Municipal Systems Bill: Chapters 5 & 6

Meeting report

PROVINCIAL AND LOCAL GOVERNMENT PORTFOLIO COMMITTEE
27 June 2000
MUNICIPAL SYSTEMS BILL: CHAPTERS 5 & 6

Documents handed out
Department's Draft Reply to Submissions on Chapter 5
Department's Draft Reply to Comments on Chapter 6
Department's separate responses to each of the chapters of the Bill
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SUMMARY
During their day-long meeting, the committee discussed some of the department's draft replies to submissions on Chapter 5 of the Bill, relating to integrated development planning. It looked at the following issues: over-regulation and over-prescription, alignment with other national and provincial legislation, public participation and consultation process, the role of the MEC in assessing IDPs, local economic development in the IDP, gender disaggregated data in the IDP and land restitution. This was followed by a clause by clause analysis of this chapter.

Debate focused on Section 30 around the establishment of ad hoc committees to resolve disputes or objections made by a municipality. Members were unclear as to how the committees would function. They were also unable to come to a consensus as to whether the committee should include representatives from the national sphere of government, and if so, whether those individuals should be politicians or technicians. The department clarified the confusion by stating the ad hoc committees functioned as a "dead-lock breaking mechanism" and as such the national sphere was necessary to reach a solution. They also stated that 30(2) clearly articulates that the representatives from each sphere of government would be decided on by the MEC in concurrence with the relevant governing bodies which would allow for the most appropriate representative to be selected. The committee agreed that provision be made that a representative from each of the affected municipalities be included on the committee.

MINUTES
Department's Draft Reply to Comments on Chapter 5 of the Bill on Integrated Development Planning
The Committee looked at the Department's Draft Reply to Comments on Chapter 5 of the Bill on Integrated Development Planning:

2. Over-Regulation and Over-Prescription
Mr Carrim (ANC) asked the department to clarify their response to SALGA and Isandla Institute's concern about over-regulation and over-prescription. The Department had stated: "Moreover the provision for the Minister to phase in different parts of the (Bill) Act and make it applicable to different categories, types and kinds of municipalities is precisely aimed at addressing contextual differences between and within provinces".

Mr Africa, from the department, said that this essentially referred to Clause 112, which dealt with regulations and guidelines.

Mr Carrim asked if the Department was implying that there could be different IDPs for Metros as opposed to for example Category B municipalities.

Mr Africa said that the Bill certainly accommodated for the fact that there could be different types of IDPs.

6 Alignment with other National and Provincial Legislation
This concern raised by several submissions focussed on the alignment of this chapter to other pieces of legislation addressing development planning such as the Development Facilitation Act of 1996 and provincial legislation. Mr Smith (IFP) pointed out that provincial plans could conflict with national IDPs, for example. The Bill had to recognise other planning processes, such as those underway in Kwazulu-Natal.

Mr Africa said that regulations could be used to deal with these types of inconsistencies.

Mr Carrim said that there needed to be an indication of whether the process of restructuring was on course in terms of IDPs in municipalities.

Mr Africa said that presently municipalities were continuing with the process of preparing IDPs. Some had decided to slow this process down. According to the Minister, national and provincial government should assist in the planning and drawing up of IDPs

Ms Manche, from the department, said that all the provinces had facilitation committees. The brief of these committees was essentially to look at the new municipality as a new entity with a new jurisdiction, and to start working towards these kinds of things. Essentially they had to work with MECs and start to think about addressing these issues and put in place some of the basic administrative structures. There was work being done in this regard.

8. Public Participation and Consultation Process
Mr Carrim said that it had to be decided whether, after IDPs were adopted, they would be made public. Secondly it had to be decided whether, after there was agreement on how IDPs would look, they had to be published for public comment since even though the public had to some extent been involved in the process, the average member of the community was not involved.

Mr Lyle (ANC) said that it was important that the council made sure that the process was inclusive and it was their responsibility to ensure that the process was not hijacked by certain groupings within society.

The Department felt that it was necessary to publish the IDPs for information but not for comment. It said that if the process up to then had been an inclusive one, there would be no need to publish IDPs for comment.

