Planning
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Section 21 obliging municipalities to be developmentally oriented;
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The alignment of municipal planning with the plans and strategies of adjacent municipalities the province and national organs of state in terms of section 22.
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The time frame for the adoption of the IDP in terms of section 23.
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The core components of an IDP as identified in section 24. However, human resource plan and administrative transformation should be added to the list of the core components of an IDP. In addition, it should take into account the issues raised above on the financial capacity of municipalities and the public sector as the preferred option to deliver services.
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Developmental priorities and objectives identified in section 25. However, our concern on financial sustainability raised above should be taken into account.
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The annual review and amendment of IDP.
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The obligation to municipalities to submit a copy of their IDPs to the MEC in terms of section 31. This will go a long way in enabling provincial supervision but more importantly in ensuring preventative intervention rather than post facto interventions.
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The process for planning, drafting and adopting integrated development plans.
- Local Public Administration and Human Resources
- Legal Nature of Municipalities and Internal Relationships
- Municipal Functions and Powers
- Performance Management
- Provincial and National Supervision
- Conclusion
- Annexures: Proposed Legal Amendments
The Municipal Systems Bill (hereafter the ‘Systems Bill’) is an important piece of legislation. It defines the internal operations of the municipality, the requisite institutions and mechanism to provide services, and so forth. Together with the Municipal Demarcation Act and the Municipal Structures Act, it provides a legal framework for new municipalities post the transition period.
The local government transition period was marked by the creation of unified, non-racial local governments supported by a single tax base. Great strides were taken in the last five years to address the fragmentation of local government. Nevertheless, South Africa is still haunted by apartheid distortions as manifest in the racially skewed service delivery. The reality confronting municipalities is one of massive service backlogs and uneven capacity to address this social deficit. A critical test for this suite of legislation is the extent to which they facilitate the establishment of integrated municipalities able to meet the increasing needs of their communities as well as addressing the historical service backlog.
At another level, the Systems Bill and the other pieces of legislation provides a legislative framework to realise the notion of ‘developmental local government’ as espoused in both the constitution and the White Paper on Local Government. However, the experience of the past few years highlights the lack of consensus on the meaning of ‘developmental local government’ and by extension the role of local government. This debate has its resonance in the broader debate on the role of the state. The debate on the role of the state is not superfluous to the discussion of the Systems Bill but has a direct bearing particularly in the vision of the kind of municipalities we seek to create and their role in providing services.
According to the explanatory memorandum "the legislative approach in the Systems Bill is broadly enabling and seeks to achieve a degree of equivalence and balance between the regulatory framework governing the three spheres of government." In general this is the approach adopted in the Constitution and other local government statutes. However, in our view, there are cases where the balance struck between an enabling and prescriptive approach needs re-evaluation. In certain instances the Bill is too prescriptive by for instance prescribing one form of contract for municipal managers. In some areas, particularly with regard to service delivery the bill uses permissive language.
The following constitutes
labour’s submission on the Systems Bill. The structure of the input does
not necessarily coincide with the sequence of chapters in the bill. Attached
to the submission are proposed legal amendments to address our concerns.
The chief purpose of the submission is to put on record the issues we have
raised during the discussions in the NEDLAC local government task team.
The starting point is that the bill in general and the chapter 8 dealing with municipal service, in particular, should take into account the national framework agreement signed by government and COSATU. In some respects there is an attempt to give effect to the principles of the framework agreement and we commend the department for their effort. But more seriously, the bill fails to give expression to the position of the public sector as the preferred option to provide municipal services. Coupled with this the bill deals flippantly with direct service delivery by municipalities and gives too much attention is devoted to municipal service partnerships.
The bill’s failure to articulate the regulatory framework for the private sector providers as provided in the framework agreement is a matter of concern. If it is the intention to promote such privatisation then it is also necessary to provide an effective regulatory framework before proceeding along this path. Matters reflected in the agreement on which regulation is required include, among others, the levels of profit, criteria to prevent corruption, limits on the duration of contracts and to ensure actual and sustained investment. Further, the process is lopsided as legislation is preceding policy on Municipal Service Partnerships. Once this legislation is promulgated without the conclusion of the policy framework, this means that the policy framework would have been predetermined by legislation. Ideally, we should have concluded the policy framework first and legislation would then give effect to the policy framework.
Labour’s preference is for the public sector provision of municipal services. The public sector is understood broadly to include local governments, parastatals and other organs of state including water boards. The public sector and the private sector are driven by different ethos a profit maximisation in the case of the latter and meeting community needs in the case of the former. In our view, the private sector should only be engaged in so far as this will build the capacity of the public sector to provide public services.
Without a common understanding of the problems and constraints confronting local government, we submit that involving the private sector may have dire consequences. The role of other spheres of government in supporting and building the capacity of local government needs to be factored in. This should interrogate the extent to which national policies including macroeconomic policy reinforces rather than further constrain municipal capacity. Further, we need a common understanding under what circumstances and regulatory framework can the private sector be engaged in providing municipal services. This would also require regulating the profit motive and protecting the public’s constitutionally guaranteed rights to have access to municipal services.
In general, we note that this chapter adopts a ‘neutral’ posture between the public and private sector. We question the elevation of the private sector to equal status with the public sector as reflected in the notion of a menu of options from which municipalities can choose ‘appropriate’ service delivery mechanism. In many respects, this constitutes abdication of responsibility by other spheres of government in supporting and intervening in municipal service delivery. This is compounded by the bill’s equal treatment of all municipalities, which may require an incremental approach to build their capacity. Given the fluidity within the local government terrain, the question of municipal capacity is contingent on the re-demarcation of municipalities, which we hope will result in viable structures.
