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FREE STATE MUNICIPAL ASSOCIATION
Our ref: 150/10/2
26 January 1995
The Managing Secretary Theme Committee
3 : Constitutional Assembly
Dear Mr Mxenge
ASPECTS OF LOCAL GOVERNMENT IN THE NEXT CONSTITUTIONAL DISPENSAT1ON
I include for submission to Theme Committee 3, three papers dealing with
aspects of local level government, as we see it, that should
be considered in
the constitution-making process. I must, however, stress that these papers are
not our final position but are our
line of thought on the specific issues. We
are continuously devoting attention to these and other aspects of local level
government
in the next constitutional dispensation.
You may well ask who we are. The Free State Municipal Association claims to
be and is
widely acknowledged as the first and, at this stage, only representative and
non-racial association of local governments in our country.
Our mission
is to promote local
government, primarily in our own province, but also nationally and to
protect the rights of
local government. Therefore, we have a vested and substantial interest in
the constitution‑making process and we have made
specific arrangements to
ensure that we do make our
voice heard. We have, inter alia, assigned a person to research the
relevant issues and to
produce papers in this regard. The included documents are evidence of our
commitment to our mission.
I also include for the benefit of Theme Committee 2 some documents relating
to our Association. Could you please make it available
to the persons
concerned.
We are, despite our other commitments, available for consultation and
discussions should it be expected of us.
Yours sincerely
CITY HALL * PRES. BRAND STR. TEL.: (051) 471960 471968
471978 FAX: (051) 308250
P.O. BOX 14 & BLOEMFONTEIN 9300
LOCAL GOVERNMENT IN THE
FINAL CONSTITUTIONAL
DISPENSATION
POSITION PAPER
GENERAL PRINCIPLES
1. INTRODUCTION
Democratic local government is that part of
the government of a state comprising of directly elected representatives of the
enfranchised
residents of a defined geographical area within that state, who, as
a legal entity separate of its individual members, is vested
with prescribed
governmental authority .which it may exercise relatively independent from state
control. Governmental authority
denotes the totality of legal competencies that
enables an institution or a person to enter into a legal relationship with other
legal subjects, or to amend an existing relationship or to discontinue or
suspend an existing relationship in a compelling manner.
Governmental
authority consists of legislative, executive and judicial authority which, in
democratic societies, are exercised by
separate institutions. The Legislature
is responsible for enacting compelling and authoritative rules which are in
principle applicable
to every member of society and must see to it that its
enactments are carried out. The Executive is responsible for the formulation
of
government policy, for ensuring that a sufficient and suitable legal framework
for the implementation of its policies is made
and for executing its policies
through administrative executive institutions. The Judiciary interprets the
law, applies it to the
cases before it and controls the activities of the
Legislature and the Executive.
The purpose of government is to protect
the integrity of the state from external and internal threat, to ensure
harmonious coexistence
of a variety of non-state interests and to create
suitable conditions for individuals to subsist andrealisetheirfulipotential.
Thismeansthatgovernmentmustpromotethe
well-being, ie the living standard and
quality of life, of all the subjects of the state. The well-being of society
will be promoted
where -
ample and equal opportunities exist for each individual to subsist and
through his/her own choice, to realise his/her full potential;
suitable and sufficient public amenities, goods and services are rendered to
liberate individuals from the struggle to satisfy their
survival needs to the
detriment of other, more sophisticated needs;
the physical environment in which individuals subsist and live is
satisfactory and they feel safe and secure.
2. FUNDAMENTAL POINTS
OF DEPARTURE
Section 71 (1)(a) of the Constitution of the Republic of
South Africa 1993 (Act No 200 of 1993) (hereinafter referred to as the "current
Constitution") states that a new constitutional text (hereinafter referred to as
the "next Constitution") shall comply with the Constitutional
Principles
contained in Schedule 4 to the current Constitution. Section 68(2) of the
current Constitution requires the Constitutional
Assembly to adopt the next
Constitution.
The fundamental point of departure underpinning this and
following position papers are found in Constitutional Principle XVI which
states:
Government shall be structured at national, provincial and local
levels
This principle suggests that all three levels of government
shall enjoy powers and competencies conducive to the achievement of the
purpose
of government as a whole.
Constitutional Principle XVIII(1) states that
the powers and functions of the national government and provincial governments
shall
be defined in the constitution. Constitutional Principle )WV provides for
a framework of local government powers, structures and
functions to be set out
in the constitution. It is submitted that these two principles, read together,
form the basis of allocation
of powers and functions among the three levels of
government and require the allocation of powers and functions of each level of
government be constitutionalized.
It seems, however, that further
constitutional principles do not take these two principles into account.
Constitutional Principle
XIX states that the powers and functions of the
national and provincial governments shall include the power to perform functions
for other levels of government on an agency or delegation basis. According to
this principle, the national and provincial levels
of government may perform
functions for one another or for local
governments. It is submitted that local government should also
be
empowered to perform functions for the national and provincial governments
on an agency or delegation basis.
Constitutional Principle XXI contains
the criteria to be applied in the allocation of powers between the national and
provincial levels
of government. Par 1 of this principle states:
'the level at which decisions can be taken most effectively in
respect of the quality and rendering of services, shall be the level
responsible and accountable for the quality and the rendering of
services and such level shall accordingly be empowered to do
SO.
It is submitted that compliance with the letter and spirit of
Constitutional Principle XVI requires that local government should,
during
consideration of powers and functions and to which level it should be allocated,
should be included in this criterium.
Constitutional Principle XXVI
states that each level of government is entitled to an equitable share of
revenue collected nationally.
Constitutional Principle XVII creates the vehicle
for determining how much of revenue collected nationally should be allocated to
provincial and local government. It requires provinces (not provincial
governments) to be represented in that body, but excludes
representation of
local government. It is submitted that local government should be entitled to
equitable representation in the
proposed Financial and Fiscal
Commission.
'It is conceded that a Financial and Fiscal Commission may
make recommendations as to the total amount of money to be allocated to
local
government in each province, but that it will be impracticable to expect such a
body to recommend particular allocations to
individual local governments. For
this reason section 158(b) of the current Constitution requires that financial
allocations made
by the national government to a local government shall
ordinarily be made through the appropriate provincial government. There is,
however, no arrangements made as to how a provincial government shall allocate
such money. It is submitted that provincial governments
should be required to
establish provincial financial and fiscal commissions in which local governments
in the province concerned,
are entitled to equitable
representation.
Further exposition of the content of the Constitutional
Principles that relate to local government, need not be conducted. The
Constitutional
Principles necessitate consideration of the following
questions/issues:
2.1.1 What legislative and executive powers and functions are deemed
appropriate and adequate for local government
2.1.2 How may financial viability be ensured and good public administration
be achieved at local level
2.1.3 What powers, functions and structures of local government are so
fundamental that it needs to be constitutionalized
2.1.4 What are the essential elements of a democratic system of local
government
2.1.5 How should the local government system and processes be designed to
ensure accountability, responsiveness and openness
2.1.6 What fiscal powers are appropriate to local government
2.1.7 What categories of local government may be expedient
2.1.8 What constitutes an equitable share of national revenue or how is an
equitable share of national revenue determined?
The aforementioned eight
basic questions need to be divided into manageable sub-questions so as to
facilitate the process of problem-solving.
Aspects of these questions/issues
will be addressed in this and subsequent position papers.