Mr Bhabha (ANC) felt that it was important to publish IDPs for public comment to avoid the possibility of the very hijacking referred to by Mr Lyle.

Mr Carrim wanted to know what the point was of publishing IDPs for comment. If there was a flood of public comment, did this mean that one had to go back to the drawing board?

Mr Lyle felt that publishing the IDPs had to be for information purposes. Objections could not be entertained.

Mr Ngubeni (ANC) said that implementation of IDPs should not be hampered by public comment. However the comments should be used constructively in assessing the implementation.

9. Role of the MEC in Assessing Integrated Development Plans
Mr Bhabha said that the department's aim was trying to make a government system work. People had to face their responsibilities in this respect. Thus the MEC had to ensure that he was on top of his work in assessing IDPs.

Mr Lyle said that the district council had to be involved to avoid the costly implications of an MEC not performing.

10. Local Economic Development in the IDP
Mr Africa said that one had to decide whether or not to include sectoral plans in IDPs. The relationship between Local Economic Development (LED) and IDP was looked at. It was felt that LED was a sectoral plan and was a crucial part of IDP.

11. Gender Disaggregated Data in the IDP
The committee decided that there was no need to include gender disaggregated data.

14. Land Restitution and the IDP
It was decided that 23(1)(e) would have to include "take account of land restitution".

Clause By Clause Analysis of Chapter Five of Municipal Systems Bill
Clause 20 Municipal planning to be developmentally orientated
Ms Borman (DP) said that 152(2) of the Constitution stated: " A municipality must strive, within its financial and administrative capacity, to achieve the objects set out in subsection (1)" And Subsection 1 set out various objects.

Ms Borman asked why the exact wording had not been used in Section 20.

Mr Lyle pointed out that this was covered by 20(1)(a) which stated: A municipality must undertake developmentally oriented planning so as to ensure that it - (a) strives to achieve the objects of local government set out in Section 152 of the Constitution.

Mr Carrim asked why "assists" was used in 20(1)(c)

The Department said that "assists" was used since the municipality, together with national and provincial government had to undertake developmentally oriented planning so as to achieve the progressive realisation of the fundamental rights contained in the Constitution.

Clause 21 Municipal planning in co-operative government
Mr Carrim felt that while municipal planning had to be aligned with and complement the development plans and strategies of other affected municipalities, the province and national government; likewise, national and provincial strategies had to be sensitive to local IDPs. He felt that if the latter did not happen, then there were Ministers who would simply ruthlessly impose their own wills on all municipalities.

Mr Carrim felt that generally Chapter 5 could be far more simply structured.
There was agreement that the idea of "co-operative government" had to be used consistently throughout the Bill.

Clause 22 Adoption of Integrated development plans
Mr D Olifant (ANC) asked who decided on the "prescribed period" for adopting IDPs.

Mr Carrim said that in the gazetted version of the Bill there was a reference to three months. He wondered why this had been dispensed with.

Mr Smith said that if one did the job properly, this was all very well and the time taken (whether it was done within a week, three months or a year) would not matter. If one put a short time frame on this and people were rushing to comply with a deadline, then poor initial planning would result which would be worse than having a lengthier process to formulate the plan. One therefore had to be careful on this issue.

Mr Carrim said that his view (and probably the view of the majority party ) was that if this period went beyond a year, parties were already one fifth into their terms of office.

Clause 22(1)(a)
The Chairperson said he does not think it is necessary to include all the words "links, integrates and co-ordinates" in the clause as they basically mean the same thing.

The Committee agreed that the clause be left as it is.

Clauses 22(1)(b), (c), (d) and (e)
Agreed to

Clause 22(2)
The Chairperson said the wording of this clause almost sounds like a new council has to scrap the development plan adopted by the previous municipality. He said the Department should find the right wording to say that the new municipality has to adopt the plan and it shall remain in force until replaced or amended by the new municipality.

Clause 23 - Core components of integrated development plans
Clause 23(1)(a), (b), (c)
Agreed to.

Clause 23(1)(d)
Ms GM Borman (DP) suggested that "plans" be put in the clause instead of "planning requirements".

Clauses 23(1)(e), (f), (g), (h)
Agreed to.