It also depends on the framework for intervention and supervision by provincial and national government. Further, it is to a large extent depended on the macro policies and the allocation of adequate resources to enable municipalities to execute their constitutional mandate. Against this background we would like to address several sections of the bill.
The general duty imposed in terms of section 86 is supported bar for two areas of concern.1 First, the bill fails to define "the minimum level of basic municipal services". We propose that the definition of basic municipal services outlined in the framework agreement be incorporated in the bill. This should also be linked to the mechanisms to ensure such access including the lifeline tariff. However, sectoral legislation should define the actual levels for instance as in the Water Services Act.
Second, the injunction that municipal services must "be within the municipality’s financial and administrative capacity" and provided in "a manner that is financially sustainable" is very restrictive.2 First, it does not obviate the role of other spheres of government in supporting local government and ability to leverage resources say in the form of loans, etc. Second, while the principle of financial prudence is welcome, it is a matter of concern that the definition of financial sustainability does not adequately define what constitute a reasonable profit or surplus. It is not clear who determines such reasonable levels of profit or surplus.
This section will also make it difficult for cross-subsidization between municipal services. The consequence is to compel municipalities to seek alternative service delivery mechanisms if they do not comply with this section. In addition, it creates the momentum for the disposal of services which are ring fenced as unprofitable.
We support the obligation to municipalities to adopt tariff policies in terms of section 87(1). These tariff policies should be guided by national policy and therefore the Minister must make regulations and guidelines as opposed to the discretionary approach adopted in section 89. In addition, the principle of a lifeline amount of service as espoused in the framework agreement should be incorporated to cushion the impact of cost reflective tariffs on the poor and indigent household.
In general, this part of the Systems Bill needs to reinforce the public sector as the option to deliver municipal services. Secondly, it must incorporate the regulatory framework for private providers outlined in the framework agreement. Thirdly, it should not blur the relationship between elected representative and their constituency by granting quasi-municipal powers to private service providers. Fourthly, parastatals should be excluded from the competitive bidding process, so that support from parastatals is made a prior requirement before engaging the private sector. Fifth, the disposal of assets should be explicitly dealt with in the bill.
Pursuant to this objective we propose the reorganisation of this part in the following ways:
The principles on customer care and management as outlined in section 108 are welcomed including the mechanisms to deal with complaints and the requisite corrective action. At the same time the notion of ‘customer’ should be deployed with care. It would be better to use the term citizen care. A customer is simply a recipient of service and has no role in determining priorities and nature of services being provided. Municipal ‘customer’ is an oddity as the communities elect the councils and expect the municipality to provide public goods. Further the notion of customer is premised on ability to pay and does not recognise the need for differential treatment of households. To the extent that the bill recognise public participation in determining developmental priorities of the municipalities and the need for pro-poor mechanisms to be implemented by the council, this will allay our concerns regarding the underlying commercial logic of customer-service provider relationships.
The phrasing of subsection 108(d) is problematic as it suggest that a municipality must measure delivery of service as far as is practicable. In our view, the municipality should take the necessary steps to ensure that accurate and verifiable metering systems are in place. Historically, the absence of accurate metering systems was at the center of conflict between communities and municipalities. Where it is not possible to have such mechanisms, the municipality should explain to the community concerned how it measures consumption of service and what steps are being taken to progressively implement accurate measuring mechanisms.
The power to disconnect or
restrict the provision of any service in terms of section 115, should take
into account measures to ensure basic level of municipal service and mechanism
to assist poor households. As such this section should correspond with
the municipal’s tariff policy.
The bill’s recognition of the need to supplement representative democracy with participatory democracy is welcomed and supported. 3The constitution demands that local governments and other organs of state should operate in an open, transparent and accountable manner. Public participation is an important element of an open democracy and will enrich rather than compromise governance. Implicit in the notion of public participation is the recognition that people must play an active role in decision making rather than being passive recipients of services.
Nonetheless, Chapter 3 (dealing with public participation) has a number of weaknesses that should be addressed. A general weakness is the bill’s failure to define stakeholders. In particular, consultation of workers as workers and as stakeholders is fudged in the bill. Our submission is that while the LRA is clear on mechanism to involve workers in decision-making, there is a need to explicitly recognise workers as stakeholders beyond the collective bargain terrain. For instance, issues such as the budget and the IDP are broader stakeholder participation issues in which workers have a direct interest as members of communities to shape the budgetary and developmental priorities of a municipality. Explicit recognition as stakeholders will mitigate against workers simply approaching these issues as if they are a matter of collective bargaining.
Secondly, matters for public consultation needs to be outlined in this section. In our view, issues such as the budget, the IDP should be subject to broader public consultation. In addition, the status of decisions arrived through participatory structures needs clarification. This should balance the need to avoid usurping council’s right to govern and the other extreme where councilors disregard the views of their constituency.
Thirdly, subjecting the dissemination of information and capacity building to the council’s financial and administrative capacity is unnecessarily restrictive.4 The unintended consequence of this approach is to abort the principles of capacity building and dissemination of information. Further, it does not recognise the role of other spheres of government in assisting with resources for capacity building. Currently, a portion of the national revenue flowing to municipalities is earmarked to assist with capacity building.
Section 11 needs to go beyond granting municipalities the power to close their meetings under particular circumstances. The municipality must give reasonable notice to communities on its intention to close its meetings. This will provide an opportunity to communities and stakeholders to respond to the council’s intention. The inclusion of such a clause important to grant stakeholders legal recourse and will prevent arbitrary closure of council meetings.
