Towards Good Local Governance

Report
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Welcome…
20 Years of Local Democracy in
South Africa: Towards Good Local
Governance
Political / Administrative Interface
20 October 2014
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Constitutional
context
Background to Political Offices in Local Government
• Office Bearers are elected representatives in a sphere of a unitary
government which in turn is part of a constitutional state.
• Fundamental for Office Bearers to understand their obligations and
the concept of constitutionalism.
• Actions of municipality must be consistent with the legal environment
of the Constitution and the legislation flowing from it.
• Principle of legality extends beyond what a municipality does, to
include what it is, how it structures itself, how it operates, manages its
finances and funds itself.
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Distinguishing between
a Municipality and its
Council
LOCAL GOVERNMENT
• Sphere of Government and Consists of municipalities;
• National and Provincial government may not impede on local government’s
right to exercise its powers or perform its functions.
MUNICIPALITIES
• Municipalities are organs of state and consist of:(i)
political structures;
(ii)
administration; and
(iii)
community within municipal area.
MUNICIPAL COUNCILS
• Municipal council is a political structure consisting of directly and indirectly
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elected councillors
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Executive and the
Administration
POLITICAL
ADMINISTRATIVE
(EXECUTIVE AUTHORITY)
(IMPLEMENTATION ARM)
Executive Mayor /Executive Committee
Municipal Manager
Speaker
Sect 56 Managers;
Mayor / Mayoral Committee
Municipal Employees
Whip of Council
Committees of the Council
Chairpersons of section 79 committees
Councillors
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Objects of Local
Government
Constitutional objects of local government:
• Provide democratic and accountable government for local
communities;
• Ensure the provision of services to communities in a sustainable
manner;
• Promote social and economic development;
• Promote a safe and healthy environment; and
• Encourage the involvement of communities and community
organisations in matters of local government.
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The Role of the
Municipal Council
• Exercise the municipality’s executive and legislative authority;
• Provide, democratic and accountable government;
• Encourage the involvement of the community in municipal affairs;
• Ensure services are provided in sustainable manner;
• Consult the community about the level, quality, range and impact of
services and the available options for service delivery;
• Promote and undertake development in the municipality;
• Contribute to realization of constitutional fundamental rights;
• Develop mechanisms to consult the community and community
organizations in exercising and performing its powers and functions
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The Role of the
Administration
• Implement the lawful strategies, plans, policies, resolutions and
bylaws of the municipal council and the policies and laws of other
spheres of government;
• Advise the council and all political structures and political office
bearers;
• Develop administrative/operational policies;
• Manage, operate and maintain the provision of services in a
sustainable and equitable manner;
• Administer the affairs of the municipality;
• Manage the municipality’s resources.
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Policy Direction and
Accountability
Framework
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Why tensions between the
Political / Administrative
Offices?
• Municipal councils exercise both legislative and executive functions.
• Intention: to facilitate hands-on governance and synergy between elected
representatives, the executive and administration.
• The proximity was meant to facilitate a more vibrant and responsive
municipality that would ultimately result in efficient service delivery.
• This system, however, demands checks and balances and role definition in
order to avoid role confusion, conflict and abuse of power.
• LG legislation establishes various political offices, political office bearers and
administrative positions within the municipality and broadly defines the
functions of these organs.
• In each municipality, councillors, executive councillors and officials thus
work together very closely in a complex environment.
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Why tensions between the
Political / Administrative
Offices?
• The close interaction between politicians and officials is one of the strengths
of local democracy because it brings the administration in close and frequent
contact with political representatives of communities.
• However, uncertainty about the roles and responsibilities of councillors,
executive councillors and staff members can lead to tension and conflict
within the municipality.
• The Municipal Structures Act provides for the creation of municipal
executives (an executive mayor or an executive committee and mayor) and
describes their basic functions.
• However, the individual members of the executive do not have specified
functions
• In contrast, the legislative functions of
10 the municipal manager and the CFO
is clearly set out
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Why tensions between
the Political /
Administrative Offices?
• Administration cite as a concern the problems caused by the undue
interference of councillors in the administration and view it as a very real
hindrance to service delivery.
• A fundamental concern is also the detrimental impact of excessive and
undue political interference by external party political structures in
municipal governance.
• It is said that in some instances party structures seek to micro-manage
municipalities
• In addition, in some instances management employees occupy positions in
political parties and this blurs the reporting lines within the municipal
administration
• The Executive cite as a concern the fact that the municipal manager is of
the view that he/she in control of the11municipality to the exclusion of the
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Why tensions between
the Political /
Administrative Offices?
• The tension between the Executive and the Administration is not unique to
South Africa
• Councillor Stephen Greenhalgh, Leader of the London Borough of
Hammersmith and Fulham is of the view that to be an effective council
leader of an inner London borough has been the greatest challenge that he
has ever faced and believes that you need the orderly, rational mind of a
manager, the creative soul of a leader and the canny art of a politician to
succeed.
• He further states that the best people who choose to work in local
government are public servants who want to deliver for their residents while
the best councillors care about the place they represent.
• The above illustrates the natural tensions between the two roles in a
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municipal environment.
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How do we limit the
tensions?
•
Municipalities themselves must define the precise roles and responsibilities of
its political structures, political office bearers and the municipal manager as the
head of administration and delegate the necessary authority to the said
structures and office bearers
•
Aim is to define and shape the relationships within the municipal council and
between the council and the administration
•
The municipality must ensure that there are adequate checks and balances in
place in the municipality
•
The municipality must ensure that it establishes and uses the legislated and
other internal oversight mechanisms available to it adequately
•
The result is a carefully crafted system of governance & oversight whose
success is dependent on all constituent parts working in sync.