- PRINCIPLES
CONTAINED IN CHAPTER 10
Several principles pertinent to this paper are included in Chapter 10 of
the
current Constitution. These are:
,3.1 A hierarchy of local government institutions with differentiated powers,
functions and structures may be established (174(2))
by law of a competent
authority (174(1))(XXV)
3.2 Local government enjoys relative autonomy limited by the concept of ultra
vires (174(3); 175(1)) and does not enjoy general competence.
3.3 The f undamental status, purpose and character of local government are to
be maintained (174(4)).
3.4 Local government is entitled to participate in legislative processes on
enactments which may materially affect their status, powers
and functions or the
boundaries of their areas of jurisdiction (174(5)).
3.5 Local governments are required to maintain and promote the well-being of
the residents in their areas of jurisdiction (175(2))
.3.6 Local government must promote the access to specified primary amenities,
goods and services (water, sanitation, transportation
facilities,
electricity, primary health services, education, housing and security)
(175(3)).
3.7 Certain decisions require special majorities (176).
3.8 The council of a local government is required to ensure that the local
administration is based on sound principles of public administration,
good
government and public accountability so as to render efficient services and
ensure effective administration of its affairs (178(1)).
3.9 Local tariffs shall be based on a uniform structure (178(2)).
3.10 The local government electoral system shall include both proportional
and ward representation (179(2)) and shall be regulated
by law.
3.11 An enforceable code of conduct for members and officials of local
government shall be provided for (180).
3.12 Local governments must ensure a safe and healthy local environment
(175(3)).
3.13 Amenities, goods and services are to be rendered in sustainable manner
and must be financially and physically practicable (175(3))
3.14 A local government may create sub-municipal entities and assign specific
functions to such entities (175(6)).
,4. PRINCIPLES DERIVING FROM ELSEWHERE IN THE CURRENT
CONSTITUTION.
Elsewhere in the current Constitution further principles
relating to local government are found:
4.1 Chapter 3 (Fundamental Rights) is binding on local government
institutions (7(1)). Local governments as juristic persons/corporate
bodies are
entitled to the rights contained in chapter 3 (7(2)).
4.2 The traditional leader of a community observing a system of indigenous
law and residing on land in the area of a local authority,
is ex officio
entitled to be a member of that local authority (182).
4.3 Procurement of goods and services by local government shall be regulated
by law and such law shall provide for the establishment
of independent and
impartial tender boards to deal with such procurements (187(1)). Tendering
systems shall be designed to be fair,
public and competitive (187(2)).
4.4 The accounts and financial statements of local governments shall be
audited by the Auditor-General (193(2)). Auditors' reports
shall be
(3
made public by the Auditor-General (193(8)).
4.5 A Commission on Remuneration of Representatives shall make
recommendations to local governments regarding the nature, extent and
conditions
of the remuneration and allowances of councillors (207(2)).
4.6 An act of Parliament shall make provision for the establishment by any
local government of a municipal or metropolitan police
service (221(3)) with
jurisdiction limited to crime prevention and the enforcement of by‑laws
(221(3)(b)).
5. PRIMARY LEGISLATIVE SUPREMACY OVER LOCAL
GOVERNMENT
In terms of the provisions of section 126(1) of the current
Constitution, provincial legislatures are, subject to certain reservations
in
which instances national law will prevail, competent to make laws with regard
to, inter alia, local government. Constitutional
Principle XVIII(2) states that
the powers and functions of the provinces defined in the next Constitution,
shall not be substantially
less than nor substantially inferior to those
provided for in the current Constitution. This means that, subject to instances
of
national necessity, provincial legislatures will, in the next constitutional
dispensation, still be the primary legislative authority
over local
government.
Since the next Constitution shall, according to
Constitutional Principle IV, also be the supreme law of the land which shall be
binding
on all organs of state at all levels of government, local government
needs to be guaranteed a legitimate and entrenched position
as a level of
government to safeguard it against arbitrary legislative and/or executive action
at provincial level. Such safeguards
may include a relatively detailed chapter
dealing with local government powers, functions and structures more or less on
the basis
of the current chapter 10, as opposed to a minimalist approach,
bearing in mind specific issues raised in the following section:
- CLARIFICATION
OF SELECTED PRINCIPLES INCLUDED IN THE CURRENT CONSTITUTION
Some
principles found in Chapter 1 0 and elsewhere in the current Constitution are
couched in wide terms. Although such wide terminology
may be expedient for the
purpose of constitutional development and flexibility, it also causes tremendous
uncertainty. It is suggested
that terminological consistency and semasiological
clarity is essential for sound local public administration and good
government.
6.1 Categorical differentiation
Section 174(2) of the current Constitution provides for categories
metropolitan, urban and rural local government institutions to
be established
and permits structural and functional differentiation. It is submitted that
such broad categorisation is not sufficient
if the functional capacity in terms
of the range and nature of amenities, goods and services which may be rendered
and the relative
decision-making autonomy of individual local governments differ
from one another. It is suggested that specific provision be made
for a
hierarchy of urban and rural local government institutions and for "promotion"
and "demotion" in that hierarchy.
6.2 Autonomy of local government
Autonomy often conjures images of
"independence" and local self determination. Local government, as creatures of
statute, who derive
all their powers and functions from laws made by competent
authorities can never be independent. The autonomy of local government
lies in
its power to decide what amenities, goods and services will be rendered from a
range of authorised services, how it will
be rendered, at what price it will be
rendered and what the standard of service delivery should be. The autonomy of
local government
therefore simply refers to the measure of autonomy granted to
local governments by other tiers of government.
As such a distinction may be made between political or decision‑making
autonomy and financial autonomy. Political/decision-making
autonomy is
decisively determined by, inter alia, the nature and scope of the powers and
functions allocated to local government
and the degree of administrative control
exercised by other tiers of government over local government decision-making.
Financial
autonomy refers, inter atia, to the nature and scope of the sources of
revenue allocated to local government, the willingness of
local government to
exploit the allocated sources of revenue and the ability (and willingness) of
the residents of local government
areas of jurisdiction to pay for services
rendered.
Constitutional Principle XX states, inter alia, that each level of government
shall have appropriate and adequate legislative and
executive powers and
functions that will enable each level to function effectively. It further
states that the allocation of powers
between different levels of government
must, inter alia, promote legitimate provincial autonomy. Should this sentence
of the principle
not be read as also referring to the promotion of legitimate
local autonomy, local government may well be rendered powerless and
be relegated
to local administration.
It is submitted that local autonomy should be linked to functional
ability
in the sense of financial, political and administrative capacity, of
categories of local governments, whilst arrangements are also
made for
individual local governments to enjoy progressive local autonomy as their
functional ability enlarges. This implies that
sets of criteria need to be
developed to determine, in the first place, the functional ability of individual
local governments and,
in the second place, to be used as an evaluation
Instrument to determine whether any local government should be "promoted" or
"demoted".
6.3 Framework of powers and functions
Section 175(3) of the current
Constitution states that a local government shall, to the extent determined in
any applicable law, make
provision for access by all persons residing within its
area to specific amenities, goods and services within a safe and healthy
environment, provided that such amenities, goods and services can be rendered in
a sustainable manner and are financially and physically
practicable.
This
section provides firstly that the applicable law determines the extent to which
services are to be rendered by local government.
Conversely, unless an
applicable law determines the extent of a local government's powers and
functions relating to any of the amenities,
goods or services mentioned in this
section, the obligation to ensure access to any such service is sterile.
Secondly, this section
enjoins local government to make provision for access to
the services listed. It does not entitle nor oblige local government itself
to
render any such service. The question therefore arises if this section
constitutes a framework of local government powers and
functions as contemplated
in Constitutional Principle XXIV.
