JOINT WORKSHOP ON THE APPLICATION OF SECTION 139 AND THE NEED FOR LEGISLATION 2 November

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JOINT WORKSHOP ON THE APPLICATION OF SECTION 139
AND THE NEED FOR LEGISLATION 2 November

• Role of SALGA with respect to municipalities
  under Administration

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Presentation Outline

• Part 1 - Organised Local Government Overview of
  the role of organized local government and the
  legislative framework within which it operates.
• Part 2 SALGA Background to the establishment
  of SALGA, its mandate and functions.
• Part 3 Background Interventions and
  Cooperative Governance Factors currently
  influencing municipalities and reflection on
  Cooperative Governance.
• Part 4 Interventions in Local Government
  Overview and analysis of interventions in
  municipalities with proposals on the way forward.
  

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• PART 1
• ORGANISED LOCAL GOVERNMENT

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Organised Local Government

• As 283 municipalities, effective participation in
  the system of IGR requires that local government
  acts as a Collective (with a common vision).
• Organised local government is a vehicle to
  achieve the vision that local government acts as
  a collective.
• This imperative is recognized and entrenched in
  the Constitution and legislation (i.e. Organised
  Local Government Act, Systems Act, etc).
• There are not many of such Constitutional
  protections on the continent.
• Organised local government represents
  municipalities by articulating their interests
  and seeking to coordinate their policies and
  programmes with those of the other spheres.

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Legislative and policy environment

• Policy and legislative environment summarised
• Constitution provides that OLG-
• - will take form of a national organisation as
  well as provincial organisations
• - However, no prescripts as to the nature or
  institutional structure of the organisations
• Organised Local Government Act
• - does not put forward requirements as regards
  the legal nature of the organisation that is
  to be recognised.
• - Whether this organisation is a legal entity
  or not has no bearing on the recognition.
• - Ministers recognition attaches to a group of
  municipalities, at provincial level, that have
  organised themselves in whatever way.

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Legislative and policy environment

• Policy and legislative environment summarised
  (cont.)
• Systems Act includes a general mandate for OLG.
  This includes
• the development of common approaches for local
  government,
• finding solutions for problems that relate to
  local government generally,
• enhancing co-operation between municipalities,
  and
• generally playing a meaningful role in
  intergovernmental relations.
• IGR Framework Act envisages that in respect of
• Issues and/or forums related to national
  government, OLG will be represented by the
  National Body which has been recognised by the
  Minister, i.e. SALGA
• Issues or forums related to Provincial
  government, OLG will be represented by the
  provincial organisation recognised by the
  Minister
• Issues or forums within the local government
  realm, municipalities will represent themselves.

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• PART 2
• SALGA

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Background

• SALGA was established in 1996 and recognised by
  the Minister in January 1997
• SALGA does not have executive authority over its
  members
• SALGAs power over its members stems from its
  Constitution.
• SALGA is a Schedule 3A Public Entity (PFMA), and
  as such reports to the Minister for COGTA
• A strong and effective SALGA lies at the heart of
  strengthening the local sphere of government to
  enable it to pursue a developmental agenda to
  fulfil the promise of the electoral mandate to
  speed up the delivery of free basic services,
  build sustainable human settlements and viable
  communities, improve all public services, build
  infrastructure, create job opportunities and
  fight poverty.

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Policy and Legislative Environment
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SALGAs mandate

• In line with its mandate SALGA has set out its
  role to
• Represent , promote and protect the interests of
  LG
• Assist in the transform of LG to enable it to
  fulfill its developmental role
• Raise the profile of LG
• Perform its role as an employer body
• Develop capacity within municipalities
• Our role can thus be summarized into four key
  functions
• Advice and support policy analysis, research
  and monitoring, knowledge exchange and support to
  members.
• Representation stakeholder engagement lobbying
  on behalf of local government in relation to
  national policies and legislation
• Act as an employer body collective bargaining
  on behalf of our members capacity building and
  municipal HR
• Strategic Profiling building the profile and
  image of LG locally and internationally

