To whom it may concern (c/o Llewellyn Brown)

 

Please note that these comments are made in my private capacity.

 

First, I must compliment the drafters for a Bill that will take us forward substantially in cementing the framework for intergovernmental relations that has evolved over the last decade.

 

Second, my comments are limited to the provisions around "implementation protocols" - S32 of the Bill.  I believe this set of provisions is a great step forward, especially when the requirement is that a protocol MUST be considered when "an implementation protocol will materially assist the organs of state participating in the provision of a service in a specific area to co-ordinate their actions in that area".  

 

My comments are strongly informed by whether the Bill will enable the kind of intergovernmental partnership currently being pursued under the banner of a Gauteng Global City Region (See the Gauteng Premier's 2005 Opening Address to the Legislature as reference).  More specifically, the issue is whether the Sec32 clauses are best frameed to enable a Gauteng municipality to initiate a S32 protocol discussion to address an issue that falls across the powers and functions of the spheres of government and organs of state, such as the need for an integrated public transport system, or a co-ordinated approach to, say, "improving responses to the needs of urban self settled refugees and asylum seekers" (rights of refugees are enshrined in the Refugees Act but responsibility for these does not fall to any one sphere of government).

 

My comments are:

 

1)  The joint development of a policy, and real intergovernmental planning, are just as important as implementation.  Although S32.3(c) (The protocol must "give an outline of the priorities, aims and desired outcomes"), will automatically mean that policy will be jointly defined within the process of formulating a protocol, the term "implementation protocol" may the use of protocols to be limited to when a policy has already been decided by one of the spheres of government.  Gauteng Provincial Government and Gauteng Municipalities may want a protocol that simply formalises an intergovernmental commitment to work together to build a Gauteng Global City Region, with the details of the actual strategy and the implementation responsibilities flowing from this, still to be decided at a later point.  The utility of protocols should not be limited.  So it may be better to change the wording to "intergovernmental protocol", or "policy, planning and implementation protocols".   

 

2)  S32.2 gives a number of occasions when a protocol must be considered.  Do these cover all possible occasions when a protocol may be useful??  Following the lead of S32.2(b) the following provisions could added:

(2) An implementation protocol must be considered when— ...
(x) an implementation protocol will materially assist local government or any municipality in complying with its consitutional obligations to participate in national and provincial development programmes;

(x) an implementation protocol will materially assist a municipality to exercise its rights under S156(5) of the Consitution, that it may exercise any power reasonably necessary for, or incidental to, the effective performance of its functions;

(x) an implementation protocol will material assist any municipalities to co-operate among themselves to more effectively and efficiently meet their consitutional objects under S152(1&2) of the Constitution.

 

3)  It could be useful for the Act to distinquish between circumstances when protocols must be considered and other circumstances when they may be considered.

 

4)  S32.3(e) says the protocol must "provide for oversight mechanisms and procedures for monitoring the effective implementation of the protocol".  I would go one step further and suggest that the protocol must also "provide for mechanisms and procedures to hold participating organs of state accountable for their commitments under the protocol"

 

Kind regards

 

Graeme Gotz

083 399 8000