In line with the Open Democracy
Bill, the decisions of a closed meeting should be proactively disseminated
to the public. In addition, the minister should issue guidelines to guide
municipal by-laws on the closing of council meetings and the need for disclosure
of information after the meeting. Regulations are necessary since current
clauses in subsection 11(1)(a) are general and subject to interpretations.5
The overall objective to ensure that municipalities are developmental in their planning is shared by labour. In addition, the need for integrated development planning should ensure single coherent planning cycle. The challenge is to ensure that municipalities actually implement an integrated development plan. In this regard the legislative framework is a necessary intervention. However, there is a need to support those local governments lacking the necessary capacity to develop IDPs. Needless, to point out the need to avoid this function being ‘farmed’ out to consultants with no clear link existing municipal plans and lack of public participation.
Anecdotal evidence suggest that a number of municipalities spent a lot of money paying consultants to develop their IDPs and once these are finalised they lie dormant in the office of the municipality. In most, instances, these IDPs have no bearing on actual municipal plans since in most instances it is business as usual. Hence the need for sanctions to ensure that municipalities, particularly their administration comply with the legal framework. Otherwise we run the risk of a bold vision which is not given effect to in the day to day operations of the councils. Therefore, there is a need to deal with the perception that IDPs are just add-ons and municipalities can continue to behave in the old ways.
Linked to this is the need for national and provincial departments to reinforce rather than undermine local planning by integrating their programmes within the municipal planning cycle. Integrated development planning should not occur only at local government level but should permeate the planning of all sphere of government. This should be matched by the allocation of requisite resources. In general there is a need to review national service districts and boundaries of municipalities. Our preference is for national service districts such as health districts and magisterial districts to be aligned to or coterminous with municipal boundaries.
Having said this, there are several areas of concern that we would like to register. The bill in general adopts a neutral posture between public and private provision of services. For example, in its developmental strategies in terms of subsection 26(e) a municipality should "take into account options available to meet its development objectives." As a result there is no emphasis on direct delivery by the municipality let alone the public sector as the preferred option to provide municipal service.
Another area of concern is the lack of clarity on municipal financial capacity. The Department of Finance is expected to introduce a bill dealing with issues of financial management, budgeting, borrowing and treasury control as well as legislation reforming the property rating and taxation system. The absence of this legislation makes it difficult to test whether municipalities would have the necessary financial capacity to realise their objectives.
In this light, the injunction that the operational strategies in terms of subsection 28(b) must ensure that "the municipality has the financial capacity to realise its development objectives" is a cause for concern. Coupled with this is the injunction in section 25(d), which provides that the municipality must state what its medium and short-term objectives are, taking into account "financial sustainability".
This raises the question what would happen if the municipality lacks the financial capacity to provide municipal service? The lack of clarity on municipal financial capacity creates the perception that this bill will force municipalities to consider alternative service delivery mechanisms such as the private sector. This may be compounded by a restrictive fiscal policy for municipalities flowing from the restrictive fiscal policy being pursued at a national level.
Although there is an attempt to clarify the legal consequences of an adopted integrated development plan in terms of section 37, it still ambiguous whether the IDP is a legal document. For instance, section 38 state that a municipal council must give effect to its integrated development plan but does not explain whether this will be in the form of a by-law. In order to address this ambiguity, the municipality should be required to give effect to its IDP by passing a by-law.
Labour supports the following areas in the chapter 5:
There are several areas of concern with chapter 7 dealing with local public administration and human resources. There are many general principles of public administration which we support. However, large sections of this chapter cut across existing labour law in way which have no purpose or does not require detailed provision in the bill of this nature. There are also many areas in which it id not clear why it thought that this law would achieve changes in behaviour or organisation design. This is made more acute by the bill’s equal treatment of all municipalities. The deployment of terms that are not defined anywhere in the bill. For instance section 57(d) directs a municipal council to establish and organise its administration in a manner that "is performance oriented and focused on its core business. What constitutes the ‘core’ business of a municipality is not defined in the bill. The Constitution outlined areas of competence for local government which provide general guidance to municipalities.
For instance would support services such as Information Technology which perform a critical role in the functions of the municipality be regarded as non-core? If they are, does this mean a municipality should hive them off? Consequently, this introduces a piecemeal approach to planning inconsistent with integrated development planning. In our view, definition of a municipal service should be inclusive of ancillary activities and the council’s judgement of the services and economic activities its community supports. Against this background we proposed the exclusion of the term core business and replace with the duties of the municipality enshrined in the constitution.
Secondly, the level of detail in some of the sections such as staff matters is unnecessary. More seriously, this deal with issues that require negotiation in the Bargaining Council. Our view is that the section requires the basic principle to be captured in the legislation and the ‘actuals’ elaborated through negotiation in the bargaining council.
Thirdly, the practical implications of some of the provisions of this bill need careful consideration. For example the obligation for municipalities to employ municipal managers on fixed term contracts may have severe financial consequences for some municipalities. In addition, there is no reference to the current situation. It is not clear what the transitional mechanisms are once this bill is promulgated particularly related to managers who have been employed under the dispensation of permanent employment. This issue is made more serious by the fact that this bill suggests that all managers may be employed on fixed term contracts. We propose that the fixed term contract issue be made optional or at least the transitional mechanism should be clearly spelt out.
Fourthly, to the extent that
the bill seeks to articulate principles fleshed out in other pieces of
legislation such as the Skills Development Act it is riddled with a number
of inaccuracies and an apparent lack of knowledge of the contents of these
Acts.
