IMATU’S SUBMISSION ON THE PUBLIC SERVICE AMENDMENT BILL AS PUBLISHED IN
GOVERNMENT GAZETTE NO. 29259 (OF
“The advent of the Constitution has enhanced rather than diminished the autonomy and status of local government that it obtained under the interim Constitution.
In the judgement of Ex Parte Chairperson of the Constitutional Assembly: in re Certification of the Constitution of the Republic of South Africa, 1996 (4) SA 744 (cc) this Court stated:
“(Local Government) structures are given more autonomy in the (New Text) than they have in the (interim Constitution) and this autonomy is sourced in the (New Text) and not derived from anything given to (Local Government) structures by the provinces.
Subsection 40(1) of the Constitution entrenches the institutions of local government as a sphere of government and pronounces all spheres of government to be distinctive, interdependent and interrelated. Subsections 41(e) and (g) articulate and preserve the geographical, functional and institutional integrity of local government. In turn, subsections 43(c) and 151(2) confer original legislative and executive authority on municipal councils. The Constitution expressly precludes the national or a provincial government from impeding the proper exercise of powers and functions of municipalities. Thus a municipality has the right to govern the local government affairs of its area and community.
The Constitution has moved away from a hierarchical division of governmental power and has ushered in a new vision of government in which the sphere of local government is interdependent, inviolable and possesses the constitutional latitude within which to define and express its unique character subject to constraints permissible under our Constitution. A municipality under the Constitution is not a mere creature of statute otherwise moribund save if imbued with power by provincial or national legislation. A municipality enjoys “original” and constitutionally entrenched powers, functions, rights and duties that may be qualified or constrained by law and only to the extent the Constitution permits.” (Our emphasis)
Subsection 40(1) of the Constitution of South Africa states:
“In the Republic, government is constituted as national, provincial and local spheres of government which are distinctive, interdependent and interrelated”
The Independent Municipal and Allied Trade Union (“IMATU”) is a trade union representing 68 000 local government employees. There are only two recognised trade unions in the local government sector, being IMATU and the South African Municipal Workers Union (“SAMWU”).
Together IMATU and SAMWU represent approximately 190 000 employees in the local government sector (some 95% of all employees employed in the local government sector).
It is the stated intention of government to enact a Single Public Service Bill by 2009. IMATU opposes the intended creation of a Single Public Service. The reasons for IMATU’s opposition are set out in detail below.
IMATU is of the view that the promulgation of this Bill (the Public Service Amendment Bill – “the PSAB”) will pave the way for the Single Public Service Bill. IMATU wishes to take this opportunity to state its opposition to the anticipated single public service. We also submit herewith our comments on the PSAB.
2. LOCAL GOVERNMENT IN ITS HISTORICAL CONTEXT
1994 municipalities in the
1990 until 1994 (during which period the democratisation of
The adoption of the interim and final Constitutions defined the role and mandate of local government in respect of the provision of certain basic services.
Part B of Schedules 4 and 5 of the final Constitution specifically mandated local government (municipalities) to deliver certain services to the inhabitants and citizens of that particular community.
The final Constitution places an obligation upon parliament to adopt and promulgate national legislation to give effect to the constitutional mandate of local government to deliver certain constitutionally mandated services.
This led to the adoption of inter alia the Municipal Systems Act and the Municipal Structures Act during the period between 1998 and 2000.
One of the purposes of the legislation was to reduce the number of municipalities in order to give effect to the constitutional mandate of providing better and more efficient services to communities in the Republic.
1994 there were approximately 800 municipalities within
The new municipal legislation disbanded this plethora of municipalities and created the current 284 municipalities that were divided into three categories, namely metropolitan, local and district municipalities.
Local government employees were subjected to continuous changes during the restructuring process (from 1994 to 2002). Some municipalities underwent three or more major restructuring exercises over this eight year period. To date municipal categorization for purposes of wage curves, job evaluations, placements and parity has not been adequately addressed (or at all), this approximately ten years after the new dispensation commenced.
National government placed an obligation on local government to assist with the broader job creation and poverty alleviation goals. National government during the growth and development summit in 1993 instructed all sectors of the economy to consider staging sector specific development summits. The purpose of these summits was to identify the contribution that a sector could make towards poverty alleviation and job creation.
Local government, under the auspices of the South African Local Government Bargaining Council (SALGBC), held a sector specific summit in 2005. The objective of this summit was to provide “quality, affordable and sustainable services to the citizens of the Republic”.
Organised labour (IMATU and SAMWU) supported these principles and signed an accord at the end of the summit to give effect to these principles. IMATU reaffirms its commitment to improved and sustained service delivery. IMATU also reaffirms its commitment to job creation and poverty alleviation goals, which have been set for 2014.
3. NATIONAL GOVERNMENT’S VISION FOR LOCAL GOVERNMENT IN 2006
National government (and cabinet) approved the concept of a single public service and the integration of all spheres of government into a single public service.
