One of the issues that came under consideration was the Constitutional Court's Judgement on 28 July 2016 on the unconstitutionality of the Restitution of Land Rights Amendment Act (Amendment Act). This arises from a complaint which was brought before the Constitutional Court by the Land Access Movement of South Africa's (Lamosa). In its application, Lamosa claimed that in its passing of this Act, the NCOP did not pay due diligence as required by the Constitution to public participation provided for in the Constitution.
A unanimous judgement by the Constitutional Court upheld Lamosa's challenge. The Constitutional Court stipulated that it would not be prescriptive as to how the NCOP must conduct its public participation regarding the passing of laws, but must find ways of improving it because that is its constitutional prerogative. To remedy this, the NCOP has since come up with proposed practice notes for provincial legislatures to consider.
"All Bills received by the National Council of Provinces must be widely advertised either in print or on electronic or social media or on all those platforms. Bills' summaries must be compiled in at least three languages that are spoken in a particular province. The National Council of Provinces must determine whether a Bill requires public hearings. If yes, the advertisement must indicate that public hearings will take place in the provinces."
The practice notes went on further to suggest the nature and form of public participation. "All negotiating mandates must be accompanied by reports detailing comments from the public. Each proposed amendment by a provincial legislature must be considered in detail and decided on. A Select Committee must ensure that all provincial legislatures submit negotiating mandates and final mandates. And all final mandates must be considered in detail and decided on."
The practising notes also specify how legislatures can infuse public participation in their law-making processes. "The Chairperson of the National Council of Provinces must immediately refer a Bill to the provincial legislatures in terms of Rule 166 of the Rules. The provincial legislatures must, immediately upon receipt, widely advertise the Bill for public comment and hearings. The advertisement must indicate in sufficient detail the date, time and venue of the hearings. A provincial legislature must advertise and conduct public hearings in areas most likely to be affected by the Bill."
But also the advertisement must indicate where the Bill may be obtained and, in sufficient detail, provide any other information relevant to the hearings. It is hoped that these practices will remedy some of the reservations expressed in the Constitutional Court Judgement and further enhance the NCOP's and provincial legislatures' public participation in their law-making processes.
The session then considered the intervention of the NCOP in terms of Section 139(1) (b) of the Constitution in municipalities that are faced with maladministration.
The Chairperson of the Select Committee on Cooperative Governance and Traditional Affairs, Mr Jihad Mohapi, said there are three instances where provinces can intervene in such municipalities. "Section 139(1) provides for general intervention in instances where a municipality fails to fulfil an executive obligation. Section 139(4) provides for instances where a municipality fails to approve a budget or any revenue-raising mechanism as required by legislation; and Section 139(5) provides for an intervention in instances where a municipality, due to its financial affairs, is unable to deliver services or meet its obligations."
He went on to state that the aims and objectives of such interventions must be to enhance the efficacy of the service delivery imperatives of the municipality concerned. And that such a measure is not taken in haste but as a last resort. "These interventions must be part of a broader supervision strategy comprising of monitoring, support and intervening as a last resort. And there should be a balance between the institutional integrity of local government on the one hand, and the efficacy of interventions aimed at restoring service delivery on the other hand," he said.
He described governance, financial management and service delivery as some of the aspects that often contribute to these interventions. "Political infighting, conflict between top management and councillors and the poor management of human resource processes often contribute to poor municipal governance systems."
On the financial front, he said fraud, misuse of municipal funds or property, lack of proper financial systems and/or revenue collections, and the Auditor-General's disclaimers, are the major challenges that often compel the NCOP to intervene.
He further raised a concern about the non-standardised practices of intervening provinces that the Committee encountered. "Procedures followed by intervening provinces differed extensively, some omitted Directive 139(1)(a) and were legally unsound and open to constitutional challenges."
Some of which differ from the one instituted by the Committee, which limits interventions to the non-fulfilment of an "executive obligation" in terms of legislation or the Constitution, he said.
"The Committee applies the provisions of Rule 255 to investigate whether or not the intervention is necessary to afford the provincial department, the municipality and the relevant stakeholders to make inputs into the process. And to make a determination and report our recommendations to the House, and consider termination reports," he said.
Critical to the proper functioning of municipalities is the oversight role of provincial legislatures in their respective municipal jurisdictions, he said. "A provincial legislature is expected to develop mechanisms on how provincial executive organs of state will account, including how the provincial legislature will do oversight on provincial executive authority as per Section 114(2). Section 115(a) stipulates the power of provincial legislature or any of its Committees to summon any person to appear before it. And Section 133(2) clearly outlines that members of the Executive Council of the Province, collectively and individually, are accountable to the provincial legislature. These Acts must all be harnessed to improve the proper functioning of municipalities."
He concluded by saying that the powers of intervention should be seen as a measure of last resort, where the problem cannot be resolved through ordinary intergovernmental processes. But such oversight interventions in the different spheres of government will require improved coordination and should be strategically initiated and coordinated.
"The Committee will continuously conduct meaningful consultation when it comes to interventions, with a view of promoting the principles of cooperative government and intergovernmental relations. But there is a need for legislation envisaged in Section 139(8) of the Constitution, to assist and provide provinces with a uniform approach to the supervision of local government," he said.
By Abel Mputing
6 February 2017
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