SUBMISSION BY THE SOUTH AFRICAN MUNICIPAL WORKERS’ UNION (SAMWU)

 

ON THE

 

LOCAL GOVERNMENT LAWS AMENDMENT BILL, 2007

 

  1. Introduction

 

a)       The Local Government Laws Amendment Bill, 2007 (the Bill) was first published in Government Gazette Number 29965 on 4 June 2007. Comments were required to be submitted in writing by no later than 18 June 2007 and the notice specifically stated that “no comments that are received after 18 June 2007 will be considered.”

b)       In similar fashion, a revised version was published on 2 July 2007 and parties were given until the 20 July 2007 to make representations.

c)       We consider the time periods to submit comments extremely short and clearly not aimed at promoting popular participation in the legislation making process.

d)       Many civil society bodies, including trade unions, do not have the means at their disposal to study and comment meaningfully on proposed legislation and policies within the time periods afforded for such comment. This is an issue that must be seriously addressed by government if it is committed to building and sustaining participatory democracy.

e)       It is quite ironic that at the same time as interested parties are given a very limited time to respond to amendments to laws affecting the local sphere of government, the DPLG has published a proposed National Policy Framework for Public Participation entitled “Rooting government amongst the people”. This document in fact deals with many of the issues covered in the Bill.

f)         We are also of the view that many of the issues raised in the Bill should have been tabled at NEDLAC prior to presentation to Parliament.

g)       Notwithstanding the limited time we have had to study the intentions and implications of the provisions of the Bill and our contention that NEDLAC should be consulted, we wish to make the following comments.

 

  1. Proposed amendments to the Structures Act

 

a)       Sections 72 and 73 dealing with Ward Committees

 

                     i.            The existing section 73(4) provides that a “metro or local council may make administrative arrangements to enable the ward committees to perform their functions and exercise their powers effectively.”

                   ii.            In similar fashion as proposed amendments to section 72 seek to make the establishment of ward committees compulsory, so too should metro and local councils be compelled to put in place administrative arrangements as contemplated by section 73 (4).

                  iii.            While our legislation goes quite far in advancing an enabling agenda for participatory democracy, there has been little reason to consider that this is being seriously rooted in municipal practice.

                  iv.            A study done in 2003 by Afesis-corplan revealed many weaknesses with ward committees. Notwithstanding legislation to the contrary, the study found that ward councillors were “screening the interests” of those represented on the committee and that “party political influence and intervention played a significant role in the nominations process.”

                    v.            The study also revealed that there was little engagement with the IDP and budget at ward committee level. This finding was backed up by a Portfolio Committee Study Tour report released in April 2003.

                  vi.            No doubt the proposed addition of section 73(5) is aimed at responding to a call from committee members for increased material benefits given that they are currently not paid or re-imbursed for the work they do. We support the re-imbursement to ward committee members of any accounted for expenses incurred in carrying out their functions. We are however of the view that municipalities should not have to carry the full burden of funding the ward committees but that a specific central government grant for this purpose should be introduced.

                 vii.            The allocation of sufficient funds to ward committees will not in itself ensure real and sustained mass participation. Further steps aimed at ensuring that communities are able to exert real control over municipal decision making must be seriously considered.

               viii.            This includes reviewing the overall system which creates two classes of councillors, inaccessibility of council meetings to the public and the lack of proper consultation in the areas of the IDP and budgets.

                 ix.            The proposed National Policy Framework for Public Participation starts addressing this and every effort must be made to ensure sufficient resources and time is allocated to allow for a full and proper consultative process.

 

  1. Proposed amendments to the Systems Act

 

a)       Section 57 dealing with fixed term employment

 

                     i.            While the attempt to align, as closely as possible, the appointments of municipal managers to that of the term of the council is noted there are other areas relating to fixed term contract employment that remain problematic.

                   ii.            We had also previously raised our concern regarding the application of fixed term contracts to levels of management below that of municipal manager. This situation persists. Indeed many of these contracts improperly rely on section 57 (1) as their legal basis.

                  iii.            The adoption of the short-term model of management employment and its generally heavy use of performance bonuses (despite already inflated basic remuneration) has introduced a forced march attitude to institutional change and service delivery option taking. The deadline becomes everything and social dialogue a cumbersome obstacle in the race to meet performance targets.

                  iv.            Another effect is to escalate managerial remuneration levels on the basis that their job security has been weakened but the same logic is not applied when it comes to casual labour and temps.

                    v.            If any amendments are to be made to section 57, these should be aimed at repealing the provision in their entirety and bringing regulation of these workers under the South African Local Government Bargaining Council.

                  vi.            What is needed is managers who have a commitment to the principles of public service. The German system, for example, provides for professional public service managers who enjoy long term contracts but who must accept redeployment if there is a political shift in the council.