The main aims and objectives of the single public service, according to the proponents thereof, are to:
- Improve and enhance integrated service delivery;
- Provide a more cohesive workforce, which has mobility in respect of service delivery requirements and demands; and
- Enact and promulgate over-arching legislation to achieve these goals.
4. IMATU’S VIEWPOINTS ON THE SINGLE (INTEGRATED) PUBLIC SERVICE
IMATU opposes the creation of a single public service. The main reasons and arguments in support of this opposition can be summarised as follows:
- The negative impact on service delivery requirements;
- Impending and obstructing the poverty alleviation and job creation goals and objectives set for 2014;
- The infringement of certain provisions of the Constitution;
- The infringement of principles of employment legislation (specifically section 197 of the Labour Relations Act);
- The infringement of sound and proper labour relations principles and practises currently applicable in the local government sector;
- The infringement of and disestablishing of existing collective bargaining arrangements within the local government sector;
- Adversely affecting existing and accrued rights of local government employees in respect of retirement fund benefits and arrangements;
- Adversely affecting the right of voluntary association in respect of contribution to and membership of medical schemes;
- Adversely affecting the geographical and institutional integrity of municipalities;
- Adversely affecting the constitutional separation of powers between the three tiers of government;
- The apparent absence of key national government departments in the transfer process (i.e. Department of Provincial and Local Government);
- The lack of consultation with affected trade unions in the local government sector and other relevant stakeholders; and
- The adverse effect on human resources principles and practises applicable within the local government sector.
4.1 NEGATIVE IMPACT ON SERVICE DELIVERY REQUIREMENTS
Why does local government fail to deliver upon constitutionally mandated services? IMATU submits that the starting point for the reply to this question relates to the appointment of Municipal Managers that often are not sufficiently experienced or qualified to lead municipalities in the new municipal dispensation.
Municipal Managers and managers appointed in terms of Section 57 of the Municipal Systems Act often do not have the capacity and expertise to sustain continued and quality service delivery.
These managers are in most instances appointed from outside the local government environment, which limits their ability to deal with the unique operational needs and challenges that municipalities face.
These managers are very often appointed without possessing the prerequisite knowledge, expertise or experience required to ensure successful service delivery within the local government sector. The ability of these managers to deliver the required services are also often impeded and obstructed by the political interference of councillors and municipal councils.
IMATU submits that the process of appointing Municipal Managers (and other managers appointed in terms of Section 57 of the Systems Act) needs to be revisited. The ability to ensure the delivery of quality and affordable services is imperative and should not be impeded by a lack of knowledge and expertise within the local government sector.
The Accelerated and Shared Growth Initiative of South Africa (ASGI-SA) needs to be fast-tracked and implemented to ensure continued and sustained service delivery within local government.
IMATU also submits that the knowledge and expertise of retired and erstwhile municipal employees should be utilised and, if necessary, they should be re-employed to ensure sustained and continued service delivery.
The institutional integrity and capacity of municipalities should be strengthened through the intervention of national and provincial government and should not be impeded by the creation of a single public service.
If a particular municipality experiences a lack of financial resources to deliver sustainable services then it should be supported by national and provincial government through grants and interest-free loans.
The staff compliments of all municipalities need to be filled as a matter of urgency to ensure continued and sustained service delivery (the vacant posts on the staff compliments amount to more than 30% of all posts, which is totally unacceptable).
Furthermore the ability of other national and provincial government departments to deliver continued and sustained services is doubtful. (Examples of this are the Department of Home Affairs which cannot eradicate its backlog and deliver the required amount of identity books and passports, the inability of certain provincial health departments to deliver basic health care services, the inability of the South African Police Services to deal with crime, etc.).
If municipalities lack the ability to deliver the required services, then it is submitted that it is due to the lack of expansion of the workforce within the sector.
Furthermore municipalities are not given the required resources to cater for and adapt to geographic settlement patterns and urbanisation. The influx of citizens to the metropolitan and larger areas requires and demands a rapid growth of the number of municipal employees and resource allocation within these municipalities.
4.2 IMPEDING AND OBSTRUCTING POVERTY ALLEVIATION AND JOB CREATION GOALS AND OBJECTIVES REQUIRED BY 2014
Municipalities are failing to assist in achieving optimal employment levels. The workforce within local government is shrinking rapidly and workers that are lost through external factors such as natural attrition are not replaced (in 1994 local government employed approximately 250 000 employees – currently approximately 190 000 employees are employed in the sector).
This decline in employees impedes on the ability to provide basic services such as water supply, sanitation, refuse removal, emergency services and electrification.
The decline in the workforce also impedes on the ability to deliver on the intended investment in infrastructure such as public roads and transportation.
The decline in the workforce and resultant non-commitment to the expansion thereof also impacts directly on poverty alleviation. The municipalities are not in a position, due to the lack of human capital, to play a meaningful role in the delivery of houses, which is one of the aims of poverty alleviation.