Clause 23(2)
Agreed to.

Clause 24 - Adoption of the process
Agreed to.

Clause 25 - Contents of process
Clause 25(1)(a), (b), (c)
Agreed to.

Clause 25(1)(d)
Mr Smith (IFP) asked why the process has to deal with matters that may be prescribed by the Minister?

The Department said that the Minister may prescribe additional requirements, in terms of clause 34, not covered by the process.

Clause 25(2)
A member observed that there seems to be no consultation or participation by communities around district municipalities.

The Department replied that every single municipality must prepare IDPs and district councils are not excluded from consultation with communities. The requirement of consultation must be read with section 84(1)(a) of the Municipal Structures Act. This is why there has been a move away from a fixed period to providing for the Minister to determine the period and in doing so may also differentiate between categories of municipalities.

Clause 26 - Provincial Supervision
Mr Bhabha (ANC) said this clause, providing for provincial supervision, should be placed somewhere else on the Bill. He pointed out that clauses 23, 24, 25, 27, 28 follow each other logically.

The Department agreed that the clause has to go somewhere else.

Clause 27 - Copy of process to be submitted to MEC for local government
Ms G Borman asked why the process has to be reviewed by the MEC instead of the result of such a process.

The Department responded that it might prove costly to have to review the result of a process that was flawed in the first place. It is better to review the process, thus preventing bad results.

The Chairperson felt that the 30 day time period afforded municipal councils to submit adopted processes to the Local Government MEC is too long.

Members agreed that 10 days would be enough for the municipalities to submit the adopted process to the MEC.

Mr Smith observed that it seems all a municipality has to do is formalistically comply with the procedure in clause 25. Once this is so the MEC has no grounds to object.

However, the Department pointed out that clause 27(2) requires that the process adopted by a municipal council must comply with requirements of Chapter 5.

Mr B Solo (ANC) suggested that there must be a clause to say that if the MEC does not respond within 30 days he/she is taken to have agreed to the plan. The Chairperson agreed that such a clause is required.

Mr Bhabha asked what happens if a municipality fails to comply? He suggested that there has to be an imposition from the MEC.

The Department responded that they think this is captured by clause 26 which says the MEC has to monitor the process.

Clause 27(4)
The Chairperson said he thinks the sub-clause should carry a time frame to say when the MEC should refer the municipality's objection to an ad hoc committee for its decision.

The Department felt that putting a time frame would be too onerous on the MEC because constituting an ad hoc committee is a process in itself.

Clause 28 - Drafting of integrated development plan
Clause 28(1)(a), (b), (c)
Agreed to.

Clause 28(2)
Mr Smith said he does not think clause 28(2)(a) should order national and provincial organs of state to change their functioning to meet planning processes of a particular municipality.

The Department responded that the clause refers to the entire municipal sphere not merely a single one. What the clause requires is that if national or provincial legislation requires municipalities to comply with planning requirements, the responsible national or provincial organ of state has to integrate such planning requirements with the planning processes of the municipality in terms of chapter 5 of the Bill.

Clause 29 Copy of integrated development plan to be submitted to MEC for local government
This will be referred to the sub-committee for further consideration.

Clause 30 Ad hoc committees
This clause deals with the establishment of an ad hoc committee by the members of an executive council (MEC) for local government to decide on an objection by a municipality.

Mr Bhabha (ANC) queried if the representative from the national government should be a politician or a technician. Mr Smith (IFP) suggested if the dispute was a policy issue, the representative should be a politician, but if it was a technical matter, then a technician should be chosen.

Concern was raised as to whether the national sphere should even be involved in resolving the dispute. The department responded that the third sphere must be involved, otherwise the dispute between the two factions would remain unresolved. The Chair agreed that the process should include all three spheres, but favoured the involvement of a technician since the dispute had already been through the political process without a solution being reached.

Mr Bhabha (ANC) was unconvinced. Since the ad hoc committee was created by the MEC, it seemed rational that the MEC should be responsible for assigning the necessary person. He felt it was a question of political accountability between the MEC and the ad hoc committee .

The Chair attempted to clarify the role of the ad hoc committee. He stated the committee was independent but representative of all three spheres of government. It would be created when no other political solution to a dispute could be reached. As outlined in 30(5), the decision of the committee was final.

