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Chapter 3 - DEMOCRACY, GOVERNMENT & PUBLIC PARTICIPATION

Mechanisms, procedures and processes for community participation in local government

Section 17 of the Municipal Systems Act requires municipalities to put in place systems for communities to participate in the decision-making process. These include:

• the process of receiving, processing and consideration of petitions
• procedures for notifying the public of issues being considered by the council and a process that allows for public comment
• procedures for public meetings and hearings by councilors and municipal officials
• pegular sharing of information on the state of affairs of the municipality through consultation with community organizations and traditional leaders.
  

Municipalities must ensure that people who cannot read or write, people with disabilities, women and other disadvantaged groups are able to participate in these processes.

Inter-governmental relations and co-operative governance

Inter-governmental relations means the relationships between the three spheres of government. The Constitution states, ‘the three spheres of government are distinctive, interdependent and interrelated’. According to this clause, local government is a sphere of government in its own right, and is not a function or administrative implementing arm of national or provincial government. Although the three spheres of government are autonomous, they exist in a unitary South Africa and have to work together on decision-making and must co-ordinate budgets, policies and activities, particularly for those functions that cut across the spheres.

Co-operative governance

Cooperative governance means that the three spheres of government should work together (co-operate) to provide citizens with a comprehensive package of services. The Constitution states that the three spheres have to assist and support each other, share information and coordinate their efforts.

Implementation of policies and government programmes require close co-operation between the spheres of government, especially at Executive level. For example, local government is represented in the National Council of Provinces, the Financial and Fiscal Commission and on the Budget Council where the Minister of Finance discusses the proposed budget with provincial and local government.

Since 2009, two Ministries were created within the Presidency to strengthen long term planning and performance monitoring. The Ministry for National Planning coordinates the long term planning for development of our country,The Ministry for Monitoring, Evaluation and Administration  monitors the work done on the 12 priority outcomes and the performance of each ministry..

The Money Bills Amendment Procedure and Related Matters Act passed in 2009, enables Parliament to exercise its true oversight role – and empowers the legislature influence the budget directly.

The different spheres of government depend on each other for support in project implementation, and regular communication is essential. For example, when a municipality proposes the development of a new township in its Integrated Development Plan, health and education services have to be provided by provincial government. Water services have to be provided by national government, and finances for housing development have to be transferred from national to provincial government from where it goes to the housing developers approved by the municipality.

Inter-governmental relations

In 2005, the Inter-governmental Relations Framework Act was passed to make sure that the principles in Chapter Three of the Constitution on cooperative government are implemented. The Act seeks to set up mechanisms to coordinate the work of all spheres of government in providing services, alleviating poverty and promoting development. The Act also establishes a line of communication that goes from municipalities to the provinces and directly to the Presidency.

National inter-governmental structures

The President’s Coordinating Council (PCC) is the main coordinating body at national level. It consists of the President, the Deputy President, key Ministers, Premiers and the South African Local Government Association (SALGA). The PCC meets regularly to oversee the implementation of national policies and legislation, and to ensure that national, provincial and local development strategies are aligned to each other. For example, the first meeting of 2011, focused on job creation, especially to ensure coordination amongst the three spheres of government, as undertaken in the President’s State of the Nation Address.

At national level, each department has an Inter-governmental Forum where Ministers meet with provincial MECs and SALGA. These forums are called MinMECs and are attended by heads of departments. The purpose of MinMECs is to consult, coordinate implement and align programmes at national and provincial level.

Provincial inter-governmental structures

The Premier in each province is responsible for coordinating relationships between national, provincial and local government in the province. A Premier’s Inter-governmental Forum (PIF) consists of the Premier, the provincial MEC for local government, other MECs, Metro and District Mayors and other Mayors where necessary. The PIF meets regularly and consults on broad development in the province, as well as on the implementation of national and provincial policy and legislation. It also seeks to coordinate the alignment of provincial and municipal development planning and strategic planning. The PIF reports through the Premier to the PCC.

Further optional forums can be established by the Premier. In the Western Cape, for example there is a Metro Inter-governmental Forum (MIF) where the Provincial Cabinet meets with the Cape Town Mayoral Committee on a regular basis. The reason for this is that around 70% of the provincial population lives in the Metro, and most of the economic and urban development is taking place in that area. There is therefore a huge overlap between the Metro’s budget and responsibilities and those of the Province.

Inter-governmental forums may also be established at district level, where they would consist of the District Mayor and Local Council Mayors. Most of the inter-governmental structures are supported by senior management in the public service and in local government. At times, they will meet separately to prepare for the inter-governmental meetings. The Act provides for technical support structures to be established. Every inter-governmental structure must adopt its own rules to govern internal procedures. Further inter-provincial or inter-municipal forums can also be established where necessary.

Joint implementation and disputes

In many development projects, more than one sphere of government may be involved in implementation. Where necessary, the different organs of state may enter into an implementation protocol that describes the role and responsibility of each organ of state; outlines priorities and desired outcomes; and provides for monitoring, evaluation, resource allocation and dispute settlement procedures.

Any organ of state may declare an inter-governmental dispute. They must ensure that every reasonable effort has been made to avoid or settle the dispute before declaring it. Different organs of state cannot institute judicial proceedings against each other unless an inter-governmental dispute has been declared, and all efforts have been made to resolve the dispute. Once a dispute has been declared, organs of state must designate a facilitator and resolve the dispute.

It is very important for the principles of cooperative government, as contained in the Constitution, to be respected and observed by all spheres of government. It is highly undesirable for different spheres of government to take each other to court. The Inter-governmental Relations Act has been set up to facilitate cooperation and avoid legal proceedings between different spheres of government.