Accessibility as it is used in this
section, is the continuous, equitable and orderly provision of specific
amenities, goods and/or
services to the residents of a local government area.
In this sense it refers to
spatial, functional and financial accessibility. Spatial accessibility
refers to the acceptability for the persons to whom the service
is
renderedorforwhosebenefitanyfacilityisestablished,ofthedistance, travelling time
and mode of travelling to obtain a specific service
or reach a specific
facility. Financial
accessibility refers tot he affordability of a service which is determined by
both the cost of a service for a consumer and the ability
of the consumer to pay
for the service. Functional accessibility refers to the extent to which and the
nature of a specific service
or facility is acceptable to local
residents.
6.4 Elections and the basis of representation
The current dual system
of representation (wards and proportional representation) is a departure from
Constitutional Principle VIII
that,
generally, there shall be proportional representation. It is also submitted
that the dual system in which every voter is required
to vote twice for separate
purposes, is confusing and quite expensive (in terms of duplication of election
material). However, voters
need to identify with a specific person as being
"their" representative/ councillor. It is submitted that the two systems be
integrated
by establishing a multiple member ward system in terms of which
elections are conducted according to a suitable proportional representation
system.
6.5 Structure: Requirement to establish an executive committee
Section
177 of the current Constitution requires every local government to elect an
executive committee from amongst its members.
It further provides for a forced
coalition to be forged through the constitution of such a committee.
The
executive committee has a dual role, viz -
(a) to advise the council on the matters reserved by law or the council for
itself and
(b) to dispose of the matters delegated by the council to the executive
committee.
Committees are essential to alleviate the volume of work to be considered by
a council by working through voluminous reports, preliminary
clarifying core
issues and ensuring that advice given by officials reflects the policies of the
council. In this sense a committee
is essentially an aid for decision-making by
a council.
It is suggested that the smaller the council, the lesser the need for an
executive committee. The size of a council is roughly determined
by the size of
the local population. In sparsely populated rural areas, villages and smaller
towns the ratio of councillors to residents
are therefore smaller than in large
towns and cities. It is also contended that the variety of issues that need to
be addressed
by small councils are significantly less in volume, although not in
substance, than in large towns and cities.
It is submitted that any council with less than 10 members should not be
required to elect an executive committee but may be authorised
to elect
same.
6.6 Structure: Establishment of other standing committees
Committees as aids in local decision-making processes are suitable structures
for councillors to acquire and develop their analytical
and decision-making
skills, to become really involved in local government and to broaden their
knowledge of specific aspects of local
service delivery. A council should
therefore be allowed to establish standing and ad hoc sub-committees of its
members at its own
discretion and according to local circumstances.
It is suggested that an audit committee should be established by each local
authority. The primary role of an audit committee is
to support a council and
its management regarding the safe-keeping of the council's assets, maintenance
of adequate accounting records
and the design, development and maintenance of
effective internal control systems. The audit committee links a council, its
management,
internal auditors and external auditors. It considers and makes
recommendations regarding audit plans and activities specifically
with a view to
evaluate internal control systems and processes.
6.7 Representation of traditional authorities
Section 182 of the
current Constitution entitles the traditional leader of a community observing a
system of indigenous law and residing
on land within the area of jurisdiction of
an elected local government, to ex officio membership of such elected local
government.
While the intention of this section is accepted in principle,
it is submitted that clarity be sought as to how many seats such traditional
leaders may be entitled to in a local government council and how is it to be
determined which traditional leaders are to enjoy ex
officio membership of a
local government council. It is suggested that only hereditary traditional
leaders should be so entitled
and then only in respect of the local government
area where he/she resides. Any traditional leader who enjoys his/her office by
virtue of it being conferred upon him/her by a hereditary leader or any
(previous) government, ought to be specifically excluded.
In this regard
two principles which appear to enjoy substantial support, viz "wall-to-wall"
local government and the principle that
service delivery should be a function of
elected bodies which are held democratically accountable and who may be removed,
are strongly
supported.
- PRINCIPLES
OF SOUND PUBLIC ADMINISTRATION AND GOOD GOVERNMENT
Section
178(1) of the current Constitution requires of local government to ensure that
its administration is based on sound principles
of public
administration,
good government and public accountability. The principles relating to "sound
public administration and good government"
are as follows:l
7.1 Performanceloperational efficiency
7.2 Legitimacy
7.3 Accessibility of information (see s 23)
7.4 Accountability
7.5 Removability
7.6 Procedural transparency
7.7 Effectiveness
7.8 Fairness
7.9 Participation/consultation
7.10 Responsiveness
7.11 Equity
7.12 Systematic/structural openness
7.13 Gender equality
7.14 lnclusivity
7.15 Representativeness
7.16 Affirmative action
7.17 Lawfulness/legality
7.18 Rationality
- See
Slabbert, F van Z (ed) 1993. DSA in depth: Reconstructing the State: Cape Town:
Die Suid‑Afrikaan. See also Van Vuuren
w (ed) 1993. Democracy as good
governance: Proceedings of the workshop on democracy as good governance.
Stellenbosch.
These principles will be the subject of a further
position paper.
7.19 Public responsibility
7.20 Strengthening political authority over and control of
administrative institutions, actions and omissions.
7.21 Limitation and control of discretionary powers of administrative
institutions and officials.
7.22 Administrative competence
7.23 Pro-activeness and innovativeness
7.24 Impartiality
7.25 Empowerment
7.26 Sustainability
7.27 Affordability
,8. CONCLUDING REMARKS
This position
paper is the first in a series of papers dealing with contemporary issues in
local government with a view ultimately
to achieve the following
mission:
To design systems and processes of local government, administration and
management that would result in the creation of structures
and procedures
conducive to the promotion of the core ideals of democratic governance,
progressive local autonomy and the promotion
of the well-being of the residents
of local government areas of jurisdiction.
This paper seeks to introduce
core principles and values and to elucidate certain constitutional principles
which would form the basis
of further position papers each dealing with specific
issues regarding local government. In the course of the process of constitution
writing further position papers dealing .withfurtherissueswilibesubmitted.
Specificpaperswilideaiwith,interalia,
viability of local government;
intergovernmental relations;
defining principles relating to sound public administration and good
government; and
regionalising non-metropolitan local government.
Dr K Smith
Free
State Municipal Association.
wp6.0\hv\koos.pos
FIRST DRAFT
FOR DISCUSSION ONLY
LOCAL GOVERNMENT IN THE
FINAL CONSTITUTIONAL
DISPENSATION
POSITION PAPER 2
VERTICAL INTERGOVERNMENTAL RELATIONS
INTRODUCTION: PURPOSE AND SCOPE OF LOCAL GOVERNMENT
Local
government is people's political instruments for the achievement of those social
purposes that call for collective expenditure
and for the exercise of collective
authority at local or grass root level. Local government has a twofold purpose.
Firstly, they
are the means by which people can provide services for themselves
and can decide, within the limits of legislation, national policy
and local
resources, what kind of services they want and what kind of environment they
prefer. Secondly local government exists
to provide local government. Local
government must be local it must be representative of organic social
entities whose members have an objective community of interest. It must also be
government it must enable the members of the local government
council to comprehend the problems they have to deal with, the issues they have
to resolve and the challenges facing them. It must be endowed with sufficient
powers to deal with those problems, issues and challenges.
Local government
must be self-government the local government structure must ensure
democratic control of operational activities by its members and ready access to
those members
by the residents. They must be free to make different choices in
different areas according to their understanding of the differing
local needs
and circumstances of the communities they govern. Local government must also be
L Sensible government the members of local
government councils must carry the burden of not only deciding how to allocate
resources among competing claims,
but also of presenting the total bill to the
residents of their areas of jurisdiction.
