[Affiliated to FEDUSA]
20 July 2007
The Secretary to Parliament
8000
Dear Sir/Madam
COMMENTS
ON THE LOCAL GOVERNMENT LAWS AMENDMENT BILL, 2007
A. INTRODUCTION:
1. Your request to comment on the
provisions of Sections 15 and 20 of the Local Government Laws Amendment Bill,
2007, bears reference. We shall commence
our commentary with Section 20.
B. SECTION 20 OF THE LOCAL GOVERNMENT
LAWS AMENDMENT BILL, 2007 (“the Bill”):
2. Section 20 of the Bill introduces a
Section 123A in the Local Government Municipal Systems Act, No. 32 of 2000 (“the
Systems Act”) which provides for the Minister of Provincial and Local
Government (“the Minister”) to “exempt any municipality or municipal entity
from a specific provision of Chapters 8 and 8A of this Act for a period of not
more than four years and on conditions determined in the notice”.
3. It is submitted that the provisions of
the said Section to be introduced, are unconstitutional, for the reasons
indicated herein.
4. In terms of Section 152(1)(b) of the
Constitution one of the objects of local government is to ensure the provision
of services to communities in a sustainable manner. Section 153(a) of the Constitution determines
that a municipality must 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. Section 151(4) of the Constitution determines
that 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. Section 154(1) of the
Constitution determines that 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.
5. The aforesaid provisions of the Constitution
acknowledge the special developmental role of local government in providing
basic services to communities and prohibit national or provincial governments
from interfering with this role. Section
20 of the Bill, however, contravenes these prescripts.
6. Chapter 8 of the Systems Act addresses
the rendering of municipal services and the developmental duties of local
government, as contained in the Constitution, as is inter alia evident from its
heading as well as its introduction, namely Section 73(1). The latter Section acknowledges the
constitutional role of municipalities in regulating local government’s
developmental role and the furnishing of basic services in terms of Chapter 8,
by determining that “a municipality must
give effect to the provisions of the
Constitution and -
(a) give
priority to the basic needs of the local community;
(b) promote
the development of the local community;
and
(c) ensure that all members of the local
community have access to at least the minimum level of basic municipal services”.
7. Chapter 8 of the Systems Act
furthermore contains various provisions dealing with the said constitutional
obligations of local government.
Examples are the following:
7.1 Section 74(2)(c) determining that poor
households must have access to at least basic services through preferential
tariffs;
7.2 Section 74(2)(g) dealing with the
promotion of local economic development;
7.3 Section 75(2) dealing with by-laws
differentiating between inter alia different categories of users and services;
7.4 Section 78(1)(a)(iv) dealing with an
assessment of the impact on development in considering a mechanism for service
delivery;
7.5 Section 78(3)(b)(iv) and (c)(iv)(bb),
referring respectively to considering the likely impact on development and the
needs of the poor, in exploring the possibility of providing a municipal
service through an external mechanism;
7.6 Section 81(1) and (2), determining that
although a municipal service might be provided through an external service
provider, the municipality still retains control in the manner indicated in the
said Section.
8. Other aspects to be borne in mind are the following:
8.1 Section 152(1)(a) of the Constitution
determines that one of the objects of local government is to provide democratic
and accountable government for local communities;
8.2 The Systems Act constitutes legislation
enacted to comply with this requirement of democratic and accountable
government for local communities:
8.2.1 the preamble of the Act indicates that a
fundamental aspect of the new local government system is the active engagement
of communities in the affairs of municipalities of which they are an integral
part, and in particular in planning, service delivery and performance
management;
8.2.2 Section 2(b)(ii) indicates that a
municipality inter alia consists of the community of the municipality;
8.2.3 Section 4(2)(c) and (e) indicates that a
municipality has the duty to encourage the involvement of and consult the local
community;
8.2.4 Section 5(1)(a) provides for members of the
local community having the right to contribute to the decision-making processes
of a municipality;
8.2.5 Sections 16 and 17 provide for
participation by the local community in the affairs of the municipality;
8.3 Pursuant to the aforesaid Section
78(3)(b) obliges a municipality to take into consideration the views of the
local community in assessing different service delivery options. Section 80(2) obliges a municipality to
consult with the local community before entering into a service delivery
agreement with an external service provider.
This is prescribed in conformity with a municipality’s constitutional
obligations to provide democratic and accountable local government.
9. Where the Bill authorises the Minister
to “exempt any municipality from a specific provision of Chapters 8 and 8A of (the
Systems Act) for a period of not more than four years”, the Minister is
purportedly furnished with the authority to suspend the relevant provisions of
the Constitution, insofar as these provisions find application in the said
Chapters 8 and 8A. This is inconsistent
with the Constitution and invalid. The prescripts pointed out were enacted to
give effect to the provisions of the Constitution. The Minister does not have
the power to suspend the Constitutional obligations of local government
regarding development, provision of basic services to inter alia the poor, and
democratic and accountable local government, as reflected in Chapters 8 and 8A
of the Systems Act.
C. SECTION 15 OF THE BILL:
10. In terms of Section 15 of the Bill,
Section 72 of the Systems Act is amended, by inter alia determining that:
“(1) The Minister may, subject to applicable
labour legislation and after consultation with the Bargaining Council
established for municipalities and the Minister responsible for public service
and administration, for the purposes of this Chapter make regulations or issue
guidelines in accordance with section 120 to provide for or regulate the
following matters :
...
