IMATU’S SUBMISSION ON THE PUBLIC SERVICE AMENDMENT BILL AS PUBLISHED IN
GOVERNMENT GAZETTE NO. 29259 (OF
1. INTRODUCTION
“The advent of the Constitution has
enhanced rather than diminished the autonomy and status of local government
that it obtained under the interim Constitution.
In the judgement of Ex Parte
Chairperson of the Constitutional Assembly: in re Certification of the
Constitution of the Republic of South Africa, 1996 (4) SA 744 (cc) this Court
stated:
“(Local Government) structures are
given more autonomy in the (New Text) than they have in the (interim
Constitution) and this autonomy is sourced in the (New Text) and not derived
from anything given to (Local Government) structures by the provinces.
Subsection 40(1) of the Constitution
entrenches the institutions of local government as a sphere of government and
pronounces all spheres of government to be distinctive, interdependent and
interrelated. Subsections 41(e) and (g)
articulate and preserve the geographical, functional and institutional
integrity of local government. In turn,
subsections 43(c) and 151(2) confer original legislative and executive
authority on municipal councils. The Constitution expressly precludes the
national or a provincial government from impeding the proper exercise of powers
and functions of municipalities.
Thus a municipality has the right to govern the local government affairs
of its area and community.
The Constitution has moved away from
a hierarchical division of governmental power and has ushered in a new vision
of government in which the sphere of local government is interdependent,
inviolable and possesses the constitutional latitude within which to define and
express its unique character subject to constraints permissible under our
Constitution. A municipality under the
Constitution is not a mere creature of statute otherwise moribund save if
imbued with power by provincial or national legislation. A municipality enjoys “original” and constitutionally
entrenched powers, functions, rights and duties that may be qualified or
constrained by law and only to the extent the Constitution permits.” (Our
emphasis)
City of
Subsection
40(1) of the Constitution of South Africa states:
“In the Republic, government is
constituted as national, provincial and local spheres of government which are
distinctive, interdependent and interrelated”
The
Independent Municipal and Allied Trade Union (“IMATU”) is a trade union
representing 68 000 local government employees.
There are only two recognised trade unions in the local government
sector, being IMATU and the South African Municipal Workers Union
(“SAMWU”).
Together
IMATU and SAMWU represent approximately 190 000 employees in the local
government sector (some 95% of all employees employed in the local government
sector).
It
is the stated intention of government to enact a Single Public Service Bill by
2009. IMATU opposes the intended
creation of a Single Public Service. The
reasons for IMATU’s opposition are set out in detail below.
IMATU
is of the view that the promulgation of this Bill (the Public Service Amendment
Bill – “the PSAB”) will pave the way for the Single Public Service Bill. IMATU
wishes to take this opportunity to state its opposition to the anticipated
single public service. We also submit herewith our comments on the PSAB.
2. LOCAL GOVERNMENT IN
ITS HISTORICAL CONTEXT
Before
1994 municipalities in the
From
1990 until 1994 (during which period the democratisation of
The
adoption of the interim and final Constitutions defined the role and mandate of
local government in respect of the provision of certain basic services.
Part
B of Schedules 4 and 5 of the final Constitution specifically mandated local
government (municipalities) to deliver certain services to the inhabitants and
citizens of that particular community.
The
final Constitution places an obligation upon parliament to adopt and promulgate
national legislation to give effect to the constitutional mandate of local
government to deliver certain constitutionally mandated services.
This
led to the adoption of inter alia the
Municipal Systems Act and the Municipal Structures Act during the period
between 1998 and 2000.
One
of the purposes of the legislation was to reduce the number of municipalities
in order to give effect to the constitutional mandate of providing better and
more efficient services to communities in the Republic.
During
1994 there were approximately 800 municipalities within
The
new municipal legislation disbanded this plethora of municipalities and created
the current 284 municipalities that were divided into three categories, namely
metropolitan, local and district municipalities.
Local
government employees were subjected to continuous changes during the
restructuring process (from 1994 to 2002). Some municipalities underwent three
or more major restructuring exercises over this eight year period. To date
municipal categorization for purposes of wage curves, job evaluations,
placements and parity has not been adequately addressed (or at all), this
approximately ten years after the new dispensation commenced.
National
government placed an obligation on local government to assist with the broader
job creation and poverty alleviation goals. National government during the
growth and development summit in 1993 instructed all sectors of the economy to
consider staging sector specific development summits. The purpose of these
summits was to identify the contribution that a sector could make towards poverty
alleviation and job creation.
Local
government, under the auspices of the South African Local Government Bargaining
Council (SALGBC), held a sector specific summit in 2005. The objective of this summit was to provide
“quality, affordable and sustainable services to the citizens of the Republic”.
Organised
labour (IMATU and SAMWU) supported these principles and signed an accord at the
end of the summit to give effect to these principles. IMATU reaffirms its
commitment to improved and sustained service delivery. IMATU also reaffirms its commitment to job
creation and poverty alleviation goals, which have been set for 2014.
3. NATIONAL GOVERNMENT’S VISION FOR
LOCAL GOVERNMENT IN 2006
National
government (and cabinet) approved the concept of a single public service and
the integration of all spheres of government into a single public service.