Inter-governmental relations go beyond the Act, and the Municipal Finance Management Act also requires consultation in the budgeting and planning process. At provincial level, technical committees should meet regularly to facilitate contact between departments and municipalities and to make sure that there is an alignment of planning priority strategies and resources between provincial and municipal government.

It is not enough for discussion to take place at PIF – regular contact is necessary to ensure that development is coordinated, fast-tracked, and that obstacles are removed where they impede delivery. This requires ongoing communication and open lines between the different spheres of government.

Traditional leadership, government and public participation

Traditional leaders and councils have an active and important role to play in local government development programmes and service delivery, especially in rural areas. The Traditional Leadership and Governance Framework Act (No 41 of 2003), recognises tribal authorities as traditional councils with important functions linked to local government.

In April 2010 – the Department of Traditional Affairs was established to give support to the National House of Traditional Leaders, the Commission on the Disputes and Claims and the Commission on the Protection of the Rights of the Cultural, Religious and Linguistic Commission. Provincial committees are in the process of being finalized and all claims and disputes about categories of traditional leadership below the kingships, have been received and investigations have begun.

Recognising traditional communities

A community can be recognised as a traditional community if it follows a system of traditional leadership according to its own community’s rules and it follows a system of indigenous and customary law.

Establishing and recognising traditional councils

Once the Premier of the Province has recognised a traditional community it can establish a traditional council. The traditional council must be representative of the community in the following ways:

• 33% of its members must be women
• 40% of its members must be democratically elected
• the remaining members can be selected by the Chief in terms of custom

The traditional council will be able to operate within a defined area.

Functions of traditional councils

The functions of traditional councils are to:

• facilitate involvement of the traditional community in the development of a local government’s integrated development plan

See Drawing up an Integrated Development Plan (IDP).

• support municipalities in identifying community needs
• recommend interventions to government that will contribute to development and service delivery in the area controlled by the traditional council
• participate in development programmes of municipalities and of the provincial and national spheres of government
• promote indigenous knowledge systems for sustainable development
• administer the affairs of the traditional community according to custom and tradition
• assist, support and guide traditional leaders in the use of their powers and how they perform their functions
• participate in the development of policy and legislation at local level
• enter into service delivery agreements with municipalities regarding the provision of services to rural communities
• promote the ideals of co-operative governance, integrated development planning, sustainable development and service delivery
• warn the municipality about any danger that threatens the area or people living in a particular traditional council area
• perform their duties and use their powers according to customary law in a way that is consistent with the Constitution.

Traditional councils have to be accountable to the provincial government by keeping proper financial records, by disclosing any gifts received and by following a prescribed code of conduct.

Partnerships between municipalities and traditional councils

Partnerships between municipalities and traditional councils are encouraged and laws must be passed to strengthen these partnerships.

Withdrawal of recognition of traditional communities

Provincial laws must provide for the withdrawal of the recognition of a community as a traditional community as well as withdrawal of the recognition of traditional councils.

A community can request that its recognition as a traditional community be withdrawn and it can request that it be divided into separate traditional communities or merged into single traditional communities. Before a community or council’s recognition is withdrawn, there must be consultation with the provincial house of traditional leaders.

Leadership and removal of traditional leaders

A traditional leader can be removed from office on any of the following grounds:

• conviction by a criminal court without an option of a fine, on any criminal charge
• physical or mental incapacity or age
• where the Commission on Traditional Leadership Disputes and Claims finds that the traditional leader was wrongly appointed or recognised.

Houses of traditional leaders

Houses of traditional leaders are structured as follows:

• a national house of traditional leaders
• provincial houses of traditional leaders
• district houses of traditional leaders

District houses of traditional leaders

A district house of traditional leaders must be established in a district municipal area or metropolitan municipality where there is more than one chieftainship. There should be between 5 and 10 members of the district house. The members are elected by an electorate consisting of all kings, queens or their representatives, chiefs and chieftainesses, living in the district municipality.

The functions of the district house are to advise the district municipality or metropole on matters of:

• indigenous and customary law, custom, traditional leadership and the traditional communities
• development of planning frameworks that impact on traditional communities
• development of by-laws that impact on traditional communities
• to participate in local programmes that have the development of the rural communities as an object
• to participate in local initiatives that are aimed at monitoring, reviewing or evaluating government programmes in rural communities

Where a district house cannot be established, the functions of the district house must be performed by the different traditional councils within the district municipality or metropole.

Resolving disputes

Where there is a dispute involving indigenous and customary law, members of the community and traditional leaders should try and resolve the dispute internally and according to custom.

If a dispute cannot be resolved internally then it must be referred to the relevant provincial house of traditional leaders.

If a provincial house of traditional leaders cannot resolve the dispute then the dispute must be referred to the Premier of the province in consultation with the parties to the dispute and the provincial house of traditional leaders.

The Commission on Traditional Leadership Disputes and Claims

The Act establishes a Commission on Traditional Leadership Disputes and Claims. The powers and functions of the Commission are to investigate the following cases:

• where there is doubt about a kingship, chieftainship or headmanship
• contests over traditional leadership
• claims by communities to be recognised as traditional communities
• establishment or breakdown of tribes
• disputes over traditional authority boundaries and the merger of tribes

Anyone can lodge a dispute with the Commission. They must say what the dispute or claim is about and give all relevant information. The Commission can decide not to consider the dispute or claim because they don’t have enough information. The Commission can also choose to do its own investigations.