Municipalities will be directly involved in service delivery during the 2010 Soccer World Cup by providing inter alia, refuse removal, traffic co-ordination, water, electricity and sanitation services. This requires a rapid growth in the number of municipal employees.
increased investment in infrastructure, which must enable
Municipalities should also play an active role in the growth and expansion of the local government sector by creating “quality jobs for quality services”.
Municipalities must be evaluated in respect of their constitutional mandate only after the lack of capacity in respect of human capital and financial resources has been addressed.
Municipalities, as an organ of state, are obliged to and must play a vital role in poverty alleviation and job creation. Municipalities will be in a position to play a meaningful role only after the lack of capacity in certain fields is addressed.
The creation of a greater public service will create an even bigger bureaucracy, which will impact negatively on the question as to who is responsible and accountable for the delivery of a particular service.
Municipalities are a distinctive and separate sphere of government that are accountable to the inhabitants of their geographical area of jurisdiction - for the delivery of a service. To remove this fundamental system of checks and balances will destroy the system of ward councils and the accountability of politically elected councillors to the communities that have elected them.
4.3 THE INFRINGEMENT OF CERTAIN PROVISIONS OF THE CONSTITUTION
Section 151(2) of the Constitution vests municipalities with executive and legislative authority. The creation of a single public service will interfere with this authority.
Section 152(1)(b) states that a municipality must provide services to communities in a sustainable manner. The creation of a single public service will interfere with this mandate.
Section 40(1) of the Constitution states that government is constituted as the national, provincial and local spheres of government. These spheres are distinctive, interdependent and interrelated. The creation of a single public service will interfere with the three distinctive spheres of government.
In terms of Section 151(3) of the Constitution municipalities have the right to govern, on their own initiative, the government affairs of their communities. The creation of a single public service will interfere with this obligation and function.
In terms of Section 151(4), both national and the provincial governments may not compromise or impede a municipality’s ability to perform its functions or exercise its duties. The creation of a single public service will be in direct contrast to this principle.
In terms of Section 154(1) of the Constitution, national and provincial government must strengthen the capacity of local government. The creation of a single public service will not achieve this objective.
A municipality has the executive authority to administer and provide the services listed in Part B of schedule 4 of Part B of schedule 5 of the Constitution. The creation of a single public service will be in direct contrast to this mandate.
(IMATU’s view on the legality of the Amendment Bill is discussed in more detail below).
4.4 THE INFRINGEMENT OF PRINCIPLES OF EMPLOYMENT LEGISLATION (SPECIFICALLY SECTION 197 OF THE LABOUR RELATIONS ACT)
The Labour Relations Act (”the LRA”) determines the legal consequences if a business is transferred as a going concern and the subsequent transfer of contracts of employment.
Section 197 of the LRA states that existing collective agreements are part and parcel of this transfer process, unless an agreement to the contrary is concluded.
The Public Service Amendment Bill empowers the Minister with the authority to determine the terms and conditions of a transfer and the applicable conditions of service. This power is in direct contravention of the provisions of the LRA (which is national legislation). In terms of Section 210 of the said Act, the LRA is subordinate only to the Constitution. All other legislation is secondary to national legislation.
The Courts have interpreted Section 197 of the LRA to the effect that employment contracts are automatically transferred when the business is transferred as a going concern. In terms of the Public Service Amendment Bill, the Minister may unilaterally determine the conditions of service of employees, in contravention with section 197 of the LRA.
4.5 THE INFRINGEMENT OF SOUND AND PROPER LABOUR RELATIONS PRINCIPLES AND PRACTISES CURRENTLY APPLICABLE IN THE LOCAL GOVERNMENT SECTOR
The parties to the South African Local Government Bargaining Council (“the SALGBC”) have concluded various collective agreements over the past five years, which regulate labour relations within the local government sector.
The most important of these are:
- The conditions of service collective agreement (creating uniform conditions throughout the country of various core conditions of service);
- The disciplinary code and grievance procedure collective agreement;
- The rules of conduct of proceedings pending before the SALGBC;
- The medical scheme rationalisation collective agreement; and
- The job evaluation collective agreement
The creation of a single public service will create uncertainty and a loss of morale amongst municipal employees due to the uncertainty regarding which agreements will apply in a particular scenario (SALGBC versus PSCBC arrangements – and the Public Service Act).
The SALGBC is accredited to perform dispute resolution functions relating to unfair labour practices and unfair dismissals. The creation of a single public service will also create uncertainty as to how to approach dispute resolution.
4.6 THE INFRINGEMENT OF AND DISESTABLISHING OF EXISTING COLLECTIVE BARGAINING ARRANGEMENTS WITHIN THE LOCAL GOVERNMENT SECTOR
Organised labour (IMATU and SAMWU) represents at least 95% of municipal employees within the local government sector. The remainder of the employees are subject to agency shop arrangements as set out in the LRA.
The 284 municipalities are members of the South African Local Government Association (“SALGA”). SALGA is a registered employers’ organisation in terms of the provisions of the LRA.
Organised labour and the employers are able to engage on issues of collective bargaining under the auspices of the SALGBC.
