PORTFOLIO COMMITTEE ON PROVINCIAL AND LOCAL GOVERNMENT, NATIONAL ASSEMBLY
SUBMISSIONS BY
THE COMMUNITY LAW CENTRE, UNIVERSITY OF THE WESTERN CAPE
ON
INTERGOVERNMENTAL RELATIONS FRAMEWORK BILL, 2004
The Community Law Centre welcomes the introduction of the Bill and its general provisions. The Centre would, however, like to make a few suggestions which would align the Bill closer to its constitutional mandate.
Clause 3 refers to the "concept of cooperative government". Cooperative government more than merely a concept; it is set of concrete principles set out in section 41(1) of the Constitution. A more appropriate reference would be to the "principles of cooperative government".
One of the objects include "monitoring implementation of policy and legislation" (clause 3(d)). As an aspect "to facilitate co-ordination in the implementation of policy and legislation", it is not objectionable. Clearly, the national and the provincial governments must coordinate their monitoring activities in respect of local government. (The current practice suggests the absence of such coordination.) The principle should be clear; the monitoring of one sphere of government by another does not form the part of Chapter 3 of the Constitution. Monitoring is specifically provided for in other sections of the Constitution. The consultative nature of IG forums could be compromised if they are used as monitoring mechanisms by "senior" levels of government. Issues emerging from monitoring through other mechanisms could be the proper subject for discussion at IG forums.
In view of this point of departure, the provisions of clause 19(a) do not fit in. It provides that a Premier’s intergovernmental forum (PIF) must "report annually to the President’s Co-ordinating Council on progress made with the implementation of national policy and legislation within the province." First, this creates the impression that an IG forum forms part of a monitoring system. Second, it detracts from the primary function of the PIF – its consultative function between the provincial government and municipalities. Third, there are many other better suited and more accurate methods to determine whether provinces and municipalities are making progress with the implementation of national policy and legislation.
The way the national intergovernmental structures are conceived may not promote their consultative objective.
The PCC is conceived of as a consultative forum "for the President" (clause 6). The same approached is followed with regard to MinMECs; their role is described as "a consultative forum for the Cabinet member responsible for the functional area" (clause 10).
The object of an IG forum should be, as stated in clause 8(1) with reference to MinMECs, "to promote and facilitate intergovernmental relations in [a] functional area". Intergovernmental relations may not be facilitated if the forum is deemed to be "a consultative forum for the Cabinet member" only (clause 10). It suggests that the forum serves only the interests of one party to the forum, and only one party derives benefit from it. From the DPLG Audit Report of 1999 it emerged that the best functioning MinMECs were those where there were an ethos and practice of joint ownership.
The principle is correctly stated in the Premier’s IG forum. Clause 17 defines the role of this Forum as "a consultative forum for the Premier of a province and local government (emphasis added). The object is clear: the forum is a consultative forum for both spheres of government. To give effect to this principle, it should also be open to the mayors to suggest items for the agenda (as is indeed the provided for in clause 18(2). The provision is also present in the PCC (clause 7(2) and the MinMECs (clause 13(2)).
This principle is also correctly stated with regard to district IG forums: "The role of a district intergovernmental forum is to serve as a consultative forum for the district municipality and the local municipalities in the district to discuss and consult each other on matters of mutual interest" (clause 24(1) emphasis added).
By expressing the objective of IG forums as consultative forums for all parties concerned, does not detract from the leadership role that the President, Minister, Premier or District mayor must perform in convening and managing the forum.
Clause 29(2) clearly states that an IG forum is not an executive decision-making body. It is perforce not an implementation body. The provision that implementation of an implementation protocol may be "coordinated by an appropriate IG forum" (clause 33(4)) does not fit well with this principle.
The implementation of a protocol is clearly an executive act done in terms of the protocol. The parties to the protocol (which may or may not be the same as the IG forum) are thus responsible for its coordinated execution. The more appropriate role of a forum would be to initiate and facilitate the conclusion of such a protocol. Once concluded the implementation of a protocol will be done by the parties to the protocol who may or may not be members of the IG forum. Even if they are all members of the IG forum, they must implement the protocol not as members of the IG forum but in their position as signatories of the protocol. It is suggested that subclause (4) be deleted.
The object of an implementation protocol is to facilitate joint projects, where a service to the public is best delivered through the combined effort of more than one organ of state. As such it is not a mechanism, as foreseen in clause 34(b), for the delivery of support that national and provincial government should provide local government in terms of the Constitution.
Clause 35 of the Bill raises a number of questions.
First, is it necessary? It is already stated as a general principle in clause 4(a) that due consideration should be given to the interests of other organs of states and that the necessary consultation be done.
Second, if it is necessary to consider specifically what the impact of a policy or legislation may have on the functional, institutional or financial integrity and coherence of local government, why confine this duty to provincial governments only? In law and policy it is the national sphere of government (through its various line departments) that has the greatest impact on local government.
Clause 36 states that the Premier is responsible for ensuring the coordination of intergovernmental relations within the provincial government with the national and local governments. This responsibility does not flow from this statute, but from the Constitution itself (s 125(2)(e)). Coordination of government is, after all, the role of the head of government, whether it is in the national, provincial or local government. The same argument applies to the role of the district mayor (clause 37).
Although it is repetitious of the Constitution, it may well be an important provision, in light of the current lack of coordination, to highlight the integrative role that the Premiers must play. On the other hand, this provision does not fit in with the rest of the Bill which is not concerned with the internal functioning of any of the organs of state. If it is thought necessary, the same provision should apply to the President; he or she must perform a similar integrative role with regard to coherent national government relations with provincial and local government (which is also lacking).
Professor Nico Steytler
Director
Community Law Centre
University of the Western Cape
14 March 2004