The
main aims and objectives of the single public service, according to the
proponents thereof, are to:
- Improve and enhance
integrated service delivery;
- Provide a more cohesive
workforce, which has mobility in respect of service delivery requirements and
demands; and
- Enact and promulgate over-arching
legislation to achieve these goals.
4. IMATU’S VIEWPOINTS ON THE SINGLE
(INTEGRATED) PUBLIC SERVICE
IMATU
opposes the creation of a single public service. The main reasons and arguments in support of
this opposition can be summarised as follows:
-
The negative impact on service
delivery requirements;
-
Impending and obstructing the
poverty alleviation and job creation goals and objectives set for 2014;
-
The infringement of certain
provisions of the Constitution;
-
The infringement of principles of
employment legislation (specifically section 197 of the Labour Relations Act);
-
The infringement of sound and proper
labour relations principles and practises currently applicable in the local
government sector;
-
The infringement of and
disestablishing of existing collective bargaining arrangements within the local
government sector;
-
Adversely affecting existing and accrued
rights of local government employees in respect of retirement fund benefits and
arrangements;
-
Adversely affecting the right of
voluntary association in respect of contribution to and membership of medical
schemes;
-
Adversely affecting the geographical
and institutional integrity of municipalities;
-
Adversely affecting the
constitutional separation of powers between the three tiers of government;
-
The apparent absence of key national
government departments in the transfer process (i.e. Department of Provincial
and Local Government);
-
The lack of consultation with
affected trade unions in the local government sector and other relevant
stakeholders; and
-
The adverse effect on human resources
principles and practises applicable within the local government sector.
4.1 NEGATIVE
IMPACT ON SERVICE DELIVERY REQUIREMENTS
Why
does local government fail to deliver upon constitutionally mandated services? IMATU submits that the starting
point for the reply to this question relates to the appointment of Municipal
Managers that often are not sufficiently experienced or qualified to lead
municipalities in the new municipal dispensation.
Municipal Managers and managers
appointed in terms of Section 57 of the Municipal Systems Act often do not have
the capacity and expertise to sustain continued and quality service delivery.
These
managers are in most instances appointed from outside the local government
environment, which limits their ability to deal with the unique operational
needs and challenges that municipalities face.
These
managers are very often appointed without possessing the prerequisite
knowledge, expertise or experience required to ensure successful service
delivery within the local government sector. The ability of these managers to
deliver the required services are also often impeded and obstructed by the
political interference of councillors and municipal councils.
IMATU
submits that the process of appointing Municipal Managers (and other managers
appointed in terms of Section 57 of the Systems Act) needs to be revisited. The
ability to ensure the delivery of quality and affordable services is imperative
and should not be impeded by a lack of knowledge and expertise within the local
government sector.
The
Accelerated and Shared Growth Initiative of South Africa (ASGI-SA) needs to be
fast-tracked and implemented to ensure continued and sustained service delivery
within local government.
IMATU
also submits that the knowledge and expertise of retired and erstwhile
municipal employees should be utilised and, if necessary, they should be
re-employed to ensure sustained and continued service delivery.
Graduates
within
The
institutional integrity and capacity of municipalities should be strengthened
through the intervention of national and provincial government and should not
be impeded by the creation of a single public service.
If
a particular municipality experiences a lack of financial resources to deliver
sustainable services then it should be supported by national and provincial
government through grants and interest-free loans.
The
staff compliments of all municipalities need to be filled as a matter of
urgency to ensure continued and sustained service delivery (the vacant posts on
the staff compliments amount to more than 30% of all posts, which is totally
unacceptable).
Furthermore
the ability of other national and provincial government departments to deliver
continued and sustained services is doubtful.
(Examples of this are the Department of Home Affairs which cannot
eradicate its backlog and deliver the required amount of identity books and
passports, the inability of certain provincial health departments to deliver
basic health care services, the inability of the South African Police Services
to deal with crime, etc.).
If
municipalities lack the ability to deliver the required services, then it is
submitted that it is due to the lack of expansion of the workforce within the
sector.
Furthermore
municipalities are not given the required resources to cater for and adapt to
geographic settlement patterns and urbanisation. The influx of citizens to the
metropolitan and larger areas requires and demands a rapid growth of the number
of municipal employees and resource allocation within these municipalities.
4.2 IMPEDING AND OBSTRUCTING POVERTY
ALLEVIATION AND JOB CREATION GOALS AND OBJECTIVES REQUIRED BY 2014
Municipalities
are failing to assist in achieving optimal employment levels. The workforce
within local government is shrinking rapidly and workers that are lost through
external factors such as natural attrition are not replaced (in 1994 local
government employed approximately 250 000 employees – currently approximately
190 000 employees are employed in the sector).
This
decline in employees impedes on the ability to provide basic services such as
water supply, sanitation, refuse removal, emergency services and
electrification.
The
decline in the workforce also impedes on the ability to deliver on the intended
investment in infrastructure such as public roads and transportation.
The
decline in the workforce and resultant non-commitment to the expansion thereof
also impacts directly on poverty alleviation.
The municipalities are not in a position, due to the lack of human
capital, to play a meaningful role in the delivery of houses, which is one of
the aims of poverty alleviation.
Municipalities
will be directly involved in service delivery during the 2010 Soccer World Cup
by providing inter alia, refuse removal, traffic co-ordination, water,
electricity and sanitation services.