•
Practically, if one component of the system
is deficient, it has a detrimental
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knock-on effect which ultimately impacts municipal service delivery.
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Terms of Reference
• Section 53 of the Systems Act require municipalities to determine the
roles and responsibilities of all political office bearers, political structures
and the municipal manager
• Terms of reference must:
– be in writing;
– be in precise terms;
– give effect to council's internal documents, such as rules, procedures,
delegations, standing orders, etc. This means that standing orders,
delegations, policies and procedures must not contradict the terms of
reference, but implement them;
– contain a definition of areas of responsibility;
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Terms of Reference
(Cont.)
– indicate lines of accountability and reporting (which differ);
– explain the relationship and interaction between structures, officebearers and the adminsitration
– specify communication lines, including interaction with the municipal
manager and interaction with officials other than the municipal manager
– include dispute resolution mechanisms
• Terms of reference must be aligned to and read with the system of
delegations of the municipality
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System of Delegations
• Section 59 of the Systems Act require municipalities to develop a system of
delegations that needs to be updated regularly but after each election
• The delegations:• Must enhance service delivery without sacrificing accountability;
• Must be lawful;
• Must be in writing;
• Must recognise the distinction between the strategic, political and policy
setting role of the political structures and the operational role of the
administration;
• Must focus the Council, the Executive Mayor, Speaker, Whip and other
political structures on their principal obligations during their term of office;
• Must provide for good governance and
allow for adequate checks and
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balances.
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System of Delegations
(Cont.)
Checks and balances provided for in the system of delegations:
•
Appeals, s 62
•
Withdrawal of delegation, s 64
•
Review of delegations, s 65
•
Right to intervene by delegator,
•
Review of decisions, s 59(3)
•
Separation of administration from decision-making
•
Audits of decisions
•
Reports of decisions, s 63
General conditions for delegations
•
•
Compliance with legislation and council policies
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In line with IDP and budget
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System of Delegations
(Cont.)
Functional areas must be defined for:
• Council
• Executive Mayor / Executive Committee
• Speaker
• Whip
• Mayor / Mayoral Committee / MMC
• Section 80 Committees
• Section 79 Committees
• MM and senior managers
• Appeals committee
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Delegations to political
structures
Matters that may not be delegated by Council:
•
Passing of by-laws
•
Approval of budgets
•
Impositions of rates and other taxes, levies and duties
•
Raising of loans
•
Setting of tariffs
•
To enter into a service delivery agreement i.t.o. Section 76(b) of the Systems Act
•
The approval or amendment of the IDP
Matters that may only be delegated to EM or Mayoral Committee:
•
The decision to expropriate immovable property or rights in immovable property
•
The determination or alteration of the remuneration and benefits of the MM or sect
56 employees, subject to the determination
of the upper limits by the Minister
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Delegations to the
Administration
•
The Municipal Manager and CFO have various statutory functions in terms of
the Structures Act, Systems Act, MFMA and other legislation.
•
Specific staff members have various statutory functions in terms of other
legislation, such as the Internal Auditor, Chief Building Inspector, etc.
•
Legislated obligations are not delegations, but original legislative powers and
functions
•
Delegations should include all other functions that the Council wishes the MM
and CFO to perform, normally related to administrative, financial and personnel
aspects, as set out in the terms of reference of the MM
•
The system of delegations may determine which powers may not be further
delegated by the MM and which may be further delegated
•
On matters that may be delegated further, once identified, the delegation is
done by the MM, but the policy and principle aspects dealt with earlier must still
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apply
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Oversight mechanisms
• LG legislation introduces a number of instruments of accountability
that are designed to enable the Council to exercise oversight over the
executive and the administration and for the executive to exercise oversight
over the administration.
• The most important instruments used for oversight by the council over the
executive are:
• Annual Report (including AFS) and Oversight report over the annual report
• Service Delivery Budget Implementation Plan
• Mid-year budget and performance assessment report
• Reports on the exercise of authority ito the system of delegations
• Reports from the executive to the MPAC
• Reports of the audit committee
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Oversight mechanisms (Cont.)
• The most important instruments used for oversight by the executive
over the administration are:
• Monthly budget statement
• Service Delivery Budget Implementation Plan
• Performance agreements of the senior management and the quarterly
performance reviews
• Mid-year budget and performance assessment report
• Reports on the exercise of authority ito the system of delegations
• Report on the supply chain management process
• Internal audit and risk management reports
• Reports from the audit committee
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Other legislative measures
• Municipal managers and managers directly accountable to the
municipal manager are appointed by the council
• The municipal managers and managers directly accountable to the
municipal manager may not hold political office in a political party
• COGTA and NT have prescribed minimum competencies for municipal
managers and senior mangers, as well as minimum academic qualifications
to ensure a capable administration
• Code of conduct for both municipal councillors and officials are in place
• Misconduct regulations for senior managers
• Financial misconduct regulations for councillors and officials
• Reporting requirements for misconduct
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• Limitation on re-employment of senior
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Conclusion
• From the above it is clear that there is an elaborate legal framework that –
• establishes the various structures, office bearers and administrative
positions within the municipality and broadly determines their functions;
• instructs municipalities to equip these organs with a terms of reference and
appropriate delegations; and
• provides a number of instruments that should facilitate checks and
balances among, and accountability between, the various structures, office
bearers and administrative positions.
• When used effectively, it may not be able to eliminate, but can certainly limit
contestation and ensure effective and efficient political administrative
interface in the municipality
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Thank you
Lorette Tredoux
Executive Director: Governance & IGR
SALGA National
Cell: 0784514894
E-mail: [email protected]
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