South Africa: Constitutional Assembly Resources

DEPARTMENT OF HEALTH

SUBMISSIONS REGARDING PROVINCIAL AND LOCAL GOVERNMENT SYSTEMS

1. The Department of Health would like to make the following submissions regarding some of the key issues (your numbering followed) stipulated in your letter.

(c) Measures, including transitional measures,, that provide for the phasing in of new provincial dispensations.

1. Lawmaking powers of the new provincial legislatures'

1. . A provincial legislature may make laws on health services. The word "services means the supplying of the needs of persons. It would clearly cover hospital services, vaccination services and the provision of other medical services.

2. The legislative competence of a provincial legislature includes the competence to make laws which are reasonably necessary for or incidental to the effective exercise of such legislative competence.
3. It is not clear whether the provincial power to make laws on health services extends to health professionals and their registration and conduct. It could be argued that a power to make laws on health services includes the reasonably necessary and incidental power to make laws governing persons who provide health services and their registration and conduct.
4. It is understood that the national and provincial governments have a~ that the national

government will make laws on health professionals and their registration and conduct. But it has apparently been agreed that the provinces will make laws on traditional healers. If the provincial power to make laws on health services includes the power to make laws to control persons who provide health services, then a province can validly make laws on traditional healers. But if health services does not include the power to control persons in

health occupations, then this intergovernmental agreement cannot give provinces a power to make valid laws on traditional healers or on other persons who provide health services.

5. It is even less clear if health services includes the regulation, in the interests of public health of private conduct. In particular, it is not clear if it includes a power to make laws on environmental health matters such as the requirements with which restaurant kitchens shall comply, or other conditions which affect health. These and similar matters are dealt with m a chapter of the Health Act, 1977 (Chapter V. "Regulations" ss 32 to 40).'
6. To interpret "health services" in this way, so as to authorise provincial legislatures to make laws to regulate and control things in the interest of public health would in effect confer on provincial legislatures the power to make laws on all health matters. This would amount to treating the power to make laws on "health services" as a power to make laws on "health", and ignoring the word "services". In principle no word should be U~ as superfluous.

vii. The memorandum from the National Health Legislation Review Committee proposes that provincial governments should harmonise laws governing health services in the narrow sense of the provision of services and facilities such as hospitals, clinics, laboratories, family planning, ambulances and the like.

II How different laws should be harmonised,

1. Whichever of the two alternative methods is adopted, either replacing existing laws, or extending RSA laws to former states and territories, it will be necessary to deem things that were done under any laws to be repealed to have been done under the law which will replace those repealed laws. For example, it will be necessary to state that any hospital established under a repealed law, shall be deemed to have been made under the law replacing that repealed law.

2. Just as the primary legislation must be harmonised, in the same way any regulation or

government notices issued under the different health laws should also be harmonised 'In due course.

3. Laws which deal with health services should be harmonised by the provincial legislatures. Laws dealing with health matters other dm health services should be harmonised by the national Parliament.
4. At provincial level, the provincial governments should harmonise the laws governing the establishment of provincial hospitals. Any such harmonising law can also deal with the regulation and control of private hospital services. The same approach can be taken in relation to health services such as vaccination services, ambulances, maternity homes and the like.
5. It is proposed that laws governing health professionals should not be dealt with at provincial level, for different reasons. First, as already discussed above, it is not clear that health services includes the control of health professionals. Secondly, the existing laws governing health professionals have not been assigned to provincial governments. Thirdly,, if laws to control health professionals will be administered and made at national level it may be undesirable to enact additional laws at provincial level on the same matter. It is therefore proposed that the national Parliament should harmonise the laws controlling health professionals.
6. The control of medicines and related substances should also be dealt with at national level.

vii . It is proposed that the environmental regulation of activities in the interests of public health should also be harmonised at national level.

viii. Specific laws which should be harmonised by provincial governments, by national government and those laws which raise doubts as to which government should harmonise are detailed in the attached document (points 15, 16 and 17). -r c

(d) The final delimitation of powers and functions between national and
provincial institutions of government

1. Certain functions of the Health Act, 1977 (Act 63 of 1977) have been assigned to the provincial governments under Proclamation No R152 of 1994, dated 31 October 1994. Before this can be implemented, Section 235(8) (a) of the Constitution of the RSA, 1993 (Act 200 of 1993) and Section 3(3) (a) - (f) of the Public Service Act, 1994 (Act 103 of 1994) must be complied with.
2. The assignment to the provincial governments of section 14 (c), i.e., the promotion of a safe and healthy environment was inadvertently omitted from proclamation R152 of 1994. The matter has been referred to the State Law Advisers.