This requires a rapid growth in the number of municipal employees.
The
increased investment in infrastructure, which must enable
Municipalities
should also play an active role in the growth and expansion of the local
government sector by creating “quality jobs for quality services”.
Municipalities
must be evaluated in respect of their constitutional mandate only after the
lack of capacity in respect of human capital and financial resources has been
addressed.
Municipalities,
as an organ of state, are obliged to and must play a vital role in poverty
alleviation and job creation.
Municipalities will be in a position to play a meaningful role only
after the lack of capacity in certain fields is addressed.
The
creation of a greater public service will create an even bigger bureaucracy,
which will impact negatively on the question as to who is responsible and
accountable for the delivery of a particular service.
Municipalities
are a distinctive and separate sphere of government that are accountable to the
inhabitants of their geographical area of jurisdiction - for the delivery of a
service. To remove this fundamental
system of checks and balances will destroy the system of ward councils and the
accountability of politically elected councillors to the communities that have
elected them.
4.3 THE
INFRINGEMENT OF CERTAIN PROVISIONS OF THE CONSTITUTION
Section
151(2) of the Constitution vests municipalities with executive and legislative
authority. The creation of a single public service will interfere with this
authority.
Section
152(1)(b) states that a municipality must provide services to communities in a
sustainable manner. The creation of a single public service will interfere with
this mandate.
Section
40(1) of the Constitution states that government is constituted as the
national, provincial and local spheres of government. These spheres are distinctive, interdependent
and interrelated. The creation of a
single public service will interfere with the three distinctive spheres of
government.
In
terms of Section 151(3) of the Constitution municipalities have the right to
govern, on their own initiative, the government affairs of their communities.
The creation of a single public service will interfere with this obligation and
function.
In
terms of Section 151(4), both national and the provincial governments may not
compromise or impede a municipality’s ability to perform its functions or exercise
its duties. The creation of a single public service will be in direct contrast
to this principle.
In
terms of Section 154(1) of the Constitution, national and provincial government
must strengthen the capacity of local government. The creation of a single public service will
not achieve this objective.
A
municipality has the executive authority to administer and provide the services
listed in Part B of schedule 4 of Part B of schedule 5 of the
Constitution. The creation of a single
public service will be in direct contrast to this mandate.
(IMATU’s
view on the legality of the Amendment Bill is discussed in more detail below).
4.4 THE
INFRINGEMENT OF PRINCIPLES OF EMPLOYMENT LEGISLATION (SPECIFICALLY SECTION 197
OF THE LABOUR RELATIONS ACT)
The
Labour Relations Act (”the LRA”) determines the legal consequences if a
business is transferred as a going concern and the subsequent transfer of
contracts of employment.
Section
197 of the LRA states that existing collective agreements are part and parcel
of this transfer process, unless an agreement to the contrary is concluded.
The
Public Service Amendment Bill empowers the Minister with the authority to
determine the terms and conditions of a transfer and the applicable conditions
of service. This power is in direct
contravention of the provisions of the LRA (which is national legislation). In
terms of Section 210 of the said Act, the LRA is subordinate only to the
Constitution. All other legislation is
secondary to national legislation.
The
Courts have interpreted Section 197 of the LRA to the effect that employment
contracts are automatically transferred when the business is transferred as a
going concern. In terms of the Public
Service Amendment Bill, the Minister may unilaterally determine the conditions
of service of employees, in contravention with section 197 of the LRA.
4.5 THE
INFRINGEMENT OF SOUND AND PROPER LABOUR RELATIONS PRINCIPLES AND PRACTISES
CURRENTLY APPLICABLE IN THE LOCAL GOVERNMENT SECTOR
The
parties to the South African Local Government Bargaining Council (“the SALGBC”)
have concluded various collective agreements over the past five years, which
regulate labour relations within the local government sector.
The
most important of these are:
- The conditions of service
collective agreement (creating uniform conditions throughout the country of
various core conditions of service);
- The disciplinary code and
grievance procedure collective agreement;
- The rules of conduct of
proceedings pending before the SALGBC;
- The medical scheme
rationalisation collective agreement; and
- The job evaluation collective
agreement
The
creation of a single public service will create uncertainty and a loss of
morale amongst municipal employees due to the uncertainty regarding which
agreements will apply in a particular scenario (SALGBC versus PSCBC
arrangements – and the Public Service Act).
The
SALGBC is accredited to perform dispute resolution functions relating to unfair
labour practices and unfair dismissals. The creation of a single public service
will also create uncertainty as to how to approach dispute resolution.
4.6 THE
INFRINGEMENT OF AND DISESTABLISHING OF EXISTING COLLECTIVE BARGAINING
ARRANGEMENTS WITHIN THE LOCAL GOVERNMENT SECTOR
Organised
labour (IMATU and SAMWU) represents at least 95% of municipal employees within
the local government sector. The remainder of the employees are subject to
agency shop arrangements as set out in the LRA.
The 284
municipalities are members of the South African Local Government Association (“SALGA”). SALGA is a registered employers’ organisation
in terms of the provisions of the LRA.
Organised
labour and the employers are able to engage on issues of collective bargaining
under the auspices of the SALGBC.