The question of whether a politician or technician should be appointed to the committee could not be agreed upon. The Chair demanded that the department explain what they had in mind when they envisaged such a committee.

The department replied that it was their intention that the ad hoc committee would be a dead-lock breaking mechanism. They also stated that 30(2) clearly articulates that the representatives from each sphere of government would be decided on by the MEC in concurrence with the relevant governing bodies. As such, the representatives would not be limited to either politicians or technicians, but to the person that both agree to is best to handle the dispute.

Mr Bhabha (ANC) asked what provision had been made for national representatives abstaining from making a decision to resolve a dispute. Mr Smith (IFP) proposed a clause be added that ensures the committee must come to a decision. The committee agreed.

Mr Smith (IFP) questioned where the affected municipality comes into the process. No such arrangement had been envisaged.

Mr Bhabha (ANC) suggested that they expand the size of the committee to include a representative from each of the affected municipalities. Thus, the size of the committee would be dependent on how many municipalities were effected. He noted that the voting would remain the same since voting was sectoral.

The Chair was unconvinced that the process of decision making by the ad hoc committee was judicial enough. He felt the tribunal option that had been dropped from the gazetted version of the Bill was more appropriate. He referred this matter to the sub-committee to see if a better process could be conceptualised.

The committee agreed to clauses 31 through 33 as stated. Clause 34, Regulations and guidelines, was held over.

Chapter 6 Performance Management
A representative from the Department of Provincial and Local Government briefed the committee on performance management systems (see Appendix).

In the presentation, the need to have performance management systems were identified as, among others:
· to monitor the implementation of IDP.
· to improve organisational effectiveness and efficiency
· create performance culture
· promote accountability
· inform national policy
· inform capacity building strategy
· ensure dedicated involvement of provinces

Discussion
The Chair read through some of the proposals put forth during the public hearings. A query was raised surrounding a proposal by the Auditor-General that the powers and responsibilities of the Provincial Public Accounts Committee be catered for in this bill.

Mr Bhabha (ANC) supported the proposal stating that municipalities should be held accountable to and report to the Auditor-General. The Chair questioned whether this would be unconstitutional. The department responded that it was not unconstitutional, but that the Auditor-General had no right to enforce such a measure.

Mr Smith (IFP) noted that the Constitution would support the Auditor-General performing a monitoring role of municipalities in terms of 154(1) of the Constitution. Section 154(1) states that national and provincial governments, through legislation and other measures must support and strengthen the capacity of municipalities to manage their own affairs, and perform their functions. The Department thought that a monitoring role could also be performed in terms of Section 216 of the Constitution which deals with treasury control.

Mr Bhabha (ANC) felt that Section 216 was not sufficient since it dealt solely with financial oversight. He suggested that their needed to be performance management of a municipality as a whole, including the administrative and political sectors. The issue before the committee was, thus, how to monitor the municipality as a whole.

The Chair ended the discussion due to time constraints, but ensured the discussion would be continued in the next meeting.

The meeting was adjourned.

Appendix 1:
Department of Provincial and Local Government
Chapter 6: Performance Management

WHY PMS?
· Monitor Implementation of IDP and asses impact
· Improve organisational effectiveness and efficiency
· Promote accountability
· Create performance culture
· Inform intervention mechanisms
· Inform national policy
· Inform decisions about testing the market
· Inform capacity building strategy
· Ensure dedicated involvement of Provinces
· Improve performance
-Bottom-up pressure
-Publication and public pressure
-Benchmarking and learning
-Targetted capacity building
-Incentives and sanctions

PRINCIPLES
· Constitutional framework
· Link to IDP framework
· Non-punitive framework
· Developing system
· Variations between municipalities

COMPONENTS OF SYSTEM
· Indicator setting
· Target setting
· Measurement and reviews

LOGIC
· Purpose
· Obligation
· Components
· Reporting
· Action

IMPLEMENTATION
· Direct programme
· Setting national KPI's
· National capacity
-research
-Auditor General
-Training
-PIMMS
-Manual
· Logic Capacity
· Incentive system