This collective bargaining arrangement is operative and functioning well. For example, a multi-year wage collective agreement was concluded in 2006 (in force and effect until June 2009).
The creation of a single public service will impede on this well established and functioning collective bargaining dispensation.
4.7 ADVERSELY AFFECTING EXISTING AND ACCRUED RIGHTS OF LOCAL GOVERNMENT EMPLOYEES IN RESPECT OF RETIREMENT FUND BENEFITS AND ARRANGEMENTS
The Public Service Act requires compulsory membership of the Government Employees Pension Fund (GEPF). The transfer of employment of municipal employees to the public service will compel employees to join and contribute to the GEPF.
This will entail a withdrawal and termination of membership from existing retirement funds within the local government sector.
This withdrawal will also negatively affect the broader community (pensioners of these funds).
The scope and impact of this withdrawal needs to be assessed by experts in the retirement fund industry with specific emphasis on the rights, benefits and tax status of current members and pensioners.
This right of the minister to arbitrarily transfer members to the public service, without considering the scope and impact of such action, is unconstitutional, IMATU submits, and is a flagrant disregard of just and fair administrative action.
Municipal employees, employed prior to 1998, also have a special tax dispensation in terms of the provisions of the Income Tax Act. Compulsory transfers to the GEPF will jeopardise these benefits
4.8 ADVERSELY AFFECTING THE RIGHT OF VOLUNTARY ASSOCIATION IN RESPECT OF CONTRIBUTION TO AND MEMBERSHIP OF MEDICAL SCHEMES
The number of medical schemes recognised and accredited in the local government sector was collectively bargained in the SALGBC and certain thresholds were set during this process.
If municipal employees are transferred to the public service then the ability of medical schemes to meet threshold requirements would be undermined due to the inability to meet such requirements within the public sector. Contribution rates in local government and the public sector also differ.
The Minister should adhere to the principle of lawful and just administrative action before any decision is taken that could impact on the rights of employees.
4.9 ADVERSELY AFFECTING THE GEOGRAPHICAL AND INSTITUTIONAL INTEGRITY OF MUNICIPALITIES
The creation of a single public service will create uncertainty as to who will be responsible for delivering a service in a particular geographical area.
Municipalities have well defined geographical areas of jurisdiction, in terms of the Demarcation Act. Municipalities are obliged to deliver services within that particular area.
A creation of a single public service will create an opportunity to avoid responsibility and accountability for delivering a constitutionally mandated service.
4.10 ADVERSELY AFFECTING THE CONSTITUTIONAL SEPARATION OF POWERS BETWEEN THE THREE TIERS OF GOVERNMENT
The proposed amendments to the Public Service Act envisage the creation of national and provincial government agencies. These agencies will be assigned certain services by the President or other members of the Executive.
This will create confusion and uncertainty as to which sphere of government is assigned the jurisdiction to provide a specific service. The Constitution clearly assigns the provision of services to national, provincial or local government.
The dilution of these well-defined responsibilities of the various organs of state for the provision of a specific service is not conducive to the delivery of quality and affordable services.
4.11 THE APPARENT ABSENCE OF KEY NATIONAL GOVERNMENT DEPARTMENTS IN THE TRANSFER PROCESS (DPLG)
In IMATU’s view the DPLG is notably absent from the process of inter alia affecting amendments to the Public Service Act. The DPLG is a key stakeholder and it represents the interests of SALGA and municipalities.
The exclusion of DPLG is in flagrant disregard of the principles of transparent and accountable government. It is also in disregard of fair, just and lawful administrative action.
4.12 THE LACK OF CONSULTATION WITH AFFECTED TRADE UNIONS WITHIN THE LOCAL GOVERNMENT SECTOR AND OTHER STAKEHOLDERS
DPSA in its document entitled “Towards legislation for the Single Public Service” states that labour unions have been consulted (paragraph 1.23). This is a blatant lie, which needs to be explained. IMATU, as an affected trade union within the local government sector has been consulted on neither the proposed integration of services nor the contents of the suggested enabling legislation designed to achieve such integration.
IMATU is furthermore not aware of any FEDUSA affiliate within the PSCBC that has been consulted on the process. IMATU is also not aware of any role players within the retirement fund or medical scheme industries that have been consulted.
This is a disregard for co-operative governance and transparency and the right to just and lawful administrative action enshrined in the Constitution.
4.13 THE ADVERSE EFFECT ON HUMAN RESOURCE PRINCIPLES AND PRACTISES APPLICABLE WITHIN THE LOCAL GOVERNMENT SECTOR
The TASK Job Evaluation system has been agreed to and adopted as the job evaluation system, which will be applied in all municipalities.
The categorisation of municipalities is well underway and should be finalised during 2007. Pay curves are also in the process of being determined.
The human resource environment should be standardised throughout all municipalities during 2007.
The proposed integration of a single public service will throw the whole human resource environment in municipalities into disarray.