This
collective bargaining arrangement is operative and functioning well. For example, a multi-year wage collective
agreement was concluded in 2006 (in force and effect until June 2009).
The
creation of a single public service will impede on this well established and
functioning collective bargaining dispensation.
4.7 ADVERSELY
AFFECTING EXISTING AND ACCRUED RIGHTS OF LOCAL GOVERNMENT EMPLOYEES IN RESPECT
OF RETIREMENT FUND BENEFITS AND ARRANGEMENTS
The
Public Service Act requires compulsory membership of the Government Employees
Pension Fund (GEPF). The transfer of employment of municipal employees to the
public service will compel employees to join and contribute to the GEPF.
This will
entail a withdrawal and termination of membership from existing retirement
funds within the local government sector.
This
withdrawal will also negatively affect the broader community (pensioners of
these funds).
The scope
and impact of this withdrawal needs to be assessed by experts in the retirement
fund industry with specific emphasis on the rights, benefits and tax status of
current members and pensioners.
This
right of the minister to arbitrarily transfer members to the public service,
without considering the scope and impact of such action, is unconstitutional,
IMATU submits, and is a flagrant disregard of just and fair administrative
action.
Municipal
employees, employed prior to 1998, also have a special tax dispensation in
terms of the provisions of the Income Tax Act.
Compulsory transfers to the GEPF will jeopardise these benefits
4.8 ADVERSELY
AFFECTING THE RIGHT OF VOLUNTARY ASSOCIATION IN RESPECT OF CONTRIBUTION TO AND
MEMBERSHIP OF MEDICAL SCHEMES
The
number of medical schemes recognised and accredited in the local government
sector was collectively bargained in the SALGBC and certain thresholds were set
during this process.
If
municipal employees are transferred to the public service then the ability of
medical schemes to meet threshold requirements would be undermined due to the
inability to meet such requirements within the public sector. Contribution
rates in local government and the public sector also differ.
The
Minister should adhere to the principle of lawful and just administrative
action before any decision is taken that could impact on the rights of
employees.
4.9 ADVERSELY
AFFECTING THE GEOGRAPHICAL AND INSTITUTIONAL INTEGRITY OF MUNICIPALITIES
The
creation of a single public service will create uncertainty as to who will be
responsible for delivering a service in a particular geographical area.
Municipalities
have well defined geographical areas of jurisdiction, in terms of the
Demarcation Act. Municipalities are obliged to deliver services within that
particular area.
A
creation of a single public service will create an opportunity to avoid
responsibility and accountability for delivering a constitutionally mandated
service.
4.10 ADVERSELY
AFFECTING THE CONSTITUTIONAL SEPARATION OF POWERS BETWEEN THE THREE TIERS OF
GOVERNMENT
The
proposed amendments to the Public Service Act envisage the creation of national
and provincial government agencies. These agencies will be assigned certain
services by the President or other members of the Executive.
This will
create confusion and uncertainty as to which sphere of government is assigned
the jurisdiction to provide a specific service.
The Constitution clearly assigns the provision of services to national,
provincial or local government.
The
dilution of these well-defined responsibilities of the various organs of state
for the provision of a specific service is not conducive to the delivery of
quality and affordable services.
4.11 THE
APPARENT ABSENCE OF KEY NATIONAL GOVERNMENT DEPARTMENTS IN THE TRANSFER PROCESS
(DPLG)
In
IMATU’s view the DPLG is notably absent from the process of inter alia
affecting amendments to the Public Service Act.
The DPLG is a key stakeholder and it represents the interests of SALGA
and municipalities.
The
exclusion of DPLG is in flagrant disregard of the principles of transparent and
accountable government. It is also in
disregard of fair, just and lawful administrative action.
4.12 THE
LACK OF CONSULTATION WITH AFFECTED TRADE UNIONS WITHIN THE LOCAL GOVERNMENT
SECTOR AND OTHER STAKEHOLDERS
DPSA in
its document entitled “Towards legislation for the Single Public Service”
states that labour unions have been consulted (paragraph 1.23). This is a blatant lie, which needs to be
explained. IMATU, as an affected trade
union within the local government sector has been consulted on neither the
proposed integration of services nor the contents of the suggested enabling
legislation designed to achieve such integration.
IMATU is furthermore
not aware of any FEDUSA affiliate within the PSCBC that has been consulted on
the process. IMATU is also not aware of any role players within the retirement
fund or medical scheme industries that have been consulted.
This is a
disregard for co-operative governance and transparency and the right to just
and lawful administrative action enshrined in the Constitution.
4.13 THE
ADVERSE EFFECT ON HUMAN RESOURCE PRINCIPLES AND PRACTISES APPLICABLE WITHIN THE
LOCAL GOVERNMENT SECTOR
The TASK
Job Evaluation system has been agreed to and adopted as the job evaluation
system, which will be applied in all municipalities.
The
categorisation of municipalities is well underway and should be finalised
during 2007. Pay curves are also in the
process of being determined.
The human
resource environment should be standardised throughout all municipalities
during 2007.
The
proposed integration of a single public service will throw the whole human
resource environment in municipalities into disarray.