Local government is
constitutionally responsible for the well-being of the community it governs. It
must seek to promote community
well-being in all its aspects. If it does not
enjoy sufficient statutory powers to deal with all the problems, issues and
challenges,
it must present those problems to the authorised authorities and
must ensure that attention is directed towards such problems, issues
and
challenges. Local government re,sentthe residents of their areas
of jurisdiction.
2
The aforementioned purposes of local government, that of being a provider of
public services and that of being government, constitutes
the conceptual
framework for verticalinter government relations. lmplies that systems and
processes of intergovernmental relations
need to be established to facilitate
the fulfilment by local government of its legitimate purposes. In the following
paragraphs
more attention will be directed towards specific aspects of the
relations between local government on the one hand and national and
provincial
governments on the other hand.
- CONSTITUTIONAL
ARRANGEMENTS FOR INTERGOVERNMENTAL RELATIONS
In terms of section
71 (1) of the Constitution of the Republic of South Africa 1993 (Act No 200 of
1993) the next constitutional text
shall comply with the constitutional
principles contained in schedule 4 to the Constitution. The most fundamental of
those principles
for the purpose of this paper, is Constitutional Principle XVI
which states:
Government shall be structured at national,
provincial and local levels.
In addition to this fundamental
principle, other relevant principles are Constitutional Principle XVIII(1) read
with Constitutional
Principle XXIV which states that the powers and functions of
the three levels of government shall be constitutionally defined. Furthermore,
Constitutional Principle XX states that each level of government shall leave
appropriate and adequate legislative and executive powers
and functions that
will enable each level to function effectively.
Schedule 4 to the
Constitution also determines the parameters of intergovernmental financial
relations. Constitutional Principle
XXVI states that each level of government
shall have a constitutional right to an equitable share of revenue collected
nationally.
Constitutional Principle XXVII creates the vehicle for determining
the aforementioned allocation of revenue collected nationally.
Another
constitutional principle which has a direct bearing on vertical
intergovernmental relationships is Constitutional Principle
XVIII(2) which
states that the powers and functions of the provinces shall not be substantially
less than or substantially inferior
to those defined in the current
Constitution. This principle implies that local government will, more than
likely, still be within
the legislative and executive competence of provincial
government in the next constitutional dispensation.
In addition to the
aforementioned constitutional principles, several further principles relating to
intergovernmental relations are
included in the current Constitution. It is
clear from section 174(1) and 174(3) read with section 175(1) of the current
Constitution
that the doctrine of ultra vires
3
still apply and will, more than likely, also apply in future. In terms of
the provisions of section 178(3) of the current Constitution,
local government
is entitled to an equitable allocation by the provincial government of funds.
Section 158 of the current Constitution
which is closely related to this
provision, states that financial allocations by the national government to a
local government, shall
ordinarily be made through the appropriate provincial
government. It appears therefore that local-provincial relations will be
decisively
important from a local government point of view.
It also appears from preliminary analysis of the Constitutional Principles
and specific provisions of the current Constitution that
vertical
intergovernmental relations, as far as local governments are concerned, are of a
statutory and financial nature. Bearing
this preliminary statement in mind,
attention will now be directed to two fundamental models of intergovernmental
relations.
- FUNDAMENTAL
MODELS OF INTERGOVERNMENTAL RELATIONS
There are basically two
models or traditions of the relationship between levels of government. One
views local government institutions
as administrative devices for the provision
of public services. According to this view the relationship between local
government
and other levels of government is that of agent and principal, local
government being the
agent. The other model sees local government as a system of autonomous
bodies, each having its own rights, powers and duties in which
the relationship
between local government and other levels of government is that of
partners.
The aforementioned principal-agent relationship, which is naturally preferred
by other tiers of government, is characterised by four
conditions. Firstly,
local government is a provider of public services, the nature and scope of which
are often determined nationally
and, sometimes, by provincial government.
Secondly, approval by national or provincial executive authorities are often
required
before any action may be taken. Thirdly, there is acceptance, for most
public services, of general minimum standards which it is
believed, should apply
to the whole country or throughout a province. Fourthly, financial autonomy is
often strictly regulated by,
for instance, statutory ceilings on assessments
rates and other levies, control over growth in expenditure and prescriptions
regarding
budgetary format and substance.
The partnership-model is more often a matter of attitude than that of a power
relationship. The idea of a partnership relation is
only feasible where each
level acknowledge and respect the specific role to be fulfilled by every other
level of government. In
the partnership the relation switches from
directing/controlling by virtue of possessing superior power, to negotiation,
bargaining
and compromise as a result of the
4
acceptance of a partner. The partners perceive and treat each other as a
responsible equal that needs to maintain several partnerships
each dealing with
a specific area of governmental effort for the benefit of all the partners,
while the separate identity of each
partner is maintained. The essence of a
partnership relation is a concern with desirable outcomes rather than with form
and a commitment
to results rather than with procedure.
- PRINCIPLES
OF SOUND INTERGOVERNMENTAL RELATIONS
Several principles need to
be accepted by all levels of government for a partnership relation to be
established. It must, however,
be stressed that intergovernmental relations
cannot be reduced to merely financial relations. Some of the following
principles will,
however, be applicable only to the financial relations between
levels of government. The following principles are submitted:
4.1 Government at all levels and their related administrative substructures,
must realise and acknowledge the need for and importance
of local
government as part of the constitutional machinery of a democratic
society. The fact that local government enjoys constitutional status and
recognition as a level of government, is not considered sufficient to ensure
local government as it was conceptualised earlier in
this paper.
4.2 Local government must be allowed, encouraged and supported to play a
vital role as an equal and full partner in national and regional
development.
4.3 A fair/equitable allocation of responsibilities, powers and duties
between the three levels of government must be strived for
in accordance with
the principle of subsidlarity. In addition to the allocation of powers, duties
and responsibilities, occasion
for and the circumstances under which other
levels of government may intervene in local government performance, should be
carefully
defined.
4.4 Sound intergovernmental relations will only be achieved where full and
adequate consultation, supported by a regular flow of information
at and between
all levels of government are maintained. Consultation in this sense refers to
participation in decision-making (and
species of decision making such as
policy-making and planning) which implies that other levels of government must
be accessible to
local government. Access in this sense refers to the capacity
of local government to influence public policy of other levels of
government and
the ability to enforce responsiveness to local government input.
4.5 Clearly defined legal relations must be established between different
levels of government.
5
4.6 Whenever public resources are transferred from one level of government to
another, the level which makes the transfer is entitled
to demand full account
of how the transferred resources had been spent or otherwise utilised.
4.7 Performance of functions and exercise of concurrent powers at all levels
of government should be integrated through carefully
designed co-ordinative
structures and procedures to avoid duplication, overlapping or non-performance
and to ensure effective and
efficient achievement of policy objectives.
4.8 Sound intergovernmental relations are only possible where each level of
government has at its disposal suitable sources that yields
sufficient revenue.
It is, however, conceivable that local government may need intergovernmental
financial assistance (see Constitutional
Principle XXVI) to perform its
functions and exercise its power.
4.9 Intergovernmental financial assistance is an instrument of local
decision-making (including species of decision-making such as
policy-making and
planning).
4.10 inter-governmental financial assistance must be seen to be equitable.
This means that it must be fair and reasonable or, at
least, be perceived to be
fair and reasonable.