5. THE CONSTITUTIONALITY OF THE PUBLIC SERVICE AMENDMENT BILL, 2006 (“the PSAB”)
This section addresses the question whether the provisions of the PSAB are inconsistent with the Constitution, with specific reference to the powers and functions of local government. Although the focus of this section is the aforesaid, other points of concern as to the said Bill’s inconsistency with the Constitution will also be raised.
5.2 LOCAL GOVERNMENT A SPHERE OF GOVERNMENT
Section 40(1) of the Constitution determines that government is constituted as national, provincial and local spheres of government, which are distinctive, interdependent and interrelated.
The reference to sphere and not level of government is aimed at emphasising a new relationship between the different branches of government. It indicates a radical shift away from the hierarchical division of government structures and powers of the pre-constitutional regime. It also signals a new era of a co-operative and distinctive governmental structure that is afforded constitutional recognition and protection. In such a relationship each sphere of government has its own distinctive status, powers and functions, which are entrenched in the Constitution.
The higher government institutions are not automatically permitted to encroach or intervene in the powers or functions of lower government institutions. The reference to sphere of government refers to a government of distinctiveness and co-operation, in contrast with a government of subordination.
(Bekink, Principles of South African Local Government Law, page 64)
5.3 LOCAL GOVERNMENT’S ROLE
Local government’s role and functions are inter alia dealt with in Sections 151(3) and (4), 152(1), 153(a), 154(1) and 156(1) of the Constitution:
“151(3) A municipality has the right to govern, on its own initiative, the local government affairs of its community, subject to national and provincial legislation, as provided for in the Constitution.
(v) The national or a provincial government may not compromise or impede a municipality’s ability or right to exercise its powers or perform its functions.
152(1) The objects of local government are –
(a) to provide democratic and accountable government for local communities;
(b) to ensure the provision of services to communities in a sustainable manner;
(c) to promote social and economic development;
(d) to promote a safe and healthy environment; and
(e) to encourage the involvement of communities and community organisations in the matters of local government.
153 A municipality must –
(a) structure and manage its administration and budgeting and planning processes to give priority to the basic needs of the community, and to promote the social and economic development of the community;
154(1) The national government and provincial governments, by legislative and other measures, must support and strengthen the capacity of municipalities to manage their own affairs, to exercise their powers and to perform their functions.
156(1) A municipality has executive authority in respect of, and has the right to administer –
(a) the local government matters listed in Part B of Schedule 4 and part B of Schedule 5; and
(b) any other matter assigned to it by national or provincial legislation.”
The role of local government in democratic systems is many facetted. Some of the important aspects are the following:
- Local government is the branch of government that functions the closest to the inhabitants/constituents of a specific area and is involved with the rendering of a wide variety of services that materially affect the lives of all people residing in its jurisdiction;
- Local authorities are often seen as local community-based management and administrative institutions which involve both political and bureaucratic components. Through these institutions, community actions and needs are promoted and regulated. In this capacity local governments are the best positioned to provide and ensure the sustainable provision of essential services to their relevant communities;
- Through the exercise of their powers and functions, local governments ensure access to and bring the decision-making processes closer to the local residents. This allows for better participation and involvement by local residents in the local government processes and decisions that affect their lives on a daily basis. By its nature, local government is best suited to allow and encourage local participation in all democratic processes and to provide an important training ground for democracy and political experiences.
(Bekink, pages 61 and 62)
As is apparent from the provisions of Section 152(1) and 153(a) of the Constitution, local government has a particular role to fulfil in respect of the provision of basic services to and the development of local communities.
In their capacity as the third and lowest sphere of government and the one that functions closest to local communities, municipal governments have often been described as comprising the sphere of government that is tasked mainly with the development and provision of services to communities. Some writers have even commented that if a municipality cannot or does not perform its service provision obligations, it should forfeit its right to exist. This idealism is strongly entrenched in the new constitutional framework that has been devised for local government.
(Bekink, page 281)
It is the
task of all local government institutions to work individually and in co-operation
with their local communities, to ensure sustainable ways to meet the needs and
to improve the quality of life of all people of
(Bekink, page 69)
In terms of the provisions of Section 154(1) of the Constitution, national government must support and strengthen this role of local government to provide services to communities.
Both the provisions of the Local Government: Municipal Systems Act, No. 32 of 2000 (“the Systems Act”) and the Local Government: Municipal Structures Act, No. 117 of 1998 (“the Structures Act”), acknowledge the role of local government to provide services to and develop communities. The preambles of both these statutes emphasise this role of local government.
In emphasising this role the Systems Act goes further and acknowledges that in order to do so the active engagement of communities in the affairs of municipalities and in particular in planning, service delivery and performance management is required, as well as that there is a need to create a more harmonious relationship between municipal councils, municipal administrations and the local communities. This reference is in the preamble of the latter Act.
In fostering a close relationship between local authorities and local communities served by them, Section 16(1) of the Systems Act obliges municipalities to encourage and create conditions for the local community to participate in the affairs of the municipality by inter alia participating in the preparation, implementation and review of an Integrated Development Plan (“IDP”).