(f) the
establishment of job evaluation systems;
(g) the regulation of remuneration and other
conditions of service of staff members of municipalities subject to applicable
labour legislation;
(h) the
measuring and evaluation of staff performance;
(i) the development of remuneration grading
and incentive frameworks for staff members of municipalities;
(j) corrective steps in the case of
substandard performance by staff members of municipalities; and
(k) any other matter that may facilitate the
implementation by a municipality of an efficient and effective system of
personnel administration”.
11. The Minister is purportedly empowered to
regulate remuneration and other conditions of service for local
government. The expansive nature of the
proposed regulatory powers and the wording of the text, point to the Minister
determining remuneration and conditions of service, rather than merely
prescribing a framework justifying intervention when required. The impact of the regulatory powers on each
other and the interaction between the respective regulatory powers, entail the
Minister determining remuneration and conditions of service. A mere framework for remuneration and
conditions of service justifying intervention when required, would not have
tied up all the components influencing remuneration and conditions of service
to the extent done by the Bill, and would have been worded differently.
12. The principle obligation of an employer is to pay the agreed
remuneration.
Wallis, Labour and
Employment Law, page 3 - 3.
13. Where the Minister therefore regulates
or determines remuneration he usurps the principle obligation of an employer,
and in the process, prescribes conditions of service by way of national
legislation. This is inconsistent with
Section 160(1)(d) of the Constitution and invalid.
14. In terms of Section 160(1)(d) of the
Constitution a municipal council may employ personnel that are necessary for
the effective performance of its functions.
Implicit in the power to employ personnel is the power to determine
remuneration and conditions of service, the very essence of an employment
contract. The Constitution would not
have empowered a municipal council to employ people, without implicitly
empowering it to determine remuneration and conditions of service. Its power to employ people would otherwise be
ineffective. This is also acknowledged
by Section 156(5) of the Constitution determining that a municipality has the
right to exercise any power concerning a matter reasonably necessary for, or
incidental to, the effective performance of its functions.
15. The Constitution seeks to realise a
structure for local government that, on the one hand, reveals a concern for the
autonomy and integrity of local government and prescribes a hands-off
relationship between local government and other levels of government and, on
the other, acknowledges the requirement that higher levels of government
monitor local government functioning and intervene where such functioning is
deficient or defective in a manner that comprises this autonomy. This is the necessary hands-on component of
the relationship.
Ex parte Chairperson of the Constitutional
Assembly: in re Certification of the Constitution of the
16. By the Minister regulating or
determining the issues to the extent indicated in Section 15 of the Bill, he
does not merely prescribe a framework providing for intervention when the
functioning of local government is deficient or defective in a manner that
compromises its autonomy, but regulates these issues without any need for
intervention manifesting itself. This is
unconstitutional and invalid.
17. What the Bill furthermore attempts to do
is inconsistent with the provisions of Section 164 of the Constitution, determining
that any matter concerning local government not dealt with in the Constitution
may be prescribed by national legislation, or by provisional legislation,
within the framework of national legislation.
Although local government has the implicit power to determine its own
remuneration and conditions of service, in terms of the provisions of Section
160(1)(d) of the Constitution, the Minister attempts to usurp this power. The Minister does not have the power to
prescribe these issues by way of national legislation, where the Constitution
has already entrusted these issues to local government.
18. That the Minister does not have the
power to determine remuneration and conditions of service of local government
employees, is also evident from the provisions of Sections 196 and 197 of the
Constitution. Although Section 195 of
the Constitution provides for certain principles governing public
administration (including local government), Sections 196 and 197 then proceed
to deal only with public service (excluding local government). In this regard Section 197(2) determines that
the terms and conditions of employment in the public service must be regulated
by national legislation. Section 197(2)
does not include local government and in accordance with the maxim inclusio
unius est exclusio alterius, the question may be asked why local government is
not included if the intention was that its conditions of service also be
regulated by national legislation.
19. This is underscored by Section 196
providing for a Public Service Commission only in respect of the public
service, and not also in respect of local government. In this regard Section 196(2) of the
Constitution determines that the Public Service Commission is independent and
must be impartial, and must exercise its powers and perform its functions
without fear, favour or prejudice in the interest of the maintenance of
effective and efficient public administration and a high standard of
professional ethics in the public service.
Implicit in the requirement of independence and impartiality is that the
Public Service Commission will constitute a check upon political executive
power in the administration of the public service.
Certification
Case, paragraph 176
20. The Constitution would not have provided
for a check on the political executive power in the administration of the
public service, bearing in mind the uniform norms and standards applying to the
public service in terms of Section 197(4) of the Constitution, but exclude a
check on powers in respect of issues such as job evaluation systems,
remuneration and other conditions of service, measuring and evaluation of staff
performance, remuneration grading and incentive frameworks, corrective steps in
the case of substandard performance by staff and any matter facilitating the
implementation of an efficient and effective system of personnel
administration, in respect of local government, were these powers to be granted
to the national government in terms of the provisions of the Constitution.
21. The proposed Section 15 of the Bill is
therefore unconstitutional for the reasons indicated herein.
Yours sincerely
GENERAL
SECRETARY