We have a number of concerns with some provisions of chapter 2 dealing with the legal nature of municipalities and internal relationships. First, subsections 3(b) and (c) unwittingly constrain cooperative governance.6 In our view, the impact of these sections is to allow municipalities to opt out of agreements reached with SALGA. In the process this will destabilise the operations of SALGA and any party which concludes agreement with it will be uncertain whether such agreements are binding. Rather than allowing municipalities to opt out of national agreements concluded with SALGA, the challenge is to ensure that SALGA represents municipalities and has the necessary mandate to do so.
The injunction in subsection 4(2) compelling municipalities to inter alia exercise their executive and legislative authority "within the municipality’s financial and administrative capacity" is unduly restrictive. This is further exarcerbated by the injunction in subsection 4(2)(d) that municipalities should ensure provision of services to all residents and communities in a "financially sustainable manner." The latter will impede cross-subsidization between municipal services since all municipal service must be provided in a financially sustainable manner. In our view it is important to define the municipal fiscal framework so as to provide a clear picture of the financial capacity or resources available to a municipality. Secondly, cross-subsidization between services should also be explicitly be recognised. As such there is a need for cross-reference to the section dealing with municipal tariff policy.
Labour supports the inculcation of a civic duty, which among others include payment of services. However, subsection 5(1)(g) assumes that all residents have similar ability to pay for services.7 Again it is important to obviate the need for municipalities to adopt measures aimed at supporting poor household to have access to municipal service. Further it is important that the bill define "community"
as it is currently not defined in the bill.
The intention to regulate the assignation of duties to municipalities by other spheres of government is a welcome development, which should in the long term prevent the devolution of ‘unfunded mandates’. In this vein, section 13 would play a significant role in achieving this objective. However, we have several concerns with the wording of section 15 and 18.
In particular, subsection 15(1)(e) is a matter of concern as it construes the municipal executive authority to include the "appointment of the appropriate service provider for any functions listed in Part B of Schedule 4 or Part B of Schedule 5 of the Constitution." This is consistent with the bill’s neutral stance between public and private providers. In our view this provision creates an unnecessary compulsion to consider other service providers even where this is not necessary. We believe that this injunction should be deleted for this section.
Another area of concern relates to the Minister’s power to issue regulations and/or draft by-laws. The general trend in the bill is either to make this a discretionary matter or subject to initiation or request by MECs or SALGA. It against this background that subsections 18(1) and (2) are problematic. National norms and standards are imperative to guide municipal decision as well as create uniform minimum national norms and standards. We believe that this can be achieved without divesting municipalities of their autonomy.
The definition of resident
in the bill leads to confusion. For instance, by including a juristic person
who is not ordinarily domicile in an area but who is a rate payer, this
begs the question whether property will then allow one person to vote more
than once in local government elections. If the latter is correct, then
the bill unintentionally introduces a ‘qualified franchise’. In order to
deal with this ambiguity we propose the exclusion of juristic persons from
the definition of resident to be included in the definition of rate payers.
Generally, we support the need for municipalities to have means of measuring their performance. The problems arise when such performance management is then perceived in narrow productivity terms in relation to workers. It is unfortunate therefore that much of the terminology used in the section is derived from the employment context rather than focusing on how the establishment of delivery and developmental goals is achieved and how assessment of the achievement of such targets can measured.
A term such as ‘key performance indicators" is so embedded in notions of individual performance that it will invariably turn the focus primarily onto question of employees performance at the expense of measuring developmental achievements. One consideration here would be to remove the issue of "transformation programmes" from this section and focus these in a more coherent way in the section on human resource issues.
Another area of concern is the repeated reference to other service providers. It appears as if the drafters main concern is to promote alternative service providers. For instance a municipality in terms of subsection 49(1)(3) must "reconsider its capacity and delivery mechanisms, including the appropriateness of its service providers…"
At a practical level, the bill fails to take into account the uneven municipal capacity to implement performance management system. The general duty imposed on all municipalities may be prejudicial to those that lack the requisite capacity to develop the system let alone implement it. Therefore, there is a need for an incrementalist approach, which include assisting municipalities to design and implement their systems. The role of the Department of Constitutional Development and Provincial Government is therefore pivotal in this regard. During the implementation stage this should be taken into account. However, we should guard against paralysing the system or postponing its implementation due to municipalities using lack of capacity as a scapegoat to avoid implementing performance management. As such there must be a tight management of the process to check which municipalities genuinely lack the capacity and steps taken to assist them.
We accept the need to identify
the key role players as suggested in section 39 who must implement the
performance management system but consider that section 40 is an unnecessary
duplication of what follows from section 42. It also has the effect of
deflecting attention from managing overall development and delivery achievement
of the municipality by immediately focusing on units, individuals and structures.
Sections 48 and 49 provide a sufficient holistic assessment, including
assessment at the level of staff performance factors.
We support the provisions of chapter 10 regarding provincial and national supervision. This should result in proactive intervention in instance where there is prima faci evidence of failure to fulfil executive obligations. However, we caution against interventions solely for punitive purposes. Intervention should ensure continued provision of service and the necessary corrective actions implemented.
At the same time there is
a need for oversight over these interventions. Against this background,
it is disturbing that no explicit role of parliament in particular the
NCOP is envisaged in the bill. Further, the omission of sections stipulating
that an MEC can require corrective steps should be taken is a matter of
serious concern. All the bill does is to empower the MEC to intervene through
the appointment of investigators in the form of a commission or person.
We suggest the reinstatement of these sections in the bill.