Some of the advantages of establishing proper IDP’s are:
- They are a vital tool to ensure the integration of local government activities with other spheres of development planning at other levels by serving as a basis for communication and interaction;
- They serve as a basis for engagement between local government and the citizenry at local level and with various stakeholders and interest groups. Participatory and accountable government has meaning only if it is related to concrete issues, plans and resource allocations.
(Bekink, page 76)
For local government to successfully fulfil its developmental mandate, requires of it to be the spearhead in the provision of services to and the engagement of local communities. Any service delivery model that attempts to compromise local government’s role as such spearhead, is inconsistent with the Constitution.
It is difficult to foresee national government rendering functions close to the point of service delivery by virtue of a separate government agency, such as a large public hospital, without impeding local government’s role in service delivery on a community level. By virtue of national government’s powerful position vis-à-vis local government and its stated intention to bring service delivery directly to the people by virtue of a separate agency, local government’s role in this regard will be usurped.
The Structures Act, as an expression of the role and functions allocated to local government in terms of the provisions of the Constitution, determines (see Section 93(2)) that if any conflict relating to the matters dealt with in the said Act arises between it and the provisions of any other law, except the Constitution and Chapter 2 of the Local Government: Municipal Structures Amendment Act, 2000, the provisions of the Structures Act shall prevail.
Where the legislature enacts legislation in an effort to meet its constitutional obligations, and does so within the constitutional limits, the courts must give full effect to the legislative purpose.
Education Health and Allied Workers Union v University of
Where the Constitution has determined the functions to be fulfilled by local government (see Section 156(1) and part B of Schedules 4 and 5), the provisions of the Structures Act and the Systems Act express such role and functions, and the national legislature is obliged by virtue of the provisions of Section 154(1) of the Constitution, to support and strengthen the capacity of municipalities to exercise their powers and perform their functions, as well as Section 151(4) of the Constitution which precludes national government from compromising or impeding a municipality’s ability or right to exercise its powers and to perform its functions, the national legislature must guard against enacting legislation that would compromise or impede municipal powers, to the extent indicated in the Constitution as well as the provisions of the Systems Act and the Structures Act.
Any attempt by the national government to change the status, powers, functions or existence of local authorities must comply with the overall constitutional obligations, and only if a constitutional amendment is approved can such rights, powers or existence be limited or even taken away.
(Bekink, page 90, footnote 6)
To the extent that the PSAB attempts to compromise or impede a municipality’s ability or right to exercise its powers or perform its functions, this would be inconsistent with the Constitution.
5.4 PSAB IMPEDING A MUNICIPALITY’S ABILITY TO PERFORM ITS FUNCTIONS
The PSAB proposes to address various organisational and human resource areas that directly or indirectly hamper service delivery. According to the explanatory memorandum attached to the said Bill, these include some government functions being provided by departments, not close to the point of service delivery and without direct accountability and decision-making by the functionaries tasked with such delivery.
The PSAB indicates that on the other hand some government functions are provided by entities outside the public service without direct control and influence by the relevant political head. It proposes direct service delivery through a focussed and ring-fenced entity, a government agency. (Paragraph 1 of the Memorandum of the Objects of the PSAB)
Paragraph 2.1(c) of the said memorandum indicates that one of the key objectives of the Bill is to introduce government agencies as a new institutional form within the public service to enable direct service delivery through a focussed, ring-fenced separate entity under the direct control of a minister or other executive authority.
It is apparent that the PSAB also targets organs of state (including municipalities) and their employees, in creating separate ring-fenced entities, to effect “direct service delivery”. In doing so the PSAB purports to authorise the Minister for the Public Service and Administration to transfer any function from any body (including an organ of state) to a government agency or government department and to transfer employees or organs of state, such as municipalities, to government departments and agencies. (See Sections 15(1) as well as 3(4) and (5) of the PSAB).
In providing for the transfer of functions from bodies such as municipalities to government agencies (or national departments) in order to provide for functions to be brought closer to the point of service delivery and under the direct control and influence of a relevant political head, the PSAB is inconsistent with the Constitution and undermines the powers and functions of local government as spearhead in the rendering of basic services.
5.5 OTHER PROVISIONS OF THE PSAB THAT ARE INCONSISTENT WITH THE CONSTITUTION
Section 196(4)(a) to (d) of the Constitution determines that the powers and functions of the Public Service Commission (“PSC”) are:
“(a) to promote the values and principles set out in Section 195, throughout the public service;
(b) to investigate, monitor and evaluate the organisation and administration, and the personnel practices, of the public service;
(c) to propose measures to ensure effective and efficient performance within the public service;
(d) to give directions aimed at ensuring that personnel procedures relating to recruitment, transfers, promotions and dismissals comply with the values and principles set-out in Section 195”.
Section 85(2)(c) of the Constitution determines that the President exercises executive authority, together with the other members of the cabinet, by co-ordinating the functions of state departments and administrations.
Chaskalson and Klaaren, Constitutional Law of South Africa, page 3-30, believe that the words “together with the other members of the cabinet” as contained in Section 85(2) of the Constitution, require of the President to consult with members of his cabinet, prior to the exercise of his powers.