(e) Fiscal arrangements between the institutions of national government
and those of the provincial governments

1. There is a deficit of close to R34 million in respect of vacant posts, mostly not funded, on the establishment of the Department of Health. It was resolved at a meeting of the 'Working Group on Health Budgets' held on 10 October 1994, to allocate vacant unfunded posts by taking the average of post allocations and making these posts on a Rand value basis available to the lowest allocated provinces to bring them up to the average allocation of the provinces as a whole. 'Re re-allocation of fielded posts is to be done on the same basis. There will be a delay in the transfer of posts and funds.
2. Boundaries of the provinces need to be finalised before allocation of the 1995/96 budget can take place.
3. Shortfalls of the 1994/95 budget need to be evaluated. It is not possible to submit plans for bridging finance from RDP funds without resolving issues regarding the 1994195 deficit.
4. Future budget planning should not be done individually by provinces but should be done jointly, so as to present an integrated management/budgeting input to the Department of State Expenditure and the RDP.

2. A further submission from the. office of the Special Advisor to the Minister, along the points mentioned 'M your 'Extended list of possible key issues'. is also attached for your attention. (Annexure 2).

DIRECTOR-GENERAL


ENCLOSED ANNEXURES:

Annexure 1: Harmonising Health Laws: Summary, National Health Legislation Review

Committee, 14 November 1994.

· Ibid.: pages 4 - 9.

ANNEXURE 1

HARMONISING HEALTH LAWS:
SUMMARY

1. This is a summary of the accompanying document on the harmonisation of the different health laws in force in different areas.

The existing position

2. Health laws which were in force in the former TBVC states and self-governing territories remain in force until repealed or amended by competent authority.

3. Provincial legislatures may make laws on health services, which clearly covers the provision of hospital and medical services. It is not clear that health services includes the power to make laws on health professionals or on the making of environmental health regulations, but this question does not arise in practice to the extent that the national and provincial governments have agreed that such matters will be dealt with at national level.

4. The national Parliament may also make laws on health services, and national laws will prevail over inconsistent provincial laws if the national law deals with a matter which cannot be effectively regulated by provincial laws or which requires uniform or minimum national standards.

5. The question of which level of government administers existing health laws is only indirectly relevant, as being an indication of provincial capacity to administer laws. A national law can provide that it shall be administered by a provincial authority. Self-governing territories failed to set up bodies to register health professionals and medicines, and this has led to offences being committed in those territories.

How different laws should be harmonised

6. Mere repeal of the TBVC states’ and self-governing territories’ laws will not suffice to extend RSA laws to those areas. Either of two methods can be followed to harmonise laws. A single new law can be passed to replace all existing laws including RSA laws. Alternatively a law can extend the existing RSA laws to the areas of the former TBVC states and self-governing territories.

7. Things done under the laws to be repealed must be deemed to have been done under the laws which will replace them. Eventually different regulations which may have been made under the different laws in force in different areas will also have to be harmonised.

8. Laws on health services should be harmonised at provincial level, and laws on other health matters at national level.

9. The provinces should harmonise provincial Hospitals Ordinances and the black areas hospitals proclamations, as well as the health service provisions of the Health Act.

10. The national government should harmonise the laws on national health services, environmental health, atmospheric pollution, foodstuffs and cosmetics, hazardous substances, international health regulations tobacco products, abortion, medical research, health donations, national health policy, health professions and medicines and related substances.

11. This memorandum also discusses which level of government should harmonise laws on traditional healers, drug dependency, mental health, academic health centres, medical schemes, consent to surgery.

Annexure 2

1. PROVINCIAL GOVERNMENT

(a) Relationship between the powers of national government and provincial government.

The main principle involved is that, until such time that the country adopts a federal form of government, the provinces form part of a unitary state.

This implies that the national government has the final say on national matters and provinces on those matters which specifically affect a province.

Provincial government legislatures should be represented in the Senate through nomination.

Each sector eg police, education, health etc must have a political and administrative co-ordinating body, to ensure that national priorities and provincial priorities are not contra productive.

(b) Representation of provinces, metropoles, rural areas and traditional leaders in the Senate or other chamber of Parliament.

Proposal

Apart from the senators nominated by the provincial government legislatures, it is proposed that 50% (fifty per cent) of the total numbers of senators allowed in the senate should be from "other" groups elected to serve that group's interest, eg:

In the PWV the metropoles must be represented.

In KwaZulu/Natal the rural areas, traditional leaders and the metropole should be represented.

In Northern Transvaal rural areas and traditional leaders must be accommodated.

The objective is to ensure that collectively all rural areas, metropoles or traditional leaders' interest in matters and agendas is attended to and not those in a specific province for a specific group. The Volkstaat group will have to be one of these.

(c) Functional areas of legislative competence and the basis for allocation to three levels of government.

No comments.

(d) & (e) Composition of provincial legislatures and elections and the representation of constituencies.

Elections must be based on a voters' list, compiled of permanent residents residing in that specific province.