This submission highlights the fact that labour is fully behind local government transformation. Local government is a sphere of government closest to the people and must encourage their involvement in decision-making. It is also a link between the people and other spheres of government. A number of areas of concern were raised in the submission which we hope will be taken on board. Lastly we congratulate the Department of Constitutional Development for developing this bill and subjecting it to public debate.
[ ] = delete --- = insert
| Item | Section | Proposed Amendment | Comment |
| 1. | 1. | Add
the following definition
"minimum level of basic municipal services" means a basic level of municipal service necessary to ensure an acceptable and reasonable quality of life, which take into account health and environmental considerations as shall be determined from time to time by sectoral legislation. No person should fall below this minimum level of service and it is incumbent upon municipalities to put in place mechanisms to realise this." Amend the definition of municipal service as follows: "municipal service means a service that a municipality is competent to render to its residents in terms of Part B of Schedule 4 and Part B of Schedule 5 of the Constitution, or any service delegated to it." |
In our view, the bill should
define basic municipal services as they are not defined in the constitution
or national legislation.
This definition creates certainty in terms of the service which a municipality has to render. The concept ‘competent’ is open ended and may mean legal competence or capacity to provide services. |
| 2. | 87 | Insert
new subsection (h) as follows and renumber current (h):
‘(h) recognise that all residents will have access to a life-line amount of basic municipal service." |
|
| 3. | 89 | Substitute
shall for may in subsection 89(1) so that it reads:
"89(1) The Minister [may] shall make regulations…" |
Tariff setting by municipalities should be guided by national regulation to ensure uniform minimum standards. |
| 4. | 90 | Delete current subsection 90(b) and renumber accordingly. | Subsection 90(c)(iii) already recognise that a municipality can establish a municipal business enterprise. Therefore, subsection 90(b) is repetitive and unnecessary. |
| 5. | 92 | Insert
new section 92 to read as follows and renumber current sections accordingly.
"Service Delivery by Municipalities 92(1) If a municipality directly provide municipal service through an administrative structure in it administration or municipal business enterprise, it must –
|
The purpose of this section is to flesh out the steps that a municipality should take when it decides to deliver municipal services directly. It should not be taken for granted that municipalities will transform the way in which they provide services. Therefore national legislation should at least require a set of steps to be taken to transform direct municipal service delivery |
| 6. | 93[92] | Replace
current section 92 with sections current section 95-97 as follows:
Reviewing and deciding on mechanisms to provide municipal service When a municipality must decide on mechanisms to provide services 93[92] A municipal council must review and decide on the appropriate mechanism to provide a municipal service when –
94. (1) When a municipal council has to decide on a mechanism to provide a municipal service in the municipality or a part of the municipality, or to review any existing mechanism, it must –
Service delivery agreements 95 (1) Notwithstanding section 93, a municipality must consider a service delivery agreement with another person other than an organ of state; if there is no known organ of state willing and able to provide the municipal service; (2) If a municipal council provides for a municipal service to be provided by way of a service delivery agreement, the council remains responsible for ensuring that that service is provided to the relevant residents and communities in terms of the provisions of this Act, and accordingly must –
(4) No councilor or staff member of a municipality may share in any profits or receive any benefits from a service provider providing a municipal service in terms of a service delivery agreement. Implementation 96 (1) If a municipal council decides to provide a service by way of a service delivery agreement –
97 A municipal council must adopt by laws regulating the provision of municipal services whether provided by the council itself or by way of service delivery agreements. Performance management of municipal services 98 A municipal council must develop objective and quantified goals, standards, targets and mechanisms in terms of which the performance of municipal services must be monitored and assessed, whether provided by the council itself or by way of service delivery agreements. |
The
broad intent of these amendments is to align the bill with the framework
agreement on diverse matters like the public sector as the preferred option
to provide municipal service and regulatory matters for private providers.
|
| 7. | 98 | Insert
organ of state in current subsection 98(1) as follows:
"98. (1) If a municipal council decides to provide a municipal service by way of a service delivery agreement with a person other than another municipality or an organ of state, it must select the service provider through selection and pre-qualification processes…" |
This is a consequential amendment. |
| 8. | 99 | Insert
new subsection 99(2) as follows:
"(2) the Minister shall issue regulations prescribing the contents of the contracts including: (a) limit on tariff increase; (b)investment including social reinvestment requirements to be met by the service provider; |
|
| 9. | 100 | Insert
new subsection 100(4) as follows:
"(4) The Minister shall publish a standard contract as a schedule to this Act to guide municipal councils." |
|
| 10. | 101 | Insert
new section 101 as follows:
"Disposal of Assets 101. The Minister shall issue regulations regarding the disposal of assets, stipulating among others;
|
| Item | Section | Proposed Amendment | Comment |
| 1. | 108 | Amendment
subsection 108(d)
"(d) [as far as is practicable,] ensure that the consumption of services by individual households is measured through accurate and verifiable metering systems." |
The municipality should be encouraged to take active steps to ensure accurate metering of consumption of services. Where it is not possible, it should explain to residents how it measures the consumption of the service and the steps being taken to correct the situation. |
| Item | Section | Proposed Amendment | Comment |
| 1. | 7 | Substitute
current subsection 7(3) for the following:
"(3) In establishing participatory government, a municipality retains its right to perform the functions and exercise the power of a municipality provided it complies with its adopted systems, structures and mechanism for public participation." |
The purpose of this amendment is to prevent arbitrariness on the part of municipalities. The current provision may lead to a situation where municipalities do no consult residents and other stakeholders on the ground that this constitute "interference" with their right to govern. We however, we support the need to balance the right to govern with public participation. These should not be seen as trade-offs but as mutually reinforcing. Further, there is a need to ensure that councilors do consult and convene regular meetings. One mechanism to achieve this is the system of sanctions in the Code of Conduct for councilors and the right to recall under-performing councilors. |
| 2. | 8. | Amend
subsection 8(3) as follows:
"(3) A municipal council
must, within the financial and administrative capacity of the municipality,
strive to disseminate among residents, communities and other stakeholders
in the municipality, information concerning these mechanism, processes
and procedures…"
Insert new subsection 8(5) as follows: "(5) Without limiting matters for public consultation, a municipality must ensure public participation in developing its IDP and the budget subject to this Act. |
This
section contradicts other sections in the bill which does not subject dissemination
of information to the municipality’s financial and administrative capacity.