The learned authors (at 3-32) regard the provisions of Section 85(2) of the Constitution as the principal constitutional source of cabinet power. As such Section 85(2) of the Constitution plays an important role in determining cabinet power.
The role of a PSC is to promote fairness and maintain efficiency and standards in the public service. To this end it is usually required to report on its activities to Parliament. The purpose is to ensure that the prescribed procedures for making appointments, promotions, transfers and dismissals are adhered to and that any deficiencies in the organisation and administration of the public service and of the application of fair employment practices, are made public.
(Premier, Western Cape v The President of the Republic of South Africa 1999(3) SA 657 (CC) at paragraph 170)
Where the Minister is authorised in terms of the provisions of Section 15(1), 3(5) and 3(2) of the PSAB, to make determinations regarding the transfer of employees to national departments or government agencies, this is inconsistent with the provisions of Section 196(4)(d) of the Constitution, to the extent that it is not made subject to the said provisions of the Constitution.
Where Sections 3(4)(a) and 7(5) of the PSAB provide for the Minister to advise the President regarding the establishment or abolition of any department and for the President to establish or abolish any national department, this is inconsistent with the provisions of Section 85(2)(c) of the Constitution. The Constitution does not allow a consultative process only between the Minister and the President in establishing or abolishing national departments. Such consultation process must occur between the President and the whole of the cabinet. To establish or abolish a national department of necessity entails the co-ordination of the functions of state departments and administrations. Section 85(2)(c) of the Constitution requires consultation between the President and all members of cabinet, prior to this occurring.
Section 3(4)(b) of the PSAB provides for the Minister to transfer functions to and from national departments after consultation with the relevant executive authority. Once again the provisions of Section 85(2)(c) of the Constitution require of the President, in consultation with other members of cabinet, to co-ordinate functions of state departments and administrations. To provide for the Minister to co-ordinate the functions of state departments by transferring functions to and from state departments, in consultation with the relevant executive authority, is inconsistent with Section 85(2)(c) of the Constitution.
The provisions of the PSAB impact upon the powers and functions of local government, the PSC as well as the President and cabinet. To that extent they are inconsistent with the provisions of the Constitution.
6. IMATU’S FURTHER COMMENTS ON THE PSAB
6.1 Government Agencies
National and/or provincial government agencies will be vested with executive authority in terms of Section 7(3).
Government agencies will have powers conferred or transferred to them in terms of national legislation. The agencies will not be in a position to make regulations, although they will however be in a position to exercise the powers and duties conferred upon them by Section 7(4) of the Act in terms of national legislation.
IMATU is concerned about the proposed creation of these government agencies for the following reasons:
The powers conferred upon these agencies are extensive and unrestricted in terms of the Bill. The Constitution assigns specific functions to specific spheres of government to create accountability and transparency. The creation of the agencies will not promote accountability and transparency.
These agencies will not be subject to the rigours and demands of democratic governance processes. In terms of the Constitution and municipal legislation, the administration of a municipality is accountable to the municipal council and the inhabitants of that particular community. The agencies will not be subject to the same standard and public scrutiny, which currently exists in local government institutions.
The tenure and terms of office of the agencies are unlimited. The tenure and terms of office of municipal councils are regulated by the Constitution and municipal legislation, which enhances and promotes a climate of accountability and transparency. The elected councillors are pressurised to enforce the mandates obtained from the electorate within the time frames for which they were elected. The agencies will not be subject to the same demands and/or checks and balances.
Municipal Managers, in terms of current municipal legislation, are at the head of the municipal administration and as such accountable to the municipal council. It is unclear to whom the head of agencies will be accountable and to what extent. Separate legislation will have to be drafted and promulgated to cater for this “vagueness”, which IMATU deems unnecessary due to the fact that current municipal legislation sufficiently addresses this issue.
National government went to great lengths to introduce new legislation such as the Public Finance Management Act (PFMA) and the Municipal Finance Management Act (MFMA). The aim and objectives of the legislation was to control the flow and spending of public funds and to make officials responsible and accountable for such expenditure. The heads of the agencies appear not to be similarly accountable, which creates opportunities for mismanagement and abuse of public finances.
The agencies will be able to appoint, second, transfer and assign staff in order to execute the power and duties conferred upon them. This will undermine the constitutional obligation of municipalities, who in terms of Section 160(1) of the Constitution have to appoint and employ personnel that are necessary for the effective performance of its functions.
In terms of Section 151(1) of the Constitution, municipalities are assigned the functions mentioned in part B of schedule 4 and part B of schedule 5. These functions may now be assigned to government agencies, which are in direct contravention of the Constitution. IMATU opposes the proposed transfer of the services mentioned in part B of schedules 4 and 5.
IMATU also opposes the right of the head of the national and provincial agencies to appoint staff to perform the services that (were previously) are rendered by employees in the local government sector. This will cause the erosion of the local government sector and enable the heads of the agencies to appoint employees on other conditions of service than those which employees enjoy within the local government sector.