4.11 Intergovernmental financial relations must promote reasonable certainty
and security regarding -
- a stable revenue sharing system and the annual revenue received from such
sharing;
· allocation of sources of revenue;
· the availability of loans;
· other non-repetitive income,,
· the nature and scope of public functions, including relevant legal and
other constraints; and
· possible intervention of one level of government in the affairs of
another.
4.12 Intergovernmental financial relations and policy must be adaptable to
changed and changing circumstances.
4.13 Sound financial relations demand productive sources of revenue; it must
increase almost automatically over time to satisfy short
and long term
demandsforfunds. lntergovernmentalfinancialassistanceneedstoaiiow for increases
in revenue over time.
4.14 Each level of government is entitled to adequate revenue to finance its
reasonable expenditure.
6
- DETERMINANTS
OF SOUND INTERGOVERNMENTAL RELATIONS
There are any number of
determinants that may influence intergovernmental relations depending on the
challenge to be faced and the
issues to be clarified. It is, however, suggested
that five major determinants are universal and omnipresent. These are power,
the fact that local government is a creation of statute with statutory defined
powers and functions which implies the ultra vires
rule, the degree of
commitment by all levels of government to local government, the
allocation of powers and functions between the three levels of government and
the capacity, in terms of resources, of local government
to fulfil its purpose
as stated earlier in this paper.
5.1 Creations of statute
The powers and functions of local governments
are defined in a range of statutes and regulations in terms thereof or are
implied by
the actual wording of such statutes and regulations. This
implies that any competent authority may, with due regard for
the relevant
provisions of
the constitution; if any, amend the powers and functions of local government.
Conversely, local government has to negotiate with the
competent authorities to
obtain additional powers and functions or to have the scope of its existing
powers and functions widened.
In cases where it would clearly not be
appropriate for local government to obtain a specific power or function, local
government
must ensure that the relevant authority address the particular
matter.
There is a need for provincial and a national intergovernmental fora of
similar institutions to be established in which local government
may negotiate
and consult with its provincial and national counterparts respectively. It is,
however, cautioned than such forums
should have as its primary objective
negotiation and consultation on political level, since ample other arrangements
already exist
for consultation on administrative/technical level. The role of
such forums would essentially be to advise provincial and national
governments
on policy issues and to consult with local government on policy.
Similarly, at least the provisions contained in section 174 of the current
Constitution, needs to be retained in the next Constitution.
5.2 Commitment to the idea of local government
For local government to
fulfil its purpose as local government, there is a need for a commitment to
local government as opposed to local administration as a mere
agent of other levels of government. This matter had already been discussed
earlier
in this paper and need not be discussed any further. Suffice it to say
that any commitment to local government would necessitate other
levels of government to reconsider
7
their attitude towards local government. Other levels of government would
need to define and fulfil their role vis-à-vis local
government as
institutions dedicated to enhance the capacity of local government to
effectively and efficiently exercise its powers
and perform its
functions.
5.3 Allocation of powers and functions
There appears to be general
consensus that the fundamental approach of local government to its task of
government, is characterised
by the desire to control and to regulate. There is
also agreement that this approach needs to be replaced by a developmental
approach
so as to promote the well-being of the residents of the areas of
jurisdiction of local governments. This means that the nature and
scope of
local government powers and functions need to be fundamentally investigated to
establish their suitability and adequacy
for local government to reposition and
restructure itself for development. The allocation of powers and functions to
local government
must, however, also determine the role of other tiers of
government, especially provincial government, in the exercise of those powers
and the performance of those functions.
It must be determined if local
government will have specific exclusive powers and functions which may allow for
provincial government
intervention in specific cases. Furthermore, local
government currently enjoy a wide range of permissive powers but is in virtually
no instance obliged to perform any particular function. It has to be determined
which local government powers will be permissive
and which need to be obligatory
to ensure a developmental approach to local government, administration and
management.
In addition to allocating powers and functions to local
government, it must simultaneously be determined what degree of
political/decision-making
and financial autonomy local government shall have.
It is submitted that powers and functions with national/general implications
will be subject to more controls and occasions for intervention than powers and
functions with local impact. Thus, primary health
care may be more strictly
regulated by other levels of government than, for instance local streets, parks
add recreation facilities.
5.4 Capacity of local government
The outstanding feature of
intergovernmental relations since the Second World War, is local government's
insistence that it has inadequate
sources of revenue. Several commissions and
committees of enquiry, such as the Borchenhagen and Schumailn Commissions, the
Browne
Committee and the Croeser Working Group has investigated, reported and
made recommendations in this regard. Several recommendations
have been accepted
and implemented (especially recommendations of the Croeser Working Group),
merely to have local government raising
the same issue
8
once again.
It was occasionally suggested (see the report of the Browne Committee and
some observations of Ms H Groeser) that local government
has sufficient sources
of revenue but that they either spent unwisely or that they do not exploit the
available sources (especially
property assessment rates) optimally. The
introduction of any additional forms of taxation, either at local or national
level, will
raise the aggregate tax burden of the country to a larger
extent.
It seems. therefore that local government has to reappraise its spending
levels and priorities in view of the fact that additional
sources of revenue are
unlikely to be found or to be allocated to local government.
Human resources are another source of frustration for local government in
general, but particularly for smaller local governments.
Many local government
services require the employment of qualified professional and technical staff
which usually are relatively
scarce and, therefore, expensive or are unwilling
to be employed in predominantly rural areas and villages. Rather than share
staff
with neighbouring local governments and thereby enlarging their own
capacity these local governments often employ outside consultants
who view
government in general, as a milking cow. Any local government who lacks the
technical expertise to properly evaluate consultant's
proposals, are often bound
to consent to major capital expenditure that will commit it, in the long term,
to recurring operational
expenditure.
It is suggested that the level of sophistication and the standard of local
services has a decisive influence on local government expenditure.
By
introducing a system of functional differentiation based on institutional
capacity, much of these problems may be alleviated.
This system was advocated
in Position Paper 1: General Principles and is not dealt with further in this
paper.
5.5 Political power and authority
Political power amounts to the
ability of a political actor, in this case a level of government, to obtain
results determined by that
actor in its relationship with another political
actor, in this case another level of government, which are in conflict or
incompatible
with the will or results desired by the other actor. A level of
government therefore possesses power if it can force another level
to comply
with its wishes. Power in this sense is closely related to the range and nature
of the resources commanded by any level
of government, which are the result of
its constitutional/political and social status. Authority creates a situation
of obedience
of one level of government to another level, is frequently but not
always supported by power and is characterised by one level consenting
to a
submissive or obedient role vis-à-vis another level of
9
government.
In the context of intergovernmental relations, power refers to the possession
by one level of government of resources/facilities which
another level of
government require to reach its objectives. These facilities include:
(a) Legal facilities, i.e. the essential and discretionary powers assigned by
one level of government to another, usually hierarchical
lower, level of
government. Obtaining these facilities enable the recipient level to achieve
its objectives.
(b) Financial facilities.
(c) Political facilities, i.e. the right and ability of political decision
makers at various levels to communicate, negotiate and
bargain with one another
on policies and now to achieve policy objectives. Often local level political
decision-makers are only
granted an entry level at the provincial and national
levels through civil servants, thereby promoting the idea of principal and
agent.
(d) Information facilities. Provincial and national levels of government
often has the capacity, in terms of resources, to obtain
and maintain
comprehensive information/databanks which could benefit local level government
who does not have that capacity. Information
facilities also refer to technical
knowledge which could enlarge local level capacity and, therefore, effective
government, administration
and management.