 

b)       Section 71A dealing with staff members and elections

 

                     i.            The memorandum on the objects of the Bill is unclear as to the reasons for the proposed insertion of section 71A. We are not supportive of the proposed amendments which we feel unfairly impinges on the constitutional rights of individual municipal employees who might decide to run for public office.

                   ii.            We would not oppose any amendment which requires any staff members to resign their position on being elected. In any event that is what would emerge on election to either the national or provincial legislature. However we cannot support legislation that would unfairly place an employee’s job security at stake prior to the entire election process being concluded.

                  iii.            Regarding the proposed inclusion of section 71A(3) it is again the absence of motivation that makes it hard to comment. However, there does not seem to be any inherent reason why an employee should not be a councilor of a municipality other than the one for which they are employed. The only exception to this would be if the employee became a full-time councilor.

 

c)       Section 72 dealing with regulations and guidelines on staff matters

 

                     i.            These proposals are not supported for two main reasons. Firstly the requirement that the Minister must consult with the Minister responsible for the public service and administration is, in our opinion, an outcome of the ongoing moves to create a single public service. Municipal unions, particularly, have been completely excluded from this process.

                   ii.            The explanatory memorandum provides absolutely no motivation as to why the Minister responsible for the public service and administration needs to be consulted. The matters dealt with under section 72 are exclusive to local government employees and are, in the main, matters for collective bargaining within the South African Local Government Bargaining Council.

                  iii.            The Constitution of the country is very clear on the distinctive, interdependent and interrelated nature of the three spheres of government. Whilst promoting co-operative government based on sound inter-governmental relations, the Constitution is equally clear on the right of the local sphere of government to govern its area of jurisdiction without restraint subject to what qualifications the Constitution permits. We argue that the proposed inclusion of the Minister for public service and administration is an impediment to the functioning of local government and an erosion of the supposed equality of the spheres of government.

 

d)       Section 106 dealing with interventions by the Minister and the MEC:

 

                     i.            While supporting the proposed amendments, we wish to recommend that a procedure by which the voice of the electorate can be heard in initiating investigations covered by this section also needs to be developed and clearly spelt out.

                   ii.            It is clearly in the interests of building local democracy that the voice of the electorate/local community is heard in matters of this nature.

 

e)       Section 123A dealing with exemptions from the provisions of chapters 8 and 8A

 

                     i.            This amendment is  strongly opposed.

                   ii.            While the DPLG is seeking, through this amendment, to limit public participation, the DPLG is at the same time seeking to promote precisely such participation through its National Policy Framework for Public Participation.  This Bill, like the Policy Framework, are currently both seeking public submissions.  The contrast between these two initiatives by the DPLG is so stark that one is forced to conclude that policy coherence is a major problem within the DPLG. 

                  iii.            The provisions of chapter 8 and 8A, more specifically the sections dealing with the decision making processes regarding service delivery and the involvement of the private sector are the outcome of lengthy negotiations and representations that involved organised labour. They to a large degree reflect what government (in the form of the Minister of Provincial and Local Government and SALGA ) and organised labour (COSATU) had agreed when concluding the “Framework for restructuring of municipal service provision” agreement in December 1998.

                  iv.            Key principles enshrined in both the agreement and the subsequent Act are:

·          The full involvement of organised labour and local communities in assessing both current and any new service delivery mechanisms;

·          The instituting of direct and indirect cost benefit analyses when considering service delivery mechanisms. This includes the expected effects on the environment, human health, well being and safety.

·          Assessing existing and potential municipal capacity to directly deliver services.

