SUBMISSION BY THE SOUTH AFRICAN MUNICIPAL WORKERS’
ON THE
LOCAL GOVERNMENT LAWS AMENDMENT BILL, 2007
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.
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.
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.
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