Www.salga.org.za 1 Welcome… 20 Years of Local Democracy in South Africa: Towards Good Local Governance Political / Administrative Interface 20 October.

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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 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

Councillors4

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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.7

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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 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 the municipality to the exclusion of the executive

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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 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 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;14

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Terms of Reference (Cont.)

– indicate lines of accountability and reporting (which differ);

– explain the relationship and interaction between structures, office-bearers 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 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

•In line with IDP and budget17

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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 committee18

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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

•To invest money in accordance with an approved investment policy19

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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 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 committee21

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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 committee22

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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

• Limitation on re-employment of senior managers 23

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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 youLorette Tredoux

Executive Director: Governance & IGR

SALGA National

Cell:  0784514894

E-mail: [email protected]

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