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Overview of the activities of SALGA
Participating in mandatory inter-governmental
structures and undertaking legislated
responsibilities
Undertaking internal governance activities to
manage and provide oversight over the activities
of SALGA
Supporting the transformation and restructuring
of the local government sector, including
research and advocacy on key local government
issues
Providing services to members, including research
and advocacy on key local government issues, and
other direct support to municipalities
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SALGAS ORGANISING FRAMEWORK
ANALYSIS
SALGAs three key main roles cut-across to
underpin its 5-Year Strategic Objectives
Programmes
Strategy, Policy and Research
Finance and Corporate Services
Governance IGR
Economic Development and Development Planning
Provincial Programmes
Infrastructure and Municipal Services
Municipal Institutional Development
Community Development
OCEO
Represent
VISION
To be consultative, informed, mandated, credible
and accountable to our membership provide value
for money
Support
Advise
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• PART 3
• BACKGROUND COOPERATIVE GOVERNANCE and CONTEXT
  TO INTERVENTIONS

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Cooperative Governance
Constitution provides for 3 Spheres, having specified powers and functions, but are- Distinctive Interdependent and Interrelated Arrangement based on - respect for constitutional status, - non-encroachment on geographical, functional or institutional integrity, Section 139, should municipality be unwilling or unable to meet its obligations, province may intervene.

National (President Cabinet) (NA NCOP)
Provincial (9 Premiers Executives) (Prov
Legislature)
Local (283 Municipal Councils)
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Factors currently influencing Municipalities
Context - Interventions
External Factors Demographic Patterns Trends
(in-migration household growth rural urban
migration growth of informal settlements farm
evictions Macro- / micro- economic (unemployment
revenue base declining tax evasion by
businesses foreigners) IGR (weaknesses in
policy Regulatory frameworks, voluntarism
fragmented support Poor oversight unfunded
mandates)
Internal Factors Political Management
Stability (intra inter political conflicts
limited ability to develop enforce
by-laws) Professional administration
Management (lack of skilled staff unqualified
staff appointments conflict of Interest)
Financial Management (lack of systems
controls) Accountability (poor mechanisms of
community consultation feedback ward
committees poorly resourced)

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Context Interventions

• Local government has been given a very broad and
  challenging set of responsibilities.
• Effective performance against its Constitutional
  mandate requires a coherent and co-ordinated set
  of support initiatives from the other two spheres
  of government.
• Provincial interventions in LG are an aspect of
  intergovernmental relations and as such must be
  exercised within the spirit of co-operative
  government as outlined in Chapter 3 of the
  Constitution.
• Constitution requires provincial governments to
  play an important role in monitoring supporting
  LG (s155).

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• PART 4
• INTERVENTIONS IN LOCAL GOVERNMENT

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Interventions in LG

• Ultimate purpose of 139 intervention should be to
  assist a municipality to become sustainable
  self-sufficient, able to
• perform the functions assigned to it by the
  Constitution and other legislation efficiently
  and effectively
• has the ability to raise the revenue due to it
• ensure that short-term actions are aligned with
  medium-to long-term planning.
• There should be a broad agreement that both
  national and provincial governments are committed
  to ensuring the stabilisation of the LG
  environment to such an extent that interventions
  are exceptional and not regular occurrences.

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Service delivery failures?

• Curiously, failure to fulfil service delivery
  obligations as set out in sections 152 153 of
  the Constitution has never triggered an
  intervention.
• Reasons for this include
• Lack of monitoring systems relating to service
  delivery
• Greater urgency of governance and administrative
  issues
• Few, if any, interventions have been successful
  in the sense of capacitating the municipality
  when the province leaves.
• Intervention in Butterworth in 1999 a case in
  point same problems still exist

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Challenges

• General conclusions can be drawn from section 139
  interventions
• Provinces lack capacity to monitor and support LG
  in terms of personnel, funds, institutional
  knowledge and expertise
• Some interventions could have been prevented if
  early warning systems (s105 Systems Act
  mechanisms and processes) had been in place
  (Warrenton and Tweeling for eg.)
• Effectiveness of interventions are highly
  questionable are they curative or simply
  take-overs without the necessary skills
  transfers?