5. THE
CONSTITUTIONALITY OF THE PUBLIC SERVICE AMENDMENT BILL, 2006 (“the PSAB”)
5.1 GENERAL
This
section addresses the question whether the provisions of the PSAB are
inconsistent with the Constitution, with specific reference to the powers and
functions of local government. Although
the focus of this section is the aforesaid, other points of concern as to the
said Bill’s inconsistency with the Constitution will also be raised.
5.2 LOCAL
GOVERNMENT A SPHERE OF GOVERNMENT
Section
40(1) of the Constitution determines that government is constituted as
national, provincial and local spheres of government, which are distinctive,
interdependent and interrelated.
The
reference to sphere and not level of government is aimed at emphasising a new
relationship between the different branches of government. It indicates a radical shift away from the
hierarchical division of government structures and powers of the
pre-constitutional regime. It also
signals a new era of a co-operative and distinctive governmental structure that
is afforded constitutional recognition and protection. In such a relationship each sphere of
government has its own distinctive status, powers and functions, which are entrenched
in the Constitution.
The
higher government institutions are not automatically permitted to encroach or
intervene in the powers or functions of lower government institutions. The reference to sphere of government refers
to a government of distinctiveness and co-operation, in contrast with a
government of subordination.
(Bekink,
Principles of South African Local Government Law, page 64)
5.3 LOCAL
GOVERNMENT’S ROLE
Local
government’s role and functions are inter alia dealt with in
Sections 151(3) and (4), 152(1), 153(a), 154(1) and 156(1) of the Constitution:
“151(3) A
municipality has the right to govern, on its own initiative, the local
government affairs of its community, subject to national and provincial
legislation, as provided for in the Constitution.
(v) The
national or a provincial government may not compromise or impede a
municipality’s ability or right to exercise its powers or perform its
functions.
152(1) The
objects of local government are –
(a) to
provide democratic and accountable government for local communities;
(b) to
ensure the provision of services to communities in a sustainable manner;
(c) to
promote social and economic development;
(d) to
promote a safe and healthy environment; and
(e) to
encourage the involvement of communities and community organisations in the
matters of local government.
153 A
municipality must –
(a) structure
and manage its administration and budgeting and planning processes to give
priority to the basic needs of the community, and to promote the social and
economic development of the community;
154(1) The
national government and provincial governments, by legislative and other
measures, must support and strengthen the capacity of municipalities to manage
their own affairs, to exercise their powers and to perform their functions.
156(1) A
municipality has executive authority in respect of, and has the right to
administer –
(a) the
local government matters listed in Part B of Schedule 4 and part B of Schedule
5; and
(b) any
other matter assigned to it by national or provincial legislation.”
The role
of local government in democratic systems is many facetted. Some of the important aspects are the
following:
- Local
government is the branch of government that functions the closest to the inhabitants/constituents
of a specific area and is involved with the rendering of a wide variety of
services that materially affect the
lives of all people residing in its jurisdiction;
- Local
authorities are often seen as local community-based management and
administrative institutions which involve both political and bureaucratic
components. Through these institutions, community actions and needs are
promoted and regulated. In this capacity
local governments are the best positioned to provide and ensure the sustainable
provision of essential services to their relevant communities;
- Through
the exercise of their powers and functions, local governments ensure access to
and bring the decision-making processes closer to the local residents. This allows for better participation and
involvement by local residents in the local government processes and decisions
that affect their lives on a daily basis.
By its nature, local government is best suited to allow and encourage
local participation in all democratic processes and to provide an important
training ground for democracy and political experiences.
(Bekink, pages 61 and 62)
As is
apparent from the provisions of Section 152(1) and 153(a) of the Constitution,
local government has a particular role to fulfil in respect of the provision of
basic services to and the development of local communities.
In their
capacity as the third and lowest sphere of government and the one that
functions closest to local communities, municipal governments have often been
described as comprising the sphere of government that is tasked mainly with the
development and provision of services to communities. Some writers have even
commented that if a municipality cannot or does not perform its service
provision obligations, it should forfeit its right to exist. This idealism is strongly entrenched in the
new constitutional framework that has been devised for local government.
(Bekink, page 281)
It is the
task of all local government institutions to work individually and in co-operation
with their local communities, to ensure sustainable ways to meet the needs and
to improve the quality of life of all people of
(Bekink, page 69)
In terms
of the provisions of Section 154(1) of the Constitution, national government
must support and strengthen this role of local government to provide services
to communities.
Both the
provisions of the Local Government: Municipal Systems Act, No. 32 of 2000 (“the
Systems Act”) and the Local Government: Municipal Structures Act, No. 117
of 1998 (“the Structures Act”), acknowledge the role of local government
to provide services to and develop communities.
The preambles of both these statutes emphasise this role of local
government.
In
emphasising this role the Systems Act goes further and acknowledges that in
order to do so the active engagement of communities in the affairs of
municipalities and in particular in planning, service delivery and performance
management is required, as well as that there is a need to create a more
harmonious relationship between municipal councils, municipal administrations
and the local communities. This
reference is in the preamble of the latter Act.
In
fostering a close relationship between local authorities and local communities
served by them, Section 16(1) of the Systems Act obliges municipalities to
encourage and create conditions for the local community to participate in the
affairs of the municipality by inter alia participating in the
preparation, implementation and review of an Integrated Development Plan (“IDP”).