6.2 The transfer of employees employed by an organ of state
The proposed amendment to section 15, as set out in the PSAB contains the following provision:
“15(1) Any person who was employed by an organ of state immediately before he or she is appointed in terms of section 9 shall be deemed to be transferred to the public service in respect of such conditions of service and to such extent as the minister may determine in terms of section 3(5)”.
Furthermore, section 3(5) of the Bill contains the following provision:
“The Minister may make determinations regarding any conditions of service generally or categories of employees, including determinations regarding a salary scale for all employees or salary scales for particular categories of employees and allowances for particular categories of employees”.
“Organ of State” is defined as:
“Organ of state means an organ of state as defined in section 239 of the Constitution”.
Section 239 of the Constitution contains the following provision:
“Organ of state means:
(a) any department of state or administration in the National, Provincial or Local sphere of government (our emphasis)”.
From the aforesaid section it is clear that the intended scope and application of section 15 could include employees currently employed in local government. In terms of this proposed section the employees may be transferred into the public service on an effective date and will thereafter be treated as public servants as envisaged in the Public Service Act.
What is of concern to IMATU is the fact that the Minister may determine new conditions of service and the extent of their application. IMATU is of the opinion that assigning such powers to the Minister is unconstitutional and constitutes a complete disregard for the provisions of legislation such as those set out in the Labour Relations Act.
Section 23(1) of the Bill of Rights states that everyone has the right to fair labour practices. To confer upon the Minister the right to determine the conditions of service and determine their application is a complete disregard for the constitutional right to fair labour practices. IMATU submits that to vest in the Minister such extensive power is unconstitutional.
In terms of 23(5) of the Bill of Rights employers and trade unions have the right to engage in collective bargaining. The LRA promotes and encourages collective bargaining. To confer upon the Minister the right to determine the conditions of service is a complete disregard of employers’ and employees’ rights to bargain over issues regulating the employment relationship.
The bargaining arrangements in the local government sector are well established and conducted under the auspices of the SALGBC, as aforesaid. The 284 metropolitan, local and district municipalities are all represented in the bargaining council through their membership of SALGA. The bargaining council has since its inception attempted to standardise conditions of service throughout all municipalities, which has been successful, except for a few minor exceptions.
Various collective agreements have been concluded that have led to harmony and standardisation throughout the sector in respect of conditions of service. To confer upon the minister the right to unilaterally disregard the existing collective agreements is not acceptable. It is suggested that the Minister’s powers to act as such be severely curtailed to the extent that he or she recognises those current conditions of service as part and parcel of any new dispensation.
It must be borne in mind that the existing collective agreements were negotiated and concluded through years of collective bargaining between the parties, which included industrial action and sacrifices by both employees and employers. To negate and ignore this fact would be short-sighted behaviour from the responsible Minister.
Section 209 of the LRA states that the Act binds the State. The Minister is therefore obliged and compelled to apply the provisions of the Act. Subsection 197(3) of the Act states that collective agreements that regulated terms and conditions of employment immediately prior to the transfer, remain in force and effect after the transfer, unless a new agreement is concluded in terms of subsection (6) of the Act. The Minister is therefore duty bound and compelled to honour the existing collective agreements unless an agreement is concluded in the manner provided for. The powers conferred upon the Minister to determine the conditions of service are in contravention of law.
The Minister is compelled to apply section 197 due to the fact that the Labour Relations Act specifically binds the State. Attempts by the Minister to evade the provisions of Sections 197 would be unlawful and subject to challenges in the appropriate forum.
Furthermore section 210 of the Labour Relations Act states that when the Act is in conflict with any other law, except for the Constitution, then the provisions of the Labour Relations Act would prevail. It is submitted that the provisions of the Labour Relations Act and specifically section 197 would prevail in any transfer scenario. The Minister would not be entitled to unilaterally determine the conditions of service of employees and would have to honour the existing collective agreements in force and effect in the local government sector. IMATU submits that any conduct in conflict therewith would be unlawful and would be open for constitutional and other legal challenges.
IMATU submits that the PSAB should be withdrawn and referred to NEDLAC, as provided in section 5 of the NEDLAC Act, as the Bill has a serious labour, social and economic impact.
Considering these implications, the Bill should also be referred to forums such as the SALGBC and PSCBC for consultation.
IMATU is of the view that the creation of the single public service should be abandoned and that local government should be afforded the opportunity to deliver on its constitutional mandate, as set out in more detail in sections 3 and 4 of the IMATU submission aforesaid. IMATU submits that the focus should rather be on creating sufficient infrastructure and making available sufficient resources to the three spheres of governments and the respective governmental departments to fulfil their constitutional mandate as a first priority.
IMATU is also of the view that a proper investigation should be conducted (inclusive of affected role players such as IMATU) to establish the full socio-economic impact of a proposed single public service.
IMATU is also of the view that a summit should be convened between representatives of the three spheres of government and the trade union partners to determine a strategic plan to eradicate service delivery problems from all levels of government.