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

Can they do it? Capacity issues bedevilling local government Phindile Ntliziywana 03 June 2015 Roundtable on local government Catholic Parliamentary Liaison Office - Cape Town

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 2

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 3  In order to give way to Black appointments

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 4

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 5

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 6

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 7

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 8

Created ‘tripwires’ for LG  Threaten the rule of law, and  Violates s 155(7) – Constitution  unconstitutional Threat to Rule of Law 1.  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 9

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. 10

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 11

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 12  It does not offer legal certainty

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 13 law

“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 14

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 overregulation – violates this provision 15

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? 16

Thank You pntliziywana@uwc.ac.za 17