Some of
the advantages of establishing proper IDP’s are:
- They
are a vital tool to ensure the integration of local government activities with
other spheres of development planning at other levels by serving as a basis for
communication and interaction;
- They
serve as a basis for engagement between local government and the citizenry at
local level and with various stakeholders and interest groups. Participatory and accountable government has
meaning only if it is related to concrete issues, plans and resource
allocations.
(Bekink, page 76)
For local
government to successfully fulfil its developmental mandate, requires of it to
be the spearhead in the provision of services to and the engagement of local
communities. Any service delivery model
that attempts to compromise local government’s role as such spearhead, is
inconsistent with the Constitution.
It is
difficult to foresee national government rendering functions close to the point
of service delivery by virtue of a separate government agency, such as a large
public hospital, without impeding local government’s role in service delivery
on a community level. By virtue of
national government’s powerful position vis-ŕ-vis local government and
its stated intention to bring service delivery directly to the people by virtue
of a separate agency, local government’s role in this regard will be usurped.
The
Structures Act, as an expression of the role and functions allocated to local
government in terms of the provisions of the Constitution, determines (see
Section 93(2)) that if any conflict relating to the matters dealt with in the
said Act arises between it and the provisions of any other law, except the
Constitution and Chapter 2 of the Local Government: Municipal Structures
Amendment Act, 2000, the provisions of the Structures Act shall prevail.
Where the
legislature enacts legislation in an effort to meet its constitutional
obligations, and does so within the constitutional limits, the courts must give
full effect to the legislative purpose.
(National
Education Health and Allied Workers Union v University of
Where the
Constitution has determined the functions to be fulfilled by local government
(see Section 156(1) and part B of Schedules 4 and 5), the provisions of the
Structures Act and the Systems Act express such role and functions, and the
national legislature is obliged by virtue of the provisions of Section 154(1)
of the Constitution, to support and strengthen the capacity of municipalities
to exercise their powers and perform their functions, as well as Section 151(4)
of the Constitution which precludes national government from compromising or
impeding a municipality’s ability or right to exercise its powers and to
perform its functions, the national legislature must guard against enacting
legislation that would compromise or impede municipal powers, to the extent
indicated in the Constitution as well as the provisions of the Systems Act and
the Structures Act.
Any
attempt by the national government to change the status, powers, functions or
existence of local authorities must comply with the overall constitutional
obligations, and only if a constitutional amendment is approved can such
rights, powers or existence be limited or even taken away.
(Bekink, page 90, footnote 6)
To the
extent that the PSAB attempts to compromise or impede a municipality’s ability
or right to exercise its powers or perform its functions, this would be
inconsistent with the Constitution.
5.4 PSAB
IMPEDING A MUNICIPALITY’S ABILITY TO PERFORM ITS FUNCTIONS
The PSAB
proposes to address various organisational and human resource areas that
directly or indirectly hamper service delivery.
According to the explanatory memorandum attached to the said Bill, these
include some government functions being provided by departments, not close to the
point of service delivery and without direct accountability and decision-making
by the functionaries tasked with such delivery.
The PSAB
indicates that on the other hand some government functions are provided by
entities outside the public service without direct control and influence by the
relevant political head. It proposes direct service delivery through a focussed
and ring-fenced entity, a government agency. (Paragraph 1 of the Memorandum
of the Objects of the PSAB)
Paragraph
2.1(c) of the said memorandum indicates that one of the key objectives of the
Bill is to introduce government agencies as a new institutional form within the
public service to enable direct service delivery through a focussed,
ring-fenced separate entity under the direct control of a minister or other
executive authority.
It is
apparent that the PSAB also targets organs of state (including municipalities)
and their employees, in creating separate ring-fenced entities, to effect “direct
service delivery”. In doing so the
PSAB purports to authorise the Minister for the Public Service and
Administration to transfer any function from any body (including an organ of
state) to a government agency or government department and to transfer
employees or organs of state, such as municipalities, to government departments
and agencies. (See Sections 15(1) as well as 3(4) and (5) of the PSAB).
In
providing for the transfer of functions from bodies such as municipalities to
government agencies (or national departments) in order to provide for functions
to be brought closer to the point of service delivery and under the direct
control and influence of a relevant political head, the PSAB is inconsistent
with the Constitution and undermines the powers and functions of local
government as spearhead in the rendering of basic services.
5.5 OTHER
PROVISIONS OF THE PSAB THAT ARE INCONSISTENT WITH THE CONSTITUTION
Section
196(4)(a) to (d) of the Constitution determines that the powers and functions
of the Public Service Commission (“PSC”) are:
“(a) to
promote the values and principles set out in Section 195, throughout the public
service;
(b) to
investigate, monitor and evaluate the organisation and administration, and the
personnel practices, of the public service;
(c) to
propose measures to ensure effective and efficient performance within the
public service;
(d) to
give directions aimed at ensuring that personnel procedures relating to
recruitment, transfers, promotions and dismissals comply with the values and
principles set-out in Section 195”.
Section
85(2)(c) of the Constitution determines that the President exercises executive
authority, together with the other members of the cabinet, by co-ordinating the
functions of state departments and administrations.
Chaskalson
and Klaaren, Constitutional Law of South Africa, page 3-30, believe that the words “together with
the other members of the cabinet” as contained in Section 85(2) of the
Constitution, require of the President to consult with members of his cabinet,
prior to the exercise of his powers.