·          Considering the impact on development, job creation and employment patterns in the municipality.

                    v.            The framework agreement also made reference to the public sector being the preferred method for service delivery and that where the private sector is involved, that this should include an obligation on the delivery agent to build the long term capacity of the municipality to provide the service.

                  vi.            The previously mentioned National Policy Framework for Public Participation states that “the importance of service delivery, especially to the poor and marginalised communities means that great care must be taken to consult these communities whenever new initiatives around service delivery are taken or problem (sic) with service delivery arise.” Consult is defined in the document as involving both the transmission of information but also the feedback form stakeholder groups, ward committees and the public at large.

                 vii.            The proposed amendments to the Act are clearly in conflict with the Constitution and legislation promoting participatory democracy. The DPLG’s National Policy Framework for Public Participation, Chapter 1, provides details of the legal framework Section 123A seeks to undermine.  .

               viii.            The timing of this proposed amendment exacerbates disquiet over its motivation.  Had the sought after exemptions been built into the Act when it was first promulgated in 2000 a plausible case could have been made for the need for a transition period in which to allow the weaker municipalities time in which to meet the intentions of the Act.  But this proposed amendment is being presented 7 years after the original Act.  There can therefore now be no valid need for a transitional period.

                 ix.            It is highly probable that the exemption clause is meant, in the first instance, to fast track restructuring initiatives that seek to compel all local authorities to become part of and contract with Regional Electricity Distributors as their service provider for purposes of distributing electricity.

                   x.            The National Policy Framework for Public Participation, when dealing with the concept of public participation, presents a ladder of participation ranging from Manipulation at the bottom rung to citizen power at the top rung. Manipulation is defined as a situation where “participation is simply a pretence, eg, with “people’s” representatives on official boards but who are not elected and have no power, or where the community is selectively told about a project according to an existing agenda. The community’s input is only used to further this existing agenda.” The proposed amendment does not even reach this totally unacceptable level.

                 xi.            The amendment is also, in our opinion, aimed at hastening the growing outsourcing of municipal services.  Our own experience, strongly supported by international experience, has shown that the outsourcing – a form of privatisation – has a detrimental effect on the job security and quality of jobs of public service workers. It has also impacted negatively on the quality and costs of services to local communities. This flies in the face of the principles for service delivery that are contained in the “Framework for restructuring of municipal service provision”. These include:

·          Universal coverage – all South Africans must have access to water, sanitation services, electricity, rubbish removal and other basic services.

·          Services must be delivered in a way that is environmentally sustainable, efficient and effective.

·          All residents should receive a lifeline amount of basic services.

·          Democratic practices and accountability to residents and users must be established.

 

f)         Item 6 and item 14 of Schedule 1 dealing with personal gain by councillors

 

                     i.            The amendment to item 6 is strongly supported as it removes the discretionary provisions which are the thin edge of the wedge for promoting corruption at local government level. It is our understanding that this applies in respect of all municipalities and municipal entities and not simply the municipality where the councillor is located. If not, then this needs to be inserted. We also propose that the amendment should be made consistent with the item 5 of the same schedule which incorporates the spouse, partner, business associate or close family member.

                   ii.            Regarding item 14, we have no opposition to strengthening the role of the MEC in exercising his or her oversight function. We however do not support the discretionary nature of the right given to the MEC in this regard. As we mention in 3d) above, democracy is ultimately advanced and strengthened by building the power of the local community to exercise control over their elected representatives. To this end, similar provisions that clearly spell out how citizens can trigger an investigation must be developed.

 

g)       Item 4 and item 5A of Schedule 2 dealing with personal gain by municipal staff the declaration of interests

 

                     i.            The amendment to item 4 is supported for the reasons set out in f) above. The same conditions that apply to councillors should apply to municipal staff and therefore the current item 4(2)(a) and (b) should be deleted. At present it requires that a staff member must make certain disclosures to the council. This appears to conflict with the intention of item 4. Left as it is, item 5(1) could be read to mean that by simply making the disclosure, the staff member could still acquire the benefit.

 

  1. Conclusion

 

We wish to re-iterate that we are extremely concerned with attempts to roll-back some of the democratic provisions enshrined in our Constitution and other laws of the country. These attempts illustrate a potential for the further erosion of rights when a certain set of provisions do not suit government’s intentions. What government should rather be doing is putting in place the necessary support mechanisms to more fully promote popular participation in decision making at local government level.

 

20 July 2007