See for instance section 7(d). The amend also seek to align this section
with section 152(2) of the Constitution.
The purpose of this amendment is to make sure that the municipality involve communities and other stakeholders in the development of its IDP and the budget. |
| 3. | 9. | Amend
section 9 as follows:
"9. A municipal council within the financial and administrative capacity of the municipality must strive to build the capacity of residents and communities to participate in the …" |
The current section unduly constrain capacity building through the injunction that it must be done when only the municipality has administrative and financial capacity. We believe that municipalities should actively build the capacity of stakeholders including soliciting the assistance of other spheres of government. |
| 4. | 11. | Insert
new subsection 11(3) and renumber current subsection (3) as follows:
"(3) (a)When a municipality contemplates closing any of its meetings to the public, it must give reasonable notice to the public of its intention. (b) Members of the public can object in writing to the council’s decision to close its meeting and state their reasons for objecting;
|
The aim of this amendment is to ensure that municipal councils disclose the decisions of their closed meetings. Secondly, to ensure that proper records are kept during the meetings. |
| Item | Section | Proposed Amendment | Comment |
| 1. | 24 | Insert
new subsection 24(h) as follows:
‘(h) its human resource plan.’ |
Human resource plans are important to align municipal personnel with their service delivery needs. |
| 2. | 26 | Amend
subsection 26(e) as follows:
"(e) take into account options available to the municipal council to meet its development objective [including by way of service delivery agreements]" |
The general problem with the bill is its undue focus alternative service delivery arrangements relative to direct provision by municipalities. In nay event these issues are extensively covered in the Municipal Services Chapter. |
| 3. | 28 | Amend
subsection (a) as follows:
"(a) ensure that the municipality, [either alone or through service delivery agreements] has the institutional and organisational capacity to realise its development objectives and the ability to sustain its development." |
This is a consequential amendment. |
| Item | Section | Proposed Amendment | Comment |
| 1. | 56 | Amend
section 56(2)(a) as follows:
"56. (2)(a) consult residents, [as far as is practical], about the level and quality of services and the available options." Amend subsection 56(2)(e) as follows: "56. (2)(e) inform residents, [when necessary], of how municipalities are managed, the cost involved and the person in charge" |
It is inappropriate to subject public consultation to the discretion of the municipality or to practical considerations. Otherwise this opens the space for municipalities to opt not to consult residents |
| 2. | 57 | Amend
Subsection 57(c)as follows:
"(c) is performance oriented
and focused on its [core business] developmental and objects of a municipality
in terms of section 152 and 153 of the Constitution."
Omit current subsection (f)
Amend current subsection (g) as follows: "(g) enables the functions
of the administration to be organised into the most operationally effective
and appropriate structures and mechanism, [including department, functional
or business units, business enterprises, service agencies, inter-agency
coordinating units, participatory or advisory forums for staff, residents
or stakeholders, or any other appropriate structures of mechanisms.]"
Insert new subsections (h) & (I) accordingly: "(h) establish clear structure and procedure for consultation and negotiation with workers subject to labour law and collective agreements with trade unions. "(I) establish clear relationships between community or stakeholder forums and employees at appropriate levels of the administration." Renumber existing subsection (h) onwards. |
The concept of ‘core business
is not defined anywhere in the bill. It may therefore lead to arbitrary
definitions of what constitute core business and what happen to non-core
business. We believe the constitution provide the framework for municipal
duties.
Flexibility in work organisation
and deployment must be negotiated in the context of labour relations and
not imposed as a principle.
Service delivery mechanisms should be elaborated in the Service Delivery chapter. Similarly, public participation should be adequately addressed in the relevant chapter. |
| 3. | 58 | Amend
current subsections 58(1), (2) & (4) by substituting and for
or
"(1) A municipal council must, within the framework of the Municipal Structures Act, define the specific role and area of responsibility of each structure [or] and functionary of the municipality established or appointed by the council." "(2) The respective roles and areas of responsibility of each structure [or] functionary must" |
The amendment as proposed suggests that the municipality must clearly define the roles relationships between its functionaries and structures. |
| 4. | 59 | Insert
new subsection (k) as follows and renumber existing (k):
"(k) facilitate public participation and stakeholder involvement." |
The bill should explicitly state that one of the key functions of the municipal manager is to facilitate public participation and stakeholder involvement. |
| 5. | 60 | Two
options are proposed to amend section 60.
Option 1: Deleting
current section 60 and replacing it with the general empowerment to appoint
municipal managers along the lines of section 82 of the Municipal Structures
Act, Act No. 117 of 1998.