The
learned authors (at 3-32) regard the provisions of Section 85(2) of the
Constitution as the principal constitutional source of cabinet power. As such Section 85(2) of the Constitution
plays an important role in determining cabinet power.
The role
of a PSC is to promote fairness and maintain efficiency and standards in the
public service. To this end it is
usually required to report on its activities to Parliament. The purpose is to ensure that the prescribed
procedures for making appointments, promotions, transfers and dismissals are
adhered to and that any deficiencies in the organisation and administration of
the public service and of the application of fair employment practices, are
made public.
(Premier,
Western Cape v The President of the Republic of South Africa 1999(3) SA 657
(CC) at paragraph 170)
Where the
Minister is authorised in terms of the provisions of Section 15(1), 3(5) and
3(2) of the PSAB, to make determinations regarding the transfer of employees to
national departments or government agencies, this is inconsistent with the
provisions of Section 196(4)(d) of the Constitution, to the extent that it is
not made subject to the said provisions of the Constitution.
Where
Sections 3(4)(a) and 7(5) of the PSAB provide for the Minister to advise the
President regarding the establishment or abolition of any department and for
the President to establish or abolish any national department, this is
inconsistent with the provisions of Section 85(2)(c) of the Constitution. The Constitution does not allow a
consultative process only between the Minister and the President in
establishing or abolishing national departments. Such consultation process must occur between
the President and the whole of the cabinet.
To establish or abolish a national department of necessity entails the
co-ordination of the functions of state departments and administrations.
Section 85(2)(c) of the Constitution requires consultation between the
President and all members of cabinet, prior to this occurring.
Section
3(4)(b) of the PSAB provides for the Minister to transfer functions to and from
national departments after consultation with the relevant executive authority.
Once again the provisions of Section 85(2)(c) of the Constitution require of
the President, in consultation with other members of cabinet, to co-ordinate
functions of state departments and administrations. To provide for the Minister
to co-ordinate the functions of state departments by transferring functions to
and from state departments, in consultation with the relevant executive
authority, is inconsistent with Section 85(2)(c) of the Constitution.
The
provisions of the PSAB impact upon the powers and functions of local
government, the PSC as well as the President and cabinet. To that extent they are inconsistent with the
provisions of the Constitution.
6. IMATU’S
FURTHER COMMENTS ON THE PSAB
6.1 Government
Agencies
National
and/or provincial government agencies will be vested with executive authority
in terms of Section 7(3).
Government
agencies will have powers conferred or transferred to them in terms of national
legislation. The agencies will not be in
a position to make regulations, although they will however be in a position to
exercise the powers and duties conferred upon them by Section 7(4) of the Act
in terms of national legislation.
IMATU is
concerned about the proposed creation of these government agencies for the
following reasons:
The
powers conferred upon these agencies are extensive and unrestricted in terms of
the Bill. The Constitution assigns
specific functions to specific spheres of government to create accountability
and transparency. The creation of the agencies will not promote accountability
and transparency.
These
agencies will not be subject to the rigours and demands of democratic
governance processes. In terms of the
Constitution and municipal legislation, the administration of a municipality is
accountable to the municipal council and the inhabitants of that particular
community. The agencies will not be
subject to the same standard and public scrutiny, which currently exists in
local government institutions.
The
tenure and terms of office of the agencies are unlimited. The tenure and terms of office of municipal
councils are regulated by the Constitution and municipal legislation, which
enhances and promotes a climate of accountability and transparency. The elected councillors are pressurised to
enforce the mandates obtained from the electorate within the time frames for
which they were elected. The agencies
will not be subject to the same demands and/or checks and balances.
Municipal
Managers, in terms of current municipal legislation, are at the head of the
municipal administration and as such accountable to the municipal council. It is unclear to whom the head of agencies will
be accountable and to what extent.
Separate legislation will have to be drafted and promulgated to cater
for this “vagueness”, which IMATU deems unnecessary due to the fact that
current municipal legislation sufficiently addresses this issue.
National
government went to great lengths to introduce new legislation such as the
Public Finance Management Act (PFMA) and the Municipal Finance Management Act
(MFMA). The aim and objectives of the
legislation was to control the flow and spending of public funds and to make
officials responsible and accountable for such expenditure. The heads of the agencies appear not to be
similarly accountable, which creates opportunities for mismanagement and abuse
of public finances.
The
agencies will be able to appoint, second, transfer and assign staff in order to
execute the power and duties conferred upon them. This will undermine the constitutional
obligation of municipalities, who in terms of Section 160(1) of the
Constitution have to appoint and employ personnel that are necessary for the
effective performance of its functions.
In terms
of Section 151(1) of the Constitution, municipalities are assigned the
functions mentioned in part B of schedule 4 and part B of schedule 5. These functions may now be assigned to
government agencies, which are in direct contravention of the
Constitution. IMATU opposes the proposed
transfer of the services mentioned in part B of schedules 4 and 5.
IMATU
also opposes the right of the head of the national and provincial agencies to
appoint staff to perform the services that (were previously) are rendered by
employees in the local government sector.
This will cause the erosion of the local government sector and enable
the heads of the agencies to appoint employees on other conditions of service
than those which employees enjoy within the local government sector.
