Phindile Ntliziywana 03 June 2015 Roundtable on local government - - PowerPoint PPT Presentation

Phindile Ntliziywana 03 June 2015 Roundtable on local government Catholic Parliamentary Liaison Office - Cape Town

Can they do it? Capacity issues bedevilling local government

Introduction

 Capability issues often hamper the

success of devolution strategies

 The same holds true for SA  Three interconnected reasons – case of

South Africa local government experience:

 Ambivalence towards skill  Devolution – not accompanied by capacity

building measures

 Duplication (lack of coordination)

 NB: LG – not part of the public service

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• 1. Ambivalence towards skills

 Context

 Modern skills - part of the ideological and

technological apparatus of colonial domination

 Racial domination – skills & Job reservations

 Local government

 IMTA & ITC  Profession of Town Clerks & Municipal Accountants

Acts - 1988

 Post apartheid state

 Associated “skill” with whiteness

• Mostly whites had high level of skills & expertise

 Abolished Profession of Town Clerks & Municipal

Accountants Acts of 1988

 Voluntary retrenchment packages  In order to give way to Black appointments

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• 2. Devolution without capacity

 Local government given a const. status

 no longer a subservient arm  original powers devolved

• No longer doing regular maintenance

 Wall-to-wall (no longer confined to urban nodes)  Ever fewer but ever bigger (deracialised)

• reduced (1260, 843 then to 284)
• Currently we have 278 municipalities
• To be reduced further to 267 – 2016 (MDB)
• Thus: Became geographically much larger

 However, devolution coincided with “deskilling”

 Generic qualifications introduced

• South African Qualifications Authority Act – 1995

– South African Qualifications Authority

• Skills Development Act (1998) - SETAs

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Generic qualifications failed

 Led to a litany of problems

 Adverse audit outcomes

 Service delivery protests/rates withholding  Numerous interventions by provinces

 CoGTA’s back to basic document

 Top third – evidence of progress  Middle third – mixed bag  Bottom third – shows a system fraught with

transformation related challenges

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Government response

 Short-term interventions

 Project Viability  Project Consolidate  Siyenza Manje  JIPSA  Local Government Turnaround Strategy

 However, these had a minimal impact:

 Short-term  Gap filling  Hit-and-run

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• 3. Duplication in capacity

building measures

 2006 - Performance Management

Regulations – Systems Act

 Regulating outcomes (performance)

 2007 - Competency Regulation – MFMA

 Regulating recruitment process - inputs

(competence & qualifications)

 2011 - Systems Amendment Act

 Regulates recruitment process- also

focussing on inputs

 2014 - Appointment Regulations –

Systems Act

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Further duplication

 Disciplinary Regulations - 2011

 Procedures for dealing with allegations of

misconduct against MM/Senior managers

 Financial Misconduct Regulations - 2014

 Procedures for dealing with allegations of

financial misconduct against senior managers and political office bearers

 Code of Conduct for Councillor  Code of conduct for officials

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Created ‘tripwires’ for LG

 Threaten the rule of law, and  Violates s 155(7) – Constitution

• unconstitutional

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Threat to Rule of Law

 Five prongs

• 1. Many ‘musts’ makes compliance impossible

– Leading to compliance fatigue & – The resultant lawlessness

• 2. They come at a time when confidence in local

government is at an all time low – Public already impatient with poor or lack of services

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Dilemma

• 1. Delays caused by complying with all the ‘musts’
• could lead to lawlessness
• 2. Similarly, ignoring the ‘musts’ to attend to the

needs of the public – violates the rule of law.

 The approach taken by the Court in the

Liebenberg judgment where it was said, at para 26:

“a failure by a municipality to comply with relevant statutory provisions does not necessarily lead to the actions under scrutiny being rendered invalid. The question is whether there has been substantial compliance, taking into account the relevant statutory provisions in particular and the legislative scheme as a whole”.

 This approach should find application in HR decision-

making as well.

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Cont…

• 3. The complexity of the regulations

poses a danger to the rule of law E.g: interpretation difficulties re:

 Non-compliant Appointment before 1 July

2007

• Retrospective application?

 Non-compliant Appointment after 1 July 2007

but before 30 September 2015?

 Non-compliant Appointment after 30

September 2015

 Legal uncertainty with respect to the actual

legal situation after 30 September 2015

 Assessment of extent of qualification

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Cont…

 Legal uncertainty & confusion - Competency

Regulations

 Leave officials exposed to political abuse

• Lindiwe Msengana-Ndlela

 Counter productive

 4. The constant postponement of the

deadline creates legal uncertainty

 Initial deadline – 31 December 2012  Shifted to – 1 July 2014  Now the new deadline – 30 September 2015

 At this rate – local government is unlikely to take

the deadline seriously, when it eventually comes

 It does not offer legal certainty

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Cont…

 5. Confusion on which regulations to

apply

 Two parallel regulations – from two

government department

• CoGTA & National Treasury
• Competence: Appointment Regulations &

Competence Regulations

• Discipline: Disciplinary Regulations & financial

Misconduct Regulations

 Regulating the same HR issues  Officials will therefore be forced to cherry

pick those rules that are less stringent

• Does not conduce to legal certainty and the rule of

law

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“Who supervises what”?

 Who is responsible for local government  Constitution give both CoGTA & Treasury a

leading role

 Treasury is focused on the financial management side  E.g: It confines itself to “financial officers”& supply

chain management officers

 However, definition of “financial officer” –

includes everyone. “Official exercising financial management responsibility”

 HR director in City of Cape Town manages a

budget of about 6 billion

 It would help for the courts to clarify this

question, once and for all

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Violates s 151(4) - Constitution

 (3) “a municipality has the right to

govern, on its own initiative, the local government affairs of it community”

 Subject to national legislation

 (4) “national … government may not

compromise or impede a municipality’s ability or right to exercise its powers or preform its functions”

 The combined effects of this

• verregulation – violates this provision

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Can they do it?

 At this rate

 They can’t  Capacity issues need a coordinated effort  Alignment needed in the flurry of laws  Who said many laws are better than one?

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Thank You pntliziywana@uwc.ac.za

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