The province should be divided into electoral districts to ensure that the elected should remain accountable to the voters of that specific district.

No election should take place without a voters' list. Criteria to take part in the election at provincial level must be the same as for national level.

(f) Majorities required for Bills.

Two thirds of the specific house; central or provincial.

(g) Composition of executive authority numbers, party representation, national unity.

No comments, except governance must be increased - not government. The system is a very costly system.

(h) Financing of provincial services - taxation/loans.

Unless personal tax at central level is reduced to a less crippling level, financing of provincial services cannot be done through direct taxation.

The use of revenue through a toll road system, casinos, horse racing or loans from the taxpayer that will be repayed in X number of years are possibilities.

Position of provincial staff vis a vis public service, and staff of provincial legislature.

All staff working in the public service should have the same service conditions. Salary scales will depend on the particular personnel administration standard (PAS) for the specific discipline.

Provincial staff which want to transfer to Central Government should be free to do so and vice versa.

Staff working for the provincial legislature will be dependent on what they are exactly doing.

Civil servants attached to members of the executive council can be regarded on par with those working in Ministerial Offices.

Establishment of sub-regions and their functions and powers.

Sub-regions are seen as a way in which a particular province is decentralized to bring provincial government nearer to the electorate.

The functions and powers will be those which will enable a province to execute their responsibilities in a more user-friendly, accountable manner in a decentralised way.

(k) Formalising of intergovernmental relations. No comments.

(1) Volkstaat (a separate issue?)

This is a complete separate issue and too complex to be dealt with from a health point of view. The principle involved is that all people dependent on the state at any level, should receive equal treatment and have the same access to health services.

2. LOCAL GOVERNMENT

Without an effective, legitimate, economically viable and sustainable local government system, this country will not progress.

(a) Establishment and status

It is at this level that people's lives improve or deteriorate. Housing, maintenance of the environment, sanitation, water supply and energy supply are the key issues which should be dealt with at this level.

Local government structures must not further divide the governmental structures into a fragmented system which will widen and accentuate the lack of access, acceptability and promote inequity.

Regarding the rendering of public health services - including a 11 health promotion, prevention measures, active treatment of general diseases and rehabilitation - the local government system should promote a unified health service delivery system.

(i) Metropolitan, urban and rural government levels.

Metropolitan government levels delineate itself by its size, locality, economic interdependence, communication routes and communication methods and their actual and potential tax base.

Urban local authorities with populations of 40 000+ are normally in positions simil ar as those of the metropole.

Rural government has one example where it previously worked. In the period before the Regional Services Councils were introduced, the Cape Province'had a system of Divisional Councils. These structures had elected councillors, taxes were paid eg health tax. This allowed the people residing in these areas to demand accountability and improvement of infrastructure. The Western Cape Province is an example of what was achieved before the system was changed in the eighties. The establishment of the Regional Services Councils and utilisation of the levies payable to them were according to a different criteria. The rural areas did not benefit in the same way as during the period of the Divisional Councils.

(ii) Differentiation in powers, functions and structures.

All service delivery directly affecting people should be the responsibility of local government. In certain instances where this level is impossible due to fragmentation, lack of infra structure, lack of financial resources and transitional measures, it must be instituted through a process of capacity building. A planned programme with time scales should be established.

(b) Powers and functions

From a health service delivery point of view, local government structures must comply with certain principles to execute their health function.

- They must be able to render a comprehensive health service.

- They must have the expertise available to render such a service or have the ability to obtain such expertise.

They must be able to render such services in a sustainable manner.

The services must be rendered in such a way that it is financially and physically practicable. (Constitution of the RSA 1993, Chapter 10, Section 175 (3))

The boundaries of local government structures or sub structures must be contiguous to ensure that no islands are created. The areas surrounding these structures ("islands') create greater problems:

- Another authority will have to render the service.

- No equity in service delivery is possible.

- Referral systems create problems.

- Disparity in salaries and service conditions.

As an interim phase until rural local government has been
established or urban local government structures has expanded
their borders to have contiguous borders, the health sector will
have to debate alternatives to ensure -

- equity
- accessibility
- acceptability
- affordability

with the ultimate aim to improve health service delivery and the
health status of communities. Socio-economic development is
relient on a healthy workforce and general well-being of the
population.

(c) Elections and representation No comments.

(d) Financing Of local government services

People must pay for services. The type of service with the staff component needed to deliver the service should determine the tarriff.

A form of medical insurance should be. instituted to ensure that not only the State, but also the individual, will take responsibility for their own health.

(e) Traditional authorities - powers and representation

A health function should not be given to traditional authorities because this will lead to greater fragmentation of a health system that is already fragmented. Traditional authorities should form part of a district health system. Representation on a health council or hospital board can be through election or nomination.