6.2 The
transfer of employees employed by an organ of state
The
proposed amendment to section 15, as set out in the PSAB contains the following
provision:
“15(1) Any person who was employed by an organ of
state immediately before he or she is appointed in terms of section 9 shall be
deemed to be transferred to the public service in respect of such conditions of
service and to such extent as the minister may determine in terms of section
3(5)”.
Furthermore,
section 3(5) of the Bill contains the following provision:
“The
Minister may make determinations regarding any conditions of service generally
or categories of employees, including determinations regarding a salary scale
for all employees or salary scales for particular categories of employees and
allowances for particular categories of employees”.
“Organ of
State” is defined as:
“Organ
of state means an organ of state as defined in section 239 of the Constitution”.
Section
239 of the Constitution contains the following provision:
“Organ
of state means:
(a) any
department of state or administration in the National, Provincial or Local
sphere of government (our emphasis)”.
From the
aforesaid section it is clear that the intended scope and application of
section 15 could include employees currently employed in local government. In terms of this proposed section the
employees may be transferred into the public service on an effective date and
will thereafter be treated as public servants as envisaged in the Public
Service Act.
What is of
concern to IMATU is the fact that the Minister may determine new conditions of
service and the extent of their application.
IMATU is of the opinion that assigning such powers to the Minister is
unconstitutional and constitutes a complete disregard for the provisions of
legislation such as those set out in the Labour Relations Act.
Section
23(1) of the Bill of Rights states that everyone has the right to fair labour
practices. To confer upon the Minister
the right to determine the conditions of service and determine their
application is a complete disregard for the constitutional right to fair labour
practices. IMATU submits that to vest in
the Minister such extensive power is unconstitutional.
In terms
of 23(5) of the Bill of Rights employers and trade unions have the right to
engage in collective bargaining. The LRA promotes and encourages collective
bargaining. To confer upon the Minister the right to determine the conditions
of service is a complete disregard of employers’ and employees’ rights to
bargain over issues regulating the employment relationship.
The
bargaining arrangements in the local government sector are well established and
conducted under the auspices of the SALGBC, as aforesaid. The 284 metropolitan, local and district
municipalities are all represented in the bargaining council through their
membership of SALGA. The bargaining council has since its inception attempted
to standardise conditions of service throughout all municipalities, which has
been successful, except for a few minor exceptions.
Various
collective agreements have been concluded that have led to harmony and
standardisation throughout the sector in respect of conditions of service. To
confer upon the minister the right to unilaterally disregard the existing
collective agreements is not acceptable. It is suggested that the Minister’s
powers to act as such be severely curtailed to the extent that he or she
recognises those current conditions of service as part and parcel of any new
dispensation.
It must
be borne in mind that the existing collective agreements were negotiated and
concluded through years of collective bargaining between the parties, which
included industrial action and sacrifices by both employees and employers. To
negate and ignore this fact would be short-sighted behaviour from the
responsible Minister.
Section
209 of the LRA states that the Act binds the State. The Minister is therefore
obliged and compelled to apply the provisions of the Act. Subsection 197(3) of
the Act states that collective agreements that regulated terms and conditions
of employment immediately prior to the transfer, remain in force and effect
after the transfer, unless a new agreement is concluded in terms of subsection
(6) of the Act. The Minister is therefore duty bound and compelled to honour
the existing collective agreements unless an agreement is concluded in the
manner provided for. The powers conferred upon the Minister to determine the
conditions of service are in contravention of law.
The
Minister is compelled to apply section 197 due to the fact that the Labour
Relations Act specifically binds the State. Attempts by the Minister to evade
the provisions of Sections 197 would be unlawful and subject to challenges in
the appropriate forum.
Furthermore
section 210 of the Labour Relations Act states that when the Act is in conflict
with any other law, except for the Constitution, then the provisions of the
Labour Relations Act would prevail. It is submitted that the provisions of the
Labour Relations Act and specifically section 197 would prevail in any transfer
scenario. The Minister would not be entitled to unilaterally determine the
conditions of service of employees and would have to honour the existing
collective agreements in force and effect in the local government sector. IMATU
submits that any conduct in conflict therewith would be unlawful and would be
open for constitutional and other legal challenges.
7. CONCLUSION
IMATU submits
that the PSAB should be withdrawn and referred to NEDLAC, as provided in
section 5 of the NEDLAC Act, as the Bill has a serious labour, social and
economic impact.
Considering
these implications, the Bill should also be referred to forums such as the
SALGBC and PSCBC for consultation.
IMATU
is of the view that the creation of the single public service should be
abandoned and that local government should be afforded the opportunity to
deliver on its constitutional mandate, as set out in more detail in sections 3
and 4 of the IMATU submission aforesaid. IMATU submits that the focus should
rather be on creating sufficient infrastructure and making available sufficient
resources to the three spheres of governments and the respective governmental
departments to fulfil their constitutional mandate as a first priority.
IMATU
is also of the view that a proper investigation should be conducted (inclusive
of affected role players such as IMATU) to establish the full socio-economic
impact of a proposed single public service.
Furthermore,
IMATU
is also of the view that a summit should be convened between representatives of
the three spheres of government and the trade union partners to determine a
strategic plan to eradicate service delivery problems from all levels of
government.
Johan Koen