The principal-agent relation referred to earlier advocates the retention of
as much as possible power and, therefore, facilities/resources
at the highest
possible level. A partnership, however, advocates continuous exchange of
facilities between levels of government.
- INSTITUTIONALISING
INTERGOVERNMENTAL RELATIONS
Intergovernmental relations used to
be institutionalised in three areas, viz. statutory, financial and
administrative. Statutes or
the Constitution must provide a suitable framework
for governmental relations, must create suitable structures to promote the
establishment
and maintenance of sound relations and must allocate suitable
powers and functions to each level of government. It has been suggested
in
Position Paper 1: General Principles that -
local government should be entitled to equitable representation in the
Financial and Fiscal Commission;
10
provincial financial and fiscal commissions need to be established in which
local government in each province enjoy equitable representation;
formal intergovernmental forums need to be established at national and
provincial levels to discuss, negotiate and consult on matters
pertaining to
policy.
It is further suggested that a national ministry of local government should
be established to support, facilitate and co-ordinate
local government
endeavours and to ensure co-ordination and consultation by and with other
national ministries which often deal with
matters which are also local
government functions.
Financial relations will more or less be institutionalised by adopting two
previous suggestions pertaining to the Financial and Fiscal
Commission and
provincial financial and fiscal commissions. Any government's need for finances
is a result of its objectives which,
in turn, are (or should be) the product of
the legitimate needs of the people under its jurisdiction. The range of
objectives are
dependent on the nature and scope of the powers and functions
allocated to any level of government. The wider the scope of its powers
and
functions, the greater the demand for delivery of services to satisfy needs for
those amenities, goods or services. If local
government does not have suitable
sources that renders sufficient revenue, it becomes dependent on
intergovernmental financial assistance.
This situation creates the opportunity
for other levels of government to intervene in legitimate local decision-making
processes.
Hence, the importance of the principle stated above that
intergovernmental financial assistance shall not be used as an opportunity
to
manipulate local decision-making.
Administrative relations need not be expanded on here since they usually deal
with everyday matters within the framework of statutory
and financial
relations.
- CONCLUSION
The
success of intergovernmental relations is as much a result of formal, statutory
regulation as it is of attitude. The constitutional
guarantee that government
shall be structured at national, provincial and local levels, is sterile unless
-
the three levels view and treat one another as partners and not as principal
and agent;
adequate powers and functions, including concurrent and exclusive powers and
functions, are assigned to each level of government
1
that would enable it to fulfil its purpose; and
there is a
commitment to the idea of local
government.
COMPILED BY
DR K
SMITH
FREE STATE MUNICIPAL ASSOCIATION
LOCAL GOVERNMENT IN THE
FINAL CONSTITUTIONAL DISPENSATION
POSITION PAPER 3
STRUCTURE OF LOCAL GOVERNMENT
1. INTRODUCTION
The local government
structure is not an end in itself, it is a means to an end. Consequently,
before a local government structure is designed, careful deliberation and
consideration of the ends, i.e. the purpose of local government,
needs to be
conducted. Local government is part of the government of a
state. As such it is, inter alia, responsible for the well-being
of the people within its area of jurisdiction. Well-being in this sense
refers to the living standard (material welfare) and quality of
life (immaterial welfare) of people. Individual persons, however,
each have their own idea of what constitutes their well-being. The local
government structure must therefore be designed to receive input from those
persons and to produce output consistent with the ideas
of those people. The
structure must, in other words, be accessible in its widest
sense.
The process of governing, administration and management
must be visible, i.e. conducted in public, transparent, i.e. readily
understandable and receptive for and responsive to environmental input. This
means that the local government structure needs to be
sufficiently flexible to develop as local circumstances change and
develop.
To promote and maintain the well-being of people within
local government areas of jurisdiction necessitates a developmental approach
to
local government, administration and management, in stead of a
preoccupation with control. Development presupposes a structure which is
designed for its purpose, a structure conducive to participation by and
consultation of the various interests in the local community. Therefore,
the structure must be designed to prohibit institutional closeness and
isolation.
2. FIRST PRINCIPLES
Constitutional
Principle XVI states that government shall be structured at national,
provincial and local level. This means that there shall be three
levels of public institutions each vested with governmental authority.
Governmental authority is all the legal competencies that enables an
institution to enter into a legal relationship with other legal subjects or to
amend, suspend or discontinue
2
an existing legal relationship in a compelling manner. The essence of
government therefore lies in the authority to compel someone
to do or not to do
something. Constitutional Principle XXIV states, inter alia, that the
constitution shall contain a framework
of local government powers, functions and
structures. By constitutionalising a framework of local government structures,
a degree
of national uniformity of local government structures may be
established. Since it is a sound principle of structural design that
structure
should follow the purpose/mission of an institution, the constitution has to
contain the mission of local government.
Section 175(2) of the Constitution of
the Republic of South Africa, 1993 (Act No 200 of 1993) states that the
purpose/mission of
local government is to maintain and promote the well-being of
all persons within the area of jurisdiction of a local
government.
Constitutional Principle XX states, inter alia, that each
level of government shall have appropriate and adequate legislative and
executive powers and functions that will enable each level to function
effectively. This means that each level of government should
be allocated those
powers and functions necessary for it to pursue its purpose/mission. Local
government, therefore, has to be allocated
appropriate and adequate powers and
functions to maintain and promote the well-being of the persons within its area
of jurisdiction.
Constitutional Principle VI embraces a fundamental
structural design principle. It states that there shall be a separation of
powers
(i.e. governmental authority) between the legislature, the executive and
the judiciary. To ensure openness, responsiveness and accountability,
there
must be appropriate checks and balances between the different branches of
government. The principles of openness and accountability,
needs also to be
linked to Constitutional Principle IX which states that there shall be freedom
of information.
Constitutional Principles VI and XX as set out above,
contains the fundamental principles of structural design of local government
that needs to be constitutionalised. These are -
separation of powers
openness
responsiveness
accountability.
In the ensuing paragraphs attention will be directed
to the content, from a local government point of view, of these principles and
further principles regarded as being supportive of or incidental to the
aforementioned four principles, will be introduced.
3. SEPARATION
OF POWERS
According to the doctrine of trias politica, which is
attributed to Charles-Louis de Secondat, Baron de Montesquieu, the different
organs of state should exist
3
largely independent of one another and exert mutual control over each
other, thereby preventing misuse of power. A complete separation
of powers, in
the sense of distributing of the three functions of government among three
independent sets of organs with no overlapping
or co-ordination would bring
government to a standstill. The doctrine urges the prevention of tyranny by
conferring too much powers
on any one person or body and the check of one power
by another. Although there is a measure of structural and functional separation
of organs for the sake of a more specialised and efficient fulfilment of their
functions and, theoretically, to safeguard public
and private legal civil rights
and liberties, practice does not reveal any absolute separation of powers.
Legislatures do not only
legislate, executives do not only execute legislation
and the judiciary does not only adjudicate.
What could be regarded as a
development of the basic idea of separation of powers, which is often attributed
to Woodrow Wilson, promotes
the idea that "politics" (actually the making of
public policy) are distinct from and superior to "administration" (defined,
narrowly,
as the execution of policy) and that these two functions need to be
separated. This separation means that -
> the executive branch of government actually consists of two levels with
policy-making being the function of directly or indirectly
elected
office‑bearers 'and policy-execution the function of appointed officials,
the selection and/or appointment of whom
usually is a function of the political
executive; and
the political executive is supreme over the administrative
executive who is accountable to the political executive.
Public administrationists and public administrators often promote the notion
that
law-making and policy-making are successive steps of the same process.