Option 2: Amend current section 60 as follows: "60. (1) subject, to section 82 of the Municipal Structures Act, Act 117 of 1998, a municipal council must appoint–
(4) the general conditions of service and benefits for municipal managers will be as stipulated and provided for in terms of labour legislation and applicable collective agreements reached in the local government bargaining council. (5) Notwithstanding subsection (4) the Minister, after consulting the bargaining council for local government established in terms of applicable labour legislation, may by notice in the Government Gazette issue guideline to municipalities concerning –
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If the broad intention of this section is to allow municipalities to employ top managers who share their political orientation it is flawed in two ways. First, it encroaches in collective bargaining issues without explicitly recognising the role of collective bargaining in negotiating conditions of employment. Secondly, the cost effect of compelling all municipalities to adopt fixed term contracts for all managers have not been adequately taken into account. The cost of offering packages to ease-in fixed term contracts may end up crippling municipalities and/or pension and provident funds. Linked to this is the potential for unilateral alteration of current conditions for serving managers. In addition, it recognise only one form of contract, i.e. fixed term contract suggesting that there is no place for full-time employment. In this vein the, bill is highly prescriptive and leave no discretion to the municipality. Our view, is that it must accommodate various forms of contracts subject to collective agreements. The Public Service Act, 1994 and the subsequent regulations are instructive in this regard. |
| 6. | 69 | Amend
current subsection 69 (c) & (d) as follows:
"(c) [determine] align the remuneration and other conditions of service for each part on the staff establishment in accordance with any applicable labour legislation and collective agreements. (d) regularly evaluate [the post on] the staff establishment and if necessary review the staff establishment and associated remuneration and conditions of service." |
As it is currently worded this section suggests that job evaluation is a process that must go on all the time and be initiated by the council. In the normal flow of events re-evaluation of jobs is a process initiated by individual employees or when a major restructuring of work take place. If a council is bound by collective agreements on wages and conditions it cannot "review" these periodically in the sense conceived in the section. |
| 7. | 70 | Amend
section 70 as follows;
[Staff Code] Human Resource Management "70(1) A municipality must adopt a [staff code] systems or procedures providing for efficient, effective and transparent personnel administration." "70.(2) Such systems and procedures [A staff code], to the extent that it deals with matters falling under applicable labour legislation and affecting the rights and interest of employees must comply with procedural and other requirements of such legislation and collective agreements reached in the local government bargaining council." Omit subsection (3) as it will be covered by the proposed amendment to section 60. "(4)(a) provide every staff member and every representative union, with a [copy of the staff code] copies of all such systems and procedures or amendments [of such Code] thereto; and (b) ensure that the purposed, contents and consequences of the [Staff Code] systems and procedures are explained to staff members who cannot read. |
The notion of a Code denotes disciplinary procedures whereas the intent of the section is to deal with human resource management issues, hence the amendment. Further, the issues raised in this section are matters for collective bargaining and should be subject to collective agreements. |
| 8. | 71 | Amend
current section 71 as follows:
"71. (1) The Minister, subject to collective agreements reached in the bargaining council for local government established in terms of applicable labour legislation, may by notice in the Government Gazette issue guidelines or regulations to municipalities concerning –
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The purpose of these amendment is to empower the municipality to develop among others job evaluation system within national guideline and regulations. Secondly, to explicitly state that these should be within collective agreements reached in the local government bargaining council. Lastly, to streamline the sections since the detail will be provided in the regulation and/or guidelines. |
| 9. | 79 | Insert
new section 79 as follows:
"79. (1) A municipal councils must develop its human resource capacity to a level that enables it to perform its function and exercise its powers efficiently and effectively. (2) To this effect a municipality must comply with the Skills Development Act, Act No. 81 of 1998, and the Skills Development Levies Act, Act 28 of 1999. (3) A municipality may in addition to any provision for training levy in terms of the Skills Development Levies Act, Act No. 28 of 1999, make provision in its budget for the development and implementation of training programmes. (4) Municipalities that do no have the financial means to provide funds for training programmes in addition to the levy payable in terms of the skills Development Levies Act, Act 28 of 1999, may apply to the Local Government Sector Education and Training Authority for the funding of those programmes. Delete the remainder of the current sections in the bill. |
The Skills Development Act and the Skills Development Levies Act and the NQF provide sufficient legal framework for education and training. This bill should therefore impose a general duty on municipalities to implement education and training programmes subject to these Acts. Another reason for this amendment is the terminological confusion underpinning some of the provisions of this Act which contradicts the principles of the Skills Development Act. Further, the Act is broadly regulate programme and question of quality assurance and there is no need to repeat them in the Systems Bill. Further, SETA can regulate the provision of in-house training. |
| Item | Section | Proposed Amendment | Comment |
| 1. | 2 | Omit current subsection 2(b) | Subsection(2(b) repeats subsection (a) which already deals with the municipality as a juristic entity |
| 2. | 3 | Amend
subsection 3(b) as follows:
"3.(b) participate in organised local government to [the extent necessary]" Amend subsection 3(c) as follows: "3(c) [seek to] comply [as far as this is in the interest of the municipality concerned] with any agreements concluded by organised local government within its mandate on behalf of local government." |
Participation in organised local government should not be optional. Municipalities should not be granted the power to opt out of agreement reached with SALGA. Rather, SALGA should have the mandate of municipalities when it reaches agreements with anyone. |
| 3. | 4 | Amend
current subsection 4(1)(d) as follows:
"4.(1)(d) to claim from residents
fees for services and to impose on them surcharges on fees, rates on property
and other taxes, levies and duties to finance the affairs of the municipality
subject to section 229 of the Constitution and section 87 of this Act."