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• PART 5
• SALGAS ROLE IN INTERVENTIONS

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SALGA in Interventions

• A decade ago, SALGA recognised the need for and
  initiated a process to craft an approach to
  section 139 interventions.
• That process commenced during October 1998 and
  culminated in a workshop on Provincial Support
  and Supervision of Local Government on 12 and 13
  March 1999.
• The workshop generated consensus around the
  following points
• prior to interventions, there must be statutory
  recognition of the role and consultation with
  Organised Local Government
• there must be an obligation to report regularly
  to Organised Local Government and to the
  provincial standing committee
• a need to establish permanent IGR structures at
  provincial level with a view to provide for
  consultation on identification of problems, terms
  of intervention, reporting mechanisms and
  appointment of an administrator
• interventions must be preceded by measures to
  support and strengthen local government
• an urgent need for a regulatory framework to
  capacitate provinces to deal with interventions
  and
• a commitment that SALGA must be the principle
  organ to draft the required framework.

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Analysis of Interventions

• Statistical analysis of data over the past three
  years point to an increase in the number of
  municipalities annually coming under section 139
  interventions.
• Mechanisms, processes and procedures in terms of
  s105 of the Systems Act are often overlooked in
  favour of a s106 investigation and or a s139
  intervention.
• These interventions suggests that provinces are
  struggling with their constitutional commitment
  to support municipalities.
• Interventions have become a real threat to the
  institutional integrity of local government.

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Analysis of Interventions

• There is a clear need to protect municipalities
  from interventions that reach beyond that which
  is constitutionally permitted cannot be
  overemphasized.
• Provinces should fulfil their statutory and
  constitutional obligations to LG before
  contemplating interventions provincial
  legislatures should play stronger oversight role
  to ensure incremental approach is followed.
• Any intervention should be solution-oriented and
  seek to minimise encroaching on the institutional
  integrity of local government.

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Suggested Approach

• In our view, three main principles need to guide
  provincial interventions in municipalities.
• Firstly the assumption of responsibility should
  be a measure of last resort in a process of
  provincial supervision which should normally
  commence with review and monitoring of a
  municipality, followed by steps to strengthen
  support.
• Secondly the integrity of LG as a sphere of
  government exercising original powers should be
  respected as clearly delineated in the
  Constitution - this should protect municipalities
  from provincial interferences with municipal
  legislative functions.
• Thirdly the aim of the intervention should be
  restorative rather than punitive.

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IGR Approach

• Little evidence of provincial legislatures
  exercising oversight over Prov Executives
  actions in terms of s139.
• More targeted support and intervention is reqd
  from provinces should not wait for a total
  collapse.
• Intervention should be seen as a measure of last
  resort, where the problem cannot be resolved
  through ordinary intergovernmental processes.
• Provincial Executive must ensure that there is a
  sound exit strategy after an intervention, with
  provincial OLG and districts having a key role in
  supporting/ rebuilding the municipality towards
  sustainability.

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Role of SALGA

• Need to minimise interventions by ensuring that
  all municipalities have access to adequate
  training, capacity building, funding and support
  systems to enable them to perform their functions
  manage their administrations effectively not
  least from the other two spheres of govt.
• As a legitimate voice of LG, SALGA will continue
  to provide leadership and strategic guidance to
  its membership during interventions through
  robust advocacy, representation, and supporting
  and strengthening municipal capacity.
• Through its interaction and representation of its
  membership, SALGA will continue to engage the
  national legislative process to ensure the
  institutional integrity of LG on the one hand and
  the efficacy of interventions aimed at restoring
  service delivery on the other.

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Way forward

• Need for a consistent approach to interventions
• S34 of Structures Act now inconsistent with the
  Constitution against overall checks and balances
  scheme of s139(3).
• Require legislative amendment to the Structures
  Act
• An incremental approach to 139 (1) interventions
  should be encouraged, as proposed by the CoGTA
  Guidelines, even though provinces now have a
  choice in terms of Constitution.
• ie. Directive first, followed by assumption and
  if that fails, dissolution of council
• Need stronger IGR approach to interventions (Role
  of SALGA and District Municipalities)
• Appointment of appropriately skilled and
  experienced administrators

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• THANK YOU