According to this notion, law-making is the ultimate step
in the policy-making
process during which a policy is converted into law thus achieving superior
status to the original or any subsequent
policy. Viewed like this, it is
believed that policy-making, including the subsequent process of law-making
(politics) and policy-execution
("administration") are distinct and separate
processes which are or ought to be carried out by completely different sets of
actors
each possessing different attributes and skills.
In practice,
however, policy-making and execution are merely phases of the policy process and
distinction of the one phase from the
other is not always possible. The two
phases are not only linked, they are intertwined to such an extent that the
beginning of one
cannot be distinguished from the other. Furthermore, the
political executive and the administrative executive need to establish
systems
and processes of mutual support and co-operation which further obstructs clear
distinction of the two phases.
What needs to be done, is to clearly
establish the functions and powers of the
4
political executive, the checks and balances regulating the performance
of those functions and the exercise of those powers to ensure
clear allocation
of responsibility for "politics" and "administration".
The fundamental
function of the political executive is to make policy. An essential incidental
function of the political executive
is to acquire and allocate sufficient and
suitable resources (in its widest sense) for the pursuit of the objectives
stated in policies
and to control the utilisation of the allocated resources,
subject to specific checks and balances. Policy-making therefore needs
to be
supported by a specific allocation of the responsibility for resource management
to the political executive.
Separation and allocation of powers between
two or more branches of government may be achieved in functional and/or
structural terms.
Functional separation of powers means that legislative,
executive and judicial powers are distinct from one another. To legislate
means
to make authoritative and compelling rules which are in principle applicable to
every member of society and includes the duty
of ensuring that the
enactments/ruies that were made are actually carried out by institutions
established for this purpose and holding
such institutions accountable for
exercising the responsibilities conferred on them. To execute, in the sense of
exercising governmental
authority, means to make government policy, to ensure
that an appropriate and adequate legal framework for implementation of the
policy exists or is made and to implement and execute policy. To adjudicate
means to interpret the law, to apply the law to specific
cases and to control
the activities of the other branches of government in terms of the
law.
Absolute functional separation of powers is, however, not possible
in modern circumstances, The nature and scope of government functions,
continuous environmental change and constraints of time, necessitates functional
overlapping. Legislative powers and often delegated
to executive institutions,
judicial functions are often performed by institutions outside of the ordinary
courts and the executive
often effectively controls the legislative programme,
especially in cabinet systems.
Structural separation of powers occurs
when the legislative, executive and judicial functions are performed by separate
institutions
which are virtually independent from one another. Absolute
structural separation is only possible where members of one branch of
government
are not members of any other branch, nor are they appointed or elected by the
members of another branch thereby owing
loyalty to their appointers. This means
that absolute structural separation will only be possible where all the members
of all the
branches of government are directly elected by enfranchised citizens.
Structural overlapping occurs where the members of one branch,
say the
executive, are required to be members of another branch, say the legislature, or
where the members or some members of one
branch elect or appoint the members of
another branch.
5
- HORIZONTAL
INTERGOVERNMENTAL CO-ORDINATION
The purpose of government is to protect the integrity of the state from
external
and internal threat, to ensure harmonious coexistence of a variety of
non-state
interests and to create suitable conditions for individuals to
subsist and to realise their full potential, i.e. to maintain and promote
the
well-being of the inhabitants of a country. Effective and efficient fulfilment
of this purpose, requires that appropriate co-ordinating
arrangements are made
to ensure integrated governmental effort. The pre-emptive and co-ordinating
arrangements contemplated here
are known as checks and balances. Checks and
balances require a range of structural and procedural arrangements to be made.
Structural
arrangements include the establishment of institutions by a branch of
government to control and review the activities of another
branch such as an
Auditor-denerai, a Public Protector, legislative committees, parliamentary
committees for public accounts, a judicial
commission and a human rights
commission. Procedural arrangements include question time in the legislatures,
debates on public issues,
legislative and policy debates, investigations and
public hearings on specific matters.
5. STRUCTURAL DESIGN
PRINCIPLES
Four principles appears to be fundamental to the design of
local government structures. They are separation of powers, openness,
responsiveness and accountability. In addition, the local government structure
must be designed to ensure effective and efficient
pursuit by any local
government of its constitutional purpose/mission.
Responsiveness
is the obligation to determine, define and consider public needs, to
deliberate on those needs and to arrive at balanced, fair and
just decisions in
the general public interest. Responsiveness may be enhanced by meaningful and
regular participation by the public in the processes of decision making
(including species of decision-making such as policy-making and planning),
implementing
decisions taken and evaluating the outcomes of implementation. The
decision-making process should, however, not be aimed at, finding
the optimal
solutions to problems formulated and presented by government, but must include a
process of allowing the public to set
the public agenda. Participation implies
structural openness or accessibility, capacity‑building (i.e. empowerment)
and access
to information. Structural openness or accessibility implies
the capacity of participants to influence public decision making. It therefore
requires that the institution
should not only be accessible but it must also be
approachable, i.e. any contributions made during participation processes
must in fact be considered during the actual decision-making.
6
Approachability also means that the institutional processes are readily
understandable for all the participants. Empowerment is the process of
enabling people to meet their needs and solve their problems effectively by the
widening of life opportunities and
the removal of public issues from the sole
control of the local government. Responsiveness as empowerment means that the
public
should be able to participate in the development of solutions to major
contemporary problems and issues, in defining those issues
and in choosing a
solution, that control of the local government resources are shared with the
community, that adequate and affordable
standards of service rendering are
developed and that the public is given the means of enforcing those standards
o@, at least, of
seeking redress in the event of serious
non-compliance.
To be accountable means to answer for a
responsibility conferred. This implies that responsibility for the
performance of a function or the exercise of a power or duty should be clearly
allocated to a person or body. Accountability
also requires openness and
transparency. Openness in this sense refers to the opportunities for
observation at every stage of decision-making, decision implementation,
execution and
evaluation of outcomes. Transparencyrefers to the
understandability of institutional procedures and the ease with which departures
from procedure may be detected. Openness and
transparency also require various
entry-points to exist for extra-institutional actors to observe institutional
processes and to
participate in those processes. Meaningful accountability
implies that any malfeasance must be redressed effectively. Periodic
elections
may not be sufficient to ensure effective accountability, especially in cases of
serious malfeasance.
Design of a mission friendly structure must leave
room for local choices to be made regarding the most suitable structure
according
to local interpretation of the constitutional mission and local
priorities. This means that the law dealing with structural design,
must be
sufficiently flexible to ensure strategic restructuring according to local needs
and priorities. Structural design is also
related to the nature and scope of
the powers and functions allocated to local government. Local government
traditionally provides
developmental hardware (infrastructure) with little
attention being given to developmental software, such as personal welfare
services
and education. If local government is to be allocated powers and
functions relating to the provision and maintenance of developmental
software,
structural design must be compatible to the specific needs of the residents in
local government areas of jurisdiction.
6. FORMS OF LOCAL
GOVERNMENT
The traditional structure of local government is characterised
by:
(a) A council elected on a simple majority system in wards. The Council
possesses legislative and executive powers. Often its legislative
and executive
powers may not be exercised unless it had received and considered a report from
a committee of its members. Supervision
and
7
control of the administrative executive is, however, often vested in the same
advisory committee.
(b) Relatively clear separation of "politics" and "administration".
(c) Appointment by the council of a professional chief executive and
accounting officer and other chief officers. The chief executive
officer has
statutory defined duties performed under supervision and control of the council
and/or the committee mentioned in paragraph
(a).