Amend Subsection 4(2) as follows: "4.(2) The council of a municipality,
and to the extent of their delegated authority, its committees and functionaries,
must within the municipality’s financial and administrative capacity and
having regard to practical considerations strive to…"
Amend current subsection 4(2)(d) as follows: ‘4.(2)(d) ensure the provision of municipal services to all residents and communities in [a financially and environmentally] sustainable manner.
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This obviates the fact that
municipal fiscal powers are regulated by the constitution and subject to
the municipalities tariff policy.
The exercise of executive
functions should not be constrained by the qualification that it must be
within the municipality’s financial and administrative capacity. Rather,
municipality’s must ensure that they have the necessary resources to fulfil
their executive of functions. Failure to execute executive functions must
lead to either intervention of provincial government or the assumption
of such responsibilities by the province until such time as the council
is able to meet its obligations.
The isolation of financial and environmentally sustainability exclude other factors such as health and the creation of integrate sustainable communities. Therefore, limit itself to proving that services should be provided in a sustainable manner. The definition of sustainable should include factors such as financial, environmental, etc. |
| 4. | 5 | Amend
subsection 5(2)(a) as follows:
"5.(2)(a) to pay for their service fees, surcharges on fees, rates on property and other taxes, levies and duties imposed by the municipality, subject to 87 of this Act." |
This would ensure that the poor are not excluded from the enjoyment of municipal services. Section 87 provides among other that the tariff policy should include mechanisms to assist poor households. |
| Item | Section | Proposed Amendment | Comment |
| 1. | 14 | Amend
subsection 15(1) (e0 as follows:
‘(e) providing for and regulating the provisioning of municipal services [including the appointment of the appropriate service provider] for any function listed in Part B of Schedule 4 or Part b of Schedule 5 of the Constitution." |
The question of service delivery mechanism is adequately addressed in the Municipal services chapter. Nonetheless, our concern regarding the fixation with alternative service delivery mechanism as raised above still stands. |
| 2. | 18 | Amend
subsection 18(1)(a) as follows:
"(a) The Minister, [on request by organised local government, or after consulting the MEC’s for local government and organised local government,] may by notice…" Amend subsection 18(2)(a) as follows: "(2)(a) An MEC for local government, [on request by organised local government, or after consulting the Minister and organised local government,] may by notice…" |
To ensure national minimum standards, the Minister should pass regulations, guideline and/or standard by-laws. The current sections will curtail this power to the extent that it suggest that the Minister can issue standard by-laws only after consulting or on request from organised local government. The same applies to the MEC’s power to issue provincial standard by-laws. |
| Item | Section | Proposed Amendment | Comment |
| 1. | 40 | Omit subsections (c) to (I) | Subsection (b) adequately addresses the issues raised in subsections (c) to (I) |
| Item | Section | Proposed Amendment | Comment |
| 1. | 121 | Insert
new section 121 as follows:
"Provincial Intervention 121. (1) If an MEC is satisfied that a municipality cannot or does not fulfill an executive obligation binding on that municipality, the relevant provincial Executive Council may authorise the MEC to intervene and to take any appropriate steps to ensure fulfillment of that executive obligation. (2) the steps the MEC may take to ensure fulfillment of that executive obligations, may include –
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The purpose of these amendment is to empower the MEC to assume responsibility for a municipal function when a council fails to execute its executive function. Secondly, it to ensure national oversight by parliament and the provincial legislature over these interventions. |
| 2. | 122 | Insert
new section 122 as follows:
Written Directives 122. (1) a written directive which an MEC may issue to a municipal council that cannot or does not fulfil an executive obligation may not deprive the municipality of the duty to fulfil the executive obligation, and must –
(iii) amend the directive in any other respect |
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| 3. | 123. | Insert
new section 123 as follows:
Assumption of responsibility for executive obligation 123. (1) If a municipal council fails in a material respect to comply with a directive issued in terms of section 119, the MEC concerned may, by written notice to the municipal council, assume responsibility for the fulfillment of the executive obligation to the extent necessary –
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| 4. | 124 | Add
new section 124 as follows
Report to Minister and giving notice to legislators 124. (1) An MEC who has issued an intervention notice in terms of section 120(1) or who has amended an intervention notice in terms of section 123(4)(b)(I) or (ii) must –
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| 5. | 125 | Add
new section 125 as follows:
Minister’s duties 125. (1) The Minister, on receipt of the report in terms of section 124(1)(a), must either approve or reject the intervention or amendment within 14 days of the intervention or amendment (2) before approving or rejecting an intervention or amendment the Minister may require further information on the intervention or amendment from the MEC of the municipal council. (3) If the Minister does not approve the intervention or amendment within 14 days of the intervention or amendment the Minister is regarded as having rejected the intervention or amendment. |
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| 6. | 126 | Insert
new section 126 as follows:
Termination of intervention 125. (1) An MEC must end an intervention or withdraw an amendment if –
(3) The MEC concerned must consider any recommendation of the National Council of Provinces following a review by the Council of an intervention in terms of section 139(2)(d) of the Constitution. Renumber current section 121-2. |
| Item | Section | Proposed amendment | Comment |
| 1. | Heading | Amend the heading be replacing [officials] with employees. | Reference in the Code is made to employees rather than officials and for the sake of consistency the heading should be changed. |
| 2. | 10 | Delete current item 10 | This amounts to a new condition of service. There must be discussions in the local government bargaining council before it is legislated. |
Footnotes:
1. Section 86 provides among others that "a municipality must give priority to basic needs of the community, promote the social and economic development of the community, and ensure that all residents and communities in the municipality have access to at least the minimum level of basic municipal services.
2. Section 86(2)(a) & (b)(iii) respectively provides that "The municipal services provided to residents and communities in a municipality must - (a) be w