The traditional
structure of South African local government is approximately comparable to the
US council-manager plan, although some
of its features are attributable to the
British system from which it developed.
the Constitutional Principles
contained in Schedule 4 and some provisions of Chapter 10 of the Republic of
South Africa 1993, has
slightly departed from the traditional characteristics of
the local government system:
(I) Election of a council on a dual system. A number of members are elected
by a simple majority in wards and the remainder at large
by proportional
representation; and
(ii) the obligatory establishment of an executive committee on the principle
of a "forced coalition" with no statutory powers, functions
or
responsibilities.
The following issues need to be addressed:
- Unification
of legislative and (political) executive powers and functions in the same body
as is currently the case, in view of Constitutional
Principle VI which requires
a separation of powers;
- Fragmentation
of political executive authority between the council and a committee of its
members thereby obstructing clear allocation
of responsibility;
- Methods
of the selection of the (political) executive, should it be a person or body
separate from the legislature, i.e. direct or
indirect election or
appointment;
- Desirability
of a collective or a single (political) executive, i.e. a committee or an
individual person as (political) executive;
- Removal
of the executive, i.e. the term of office of the (political) executive and the
basis for its determination;
- Allocation
of powers, functions and responsibility between the legislature and the
(political) executive;
8
- Separation
of political executive functions and powers from administrative executive powers
and functions and the relationship between
the political and administrative
executive institutions;
- Should
the political be a collective, determination of the nature of responsibility, le
collective and/or individual responsibility;
- Ensuring
openness of the legislature and the political and administrative executives
thereby promoting freedom of information, access
to the local government
institution and participatory local government, administration and
management;
- Establishing
systems and processes conducive to accountability.
These issues will be addressed in the following paragraphs.
6.1 UNIFICATIONISEPARATION OF LEGISLATIVE AND EXECUTIVE POWER
A study
of other systems of local government, reveals two basic types of executives. On
the one hand one finds committee type executives
and on the other, single member
executives. Variations of the committee-type executives include a single
committee system where
the committee-members usually are collectively
responsible for the executive function or where each committee member is
allocated
a portfolio, which usually is a specific functional activity or a
group of functional activities, for which he/she is responsible
whilst the
committee is collectively responsible for the executive function as a whole.
Another variation of committee-type executives
is the multiple committee system
in which each functional activity is or a group of functional activities are
allocated to a committee
which is collectively responsible for that
activity/ties.
Single member executives may include one individual being
politically responsible for the executive function or where a number of
individuals may each be responsible for a specific functional activity. In the
latter instance the executives often forms a loose
co-ordinating
body.
6.1.1 COMMITTEE-TYPE EXECUTIVES
Local government in South
Africa traditionally has no absolute and clear functional and structural
separation of legislative and executive
powers. What little statutory
separation there was, effectively was little more than fragmentation of
executive authority with the
council retaining the material executive authority
and a committee of its members being responsible for "minor" executive
functions,
such as supervising the collection and spending of revenue, a
function it actually shared with the chief financial officer and the
accounting
officer and controlling the activities of the administrative executive, a
function it shared with the chief executive
officer. In real terms the
executive's statutory executive functions were administrative and not political
in nature. Whatever
executive functions were delegated, could at any time have
been
9
revoked or were subject to revision by the council. The major role of
the "executive"-type committees were advisory.
A small, almost
negligible, portion of a local government council's work is dedicated to
legislative functions. Functional and structural
separation of the executive
from the legislature will, therefore, have a real impact on those councillors
who are not members of
the executive. It may even be said that any councillor
who is not a member of the executive is not able to fulfil his/her function
as a
representative of his/her constituency nor of the community. By effectively
excluding some councillors from the executive,
executive action may be viewed as
illegitimate due to "unrepresentativity" of the executive.
By its nature
and through statutory provision, "executive" committees usually meet in camera,
thereby nullifying the principle of
openness and inviting
unaccountability.
6.1.2 SINGLE EXECUTIVES
The concept of an
elected (directly and indirectly) chief executive officer is totally alien to
South African local government. Evidence
exists that the "executive mayor"
system is falling in disfavour due to the fact that able administrators are
unwilling to subject
themselves to political contests involved in running for
office and that able politicians who are able to win elections, are often
not
able administrators. Furthermore an elected chief executive carries the baggage
of political campaigning into office, thereby
having obligations which may be
considered grossly unethical once they are met. Incumbent elected chief
executives may tend to take
decisions solely for political gain, thereby
neglecting real local issues. There is no instance where an absolute functional
separation
of executive from legislative functions exist. Either the council,
as legislature has to approve the budget prepared by the chief
executive or the
council can by fixing rates, charges and other fees manipulate
expenditure.
Another option is the allocation of executive authority,
subject to specific reservations, in an appointed official. The executive
function most often reserved for the legislature is the consideration and
approval of the budget and the concomitant fixing of rates,
charges and fees.
This system (the council manager plan) is widely used in the United
States.
It is suggested that -
(a) The principle of separation of powers contained in Constitutional
Principle VI actually refers to such separation of powers as
may be consistent
with democracy and does not suggest an absolute separation of powers;
(b) Legislative and executive authority on local level be vested in the local
government council;
(c) Local government councils be authorised
to establish one committee
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consisting of not more than one quarter of its members to advise the council
on the performance of its functions and the exercise
of its powers.
(d) Local government councils be authorised delegate any of its
powers or functions, except such powers and functions as may be reserved for the
council, to the committee contemplated
in paragraph (c) above;
(e) The following powers and functions be reserved for the local
government
council:
(i) the making, amendment and repeal of by-laws;
(ii) the acquisition and alienation of immovable property;
(ill) the approval of the annual budget and amendment of the approved
budget;
(iv) the appointment of a chief executive officer;
(vi) the establishment and abolition of organisational units and subunits;
and
(vii) the appointment of chief officers; and
(f) The term of office of the committee contemplated in paragraph (c) above
be the same as the term of office of the council itself,
subject to the council
being authorised to dismiss any member of the committee or the committee as a
whole.
7.' CONSTITUTIONALISING OPENNESS, RESPONSIVENESS AND
ACCOUNTABILITY
According to Constitutional Principle VI, a system of
checks and balances must be introduced to ensure openness, responsiveness and
accountability. These principles has been defined earlier in this paper and
will receive more attention in a subsequent position
paper. The key issue for
the purpose of this paper is how these principles may be promoted, given the
peculiar division of functions
on local level between the legislature and the
executive.
Structural openness, responsiveness and accountability may be
promoted by -
limiting and strictly regulating the wide discretionary powers local
government councils currently enjoy to conduct council meetings
or parts of
council meetings in camera;
prohibiting members of a council who are not members of a committee to attend
and participate in committee meetings;
requiring an extensive budgetary speech to be made at the submission of the
draft estimates to the council;
requiring chief financial officers/accounting officers to submit an annual
financial report to the council and requiring a council
to consider and publish
such a report;
requiring that the financial statements and auditor's report be simplified
and made publicly available;
requiring a mayoral report on an annual basis to be made publicly
available;
establishment of a provincial public protector; and
establishment of an audit committee.
8.
CONCLUSION
Constitutional Principle VI requires a functional and
structural separation of powers between the three branches of government in
a
manner consistent with democracy. Since a negligible portion of a local
government's work is dedicated to legislating and the
bulk of its work is of an
executive nature, it is suggested that the legislative and executive authority
at local level, be unified
in the elected council. The council should, however,
be authorised to establish a committee to which it may delegate specific
executive
powers.
Compiled by
DR K
SMITH
KOOS\POSITION.NO3
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